Robinson v. Trousdale County ( 1974 )

HENRY, Justice

(concurring).

I wrote the main opinion to reflect the unanimous views of the Court.

While I am in full accord with the conclusions we have reached on the common law disability of coverture and share with my colleagues a sense of pride in this progressive action, I am convinced that we should have based our decision to a substantial extent, on constitutional grounds.

We can no longer countenance sex-based classifications.

I fully appreciate the traditional policy of the Courts to avoid constitutional questions where their resolution is not necessary to a decision. Sometimes issues of such overriding importance arise that the courts are under a duty to speak. This is such an issue.

The Constitution and laws of the United States recognize that a married woman is a person and an individual entitled to the same protection of the laws as other individuals regardless of ancient provisions of the common law. Alexander v. Alexander, 140 F.Supp. 925 (W.D.S.C. 1956).

My research indicates that the first decision of the Supreme Court of the United States to invalidate a sex discriminatory law was Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). In that case the Court held that a mandatory provision of the Idaho Probate Code giving preference to men over women in the appointment of the administrators of decedent estates is violative of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.

Subsequently in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) the Court held that denial to unwed fathers of a hearing on fitness accorded to other parents whose custody of their children is challenged by the State constitutes a denial of the equal protection of the law.

In Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), the Court held that a statutory distinction in benefits payable to male and female members of the Air Force for their respective spouses, constitutes an unconstitutional discrimination against servicewomen and therefore violates the Due Process Clause of the Fifth Amendment of the Constitution of the United States.

In Wiesenfeld v. Secretary of Health, Education and Welfare, 367 F.Supp. 981 (D.C.N.J.1973), the Court held that a provision of the Social Security Act [402(g)] authorizing payment of insured benefits to widows and divorced mothers but not to widowers is unconstitutional as violating equal protection under the Fifth Amendment.

A footnote to an article entitled “Are Sex-based Classifications Constitutionally Suspect?”, appearing in Northwestern University Law Review, Vol. 66, No. 4 (1971-1972) contains a “mini” brief on sex as a classification. It reads as follows :

'“See, e. g., Cohen v. Chesterfield County School Bd., 326 F.Supp. 1159 (E.D.Va.1971) (mandatory maternity leave at five months pregnancy denied equal protection) ; Kirstein v. Rector & Visitors of the Univ. of Virginia, 309 F.Supp. 184 (E.D.Va.1970) (state university must admit women); United States ex rel. Robinson v. York, 281 F.Supp. 8 (D.Conn.1968) (statute providing for longer sentences for women than for men convicted of the same offense held a denial of equal protection); Karczewski v. Baltimore & O. R. R., 274 F.Supp. 169 (N.D.Ill.1967) (Indiana law allowing husband, but not wife, to sue for loss of consortium, denied wife equal protection); White v. Crook, 251 F.Supp. 401 (N.D.Ala.1966) (Statute barring women completely from jury service violated the equal protection clause); Sail’er Inn, Inc. v. Kirby, 5 Cal.3d 1, 485 P.2d 529, 95 Cal.Rptr. 329 (1971) (statute forbidding women to work as bartenders violated the 1964 Civil Rights Act, California constitution, and the fourteenth amendment); Commonwealth v. Daniel, 430 Pa. 642, 243 A.2d 400 (1968) (statute providing for longer sentences for women than for men convicted of the same offense held invalid); State v. Crow Wing County Welfare Bd., 3 EPD ¶ 5162 (Minn. Human Rights Comm’n 1971) (refusal to grant social worker two months maternity leave violated Minnesota law and the fourteenth amendment). See also Paterson Tavern & G. O. A. v. Borough of Hawthorne, 57 N.J. 180, 270 A.2d 628 (1970) (city ordinance prohibiting employment of female bartenders was an unreasonable exercise of the police power).”

Numerous cases from other jurisdictions support the proposition that where the husband has a right of action for consortium and that right is denied the wife, the classification violates the Equal Protection Clause of the Fourteenth Amendment.¹

I am not unmindful of our own case of Krohn v. Richardson-Merrill, Inc., 219 Tenn. 37, 406 S.W.2d 166 (1965) containing dictum to the contrary.² Suffice it to say, I am in complete disagreement with both the reasoning and result of that case.

I think the above cases have a real relevance to the matters under consideration. They clearly indicate a definite and substantial trend — one might say of floodtide proportions — in the direction of the elimination of sex as a proper classification.

I would hold that the application of the common law disability of coverture is vio-lative of Section 1 of the Fourteenth Amendment to the Constitution of the United States in that married women are “citizens” of the United States and the application of this doctrine deprives them of their property without due process of law, and denies them the equal protection of the law. Moreover, said doctrine is an invidious and “suspect” classification based upon sex and marital status, and is predicated on no rational basis, and abridges their right to acquire, enjoy, lease, hold, own and benefit from their own property.

I would hold, for the same reasons, that the application of this doctrine is violative of Article 1, Section 8, of the Constitution of the State of Tennessee, in that it operates to deprive married women of their property and abridges their rights and privileges as citizens of the State, contrary to the law of the land.³

I am authorized to state that my brother BROCK joins me in this concurring opinion.

1 . See, e. g., Owen v. Illinois Baking Corporation, 260 F.Supp. 820 (W.D.Mich.1966); Deems v. Western Maryland Railway Company, 247 Md. 95, 231 A.2d 514 (Maryland 1967); Leffler v. Wiley, 15 Ohio App.2d 67, 239 N.E.2d 235 (1968); Gates v. Foley, 247 So.2d 40 (Fla.1971); Diaz v. Eli Lilly and Company, 302 N.E.2d 555 (Mass.1973).

2 . The opinion recites: “In the first place, we do not find this question to be properly and timely made by the assignments of error in this case.”

3 . The “law of the land” provision of Art. 1, Sec. 8 of the Tennessee Constitution is synonymous with the “due process of law” provisions of the Fifth and Fourteenth Amendments to the Constitution of the United States. Daugherty v. State, 216 Tenn. 666, 393 S.W.2d 739 (1965).