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Orr v. Orr, 440 U.S. 268 (1979), was a United States Supreme Court case that held that a statutory scheme in Alabama that imposed alimony obligations on husbands but not on wives was an unconstitutional equal protection violation. The case came about after two Alabama residents William Herbert Orr failed to pay alimony to his divorced wife Lilliam M. Orr. As Mr. Orr did not want to pay alimony, his legal team attacked the constitutionality of Alabama's alimony statute. After making its way to the Supreme Court, the case of Orr v. Orr brought was ruled in favor of the petitioner, Mr. Orr, and the Alabama statute was struck down. The case would also affect how courts viewed gender based discrimination and standing to go to trial.

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Alimony Statute In Alabama Pre-Orr v. Orr

The state of Alabama had adopted a statutory scheme that imposed alimony obligations on husbands but not on wives for the stated purpose of addressing the economic disparity between men and women by providing support for needy women after divorce. The specific statute that was being challenged here was a part of the Code of Alabama, title 34, sections 31-33. Part of the statute read:"If the wife has no separate estate, or if it be insufficient for her maintenance, the judge, upon granting a divorce at his discretion may decree to the wife an allowance out of the estate of the husband, taking into consideration the value thereof and the condition of his family. (11)"When this text was drafted in the 1800s, women were financially tied to the economic output of their husbands. Therefore, the purpose of this legislation was to uphold a divorced woman's standard of living should she divorce her husband as, outside of woman from wealthy families, it would have been extremely hard for a woman during this time period to make a salary that compared to their male counterpart.

When looking at the purpose of the original Alabama statute, the court stated that there it did not hold up t the strict scrutiny test. The original statute was made in 1852. During this time there was strong social pressure to place responsibility of wives on their husbands. As men were typically the only laborers, women were dependent on their husbands for money. Along with this, there was a social desire not to allow woman to have outright ownership of estates. Therefore, permitting alimony served two functions. It allowed divorced woman to have the financial means to support themselves while also making it so that few woman had any actual control over economic resources.

Dispute Between the Parties

The parties divorced on February 26, 1974. A condition of their divorce was that William Orr would pay monthly alimony payments of $1,240 to Lilliam Orr. On July 28, 1976 Lilliam Orr initiated a contempt proceeding, claiming that William Orr owed her $2,848 in unpaid alimony. This claim was filed with the Circuit Court of Lee County, Alabama. William Orr did not believe that he should have to pay Lilliam Orr alimony payments and filed a defense motion in response to Lilliam Orr's claim. William Orr's defense based itself on the fact that the Alabama alimony statute discriminated on its face against men, as they could not receive alimony under the statute as it was written. At the time William Orr was objectively not in need of any financial compensation himself nor did he try to request alimony for himself. Rather, it was his goal to have Alabama disband the alimony statute altogether so that he would to have to make payments to Lilliam Orr. The Circuit Court promptly denied William Orr's motion and ruled in favor of Lilliam Orr.

Court of Civil Appeals of Alabama

After William Orr appealed the verdict of the Circuit Court, the matter went before the Court of Civil Appeals of Alabama. The Alabama appellate court affirmed the ruling of the Circuit Court. Judge Holms delivered the opinion of the court. The primary concerns of the court were public policy and legislative intent. Holms argument centered on the fact that the legislators that made the statute intended for it to help struggling women as during the time that it was written, women had less financial opportunity. Holms also argued that the statue served a serious public interest in the form of caring for women that could not as easily gain entry into the job market. Holms alludes to the fact that men in this time period typically were the bread winners of their families, thus the husband would have a job when the divorce was finalized. (8) The woman, on the other hand may have limited or no experience in the job market. The opinion itself is heavily reliant on a Georgia Supreme Court case, Murphy v. Murphy, in which the matter of job market compatibility is primarily discussed. (9)

Supreme Court of Alabama

William Orr again appealed the judgment after the appellate court's ruling an the Supreme Court of Alabama took the case. Of the nine justices on the Alabama Supreme Court, seven affirmed the appellate court's ruling, one dissented, and one recused themself. While their was no majority opinion, there was a concurring opinion written by Justice Almon in which he stretches the public policy stance made by the appellate court even further by saying that the statute is intended to preserve family units as a whole, rather that solely provide financial stability to the mother. Justice Almon also spoke of an even greater issue that the ruling resulted in, which was that when combined with the ruling in Peddy v. Montgomery, the Alabama Supreme Court had effectively made it so that women could not have their rights restricted while men could so long as it served a legitimate government interest. (10)

The lone dissenter, Justice Jones, approaches the matter by looking at issue of breaking citizens into classes and treating them differently. Though this is precisely what discrimination is, Justice Jones agreed that the government has the right to place different groups f people into different classes. While, Justice Jones does state that sex is a "suspect class" that was not his main issue with the verdict. Rather, it was the fact that "(a) classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’" (10) Here, according to Justice Jones, the Court was not treating men and woman equally in an mater that was not mutually exclusive. The ruling takes a stance that women are unable to gain financial stability on their own when during this time period that notion was no longer correct. Jones believed that the historical significance that created the discriminatory language in the statute no longer applied and that both genders could now be considered equal partners in the relationship. (10) Due to this and the fact that there may be men in need of financial assistance through alimony Justice Jones believed this judgment to be unconstitutional.

Challenges to William Orr's Standing

There was disagreement among the members of the Court as to whether Orr v. Orr could be heard regarding the matter of a man's right to alimony. This is due the fact that Mr. Orr's original claim was against the constitutionality of the Alabama alimony statute, not a claim for alimony himself. Due to this, the Court had trouble determining if Mr. Orr had standing in this case. A majority of the Court decided that Mr. Orr did have standing due to the fact that Alabama would presumably change its alimony statute to allow both men and women to receive alimony rather than remove the ability to receive alimony altogether. (7) This is known as standing on the facts, as the Court can use its own reasoning to determine whether an outcome of the case would affect a party to the matter rather than basing the decision solely on each parties legal merits. This created standing for Mr. Orr as it created a reasonable belief that he would be able to to gain a form of relief at the conclusion of the appeal. (2)

Opinion of the Court

Applying intermediate scrutiny, the Court determined that the statute was not substantially related to the stated purpose. The Court observed that a gender neutral statute would still have the effect of providing for needy women, and that the only difference created by the Alabama statute was to also provide support for well off women that did not need support and to exclude needy men from support.

The Justices reversed and remanded the case on a 6-3 split decision, with Burger, Rehnquist, and Powell dissenting. The majority opinion was written by Justice Brennan. Brennan addresses the Alabama appellate court's notion that the statute affectively addresses a public policy concern by stating that the statute is underinclusive. (3)  The consideration here is whether the equal protection clause of the US constitution is violated. If a fundamental right is being violated then strict scrutiny would need to be applied where the state would need to show a compelling government interest. If it is a lesser complication then the rational basis test would be applied. This is not a fundamental right, however, it fails to meet the rational basis test as Brennan points out. (4) The statue affectively allowed woman to receive alimony where they needed it, whether due to their specific circumstance or the circumstance that society has created for most woman due to the the United States history of subjugating woman to lesser economic roles. However, making it so that a needy man cannot access the same benefits due to no other reason than his sex discriminates is an unnecessary gender discrimination that benefits no party. Furthermore, it was already the practice under divorce proceedings to take into account the finances of the parties and calculate whether a spouse would be in need. Therefore, a woman in need of financial support after divorce would be able to access the same benefits regardless of whether the system allowed men to collect. Moreover, Justice Brennan concluded that the primary beneficiaries of the statute as it was written are woman who are not dependent on their former husbands, as they are not required to pay alimony to their former spouses and have the financial ability to maintain their way of life, whereas their former spouses may not be able to maintain their former way of life, which is a primary purpose of alimony payments.

Justice Blackman and Stevens wrote concurring opinions. Justice Blackman wanted to clarify that society wide discrimination could be relevant in certain instances, such as historical wrongs that had hurt a class of people over time. Justice Stevens makes a point to address the fact that the Supreme Court's decision did not settle the final matter between William and Lilliam Orr, as that matter would have to be decided by the Alabama judicial system. (1)

Justice Powell's dissent focuses mainly on the grounds in which the Court took the case. Justice Powell alludes to the fact that William Orr did not directly benefit from a decision that sees Alabama's alimony statute ruled unconstitutional as he was under contract with Lillian Orr and he would have to pay her alimony even if the statute was gender neutral. (1)

When the Court considered the purpose of the Alabama alimony statute, it used a stricter standard of scrutiny than it had in other cases involving gender-based classifications. Here, the Court did not believe that the purpose of the statute mattered despite the fact that a supposed goal was to alleviate past discrimination upon woman. (2) This was the beginning of a more liberal trend of construing standing for petitioners.

Ruth Bader Ginsburg and Margaret Moses Young filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.