Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division, No. IP 85-1346-C -- William E. Steckler, Judge.
Wood, Jr., and Easterbrook, Circuit Judges, and Will, Senior District Judge.*fn*
EASTERBROOK, Circuit Judge.
Rebecca and Quinthlyn Trammell obtained declaratory judgments from an Indiana court that their father was Lee A. Hudson. They obtained the judgments as part of their quest for children's benefits under the Social Security Act. Hudson died on April 5, 1984, and his "children" within the meaning of 42 U.S.C. §§ 402(d)(3) and 416(h) are eligible for benefits. The Secretary of Health and Human Services denied the applications for children's benefits, concluding that Rebecca and Quinthlyn are not statutory "children" even if Hudson was their father. Rebecca and Quinthlyn concede that they do not satisfy the statutory criteria but contend that the statute violates the due process clause of the fifth amendment to the Constitution.
The statute offers a person a multitude of ways to become a statutory "child". The most common is for the mother to be -- or be married to -- the covered wage earner. 42 U.S.C. § 402(d)(3)(A). A child adopted by the insured person is treated the same as his own child. Ibid. Methods other than legitimate birth and adoption include:
-- Eligibility to inherit property under intestate succession laws, 42 U.S.C. § 416(h)(2)(A), see Schaefer v. Heckler, 792 F.2d 81 (7th Cir. 1986)
-- Common law marriage of one's parents, defined as a technically deficient marriage ceremony, 42 U.S.C. § 416(h)(2)(B)
-- The insured person's written acknowledgment of parentage, 42 U.S.C. § 416(h)(3)(C)(i)(I)
-- A court order requiring the insured person "to contribute to the support of the applicant because the applicant was his son or daughter", 42 U.S.C. § 416(h)(3)(C)(i)(III)
-- A determination by the Secretary that the insured person was the parent of and "was living with . . . the applicant [for benefits] at the time such insured individual died", 42 U.S.C. § 416(h)(3)(C)(ii)
-- A determination by the Secretary that the insured person was the parent of and was "contributing to the support of the applicant" for benefits when the insured person died, ibid. ; see also Dubinski v. Bowen, 808 F.2d 611 (7th Cir. 1986)
-- A decree by a court that the insured person is the "father of the applicant", provided that "such . . . court decree . . . was made before the death of such insured individual", 42 U.S.C. § 416(h)(3)(C)(i)(II)
Rebecca and Quinthlyn do not qualify under any of these standards. Their mother, Willie B. Trammell, was never married to Lee Hudson and did not go through a defective marriage ceremony with him; Hudson did not adopt Rebecca or Quinthlyn; neither is eligible to inherit property from Hudson under the intestate succession laws of Indiana; Hudson never acknowledged in writing that he is the father of Rebecca or Quinthlyn; no court ordered Hudson to support them; Hudson never contributed to their support or lived with Willie Trammell; and although Rebecca and Quinthlyn obtained judgments that Hudson is their father, the judgments were obtained about four months after Hudson's death. Because Rebecca and Quinthlyn come closest to qualifying under the judicial decree provision of § 416(h)(3)(C)(i)(II), they focus on it and contend that the rule requiring the decree to be obtained during the life of the insured person is irrational and unconstitutional. As they portray the rule, it is an unsupported swipe at the impartiality and competence of state courts. They add, relying on Jimenez v. Weinberger, 417 U.S. 628, 41 L. Ed. 2d 363, 94 S. Ct. 2496 (1974), that the rule creates a distinction that affects only illegitimate children, which requires closer scrutiny than courts usually afford to the categories entailed in social welfare legislation.
Although Rebecca and Quinthlyn insist that the sole reason they are not statutory children is the before-death rule in the judicial decree provision, it is more accurate to say that they are ineligible for benefits because they meet none of the many ways to qualify. Rebecca was born in 1970, Quinthlyn in 1975; Hudson died in 1984. They (more realistically, their mother Willie) had plenty of time to ask Hudson to acknowledge parentage in writing; their mother could have sought a judicial order to compel Hudson to support them; and if Hudson had lived with them or contributed to their support, that also would have sufficed. Whether the statutory scheme treats illegitimate children unconstitutionally depends on the interaction of all rules. The Trammells argue as if Congress had said: "Illegitimate children may receive benefits only if they obtain judicial orders establishing paternity before the father's death." That statute might have substantial problems under Jimenez and similar cases, but it is not what Congress enacted. True enough, once Hudson had died without acknowledging or supporting them in any way, the Trammells had only one hope: to obtain a court order and file this suit against the statutory rule. But this disregards the rest of the statute, the paths not taken. ...