Earl Warren

“ The State correctly observes that the fact that the man in question does not actually support the child cannot be determinative, because a natural father at home may fail actually to support his child but his presence will still render the child ineligible for assistance. On the question whether the man must be legally obligated to provide support before he can be regarded as the child's parent, the State has no such cogent answer. We think the answer is quite clear: Congress must have meant by the term 'parent' an individual who owed to the child a state-imposed legal duty of support. ”

“ We think it apparent that neither Congress nor any reasonable person would believe that providing employment for some man who is under no legal duty to support a child would in any way provide meaningful economic security for that child. ”

“ Whether the substitute father is actually the father of the children is irrelevant. It is also irrelevant whether he is legally obligated to support the children, and whether he does in fact contribute to their support. What is determinative is simply whether he 'cohabits' with the mother. [9]
The testimony below by officials responsible for the administration of Alabama's AFDC program establishes that 'cohabitation,' as used in the regulation, means essentially that the man and woman have 'frequent' or 'continuing' sexual relations. ”

“ The Social Security Act of 1935 was part of a broad legislative program to counteract the depression. Congress was deeply concerned with the dire straits in which all needy children in the Nation then found themselves. [24] In agreement with the President's Committee on Economic Security, the House Committee Report declared, 'the core of any social plan must be the child.' H.R.Rep. No. 615, 74th Cong., 1st Sess., 10 (1935) . The AFDC program, however, was not designed to aid all needy children. The plight of most children was caused simply by the unemployment of their fathers. ”

“ Thus, under the 1961 and 1962 amendments to the Social Security Act, the States are permitted to remove a child from a home that is judicially determined to be so unsuitable as to 'be contrary to the welfare of such child.' 42 U.S.C. § 608 (a) (1) . The States are also permitted to terminate AFDC assistance to a child living in an unsuitable home, if they provide other adequate care and assistance for the child under a general welfare program. ”

“ The difficulty with this argument is that it fails to take account of the circumstance that children of fathers living in the home are in a very different position from children of mothers who cohabit with men not their fathers: the child's father has a legal duty to support him, while the unrelated substitute father, at least in Alabama, does not. ”

“ In sum, Congress has determined that immorality and illegitimacy should be dealt with through rehabilitative measures rather than measures that punish dependent children, and that protection of such children is the paramount goal of AFDC. [22] In light of the Flemming Ruling and the 1961, 1962, and 1968 amendments to the Social Security Act, it is simply inconceivable, as HEW has recognized, [23] that Alabama is free to discourage immorality and illegitimacy by the device of absolute disqualification of needy children. ”

“ The State's interest in discouraging illicit sexual behavior and illegitimacy may be protected by other means, subject to constitutional limitations, including state participation in AFDC rehabilitative programs. Its interest in economically allocating its limited AFDC resources may be protected by its undisputed power to set the level of benefits and the standard of need, and by its taking into account in determining whether a child is needy all actual and regular contributions to his support. ”

“ In disapproving this legislation, then Secretary of Health, Education, and Welfare Flemming issued what is now known as the Flemming Ruling, stating that as of July 1, 1961,
'A State plan ... may not impose an eligibility condition that would deny assistance with respect to a needy child on the basis that the home conditions in which the child lives are unsuitable, while the child continues to reside in the home. ”

“ These are the natural or adoptive parents of a child. A natural parent includes the father of a child born out of wedlock, if paternity has been legally established. It does not apply to a stepparent.' Alabama Manual for Administration of Public Assistance, pt. I, c. II, p. 36.↑ HEW requires States to give notice of desertion only with respect to persons who, 'under State laws, are defined as parents * * * for the support of minor children, and against whom legal action may be taken under such laws for desertion or abandonment.' Handbook, pt. ”

“ In other words, if by reason of such a man's contribution, the child is not in financial need, the child would be ineligible for AFDC assistance without regard to the substitute father rule. The appellees here, however, meet Alabama's need requirements; their alleged substitute father makes no contribution to their support; and they have been denied assistance solely on the basis of the substitute father regulation. ”

“ Decisions of this Court, however, establish that a plaintiff in an action brought under the Civil Rights Act, 42 U.S.C. § 1983, 28 U.S.C. § 1343, is not required to exhaust administrative remedies, where the constitutional challenge is sufficiently substantial, as here, to require the convening of a three-judge court. ”

“ Regulations of HEW, which clearly comport with the statute, restrict the resources which are to be taken into account under § 602 to those 'that are, in fact, available to an applicant or recipient for current use on a regular basis * * *.' This regulation properly excludes from consideration resources which are merely assumed to be available to the needy individual. ”