U.S. Supreme Court
ORR v. ORR, 440 U.S. 268 (1979)
440 U.S. 268
ORR v. ORR
APPEAL FROM THE COURT OF CIVIL APPEALS OF ALABAMA

No. 77-1119.

Argued November 27, 1978
Decided March 5, 1979

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MR. JUSTICE BLACKMUN, concurring.

On the assumption that the Court's language concerning discrimination "in the sphere" of the relevant preference statute, ante, at 281, does not imply that society-wide discrimination is always irrelevant, and on the further assumption that that language in no way cuts back on the Court's decision in Kahn v. Shevin, 416 U.S. 351 (1974), I join the opinion and judgment of the Court.

MR. JUSTICE STEVENS, concurring.

Whether Mr. Orr has a continuing contractual obligation to pay alimony to Mrs. Orr is a question of Alabama law that the Alabama courts have not yet decided. In Part I-B of his opinion, MR. JUSTICE REHNQUIST seems to be making one of two alternative suggestions:


(1) that we should decide the state-law issue; or [440 U.S. 268, 285]

(2) that we should direct the Supreme Court of Alabama to decide that issue before deciding the federal constitutional issue.

In my judgment the Court has correctly rejected both of these alternatives. To accept either - or a rather confused blend of the two - would violate principles of federalism that transcend the significance of this case. * I therefore join the Court's opinion.

[ Footnote * ] Even if I could agree with MR. JUSTICE REHNQUIST'S view that Mr. Orr's probability of success on the state-law issue is so remote that we should deny him standing to argue the federal question decided by the Alabama Supreme Court, I still would not understand how he reached the conclusion that the litigation between Mr. and Mrs. Orr is not a "case or controversy" within the meaning of Art. III.

MR. JUSTICE POWELL, dissenting.

I agree with MR. JUSTICE REHNQUIST that the Court, in its desire to reach the equal protection issue in this case, has dealt too casually with the difficult Art. III problems which confront us. Rather than assume the answer to questions of state law on which the resolution of the Art. III issue should depend, and which well may moot the equal protection question in this case, I would abstain from reaching either of the constitutional questions at the present time.

This Court repeatedly has observed:


"[W]hen a federal constitutional claim is premised on an unsettled question of state law, the federal court should stay its hand in order to provide the state courts an opportunity to settle the underlying state-law question and thus avoid the possibility of unnecessarily deciding a constitutional question." Harris County Comm'rs Court v. Moore, 420 U.S. 77, 83 (1975).

See Elkins v. Moreno, 435 U.S. 647 (1978); Boehning v. Indiana State Employees Assn., Inc., 423 U.S. 6 (1975); Askew v. Hargrave, 401 U.S. 476 (1971); Reetz v. Bozanich, [440 U.S. 268, 286] 397 U.S. 82 (1970); Aldrich v. Aldrich, 378 U.S. 540 (1964); Dresner v. Tallahassee, 378 U.S. 539 (1964); Clay v. Sun Ins. Office Ltd., 363 U.S. 207 (1960); Meridian v. Southern Bell Tel. & Tel. Co., 358 U.S. 639 (1959); Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101 (1944); Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941). The Court should follow this principle in the present case.
Here there are present two questions of state law, the resolution of which almost certainly will determine the outcome of this litigation, and at the least will substantially alter the issues presented. The Court concedes that Alabama properly might regard this challenge to the terms of the divorce decree as untimely, as it came for the first time - more than two years after the decree became final - in a contempt proceeding to enforce the alimony obligation. Ante, at 275 n. 4. Moreover, appellant had interposed no objection to the entry of the decree and the approval therein of the settlement agreement, nor had he questioned the validity of the Alabama statute. If, in these circumstances, provisions of a divorce decree are subject to collateral attack, grave questions will arise in Alabama and other States. It hardly need be said that the policy of repose embodied in a prohibition of collateral attack has especial importance with respect to divorce and alimony decrees. It is not surprising, therefore, that subsequent to its decision in this case the Alabama Court of Civil Appeals held that a claim identical to appellant's would not be considered, where the husband raised it for the first time on a motion for a new trial. Hughes v. Hughes, 362 So.2d 910, cert. dismissed as improvidently granted, 362 So.2d 918 (Ala. 1978), appeal docketed, No. 78-1071. This holding should apply a fortiori to a case where the constitutional claim was not raised until a contempt proceeding.

The second question of state law concerns the formal settlement agreement entered into between appellant and appellee, which deals in detail with the "property rights, alimony, and [440 U.S. 268, 287] other matters in dispute" between the parties, and which was approved by the divorce court. The agreement requires the husband to pay $1,240 per month for the "support and maintenance, use and comfort" of the wife for her life or until she remarries. It also specifies that the terms and provisions of the agreement "shall inure to and be binding upon the parties hereto and their respective heirs, assigns, executors, administrators and legal representatives." App. 7-15. Although the Court does not view this agreement as any obstacle to reaching the constitutional question, it does acknowledge that appellant "may have a continuing obligation to his former wife based upon that agreement" - as a matter of "state contract law" quite apart from the divorce decree. Ante, at 275.

If appellant's collateral attack on the terms of the divorce decree could not properly be entertained under Alabama law, or if the alimony obligation assumed by appellant in the settlement agreement remains enforceable under Alabama law, the question whether this Court constitutionally may exercise jurisdiction over the dispute would be close and difficult. 1 In addition, it would be unnecessary to consider the constitutionality of Alabama's divorce statute, as the adequate-and-independent-state-ground doctrine then would bar federal review of the judgment against appellant. 2 [440 U.S. 268, 288]

The Court, in order to find a case or controversy present here, necessarily assumes the answer to both of the state-law questions in this case. In some circumstances such assumptions might be appropriate. We cannot anticipate every state-law issue that ultimately could bar the realization of an otherwise substantial federal claim, and the failure of either the state courts or the parties to address an issue ordinarily might indicate that it does not present a problem. But here the Court concedes the substantiality of the identified but unanswered questions. Indeed, in light of Hughes v. Hughes, supra, it could not do otherwise.

The uncertainty and ambiguity surrounding this case is accentuated by the fact that appellant apparently does not contend that the entire divorce decree is invalid; he seeks relief only from so much of the decree as imposes an alimony obligation. But this obligation is only one element of the detailed and comprehensive agreement signed by the parties and witnessed by their respective attorneys. The agreement was not made subject to the approval of the divorce court. Apart from whether the contractual obligation to pay alimony remains binding on appellant, is there a question as to the binding effect of the divorce itself upon appellee? Would she have agreed to divorce appellant without a contest, and without making a record of her grounds for divorce, unless she had the assurance of a valid and enforceable court order providing support and maintenance for her lifetime?

Apparently none of these questions was raised in either of the Alabama courts. No explanation has been offered us as to why the case is presented here in this manner. 3 In view of [440 U.S. 268, 289] the substantiality of the unanswered questions, it must be conceded that serious doubts exist as to either the presence of a judicially cognizable case or controversy or to appellant's obtaining any advantage from his constitutional claim. The failure of the parties to raise the questions in the courts below, and of the courts to raise them sua sponte, cannot bind us. On the record before us it cannot be said with assurance that the interests of these parties before this Court are fully adversary or that they are not seeking - for reasons undisclosed - a purely advisory opinion on a constitutional issue of considerable importance. 4

In these circumstances, I find the Court's insistence upon reaching and deciding the merits quite irreconcilable with the long-established doctrine that we abstain from reaching a federal constitutional claim that is premised on unsettled questions of state law without first affording the state courts [440 U.S. 268, 290] an opportunity to resolve such questions. I therefore would remand the case to the Supreme Court of Alabama.


[ Footnote 1 ] The Court confuses the questions of the existence of a case or controversy under Art. III with the application of the adequate-and-independent-state-ground doctrine. It is true that the failure of the courts below to rest their decision on a state-law ground means that we are not without power to decide the case for that reason. Cf. Murdock v. Memphis, 20 Wall. 590 (1875). But this does not determine whether the presence in fact of state-law grounds for the decision below bars a federal court from considering this claim under Supervisors v. Stanley, 105 U.S. 305 (1882).


[ Footnote 2 ] The Court implies that principles of equitable abstention expressed in the Pullman decision never can apply when the court to which the unresolved question of state law will be referred already has considered the case. Ante. at 278 n. 8. But, as the unusual posture of this case illustrates, a state court may have considered a case without having had the [440 U.S. 268, 288] relevant state-law questions presented to it. See n. 3, infra. Where this is true, the policies that underlie Pullman should apply with equal force.


[ Footnote 3 ] As the Court notes, in appellee's brief in the Alabama Court of Civil Appeals she stated that "[t]he appellee agrees that the issue before this Court is whether the Alabama alimony laws are unconstitutional because of the gender based classification made in the statutes." Ante, at 276. She [440 U.S. 268, 289] made no reference to Alabama authority that already had held that constitutional attacks on the divorce statute would not be heard unless presented at the time the divorce is contested. See Dale v. Dale, 54 Ala. App. 505, 310 So.2d 225 (1975). Even more inexplicable, appellee before this Court has made no reference to Hughes v. Hughes, 362 So.2d 910 (Ala. App.), cert. dismissed as improvidently granted, 362 So.2d 918 (Ala. 1978), appeal docketed, No. 78-1071, in spite of that decision's clear relevance to this case. It is pertinent that the initial decision in Hughes was handed down more than seven months before appellee filed her brief before us, and that the final decision of the Supreme Court of Alabama was announced a month before argument in this case.


[ Footnote 4 ] It is curious, to say the least, that neither party in this case has raised these questions. The competency of appellee's counsel is evidenced by the thoroughness of the settlement agreement he negotiated and witnessed. Moreover, the questions not raised are neither abstruse nor difficult. In view of the way in which this case has been presented, we cannot dismiss the possibility of some rapprochement between these parties that could affect the genuineness of a case or controversy. There may well be an innocent explanation for these most unusual circumstances, but the absence of any such explanation appearing from the record suggests the wisdom of not deciding the constitutional issue.

MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.

In Alabama only wives may be awarded alimony upon divorce. In Part I of its opinion, the Court holds that Alabama's alimony statutes may be challenged in this Court by a divorced male who has never sought alimony, who is demonstrably not entitled to alimony even if he had, and who contractually bound himself to pay alimony to his former wife and did so without objection for over two years. I think the Court's eagerness to invalidate Alabama's statutes has led it to deal too casually with the "case and controversy" requirement of Art. III of the Constitution.


I
The architects of our constitutional form of government, to assure that courts exercising the "judicial power of the United States" would not trench upon the authority committed to the other branches of government, consciously limited the Judicial Branch's "right of expounding the Constitution" to "cases of a Judiciary Nature" 1 - that is, to actual "cases" and "controversies" between genuinely adverse parties. Central to this Art. III limitation on federal judicial power is the concept of standing. The standing inquiry focuses on the party before the Court, asking whether he has "`such a personal [440 U.S. 268, 291] stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf." Warth v. Seldin, 422 U.S. 490, 498 -499 (1975) (emphasis in original), quoting Baker v. Carr, 369 U.S. 186, 204 (1962). Implicit in the concept of standing, are the requirements of injury in fact and causation. To demonstrate the "personal stake" in the litigation necessary to satisfy Art. III, the party must suffer "a distinct and palpable injury," Warth v. Seldin, supra, at 501, that bears a "`fairly traceable' causal connection" to the challenged government action. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72 (1978), quoting Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261 (1977). When a party's standing to raise an issue is questioned, therefore, "the relevant inquiry is whether . . . [he] has shown an injury to himself that is likely to be redressed by a favorable decision." Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38 (1976). Stated differently, a party who places a question before a federal court must "stand to profit in some personal interest" from its resolution, else the exercise of judicial power would be gratuitous. Id., at 39.

The sole claim before this Court is that Alabama's alimony statutes, which provide that only husbands may be required to pay alimony upon divorce, violate the Equal Protection Clause of the Fourteenth Amendment. Statutes alleged to create an impermissible gender-based classification are generally attacked on one of two theories. First, the challenged classification may confer on members of one sex a benefit not conferred on similarly situated members of the other sex. Clearly, members of the excluded class - those who but for their sex would be entitled to the statute's benefits - have a sufficient "personal stake" in the outcome of an equal protection challenge to the statute to invoke the power of the federal judiciary. Thus, a widower has standing to question [440 U.S. 268, 292] the constitutionality of a state statute granting a property tax exemption only to widows. See Kahn v. Shevin, 416 U.S. 351 (1974). Likewise, this Court has reached the merits of a retired male wage earner's equal protection challenge to a federal statute granting higher monthly old-age benefits to similarly situated female wage earners. See Califano v. Webster, 430 U.S. 313 (1977). Standing to raise these constitutional claims was not destroyed by the fact that the State of Florida in Kahn, and Congress in Webster, were capable of frustrating a victory in this Court by merely withdrawing the challenged statute's benefits from the favored class rather than extending them to the excluded class. See Stanton v. Stanton, 421 U.S. 7, 17 (1975).

Second, the challenged statute may saddle members of one sex with a burden not borne by similarly situated members of the other sex. Standing to attack such a statute lies in those who labor under its burden. For example, in Califano v. Goldfarb, 430 U.S. 199 (1977), this Court sustained a widower's equal protection challenge to a provision of the Social Security Act that burdened widowers but not widows with the task of proving dependency upon the deceased spouse in order to qualify for survivor's benefits. A similar statute was invalidated in Frontiero v. Richardson, 411 U.S. 677 (1973), at the instance of a female member of the uniformed services who, unlike her male counterparts, was required to prove her spouse's dependency in order to obtain increased quarters allowances and health benefits.

The statutes at issue here differ from those discussed above in that the benefit flowing to divorced wives derives from a burden imposed on divorced husbands. Thus, Alabama's alimony statutes in effect create two gender classifications: that between needy wives, who can be awarded alimony under the statutes, and needy husbands, who cannot; and that between financially secure husbands, who can be required to pay alimony under the statutes, and financially secure wives, who [440 U.S. 268, 293] cannot. Appellant Orr's standing to raise his equal protection claim must therefore be analyzed in terms of both of these classifications.


A
This Court has long held that in order to satisfy the injury-in-fact requirement of Art. III standing, a party claiming that a statute unconstitutionally withholds a particular benefit must be in line to receive the benefit if the suit is successful. In Supervisors v. Stanley, 105 U.S. 305 (1882), shareholders of a national bank attacked the validity of a state property tax statute that did not, contrary to federal law, permit deduction of personal debts from the assessed value of their bank stock. With respect to the constitutional claim of shareholders who had failed to allege the existence of personal debts that could be deducted under a valid statute, the Court reasoned:


"What is there to render the [state statute] void as to a shareholder in a national bank, who owes no debts which he can deduct from the assessed value of his shares? The denial of this right does not affect him. He pays the same amount of tax that he would if the law gave him the right of deduction. He would be in no better condition if the law expressly authorized him to make the deduction. What legal interest has he in a question which only affects others? Why should he invoke the protection of the act of Congress in a case where he has no rights to protect? Is a court to sit and decide abstract questions of law in which the parties before it show no interest, and which, if decided either way, affect no right of theirs?

. . . . .

". . . If no such right exists, the delicate duty of declaring by this court that an act of State legislation is void, is an assumption of authority uncalled for by the merits [440 U.S. 268, 294] of the case, and unnecessary to the assertion of the rights of any party to the suit." Id., at 311-312.

It is undisputed that the parties now before us are "a needy wife who qualifies for alimony and a husband who has the property and earnings from which alimony can be paid." 351 So.2d 906, 907 (1977) (Jones, J., dissenting). Under the statute pertinent to the Orrs' divorce, alimony may be awarded against the husband only "[i]f the wife has no separate estate or if it be insufficient for her maintenance." Ala. Code 30-2-51 (1975). At the time of their divorce, Mr. Orr made no claim that he was not in a position to contribute to his needy wife's support, much less that she should be required to pay alimony to him. 2 On the contrary, the amount of alimony awarded by the Alabama trial court was agreed to by the parties, and appellant has never sought a reduction in his alimony [440 U.S. 268, 295] obligation on the ground of changed financial circumstances. See Davis v. Davis, 274 Ala. 277, 147 So.2d 828 (1962); Garlington v. Garlington, 246 Ala. 665, 22 So.2d 89 (1945). On these facts, it is clear that appellant is not in a position to benefit from a sex-neutral alimony statute. 3 His standing to raise the constitutional question in this case, therefore, cannot be founded on a claim that he would, but for his sex, be entitled to an award of alimony from his wife under the Alabama statutes.

B
The Court holds that Mr. Orr's standing to raise his equal protection claim lies in the burden he bears under the Alabama statutes. He is required to pay alimony to his needy former spouse while similarly situated women are not. That [440 U.S. 268, 296] the State may render Mr. Orr's victory in this Court a hollow one by neutrally extending alimony rights to needy husbands does not, according to the Court, destroy his standing, for the State may elect instead to do away with alimony altogether. The possibility that Alabama will turn its back on the thousands of women currently dependent on alimony checks for their support 4 is, as a practical matter, nonexistent. But my conclusion that appellant lacks standing in this Court does not rest on the strong likelihood that Alabama will respond to today's decision by passing a sex-neutral statute. Appellant has simply not demonstrated that either alternative open to the State - even the entire abrogation of alimony - will free him of his burden.

The alimony obligation at issue in this case was fixed by an agreement between the parties, and appellant makes no claim that the contract is unenforceable under state law. Indeed, the Court itself concedes that "despite the unconstitutionality of the alimony statutes. Mr. Orr may have a continuing obligation to his former wife based upon [their] agreement." Ante, at 275. The Court casually dismisses the matter, however, as one "which we cannot, and would not, predict." Ante, at 276 n. 5.

I cannot accede to the Court's offhand dismissal of so serious an obstacle to the exercise of our jurisdiction. It is not our duty to establish Orr's standing to have his claim decided on the merits. On the contrary, the burden is on him "to meet the minimum requirement of Art. III: to establish that, in fact, the asserted injury was the consequence of the [unconstitutional [440 U.S. 268, 297] statute], or that prospective relief will remove the harm." Warth v. Seldin, 422 U.S., at 505 ; Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S., at 72 ; Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S., at 260 -261; Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S., at 38 ; Linda R. S. v. Richard D., 410 U.S. 614, 617 (1973). That appellant has not carried this burden is clearly demonstrated by the Court's acknowledgement that his alimony obligation may well be enforced under state contract law.

The Court's analysis of Mr. Orr's standing is not aided by its attempt to transform the instant case into one involving race discrimination. See ante, at 273. Of course, a state law imposing alimony obligations on blacks but not whites could be challenged by a black required, by operation of the statute, to pay alimony. Invalidation of the discriminatory alimony statute would relieve him of his burden. If, however, his alimony obligation was enforceable under state contract law independent of the challenged alimony statute, he could hardly argue that his injury was caused by the challenged statute. Invalidation of the statute would bring him no relief. Accordingly, the exercise of federal judicial power on his behalf "would be gratuitous and thus inconsistent with the Art. III limitation." Simon v. Eastern Kentucky Welfare Rights Org., supra, at 38.

Nor is the Court's conclusion supported by Linda R. S. v. Richard D., supra. At issue in Linda R. S. was a state statute subjecting to criminal prosecution any "parent" failing to support his "children." State courts had consistently construed the statute to apply solely to the parents of legitimate children and to impose no duty of support on the parents of illegitimate children. The mother of an illegitimate child, claiming that the "discriminatory application" of the statute violated the Equal Protection Clause, sought an injunction directing the local district attorney to prosecute the father of her child for violating the statute. This Court held that she lacked standing [440 U.S. 268, 298] to raise her claim. While she "no doubt suffered an injury stemming from the failure of her child's father to contribute support payments," she had made "no showing that her failure to secure support payments result[ed] from the nonenforcement, as to her child's father, of [the child-support statute]." 410 U.S., at 618 .


"Thus, if appellant were granted the requested relief, it would result only in the jailing of the child's father. The prospect that prosecution will, at least in the future, result in payment of support can, at best, be termed only speculative. Certainly the `direct' relationship between the alleged injury and the claim sought to be adjudicated which previous decisions of this Court suggest is a prerequisite of standing, is absent in this case." Ibid.

Like appellant in Linda R. S., Mr. Orr has failed to show a "substantial likelihood" 5 that the requested relief will result in termination of his alimony obligation. Thus, far from supporting the Court's finding of standing in appellant Orr, Linda R. S. leads inescapably to the opposite conclusion. 6 [440 U.S. 268, 299]

II
Nor is appellant's lack of standing somehow cured by the fact that the state courts reached and decided the merits of his constitutional claim. Article III is a jurisdictional limitation on federal courts, and a state court cannot transform an abstract or hypothetical question into a "case or controversy" merely by ruling on its merits. In Doremus v. Board of Education, 342 U.S. 429 (1952), this Court held that a taxpayer lacked the requisite financial interest in the outcome of a First Amendment challenge to a state statute requiring Bible reading in public schools. In dismissing the taxpayer's appeal from an adverse ruling in the State's highest court, this Court held:


"We do not undertake to say that a state court may not render an opinion on a federal constitutional question even under such circumstances that it can be regarded only as advisory. But, because our own jurisdiction is cast in terms of `case or controversy' we cannot accept as the basis for review, nor as the basis for conclusive disposition of an issue of federal law without review, any procedure which does not constitute such." Id., at 434.

Appellant's case, having come to us on appeal rather than on writ of certiorari, is much like Marbury's case in that Congress conferred upon each litigant the right to have his claim heard in this Court. But here, as in Marbury v. Madison, 1 Cranch 137 (1803), and Doremus, supra, we are, in my opinion, prevented by Art. III of the Constitution from exercising the jurisdiction which Congress has sought to confer upon us.

III
Article III courts are not commissioned to roam at large, gratuitously righting perceived wrongs and vindicating claimed rights. They must await the suit of one whose advocacy is inspired by a "personal stake" in victory. The Framers' [440 U.S. 268, 300] wise insistence that those who invoke the power of a federal court personally stand to profit from its exercise ensures that constitutional issues are not decided in advance of necessity and that the complaining party stand in the shoes of those whose rights he champions. Obedience to the rules of standing - the "threshold determinants of the propriety of judicial intervention" 7 - is of crucial importance to constitutional adjudication in this Court, for when the parties leave these halls, what is done cannot be undone except by constitutional amendment.

Much as "Caesar had his Brutus; Charles the First his Cromwell," Congress and the States have this Court to ensure that their legislative Acts do not run afoul of the limitations imposed by the United States Constitution. But this Court has neither a Brutus nor a Cromwell to impose a similar discipline on it. While our "right of expounding the Constitution" is confined to "cases of a Judiciary Nature," we are empowered to determine for ourselves when the requirements of Art. III are satisfied. Thus, "the only check upon our own exercise of power is our own sense of self-restraint." United States v. Butler, 297 U.S. 1, 79 (1936) (Stone, J., dissenting). I do not think the Court, in deciding the merits of appellant's constitutional claim, has exercised the self-restraint that Art. III requires in this case. I would therefore dismiss Mr. Orr's appeal on the authority of Doremus v. Board of Education, supra.


[ Footnote 1 ] 2 M. Farrand, The Records of the Federal Convention of 1787, p. 430 (1911). Indeed, on four different occasions the Constitutional Convention rejected a proposal, contained in the "Virginia Plan," to associate Justices of the Supreme Court in a counsel of revision designed to render advice on pending legislation. 1 id., at 21. Suggestions that the Chief Justice be a member of the Privy Council to assist the President, and that the President or either House of Congress be able to request advisory opinions of the Supreme Court were likewise rejected. 2 id., at 328-329, 340-344.


[ Footnote 2 ] The Court suggests that "[i]t may be that appellant's Circuit Court motion challenging the constitutionality of the statutes could be construed as constituting a claim for alimony." Ante, at 271-272, n. 2. The Court further notes that in any event, "the state courts did not challenge appellant's standing on this or any other ground." Ibid. Appellant's motion, made in response to the court's order to show cause why he should not be judged in contempt, provides in pertinent part: "WHEREFORE, your Respondent moves the Court for an order decreeing that: "1. Code of Alabama, Title 34, 31-33 arbitrarily discriminate against male spouses and thus are in violation of the equal protection clause of the United States Constitution and thereby are unconstitutional. "2. A permanent injunction be issued against the continued enforcement of these statutes. "3. The decree ordering your Respondent to pay the Complainant alimony be rendered null and void." App. to Juris. Statement 24a. How this can be construed as constituting a claim for alimony is beyond me. That the state courts did not challenge appellant's standing on his failure to claim entitlement to alimony is wholly irrelevant. We are not here concerned with the question whether Mr. Orr lacked standing under state law to bring this suit in an Alabama court. The Case and Controversy Clause of Art. III is a constitutional limitation on the jurisdiction of federal courts. See Doremus v. Board of Education, 342 U.S. 429 (1952).


[ Footnote 3 ] The Court states that appellant's standing is rendered "unassailable" by his allegations (1) that under Alabama law a man must maintain his wife in a manner to which she has been accustomed, and (2) that alimony stipulations are reviewed as to their fairness to the wife before being incorporated into court decrees. Ante, at 273-274, n. 3. The Court interprets these allegations as an argument by appellant "that a gender-neutral statute would result in lower payments on his part." Ibid. First, appellant nowhere argues that his alimony obligation would have been less under a sex-neutral statute. The allegations cited by the Court are made in support of appellant's contention that the Alabama alimony statutes were inspired by "archaic notions" about the proper role of women - a contention going to the merits of his equal protection claim rather than his standing to raise it. Second, since his alimony obligation was fixed by an agreement between the parties, appellant could not have seriously made such an argument in any event. Third, even if he had made the argument attributed to him by the Court, it is patently meritless. A gender-neutral alimony statute, by definition, treats husbands and wives the same. Presumably, therefore, a husband claiming under such a statute would be entitled to an amount sufficient to support him in the manner to which he had been accustomed and would be entitled to judicial review of the fairness of any alimony stipulation before its incorporation into the court decree. Far from rendering Mr. Orr's standing "unassailable," the allegations seized upon by the Court are utterly beside the point.


[ Footnote 4 ] The Court suggests that because the Alabama courts are free to hold that the constitutionality of a divorce decree entered without constitutional objection cannot be challenged in contempt proceedings, there is no reason for concern that today's decision will nullify existing alimony obligations. Alabama males currently under court order to pay alimony, however, need not wait until contempt proceedings are lodged against them to raise their constitutional challenge. Rather, they may simply petition the court for relief from the unconstitutional divorce decree.


[ Footnote 5 ] "Our recent cases have required no more than a showing that there is a `substantial likelihood' that the relief requested will redress the injury claimed to satisfy the second prong of the constitutional standing requirement." Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 75 n. 20 (1978).


[ Footnote 6 ] The Court seizes on our gratuitous observation in Linda R. S. that "`the proper party to challenge the constitutionality of [the child-support statute] would be a parent of a legitimate child who has been prosecuted under the statute. Such a challenge would allege that because the parents of illegitimate children may not be prosecuted, the statute unfairly discriminates against the parents of legitimate children.' 335 F. Supp., at 806." 410 U.S., at 619 n. 5. As a statement on standing to challenge a discriminatory criminal statute, the quoted passage cannot be faulted. Clearly, a parent prosecuted under such a statute would satisfy both the injury-in-fact and the causation requirements of standing - invalidation of the statute would totally remove the prosecuted parent's harm. In the instant case, however, the Court itself admits that today's decision may well be gratuitous insofar as appellant Orr is concerned.


[ Footnote 7 ] Warth v. Seldin, 422 U.S. 490, 518 (1975). [440 U.S. 268, 301]

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