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In the United States Eighth Circuit Court of Appeals
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Appellant,
Vs
State of Missouri
Respondent
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Federal Case No.: 97-3138-CV-S-8
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Motion for Rehearing
COMES NOW, appellant Marc Perkel and moves that the court rehear its decision of June 3rd 1998. Appellants case is virtually identical to the United State Supreme Court case of Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 2d 306, which allowed an individual to overturn a state statute because it violates the Equal Protection Clause of the Fourteenth Amendment. The only difference between the Appellant's case and Orr v. Orr is that this case is in Missouri instead of Alabama and is challenging different statutes. In that case an individual was allowed to challenge the constitutionality of an Alabama law that provided for alimony for women and not for men. The Court in Orr held:
1. This Court has jurisdiction over appellant's appeal. Pp. 271-278.
(a) Appellant's failure to ask for alimony for himself does not deprive him of standing to attack the constitutionality of the Alabama statutes for underinclusiveness. That attack holds the only promise of relief from the burden deriving from the challenged statutes, and appellant has therefore "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S. 186, 204. Pp. 271-273.
(b) Had the courts below refused to entertain appellant's constitutional contention on the ground that it was not timely made under applicable state procedures this Court might have lacked jurisdiction to consider the contention; but no timeliness point was raised or considered below and the constitutional issue was decided on the merits. Under these circumstances it is irrelevant whether the decision below could have been based upon an adequate and independent state ground. Pp. 274-275.
(c) No point was raised or considered below that appellant by virtue of the stipulation was obliged to make the alimony payments under state contract law. "Where the state court does not decide against appellant upon an independent state ground, but deeming the federal question to be before it, actually . . . decides that question adversely to the federal right asserted, this Court has jurisdiction to review the judgement if, as here, it is . . . final . . . ." Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 98. Pp. 275-278.
2. The Alabama statutory scheme of imposing alimony obligations on husbands but not wives violates the Equal Protection Clause of the Fourteenth Amendment. Pp. 278-283.
(a) "To withstand scrutiny" under the Equal Protection Clause, "'classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.'" Califano v. Webster, 430 U.S. 313, 316-317. Pp. 278-279.
(b) The statutes cannot be validated on the basis of the State's preference for an allocation of family responsibilities under which the wife plays a dependent role. "No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas." Stanton v. Stanton, 421 U.S. 7, 14-15. Pp. 279-280.
(c) Though it could be argued that the Alabama statutory scheme is designed to provide help for needy spouses, using sex as a proxy for need, and to compensate women for past discrimination during marriage, which assertedly has left them unprepared to fend for themselves in the working world following divorce, these considerations would not justify that scheme because under the Alabama statutes individualized hearings at which the parties' relative financial circumstances are considered already occur. Since such hearings can determine which spouses are needy as well as which wives were in fact discriminated against, there is no reason to operate by generalization. "Thus, the gender-based distinction is gratuitous . . . ." Weinberger v. Wiesenfeld, 420 U.S. 636, 653. Pp. 280-282.
(d) Use of a gender classification, moreover, actually produces perverse results in this case because only a financially secure wife whose husband is in need derives an advantage from the Alabama scheme as compared to a gender-neutral one. Pp. 282-283.
3. The question remains open on remand whether appellant's stipulated agreement to pay alimony, or other grounds of gender-neutral state law, bind him to continue his alimony payments. Pp. 283-284.
The decision of this court directly conflicts with the United States Supreme Court in Orr v. Orr in that it denies the citizens of the United States the right to challenge the laws of Missouri in federal court when the violate a constitutionally protected right, the Equal Protection Clause of the 14th Amendment. This courts decision effectively overrides the United States Supreme Court.
The right of citizens to challenge the constitutionality of state laws is fundamental to being an American and living in a free society. For this court to rule that a citizen has no ability to get relief in federal court to protect his federal rights is just plain wrong. Because of the serious nature of this removal of a fundamental right and that it overturns the decision of the United States Supreme Court, Appellant requests rehearing.
Appellant believes that the only reason that this court ruled against him is that he is a pro se litigant and that this court rules against pro se litigants as a matter of course in order to discourage non-lawyers from filing causes representing themselves. Appellant believes that the conduct of this court undermines the Appellant's constitutionally protected right to due process of law.
Required Statements
I express a belief, based on a reasoned and studied professional judgement, that the decision is contrary to the following decision of the United States Supreme Court, Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 2d 306, and that consideration by the full court is necessary to secure and maintain uniformity of decision in this court.
I express a belief, based on a reasoned and studied professional judgement, that this appeal raises the following questions of exceptional importance:
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Marc Perkel * Appellant * 06-15-98
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