Virtually any statutory classification can be seen as an irrebuttable presumption. A law forbidding automobile driving by anyone under sixteen may be described as a conclusive presumption that younger persons are unfit to drive—a presumption that is not universally true. The irrebuttable presumptions doctrine was never applied to strike down an age classification, but its reasoning would have served: the law arguably denied procedural due process by denying an individualized hearing on the fitness to drive of a person under sixteen. For a brief season in the mid-1970s, the Supreme Court was fond of this sort of analysis, but the infatuation soon ended.
The doctrine was foreshadowed in Chief Justice harlan fiske stone's concurrence in skinner v. oklahoma (1942), which invalidated an Oklahoma law requiring the sterilization of three-time felons. The Court rested on the equal protection clause, but Stone argued that the law denied due process by denying a hearing on the inheritability of the defendant's criminal traits. He might have called the law an irrebuttable presumption of the inheritability of criminal traits of three-time felons. We can speculate that Stone thought the sterilization law was an irrational deprivation of liberty, but he was disinclined to revive substantive due process so soon after the Court had tried to lay that doctrine to rest.
When, a generation later, the Court explicitly invoked the irrebuttable presumptions theory, one contributing factor surely was a similar wish to avoid resting decision on another theory. In the mid-1970s the Court was struggling with the question whether sex, like race, should be characterized as a suspect classification for purposes of equal protection analysis. (See frontiero v. richardson, 1973.) In two cases, the Court avoided that issue by resorting to irrebuttable presumptions analysis. Stanley v. Illinois (1972) invalidated a law providing that the children of an unwed father became wards of the state upon the death of the mother. The law was attacked on sex discrimination grounds, but the Court escaped that issue, holding that the law violated due process by denying Stanley an individualized hearing on his fitness as a parent. Similarly, in cleveland board of education v. lafleur (1974), a school board insisted that a pregnant teacher take maternity leave of several months before the expected birth of her child, and the Court avoided the sex discrimination issue by calling the law an irrebuttable presumption of unfitness to teach during the months of mandatory leave. The denial of a teacher's right to a hearing on her individual fitness was held to deny procedural due process.
The Court's strongest articulation of the irrebuttable presumptions doctrine came in vlandis v. kline (1973), which invalidated a state law conclusively presuming that a person who was a nonresident upon entering a state college remained a nonresident (for tuition purposes) throughout his college career. It violated due process to deny resident tuition rates on the basis of this presumption which was "not necessarily or universally true."
The irrebuttable presumptions doctrine was severely criticized both within and outside the Court. It was accurately seen as an equal protection or substantive due process doctrine in disguise, demanding the strictest sort of strict scrutiny of the necessity of legislative classifications. The Court plainly could not invalidate all classifications resting on factual assumptions "not necessarily or universally true." By 1975, the Court had had enough. In Weinberger v. Salfi (1975) the Court considered an antifraud provision of the social security act allowing death benefits to a surviving spouse only when the couple had been married nine months before the decedent's death. A widow claimed benefits even though she had been married a shorter time, noting that her husband had died of a sudden, unexpected heart attack. The law was an excellent candidate for irrebuttable presumptions reasoning, but the Court blandly upheld it on grounds of administrative convenience. The whole doctrinal development had run its course in four terms of court.
Kenneth L. Karst
Note 1974 The Irrebuttable Presumption Doctrine in the Supreme Court. Harvard Law Review 87:1534–1556.