In 1929 this Court held that Connecticut's guest statute did not violate the Equal Protection Clause, because it could not be said that "no grounds exist[ed] for the distinction" between gratuitous passengers in automobiles and those in other classes of vehicles. Silver v. Silver, 280 U.S. 117, 123, 50 S. Ct. 57, 74 L. Ed. 221 (1929). While that decision for a while foreclosed federal equal protection challenges to the guest statutes of the various States, in recent years the issue of the constitutional validity of these statutes has been frequently litigated in state courts with conflicting results. Since 1971 the highest courts of no fewer than 6 States have concluded that their guest statutes violated the Equal Protection Clause of the Fourteenth Amendment,2 while during the same period similar statutes have been upheld against federal constitutional attack in 10 States.3 Typical of those decisions striking down the guest statutes is Brown v. Merlo, 8 Cal. 3d 855, 106 Cal. Rptr. 388, 506 P.2d 212 (1973), in which the California Supreme Court concluded that the classifications created by the challenged statute between those denied and those permitted recovery for negligently inflicted injuries did not bear a substantial and rational relation to the statute's purposes of protecting the hospitality of the host driver and of preventing collusive lawsuits. Silver v. Silver was expressly distinguished as involving different equal protection considerations. In contrast,, the Oregon Supreme Court, among others, has held that the hospitality rationale does support the distinctions drawn by the State's guest statute. Duerst v. Limbocker, supra.

As could be expected from the frequency of the consideration of this question by the state courts and from the contradictory results, the issue has been presented here several times in recent years. In each of the last three Terms, we have been asked to consider whether a state or federal court had correctly determined that a state guest statute did not violate the Equal Protection Clause, and on each occasion we declined to grant plenary consideration of the question. Sidle v. Majors, 536 F.2d 1156 (CA7), cert. denied, 429 U.S. 945, 97 S. Ct. 366, 50 L. Ed. 2d 316 (1976); White v. Hughes, 257 Ark. 627, 519 S.W.2d 70, appeal dismissed for want of substantial federal question, 423 U.S. 805, 96 S. Ct. 15, 46 L. Ed. 2d 26 (1975); Cannon v. Oviatt, 520 P.2d 883 (Utah), appeal dismissed for want of substantial federal question, 419 U.S. 810, 95 S. Ct. 24, 42 L. Ed. 2d 37 (1974).

It is significant that on two of these occasions the issue was presented here by means of appeal and that the constitutional grounds urged for invalidity were similar to those relied upon by those courts that have invalidated state guest statutes. We nevertheless dismissed in these two instances for want of a substantial federal question, thus ruling on the merits of the equal protection issue, Hicks v. Miranda, 422 U.S. 332, 95 S. Ct. 2281, 45 L. Ed. 2d 223 (1975), and rejecting the challenge to the statutes.

Such dismissals, however, may not serve their intended purpose, for on at least three occasions since our decision in Cannon v. Oviatt, supra, state courts have invalidated guest statutes on the same or very similar equal protection grounds found to be insubstantial in Cannon. Because the significant division among state courts persists despite Silver v. Silver, supra, and despite our more recent relevant dismissals, I would note probable jurisdiction and set this case for oral argument.