|Bowen v. Roy
[ Burger ]
[ Blackmun ]
[ Stevens ]
[ O'Connor ]
[ White ]
Bowen v. Roy
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CHIEF JUSTICE BURGER announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, and an opinion with respect to Part III, in which JUSTICE POWELL and JUSTICE REHNQUIST join.
The question presented is whether the Free Exercise Clause of the First Amendment compels the Government to accommodate a religiously based objection to the statutory requirements that a Social Security number be provided by an applicant seeking to receive certain welfare benefits, and that the States use these numbers in administering the benefit programs.
Appellees Stephen J. Roy and Karen Miller applied for and received benefits under the Aid to Families with Dependent Children program and the Food Stamp program. They refused to comply, however, with the requirement, contained in 42 U.S.C. § 602(a)(25) [n1] and 7 U.S.C. § 2025(e), that participants in these programs furnish their state welfare agencies with the Social Security numbers of the members of their household as a condition of receiving benefits. Appellees contended that obtaining a Social Security number for their 2-year-old daughter, Little Bird of the Snow, would violate their Native American religious beliefs. The Pennsylvania Department of Public Welfare thereafter terminated AFDC and medical benefits payable to appellees on the child's behalf and instituted proceedings to reduce the level of food stamps that appellees' household was receiving. Appellees then filed this action against the Secretary of the Pennsylvania Department of Public Welfare, the Secretary of Health and Human Services, and the Secretary of Agriculture, arguing that the Free Exercise Clause entitled them to an exemption from the Social Security number requirement. In their complaint, [p696] appellees stated that "[t]he sole basis" for the denial of welfare benefits was "Mr. Roy's refusal to obtain a Social Security Number for Little Bird of the Snow," and thus requested injunctive relief, damages, and benefits. In the statement of "undisputed facts," the parties agreed that Little Bird of the Snow did not have a Social Security number.
At trial, Roy testified that he had recently developed a religious objection to obtaining a Social Security number for Little Bird of the Snow. [n2] Roy is a Native American descended from the Abenaki Tribe, and he asserts a religious belief that control over one's life is essential to spiritual purity, and indispensable to "becoming a holy person." Based on recent conversations with an Abenaki chief, Roy believes that technology is "robbing the spirit of man." In order to prepare his daughter for greater spiritual power, therefore, Roy testified to his belief that he must keep her person and spirit unique, and that the uniqueness of the Social Security number as an identifier, coupled with the other uses of the number over which she has no control, will serve to "rob the spirit" of his daughter and prevent her from attaining greater spiritual power.
For purposes of determining the breadth of Roy's religious concerns, the trial judge raised the possibility of using the phonetics of his daughter's name to derive a Social Security number. Although Roy saw "a lot of good" in this suggestion, he stated it would violate his religious beliefs because the special number still would apply uniquely and identify her. Roy also testified that his religious objection would not be satisfied even if the Social Security Administration appended the daughter's full tribal name to her Social Security number. [p697]
In Roy's own testimony, he emphasized the evil that would flow simply from obtaining a number. [n3] On the last day of trial, however, a federal officer inquired whether Little Bird of the Snow already had a Social Security number; he learned that a number had been assigned -- under first name "Little," middle name "Bird of the Snow," and last name "Roy."
The Government at this point suggested that the case had become moot, because, under Roy's beliefs, Little Bird of the Snow's spirit had already been "robbed." Roy, however, was recalled to the stand and testified that her spirit would be robbed only by "use" of the number. Since no known use of the number had yet been made, Roy expressed his belief that her spirit had not been damaged. The District Court concluded that the case was not moot because of Roy's beliefs regarding "use" of the number. See Roy v. Cohen, 590 F.Supp. 600, 605 (MD Pa.1984) (finding of fact 33) ("Roy believes that the establishment of a social security number for Little Bird of the Snow, without more, has not ‘robbed her spirit,' but widespread use of the social security number by the federal or state governments in their computer systems would have that effect").
After hearing all of the testimony, the District Court denied appellees' request for damages and benefits, but granted injunctive relief. Based on the testimony of the Government's experts and the obvious fact that many people share certain names, the District Court found that
[u]tilization in [p698] the computer system of the name of a benefit recipient alone frequently is not sufficient to ensure the proper payment of benefits.
The court nevertheless concluded that the public
interest in maintaining an efficient and fraud resistant system can be met without requiring use of a social security number for Little Bird of the Snow,
It appears to the Court that the harm that the Government might suffer if [appellees] prevailed in this case would be, at worst, that one or perhaps a few individuals could fraudulently obtain welfare benefits. Such a result would obtain only if (1) Little Bird of the Snow attempted fraudulently to obtain welfare benefits or someone else attempted fraudulently to obtain such benefits using Little Bird of the Snow's name and (2) identification procedures available to the Defendants that do not require utilization of a social security number failed to expose the fraud. This possibility appears to the Court to be remote.
Id. at 612-613. Citing our decision in United States v. Lee, 455 U.S. 252 (1982), the court entered an injunction containing two basic components. First, the Secretary of Health and Human Services was
permanently restrained from making any use of the social security number which was issued in the name of Little Bird of the Snow Roy and from disseminating the number to any agency, individual, business entity, or any other third party.
Second, the federal and state defendants were enjoined until Little Bird of the Snow's 16th birthday from denying Roy cash assistance, medical assistance, and food stamps "because of the [appellees'] refusal to provide a social security number for her."
Appellees raise a constitutional challenge to two features of the statutory scheme here. [n4] They object to Congress' requirement that a state AFDC plan
must . . . provide (A) that, as a condition of eligibility under the plan, each applicant for or recipient of aid shall furnish to the State agency his social security account number.
42 U.S.C. § 602(a)(25) (emphasis added). They also object to Congress' requirement that "such State agency shall utilize such account numbers . . . in the administration of such plan." Ibid. (emphasis added). [n5] We analyze each of these contentions, turning to the latter contention first.
Our cases have long recognized a distinction between the freedom of individual belief, which is absolute, and the freedom of individual conduct, which is not absolute. This case implicates only the latter concern. Roy objects to the statutory requirement that state agencies "shall utilize" Social Security numbers not because it places any restriction on what he may believe or what he may do, but because he believes the use of the number may harm his daughter's spirit.
Never to our knowledge has the Court interpreted the First Amendment to require the Government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family. The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens. Just as the Government may not insist that appellees engage in [p700] any set form of religious observance, so appellees may not demand that the Government join in their chosen religious practices by refraining from using a number to identify their daughter.
[T]he Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can extract from the government.
Sherbert v. Verner, 374 U.S. 398, 412 (1963) (Douglas, J., concurring).
As a result, Roy may no more prevail on his religious objection to the Government's use of a Social Security number for his daughter than he could on a sincere religious objection to the size or color of the Government's filing cabinets. The Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government's internal procedures.
As Roy points out, eight years ago, Congress passed a Joint Resolution concerning American Indian religious freedom that provides guidance with respect to this case. As currently codified, the Resolution provides:
On and after August 11, 1978, it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.
42 U.S.C. § 1996. That Resolution -- with its emphasis on protecting the freedom to believe, express, and exercise a religion -- accurately identifies the mission of the Free Exercise Clause itself. The Federal Government's use of a Social Security number for Little Bird of the Snow does not itself in any degree impair Roy's "freedom to believe, express, and exercise" his religion. [n6] [p701] Consequently, appellees' objection to the statutory requirement that each state agency "shall utilize" a Social Security number in the administration of its plan is without merit. It follows that their request for an injunction against use of the Social Security number in processing benefit applications should have been rejected. We therefore hold that the portion of the District Court's injunction that permanently restrained the Secretary from making any use of the Social Security number that had been issued in the name of Little Bird of the Snow Roy must be vacated.
Roy also challenges Congress' requirement that a state AFDC plan
must . . . provide (A) that, as a condition of eligibility under the plan, each applicant for or recipient of aid shall furnish to the State agency his social security account number.
42 U.S.C. § 602(a)(25) (emphasis added). [n7] The [p702] First Amendment's guarantee that "Congress shall make no law . . . prohibiting the free exercise" of religion holds an important place in our scheme of ordered liberty, but the Court has steadfastly maintained that claims of religious conviction do not automatically entitle a person to fix unilaterally the conditions and terms of dealings with the Government. Not all burdens on religion are unconstitutional. See Reynolds v. United States, 98 U.S. 145 (1879). This was treated recently in United States v. Lee:
To maintain an organized society that guarantees religious freedom to a great variety of faiths requires that some religious practices yield to the common good. Religious beliefs can be accommodated, but there is a point at which accommodation would "radically restrict the operating latitude of the legislature."
455 U.S. at 259. [p703]
The statutory requirement that applicants provide a Social Security number is wholly neutral in religious terms, and uniformly applicable. There is no claim that there is any attempt by Congress to discriminate invidiously, or any covert suppression of particular religious beliefs. The administrative requirement does not create any danger of censorship, [n8] or place a direct condition or burden on the dissemination of religious views. [n9] It does not intrude on the organization of a religious institution [n10] or school. [n11] It may indeed confront some applicants for benefits with choices, but in no sense does it affirmatively compel appellees, by threat of sanctions, to refrain from religiously motivated conduct [n12] or to engage in conduct that they find objectionable for religious reasons. [n13] Rather, it is appellees who seek benefits from the Government and who assert that, because of certain religious beliefs, they should be excused from compliance with a condition that is binding on all other persons who seek the same benefits from the Government.
This is far removed from the historical instances of religious persecution and intolerance that gave concern to those who drafted the Free Exercise Clause of the First Amendment. See generally M. Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment (1978). We are not unmindful of the importance of many government benefits today or of the value of sincerely held religious beliefs. [p704] However, while we do not believe that no government compulsion is involved, we cannot ignore the reality that denial of such benefits by a uniformly applicable statute neutral on its face is of a wholly different, less intrusive nature than affirmative compulsion or prohibition, by threat of penal sanctions, for conduct that has religious implications.
This distinction is clearly revealed in the Court's opinions. Decisions rejecting religiously based challenges have often recited the fact that a mere denial of a governmental benefit by a uniformly applicable statute does not constitute infringement of religious liberty. In Hamilton v. Regents of University of California, 293 U.S. 245 (1934), for example, the Court rejected a religious challenge by students to military courses required as part of their curriculum, explaining:
The fact that they are able to pay their way in this university, but not in any other institution in California, is without significance upon any constitutional or other question here involved. California has not drafted or called them to attend the university. They are seeking education offered by the State, and at the same time insisting that they be excluded from the prescribed course solely upon grounds of their religious beliefs and conscientious objections to war. . . .
Id. at 262. [n14] In cases upholding First Amendment challenges, on the other hand, the Court has often relied on the showing that compulsion of certain activity with religious significance was involved. [p705] In West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943), for example, the Court distinguished the earlier Hamilton holding and upheld a challenge to a flag salute requirement:
Here . . . we are dealing with a compulsion of students to declare a belief. . . . This issue is not prejudiced by the Court's previous holding that, where a State, without compelling attendance, extends college facilities to pupils who voluntarily enroll, it may prescribe military training as part of the course without offense to the Constitution. It was held that those who take advantage of its opportunities may not, on ground of conscience, refuse compliance with such conditions. Hamilton v. Regents, 293 U.S. 245. In the present case, attendance is not optional.
319 U.S. at 631-632. [n15] The distinction between governmental compulsion and conditions relating to governmental benefits contained in these two cases was emphasized by JUSTICE BRENNAN in his concurring opinion in Abington School District v. Schempp, 374 U.S. 203 (1963):
The different results of [Hamilton and Barnette] are attributable only in part to a difference in the strength of the particular state interests which the respective statutes were designed to serve. Far more significant is the fact that Hamilton dealt with the voluntary attendance at college of young adults, while Barnette involved the compelled attendance of young children at elementary and secondary schools. This distinction warrants a difference in constitutional results.
Id. at 252-253 (footnote omitted). [p706] We have repeatedly emphasized this distinction: in rejecting a Free Exercise challenge in Bob Jones University v. United States, 461 U.S. 574, 603-604 (1983), for example, we observed that the
[d]enial of tax benefits will inevitably have a substantial impact on the operation of private religious schools, but will not prevent those schools from observing their religious tenets. [n16]
We conclude then that government regulation that indirectly and incidentally calls for a choice between securing a governmental benefit and adherence to religious beliefs is wholly different from governmental action or legislation that criminalizes religiously inspired activity or inescapably compels conduct that some find objectionable for religious reasons. Although the denial of government benefits over religious objection can raise serious Free Exercise problems, these two very different forms of government action are not governed by the same constitutional standard. A governmental burden on religious liberty is not insulated from review simply because it is indirect, Thomas v. Review Board of Indiana Employment Security Div., 450 U.S. 707, 717-718 (1981) (citing Sherbert v. Verner, 374 U.S. at 404); [p707] but the nature of the burden is relevant to the standard the government must meet to justify the burden.
The general governmental interests involved here buttress this conclusion. Governments today grant a broad range of benefits; inescapably, at the same time, the administration of complex programs requires certain conditions and restrictions. Although, in some situations, a mechanism for individual consideration will be created, a policy decision by a government that it wishes to treat all applicants alike, and that it does not wish to become involved in case-by-case inquiries into the genuineness of each religious objection to such condition or restrictions is entitled to substantial deference. Moreover, legitimate interests are implicated in the need to avoid any appearance of favoring religious over nonreligious applicants.
The test applied in cases like Wisconsin v. Yoder, 406 U.S. 205 (1972), is not appropriate in this setting. In the enforcement of a facially neutral and uniformly applicable requirement for the administration of welfare programs reaching many millions of people, the Government is entitled to wide latitude. The Government should not be put to the strict test applied by the District Court; that standard required the Government to justify enforcement of the use of Social Security number requirement as the least restrictive means of accomplishing a compelling state interest. [n17] Absent proof of an intent to discriminate against particular religious beliefs or against religion in general, the Government [p708] meets its burden when it demonstrates that a challenged requirement for governmental benefits, neutral and uniform in its application, is a reasonable means of promoting a legitimate public interest.
We reject appellees' contention that Sherbert and Thomas compel affirmance. The statutory conditions at issue in those cases provided that a person was not eligible for unemployment compensation benefits if, "without good cause," he had quit work or refused available work. The "good cause" standard created a mechanism for individualized exemptions. If a state creates such a mechanism, its refusal to extend an exemption to an instance of religious hardship suggests a discriminatory intent. Thus, as was urged in Thomas, to consider a religiously motivated resignation to be "without good cause" tends to exhibit hostility, not neutrality, towards religion. See Brief for Petitioner 15, and Brief for American Jewish Congress as Amicus Curiae 11, in Thomas v. Review Board of Indiana Employment Security Div., O.T. 1979, No. 79-952. See also Sherbert, supra, at 401-402, n. 4; United States v. Lee, 455 U.S. at 264, n. 3 (STEVENS, J., concurring in judgment) (Thomas and Sherbert may be viewed "as a protection against unequal treatment, rather than a grant of favored treatment for the members of the religious sect"). In those cases, therefore, it was appropriate to require the State to demonstrate a compelling reason for denying the requested exemption.
Here there is nothing whatever suggesting antagonism by Congress towards religion generally, or towards any particular religious beliefs. The requirement that applicants provide a Social Security number is facially neutral, and applies to all applicants for the benefits involved. Congress has made no provision for individual exemptions to the requirement in the two statutes in question. Indeed, to the contrary, Congress has specified that a state AFDC plan
must . . . provide (A) that, as a condition of eligibility under the plan, each applicant for or recipient of aid shall furnish to the [p709] State agency his social security account number,
42 U.S.C. § 602(a)(25) (emphasis added), and that
[s]tate agencies shall (1) require, as a condition of eligibility for participation in the food stamp program, that each household member furnish to the State agency their social security account number,
7 U.S.C. § 2025(e) (emphasis added). Nor are these requirements relics from the past; Congress made the requirement mandatory for the Food Stamp program in 1981. Compare 7 U.S.C. § 2025(f) (1976 ed., Supp. IV) (State agencies "may" require that each household member furnish their Social Security number), with 7 U.S.C. § 2025(e) (States "shall" require that such numbers be furnished). Congress also recently extended to several other aid programs the mandatory requirement that the States use Social Security numbers in verifying eligibility for benefits. See Deficit Reduction Act of 1984, Pub.L. 98-369, § 2651(a), 98 Stat. 1147.
The Social Security number requirement clearly promotes a legitimate and important public interest. No one can doubt that preventing fraud in these benefits programs is an important goal. As Representative Richmond explained in support of the bill that made the Social Security number requirement mandatory for the Food Stamp program:
We know that, however generously motivated Americans may be to furnish resources to the poor to enable them to survive, . . . they understandably object if they believe that those resources are being abused or wasted. . . .
We want to be certain that the food stamp program is run as efficiently and as error-free as possible.
We want applicants and recipients alike constantly to be aware that the Congress does not and will not tolerate any refusal to disclose earnings accurately, and underreporting of welfare or other assistance program benefits, any efforts to evade the work requirement, or any other attempts to take advantage of the program and dollars intended only for those who completely satisfy the stringent [p710] eligibility requirements set forth in sections 5 and 7 of the Food Stamp Act of 1977 and further tightened this year and in this bill.
127 Cong.Rec. 24783 (1981). We also think it plain that the Social Security number requirement is a reasonable means of promoting that goal. The programs at issue are of truly staggering magnitude. Each year, roughly 3.8 million families receive $7.8 billion through federally funded AFDC programs, and 20 million persons receive $11 billion in food stamps. The Social Security program itself is the largest domestic governmental program in the United States today, distributing approximately $51 billion monthly to 36 million recipients. Because of the tremendous administrative problems associated with managing programs of this size, the District Court found:
Social security numbers are used in making the determination that benefits in the programs are properly paid and that there is no duplication of benefits or failure of payment. . . . Utilization in the computer system of the name of a benefit recipient alone frequently is not sufficient to ensure the proper payment of benefits.
Social Security numbers are unique numerical identifiers, and are used pervasively in these programs. The numbers are used, for example, to keep track of persons no longer entitled to receive food stamps because of past fraud or abuses of the program. Moreover, the existence of this unique numerical identifier creates opportunities for ferreting out fraudulent applications through computer "matching" techniques. One investigation, "Project Match," compared federal employee files against AFDC and Medicaid files to determine instances of Government employees receiving welfare benefits improperly. Data from 26 States were examined, and 9,000 individuals were identified as receiving duplicate welfare payments. While undoubtedly some fraud escapes detection in spite of such investigations, the President's Private Sector Survey on Cost Control, known more popularly as the "Grace Commission," [p711] recently reported that matching
is the Federal Government's most cost-effective tool for verification or investigation in the prevention and detection of fraud, waste and abuse.
7 The President's Private Sector Survey on Cost Control, Management Office Selected Issues -- Information Gap in the Federal Government 90 (1984).
The importance of the Social Security number to these matching techniques is illustrated by the facts of this case. The District Court found that
efficient operation of these [matching] programs requires the use of computer systems that utilize unique numerical identifiers such as the social security number.
590 F.Supp. at 606. It further found that exempting even appellees alone from this requirement could result in "one or perhaps a few individuals . . . fraudulently obtain[ing] welfare benefits," id. at 612, a prospect the court termed "remote." Id. at 613. The District Court's assessment of this probability seems quite dubious. [n18] But in any event, we know of no case obligating the Government to tolerate a slight risk of "one or perhaps a few individuals" fraudulently obtaining benefits in order to satisfy a religious objection to a requirement designed to combat that very risk. Appellees may not use the Free Exercise Clause to demand [p712] Government benefits, but only on their own terms, particularly where that insistence works a demonstrable disadvantage to the Government in the administration of the programs.
As the Court has recognized before, given the diversity of beliefs in our pluralistic society and the necessity of providing governments with sufficient operating latitude, some incidental neutral restraints on the free exercise of religion are inescapable. As a matter of legislative policy, a legislature might decide to make religious accommodations to a general and neutral system of awarding benefits, [n19] "[b]ut our concern is not with the wisdom of legislation, but with its constitutional limitation." Braunfeld v. Brown, 366 U.S. 599, 608 (1961) (plurality opinion). We conclude that the Congress' refusal to grant appellees a special exemption does not violate the Free Exercise Clause.
The judgment of the District Court is vacated and the case is remanded.
It is so ordered.
1. We refer to the statutory scheme as it existed at the time appellees filed suit. The scheme has since been amended, although the Social Security number requirement has been retained in virtually identical form. See Deficit Reduction Act of 1984, Pub.L. 98-369, § 2651(a), 98 Stat. 1147.
2. Roy and Miller both have Social Security numbers. They also obtained a Social Security number for their 5-year-old daughter Renee at some time prior to the present dispute.
[Q.] Mr. Roy, could you explain why obtaining a Social Security Number for Little Bird of the Snow would be contrary to your religious beliefs as a native Abenaki?
A. Yes. Because we felt that this number would be used to rob her of her ability to have greater power in that this number is a unique number. It serves unique purposes. It's applied to her and only her; and being applied to her, that's what offends us, and we try to keep her person unique, and we try to keep her spirit unique, and we're scared that, if we were to use this number, she would lose control of that, and she would have no ability to protect herself from any evil that that number might be used against her.
4. They also raise a statutory argument -- that the Government's denial of benefits to them constitutes illegal discrimination on the basis of religion or national origin. See 42 U.S.C. § 2000d; 7 U.S.C. §2011. We find these claims to be without merit.
5. The Food Stamp program restrictions that appellees challenge contain restrictions virtually identical to those in the AFDC program quoted in the text. See 7 U.S.C. § 2025(e).
6. Roy's religious views may not accept this distinction between individual and governmental conduct. See, e.g., n. 3, supra. It is clear, however, that the Free Exercise Clause, and the Constitution generally, recognize such a distinction; for the adjudication of a constitutional claim, the Constitution, rather than an individual's religion, must supply the frame of reference.
7. This issue is clearly not moot in light of our discussion in Part II, contrary to the suggestion of the two concurrences. JUSTICE STEVENS asserts that
there is nothing in the record to suggest that the Government will not pay the benefits in dispute as soon as the District Court's injunction against the use of the number has been vacated.
Post at 723. To my mind, this statement, while true, fundamentally misperceives the nature of appellees' suit. Appellees do not seek to have the Government "pay the benefits in dispute as soon as the District Court's injunction against use of the number has been vacated." Such payment would entail use of Little Bird of the Snow's Social Security number, use that appellees filed suit to prevent.
JUSTICE BLACKMUN similarly believes that, on remand,
it is possible that the Government, in a welcome display of reasonableness, will decide that, since it already has a Social Security number for Little Bird of the Snow, it will not insist that appellees resupply it.
Post at 714-715. My reading of the record is that such an occurrence is not a mere "possibility." JUSTICE STEVENS cites federal regulations that provide that the Government will assist households that, for some reason or other, are unable to furnish a Social Security number. See post at 721-722. Moreover, the Government's brief in this Court reports that
we are advised by the Social Security Administration that the agency itself assigns [Social Security numbers] to persons who are required by federal law to have one, but decline to complete an application. If, for religious reasons, the individual requiring [a Social Security number] does not wish to receive a social security card, the agency will accommodate that request. Similarly, when an applicant refuses to sign an application for [a Social Security number] on religious grounds, [Social Security Administration personnel] may sign in lieu of the applicant.
Brief for Appellants 46, n.19 (emphasis added; citations omitted). Thus, the Government undoubtedly would be happy to "supply" the number for appellees -- i.e., fill the number in on their applications -- if this is what they wanted. But appellees do not desire any such assistance from the Government; instead they filed suit seeking a ruling excluding them from the operation of any portion of the statutory scheme involving Social Security numbers. They continue to press this claim in this Court. For the reasons advanced here, this claim ultimately lacks merit, but it certainly is not moot.
Also, in view of our analysis of the case, because all relevant facts are before the Court and further proceedings in the District Court could not produce information that would change the result, the case is ripe for decision.
8. Cf. Cantwell v. Connecticut, 310 U.S. 296, 305 (1940).
9. Cf. Follett v. Town of McCormick, 321 U.S. 573, 577-578 (1944); Murdock v. Pennsylvania, 319 U.S. 105, 112 (1943).
10. Cf. Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952).
11. Cf. NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979).
12. Cf. Prince v. Massachusetts, 321 U.S. 158 (1944); Cox v. New Hampshire, 312 U.S. 569, 574 (1941); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Reynolds v. United States, 98 U.S. 145, 167 (1879).
13. United States v. Lee, 455 U.S. 252, 259 (1982); Wisconsin v. Yoder, 406 U.S. 205 (1972); Gilette v. United States, 401 U.S. 437 (1971); West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943); Jacobson v. Massachusetts, 197 U.S. 11 (1905).
14. Concurring in McGowan v. Maryland, 366 U.S. 420, 521 (1961), Justice Frankfurter viewed it as important that the challenged statutes
do not make criminal, do not place under the onus of civil or criminal disability, any act which is itself prescribed by the duties of the Jewish or other religions.
In Braunfeld v. Brown, 366 U.S. 599, 605-606 (1961), the plurality opinion emphasized:
Fully recognizing that the alternatives open to appellants and others similarly situated . . . may result in some financial sacrifice in order to observe their religious beliefs; still the option is wholly different than when the legislation attempts to make a religious practice itself unlawful.
15. In Wisconsin v. Yoder, supra, at 218, we similarly relied on the fact that
[t]he impact of the compulsory attendance law on respondents' practice of the Amish religion is not only severe, but inescapable, for the Wisconsin law affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs.
16. JUSTICE O'CONNOR's partial dissent asserts that the Court's holding "has no basis in precedent," post at 727. To the contrary, it is the history advanced by the dissenting opinions that is revisionist. The dissent characterizes our prior cases as holding that the denial of a benefit is the same, for constitutional purposes, as the imposition of a criminal sanction. In Bob Jones University, however, the Court upheld the denial of tax benefits to a school that prohibited interracial dating, observing that the school remained wholly free to "observ[e] [its] religious tenets." 461 U.S. at 604. If denying governmental benefits is the same as imposing criminal sanctions, then the Free Exercise Clause could not prevent the Government from ordering Bob Jones University, under pain of criminal penalty, to violate its religious beliefs and permit interracial dating on its campus. But that difficult question is still an open one, since "the Constitution may compel toleration of private discrimination in some circumstances." Norwood v. Harrison, 413 U.S. 455, 463 (1973).
17. It is readily apparent that virtually every action that the Government takes, no matter how innocuous it might appear, is potentially susceptible to a Free Exercise objection. For example, someone might raise a religious objection, based on Norse mythology, to filing a tax return on a Wednesday (Woden's day). Accordingly, if the dissent's interpretation of the Free Exercise Clause is to be taken seriously, then the Government will be unable to enforce any generally applicable rule unless it can satisfy a federal court that it has a "compelling government interest." While libertarians and anarchists will no doubt applaud this result, it is hard to imagine that this is what the Framers intended.
18. The District Court's assessment appears to have turned in part on its belief that it was unlikely that Little Bird of the Snow or her parents would attempt fraudulently to obtain welfare benefits. Without in any way questioning the conclusion that appellees are law-abiding citizens, we believe that the District Court misperceived the nature of the Government's interest. The Government's interest is ensuring a fraud-resistent system in the event that a fraudulent application is made by appellees.
This misunderstanding of the Government's interest probably accounts for the District Court's conclusion that the Government's interest in preventing fraud "can be satisfied without requiring a social security number for Little Bird of the Snow." 590 F.Supp. at 607. In any event, this conclusionary statement is certainly at odds with the District Court's more specific statement quoted in text regarding the prospects for "one or perhaps a few individuals . . . fraudulently obtain[ing] welfare benefits." Indeed, the partial dissent appears to concede that its position might result in one or perhaps a few individuals fraudulently receiving benefits.
19. An exemption adopted by Congress to accommodate religious beliefs such as appellees' would not violate the First Amendment's Establishment Clause. See Sherbert v. Verner, 374 U.S. 398, 409-410 (1963).