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West Virginia State Board of Education v. Barnette

https://supreme.justia.com/cases/federal/us/319/624/

U.S. Supreme Court West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) West Virginia State Board of Education v. Barnette No. 591 Argued March 11, 1943 Decided June 14, 1943 319 U.S. 624 APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA Syllabus 1. State action against which the Fourteenth Amendment protects includes action by a state board of education. P. 319 U. S. 637 . 2. The action of a State in making it compulsory for children in the public schools to salute the flag and pledge allegiance -- by extending the right arm, palm upward, and declaring, "I pledge allegiance to the flag of the United States of America and to the Republic for which it stands; one Nation, indivisible, with liberty and justice for all" -- violates the First and Fourteenth Amendments. P. 319 U. S. 642 . So held as applied to children who were expelled for refusal to comply, and whose absence thereby became "unlawful," subjecting them and their parents or guardians to punishment. 3. That those who refused compliance did so on religious grounds does not control the decision of this question, and it is unnecessary to inquire into the sincerity of their views. P. 319 U. S. 634 . 4. Under the Federal Constitution, compulsion as here employed is not a permissible means of achieving "national unity." P. 319 U. S. 640 . Page 319 U. S. 625 5. Minersville School Dist. v. Gobitis, 310 U. S. 586 , overruled; Hamilton v. Regents, 293 U. S. 245 , distinguished. Pp. 319 U. S. 642 , 319 U. S. 632 . 47 F. Supp. 251 , affirmed. APPEAL from a decree of a District Court of three judges enjoining the enforcement of a regulation of the West Virginia State Board of Education requiring children in the public schools to salute the American flag. MR. JUSTICE JACKSON delivered the opinion of the Court. Following the decision by this Court on June 3, 1940, in Minersville School District v. Gobitis, 310 U. S. 586 , the West Virginia legislature amended its statutes to require all schools therein to conduct courses of instruction in history, civics, and in the Constitutions of the United States and of the State "for the purpose of teaching, fostering and perpetuating the ideals, principles and spirit of Americanism, and increasing the knowledge of the organization and machinery of the government." Appellant Page 319 U. S. 626 Board of Education was directed, with advice of the State Superintendent of Schools, to "prescribe the courses of study covering these subjects" for public schools. The Act made it the duty of private, parochial and denominational schools to prescribe courses of study "similar to those required for the public schools." [ Footnote 1 ] The Board of Education on January 9, 1942, adopted a resolution containing recitals taken largely from the Court's Gobitis opinion and ordering that the salute to the flag become "a regular part of the program of activities in the public schools," that all teachers and pupils "shall be required to participate in the salute honoring the Nation represented by the Flag; provided, however, that refusal to salute the Flag be regarded as an act of insubordination, and shall be dealt with accordingly. [ Footnote 2 ] " Page 319 U. S. 627 The resolution originally required the "commonly accepted salute to the Flag," which it defined. Objections to the salute as "being too much like Hitler's" were raised by the Parent and Teachers Association, the Boy and Girl Page 319 U. S. 628 Scouts, the Red Cross, and the Federation of Women's Clubs. [ Footnote 3 ] Some modification appears to have been made in deference to these objections, but no concession was made to Jehovah's Witnesses. [ Footnote 4 ] What is now required is the "stiff-arm" salute, the saluter to keep the right hand raised with palm turned up while the following is repeated: "I pledge allegiance to the Flag of the United States of Page 319 U. S. 629 America and to the Republic for which it stands; one Nation, indivisible, with liberty and justice for all." Failure to conform is "insubordination," dealt with by expulsion. Readmission is denied by statute until compliance. Meanwhile, the expelled child is "unlawfully absent," [ Footnote 5 ] and may be proceeded against as a delinquent. [ Footnote 6 ] His parents or guardians are liable to prosecution, [ Footnote 7 ] and, if convicted, are subject to fine not exceeding $50 and Jail term not exceeding thirty days. [ Footnote 8 ] Appellees, citizens of the United States and of West Virginia, brought suit in the United States District Court for themselves and others similarly situated asking its injunction to restrain enforcement of these laws and regulations against Jehovah's Witnesses. The Witnesses are an unincorporated body teaching that the obligation imposed by law of God is superior to that of laws enacted by temporal government. Their religious beliefs include a literal version of Exodus, Chapter 20, verses 4 and 5, which says: "Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not bow down thyself to them nor serve them." They consider that the flag is an "image" within this command. For this reason, they refuse to salute it. Page 319 U. S. 630 Children of this faith have been expelled from school and are threatened with exclusion for no other cause. Officials threaten to send them to reformatories maintained for criminally inclined juveniles. Parents of such children have been prosecuted, and are threatened with prosecutions for causing delinquency. The Board of Education moved to dismiss the complaint, setting forth these facts and alleging that the law and regulations are an unconstitutional denial of religious freedom, and of freedom of speech, and are invalid under the "due process" and "equal protection" clauses of the Fourteenth Amendment to the Federal Constitution. The cause was submitted on the pleadings to a District Court of three judges. It restrained enforcement as to the plaintiffs and those of that class. The Board of Education brought the case here by direct appeal. [ Footnote 9 ] This case calls upon us to reconsider a precedent decision, as the Court, throughout its history, often has been required to do. [ Footnote 10 ] Before turning to the Gobitis case, however, it is desirable to notice certain characteristics by which this controversy is distinguished. The freedom asserted by these appellees does not bring them into collision with rights asserted by any other individual. It is such conflicts which most frequently require intervention of the State to determine where the rights of one end and those of another begin. But the refusal of these persons to participate in the ceremony does not interfere with or deny rights of others to do so. Nor is there any question in this case that their behavior is peaceable and orderly. The sole conflict is between authority and rights of the individual. The State asserts power to condition access to public education on making a prescribed sign and profession and at the same time to coerce Page 319 U. S. 631 attendance by punishing both parent and child. The latter stand on a right of self-determination in matters that touch individual opinion and personal attitude. As the present CHIEF JUSTICE said in dissent in the Gobitis case, the State may "require teaching by instruction and study of all in our history and in the structure and organization of our government, including the guaranties of civil liberty, which tend to inspire patriotism and love of country." 310 U.S. at 310 U. S. 604 . Here, however, we are dealing with a compulsion of students to declare a belief. They are not merely made acquainted with the flag salute so that they may be informed as to what it is or even what it means. The issue here is whether this slow and easily neglected [ Footnote 11 ] route to aroused loyalties constitutionally may be short-cut by substituting a compulsory salute and slogan.. [ Footnote 12 ] This issue is not prejudiced by Page 319 U. S. 632 the Court's previous holding that, where a State, without compelling attendance, extends college facilities to pupils who voluntarily enroll, it may prescribe military training as part of the course without offense to the Constitution. It was held that those who take advantage of its opportunities may not, on ground of conscience, refuse compliance with such conditions. Hamilton v. Regents, 293 U. S. 245 . In the present case, attendance is not optional. That case is also to be distinguished from the present one, because, independently of college privileges or requirements, the State has power to raise militia and impose the duties of service therein upon its citizens. There is no doubt that, in connection with the pledges, the flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality is a short-cut from mind to mind. Causes and nations, political parties, lodges, and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design. The State announces rank, function, and authority through crowns and maces, uniforms and black robes; the church speaks through the Cross, the Crucifix, the altar and shrine, and clerical raiment. Symbols of State often convey political ideas, just as religious symbols come to convey theological ones. Associated with many of these symbols are appropriate gestures of acceptance or respect: a salute, a bowed or bared head, a bended knee. A person gets from a Page 319 U. S. 633 symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn. Over a decade ago, Chief Justice Hughes led this Court in holding that the display of a red flag as a symbol of opposition by peaceful and legal means to organized government was protected by the free speech guaranties of the Constitution. Stromberg v. California, 283 U. S. 359 . Here, it is the State that employs a flag as a symbol of adherence to government as presently organized. It requires the individual to communicate by word and sign his acceptance of the political ideas it thus bespeaks. Objection to this form of communication, when coerced, is an old one, well known to the framers of the Bill of Rights. [ Footnote 13 ] It is also to be noted that the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind. It is not clear whether the regulation contemplates that pupils forego any contrary convictions of their own and become unwilling converts to the prescribed ceremony, or whether it will be acceptable if they simulate assent by words without belief, and by a gesture barren of meaning. It is now a commonplace that censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish. It would seem that involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence. But here, the power of compulsion Page 319 U. S. 634 is invoked without any allegation that remaining passive during a flag salute ritual creates a clear and present danger that would justify an effort even to muffle expression. To sustain the compulsory flag salute, we are required to say that a Bill of Rights which guards the individual's right to speak his own mind left it open to public authorities to compel him to utter what is not in his mind. Whether the First Amendment to the Constitution will permit officials to order observance of ritual of this nature does not depend upon whether as a voluntary exercise we would think it to be good, bad or merely innocuous. Any credo of nationalism is likely to include what some disapprove or to omit what others think essential, and to give off different overtones as it takes on different accents or interpretations. [ Footnote 14 ] If official power exists to coerce acceptance of any patriotic creed, what it shall contain cannot be decided by courts, but must be largely discretionary with the ordaining authority, whose power to prescribe would no doubt include power to amend. Hence, validity of the asserted power to force an American citizen publicly to profess any statement of belief, or to engage in any ceremony of assent to one, presents questions of power that must be considered independently of any idea we may have as to the utility of the ceremony in question. Nor does the issue, as we see it, turn on one's possession of particular religious views or the sincerity with which they are held. While religion supplies appellees' motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views Page 319 U. S. 635 hold such a compulsory rite to infringe constitutional liberty of the individual. [ Footnote 15 ] It is not necessary to inquire whether nonconformist beliefs will exempt from the duty to salute unless we first find power to make the salute a legal duty. The Gobitis decision, however, assumed, as did the argument in that case and in this, that power exists in the State to impose the flag salute discipline upon school children in general. The Court only examined and rejected a claim based on religious beliefs of immunity from an unquestioned general rule. [ Footnote 16 ] The question which underlies the Page 319 U. S. 636 flag salute controversy is whether such a ceremony so touching matters of opinion and political attitude may be imposed upon the individual by official authority under powers committed to any political organization under our Constitution. We examine, rather than assume existence of, this power, and, against this broader definition of issues in this case, reexamine specific grounds assigned for the Gobitis decision. 1. It was said that the flag salute controversy confronted the Court with "the problem which Lincoln cast in memorable dilemma: 'Must a government of necessity be too strong for the liberties of its people, or too weak to maintain its own existence?', and that the answer must be in favor of strength. Minersville School District v. Gobitis, supra, at 310 U. S. 596 ." We think these issues may be examined free of pressure or restraint growing out of such considerations. It may be doubted whether Mr. Lincoln would have thought that the strength of government to maintain itself would be impressively vindicated by our confirming power of the State to expel a handful of children from school. Such oversimplification, so handy in political debate, often lacks the precision necessary to postulates of judicial reasoning. If validly applied to this problem, the utterance cited would resolve every issue of power in favor of those in authority, and would require us to override every liberty thought to weaken or delay execution of their policies. Government of limited power need not be anemic government. Assurance that rights are secure tends to diminish fear and jealousy of strong government, and, by making us feel safe to live under it, makes for its better support. Without promise of a limiting Bill of Rights, it is Page 319 U. S. 637 doubtful if our Constitution could have mustered enough strength to enable its ratification. To enforce those rights today is not to choose weak government over strong government. It is only to adhere as a means of strength to individual freedom of mind in preference to officially disciplined uniformity for which history indicates a disappointing and disastrous end. The subject now before us exemplifies this principle. Free public education, if faithful to the ideal of secular instruction and political neutrality, will not be partisan or enemy of any class, creed, party, or faction. If it is to impose any ideological discipline, however, each party or denomination must seek to control, or, failing that, to weaken, the influence of the educational system. Observance of the limitations of the Constitution will not weaken government in the field appropriate for its exercise. 2. It was also considered in the Gobitis case that functions of educational officers in States, counties and school districts were such that to interfere with their authority "would in effect make us the school board for the country." Id. at 310 U. S. 598 . The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures -- Boards of Education not excepted. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes. Such Boards are numerous, and their territorial jurisdiction often small. But small and local authority may feel less sense of responsibility to the Constitution, and agencies of publicity may be less vigilant in calling it to account. Page 319 U. S. 638 The action of Congress in making flag observance voluntary [ Footnote 17 ] and respecting the conscience of the objector in a matter so vital as raising the Army [ Footnote 18 ] contrasts sharply with these local regulations in matters relatively trivial to the welfare of the nation. There are village tyrants, as well as village Hampdens, but none who acts under color of law is beyond reach of the Constitution. 3. The Gobitis opinion reasoned that this is a field "where courts possess no marked, and certainly no controlling, competence," that it is committed to the legislatures, as well as the courts, to guard cherished liberties, and that it is constitutionally appropriate to "fight out the wise use of legislative authority in the forum of public opinion and before legislative assemblies, rather than to transfer such a contest to the judicial arena," since all the "effective means of inducing political changes are left free." Id. at 310 U. S. 597 -598, 310 U. S. 600 . The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. Page 319 U. S. 639 In weighing arguments of the parties, it is important to distinguish between the due process clause of the Fourteenth Amendment as an instrument for transmitting the principles of the First Amendment and those cases in which it is applied for its own sake. The test of legislation which collides with the Fourteenth Amendment, because it also collides with the principles of the First, is much more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process clause disappears when the specific prohibitions of the First become its standard. The right of a State to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a "rational basis" for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the State may lawfully protect. It is important to note that, while it is the Fourteenth Amendment which bears directly upon the State, it is the more specific limiting principles of the First Amendment that finally govern this case. Nor does our duty to apply the Bill of Rights to assertions of official authority depend upon our possession of marked competence in the field where the invasion of rights occurs. True, the task of translating the majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the problems of the twentieth century, is one to disturb self-confidence. These principles grew in soil which also produced a philosophy that the individual was the center of society, that his liberty was attainable through mere absence of governmental restraints, and that government should be entrusted with few controls, and only the mildest supervision Page 319 U. S. 640 over men's affairs. We must transplant these rights to a soil in which the laissez-faire concept or principle of noninterference has withered, at least as to economic affairs, and social advancements are increasingly sought through closer integration of society and through expanded and strengthened governmental controls. These changed conditions often deprive precedents of reliability, and cast us more than we would choose upon our own judgment. But we act in these matters not by authority of our competence, but by force of our commissions. We cannot, because of modest estimates of our competence in such specialties as public education, withhold the judgment that history authenticates as the function of this Court when liberty is infringed. 4. Lastly, and this is the very heart of the Gobitis opinion, it reasons that "National unity is the basis of national security," that the authorities have "the right to select appropriate means for its attainment," and hence reaches the conclusion that such compulsory measures toward "national unity" are constitutional. Id. at 310 U. S. 595 . Upon the verity of this assumption depends our answer in this case. National unity, as an end which officials may foster by persuasion and example, is not in question. The problem is whether, under our Constitution, compulsion as here employed is a permissible means for its achievement. Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good, as well as by evil, men. Nationalism is a relatively recent phenomenon, but, at other times and places, the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. Page 319 U. S. 641 As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority. The case is made difficult not because the principles of its decision are obscure, but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism Page 319 U. S. 642 and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us. [ Footnote 19 ] We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power, and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control. The decision of this Court in Minersville School District v. Gobitis, and the holdings of those few per curiam decisions which preceded and foreshadowed it, are overruled, and the judgment enjoining enforcement of the West Virginia Regulation is Affirmed. MR. JUSTICE ROBERTS and MR. JUSTICE REED adhere to the views expressed by the Court in Minersville School Page 319 U. S. 643 District v. Gobitis, 310 U. S. 586 , and are of the opinion that the judgment below should be reversed. [ Footnote 1 ] § 134, West Virginia Code (1941 Supp.): "In all public, private, parochial and denominational schools located within this state there shall be given regular courses of instruction in history of the United States, in civics, and in the constitutions of the United States and of the State of West Virginia, for the purpose of teaching, fostering and perpetuating the ideals, principles and spirit of Americanism, and increasing the knowledge of the organization and machinery of the government of the United States and of the state of West Virginia. The state board of education shall, with the advice of the state superintendent of schools, prescribe the courses of study covering these subjects for the public elementary and grammar schools, public high schools and state normal schools. It shall be the duty of the officials or boards having authority over the respective private, parochial and denominational schools to prescribe courses of study for the schools under their control and supervision similar to those required for the public schools." [ Footnote 2 ] The text is as follows: "WHEREAS, The West Virginia State Board of Education holds in highest regard those rights and privileges guaranteed by the Bill of Rights in the Constitution of the United States of America and in the Constitution of West Virginia, specifically, the first amendment to the Constitution of the United States as restated in the fourteenth amendment to the same document and in the guarantee of religious freedom in Article III of the Constitution of this State, and" "WHEREAS, The West Virginia State Board of Education honors the broad principle that one's convictions about the ultimate mystery of the universe and man's relation to it is placed beyond the reach of law; that the propagation of belief is protected, whether in church or chapel, mosque or synagogue, tabernacle or meeting house; that the Constitutions of the United States and of the State of West Virginia assure generous immunity to the individual from imposition of penalty for offending, in the course of his own religious activities, the religious views of others, be they a minority or those who are dominant in the government, but" "WHEREAS, The West Virginia State Board of Education recognizes that the manifold character of man's relations may bring his conception of religious duty into conflict with the secular interests of his fellow man; that conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to the general law not aimed at the promotion or restriction of the religious beliefs; that the mere possession of convictions which contradict the relevant concerns of political society does not relieve the citizen from the discharge of political responsibility, and" "WHEREAS, The West Virginia State Board of Education holds that national unity is the basis of national security; that the flag of our Nation is the symbol of our National Unity transcending all internal differences, however large, within the framework of the Constitution; that the Flag is the symbol of the Nation's power; that emblem of freedom in its truest, best sense; that it signifies government resting on the consent of the governed, liberty regulated by law, protection of the weak against the strong, security against the exercise of arbitrary power, and absolute safety for free institutions against foreign aggression, and" "WHEREAS, The West Virginia State Board of Education maintains that the public schools, established by the legislature of the State of West Virginia under the authority of the Constitution of the State of West Virginia and supported by taxes imposed by legally constituted measures, are dealing with the formative period in the development in citizenship that the Flag is an allowable portion of the program of schools thus publicly supported." "Therefore, be it RESOLVED, That the West Virginia Board of Education does hereby recognize and order that the commonly accepted salute to the Flag of the United States -- the right hand is placed upon the breast, and the following pledge repeated in unison: 'I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands; one Nation, indivisible, with liberty and justice for all' -- now becomes a regular part of the program of activities in the public schools, supported in whole or in part by public funds, and that all teachers as defined by law in West Virginia and pupils in such schools shall be required to participate in the salute, honoring the Nation represented by the Flag; provided, however, that refusal to salute the Flag be regarded as an act of insubordination, and shall be dealt with accordingly." [ Footnote 3 ] The National Headquarters of the United States Flag Association takes the position that the extension of the right arm in this salute to the flag is not the Nazi-Fascist salute, "although quite similar to it. In the Pledge to the Flag, the right arm is extended and raised, palm UPWARD, whereas the Nazis extend the arm practically straight to the front (the finger tips being about even with the eyes), palm DOWNWARD, and the Fascists do the same, except they raise the arm slightly higher." James A. Moss, The Flag of the United States: Its History and Symbolism (1914) 108. [ Footnote 4 ] They have offered, in lieu of participating in the flag salute ceremony "periodically and publicly," to give the following pledge: "I have pledged my unqualified allegiance and devotion to Jehovah, the Almighty God, and to His Kingdom, for which Jesus commands all Christians to pray." "I respect the flag of the United States, and acknowledge it as a symbol of freedom and justice to all." "I pledge allegiance and obedience to all the laws of the United States that are consistent with God's law, as set forth in the Bible." [ Footnote 5 ] § 1851(1), West Virginia Code (1941 Supp.): "If a child be dismissed, suspended, or expelled from school because of refusal of such child to meet the legal and lawful requirements of the school and the established regulations of the county and/or state board of education, further admission of the child to school shall be refused until such requirements and regulations be complied with. Any such child shall be treated as being unlawfully absent from school during the time he refuses to comply with such requirements and regulations, and any person having legal or actual control of such child shall be liable to prosecution under the provisions of this article for the absence of such child from school." [ Footnote 6 ] § 4904(4), West Virginia Code (1941 Supp.). [ Footnote 7 ] See Note 5 supra. [ Footnote 8 ] §§ 1847, 1851, West Virginia Code (1941 Supp.). [ Footnote 9 ] § 266 of the Judicial Code, 28 U.S.C. § 380. [ Footnote 10 ] See authorities cited in Helvering v. Griffiths, 318 U. S. 371 , 318 U. S. 401 , note 52. [ Footnote 11 ] See the nationwide survey of the study of American history conducted by the New York Times, the results of which are published in the issue of June 21, 1942, and are there summarized on p. 1, col. 1, as follows: "82 percent of the institutions of higher learning in the United States do not require the study of United States history for the undergraduate degree. Eighteen percent of the colleges and universities require such history courses before a degree is awarded. It was found that many students complete their four years in college without taking any history courses dealing with this country." "Seventy-two percent of the colleges and universities do not require United States history for admission, while 28 percent require it. As a result, the survey revealed, many students go through high school, college and then to the professional or graduate institution without having explored courses in the history of their country." "Less than 10 percent of the total undergraduate body was enrolled in United States history classes during the Spring semester just ended. Only 8 percent of the freshman class took courses in United States history, although 30 percent was enrolled in European or world history courses." [ Footnote 12 ] [ Footnote 13 ] Early Christians were frequently persecuted for their refusal to participate in ceremonies before the statue of the emperor or other symbol of imperial authority. The story of William Tell's sentence to shoot an apple off his son's head for refusal to salute a bailiff's hat is an ancient one. 21 Encyclopedia Britannica (14th ed.) 911-912. The Quakers, William Penn included, suffered punishment, rather than uncover their heads in deference to any civil authority. Braithwaite, The Beginnings of Quakerism (1912) 200, 229-230, 232-233, 447, 451; Fox, Quakers Courageous (1941) 113. [ Footnote 14 ] For example: use of "Republic," if rendered to distinguish our government from a "democracy," or the words "one Nation," if intended to distinguish it from a "federation," open up old and bitter controversies in our political history; "liberty and justice for all," if it must be accepted as descriptive of the present order, rather than an ideal, might to some seem an overstatement. [ Footnote 15 ] Cushman, Constitutional Law in 1939-1940, 35 American Political Science Review 250, 271, observes: "All of the eloquence by which the majority extol the ceremony of flag saluting as a free expression of patriotism turns sour when used to describe the brutal compulsion which requires a sensitive and conscientious child to stultify himself in public." For further criticism of the opinion in the Gobitis case by persons who do not share the faith of the Witnesses, see: Powell, Conscience and the Constitution, in Democracy and National Unity (University of Chicago Press, 1941) 1; Wilkinson, Some Aspects of the Constitutional Guarantees of Civil Liberty, 11 Fordham Law Review 50; Fennell, The "Reconstructed Court" and Religious Freedom: The Gobitis Case in Retrospect, 19 New York University Law Quarterly Review 31; Green, Liberty under the Fourteenth Amendment, 27 Washington University Law Quarterly 497; 9 International Juridical Association Bulletin 1; 39 Michigan Law Review 149; 15 St. John's Law Review 95. [ Footnote 16 ] The opinion says "That the flag salute is an allowable portion of a school program for those who do not invoke conscientious scruples is surely not debatable. But for us to insist that, though the ceremony may be required, exceptional immunity must be given to dissidents is to maintain that there is no basis for a legislative judgment that such an exemption might introduce elements of difficulty into the school discipline, might cast doubts in the minds of the other children which would themselves weaken the effect of the exercise." (Italics ours.) 310 U.S. at 310 U. S. 599 -600. And, elsewhere, the question under consideration was stated, "When does the constitutional guarantee compel exemption from doing what society thinks necessary for the promotion of some great common end, or from a penalty for conduct which appears dangerous to the general good?" (Italics ours.) Id. at 310 U. S. 593 . And again, ". . . whether school children, like the Gobitis children, must be excused from conduct required of all the other children in the promotion of national cohesion. . . ." (Italics our.) Id. at 310 U. S. 595 . [ Footnote 17 ] Section 7 of House Joint Resolution 359, approved December 22, 1942, 56 Stat. 1074, 36 U.S.C. (1942 Supp.) § 172, prescribes no penalties for nonconformity, but provides: "That the pledge of allegiance to the flag, 'I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one Nation indivisible, with liberty and justice for all,' be rendered by standing with the right hand over the heart. However, civilians will always show full respect to the flag when the pledge is given by merely standing at attention, men removing the headdress. . . ." [ Footnote 18 ] § 5(a) of the Selective Training and Service Act of 1940, 50 U.S.C. (App.) § 307(g). [ Footnote 19 ] The Nation may raise armies and compel citizens to give military service. Selective Draft Law Cases, 245 U. S. 366 . It follows, of course, that those subject to military discipline are under many duties, and may not claim many freedoms that we hold inviolable as to those in civilian life. MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS, concurring: We are substantially in agreement with the opinion just read, but, since we originally joined with the Court in the Gobitis case, it is appropriate that we make a brief statement of reasons for our change of view. Reluctance to make the Federal Constitution a rigid bar against state regulation of conduct thought inimical to the public welfare was the controlling influence which moved us to consent to the Gobitis decision. Long reflection convinced us that, although the principle is sound, its application in the particular case was wrong. Jones v. Opelika, 316 U. S. 584 , 316 U. S. 623 . We believe that the statute before us fails to accord full scope to the freedom of religion secured to the appellees by the First and Fourteenth Amendments. The statute requires the appellees to participate in a ceremony aimed at inculcating respect for the flag and for this country. The Jehovah's Witnesses, without any desire to show disrespect for either the flag or the country, interpret the Bible as commanding, at the risk of God's displeasure, that they not go through the form of a pledge of allegiance to any flag. The devoutness of their belief is evidenced by their willingness to suffer persecution and punishment, rather than make the pledge. No well ordered society can leave to the individuals an absolute right to make final decisions, unassailable by the State, as to everything they will or will not do. The First Amendment does not go so far. Religious faiths, honestly held, do not free individuals from responsibility to conduct themselves obediently to laws which are either imperatively necessary to protect society as a whole from grave Page 319 U. S. 644 and pressingly imminent dangers or which, without any general prohibition, merely regulate time, place or manner of religious activity. Decision as to the constitutionality of particular laws which strike at the substance of religious tenets and practices must be made by this Court. The duty is a solemn one, and, in meeting it, we cannot say that a failure, because of religious scruples, to assume a particular physical position and to repeat the words of a patriotic formula creates a grave danger to the nation. Such a statutory exaction is a form of test oath, and the test oath has always been abhorrent in the United States. Words uttered under coercion are proof of loyalty to nothing but self-interest. Love of country must spring from willing hearts and free minds, inspired by a fair administration of wise laws enacted by the people's elected representatives within the bounds of express constitutional prohibitions. These laws must, to be consistent with the First Amendment, permit the widest toleration of conflicting viewpoints consistent with a society of free men. Neither our domestic tranquillity in peace nor our martial effort in war depend on compelling little children to participate in a ceremony which ends in nothing for them but a fear of spiritual condemnation. If, as we think, their fears are groundless, time and reason are the proper antidotes for their errors. The ceremonial, when enforced against conscientious objectors, more likely to defeat than to serve its high purpose, is a handy implement for disguised religious persecution. As such, it is inconsistent with our Constitution's plan and purpose. MR. JUSTICE MURPHY, concurring: I agree with the opinion of the Court and join in it. The complaint challenges an order of the State Board of Education which requires teachers and pupils to participate in the prescribed salute to the flag. For refusal to conform with the requirement, the State law prescribes expulsion. Page 319 U. S. 645 The offender is required by law to be treated as unlawfully absent from school, and the parent or guardian is made liable to prosecution and punishment for such absence. Thus, not only is the privilege of public education conditioned on compliance with the requirement, but noncompliance is virtually made unlawful. In effect, compliance is compulsory, and not optional. It is the claim of appellees that the regulation is invalid as a restriction on religious freedom and freedom of speech, secured to them against State infringement by the First and Fourteenth Amendments to the Constitution of the United States. A reluctance to interfere with considered state action, the fact that the end sought is a desirable one, the emotion aroused by the flag as a symbol for which we have fought and are now fighting again -- all of these are understandable. But there is before us the right of freedom to believe, freedom to worship one's Maker according to the dictates of one's conscience, a right which the Constitution specifically shelters. Reflection has convinced me that, as a judge, I have no loftier duty or responsibility than to uphold that spiritual freedom to its farthest reaches. The right of freedom of thought and of religion, as guaranteed by the Constitution against State action, includes both the right to speak freely and the right to refrain from speaking at all, except insofar as essential operations of government may require it for the preservation of an orderly society -- as in the case of compulsion to give evidence in court. Without wishing to disparage the purposes and intentions of those who hope to inculcate sentiments of loyalty and patriotism by requiring a declaration of allegiance as a feature of public education, or unduly belittle the benefits that may accrue therefrom, I am impelled to conclude that such a requirement is not essential to the maintenance of effective government and orderly society. To many, it is deeply distasteful to join in a public chorus of affirmation of private belief. By some, including Page 319 U. S. 646 the members of this sect, it is apparently regarded as incompatible with a primary religious obligation, and therefore a restriction on religious freedom. Official compulsion to affirm what is contrary to one's religious beliefs is the antithesis of freedom of worship which, it is well to recall, was achieved in this country only after what Jefferson characterized as the "severest contests in which I have ever been engaged." I am unable to agree that the benefits that may accrue to society from the compulsory flag salute are sufficiently definite and tangible to justify the invasion of freedom and privacy that is entailed or to compensate for a restraint on the freedom of the individual to be vocal or silent according to his conscience or personal inclination. The trenchant words in the preamble to the Virginia Statute for Religious Freedom remain unanswerable: ". . . all attempts to influence [the mind] by temporal punishments, or burdens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, . . ." Any spark of love for country which may be generated in a child or his associates by forcing him to make what is to him an empty gesture and recite words wrung from him contrary to his religious beliefs is overshadowed by the desirability of preserving freedom of conscience to the full. It is in that freedom and the example of persuasion, not in force and compulsion, that the real unity of America lies. * See Jefferson, Autobiography, vol. 1, pp. 53-59. MR. JUSTICE FRANKFURTER, dissenting: One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution. Were my purely personal attitude relevant, I should wholeheartedly associate myself with the general libertarian views in the Court's opinion, representing, as they do, the thought and Page 319 U. S. 647 action of a lifetime. But, as judges, we are neither Jew nor Gentile, neither Catholic nor agnostic. We owe equal attachment to the Constitution, and are equally bound by our judicial obligations whether we derive our citizenship from the earliest or the latest immigrants to these shores. As a member of this Court, I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard. The duty of a judge who must decide which of two claims before the Court shall prevail, that of a State to enact and enforce laws within its general competence or that of an individual to refuse obedience because of the demands of his conscience, is not that of the ordinary person. It can never be emphasized too much that one's own opinion about the wisdom or evil of a law should be excluded altogether when one is doing one's duty on the bench. The only opinion of our own even looking in that direction that is material is our opinion whether legislators could, in reason, have enacted such a law. In the light of all the circumstances, including the history of this question in this Court, it would require more daring than I possess to deny that reasonable legislators could have taken the action which is before us for review. Most unwillingly, therefore, I must differ from my brethren with regard to legislation like this. I cannot bring my mind to believe that the "liberty" secured by the Due Process Clause gives this Court authority to deny to the State of West Virginia the attainment of that which we all recognize as a legitimate legislative end, namely, the promotion of good citizenship, by employment of the means here chosen. Not so long ago, we were admonished that "the only check upon our own exercise of power is our own sense of self-restraint. For the removal of unwise laws from the statute books, appeal lies not to the courts, but to the ballot and to the processes of democratic government. " Page 319 U. S. 648 United States v. Butler, 297 U. S. 1 , 297 U. S. 79 (dissent). We have been told that generalities do not decide concrete cases. But the intensity with which a general principle is held may determine a particular issue, and whether we put first things first may decide a specific controversy. The admonition that judicial self-restraint alone limits arbitrary exercise of our authority is relevant every time we are asked to nullify legislation. The Constitution does not give us greater veto power when dealing with one phase of "liberty" than with another, or when dealing with grade school regulations than with college regulations that offend conscience, as was the case in Hamilton v. Regents, 293 U. S. 245 . In neither situation is our function comparable to that of a legislature, or are we free to act as though we were a super-legislature. Judicial self-restraint is equally necessary whenever an exercise of political or legislative power is challenged. There is no warrant in the constitutional basis of this Court's authority for attributing different roles to it depending upon the nature of the challenge to the legislation. Our power does not vary according to the particular provision of the Bill of Rights which is invoked. The right not to have property taken without just compensation has, so far as the scope of judicial power is concerned, the same constitutional dignity as the right to be protected against unreasonable searches and seizures, and the latter has no less claim than freedom of the press or freedom of speech or religious freedom. In no instance is this Court the primary protector of the particular liberty that is invoked. This Court has recognized what hardly could be denied, that all the provisions of the first ten Amendments are "specific" prohibitions, United States v. Carolene Products Co., 304 U. S. 144 , 304 U. S. 152 , n. 4. But each specific Amendment, insofar as embraced within the Fourteenth Amendment, must be equally respected, and the function of this Page 319 U. S. 649 Court does not differ in passing on the constitutionality of legislation challenged under different Amendments. When Mr. Justice Holmes, speaking for this Court, wrote that "it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts," Missouri, K. & T. Ry. Co. v. May, 194 U. S. 267 , 194 U. S. 270 , he went to the very essence of our constitutional system and the democratic conception of our society. He did not mean that for only some phases of civil government this Court was not to supplant legislatures and sit in judgment upon the right or wrong of a challenged measure. He was stating the comprehensive judicial duty and role of this Court in our constitutional scheme whenever legislation is sought to be nullified on any ground, namely, that responsibility for legislation lies with legislatures, answerable as they are directly to the people, and this Court's only and very narrow function is to determine whether, within the broad grant of authority vested in legislatures, they have exercised a judgment for which reasonable justification can be offered. The framers of the federal Constitution might have chosen to assign an active share in the process of legislation to this Court. They had before them the well known example of New York's Council of Revision, which had been functioning since 1777. After stating that "laws inconsistent with the spirit of this constitution, or with the public good, may be hastily and unadvisedly passed," the state constitution made the judges of New York part of the legislative process by providing that "all bills which have passed the senate and assembly shall, before they become laws," be presented to a Council, of which the judges constituted a majority, "for their revisal and consideration." Art. III, New York Constitution of 1777. Judges exercised this legislative function in New York Page 319 U. S. 650 for nearly fifty years. See Art. I, § 12, New York Constitution of 1821. But the framers of the Constitution denied such legislative powers to the federal judiciary. They chose instead to insulate the judiciary from the legislative function. They did not grant to this Court supervision over legislation. The reason why, from the beginning, even the narrow judicial authority to nullify legislation has been viewed with a jealous eye is that it serves to prevent the full play of the democratic process. The fact that it may be an undemocratic aspect of our scheme of government does not call for its rejection or its disuse. But it is the best of reasons, as this Court has frequently recognized, for the greatest caution in its use. The precise scope of the question before us defines the limits of the constitutional power that is in issue. The State of West Virginia requires all pupils to share in the salute to the flag as part of school training in citizenship. The present action is one to enjoin the enforcement of this requirement by those in school attendance. We have not before us any attempt by the State to punish disobedient children or visit penal consequences on their parents. All that is in question is the right of the State to compel participation in this exercise by those who choose to attend the public schools. We are not reviewing merely the action of a local school board. The flag salute requirement in this case comes before us with the full authority of the State of West Virginia. We are, in fact, passing judgment on "the power of the State as a whole." Rippey v. Texas, 193 U. S. 504 , 193 U. S. 509 ; Skiriotes v. Florida, 313 U. S. 69 , 313 U. S. 79 . Practically, we are passing upon the political power of each of the forty-eight states. Moreover, since the First Amendment has been read into the Fourteenth, our problem is precisely the same as it would be if we had before us an Act of Congress for the District of Columbia. To suggest that we are here concerned Page 319 U. S. 651 with the heedless action of some village tyrants is to distort the augustness of the constitutional issue and the reach of the consequences of our decision. Under our constitutional system, the legislature is charged solely with civil concerns of society. If the avowed or intrinsic legislative purpose is either to promote or to discourage some religious community or creed, it is clearly within the constitutional restrictions imposed on legislatures, and cannot stand. But it by no means follows that legislative power is wanting whenever a general nondiscriminatory civil regulation, in fact, touches conscientious scruples or religious beliefs of an individual or a group. Regard for such scruples or beliefs undoubtedly presents one of the most reasonable claims for the exertion of legislative accommodation. It is, of course, beyond our power to rewrite the State's requirement by providing exemptions for those who do not wish to participate in the flag salute or by making some other accommodations to meet their scruples. That wisdom might suggest the making of such accommodations, and that school administration would not find it too difficult to make them, and yet maintain the ceremony for those not refusing to conform, is outside our province to suggest. Tact, respect, and generosity toward variant views will always commend themselves to those charged with the duties of legislation so as to achieve a maximum of good will and to require a minimum of unwilling submission to a general law. But the real question is, who is to make such accommodations, the courts or the legislature? This is no dry, technical matter. It cuts deep into one's conception of the democratic process -- it concerns no less the practical differences between the means for making these accommodations that are open to courts and to legislatures. A court can only strike down. It can only say "This or that law is void." It cannot modify or qualify, it cannot make exceptions to a general requirement. Page 319 U. S. 652 And it strikes down not merely for a day. At least the finding of unconstitutionality ought not to have ephemeral significance unless the Constitution is to be reduced to the fugitive importance of mere legislation. When we are dealing with the Constitution of the United States, and, more particularly, with the great safeguards of the Bill of Rights, we are dealing with principles of liberty and justice "so rooted in the traditions and conscience of our people as to be ranked as fundamental" -- something without which "a fair and enlightened system of justice would be impossible." Palko v. Connecticut, 302 U. S. 319 , 302 U. S. 325 ; Hurtado v. California, 110 U. S. 516 , 110 U. S. 530 , 110 U. S. 531 . If the function of this Court is to be essentially no different from that of a legislature, if the considerations governing constitutional construction are to be substantially those that underlie legislation, then indeed judges should not have life tenure, and they should be made directly responsible to the electorate. There have been many, but unsuccessful, proposals in the last sixty years to amend the Constitution to that end. See Sen.Doc. No. 91, 75th Cong., 1st Sess., pp. 248-251. Conscientious scruples, all would admit, cannot stand against every legislative compulsion to do positive acts in conflict with such scruples. We have been told that such compulsions override religious scruples only as to major concerns of the state. But the determination of what is major and what is minor itself raises questions of policy. For the way in which men equally guided by reason appraise importance goes to the very heart of policy. Judges should be very diffident in setting their judgment against that of a state in determining what is, and what is not, a major concern, what means are appropriate to proper ends, and what is the total social cost in striking the balance of imponderables. What one can say with assurance is that the history out of which grew constitutional provisions for religious equality Page 319 U. S. 653 and the writings of the great exponents of religious freedom -- Jefferson, Madison, John Adams, Benjamin Franklin -- are totally wanting in justification for a claim by dissidents of exceptional immunity from civic measures of general applicability, measures not, in fact, disguised assaults upon such dissident views. The great leaders of the American Revolution were determined to remove political support from every religious establishment. They put on an equality the different religious sects -- Episcopalians, Presbyterians, Catholics, Baptists, Methodists, Quakers, Huguenots -- which, as dissenters, had been under the heel of the various orthodoxies that prevailed in different colonies. So far as the state was concerned, there was to be neither orthodoxy nor heterodoxy. And so Jefferson and those who followed him wrote guaranties of religious freedom into our constitutions. Religious minorities, as well as religious majorities, were to be equal in the eyes of the political state. But Jefferson and the others also knew that minorities may disrupt society. It never would have occurred to them to write into the Constitution the subordination of the general civil authority of the state to sectarian scruples. The constitutional protection of religious freedom terminated disabilities, it did not create new privileges. It gave religious equality, not civil immunity. Its essence is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma. Religious loyalties may be exercised without hindrance from the state, not the state may not exercise that which, except by leave of religious loyalties, is within the domain of temporal power. Otherwise, each individual could set up his own censor against obedience to laws conscientiously deemed for the public good by those whose business it is to make laws. The prohibition against any religious establishment by the government placed denominations on an equal footing Page 319 U. S. 654 -- it assured freedom from support by the government to any mode of worship and the freedom of individuals to support any mode of worship. Any person may therefore believe or disbelieve what he pleases. He may practice what he will in his own house of worship or publicly within the limits of public order. But the lawmaking authority is not circumscribed by the variety of religious beliefs -- otherwise, the constitutional guaranty would be not a protection of the free exercise of religion, but a denial of the exercise of legislation. The essence of the religious freedom guaranteed by our Constitution is therefore this: no religion shall either receive the state's support or incur its hostility. Religion is outside the sphere of political government. This does not mean that all matters on which religious organizations or beliefs may pronounce are outside the sphere of government. Were this so, instead of the separation of church and state, there would be the subordination of the state on any matter deemed within the sovereignty of the religious conscience. Much that is the concern of temporal authority affects the spiritual interests of men. But it is not enough to strike down a nondiscriminatory law that it may hurt or offend some dissident view. It would be too easy to cite numerous prohibitions and injunctions to which laws run counter if the variant interpretations of the Bible were made the tests of obedience to law. The validity of secular laws cannot be measured by their conformity to religious doctrines. It is only in a theocratic state that ecclesiastical doctrines measure legal right or wrong. An act compelling profession of allegiance to a religion, no matter how subtly or tenuously promoted, is bad. But an act promoting good citizenship and national allegiance is within the domain of governmental authority, and is therefore to be judged by the same considerations of power and of constitutionality as those involved in the many Page 319 U. S. 655 claims of immunity from civil obedience because of religious scruples. That claims are pressed on behalf of sincere religious convictions does not, of itself, establish their constitutional validity. Nor does waving the banner of religious freedom relieve us from examining into the power we are asked to deny the states. Otherwise, the doctrine of separation of church and state, so cardinal in the history of this nation and for the liberty of our people, would mean not the disestablishment of a state church, but the establishment of all churches, and of all religious groups. The subjection of dissidents to the general requirement of saluting the flag, as a measure conducive to the training of children in good citizenship, is very far from being the first instance of exacting obedience to general laws that have offended deep religious scruples. Compulsory vaccination, see Jacobson v. Massachusetts, 197 U. S. 11 , food inspection regulations, see Shapiro v. Lyle, 30 F.2d 971 , the obligation to bear arms, see Hamilton v. Regents, 293 U. S. 245 , 293 U. S. 267 , testimonial duties, See Stansbury v. Marks, 2 Dall. 213, compulsory medical treatment, see People v. Vogelesang, 221 N.Y. 290, 116 N.E. 977 -- these are but illustrations of conduct that has often been compelled in the enforcement of legislation of general applicability even though the religious consciences of particular individuals rebelled at the exaction. Law is concerned with external behavior, and not with the inner life of man. It rests in large measure upon compulsion. Socrates lives in history partly because he gave his life for the conviction that duty of obedience to secular law does not presuppose consent to its enactment or belief in its virtue. The consent upon which free government rests is the consent that comes from sharing in the process of making and unmaking laws. The state is not shut out from a domain because the individual conscience may deny the state's claim. The individual conscience Page 319 U. S. 656 may profess what faith it chooses. It may affirm and promote that faith -- in the language of the Constitution, it may "exercise" it freely -- but it cannot thereby restrict community action through political organs in matters of community concern, so long as the action is not asserted in a discriminatory way, either openly or by stealth. One may have the right to practice one's religion and at the same time owe the duty of formal obedience to laws that run counter to one's belief. Compelling belief implies denial of opportunity to combat it and to assert dissident views. Such compulsion is one thing. Quite another matter is submission to conformity of action while denying its wisdom or virtue, and with ample opportunity for seeking its change or abrogation. In Hamilton v. Regents, 293 U. S. 245 , this Court unanimously held that one attending a state-maintained university cannot refuse attendance on courses that offend his religious scruples. That decision is not overruled today, but is distinguished on the ground that attendance at the institution for higher education was voluntary, and therefore a student could not refuse compliance with its conditions, and yet take advantage of its opportunities. But West Virginia does not compel the attendance at its public schools of the children here concerned. West Virginia does not so compel, for it cannot. This Court denied the right of a state to require its children to attend public schools. Pierce v. Society of Sisters, 268 U. S. 510 . As to its public schools, West Virginia imposes conditions which it deems necessary in the development of future citizens precisely as California deemed necessary the requirements that offended the student's conscience in the Hamilton case. The need for higher education and the duty of the state to provide it as part of a public educational system, are part of the democratic faith of most of our states. The right to secure such education in institutions not maintained by public funds is unquestioned. Page 319 U. S. 657 But the practical opportunities for obtaining what is becoming in increasing measure the conventional equipment of American youth may be no less burdensome than that which parents are increasingly called upon to bear in sending their children to parochial schools because the education provided by public schools, though supported by their taxes, does not satisfy their ethical and educational necessities. I find it impossible, so far as constitutional power is concerned, to differentiate what was sanctioned in the Hamilton case from what is nullified in this case. And, for me, it still remains to be explained why the grounds of Mr. Justice Cardozo's opinion in Hamilton v. Regents, supra, are not sufficient to sustain the flag salute requirement. Such a requirement, like the requirement in the Hamilton case, "is not an interference by the state with the free exercise of religion when the liberties of the constitution are read in the light of a century and a half of history during days of peace and war." 293 U.S. 245 , 293 U. S. 266 . The religious worshiper, "if his liberties were to be thus extended, might refuse to contribute taxes . . . in furtherance of any other end condemned by his conscience as irreligious or immoral. The right of private judgment has never yet been so exalted above the powers and the compulsion of the agencies of government." Id. at 293 U. S. 268 . Parents have the privilege of choosing which schools they wish their children to attend. And the question here is whether the state may make certain requirements that seem to it desirable or important for the proper education of those future citizens who go to schools maintained by the states, or whether the pupils in those schools may be relieved from those requirements if they run counter to the consciences of their parents. Not only have parents the right to send children to schools of their own choosing, but the state has no right to bring such schools "under a strict governmental control" or give "affirmative direction Page 319 U. S. 658 concerning the intimate and essential details of such schools, entrust their control to public officers, and deny both owners and patrons reasonable choice and discretion in respect of teachers, curriculum, and textbooks." Farrington v. Tokushige, 273 U. S. 284 , 273 U. S. 298 . Why should not the state likewise have constitutional power to make reasonable provisions for the proper instruction of children in schools maintained by it? When dealing with religious scruples, we are dealing with an almost numberless variety of doctrines and beliefs entertained with equal sincerity by the particular groups for which they satisfy man's needs in his relation to the mysteries of the universe. There are, in the United States, more than 250 distinctive established religious denominations. In the State of Pennsylvania, there are 120 of these, and, in West Virginia, as many as 65. But if religious scruples afford immunity from civic obedience to laws, they may be invoked by the religious beliefs of any individual even though he holds no membership in any sect or organized denomination. Certainly this Court cannot be called upon to determine what claims of conscience should be recognized, and what should be rejected as satisfying the "religion" which the Constitution protects. That would, indeed, resurrect the very discriminatory treatment of religion which the Constitution sought forever to forbid. And so, when confronted with the task of considering the claims of immunity from obedience to a law dealing with civil affairs because of religious scruples, we cannot conceive religion more narrowly than in the terms in which Judge Augustus N. Hand recently characterized it: "It is unnecessary to attempt a definition of religion; the content of the term is found in the history of the human race, and is incapable of compression into a few words. Religious belief arises from a sense of the inadequacy of reason Page 319 U. S. 659 as a means of relating the individual to his fellow men and to his universe. . . . [It] may justly be regarded as a response of the individual to an inward mentor, call it conscience or God, that is, for many persons at the present time, the equivalent of what has always been thought a religious impulse." United States v. Kauten, 133 F.2d 703, 708. Consider the controversial issue of compulsory Bible reading in public schools. The educational policies of the states are in great conflict over this, and the state courts are divided in their decisions on the issue whether the requirement of Bible reading offends constitutional provisions dealing with religious freedom. The requirement of Bible reading has been justified by various state courts as an appropriate means of inculcating ethical precepts and familiarizing pupils with the most lasting expression of great English literature. Is this Court to overthrow such variant state educational policies by denying states the right to entertain such convictions in regard to their school systems because of a belief that the King James version is, in fact, a sectarian text to which parents of the Catholic and Jewish faiths and of some Protestant persuasions may rightly object to having their children exposed? On the other hand, the religious consciences of some parents may rebel at the absence of any Bible reading in the schools. See Washington ex rel. Clithero v. Showalter, 284 U.S. 573. Or is this Court to enter the old controversy between science and religion by unduly defining the limits within which a state may experiment with its school curricula? The religious consciences of some parents may be offended by subjecting their children to the Biblical account of creation, while another state may offend parents by prohibiting a teaching of biology that contradicts such Biblical account. Compare Scopes v. State, 154 Tenn. 105, 289 S.W. 363. What of conscientious Page 319 U. S. 660 objections to what is devoutly felt by parents to be the poisoning of impressionable minds of children by chauvinistic teaching of history? This is very far from a fanciful suggestion, for, in the belief of many thoughtful people, nationalism is the seed-bed of war. There are other issues in the offing which admonish us of the difficulties and complexities that confront states in the duty of administering their local school systems. All citizens are taxed for the support of public schools, although this Court has denied the right of a state to compel all children to go to such schools, and has recognized the right of parents to send children to privately maintained schools. Parents who are dissatisfied with the public schools thus carry a double educational burden. Children who go to public school enjoy in many states derivative advantages, such as free textbooks, free lunch, and free transportation in going to and from school. What of the claims for equality of treatment of those parents who, because of religious scruples, cannot send their children to public schools? What of the claim that, if the right to send children to privately maintained schools is partly an exercise of religious conviction, to render effective this right, it should be accompanied by equality of treatment by the state in supplying free textbooks, free lunch, and free transportation to children who go to private schools? What of the claim that such grants are offensive to the cardinal constitutional doctrine of separation of church and state? These questions assume increasing importance in view of the steady growth of parochial schools, both in number and in population. I am not borrowing trouble by adumbrating these issues, nor am I parading horrible examples of the consequences of today's decision. I am aware that we must decide the case before us, and not some other case. But that does not mean that a case is dissociated from the past, and unrelated to the future. We must decide this Page 319 U. S. 661 case with due regard for what went before and no less regard for what may come after. Is it really a fair construction of such a fundamental concept as the right freely to exercise one's religion that a state cannot choose to require all children who attend public school to make the same gesture of allegiance to the symbol of our national life because it may offend the conscience of some children, but that it may compel all children to attend public school to listen to the King James version although it may offend the consciences of their parents? And what of the larger issue of claiming immunity from obedience to a general civil regulation that has a reasonable relation to a public purpose within the general competence of the state? See Pierce v. Society of Sisters, 268 U. S. 510 , 268 U. S. 535 . Another member of the sect now before us insisted that, in forbidding her two little girls, aged nine and twelve, to distribute pamphlets, Oregon infringed her and their freedom of religion in that the children were engaged in "preaching the gospel of God's Kingdom." A procedural technicality led to the dismissal of the case, but the problem remains. McSparran v. Portland, 318 U.S. 768. These questions are not lightly stirred. They touch the most delicate issues, and their solution challenges the best wisdom of political and religious statesmen. But it presents awful possibilities to try to encase the solution of these problems within the rigid prohibitions of unconstitutionality. We are told that a flag salute is a doubtful substitute for adequate understanding of our institutions. The states that require such a school exercise do not have to justify it as the only means for promoting good citizenship in children, but merely as one of diverse means for accomplishing a worthy end. We may deem it a foolish measure, but the point is that this Court is not the organ of government to resolve doubts as to whether it will fulfill its purpose. Only if there be no doubt that any reasonable Page 319 U. S. 662 mind could entertain can we deny to the states the right to resolve doubts their way, and not ours. That which to the majority may seem essential for the welfare of the state may offend the consciences of a minority. But, so long as no inroads are made upon the actual exercise of religion by the minority, to deny the political power of the majority to enact laws concerned with civil matters, simply because they may offend the consciences of a minority, really means that the conscience of a minority are more sacred and more enshrined in the Constitution than the consciences of a majority. We are told that symbolism is a dramatic but primitive way of communicating ideas. Symbolism is inescapable. Even the most sophisticated live by symbols. But it is not for this Court to make psychological judgments as to the effectiveness of a particular symbol in inculcating concededly indispensable feelings, particularly if the state happens to see fit to utilize the symbol that represents our heritage and our hopes. And surely only flippancy could be responsible for the suggestion that constitutional validity of a requirement to salute our flag implies equal validity of a requirement to salute a dictator. The significance of a symbol lies in what it represents. To reject the swastika does not imply rejection of the Cross. And so it bears repetition to say that it mocks reason and denies our whole history to find in the allowance of a requirement to salute our flag on fitting occasions the seeds of sanction for obeisance to a leader. To deny the power to employ educational symbols is to say that the state's educational system may not stimulate the imagination because this may lead to unwise stimulation. The right of West Virginia to utilize the flag salute as part of its educational process is denied because, so it is argued, it cannot be justified as a means of meeting a "clear and present danger" to national unity. In passing, it deserves to be noted that the four cases which unanimously Page 319 U. S. 663 sustained the power of states to utilize such an educational measure arose and were all decided before the present World War. But to measure the state's power to make such regulations as are here resisted by the imminence of national danger is wholly to misconceive the origin and purpose of the concept of "clear and present danger." To apply such a test is for the Court to assume, however unwittingly, a legislative responsibility that does not belong to it. To talk about "clear and present danger" as the touchstone of allowable educational policy by the states whenever school curricula may impinge upon the boundaries of individual conscience is to take a felicitous phrase out of the context of the particular situation where it arose and for which it was adapted. Mr. Justice Holmes used the phrase "clear and present danger" in a case involving mere speech as a means by which alone to accomplish sedition in time of war. By that phrase, he meant merely to indicate that, in view of the protection given to utterance by the First Amendment, in order that mere utterance may not be proscribed, "the words used are used in such circumstances, and are of such a nature, as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." Schenck v. United States, 249 U. S. 47 , 249 U. S. 52 . The "substantive evils" about which he was speaking were inducement of insubordination in the military and naval forces of the United States and obstruction of enlistment while the country was at war. He was not enunciating a formal rule that there can be no restriction upon speech, and, still less, no compulsion where conscience balks, unless imminent danger would thereby be wrought "to our institutions or our government." The flag salute exercise has no kinship whatever to the oath tests so odious in history. For the oath test was one of the instruments for suppressing heretical beliefs. Page 319 U. S. 664 Saluting the flag suppresses no belief, nor curbs it. Children and their parents may believe what they please, avow their belief and practice it. It is not even remotely suggested that the requirement for saluting the flag involves the slightest restriction against the fullest opportunity on the part both of the children and of their parents to disavow, as publicly as they choose to do so, the meaning that others attach to the gesture of salute. All channels of affirmative free expression are open to both children and parents. Had we before us any act of the state putting the slightest curbs upon such free expression, I should not lag behind any member of this Court in striking down such an invasion of the right to freedom of thought and freedom of speech protected by the Constitution. I am fortified in my view of this case by the history of the flag salute controversy in this Court. Five times has the precise question now before us been adjudicated. Four times the Court unanimously found that the requirement of such a school exercise was not beyond the powers of the states. Indeed, in the first three cases to come before the Court, the constitutional claim now sustained was deemed so clearly unmeritorious that this Court dismissed the appeals for want of a substantial federal question. Leoles v. Landers, 302 U.S. 656; Hearing v. State Board of Education, 303 U.S. 624; Gabrielli v. Knickerbocker, 306 U.S. 621. In the fourth case, the judgment of the district court upholding the state law was summarily affirmed on the authority of the earlier cases. Johnson v. Deerfield, 306 U.S. 621. The fifth case, Minersville District v. Gobitis, 310 U. S. 586 , was brought here because the decision of the Circuit Court of Appeals for the Third Circuit ran counter to our rulings. They were reaffirmed after full consideration, with one Justice dissenting. What may be even more significant than this uniform recognition of state authority is the fact that every Justice Page 319 U. S. 665 -- thirteen in all -- who has hitherto participated in judging this matter has at one or more times found no constitutional infirmity in what is now condemned. Only the two Justices sitting for the first time on this matter have not heretofore found this legislation inoffensive to the "liberty" guaranteed by the Constitution. And among the Justices who sustained this measure were outstanding judicial leaders in the zealous enforcement of constitutional safeguards of civil liberties -- men like Chief Justice Hughes, Mr. Justice Brandeis, and Mr. Justice Cardozo, to mention only those no longer on the Court. One's conception of the Constitution cannot be severed from one's conception of a judge's function in applying it. The Court has no reason for existence if it merely reflects the pressures of the day. Our system is built on the faith that men set apart for this special function, freed from the influences of immediacy and from the deflections of worldly ambition, will become able to take a view of longer range than the period of responsibility entrusted to Congress and legislatures. We are dealing with matters as to which legislators and voters have conflicting views. Are we as judges to impose our strong convictions on where wisdom lies? That which three years ago had seemed to five successive Courts to lie within permissible areas of legislation is now outlawed by the deciding shift of opinion of two Justices. What reason is there to believe that they or their successors may not have another view a few years hence? Is that which was deemed to be of so fundamental a nature as to be written into the Constitution to endure for all times to be the sport of shifting winds of doctrine? Of course, judicial opinions, even as to questions of constitutionality, are not immutable. As has been true in the past, the Court will from time to time reverse its position. But I believe that never before these Jehovah's Witnesses Page 319 U. S. 666 cases (except for minor deviations subsequently retraced) has this Court overruled decisions so as to restrict the powers of democratic government. Always heretofore it has withdrawn narrow views of legislative authority so as to authorize what formerly it had denied. In view of this history, it must be plain that what thirteen Justices found to be within the constitutional authority of a state, legislators cannot be deemed unreasonable in enacting. Therefore, in denying to the states what heretofore has received such impressive judicial sanction, some other tests of unconstitutionality must surely be guiding the Court than the absence of a rational justification for the legislation. But I know of no other test which this Court is authorized to apply in nullifying legislation. In the past, this Court has from time to time set its views of policy against that embodied in legislation by finding laws in conflict with what was called the "spirit of the Constitution." Such undefined destructive power was not conferred on this Court by the Constitution. Before a duly enacted law can be judicially nullified, it must be forbidden by some explicit restriction upon political authority in the Constitution. Equally inadmissible is the claim to strike down legislation because, to us as individuals, it seems opposed to the "plan and purpose" of the Constitution. That is too tempting a basis for finding in one's personal views the purposes of the Founders. The uncontrollable power wielded by this Court brings it very close to the most sensitive areas of public affairs. As appeal from legislation to adjudication becomes more frequent, and its consequences more far-reaching, judicial self-restraint becomes more, and not less, important, lest we unwarrantably enter social and political domains wholly outside our concern. I think I appreciate fully the objections to the law before us. But to deny that it presents a question upon which men might reasonably Page 319 U. S. 667 differ appears to me to be intolerance. And since men may so reasonably differ, I deem it beyond my constitutional power to assert my view of the wisdom of this law against the view of the State of West Virginia. Jefferson's opposition to judicial review has not been accepted by history, but it still serves as an admonition against confusion between judicial and political functions. As a rule of judicial self-restraint, it is still as valid as Lincoln's admonition. For those who pass laws not only are under duty to pass laws. They are also under duty to observe the Constitution. And even though legislation relates to civil liberties, our duty of deference to those who have the responsibility for making the laws is no less relevant or less exacting. And this is so especially when we consider the accidental contingencies by which one man may determine constitutionality and thereby confine the political power of the Congress of the United States and the legislatures of forty-eight states. The attitude of judicial humility which these considerations enjoin is not an abdication of the judicial function. It is a due observance of its limits. Moreover, it is to be borne in mind that, in a question like this, we are not passing on the proper distribution of political power as between the states and the central government. We are not discharging the basic function of this Court as the mediator of powers within the federal system. To strike down a law like this is to deny a power to all government. The whole Court is conscious that this case reaches ultimate questions of judicial power and its relation to our scheme of government. It is appropriate, therefore, to recall an utterance as wise as any that I know in analyzing what is really involved when the theory of this Court's function is put to the test of practice. The analysis is that of James Bradley Thayer: ". . . there has developed a vast and growing increase of judicial interference with legislation. This is a very different Page 319 U. S. 668 state of things from what our fathers contemplated, a century and more ago, in framing the new system. Seldom, indeed, as they imagined, under our system, would this great, novel, tremendous power of the courts be exerted -- would this sacred ark of the covenant be taken from within the veil. Marshall himself expressed truly one aspect of the matter, when he said in one of the later years of his life:" "No questions can be brought before a judicial tribunal of greater delicacy than those which involve the constitutionality of legislative acts. If they become indispensably necessary to the case, the court must meet and decide them; but if the case may be determined on other grounds, a just respect for the legislature requires that the obligation of its laws should not be unnecessarily and wantonly assailed." "And again, a little earlier than this, he laid down the one true rule of duty for the courts. When he went to Philadelphia at the end of September, in 1831, on that painful errand of which I have spoken, in answering a cordial tribute from the bar of that city, he remarked that, if he might be permitted to claim for himself and his associates any part of the kind things they had said, it would be this, that they had 'never sought to enlarge the judicial power beyond its proper bounds, nor feared to carry it to the fullest extent that duty required.'" "That is the safe two-fold rule; nor is the first part of it any whit less important than the second; nay, more; today, it is the part which most requires to be emphasized. For just here comes in a consideration of very great weight. Great and, indeed, inestimable as are the advantages in a popular government of this conservative influence -- the power of the judiciary to disregard unconstitutional legislation -- it should be remembered that the exercise of it, even when unavoidable, is always attended with a serious evil, namely that the correction of legislative mistakes comes from the outside, and the people thus lose the political experience, and the moral education and stimulus that come from fighting the question out in the ordinary way, and correcting their own errors. If the decision in Munn v. Illinois and the ' Granger Cases, ' twenty-five years ago, and in the ' Legal Tender Cases ' nearly thirty years Page 319 U. S. 669 ago, had been different, and the legislation there in question, thought by many to be unconstitutional and by many more to be ill-advised, had been set aside, we should have been saved some trouble and some harm. But I venture to think that the good which came to the country and its people from the vigorous thinking that had to be done in the political debates that followed, from the infiltration through every part of the population of sound ideas and sentiments, from the rousing into activity of opposite elements, the enlargement of ideas, the strengthening of moral fibre, and the growth of political experience that came out of it all -- that all this far more than outweighed any evil which ever flowed from the refusal of the court to interfere with the work of the legislature." "The tendency of a common and easy resort to this great function, now lamentably too common, is to dwarf the political capacity of the people and to deaden its sense of moral responsibility. It is no light thing to do that." "What can be done? It is the courts that can do most to cure the evil, and the opportunity is a very great one. Let them resolutely adhere to first principles. Let them consider how narrow is the function which the constitutions have conferred on them -- the office merely of deciding litigated cases; how large, therefore, is the duty intrusted to others, and above all to the legislature. It is that body which is charged, primarily, with the duty of judging of the constitutionality of its work. The constitutions generally give them no authority to call upon a court for advice; they must decide for themselves, and the courts may never be able to say a word. Such a body, charged, in every State, with almost all the legislative power of the people, is entitled to the most entire and real respect; is entitled, as among all rationally permissible opinions as to what the constitution allows, to its own choice. Courts, as has often been said, are not to think of the legislators, but of the legislature -- the great, continuous body itself, abstracted from all the transitory individuals who may happen to hold its power. It is this majestic representative of the people whose action is in question, a coordinate department of the government, Page 319 U. S. 670 charged with the greatest functions, and invested, in contemplation of law, with whatsoever wisdom, virtue, and knowledge the exercise of such functions requires." "To set aside the acts of such a body, representing in its own field, which is the very highest of all, the ultimate sovereign, should be a solemn, unusual, and painful act. Something is wrong when it can ever be other than that. And if it be true that the holders of legislative power are careless or evil, yet the constitutional duty of the court remains untouched; it cannot rightly attempt to protect the people by undertaking a function not its own. On the other hand, by adhering rigidly to its own duty, the court will help, as nothing else can, to fix the spot where responsibility lies, and to bring down on that precise locality the thunderbolt of popular condemnation. The judiciary, today, in dealing with the acts of their coordinate legislators, owe to the country no greater or clearer duty than that of keeping their hands off these acts wherever it is possible to do it. For that course -- the true course of judicial duty always -- will powerfully help to bring the people and their representatives to a sense of their own responsibility. There will still remain to the judiciary an ample field for the determinations of this remarkable jurisdiction, of which our American law has so much reason to be proud; a jurisdiction which has had some of its chief illustrations and its greatest triumphs, as in Marshall's time, so in ours, while the courts were refusing to exercise it." J. B. Thayer, John Marshall, (1901) 104-110. Of course, patriotism cannot be enforced by the flag salute. But neither can the liberal spirit be enforced by judicial invalidation of illiberal legislation. Our constant preoccupation with the constitutionality of legislation, rather than with its wisdom, tends to preoccupation of the American mind with a false value. The tendency of focussing attention on constitutionality is to make constitutionality synonymous with wisdom, to regard a law as all right if it is constitutional. Such an attitude is a great enemy of liberalism. Particularly in legislation affecting freedom of thought and freedom of speech, much which should offend a free-spirited society is constitutional. Reliance Page 319 U. S. 671 for the most precious interests of civilization, therefore, must be found outside of their vindication in courts of law. Only a persistent positive translation of the faith of a free society into the convictions and habits and action of a community is the ultimate reliance against unabated temptations to fetter the human spirit.

In West Virginia State Board of Education v. Barnette, the Supreme Court ruled that compelling children in public schools to salute the flag and pledge allegiance violated their rights under the First and Fourteenth Amendments. This decision overruled the previous Minersville School District v. Gobitis case and emphasized the importance of protecting individual liberties, even if it goes against popular opinion or the actions of elected officials. The Court asserted that patriotism cannot be enforced and that judicial invalidation of illiberal legislation is crucial to safeguarding freedom of thought and speech.

Religion

Zorach v. Clauson

https://supreme.justia.com/cases/federal/us/343/306/

U.S. Supreme Court Zorach v. Clauson, 343 U.S. 306 (1952) Zorach v. Clauson No. 431 Argued January 31 February 1, 1952 Decided April 28, 1952 343 U.S. 306 APPEAL FROM THE COURT OF APPEALS OF NEW YORK Syllabus Under § 3210 of the New York Education Law and the regulations thereunder, New York City permits its public schools to release students during school hours, on written requests of their parents, so that they may leave the school buildings and grounds and go to religious centers for religious instruction or devotional exercises. The same section makes school attendance compulsory; students not released stay in the classrooms, and the churches report to the schools the names of children released from public schools who fail to report for religious instruction. The program involves neither religious instruction in public schools nor the expenditure of public funds. Held: This program does not violate the First Amendment, made applicable to the States by the Fourteenth Amendment. McCollum v. Board of Education, 333 U. S. 203 , distinguished. Pp. 343 U. S. 308 -315. (a) By this system, New York has neither prohibited the "free exercise" of religion nor made a law "respecting an establishment of religion" within the meaning of the First Amendment. Pp. 343 U. S. 310 -315. (b) There is no evidence in the record in this case to support a conclusion that the system involves the use of coercion to get public school students into religious classrooms. Pp. 343 U. S. 311 -312. 303 N.Y. 161 , 100 N.E.2d 463, affirmed. The New York Court of Appeals sustained N.Y. Education Law § 3210 and the regulations thereunder permitting absence of students from the public schools for religious observance and education, against the claim that the program thereunder violated the Federal Constitution. 303 N.Y. 161 , 100 N.E.2d 463. On appeal to this Court, affirmed, p. 343 U. S. 315 . Page 343 U. S. 308 MR. JUSTICE DOUGLAS delivered the opinion of the Court. New York City has a program which permits its public schools to release students during the school day so that they may leave the school buildings and school grounds and go to religious centers for religious instruction or devotional exercises. A student is released on written request of his parents. Those not released stay in the classrooms. The churches make weekly reports to the schools, sending a list of children who have been released from public school but who have not reported for religious instruction. [ Footnote 1 ] This "released time" program involves neither religious instruction in public school classrooms nor the expenditure Page 343 U. S. 309 of public funds. All costs, including the application blanks, are paid by the religious organizations. The case is therefore unlike McCollum v. Board of Education, 333 U. S. 203 , which involved a "released time" program from Illinois. In that case, the classrooms were turned over to religious instructors. We accordingly held that the program violated the First Amendment [ Footnote 2 ] which (by reason of the Fourteenth Amendment) [ Footnote 3 ] prohibits the states from establishing religion or prohibiting its free exercise. Appellants, who are taxpayers and residents of New York City and whose children attend its public schools, [ Footnote 4 ] challenge the present law, contending it is, in essence, not different from the one involved in the McCollum case. Their argument, stated elaborately in various ways, reduces itself to this: the weight and influence of the school is put behind a program for religious instruction; public school teachers police it, keeping tab on students who are released; the classroom activities come to a halt while the students who are released for religious instruction are on leave; the school is a crutch on which the churches are leaning for support in their religious training; without the cooperation of the schools, this "released time" program, Page 343 U. S. 310 like the one in the McCollum case, would be futile and ineffective. The New York Court of Appeals sustained the law against this claim of unconstitutionality. 303 N.Y. 161 , 100 N.E.2d 463. The case is here on appeal. 28 U.S.C. § 1257(2). The briefs and arguments are replete with data bearing on the merits of this type of "released time" program. Views pro and con are expressed, based on practical experience with these programs and with their implications. [ Footnote 5 ] We do not stop to summarize these materials, nor to burden the opinion with an analysis of them. For they involve considerations not germane to the narrow constitutional issue presented. They largely concern the wisdom of the system, its efficiency from an educational point of view, and the political considerations which have motivated its adoption or rejection in some communities. Those matters are of no concern here, since our problem reduces itself to whether New York, by this system, has either prohibited the "free exercise" of religion or has made a law "respecting an establishment of religion" within the meaning of the First Amendment. Page 343 U. S. 311 It takes obtuse reasoning to inject any issue of the "free exercise" of religion into the present case. No one is forced to go to the religious classroom, and no religious exercise or instruction is brought to the classrooms of the public schools. A student need not take religious instruction. He is left to his own desires as to the manner or time of his religious devotions, if any. There is a suggestion that the system involves the use of coercion to get public school students into religious classrooms. There is no evidence in the record before us that supports that conclusion. [ Footnote 6 ] The present record indeed tells us that the school authorities are neutral in this regard, and do no more than release students whose parents so request. If, in fact, coercion were used, if it were established that any one or more teachers were using their office to persuade or force students to take the religious instruction, a wholly different case would be presented. [ Footnote 7 ] Hence, we put aside that claim of coercion Page 343 U. S. 312 both as respects the "free exercise" of religion and "an establishment of religion" within the meaning of the First Amendment. Moreover, apart from that claim of coercion, we do not see how New York by this type of "released time" program has made a law respecting an establishment of religion within the meaning of the First Amendment. There is much talk of the separation of Church and State in the history of the Bill of Rights and in the decisions clustering around the First Amendment. See Everson v. Board of Education, 330 U. S. 1 ; McCollum v. Board of Education, supra. There cannot be the slightest doubt that the First Amendment reflects the philosophy that Church and State should be separated. And so far as interference with the "free exercise" of religion and an "establishment" of religion are concerned, the separation must be complete and unequivocal. The First Amendment within the scope of its coverage permits no exception; the prohibition is absolute. The First Amendment, however, does not say that, in every and all respects there shall be a separation of Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be no concert or union or dependency one on the other. That is the common sense of the matter. Otherwise the state and religion would be aliens to each other -- hostile, suspicious, and even unfriendly. Churches could not be required to pay even property taxes. Municipalities would not be permitted to render police or fire protection to religious groups. Policemen who helped parishioners into their places of worship would violate the Constitution. Prayers in our legislative halls; the appeals Page 343 U. S. 313 to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; "so help me God" in our courtroom oaths -- these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First Amendment. A fastidious atheist or agnostic could even object to the supplication with which the Court opens each session: "God save the United States and this Honorable Court." We would have to press the concept of separation of Church and State to these extremes to condemn the present law on constitutional grounds. The nullification of this law would have wide and profound effects. A Catholic student applies to his teacher for permission to leave the school during hours on a Holy Day of Obligation to attend a mass. A Jewish student asks his teacher for permission to be excused for Yom Kippur. A Protestant wants the afternoon off for a family baptismal ceremony. In each case, the teacher requires parental consent in writing. In each case, the teacher, in order to make sure the student is not a truant, goes further and requires a report from the priest, the rabbi, or the minister. The teacher, in other words, cooperates in a religious program to the extent of making it possible for her students to participate in it. Whether she does it occasionally for a few students, regularly for one, or pursuant to a systematized program designed to further the religious needs of all the students does not alter the character of the act. We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. When the state Page 343 U. S. 314 encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe. Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person. But we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence. The government must be neutral when it comes to competition between sects. It may not thrust any sect on any person. It may not make a religious observance compulsory. It may not coerce anyone to attend church, to observe a religious holiday, or to take religious instruction. But it can close its doors or suspend its operations as to those who want to repair to their religious sanctuary for worship or instruction. No more than that is undertaken here. This program may be unwise and improvident from an educational or a community viewpoint. That appeal is made to us on a theory, previously advanced, that each case must be decided on the basis of "our own prepossessions." See McCollum v. Board of Education, supra, p. 333 U. S. 238 . Our individual preferences, however, are not the constitutional standard. The constitutional standard is the separation of Church and State. The problem, like many problems in constitutional law, is one of degree. See McCollum v. Board of Education, supra, p. 333 U. S. 231 . Page 343 U. S. 315 In the McCollum case, the classrooms were used for religious instruction and the force of the public school was used to promote that instruction. Here, as we have said, the public schools do no more than accommodate their schedules to a program of outside religious instruction. We follow the McCollum case. [ Footnote 8 ] But we cannot expand it to cover the present released time program unless separation of Church and State means that public institutions can make no adjustments of their schedules to accommodate the religious needs of the people. We cannot read into the Bill of Rights such a philosophy of hostility to religion. Affirmed. [ Footnote 1 ] The New York City released time program is embodied in the following provisions: (a) N.Y. Education Law, § 3210, subdiv. 1(b), which provides that "Absence for religious observance and education shall be permitted under rules that the commissioner shall establish." (b) Regulations of the Commissioner of Education of the State of New York, Art. 17, § 154 (1 N.Y. Official Code Comp. 683), which provide for absence during school hours for religious observance and education outside the school grounds [par. 1], where conducted by or under the control of a duly constituted religious body [par. 2]. Students must obtain written requests from their parents or guardians to be excused for such training [par. 1], and must register for the training and have a copy of their registration filed with the public school authorities [par. 3]. Weekly reports of their attendance at such religious schools must be filed with their principal or teacher [par. 4]. Only one hour a week is to be allowed for such training, at the end of a class session [par. 5], and where more than one religious school is conducted, the hour of release shall be the same for all religious schools [par. 6]. (c) Regulations of the Board of Education of the City of New York, which provide similar rules supplementing the State Commissioner's regulations, with the following significant amplifications: no announcement of any kind will be made in the public schools relative to the program [rule 1]. The religious organizations and parents will assume full responsibility for attendance at the religious schools and will explain any failures to attend on the weekly attendance reports [rule 3]. Students who are released will be dismissed from school in the usual way [rule 5]. There shall be no comment by any principal or teacher on attendance or nonattendance of any pupil upon religious instruction [rule 6]. [ Footnote 2 ] The First Amendment reads in relevant part, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." [ Footnote 3 ] See Stromberg v. California, 283 U. S. 359 ; Cantwell v. Connecticut, 310 U. S. 296 ; Murdock v. Pennsylvania, 319 U. S. 105 . [ Footnote 4 ] No problem of this Court's jurisdiction is posed in this case, since, unlike the appellants in Doremus v. Board of Education, 342 U. S. 429 , appellants here are parents of children currently attending schools subject to the released time program. [ Footnote 5 ] See, e.g., Beckes, Weekday Religious Education (National Conference of Christians and Jews, Human Relations Pamphlet No. 6); Butts, American Tradition in Religion and Education, pp 188, 199; Moehlman, The Wall of Separation between Church and State, pp. 123, 155 ff.; Moehlman, The Church as Educator, pp. 103 ff.; Moral and Spiritual Values in the Public Schools (Educational Policies Commission, 1951); Newman, The Sectarian Invasion of Our Public Schools; Public School Time for Religious Education, 12 Jewish Education 130 (January, 1941); Religious Instruction On School Time, 7 Frontiers of Democracy 72 (1940); Released Time for Religious Education in New York City's Schools (Public Education Association, June 30, 1943); Released Time for Religious Education in New York City's Schools (Public Education Association, June 30, 1945); Released Time for Religious Education in New York City Schools (Public Education Association, 1949); 2 Stokes, Church and State in the United States, pp. 523-548; The Status Of Religious Education In The Public Schools (National Education Association). [ Footnote 6 ] Nor is there any indication that the public schools enforce attendance at religious schools by punishing absentees from the released time programs for truancy. [ Footnote 7 ] Appellants contend that they should have been allowed to prove that the system is, in fact, administered in a coercive manner. The New York Court of Appeals declined to grant a trial on this issue, noting, inter alia, that appellants had not properly raised their claim in the manner required by state practice. 303 N.Y. 161 , 174, 100 N.E.2d 463, 469. This independent state ground for decision precludes appellants from raising the issue of maladministration in this proceeding. See Louisville & Nashville R. Co. v. Woodford, 234 U. S. 46 , 234 U. S. 51 ; Atlantic Coast Line R. Co. v. Mims, 242 U. S. 532 , 242 U. S. 535 ; American Surety Co. v. Baldwin, 287 U. S. 156 , 287 U. S. 169 . The only allegation in the complaint that bears on the issue is that the operation of the program "has resulted and inevitably results in the exercise of pressure and coercion upon parents and children to secure attendance by the children for religious instruction." But this charge does not even implicate the school authorities. The New York Court of Appeals was therefore generous in labeling it a "conclusory" allegation. 303 N.Y. at 174, 100 N.E.2d at 469. Since the allegation did not implicate the school authorities in the use of coercion, there is no basis for holding that the New York Court of Appeals under the guise of local practice defeated a federal right in the manner condemned by Brown v. Western R. of Alabama, 338 U. S. 294 , and related cases. [ Footnote 8 ] Three of us -- THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS and MR. JUSTICE BURTON -- who join this opinion agreed that the "released time" program involved in the McCollum case was unconstitutional. It was our view at the time that the present type of "released time" program was not prejudged by the McCollum case, a conclusion emphasized by the reservation of the question in the separate opinion by MR. JUSTICE FRANKFURTER in which MR. JUSTICE BURTON joined. See 333 U.S. at 333 U. S. 225 , where it was said, "Of course, 'released time,' as a generalized conception, undefined by differentiating particularities, is not an issue for Constitutional adjudication. Local programs differ from each other in many and crucial respects. . . . It is only when challenge is made to the share that the public schools have in the execution of a particular 'released time' program that close judicial scrutiny is demanded of the exact relation between the religious instruction and the public educational system in the specific situation before the Court." MR. JUSTICE BLACK, dissenting. Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203 , held invalid as an "establishment of religion" an Illinois system under which school children, compelled by law to go to public schools, were freed from some hours of required school work on condition that they attend special religious classes held in the school buildings. Although the classes were taught by sectarian Page 343 U. S. 316 teachers neither employed nor paid by the state, the state did use its power to further the program by releasing some of the children from regular class work, insisting that those released attend the religious classes, and requiring that those who remained behind do some kind of academic work while the others received their religious training. We said this about the Illinois system: "Pupils compelled by law to go to school for secular education are released in part from their legal duty upon the condition that they attend the religious classes. This is beyond all question a utilization of the tax established and tax supported public school system to aid religious groups to spread their faith. And it falls squarely under the ban of the First Amendment. . . ." McCollum v. Board of Education, supra, at pp. 333 U. S. 209 -210. I see no significant difference between the invalid Illinois system and that of New York here sustained. Except for the use of the school buildings in Illinois, there is no difference between the systems which I consider even worthy of mention. In the New York program, as in that of Illinois, the school authorities release some of the children on the condition that they attend the religious classes, get reports on whether they attend, and hold the other children in the school building until the religious hour is over. As we attempted to make categorically clear, the McCollum decision would have been the same if the religious classes had not been held in the school buildings. We said: "Here not only are the State's tax supported public school buildings used for the dissemination of religious doctrines. The State also affords sectarian groups an invaluable aid in that it helps to provide pupils for their religious classes through use of the State's compulsory public school machinery. This is Page 343 U. S. 317 not separation of Church and State." (Emphasis supplied.) McCollum v. Board of Education, supra, at p. 333 U. S. 212 . McCollum thus held that Illinois could not constitutionally manipulate the compelled classroom hours of its compulsory school machinery so as to channel children into sectarian classes. Yet that is exactly what the Court holds New York can do. I am aware that our McCollum decision on separation of Church and State has been subjected to a most searching examination throughout the country. Probably few opinions from this Court in recent years have attracted more attention or stirred wider debate. Our insistence on "a wall between Church and State which must be kept high and impregnable" has seemed to some a correct exposition of the philosophy and a true interpretation of the language of the First Amendment to which we should strictly adhere. [ Footnote 2/1 ] With equal conviction and sincerity, others have thought the McCollum decision fundamentally wrong, [ Footnote 2/2 ] and have pledged continuous warfare against it. [ Footnote 2/3 ] The opinions in the court below and the briefs here reflect these diverse viewpoints. In dissenting today, I mean to do more than give routine approval to our McCollum decision. I mean also to reaffirm my faith in the Page 343 U. S. 318 fundamental philosophy expressed in McCollum and Everson v. Board of Education, 330 U. S. 1 . That reaffirmance can be brief because of the exhaustive opinions in those recent cases. Difficulty of decision in the hypothetical situations mentioned by the Court, but not now before us, should not confuse the issues in this case. Here, the sole question is whether New York can use its compulsory education laws to help religious sects get attendants presumably too unenthusiastic to go unless moved to do so by the pressure of this state machinery. That this is the plan, purpose, design and consequence of the New York program cannot be denied. The state thus makes religious sects beneficiaries of its power to compel children to attend secular schools. Any use of such coercive power by the state to help or hinder some religious sects or to prefer all religious sects over nonbelievers or vice versa is just what I think the First Amendment forbids. In considering whether a state has entered this forbidden field, the question is not whether it has entered too far, but whether it has entered at all. New York is manipulating its compulsory education laws to help religious sects get pupils. This is not separation, but combination, of Church and State. The Court's validation of the New York system rests in part on its statement that Americans are "a religious people whose institutions presuppose a Supreme Being." This was at least as true when the First Amendment was adopted, and it was just as true when eight Justices of this Court invalidated the released time system in McCollum on the premise that a state can no more "aid all religions" than it can aid one. [ Footnote 2/4 ] It was precisely because Eighteenth Page 343 U. S. 319 Century Americans were a religious people divided into many fighting sects that we were given the constitutional mandate to keep Church and State completely separate. Colonial history had already shown that, here as elsewhere, zealous sectarians entrusted with governmental power to further their causes would sometimes torture, maim and kill those they branded "heretics," "atheists" or "agnostics." [ Footnote 2/5 ] The First Amendment was therefore to insure that no one powerful sect or combination of sects could use political or governmental power to punish dissenters whom they could not convert to their faith. Now, as then, it is only by wholly isolating the state from the religious sphere and compelling it to be completely neutral, that the freedom of each and every denomination and of all nonbelievers can be maintained. It is this neutrality the Court abandons today when it treats New York's coercive system as a program which merely "encourages religious instruction or cooperates with religious authorities." The abandonment is all the more dangerous to liberty because of the Court's legal exaltation of the orthodox and its derogation of unbelievers. Under our system of religious freedom, people have gone to their religious sanctuaries not because they feared the law, but because they loved their God. The choice of all has been as free as the choice of those who answered the call to worship moved only by the music of the old Sunday morning church bells. The spiritual mind of man has thus been free to believe, disbelieve, or doubt, without repression, great or small, by the heavy Page 343 U. S. 320 hand of government. Statutes authorizing such repression have been stricken. Before today, our judicial opinions have refrained from drawing invidious distinctions between those who believe in no religion and those who do believe. The First Amendment has lost much if the religious follower and the atheist are no longer to be judicially regarded as entitled to equal justice under law. State help to religion injects political and party prejudices into a holy field. It too often substitutes force for prayer, hate for love, and persecution for persuasion. Government should not be allowed, under cover of the soft euphemism of "cooperation," to steal into the sacred area of religious choice. [ Footnote 2/1 ] See, e.g., Newman, The Sectarian Invasion of Our Public Schools; Moehlman, The Wall of Separation between Church and State; Thayer, The Attack upon the American Secular School, pp. 179-199; Butts, The American Tradition in Religion and Education, pp. 201-208. See also Symposium on Religion and the State, 14 Law & Contemp.Prob. 1-159. [ Footnote 2/2 ] See, e.g., O'Neill, Religion and Education Under the Constitution, pp. 219-253; Parsons, The First Freedom, pp. 158-178; Van Dusen, God in Education. See also Symposium on Religion and the State, supra. [ Footnote 2/3 ] See Moehlman, supra, 343 U.S. 306 fn2/1|>n. 1, at p. 42. O'Neill, supra, 343 U.S. 306 fn2/2|>n. 2, at pp. 254-272. [ Footnote 2/4 ] A state policy of aiding "all religions" necessarily requires a governmental decision as to what constitutes "a religion." Thus is created a governmental power to hinder certain religious beliefs by denying their character as such. See, e.g., the Regulations of the New York Commissioner of Education providing that "The courses in religious observance and education must be maintained and operated by or under the control of duly constituted religious bodies." (Emphasis added.) Art. 17, § 154, 1 N.Y. Official Code Comp. 683. This provides precisely the kind of censorship which we have said the Constitution forbids. Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 305 . [ Footnote 2/5 ] Wertenbaker, The Puritan Oligarchy, 213-214. MR. JUSTICE FRANKFURTER, dissenting. By way of emphasizing my agreement with MR. JUSTICE JACKSON s dissent, I add a few words. The Court tells us that, in the maintenance of its public schools, "[The State government] can close its doors or suspend its operations" so that its citizens may be free for religious devotions or instruction. If that were the issue, it would not rise to the dignity of a constitutional controversy. Of course a State may provide that the classes in its schools shall be dismissed, for any reason, or no reason, on fixed days, or for special occasions. The essence of this case is that the school system did not "close its doors" and did not "suspend its operations." There is all the difference in the world between letting the children out of school and letting some of them out of school into religious classes. If everyone is free to make what use he will of time wholly unconnected from schooling required by law -- those who wish sectarian instruction devoting it to that purpose, those who have ethical instruction at home, to that, those who study music, to that -- then of course there is no conflict with the Fourteenth Amendment. Page 343 U. S. 321 The pith of the case is that formalized religious instruction is substituted for other school activity which those who do not participate in the released time program are compelled to attend. The school system is very much in operation during this kind of released time. If its doors are closed, they are closed upon those students who do not attend the religious instruction, in order to keep them within the school. That is the very thing which raises the constitutional issue. It is not met by disregarding it. Failure to discuss this issue does not take it out of the case. Again, the Court relies upon the absence from the record of evidence of coercion in the operation of the system. "If, in fact, coercion were used," according to the Court, "if it were established that any one or more teachers were using their office to persuade or force students to take the religious instruction, a wholly different case would be presented." Thus, "coercion" in the abstract is acknowledged to be fatal. But the Court disregards the fact that, as the case comes to us, there could be no proof of coercion, for the appellants were not allowed to make proof of it. Appellants alleged that "The operation of the released time program has resulted and inevitably results in the exercise of pressure and coercion upon parents and children to secure attendance by the children for religious instruction." This allegation -- that coercion was, in fact, present and is inherent in the system, no matter what disavowals might be made in the operating regulations -- was denied by appellees. Thus, were drawn issues of fact which cannot be determined, on any conceivable view of judicial notice, by judges out of their own knowledge or experience. Appellants sought an opportunity to adduce evidence in support of these allegations at an appropriate trial. And though the courts below cited the concurring opinion in McCollum v. Board of Education, 333 U. S. 203 , 333 U. S. 226 , to "emphasize the importance of detailed Page 343 U. S. 322 analysis of the facts to which the Constitutional test of Separation is to be applied," they denied that opportunity on the ground that such proof was irrelevant to the issue of constitutionality. See 198 Misc. 631, 641, 99 N.Y.S.2d 339, 348-349; 303 N.Y. 161 , 174 175, 100 N.E.2d 463, 469. [ Footnote 3/1 ] When constitutional issues turn on facts, it is a strange procedure indeed not to permit the facts to be established. When such is the case, there are weighty considerations for us to require the State court to make its determination only after a thorough canvass of all the circumstances and not to bar them from consideration. Cf. Chastleton Corp. v. Sinclair, 264 U. S. 543 ; Hammond v. Schappi Bus Line, 275 U. S. 164 . If we are to decide this case on the present record, however, a strict adherence to the usage of courts in ruling on the sufficiency of pleadings would require us to take as admitted the facts pleaded in the appellants' complaint, including the fact of coercion, actual and inherent. See Judge Fuld, dissenting below, 303 N.Y. at 185, 100 N.E.2d at 475. Even on a more latitudinarian view, I cannot see how a finding that coercion was absent, deemed critical by this Court in sustaining the practice, can be made here, when appellants were prevented from making a timely showing of coercion because the courts below thought it irrelevant. The result in the McCollum case, 333 U. S. 203 , was based on principles that received unanimous acceptance by this Court, barring only a single vote. I agree with MR. JUSTICE BLACK that those principles are disregarded Page 343 U. S. 323 in reaching the result in this case. [ Footnote 3/2 ] Happily they are not disavowed by the Court. From this, I draw the hope that, in future variations of the problem which are bound to come here, these principles may again be honored in the observance. The deeply divisive controversy aroused by the attempts to secure public school pupils for sectarian instruction would promptly end if the advocates of such instruction were content to have the school "close its doors or suspend its operations" -- that is, dismiss classes in their entirety, without discrimination -- instead of seeking to use the public schools as the instrument for securing attendance at denominational classes. The unwillingness of the promoters of this movement to dispense with such use of the public schools betrays a surprising want of confidence in the inherent power of the various faiths to draw children to outside sectarian classes -- an attitude that hardly reflects the faith of the greatest religious spirits. [ Footnote 3/1 ] Issues that raise federal claims cannot be foreclosed by the State court treating the allegations as "conclusory in character." 303 N.Y. 161 , 174, 100 N.E.2d 463, 469. This is so even when a federal statute is involved. Brown v. Western R. of Alabama, 338 U. S. 294 . A fortiori, when the appeal is to the Constitution of the United States. [ Footnote 3/2 ] The reservation made by four of the Justices in the McCollum case did not, of course, refer to the New York situation any more than it referred to that form of "released time" under which the whole student body is dismissed. This was the reservation: "We do not consider, as indeed we could not, school programs not before us which, though colloquially characterized as 'released time,' present situations differing in aspects that may well be constitutionally crucial. Different forms which 'released time' has taken during more than thirty years of growth include programs which, like that, before us, could not withstand the test of the Constitution; others may be found unexceptionable." 333 U.S. at 333 U. S. 231 . MR. JUSTICE JACKSON, dissenting. This released time program is founded upon a use of the State's power of coercion, which, for me, determines its unconstitutionality. Stripped to its essentials, the plan has two stages: first, that the State compel each student to yield a large part of his time for public secular Page 343 U. S. 324 education; and, second, that some of it be "released" to him on condition that he devote it to sectarian religious purposes. No one suggests that the Constitution would permit the State directly to require this "released" time to be spent "under the control of a duly constituted religious body." This program accomplishes that forbidden result by indirection. If public education were taking so much of the pupils' time as to injure the public or the students' welfare by encroaching upon their religious opportunity, simply shortening everyone's school day would facilitate voluntary and optional attendance at Church classes. But that suggestion is rejected upon the ground that, if they are made free, many students will not go to the Church. Hence, they must be deprived of freedom for this period, with Church attendance put to them as one of the two permissible ways of using it. The greater effectiveness of this system over voluntary attendance after school hours is due to the truant officer who, if the youngster fails to go to the Church school, dogs him back to the public school room. Her,e schooling is more or less suspended during the "released time" so the nonreligious attendants will not forge ahead of the churchgoing absentees. But it serves as a temporary jail for a pupil who will not go to Church. It takes more subtlety of mind than I possess to deny that this is governmental constraint in support of religion. It is as unconstitutional, in my view, when exerted by indirection as when exercised forthrightly. As one whose children, as a matter of free choice, have been sent to privately supported Church schools, I may challenge the Court's suggestion that opposition to this plan can only be anti-religious, atheistic, or agnostic. My evangelistic brethren confuse an objection to compulsion with an objection to religion. It is possible to hold a faith with enough confidence to believe that what should be Page 343 U. S. 325 rendered to God does not need to be decided and collected by Caesar. The day that this country ceases to be free for irreligion, it will cease to be free for religion -- except for the sect that can win political power. The same epithetical jurisprudence used by the Court today to beat down those who oppose pressuring children into some religion can devise as good epithets tomorrow against those who object to pressuring them into a favored religion. And, after all, if we concede to the State power and wisdom to single out "duly constituted religious" bodies as exclusive alternatives for compulsory secular instruction, it would be logical to also uphold the power and wisdom to choose the true faith among those "duly constituted." We start down a rough road when we begin to mix compulsory public education with compulsory godliness. A number of Justices just short of a majority of the majority that promulgates today's passionate dialectics joined in answering them in Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203 . The distinction attempted between that case and this is trivial, almost to the point of cynicism, magnifying its nonessential details and disparaging compulsion which was the underlying reason for invalidity. A reading of the Court's opinion in that case along with its opinion in this case will show such difference of overtones and undertones as to make clear that the McCollum case has passed like a storm in a teacup. The wall which the Court was professing to erect between Church and State has become even more warped and twisted than I expected. Today's judgment will be more interesting to students of psychology and of the judicial processes than to students of constitutional law.

In Zorach v. Clauson, the Supreme Court upheld a New York City program that allowed students to be released from public schools during school hours to attend religious instruction or devotional exercises at religious centers. The program was found to not violate the First Amendment, as it did not prohibit the free exercise of religion nor establish a law respecting an establishment of religion. The Court distinguished this case from McCollum v. Board of Education, where a similar "released time" program was found unconstitutional due to the use of public school classrooms and the involvement of public school teachers. In this case, the religious instruction took place outside of school premises and did not involve the use of public funds or coercion to attend. The Court affirmed the New York Court of Appeals' decision, holding that the program did not violate the Federal Constitution.

Religion

Braunfeld v. Brown

https://supreme.justia.com/cases/federal/us/366/599/

U.S. Supreme Court Braunfeld v. Brown, 366 U.S. 599 (1961) Braunfeld v. Brown No. 67 Argued December 8, 1960 Decided May 29, 1961 366 U.S. 599 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Syllabus Appellants are members of the Orthodox Jewish Faith, which requires the closing of their places of business and total abstention from all manner of work from nightfall each Friday until nightfall each Saturday. As merchants engaged in the retail sale of clothing and home furnishings in Philadelphia, they sued to enjoin enforcement of a 1959 Pennsylvania criminal statute which forbade the retail sale on Sundays of those commodities and other specified commodities. They claimed that the statute violated the Equal Protection Clause of the Fourteenth Amendment and constituted a law respecting an establishment of religion, and that it interfered with the free exercise of their religion by imposing serious economic disadvantages upon them if they adhere to the observance of their Sabbath, and that it would operate so as to hinder the Orthodox .Jewish Faith in gaining new members. Held: the statute does not violate the Equal Protection Clause of the Fourteenth Amendment, nor constitute a law respecting an establishment of religion, Two Guys from Harrison-Allentown, Inc. v. McGinley, ante, p. 366 U. S. 582 , and it does not prohibit the free exercise of appellants' religion, within the meaning of the First Amendment, made applicable to the States by the Fourteenth Amendment. Pp. 366 U. S. 600 -610. 184 F. Supp. 352 affirmed. Page 366 U. S. 600 MR. JUSTICE WARREN announced the judgment of the Court and an opinion in which MR. JUSTICE BLACK, MR. JUSTICE CLARK, and MR. JUSTICE WHITTAKER concur. This case concerns the constitutional validity of the application to appellants of the Pennsylvania criminal statute, [ Footnote 1 ] enacted in 1959, which proscribes the Sunday retail sale of certain enumerated commodities. Among the questions presented are whether the statute is a law Page 366 U. S. 601 respecting an establishment of religion and whether the statute violates equal protection. Since both of these questions, in reference to this very statute, have already been answered in the negative, Two Guys from Harrison-Allentown, Inc. v. McGinley, ante, p. 366 U. S. 582 , and since appellants present nothing new regarding them, they need not be considered here. Thus, the only question for consideration is whether the statute interferes with the free exercise of appellants' religion. Appellants are merchants in Philadelphia who engage in the retail sale of clothing and home furnishings within the proscription of the statute in issue. Each of the appellants is a member of the Orthodox Jewish faith, which requires the closing of their places of business and a total abstention from all manner of work from nightfall each Friday until nightfall each Saturday. They instituted a suit in the court below seeking a permanent injunction against the enforcement of the 1959 statute. Their complaint, as amended, alleged that appellants had previously kept their places of business open on Sunday; that each of appellants had done a substantial amount of business on Sunday, compensating somewhat for their closing on Saturday; that Sunday closing will result in impairing the ability of all appellants to earn a livelihood, and will render appellant Braunfeld unable to continue in his business, thereby losing his capital investment; that the statute is unconstitutional for the reasons stated above. A three-judge court was properly convened and it dismissed the complaint on the authority of the Two Guys from Harrison case. 184 F. Supp. 352 . On appeal brought under 28 U.S.C. § 1253, we noted probable jurisdiction, 362 U.S. 987. Appellants contend that the enforcement against them of the Pennsylvania statute will prohibit the free exercise Page 366 U. S. 602 of their religion because, due to the statute's compulsion to close on Sunday, appellants will suffer substantial economic loss, to the benefit of their non-Sabbatarian competitors, if appellants also continue their Sabbath observance by closing their businesses on Saturday; that this result will either compel appellants to give up their Sabbath observance, a basic tenet of the Orthodox Jewish faith, or will put appellants at a serious economic disadvantage if they continue to adhere to their Sabbath. Appellants also assert that the statute will operate so as to hinder the Orthodox Jewish faith in gaining new adherents. And the corollary to these arguments is that if the free exercise of appellants' religion is impeded, that religion is being subjected to discriminatory treatment by the State. In McGowan v. Maryland, ante, at pp. 366 U. S. 437 -440, we noted the significance that this Court has attributed to the development of religious freedom in Virginia in determining the scope of the First Amendment's protection. We observed that, when Virginia passed its Declaration of Rights in 1776, providing that "all men are equally entitled to the free exercise of religion," Virginia repealed its laws which in any way penalized "maintaining any opinions in matters of religion, forbearing to repair to church, or the exercising any mode of worship whatsoever." But Virginia retained its laws prohibiting Sunday labor. We also took cognizance, in McGowan, of the evolution of Sunday Closing Laws from wholly religious sanctions to legislation concerned with the establishment of a day of community tranquillity, respite and recreation, a day when the atmosphere is one of calm and relaxation, rather than one of commercialism, as it is during the other six days of the week. We reviewed the still growing state Page 366 U. S. 603 preoccupation with improving the health, safety, morals and general wellbeing of our citizens. Concededly, appellants and all other persons who wish to work on Sunday will be burdened economically by the State's day of rest mandate, and appellants point out that their religion requires them to refrain from work on Saturday as well. Our inquiry, then, is whether, in these circumstances, the First and Fourteenth Amendments forbid application of the Sunday Closing Law to appellants. Certain aspects of religious exercise cannot in any way be restricted or burdened by either federal or state legislation. Compulsion by law of the acceptance of any creed or the practice of any form of worship is strictly forbidden. The freedom to hold religious beliefs and opinions is absolute. Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 303 ; Reynolds v. United States, 98 U. S. 145 , 98 U. S. 166 . Thus, in West Virginia State Board of Education v. Barnette, 319 U. S. 624 , this Court held that state action compelling school children to salute the flag, on pain of expulsion from public school, was contrary to the First and Fourteenth Amendments when applied to those students whose religious beliefs forbade saluting a flag. But this is not the case at bar; the statute before us does not make criminal the holding of any religious belief or opinion, nor does it force anyone to embrace any religious belief or to say or believe anything in conflict with his religious tenets. However, the freedom to act, even when the action is in accord with one's religious convictions, is not totally free from legislative restrictions. Cantwell v. Connecticut, supra, at pp. 310 U. S. 303 -304, 310 U. S. 306 . As pointed out in Reynolds v. United States, supra, at p. 98 U. S. 164 , legislative power over mere opinion is forbidden, but it may reach people's actions when they are found to be in violation of important social duties or subversive of good order, even when Page 366 U. S. 604 the actions are demanded by one's religion. This was articulated by Thomas Jefferson when he said: "Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties. " (Emphasis added.) 8 Works of Thomas Jefferson 113. [ Footnote 2 ] And, in the Barnette case, the Court was careful to point out that "The freedom asserted by these appellees does not bring them into collision with rights asserted by any other individual. It is such conflicts which most frequently require intervention of the State to determine where the rights of one end and those of another begin. . . . It is . . . to be noted that the compulsory flag salute and Page 366 U. S. 605 pledge requires affirmation of a belief and an attitude of mind. " 319 U.S. at 319 U. S. 630 , 319 U. S. 633 . (Emphasis added.) Thus, in Reynolds v. United States, this Court upheld the polygamy conviction of a member of the Mormon faith despite the fact that an accepted doctrine of his church then imposed upon its male members the duty to practice polygamy. And, in Prince v. Massachusetts, 321 U. S. 158 , this Court upheld a statute making it a crime for a girl under eighteen years of age to sell any newspapers, periodicals, or merchandise in public places despite the fact that a child of the Jehovah's Witnesses faith believed that it was her religious duty to perform this work. It is to be noted that, in the two cases just mentioned, the religious practices themselves conflicted with the public interest. In such cases, to make accommodation between the religious action and an exercise of state authority is a particularly delicate task, id. at 321 U. S. 165 , because resolution in favor of the State results in the choice to the individual of either abandoning his religious principle or facing criminal prosecution. But, again, this is not the case before us because the statute at bar does not make unlawful any religious practices of appellants; the Sunday law simply regulates a secular activity and, as applied to appellants, operates so as to make the practice of their religious beliefs more expensive. Furthermore, the law's effect does not inconvenience all members of the Orthodox Jewish faith, but only those who believe it necessary to work on Sunday. [ Footnote 3 ] And even these are not faced with as serious a choice as forsaking their religious practices or subjecting themselves to criminal prosecution. Fully recognizing that the alternatives Page 366 U. S. 606 open to appellants and others similarly situated -- retaining their present occupations and incurring economic disadvantage or engaging in some other commercial activity which does not call for either Saturday or Sunday labor -- may well result in some financial sacrifice in order to observe their religious beliefs, still the option is wholly different than when the legislation attempts to make a religious practice itself unlawful. To strike down, without the most critical scrutiny, legislation which imposes only an indirect burden on the exercise of religion, i.e., legislation which does not make unlawful the religious practice itself, would radically restrict the operating latitude of the legislature. Statutes which tax income and limit the amount which may be deducted for religious contributions impose an indirect economic burden on the observance of the religion of the citizen whose religion requires him to donate a greater amount to his church; statutes which require the courts to be closed on Saturday and Sunday impose a similar indirect burden on the observance of the religion of the trial lawyer whose religion requires him to rest on a weekday. The list of legislation of this nature is nearly limitless. Needless to say, when entering the area of religious freedom, we must be fully cognizant of the particular protection that the Constitution has accorded it. Abhorrence of religious persecution and intolerance is a basic part of our heritage. But we are a cosmopolitan nation made up of people of almost every conceivable religious preference. These denominations number almost three hundred. Year Book of American Churches for 1958, 257 et seq. Consequently, it cannot be expected, much less required, that legislators enact no law regulating conduct that may in some way result in an economic disadvantage to some religious sects and not to others because of the special practices of the various religions. We do not believe that such an effect is an absolute test Page 366 U. S. 607 for determining whether the legislation violates the freedom of religion protected by the First Amendment. Of course, to hold unassailable all legislation regulating conduct which imposes solely an indirect burden on the observance of religion would be a gross oversimplification. If the purpose or effect of a law is to impede the observance of one or all religions, or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect. But if the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State's secular goals, the statute is valid despite its indirect burden on religious observance unless the State may accomplish its purpose by means which do not impose such a burden. See Cantwell v. Connecticut, supra, at pp. 310 U. S. 304 -305. [ Footnote 4 ] As we pointed out in McGowan v. Maryland, supra, at pp. 366 U. S. 444 -445, we cannot find a State without power to provide a weekly respite from all labor and at the same time, to set one day of the week apart from the others as a day of rest, repose, recreation and tranquillity -- a day when the hectic tempo of everyday existence ceases and a more pleasant atmosphere is created, a day which all members of the family and community have the opportunity to spend and enjoy together, a day on which people may visit friends and relatives who are not available during working days, a day when the weekly laborer may best regenerate himself. This is particularly true in this day and age of increasing state concern with public welfare legislation. Page 366 U. S. 608 Also, in McGowan, we examined several suggested alternative means by which it was argued that the State might accomplish its secular goals without even remotely or incidentally affecting religious freedom. Ante at pp. 366 U. S. 450 -452. We found there that a State might well find that those alternatives would not accomplish bringing about a general day of rest. We need not examine them again here. However, appellants advance yet another means at the State's disposal which they would find unobjectionable. They contend that the State should cut an exception from the Sunday labor proscription for those people who, because of religious conviction, observe a day of rest other than Sunday. By such regulation, appellants contend, the economic disadvantages imposed by the present system would be removed, and the State's interest in having all people rest one day would be satisfied. A number of States provide such an exemption, [ Footnote 5 ] and this may well be the wiser solution to the problem. But our concern is not with the wisdom of legislation, but with its constitutional limitation. Thus, reason and experience teach that to permit the exemption might well undermine the State's goal of providing a day that, as best possible, eliminates the atmosphere of commercial noise and activity. Although not dispositive of the issue, enforcement problems would be more difficult since there would be two or more days to police, rather than one, and it would be more difficult to observe whether violations were occurring. Additional problems might also be presented by a regulation of this sort. To allow only people who rest on a day other than Sunday to keep their businesses open on that day might well provide these people with an economic advantage over their competitors who must Page 366 U. S. 609 remain closed on that day; [ Footnote 6 ] this might cause the Sunday observers to complain that their religions are being discriminated against. With this competitive advantage existing, there could well be the temptation for some, in order to keep their businesses open on Sunday, to assert that they have religious convictions which compel them to close their businesses on what had formerly been their least profitable day. This might make necessary a state-conducted inquiry into the sincerity of the individual's religious beliefs, [ Footnote 7 ] a practice which a State might believe would itself run afoul of the spirit of constitutionally protected religious guarantees. Finally, in order to keep the disruption of the day at a minimum, exempted employers would probably have to hire employees who themselves qualified for the exemption because of their own religious beliefs, [ Footnote 8 ] a practice which a State might feel to be opposed to its general policy prohibiting religious discrimination in hiring. [ Footnote 9 ] For all of these reasons, we cannot say that the Pennsylvania statute before us is invalid, either on its face or as applied. MR. JUSTICE HARLAN concurs in the judgment. MR. JUSTICE BRENNAN and MR. JUSTICE STEWART concur in Page 366 U. S. 610 our disposition of appellants' claims under the Establishment Clause and the Equal Protection Clause. MR. JUSTICE FRANKFURTER and MR. JUSTICE HARLAN have rejected appellants' claim under the Free Exercise Clause in a separate opinion. Accordingly, the decision is Affirmed. [For opinion of MR. JUSTICE FRANKFURTER, joined by MR. JUSTICE HARLAN, see ante, p. 366 U. S. 459 .] [For dissenting opinion of MR. JUSTICE DOUGLAS, see ante, p. 366 U. S. 561 .] [ Footnote 1 ] 18 Purdon's Pa.Stat.Ann. (1960 Cum.Supp.) § 4699.10 provides: "Selling certain personal property on Sunday" "Whoever engages on Sunday in the business of selling, or sells or offers for sale, on such day at retail, clothing and wearing apparel, clothing accessories, furniture, housewares, home, business or office furnishings, household, business or office appliances, hardware, tools, paints, building and lumber supply materials, jewelry, silverware, watches, clocks, luggage, musical instruments and recordings, or toys, excluding novelties and souvenirs, shall, upon conviction thereof in a summary proceeding for the first offense, be sentenced to pay a fine of not exceeding one hundred dollars ($100), and for the second or any subsequent offense committed within one year after conviction for the first offense, be sentenced to pay a fine of not exceeding two hundred dollars ($200) or undergo imprisonment not exceeding thirty days in default thereof." "Each separate sale or offer to sell shall constitute a separate offense." "Information charging violations of this section shall be brought within seventy-two hours after the commission of the alleged offense and not thereafter." [ Footnote 2 ] Oliver Ellsworth, a member of the Constitutional Convention and later Chief Justice, wrote: "But, while I assert the rights of religious liberty, I would not deny that the civil power has a right, in some cases, to interfere in matters of religion. It has a right to prohibit and punish gross immoralities and impieties, because the open practice of these is of evil example and detriment." (Emphasis added.) Written in the Connecticut Courant, Dec. 17, 1787, as quoted in 1 Stokes, Church and State in the United States, 535. [ Footnote 3 ] See the concurring opinion of Mr. Justice Cardozo, joined by Mr. Justice Brandeis and Mr. Justice Stone, in Hamilton v. Regents, 293 U. S. 245 , 293 U. S. 265 -268. [ Footnote 4 ] Thus, in cases like Murdock v. Pennsylvania, 319 U. S. 105 , and Follett v. McCormick, 321 U. S. 573 , this Court struck down municipal ordinances which, in application, required religious colporteurs to pay a license tax as a condition to the pursuit of their activities because the State's interest, the obtaining of revenue, could be easily satisfied by imposing this tax on nonreligious sources. [ Footnote 5 ] E.g., Ind.Ann.Stat. § 10-4301. [ Footnote 6 ] "If he [the Orthodox Jewish storekeeper] opens on Saturday, he is subjected to very fierce competition indeed from Christian shopkeepers, whereas, on Sunday, supposing he closes on Saturday, he has an absolutely free run, and no competition from Christian shopkeepers at all." 311 Parliamentary Debates, Commons, 492. "It is true that the orthodox Jew will only be allowed to trade until two o'clock on Sunday, but, during that time, he will have a monopoly. That is a tremendous advantage. In many districts, he will be the only trader with a shop open in that district." 101 Parliamentary Debates, Lords, 430. [ Footnote 7 ] Connecticut, which has such an exemption statute, requires that Sabbatarians, in order to qualify, file a written notice of religious belief with the prosecuting attorney. Conn.Gen.Stat.Rev. § 53-303. [ Footnote 8 ] E.g., Va.Code Ann., § 18.1-359. [ Footnote 9 ] E.g., 43 Purdon's Pa.Stat.Ann. (1960 Cum.Supp.) §§ 951-963. MR. JUSTICE BRENNAN, concurring and dissenting. I agree with THE CHIEF JUSTICE that there is no merit in appellants' establishment and equal protection claims. I dissent, however, as to the claim that Pennsylvania has prohibited the free exercise of appellants' religion. The Court has demonstrated the public need for a weekly surcease from worldly labor, and set forth the considerations of convenience which have led the Commonwealth of Pennsylvania to fix Sunday as the time for that respite. I would approach this case differently, from the point of view of the individuals whose liberty is -- concededly -- curtailed by these enactments. For the values of the First Amendment, as embodied in the Fourteenth, look primarily towards the preservation of personal liberty, rather than towards the fulfillment of collective goals. The appellants are small retail merchants, faithful practitioners of the Orthodox Jewish faith. They allege -- and the allegation must be taken as true, since the case comes to us on a motion to dismiss the complaint -- that ". . . one who does not observe the Sabbath [by refraining from labor] . . . cannot be an Orthodox Jew." Page 366 U. S. 611 In appellants' business area, Friday night and Saturday are busy times; yet appellants, true to their faith, close during the Jewish Sabbath, and make up some, but not all, of the business thus lost by opening on Sunday. "Each of the plaintiffs," the complaint continues, "does a substantial amount of business on Sundays, and the ability of the plaintiffs to earn a livelihood will be greatly impaired by closing their business establishment on Sundays." Consequences even more drastic are alleged: "Plaintiff, Abraham Braunfeld, will be unable to continue in his business if he may not stay open on Sunday, and he will thereby lose his capital investment." In other words, the issue in this case -- and we do not understand either appellees or the Court to contend otherwise -- is whether a State may put an individual to a choice between his business and his religion. The Court today holds that it may. But I dissent, believing that such a law prohibits the free exercise of religion. The first question to be resolved, however, is somewhat broader than the facts of this case. That question concerns the appropriate standard of constitutional adjudication in cases in which a statute is assertedly in conflict with the First Amendment, whether that limitation applies of its own force or as absorbed through the less definite words of the Fourteenth Amendment. The Court in such cases is not confined to the narrow inquiry whether the challenged law is rationally related to some legitimate legislative end. Nor is the case decided by a finding that the State's interest is substantial and important, as well as rationally justifiable. This canon of adjudication was clearly stated by Mr. Justice Jackson, speaking for the Court in West Virginia State Board of Education v. Barnette, 319 U. S. 624 , 319 U. S. 639 (1943): "In weighing arguments of the parties, it is important to distinguish between the due process clause of the Fourteenth Amendment as an instrument for Page 366 U. S. 612 transmitting the principles of the First Amendment and those cases in which it is applied for its own sake. The test of legislation which collides with the Fourteenth Amendment, because it also collides with the principles of the First, is much more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process clause disappears when the specific prohibitions of the First become its standard. The right of a state to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a 'rational basis' for adopting. But freedoms of speech and of press, of assembly, and of worship, may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect. It is important to note that, while it is the Fourteenth Amendment which bears directly upon the state, it is the more specific limiting principles of the First Amendment that finally govern this case." This exacting standard has been consistently applied by this Court as the test of legislation under all clauses of the First Amendment, not only those specifically dealing with freedom of speech and of the press. For religious freedom -- the freedom to believe and to practice strange and, it may be, foreign creeds -- has classically been one of the highest values of our society. See, e.g., Murdock v. Pennsylvania, 319 U. S. 105 , 319 U. S. 115 (1943); Jones v. City of Opelika, 319 U. S. 103 (1943); Martin v. City of Struthers, 319 U. S. 141 (1943); Follett v. Town of McCormick, 321 U. S. 573 (1944); Marsh v. Alabama, 326 U. S. 501 , 326 U. S. 510 (1946). Even the most concentrated and fully articulated attack on this high standard has seemingly admitted its validity in principle, while Page 366 U. S. 613 deploring some incidental phraseology. See Kovacs v. Cooper, 336 U. S. 77 , 336 U. S. 89 , 336 U. S. 95 -96 (1949) (concurring opinion); but cf. Ullmann v. United States, 350 U. S. 422 (1956). The honored place of religious freedom in our constitutional hierarchy, suggested long ago by the argument of counsel in Permoli v. Municipality No. 1 of City of New Orleans , 3 How. 589, 600 [argument of counsel -- omitted](1845), and foreshadowed by a prescient footnote in United States v. Carolene Products Co., 304 U. S. 144 , 304 U. S. 152 (1938), note 4, must now be taken to be settled. Or at least so it appeared until today. For, in this case, the Court seems to say, without so much as a deferential nod towards that high place which we have accorded religious freedom in the past, that any substantial state interest will justify encroachments on religious practice, at least if those encroachments are cloaked in the guise of some nonreligious public purpose. Admittedly, these laws do not compel overt affirmation of a repugnant belief, as in Barnette, nor do they prohibit outright any of appellants' religious practices, as did the federal law upheld in Reynolds v. United States, 98 U. S. 145 (1878), cited by the Court. That is, the laws do not say that appellants must work on Saturday. But their effect is that appellants may not simultaneously practice their religion and their trade without being hampered by a substantial competitive disadvantage. Their effect is that no one may, at one and the same time, be an Orthodox Jew and compete effectively with his Sunday-observing fellow tradesmen. This clog upon the exercise of religion, this state-imposed burden on Orthodox Judaism, has exactly the same economic effect as a tax levied upon the sale of religious literature. And yet such a tax, when applied in the form of an excise or license fee, was held invalid in Follett v. Town of McCormick, supra. All this the Court, as I read its opinion, concedes. What, then, is the compelling state interest which impels the Commonwealth of Pennsylvania to impede Page 366 U. S. 614 appellants' freedom of worship? What overbalancing need is so weighty in the constitutional scale that it justifies this substantial, though indirect, limitation of appellants' freedom? It is not the desire to stamp out a practice deeply abhorred by society, such as polygamy, as in Reynolds, for the custom of resting one day a week is universally honored, as the Court has amply shown. Nor is it the State's traditional protection of children, as in Prince v. Massachusetts, 321 U. S. 158 (1944), for appellants are reasoning and fully autonomous adults. It is not even the interest in seeing that everyone rests one day a week, for appellants' religion requires that they take such a rest. It is the mere convenience of having everyone rest on the same day. It is to defend this interest that the Court holds that a State need not follow the alternative route of granting an exemption for those who, in good faith, observe a day of rest other than Sunday. It is true, I suppose, that the granting of such an exemption would make Sundays a little noisier, and the task of police and prosecutor a little more difficult. It is also true that a majority -- 21 -- of the 34 States which have general Sunday regulations have exemptions of this kind. [ Footnote 2/1 ] We are not told that those States are significantly noisier, or that their police are significantly more burdened, than Page 366 U. S. 615 Pennsylvania's. Even England, not under the compulsion of a written constitution, but simply influenced by considerations of fairness, has such an exemption for some activities. [ Footnote 2/2 ] The Court conjures up several difficulties with such a system which seem to me more fanciful than real. Non-Sunday observers might get an unfair advantage, it is said. A similar contention against the draft exemption for conscientious objectors (another example of the exemption technique) was rejected with the observation that "its unsoundness is too apparent to require" discussion. Selective Draft Law Cases, 245 U. S. 366 , 245 U. S. 390 (1918). However widespread the complaint, it is legally baseless, and the State's reliance upon it cannot withstand a First Amendment claim. We are told that an official inquiry into the good faith with which religious beliefs are held might be itself unconstitutional. But this Court indicated otherwise in United States v. Ballard, 322 U. S. 78 (1944). Such an inquiry is no more an infringement of religious freedom than the requirement imposed by the Court itself in McGowan v. Maryland, ante, p. 366 U. S. 420 , that a plaintiff show that his good faith religious beliefs are hampered before he acquires standing to attack a statute under the Free Exercise Clause of the First Amendment. Finally, I find the Court's mention of a problem under state antidiscrimination statutes almost chimerical. Most such statutes provide that hiring may be made on a religious basis if religion is a bona fide occupational qualification. [ Footnote 2/3 ] It happens, moreover, that Pennsylvania's statute has such a provision. [ Footnote 2/4 ] In fine, the Court, in my view, has exalted administrative convenience to a constitutional level high enough to Page 366 U. S. 616 justify making one religion economically disadvantageous. The Court would justify this result on the ground that the effect on religion, though substantial, is indirect. The Court forgets, I think, a warning uttered during the congressional discussion of the First Amendment itself: " . . . the rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand. . . ." [ Footnote 2/5 ] I would reverse this judgment and remand for a trial of appellants' allegations, limited to the free exercise of religion issue. [ Footnote 2/1 ] Conn.Gen.Stat., 1958 rev., § 53-303; Fla.Laws 1959, c. 59-1650, § 2; Ill.Rev.Stat., 1959, c. 38, § 549; Burns' Ind.Ann.Stat., 1956 repl., § 10-4301; Kan.Gen.Stat.Ann., 1949, § 21-953; Ky.Rev.Stat., 1959, § 436.160(2); Me.Rev.Stat., 1954, c. 134, § 44; Mass.Gen.Laws Ann., 1958, c. 136, § 6; Mich.Stat.Ann., 1957 rev., §§ 18.855, 18.122, 9.2702, Comp.Laws Supp.1956, § 435.252; Comp.Laws 1948, §§ 338.682, 435.7; Mo.Rev.Stat., 1959, § 563.700; Neb.Rev.Stat., 1943, § 28-940; N.J.Stat.Ann., 1953, § 2A:171-4; McKinney's N.Y.Laws, Penal Law, § 2144; N.D.Rev.Code, 1943, § 12-2117; NDCC 12-21-17; Page's Ohio Rev.Code Ann., 1954, § 3773.24; Okla.Stat.Ann., 1958, Tit. 21, § 909; R.I.Gen.Laws, 1956, § 11-40-4; S.D.Code, 1939, § 13.1710; Vernon's Ann.Tex.Pen.Code art. 284; Va.Code, 1950, § 18.1-359; Wash.Rev.Code, 1951, § 9.76.020; W.Va.Code Ann., 1955, c. 61, Art. 8, § 6073. Cf. Wis.Stat.Ann., 1958, § 301.33. [ Footnote 2/2 ] E.g., Shops Act, 1950, 14 Geo. VI, c. 28, § 53. [ Footnote 2/3 ] E.g., Mass.Gen.Laws Ann., 1958, c. 151B, § 4, par. 1. [ Footnote 2/4 ] 43 Purdon's Pa.Stat.Ann. (1960 Cum.Supp.) § 955. [ Footnote 2/5 ] I Annals of Cong. 730 (remarks of Representative Daniel Carroll of Maryland, August 15, 1789). MR. JUSTICE STEWART, dissenting. I agree with substantially all that MR. JUSTICE BRENNAN has written. Pennsylvania has passed a law which compels an Orthodox Jew to choose between his religious faith and his economic survival. That is a cruel choice. It is a choice which I think no State can constitutionally demand. For me, this is not something that can be swept under the rug and forgotten in the interest of enforced Sunday togetherness. I think the impact of this law upon these appellants grossly violates their constitutional right to the free exercise of their religion.

In Braunfeld v. Brown, the Supreme Court upheld a Pennsylvania criminal statute that prohibited the retail sale of certain commodities on Sundays. The appellants, merchants in Philadelphia who observed the Orthodox Jewish Sabbath from Friday nightfall to Saturday nightfall, argued that the statute interfered with their free exercise of religion by imposing economic disadvantages. The Court, however, ruled that the statute did not violate the Equal Protection Clause or constitute a law respecting an establishment of religion. While acknowledging the economic burden on the appellants, the Court found that the statute did not prohibit the free exercise of their religion within the meaning of the First Amendment. This case highlights the delicate balance between religious freedom and state interests, with the Court prioritizing administrative convenience over the religious practices of Orthodox Jews.

Religion

Torcaso v. Watkins

https://supreme.justia.com/cases/federal/us/367/488/

U.S. Supreme Court Torcaso v. Watkins, 367 U.S. 488 (1961) Torcaso v. Watkins No. 373 Argued April 24, 1961 Decided June 19, 1961 367 U.S. 488 APPEAL FOM THE COURT OF APPEALS OF MARYLAND Syllabus Appellant was appointed by the Governor of Maryland to the office of Notary Public, but he was denied a commission because he would not declare his belief in God, as required by the Maryland Constitution. Claiming that this requirement violated his rights under the First and Fourteenth Amendments, he sued in a state court to compel issuance of his commission, but relief was denied. The State Court of Appeals affirmed, holding that the state constitutional provision is self-executing, without need for implementing legislation, and requires declaration of a belief in God as a qualification for office. Held: This Maryland test for public office cannot be enforced against appellant, because it unconstitutionally invades his freedom of belief and religion guaranteed by the First Amendment and protected by the Fourteenth Amendment from infringement by the States. Pp. 367 U. S. 489 -496. 223 Md. 49, 162 A.2d 438, reversed. Page 367 U. S. 489 MR. JUSTICE BLACK delivered the opinion of the Court. Article 37 of the Declaration of Rights of the Maryland Constitution provides: "[N]o religious test ought ever to be required as a qualification for any office of profit or trust in this State, other than a declaration of belief in the existence of God. . . ." The appellant Torcaso was appointed to the office of Notary Public by the Governor of Maryland, but was refused a commission to serve because he would not declare his belief in God. He then brought this action in a Maryland Circuit Court to compel issuance of his commission, charging that the State's requirement that he declare this belief violated "the First and Fourteenth Amendments to the Constitution of the United States. . . ." [ Footnote 1 ] The Circuit Court rejected these federal constitutional contentions, and the highest court of the State, the Court of Appeals, affirmed, [ Footnote 2 ] holding that the state constitutional provision is self-executing, and requires declaration of belief in God as a qualification for office without need for implementing legislation. The case is therefore properly here on appeal under 28 U.S.C. § 1257(2). There is, and can be, no dispute about the purpose or effect of the Maryland Declaration of Rights requirement before us -- it sets up a religious test which was designed to, Page 367 U. S. 490 and, if valid, does, bar every person who refuses to declare a belief in God from holding a public "office of profit or trust" in Maryland. The power and authority of the State of Maryland thus is put on the side of one particular sort of believers -- those who are willing to say they believe in "the existence of God." It is true that there is much historical precedent for such laws. Indeed, it was largely to escape religious test oaths and declarations that a great many of the early colonists left Europe and came here hoping to worship in their own way. It soon developed, however, that many of those who had fled to escape religious test oaths turned out to be perfectly willing, when they had the power to do so, to force dissenters from their faith to take test oaths in conformity with that faith. This brought on a host of laws in the New Colonies imposing burdens and disabilities of various kinds upon varied beliefs depending largely upon what group happened to be politically strong enough to legislate in favor of its own beliefs. The effect of all this was the formal or practical "establishment" of particular religious faiths in most of the Colonies, with consequent burdens imposed on the free exercise of the faiths of nonfavored believers. [ Footnote 3 ] There were, however, wise and farseeing men in the Colonies -- too many to mention -- who spoke out against test oaths and all the philosophy of intolerance behind them. One of these, it so happens, was George Calvert (the first Lord Baltimore), who took a most important part in the original establishment of the Colony of Maryland. He was a Catholic and had, for this reason, felt compelled by his conscience to refuse to take the Oath of Supremacy in England at the cost of resigning from high governmental office. He again refused to take that oath when it was demanded by the Council of the Colony of Page 367 U. S. 491 Virginia, and, as a result, he was denied settlement in that Colony. [ Footnote 4 ] A recent historian of the early period of Maryland's life has said that it was Calvert's hope and purpose to establish in Maryland a colonial government free from the religious persecutions he had known -- one "securely beyond the reach of oaths. . . ." [ Footnote 5 ] When our Constitution was adopted, the desire to put the people "securely beyond the reach" of religious test oaths brought about the inclusion in Article VI of that document of a provision that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Article VI supports the accuracy of our observation in Girouard v. United States, 328 U. S. 61 , 328 U. S. 69 , that "[t]he test oath is abhorrent to our tradition." Not satisfied, however, with Article VI and other guarantees in the original Constitution, the First Congress proposed and the States very shortly thereafter Page 367 U. S. 492 adopted our Bill of Rights, including the First Amendment. [ Footnote 6 ] That Amendment broke new constitutional ground in the protection it sought to afford to freedom of religion, speech, press, petition and assembly. Since prior cases in this Court have thoroughly explored and documented the history behind the First Amendment, the reasons for it, and the scope of the religious freedom it protects, we need not cover that ground again. [ Footnote 7 ] What was said in our prior cases we think controls our decision here. In Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 303 -304, we said: "The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states a incompetent as Congress to enact such laws. . . . Thus, the Amendment embraces two concepts -- freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be." Later, we decided Everson v. Board of Education, 330 U. S. 1 , and said this at pages 330 U. S. 15 and 330 U. S. 16 : "The 'establishment of religion' clause of the First Amendment means at least this: neither a state nor Page 367 U. S. 493 the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups, and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and State.'" While there were strong dissents in the Everson case, they did not challenge the Court's interpretation of the First Amendment's coverage as being too broad, but thought the Court was applying that interpretation too narrowly to the facts of that case. Not long afterward, in Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203 , we were urged to repudiate as dicta the above-quoted Everson interpretation of the scope of the First Amendment's coverage. We declined to do this, but instead strongly reaffirmed what had been said in Everson, calling attention to the fact that both the majority and the minority in Everson had agreed on the principles declared in this part of the Everson opinion. And a concurring opinion in McCollum, written by Mr. Justice Frankfurter and joined by the other Everson dissenters, said this: "We are all agreed that the First and Fourteenth Amendments have a secular reach far more penetrating Page 367 U. S. 494 in the conduct of Government than merely to forbid an 'established church.' . . . We renew our conviction that" "we have staked the very existence of our country on the faith that complete separation between the state and religion is best for the state and best for religion. [ Footnote 8 ]" The Maryland Court of Appeals thought, and it is argued here, that this Court's later holding and opinion in Zorach v. Clauson, 343 U. S. 306 , had in part repudiated the statement in the Everson opinion quoted above and previously reaffirmed in McCollum. But the Court's opinion in Zorach specifically stated: "We follow the McCollum case." 343 U.S. at 343 U. S. 315 . Nothing decided or written in Zorach lends support to the idea that the Court there intended to open up the way for government, state or federal, to restore the historically and constitutionally discredited policy of probing religious beliefs by test oaths or limiting public offices to persons who have, or perhaps more properly profess to have, a belief in some particular kind of religious concept. [ Footnote 9 ] Page 367 U. S. 495 We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person "to profess a belief or disbelief in any religion." Neither can constitutionally pass laws or impose requirements which aid all religions as against nonbelievers, [ Footnote 10 ] and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs. [ Footnote 11 ] In upholding the State's religious test for public office, the highest court of Maryland said: "The petitioner is not compelled to believe or disbelieve, under threat of punishment or other compulsion. True, unless he makes the declaration of belief, he cannot hold public office in Maryland, but he is not compelled to hold office." The fact, however, that a person is not compelled to hold public office cannot possibly be an excuse for barring him Page 367 U. S. 496 from office by state-imposed criteria forbidden by the Constitution. This was settled by our holding in Wieman v. Updegraff, 344 U. S. 183 . We there pointed out that, whether or not "an abstract right to public employment exists," Congress could not pass a law providing " . . . that no federal employee shall attend Mass or take any active part in missionary work." [ Footnote 12 ] This Maryland religious test for public office unconstitutionally invades the appellant's freedom of belief and religion, and therefore cannot be enforced against him. The judgment of the Court of Appeals of Maryland is accordingly reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. Reversed and remanded. MR. JUSTICE FRANKFURTER and MR. JUSTICE HARLAN concur in the result. [ Footnote 1 ] Appellant also claimed that the State's test oath requirement violates the provision of Art. VI of the Federal Constitution that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Because we are reversing the judgment on other grounds, we find it unnecessary to consider appellant's contention that this provision applies to state as well as federal offices. [ Footnote 2 ] 223 Md. 49, 162 A.2d 438. Appellant's alternative contention that this test violates the Maryland Constitution also was rejected by the state courts. [ Footnote 3 ] See, e.g., I Stokes, Church and State in the United States, 358-446. See also cases cited, note 7 infra. [ Footnote 4 ] The letter from the Virginia Council to the King's Privy Council is quoted in Hanley, Their Rights and Liberties (Newman Press 1959), 65, as follows: "According to the instructions from your Lordship and the usual course held in this place, we tendered the oaths of supremacy and allegiance to his Lordship[;] [Baltimore] and some of his followers, who making profession of the Romish Religion, utterly refused to take the same. . . . His Lordship then offered to take this oath, a copy whereof is included . . . , but we could not imagine that so much latitude was left for us to decline from the prescribed form, so strictly exacted and so well justified and defended by the pen of our late sovereign, Lord King James of happy memory. . . . Among the many blessings and favors for which we are bound to bless God . . . there is none whereby it hath been made more happy than in the freedom of our Religion . . . and that no papists have been suffered to settle their abode amongst us. . . ." Of course, this was long before Madison's great Memorial and Remonstrance and the enactment of the famous Virginia Bill for Religious Liberty, discussed in our opinion in Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 11 -13. [ Footnote 5 ] Hanley, op. cit., supra, p. 65. [ Footnote 6 ] "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." [ Footnote 7 ] See, e.g., the opinions of the Court and also the concurring and dissenting opinions in Reynolds v. United States, 98 U. S. 145 ; Davis v. Beason, 133 U. S. 333 ; Cantwell v. Connecticut, 310 U. S. 296 ; West Virginia State Bd. of Education v. Barnette, 319 U. S. 624 ; Fowler v. Rhode Island, 345 U. S. 67 ; Everson v. Board of Education, 330 U. S. 1 ; Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203 ; McGowan v. Maryland, 366 U. S. 420 . [ Footnote 8 ] 333 U.S. at 333 U. S. 213 , 333 U. S. 232 . Later, in Zorach v. Clauson, 343 U. S. 306 , 343 U. S. 322 , Mr. Justice Frankfurter stated in dissent that "[t]he result in the McCollum case . . . was based on principles that received unanimous acceptance by this Court, barring only a single vote." [ Footnote 9 ] In one of his famous letters of "a Landholder," published in December, 1787, Oliver Ellsworth, a member of the Federal Constitutional Convention and later Chief Justice of this Court, included among his strong arguments against religious test oaths the following statement: "In short, test laws are utterly ineffectual; they are no security at all, because men of loose principles will, by an external compliance, evade them. If they exclude any persons, it will be honest men, men of principle, who will rather suffer an injury than act contrary to the dictates of their consciences. . . ." Quoted in Ford, Essays on the Constitution of the United States 170. See also 4 Elliott, Debates in the Several State Conventions on the Adoption of the Federal Constitution 193. [ Footnote 10 ] In discussing Article VI in the debate of the North Carolina Convention on the adoption of the Federal Constitution, James Iredell, later a Justice of this Court, said: ". . . [i]t is objected that the people of America may, perhaps, choose representatives who have no religion at all, and that pagans and Mahometans may be admitted into offices. But how is it possible to exclude any set of men without taking away that principle of religious freedom which we ourselves so warmly contend for?" And another delegate pointed out that Article VI "leaves religion on the solid foundation of its own inherent validity, without any connection with temporal authority, and no kind of oppression can take place." 4 Elliot, op. cit., supra, at 194, 200. [ Footnote 11 ] Among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others. See Washington Ethical Society v. District of Columbia, 101 U.S.App.D.C. 371, 249 F.2d 127; Fellowship of Humanity v. County of Alameda, 153 Cal. App. 2d 673 , 315 P.2d 394; II Encyclopaedia of the Social Sciences 293; 4 Encyclopaedia Britannica (1957 ed.) 325-327; 21 id. at 797; Archer, Faiths Men Live By (2d ed. revised by Purinton), 120-138, 254-313; 1961 World Almanac 695, 712; Year Book of American Churches for 1961, at 29, 47. [ Footnote 12 ] 344 U.S. at 344 U. S. 191 -192, quoting from United Public Workers v. Mitchell, 330 U. S. 75 , 330 U. S. 100 .

The Supreme Court case Torcaso v. Watkins (1961) concerned a Maryland state requirement that public officials declare a belief in God, as outlined in the state's Declaration of Rights. The appellant, Torcaso, was denied a commission as a Notary Public because he refused to declare this belief. He challenged this requirement in court, arguing that it violated his rights under the First and Fourteenth Amendments. The Court held that the Maryland requirement was indeed unconstitutional, as it infringed on Torcaso's freedom of belief and religion, protected by the First Amendment and applied to state governments through the Fourteenth Amendment. The Court emphasized that such religious tests for public office are invalid, regardless of historical precedent, as they favor one group of believers over others and exclude those with differing religious beliefs. This case reaffirmed the separation of church and state, and ensured that individuals cannot be compelled to profess a specific religious belief to hold public office.

Religion

Sherbert v. Verner

https://supreme.justia.com/cases/federal/us/374/398/

U.S. Supreme Court Sherbert v. Verner, 374 U.S. 398 (1963) Sherbert v. Verner No. 526 Argued April 24, 1963 Decided June 17, 1963 374 U.S. 398 APPEAL FROM THE SUPREME COURT OF SOUTH CAROLINA Syllabus Appellant, a member of the Seventh-Day Adventist Church, was discharged by her South Carolina employer because she would not work on Saturday, the Sabbath Day of her faith. She was unable to obtain other employment because she would not work on Saturday, and she filed a claim for unemployment compensation benefits under the South Carolina Unemployment Compensation Act, which provides that a claimant is ineligible for benefits if he has failed, without good cause, to accept available suitable work when offered him. The State Commission denied appellant's application on the ground that she would not accept suitable work when offered, and its action was sustained by the State Supreme Court. Held: As so applied, the South Carolina statute abridged appellant's right to the free exercise of her religion, in violation of the First Amendment, made applicable to the states by the Fourteenth Amendment. Pp. 374 U. S. 399 -410. (a) Disqualification of appellant for unemployment compensation benefits, solely because of her refusal to accept employment in which she would have to work on Saturday contrary to her religious belief, imposes an unconstitutional burden on the free exercise of her religion. Pp. 374 U. S. 403 -406. (b) There is no compelling state interest enforced in the eligibility provisions of the South Carolina statute which justifies the substantial infringement of appellant's right to religious freedom under the First Amendment. Pp. 374 U. S. 406 -409. (c) This decision does not foster the "establishment" of the Seventh-Day Adventist religion in South Carolina contrary to the First Amendment. Pp. 374 U. S. 409 -410. 240 S.C. 286, 125 S.E.2d 737 , reversed. Page 374 U. S. 399 MR. JUSTICE BRENNAN delivered the opinion of the Court. Appellant, a member of the Seventh-day Adventist Church, was discharged by her South Carolina employer because she would not work on Saturday, the Sabbath Day of her faith. [ Footnote 1 ] When she was unable to obtain other employment because, from conscientious scruples, she would not take Saturday work, [ Footnote 2 ] she filed a claim for Page 374 U. S. 400 unemployment compensation benefits under the South Carolina Unemployment Compensation Act. [ Footnote 3 ] That law provides that, to be eligible for benefits, a claimant must be "able to work and . . . available for work"; and, further, Page 374 U. S. 401 that a claimant is ineligible for benefits "[i]f . . . The has failed, without good cause . . . to accept available suitable work when offered him by the employment office or the employer. . . ." The appellee Employment Security Commission, in administrative proceedings under the statute, found that appellant's restriction upon her availability for Saturday work brought her within the provision disqualifying for benefits insured workers who fail, without good cause, to accept "suitable work when offered . . . by the employment office or the employer. . . ." The Commission's finding was sustained by the Court of Common Pleas for Spartanburg County. That court's judgment was, in turn, affirmed by the South Carolina Supreme Court, which rejected appellant's contention that, as applied to her, the disqualifying provisions of the South Carolina statute abridged her right to the free exercise of her religion secured under the Free Exercise Clause of the First Amendment through the Fourteenth Amendment. The State Supreme Court held specifically that appellant's ineligibility infringed no constitutional liberties because such a construction of the statute "places no restriction upon the appellant's freedom of religion, nor does it in any way prevent her in the exercise of her right and freedom to observe her religious beliefs in accordance with the dictates of her conscience." 240 S.C. 286, 303-304, 125 S.E.2d 737 , 746. [ Footnote 4 ] We noted probable Page 374 U. S. 402 jurisdiction of appellant's appeal. 371 U.S. 938. We reverse the judgment of the South Carolina Supreme Court and remand for further proceedings not inconsistent with this opinion. I The door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such, Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 303 . Government may neither compel affirmation of a repugnant belief, Torcaso v. Watkins, 367 U. S. 488 ; nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities, Fowler v. Rhode Island, 345 U. S. 67 ; nor employ the taxing power to inhibit the dissemination of particular religious views, Murdock v. Pennsylvania, 319 U. S. 105 ; Follett v. McCormick, 321 U. S. 573 ; cf. Grosjean v. American Press Co., 297 U. S. 233 . On the other hand, Page 374 U. S. 403 the Court has rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs or principles, for "even when the action is in accord with one's religious convictions, [it] is not totally free from legislative restrictions." Braunfeld v. Brown, 366 U. S. 599 , 366 U. S. 603 . The conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order. See, e.g., Reynolds v. United States, 98 U. S. 145 ; Jacobson v. Massachusetts, 197 U. S. 11 ; Prince v. Massachusetts, 321 U. S. 158 ; Cleveland v. United States, 329 U. S. 14 . Plainly enough, appellant's conscientious objection to Saturday work constitutes no conduct prompted by religious principles of a kind within the reach of state legislation. If, therefore, the decision of the South Carolina Supreme Court is to withstand appellant's constitutional challenge, it must be either because her disqualification as a beneficiary represents no infringement by the State of her constitutional rights of free exercise, or because any incidental burden on the free exercise of appellant's religion may be justified by a "compelling state interest in the regulation of a subject within the State's constitutional power to regulate. . . ." NAACP v. Button, 371 U. S. 415 , 371 U. S. 438 . II We turn first to the question whether the disqualification for benefits imposes any burden on the free exercise of appellant's religion. We think it is clear that it does. In a sense, the consequences of such a disqualification to religious principles and practices may be only an indirect result of welfare legislation within the State's general competence to enact; it is true that no criminal sanctions directly compel appellant to work a six-day week. But this is only the beginning, not the end, of our Page 374 U. S. 404 inquiry. [ Footnote 5 ] For "[i]f the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect." Braunfeld v. Brown, supra, at 366 U. S. 607 . Here, not only is it apparent that appellant's declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to forego that practice is unmistakable. The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship. Nor may the South Carolina court's construction of the statute be saved from constitutional infirmity on the ground that unemployment compensation benefits are not appellant's "right," but merely a "privilege." It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege. [ Footnote 6 ] American Page 374 U. S. 405 Communications Assn. v. Douds, 339 U. S. 382 , 339 U. S. 390 ; Wieman v. Updegraff, 344 U. S. 183 , 344 U. S. 191 -192; Hannegan v. Esquire, Inc., 327 U. S. 146 , 327 U. S. 155 -156. For example, in Flemming v. Nestor, 363 U. S. 603 , 363 U. S. 611 , the Court recognized with respect to Federal Social Security benefits that "[t]he interest of a covered employee under the Act is of sufficient substance to fall within the protection from arbitrary governmental action afforded by the Due Process Clause." In Speiser v. Randall, 357 U. S. 513 , we emphasized that conditions upon public benefits cannot be sustained if they so operate, whatever their purpose, a to inhibit or deter the exercise of First Amendment freedoms. We there struck down a condition which limited the availability of a tax exemption to those members of the exempted class who affirmed their loyalty to the state government granting the exemption. While the State was surely under no obligation to afford such an exemption, we held that the imposition of such a condition upon even a gratuitous benefit inevitably deterred or discouraged the exercise of First Amendment rights of expression, and thereby threatened to "produce a result which the State could not command directly." 357 U.S. Page 374 U. S. 406 at 357 U. S. 526 . "To deny an exemption to claimants who engage in certain forms of speech is, in effect, to penalize them for such speech." Id. at 357 U. S. 518 . Likewise, to condition the availability of benefits upon this appellant's willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties. Significantly, South Carolina expressly saves the Sunday worshipper from having to make the kind of choice which we here hold infringes the Sabbatarian's religious liberty. When, in times of "national emergency," the textile plants are authorized by the State Commissioner of Labor to operate on Sunday, "no employee shall be required to work on Sunday . . . who is conscientiously opposed to Sunday work, and if any employee should refuse to work on Sunday on account of conscientious . . . objections, he or she shall not jeopardize his or her seniority by such refusal or be discriminated against in any other manner." S.C.Code, § 64-4. No question of the disqualification of a Sunday worshipper for benefits is likely to arise, since we cannot suppose that an employer will discharge him in violation of this statute. The unconstitutionality of the disqualification of the Sabbatarian is thus compounded by the religious discrimination which South Carolina's general statutory scheme necessarily effects. III We must next consider whether some compelling state interest enforced in the eligibility provisions of the South Carolina statute justifies the substantial infringement of appellant's First Amendment right. It is basic that no showing merely of a rational relationship to some colorable state interest would suffice; in this highly sensitive constitutional area, "[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation," Thomas v. Collins, 323 U. S. 516 , 323 U. S. 530 . Page 374 U. S. 407 No such abuse or danger has been advanced in the present case. The appellees suggest no more than a possibility that the filing of fraudulent claims by unscrupulous claimants feigning religious objections to Saturday work might not only dilute the unemployment compensation fund, but also hinder the scheduling by employers of necessary Saturday work. But that possibility is not apposite here, because no such objection appears to have been made before the South Carolina Supreme Court, and we are unwilling to assess the importance of an asserted state interest without the views of the state court. Nor, if the contention had been made below, would the record appear to sustain it; there is no proof whatever to warrant such fears of malingering or deceit as those which the respondents now advance. Even if consideration of such evidence is not foreclosed by the prohibition against judicial inquiry into the truth or falsity of religious beliefs, United States v. Ballard, 322 U. S. 78 -- a question as to which we intimate no view, since it is not before us -- it is highly doubtful whether such evidence would be sufficient to warrant a substantial infringement of religious liberties. For even if the possibility of spurious claims did threaten to dilute the fund and disrupt the scheduling of work, it would plainly be incumbent upon the appellees to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights. [ Footnote 7 ] Cf. 364 U. S. Tucker, 364 U.S. Page 374 U. S. 408 479, 364 U. S. 487 -490; Talley v. California, 362 U. S. 60 , 362 U. S. 64 ; Schneider v. State, 308 U. S. 147 , 308 U. S. 161 ; Martin v. Struthers, 319 U. S. 141 , 319 U. S. 144 -149. In these respects, then, the state interest asserted in the present case is wholly dissimilar to the interests which were found to justify the less direct burden upon religious practices in Braunfeld v. Brown, supra. The Court recognized that the Sunday closing law which that decision sustained undoubtedly served "to make the practice of [the Orthodox Jewish merchants'] . . . religious beliefs more expensive," 366 U.S. at 366 U. S. 605 . But the statute was nevertheless saved by a countervailing factor which finds no equivalent in the instant case -- a strong state interest in providing one uniform day of rest for all workers. That secular objective could be achieved, the Court found, only by declaring Sunday to be that day of rest. Requiring exemptions for Sabbatarians, while theoretically possible, appeared to present an administrative Page 374 U. S. 409 problem of such magnitude, or to afford the exempted class so great a competitive advantage, that such a requirement would have rendered the entire statutory scheme unworkable. [ Footnote 8 ] In the present case, no such justifications underlie the determination of the state court that appellant's religion makes her ineligible to receive benefits. [ Footnote 9 ] IV In holding as we do, plainly we are not fostering the "establishment" of the Seventh-day Adventist religion in South Carolina, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall. See School District of Abington Township v. Schempp, ante, p. 374 U. S. 203 . Nor does the recognition of the appellant's right to unemployment benefits under the state statute serve to abridge any other person's religious liberties. Nor do we, by our decision today, declare the existence of a constitutional right to unemployment benefits on the part Page 374 U. S. 410 of all persons whose religious convictions are the cause of their unemployment. This is not a case in which an employee's religious convictions serve to make him a nonproductive member of society. See note 2 supra. Finally, nothing we say today constrains the States to adopt any particular form or scheme of unemployment compensation. Our holding today is only that South Carolina may not constitutionally apply the eligibility provisions so as to constrain a worker to abandon his religious convictions respecting the day of rest. This holding but reaffirms a principle that we announced a decade and a half ago, namely that no State may "exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation." Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 16 . In view of the result we have reached under the First and Fourteenth Amendments' guarantee of free exercise of religion, we have no occasion to consider appellant's claim that the denial of benefits also deprived her of the equal protection of the laws in violation of the Fourteenth Amendment. The judgment of the South Carolina Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. [ Footnote 1 ] Appellant became a member of the Seventh-day Adventist Church in 1957, at a time when her employer, a textile mill operator, permitted her to work a five-day week. It was not until 1959 that the work week was changed to six days, including Saturday, for all three shifts in the employer's mill. No question has been raised in this case concerning the sincerity of appellant's religious beliefs. Nor is there any doubt that the prohibition against Saturday labor is a basic tenet of the Seventh-day Adventist creed, based upon that religion's interpretation of the only Bible. [ Footnote 2 ] After her discharge, appellant sought employment with three other mills in the Spartanburg area, but found no suitable five-day work available at any of the mills. In filing her claim with the Commission, she expressed a willingness to accept employment at other mills, or even in another industry, so long as Saturday work was not required. The record indicates that of the 150 or more Seventh-day Adventists in the Spartanburg area, only appellant and one other have been unable to find suitable non-Saturday employment. [ Footnote 3 ] The pertinent sections of the South Carolina Unemployment Compensation Act (S.C.Code, Tit. 68, §§ 68-1 to 68-404) are as follows: "§ 68-113. Conditions of eligibility for benefits. -- An unemployed insured worker shall be eligible to receive benefits with respect to any week only if the Commission finds that: . . ." "(3) He is able to work and is available for work, but no claimant shall be considered available for work if engaged in self employment of such nature as to return or promise remuneration in excess of the weekly benefit amounts he would have received if otherwise unemployed over such period of time. . . ." "§ 68-114. Disqualification for benefits. -- Any insured worker shall be ineligible for benefits: . . ." "(2) Discharge for misconduct. -- If the Commission finds that he has been discharged for misconduct connected with his most recent work prior to filing a request for determination of insured status or a request for initiation of a claim series within an established benefit year, with such ineligibility beginning with the effective date of such request, and continuing not less than five nor more than the next twenty-two consecutive weeks (in addition to the waiting period), as determined by the Commission in each case according to the seriousness of the misconduct. . . ." "(3) Failure to accept work. --(a) If the Commission finds that he has failed, without good cause, (i) either to apply for available suitable work, when so directed by the employment office or the Commission, (ii) to accept available suitable work when offered him by the employment office or the employer or (iii) to return to his customary self employment (if any) when so directed by the Commission, such ineligibility shall continue for a period of five weeks (the week in which such failure occurred and the next four weeks in addition to the waiting period) as determined by the Commission according to the circumstances in each case. . . ." "(b) In determining whether or not any work is suitable for an individual, the Commission shall consider the degree of risk involved to his health, safety and morals, his physical fitness and prior training, his experience and prior earnings, his length of unemployment and prospects for securing local work in his customary occupation and the distance of the available work from his residence." [ Footnote 4 ] It has been suggested that appellant is not within the class entitled to benefits under the South Carolina statute because her unemployment did not result from discharge or layoff due to lack of work. It is true that unavailability for work for some personal reasons not having to do with matters of conscience or religion has been held to be a basis of disqualification for benefits. See, e.g., Judson Mills v. South Carolina Unemployment Compensation Comm'n, 204 S.C. 37, 28 S.E.2d 535; Stone Mfg. Co. v. South Carolina Employment Security Comm'n, 219 S.C. 239, 64 S.E.2d 644 . But appellant claims that the Free Exercise Clause prevents the State from basing the denial of benefits upon the "personal reason" she gives for not working on Saturday. Where the consequence of disqualification so directly affects First Amendment rights, surely we should not conclude that every "personal reason" is a basis for disqualification in the absence of explicit language to that effect in the statute or decisions of the South Carolina Supreme Court. Nothing we have found in the statute or in the cited decisions, cf. Lee v. Spartan Mills, 7 CCH Unemployment Ins.Rep. S.C. � 8156 (C.P. 1944), and certainly nothing in the South Carolina Court's opinion in this case so construes the statute. Indeed, the contrary seems to have been that court's basic assumption, for if the eligibility provisions were thus limited, it would have been unnecessary for the court to have decided appellant's constitutional challenge to the application of the statute under the Free Exercise Clause. Likewise, the decision of the State Supreme Court does not rest upon a finding that appellant was disqualified for benefits because she had been "discharged for misconduct" -- by reason of her Saturday absences -- within the meaning of § 68-114(2). That ground was not adopted by the South Carolina Supreme Court, and the appellees do not urge in this Court that the disqualification rests upon that ground. [ Footnote 5 ] In a closely analogous context, this Court said: ". . . the fact that no direct restraint or punishment is imposed upon speech or assembly does not determine the free speech question. Under some circumstances, indirect 'discouragements' undoubtedly have the same coercive effect upon the exercise of First Amendment rights as imprisonment, fines, injunctions or taxes. A requirement that adherents of particular religious faiths or political parties wear identifying arm-bands, for example, is obviously of this nature." American Communications Assn. v. Douds, 339 U. S. 382 , 339 U. S. 402 . Cf. Smith v. California, 361 U. S. 147 , 361 U. S. 153 -155. [ Footnote 6 ] See, for examples of conditions and qualifications upon governmental privileges and benefits which have been invalidated because of their tendency to inhibit constitutionally protected activity, Steinberg v. United States, 143 Ct.Cl. 1, 163 F. Supp. 590; Syrek v. California Unemployment Ins. Board, 54 Cal. 2d 519 , 354 P.2d 625; Fino v. Maryland Employment Security Board, 218 Md. 504, 147 A.2d 738; Chicago Housing Authority v. Blackman, 4 Ill. 2d 319 , 122 N.E.2d 522 ; Housing Authority of Los Angeles v. Cordova, 130 Cal. App. 2d 883, 279 P.2d 215; Lawson v. Housing Authority of Milwaukee, 270 Wis. 269, 70 N.W.2d 605; Danskin v. San Diego Unified School District, 28 Cal. 2d 536 , 171 P.2d 885; American Civil Liberties Union v. Board of Education, 55 Cal. 2d 167 , 359 P.2d 45; cf. City of Baltimore v. A. S. Abell Co., 218 Md. 273, 145 A.2d 111. See also Willcox, Invasions of the First Amendment Through Conditioned Public Spending, 41 Cornell L.Q. 12 (1955); Emerson, Toward a General Theory of the First Amendment, 72 Yale L.J. 877, 942-943 (1963); 36 N.Y.U.L.Rev. 1052 (1961); 9 Kan.L.Rev. 346 (1961); Note, Unconstitutional Conditions, 73 Harv.L.Rev. 1595, 1599-1602 (1960). [ Footnote 7 ] We note that, before the instant decision, state supreme courts had, without exception, granted benefits to persons who were physically available for work but unable to find suitable employment solely because of a religious prohibition against Saturday work. E.g., In re Miller, 243 N.C. 509, 91 S.E.2d 241 ; Swenson v. Michigan Employment Security Comm'n, 340 Mich. 430, 65 N.W.2d 709 ; Tary v. Board of Review, 161 Ohio St. 251, 119 N.E.2d 56. Cf. Kut v. Albers Super Markets, Inc., 146 Ohio St. 522, 66 N.E.2d 643, appeal dismissed sub nom. Kut v. Bureau of Unemployment Compensation, 329 U.S. 669. One author has observed, "the law was settled that conscientious objections to work on the Sabbath made such work unsuitable, and that such objectors were nevertheless available for work. . . . A contrary opinion would make the unemployment compensation law unconstitutional as a violation of freedom of religion. Religious convictions, strongly held, are so impelling as to constitute good cause for refusal. Since availability refers to suitable work, religious observers were not unavailable because they excluded Sabbath work." Altman, Availability for Work: A Study in Unemployment Compensation (1950), 187. See also Sanders, Disqualification for Unemployment Insurance, 8 Vand.L.Rev. 307, 327-328 (1955); 34 N.C.L.Rev. 591 (1956); cf. Freeman, Able To Work and Available for Work, 55 Yale L.J. 123, 131 (1945). Of the 47 States which have eligibility provisions similar to those of the South Carolina statute, only 28 appear to have given administrative rulings concerning the eligibility of persons whose religious convictions prevented them from accepting available work. Twenty-two of those States have held such persons entitled to benefits, although apparently only one such decision rests exclusively upon the federal constitutional ground which constitutes the basis of our decision. See 111 U. of Pa.L.Rev. 253, and n. 3 (1962); 34 N.C.L.Rev. 591, 602, n. 60 (1956). [ Footnote 8 ] See Note, State Sunday Laws and the Religious Guarantees of the Federal Constitution, 73 Harv.L.Rev. 729, 741-745 (1960). [ Footnote 9 ] These considerations also distinguish the quite different case of Flemming v. Nestor, supra, upon which appellees rely. In that case, the Court found that the compelling federal interests which underlay the decision of Congress to impose such a disqualification justified whatever effect the denial of social security benefits may have had upon the disqualified class. See 363 U.S. at 363 U. S. 612 . And compare Torcaso v. Watkins, supra, in which an undoubted state interest in ensuring the veracity and trustworthiness of Notaries Public was held insufficient to justify the substantial infringement upon the religious freedom of applicants for that position which resulted from a required oath of belief in God. See 74 Harv.L.Rev. 611, 612-613 (1961); 109 U. of Pa.L.Rev. 611, 614-616 (1961). MR. JUSTICE DOUGLAS, concurring. The case we have for decision seems to me to be of small dimensions, though profoundly important. The question is whether the South Carolina law which denies unemployment compensation to a Seventh-day Adventist who, because of her religion, has declined to work on her Sabbath, is a law "prohibiting the free exercise" of religion as those words are used in the First Amendment. Page 374 U. S. 411 It seems obvious to me that this law does run afoul of that clause. Religious scruples of Moslems require them to attend a mosque on Friday and to pray five times daily. [ Footnote 2/1 ] Religious scruples of a Sikh require him to carry a regular or a symbolic sword. Rex v. Sinh, 39 A.I.R. 53 (Allahabad, 1952). Religious scruples of a Jehovah's Witness teach him to be a colporteur, going from door to door, from town to town, distributing his religious pamphlets. See Murdock v. Pennsylvania, 319 U. S. 105 . Religious scruples of a Quaker compel him to refrain from swearing and to affirm, instead. See King v. Fearson, Fed.Cas. No. 7,790, 14 Fed.Cas. 520; 1 U.S.C. § 1; Federal Rules of Civil Procedure, Rule 43(d); United States v. Schwimmer, 279 U. S. 644 , 279 U. S. 655 (dissenting opinion). Religious scruples of a Buddhist may require him to refrain from partaking of any flesh, even of fish. [ Footnote 2/2 ] The examples could be multiplied, including those of the Seventh-day Adventist, whose Sabbath is Saturday and who is advised not to eat some meats. [ Footnote 2/3 ] These suffice, however, to show that many people hold beliefs alien to the majority of our society -- beliefs that are protected by the First Amendment but which could easily be trod upon under the guise of "police" or "health" regulations reflecting the majority's views. Some have thought that a majority of a community can, through state action, compel a minority to observe their particular religious scruples so long as the majority's rule can be said to perform some valid secular function. Page 374 U. S. 412 That was the essence of the Court's decision in the Sunday Blue Law Cases ( Gallagher v. Crown Kosher Market, 366 U. S. 617 ; Braunfeld v. Brown, 366 U. S. 599 ; McGowan v. Maryland, 366 U. S. 420 ), a ruling from which I then dissented ( McGowan v. Maryland, supra, pp. 366 U. S. 575 -576) and still dissent. See Arlan's Dept. Store v. Kentucky, 371 U. S. 218 . That ruling of the Court travels part of the distance that South Carolina asks us to go now. She asks us to hold that, when it comes to a day of rest, a Sabbatarian must conform with the scruples of the majority in order to obtain unemployment benefits. The result turns not on the degree of injury, which may indeed be nonexistent by ordinary standards. The harm is the interference with the individual's scruples or conscience -- an important area of privacy which the First Amendment fences off from government. The interference here is as plain as it is in Soviet Russia, where a churchgoer is given a second-class citizenship, resulting in harm, though perhaps not in measurable damages. This case is resolvable not in terms of what an individual can demand of government, but solely in terms of what government may not do to an individual in violation of his religious scruples. The fact that government cannot exact from me a surrender of one iota of my religious scruples does not, of course, mean that I can demand of government a sum of money, the better to exercise them. For the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government. Those considerations, however, are not relevant here. If appellant is otherwise qualified for unemployment benefits, payments will be made to her not as a Seventhday Adventist, but as an unemployed worker. Conceivably these payments will indirectly benefit her church, Page 374 U. S. 413 but no more so than does the salary of any public employee. Thus, this case does not involve the problems of direct or indirect state assistance to a religious organization -- matters relevant to the Establishment Clause, not in issue here. [ Footnote 2/1 ] See Shorter Encyclopaedia of Islam (Cornell Press, 1953), 336, 493. [ Footnote 2/2 ] See Narasu, The Essence of Buddhism (3d ed.1948), 52-55; 6 Encyclopaedia of Religion and Ethics (1913), 63-65. [ Footnote 2/3 ] See Seventh-day Adventists Answer Questions on Doctrine (1957), 149-153, 622-624; Mitchell, Seventh-Day Adventists (1st ed.1958), 127, 176-178. MR. JUSTICE STEWART, concurring in the result. Although fully agreeing with the result which the Court reaches in this case, I cannot join the Court's opinion. This case presents a double-barreled dilemma which, in all candor, I think the Court's opinion has not succeeded in papering over. The dilemma ought to be resolved. I Twenty-three years ago, in Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 303 , the Court said that both the Establishment Clause and the Free Exercise Clause of the First Amendment were made wholly applicable to the States by the Fourteenth Amendment. In the intervening years, several cases involving claims of state abridgment of individual religious freedom have been decided here -- most recently, Braunfeld v. Brown, 366 U. S. 599 , and Torcaso v. Watkins, 367 U. S. 488 . During the same period, "cases dealing with the specific problems arising under the Establishment' Clause which have reached this Court are few in number." [ Footnote 3/1 ] The most recent are last Term's Engel v. Vitale, 370 U. S. 421 , and this Term's Schempp and Murray cases, ante, p. 374 U. S. 203 . I am convinced that no liberty is more essential to the continued vitality of the free society which our Constitution guarantees than is the religious liberty protected by the Free Exercise Clause explicit in the First Amendment and imbedded in the Fourteenth. And I regret that, on Page 374 U. S. 414 occasion, and specifically in Braunfeld v. Brown, supra, the Court has shown what has seemed to me a distressing insensitivity to the appropriate demands of this constitutional guarantee. By contrast, I think that the Court's approach to the Establishment Clause has, on occasion, and specifically in Engel, Schempp and Murray, been not only insensitive but positively wooden, and that the Court has accorded to the Establishment Clause a meaning which neither the words, the history, nor the intention of the authors of that specific constitutional provision even remotely suggests. But my views as to the correctness of the Court's decisions in these cases are beside the point here. The point is that the decisions are on the books. And the result is that there are many situations where legitimate claims under the Free Exercise Clause will run into head-on collision.with the Court's insensitive and sterile construction of the Establishment Clause. [ Footnote 3/2 ] The controversy now before us is clearly such a case. Because the appellant refuses to accept available jobs which would require her to work on Saturdays, South Carolina has declined to pay unemployment compensation benefits to her. Her refusal to work on Saturdays is based on the tenets of her religious faith. The Court says that South Carolina cannot, under these circumstances, declare her to be not "available for work" within the meaning of its statute, because to do so would violate her constitutional right to the free exercise of her religion. Yet what this Court has said about the Establishment Clause must inevitably lead to a diametrically opposite result. If the appellant's refusal to work on Saturdays Page 374 U. S. 415 were based on indolence, or on a compulsive desire to watch the Saturday television programs, no one would say that South Carolina could not hold that she was not "available for work" within the meaning of its statute. That being so, the Establishment Clause, as construed by this Court, not only permits but affirmatively requires South Carolina equally to deny the appellant's claim for unemployment compensation when her refusal to work on Saturdays is based upon her religious creed. For, as said in Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 11 , the Establishment Clause bespeaks "a government . . . stripped of all power . . . to support, or otherwise to assist any or all religions. . . ," and no State "can pass laws which aid one religion. . . ." Id. at 330 U. S. 15 . In Mr. Justice Rutledge's words, adopted by the Court today in Schempp, ante, p. 374 U. S. 217 , the Establishment Clause forbids "every form of public aid or support for religion." 330 U.S. at 330 U. S. 32 . In the words of the Court in Engel v. Vitale, 370 U.S. at 370 U. S. 431 , reaffirmed today in the Schempp case, ante, p. 374 U. S. 221 , the Establishment Clause forbids the "financial support of government" to be "placed behind a particular religious belief." To require South Carolina to so administer its laws as to pay public money to the appellant under the circumstances of this case is thus clearly to require the State to violate the Establishment Clause as construed by this Court. This poses no problem for me, because I think the Court's mechanistic concept of the Establishment Clause is historically unsound and constitutionally wrong. I think the process of constitutional decision in the area of the relationships between government and religion demands considerably more than the invocation of broadbrushed rhetoric of the kind I have quoted. And I think that the guarantee of religious liberty embodied in the Free Exercise Clause affirmatively requires government to create an atmosphere of hospitality and accommodation Page 374 U. S. 416 to individual belief or disbelief. In short, I think our Constitution commands the positive protection by government of religious freedom -- not only for a minority, however small -- not only for the majority, however large -- but for each of us. South Carolina would deny unemployment benefits to a mother unavailable for work on Saturdays because she was unable to get a babysitter. [ Footnote 3/3 ] Thus, we do not have before us a situation where a State provides unemployment compensation generally, and singles out for disqualification only those persons who are unavailable for work on religious grounds. This is not, in short, a scheme which operates so as to discriminate against religion as such. But the Court nevertheless holds that the State must prefer a religious over a secular ground for being unavailable for work -- that state financial support of the appellant's religion is constitutionally required to carry out "the governmental obligation of neutrality in the face of religious differences. . . ." Yet in cases decided under the Establishment Clause, the Court has decreed otherwise. It has decreed that government must blind itself to the differing religious beliefs and traditions of the people. With all respect, I think it is the Court's duty to face up to the dilemma posed by the conflict between the Free Exercise Clause of the Constitution and the Establishment Clause as interpreted by the Court. It is a duty, I submit, which we owe to the people, the States, and the Nation, and a duty which we owe to ourselves. For so long as the resounding but fallacious fundamentalist rhetoric of some of our Establishment Clause opinions remains on our books, to be disregarded at will, as in the present case, Page 374 U. S. 417 or to be undiscriminatingly invoked, as in the Schempp case, ante, p. 374 U. S. 203 , so long will the possibility of consistent and perceptive decision in this most difficult and delicate area of constitutional law be impeded and impaired. And so long, I fear, will the guarantee of true religious freedom in our pluralistic society be uncertain and insecure. II My second difference with the Court's opinion is that I cannot agree that today's decision can stand consistently with Braunfeld v. Brown, supra. The Court says that there was a "less direct burden upon religious practices" in that case than in this. With all respect, I think the Court is mistaken, simply as a matter of fact. The Braunfeld case involved a state criminal statute. The undisputed effect of that statute, as pointed out by MR. JUSTICE BRENNAN in his dissenting opinion in that case, was that "'Plaintiff, Abraham Braunfeld, will be unable to continue in his business if he may not stay open on Sunday, and he will thereby lose his capital investment.' In other words, the issue in this case -- and we do not understand either appellees or the Court to contend otherwise -- is whether a State may put an individual to a choice between his business and his religion." 366 U.S. at 366 U. S. 611 . The impact upon the appellant's religious freedom in the present case is considerably less onerous. We deal here not with a criminal statute, but with the particularized administration of South Carolina's Unemployment Compensation Act. Even upon the unlikely assumption that the appellant could not find suitable non-Saturday employment, [ Footnote 3/4 ] the appellant, at the worst, would be denied Page 374 U. S. 418 a maximum of 22 weeks of compensation payments. I agree with the Court that the possibility of that denial is enough to infringe upon the appellant's constitutional right to the free exercise of her religion. But it is clear to me that, in order to reach this conclusion, the Court must explicitly reject the reasoning of Braunfeld v. Brown. I think the Braunfeld case was wrongly decided, and should be overruled, and accordingly I concur in the result reached by the Court in the case before us. [ Footnote 3/1 ] McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 442 . [ Footnote 3/2 ] The obvious potentiality of such collision has been studiously ignored by the Court, but has not escaped the perception of commentators. See, e.g., Katz, Freedom of Religion and State Neutrality, 20 U. of Chi.L.Rev. 426, 428 (1953); Kauper, Prayer, Public Schools and the Supreme Court, 61 Mich.L.Rev. 1031, 1053 (1963). [ Footnote 3/3 ] See Judson Mills v. South Carolina Unemployment Compensation Comm'n, 204 S.C. 37, 28 S.E.2d 535; Hartsville Cotton Mill v. South Carolina Employment Security Comm'n, 224 S.C. 407, 79 S.E.2d 381 . [ Footnote 3/4 ] As noted by the Court, "The record indicates that of the 150 or more Seventh-day Adventists in the Spartanburg area, only appellant and one other have been unable to find suitable non-Saturday employment." Ante, p. 374 U. S. 399 , n. 2. MR. JUSTICE HARLAN, whom MR. JUSTICE WHITE joins, dissenting. Today's decision is disturbing both in its rejection of existing precedent and in its implications for the future. The significance of the decision can best be understood after an examination of the state law applied in this case. South Carolina's Unemployment Compensation Law was enacted in 1936 in response to the grave social and economic problems that arose during the depression of that period. As stated in the statute itself: "Economic insecurity due to unemployment is a serious menace to health, morals and welfare of the people of this State; involuntary unemployment is therefore a subject of general interest and concern . . . ; the achievement of social security requires protection against this greatest hazard of our economic life; this can be provided by encouraging the employers to provide more stable employment and by the systematic accumulation of funds during periods of employment to provide benefits for periods of unemployment, thus maintaining purchasing power and limiting the serious social consequences of poor relief assistance." § 68-38. (Emphasis added.) Page 374 U. S. 419 Thus, the purpose of the legislature was to tide people over, and to avoid social and economic chaos, during periods when work was unavailable. But, at the same time, there was clearly no intent to provide relief for those who, for purely personal reasons, were or became unavailable for work. In accordance with this design, the legislature provided, in § 68-113, that "[a]n unemployed insured worker shall be eligible to receive benefits with respect to any week only if the Commission finds that . . . [h]e is able to work and is available for work. . . ." (Emphasis added.) The South Carolina Supreme Court has uniformly applied this law in conformity with its clearly expressed purpose. It has consistently held that one is not "available for work" if his unemployment has resulted not from the inability of industry to provide a job, but rather from personal circumstances, no matter how compelling. The reference to "involuntary unemployment" in the legislative statement of policy, whatever a sociologist, philosopher, or theologian might say, has been interpreted not to embrace such personal circumstances. See, e.g., Judson Mills v. South Carolina Unemployment Compensation Comm'n, 204 S.C. 37, 28 S.E.2d 535 (claimant was "unavailable for work" when she became unable to work the third shift, and limited her availability to the other two, because of the need to care for her four children); Stone Mfg. Co. v. South Carolina Employment Security Comm'n, 219 S.C. 239, 64 S.E.2d 644 ; Hartsville Cotton Mill v. South Carolina Employment Security Comm'n, 224 S.C. 407, 79 S.E.2d 381 . In the present case, all that the state court has done is to apply these accepted principles. Since virtually all of the mills in the Spartanburg area were operating on a six-day week, the appellant was "unavailable for work," and thus ineligible for benefits, when personal considerations Page 374 U. S. 420 prevented her from accepting employment on a full-time basis in the industry and locality in which she had worked. The fact that these personal considerations sprang from her religious convictions was wholly without relevance to the state court's application of the law. Thus, in no proper sense can it be said that the State discriminated against the appellant on the basis of her religious beliefs or that she was denied benefits because she was a Seventh-day Adventist. She was denied benefits just as any other claimant would be denied benefits who was not "available for work" for personal reasons. [ Footnote 4/1 ] With this background, this Court's decision comes into clearer focus. What the Court is holding is that, if the State chooses to condition unemployment compensation on the applicant's availability for work, it is constitutionally compelled to carve out an exception -- and to provide benefits -- for those whose unavailability is due to their religious convictions. [ Footnote 4/2 ] Such a holding has particular significance in two respects. Page 374 U. S. 421 First, despite the Court's protestations to the contrary, the decision necessarily overrules Braunfeld v. Brown, 366 U. S. 599 , which held that it did not offend the "Free Exercise" Clause of the Constitution for a State to forbid a Sabbatarian to do business on Sunday. The secular purpose of the statute before us today is even clearer than that involved in Braunfeld. And just as in Braunfeld -- where exceptions to the Sunday closing laws for Sabbatarians would have been inconsistent with the purpose to achieve a uniform day of rest and would have required case-by-case inquiry into religious beliefs -- so here, an exception to the rules of eligibility based on religious convictions would necessitate judicial examination of those convictions and would be at odds with the limited purpose of the statute to smooth out the economy during periods of industrial instability. Finally, the indirect financial burden of the present law is far less than that involved in Braunfeld. Forcing a store owner to close his business on Sunday may well have the effect of depriving him of a satisfactory livelihood if his religious convictions require him to close on Saturday as well. Here we are dealing only with temporary benefits, amounting to a fraction of regular weekly wages and running for not more than 22 weeks. See §§ 68-104, 68-105. Clearly, any differences between this case and Braunfeld cut against the present appellant. [ Footnote 4/3 ] Page 374 U. S. 422 Second, the implications of the present decision are far more troublesome than its apparently narrow dimensions would indicate at first glance. The meaning of today's holding, as already noted, is that the State must furnish unemployment benefits to one who is unavailable for work if the unavailability stems from the exercise of religious convictions. The State, in other words, must single out for financial assistance those whose behavior is religiously motivated, even though it denies such assistance to others whose identical behavior (in this case, inability to work on Saturdays) is not religiously motivated. It has been suggested that such singling out of religious conduct for special treatment may violate the constitutional limitations on state action. See Kurland, Of Church and State and The Supreme Court, 29 U. of Chi.L.Rev. l; cf. Cammarano v. United States, 358 U. S. 498 , 358 U. S. 515 (concurring opinion). My own view, however, is that, at least under the circumstances of this case, it would be a permissible accommodation of religion for the State, if it chose to do so, to create an exception to its eligibility requirements for persons like the appellant. The constitutional obligation of "neutrality," see School District of Abington Township v. Schempp, ante, p. 374 U. S. 222 , is not so narrow a channel that the slightest deviation from an absolutely straight course leads to condemnation. There are too many instances in which no such course can be charted, too many areas in which the pervasive activities of the State justify some special provision for religion to prevent it from being submerged by an all-embracing secularism. The State violates its obligation of neutrality Page 374 U. S. 423 when, for example, it mandates a daily religious exercise in its public schools, with all the attendant pressures on the school children that such an exercise entails. See Engel v. Vitale, 370 U. S. 421 ; School District of Abington Township v. Schempp, supra. But there is, I believe, enough flexibility in the Constitution to permit a legislative judgment accommodating an unemployment compensation law to the exercise of religious beliefs such as appellant's. For very much the same reasons, however, I cannot subscribe to the conclusion that the State is constitutionally compelled to carve out an exception to its general rule of eligibility in the present case. Those situations in which the Constitution may require special treatment on account of religion are, in my view, few and far between, and this view is amply supported by the course of constitutional litigation in this area. See, e.g., Braunfeld v. Brown, supra; Cleveland v. United States, 329 U. S. 14 ; Prince v. Massachusetts, 321 U. S. 158 ; Jacobson v. Massachusetts, 197 U. S. 11 ; Reynolds v. United States, 98 U. S. 145 . Such compulsion in the present case is particularly inappropriate in light of the indirect, remote, and insubstantial effect of the decision below on the exercise of appellant's religion and in light of the direct financial assistance to religion that today's decision requires. For these reasons I respectfully dissent from the opinion and judgment of the Court. [ Footnote 4/4 ] [ Footnote 4/1 ] I am completely at a loss to understand note 4 of the Court's opinion Certainly the Court is not basing today's decision on the unsupported supposition that, some day, the South Carolina Supreme Court may conclude that there is some personal reason for unemployment that may not disqualify a claimant for relief. In any event, I submit it is perfectly clear that South Carolina would not compensate persons who became unemployed for any personal reason, as distinguished from layoffs or lack of work, since the State Supreme Court's decisions make it plain that such persons would not be regarded as "available for work" within the manifest meaning of the eligibility requirements. Nor can I understand what this Court means when it says that, "if the eligibility provisions were thus limited, it would have been unnecessary for the [South Carolina] court to have decided appellant's constitutional challenge. . . ." [ Footnote 4/2 ] The Court does suggest, in a rather startling disclaimer, ante, pp. 374 U. S. 409 -410, that its holding is limited in applicability to those whose religious convictions do not make them "nonproductive" members of society, noting that most of the Seventh-day Adventists in the Spartanburg area are employed. But surely this disclaimer cannot be taken seriously, for the Court cannot mean that the case would have come out differently if none of the Seventh-day Adventists in Spartanburg had been gainfully employed, or if the appellant's religion had prevented her from working on Tuesdays, instead of Saturdays. Nor can the Court be suggesting that it will make a value judgment in each case as to whether a particular individual's religious convictions prevent him from being "productive." I can think of no more inappropriate function for this Court to perform. [ Footnote 4/3 ] The Court's reliance on South Carolina Code § 64, ante, p. 374 U. S. 406 , to support its conclusion with respect to free exercise, is misplaced. Section 64-4, which is not a part of the Unemployment Compensation Law, is an extremely narrow provision that becomes operative only during periods of national emergency, and thus has no bearing in the circumstances of the present case. And plainly, under our decisions in the "Sunday law" cases, appellant can derive no support for her position from the State's general statutory provisions setting aside Sunday as a uniform day of rest. [ Footnote 4/4 ] Since the Court states, ante, p. 374 U. S. 410 , that it does not reach the appellant's "equal protection" argument, based upon South Carolina's emergency Sunday work provisions, §§ 64-4, 64-6, I do not consider it appropriate for me to do so.

In Sherbert v. Verner, the US Supreme Court ruled that South Carolina's denial of unemployment benefits to someone who refused Saturday work due to religious beliefs violated the Free Exercise Clause of the First Amendment. The Court held that the state's interest in enforcing eligibility requirements for unemployment benefits did not justify infringing on the appellant's religious freedom. This decision upheld the right to free exercise of religion without state interference.

Religion

Stone v. Graham

https://supreme.justia.com/cases/federal/us/449/39/

U.S. Supreme Court Stone v. Graham, 449 U.S. 39 (1980) Stone v. Graham No. 80-321 Decided November 17, 1980 449 U.S. 39 ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF KENTUCKY Syllabus Held: A Kentucky statute requiring the posting of a copy of the Ten Commandments, purchased with private contributions, on the wall of each public school classroom in the State has no secular legislative purpose, and therefore is unconstitutional as violating the Establishment Clause of the First Amendment. While the state legislature required the notation in small print at the bottom of each display that "[t]he secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States," such an "avowed" secular purpose is not sufficient to avoid conflict with the First Amendment. The preeminent purpose of posting the Ten Commandments, which do not confine themselves to arguably secular matters, is plainly religious in nature, and the posting serves no constitutional educational function. Cf. Abington School District v. Schempp, 374 U. S. 203 . That the posted copies are financed by voluntary private contributions is immaterial, for the mere posting under the auspices of the legislature provides the official support of the state government that the Establishment Clause prohibits. Nor is it significant that the Ten Commandments are merely posted, rather than read aloud, for it is no defense to urge that the religious practices may be relatively minor encroachments on the First Amendment Certiorari granted; 599 S.W.2d 157 , reversed. PER CURIAM. Kentucky statute require the posting of a copy of the Ten Commandments, purchased with private contributions, on the wall of each public classroom in the State. [ Footnote 1 ] Petitioners, Page 449 U. S. 40 claiming that this statute violates the Establishment and Free Exercise Clauses of the First Amendment, [ Footnote 2 ] sought an injunction against its enforcement. The state trial court upheld the statute, finding that its "avowed purpose" was "secular and not religious," and that the statute would "neither advance nor inhibit any religion or religious group" nor involve the State excessively in religious matters. App. to Pet. for Cert. 38-39. The Supreme Court of the Commonwealth of Kentucky affirmed by an equally divided court. 599 S.W.2d 157 (1980). We reverse. This Court has announced a three-part test for determining whether a challenged state statute is permissible under the Establishment Clause of the United States Constitution: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . . ; finally the statute must not foster 'an excessive government entanglement with religion.'" Lemon v. Kurtzman, 403 U. S. 602 , 403 U. S. 612 -613 (1971) (citations omitted). If a statute violates any of these three principles, it must be Page 449 U. S. 41 struck down under the Establishment Clause. We conclude that Kentucky's statute requiring the posting of the Ten Commandments in public school rooms has no secular legislative purpose, and is therefore unconstitutional. The Commonwealth insists that the statute in question serves a secular legislative purpose, observing that the legislature required the following notation in small print at the bottom of each display of the Ten Commandments: "The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States." 1978 Ky. Acts, ch. 436, § 1 (effective June 17, 1978), Ky.Rev.Stat. § 158.178 (1980). The trial court found the "avowed" purpose of the statute to be secular, even as it labeled the statutory declaration "self-serving." App. to Pet. for Cert. 37. Under this Court's rulings, however, such an "avowed" secular purpose is not sufficient to avoid conflict with the First Amendment. In Abington School District v. Schempp, 374 U. S. 203 (1963), this Court held unconstitutional the daily reading of Bible verses and the Lord's Prayer in the public schools, despite the school district's assertion of such secular purposes as "the promotion of moral values, the contradiction to the materialistic trends of our times, the perpetuation of our institutions and the teaching of literature." Id. at 374 U. S. 223 . The preeminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, [ Footnote 3 ] and no legislative recitation of a supposed secular purpose can blind us to that fact. The Commandments do not confine themselves to arguably secular matters, such as honoring one's parents, killing or murder, Page 449 U. S. 42 adultery, stealing, false witness, and covetousness. See Exodus 20:12-17; Deuteronomy 5:16-21. Rather, the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord's name in vain, and observing the Sabbath Day. See Exodus 20:1-11; Deuteronomy 5:6-15. This is not a case in which the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like. Abington School District v. Schempp, supra at 374 U. S. 225 . Posting of religious texts on the wall serves no such educational function. If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause. It does not matter that the posted copies of the Ten Commandments are financed by voluntary private contributions, for the mere posting of the copies under the auspices of the legislature provides the "official support of the State . . . Government" that the Establishment Clause prohibits. 374 U.S. at 374 U. S. 222 ; see Engel v. Vitale, 370 U. S. 421 , 370 U. S. 431 (1962). [ Footnote 4 ] Nor is it significant that the Bible verses involved in this case are merely posted on the wall, rather than read aloud as in Schempp and Engel, for "it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment." Abington School District v. Schempp, supra, at 374 U. S. 225 . We conclude that Ky.Rev.Stat. Page 449 U. S. 43 § 158.178 (1980) violates the first part of the Lemon v. Kurtzman test, and thus the Establishment Clause of the Constitution. [ Footnote 5 ] The petition for a writ of certiorari is granted, and the judgment below is reversed. It is so ordered. THE CHIEF JUSTICE and JUSTICE BLACKMUN dissent. They would grant certiorari and give this case plenary consideration. JUSTICE STEWART dissents from this summary reversal of the courts of Kentucky, which, so far as appears, applied wholly correct constitutional criteria in reaching their decisions. [ Footnote 1 ] The statute provides in its entirety: "(1) It shall be the duty of the superintendent of public instruction, provided sufficient funds are available as provided in subsection (3) of this Section, to ensure that a durable, permanent copy of the Ten Commandments shall be displayed on a wall in each public elementary and secondary school classroom in the Commonwealth. The copy shall be sixteen (16) inches wide by twenty (20) inches high." "(2) In small print below the last commandment shall appear a notation concerning the purpose of the display, as follows: 'The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.'" "(3) The copies required by this Act shall be purchased with funds made available through voluntary contributions made to the state treasurer for the purposes of this Act." 1978 Ky. Acts, ch. 436, § 1 (effective June 17, 1978), Ky.Rev.Stat. § 158.178 (1980). [ Footnote 2 ] The First Amendment provides in relevant part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ." This prohibition is applicable to the States through the Fourteenth Amendment. Abington School District v. Schempp, 374 U. S. 203 , 374 U. S. 215 -216 (1963). [ Footnote 3 ] As this Court commented in Abington School District v. Schempp, supra at 374 U. S. 224 : "Surely the place of the Bible as an instrument of religion cannot be gainsaid. . . . " [ Footnote 4 ] Moreover, while the actual copies of the Ten Commandments were purchased through private contributions, the State nevertheless expended public money in administering the statute. For example, the statute requires that the state treasurer serve as a collecting agent for the contributions. Ky.Rev.Stat. § 158.178(3) (1980). [ Footnote 5 ] The Supreme Court cases cited by the dissenting opinion as contrary, Committee for Public Education v. Nyquist, 413 U. S. 756 (173); Sloan v. Lemon, 413 U. S. 825 (1973); Lemon v. Kurtzman, 403 U. S. 602 (1971); Board of Education v. Allen, 392 U. S. 236 (1968), are easily distinguishable: all are cases involving state assistance to private schools. Such assistance has the obvious legitimate secular purpose of promoting educational opportunity. The posting of the Ten Commandments on classroom walls has no such secular purpose. JUSTICE REHNQUIST, dissenting. With no support beyond its own ipse dixit, the Court concludes that the Kentucky statute involved in this case "has no secular legislative purpose," ante at 449 U. S. 41 (emphasis supplied), and that "[t]he preeminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature," ibid. This even though, as the trial court found, "[t]he General Assembly thought the statute had a secular legislative purpose, and specifically said so." App. to Pet. for Cert. 37. The Court's summary rejection of a secular purpose articulated by the legislature and confirmed by the state court is without precedent in Establishment Clause jurisprudence. This Court regularly looks to legislative articulations of a statute's purpose in Establishment Clause cases Page 449 U. S. 44 and accords such pronouncements the deference they are due. See, e.g., Committee for Public Education v. Nyquist, 413 U. S. 756 , 413 U. S. 773 (1973) ("we need touch only briefly on the requirement of a secular legislative purpose.' As the recitation of legislative purposes appended to New York's law indicates, each measure is adequately supported by legitimate, nonsectarian state interests"); Lemon v. Kurtzman, 403 U. S. 602 , 403 U. S. 613 (1971) ("the statutes themselves clearly state they are intended to enhance the quality of the secular education"); Sloan v. Lemon, 413 U. S. 825 , 413 U. S. 829 -830 (1973); Board of Education v. Allen, 392 U. S. 236 , 392 U. S. 243 (1968). See also Florey v. Sioux Falls School District, 619 F.2d 1311, 1314 (CA8) (upholding rules permitting public school Christmas observances with religious elements as promoting the articulated secular purpose of "advanc[ing] the student's knowledge and appreciation of the role that our religious heritage has played in the social, cultural and historical development of civilization"), cert. denied, post, p. 987. The fact that the asserted secular purpose may overlap with what some may see as a religious objective does not render it unconstitutional. As this Court stated in McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 445 (1961), in upholding the validity of Sunday closing laws, "the present purpose and effect of most of [these laws] is to provide a uniform day of rest for all citizens; the fact that this day is Sunday, a day of particular significance for the dominant Christian sects, does not bar the state from achieving its secular goals." Abington School District v. Schempp, 374 U. S. 203 (1963), repeatedly cited by the Court, is not to the contrary. No statutory findings of secular purpose supported the challenged enactments in that case. In one of the two cases considered in Abington School District, the trial court had determined that the challenged exercises were intended by the State to be religious exercises. Id. at 374 U. S. 223 . A contrary finding is presented here. In the other case, no specific finding had been Page 449 U. S. 45 made, and "the religious character of the exercise was admitted by the State," id. at 374 U. S. 224 . [ Footnote 2/1 ] The Court rejects the secular purpose articulated by the State because the Decalogue is "undeniably a sacred text," ante at 449 U. S. 41 . It is equally undeniable, however, as the elected representatives of Kentucky determined, that the Ten Commandments have had a significant impact on the development of secular legal codes of the Western World. The trial court concluded that evidence submitted substantiated this determination. App. to Pet. for Cert. 38. See also Anderson v. Salt Lake City Corp., 475 F.2d 29, 33 (CA10 1973) (upholding construction on public land of monument inscribed with Ten Commandments because they have "substantial secular attributes"). Certainly the State was permitted to conclude that a document with such secular significance should be placed before its students, with an appropriate statement of the document's secular import. See id. at 34 ("It does not seem reasonable to require removal of a passive monument, involving no compulsion, because its accepted precepts, as a foundation for law, reflect the religious nature of an ancient era"). [ Footnote 2/2 ] See also Opinion of the Justices, 108 N.H. 97, 228 A.2d 161 (1967) (upholding placement of plaques with the motto "In God We Trust" in public schools). The Establishment Clause does not require that the public sector be insulated from all things which may have a religious Page 449 U. S. 46 significance or origin. This Court has recognized that "religion has been closely identified with our history and government," Abington School District, supra at 374 U. S. 212 , and that "[t]he history of man is inseparable from the history of religion," Engel v. Vitale, 370 U. S. 421 , 370 U. S. 434 (1962). Kentucky has decided to make students aware of this fact by demonstrating the secular impact of the Ten Commandments. The words of Justice Jackson, concurring in McCollum v. Board of Education, 333 U. S. 203 , 333 U. S. 235 -236 (1948), merit quotation at length: "I think it remains to be demonstrated whether it is possible, even if desirable, to comply with such demands as plaintiff's completely to isolate and cast out of secular education all that some people may reasonably regard as religious instruction. Perhaps subjects such as mathematics, physics or chemistry are, or can be, completely secularized. But it would not seem practical to teach either practice or appreciation of the arts if we are to forbid exposure of youth to any religious influences. Music without sacred music, architecture minus the cathedral, or painting without the scriptural themes would be eccentric and incomplete, even from a secular point of view. . . . I should suppose it is a proper, if not an indispensable, part of preparation for a worldly life to know the roles that religion and religions have played in the tragic story of mankind. The fact is that, for good or for ill, nearly everything in our culture worth transmitting, everything which gives meaning to life, is saturated with religious influences, derived from paganism, Judaism, Christianity -- both Catholic and Protestant -- and other faiths accepted by a large part of the world's peoples. One can hardly respect the system of education that would leave the student wholly ignorant of the currents of religious thought that move the world society for a part in which he is being prepared. " Page 449 U. S. 47 I therefore dissent from what I cannot refrain from describing as a cavalier summary reversal, without benefit of oral argument or briefs on the merits, of the highest court of Kentucky. [ Footnote 2/1 ] The Court noted that even if the State's purpose were not strictly religious, "it is sought to be accomplished through readings, without comment, from the Bible." 374 U.S. at 374 U. S. 224 . Here, of course, there was no compelled reading, and there was comment accompanying the text of the Commandments, mandated by statute and focusing on their secular significance. [ Footnote 2/2 ] The Court's emphasis on the religious nature of the first part of the Ten Commandments is beside the point. The document as a whole has had significant secular impact, and the Constitution does not require that Kentucky students see only an expurgated or redacted version containing only the elements with directly traceable secular effects.

The Supreme Court of the United States ruled that a Kentucky statute requiring public schools to display the Ten Commandments with private funding violates the Establishment Clause of the First Amendment. The Court held that the statute had no secular legislative purpose and its primary effect was to advance religion. The Court also noted that the mere posting of the Ten Commandments, rather than reading them aloud, did not make it constitutional. The Court reversed the Kentucky Supreme Court's decision and ruled that the statute was unconstitutional.

Religion

Epperson v. Arkansas

https://supreme.justia.com/cases/federal/us/393/97/

U.S. Supreme Court Epperson v. Arkansas, 393 U.S. 97 (1968) Epperson v. Arkansas No. 7 Argued October 16, 1968 Decided November 12, 1968 393 U.S. 97 APPEAL FROM THE SUPREME COURT OF ARKANSAS Syllabus Appellant Epperson, an Arkansas public school teacher, brought this action for declaratory and injunctive relief challenging the constitutionality of Arkansas' "anti-evolution" statute. That statute makes it unlawful for a teacher in any state supported school or university to teach or to use a textbook that teaches "that mankind ascended or descended from a lower order of animals." The State Chancery Court held the statute an abridgment of free speech violating the First and Fourteenth Amendments. The State Supreme Court, expressing no opinion as to whether the statute prohibits "explanation" of the theory or only teaching that the theory is true, reversed the Chancery Court. In a two-sentence opinion, it sustained the statute as within the State's power to specify the public school curriculum. Held: The statute violates the Fourteenth Amendment, which embraces the First Amendment's prohibition of state laws respecting an establishment of religion. Pp. 393 U. S. 102 -109. (a) The Court does not decide whether the statute is unconstitutionally vague, since, whether it is construed to prohibit explaining the Darwinian theory or teaching that it is true, the law conflicts with the Establishment Clause. Pp. 393 U. S. 102 -103. (b) The sole reason for the Arkansas law is that a particular religious group considers the evolution theory to conflict with the account of the origin of man set forth in the Book of Genesis. Pp. 393 U. S. 103 , 393 U. S. 107 -109. (c) The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion. Pp. 393 U. S. 103 -107. (d) A State's right to prescribe the public school curriculum does not include the right to prohibit teaching a scientific theory or doctrine for reasons that run counter to the principles of the First Amendment. P. 393 U. S. 107 . (e) The Arkansas law is not a manifestation of religious neutrality. P. 393 U. S. 109 . 242 Ark. 922, 416 S.W.2d 322, reversed. Page 393 U. S. 98 MR. JUSTICE FORTAS delivered the opinion of the Court. I This appeal challenges the constitutionality of the "anti-evolution" statute which the State of Arkansas adopted in 1928 to prohibit the teaching in its public schools and universities of the theory that man evolved from other species of life. The statute was a product of the upsurge of "fundamentalist" religious fervor of the twenties. The Arkansas statute was an adaptation of the famous Tennessee "monkey law" which that State adopted in 1925. [ Footnote 1 ] The constitutionality of the Tennessee law was upheld by the Tennessee Supreme Court in the celebrated Scopes case in 1927. [ Footnote 2 ] The Arkansas law makes it unlawful for a teacher in any state supported school or university "to teach the Page 393 U. S. 99 theory or doctrine that mankind ascended or descended from a lower order of animals," or "to adopt or use in any such institution a textbook that teaches" this theory. Violation is a misdemeanor and subjects the violator to dismissal from his position. [ Footnote 3 ] The present case concerns the teaching of biology in a high school in Little Rock. According to the testimony, until the events here in litigation, the official textbook furnished for the high school biology course did not have a section on the Darwinian Theory. Then, for the academic year 1965-1966, the school administration, on recommendation of the teachers of biology in the school system, adopted and prescribed a textbook which contained a chapter setting forth "the theory about the origin . . . of man from a lower form of animal." Page 393 U. S. 100 Susan Epperson, a young woman who graduated from Arkansas' school system and then obtained her master's degree in zoology at the University of Illinois, was employed by the Little Rock school system in the fall of 1964 to teach 10th grade biology at Central High School. At the start of the next academic year, 1965, she was confronted by the new textbook (which one surmises from the record was not unwelcome to her). She faced at least a literal dilemma because she was supposed to use the new textbook for classroom instruction, and presumably to teach the statutorily condemned chapter; but to do so would be a criminal offense, and subject her to dismissal. She instituted the present action in the Chancery Court of the State, seeking a declaration that the Arkansas statute is void and enjoining the State and the defendant officials of the Little Rock school system from dismissing her for violation of the statute's provisions. H. H. Blanchard, a parent of children attending the public schools, intervened in support of the action. The Chancery Court, in an opinion by Chancellor Murray O. Reed, held that the statute violated the Fourteenth Amendment to the United States Constitution. [ Footnote 4 ] The court noted that this Amendment encompasses the prohibitions upon state interference with freedom of speech and thought which are contained in the First Amendment. Accordingly, it held that the challenged statute is unconstitutional because, in violation of the First Amendment, it "tends to hinder the quest for knowledge, restrict the freedom to learn, and restrain the freedom to teach." [ Footnote 5 ] In this perspective, the Act, Page 393 U. S. 101 it held, was an unconstitutional and void restraint upon the freedom of speech guaranteed by the Constitution. On appeal, the Supreme Court of Arkansas reversed. [ Footnote 6 ] Its two-sentence opinion is set forth in the margin. [ Footnote 7 ] It sustained the statute as an exercise of the State's power to specify the curriculum in public schools. It did not address itself to the competing constitutional considerations. Appeal was duly prosecuted to this Court under 28 U.S.C. § 1257(2). Only Arkansas and Mississippi have such "anti-evolution" or "monkey" laws on their books. [ Footnote 8 ] There is no record of any prosecutions in Arkansas Page 393 U. S. 102 under its statute. It is possible that the statute is presently more of a curiosity than a vital fact of life in these States. [ Footnote 9 ] Nevertheless, the present case was brought, the appeal as of right is properly here, and it is our duty to decide the issues presented. II At the outset, it is urged upon us that the challenged statute is vague and uncertain, and therefore within the condemnation of the Due Process Clause of the Fourteenth Amendment. The contention that the Act is vague and uncertain is supported by language in the brief opinion of Arkansas' Supreme Court. That court, perhaps reflecting the discomfort which the statute's quixotic prohibition necessarily engenders in the modern mind, [ Footnote 10 ] stated that it "expresses no opinion" as to whether the Act prohibits "explanation" of the theory of evolution or merely forbids "teaching that the theory is true." Regardless of this uncertainty, the court held that the statute is constitutional. On the other hand, counsel for the State, in oral argument in this Court, candidly stated that, despite the State Supreme Court's equivocation, Arkansas would interpret the statute "to mean that to make a student aware of the theory . . . just to teach that there was Page 393 U. S. 103 such a theory" would be grounds for dismissal and for prosecution under the statute, and he said "that the Supreme Court of Arkansas' opinion should be interpreted in that manner." He said: "If Mrs. Epperson would tell her students that 'Here is Darwin's theory, that man ascended or descended from a lower form of being,' then I think she would be, under this statute, liable for prosecution." In any event, we do not rest our decision upon the asserted vagueness of the statute. On either interpretation of its language, Arkansas' statute cannot stand. It is of no moment whether the law is deemed to prohibit mention of Darwin's theory or to forbid any or all of the infinite varieties of communication embraced within the term "teaching." Under either interpretation, the law must be stricken because of its conflict with the constitutional prohibition of state laws respecting an establishment of religion or prohibiting the free exercise thereof. The overriding fact is that Arkansas' law selects from the body of knowledge a particular segment which it proscribes for the sole reason that it is deemed to conflict with a particular religious doctrine; that is, with a particular interpretation of the Book of Genesis by a particular religious group. [ Footnote 11 ] III The antecedents of today's decision are many, and unmistakable. They are rooted in the foundation soil of our Nation. They are fundamental to freedom. Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, Page 393 U. S. 104 and practice. It may not be hostile to any religion or to the advocacy of no-religion, and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion. [ Footnote 12 ] As early as 1872, this Court said: "The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect." Watson v. Jones , 13 Wall. 679, 80 U. S. 728 . This has been the interpretation of the great First Amendment which this Court has applied in the many and subtle problems which the ferment of our national life has presented for decision within the Amendment's broad command. Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. Our courts, however, have not failed to apply the First Amendment's mandate in our educational system where essential to safeguard the fundamental values of freedom of speech and inquiry and of belief. By and large, public education in our Nation is committed to the control of state and local authorities. Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values. [ Footnote 13 ] On the other hand, "[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools," Shelton v. Tucker, 364 U. S. 479 , 364 U. S. 487 (1960). As this Page 393 U. S. 105 Court said in Keyishian v. Board of Regents, the First Amendment "does not tolerate laws that cast a pall of orthodoxy over the classroom." 385 U. S. 385 U.S. 589, 385 U. S. 603 (1967). The earliest cases in this Court on the subject of the impact of constitutional guarantees upon the classroom were decided before the Court expressly applied the specific prohibitions of the First Amendment to the States. But, as early as 1923, the Court did not hesitate to condemn under the Due Process Clause "arbitrary" restrictions upon the freedom of teachers to teach and of students to learn. In that year, the Court, in an opinion by Justice McReynolds, held unconstitutional an Act of the State of Nebraska making it a crime to teach any subject in any language other than English to pupils who had not passed the eighth grade. [ Footnote 14 ] The State's purpose in enacting the law was to promote civic cohesiveness by encouraging the learning of English and to combat the "baneful effect" of permitting foreigners to rear and educate their children in the language of the parents' native land. The Court recognized these purposes, and it acknowledged the State's power to prescribe the school curriculum, but it held that these were not adequate to support the restriction upon the liberty of teacher and pupil. The challenged statute, it held, unconstitutionally interfered with the right of the individual, guaranteed by the Due Process Clause, to engage in any of the common occupations of life and to acquire useful knowledge. Meyer v. Nebraska, 262 U. S. 390 (1923). See also Bartels v. Iowa, 262 U. S. 404 (1923). For purposes of the present case, we need not reenter the difficult terrain which the Court, in 1923, traversed without apparent misgivings. We need not take advantage of the broad premise which the Court's decision Page 393 U. S. 106 in Meyer furnishes, nor need we explore the implications of that decision in terms of the justiciability of the multitude of controversies that beset our campuses today. Today's problem is capable of resolution in the narrower terms of the First Amendment's prohibition of laws respecting an establishment of religion or prohibiting the free exercise thereof. There is and can be no doubt that the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma. In Everson v. Board of Education, this Court, in upholding a state law to provide free bus service to school children, including those attending parochial schools, said: "Neither [a] State nor the Federal Government can pass laws which aid one religion, aid all religions, or prefer one religion over another." 330 U. S. 1 , 330 U. S. 15 (1947). At the following Term of Court, in McCollum v. Board of Education, 333 U. S. 203 (1948), the Court held that Illinois could not release pupils from class to attend classes of instruction in the school buildings in the religion of their choice. This, it said, would involve the State in using tax supported property for religious purposes, thereby breaching the "wall of separation" which, according to Jefferson. the First Amendment was intended to erect between church and state. Id. at 333 U. S. 211 . See also Engel v. Vitale, 370 U. S. 421 (1962); Abington School District v. Schempp, 374 U. S. 203 (1963). While study of religions and of the Bible from a literary and historic viewpoint, presented objectively as part of a secular program of education, need not collide with the First Amendment's prohibition, the State may not adopt programs or practices in its public schools or colleges which "aid or oppose" any religion. Id. at 374 U. S. 225 . This prohibition is absolute. It forbids alike the preference of a religious doctrine or the prohibition Page 393 U. S. 107 of theory which is deemed antagonistic to a particular dogma. As Mr. Justice Clark stated in Joseph Burstyn Inc. v. Wilson, "the state has no legitimate interest in protecting any or all religions from views distasteful to them. . . ." 343 U. S. 495 , 343 U. S. 505 (1952). The test was stated as follows in Abington School District v. Schempp, supra, at 374 U. S. 222 : "[W]hat are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion, then the enactment exceeds the scope of legislative power as circumscribed by the Constitution." These precedents inevitably determine the result in the present case. The State's undoubted right to prescribe the curriculum for its public schools does not carry with it the right to prohibit, on pain of criminal penalty, the teaching of a scientific theory or doctrine where that prohibition is based upon reasons that violate the First Amendment. It is much too late to argue that the State may impose upon the teachers in its schools any conditions that it chooses, however restrictive they may be of constitutional guarantees. Keyishian v. Board of Regents, 385 U. S. 589 , 385 U. S. 605 -606 (1967). In the present case, there can be no doubt that Arkansas has sought to prevent its teachers from discussing the theory of evolution because it is contrary to the belief of some that the Book of Genesis must be the exclusive source of doctrine as to the origin of man. No suggestion has been made that Arkansas' law may be justified by considerations of state policy other than the religious views of some of its citizens. [ Footnote 15 ] It is clear Page 393 U. S. 108 that fundamentalist sectarian conviction was and is the law's reason for existence. [ Footnote 16 ] Its antecedent, Tennessee's "monkey law," candidly stated its purpose: to make it unlawful "to teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a Page 393 U. S. 109 lower order of animals. [ Footnote 17 ]" Perhaps the sensational publicity attendant upon the Scopes trial induced Arkansas to adopt less explicit language. [ Footnote 18 ] It eliminated Tennessee's reference to "the story of the Divine Creation of man" as taught in the Bible, but there is no doubt that the motivation for the law was the same: to suppress the teaching of a theory which, it was thought, "denied" the divine creation of man. Arkansas' law cannot be defended as an act of religious neutrality. Arkansas did not seek to excise from the curricula of its schools and universities all discussion of the origin of man. The law's effort was confined to an attempt to blot out a particular theory because of its supposed conflict with the Biblical account, literally read. Plainly, the law is contrary to the mandate of the First, and in violation of the Fourteenth, Amendments to the Constitution. The judgment of the Supreme Court of Arkansas is Reversed. [ Footnote 1 ] Chapter 27, Tenn. Acts 1925; Tenn.Code Ann. § 49-1922 (1966 Repl. Vol.). [ Footnote 2 ] Scopes v. State, 154 Tenn. 105, 289 S.W. 363 (1927). The Tennessee court, however, reversed Scopes' conviction on the ground that the jury, and not the judge, should have assessed the fine of $100. Since Scopes was no longer in the State's employ, it saw "nothing to be gained by prolonging the life of this bizarre case." It directed that a nolle prosequi be entered, in the interests of "the peace and dignity of the state." 154 Tenn. at 121, 289 S.W. at 367. [ Footnote 3 ] Initiated Act No. 1, Ark. Acts 1929; Ark.Stat.Ann. §§ 80-1627, 80-1628 (1960 Repl. Vol.). The text of the law is as follows: "§ 80-1627. -- Doctrine of ascent or descent of man from lower order of animals prohibited. -- It shall be unlawful for any teacher or other instructor in any University, College, Normal, Public School or other institution of the State, which is supported in whole or in part from public funds derived by State and local taxation to teach the theory or doctrine that mankind ascended or descended from a lower order of animals and also it shall be unlawful for any teacher, textbook commission, or other authority exercising the power to select textbooks for above mentioned educational institutions to adopt or use in any such institution a textbook that teaches the doctrine or theory that mankind descended or ascended from a lower order of animals." "§ 80-1628. -- Teaching doctrine or adopting textbook mentioning doctrine -- Penalties -- Positions to be vacated. -- Any teacher or other instructor or textbook commissioner who is found guilty of violation of this act by teaching the theory or doctrine mentioned in section 1 hereof, or by using, or adopting any such textbooks in any such educational institution shall be guilty of a misdemeanor and upon conviction shall be fined not exceeding five hundred dollars, and upon conviction shall vacate the position thus held in any educational institutions of the character above mentioned or any commission of which he may be a member." [ Footnote 4 ] The opinion of the Chancery Court is not officially reported. [ Footnote 5 ] The Chancery Court analyzed the holding of its sister State of Tennessee in the Scopes case sustaining Tennessee's similar statute. It refused to follow Tennessee's 1927 example. It declined to confine the judicial horizon to a view of the law as merely a direction by the State as employer to its employees. This sort of astigmatism, it held, would ignore overriding constitutional values, and "should not be followed," and it proceeded to confront the substance of the law and its effect. [ Footnote 6 ] 242 Ark. 922, 416 S.W.2d 322 (1967). [ Footnote 7 ] "Per Curiam. Upon the principal issue, that of constitutionality, the court holds that Initiated Measure No. 1 of 1928, Ark.Stat.Ann. § 80-1627 and § 80-1628 (Repl.1960), is a valid exercise of the state's power to specify the curriculum in its public schools. The court expresses no opinion on the question whether the Act prohibits any explanation of the theory of evolution or merely prohibits teaching that the theory is true; the answer not being necessary to a decision in the case, and the issue not having been raised." "The decree is reversed, and the cause dismissed." "Ward, J., concurs. Brown, J., dissents." "Paul Ward, Justice, concurring. I agree with the first sentence in the majority opinion." "To my mind, the rest of the opinion beclouds the clear announcement made in the first sentence." [ Footnote 8 ] Miss.Code Ann. §§ 6798, 6799 (1942). Ark.Stat.Ann. §§ 80-1627, 80-1628 (1960 Repl. Vol.). The Tennessee law was repealed in 1967. Oklahoma enacted an anti-evolution law, but it was repealed in 1926. The Florida and Texas Legislatures, in the period between 1921 and 1929, adopted resolutions against teaching the doctrine of evolution. In all, during that period, bills to this effect were introduced in 20 States. American Civil Liberties Union (ACLU), The Gag on Teaching 8 (2d ed., 1937). [ Footnote 9 ] Clarence Darrow, who was counsel for the defense in the Scopes trial, in his biography, published in 1932, somewhat sardonically pointed out that States with anti-evolution laws did not insist upon the fundamentalist theory in all respects. He said: "I understand that the States of Tennessee and Mississippi both continue to teach that the earth is round and that the revolution on its axis brings the day and night, in spite of all opposition." The Story of My Life 247 (1932). [ Footnote 10 ] R. Hofstadter & W. Metzger, in The Development of Academic Freedom in the United States 324 (1955), refer to some of Darwin's opponents as "exhibiting a kind of phylogenetic snobbery [which led them] to think that Darwin had libeled the [human] race by discovering simian, rather than seraphic, ancestors." [ Footnote 11 ] In Scopes v. State, 154 Tenn. 105, 126, 289 S.W. 363, 369 (1927), Judge Chambliss, concurring, referred to the defense contention that Tennessee's anti-evolution law gives a "preference" to "religious establishments which have as one of their tenets or dogmas the instantaneous creation of man." [ Footnote 12 ] Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 18 (1947); McCollum v. Board of Education, 333 U. S. 203 (1948); Zorach v. Clauson, 343 U. S. 306 , 343 U. S. 313 -314 (1952); Fowler v. Rhode Island, 345 U. S. 67 (1953); Torcaso v. Watkins, 367 U. S. 488 , 367 U. S. 495 (1961). [ Footnote 13 ] See the discussion in Developments in The Law -- Academic Freedom, 81 Harv.L.Rev. 1045, 1051-1055 (1968). [ Footnote 14 ] The case involved a conviction for teaching "the subject of reading in the German language" to a child of 10 years. [ Footnote 15 ] Former Dean Leflar of the University of Arkansas School of Law has stated that "the same ideological considerations underlie the anti-evolution enactment" as underlie the typical blasphemy statute. He says that the purpose of these statutes is an "ideological" one which "involves an effort to prevent (by censorship) or punish the presentation of intellectually significant matter which contradicts accepted social, moral or religious ideas." Leflar, Legal Liability for the Exercise of Free Speech, 10 Ark.L.Rev. 155, 158 (1956). See also R. Hofstadter & W. Metzger, The Development of Academic Freedom in the United States 320-366 (1955) ( passim ); H. Beale, A History of Freedom of Teaching in American Schools 202-207 (1941); Emerson & Haber, The Scopes Case in Modern Dress, 27 U.Chi.L.Rev. 522 (1960); Waller, The Constitutionality of the Tennessee Anti-Evolution Act, 35 Yale L.J.191 (1925) ( passim ); ACLU, The Gag on Teaching 7 (2d ed., 1937); J. Scopes & J. Presley, Center of the Storm 45-53 (1967). [ Footnote 16 ] The following advertisement is typical of the public appeal which was used in the campaign to secure adoption of the statute: " THE BIBLE OR ATHEISM, WHICH?" "All atheists favor evolution. If you agree with atheism, vote against Act No. 1. If you agree with the Bible, vote for Act No. 1. . . . Shall conscientious church members be forced to pay taxes to support teachers to teach evolution which will undermine the faith of their children? The Gazette said Russian Bolshevists laughed at Tennessee. True, and that sort will laugh at Arkansas. Who cares? Vote FOR ACT No. 1." The Arkansas Gazette, Little Rock, Nov. 4, 1928, p. 12, cols. 4-5. Letters from the public expressed the fear that teaching of evolution would be "subversive of Christianity," id. Oct. 24, 1928, p. 7, col. 2; see also id., Nov. 4, 1928, p. 19, col. 4, and that it would cause school children "to disrespect the Bible," id. Oct. 27, 1928, p. 15, col. 5. One letter read: "The cosmogony taught by [evolution] runs contrary to that of Moses and Jesus, and, as such, is nothing, if anything at all, but atheism. . . . Now let the mothers and fathers of our state that are trying to raise their children in the Christian faith arise in their might and vote for this anti-evolution bill that will take it out of our tax-supported schools. When they have saved the children, they have saved the state." Id. at cols. 4-5. [ Footnote 17 ] Arkansas' law was adopted by popular initiative in 1928, three years after Tennessee's law was enacted and one year after the Tennessee Supreme Court's decision in the Scopes case, supra. [ Footnote 18 ] In its brief, the State says that the Arkansas statute was passed with the holding of the Scopes case in mind. Brief for Appellee 1. MR. JUSTICE BLACK, concurring. I am by no means sure that this case presents a genuinely justiciable case or controversy. Although Arkansas Initiated Act No. 1, the statute alleged to be unconstitutional, was passed by the voters of Arkansas in 1928, we are informed that there has never been even a single attempt by the State to enforce it. And the pallid, unenthusiastic, even apologetic defense of the Act presented by the State in this Court indicates that the State would make no attempt to enforce the law Page 393 U. S. 110 should it remain on the books for the next century. Now, nearly 40 years after the law has slumbered on the books as though dead, a teacher, alleging fear that the State might arouse from its lethargy and try to punish her, has asked for a declaratory judgment holding the law unconstitutional. She was subsequently joined by a parent who alleged his interest in seeing that his two then school-age sons "be informed of all scientific theories and hypotheses. . . ." But whether this Arkansas teacher is still a teacher, fearful of punishment under the Act, we do not know. It may be, as has been published in the daily press, that she has long since given up her job as a teacher and moved to a distant city, thereby escaping the dangers she had imagined might befall her under this lifeless Arkansas Act. And there is not one iota of concrete evidence to show that the parent-intervenor's sons have not been or will not be taught about evolution. The textbook adopted for use in biology classes in Little Rock includes an entire chapter dealing with evolution. There is no evidence that this chapter is not being freely taught in the schools that use the textbook, and no evidence that the intervenor's sons, who were 15 and 17 years old when this suit was brought three years ago, are still in high school, or yet to take biology. Unfortunately, however, the State's languid interest in the case has not prompted it to keep this Court informed concerning facts that might easily justify dismissal of this alleged lawsuit as moot or as lacking the qualities of a genuine case or controversy. Notwithstanding my own doubts as to whether the case presents a justiciable controversy, the Court brushes aside these doubts and leaps headlong into the middle of the very broad problems involved in federal intrusion into state powers to decide what subjects and schoolbooks it may wish to use in teaching state pupils. While I hesitate to enter into the consideration and decision Page 393 U. S. 111 of such sensitive state-federal relationships, I reluctantly acquiesce. But, agreeing to consider this as a genuine case or controversy, I cannot agree to thrust the Federal Government's long arm the least bit further into state school curriculums than decision of this particular case requires. And the Court, in order to invalidate the Arkansas law as a violation of the First Amendment, has been compelled to give the State's law a broader meaning than the State Supreme Court was willing to give it. The Arkansas Supreme Court's opinion, in its entirety, stated that: "Upon the principal issue, that of constitutionality, the court holds that Initiated Measure No. 1 of 1928, Ark.Stat.Ann. § 81627 and § 81628 (Repl.1960), is a valid exercise of the state's power to specify the curriculum in its public schools. The court expresses no opinion on the question whether the Act prohibits any explanation of the theory of evolution or merely prohibits teaching that the theory is true, the answer not being necessary to a decision in the case and the issue not having been raised." It is plain that a state law prohibiting all teaching of human development or biology is constitutionally quite different from a law that compels a teacher to teach as true only one theory of a given doctrine. It would be difficult to make a First Amendment case out of a state law eliminating the subject of higher mathematics, or astronomy, or biology from its curriculum. And, for all the Supreme Court of Arkansas has said, this particular Act may prohibit that and nothing else. This Court, however, treats the Arkansas Act as though it made it a misdemeanor to teach or to use a book that teaches that evolution is true. But it is not for this Court to arrogate to itself the power to determine the scope of Arkansas statutes. Since the highest court of Page 393 U. S. 112 Arkansas has deliberately refused to give its statute that meaning, we should not presume to do so. It seems to me that, in this situation, the statute is too vague for us to strike it down on any ground but that: vagueness. Under this statute, as construed by the Arkansas Supreme Court, a teacher cannot know whether he is forbidden to mention Darwin's theory at all or only free to discuss it as long as he refrains from contending that it is true. It is an established rule that a statute which leaves an ordinary man so doubtful about its meaning that he cannot know when he has violated it denies him the first essential of due process. See, e.g., Connally v. General Construction Co., 269 U. S. 385 , 269 U. S. 391 (1926). Holding the statute too vague to enforce would not only follow longstanding constitutional precedents, but it would avoid having this Court take unto itself the duty of a State's highest court to interpret and mark the boundaries of the State's laws. And, more important, it would not place this Court in the unenviable position of violating the principle of leaving the States absolutely free to choose their own curriculums for their own schools so long as their action does not palpably conflict with a clear constitutional command. The Court, not content to strike down this Arkansas Act on the unchallengeable ground of its plain vagueness, chooses rather to invalidate it as a violation of the Establishment of Religion Clause of the First Amendment. I would not decide this case on such a sweeping ground for the following reasons, among others. 1. In the first place I find it difficult to agree with the Court's statement that "there can be no doubt that Arkansas has sought to prevent its teachers from discussing the theory of evolution because it is contrary to the belief of some that the Book of Genesis must be the exclusive source of doctrine as to the origin of man." It may be, instead, that the people's motive was merely that it would be best to remove this controversial Page 393 U. S. 113 subject from its schools; there is no reason I can imagine why a State is without power to withdraw from its curriculum any subject deemed too emotional and controversial for its public schools. And this Court has consistently held that it is not for us to invalidate a statute because of our views that the "motives" behind its passage were improper; it is simply too difficult to determine what those motives were. See, e.g., United States v. O'Brien, 391 U. S. 367 , 391 U. S. 382 -383 (1968). 2. A second question that arises for me is whether this Court's decision forbidding a State to exclude the subject of evolution from its schools infringes the religious freedom of those who consider evolution an anti-religious doctrine. If the theory is considered anti-religious, as the Court indicates, how can the State be bound by the Federal Constitution to permit its teachers to advocate such an "anti-religious" doctrine to school children? The very cases cited by the Court as supporting its conclusion hold that the State must be neutral, not favoring one religious or anti-religious view over another. The Darwinian theory is said to challenge the Bible's story of creation; so, too, have some of those who believe in the Bible, along with many others, challenged the Darwinian theory. Since there is no indication that the literal Biblical doctrine of the origin of man is included in the curriculum of Arkansas schools, does not the removal of the subject of evolution leave the State in a neutral position toward these supposedly competing religious and anti-religious doctrines? Unless this Court is prepared simply to write off as pure nonsense the views of those who consider evolution an anti-religious doctrine, then this issue presents problems under the Establishment Clause far more troublesome than are discussed in the Court's opinion. 3. I am also not ready to hold that a person hired to teach school children takes with him into the classroom a constitutional right to teach sociological, economic, Page 393 U. S. 114 political, or religious subjects that the school's managers do not want discussed. This Court has said that the rights of free speech, "while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time." Cox v. Louisiana, 379 U. S. 536 , 379 U. S. 554 ; Cox v. Louisiana, 379 U. S. 559 , 379 U. S. 574 . I question whether it is absolutely certain, as the Court's opinion indicates, that "academic freedom" permits a teacher to breach his contractual agreement to teach only the subjects designated by the school authorities who hired him. Certainly the Darwinian theory, precisely like the Genesis story of the creation of man, is not above challenge. In fact the Darwinian theory has not merely been criticized by religionists, but by scientists, and perhaps no scientist would be willing to take an oath and swear that everything announced in the Darwinian theory is unquestionably true. The Court, it seems to me, makes a serious mistake in bypassing the plain, unconstitutional vagueness of this statute in order to reach out and decide this troublesome, to me, First Amendment question. However wise this Court may be or may become hereafter, it is doubtful that, sitting in Washington, it can successfully supervise and censor the curriculum of every public school in every hamlet and city in the United States. I doubt that our wisdom is so nearly infallible. I would either strike down the Arkansas Act as too vague to enforce or remand to the State Supreme Court for clarification of its holding and opinion. MR. JUSTICE HARLAN, concurring. I think it deplorable that this case should have come to us with such an opaque opinion by the State's highest court. With all respect, that court's handling of the Page 393 U. S. 115 case savors of a studied effort to avoid coming to grips with this anachronistic statute, and to "pass the buck" to this Court. This sort of temporizing does not make for healthy operations between the state and federal judiciaries. Despite these observations, I am in agreement with this Court's opinion that, the constitutional claims having been properly raised and necessarily decided below, resolution of the matter by us cannot properly be avoided. * See, e.g., Chicago Life Insurance Co. v. Needles, 113 U. S. 74 , 113 U. S. 579 (1885). I concur in so much of the Court's opinion as holds that the Arkansas statute constitutes an "establishment of religion" forbidden to the States by the Fourteenth Amendment. I do not understand, however, why the Court finds it necessary to explore at length appellants' contentions that the statute is unconstitutionally vague and that it interferes with free speech, only to conclude that these issues need not be decided in this case. In the process of not deciding them, the Court obscures its otherwise straightforward holding, and opens its opinion to possible implications from which I am constrained to disassociate myself. * Short of reading the Arkansas Supreme Court's opinion to have proceeded on the premise that it need not consider appellants' "establishment" contention, clearly raised in the state courts and here, in view of its holding that the State possesses plenary power to fix the curriculum in its public schools, I can perceive no tenable basis for remanding the case to the state court for an explication of the purpose and meaning of the statute in question. I am unwilling to ascribe to the Arkansas Supreme Court any such quixotic approach to constitutional adjudication. I take the first sentence of its opinion ( ante at 393 U. S. 101 , n. 7) to encompass an overruling of appellants' "establishment" point, and the second sentence to refer only to their "vagueness" claim. MR JUSTICE STEWART, concurring in the result. The States are most assuredly free "to choose their own curriculums for their own schools." A State is entirely Page 393 U. S. 116 free, for example, to decide that the only foreign language to be taught in its public school system shall be Spanish. But would a State be constitutionally free to punish a teacher for letting his students know that other languages are also spoken in the world? I think not. It is one thing for a State to determine that "the subject of higher mathematics, or astronomy, or biology" shall or shall not be included in its public school curriculum. It is quite another thing for a State to make it a criminal offense for a public school teacher so much as to mention the very existence of an entire system of respected human thought. That kind of criminal law, I think, would clearly impinge upon the guarantees of free communication contained in the First Amendment and made applicable to the States by the Fourteenth. The Arkansas Supreme Court has said that the statute before us may or may not be just such a law. The result, as MR. JUSTICE BLACK points out, is that "a teacher cannot know whether he is forbidden to mention Darwin's theory at all." Since I believe that no State could constitutionally forbid a teacher "to mention Darwin's theory at all," and since Arkansas may, or may not, have done just that, I conclude that the statute before us is so vague as to be invalid under the Fourteenth Amendment. See Cramp v. Board of Pub. Instruction, 368 U. S. 278 .

In Epperson v. Arkansas (1968), the U.S. Supreme Court ruled that an Arkansas law prohibiting the teaching of evolution in public schools violated the Establishment Clause of the First Amendment, as applied to the states through the Fourteenth Amendment. The Court held that the law was motivated by religious purposes and lacked religious neutrality, infringing on the freedom of speech and academic freedom protected by the First Amendment. The Court emphasized the state's right to set school curricula, but asserted that this right does not extend to prohibiting the teaching of scientific theories for religious reasons, as this would violate the principles of the First Amendment.

Religion

Mueller v. Allen

https://supreme.justia.com/cases/federal/us/463/388/

U.S. Supreme Court Mueller v. Allen, 463 U.S. 388 (1983) Mueller v. Allen No. 82-195 Argued April 18, 1983 Decided June 29, 1983 463 U.S. 388 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT Syllabus A Minnesota statute (§ 290.09, subd. 22) allows state taxpayers, in computing their state income tax, to deduct expenses incurred in providing "tuition, textbooks and transportation" for their children attending an elementary or secondary school. Petitioner Minnesota taxpayers brought suit in Federal District Court against respondent Minnesota Commissioner of Revenue and respondent parents who had taken the tax deduction for expenses incurred in sending their children to parochial schools, claiming that § 290.09, subd. 22, violates the Establishment Clause of the First Amendment by providing financial assistance to sectarian institutions. The District Court granted summary judgment for respondents, holding that the statute is neutral on its face and in its application and does not have a primary effect of either advancing or inhibiting religion. The Court of Appeals affirmed. Held: Section 290.09, subd. 22, does not violate the Establishment Clause, but satisfies all elements of the "three-part" test laid down in Lemon v. Kurtzman, 403 U. S. 602 , that must be met for such a statute to be upheld under the Clause. Pp. 463 U. S. 392 -403. (a) The tax deduction in question has the secular purpose of ensuring that the State's citizenry is well educated, as well as of assuring the continued financial health of private schools, both sectarian and nonsectarian. Pp. 463 U. S. 394 -395. (b) The deduction does not have the primary effect of advancing the sectarian aims of nonpublic schools. It is only one of many deductions -- such as those for medical expenses and charitable contributions -- available under the Minnesota tax laws; is available for educational expenses incurred by all parents, whether their children attend public schools or private sectarian or nonsectarian private schools, Committee for Public Education v. Nyquist, 413 U. S. 756 , distinguished; and provides aid to parochial schools only as a result of decisions of individual parents, rather than directly from the State to the schools themselves. The Establishment Clause's historic purposes do not encompass the sort of attenuated financial benefit that eventually flows to parochial schools from the neutrally available tax benefit at issue. The fact that, notwithstanding § 290.09, subd. 22's facial neutrality, a particular annual statistical analysis shows that the statute's application primarily benefits religious institutions Page 463 U. S. 389 does not provide the certainty needed to determine the statute's constitutionality. Moreover, private schools, and parents paying for their children to attend these schools, make special contributions to the areas in which the schools operate. Pp. 463 U. S. 396 -402. (c) Section 290.09, subd. 22, does not "excessively entangle" the State in religion. The fact that state officials must determine whether particular textbooks qualify for the tax deduction and must disallow deductions for textbooks used in teaching religious doctrines is an insufficient basis for finding such entanglement. P. 463 U. S. 403 . 676 F.2d 1195, affirmed. REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, and O'CONNOR, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, BLACKMUN, and STEVENS, JJ., joined post, p. 463 U. S. 404 . Page 463 U. S. 390 JUSTICE REHNQUIST delivered the opinion of the Court. Minnesota allows taxpayers, in computing their state income tax, to deduct certain expenses incurred in providing for the education of their children. Minn.Stat. § 290.09, subd. 22 (1982). [ Footnote 1 ] The United States Court of Appeals for the Eighth Circuit held that the Establishment Clause of the First Amendment, as made applicable to the States by the Fourteenth Amendment, was not offended by this arrangement. Because this question was reserved in Committee for Public Education v. Nyquist, 413 U. S. 756 (1973), and because Page 463 U. S. 391 of a conflict between the decision of the Court of Appeals for the Eighth Circuit and that of the Court of Appeals for the First Circuit in Rhode Island Federation of Teachers v. Norberg, 630 F.2d 855 (CA1 1980), we granted certiorari. 459 U.S. 820 (1982). We now affirm. Minnesota, like every other State, provides its citizens with free elementary and secondary schooling. Minn.Stat. §§ 120.06, 120.72 (1982). It seems to be agreed that about 820,000 students attended this school system in the most recent school year. During the same year, approximately 91,000 elementary and secondary students attended some 500 privately supported schools located in Minnesota, and about 95% of these students attended schools considering themselves to be sectarian. Minnesota, by a law originally enacted in 1955 and revised in 1976 and again in 1978, permits state taxpayers to claim a deduction from gross income for certain expenses incurred in educating their children. The deduction is limited to actual expenses incurred for the "tuition, textbooks and transportation" of dependents attending elementary or secondary schools. A deduction may not exceed $500 per dependent in grades K through 6 and $700 per dependent in grades 7 through 12. Minn.Stat. § 290.09, subd. 22 (1982). [ Footnote 2 ] Page 463 U. S. 392 Petitioners -- certain Minnesota taxpayers -- sued in the United States District Court for the District of Minnesota claiming that § 290.09, subd. 22, violated the Establishment Clause by providing financial assistance to sectarian institutions. They named as defendants, respondents here, the Commissioner of the Department of Revenue of Minnesota and several parents who took advantage of the tax deduction for expenses incurred in sending their children to parochial schools. The District Court granted respondents' motion for summary judgment, holding that the statute was "neutral on its face and in its application, and does not have a primary effect of either advancing or inhibiting religion." 514 F . Supp. 998, 1003 (1981). On appeal, the Court of Appeals affirmed, concluding that the Minnesota statute substantially benefited a "broad class of Minnesota citizens." 676 F.2d 1195, 1205 (1982). Today's case is no exception to our oft-repeated statement that the Establishment Clause presents especially difficult questions of interpretation and application. It is easy enough to quote the few words constituting that Clause -- "Congress shall make no law respecting an establishment of Page 463 U. S. 393 religion." It is not at all easy, however, to apply this Court's various decisions construing the Clause to governmental programs of financial assistance to sectarian schools and the parents of children attending those schools. Indeed, in many of these decisions, we have expressly or implicitly acknowledged that "we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law." Lemon v. Kurtzman, 403 U. S. 602 , 403 U. S. 612 (1971), quoted in part with approval in Nyquist, 413 U.S. at 413 U. S. 761 , n. 5. One fixed principle in this field is our consistent rejection of the argument that "any program which in some manner aids an institution with a religious affiliation" violates the Establishment Clause. Hunt v. McNair, 413 U. S. 734 , 413 U. S. 742 (1973). See, e.g., Bradfield v. Roberts, 175 U. S. 291 (1899); Walz v. Tax Comm'n, 397 U. S. 664 (1970). For example, it is now well established that a State may reimburse parents for expenses incurred in transporting their children to school, Everson v. Board of Education, 330 U. S. 1 (1947), and that it may loan secular textbooks to all schoolchildren within the State, Board of Education v. Allen, 392 U. S. 236 (1968). Notwithstanding the repeated approval given programs such as those in Allen and Everson, our decisions also have struck down arrangements resembling, in many respects, these forms of assistance. See, e.g., Lemon v. Kurtzman, supra; Levitt v. Committee for Public Education, 413 U. S. 472 (1973); Meek v. Pittenger, 421 U. S. 349 (1975); Wolman v. Walter, 433 U. S. 229 , 433 U. S. 237 -238 (1977). [ Footnote 3 ] In this case, we Page 463 U. S. 394 are asked to decide whether Minnesota's tax deduction bears greater resemblance to those types of assistance to parochial schools we have approved, or to those we have struck down. Petitioners place particular reliance on our decision in Committee for Public Education v. Nyquist, supra, where we held invalid a New York statute providing public funds for the maintenance and repair of the physical facilities of private schools and granting thinly disguised "tax benefits," actually amounting to tuition grants, to the parents of children attending private schools. As explained below, we conclude that § 290.09, subd. 22, bears less resemblance to the arrangement struck down in Nyquist than it does to assistance programs upheld in our prior decisions and those discussed with approval in Nyquist. The general nature of our inquiry in this area has been guided, since the decision in Lemon v. Kurtzman, supra, by the "three-part" test laid down in that case: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . . ; finally, the statute must not foster 'an excessive government entanglement with religion.'" Id. at 403 U. S. 612 -613. While this principle is well settled, our cases have also emphasized that it provides "no more than [a] helpful signpos[t]" in dealing with Establishment Clause challenges. Hunt v. McNair, supra, at 413 U. S. 741 . With this caveat in mind, we turn to the specific challenges raised against § 290.09, subd. 22, under the Lemon framework. Little time need be spent on the question of whether the Minnesota tax deduction has a secular purpose. Under our prior decisions, governmental assistance programs have consistently survived this inquiry even when they have run afoul of other aspects of the Lemon framework. See, e.g., Lemon v. Kurtzman, supra; Meek v. Pittenger, supra, at 421 U. S. 363 ; Wolman v. Walter, supra, at 433 U. S. 236 . This reflects, at least in part, our reluctance to attribute unconstitutional motives to the States, particularly when a plausible secular purpose Page 463 U. S. 395 for the State's program may be discerned from the face of the statute. A State's decision to defray the cost of educational expenses incurred by parents -- regardless of the type of schools their children attend -- evidences a purpose that is both secular and understandable. An educated populace is essential to the political and economic health of any community, and a State's efforts to assist parents in meeting the rising cost of educational expenses plainly serves this secular purpose of ensuring that the State's citizenry is well educated. Similarly, Minnesota, like other States, could conclude that there is a strong public interest in assuring the continued financial health of private schools, both sectarian and nonsectarian. By educating a substantial number of students, such schools relieve public schools of a correspondingly great burden -- to the benefit of all taxpayers. In addition, private schools may serve as a benchmark for public schools, in a manner analogous to the "TVA yardstick" for private power companies. As JUSTICE POWELL has remarked: "Parochial schools, quite apart from their sectarian purpose, have provided an educational alternative for millions of young Americans; they often afford wholesome competition with our public schools; and in some States, they relieve substantially the tax burden incident to the operation of public schools. The State has, moreover, a legitimate interest in facilitating education of the highest quality for all children within its boundaries, whatever school their parents have chosen for them." Wolman v. Walter, supra, at 433 U. S. 262 (concurring in part, concurring in judgment in part, and dissenting in part). All these justifications are readily available to support § 290.09, subd. 22, and each is sufficient to satisfy the secular purpose inquiry of Lemon. [ Footnote 4 ] Page 463 U. S. 396 We turn therefore to the more difficult but related question whether the Minnesota statute has "the primary effect of advancing the sectarian aims of the nonpublic schools." Committee for Public Education v. Regan, 444 U. S. 646 , 444 U. S. 662 (1980); Lemon v. Kurtzman, 403 U.S. at 403 U. S. 612 -613. In concluding that it does not, we find several features of the Minnesota tax deduction particularly significant. First, an essential feature of Minnesota's arrangement is the fact that § 290.09, subd. 22, is only one among many deductions -- such as those for medical expenses, § 290.09, subd. 10, and charitable contributions, § 290.21, subd. 3 -- available under the Minnesota tax laws. [ Footnote 5 ] Our decisions consistently have recognized that, traditionally, "[l]egislatures have especially broad latitude in creating classifications and distinctions in tax statutes," Regan v. Taxation With Representation of Wash., 461 U. S. 540 , 461 U. S. 547 (1983), in part because the "familiarity with local conditions" enjoyed by legislators especially enables them to "achieve an equitable distribution of the tax burden." Madden v. Kentucky, 309 U. S. 83 , 309 U. S. 88 (1940). Under our prior decisions, the Minnesota Legislature's judgment that a deduction for educational expenses fairly equalizes the tax burden of its citizens and encourages desirable expenditures for educational purposes is entitled to substantial deference. [ Footnote 6 ] Page 463 U. S. 397 Other characteristics of § 290.09, subd. 22, argue equally strongly for the provision's constitutionality. Most importantly, the deduction is available for educational expenses incurred by all parents, including those whose children attend public schools and those whose children attend nonsectarian private schools or sectarian private schools. Just as in Widmar v. Vincent, 454 U. S. 263 , 454 U. S. 274 (1981), where we concluded that the State's provision of a forum neutrally "available to a broad class of nonreligious as well as religious speakers" does not "confer any imprimatur of state approval," ibid., so here: "[t]he provision of benefits to so broad a spectrum of groups is an important index of secular effect." [ Footnote 7 ] Ibid. Page 463 U. S. 398 In this respect, as well as others, this case is vitally different from the scheme struck down in Nyquist. There, public assistance amounting to tuition grants was provided only to parents of children in nonpublic schools. This fact had considerable bearing on our decision striking down the New York statute at issue; we explicitly distinguished both Allen and Everson on the grounds that "[i]n both cases the class of beneficiaries included all schoolchildren, those in public as well as those in private schools." 413 U.S. at 413 U. S. 782 -783, n. 38 (emphasis in original). [ Footnote 8 ] Moreover, we intimated that "public assistance ( e.g., scholarships) made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited," ibid., might not offend the Establishment Clause. We think the tax deduction adopted by Minnesota is more similar to this latter type of program than it is to the arrangement struck down in Nyquist. Unlike the assistance at issue in Nyquist, § 290.09, subd. 22, permits all parents -- whether their children attend public school or private -- to deduct their children's educational expenses. As Widmar and our other decisions indicate, a program, like § 290.09, subd. 22, that neutrally provides Page 463 U. S. 399 state assistance to a broad spectrum of citizens is not readily subject to challenge under the Establishment Clause. We also agree with the Court of Appeals that, by channeling whatever assistance it may provide to parochial schools through individual parents, Minnesota has reduced the Establishment Clause objections to which its action is subject. It is true, of course, that financial assistance provided to parents ultimately has an economic effect comparable to that of aid given directly to the schools attended by their children. It is also true, however, that, under Minnesota's arrangement, public funds become available only as a result of numerous private choices of individual parents of school-age children. For these reasons, we recognized in Nyquist that the means by which state assistance flows to private schools is of some importance: we said that "the fact that aid is disbursed to parents, rather than to . . . schools," is a material consideration in Establishment Clause analysis, albeit "only one among many factors to be considered." 413 U.S. at 413 U. S. 781 . It is noteworthy that all but one of our recent cases invalidating state aid to parochial schools have involved the direct transmission of assistance from the State to the schools themselves. The exception, of course, was Nyquist, which, as discussed previously, is distinguishable from this case on other grounds. Where, as here, aid to parochial schools is available only as a result of decisions of individual parents, no "imprimatur of state approval," Widmar, supra, at 454 U. S. 274 , can be deemed to have been conferred on any particular religion, or on religion generally. We find it useful, in the light of the foregoing characteristics of § 290.09, subd. 22, to compare the attenuated financial benefits flowing to parochial schools from the section to the evils against which the Establishment Clause was designed to protect. These dangers are well described by our statement that "'[w]hat is at stake as a matter of policy [in Establishment Clause cases] is preventing that kind and degree of government involvement in religious life that, as history Page 463 U. S. 400 teaches us, is apt to lead to strife and frequently strain a political system to the breaking point.'" Nyquist, 413 U.S. at 413 U. S. 796 , quoting Walz v. Tax Comm'n, 397 U.S. at 397 U. S. 694 (opinion of Harlan, J.). It is important, however, to "keep these issues in perspective:" "At this point in the 20th century, we are quite far removed from the dangers that prompted the Framers to include the Establishment Clause in the Bill of Rights. See Walz v. Tax Comm'n, 397 U. S. 664 , 397 U. S. 668 (1970). The risk of significant religious or denominational control over our democratic processes -- or even of deep political division along religious lines -- is remote, and when viewed against the positive contributions of sectarian schools, any such risk seems entirely tolerable in light of the continuing oversight of this Court." Wolman, 433 U.S. at 433 U. S. 263 (POWELL, J., concurring in part, concurring in judgment in part, and dissenting in part). The Establishment Clause, of course, extends beyond prohibition of a state church or payment of state funds to one or more churches. We do not think, however, that its prohibition extends to the type of tax deduction established by Minnesota. The historic purposes of the Clause simply do not encompass the sort of attenuated financial benefit, ultimately controlled by the private choices of individual parents, that eventually flows to parochial schools from the neutrally available tax benefit at issue in this case. Petitioners argue that, notwithstanding the facial neutrality of § 290.09, subd. 22, in application, the statute primarily benefits religious institutions. [ Footnote 9 ] Petitioners rely, as they did Page 463 U. S. 401 below, on a statistical analysis of the type of persons claiming the tax deduction. They contend that most parents of public school children incur no tuition expenses, see Minn.Stat. § 120.06 (1982), and that other expenses deductible under § 290.09, subd. 22, are negligible in value; moreover, they claim that 96% of the children in private schools in 1978-1979 attended religiously affiliated institutions. Because of all this, they reason, the bulk of deductions taken under § 290.09, subd. 22, will be claimed by parents of children in sectarian schools. Respondents reply that petitioners have failed to consider the impact of deductions for items such as transportation, summer school tuition, tuition paid by parents whose children attended schools outside the school districts in which they resided, rental or purchase costs for a variety of equipment, and tuition for certain types of instruction not ordinarily provided in public schools. We need not consider these contentions in detail. We would be loath to adopt a rule grounding the constitutionality of a facially neutral law on annual reports reciting the extent to which various classes of private citizens claimed benefits under the law. Such an approach would scarcely provide the certainty that this field stands in need of, nor can we perceive principled standards by which such statistical evidence might be evaluated. Moreover, the fact that private persons fail in a particular year to claim the tax relief to which they are entitled -- under a facially neutral statute -- should be of little importance in determining the constitutionality of the statute permitting such relief. Finally, private educational institutions, and parents paying for their children to attend these schools, make special contributions to the areas in which they operate. "Parochial Page 463 U. S. 402 schools, quite apart from their sectarian purpose, have provided an educational alternative for millions of young Americans; they often afford wholesome competition with our public schools; and in some States they relieve substantially the tax burden incident to the operation of public schools." Wolman, supra, at 433 U. S. 262 (POWELL, J., concurring in part, concurring in judgment in part, and dissenting in part). If parents of children in private schools choose to take especial advantage of the relief provided by § 290.09, subd. 22, it is no doubt due to the fact that they bear a particularly great financial burden in educating their children. More fundamentally, whatever unequal effect may be attributed to the statutory classification can fairly be regarded as a rough return for the benefits, discussed above, provided to the State and all taxpayers by parents sending their children to parochial schools. In the light of all this, we believe it wiser to decline to engage in the type of empirical inquiry into those persons benefited by state law which petitioners urge. [ Footnote 10 ] Thus, we hold that the Minnesota tax deduction for educational expenses satisfies the primary effect inquiry of our Establishment Clause cases. Page 463 U. S. 403 Turning to the third part of the Lemon inquiry, we have no difficulty in concluding that the Minnesota statute does not "excessively entangle" the State in religion. The only plausible source of the "comprehensive, discriminating, and continuing state surveillance," 403 U.S. at 403 U. S. 619 , necessary to run afoul of this standard would lie in the fact that state officials must determine whether particular textbooks qualify for a deduction. In making this decision, state officials must disallow deductions taken for "instructional books and materials used in the teaching of religious tenets, doctrines or worship, the purpose of which is to inculcate such tenets, doctrines or worship." Minn.Stat. § 290.09, subd. 22 (1982). Making decisions such as this does not differ substantially from making the types of decisions approved in earlier opinions of this Court. In Board of Education v. Allen, 392 U. S. 236 (1968), for example, the Court upheld the loan of secular textbooks to parents or children attending nonpublic schools; though state officials were required to determine whether particular books were or were not secular, the system was held not to violate the Establishment Clause. See also Wolman v. Walter, 433 U. S. 229 (1977); Meek v. Pittenger, 421 U. S. 349 (1975). The same result follows in this case. [ Footnote 11 ] Page 463 U. S. 404 For the foregoing reasons, the judgment of the Court of Appeals is Affirmed. [ Footnote 1 ] Minnesota Stat. § 290.09, subd. 22 (1982), permits a taxpayer to deduct from his or her computation of gross income the following: "Tuition and transportation expense. The amount he has paid to others, not to exceed $500 for each dependent in grades K to 6 and $700 for each dependent in grades 7 to 12, for tuition, textbooks and transportation of each dependent in attending an elementary or secondary school situated in Minnesota, North Dakota, South Dakota, Iowa, or Wisconsin, wherein a resident of this state may legally fulfill the state's compulsory attendance laws, which is not operated for profit, and which adheres to the provisions of the Civil Rights Act of 1964 and chapter 363. As used in this subdivision, 'textbooks' shall mean and include books and other instructional materials and equipment used in elementary and secondary schools in teaching only those subjects legally and commonly taught in public elementary and secondary schools in this state and shall not include instructional books and materials used in the teaching of religious tenets, doctrines or worship, the purpose of which is to inculcate such tenets, doctrines or worship, nor shall it include such books or materials for, or transportation to, extracurricular activities including sporting events, musical or dramatic events, speech activities, driver's education, or programs of a similar nature." [ Footnote 2 ] Both lower courts found that the statute permits deduction of a range of educational expenses. The District Court found that deductible expenses included: "1. Tuition in the ordinary sense." "2. Tuition to public school students who attend public schools outside their residence school districts." "3. Certain summer school tuition." "4. Tuition charged by a school for slow learner private tutoring services." "5. Tuition for instruction provided by an elementary or secondary school to students who are physically unable to attend classes at such school." "6. Tuition charged by a private tutor or by a school that is not an elementary or secondary school if the instruction is acceptable for credit in an elementary or secondary school." "7. Montessori School tuition for grades K through 12." "8. Tuition for driver education when it is part of the school curriculum." 514 F. Supp. 998 , 1000 (1981). The Court of Appeals concurred in this finding. In addition, the District Court found that the statutory deduction for "textbooks" included not only "secular textbooks" but also: "1. Cost of tennis shoes and sweatsuits for physical education." "2. Camera rental fees paid to the school for photography classes." "3. Ice skates rental fee paid to the school." "4. Rental fee paid to the school for calculators for mathematics classes." "5. Costs of home economics materials needed to meet minimum requirements." "6. Costs of special metal or wood needed to meet minimum requirements of shop classes." "7. Costs of supplies needed to meet minimum requirements of art classes." "8. Rental fees paid to the school for musical instruments." "9. Cost of pencils and special notebooks required for class." Ibid. The Court of Appeals accepted this finding. [ Footnote 3 ] In Lemon v. Kurtzman, the Court concluded that the State's reimbursement of nonpublic schools for the cost of teachers' salaries, textbooks, and instructional materials, and its payment of a salary supplement to teachers in nonpublic schools, resulted in excessive entanglement of church and state. In Levitt v. Committee for Public Education, we struck down on Establishment Clause grounds a state program reimbursing nonpublic schools for the cost of teacher-prepared examinations. Finally, in Meek v. Pittenger and Wolman v. Walter, we held unconstitutional a direct loan of instructional materials to nonpublic schools, while upholding the loan of textbooks to individual students. [ Footnote 4 ] Section 290.09 contains no express statements of legislative purpose, and its legislative history offers few unambiguous indications of actual intent. The absence of such evidence does not affect our treatment of the statute. [ Footnote 5 ] Deductions for charitable contributions, allowed by Minnesota law, Minn.Stat. § 290.21, subd. 3 (1982), include contributions to religious institutions, and exemptions from property tax for property used for charitable purposes under Minnesota law include property used for wholly religious purposes, § 272.02. In each case, it may be that religious institutions benefit very substantially from the allowance of such deductions. The Court's holding in Walz v. Tax Comm'n, 397 U. S. 664 (1970), indicates, however, that this does not require the conclusion that such provisions of a State's tax law violate the Establishment Clause. [ Footnote 6 ] Our decision in Committee for Public Education v. Nyquist, 413 U. S. 756 (1973), is not to the contrary on this point. We expressed considerable doubt there that the "tax benefits" provided by New York law properly could be regarded as parts of a genuine system of tax laws. Plainly, the outright grants to low-income parents did not take the form of ordinary tax benefits. As to the benefits provided to middle-income parents, the Court said: "The amount of the deduction is unrelated to the amount of money actually expended by any parent on tuition, but is calculated on the basis of a formula contained in the statute. The formula is apparently the product of a legislative attempt to assure that each family would receive a carefully estimated net benefit, and that the tax benefit would be comparable to, and compatible with, the tuition grant for lower income families." Id. at 413 U. S. 790 (footnote omitted). Indeed, the question whether a program having the elements of a "genuine tax deduction" would be constitutionally acceptable was expressly reserved in Nyquist, supra, at 413 U. S. 790 , n. 49. While the economic consequences of the program in Nyquist and that in this case may be difficult to distinguish, we have recognized on other occasions that "the form of the [State's assistance to parochial schools must be examined] for the light that it casts on the substance." Lemon v. Kurtzman, 403 U.S. at 403 U. S. 614 . The fact that the Minnesota plan embodies a "genuine tax deduction" is thus of some relevance, especially given the traditional rule of deference accorded legislative classifications in tax statutes. [ Footnote 7 ] Likewise, in Sloan v. Lemon, 413 U. S. 825 , 413 U. S. 832 (1973), where we held that a Pennsylvania statute violated the First Amendment, we emphasized that "the State [had] singled out a class of its citizens for a special economic benefit." We also observed in Widmar that "empirical evidence that religious groups will dominate [the school's] open forum," 454 U.S. at 454 U. S. 275 , might be relevant to analysis under the Establishment Clause. We address this infra at 463 U. S. 400 -402. [ Footnote 8 ] Our full statement was: " Allen and Everson differ from the present litigation in a second important respect. In both cases, the class of beneficiaries included all schoolchildren, those in public as well as those in private schools. See also Tilton v. Richardson , [ 403 U.S. 672 (1971)], in which federal aid was made available to all institutions of higher learning, and Walz v. Tax Comm'n, supra, in which tax exemptions were accorded to all educational and charitable nonprofit institutions. . . . Because of the manner in which we have resolved the tuition grant issue, we need not decide whether the significantly religious character of the statute's beneficiaries might differentiate the present cases from a case involving some form of public assistance ( e.g., scholarships) made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited. . . . Thus, our decision today does not compel . . . the conclusion that the educational assistance provisions of the 'G. I. Bill,' 38 U.S.C. § 1651, impermissibly advance religion in violation of the Establishment Clause." 413 U.S. at 413 U. S. 782 -783, n. 38. See also id. at 413 U. S. 775 . [ Footnote 9 ] Petitioners cite a "Revenue Analysis" prepared in 1976 by the Minnesota Department of Revenue, which states that "[o]nly those taxpayers having dependents in nonpublic elementary or secondary schools are affected by this law, since tuition, transportation and textbook expenses for public school students are paid for by the school district." Brief for Petitioners 38. We fail to see the significance of the report; it is no more than a capsule description of the tax deduction provision. As discussed below, and as the lower courts expressly found, the analysis is plainly mistaken, as a factual matter, regarding the effect of § 290.09, subd. 22. Moreover, several memoranda prepared by the Minnesota Department of Revenue in 1979 -- stating that a number of specific expenses may be deducted by parents with children in public school -- clearly indicate that the summary discussion in the 1976 memorandum was not intended as any comprehensive or binding agency determination. [ Footnote 10 ] Our conclusion is unaffected by the fact that § 290.09, subd. 22, permits deductions for amounts spent for textbooks and transportation as well as tuition. In Everson v. Board of Education, 330 U. S. 1 (1947), we approved a statute reimbursing parents of all schoolchildren for the costs of transporting their children to school. Doing so by means of a deduction, rather than a direct grant, only serves to make the State's action less objectionable. Likewise, in Board of Education v. Allen, 392 U. S. 236 (1968), we approved state loans of textbooks to all schoolchildren; although we disapproved, in Meek v. Pittenger, 421 U. S. 349 (1975), and Wolman v. Walter, 433 U. S. 229 (1977), direct loans of instructional materials to sectarian schools, we do not find those cases controlling. First, they involved assistance provided to the schools themselves, rather than tax benefits directed to individual parents, see supra at 463 U. S. 399 . Moreover, we think that state assistance for the rental of calculators, see App. A18, ice skates, ibid., tennis shoes, ibid., and the like, scarcely poses the type of dangers against which the Establishment Clause was intended to guard. [ Footnote 11 ] No party to this litigation has urged that the Minnesota plan is invalid because it runs afoul of the rather elusive inquiry, subsumed under the third part of the Lemon test, whether the Minnesota statute partakes of the "divisive political potential" condemned in Lemon, 403 U.S. at 403 U. S. 622 . The argument is advanced, however, by amici National Committee for Public Education and Religious Liberty et al. This variation of the "entanglement" test has been interpreted differently in different cases. Compare Lemon v. Kurtzman, 403 U.S. at 403 U. S. 622 -625, with id. at 403 U. S. 665 -666 (opinion of WHITE, J.); Meek v. Pittenger, 421 U.S. at 421 U. S. 359 -362, with id. at 421 U. S. 374 -379 (BRENNAN, J., concurring in part and dissenting in part). Since this aspect of the "entanglement" inquiry originated with Lemon v. Kurtzman, supra, and the Court's opinion there took pains to distinguish both Everson v. Board of Education, supra, and Board of Education v. Allen, supra, the Court in Lemon must have been referring to a phenomenon which, although present in that case, would have been absent in the two cases it distinguished. The Court's language in Lemon respecting political divisiveness was made in the context of Pennsylvania and Rhode Island statutes which provided for either direct payments of, or reimbursement of, a proportion of teachers' salaries in parochial schools. We think, in the light of the treatment of the point in later cases discussed above, the language must be regarded as confined to cases where direct financial subsidies are paid to parochial schools or to teachers in parochial schools. JUSTICE MARSHALL, with whom JUSTICE BRENNAN, JUSTICE BLACKMUN, and JUSTICE STEVENS join, dissenting. The Establishment Clause of the First Amendment prohibits a State from subsidizing religious education, whether it does so directly or indirectly. In my view, this principle of neutrality forbids not only the tax benefits struck down in Committee for Public Education v. Nyquist, 413 U. S. 756 (1973), but any tax benefit, including the tax deduction at issue here, which subsidizes tuition payments to sectarian schools. I also believe that the Establishment Clause prohibits the tax deductions that Minnesota authorizes for the cost of books and other instructional materials used for sectarian purposes. I The majority today does not question the continuing vitality of this Court's decision in Nyquist. That decision established that a State may not support religious education either through direct grants to parochial schools or through financial aid to parents of parochial school students. Id. at 413 U. S. 780 , 413 U. S. 785 -786. Nyquist also established that financial aid to parents of students attending parochial schools is no more permissible if it is provided in the form of a tax credit than if provided in the form of cash payments. Id. at 413 U. S. 789 -791; see ante at 463 U. S. 396 -397, n. 6. Notwithstanding these accepted principles, Page 463 U. S. 405 the Court today upholds a statute that provides a tax deduction for the tuition charged by religious schools. The Court concludes that the Minnesota statute is "vitally different" from the New York statute at issue in Nyquist. Ante at 463 U. S. 398 . As demonstrated below, there is no significant difference between the two schemes. The Minnesota tax statute violates the Establishment Clause for precisely the same reason as the statute struck down in Nyquist: it has a direct and immediate effect of advancing religion. A In calculating their net income for state income tax purposes, Minnesota residents are permitted to deduct the cost of their children's tuition, subject to a ceiling of $500 or $700 per child. By taking this deduction, a taxpayer reduces his tax bill by a sum equal to the amount of tuition multiplied by his rate of tax. Although this tax benefit is available to any parents whose children attend schools which charge tuition, the vast majority of the taxpayers who are eligible to receive the benefit are parents whose children attend religious schools. In the 1978-1979 school year, 90,000 students were enrolled in nonpublic schools charging tuition; over 95% of those students attended sectarian schools. Although the statute also allows a deduction for the tuition expenses of children attending public schools, Minnesota public schools are generally prohibited by law from charging tuition. Minn.Stat. § 120.06 (1982). Public schools may assess tuition charges only for students accepted from outside the district. § 123.39, subd. 5. In the 1978-1979 school year, only 79 public school students fell into this category. The parents of the remaining 815,000 students who attended public schools were ineligible to receive this tax benefit. Like the law involved in Nyquist, the Minnesota law can be said to serve a secular purpose: promoting pluralism and diversity among the State's public and nonpublic schools. But the Establishment Clause requires more than that legislation have a secular purpose. Nyquist, 413 U.S. at 413 U. S. 773 . "[T]he Page 463 U. S. 406 propriety of a legislature's purposes may not immunize from further scrutiny a law which . . . has a primary effect that advances religion." Id. at 413 U. S. 774 . [ Footnote 2/1 ] Moreover, even if one "'primary' effect [is] to promote some legitimate end under the State's police power," the legislation is not "immune from further examination to ascertain whether it also has the direct and immediate effect of advancing religion." Id. at 413 U. S. 783 -784, n. 39. See, e.g., Wolman v. Walter, 433 U. S. 229 , 433 U. S. 248 -254 (1977); Meek v. Pittenger, 421 U. S. 349 , 421 U. S. 364 -366 (1975) As we recognized in Nyquist, direct government subsidization of parochial school tuition is impermissible because "the effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions." 413 U.S. at 413 U. S. 783 . "[A]id to the educational function of [parochial] schools . . . necessarily results in aid to the sectarian school enterprise as a whole" because "[t]he very purpose of many of those schools is to provide an integrated secular and religious education." Meek v. Pittenger, supra, at 421 U. S. 366 . For this reason, aid to sectarian schools must be restricted to ensure that it may be not used to further the religious mission of those schools. See, e.g., Wolman v. Walter, supra, at 433 U. S. 250 -251. While "services such as police and fire protection, sewage disposal, highways, and sidewalks," may be provided to parochial schools in common with other institutions, because this type of assistance is clearly " marked off from the religious function'" of those schools, Nyquist, supra, at 413 U. S. 781 -782, quoting Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 18 (1947), unrestricted financial assistance, such as grants for the maintenance and construction of parochial schools, may not be Page 463 U. S. 407 provided. Nyquist, 413 U.S. at 413 U. S. 774 -780. "In the absence of an effective means of guaranteeing that the state aid derived from public funds will be used exclusively for secular, neutral, and nonideological purposes, it is clear from our cases that direct aid in whatever form is invalid." Id. at 413 U. S. 780 . Indirect assistance in the form of financial aid to parents for tuition payments is similarly impermissible, because it is not "subject to . . . restrictions" which "'guarantee the separation between secular and religious educational functions and . . . ensure that State financial aid supports only the former.'" Id. at 413 U. S. 783 , quoting Lemon v. Kurtzman, 403 U. S. 602 , 403 U. S. 613 (1971). By ensuring that parents will be reimbursed for tuition payments they make, the Minnesota statute requires that taxpayers in general pay for the cost of parochial education and extends a financial "incentive to parents to send their children to sectarian schools." Nyquist, 413 U.S. at 413 U. S. 786 . As was true of the law struck down in Nyquist : "[I]t is precisely the function of [Minnesota's] law to provide assistance to private schools, the great majority of which are sectarian. By reimbursing parents for a portion of their tuition bill, the State seeks to relieve their financial burdens sufficiently to assure that they continue to have the option to send their children to religion-oriented schools. And while the other purposes for that aid -- to perpetuate a pluralistic educational environment and to protect the fiscal integrity of overburdened public schools -- are certainly unexceptionable, the effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions." Id. at 413 U. S. 783 That parents receive a reduction of their tax liability, rather than a direct reimbursement, is of no greater significance here than it was in Nyquist. "[F]or purposes of determining whether such aid has the effect of advancing religion," Page 463 U. S. 408 it makes no difference whether the qualifying "parent receives an actual cash payment [or] is allowed to reduce . . . the sum he would otherwise be obliged to pay over to the State." Id. at 413 U. S. 790 -791. It is equally irrelevant whether a reduction in taxes takes the form of a tax "credit," a tax "modification," or a tax "deduction." Id. at 413 U. S. 789 -790. What is of controlling significance is not the form, but the "substantive impact" of the financial aid. Id. at 413 U. S. 786 . "[I]nsofar as such benefits render assistance to parents who send their children to sectarian schools, their purpose and inevitable effect are to aid and advance those religious institutions." Id. at 793 (emphasis added). B The majority attempts to distinguish Nyquist by pointing to two differences between the Minnesota tuition assistance program and the program struck down in Nyquist. Neither of these distinctions can withstand scrutiny. 1 The majority first attempts to distinguish Nyquist on the ground that Minnesota makes all parents eligible to deduct up to $500 or $700 for each dependent, whereas the New York law allowed a deduction only for parents whose children attended nonpublic schools. Although Minnesota taxpayers who send their children to local public schools may not deduct tuition expenses because they incur none, they may deduct other expenses, such as the cost of gym clothes, pencils, and notebooks, which are shared by all parents of school-age children. This, in the majority's view, distinguishes the Minnesota scheme from the law at issue in Nyquist. That the Minnesota statute makes some small benefit available to all parents cannot alter the fact that the most substantial benefit provided by the statute is available only to those parents who send their children to schools that charge tuition. It is simply undeniable that the single largest expense that may be deducted under the Minnesota statute is tuition. The statute is little more than a subsidy of tuition masquerading Page 463 U. S. 409 as a subsidy of general educational expenses. The other deductible expenses are de minimis in comparison to tuition expenses. Contrary to the majority's suggestion, ante at 463 U. S. 401 , the bulk of the tax benefits afforded by the Minnesota scheme are enjoyed by parents of parochial school children not because parents of public school children fail to claim deductions to which they are entitled, but because the latter are simply unable to claim the largest tax deduction that Minnesota authorizes. [ Footnote 2/2 ] Fewer than 100 of more than 900,000 school-age children in Minnesota attend public schools that charge a general tuition. Of the total number of taxpayers who are eligible for the tuition deduction, approximately 96% send their children to religious schools. [ Footnote 2/3 ] Parents who send their children to free public schools are simply ineligible to obtain the full benefit of the deduction except in the unlikely event that they buy $700 worth of pencils, notebooks, and bus rides for their school-age children. Yet parents who pay at least $700 in tuition to nonpublic, sectarian schools can claim the full deduction even if they incur no other educational expenses. That this deduction has a primary effect of promoting religion can easily be determined without any resort to the type of "statistical evidence" that the majority fears would lead to constitutional uncertainty. Ibid. The only factual inquiry necessary is the same as that employed in Nyquist Page 463 U. S. 410 and Sloan v. Lemon, 413 U. S. 825 (1973): whether the deduction permitted for tuition expenses primarily benefits those who send their children to religious schools. In Nyquist, we unequivocally rejected any suggestion that, in determining the effect of a tax statute, this Court should look exclusively to what the statute on its face purports to do and ignore the actual operation of the challenged provision. In determining the effect of the New York statute, we emphasized that "virtually all" of the schools receiving direct grants for maintenance and repair were Roman Catholic schools, 413 U.S. at 413 U. S. 774 , that reimbursements were given to parents "who send their children to nonpublic schools, the bulk of which is concededly sectarian in orientation," id. at 413 U. S. 780 , that "it is precisely the function of New York's law to provide assistance to private schools, the great majority of which are sectarian," id. at 413 U. S. 783 , and that "tax reductions authorized by this law flow primarily to the parents of children attending sectarian, nonpublic schools." Id. at 413 U. S. 794 . Similarly, in Sloan v. Lemon, supra, at 413 U. S. 830 , we considered important to our "consider[ation of] the new law's effect . . . [that]" "more than 90% of the children attending nonpublic schools in the Commonwealth of Pennsylvania are enrolled in schools that are controlled by religious organizations or that have the purpose of propagating and promoting religious faith. [ Footnote 2/4 ] " Page 463 U. S. 411 In this case, it is undisputed that well over 90% of the children attending tuition-charging schools in Minnesota are enrolled in sectarian schools. History and experience likewise instruct us that any generally available financial assistance for elementary and secondary school tuition expenses mainly will further religious education, because the majority of the schools which charge tuition are sectarian. Cf. Nyquist, 413 U.S. at 413 U. S. 785 ; Lemon v. Kurtzman, 403 U.S. at 403 U. S. 628 -630 (Douglas, J., concurring). Because Minnesota, like every other State, is committed to providing free public education, tax assistance for tuition payments inevitably redounds to the benefit of nonpublic, sectarian schools and parents who send their children to those schools. 2 The majority also asserts that the Minnesota statute is distinguishable from the statute struck down in Nyquist in another respect: the tax benefit available under Minnesota law is a "genuine tax deduction," whereas the New York law provided a benefit which, while nominally a deduction, also had features of a "tax credit." Ante at 463 U. S. 396 , and n. 6. Under the Minnesota law, the amount of the tax benefit varies directly with the amount of the expenditure. Under the New York law, the amount of deduction was not dependent upon the amount actually paid for tuition, but was a predetermined amount which depended on the tax bracket of each taxpayer. The deduction was designed to yield roughly the same amount of tax "forgiveness" for each taxpayer. This is a distinction without a difference. Our prior decisions have rejected the relevance of the majority's formalistic distinction between tax deductions and the tax benefit at issue in Nyquist. See Byrne v. Public Funds for Public Schools, 442 U.S. 907 (1979), summarily aff'g 590 F.2d 514 (CA3); Grit v. Wolman, 413 U.S. 901 (1973), summarily aff'g Kosydar v. Wolman, 353 F. Supp. 744 (SD Ohio 1972). [ Footnote 2/5 ] Page 463 U. S. 412 The deduction afforded by Minnesota law was "designed to yield a [tax benefit] in exchange for performing a specific act which the State desires to encourage." Nyquist, supra, at 413 U. S. 789 . Like the tax benefit held impermissible in Nyquist, the tax deduction at issue here concededly was designed to "encourag[e] desirable expenditures for educational purposes." Ante at 463 U. S. 396 . Of equal importance, as the majority also concedes, the "economic consequenc[e]" of these programs is the same, ante at 463 U. S. 397 , n. 6, for in each case, the "financial assistance provided to parents ultimately has an economic effect comparable to that of aid given directly to the schools." Ante at 463 U. S. 399 . See Walz v. Tax Comm'n, 397 U. S. 664 , 397 U. S. 699 (1970) (opinion of Harlan, J.). It was precisely the substantive impact of the financial support, and not its particular form, that rendered the programs in Nyquist and Sloan Page 463 U. S. 413 v. Lemon unconstitutional. See Nyquist, supra, at 413 U. S. 790 -791, 413 U. S. 794 ; Sloan v. Lemon, 413 U.S. at 413 U. S. 832 . C The majority incorrectly asserts that Minnesota's tax deduction for tuition expenses "bears less resemblance to the arrangement struck down in Nyquist than it does to assistance programs upheld in our prior decisions and those discussed with approval in Nyquist. " Ante at 463 U. S. 394 . One might as well say that a tangerine bears less resemblance to an orange than to an apple. The two cases relied on by the majority, Board of Education v. Allen, 392 U. S. 236 (1968), and Everson v. Board of Education, 330 U. S. 1 (1947), are inapposite today for precisely the same reasons that they were inapposite in Nyquist. We distinguished these cases in Nyquist, supra, at 413 U. S. 781 -782, and again in Sloan v. Lemon, supra, at 413 U. S. 832 . Financial assistance for tuition payments has a consequence that "is quite unlike the sort of 'indirect' and 'incidental' benefits that flowed to sectarian schools from programs aiding all parents by supplying bus transportation and secular textbooks for their children. Such benefits were carefully restricted to the purely secular side of church-affiliated institutions, and provided no special aid for those who had chosen to support religious schools. Yet such aid approached the 'verge' of the constitutionally impermissible." Sloan v. Lemon, supra, at 413 U. S. 832 (latter emphasis added). As previously noted, supra, at 463 U. S. 409 , the Minnesota tuition tax deduction is not available to all parents, but only to parents whose children attend schools that charge tuition, which are comprised almost entirely of sectarian schools. More importantly, the assistance that flows to parochial schools as a result of the tax benefit is not restricted, and cannot be restricted, to the secular functions of those schools. Page 463 U. S. 414 II In my view, Minnesota's tax deduction for the cost of textbooks and other instructional materials is also constitutionally infirm. The majority is simply mistaken in concluding that a tax deduction, unlike a tax credit or a direct grant to parents, promotes religious education in a manner that is only "attenuated." Ante at 463 U. S. 399 , 463 U. S. 400 . A tax deduction has a primary effect that advances religion if it is provided to offset expenditures which are not restricted to the secular activities of parochial schools. The instructional materials which are subsidized by the Minnesota tax deduction plainly may be used to inculcate religious values and belief. In Meek v. Pittenger, 421 U.S. at 421 U. S. 366 , we held that even the use of "wholly neutral, secular instructional material and equipment" by church-related schools contributes to religious instruction because "'[t]he secular education those schools provide goes hand in hand with the religious mission that is the only reason for the schools' existence.'" In Wolman v. Walter, 433 U.S. at 433 U. S. 249 -250, we concluded that precisely the same impermissible effect results when the instructional materials are loaned to the pupil or his parent, rather than directly to the schools. We stated that "it would exalt form over substance if this distinction were found to justify a result different from that in Meek. " Id. at 433 U. S. 250 . It follows that a tax deduction to offset the cost of purchasing instructional materials for use in sectarian schools, like a loan of such materials to parents, "necessarily results in aid to the sectarian school enterprise as a whole," and is therefore a "substantial advancement of religious activity" that "constitutes an impermissible establishment of religion." Meek v. Pittenger, supra, at 421 U. S. 366 . There is no reason to treat Minnesota's tax deduction for textbooks any differently. Secular textbooks, like other secular instructional materials, contribute to the religious mission of the parochial schools that use those books. Although this Court upheld the loan of secular textbooks to religious Page 463 U. S. 415 schools in Board of Education v. Allen, supra, the Court believed at that time that it lacked sufficient experience to determine "based solely on judicial notice" that "the processes of secular and religious training are so intertwined that secular textbooks furnished to students by the public [will always be] instrumental in the teaching of religion." 392 U.S. at 392 U. S. 248 . This basis for distinguishing secular instructional materials and secular textbooks is simply untenable, and is inconsistent with many of our more recent decisions concerning state aid to parochial schools. See Wolman v. Walter, 433 U.S. at 433 U. S. 257 -258 (MARSHALL, J., concurring in part and dissenting in part); id. at 433 U. S. 264 -266 (STEVENS, J., concurring in part and dissenting in part); Meek v. Pittenger, supra, at 421 U. S. 378 (BRENNAN, J., concurring in part and dissenting in part). In any event, the Court's assumption in Allen that the textbooks at issue there might be used only for secular education was based on the fact that those very books had been chosen by the State for use in the public schools. 392 U.S. at 392 U. S. 244 -245. In contrast, the Minnesota statute does not limit the tax deduction to those books which the State has approved for use in public schools. Rather, it permits a deduction for books that are chosen by the parochial schools themselves. Indeed, under the Minnesota statutory scheme, textbooks chosen by parochial schools but not used by public schools are likely to be precisely the ones purchased by parents for their children's use. Like the law upheld in Board of Education v. Allen, supra, Minn.Stat. §§ 123.932 and 123.933 (1982) authorize the State Board of Education to provide textbooks used in public schools to nonpublic school students. Parents have little reason to purchase textbooks that can be borrowed under this provision. [ Footnote 2/6 ] Page 463 U. S. 416 III There can be little doubt that the State of Minnesota intended to provide, and has provided, "[s]ubstantial aid to the educational function of [church-related] schools," and that the tax deduction for tuition and other educational expenses "necessarily results in aid to the sectarian school enterprise as a whole." Meek v. Pittenger, supra, at 421 U. S. 366 . It is beside the point that the State may have legitimate secular reasons for providing such aid. In focusing upon the contributions made by church-related schools, the majority has lost sight of the issue before us in this case. "The sole question is whether state aid to these schools can be squared with the dictates of the Religion Clauses. Under our system, the choice has been made that government is to be entirely excluded from the area of religious instruction. . . . The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice, and that, while some involvement and entanglement are inevitable, lines must be drawn." Lemon v. Kurtzman, 403 U.S. at 403 U. S. 625 . In my view, the lines drawn in Nyquist were drawn on a reasoned basis, with appropriate regard for the principles of neutrality embodied by the Establishment Clause. I do not believe that the same can be said of the lines drawn by the majority today. For the first time, the Court has upheld financial support for religious schools without any reason at all to assume that the support will be restricted to the secular functions of those schools and will not be used to support religious Page 463 U. S. 417 instruction. This result is flatly at odds with the fundamental principle that a State may provide no financial support whatsoever to promote religion. As the Court stated in Everson, 330 U.S. at 330 U. S. 16 , and has often repeated, see, e.g., Meek v. Pittenger, 421 U.S. at 421 U. S. 359 ; Nyquist, 413 U.S. at 413 U. S. 780 : "No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion." I dissent. [ Footnote 2/1 ] As we noted in Nyquist, it is "firmly established" that a statute may impermissibly advance religion "even though it does not aid one religion more than another, but merely benefits all religions alike." 413 U.S. at 413 U. S. 771 . See, e.g., Wolman v. Walter, 433 U. S. 229 , 433 U. S. 248 -254 (1977); Meek v. Pittenger, 421 U. S. 349 , 421 U. S. 364 -366 (1975). [ Footnote 2/2 ] Even if the Minnesota statute allowed parents of public school students to deduct expenses that were likely to be equivalent to the tuition expenses of private school students, it would still be unconstitutional. Insofar as the Minnesota statute provides a deduction for parochial school tuition, it provides a benefit to parochial schools that furthers the religious mission of those schools. Nyquist makes clear that the State may not provide any financial assistance to parochial schools unless that assistance is limited to secular uses. 413 U.S. at 413 U. S. 780 -785. [ Footnote 2/3 ] Indeed, in this respect the Minnesota statute has an even greater tendency to promote religious education than the New York statute struck down in Nyquist, since the percentage of private schools that are nonsectarian is far greater in New York than in Minnesota. [ Footnote 2/4 ] Similarly, in Meek v. Pittenger, 421 U.S. at 421 U. S. 363 , we held that "the direct loan of instructional material and equipment has the unconstitutional primary effect of advancing religion because of the predominantly religious character of the schools benefiting from the Act." See id. at 421 U. S. 366 . We relied on a finding that, "of the 1,320 nonpublic schools in Pennsylvania that . . . qualify for aid under Act 195, more than 75% are church-related or religiously affiliated educational institutions." Id. at 421 U. S. 364 . This could not possibly have been ascertained from the text of the facially neutral statute, but could only be determined on the basis of an "empirical inquiry." And in Wolman v. Walter, 433 U.S. at 433 U. S. 234 , the Court relied on a stipulation that "during the 1974-1975 school year, there were 720 chartered nonpublic schools in Ohio. Of these, all but 29 were sectarian. More than 96% of the nonpublic enrollment attended sectarian schools, and more than 92% attended Catholic schools." [ Footnote 2/5 ] In Byrne v. Public Funds for Public Schools, we summarily affirmed a decision striking down a program of tax deductions. The amount of deduction was fixed at $1,000 for each dependent attending a tuition-charging nonpublic school. This decision makes clear that the constitutionality of a tax benefit does not turn on whether the benefit is in the form of a deduction from gross income or a tax "credit." In Grit v. Wolman, we summarily affirmed a decision invalidating a system of tax credits for nonpublic school parents in which the amount of the credit depended on the amount of tuition paid. This decision demonstrates that it is irrelevant whether the amount of a tax benefit is proportionate to the amount of tuition paid or is simply an arbitrary sum. The Court's affirmance of the result in each of these cases was a "decision on the merits, entitled to precedential weight." Meek v. Pittenger, supra, at 421 U. S. 366 -367, n. 16. The deduction at issue in this case does differ from the tax benefits in Nyquist and our other prior cases in one respect: by its very nature, the deduction embodies an inherent limit on the extent to which a State may subsidize religious education. Unlike a tax credit, which may wholly subsidize the cost of religious education if the size of the credit is sufficiently large, or a tax deduction of an arbitrary sum, a deduction of tuition payments from adjusted gross income can never "provide a basis for . . . complete subsidization of . . . religious schools." Nyquist, 413 U.S. at 413 U. S. 782 , n. 38 (emphasis in original). See also id. at 413 U. S. 779 , 787, n. 44. Nyquist made clear, however, that absolutely no subsidization is permissible unless it is restricted to the purely secular functions of those schools. See, e.g., id. at 413 U. S. 777 -779, 413 U. S. 787 -788. [ Footnote 2/6 ] For similar reasons, I would hold that the deduction for transportation expenses is constitutional only insofar as it relates to the costs of traveling between home and school. See Wolman v. Walter, 433 U.S. at 433 U. S. 252 -255 (reimbursement of nonpublic schools for field trip transportation impermissibly fosters religion because the nonpublic schools control the timing, frequency, and destination of the trips, which, for sectarian schools, are an integral part of the sectarian education). I would therefore reverse the judgment of the Court of Appeals and remand for a determination whether the insignificant deductions that remain -- e.g., deductions for transportation between home and school and for pencils and notebooks -- are severable from the other deductions.

The Supreme Court upheld a Minnesota statute allowing taxpayers to deduct expenses for tuition, textbooks, and transportation for their children attending elementary or secondary school, including parochial schools. The Court found that the statute had a secular purpose of ensuring a well-educated citizenry and did not have the primary effect of advancing religion. The deduction was neutral and available to all parents, regardless of their children's school choice. The Court distinguished this case from previous cases striking down tax benefits for parochial schools, as the deduction in this case was not a direct subsidy and had inherent limits on the state's ability to subsidize religious education.

Religion

Thomas v. Review Board of the Indiana Employment Security Division

https://supreme.justia.com/cases/federal/us/450/707/

U.S. Supreme Court Thomas v. Review Bd., Ind. Empl. Sec. Div., 450 U.S. 707 (1981) Thomas v. Review Board of the Indiana Employment Security Division No. 79-952 Argued October 7, 1980 Decided April 6, 1981 450 U.S. 707 CERTIORARI TO THE SUPREME COURT OF INDIANA Syllabus Petitioner, a Jehovah's Witness, was initially hired to work in his employer's roll foundry, which fabricated sheet steel for a variety of industrial uses, but when the foundry was closed, he was transferred to a department that fabricated turrets for military tanks. Since all of the employer's remaining departments to which transfer might have been sought were engaged directly in the production of weapons, petitioner asked to be laid off. When that request was denied, he quit, asserting that his religious beliefs prevented him from participating in the production of weapons. He applied for unemployment compensation benefits under the Indiana Employment Security Act, and testified at an administrntive hearing that he believed that contributing to the production of arms violated his religion, although he could, in good conscience, engage indirectly in the production of materials that might be used ultimately to fabricate arms. The hearing referee found that petitioner had terminated his employment because of his religious convictions, but held that petitioner was not entitled to benefits because his voluntary termination was not based upon a "good cause [arising] in connection with [his] work," as required by the Indiana statute. Respondent Review Board affirmed, but the Indiana Court of Appeals reversed, holding that the Indiana statute, as applied, improperly burdened petitioner's right to the free exercise of his religion. The Indiana Supreme Court vacated the Court of Appeals' decision and denied petitioner benefits, holding that he had quit voluntarily for personal reasons, his belief being more "personal philosophical choice" than religious belief. The court also concluded that, in any event, a termination motivated by religion is not for "good cause" objectively related to the work, as required by the Indiana statute, and that denying benefits created only an indirect burden on petitioner's free exercise right, which burden was justified by legitimate state interests. Held: The State's denial of unemployment compensation benefits to petitioner violated his First Amendment right to free exercise of religion under Sherbert v. Verner, 374 U. S. 398 . Pp. 450 U. S. 713 -720. (a) The Indiana Supreme Court improperly relied on the facts that petitioner was "struggling" with his beliefs and that he was not able Page 450 U. S. 708 to "articulate" his belief precisely. Courts should not undertake to dissect religious beliefs on such grounds. The Indiana court also erred in apparently giving significant weight to the fact that another Jehovah's Witness with whom petitioner consulted had no scruples about working on tank turrets. The guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect. The narrow function of a reviewing court in this context is to determine whether there was an appropriate finding that petitioner terminated his work because such work was forbidden by his religion. The record shows that petitioner terminated his employment for religious reasons. Pp. 450 U. S. 713 -716. (b) A person may not be compelled to choose between the exercise of a First Amendment right and participation in an otherwise available public program. It is true that the Indiana law does not compel a violation of conscience, but where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substnntial. Pp. 450 U. S. 716 -718. (c) The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest. However, when the inquiry is properly narrowed to focus only on the threat to state interests, neither of the purposes urged to sustain the disqualifying provision of the Indiana statute -- to avoid the widespread unemployment and consequent burden on the fund resulting if people were permitted to leave jobs for "personal" reasons and to avoid a detailed probing by employers into job applicants' religious beliefs -- is sufficiently compelling to justify the burden upon petitioner's religious liberty. Pp. 450 U. S. 718 -719. (d) Payment of benefits to petitioner would not involve the State in fostering a religious faith in violation of the Establishment Clause. The extension of benefits reflects no more than the governmental obligation of neutrality, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall. Pp. 450 U. S. 719 -720. 271 Ind. ___, 391 N.E.2d 1127 , reversed. BURGER, C. J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, MARSHALL, POWELL, and STEVENS, JJ., joined, and in Parts I, II, and III of which BLACKMUN, J., joined. BLACKMUN, J., Page 450 U. S. 709 filed a statement concurring in part and concurring in the result, post, p. 450 U. S. 720 . REHNQUIST, J., filed a dissenting opinion, post, p. 450 U. S. 720 . CHIEF JUSTICE BURGER delivered the opinion of the Court. We granted certiorari to consider whether the State's denial of unemployment compensation benefits to the petitioner, a Jehovah's Witness who terminated his job because his religious beliefs forbade participation in the production of armaments, constituted a violation of his First Amendment right to free exercise of religion. 444 U.S. 1070 (1980). I Thomas terminated his employment in the Blaw-Knox Foundry & Machinery Co. when he was transferred from the roll foundry to a department that produced turrets for military tanks. He claimed his religious beliefs prevented him from participating in the production of war materials. The respondent Review Board denied him unemployment compensation benefits by applying disqualifying provisions of the Indiana Employment Security Act. [ Footnote 1 ] Page 450 U. S. 710 Thomas, a Jehovah's Witness, was hired initially to work in the roll foundry at Blaw-Knox. The function of that department was to fabricate sheet steel for a variety of industrial uses. On his application form, he listed his membership in the Jehovah's Witnesses, and noted that his hobbies were Bible study and Bible reading. However he placed no conditions on his employment, and he did not describe his religious tenets in any detail on the form. Approximately a year later, the roll foundry closed, and Blaw-Knox transferred Thomas to a department that fabricated turrets for military tanks. On his first day at this new job, Thomas realized that the work he was doing was weapons related. He checked the bulletin board where in-plant openings were listed, and discovered that all of the remaining departments at Blaw-Knox were engaged directly in the production of weapons. Since no transfer to another department would resolve his problem, he asked for a layoff. When that request was denied, he quit, asserting that he could not work on weapons without violating the principles of his religion. The record does not show that he was offered any nonweapons work by his employer, or that any such work was available. Upon leaving Blaw-Knox, Thomas applied for unemployment compensation benefits under the Indiana Employment Security Act. [ Footnote 2 ] At an administrative hearing where he was Page 450 U. S. 711 not represented by counsel, he testified that he believed that contributing to the production of arms violated his religion. He said that, when he realized that his work on the tank turret line involved producing weapons for war, he consulted another Blaw-Knox employee -- a friend and fellow Jehovah's Witness. The friend advised him that working on weapons parts at Blaw-Know was not "unscriptural." Thomas was not able to "rest with" this view, however. He concluded that his friend's view was based upon a less strict reading of Witnesses' principles than his own. When asked at the hearing to explain what kind of work his religious convictions would permit, Thomas said that he would have no difficulty doing the type of work that he had done at the roll foundry. He testified that he could, in good conscience, engage indirectly in the production of materials that might be used ultimately to fabricate arms -- for example, as an employee of a raw material supplier or of a roll foundry. [ Footnote 3 ] The hearing referee found that Thomas' religious beliefs specifically precluded him from producing or directly aiding in the manufacture of items used in warfare. [ Footnote 4 ] He also found that Thomas had terminated his employment because of these religious convictions. The referee reported: "Claimant continually searched for a transfer to another department which would not be so armament related; Page 450 U. S. 712 however, this did not materialize, and prior to the date of his leaving, claimant requested a layoff, which was denied; and on November 6, 1975, claimant did quit due to his religious convictions. [ Footnote 5 ]" The referee concluded nonetheless that Thomas' termination was not based upon a "good cause [arising] in connection with [his] work," as required by the Indiana unemployment compensation statute. Accordingly, he was held not entitled to benefits. The Review Board adopted the referee's findings and conclusions, and affirmed the denial of benefits. [ Footnote 6 ] The Indiana Court of Appeals, accepting the finding that Thomas terminated his employment "due to his religious convictions," reversed the decision of the Review Board, and held that § 2215-1, as applied, improperly burdened Thomas' right to the free exercise of his religion. Accordingly, it ordered the Board to extend benefits to Thomas. 178 Ind.App. , 381 N.E.2d 888 (1978). The Supreme Court of Indiana, dividing 3-2, vacated the decision of the Court of Appeals, and denied Thomas benefits. 271 Ind. ___, 391 N. E2d 1127 (1979). With reference to the Indiana unemployment compensation statute, the court said: "It is not intended to facilitate changing employment or to provide relief for those who quit work voluntarily for personal reasons. Voluntary unemployment is not compensable under the purpose of the Act, which is to provide benefits for persons unemployed through no fault of their own." "Good cause which justifies voluntary termination must Page 450 U. S. 713 be job-related and objective in character." Id. at 391 N.E.2d at 1129 (footnotes omitted). The court held that Thomas had quit voluntarily ,for personal reasons, and therefore did not qualify for benefits. Id. at ___, 391 N.E.2d at 1130. In discussing the petitioner's free exercise claim, the court stated: "A personal philosophical choice, rather than a religious choice, does not rise to the level of a first amendment claim." Id. at ___, 391 N.E.2d at 1131. The court found the basis and the precise nature of Thomas' belief unclear -- but it concluded that the belief was more "personal philosophical choice" than religious belief. Nonetheless, it held that, even assuming that Thomas quit for religious reasons, he would not be entitled to benefits: under Indiana law, a termination motivated by religion is not for "good cause" objectively related to the work. The Indiana court concluded that denying Thomas benefits would create only an indirect burden on his free exercise right, and that the burden was justified by the legitimate state interest in preserving the integrity of the insurance fund and maintaining a stable workforce by encouraging workers not to leave their jobs for personal reasons. Finally, the court held that awarding unemployment compensation benefits to a person who terminates employment voluntarily for religious reasons, while denying such benefits to persons who terminate for other personal but nonreligious reasons, would violate the Establishment Clause of the First Amendment. The judgment under review must be examined in light of our prior decisions, particularly Sherbert v. Verner, 374 U. S. 398 (1963). II Only beliefs rooted in religion are protected by the Free Exercise Clause, which, by its terms, gives special protection to the exercise of religion. Sherbert v. Verner, supra; 406 U. S. S. 714� v. Yoder,@ 406 U. S. 205 , 406 U. S. 215 -216 (1972). The determination of what is a "religious" belief or practice is more often than not a difficult and delicate task, as the division in the Indiana Supreme Court attests. [ Footnote 7 ] However, the resolution of that question is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection. In support of his claim for benefits, Thomas testified: "Q. And then when it comes to actually producing the tank itself, hammering it out; that you will not do. . . ." "A. That's right, that's right when . . . I'm daily faced with the knowledge that these are tanks. . . ." " * * * *" "A. I really could not, you know, conscientiously continue to work with armaments. It would be against all of the . . religious principles that . . I have come to learn. . . ." 271 Ind. at ___, 391 N.E.2d at 1132. Based upon this and other testimony, the referee held that Thomas "quit due to his religious convictions." [ Footnote 8 ] The Review Board adopted that finding, [ Footnote 9 ] and the finding is not challenged in this Court. The Indiana Supreme Court apparently took a different view of the record. It concluded that, "although the claimant's reasons for quitting were described as religious, it was unclear what his belief was, and what the religious basis of his belief was. [ Footnote 10 ]" In that court's view, Thomas had made a merely "personal philosophical choice, rather than a religious choice." [ Footnote 11 ] Page 450 U. S. 715 In reaching its conclusion, the Indiana court seems to have placed considerable reliance on the facts that Thomas was "struggling" with his beliefs, and that he was not able to "articulate" his belief precisely. It noted, for example, that Thomas admitted before the referee that he would not object to "working for United States Steel or Inland Steel . . . produc[ing] the raw product necessary for the production of any kind of tank . . . [because I] would not be a direct party to whoever they shipped it to [and] would not be . . . chargeable in . . . conscience. . . ." 271 Ind. at ___, 391 N.E.2d at 1131. The court found this position inconsistent with Thomas' stated opposition to participation in the production of armaments. But Thomas' statements reveal no more than that he found work in the roll foundry sufficiently insulated from producing weapons of war. We see, therefore, that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one. Courts should not undertake to dissect religious beliefs because the believer admits that he is "struggling" with his position or because his beliefs are not articulated with the clarity and precision that a more sophisticated person might employ. The Indiana court also appears to have given significant weight to the fact that another Jehovah's Witness had no scruples about working on tank turrets; for that other Witness, at least, such work was "scripturally" acceptable. Intrafaith differences of that kind are not uncommon among followers of a particular creed, and the judicial process is singularly ill-equipped to resolve such differences in relation to the Religion Clauses. One can, of course, imagine an asserted claim so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause; but that is not the case here, and the guarantee of free exercise is not limited to beliefs which are shared by all of the members Page 450 U. S. 716 of a reljgious sect. Particularly in this sensitive area, it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation. The narrow function of a reviewing court in this context is to determine whether there was an appropriate finding that petitioner terminated his work because of an honest conviction that such work was forbidden by his religion. Not surprisingly, the record before the referee and the Review Board was not made with an eye to the microscopic examination often exercised in appellate Judicial review. However, judicial review is confined to the facts as found and conclusions drawn. On this record, it is clear that Thomas terminated his employment for religious reasons. III A More than 30 years ago, the Court held that a person may not be compelled to choose between the exercise of a First Amendment right and participation in an otherwise available public program. A state may not "exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith because of their faith, or lack of it, from receiving the benefits of public welfare legislation." Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 16 (1947) (emphasis deleted). Later, in Sherbert, the Court examined South Carolina's attempt to deny unemployment compensation benefits to a Sabbatarian who declined to work on Saturday. In sustaining her right to receive benefits, the Court held: "The ruling [disqualifying Mrs. Sherbert from benefits because of her refusal to work on Saturday in violation of her faith] forces her to choose between following the Page 450 U. S. 717 precepts of.her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against [her] for her Saturday worship." 374 U.S. at 374 U. S. 404 . The respondent Review Board argues, and the Indiana Supreme Court held, that the burden upon religion here is only the indirect consequence of public welfare legislation that the State clearly has authority to enact. "Neutral objective standards must be met to qualify for compensation." 271 Ind. at ___, 391 N.E.2d at 1130. Indiana requires applicants for unemployment compensation to show that they left work for "good cause in connection with the work." Ibid. A similar argument was made and rejected in Sherbert, however. It is true that, as in Sherbert, the Indiana law does not compel a violation of conscience. But "this is only the beginning, not the end, of our inquiry." 374 U.S. at 374 U. S. 403 -404. In a variety of ways, we have said that "[a] regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion." Wisconsin v. Yoder, 406 U.S. at 406 U. S. 220 . Cf. Walz v. Tax Comm'n, 397 U. S. 664 (1970). Here as in Sherbert, the employee was put to a choice betweell fidelity to religious belief or cessation of work; the coercive impact on Thomas is indistinguishable from Sherbert, where the Court held: "[N]ot only is it apparent that appellant's declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to forego that practice is unmistakable." 374 U.S. at 374 U. S. 404 . Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies Page 450 U. S. 718 such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial. The respondents also contend that Sherbert is inapposite because, in that case, the employee was dismissed by the employer's action. But we see that Mrs. Sherbert was dismissed because she refused to work on Saturdays after the plant went to a 6-day workweek. Had Thomas simply presented himself at the Blaw-Knox plant turret line but refused to perform any assigned work, it must be assumed that he, like Sherbert, would have been terminated by the employer's action, if no other work was available. In both cases, the termination flowed from the fact that the employment, once acceptable, became religiously objectionable because of changed conditions. B The mere fact that the petitioner's religious practice is burdened by a governmental program does not mean that an exemption accommodating his practice must be granted. The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest. However it is still true that "[t]he essence of all that has been said and written on the subject is that only those interests of the highest order . . . can overbalance legitimate claims to the free exercise of religion." Wisconsin v. Yoder, supra, at 406 U. S. 215 . The purposes urged to sustain the disqualifying provisio of the Indiana unemployment compensation scheme are twofold: (1) to avoid the widespread unemployment and the consequent burden on the fund resulting if people were permitted to leave jobs for "personal" reasons; [ Footnote 12 ] and (2) to Page 450 U. S. 719 avoid a detailed probing by employers into job applicants' religious beliefs. These are by no means unimportant considerations. When the focus of the inquiry is properly narrowed, however, we must conclude that the interests advanced by the State do not justify the burden placed on free exercise of religion. There is no evidence in the record to indicate that the number of people who find themselves in the predicament of choosing between benefits and religious beliefs is large enough to create "widespread unemployment," or even to seriously affect unemployment -- and no such claim was advanced by the Review Board. Similarly, although detailed inquiry by employers into applicants' religious beliefs is undesirable, there is no evidence in the record to indicate that such inquiries will occur in Indiana, or that they have occurred in any of the states that extend benefits to people in the petitioner's position. Nor is there any reason to believe that the number of people terminating employment for religious reasons will be so great as to motivate employers to make such inquiries. Neither of the interests advanced is sufficiently compelling to justify the burden upon Thomas' religious liberty. Accordingly, Thomas is entitled to receive benefits unless, as the respondents contend and the Indiana court held, such payment would violate the Establishment Clause. IV The respondents contend that to compel benefit payments to Thomas involves the State in fostering a religious faith. There is, in a sense, a "benefit" to Thomas deriving from his religious beliefs, but this manifests no more than the tension between the two Religious Clauses which the Court resolved in Sherbert: "In holding as we do, plainly we are not fostering the 'establishment' of the Seventh-day Adventist religion Page 450 U. S. 720 in South Carolina, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall." Sherbert v. Verner, 374 U.S. at 374 U. S. 409 . See also Wisconsin v. Yoder, 406 U.S. at 406 U. S. 220 -221; Walz v. Tax Comm'n, 397 U.S. at 397 U. S. 668 -669; O'Hair v. Andrus, 198 U.S.App.D.C.198, 201-204, 613 F.2d 931, 934-937 (1979) (Leventhal, J.) . Unless we are prepared to overrule Sherbert, supra, Thomas cannot be denied the benefits due him on the basis of the findings of the referee, the Review Board, and the Indiana Court of Appeals that he terminated his employment because of his religious convictions. Reversed. JUSTICE BLACKMUN joins Parts I, II, and III of the Court's opinion. As to Part IV thereof, he concurs in the result. [ Footnote 1 ] Indiana Code § 22-4-15-1 (Supp. 1978) provides: "With respect to benefit periods including extended benefit periods established subsequent to July 6, 1974, and before July 3, 1977, an individual who has voluntarily left his employment without good cause in connection with the work or who was discharged from his employment for just cause shall be ineligible for waiting period or benefit rights for the week in which the disqualifying separation occurred and until he has subsequently earned remuneration in employment equal to or exceeding the weekly benefit amount of his claim in each of ten (10) weeks. The weeks of a disqualification period remaining at the expiration of an individual's benefit period will be carried forward to an extended benefit period or to the benefit period of a subsequent claim only if the first week of such extended benefit period or subsequent benefit period falls within ten (10) consecutive weeks from the beginning of the disqualification period imposed on the prior claim." [ Footnote 2 ] Ind.Code § 22-4-1-1 et seq. (1976 and Supp. 1978). [ Footnote 3 ] It is reasonable to assume that some of the sheet steel processed in the roll foundry may have found its way into tanks or other weapons; the record, however, contains no evidence or finding on this point. [ Footnote 4 ] The referee indicated, App. to Pet. for Cert. 2a: "The evidence reveals that approximate [ sic ] two to three weeks prior to claimant's date of leaving, the 'Roll Foundry' was closed permanently and claimant was transferred to the terret [ sic ] line. [He], at this time, real [ sic ] realized that all of the other functions at The Blaw-Knox company were engaged in producing arms for the Armament Industry. Claimant's religious beliefs specifically exempts [ sic ] claimants from producing or aiding in the manufacture of items used in the advancement of war." [ Footnote 5 ] Id. at 2a-3a (emphasis added by petitioner). [ Footnote 6 ] The Review Board, like the referee, found that Thomas had left his job for religious reasons, id. at 5a: "The evidence of record indicates that claimant . . . left his employment voluntarily because his religious beliefs . . . would not allow him to continue to work producing arms. . . ." [ Footnote 7 ] See, e.g., Torcaso v. Watkins, 367 U. S. 488 , 367 U. S. 495 (1961); United States v. Ballard, 322 U. S. 78 (1944). [ Footnote 8 ] See n 4, and text at n 5, supra. [ Footnote 9 ] See n 6, supra. [ Footnote 10 ] 271 Ind. at ___, 391 N.E.2d at 1133. [ Footnote 11 ] Id. at ___, 391 N.E.2d at 1131. [ Footnote 12 ] A similar interest -- the integrity of the insurance fund -- was advanced and rejected in Sherbert v. Verner, 374 U. S. 398 , 374 U. S. 407 (1963). JUSTICE REHNQUIST, dissenting. The Court today holds that the State of Indiana is constitutionally required to provide direct financial assistance to a person solely on the basis of his religious beliefs. Because I believe that the decision today adds mud to the already muddied waters of First Amendment jurisprudence, I dissent. I The Court correctly acknowledges that there is a "tension" between the Free Exercise and Establishment Clauses of the First Amendment of the United States Constitution. Although the relationship of the two Clauses has been the subject of much commentary, the "tension" is of fairly recent Page 450 U. S. 721 vintage, unknown at the time of the framing and adoption of the First Amendment. The causes of the tension, it seems to me, are threefold. First, the growth of social welfare legislation during the latter part of the 20th century has greatly magnified the potential for conflict between the two Clauses, since such legislation touches the individual at so many points in his life. Second, the decision by this Court that the First Amendment was "incorporated" into the Fourteenth Amendment and thereby made applicable against the States, Stromberg v. California, 283 U. S. 359 (1931); Cantwell v. Connecticut, 310 U. S. 296 (1940), similarly multiplied the number of instances in which the "tension" might arise. The third, and perhaps most important, cause of the tension is our overly expansive interpretation of both Clauses. By broadly construing both Clauses, the Court has constantly narrowed the channel between the Scylla and Charybdis through which any state or federal action must pass in order to survive constitutional scrutiny. None of these developments could have been foreseen by those who framed and adopted the First Amendment. The First Amendment was adopted well before the growth of much social welfare legislation and at a time when the Federal Government was, in a real sense, considered a government of limited delegated powers. Indeed, the principal argument against adopting the Constitution without a "Bill of Rights" was not that such all enactment would be undesirable, but that it was unnecessary because of the limited nature of the Federal Government. So long as the Government enacts little social welfare legislation, as was the case in 1791, there are few occasions in which the two Clauses may conflict. Moreover, as originally enacted, the First Amendment applied only to the Federal Government, not the government of the States. Barron v. Baltimore , 7 Pet. 243 (1833). The Framers could hardly anticipate Barron being superseded by the "selective incorporation" doctrine adopted by the Court, a decision which greatly expanded the number of statutes Page 450 U. S. 722 which would be subject to challenge under the First Amendment. Because those who drafted and adopted the First Amendment could not have foreseen either the growth of social welfare legislation or the incorporation of the First Amendment into the Fourteenth Amendment, we simply do not know how they would view the scope of the two Clauses. II The decision today illustrates how far astray the Court has gone in interpreting the Free Exercise and Establishment Clauses of the First Amendment. Although the Court holds that a State is constitutionally required to provide direct financial assistance to persons solely on the basis of their religious beliefs and recognizes the "tension" between the two Clauses, it does little to help resolve that tension or to offer meaningful guidance to other courts which must decide cases like this on a day-by-day basis. Instead, it simply asserts that there is no Establishment Clause violation here, and leaves the tension between the two Religion Clauses to be resolved on a case-by-case basis. As suggested above, however, I believe that the "tension" is largely of this Court's own making, and would diminish almost to the vanishing point if the Clauses were properly interpreted. Just as it did in Sherbert v. Verner, 374 U. S. 398 (1963), the Court today reads the Free Exercise Clause more broadly than is warranted. As to the proper interpretation of the Free Exercise Clause, I would accept the decision of Braunfeld v. Brown, 366 U. S. 599 (1961), and the dissent in Sherbert. In Braunfeld, we held that Sunday closing laws do not violate the First Amendment rights of Sabbatarians. Chief Justice Warren explained that the statute did not make unlawful any religious practices of appellants; it simply made the practice of their religious beliefs more expensive. We concluded that "[t]o strike down, without the most critical scrutiny, legislation which imposes only an indirect burden on the exercise of religion, i.e., legislation which does not Page 450 U. S. 723 make unlawful the religious practice itself, would radically restrict the operating latitude of the legislature." 366 U.S. at 366 U. S. 606 . Likewise, in this case, it cannot be said that the State discriminated against Thomas on the basis of his religious beliefs or that he was denied benefits because he was a Jehovah's Witness. Where, as here, a State has enacted a general statute, the purpose and effect of which is to advance the State's secular goals, the Free Exercise Clause does not, in my view, require the State to conform that statute to the dictates of religious conscience of any group. As Justice Harlan recognized in his dissent in Sherbert v. Verner, supra: "Those situations in which the Constitution may require special treatment on account of religion are . . . few and far between." Id. at 374 U. S. 423 . Like him, I believe that, although a State could choose to grant exemptions to religious persons from state unemployment regulations, [ Footnote 2/1 ] a State is not constitutionally compelled to do so. Id. at 374 U. S. 422 -423. [ Footnote 2/2 ] Page 450 U. S. 724 The Court's treatment of the Establishment Clause issue is equally unsatisfying. Although today's decision requires a State to provide direct financial asistance to persons solely on the basis of their religious beliefs, the Court nonetheless blandly assures us, just as it did in Sherbert, that its decision "plainly" does not foster the "establishment" of religion. Ante at 450 U. S. 719 . I would agree that the Establishment Clause, properly interpreted, would not be violated if Indiana voluntarily Page 450 U. S. 725 chose to grant unemployment benefits to those persons who left their jobs for religious reasons. But I also believe that the decision below is inconsistent with many of our prior Establishment Clause cases. Those cases, if faithfully applied, would require us to hold that such voluntary action by a State did violate the Establishment Clause. JUSTICE STEWART noted this point in his concurring opinion in Sherbert, 374 U.S. at 374 U. S. 414 -417. He observed that decisions like Sherbert, and the one rendered today, squarely conflict with the more extreme language of many of our prior Establishment Clause cases. In Everson v Board of Education, 330 U. S. 1 (1949), the Court stated that the Establishment Clause bespeaks a "government . . . stripped of all power . . . to support, or otherwise to assist any or all religions . . . ," and no State "can pass laws which aid one religion . . . [or] all religions." Id. at 330 U. S. 11 , 330 U. S. 15 . In Torcaso v. Watkins, 367 U. S. 488 , 367 U. S. 495 (1961), the Court asserted that the government cannot "constitutionally pass laws or impose requirements which aid all religions as against non-believers." And in Abington School District v. Schempp, 374 U. S. 203 , 374 U. S. 217 (1963), the Court adopted Justice Rutledge's words in Everson that the Establishment Clause forbids " every form of public aid or support for religion.'" See also Engel v. Vitale, 370 U. S. 421 , 370 U. S. 431 (1962). In recent years, the Court has moved away from the mechanistic "no aid to religion" approach to the Establishment Clause and has stated a three-part test to determine the constitutionality of governmental aid to religion. See Lemon v. Kurtzman, 403 U. S. 602 (1971); Committee for Public Education v. Nyquist, 413 U. S. 756 , 413 U. S. 772 -773 (1973). First, the statute must serve a secular legislative purpose. Second, it must have a "primary effect" that neither advances nor inhibits religion. And third, the State and its administration must avoid excessive entanglement with religion. Walz v. Tax Comm'n, 397 U. S. 664 (1970). Page 450 U. S. 726 It is not surprising that the Court today makes no attempt to apply those principles to the facts of this case. If Indiana were to legislate what the Court today requires -- an unemployment compensation law which permitted benefits to be granted to those persons who quit their jobs for religious reasons -- the statute would "plainly" violate the Establishment Clause as interpreted in such cases as Lemon and Nyquist. First, although the unemployment statute as a whole would be enacted to serve a secular legislative purpose, the proviso would clearly serve only a religious purpose. It would grant financial benefits for the sole purpose of accommodating religious beliefs. Second, there can be little doubt that the primary effect of the proviso would be to "advance" religion by facilitating the exercise of religious belief. Third, any statute including such a proviso would surely "entangle" the State in religion far more than the mere grant of tax exemptions, as in Walz, or the award of tuition grants and tax credits, as in Nyquist. By granting financial benefits to persons solely on the basis of their religious beliefs, the State must necessarily inquire whether the claimant's belief is "religious" and whether it is sincerely held. Otherwise, any dissatisfied employee may leave his job without cause and claim that he did so because his own particular beliefs required it. It is unclear from the Court's opinion whether it has temporarily retreated from its expansive view of the Establishment Clause or wholly abandoned it. I would welcome the latter. Just as I think that Justice Harlan in Sherbert correctly stated the proper approach to free exercise questions, I believe that JUSTICE STEWART, dissenting in Abington School District v. Schempp, supra, accurately stated the reach of the Establishment Clause. He explained that the Establishment Clause is limited to "government support of proselytizing activities of religious sects by throwing the weight of secular authorit[ies] behind the dissemination of religious tenets." Id. at 374 U. S. 314 . See McCollum v. Board of Education, 333 U. S. 203 , 333 U. S. 248 (1948) (Reed, J., dissenting) Page 450 U. S. 727 (impermissible aid is only "purposeful assistance directly to the church itself or to some religious group . . . performing ecclesiastical functions"). Conversely, governmental assistance which does not have the effect of "inducing" religious belief, but instead merely "accommodates" or implements an independent religious choice does not impermissibly involve the government in religious choices, and therefore does not violate the Establishment Clause of the First Amendment. I would think that, in this case as in Sherbert, had the State voluntarily chosen to pay unemployment compensation benefits to persons who left their jobs for religious reasons, such aid would be constitutionally permissible because it redounds directly to the benefit of the individual. Accord, Wolman v. Walter, 433 U. S. 229 (1977) (upholding various disbursements made to pupils in parochial schools). In sum, my difficulty with today's decision is that it reads the Free Exercise Clause too broadly and it fails to squarely acknowledge that such a reading conflicts with many of our Establishment Clause cases. As such, the decision simply exacerbates the "tension" between the two Clauses. If the Court were to construe the Free Exercise Clause as it did in Braunfeld and the Establishment Clause as JUSTICE STEWART did in Schempp, the circumstances in which there would be a conflict between the two Clauses would be few and far between. Although I heartily agree with the Court's tacit abandonment of much of our rhetoric about the Establishment Clause, I regret that the Court cannot see its way clear to restore what was surely intended to have been a greater degree of flexibility to the Federal and State Governments in legislating consistently with the Free Exercise Clause. Accordingly, I would affirm the judgment of the Indiana Supreme Court. [ Footnote 2/1 ] Even if I were to agree that Sherbert was correctly decided, I still would dissent on the grounds that today's decision unjustifiably extends Sherbert. The Indiana Employment Security Act, Ind.Code § 2211 (Supp. 1978), provides that an "individual who has voluntarily left his employment without good cause in connection with his employment" is disqualified from receiving benefits. In this case, the Supreme Court of Indiana "found the basis and the precise nature of Thomas' belief unclear," and concluded that the belief was more "personal philosophical choice" than religious belief. Ante at 450 U. S. 713 . The Court's failure to make clear whether it accepts or rejects this finding by the Indiana Supreme Court, the highest court of the State, suggests that a person who leaves his job for purely "personal philosophical choices" will be constitutionally entitled to unemployment benefits. If that is true, the implications of today's decision are enormous. Persons will then be able to quit their jobs, assert they did so for personal reasons, and collect unemployment insurance. We could surely expect the State's limited funds allotted for unemployment insurance to be quickly depleted. In addition, the Court's opinion in Sherbert, 374 U.S. at 374 U. S. 401 , n. 4, seems to suggest by negative implication that where a State makes every "personal reason" for leaving a job a basis for disqualification from unemployment benefits, the State need not grant an exemption to persons such as Sherbert who do quit for "personal reasons." In this case, the Indiana Supreme Court has construed the State's unemployment statute to make every personal subjective reason for leaving a job a basis for disqualification. E.g., Geckler v. Review Bd. of the Indiana Employment Security Div., 244 Ind. 473, 193 N.E.2d 357 (1963). This case is thus distinguishable from Sherbert. Because Thomas left his job for a personal reason, the State of Indiana should not be prohibited from disqualifying him from receiving benefits. [ Footnote 2/2 ] To the extent Sherbert was correctly decided, it might be argued that cases such as McCollum v. Board of Education, 333 U. S. 203 (1948); Engel v. Vitale, 370 U. S. 421 (1962); Abington School District v. Schempp, 374 U. S. 203 (1963); Lemon v. Kurtzman, 403 U. S. 602 (1971); and Committee for Public Education v. Nyquist, 413 U. S. 756 (1973), were wrongly decided. The "aid" rendered to religion in these latter cases may not be significantly different, in kind or degree, than the "aid" afforded Mrs. Sherbert or Thomas. For example, if the State in Sherbert could not deny compensation to one refusing work for religious reasons, it might be argued that a State may not deny reimbursement to students who choose for religious reasons to attend parochial schools. The argument would be that, although a State need not allocate any funds to education, once it has done so, it may not require any person to sacrifice his religious beliefs in order to obtain an equal education. See Lemon, supra, at 403 U. S. 665 (opinion of WHITE, J.); Nyquist, supra, at 413 U. S. 798 -805 (opinion of BURGER, C.J.). There can be little doubt that, to the extent secular education provides answers to important moral questions without reference to religion or teaches that there are no answers, a person in one sense sacrifices his religious belief by attending secular schools. And even if such "aid" were not constitutionnlly compelled by the Free Exercise Clause, Justice Harlan may well have been right in Sherbert when he found sufficient flexibility in the Establishment Clause to permit the States to voluntarily choose to grant such benefits to individuals.

The Indiana Supreme Court denied unemployment benefits to a Jehovah's Witness who quit his job due to religious beliefs, but the US Supreme Court reversed this decision, citing a violation of the First Amendment right to free exercise of religion. The court held that the state's denial of benefits was unconstitutional under Sherbert v. Verner, and that religious beliefs should not be dissected or judged by courts. This case sets a precedent for protecting religious freedom in employment decisions.

Religion

Widmar v. Vincent

https://supreme.justia.com/cases/federal/us/454/263/

U.S. Supreme Court Widmar v. Vincent, 454 U.S. 263 (1981) Widmar v. Vincent No. 80-689 Argued October 6, 1981 Decided December 8, 1981 454 U.S. 263 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT Syllabus The University of Missouri at Kansas City, a state university, makes its facilities generally available for the activities of registered student groups. A registered student religious group that had previously received permission to conduct its meetings in University facilities was informed that it could no longer do so because of a University regulation prohibiting the use of University buildings or grounds "for purposes of religious worship or religious teaching." Members of the group then brought suit in Federal District Court, alleging that the regulation violated, inter alia, their rights to free exercise of religion and freedom of speech under the First Amendment. The District Court upheld the regulation as being not only justified, but required, by the Establishment Clause of the First Amendment. The Court of Appeals reversed, viewing the regulation as a content-based discrimination against religious speech, for which it could find no compelling justification, and holding that the Establishment Clause does not bar a policy of equal access, in which facilities are open to groups and speakers of all kinds. Held: The University's exclusionary policy violates the fundamental principle that a state regulation of speech should be content-neutral. Pp. 454 U. S. 267 -277. (a) Having created a forum generally open for use by student groups, the University, in order to justify discriminatory exclusion from such forum based on the religious content of a group's intended speech, must satisfy the standard of review appropriate to content-based exclusions; i.e., it must show that its regulation is necessary to serve a compelling state interest, and that it is narrowly drawn to achieve that end. Pp. 454 U. S. 267 -270. (b) Although the University's interest in complying with its constitutional obligations under the Establishment Clause may be characterized as compelling, an "equal access" policy would not be incompatible with that Clause. A policy will not offend the Establishment Clause if it can pass the following three-pronged test: (1) It has a secular legislative purpose; (2) its principal or primary effect would be neither to advance nor to inhibit religion; and (3) it does not foster "an excessive government entanglement with religion." Here, it is conceded that an "equal access" Page 454 U. S. 264 policy would meet the first and third prongs of the test. In the context of this case and in the absence of any evidence that religious groups will dominate the University's forum, the advancement of religion would not be the forum's "primary effect." An "equal access" policy would therefore satisfy the test's second prong as well. Pp. 454 U. S. 270 -275. (c) The State's interest in achieving greater separation of church and State than is already ensured under the Establishment Clause is not sufficiently "compelling" to justify content-based discrimination against religious speech of the student group in question. Pp. 454 U. S. 275 -276. 635 F.2d 1310, affirmed. POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, MARSHALL, BLACKMUN, REHNQUIST, and O'CONNOR, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, post, p. 454 U. S. 277 . WHITE, J., filed a dissenting opinion, post, p. 454 U. S. 282 . JUSTICE POWELL delivered the opinion of the court. This case presents the question whether a state university, which makes its facilities generally available for the activities Page 454 U. S. 265 of registered student groups, may close its facilities to a registered student group desiring to use the facilities for religious worship and religious discussion. I It is the stated policy of the University of Missouri at Kansas City [ Footnote 1 ] to encourage the activities of student organizations. The University officially recognizes over 100 student groups. It routinely provides University facilities for the meetings of registered organizations. Students pay an activity fee of $41 per semester (1978-1979) to help defray the costs to the University. From 1973 until 1977, a registered religious group named Cornerstone regularly sought and received permission to conduct its meetings in University facilities. [ Footnote 2 ] In 1977, however, the University informed the group that it could no longer meet in University buildings. The exclusion was based on a regulation, adopted by the Board of Curators in 1972, that prohibits the use of University buildings or grounds "for purposes of religious worship or religious teaching." [ Footnote 3 ] Page 454 U. S. 266 Eleven University students, all members of Cornerstone, brought suit to challenge the regulation in the Federal District Court for the Western District of Missouri. [ Footnote 4 ] They alleged that the University's discrimination against religious activity and discussion violated their rights to free exercise of religion, equal protection, and freedom of speech under the First and Fourteenth Amendments to the Constitution of the United States. Upon cross-motions for summary judgment, the District Court upheld the challenged regulation. Chess v. Widmar, 480 F. Supp. 907 (1979). It found the regulation not only justified, but required, by the Establishment Clause of the Federal Constitution. Id. at 916. Under Tilton v. Richardson, 403 U. S. 672 (1971), the court reasoned, the State Page 454 U. S. 267 could not provide facilities for religious use without giving prohibited support to an institution of religion. 480 F. Supp. at 915-916. The District Court rejected the argument that the University could not discriminate against religious speech on the basis of its content. It found religious speech entitled to less protection than other types of expression. Id. at 918. The Court of Appeals for the Eighth Circuit reversed. Chess v. Widmar, 635 F.2d 1310 (1980). Rejecting the analysis of the District Court, it viewed the University regulation as a content-based discrimination against religious speech, for which it could find no compelling justification. Id. at 1315-1320. The court held that the Establishment Clause does not bar a policy of equal access, in which facilities are open to groups and speakers of all kinds. Id. at 1317. According to the Court of Appeals, the "primary effect" of such a policy would not be to advance religion, but rather to further the neutral purpose of developing students' " social and cultural awareness as well as [their] intellectual curiosity.'" Ibid. (quoting from the University bulletin's description of the student activities program, reprinted in id. at 1312, n. 1). We granted certiorari. 450 U.S. 909. We now affirm. II Through its policy of accommodating their meetings, the University has created a forum generally open for use by student groups. Having done so, the University has assumed an obligation to justify its discriminations and exclusions under applicable constitutional norms. [ Footnote 5 ] The Constitution Page 454 U. S. 268 forbids a State to enforce certain exclusions from a forum generally open to the public, even if it was not required to create the forum in the first place. See, e.g., Madison Joint School District v. Wisconsin Employment Relations Comm'n, 429 U. S. 167 , 429 U. S. 175 , and n. 8 (1976) (although a State may conduct business in private session, "[w]here the State has opened a forum for direct citizen involvement," exclusions bear a heavy burden of justification); Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 , 420 U. S. 555 -559 (1975) (because municipal theater was a public forum, city could not exclude a production without satisfying constitutional safeguards applicable to prior restraints). The University's institutional mission, which it describes as providing a "secular education" to its students, Brief for Petitioners 44, does not exempt its actions from constitutional scrutiny. With respect to persons entitled to be there, our cases leave no doubt that the First Amendment Page 454 U. S. 269 rights of speech and association extend to the campuses of state universities. See, e.g., Healy v. James, 408 U. S. 169 , 408 U. S. 180 (1972); Tinker v. Des Moines Independent School District, 393 U. S. 503 , 393 U. S. 506 (1969); Shelton v. Tucker, 364 U. S. 479 , 364 U. S. 487 (1960). Here, UMKC has discriminated against student groups and speakers based on their desire to use a generally open forum to engage in religious worship and discussion. These are forms of speech and association protected by the First Amendment. See, e.g., Heffron v. International Society for Krishna Consciousness, Inc., 452 U. S. 640 (1981); Niemotko v. Maryland, 340 U. S. 268 (1951); Saia v. New York, 334 U. S. 558 (1948). [ Footnote 6 ] In order to justify discriminatory Page 454 U. S. 270 exclusion from a public forum based on the religious content of a group's intended speech, the University must therefore satisfy the standard of review appropriate to content-based exclusions. It must show that its regulation is necessary to serve a compelling state interest, and that it is narrowly drawn to achieve that end. See Carey v. Brown, 447 U. S. 455 , 447 U. S. 461 , 447 U. S. 464 -465 (1980). [ Footnote 7 ] III In this case, the University claims a compelling interest in maintaining strict separation of church and State. It derives this interest from the "Establishment Clauses" of both the Federal and Missouri Constitutions. A The University first argues that it cannot offer its facilities to religious groups and speakers on the terms available to Page 454 U. S. 271 other groups without violating the Establishment Clause of the Constitution of the United States. [ Footnote 8 ] We agree that the interest of the University in complying with its constitutional obligations may be characterized as compelling. It does not follow, however, that an "equal access" policy would be incompatible with this Court's Establishment Clause cases. Those cases hold that a policy will not offend the Establishment Clause if it can pass a three-pronged test: "First, the [governmental policy] must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . . ; finally, the [policy] must not foster 'an excessive government entanglement with religion.'" Lemon v. Kurtzman, 403 U. S. 602 , 403 U. S. 612 -613 (1971). See Committee for Public Education v. Regan, 444 U. S. 646 , 444 U. S. 653 (1980); Roemer v. Maryland Public Works Bd., 426 U. S. 736 , 426 U. S. 748 (1976). In this case, two prongs of the test are clearly met. Both the District Court and the Court of Appeals held that an open forum policy, including nondiscrimination against religious speech, [ Footnote 9 ] would have a secular purpose [ Footnote 10 ] and would Page 454 U. S. 272 avoid entanglement with religion. [ Footnote 11 ] But the District Court concluded, and the University argues here, that allowing religious groups to share the limited public forum would have the "primary effect" of advancing religion. [ Footnote 12 ] Page 454 U. S. 273 The University's argument misconceives the nature of this case. The question is not whether the creation of a religious forum would violate the Establishment Clause. The University has opened its facilities for use by student groups, and the question is whether it can now exclude groups because of the content of their speech. See Healy v. James, 408 U. S. 169 (1972). [ Footnote 13 ] In this context, we are unpersuaded that the primary effect of the public forum, open to all forms of discourse, would be to advance religion. We are not oblivious to the range of an open forum's likely effects. It is possible -- perhaps even foreseeable -- that religious groups will benefit from access to University facilities. But this Court has explained that a religious organization's enjoyment of merely "incidental" benefits does not violate the prohibition against the "primary advancement" of religion. Committee for Public Education v. Nyquist, 413 U. S. 756 , Page 454 U. S. 274 413 U. S. 771 (1973); see, e.g., Roemer v. Maryland Public Works Bd., 426 U. S. 736 (1976); Hunt v. McNair, 413 U. S. 734 (1973); McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 422 (1961). We are satisfied that any religious benefits of an open forum at UMKC would be "incidental" within the meaning of our cases. Two factors are especially relevant. First, an open forum in a public university does not confer any imprimatur of state approval on religious sects or practices. As the Court of Appeals quite aptly stated, such a policy "would no more commit the University . . . to religious goals" than it is "now committed to the goals of the Students for a Democratic Society, the Young Socialist Alliance," or any other group eligible to use its facilities. 635 F.2d at 1317. [ Footnote 14 ] Second, the forum is available to a broad class of nonreligious, as well as religious, speakers; there are over 100 recognized student groups at UMKC. The provision of benefits to so broad a spectrum of groups is an important index of secular effect. See, e.g., Wolman v. Walter, 433 U. S. 229 , 433 U. S. 240 -241 (1977); Committee for Public Education v. Nyquist, supra, at 413 U. S. 781 -782, and n. 38. If the Establishment Clause barred the extension of general benefits to religious groups, "a church could not be protected by the police and fire departments, Page 454 U. S. 275 or have its public sidewalk kept in repair." Roemer v. Maryland Public Works Bd., supra, at 426 U. S. 747 (plurality opinion); quoted in Committee for Public Education v. Regan, 444 U.S. at 444 U. S. 658 , n. 6. [ Footnote 15 ] At least in the absence of empirical evidence that religious groups will dominate UMKC's open forum, we agree with the Court of Appeals that the advancement of religion would not be the forum's "primary effect." B Arguing that the State of Missouri has gone further than the Federal Constitution in proscribing indirect state support for religion, [ Footnote 16 ] the University claims a compelling interest in complying with the applicable provisions of the Missouri Constitution. [ Footnote 17 ] The Missouri courts have not ruled whether a general policy of accommodating student groups, applied equally to those wishing to gather to engage in religious and nonreligious speech, would offend the State Constitution. We need not, however, determine how the Missouri courts would decide this issue. It is also unnecessary for us to decide whether, under the Supremacy Clause, [ Footnote 18 ] a state interest, derived from its own constitution, could ever outweigh free Page 454 U. S. 276 speech interests protected by the First Amendment. We limit our holding to the case before us. On one hand, respondents' First Amendment rights are entitled to special constitutional solicitude. Our cases have required the most exacting scrutiny in cases in which a State undertakes to regulate speech on the basis of its content. See, e.g., Carey v. Brown, 447 U. S. 455 (1980); Police Dept. of Chicago v. Mosley, 408 U. S. 92 (1972). On the other hand, the state interest asserted here -- in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution -- is limited by the Free Exercise Clause, and, in this case, by the Free Speech Clause as well. In this constitutional context, we are unable to recognize the State's interest as sufficiently "compelling" to justify content-based discrimination against respondents' religious speech. IV Our holding in this case in no way undermines the capacity of the University to establish reasonable time, place, and manner regulations. [ Footnote 19 ] Nor do we question the right of the University to make academic judgments as to how best to allocate scarce resources or "to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." Sweezy v. New Hampshire, 354 U. S. 234 , 354 U. S. 263 (1957) (Frankfurter, J., concurring in result); see University of California Regents v. Bakke, 438 U. S. 265 , 438 U. S. 312 -313 (1978) (opinion of POWELL, J., announcing the judgment of the Court). [ Footnote 20 ] Finally, Page 454 U. S. 277 we affirm the continuing validity of cases, e.g., Healy v. James, 408 U.S. at 408 U. S. 188 -189, that recognize a university's right to exclude even First Amendment activities that violate reasonable campus rules or substantially interfere with the opportunity of other students to obtain an education. The basis for our decision is narrow. Having created a forum generally open to student groups, the University seeks to enforce a content-based exclusion of religious speech. Its exclusionary policy violates the fundamental principle that a state regulation of speech should be content-neutral, and the University is unable to justify this violation under applicable constitutional standards. For this reason, the decision of the Court of Appeals is Affirmed. [ Footnote 1 ] The University of Missouri at Kansas City (UMKC) is one of four campuses of the University of Missouri, an institution of the State of Missouri. [ Footnote 2 ] Cornerstone is an organization of evangelical Christian students from various denominational backgrounds. According to an affidavit filed in 1977, "perhaps twenty students . . . participate actively in Cornerstone and form the backbone of the campus organization." Affidavit of Florian Chess (Sept. 29, 1977), quoted in Chess v. Widmar, 480 F. Supp. 907 , 911 (WD Mo.1979). Cornerstone held its on-campus meetings in classrooms and in the student center. These meetings were open to the public, and attracted up to 125 students. A typical Cornerstone meeting included prayer, hymns, Bible commentary, and discussion of religious views and experiences. [ Footnote 3 ] The pertinent regulations provide as follows: "4.0314.0107 No University buildings or grounds (except chapels as herein provided) may be used for purposes of religious worship or religious teaching by either student or nonstudent groups. . . . The general prohibition against use of University buildings and grounds for religious worship or religious teaching is a policy required, in the opinion of The Board of Curators, by the Constitution and laws of the State and is not open to any other construction. No regulations shall be interpreted to forbid the offering of prayer or other appropriate recognition of religion at public functions held in University facilities. . . ." "4.0314.0108 Regular chapels established on University grounds may be used for religious services but not for regular recurring services of any groups. Special rules and procedures shall be established for each such chapel by the Chancellor. It is specifically directed that no advantage shall be given to any religious group." There is no chapel on the campus of UMKC. The nearest University chapel is at the Columbia campus, approximately 125 miles east of UMKC. Although the University had routinely approved Cornerstone meetings before 1977, the District Court found that University officials had never "authorized a student organization to utilize a University facility for a meeting where they had full knowledge that the purposes of the meeting include[d] religious worship or religious teaching." Chess v. Widmar, supra, at 910. [ Footnote 4 ] Respondent Clark Vincent and Florian Chess, a named plaintiff in the action in the District Court, were among the students who initiated the action on October 13, 1977. Named as defendants were the petitioner Gary Widmar, the Dean of Students at UMKC, and the University's Board of Curators. [ Footnote 5 ] This Court has recognized that the campus of a public university, at least for its students, possesses many of the characteristics of a public forum. See generally Police Dept. of Chicago v. Mosley, 408 U. S. 92 (1972); Cox v. Louisiana, 379 U. S. 536 (1965). "The college classroom, with its surrounding environs, is peculiarly the marketplace of ideas.'" Healy v. James, 408 U. S. 169 , 408 U. S. 180 (1972). Moreover, the capacity of a group or individual "to participate in the intellectual give and take of campus debate . . . [would be] limited by denial of access to the customary media for communicating with the administration, faculty members, and other students." Id. at 408 U. S. 181 -182. We therefore have held that students enjoy First Amendment rights of speech and association on the campus, and that the "denial [to particular groups] of use of campus facilities for meeting and other appropriate purposes" must be subjected to the level of scrutiny appropriate to any form of prior restraint. Id. at 408 U. S. 181 , 408 U. S. 184 . At the same time, however, our cases have recognized that First Amendment rights must be analyzed "in light of the special characteristics of the school environment." Tinker v. Des Moines Independent School District, 393 U. S. 503 , 393 U. S. 506 (1969). We continue to adhere to that view. A university differs in significant respects from public forums such as streets or parks, or even municipal theaters. A university's mission is education, and decisions of this Court have never denied a university's authority to impose reasonable regulations compatible with that mission upon the use of its campus and facilities. We have not held, for example, that a campus must make all of its facilities equally available to students and nonstudents alike, or that a university must grant free access to all of its grounds or buildings. [ Footnote 6 ] The dissent argues that "religious worship" is not speech generally protected by the "free speech" guarantee of the First Amendment and the "equal protection" guarantee of the Fourteenth Amendment. If "religious worship" were protected "speech," the dissent reasons, "the Religion Clauses would be emptied of any independent meaning in circumstances in which religious practice took the form of speech." Post at 454 U. S. 284 . This is a novel argument. The dissent does not deny that speech about religion is speech entitled to the general protections of the First Amendment. See post at 454 U. S. 283 -284, and n. 2, 286. It does not argue that descriptions of religious experiences fail to qualify as "speech." Nor does it repudiate last Term's decision in Heffron v. International Society for Krishna Consciousness, Inc., which assumed that religious appeals to nonbelievers constituted protected "speech." Rather, the dissent seems to attempt a distinction between the kinds of religious speech explicitly protected by our cases and a new class of religious "speech act[s]," post at 454 U. S. 285 , constituting "worship." There are at least three difficulties with this distinction. First, the dissent fails to establish that the distinction has intelligible content. There is no indication when "singing hymns, reading scripture, and teaching biblical principles," post at 454 U. S. 283 , cease to be "singing, teaching, and reading" all apparently forms of "speech," despite their religious subject matter -- and become unprotected "worship." Second, even if the distinction drew an arguably principled line, it is highly doubtful that it would lie within the judicial competence to administer. Cf. Fowler v. Rhode Island, 345 U. S. 67 , 345 U. S. 70 (1953). Merely to draw the distinction would require the university -- and ultimately the courts -- to inquire into the significance of words and practices to different religious faiths, and in varying circumstances by the same faith. Such inquiries would tend inevitably to entangle the State with religion in a manner forbidden by our cases. E.g., Walz v. Tax Comm'n, 397 U. S. 664 , 397 U. S. 668 (1970). Finally, the dissent fails to establish the relevance of the distinction on which it seeks to rely. The dissent apparently wishes to preserve the vitality of the Establishment Clause. See post at 454 U. S. 284 -286. But it gives no reason why the Establishment Clause, or any other provision of the Constitution, would require different treatment for religious speech designed to win religious converts, see Heffron, supra, than for religious worship by persons already converted. It is far from clear that the State gives greater support in the latter case than in the former. [ Footnote 7 ] See also Healy v. James, supra, at 408 U. S. 184 : "It is to be remembered that the effect of the College's denial of recognition was a form of prior restraint, denying to petitioners' organization the range of associational activities described above. While a college has a legitimate interest in preventing disruption on the campus, which . . . may justify such restraint, a 'heavy burden' rests on the college to demonstrate the appropriateness of that action." [ Footnote 8 ] "Congress shall make no law respecting an establishment of religion. . . ." U.S.Const., Amdt. 1. The Establishment Clause has been made applicable to the States through the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 303 (1940). [ Footnote 9 ] As the dissent emphasizes, the Establishment Clause requires the State to distinguish between "religious" speech -- speech, undertaken or approved by the State, the primary effect of which is to support an establishment of religion -- and "nonreligious" speech -- speech, undertaken or approved by the State, the primary effect of which is not to support an establishment of religion. This distinction is required by the plain text of the Constitution. It is followed in our cases. E.g., Stone v. Graham, 449 U. S. 39 (1980). The dissent attempts to equate this distinction with its view of an alleged constitutional difference between religious "speech" and religious "worship." See post at 454 U. S. 286 , and n. 3. We think that the distinction advanced by the dissent lacks a foundation in either the Constitution or in our cases, and that it is judicially unmanageable. [ Footnote 10 ] It is the avowed purpose of UMKC to provide a forum in which students can exchange ideas. The University argues that use of the forum for religious speech would undermine this secular aim. But, by creating a forum, the University does not thereby endorse or promote any of the particular ideas aired there. Undoubtedly many views are advocated in the forum with which the University desires no association. Because this case involves a forum already made generally available to student groups, it differs from those cases in which this Court has invalidated statutes permitting school facilities to be used for instruction by religious groups, but not by others. See, e.g., McCollum v. Board of Education, 333 U. S. 203 (1948). In those cases, the school may appear to sponsor the views of the speaker. [ Footnote 11 ] We agree with the Court of Appeals that the University would risk greater "entanglement" by attempting to enforce its exclusion of "religious worship" and "religious speech." See Chess v. Widmar, 635 F.2d 1310, 1318 (CA8 1980). Initially, the University would need to determine which words and activities fall within "religious worship and religious teaching." This alone could prove "an impossible task in an age where many and various beliefs meet the constitutional definition of religion." O'Hair v. Andrus, 198 U.S.App.D.C.198, 203, 613 F.2d 931, 936 (1979) (footnote omitted); see L. Tribe, American Constitutional Law § 14-6 (1978). There would also be a continuing need to monitor group meetings to ensure compliance with the rule. [ Footnote 12 ] In finding that an "equal access" policy would have the primary effect of advancing religion, the District Court in this case relied primarily on Tilton v. Richardson, 403 U. S. 672 (1971). In Tilton, this Court upheld the grant of federal financial assistance to sectarian colleges for secular purposes, but circumscribed the terms of the grant to ensure its constitutionality. Although Congress had provided that federally subsidized buildings could not be used for sectarian or religious worship for 20 years, the Court considered this restriction insufficient: "If, at the end of 20 years, the building is, for example, converted into a chapel or otherwise used to promote religious interests, the original federal grant will, in part, have the [constitutionally impermissible] effect of advancing religion." Id. at 403 U. S. 683 . From this statement, the District Court derived the proposition that state funds may not be used to provide or maintain buildings used by religious organizations. We do not believe that Tilton can be read so broadly. In Tilton, the Court was concerned that a sectarian institution might convert federally funded buildings to religious uses or otherwise stamp them with the imprimatur of religion. But nothing in Tilton suggested a limitation on the State's capacity to maintain forums equally open to religious and other discussions. Cases before and after Tilton have acknowledged the right of religious speakers to use public forums on equal terms with others. See, e.g., Heffron v. International Society for Krishna Consciousness, Inc., 452 U. S. 640 (1981); Saia v. New York, 334 U. S. 558 (1948). [ Footnote 13 ] This case is different from cases in which religious groups claim that the denial of facilities not available to other groups deprives them of their rights under the Free Exercise Clause. Here, the University's forum is already available to other groups, and respondents' claim to use that forum does not rest solely on rights claimed under the Free Exercise Clause. Respondents' claim also implicates First Amendment rights of speech and association, and it is on the bases of speech and association rights that we decide the case. Accordingly, we need not inquire into the extent, if any, to which free exercise interests are infringed by the challenged University regulation. Neither do we reach the questions that would arise if state accommodation of free exercise and free speech rights should, in a particular case, conflict with the prohibitions of the Establishment Clause. [ Footnote 14 ] University students are, of course, young adults. They are less impressionable than younger students, and should be able to appreciate that the University's policy is one of neutrality toward religion. See Tilton v. Richardson, supra, at 403 U. S. 685 -686. The University argues that the Cornerstone students themselves admitted in affidavits that "[s]tudents know that, if something is on campus, then it is a student organization, and they are more likely to feel comfortable attending a meeting." Affidavit of Florian Frederick Chess, App. 18, 19. In light of the large number of groups meeting on campus, however, we doubt students could draw any reasonable inference of University support from the mere fact of a campus meeting place. The University's student handbook already notes that the University's name will not "be identified in any way with the aims, policies, programs, products, or opinions of any organization or its members." 1980-1981 UMKC Student Handbook 25. [ Footnote 15 ] This Court has similarly rejected "the recurrent argument that all aid [to parochial schools] is forbidden because aid to one aspect of an institution frees it to spend its other resources on religious ends." Hunt v. McNair, 413 U. S. 734 , 413 U. S. 743 (1973). [ Footnote 16 ] See, e.g., Americans United v. Rogers, 638 S.W.2d 711, 720 (Mo.) (en banc) (holding Missouri Constitution requires stricter separation of church and State than does Federal Constitution), cert. denied, 429 U.S. 1029 (1976); Harfst v. Hoegen, 349 Mo. 808, 816-816, 163 S.W.2d 609, 613-614 (Mo.1942) (en banc) (same). [ Footnote 17 ] See Mo. Const., Art. 1, 6, 7; Art. 9, 8. In Luetkemeyer v. Kaufmann, 364 F. Supp. 376 (WD Mo.1973), aff'd, 419 U.S. 888 (1974), the District Court found Missouri had a compelling interest in compliance with its own Constitution. [ Footnote 18 ] U.S.Const., Art. VI, cl. 2. [ Footnote 19 ] See, e.g., Grayned v. City of Rockford, 408 U. S. 104 , 408 U. S. 116 (1972) ("The nature of a place, the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable,'" quoting Wright, The Constitution on the Campus, 22 Vand.L.Rev. 1027, 1042 (1969)). [ Footnote 20 ] In his opinion concurring in the judgment, post at 454 U. S. 277 -287, JUSTICE STEVENS expresses concern that use of the terms "compelling state interest" and "public forum" may "undermine the academic freedom of public universities." As the text above makes clear, this concern is unjustified. See also n 5, supra. Our holding is limited to the context of a public forum created by the University itself. JUSTICE STEVENS, concurring in the judgment. As the Court recognizes, every university must "make academic judgments as to how best to allocate scarce resources," ante at 454 U. S. 276 . The Court appears to hold, however, that those judgments must "serve a compelling state interest" whenever they are based, even in part, on the content of speech. Ante at 454 U. S. 269 -270. This conclusion apparently flows from the Court's suggestion that a student activities program -- from which the public may be excluded, ante at 454 U. S. 267 -268, n. 5 -- must be managed as though it were a "public forum." [ Footnote 2/1 ] In my opinion, the use of the terms "compelling Page 454 U. S. 278 state interest" and "public forum" to analyze the question presented in this case may needlessly undermine the academic freedom of public universities. Today most major colleges and universities are operated by public authority. Nevertheless, their facilities are not open to the public in the same way that streets and parks are. University facilities -- private or public -- are maintained primarily for the benefit of the student body and the faculty. In performing their learning and teaching missions, the managers of a university routinely make countless decisions based on the content of communicative materials. They select books for inclusion in the library, they hire professors on the basis of their academic philosophies, they select courses for inclusion in the curriculum, and they reward scholars for what they have written. In addition, in encouraging students to participate in extracurricular activities, they necessarily make decisions concerning the content of those activities. Because every university's resources are limited, an educational institution must routinely make decisions concerning the use of the time and space that is available for extracurricular activities. In my judgment, it is both necessary and appropriate for those decisions to evaluate the content of a proposed student activity. I should think it obvious, for example, that, if two groups of 25 students requested the use of a room at a particular time -- one to view Mickey Mouse cartoons and the other to rehearse an amateur performance of Hamlet -- the First Amendment would not require that the room be reserved for the group that submitted its application first. Nor do I see why a university should have to establish a "compelling state interest" to defend its decision to permit one group to use the facility and not the other. In my opinion, a university should be allowed to decide for itself whether a program that illuminates the genius of Walt Disney should be given precedence over one that may duplicate material adequately covered in the classroom. Judgments of Page 454 U. S. 279 this kind should be made by academicians, not by federal judges, [ Footnote 2/2 ] and their standards for decision should not be encumbered with ambiguous phrases like "compelling state interest." [ Footnote 2/3 ] Page 454 U. S. 280 Thus, I do not subscribe to the view that a public university has no greater interest in the content of student activities than the police chief has in the content of a soapbox oration on Capitol Hill. A university legitimately may regard some subjects as more relevant to its educational mission than others. But the university, like the police officer, may not allow its agreement or disagreement with the viewpoint of a particular speaker to determine whether access to a forum will be granted. If a state university is to deny recognition to a student organization -- or is to give it a lesser right to use school facilities than other student groups -- it must have a valid reason for doing so. Healy v. James, 408 U. S. 169 . [ Footnote 2/4 ] In this case, I agree with the Court that the University has not established a sufficient justification for its refusal to allow the Cornerstone group to engage in religious worship on the campus. The primary reason advanced for the discriminatory treatment is the University's fear of violating the Establishment Clause. But since the record discloses no danger Page 454 U. S. 281 that the University will appear to sponsor any particular religion, and since student participation in the Cornerstone meetings is entirely voluntary, the Court properly concludes that the University's fear is groundless. With that justification put to one side, the University has not met the burden that is imposed on it by Healy. Nor does the University's reliance on the Establishment Clause of the Missouri State Constitution provide a sufficient justification for the discriminatory treatment in this case. [ Footnote 2/5 ] As I have said, I believe that the University may exercise a measure of control over the agenda for student use of school facilities, preferring some subjects over others, without needing to identify so-called "compelling state interests." Quite obviously, however, the University could not allow a group of Republicans or Presbyterians to meet while denying Democrats or Mormons the same privilege. [ Footnote 2/6 ] It seems apparent that the policy under attack would allow groups of young philosophers to meet to discuss their skepticism that a Supreme Being exists, or a group of political scientists to meet to debate the accuracy of the view that religion is the "opium of the people." If school facilities may be used to discuss anticlerical doctrine, it seems to me that comparable use by a group desiring to express a belief in God must also be permitted. The fact that their expression of faith includes ceremonial conduct is not, in my opinion, a sufficient reason for suppressing their discussion entirely. Accordingly, although I do not endorse the Court's reasoning, I concur in its judgment. Page 454 U. S. 282 [ Footnote 2/1 ] As stated by the Court, "[i]n order to justify discriminatory exclusion from a public forum based on the religious content of a group's intended speech, the University must therefore satisfy the standard of review appropriate to content-based exclusions." Ante at 454 U. S. 269 -270. See also ante, n 20 ("Our holding is limited to the context of a public forum created by the University itself"). [ Footnote 2/2 ] In Sweezy v. New Hampshire, 354 U. S. 234 , Justice Frankfurter forcefully spoke of "the grave harm resulting from governmental intrusion into the intellectual life of a university. . . ." Id. at 354 U. S. 261 (concurring in result). Justice Frankfurter quoted with approval portions of an address by T. H. Huxley: "'It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail 'the four essential freedoms' of a university -- to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.'" Id. at 354 U. S. 263 . Although these comments were not directed at a public university's concern with extracurricular activities, it is clear that the "atmosphere" of a university includes such a critical aspect of campus life. See also University of California Regents v. Bakke, 438 U. S. 265 , 438 U. S. 312 (opinion of POWELL, J.) ("Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment"); Note, Academic Freedom and Federal Regulation of University Hiring, 92 Harv.L.Rev. 879 (1979). Cf. Van Alstyne, The Specific Theory of Academic Freedom and the General Issue of Civil Liberty, reprinted in The Concept of Academic Freedom 59, 77-81 (E. Pincoffs ed.1972). [ Footnote 2/3 ] In Illinois Elections Bd. v. Socialist Workers Party, 440 U. S. 173 , JUSTICE BLACKMUN expressed concern with "what seems to be a continuing tendency in this Court to use as tests such easy phrases as 'compelling [state] interest' and 'least drastic [or restrictive] means.' I have never been able fully to appreciate just what a 'compelling state interest' is. If it means 'convincingly controlling,' or 'incapable of being overcome' upon any balancing process, then, of course, the test merely announces an inevitable result, and the test is no test at all. And, for me, 'least drastic means' is a slippery slope, and also the signal of the result the Court has chosen to reach. A judge would be unimaginative indeed if he could not come up with something a little less 'drastic' or a little less 'restrictive' in almost any situation, and thereby enable himself to vote to strike legislation down." Id. at 440 U. S. 188 -189 (concurring opinion) (citation omitted). [ Footnote 2/4 ] In Healy, the Court stated: "The opinions below also assumed that petitioners had the burden of showing entitlement to recognition by the College. While petitioners have not challenged the procedural requirement that they file an application in conformity with the rules of the College, they do question the view of the courts below that final rejection could rest on their failure to convince the administration that their organization was unaffiliated with the National [Students for a Democratic Society]. For reasons to be stated later in this opinion, we do not consider the issue of affiliation to be a controlling one. But, apart from any particular issue, once petitioners had filed an application in conformity with the requirements, the burden was upon the College administration to justify its decision of rejection. It is to be remembered that the effect of the College's denial of recognition was a form of prior restraint, denying to petitioners' organization the range of associational activities described above. While a college has a legitimate interest in preventing disruption on the campus, which, under circumstances requiring the safeguarding of that interest, may justify such restraint, a 'heavy burden' rests on the college to demonstrate the appropriateness of that action." 408 U.S. at 408 U. S. 183 -184 (footnotes and citations omitted). [ Footnote 2/5 ] The University's asserted determination to keep Church and State completely separate, pursuant to the alleged dictates of the Missouri Constitution, is not without qualification. The very regulations at issue provide that "[n]o regulations shall be interpreted to forbid the offering of prayer or other appropriate recognition of religion at public functions held in University facilities. . . ." See ante at 454 U. S. 266 , n. 3. [ Footnote 2/6 ] See Farber, Content Regulation and the First Amendment: A Revisionist View, 68 Geo.L.J. 727 (1980). JUSTICE WHITE, dissenting. In affirming the decision of the Court of Appeals, the majority rejects petitioners' argument that the Establishment Clause of the Constitution prohibits the use of university buildings for religious purposes. A state university may permit its property to be used for purely religious services without violating the First and Fourteenth Amendments. With this, I agree. See Committee for Public Education v. Nyquist, 413 U. S. 756 , 413 U. S. 813 (1973) (WHITE, J., dissenting); Lemon v. Kurtzman, 403 U. S. 602 , 403 U. S. 661 (1971) (opinion of WHITE, J.). The Establishment Clause, however, sets limits only on what the State may do with respect to religious organizations; it does not establish what the State is required to do. I have long argued that Establishment Clause limits on state action which incidentally aids religion are not as strict as the Court has held. The step from the permissible to the necessary, however, is a long one. In my view, just as there is room under the Religion Clauses for state policies that may have some beneficial effect on religion, there is also room for state policies that may incidentally burden religion. In other words, I believe the States to be a good deal freer to formulate policies that affect religion in divergent ways than does the majority. See Sherbert v. Verner, 374 U. S. 398 , 374 U. S. 422 -423 (1963) (Harlan, J., dissenting). The majority's position will inevitably lead to those contradictions and tensions between the Establishment and Free Exercise Clauses warned against by Justice Stewart in Sherbert v. Verner, supra, at 374 U. S. 416 . The University regulation at issue here provides in pertinent part: "No University buildings or grounds (except chapels as herein provided) may be used for purposes of religious worship or religious teaching by either student or nonstudent groups. Student congregations of local Page 454 U. S. 283 churches or of recognized denominations or sects, although not technically recognized campus groups, may use the facilities . . . under the same regulations that apply to recognized campus organizations, provided that no University facilities may be used for purposes of religious worship or religious teaching." Although there may be instances in which it would be difficult to determine whether a religious group used university facilities for "worship" or "religious teaching," rather than for secular ends, this is not such a case. The regulation was applied to respondents' religious group, Cornerstone, only after the group explicitly informed the University that it sought access to the facilities for the purpose of offering prayer, singing hymns, reading scripture, and teaching biblical principles. Cornerstone described their meetings as follows: "Although these meetings would not appear to a casual observer to correspond precisely to a traditional worship service, there is no doubt that worship is an important part of the general atmosphere." Chess v. Widmar, 480 F. Supp. 907 , 910 (1979). [ Footnote 3/1 ] The issue here is only whether the University Page 454 U. S. 284 regulation as applied and interpreted in this case is impermissible under the Federal Constitution. If it is impermissible, it is because it runs afoul of either the Free Speech or the Free Exercise Clause of the First Amendment. A large part of respondents' argument, accepted by the court below and accepted by the majority, is founded on the proposition that, because religious worship uses speech, it is protected by the Free Speech Clause of the First Amendment. [ Footnote 3/2 ] Not only is it protected, they argue, but religious worship qua speech is not different from any other variety of protected speech as a matter of constitutional principle. I believe that this proposition is plainly wrong. Were it right, the Religion Clauses would be emptied of any independent meaning in circumstances in which religious practice took the form of speech. Although the majority describes this argument as "novel," ante at 454 U. S. 269 , n. 6, I believe it to be clearly supported by our previous cases. Just last Term, the Court found it sufficiently Page 454 U. S. 285 obvious that the Establishment Clause prohibited a State from posting a copy of the Ten Commandments on the classroom wall that a statute requiring such a posting was summarily struck down. Stone v. Graham, 449 U. S. 39 (1980). That case necessarily presumed that the State could not ignore the religious content of the written message, nor was it permitted to treat that content as it would, or must, treat other -- secular -- messages under the First Amendment's protection of speech. Similarly, the Court's decisions prohibiting prayer in the public schools rest on a content-based distinction between varieties of speech: as a speech act, apart from its content, a prayer is indistinguishable from a biology lesson. See Abington School District v. Schempp, 374 U. S. 203 (1963); Engel v. Vitale, 370 U. S. 421 (1962). Operation of the Free Exercise Clause is equally dependent, in certain circumstances, on recognition of a content-based distinction between religious and secular speech. Thus, in Torcaso v. Watkins, 367 U. S. 488 (1961), the Court struck down, as violative of the Free Exercise Clause, a state requirement that made a declaration of belief in God a condition of state employment. A declaration is again a speech act, but it was the content of the speech that brought the case within the scope of the Free Exercise Clause. If the majority were right that no distinction may be drawn between verbal acts of worship and other verbal acts, all of these cases would have to be reconsidered. Although I agree that the line may be difficult to draw in many cases, surely the majority cannot seriously suggest that no line may ever be drawn. [ Footnote 3/3 ] If that were the case, the majority would Page 454 U. S. 286 have to uphold the University's right to offer a class entitled "Sunday Mass." Under the majority's view, such a class would be, as a matter of constitutional principle, indistinguishable from a class entitled "The History of the Catholic Church." [ Footnote 3/4 ] There may be instances in which a State's attempt to disentangle itself from religious worship would intrude upon secular speech about religion. In such a case, the State's action would be subject to challenge under the Free Speech Clause of the First Amendment. This is not such a case. This case involves religious worship only; the fact that that worship is accomplished through speech does not add anything to respondents' argument. That argument must rely upon the claim that the State's action impermissibly interferes with the free exercise of respondents' religious practices. Although this is a close question, I conclude that it does not. Plausible analogies on either side suggest themselves. Respondents argue, and the majority agrees, that, by permitting any student group to use its facilities for communicative purposes other than religious worship, the University has created a "public forum." Ante at 454 U. S. 267 -268. With ample Page 454 U. S. 287 support, they argue that the State may not make content-based distinctions as to what groups may use, or what messages may be conveyed in, such a forum. See Police Department of Chicago v. Mosley, 408 U. S. 92 (1972); Cox v. Louisiana, 379 U. S. 536 (1965). The right of the religious to nondiscriminatory access to the public forum is well established. See Niemotko v. Maryland, 340 U. S. 268 (1951); Murdock v. Pennsylvania, 319 U. S. 105 (1943). Moreover, it is clear that there are bounds beyond which the University could not go in enforcing its regulation: I do not suppose it could prevent students from saying grace before meals in the school cafeteria, or prevent distribution of religious literature on campus. [ Footnote 3/5 ] Petitioners, on the other hand, argue that allowing use of their facilities for religious worship is constitutionally indistinguishable from directly subsidizing such religious services: it would "fun[d] a specifically religious activity in an otherwise substantially secular setting." Hunt v. McNair, 413 U. S. 734 , 413 U. S. 743 (1973). They argue that the fact that secular student groups are entitled to the in-kind subsidy at issue here does not establish that a religious group is entitled to the same subsidy. They could convincingly argue, for example, that a state university that pays for basketballs for the basketball team is not thereby required to pay for Bibles for a group like Cornerstone. [ Footnote 3/6 ] Page 454 U. S. 288 A third analogy suggests itself, one that falls between these two extremes. There are a variety of state policies which incidentally benefit religion that this Court has upheld without implying that they were constitutionally required of the State. See Board of Education v. Allen, 392 U. S. 236 (1968) (state loan of textbooks to parochial school students); Zorach v. Clauson, 343 U. S. 306 (1962) (release of students from public schools, during school hours, to perform religious activities away from the school grounds); Everson v. Board of Education, 330 U. S. 1 (1947) (state provision of transportation to parochial school students). Provision of university facilities on a uniform basis to all student groups is not very different from provision of textbooks or transportation. From this perspective, the issue is not whether the State must, or must not, open its facilities to religious worship; rather, it is whether the State may choose not to do so. Each of these analogies is persuasive. Because they lead to different results, however, they are of limited help in reaching a decision here. They also demonstrate the difficulty in reconciling the various interests expressed in the Religion Clauses. In my view, therefore, resolution of this case is best achieved by returning to first principles. This requires an assessment of the burden on respondents' ability freely to exercise their religious beliefs and practices and of the State's interest in enforcing its regulation. Respondents complain that compliance with the regulation would require them to meet "about a block and a half" from campus under conditions less comfortable than those previously available on campus. [ Footnote 3/7 ] I view this burden on free exercise Page 454 U. S. 289 as minimal. Because the burden is minimal, the State need do no more than demonstrate that the regulation furthers some permissible state end. The State's interest in avoiding claims that it is financing or otherwise supporting religious worship -- in maintaining a definitive separation between church and State -- is such an end. That the State truly does mean to act toward this end is amply supported by the treatment of religion in the State Constitution. [ Footnote 3/8 ] Thus, I believe the interest of the State is sufficiently strong to justify the imposition of the minimal burden on respondents' ability freely to exercise their religious beliefs. On these facts, therefore, I cannot find that the application of the regulation to prevent Cornerstone from holding religious worship services in University facilities violates the First and Fourteenth Amendments. I would not hold, as the majority does, that, if a university permits students and others to use its property for secular purposes, it must also furnish facilities to religious groups for the purposes of worship and the practice of their religion. Accordingly, I would reverse the judgment of the Court of Appeals. [ Footnote 3/1 ] Cornerstone was denied access to University facilities because it intended to use those facilities for regular religious services in which "worship is an important part of the general atmosphere." There is no issue here as to the application of the regulation to "religious teaching." Reaching this issue is particularly inappropriate in this case because nothing in the record indicates how the University has interpreted the phrase "religious teaching," or even whether it has ever been applied to activity that was not clearly "religious worship." The District Court noted that plaintiffs did not contend that they were "limited, in any way, from holding on-campus meetings that do not include religious worship services." 480 F. Supp. at 913. At oral argument, counsel for the University indicated that the regulation would not bar discussion of biblical texts under circumstances that did not constitute "religious worship." Tr. of Oral Arg. 9. The sole question in this case involves application of the regulation to prohibit regular religious worship services in University buildings. [ Footnote 3/2 ] Given that the majority's entire argument turns on this description of religious services as speech, it is surprising that the majority assumes this proposition to require no argument. The majority assumes the conclusion by describing the University's action as discriminating against "speakers based on their desire to . . . engage in religious worship and discussion." Ante at 454 U. S. 269 . As noted above, it is not at all clear that the University has discriminated or intends to discriminate against "religious discussion" -- as a preliminary matter, it is not even clear what the majority means by "religious discussion" or how it entered the case. That religious worship is a form of speech the majority takes to have been established by three cases. Heffron v. International Society for Krishna Consciousness, Inc., 452 U. S. 640 (1981); Niemotko v. Maryland, 340 U. S. 268 (1951); Saia v. New York, 334 U. S. 558 (1948). None of these cases stand for this proposition. Heffron and Saia involved the communication of religious views to a nonreligious, public audience. Talk about religion and about religious beliefs, however, is not the same as religious services of worship. Niemotko was an equal protection challenge to a discriminatory denial of one religious group's access to a public park. The Court specifically stated that it was not addressing the question of whether the State could uniformly deny all religious groups access to public parks. 340 U.S. at 340 U. S. 272 . [ Footnote 3/3 ] Indeed, while footnote 6 of the majority opinion suggests that no intelligible distinction may be drawn between worship and other forms of speech footnote 9 recognizes that the Establishment Clause "requires" that such a line be drawn The majority does not adequately explain why the State is "required" to observe a line in one context, but prohibited from voluntarily recognizing it in another context. [ Footnote 3/4 ] Counsel for respondents was somewhat more forthright in recognizing the extraordinary breadth of his argument than is the majority. Counsel explicitly stated that, once the distinction between speech and worship is collapsed, a university that generally provides student groups access to its facilities would be constitutionally required to allow its facilities to be used as a church for the purpose of holding "regular church services." Tr. of Oral Arg. 26. Similarly, although the majority opinion limits its discussion to student groups, counsel for respondents recognized that the First Amendment argument relied upon would apply equally to nonstudent groups. He recognized that respondents' submission would require the University to make available its buildings to the Catholic Church and other denominations for the purpose of holding religious services, if University facilities were made available to nonstudent groups. Id. at 39. In other words, the University could not avoid the conversion of one of its buildings into a church, as long as the religious group meets the same neutral requirements of entry -- e.g., rent -- as are imposed on other groups. [ Footnote 3/5 ] There are obvious limits on the scope of this analogy. I know of no precedent holding that, simply because a public forum is open to all kinds of speech -- including speech about religion -- it must be open to regular religious worship services as well. I doubt that the State need stand by and allow its public forum to become a church for any religious sect that chooses to stand on its right of access to that forum. [ Footnote 3/6 ] There are, of course, limits to this subsidy argument. Sherbert v. Verner, 374 U. S. 398 (1963), and Thomas v. Indiana Employment Security Division, 450 U. S. 707 (1981), demonstrate that in certain circumstances the State may be required to "subsidize," at least indirectly, religious practices, under circumstance in which it does not and need not subsidize similar behavior founded on secular motives. [ Footnote 3/7 ] Respondents also complain that the University action has made their religious message less attractive by suggesting that it is not appropriate fare for the college campus. I give no weight to this, because it is indistinguishable from an argument that respondents are entitled to the appearance of an endorsement of their beliefs and practices from the University. [ Footnote 3/8 ] Since 1820, the Missouri Constitution has contained provisions requiring a separation of church and State. The Missouri Supreme Court has held that the state constitutional provisions are "not only more explicit, but more restrictive, than the Establishment Clause of the United States Constitution." Paster v. Tussey, 512 S.W.2d 97 , 102 (1974).

The University of Missouri at Kansas City, a state university, denied a registered student religious group permission to use university facilities for their meetings due to a regulation prohibiting religious worship or teaching. The group sued, arguing their rights to freedom of speech and religion were violated. Lower courts disagreed, but the US Supreme Court ruled in favor of the student group, stating the university's exclusionary policy was content-based discrimination and violated free speech. The court held that an "equal access" policy, allowing all groups regardless of religious content, would not violate the Establishment Clause as long as it had a secular purpose, did not primarily advance or inhibit religion, and did not excessively entangle the government with religion.

Religion

Wisconsin v. Yoder

https://supreme.justia.com/cases/federal/us/406/205/

U.S. Supreme Court Wisconsin v. Yoder, 406 U.S. 205 (1972) Wisconsin v. Yoder No. 70-110 Argued December 8, 1971 Decided May 15, 1972 406 U.S. 205 CERTIORARI TO THE SUPREME COURT OF WISCONSIN Syllabus Respondents, members of the Old Order Amish religion and the Conservative Amish Mennonite Church, were convicted of violating Wisconsin's compulsory school attendance law (which requires a child's school attendance until age 16) by declining to send their children to public or private school after they had graduated from the eighth grade. The evidence showed that the Amish provide continuing informal vocational education to their children designed to prepare them for life in the rural Amish community. The evidence also showed that respondents sincerely believed that high school attendance was contrary to the Amish religion and way of life, and that they would endanger their own salvation and that of their children by complying with the law. The State Supreme Court sustained respondents' claim that application of the compulsory school attendance law to them violated their rights under the Free Exercise Clause of the First Amendment, made applicable to the States by the Fourteenth Amendment. Held: 1. The State's interest in universal education is not totally free from a balancing process when it impinges on other fundamental rights, such as those specifically protected by the Free Exercise Clause of the First Amendment and the traditional interest of parents with respect to the religious upbringing of their children. Pp. 406 U. S. 213 -215. 2. Respondents have amply supported their claim that enforcement of the compulsory formal education requirement after the eighth grade would gravely endanger if not destroy the free exercise of their religious beliefs. Pp. 406 U.S. 215 -219 3. Aided by a history of three centuries as an identifiable religious sect and a long history as a successful and self-sufficient segment of American society, the Amish have demonstrated the sincerity of their religious beliefs, the interrelationship of belief with their mode of life, the vital role that belief and daily conduct play in the continuing survival of Old Order Amish communities, and the hazards presented by the State's enforcement of a statute generally valid as to others. Beyond this, they have Page 406 U. S. 206 carried the difficult burden of demonstrating the adequacy of their alternative mode of continuing informal vocational education in terms of the overall interest that the State relies on in support of its program of compulsory high school education. In light of this showing, and weighing the minimal difference between what the State would require and what the Amish already accept, it was incumbent on the State to show with more particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish. Pp. 406 U. S. 212 -29, 406 U. S. 234 -236. 4. The State's claim that it is empowered, as parens patriae, to extend the benefit of secondary education to children regardless of the wishes of their parents cannot be sustained against a free exercise claim of the nature revealed by this record, for the Amish have introduced convincing evidence that accommodating their religious objections by forgoing one or two additional years of compulsory education will not impair the physical or mental health of the child, or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society. Pp. 406 U. S. 229 -234. 49 Wis.2d 430, 182 N.W.2d 539 , affirmed. BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, MARSHALL, and BLACKMUN, JJ., joined. STEWART, J., filed a concurring opinion, in which BRENNAN, J., joined, post, p. 406 U. S. 237 . WHITE, J., filed a concurring opinion, in which BRENNAN and STEWART, JJ., joined, post, p. 406 U. S. 237 . DOUGLAS, J., filed an opinion dissenting in part, post, p. 406 U. S. 241 . POWELL and REHNQUIST, JJ., took no part in the consideration or decision of the case. Page 406 U. S. 207 MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. On petition of the State of Wisconsin, we granted the writ of certiorari in this case to review a decision of the Wisconsin Supreme Court holding that respondents' convictions of violating the State's compulsory school attendance law were invalid under the Free Exercise Clause of the First Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment. For the reasons hereafter stated, we affirm the judgment of the Supreme Court of Wisconsin. Respondents Jonas Yoder and Wallace Miller are members of the Old Order Amish religion, and respondent Adin Yutzy is a member of the Conservative Amish Mennonite Church. They and their families are residents of Green County, Wisconsin. Wisconsin's compulsory school attendance law required them to cause their children to attend public or private school until reaching age 16, but the respondents declined to send their children, ages 14 and 15, to public school after they completed the eighth grade. [ Footnote 1 ] The children were not enrolled in any private school, or within any recognized exception to the compulsory attendance law, [ Footnote 2 ] and they are conceded to be subject to the Wisconsin statute. Page 406 U. S. 208 On complaint of the school district administrator for the public schools, respondents were charged, tried, and convicted of violating the compulsory attendance law in Green County Court, and were fined the sum of $5 each. [ Footnote 3 ] Respondents defended on the ground that the application Page 406 U. S. 209 of the compulsory attendance law violated their rights under the First and Fourteenth Amendments. [ Footnote 4 ] The trial testimony showed that respondents believed, in accordance with the tenets of Old Order Amish communities generally, that their children's attendance at high school, public or private, was contrary to the Amish religion and way of life. They believed that, by sending their children to high school, they would not only expose themselves to the danger of the censure of the church community, but, as found by the county court, also endanger their own salvation and that of their children. The State stipulated that respondents' religious beliefs were sincere. In support of their position, respondents presented as expert witnesses scholars on religion and education whose testimony is uncontradicted. They expressed their opinions on the relationship of the Amish belief concerning school attendance to the more general tenets of their religion, and described the impact that compulsory high school attendance could have on the continued survival of Amish communities as they exist in the United States today. The history of the Amish Page 406 U. S. 210 sect was given in some detail, beginning with the Swiss Anabaptists of the 16th century, who rejected institutionalized churches and sought to return to the early, simple, Christian life deemphasizing material success, rejecting the competitive spirit, and seeking to insulate themselves from the modern world. As a result of their common heritage, Old Order Amish communities today are characterized by a fundamental belief that salvation requires life in a church community separate and apart from the world and worldly influence. This concept of life aloof from the world and its values is central to their faith. A related feature of Old Order Amish communities is their devotion to a life in harmony with nature and the soil, as exemplified by the simple life of the early Christian era that continued in America during much of our early national life. Amish beliefs require members of the community to make their living by farming or closely related activities. Broadly speaking, the Old Order Amish religion pervades and determines the entire mode of life of its adherents. Their conduct is regulated in great detail by the Ordnung, or rules, of the church community. Adult baptism, which occurs in late adolescence, is the time at which Amish young people voluntarily undertake heavy obligations, not unlike the Bar Mitzvah of the Jews, to abide by the rules of the church community. [ Footnote 5 ] Amish objection to formal education beyond the eighth grade is firmly grounded in these central religious concepts. They object to the high school, and higher education generally, because the values they teach Page 406 U. S. 211 are in marked variance with Amish values and the Amish way of life; they view secondary school education as an impermissible exposure of their children to a "worldly" influence in conflict with their beliefs. The high school tends to emphasize intellectual and scientific accomplishments, self-distinction, competitiveness, worldly success, and social life with other students. Amish society emphasizes informal "learning through doing;" a life of "goodness," rather than a life of intellect; wisdom, rather than technical knowledge; community welfare, rather than competition; and separation from, rather than integration with, contemporary worldly society. Formal high school education beyond the eighth grade is contrary to Amish beliefs not only because it places Amish children in an environment hostile to Amish beliefs, with increasing emphasis on competition in class work and sports and with pressure to conform to the styles, manners, and ways of the peer group, but also because it takes them away from their community, physically and emotionally, during the crucial and formative adolescent period of life. During this period, the children must acquire Amish attitudes favoring manual work and self-reliance and the specific skills needed to perform the adult role of an Amish farmer or housewife. They must learn to enjoy physical labor. Once a child has learned basic reading, writing, and elementary mathematics, these traits, skills, and attitudes admittedly fall within the category of those best learned through example and "doing," rather than in a classroom. And, at this time in life, the Amish child must also grow in his faith and his relationship to the Amish community if he is to be prepared to accept the heavy obligations imposed by adult baptism. In short, high school attendance with teachers who are not of the Amish faith -- and may even be hostile to it -- interposes a serious barrier to the integration of the Amish child into Page 406 U. S. 212 the Amish religious community. Dr. John Hostetler, one of the experts on Amish society, testified that the modern high school is not equipped, in curriculum or social environment, to impart the values promoted by Amish society. The Amish do not object to elementary education through the first eight grades as a general proposition, because they agree that their children must have basic skills in the "three R's" in order to read the Bible, to be good farmers and citizens, and to be able to deal with non-Amish people when necessary in the course of daily affairs. They view such a basic education as acceptable because it does not significantly expose their children to worldly values or interfere with their development in the Amish community during the crucial adolescent period. While Amish accept compulsory elementary education generally, wherever possible. they have established their own elementary schools, in many respects like the small local schools of the past. In the Amish belief, higher learning tends to develop values they reject as influences that alienate man from God. On the basis of such considerations, Dr. Hostetler testified that compulsory high school attendance could not only result in great psychological harm to Amish children, because of the conflicts it would produce, but would also, in his opinion, ultimately result in the destruction of the Old Order Amish church community as it exists in the United States today. The testimony of Dr. Donald A. Erickson, an expert witness on education, also showed that the Amish succeed in preparing their high school age children to be productive members of the Amish community. He described their system of learning through doing the skills directly relevant to their adult roles in the Amish community as "ideal," and perhaps superior to ordinary high school education. The evidence also showed that the Amish have an excellent Page 406 U. S. 213 record as law-abiding and generally self-sufficient members of society. Although the trial court, in its careful findings, determined that the Wisconsin compulsory school attendance law, "does interfere with the freedom of the Defendants to act in accordance with their sincere religious belief," it also concluded that the requirement of high school attendance until age 16 was a "reasonable and constitutional" exercise of governmental power, and therefore denied the motion to dismiss the charges. The Wisconsin Circuit Court affirmed the convictions. The Wisconsin Supreme Court, however, sustained respondents' claim under the Free Exercise Clause of the First Amendment, and reversed the convictions. A majority of the court was of the opinion that the State had failed to make an adequate showing that its interest in "establishing and maintaining an educational system overrides the defendants' right to the free exercise of their religion." 49 Wis.2d 430, 447, 182 N.W.2d 539 , 547 (1971). I There is no doubt as to the power of a State, having a high responsibility for education of its citizens, to impose reasonable regulations for the control and duration of basic education. See, e.g., Pierce v. Society of Sisters, 268 U. S. 510 , 268 U. S. 534 (1925). Providing public schools ranks at the very apex of the function of a State. Yet even this paramount responsibility was, in Pierce, made to yield to the right of parents to provide an equivalent education in a privately operated system. There, the Court held that Oregon's statute compelling attendance in a public school from age eight to age 16 unreasonably interfered with the interest of parents in directing the rearing of their offspring, including their education in church-operated schools. As that case suggests, the values of parental direction of the religious upbringing Page 406 U. S. 214 and education of their children in their early and formative years have a high place in our society. See also Ginsberg v. New York, 390 U. S. 629 , 390 U. S. 639 (1968); Meyer v. Nebraska, 262 U. S. 390 (1923); cf. Rowan v. Post Office Dept., 397 U. S. 728 (1970). Thus, a State's interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children so long as they, in the words of Pierce, "prepare [them] for additional obligations." 268 U.S. at 268 U. S. 535 . It follows that, in order for Wisconsin to compel school attendance beyond the eighth grade against a claim that such attendance interferes with the practice of a legitimate religious belief, it must appear either that the State does not deny the free exercise of religious belief by its requirement or that there is a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause. Long before there was general acknowledgment of the need for universal formal education, the Religion Clauses had specifically and firmly fixed the right to free exercise of religious beliefs, and buttressing this fundamental right was an equally firm, even if less explicit, prohibition against the establishment of any religion by government. The values underlying these two provisions relating to religion have been zealously protected, sometimes even at the expense of other interests of admittedly high social importance. The invalidation of financial aid to parochial schools by government grants for a salary subsidy for teachers is but one example of the extent to which courts have gone in this regard, notwithstanding that such aid programs were legislatively determined to be in the public interest and the service of sound educational policy by States and by Congress. Lemon v. Page 406 U. S. 215 Kurtzman, 403 U. S. 602 (1971); Tilton v. Richardson, 403 U. S. 672 (1971). See also Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 18 (1947). The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion. We can accept it as settled, therefore, that, however strong the State's interest in universal compulsory education, it is by no means absolute to the exclusion or subordination of all other interests. E.g., Sherbert v. Verner, 374 U. S. 398 (1963); McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 459 (1961) (separate opinion of Frankfurter, J.); Prince v. Massachusetts, 321 U. S. 158 , 321 U. S. 165 (1944). II We come then to the quality of the claims of the respondents concerning the alleged encroachment of Wisconsin's compulsory school attendance statute on their rights and the rights of their children to the free exercise of the religious beliefs they and their forebears have adhered to for almost three centuries. In evaluating those claims, we must be careful to determine whether the Amish religious faith and their mode of life are, as they claim, inseparable and interdependent. A way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation of education if it is based on purely secular considerations; to have the protection of the Religion Clauses, the claims must be rooted in religious belief. Although a determination of what is a "religious" belief or practice entitled to constitutional protection may present a most delicate question, [ Footnote 6 ] the very concept of ordered liberty precludes Page 406 U. S. 216 allowing every person to make his own standards on matters of conduct in which society as a whole has important interests. Thus, if the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claims would not rest on a religious basis. Thoreau's choice was philosophical and personal, rather than religious, and such belief does not rise to the demands of the Religion Clauses. Giving no weight to such secular considerations, however, we see that the record in this case abundantly supports the claim that the traditional way of life of the Amish is not merely a matter of personal preference, but one of deep religious conviction, shared by an organized group, and intimately related to daily living. That the Old Order Amish daily life and religious practice stem from their faith is shown by the fact that it is in response to their literal interpretation of the Biblical injunction from the Epistle of Paul to the Romans, "be not conformed to this world. . . ." This command is fundamental to the Amish faith. Moreover, for the Old Order Amish, religion is not simply a matter of theocratic belief. As the expert witnesses explained, the Old Order Amish religion pervades and determines virtually their entire way of life, regulating it with the detail of the Talmudic diet through the strictly enforced rules of the church community. The record shows that the respondents' religious beliefs and attitude toward life, family, and home have remained constant -- perhaps some would say static -- in a period of unparalleled progress in human knowledge generally and great changes in education. [ Footnote 7 ] The respondents Page 406 U. S. 217 freely concede, and indeed assert as an article of faith, that their religious beliefs and what we would today call "lifestyle" have not altered in fundamentals for centuries. Their way of life in a church-oriented community, separated from the outside world and "worldly" influences, their attachment to nature, and the soil, is a way inherently simple and uncomplicated, albeit difficult to preserve against the pressure to conform. Their rejection of telephones, automobiles, radios, and television, their mode of dress, of speech, their habits of manual work do indeed set them apart from much of contemporary society; these customs are both symbolic and practical. As the society around the Amish has become more populous, urban, industrialized, and complex, particularly in this century, government regulation of human affairs has correspondingly become more detailed and pervasive. The Amish mode of life has thus come into conflict increasingly with requirements of contemporary society exerting a hydraulic insistence on conformity to majoritarian standards. So long as compulsory education laws were confined to eight grades of elementary basic education imparted in a nearby rural schoolhouse, with a large proportion of students of the Amish faith, the Old Order Amish had little basis to fear that school attendance would expose their children to the worldly influence they reject. But modern compulsory secondary education in rural areas is now largely carried on in a consolidated school, often remote from the student's home and alien to his daily home life. As the record so strongly shows, the values and programs of the modern secondary school are in sharp conflict with the fundamental mode of life mandated by the Amish religion; modern laws requiring compulsory secondary education have accordingly engendered great concern and conflict. [ Footnote 8 ] Page 406 U. S. 218 The conclusion is inescapable that secondary schooling, by exposing Amish children to worldly influences in terms of attitudes, goals, and values contrary to beliefs, and by substantially interfering with the religious development of the Amish child and his integration into the way of life of the Amish faith community at the crucial adolescent stage of development, contravenes the basic religious tenets and practice of the Amish faith, both as to the parent and the child. The impact of the compulsory attendance law on respondents' practice of the Amish religion is not only severe, but inescapable, for the Wisconsin law affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs. See Braunfeld v. Brown, 366 U. S. 599 , 366 U. S. 605 (1961). Nor is the impact of the compulsory attendance law confined to grave interference with important Amish religious tenets from a subjective point of view. It carries with it precisely the kind of objective danger to the free exercise of religion that the First Amendment was designed to prevent. As the record shows, compulsory school attendance to age 16 for Amish children carries with it a very real threat of undermining the Amish community and religious practice as they exist today; they must either abandon belief and be assimilated into society at large or be forced to migrate to some other and more tolerant region. [ Footnote 9 ] Page 406 U. S. 219 In sum, the unchallenged testimony of acknowledged experts in education and religious history, almost 300 years of consistent practice, and strong evidence of a sustained faith pervading and regulating respondents' entire mode of life support the claim that enforcement of the State's requirement of compulsory formal education after the eighth grade would gravely endanger, if not destroy, the free exercise of respondents' religious beliefs. III Neither the findings of the trial court nor the Amish claims as to the nature of their faith are challenged in this Court by the State of Wisconsin. Its position is that the State's interest in universal compulsory formal secondary education to age 16 is so great that it is paramount to the undisputed claims of respondents that their mode of preparing their youth for Amish life, after the traditional elementary education, is an essential part of their religious belief and practice. Nor does the State undertake to meet the claim that the Amish mode of life and education is inseparable from and a part of the basic tenets of their religion -- indeed, as much a part of their religious belief and practices as baptism, the confessional, or a sabbath may be for others. Wisconsin concedes that, under the Religion Clauses, religious beliefs are absolutely free from the State's control, but it argues that "actions," even though religiously grounded, are outside the protection of the First Amendment. [ Footnote 10 ] But our decisions have rejected the idea that Page 406 U. S. 220 religiously grounded conduct is always outside the protection of the Free Exercise Clause. It is true that activities of individuals, even when religiously based, are often subject to regulation by the States in the exercise of their undoubted power to promote the health, safety, and general welfare, or the Federal Government in the exercise of its delegated powers. See, e.g., Gillette v. United States, 401 U. S. 437 (1971); Braunfeld v. Brown, 366 U. S. 599 (1961); Prince v. Massachusetts, 321 U. S. 158 (1944); Reynolds v. United States, 98 U. S. 145 (1879). But to agree that religiously grounded conduct must often be subject to the broad police power of the State is not to deny that there are areas of conduct protected by the Free Exercise Clause of the First Amendment, and thus beyond the power of the State to control, even under regulations of general applicability. E.g., Sherbert v. Verner, 374 U. S. 398 (1963); Murdock v. Pennsylvania, 319 U. S. 105 (1943); Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 303 -304 (1940). This case, therefore, does not become easier because respondents were convicted for their "actions" in refusing to send their children to the public high school; in this context, belief and action cannot be neatly confined in logic-tight compartments. Cf. Lemon v. Kurtzman, 403 U.S.S. at 403 U. S. 612 . Nor can this case be disposed of on the grounds that Wisconsin's requirement for school attendance to age 16 applies uniformly to all citizens of the State and does not, on its face, discriminate against religions or a particular religion, or that it is motivated by legitimate secular concerns. A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion. Sherbert v. Verner, supra; cf. Walz v. Tax Commission, 397 U. S. 664 (1970). The Court must not ignore the danger that an exception Page 406 U. S. 221 from a general obligation of citizenship on religious grounds may run afoul of the Establishment Clause, but that danger cannot be allowed to prevent any exception, no matter how vital it may be to the protection of values promoted by the right of free exercise. By preserving doctrinal flexibility and recognizing the need for a sensible and realistic application of the Religion Clauses, "we have been able to chart a course that preserved the autonomy and freedom of religious bodies while avoiding any semblance of established religion. This is a 'tight rope,' and one we have successfully traversed." Walz v. Tax Commission, supra, at 397 U. S. 672 . We turn, then, to the State's broader contention that its interest in its system of compulsory education is so compelling that even the established religious practices of the Amish must give way. Where fundamental claims of religious freedom are at stake, however, we cannot accept such a sweeping claim; despite its admitted validity in the generality of cases, we must searchingly examine the interests that the State seeks to promote by its requirement for compulsory education to age 16, and the impediment to those objectives that would flow from recognizing the claimed Amish exemption. See, e.g., Sherbert v. Verner, supra; Martin v. City of Struthers, 319 U. S. 141 (1943); Schneider v. State, 308 U. S. 147 (1939). The State advances two primary arguments in support of its system of compulsory education. It notes, as Thomas Jefferson pointed out early in our history, that some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence. Further, education prepares individuals to be self-reliant and self-sufficient participants in society. We accept these propositions. Page 406 U. S. 222 However, the evidence adduced by the Amish in this case is persuasively to the effect that an additional one or two years of formal high school for Amish children in place of their long-established program of informal vocational education would do little to serve those interests. Respondents' experts testified at trial, without challenge, that the value of all education must be assessed in terms of its capacity to prepare the child for life. It is one thing to say that compulsory education for a year or two beyond the eighth grade may be necessary when its goal is the preparation of the child for life in modern society as the majority live, but it is quite another if the goal of education be viewed as the preparation of the child for life in the separated agrarian community that is the keystone of the Amish faith. See Meyer v. Nebraska, 262 U.S. at 262 U. S. 400 . The State attacks respondents' position as one fostering "ignorance" from which the child must be protected by the State. No one can question the State's duty to protect children from ignorance, but this argument does not square with the facts disclosed in the record. Whatever their idiosyncrasies as seen by the majority, this record strongly shows that the Amish community has been a highly successful social unit within our society, even if apart from the conventional "mainstream." Its members are productive and very law-abiding members of society; they reject public welfare in any of its usual modern forms. The Congress itself recognized their self-sufficiency by authorizing exemption of such groups as the Amish from the obligation to pay social security taxes. [ Footnote 11 ] Page 406 U. S. 223 It is neither fair nor correct to suggest that the Amish are opposed to education beyond the eighth grade level. What this record shows is that they are opposed to conventional formal education of the type provided by a certified high school because it comes at the child's crucial adolescent period of religious development. Dr. Donald Erickson, for example, testified that their system of "learning by doing" was an "ideal system" of education in terms of preparing Amish children for life as adults in the Amish community, and that "I would be inclined to say they do a better job in this than most of the rest of us do." As he put it, "These people aren't purporting to be learned people, and it seems to me the self-sufficiency of the community is the best evidence I can point to -- whatever is being done seems to function well. [ Footnote 12 ]" We must not forget that, in the Middle Ages, important values of the civilization of the Western World were preserved by members of religious orders who isolated themselves from all worldly influences against great obstacles. There can be no assumption that today's majority is Page 406 U. S. 224 "right," and the Amish and others like them are "wrong." A way of life that is odd or even erratic but interferes with no rights or interests of others is not to be condemned because it is different. The State, however, supports its interest in providing an additional one or two years of compulsory high school education to Amish children because of the possibility that some such children will choose to leave the Amish community, and that, if this occurs, they will be ill-equipped for life. The State argues that, if Amish children leave their church, they should not be in the position of making their way in the world without the education available in the one or two additional years the State requires. However, on this record, that argument is highly speculative. There is no specific evidence of the loss of Amish adherents by attrition, nor is there any showing that, upon leaving the Amish community, Amish children, with their practical agricultural training and habits of industry and self-reliance, would become burdens on society because of educational shortcomings. Indeed, this argument of the State appears to rest primarily on the State's mistaken assumption, already noted, that the Amish do not provide any education for their children beyond the eighth grade, but allow them to grow in "ignorance." To the contrary, not only do the Amish accept the necessity for formal schooling through the eighth grade level, but continue to provide what has been characterized by the undisputed testimony of expert educators as an "ideal" vocational education for their children in the adolescent years. There is nothing in this record to suggest that the Amish qualities of reliability, self-reliance, and dedication to work would fail to find ready markets in today's society. Absent some contrary evidence supporting the Page 406 U. S. 225 State's position, we are unwilling to assume that persons possessing such valuable vocational skills and habits are doomed to become burdens on society should they determine to leave the Amish faith, nor is there any basis in the record to warrant a finding that an additional one or two years of formal school education beyond the eighth grade would serve to eliminate any such problem that might exist. Insofar as the State's claim rests on the view that a brief additional period of formal education is imperative to enable the Amish to participate effectively and intelligently in our democratic process, it must fall. The Amish alternative to formal secondary school education has enabled them to function effectively in their day-to-day life under self-imposed limitations on relations with the world, and to survive and prosper in contemporary society as a separate, sharply identifiable and highly self-sufficient community for more than 200 years in this country. In itself, this is strong evidence that they are capable of fulfilling the social and political responsibilities of citizenship without compelled attendance beyond the eighth grade at the price of jeopardizing their free exercise of religious belief. [ Footnote 13 ] When Thomas Jefferson emphasized the need for education as a bulwark of a free people against tyranny, there is nothing to indicate he had in mind compulsory education through any fixed age beyond a basic education. Indeed, the Amish communities singularly parallel and reflect many of the virtues of Jefferson's ideal of the "sturdy yeoman" who would form the basis of what he considered as the Page 406 U. S. 226 ideal of a democratic society. [ Footnote 14 ] Even their idiosyncratic separateness exemplifies the diversity we profess to admire and encourage. The requirement for compulsory education beyond the eighth grade is a relatively recent development in our history. Less than 60 years ago, the educational requirements of almost all of the States were satisfied by completion of the elementary grades, at least where the child was regularly and lawfully employed. [ Footnote 15 ] The independence Page 406 U. S. 227 and successful social functioning of the Amish community for a period approaching almost three centuries and more than 200 years in this country are strong evidence that there is, at best, a speculative gain, in terms of meeting the duties of citizenship, from an additional one or two years of compulsory formal education. Against this background, it would require a more particularized showing from the State on this point to justify the severe interference with religious freedom such additional compulsory attendance would entail. We should also note that compulsory education and child labor laws find their historical origin in common humanitarian instincts, and that the age limits of both laws have been coordinated to achieve their related objectives. [ Footnote 16 ] In the context of this case, such considerations, Page 406 U. S. 228 if anything, support rather than detract from, respondents' position. The origins of the requirement for school attendance to age 16, an age falling after the completion of elementary school but before completion of high school, are not entirely clear. But, to some extent, such laws reflected the movement to prohibit most child labor under age 16 that culminated in the provisions of the Federal Fair Labor Standards Act of 1938. [ Footnote 17 ] It is true, then, that the 16-year child labor age limit may, to some degree, derive from a contemporary impression that children should be in school until that age. But, at the same time, it cannot be denied that, conversely, the 16-year education limit reflects, in substantial measure, the concern that children under that age not be employed under conditions hazardous to their health, or in work that should be performed by adults. The requirement of compulsory schooling to age 16 must therefore be viewed as aimed not merely at providing educational opportunities for children, but as an alternative to the equally undesirable consequence of unhealthful child labor displacing adult workers, or, on the other hand, forced idleness. [ Footnote 18 ] The two kinds of statutes -- compulsory school attendance and child labor laws -- tend to keep children of certain ages off the labor market and in school; this regimen, in turn, provides opportunity to prepare for a livelihood of a higher order than that which children could pursue without education, and protects their health in adolescence. In these terms, Wisconsin's interest in compelling the school attendance of Amish children to age 16 emerges as somewhat less substantial than requiring such attendance Page 406 U. S. 229 for children generally. For, while agricultural employment is not totally outside the legitimate concerns of the child labor laws, employment of children under parental guidance and on the family farm from age 14 to age 16 is an ancient tradition that lies at the periphery of the objectives of such laws. [ Footnote 19 ] There is no intimation that the Amish employment of their children on family farms is in any way deleterious to their health, or that Amish parents exploit children at tender years. Any such inference would be contrary to the record before us. Moreover, employment of Amish children on the family farm does not present the undesirable economic aspects of eliminating jobs that might otherwise be held by adults. IV Finally, the State, on authority of Prince v. Massachusetts, argues that a decision exempting Amish children from the State's requirement fails to recognize the substantive right of the Amish child to a secondary education, and fails to give due regard to the power of the State as parens patriae to extend the benefit of secondary education to children regardless of the wishes of their parents. Taken at its broadest sweep, the Court's language in Prince might be read to give support to the State's position. However, the Court was not confronted in Prince with a situation comparable to that of the Amish as revealed in this record; this is shown by the Page 406 U. S. 230 Court's severe characterization of the evils that it thought the legislature could legitimately associate with child labor, even when performed in the company of an adult. 321 U.S. at 321 U. S. 169 -170. The Court later took great care to confine Prince to a narrow scope in Sherbert v. Verner, when it stated: "On the other hand, the Court has rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs or principles, for 'even when the action is in accord with one's religious convictions, [it] is not totally free from legislative restrictions.' Braunfeld v. Brown, 366 U. S. 599 , 366 U. S. 603 . The conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order. See, e.g., Reynolds v. United States, 98 U. S. 145 ; Jacobson v. Massachusetts, 197 U. S. 11 ; Prince v. Massachusetts, 321 U. S. 158 . . . ." 374 U.S. at 374 U. S. 402 -403. This case, of course, is not one in which any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred. [ Footnote 20 ] The record is to the contrary, and any reliance on that theory would find no support in the evidence. Contrary to the suggestion of the dissenting opinion of MR. JUSTICE DOUGLAS, our holding today in no degree depends on the assertion of the religious interest of the child, as contrasted with that of the parents. It is the parents who are subject to prosecution here for failing to cause their children to attend school, and it Page 406 U. S. 231 is their right of free exercise, not that of their children, that must determine Wisconsin's power to impose criminal penalties on the parent. The dissent argues that a child who expresses a desire to attend public high school in conflict with the wishes of his parents should not be prevented from doing so. There is no reason for the Court to consider that point, since it is not an issue in the case. The children are not parties to this litigation. The State has at no point tried this case on the theory that respondents were preventing their children from attending school against their expressed desires, and, indeed, the record is to the contrary. [ Footnote 21 ] The state's position from the outset has been that it is empowered to apply its compulsory attendance law to Amish parents in the same manner as to other parents -- that is, without regard to the wishes of the child. That is the claim we reject today. Our holding in no way determines the proper resolution of possible competing interests of parents, children, and the State in an appropriate state court proceeding in which the power of the State is asserted on the theory that Amish parents are preventing their minor children from attending high school despite their expressed desires to the contrary. Recognition of the claim of the State in such a proceeding would, of course, call into question traditional concepts of parental control over the religious upbringing and education of their minor children recognized in this Court's past decisions. It is clear that such an intrusion by a State into family decisions in the area of religious training would give rise to grave questions of religious freedom comparable to those raised here Page 406 U. S. 232 and those presented in Pierce v. Society of Sisters, 268 U. S. 510 (1925). On this record, we neither reach nor decide those issues. The State's argument proceeds without reliance on any actual conflict between the wishes of parents and children. It appears to rest on the potential that exemption of Amish parents from the requirements of the compulsory education law might allow some parents to act contrary to the best interests of their children by foreclosing their opportunity to make an intelligent choice between the Amish way of life and that of the outside world. The same argument could, of course, be made with respect to all church schools short of college. There is nothing in the record or in the ordinary course of human experience to suggest that non-Amish parents generally consult with children of ages 14-16 if they are placed in a church school of the parents' faith. Indeed, it seems clear that, if the State is empowered, as parens patriae, to "save" a child from himself or his Amish parents by requiring an additional two years of compulsory formal high school education, the State will, in large measure, influence, if not determine, the religious future of the child. Even more markedly than in Prince, therefore, this case involves the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children. The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition. If not the first, perhaps the most significant statements of the Court in this area are found in Pierce v. Society of Sisters, in which the Court observed: "Under the doctrine of Meyer v. Nebraska, 262 U. S. 390 , we think it entirely plain that the Act Page 406 U. S. 233 of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations." 268 U.S. at 268 U. S. 534 -535. The duty to prepare the child for "additional obligations," referred to by the Court, must be read to include the inculcation of moral standards, religious beliefs, and elements of good citizenship. Pierce, of course, recognized that, where nothing more than the general interest of the parent in the nurture and education of his children is involved, it is beyond dispute that the State acts "reasonably" and constitutionally in requiring education to age 16 in some public or private school meeting the standards prescribed by the State. However read, the Court's holding in Pierce stands as a charter of the rights of parents to direct the religious upbringing of their children. And, when the interests of parenthood are combined with a free exercise claim of the nature revealed by this record, more than merely a "reasonable relation to some purpose within the competency of the State" is required to sustain the validity of the State's requirement under the First Amendment. To be sure, the power of the parent, even when linked to a free exercise claim, may be subject to limitation under Prince Page 406 U. S. 234 if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens. But, in this case, the Amish have introduced persuasive evidence undermining the arguments the State has advanced to support its claims in terms of the welfare of the child and society as a whole. The record strongly indicates that accommodating the religious objections of the Amish by forgoing one, or at most two, additional years of compulsory education will not impair the physical or mental health of the child or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society. In the face of our consistent emphasis on the central values underlying the Religion Clauses in our constitutional scheme of government, we cannot accept a parens patriae claim of such all-encompassing scope and with such sweeping potential for broad and unforeseeable application as that urged by the State. V For the reasons stated we hold, with the Supreme Court of Wisconsin, that the First and Fourteenth Amendments prevent the State from compelling respondents to cause their children to attend formal high school to age 16. [ Footnote 22 ] Our disposition of this case, however, in no way Page 406 U. S. 235 alters our recognition of the obvious fact that courts are not school boards or legislatures, and are ill-equipped to determine the "necessity" of discrete aspects of a State's program of compulsory education. This should suggest that courts must move with great circumspection in performing the sensitive and delicate task of weighing a State's legitimate social concern when faced with religious claims for exemption from generally applicable educational requirements. It cannot be overemphasized that we are not dealing with a way of life and mode of education by a group claiming to have recently discovered some "progressive" or more enlightened process for rearing children for modern life. Aided by a history of three centuries as an identifiable religious sect and a long history as a successful and self-sufficient segment of American society, the Amish in this case have convincingly demonstrated the sincerity of their religious beliefs, the interrelationship of belief with their mode of life, the vital role that belief and daily conduct play in the continued survival of Old Order Amish communities and their religious organization, and the hazards presented by the State's enforcement of a statute generally valid as to others. Beyond this, they have carried the even more difficult burden of demonstrating the adequacy of their alternative mode of continuing informal vocational education in terms of precisely those overall interests that the State advances in support of its program of compulsory high school education. In light of this convincing Page 406 U. S. 236 showing, one that probably few other religious groups or sects could make, and weighing the minimal difference between what the State would require and what the Amish already accept, it was incumbent on the State to show with more particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish. Sherbert v. Verner, supra. Nothing we hold is intended to undermine the general applicability of the State's compulsory school attendance statutes or to limit the power of the State to promulgate reasonable standards that, while not impairing the free exercise of religion, provide for continuing agricultural vocational education under parental and church guidance by the Old Order Amish or others similarly situated. The States have had a long history of amicable and effective relationships with church-sponsored schools, and there is no basis for assuming that, in this related context, reasonable standards cannot be established concerning the content of the continuing vocational education of Amish children under parental guidance, provided always that state regulations are not inconsistent with what we have said in this opinion. [ Footnote 23 ] Affirmed. MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case. Page 406 U. S. 237 [ Footnote 1 ] The children, Frieda Yoder, aged 15, Barbara Miller, aged 15, and Vernon Yutzy, aged 14, were all graduates of the eighth grade of public school. [ Footnote 2 ] Wis.Stat. § 118.15 (1969) provides in pertinent part: "118.15 Compulsory school attendance" "(1)(a) Unless the child has a legal excuse or has graduated from high school, any person having under his control a child who is between the ages of 7 and 16 years shall cause such child to attend school regularly during the full period and hours, religious holidays excepted, that the public or private school in which such child should be enrolled is in session until the end of the school term, quarter or semester of the school year in which he becomes 16 years of age." " * * * *" "(3) This section does not apply to any child who is not in proper physical or mental condition to attend school, to any child exempted for good cause by the school board of the district in which the child resides or to any child who has completed the full 4-year high school course. The certificate of a reputable physician in general practice shall be sufficient proof that a child is unable to attend school." "(4) Instruction during the required period elsewhere than at school may be substituted for school attendance. Such instruction must be approved by the state superintendent as substantially equivalent to instruction given to children of like ages in the public or private schools where such children reside." "(5) Whoever violates this section . . . may be fined not less than $5 nor more than $50 or imprisoned not more than 3 months or both." Section 118.15(1)(b) requires attendance to age 18 in a school district containing a "vocational, technical and adult education school," but this section is concededly inapplicable in this case, for there is no such school in the district involved. [ Footnote 3 ] Prior to trial, the attorney for respondents wrote the State Superintendent of Public Instruction in an effort to explore the possibilities for a compromise settlement. Among other possibilities, he suggested that perhaps the State Superintendent could administratively determine that the Amish could satisfy the compulsory attendance law by establishing their own vocational training plan similar to one that has been established in Pennsylvania. Supp.App. 6. Under the Pennsylvania plan, Amish children of high school age are required to attend an Amish vocational school for three hours a week, during which time they are taught such subjects as English, mathematics, health, and social studies by an Amish teacher. For the balance of the week, the children perform farm and household duties under parental supervision, and keep a journal of their daily activities. The major portion of the curriculum is home projects in agriculture and homemaking. See generally J. Hostetler & G. Huntington, Children in Amish Society: Socialization and Community Education, c. 5 (1971). A similar program has been instituted in Indiana. Ibid. See also Iowa Code § 299.24 (1971); Kan.Stat.Ann. § 72-1111 (Supp. 1971). The Superintendent rejected this proposal on the ground that it would not afford Amish children "substantially equivalent education" to that offered in the schools of the area. Supp.App. 6. [ Footnote 4 ] The First Amendment provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ." [ Footnote 5 ] See generally J. Hostetler, Amish Society (1968); J. Hostetler & G. Huntington, Children in Amish Society (1971); Littell, Sectarian Protestantism and the Pursuit of Wisdom: Must Technological Objectives Prevail?, in Public Controls for Nonpublic Schools 61 (D. Erickson ed.1969). [ Footnote 6 ] See Welsh v. United States, 398 U. S. 333 , 398 U. S. 351 -361 (1970) (Harlan, J., concurring in result); United States v. Ballard, 322 U. S. 78 (1944). [ Footnote 7 ] See generally R. Butts & L. Cremin, A History of Education in American Culture (1953); L. Cremin, The Transformation of the School (1961). [ Footnote 8 ] Hostetler, supra, n 5, c. 9; Hostetler & Huntington, supra, n 5. [ Footnote 9 ] Some States have developed working arrangements with the Amish regarding high school attendance. See n 3, supra. However, the danger to the continued existence of an ancient religious faith cannot be ignored simply because of the assumption that its adherents will continue to be able, at considerable sacrifice, to relocate in some more tolerant State or country or work out accommodations under threat of criminal prosecution. Forced migration of religious minorities was an evil that lay at the heart of the Religion Clauses. See, e.g., Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 9 -10 (1947); Madison, Memorial and Remonstrance Against Religious Assessments, 2 Writings of James Madison 183 (G. Hunt ed.1901). [ Footnote 10 ] That has been the apparent ground for decision in reversal previous state cases rejecting claims for exemption similar to that here. See, e.g., State v. Garber, 197 Kan. 567, 419 P.2d 896 (1966), cert. denied, 389 U. S. 51 (1967); State v. Hershberger, 103 Ohio App. 188, 144 N.E.2d 693 (1955); Commonwealth v. Beiler, 168 Pa.Super. 462, 79 A.2d 134 (1951). [ Footnote 11 ] Title 26 U.S.C. § 1402(h) authorizes the Secretary of Health, Education, and Welfare to exempt members of "a recognized religious sect" existing at all times since December 31, 1950, from the obligation to pay social security taxes if they are, by reason of the tenets of their sect, opposed to receipt of such benefits and agree to waive them, provided the Secretary finds that the sect makes reasonable provision for its dependent members. The history of the exemption shows it was enacted with the situation of the Old Order Amish specifically in view. H.R.Rep. No. 213, 89th Cong., 1st Sess., 101-102 (1965). The record in this case establishes without contradiction that the Green County Amish had never been known to commit crimes, that none had been known to receive public assistance, and that none was unemployed. [ Footnote 12 ] Dr. Erickson had previously written: "Many public educators would be elated if their programs were as successful in preparing students for productive community life as the Amish system seems to be. In fact, while some public schoolmen strive to outlaw the Amish approach, others are being forced to emulate many of its features." Erickson, Showdown at an Amish Schoolhouse: A Description and Analysis of the Iowa Controversy, in Public Controls for Nonpublic Schools 15, 53 (D. Erickson ed.1969). And see Littell, supra, n 5, at 61. [ Footnote 13 ] All of the children involved in this case are graduates of the eighth grade. In the county court, the defense introduced a study by Dr. Hostetler indicating that Amish children in the eighth grade achieved comparably to non-Amish children in the basic skills. Supp.App. 11. See generally Hostetler & Huntington, supra, n 5, at 88 96. [ Footnote 14 ] While Jefferson recognized that education was essential to the welfare and liberty of the people, he was reluctant to directly force instruction of children "in opposition to the will of the parent." Instead, he proposed that state citizenship be conditioned on the ability to "read readily in some tongue, native or acquired." Letter from Thomas Jefferson to Joseph Cabell, Sept. 9, 1817, in 17 Writings of Thomas Jefferson 417, 423-424 (Mem. ed.1904). And it is clear that, so far as the mass of the people were concerned, he envisaged that a basic education in the "three R's" would sufficiently meet the interests of the State. He suggested that, after completion of elementary school, "those destined for labor will engage in the business of agriculture, or enter into apprenticeships to such handicraft art as may be their choice." Letter from Thomas Jefferson to Peter Carr, Sept. 7, 1814, in Thomas Jefferson and Education in a Republic 93-106 (Arrowood ed.1930). See also id. at 60-64, 70, 83, 136-137. [ Footnote 15 ] See Dept. of Interior, Bureau of Education, Bulletin No. 47, Digest of State Laws Relating to Public Education 527-559 (1916); Joint Hearings on S. 2475 and H.R. 7200 before the Senate Committee on Education and Labor and the House Committee on Labor, 75th Cong., 1st Sess., pt. 2, p. 416. Even today, an eighth grade education fully satisfies the educational requirements of at least six States. See Ariz.Rev.Stat.Ann. § 15-321(b)(4) (1956); Ark.Stat.Ann. § 80-1504 (1947); Iowa Code § 299.2 (1971); S.D.Comp.Laws Ann. § 13-27-1 (1967); Wyo.Stat.Ann. § 21.1-48 (Supp. 1971). (Mississippi has no compulsory education law.) A number of other States have flexible provisions permitting children aged 14 or having completed the eighth grade to be excused from school in order to engage in lawful employment. E.g., Colo.Rev.Stat.Ann. §§ 123-20-5, 80-6-1 to 80-6-12 (1963); Conn.Gen.Stat.Rev. §§ 10-184, 10-189 (1964); D.C.Code Ann. §§ 31-202, 36-201 to 36-228 (1967); Ind.Ann.Stat. §§ 28-505 to 28-506, 28-519 (1948); Mass.Gen.Laws Ann., c. 76, § 1 (Supp. 1972) and c. 149, § 86 (1971); Mo.Rev.Stat. §§ 167.031, 294.051 (1969); Nev.Rev.Stat. § 392.110 (1968); N.M.Stat.Ann. § 77-10-6 (1968). An eighth grade education satisfied Wisconsin's formal education requirements until 1933. See Wis.Laws 1927, c. 425, § 97; Laws 1933, c. 143. (Prior to 1933, provision was made for attendance at continuation or vocational schools by working children past the eighth grade, but only if one was maintained by the community in question.) For a general discussion of the early development of Wisconsin's compulsory education and child labor laws, see F. Ensign, Compulsory School Attendance and Child Labor 203-230 (1921). [ Footnote 16 ] See, e.g., Joint Hearings, supra, n 15, pt. 1, at 185-187 (statement of Frances Perkins, Secretary of Labor), pt. 2, at 381-387 (statement of Katherine Lenroot, Chief, Children's Bureau, Department of Labor); National Child Labor Committee, 40th Anniversary Report, The Long Road (1944); 1 G. Abbott, The Child and the State 259-269, 566 (Greenwood reprint 1968); L. Cremin, The Transformation of the School, c. 3 (1961); A. Steinhilber & C. Sokolowski, State Law on Compulsory Attendance 3-4 (Dept. of Health, Education, and Welfare 1966). [ Footnote 17 ] 52 Stat. 1060, as amended, 29 U.S.C. §§ 201-219. [ Footnote 18 ] See materials cited n 16, supra; Casad, Compulsory Education and Individual Rights, in 5 Religion and the Public Order 51, 82 (D. Giannella ed.1969). [ Footnote 19 ] See, e.g., Abbott, supra, n 16, at 266. The Federal Fair Labor Standards Act of 1938 excludes from its definition of "[o]ppressive child labor" employment of a child under age 16 by "a parent . . . employing his own child . . . in an occupation other than manufacturing or mining or an occupation found by the Secretary of Labor to be particularly hazardous for the employment of children between the ages of sixteen and eighteen years or detrimental to their health or wellbeing." 29 U.S.C. § 203(1). [ Footnote 20 ] Cf., e.g., Jacobson v. Massachusetts, 197 U. S. 11 (1905); Wright v. DeWitt School District, 238 Ark. 906, 385 S.W.2d 644 (1965); Application of President and Directors of Georgetown College, Inc., 118 U.S.App.D.C. 80, 87-90, 331 F.2d 1000, 1007-1010 (in chambers opinion), cert. denied, 377 U.S. 978 (1964). [ Footnote 21 ] The only relevant testimony in the record is to the effect that the wishes of the one child who testified corresponded with those of her parents. Testimony of Frieda Yoder, Tr. 994, to the effect that her personal religious beliefs guided her decision to discontinue school attendance after the eighth grade. The other children were not called by either side. [ Footnote 22 ] What we have said should meet the suggestion that the decision of the Wisconsin Supreme Court recognizing an exemption for the Amish from the State's system of compulsory education constituted an impermissible establishment of religion. In Walz v. Tax Commission, the Court saw the three main concerns against which the Establishment Clause sought to protect as "sponsorship, financial support, and active involvement of the sovereign in religious activity." 397 U. S. 664 , 397 U. S. 668 (1970). Accommodating the religious beliefs of the Amish can hardly be characterized as sponsorship or active involvement. The purpose and effect of such an exemption are not to support, favor, advance, or assist the Amish, but to allow their centuries-old religious society, here long before the advent of any compulsory education, to survive free from the heavy impediment compliance with the Wisconsin compulsory education law would impose. Such an accommodation "reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall." Sherbert v. Verner, 374 U. S. 398 , 374 U. S. 409 (1963). [ Footnote 23 ] Several States have now adopted plans to accommodate Amish religious beliefs through the establishment of an "Amish vocational school." See n 3, supra. These are not schools in the traditional sense of the word. As previously noted, respondents attempted to reach a compromise with the State of Wisconsin patterned after the Pennsylvania plan, but those efforts were not productive. There is no basis to assume that Wisconsin will be unable to reach a satisfactory accommodation with the Amish in light of what we now hold, so as to serve its interests without impinging on respondents' protected free exercise of their religion. MR JUSTICE STEWART, with whom MR. JUSTICE BRENNAN joins, concurring. This case involves the constitutionality of imposing criminal punishment upon Amish parents for their religiously based refusal to compel their children to attend public high schools. Wisconsin has sought to brand these parents as criminals for following their religious beliefs, and the Court today rightly holds that Wisconsin cannot constitutionally do so. This case in no way involves any questions regarding the right of the children of Amish parents to attend public high schools, or any other institutions of learning, if they wish to do so. As the Court points out, there is no suggestion whatever in the record that the religious beliefs of the children here concerned differ in any way from those of their parents. Only one of the children testified. The last two questions and answers on her cross-examination accurately sum up her testimony: "Q. So I take it then, Frieda, the only reason you are not going to school, and did not go to school since last September, is because of your religion?" "A. Yes." "Q. That is the only reason?" "A. Yes." (Emphasis supplied.) It is clear to me, therefore, that this record simply does not present the interesting and important issue discussed in 406 U. S. JUSTICE DOUGLAS. With this observation, I join the opinion and the judgment of the Court. MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN and MR. JUSTICE STEWART join, concurring. Cases such as this one inevitably call for a delicate balancing of important but conflicting interests. I join the opinion and judgment of the Court because I cannot Page 406 U. S. 238 say that the State's interest in requiring two more years of compulsory education in the ninth and tenth grades outweighs the importance of the concededly sincere Amish religious practice to the survival of that sect. This would be a very different case for me if respondents' claim were that their religion forbade their children from attending any school at any time and from complying in any way with the educational standards set by the State. Since the Amish children are permitted to acquire the basic tools of literacy to survive in modern society by attending grades one through eight, and since the deviation from the State's compulsory education law is relatively slight, I conclude that respondents' claim must prevail, largely because "religious freedom -- the freedom to believe and to practice strange and, it may be, foreign creeds -- has classically been one of the highest values of our society." Braunfeld v. Brown, 366 U. S. 599 , 366 U. S. 612 (1961) (BRENNAN, J., concurring and dissenting). The importance of the state interest asserted here cannot be denigrated, however: "Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment." Brown v. Board of Education, 347 U. S. 483 , 347 U. S. 493 (1954). Page 406 U. S. 239 As recently as last Term, the Court reemphasized the legitimacy of the State's concern for enforcing minimal educational standards, Lemon v. Kurtzman, 403 U. S. 602 , 403 U. S. 613 (1971). [ Footnote 2/1 ] Pierce v. Society of Sisters, 268 U. S. 510 (1925), lends no support to the contention that parents may replace state educational requirements with their own idiosyncratic views of what knowledge a child needs to be a productive and happy member of society; in Pierce, both the parochial and military schools were in compliance with all the educational standards that the State had set, and the Court held simply that, while a State may posit such standards, it may not preempt the educational process by requiring children to attend public schools. [ Footnote 2/2 ] In the present case, the State is not concerned with the maintenance of an educational system as an end in itself; it is rather attempting to nurture and develop the human potential of its children, whether Amish or non-Amish: to expand their knowledge, broaden their sensibilities, kindle their imagination, foster a spirit of free inquiry, and increase their human understanding and tolerance. It is possible that most Amish Page 406 U. S. 240 children will wish to continue living the rural life of their parents, in which case their training at home will adequately equip them for their future role. Others, however, may wish to become nuclear physicists, ballet dancers, computer programmers, or historians, and for these occupations, formal training will be necessary. There is evidence in the record that many children desert the Amish faith when they come of age. [ Footnote 2/3 ] A State has a legitimate interest not only in seeking to develop the latent talents of its children, but also in seeking to prepare them for the lifestyle that they may later choose, or at least to provide them with an option other than the life they have led in the past. In the circumstances of this case, although the question is close, I am unable to say that the State has demonstrated that Amish children who leave school in the eighth grade will be intellectually stultified or unable to acquire new academic skills later. The statutory minimum school attendance age set by the State is, after all, only 16. Decision in cases such as this and the administration of an exemption for Old Order Amish from the State's compulsory school attendance laws will inevitably involve the kind of close and perhaps repeated scrutiny of religious practices, as is exemplified in today's opinion, which the Court has heretofore been anxious to avoid. But such entanglement does not create a forbidden establishment of religion where it is essential to implement free Page 406 U. S. 241 exercise values threatened by an otherwise neutral program instituted to foster some permissible, nonreligious state objective. I join the Court because the sincerity of the Amish religious policy here is uncontested, because the potentially adverse impact of the state requirement is great, and because the State's valid interest in education has already been largely satisfied by the eight years the children have already spent in school. [ Footnote 2/1 ] The challenged Amish religious practice here does not pose a substantial threat to public safety, peace, or order; if it did, analysis under the Free Exercise Clause would be substantially different. See Jacobson v. Massachusetts, 197 U. S. 11 (1905); Prince v. Massachusetts, 321 U. S. 158 (1944); Cleveland v. United States, 329 U. S. 14 (1946); Application of President and Directors of Georgetown College, Inc., 118 U.S.App.D.C. 80, 331 F.2d 1000, cert. denied, 377 U.S. 978 (1964). [ Footnote 2/2 ] "No question is raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare." Pierce v. Society of Sisters, 268 U. S. 510 , 268 U. S. 534 (1925). [ Footnote 2/3 ] Dr. Hostetler testified that, though there was a gradual increase in the total number of Old Order Amish in the United States over the past 50 years, "at the same time, the Amish have also lost members [of] their church," and that the turnover rate was such that "probably two-thirds [of the present Amish] have been assimilated non-Amish people." App. 110. Justice Heffernan, dissenting below opined that "[l]arge numbers of young people voluntarily leave the Amish community each year, and are thereafter forced to make their way in the world." 49 Wis.2d 430, 451, 182 N.W.2d 539 , 549 (1971). MR. JUSTICE DOUGLAS dissenting in part. I I agree with the Court that the religious scruples of the Amish are opposed to the education of their children beyond the grade schools, yet I disagree with the Court's conclusion that the matter is within the dispensation of parents alone. The Court's analysis assumes that the only interests at stake in the case are those of the Amish parents, on the one hand, and those of the State, on the other. The difficulty with this approach is that, despite the Court's claim, the parents are seeking to vindicate not only their own free exercise claims, but also those of their high-school-age children. It is argued that the right of the Amish children to religious freedom is not presented by the facts of the case, as the issue before the Court involves only the Amish parents' religious freedom to defy a state criminal statute imposing upon them an affirmative duty to cause their children to attend high school. First, respondents' motion to dismiss in the trial court expressly asserts not only the religious liberty of the adults, but also that of the children, as a defense to the prosecutions. It is, of course, beyond question that the parents have standing as defendants in a criminal prosecution to assert the religious interests of their Page 406 U. S. 242 children as a defense. [ Footnote 3/1 ] Although the lower courts and a majority of this Court assume an identity of interest between parent and child, it is clear that they have treated the religious interest of the child as a factor in the analysis. Second, it is essential to reach the question to decide the case not only because the question was squarely raised in the motion to dismiss, but also because no analysis of religious liberty claims can take place in a vacuum. If the parents in this case are allowed a religious exemption, the inevitable effect is to impose the parents' notions of religious duty upon their children. Where the child is mature enough to express potentially conflicting desires, it would be an invasion of the child's rights to permit such an imposition without canvassing his views. As in Prince v. Massachusetts, 321 U. S. 158 , it is an imposition resulting from this very litigation. As the child has no other effective forum, it is in this litigation that his rights should be considered. And if an Amish child desires to attend high school, and is mature enough to have that desire respected, the State may well be able to override the parents' religiously motivated objections. Page 406 U. S. 243 Religion is an individual experience. It is not necessary, nor even appropriate, for every Amish child to express his views on the subject in a prosecution of a single adult. Crucial, however, are the views of the child whose parent is the subject of the suit. Frieda Yoder has in fact, testified that her own religious views are opposed to high-school education. I therefore join the judgment of the Court as to respondent Jonas Yoder. But Frieda Yoder's views may not be those of Vernon Yutzy or Barbara Miller. I must dissent, therefore, as to respondents Adin Yutzy and Wallace Miller, as their motion to dismiss also raised the question of their children's religious liberty. II This issue has never been squarely presented before today. Our opinions are full of talk about the power of the parents over the child's education. See Pierce v. Society of Sisters, 268 U. S. 510 ; Meyer v. Nebraska, 262 U. S. 390 . And we have in the past analyzed similar conflicts between parent and State with little regard for the views of the child. See Prince v. Massachusetts, supra. Recent cases, however, have clearly held that the children themselves have constitutionally protectible interests. These children are "persons" within the meaning of the Bill of Rights. We have so held over and over again. In Haley v. Ohio, 332 U. S. 596 , we extended the protection of the Fourteenth Amendment in a state trial of a 15-year-old boy. In In re Gault, 387 U. S. 1 , 387 U. S. 13 , we held that "neither the Fourteenth Amendment nor the Bill of Rights is for adults alone." In In re Winship, 397 U. S. 358 , we held that a 12-year-old boy, when charged with an act which would be a crime if committed by an adult, was entitled to procedural safeguards contained in the Sixth Amendment. Page 406 U. S. 244 In Tinker v. Des Moines School District, 393 U. S. 503 , we dealt with 13-year-old, 15-year-old, and 16-year-old students who wore armbands to public schools and were disciplined for doing so. We gave them relief, saying that their First Amendment rights had been abridged. "Students, in school as well as out of school, are 'persons' under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State." Id. at 393 U. S. 511 . In Board of Education v. Barnette, 319 U. S. 624 , we held that school children whose religious beliefs collided with a school rule requiring them to salute the flag could not be required to do so. While the sanction included expulsion of the students and prosecution of the parents, id. at 319 U. S. 630 , the vice of the regime was its interference with the child's free exercise of religion. We said: "Here . . . we are dealing with a compulsion of students to declare a belief." Id. at 319 U. S. 631 . In emphasizing the important and delicate task of boards of education we said: "That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes." Id. at 319 U. S. 637 . On this important and vital matter of education, I think the children should be entitled to be heard. While the parents, absent dissent, normally speak for the entire family, the education of the child is a matter on which the child will often have decided views. He may want to be a pianist or an astronaut or an oceanographer. Page 406 U. S. 245 To do so he will have to break from the Amish tradition. [ Footnote 3/2 ] It is the future of the student, not the future of the parents, that is imperiled by today's decision. If a parent keeps his child out of school beyond the grade school, then the child will be forever barred from entry into the new and amazing world of diversity that we have today. The child may decide that that is the preferred course, or he may rebel. It is the student's judgment, not his parents', that is essential if we are to give full meaning to what we have said about the Bill of Rights and of the right of students to be masters of their own destiny. [ Footnote 3/3 ] If he is harnessed to the Amish way of life Page 406 U. S. 246 by those in authority over him, and if his education is truncated, his entire life may be stunted and deformed. The child, therefore, should be given an opportunity to be heard before the State gives the exemption which we honor today. The views of the two children in question were not canvassed by the Wisconsin courts. The matter should be explicitly reserved so that new hearings can be held on remand of the case. [ Footnote 3/4 ] III I think the emphasis of the Court on the "law and order" record of this Amish group of people is quite irrelevant. A religion is a religion irrespective of what the misdemeanor or felony records of its members might be. I am not at all sure how the Catholics, Episcopalians, the Baptists, Jehovah's Witnesses, the Unitarians, and my own Presbyterians would make out if subjected to such a test. It is, of course, true that, if a group or society was organized to perpetuate crime, and if that is its motive, we would have rather startling problems akin to those that were raised when, some years back, a particular sect was challenged here as operating on a fraudulent basis. United States v. Ballard, 322 U. S. 78 . But no such factors are present here, and the Amish, whether with a high or low criminal Page 406 U. S. 247 record, [ Footnote 3/5 ] certainly qualify by all historic standards as a religion within the meaning of the First Amendment. The Court rightly rejects the notion that actions, even though religiously grounded, are always outside the protection of the Free Exercise Clause of the First Amendment. In so ruling, the Court departs from the teaching of Reynolds v. United States, 98 U. S. 145 , 98 U. S. 164 , where it was said, concerning the reach of the Free Exercise Clause of the First Amendment, "Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order." In that case, it was conceded at polygamy was a part of the religion of the Mormons. Yet the Court said, "It matters not that his belief [in polygamy] was a part of his professed religion: it was still belief, and belief only." Id. at 98 U. S. 167 . Action which the Court deemed to be antisocial could be punished even though it was grounded on deeply held and sincere religious convictions. What we do today, at least in this respect, opens the way to give organized religion a broader base than it has ever enjoyed, and it even promises that in time Reynolds will be overruled. In another way, however, the Court retreats when, in reference to Henry Thoreau, it says his "choice was philosophical Page 406 U. S. 248 and personal, rather than religious, and such belief does not rise to the demands of the Religion Clauses." That is contrary to what we held in United States v. Seeger 380 U. S. 163 , where we were concerned with the meaning of the words "religious training and belief" in the Selective Service Act, which were the basis of many conscientious objector claims. We said: "Within that phrase would come all sincere religious beliefs which are based upon a power or being, or upon a faith to which all else is subordinate or upon which all else is ultimately dependent. The test might be stated in these words: a sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition. This construction avoids imputing to Congress an intent to classify different religious beliefs, exempting some and excluding others, and is in accord with the well established congressional policy of equal treatment for those whose opposition to service is grounded in their religious tenets." Id. at 380 U. S. 176 . Welsh v. United States, 398 U. S. 333 , was in the same vein, the Court saying: "In this case, Welsh's conscientious objection to war was undeniably based in part on his perception of world politics. In a letter to his local board, he wrote: " "I can only act according to what I am and what I see. And I see that the military complex wastes both human and material resources, that it fosters disregard for (what I consider a paramount concern) human needs and ends; I see that the means we employ to 'defend' our 'way of life' profoundly change that way of life. I see that, in our failure to Page 406 U. S. 249 recognize the political, social, and economic realities of the world, we, as a nation, fail our responsibility as a nation. " Id. at 398 U. S. 342 . The essence of Welsh's philosophy, on the basis of which we held he was entitled to an exemption, was in these words: ""I believe that human life is valuable in and of itself; in its living; therefore I will not injure or kill another human being. This belief (and the corresponding duty' to abstain from violence toward another person) is not `superior to those arising from any human relation.' On the contrary: it is essential to every human relation. I cannot, therefore, conscientiously comply with the Government's insistence that I assume duties which I feel are immoral and totally repugnant."" Id. at 398 U. S. 343 . I adhere to these exalted views of "religion," and see no acceptable alternative to them now that we have become a Nation of many religions and sects, representing all of the diversities of the human race. United States v. Seeger, 380 U.S. at 380 U. S. 192 -193 (concurring opinion). [ Footnote 3/1 ] Thus, in Prince v. Massachusetts, 321 U. S. 158 , a Jehovah's Witness was convicted for having violated a state child labor law by allowing her nine-year-old niece and ward to circulate religious literature on the public streets. There, as here, the narrow question was the religious liberty of the adult. There, as here, the Court analyzed the problem from the point of view of the State's conflicting interest in the welfare of the child. But, as MR. JUSTICE BRENNAN, speaking for the Court, has so recently pointed out, "The Court [in Pierce ] implicitly held that the custodian had standing to assert alleged freedom of religion . . . rights of the child that were threatened in the very litigation before the Court, and that the child had no effective way of asserting herself." Eisenstadt v. Baird, 405 U. S. 438 , 405 U. S. 446 n. 6. Here, as in Pierce, the children have no effective alternate means to vindicate their rights. The question, therefore, is squarely before us. [ Footnote 3/2 ] A significant number of Amish children do leave the Old Order. Professor Hostetler notes that "[t]he loss of members is very limited in some Amish districts, and considerable in others." J. Hostetler, Amish Society 226 (1968). In one Pennsylvania church, he observed a defection rate of 30%. Ibid. Rates up to 50% have been reported by others. Casad, Compulsory High School Attendance and the Old Order Amish: A Commentary on State v. Garber, 16 Kan.L.Rev. 423, 434 n. 51 (1968). [ Footnote 3/3 ] The court below brushed aside the students' interests with the offhand comment that, "[w]hen a child reaches the age of judgment, he can choose for himself his religion." 49 Wis.2d 430, 440, 182 N.W.2d 539 , 543. But there is nothing in this record to indicate that the moral and intellectual judgment demanded of the student by the question in this case is beyond his capacity. Children far younger than the 14- and 15-year-olds involved here are regularly permitted to testify in custody and other proceedings. Indeed, the failure to call the affected child in a custody hearing is often reversible error. See, e.g., Callicott v. Callicott, 364 S.W.2d 455 (Civ.App. Tex.) (reversible error for trial judge to refuse to hear testimony of eight-year-old in custody battle). Moreover, there is substantial agreement among child psychologists and sociologists that the moral and intellectual maturity of the 14-year-old approaches that of the adult. See, e.g., J. Piaget, The Moral Judgment of the Child (1948); D. Elkind, Children and Adolescents 750 (1970); Kohlberg, Moral Education in the Schools: A Developmental View, in R. Muuss, Adolescent Behavior and Society 193, 199-200 (1971); W. Kay, Moral Development 172-183 (1968); A. Gesell & F. Ilg, Youth: The Years From Ten to Sixteen 175-182 (1956). The maturity of Amish youth, who identify with and assume adult roles from early childhood, see M. Goodman, The Culture of Childhood 92-94 (1970), is certainly not less than that of children in the general population. [ Footnote 3/4 ] Canvassing the views of all school-age Amish children in the State of Wisconsin would not present insurmountable difficulties. A 1968 survey indicated that there were at that time only 256 such children in the entire State. Comment, 1971 Wis.L.Rev. 832, 852 n. 132. [ Footnote 3/5 ] The observation of Justice Heffernan, dissenting below, that the principal opinion in his court portrayed the Amish as leading a life of "idyllic agrarianism," is equally applicable to the majority opinion in this Court. So, too, is his observation that such a portrayal rests on a "mythological basis." Professor Hostetler has noted that "[d]rinking among the youth is common in all the large Amish settlements." Amish Society 283. Moreover, "[i]t would appear that, among the Amish, the rate of suicide is just as high, if not higher, than for the nation." Id. at 300. He also notes an unfortunate Amish "preoccupation with filthy stories," id. at 282, as well as significant "rowdyism and stress." Id. at 281. These are not traits peculiar to the Amish, of course. The point is that the Amish are not people set apart and different.

In Wisconsin v. Yoder, the US Supreme Court ruled in favor of Amish parents who refused to send their children to public school past the eighth grade, citing religious beliefs and a different mode of informal vocational education. The Court balanced the state's interest in universal education with the Free Exercise Clause of the First Amendment and parental rights, ultimately upholding the lower court's decision that compulsory school attendance beyond eighth grade violated the Amish community's religious freedom. The Amish successfully demonstrated the sincerity of their beliefs and the adequacy of their alternative educational methods, and the state failed to show how exempting the Amish would harm its interest in compulsory education.

Religion

Lemon v. Kurtzman

https://supreme.justia.com/cases/federal/us/403/602/

U.S. Supreme Court Lemon v. Kurtzman, 403 U.S. 602 (1971) Lemon v. Kurtzman No. 89 Argued March 3, 1971 Decided June 28, 1971 403 U.S. 602 ast|>* 403 U.S. 602 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Syllabus Rhode Island's 1969 Salary Supplement Act provides for a 15% salary supplement to be paid to teachers in nonpublic schools at which the average per-pupil expenditure on secular education is below the average in public schools. Eligible teachers must teach only courses offered in the public schools, using only materials used in the public schools, and must agree not to teach courses in religion. A three-judge court found that about 25% of the State's elementary students attended nonpublic schools, about 95% of whom attended Roman Catholic affiliated schools, and that to date about 250 teachers at Roman Catholic schools are the sole beneficiaries under the Act. The court found that the parochial school system was "an integral part of the religious mission of the Catholic Church," and held that the Act fostered "excessive entanglement" between government and religion, thus violating the Establishment Clause. Pennsylvania's Nonpublic Elementary and Secondary Education Act, passed in 1968, authorizes the state Superintendent of Public Instruction to "purchase" certain "secular educational services" from nonpublic schools, directly reimbursing those schools solely for teachers' salaries, textbooks, and instructional materials. Reimbursement is restricted to courses in specific secular subjects, the textbooks and materials must be approved by the Superintendent, and no payment is to be made for any course containing "any subject matter expressing religious teaching, or the morals or forms of worship of any sect." Contracts were made with schools that have more than 20% of all the students in the State, most of which were affiliated with the Roman Catholic Church. The complaint challenging the constitutionality of Page 403 U. S. 603 the Act alleged that the church-affiliated schools are controlled by religious organizations, have the purpose of propagating and promoting a particular religious faith, and conduct their operations to fulfill that purpose. A three-judge court granted the State's motion to dismiss the complaint for failure to state a claim for relief, finding no violation of the Establishment or Free Exercise Clause. Held: Both statutes are unconstitutional under the Religion Clauses of the First Amendment, as the cumulative impact of the entire relationship arising under the statutes involves excessive entanglement between government and religion. Pp. 403 U. S. 611 -625. (a) The entanglement in the Rhode Island program arises because of the religious activity and purpose of the church-affiliated schools, especially with respect to children of impressionable age in the primary grades, and the dangers that a teacher under religious control and discipline poses to the separation of religious from purely secular aspects of elementary education in such schools. These factors require continuing state surveillance to ensure that the statutory restrictions are obeyed and the First Amendment otherwise respected. Furthermore, under the Act, the government must inspect school records to determine what part of the expenditures is attributable to secular education, as opposed to religious activity, in the event a nonpublic school's expenditures per pupil exceed the comparable figures for public schools. Pp. 403 U. S. 615 -620. (b) The entanglement in the Pennsylvania program also arises from the restrictions and surveillance necessary to ensure that teachers play a strictly nonideological role and the state supervision of nonpublic school accounting procedures required to establish the cost of secular, as distinguished from religious, education. In addition, the Pennsylvania statute has the further defect of providing continuing financial aid directly to the church-related schools. Historically, governmental control and surveillance measures tend to follow cash grant programs, and here the government's post-audit power to inspect the financial records of church-related schools creates an intimate and continuing relationship between church and state. Pp. 403 U. S. 620 -622. (c) Political division along religious lines was one of the evils at which the First Amendment aimed, and in these programs, where successive and probably permanent annual appropriations that benefit relatively few religious groups are involved, political Page 403 U. S. 604 fragmentation and divisiveness on religious lines are likely to be intensified. Pp. 403 U. S. 622 -624. (d) Unlike the tax exemption for places of religious worship, upheld in Walz v. Tax Commission, 397 U. S. 664 , which was based on a practice of 200 years, these innovative programs have self-perpetuating and self-expanding propensities which provide a warning signal against entanglement between government and religion. Pp. 624-625. No. 89, 310 F. Supp. 35 , reversed and remanded; Nos. 569 and 570, 316 F. Supp. 112 , affirmed. BURGER, C.J., delivered the opinion of the Court, in which BLACK, DOUGLAS, HARLAN, STEWART, MARSHALL (as to Nos. 569 and 570), and BLACKMUN, JJ., joined. DOUGLAS, J., filed a concurring opinion, post, p. 403 U. S. 625 , in which BLACK, J., joined, and in which MARSHALL, J. (as to Nos. 569 and 570), joined, filing a separate statement, post, p. 403 U. S. 642 . BRENNAN, J., filed a concurring opinion, post, p. 403 U. S. 642 . WHITE, J., filed an opinion concurring in the judgment in No. 89 and dissenting in Nos. 569 and 570, post, p. 403 U. S. 661 . MARSHALL, J., took no part in the consideration or decision of No. 89. Page 403 U. S. 606 MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. These two appeals raise questions as to Pennsylvania and Rhode Island statutes providing state aid to church-related elementary and secondary schools. Both statutes are challenged as violative of the Establishment and Free Exercise Clauses of the First Amendment and the Due Process Clause of the Fourteenth Amendment. Pennsylvania has adopted a statutory program that provides financial support to nonpublic elementary and Page 403 U. S. 607 secondary schools by way of reimbursement for the cost of teachers' salaries, textbooks, and instructional materials in specified secular subjects. Rhode Island has adopted a statute under which the State pays directly to teachers in nonpublic elementary schools a supplement of 15% of their annual salary. Under each statute, state aid has been given to church-related educational institutions. We hold that both statutes are unconstitutional. I The Rhode Island Statute The Rhode Island Salary Supplement Act [ Footnote 1 ] was enacted in 1969. It rests on the legislative finding that the quality of education available in nonpublic elementary schools has been jeopardized by the rapidly rising salaries needed to attract competent and dedicated teachers. The Act authorizes state officials to supplement the salaries of teachers of secular subjects in nonpublic elementary schools by paying directly to a teacher an amount not in excess of 15% of his current annual salary. As supplemented, however, a nonpublic school teacher's salary cannot exceed the maximum paid to teachers in the State's public schools, and the recipient must be certified by the state board of education in substantially the same manner as public school teachers. In order to be eligible for the Rhode Island salary supplement, the recipient must teach in a nonpublic school at which the average per-pupil expenditure on secular education is less than the average in the State's public schools during a specified period. Appellant State Commissioner of Education also requires eligible schools to submit financial data. If this information indicates a per-pupil expenditure in excess of the statutory limitation, Page 403 U. S. 608 the records of the school in question must be examined in order to assess how much of the expenditure is attributable to secular education and how much to religious activity. [ Footnote 2 ] The Act also requires that teachers eligible for salary supplements must teach only those subjects that are offered in the State's public schools. They must use "only teaching materials which are used in the public schools." Finally, any teacher applying for a salary supplement must first agree in writing "not to teach a course in religion for so long as or during such time as he or she receives any salary supplements" under the Act. Appellees are citizens and taxpayers of Rhode Island. They brought this suit to have the Rhode Island Salary Supplement Act declared unconstitutional and its operation enjoined on the ground that it violates the Establishment and Free Exercise Clauses of the First Amendment. Appellants are state officials charged with administration of the Act, teachers eligible for salary supplements under the Act, and parents of children in church-related elementary schools whose teachers would receive state salary assistance. A three-judge federal court was convened pursuant to 28 U.S.C. §§ 2281, 2284. It found that Rhode Island's nonpublic elementary schools accommodated approximately 25% of the State's pupils. About 95% of these pupils attended schools affiliated with the Roman Catholic church. To date, some 250 teachers have applied for benefits under the Act. All of them are employed by Roman Catholic schools. Page 403 U. S. 609 The court held a hearing at which extensive evidence was introduced concerning the nature of the secular instruction offered in the Roman Catholic schools whose teachers would be eligible for salary assistance under the Act. Although the court found that concern for religious values does not necessarily affect the content of secular subjects, it also found that the parochial school system was "an integral part of the religious mission of the Catholic Church." The District Court concluded that the Act violated the Establishment Clause, holding that it fostered "excessive entanglement" between government and religion. In addition, two judges thought that the Act had the impermissible effect of giving "significant aid to a religious enterprise." 316 F. Supp. 112 . We affirm. The Pennsylvania Statute Pennsylvania has adopted a program that has some, but not all, of the features of the Rhode Island program. The Pennsylvania Nonpublic Elementary and Secondary Education Act [ Footnote 3 ] was passed in 1968 in response to a crisis that the Pennsylvania Legislature found existed in the State's nonpublic schools due to rapidly rising costs. The statute affirmatively reflects the legislative conclusion that the State's educational goals could appropriately be fulfilled by government support of "those purely secular educational objectives achieved through nonpublic education. . . ." The statute authorizes appellee state Superintendent of Public Instruction to "purchase" specified "secular educational services" from nonpublic schools. Under the "contracts" authorized by the statute, the State directly reimburses nonpublic schools solely for their actual expenditures for teachers' salaries, textbooks, and instructional materials. A school seeking reimbursement must Page 403 U. S. 610 maintain prescribed accounting procedures that identify the "separate" cost of the "secular educational service." These accounts are subject to state audit. The funds for this program were originally derived from a new tax on horse and harness racing, but the Act is now financed by a portion of the state tax on cigarettes. There are several significant statutory restrictions on state aid. Reimbursement is limited to courses "presented in the curricula of the public schools." It is further limited "solely" to courses in the following "secular" subjects: mathematics, modern foreign languages, [ Footnote 4 ] physical science, and physical education. Textbooks and instructional materials included in the program must be approved by the state Superintendent of Public Instruction. Finally, the statute prohibits reimbursement for any course that contains "any subject matter expressing religious teaching, or the morals or forms of worship of any sect." The Act went into effect on July 1, 1968, and the first reimbursement payments to schools were made on September 2, 1969. It appears that some $5 million has been expended annually under the Act. The State has now entered into contracts with some 1,181 nonpublic elementary and secondary schools with a student population of some 535,215 pupils -- more than 20% of the total number of students in the State. More than 96% of these pupils attend church-related schools, and most of these schools are affiliated with the Roman Catholic church. Appellants brought this action in the District Court to challenge the constitutionality of the Pennsylvania statute. The organizational plaintiffs appellants are associations of persons resident in Pennsylvania declaring Page 403 U. S. 611 belief in the separation of church and state; individual plaintiffs appellants are citizens and taxpayers of Pennsylvania. Appellant Lemon, in addition to being a citizen and a taxpayer, is a parent of a child attending public school in Pennsylvania. Lemon also alleges that he purchased a ticket at a race track, and thus had paid the specific tax that supports the expenditures under the Act. Appellees are state officials who have the responsibility for administering the Act. In addition seven church-related schools are defendants appellees. A three-judge federal court was convened pursuant to 28 U.S.C. §§ 2281, 2284. The District Court held that the individual plaintiffs appellants had standing to challenge the Act, 310 F. Supp. 42. The organizational plaintiffs appellants were denied standing under Flast v. Cohen, 392 U. S. 83 , 392 U. S. 99 , 101 (1968). The court granted appellees' motion to dismiss the complaint for failure to state a claim for relief. [ Footnote 5 ] 310 F. Supp. 35 . It held that the Act violated neither the Establishment nor the Free Exercise Clause, Chief Judge Hastie dissenting. We reverse. II In Everson v. Board of Education, 330 U. S. 1 (1947), this Court upheld a state statute that reimbursed the parents of parochial school children for bus transportation Page 403 U. S. 612 expenses. There, MR. JUSTICE BLACK, writing for the majority, suggested that the decision carried to "the verge" of forbidden territory under the Religion Clauses. Id. at 330 U. S. 16 . Candor compels acknowledgment, moreover, that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law. The language of the Religion Clauses of the First Amendment is, at best, opaque, particularly when compared with other portions of the Amendment. Its authors did not simply prohibit the establishment of a state church or a state religion, an area history shows they regarded as very important and fraught with great dangers. Instead, they commanded that there should be "no law respecting an establishment of religion." A law may be one "respecting" the forbidden objective while falling short of its total realization. A law "respecting" the proscribed result, that is, the establishment of religion, is not always easily identifiable as one violative of the Clause. A given law might not establish a state religion, but nevertheless be one "respecting" that end in the sense of being a step that could lead to such establishment, and hence offend the First Amendment. In the absence of precisely stated constitutional prohibitions, we must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: "sponsorship, financial support, and active involvement of the sovereign in religious activity." Walz v. Tax Commission, 397 U. S. 664 , 397 U. S. 668 (1970). Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U. S. 236 , 392 U. S. 243 (1968); Page 403 U. S. 613 finally, the statute must not foster "an excessive government entanglement with religion." Walz, supra, at 397 U. S. 674 . Inquiry into the legislative purposes of the Pennsylvania and Rhode Island statutes affords no basis for a conclusion that the legislative intent was to advance religion. On the contrary, the statutes themselves clearly state that they are intended to enhance the quality of the secular education in all schools covered by the compulsory attendance laws. There is no reason to believe the legislatures meant anything else. A State always has a legitimate concern for maintaining minimum standards in all schools it allows to operate. As in Allen, we find nothing here that undermines the stated legislative intent; it must therefore be accorded appropriate deference. In Allen, the Court acknowledged that secular and religious teachings were not necessarily so intertwined that secular textbooks furnished to students by the State were, in fact, instrumental in the teaching of religion. 392 U.S. at 392 U. S. 248 . The legislatures of Rhode Island and Pennsylvania have concluded that secular and religious education are identifiable and separable. In the abstract, we have no quarrel with this conclusion. The two legislatures, however, have also recognized that church-related elementary and secondary schools have a significant religious mission, and that a substantial portion of their activities is religiously oriented. They have therefore sought to create statutory restrictions designed to guarantee the separation between secular and religious educational functions, and to ensure that State financial aid supports only the former. All these provisions are precautions taken in candid recognition that these programs approached, even if they did not intrude upon, the forbidden areas under the Religion Clauses. We need not decide whether these legislative precautions restrict the principal or primary effect of the programs to the point where they do not offend the Religion Page 403 U. S. 614 Clauses, for we conclude that the cumulative impact of the entire relationship arising under the statutes in each State involves excessive entanglement between government and religion. III In Walz v. Tax Commission, supra, the Court upheld state tax exemptions for real property owned by religious organizations and used for religious worship. That holding, however, tended to confine, rather than enlarge, the area of permissible state involvement with religious institutions by calling for close scrutiny of the degree of entanglement involved in the relationship. The objective is to prevent, as far as possible, the intrusion of either into the precincts of the other. Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable. Zorach v. Clauson, 343 U. S. 306 , 343 U. S. 312 (1952); Sherbert v. Verner, 374 U. S. 398 , 374 U. S. 422 (1963) (HARLAN, J., dissenting). Fire inspections, building and zoning regulations, and state requirements under compulsory school attendance laws are examples of necessary and permissible contacts. Indeed, under the statutory exemption before us in Walz, the State had a continuing burden to ascertain that the exempt property was, in fact, being used for religious worship. Judicial caveats against entanglement must recognize that the line of separation, far from being a "wall," is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship. This is not to suggest, however, that we are to engage in a legalistic minuet in which precise rules and forms must govern. A true minuet is a matter of pure form and style, the observance of which is itself the substantive end. Here we examine the form of the relationship for the light that it casts on the substance. Page 403 U. S. 615 In order to determine whether the government entanglement with religion is excessive, we must examine the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority. MR. JUSTICE HARLAN, in a separate opinion in Walz, supra, echoed the classic warning as to "programs, whose very nature is apt to entangle the state in details of administration. . . ." Id. at 397 U. S. 695 . Here we find that both statutes foster an impermissible degree of entanglement. (a) Rhode Island program The District Court made extensive findings on the grave potential for excessive entanglement that inheres in the religious character and purpose of the Roman Catholic elementary schools of Rhode Island, to date the sole beneficiaries of the Rhode Island Salary Supplement Act. The church schools involved in the program are located close to parish churches. This understandably permits convenient access for religious exercises, since instruction in faith and morals is part of the total educational process. The school buildings contain identifying religious symbols such as crosses on the exterior and crucifixes, and religious paintings and statues either in the classrooms or hallways. Although only approximately 30 minutes a day are devoted to direct religious instruction, there are religiously oriented extracurricular activities. Approximately two-thirds of the teachers in these schools are nuns of various religious orders. Their dedicated efforts provide an atmosphere in which religious instruction and religious vocations are natural and proper parts of life in such schools. Indeed, as the District Court found, the role of teaching nuns in enhancing the religious atmosphere has led the parochial school authorities Page 403 U. S. 616 to attempt to maintain a one-to-one ratio between nuns and lay teachers in all schools, rather than to permit some to be staffed almost entirely by lay teachers. On the basis of these findings, the District Court concluded that the parochial schools constituted "an integral part of the religious mission of the Catholic Church." The various characteristics of the schools make them "a powerful vehicle for transmitting the Catholic faith to the next generation." This process of inculcating religious doctrine is, of course, enhanced by the impressionable age of the pupils, in primary schools particularly. In short, parochial schools involve substantial religious activity and purpose. [ Footnote 6 ] The substantial religious character of these church-related schools gives rise to entangling church-state relationships of the kind the Religion Clauses sought to avoid. Although the District Court found that concern for religious values did not inevitably or necessarily intrude into the content of secular subjects, the considerable religious activities of these schools led the legislature to provide for careful governmental controls and surveillance by state authorities in order to ensure that state aid supports only secular education. The dangers and corresponding entanglements are enhanced by the particular form of aid that the Rhode Island Act provides. Our decisions from Everson to Allen have permitted the States to provide church-related schools with secular, neutral, or nonideological services, facilities, or materials. Bus transportation, school lunches, public health services, and secular textbooks supplied in common to all students were not Page 403 U. S. 617 thought to offend the Establishment Clause. We note that the dissenters in Allen seemed chiefly concerned with the pragmatic difficulties involved in ensuring the truly secular content of the textbooks provided at state expense. In Allen, the Court refused to make assumptions, on a meager record, about the religious content of the textbooks that the State would be asked to provide. We cannot, however, refuse here to recognize that teachers have a substantially different ideological character from books. In terms of potential for involving some aspect of faith or morals in secular subjects, a textbook's content is ascertainable, but a teacher's handling of a subject is not. We cannot ignore the danger that a teacher under religious control and discipline poses to the separation of the religious from the purely secular aspects of pre-college education. The conflict of functions inheres in the situation. In our view, the record shows these dangers are present to a substantial degree. The Rhode Island Roman Catholic elementary schools are under the general supervision of the Bishop of Providence and his appointed representative, the Diocesan Superintendent of Schools. In most cases, each individual parish, however, assumes the ultimate financial responsibility for the school, with the parish priest authorizing the allocation of parish funds. With only two exceptions, school principals are nuns appointed either by the Superintendent or the Mother Provincial of the order whose members staff the school. By 1969, lay teachers constituted more than a third of all teachers in the parochial elementary schools, and their number is growing. They are first interviewed by the superintendent's office and then by the school principal. The contracts are signed by the parish priest, and he retains some discretion in negotiating salary levels. Religious authority necessarily pervades the school system. Page 403 U. S. 618 The schools are governed by the standards set forth in a "Handbook of School Regulations," which has the force of synodal law in the diocese. It emphasizes the role and importance of the teacher in parochial schools: "The prime factor for the success or the failure of the school is the spirit and personality, as well as the professional competency, of the teacher. . . ." The Handbook also states that: "Religious formation is not confined to formal courses; nor is it restricted to a single subject area." Finally, the Handbook advises teachers to stimulate interest in religious vocations and missionary work. Given the mission of the church school, these instructions are consistent and logical. Several teachers testified, however, that they did not inject religion into their secular classes. And the District Court found that religious values did not necessarily affect the content of the secular instruction. But what has been recounted suggests the potential, if not actual, hazards of this form of state aid. The teacher is employed by a religious organization, subject to the direction and discipline of religious authorities, and works in a system dedicated to rearing children in a particular faith. These controls are not lessened by the fact that most of the lay teachers are of the Catholic faith. Inevitably, some of a teacher's responsibilities hover on the border between secular and religious orientation. We need not and do not assume that teachers in parochial schools will be guilty of bad faith or any conscious design to evade the limitations imposed by the statute and the First Amendment. We simply recognize that a dedicated religious person, teaching in a school affiliated with his or her faith and operated to inculcate its tenets, will inevitably experience great difficulty in remaining religiously neutral. Doctrines and faith are not inculcated or advanced by neutrals. With the best of intentions, such a teacher would find it hard to make Page 403 U. S. 619 a total separation between secular teaching and religious doctrine. What would appear to some to be essential to good citizenship might well for others border on or constitute instruction in religion. Further difficulties are inherent in the combination of religious discipline and the possibility of disagreement between teacher and religious authorities over the meaning of the statutory restrictions. We do not assume, however, that parochial school teachers will be unsuccessful in their attempts to segregate their religious belief from their secular educational responsibilities. But the potential for impermissible fostering of religion is present. The Rhode Island Legislature has not, and could not, provide state aid on the basis of a mere assumption that secular teachers under religious discipline can avoid conflicts. The State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion -- indeed, the State here has undertaken to do so. To ensure that no trespass occurs, the State has therefore carefully conditioned its aid with pervasive restrictions. An eligible recipient must teach only those courses that are offered in the public schools and use only those texts and materials that are found in the public schools. In addition, the teacher must not engage in teaching any course in religion. A comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions are obeyed and the First Amendment otherwise respected. Unlike a book, a teacher cannot be inspected once so as to determine the extent and intent of his or her personal beliefs and subjective acceptance of the limitations imposed by the First Amendment. These prophylactic contacts will involve excessive and enduring entanglement between state and church. Page 403 U. S. 620 There is another area of entanglement in the Rhode Island program that gives concern. The statute excludes teachers employed by nonpublic schools whose average per-pupil expenditures on secular education equal or exceed the comparable figures for public schools. In the event that the total expenditures of an otherwise eligible school exceed this norm, the program requires the government to examine the school's records in order to determine how much of the total expenditures is attributable to secular education and how much to religious activity. This kind of state inspection and evaluation of the religious content of a religious organization is fraught with the sort of entanglement that the Constitution forbids. It is a relationship pregnant with dangers of excessive government direction of church schools, and hence of churches. The Court noted "the hazards of government supporting churches" in Walz v. Tax Commission, supra, at 397 U. S. 675 , and we cannot ignore here the danger that pervasive modern governmental power will ultimately intrude on religion and thus conflict with the Religion Clauses. (b) Pennsylvania program The Pennsylvania statute also provides state aid to church-related schools for teachers' salaries. The complaint describes an educational system that is very similar to the one existing in Rhode Island. According to the allegations, the church-related elementary and secondary schools are controlled by religious organizations, have the purpose of propagating and promoting a particular religious faith, and conduct their operations to fulfill that purpose. Since this complaint was dismissed for failure to state a claim for relief, we must accept these allegations as true for purposes of our review. As we noted earlier, the very restrictions and surveillance necessary to ensure that teachers play a strictly nonideological role give rise to entanglements between Page 403 U. S. 621 church and state. The Pennsylvania statute, like that of Rhode Island, fosters this kind of relationship. Reimbursement is not only limited to courses offered in the public schools and materials approved by state officials, but the statute excludes "any subject matter expressing religious teaching, or the morals or forms of worship of any sect." In addition, schools seeking reimbursement must maintain accounting procedures that require the State to establish the cost of the secular, as distinguished from the religious, instruction. The Pennsylvania statute, moreover, has the further defect of providing state financial aid directly to the church-related school. This factor distinguishes both Everson and Allen, for, in both those cases, the Court was careful to point out that state aid was provided to the student and his parents -- not to the church-related school. Board of Education v. Allen, supra, at 392 U. S. 243 -244; Everson v. Board of Education, supra, at 330 U. S. 18 . In Walz v. Tax Commission, supra, at 397 U. S. 675 , the Court warned of the dangers of direct payments to religious organizations: "Obviously a direct money subsidy would be a relationship pregnant with involvement and, as with most governmental grant programs, could encompass sustained and detailed administrative relationships for enforcement of statutory or administrative standards. . . ." The history of government grants of a continuing cash subsidy indicates that such programs have almost always been accompanied by varying measures of control and surveillance. The government cash grants before us now provide no basis for predicting that comprehensive measures of surveillance and controls will not follow. In particular, the government's post-audit power to inspect and evaluate a church-related school's financial records and to determine which expenditures are religious and Page 403 U. S. 622 which are secular creates an intimate and continuing relationship between church and state. IV A broader base of entanglement of yet a different character is presented by the divisive political potential of these state programs. In a community where such a large number of pupils are served by church-related schools, it can be assumed that state assistance will entail considerable political activity. Partisans of parochial schools, understandably concerned with rising costs and sincerely dedicated to both the religious and secular educational missions of their schools, will inevitably champion this cause and promote political action to achieve their goals. Those who oppose state aid, whether for constitutional, religious, or fiscal reasons, will inevitably respond and employ all of the usual political campaign techniques to prevail. Candidates will be forced to declare, and voters to choose. It would be unrealistic to ignore the fact that many people confronted with issues of this kind will find their votes aligned with their faith. Ordinarily, political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. Freund, Comment, Public Aid to Parochial Schools, 82 Harv.L.Rev. 1680, 1692 (1969). The potential divisiveness of such conflict is a threat to the normal political process. Walz v. Tax Commission, supra, at 397 U. S. 695 (separate opinion of HARLAN, J.). See also Board of Education v. Allen, 392 U.S. at 392 U. S. 249 (HARLAN, J., concurring); Abington School District v. Schempp, 374 U. S. 203 , 374 U. S. 307 (1963) (Goldberg, J., concurring). To have States or communities divide on the issues presented by state aid to parochial schools would tend to confuse Page 403 U. S. 623 and obscure other issues of great urgency. We have an expanding array of vexing issues, local and national, domestic and international, to debate and divide on. It conflicts with our whole history and tradition to permit questions of the Religion Clauses to assume such importance in our legislatures and in our elections that they could divert attention from the myriad issues and problems that confront every level of government. The highways of church and state relationships are not likely to be one-way streets, and the Constitution's authors sought to protect religious worship from the pervasive power of government. The history of many countries attests to the hazards of religion's intruding into the political arena or of political power intruding into the legitimate and free exercise of religious belief. Of course, as the Court noted in Walz, "[a]dherents of particular faiths and individual churches frequently take strong positions on public issues." Walz v. Tax Commission, supra, at 397 U. S. 670 . We could not expect otherwise, for religious values pervade the fabric of our national life. But, in Walz, we dealt with a status under state tax laws for the benefit of all religious groups. Here we are confronted with successive and very likely permanent annual appropriations that benefit relatively few religious groups. Political fragmentation and divisiveness on religious lines are thus likely to be intensified. The potential for political divisiveness related to religious belief and practice is aggravated in these two statutory programs by the need for continuing annual appropriations and the likelihood of larger and larger demands as costs and populations grow. The Rhode Island District Court found that the parochial school system's "monumental and deepening financial crisis" would "inescapably" require larger annual appropriations subsidizing greater percentages of the salaries of lay teachers. Although no facts have been developed in this respect Page 403 U. S. 624 in the Pennsylvania case, it appears that such pressures for expanding aid have already required the state legislature to include a portion of the state revenues from cigarette taxes in the program. V In Walz, it was argued that a tax exemption for places of religious worship would prove to be the first step in an inevitable progression leading to the establishment of state churches and state religion. That claim could not stand up against more than 200 years of virtually universal practice imbedded in our colonial experience and continuing into the present. The progression argument, however, is more persuasive here. We have no long history of state aid to church-related educational institutions comparable to 200 years of tax exemption for churches. Indeed, the state programs before us today represent something of an innovation. We have already noted that modern governmental programs have self-perpetuating and self-expanding propensities. These internal pressures are only enhanced when the schemes involve institutions whose legitimate needs are growing and whose interests have substantial political support. Nor can we fail to see that, in constitutional adjudication, some steps which, when taken, were thought to approach "the verge" have become the platform for yet further steps. A certain momentum develops in constitutional theory, and it can be a "downhill thrust" easily set in motion but difficult to retard or stop. Development by momentum is not invariably bad; indeed, it is the way the common law has grown, but it is a force to be recognized and reckoned with. The dangers are increased by the difficulty of perceiving in advance exactly where the "verge" of the precipice lies. As well as constituting an independent evil against which the Religion Clauses were intended to protect, involvement Page 403 U. S. 625 or entanglement between government and religion serves as a warning signal. Finally, nothing we have said can be construed to disparage the role of church-related elementary and secondary schools in our national life. Their contribution has been and is enormous. Nor do we ignore their economic plight in a period of rising costs and expanding need. Taxpayers generally have been spared vast sums by the maintenance of these educational institutions by religious organizations, largely by the gifts of faithful adherents. The merit and benefits of these schools, however, are not the issue before us in these cases. The sole question is whether state aid to these schools can be squared with the dictates of the Religion Clauses. Under our system, the choice has been made that government is to be entirely excluded from the area of religious instruction, and churches excluded from the affairs of government. The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice, and that, while some involvement and entanglement are inevitable, lines must be drawn. The judgment of the Rhode Island District Court in No. 569 and No. 570 is affirmed. The judgment of the Pennsylvania District Court in No. 89 is reversed, and the case is remanded for further proceedings consistent with this opinion. MR. JUSTICE MARSHALL took no part in the consideration or decision of No. 89. * Together with No. 569, Earley et al. v. DiCenso et al., and No. 570, Robinson, Commissioner of Education of Rhode Island, et al. v. DiCenso et al., on appeal from the United States District Court for the District of Rhode Island. [ Footnote 1 ] R.I.Gen.Laws Ann. § 16-51-1 et seq. (Supp. 1970). [ Footnote 2 ] The District Court found only one instance in which this breakdown between religious and secular expenses was necessary. The school in question was not affiliated with the Catholic church. The court found it unlikely that such determinations would be necessary with respect to Catholic schools, because their heavy reliance on nuns kept their wage costs substantially below those of the public schools. [ Footnote 3 ] Pa.Stat.Ann., Tit. 24, §§ 5601-5609 (Supp. 1971). [ Footnote 4 ] Latin, Hebrew, and classical Greek are excluded. [ Footnote 5 ] Plaintiffs appellants also claimed that the Act violated the Equal Protection Clause of the Fourteenth Amendment by providing state assistance to private institutions that discriminated on racial and religious grounds in their admissions and hiring policies. The court unanimously held that no plaintiff had standing to raise this claim because the complaint did not allege that the child of any plaintiff had been denied admission to any nonpublic school on racial or religious grounds. Our decision makes it unnecessary for us to reach this issue. [ Footnote 6 ] See, e.g., J. Fichter, Parochial School: A Sociological Study 77-108 (1958); Giannella, Religious Liberty, Nonestablishment, and Doctrinal Development, pt. II, The Nonestablishment Principle, 81 Harv.L.Rev. 513, 574 (1968). MR. JUSTICE DOUGLAS, whom MR. JUSTICE BLACK joins, concurring. While I join the opinion of the Court, I have expressed at some length my views as to the rationale of today's decision in these three cases. Page 403 U. S. 626 They involve two different statutory schemes for providing aid to parochial schools. Lemon deals with the Pennsylvania Nonpublic Elementary and Secondary Education Act, Laws 1968, Act No. 109. By its terms, the Pennsylvania Act allows the State to provide funds directly to private schools to purchase "secular educational service" such as teachers' salaries, textbooks, and educational materials. Pa.Stat.Ann., Tit. 24, § 5604 (Supp. 1971). Reimbursement for these services may be made only for courses in mathematics, modern foreign languages, physical science, and physical education. Reimbursement is prohibited for any course containing subject matter "expressing religious teaching, or the morals or forms of worship of any sect." § 5603 (Supp. 1971). To qualify, a school must demonstrate that its pupils achieve a satisfactory level of performance in standardized tests approved by the Superintendent of Public Instruction, and that the textbooks and other instructional materials used in these courses have been approved by the Superintendent of Public Instruction. The three-judge District Court below upheld this statute against the argument that it violates the Establishment Clause. We noted probable jurisdiction. 397 U.S. 1034. The DiCenso cases involve the Rhode Island Salary Supplement Act, Laws 1969, c. 246. The Rhode Island Act authorizes supplementing the salaries of teachers of secular subjects in nonprofit private schools. The supplement is not more than 15% of an eligible teacher's current salary, but cannot exceed the maximum salary paid to teachers in the State's public schools. To be eligible, a teacher must teach only those subjects offered in public schools in the State, must be certified in substantially the same manner as teachers in public schools, and may use only teaching materials which are used in the public schools. Also the teacher must agree in writing Page 403 U. S. 627 "not to teach a course in religion for so long as or during such time as he or she receives any salary supplements." R.I.Gen.Laws Ann. § 16-51-3 (Supp. 1970). The schools themselves must not be operated for profit, must meet state educational standards, and the annual per-student expenditure for secular education must not equal or exceed "the average annual per student expenditure in the public schools in the state at the same grade level in the second preceding fiscal year." § 16-51-2 (Supp. 1970). While the Rhode Island Act, unlike the Pennsylvania Act, provides for direct payments to the teacher, the three-judge District Court below found it unconstitutional because it "results in excessive government entanglement with religion." Probable jurisdiction was noted, and the cases were set for oral argument with the other school cases. 400 U.S. 901. In Walz v. Tax Commission, 397 U. S. 664 , 397 U. S. 674 , the Court in approving a tax exemption for church property said: "Determining that the legislative purpose of tax exemption is not aimed at establishing, sponsoring, or supporting religion does not end the inquiry, however. We must also be sure that the end result -- the effect -- is not an excessive government entanglement with religion." There is, in my view, such an entanglement here. The surveillance or supervision of the States needed to police grants involved in these three cases, if performed, puts a public investigator into every classroom and entails a pervasive monitoring of these church agencies by the secular authorities. Yet if that surveillance or supervision does not occur, the zeal of religious proselytizers promises to carry the day and make a shambles of the Establishment Clause. Moreover, when taxpayers of Page 403 U. S. 628 many faiths are required to contribute money for the propagation of one faith, the Free Exercise Clause is infringed. The analysis of the constitutional objections to these two state systems of grants to parochial or sectarian schools must start with the admitted and obvious fact that the raison d'etre of parochial schools is the propagation of a religious faith. They also teach secular subjects, but they came into existence in this country because Protestant groups were perverting the public schools by using them to propagate their faith. The Catholics naturally rebelled. If schools were to be used to propagate a particular creed or religion, then Catholic ideals should also be served. Hence, the advent of parochial schools. By 1840, there were 200 Catholic parish schools in the United States. [ Footnote 2/1 ] By 1964, there were 60 times as many. [ Footnote 2/2 ] Today, 57% of the 9,000 Catholic parishes in the country have their church schools. "[E]very diocesan chancery has its school department, and enjoys a primacy of status." [ Footnote 2/3 ] The parish schools indeed consume 40% to 65% of the parish's total income. [ Footnote 2/4 ] The parish is so "school-centered" that "[t]he school almost becomes the very reason for being." [ Footnote 2/5 ] Early in the 19th century, the Protestants obtained control of the New York school system and used it to promote reading and teaching of the Scriptures as revealed in the King James version of the Bible. [ Footnote 2/6 ] The contests Page 403 U. S. 629 between Protestants and Catholics, often erupting into violence including the burning of Catholic churches, are a twice-told tale; [ Footnote 2/7 ] the Know-Nothing Party, which included in its platform "daily Bible reading in the schools," [ Footnote 2/8 ] carried three States in 1854 -- Massachusetts, Pennsylvania, and Delaware. [ Footnote 2/9 ] Parochial schools grew, but not Catholic schools alone. Other dissenting sects established their own schools -- Lutherans, Methodists, Presbyterians, and others. [ Footnote 2/10 ] But the major force in shaping the pattern of education in this country was the conflict between Protestants and Catholics. The Catholics logically argued that a public school was sectarian when it taught the King James version of the Bible. They therefore wanted it removed from the public schools, and, in time, they tried to get public funds for their own parochial schools. [ Footnote 2/11 ] The constitutional right of dissenters to substitute their parochial schools for public schools was sustained by the Court in Pierce v. Society of Sisters, 268 U. S. 510 . The story of conflict and dissension is long and well known. The result was a state of so-called equilibrium, where religious instruction was eliminated from public schools and the use of public funds to support religious schools was deemed to be banned. [ Footnote 2/12 ] But the hydraulic pressures created by political forces and by economic stress were great, and they began to Page 403 U. S. 630 change the situation. Laws were passed -- state and federal -- that dispensed public funds to sustain religious schools and the plea was always in the educational frame of reference: education in all sectors was needed, from languages to calculus to nuclear physics. And it was forcefully argued that a linguist or mathematician or physicist trained in religious schools was just as competent as one trained in secular schools. And so we have gradually edged into a situation where vast amounts of public funds are supplied each year to sectarian schools. [ Footnote 2/13 ] And the argument is made that the private parochial school system takes about $9 billion a year off the back of government [ Footnote 2/14 ] -- as if that were enough to justify violating the Establishment Clause. While the evolution of the public school system in this country marked an escape from denominational control, and was therefore admirable as seen through the eyes of those who think like Madison and Jefferson, it has disadvantages. The main one is that a state system may attempt to mold all students alike according to the views of the dominant group, and to discourage the emergence of individual idiosyncrasies. Sectarian education, however, does not remedy that condition. The advantages of sectarian education relate solely to religious or doctrinal matters. They give the Page 403 U. S. 631 church the opportunity to indoctrinate its creed delicately and indirectly, or massively through doctrinal courses. Many nations follow that course: Moslem nations teach the Koran in their schools; Sweden vests its elementary education in the parish; Newfoundland puts its school system under three superintendents -- one from the Church of England, one from the Catholic church, one from the United Church. In Ireland, the public schools are under denominational managership -- Catholic, Episcopalian, Presbyterian, and Hebrew. England puts sectarian schools under the umbrella of its school system. It finances sectarian education; it exerts control by prescribing standards; it requires some free scholarships; it provides nondenominational membership on the board of directors. [ Footnote 2/15 ] The British system is, in other words, one of surveillance over sectarian schools. We too have surveillance over sectarian schools, but only to the extent of making sure that minimum educational standards are met, viz., competent teachers, accreditation of the school for diplomas, the number of hours of work and credits allowed, and so on. But we have never faced, until recently, the problem of policing sectarian schools. Any surveillance to date has been minor, and has related only to the consistently unchallenged matters of accreditation of the sectarian school in the State's school system. [ Footnote 2/16 ] The Rhode Island Act allows a supplementary salary to a teacher in a sectarian school if he or she "does not teach a course in religion." Page 403 U. S. 632 The Pennsylvania Act provides for state financing of instruction in mathematics, modern foreign languages, physical science, and physical education, provided that the instruction in those courses "shall not include any subject matter expressing religious teaching, or the morals or forms of worship of any sect." Public financial support of parochial schools puts those schools under disabilities with which they were not previously burdened. For, as we held in Cooper v. Aaron, 358 U. S. 1 , 358 U. S. 19 , governmental activities relating to schools "must be exercised consistently with federal constitutional requirements." There we were concerned with equal protection; here we are faced with issues of Establishment of religion and its Free Exercise as those concepts are used in the First Amendment. Where the governmental activity is the financing of the private school, the various limitations or restraints imposed by the Constitution on state governments come into play. Thus, Arkansas, as part of its attempt to avoid the consequences of Brown v. Board of Education, 347 U. S. 483 , 347 U. S. 349 U.S. 294, withdrew its financial support from some public schools and sent the funds instead to private schools. That state action was held to violate the Equal Protection Clause. Aaron v. McKinley, 173 F. Supp. 944 , 952. We affirmed, sub nom. Faubus v. Aaron, 361 U. S. 197 . Louisiana tried a like tactic, and it too was invalidated. Poindexter v. Louisiana Financial Assistance Commission, 296 F. Supp. 686 . Again we affirmed. 393 U. S. 17 . Whatever might be the result in case of grants to students, [ Footnote 2/17 ] it is clear that, once Page 403 U. S. 633 one of the States finances a private school, it is duty-bound to make certain that the school stays within secular bounds and does not use the public funds to promote sectarian causes. The government may, of course, finance a hospital though it is run by a religious order, provided it is open to people of all races and creeds. Bradfield v. Roberts, 175 U. S. 291 . The government itself could enter the hospital business, and it would, of course, make no difference if its agents who ran its hospitals were Catholics, Methodists, agnostics, or whatnot. For the hospital is not indulging in religious instruction or guidance or indoctrination. As Mr. Justice Jackson said in Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 26 (dissenting): "[Each State has] great latitude in deciding for itself, in the light of its own conditions, what shall be public purposes in its scheme of things. It may socialize utilities and economic enterprises and make taxpayers' business out of what conventionally had been private business. It may make public business of individual welfare, health, education, entertainment or security. But it cannot make public business of religious worship or instruction, or of attendance at religious institutions of any character." The reason is that given by Madison in his Remonstrance: [ Footnote 2/18 ] "[T]he same authority which can force a citizen to contribute three pence only of his property for Page 403 U. S. 634 the support of any one establishment, may force him to conform to any other establishment. . . ." When Madison, in his Remonstrance, attacked a taxing measure to support religious activities, he advanced a series of reasons for opposing it. One that is extremely relevant here was phrased as follows: [ Footnote 2/19 ] "[I]t will destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced amongst its several sects." Intermeddling, to use Madison's word, or "entanglement," to use what was said in Walz, has two aspects. The intrusion of government into religious schools through grants, supervision, or surveillance may result in establishment of religion in the constitutional sense when what the State does enthrones a particular sect for overt or subtle propagation of its faith. Those activities of the State may also intrude on the Free Exercise Clause by depriving a teacher, under threats of reprisals, of the right to give sectarian construction or interpretation of, say, history and literature, or to use the teaching of such subjects to inculcate a religious creed or dogma. Under these laws, there will be vast governmental suppression, surveillance, or meddling in church affairs. As I indicated in Tilton v. Richardson, post, p. 403 U. S. 689 , decided this day, school prayers, the daily routine of parochial schools, must go if our decision in Engel v. Vitale, 370 U. S. 421 , is honored. If it is not honored, then the state has established a religious sect. Elimination of prayers is only part of the problem. The curriculum presents subtle and difficult problems. The constitutional mandate can in part be carried out by censoring the curricula. What is palpably a sectarian course can be marked for Page 403 U. S. 635 deletion. But the problem only starts there. Sectarian instruction, in which, of course, a State may not indulge, can take place in a course on Shakespeare or in one on mathematics. No matter what the curriculum offers, the question is, what is taught? We deal not with evil teachers, but with zealous ones who may use any opportunity to indoctrinate a class. [ Footnote 2/20 ] It is well known that everything taught in most parochial schools is taught with the ultimate goal of religious education in mind. Rev. Joseph H. Fichter, S.J., stated in Parochial School: A Sociological Study 86 (1958): "It is a commonplace observation that, in the parochial school, religion permeates the whole curriculum, and is not confined to a single half-hour period of the day. Even arithmetic can be used as an instrument of pious thoughts, as in the case of the teacher who gave this problem to her class:" "If it takes forty thousand priests and a hundred and forty thousand sisters to care for forty million Catholics in the United States, how many more priests and sisters will be needed to convert and care for the hundred million non-Catholics in the United States?" One can imagine what a religious zealot, as contrasted to a civil libertarian, can do with the Reformation Page 403 U. S. 636 or with the Inquisition. Much history can be given the gloss of a particular religion. I would think that policing these grants to detect sectarian instruction would be insufferable to religious partisans, and would breed division and dissension between church and state. This problem looms large where the church controls the hiring and firing of teachers: "[I]n the public school, the selection of a faculty and the administration of the school usually rests with a school board, which is subject to election and recall by the voters, but in the parochial school, the selection of a faculty and the administration of the school is in the hands of the bishop alone, and usually is administered through the local priest. If a faculty member in the public school believes that he has been treated unjustly in being disciplined or dismissed, he can seek redress through the civil court, and he is guaranteed a hearing. But if a faculty member in a parochial school is disciplined or dismissed, he has no recourse whatsoever. The word of the bishop or priest is final, even without explanation if he so chooses. The tax payers have a voice in the way their money is used in the public school, but the people who support a parochial school have no voice at all in such affairs." L. Boettner, Roman Catholicism 375 (1962). Board of Education v. Allen, 392 U. S. 236 , dealt only with textbooks. Even so, some had difficulty giving approval. Yet books can be easily examined independently of other aspects of the teaching process. In the present cases, we deal with the totality of instruction destined to be sectarian, at least in part, if the religious character of the school is to be maintained. A school which operates to commingle religion with other instruction plainly cannot completely secularize its instruction. Page 403 U. S. 637 Parochial schools, in large measure, do not accept the assumption that secular subjects should be unrelated to religious teaching. Lemon involves a state statute that prescribes that courses in mathematics, modern foreign languages, physical science, and physical education "shall not include any subject matter expressing religious teaching, or the morals or forms of worship of any sect." The subtleties involved in applying this standard are obvious. It places the State astride a sectarian school and gives it power to dictate what is or is not secular, what is or is not religious. I can think of no more disrupting influence apt to promote rancor and ill-will between church and state than this kind of surveillance and control. They are the very opposite of the "moderation and harmony" between church and state which Madison thought was the aim and purpose of the Establishment Clause. The DiCenso cases have all the vices which are in Lemon, because the supplementary salary payable to the teacher is conditioned on his or her not teaching "a course in religion." Moreover, the DiCenso cases reveal another, but related, knotty problem presented when church and state launch one of these educational programs. The Bishop of Rhode Island has a Handbook of School Regulations for the Diocese of Providence. [ Footnote 2/21 ] The school board supervises "the education, both spiritual and secular, in the parochial schools and diocesan high schools." The superintendent is an agent of the bishop, and he interprets and makes "effective state and diocesan educational directives." Page 403 U. S. 638 The pastors visit the schools and "give their assistance in promoting spiritual and intellectual discipline." Community supervisors "assist the teacher in the problems of instruction," and these duties are: "I. To become well enough acquainted with the teachers of their communities so as to be able to advise the community superiors on matters of placement and reassignment." "II. To act as liaison between the provincialate and the religious teacher in the school." "III. To cooperate with the superintendent by studying the diocesan school regulations and to encourage the teachers of their community to observe these regulations." "IV. To avoid giving any orders or directions to the teachers of their community that may be in conflict with diocesan regulations or policy regarding curriculum, testing, textbooks, method, or administrative matters." "V. To refer questions concerning school administration beyond the scope of their own authority to the proper diocesan school authorities, namely, the superintendent of schools or the pastor." The length of the school day includes Mass: "A full day session for Catholic schools at the elementary level consists of five and one-half hours, exclusive of lunch and Mass, [ Footnote 2/22 ] but inclusive of recess for pupils in grades 1-3." A course of study or syllabus prescribed for an elementary or secondary school is "mandatory." Page 403 U. S. 639 Religious instruction is provided as follows: "A. Systematic religious instructions must be provided in all schools of the diocese." "B. Modern catechetics requires a teacher with unusual aptitudes, specialized training, and such function of the spirit that his words possess the force of a personal call. He should be so filled with his subject that he can freely improvize in discussion, dramatization, drawing, song, and prayer. A teacher so gifted and so permeated by the message of the Gospel is rare. Perhaps no teacher in a given school attains that ideal. But some teachers come nearer it than others. If our pupils are to hear the Good News so that their minds are enlightened and their hearts respond to the love of God and His Christ, if they are to be formed into vital, twentieth-century Christians, they should receive their religious instructions only from the very best teachers." "C. Inasmuch as the textbooks employed in religious instruction above the fifth grade require a high degree of catechetical preparation, religion should be a departmentalized subject in grade six through twelve." Religious activities are provided, through observance of specified holy days and participation in Mass. "Religious formation' is not restricted to courses, but is achieved 'through the example of the faculty, the tone of the school . . . and religious activities." No unauthorized priest may address the students. "Retreats and days of recollection form an integral part of our religious program in the Catholic schools." Religious factors are used in the selection of students: "Although wealth should never serve as a criterion for accepting a pupil into a Catholic school, all other Page 403 U. S. 640 things being equal, it would seem fair to give preference to a child whose parents support the parish. Regular use of the budget, rather than the size of the contributions, would appear equitable. It indicates whether parents regularly attend Mass." These are only highlights of the handbook. But they indicate how pervasive is the religious control over the school, and how remote this type of school is from the secular school. Public funds supporting that structure are used to perpetuate a doctrine and creed in innumerable and in pervasive ways. Those who man these schools are good people, zealous people, dedicated people. But they are dedicated to ideas that the Framers of our Constitution placed beyond the reach of government. If the government closed its eyes to the manner in which these grants are actually used, it would be allowing public funds to promote sectarian education. If it did not close its eyes, but undertook the surveillance needed, it would, I fear, intermeddle in parochial affairs in a way that would breed only rancor and dissension. We have announced over and over again that the use of taxpayers' money to support parochial schools violates the First Amendment, applicable to the States by virtue of the Fourteenth. We said in unequivocal words in Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 16 , "No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion." We reiterated the same idea in Zorach v. Clauson, 343 U. S. 306 , 343 U. S. 314 , and in McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 443 , and in Torcaso v. Watkins, 367 U. S. 488 , 367 U. S. 493 . We repeated the same idea in McCollum v. Board of Education, 333 U. S. 203 , 333 U. S. 210 , and added that a State's Page 403 U. S. 641 tax-supported public schools could not be used "for the dissemination of religious doctrines," nor could a State provide the church "pupils for their religious classes through use of the State's compulsory public school machinery." Id. at 333 U. S. 212 . Yet, in spite of this long and consistent history, there are those who have the courage to announce that a State may nonetheless finance the secular part of a sectarian school's educational program. That, however, makes a grave constitutional decision turn merely on cost accounting and bookkeeping entries. A history class, a literature class, or a science class in a parochial school is not a separate institute; it is part of the organic whole which the State subsidizes. The funds are used in these cases to pay or help pay the salaries of teachers in parochial schools; and the presence of teachers is critical to the essential purpose of the parochial school, viz., to advance the religious endeavors of the particular church. It matters not that the teacher receiving taxpayers' money only teaches religion a fraction of the time. Nor does it matter that he or she teaches no religion. The school is an organism living on one budget. What the taxpayers give for salaries of those who teach only the humanities or science without any trace of proselytizing enables the school to use all of its own funds for religious training. As Judge Coffin said, 316 F. Supp. 112 , 120, we would be blind to realities if we let "sophisticated bookkeeping" sanction "almost total subsidy of a religious institution by assigning the bulk of the institution's expenses to secular' activities." And sophisticated attempts to avoid the Constitution are just as invalid as simple-minded ones. Lane v. Wilson, 307 U. S. 268 , 307 U. S. 275 . In my view, the taxpayers' forced contribution to the Page 403 U. S. 642 parochial schools in the present cases violates the First Amendment. MR. JUSTICE MARSHALL, who took no part in the consideration or decision of No. 89, see ante, p. 403 U. S. 625 , while intimating no view as to the continuing vitality of Everson v. Board of Education, 330 U. S. 1 (1947), concurs in MR. JUSTICE DOUGLAS' opinion covering Nos. 569 and 570. [ Footnote 2/1 ] A. Stokes & L. Pfeffer, Church and State in the United States 229 (1964). [ Footnote 2/2 ] Ibid. [ Footnote 2/3 ] Deedy, Should Catholic Schools Survive?, New Republic, Mar. 13, 1971, pp. 15, 16. [ Footnote 2/4 ] Id. at 17. [ Footnote 2/5 ] Ibid. [ Footnote 2/6 ] Stokes & Pfeffer, supra, 403 U.S. 602 fn2/1|>n. 1, at 231. [ Footnote 2/7 ] Id. at 231-239. [ Footnote 2/8 ] Id. at 237. [ Footnote 2/9 ] Ibid. [ Footnote 2/10 ] R. Butts, The American Tradition in Religion and Education 115 (1950). [ Footnote 2/11 ] Id. at 118. And see R. Finney, A Brief History of the American Public School 44-45 (1924). [ Footnote 2/12 ] See E. Knight, Education in the United States 3, 314 (3d rev. ed.1951); E. Cubberley, Public Education in the United States 164 et seq. (1919). [ Footnote 2/13 ] In 1960, the Federal Government provided $500 million to private colleges and universities. Amounts contributed by state and local governments to private schools at any level were negligible. Just one decade later, federal aid to private colleges and universities had grown to $2.1 billion. State aid had begun and reached $100 million. Statistical Abstract of the United States 105 (1970). As the present cases demonstrate, we are now reaching a point where state aid is being given to private elementary and secondary school as well as colleges and universities. [ Footnote 2/14 ] Deedy, supra, 403 U.S. 602 fn2/3|>n. 3, at 16. [ Footnote 2/15 ] S. Curtis, History of Education in Great Britain 316-383 (5th ed.1963); W. Alexander, Education in England, c. II (2d ed.1964). [ Footnote 2/16 ] See Pierce v. Society of Sisters, 268 U. S. 510 , 268 U. S. 534 ; Meyer v. Nebraska, 262 U. S. 390 , 262 U. S. 402 . [ Footnote 2/17 ] Grants to students in the context of the problems of desegregated public schools have without exception been stricken down as tools of the forbidden discrimination. See Griffin v. School Bd. of Prince Edward County, 377 U. S. 218 ; Hall v. St. Helena Parish School Bd., 197 F. Supp. 649 , aff'd, 368 U. S. 515 ; Lee v. Macon County Bd., 267 F. Supp. 458 , aff'd sub nom. Wallace v. United States, 389 U. S. 215 ; Poindexter v. Louisiana Financial Assistance Commission, 275 F. Supp. 833 , aff'd, 389 U. S. 571 ; Brown v. South Carolina State Bd., 296 F. Supp. 199 , aff'd, 393 U. S. 222 ; Coffey v. State Educ. Finance Commission, 296 F. Supp. 1389 ; Lee v. Macon County Bd., 31 F. Supp. 743. [ Footnote 2/18 ] Remonstrance � 3. The Memorial and Remonstrance Against Religious Assessments has been reproduced in appendices to the opinion of Rutledge, J., in Everson, 330 U.S. at 330 U. S. 63 , and to that of DOUGLAS, J., in Walz, 397 U.S. at 397 U. S. 719 . [ Footnote 2/19 ] Remonstrance � 11. [ Footnote 2/20 ] "In the parochial schools, Roman Catholic indoctrination is included in every subject. History, literature, geography, civics, and science are given a Roman Catholic slant. The whole education of the child is filled with propaganda. That, of course, is the very purpose of such schools, the very reason for going to all of the work and expense of maintaining a dual school system. Their purpose is not so much to educate, but to indoctrinate and train, not to teach Scripture truths and Americanism, but to make loyal Roman Catholics. The children are regimented, and are told what to wear, what to do, and what to think." L. Boettner, Roman Catholicism 360 (1962). [ Footnote 2/21 ] It was said on oral argument that the handbook shown as an exhibit in the record had been superseded. The provisions hereinafter quoted are from the handbook as it reads after all the deletions to which we were referred. [ Footnote 2/22 ] "The use of school time to participate in the Holy Sacrifice of the Mass on the feasts of All Saints, Ascension, and the patronal saint of the parish or school, as well as during the 40 Hours Devotion, is proper and commendable." MR. JUSTICE BRENNAN. * I agree that the judgments in Nos. 569 and 570 must be affirmed. In my view, the judgment in No. 89 must be reversed outright. I dissent in No. 153 insofar as the plurality opinion and the opinion of my Brother WHITE sustain the constitutionality, as applied to sectarian institutions, of the Federal Higher Education Facilities Act of 1963, as amended, 77 Stat. 363, 20 U.S.C. § 711 et seq. (1964 ed. and Supp. V). In my view, that Act is unconstitutional insofar as it authorizes grants of federal tax monies to sectarian institutions, but is unconstitutional only to that extent. I therefore think that our remand of the case should be limited to the direction of a hearing to determine whether the four institutional appellees here are sectarian institutions. I continue to adhere to the view that, to give concrete meaning to the Establishment Clause, "the line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers. It is a line which the Court has consistently sought to mark in its decisions expounding the religious guarantees of the First Page 403 U. S. 643 Amendment. What the Framers meant to foreclose, and what our decisions under the Establishment Clause have forbidden, are those involvements of religious with secular institutions which (a) serve the essentially religious activities of religious institutions; (b) employ the organs of government for essentially religious purposes; or (c) use essentially religious means to serve governmental ends, where secular means would suffice. When the secular and religious institutions become involved in such a manner, there inhere in the relationship precisely those dangers -- as much to church as to state -- which the Framers feared would subvert religious liberty and the strength of a system of secular government." Abington School District v. Schempp, 374 U. S. 203 , 374 U. S. 294 -295 (1963) (concurring opinion); Walz v. Tax Commission, 397 U. S. 664 , 397 U. S. 680 -681 (1970) (concurring opinion). The common feature of all three statutes before us is the provision of a direct subsidy from public funds for activities carried on by sectarian educational institutions. We have sustained the reimbursement of parents for bus fares of students under a scheme applicable to both public and nonpublic schools, Everson v. Board of Education, 330 U. S. 1 (1947). We have also sustained the loan of textbooks in secular subjects to students of both public and nonpublic schools, Board of Education v. Allen, 392 U. S. 236 (1968). See also Bradfield v. Roberts, 175 U. S. 291 (1899). The statutory schemes before us, however, have features not present in either the Everson or Allen schemes. For example, the reimbursement or the loan of books ended government involvement in Everson and Allen. In contrast, each of the schemes here exacts a promise in some form that the subsidy will not be used to finance Page 403 U. S. 644 courses in religious subjects -- promises that must be and are policed to assure compliance. Again, although the federal subsidy, similar to the Everson and Allen subsidies, is available to both public and nonpublic colleges and universities, the Rhode Island and Pennsylvania subsidies are restricted to nonpublic schools, and, for practical purposes, to Roman Catholic parochial schools. [ Footnote 3/1 ] These and other features I shall mention mean for me that Everson and Allen do not control these cases. Rather, the history of public subsidy of sectarian schools, and the purposes and operation of these particular statutes, must be examined to determine whether the statutes breach the Establishment Clause. Walz v. Tax Commission, supra, at 397 U. S. 681 (concurring opinion). Page 403 U. S. 645 I In sharp contrast to the "undeviating acceptance given religious tax exemptions from our earliest days as a Nation," ibid., subsidy of sectarian educational institutions became embroiled in bitter controversies very soon after the Nation was formed. Public education was, of course, virtually nonexistent when the Constitution was adopted. Colonial Massachusetts in 1647 had directed towns to establish schools, Benjamin Franklin in 1749 proposed a Philadelphia Academy, and Jefferson labored to establish a public school system in Virginia. [ Footnote 3/2 ] But these were the exceptions. Education in the Colonies was overwhelmingly a private enterprise, usually carried on as a denominational activity by the dominant Protestant sects. In point of fact, government generally looked to the church to provide education, and often contributed support through donations of land and money. E. Cubberley, Public Education in the United States 171 (1919). Nor was there substantial change in the years immediately following ratification of the Constitution and the Bill of Rights. Schools continued to be local and, in the main, denominational institutions. [ Footnote 3/3 ] But the demand for public education soon emerged. The evolution of the struggle in New York City is illustrative. [ Footnote 3/4 ] In 1786, the first New York State Legislature ordered that one section in each township be set aside for the "gospel and schools." With no public schools, various private agencies and churches operated "charity schools" for the poor of New Page 403 U. S. 646 York City and received money from the state common school fund. The forerunner of the city's public schools was organized in 1805 when DeWitt Clinton founded "The Society for Establishment of a Free School in the City of New York for the Education of such poor Children as do not belong to or are not provided for by any Religious Society." The State and city aided the society, and it built many schools. Gradually, however, competition and bickering among the Free School Society and the various church schools developed over the apportionment of state school funds. As a result, in 1825, the legislature transferred to the city council the responsibility for distributing New York City's share of the state funds. The council stopped funding religious societies which operated 16 sectarian schools, but continued supporting schools connected with the Protestant Orphan Asylum Society. Thereafter, in 1831, the Catholic Orphan Asylum Society demanded and received public funds to operate its schools, but a request of Methodists for funds for the same purpose was denied. Nine years later, the Catholics enlarged their request for public monies to include all parochial schools, contending that the council was subsidizing sectarian books and instruction of the Public School Society, which Clinton's Free School Society had become. The city's Scotch Presbyterian and Jewish communities immediately followed with requests for funds to finance their schools. Although the Public School Society undertook to revise its texts to meet the objections, in 1842, the state legislature closed the bitter controversy by enacting a law that established a City Board of Education to set up free public schools, prohibited the distribution of public funds to sectarian schools, and prohibited the teaching of sectarian doctrine in any public school. The Nation's rapidly developing religious heterogeneity, the tide of Jacksonian democracy, and growing Page 403 U. S. 647 urbanization soon led to widespread demands throughout the States for secular public education. At the same time, strong opposition developed to use of the States' taxing powers to support private sectarian schools. [ Footnote 3/5 ] Although the controversy over religious exercises in the public schools continued into this century, Schempp, 374 U.S. at 374 U. S. 268 -277 (BRENNAN, J., concurring), the opponents of subsidy to sectarian schools had largely won their fight by 1900. In fact, after 1840, no efforts of sectarian schools to obtain a share of public school funds succeeded. Cubberley, supra, at 179. Between 1840 and 1875, 19 States added provisions to their constitutions prohibiting the use of public school funds to aid sectarian schools, id. at 180, and by 1900, 16 more States had added similar provisions. In fact, no State admitted to the Union after 1858, except West Virginia, omitted such provision from its first constitution. Ibid. Today, fewer than a half-dozen States omit such provisions from their constitutions. [ Footnote 3/6 ] Page 403 U. S. 648 And, in 1897, Congress included in its appropriation act for the District of Columbia a statement declaring it "to be the policy of the Government of the United States to make no appropriation of money or property for the purpose of founding, maintaining, or aiding by payment for services, expenses, or otherwise, any church or religious denomination, or any institution or society which is under sectarian or ecclesiastical control." 29 Stat. 411. Thus, for more than a century, the consensus, enforced by legislatures and courts with substantial consistency, has been that public subsidy of sectarian schools constitutes an impermissible involvement of secular with Page 403 U. S. 649 religious institutions. [ Footnote 3/7 ] If this history is not itself compelling against the validity of the three subsidy statutes, in the sense we found in Walz that "undeviating acceptance" was highly significant in favor of the validity of religious tax exemption, other forms of governmental involvement that each of the three statutes requires tip the scales, in my view, against the validity of each of them. These are involvements that threaten "danger as much to church as to state which the Framers feared would subvert religious liberty and the strength of a system of secular government." Schempp, 374 U.S. at 374 U. S. 295 (BRENNAN, J., concurring). "[G]overnment and religion have discrete interests which are mutually best served when each avoids too close a proximity to the other. It is not only the nonbeliever who fears the injection of sectarian doctrines and controversies into the civil polity, but, in as high degree, it is the devout believer who fears the secularization of a creed which becomes too deeply involved with and dependent upon the government." Id. at 374 U. S. 259 (BRENNAN, J., concurring). All three of these statutes require "too close a proximity" of government to the subsidized sectarian institutions and, in my view, create real dangers of "the secularization of a creed." Page 403 U. S. 650 II The Rhode Island statute requires Roman Catholic teachers to surrender their right to teach religion courses and to promise not to "inject" religious teaching into their secular courses. This has led at least one teacher to stop praying with his classes, [ Footnote 3/8 ] a concrete testimonial to the self-censorship that inevitably accompanies state regulation of delicate First Amendment freedoms. Cf. Smith v. California, 361 U. S. 147 (1959); Speer v. Randall, 357 U. S. 513 , 357 U. S. 526 (1958). Both the Rhode Island and Pennsylvania statutes prescribe extensive standardization of the content of secular courses, and of the teaching materials and textbooks to be used in teaching the courses. And the regulations to implement those requirements necessarily require policing of instruction in the schools. The picture of state inspectors prowling the halls of parochial schools and auditing classroom instruction surely raises more than an imagined specter of governmental "secularization of a creed." The same dangers attend the federal subsidy, even if less obviously. The Federal Government exacts a promise that no "sectarian instruction" or "religious worship" will take place in a subsidized building. The Office of Education polices the promise. [ Footnote 3/9 ] In one instance, federal Page 403 U. S. 651 officials demanded that a college cease teaching a course entitled "The History of Methodism" in a federally assisted building, although the Establishment Clause "plainly does not foreclose teaching about the Holy Scriptures or about the differences between religious sects in classes in literature or history." Schempp, 374 U.S. at 374 U. S. 300 (BRENNAN, J., concurring). These examples illustrate the complete incompatibility of such surveillance with the restraints barring interference with religious freedom. [ Footnote 3/10 ] Policing the content of courses, the specific textbooks used, and indeed the words of teachers is far different from the legitimate policing carried on under state compulsory attendance laws or laws regulating minimum levels of educational achievement. Government's legitimate interest in ensuring certain minimum skill levels and the acquisition of certain knowledge does not carry with it power to prescribe what shall not be taught, or what methods of instruction shall be used, or what opinions the teacher may offer in the course of teaching. Moreover, when a sectarian institution accepts state financial aid, it becomes obligated, under the Equal Protection Clause of the Fourteenth Amendment, not to discriminate in admissions policies and faculty selection. Page 403 U. S. 652 The District Court in the Rhode Island case pinpointed the dilemma: "Applying these standards to parochial schools might well restrict their ability to discriminate in admissions policies and in the hiring and firing of teachers. At some point, the school becomes 'public' for more purposes than the Church could wish. At that point, the Church may justifiably feel that its victory on the Establishment Clause has meant abandonment of the Free Exercise Clause." 316 F. Supp. at 121-122 (citations omitted). III In any event, I do not believe that elimination of these aspects of "too close a proximity" would save these three statutes. I expressed the view in Walz that "[g]eneral subsidies of religious activities would, of course, constitute impermissible state involvement with religion." 397 U.S. at 397 U. S. 690 (concurring opinion). I do not think the subsidies under these statutes fall outside "[g]eneral subsidies of religious activities" merely because they are restricted to support of the teaching of secular subjects. In Walz, the passive aspect of the benefits conferred by a tax exemption, particularly since cessation of the exemptions might easily lead to impermissible involvements and conflicts, led me to conclude that exemptions were consistent with the First Amendment values. However, I contrasted direct government subsidies: "Tax exemptions and general subsidies, however, are qualitatively different. Though both provide economic assistance, they do so in fundamentally different ways. A subsidy involves the direct transfer of public monies to the subsidized enterprise, and uses resources exacted from taxpayers as a whole. An exemption, on the other hand, involves no such Page 403 U. S. 653 transfer. It assists the exempted enterprise only passively, by relieving a privately funded venture of the burden of paying taxes. In other words, '[i]n the case of direct subsidy, the state forcibly diverts the income of both believers and nonbelievers to churches,' while," "[i]n the case of an exemption, the state merely refrains from diverting to its own uses income independently generated by the churches through voluntary contributions." "Thus," "the symbolism of tax exemption is significant as a manifestation that organized religion is not expected to support the state; by the same token the state is not expected to support the church." 397 U.S. at 397 U. S. 690 -691 (footnotes and citations omitted) (concurring opinion). Pennsylvania, Rhode Island, and the Federal Government argue strenuously that the government monies in all these cases are not "[g]eneral subsidies of religious activities," because they are paid specifically and solely for the secular education that the sectarian institutions provide. [ Footnote 3/11 ] Before turning to the decisions of this Court on which this argument is based, it is important to recall again the history of subsidies to sectarian schools. See 403 U. S. S. 654� I, supra. The universality of state constitutional provisions forbidding such grants, as well as the weight of judicial authority disapproving such aid as a violation of our tradition of separation of church and state, reflects a time-tested judgment that such grants do indeed constitute impermissible aid to religion. See nn. 403 U.S. 602 fn3/6|>6 and 403 U.S. 602 fn3/7|>7, supra. The recurrent argument, consistently rejected in the past, has been that government grants to sectarian schools ought not be viewed as impermissible subsidies "because [the schools] relieve the State of a burden, which it would otherwise be itself required to bear. . . . they will render a service to the state by performing for it its duty of educating the children of the people." Cook County v. Chicago Industrial School, 125 Ill. 540, 571, 18 N.E. 183, 197 (1888). Nonetheless, it is argued once again in these cases that sectarian schools and universities perform two separable functions. First, they provide secular education, and second, they teach the tenets of a particular sect. Since the State has determined that the secular education provided in sectarian schools serves the legitimate state interest in the education of its citizens, it is contended that state aid solely to the secular education function does not involve the State in aid to religion. Pierce v. Society of Sisters, 268 U. S. 510 (1925), and Board of Education v. Allen, supra, are relied on as support for the argument. Our opinion in Allen recognized that sectarian schools provide both a secular and a sectarian education: "[T]his Court has long recognized that religious schools pursue two goals, religious instruction and secular education. In the leading case of Pierce v. Society of Sisters, 268 U. S. 510 (1925), the Court held that . . . Oregon had not shown that its interest in secular education required that all children attend publicly operated schools. A premise of this Page 403 U. S. 655 holding was the view that the State's interest in education would be served sufficiently by reliance on the secular teaching that accompanied religious training in the schools maintained by the Society of Sisters." " * * * *" [T]he continued willingness to rely on private school systems, including parochial systems, strongly suggests that a wide segment of informed opinion, legislative and otherwise, has found that those schools do an acceptable job of providing secular education to their students. This judgment is further evidence that parochial schools are performing, in addition to their sectarian function, the task of secular education. Board of Education v. Allen, 392 U.S. at 392 U. S. 245 , 392 U. S. 247 -248 (footnote omitted). But I do not read Pierce or Allen as supporting the proposition that public subsidy of a sectarian institution's secular training is permissible state involvement. I read them as supporting the proposition that, as an identifiable set of skills and an identifiable quantum of knowledge, secular education may be effectively provided either in the religious context of parochial schools or outside the context of religion in public schools. The State's interest in secular education may be defined broadly as an interest in ensuring that all children within its boundaries acquire a minimum level of competency in certain skills, such as reading, writing, and arithmetic, as well as a minimum amount of information and knowledge in certain subjects such as history, geography, science, literature, and law. Without such skills and knowledge, an individual will be at a severe disadvantage both in participating in democratic self-government and in earning a living in a modern industrial economy. But the State has no proper interest in prescribing the precise forum in which such skills and knowledge are learned, since acquisition of this Page 403 U. S. 656 secular education is neither incompatible with religious learning, nor is it inconsistent with or inimical to religious precepts. When the same secular educational process occurs in both public and sectarian schools, Allen held that the State could provide secular textbooks for use in that process to students in both public and sectarian schools. Of course, the State could not provide textbooks giving religious instruction. But since the textbooks involved in Allen would, at least in theory, be limited to secular education, no aid to sectarian instruction was involved. More important, since the textbooks in Allen had been previously provided by the parents, and not the schools, 392 U.S. at 392 U. S. 244 n. 6, no aid to the institution was involved. Rather, as in the case of the bus transportation in Everson, the general program of providing all children in the State with free secular textbooks assisted all parents in schooling their children. And as in Everson, there was undoubtedly the possibility that some parents might not have been able to exercise their constitutional right to send their children to parochial school if the parents were compelled themselves to pay for textbooks. However, as my Brother BLACK wrote for the Court in Everson, "[C]utting off church schools from these [general] services, so separate and so indisputably marked off from the religious function, would make it far more difficult for the schools to operate. But such is obviously not the purpose of the First Amendment. That Amendment requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them." 330 U.S. at 330 U. S. 18 . Page 403 U. S. 657 Allen, in my view, simply sustained a statute in which the State was "neutral in its relations with groups of religious believers and nonbelievers." The only context in which the Court in Allen employed the distinction between secular and religious in a parochial school was to reach its conclusion that the textbooks that the State was providing could and would be secular. [ Footnote 3/12 ] The present cases, however, involve direct subsidies of tax monies to the schools themselves, and we cannot blink the fact that the secular education those schools provide goes hand in hand with the religious mission that is the only reason for the schools' existence. Within the institution, the two are inextricably intertwined. The District Court in the DiCenso case found that all the varied aspects of the parochial school's program -- the nature of its faculty, its supervision, decor, program, extracurricular activities, assemblies, courses, etc. -- produced an "intangible religious atmosphere,'" since the "diocesan school system is an integral part of the religious mission of the Catholic Church," and "a powerful vehicle for transmitting the Catholic faith to the next generation." 316 F. Supp. at 117. Quality teaching in secular subjects is an integral part of this religious enterprise. "Good secular teaching is as essential to the religious mission of the parochial schools as a roof for the school or desks for the classrooms." 316 F. Supp. at 117-118. That teaching cannot be separated from the environment in which it occurs, for its integration with the religious mission is both the theory and the strength of the religious school. The common ingredient of the three prongs of the test Page 403 U. S. 658 set forth at the outset of this opinion is whether the statutes involve government in the "essentially religious activities" of religious institutions. My analysis of the operation, purposes, and effects of these statutes leads me inescapably to the conclusion that they do impermissibly involve the States and the Federal Government with the "essentially religious activities" of sectarian educational institutions. More specifically, for the reasons stated, I think each government uses "essentially religious means to serve governmental ends, where secular means would suffice." This Nation long ago committed itself to primary reliance upon publicly supported public education to serve its important goals in secular education. Our religious diversity gave strong impetus to that commitment. "[T]he American experiment in free public education available to all children has been guided in large measure by the dramatic evolution of the religious diversity among the population which our public schools serve. . . . The public schools are supported entirely, in most communities, by public funds -- funds exacted not only from parents, nor alone from those who hold particular religious views, nor indeed from those who subscribe to any creed at all. It is implicit in the history and character of American public education that the public schools serve a uniquely public function: the training of American citizens in an atmosphere free of parochial, divisive, or separatist influences of any sort -- an atmosphere in which children may assimilate a heritage common to all American groups and religions. This is a heritage neither theistic nor atheistic, but simply civic and patriotic." Schempp, 374 U.S. at 374 U. S. 241 -242 (citation omitted) (BRENNAN, J., concurring). Page 403 U. S. 659 I conclude that, in using sectarian institutions to further goals in secular education, the three statutes do violence to the principle that "government may not employ religious means to serve secular interests, however legitimate they may be, at least without the clearest demonstration that nonreligious means will not suffice." Schempp, supra, at 374 U. S. 265 (BRENNAN, J., concurring). IV The plurality's treatment of the issues in Tilton, No. 153, diverges so substantially from my own that I add these further comments. I believe that the Establishment Clause forbids the Federal Government to provide funds to sectarian universities in which the propagation and advancement of a particular religion are a function or purpose of the institution. Since the District Court made no findings whether the four institutional appellees here are sectarian, I would remand the case to the District Court with directions to determine whether the institutional appellees are "sectarian" institutions. I reach this conclusion for the reasons I have stated: the necessarily deep involvement of government in the religious activities of such an institution through the policing of restrictions, and the fact that subsidies of tax monies directly to a sectarian institution necessarily aid the proselytizing function of the institution. The plurality argues that neither of these dangers is present. [ Footnote 3/13 ] At the risk of repetition, I emphasize that a sectarian university is the equivalent in the realm of higher education of the Catholic elementary schools in Rhode Island; it is an educational institution in which the propagation Page 403 U. S. 660 and advancement of a particular religion are a primary function of the institution. I do not believe that construction grants to such a sectarian institution are permissible. The reason is not that religion "permeates" the secular education that is provided. Rather, it is that the secular education is provided within the environment of religion; the institution is dedicated to two goals, secular education and religious instruction. When aid flows directly to the institution, both functions benefit. The plurality would examine only the activities that occur within the federally assisted building, and ignore the religious nature of the school of which it is a part. The "religious enterprise" aided by the construction grants involves the maintenance of an educational environment -- which includes high-quality, purely secular educational courses -- within which religious instruction occurs in a variety of ways. The plurality also argues that no impermissible entanglement exists here. My Brother WHITE cogently comments upon that argument: "Why the federal program in the Tilton case is not embroiled in the same difficulties [as the Rhode Island program] is never adequately explained." Post at 403 U. S. 668 . I do not see any significant difference in the Federal Government's telling the sectarian university not to teach any nonsecular subjects in a certain building, and Rhode Island's telling the Catholic school teacher not to teach religion. The vice is the creation through subsidy of a relationship in which the government polices the teaching practices of a religious school or university. The plurality suggests that the facts that college students are less impressionable and that college courses are less susceptible to religious permeation may lessen the need for federal policing. But the record shows that such policing has occurred, and occurred in a heavy-handed way. Given the dangers of self-censorship in such a situation, I cannot agree that the dangers of Page 403 U. S. 661 entanglement are insubstantial. Finally, the plurality suggests that the "nonideological" nature of a building, as contrasted with a teacher, reduces the need for policing. But the Federal Government imposes restrictions on every class taught in the federally assisted building. It is therefore not the "nonideological" building that is policed; rather, it is the courses given there, and the teachers who teach them. Thus, the policing is precisely the same as under the state statutes, and that is what offends the Constitution. V I therefore agree that the two state statutes that focus primarily on providing public funds to sectarian schools are unconstitutional. However, the federal statute in No. 153 is a general program of construction grants to all colleges and universities, including sectarian institutions. Since I believe the statute's extension of eligibility to sectarian institutions is severable for the broad general program authorized, I would hold the Higher Education Facilities Act unconstitutional only insofar as it authorized grants of federal tax monies to sectarian institutions -- institutions that have a purpose or function to propagate or advance a particular religion. Therefore, if the District Court determines that any of the four institutional appellees here are "sectarian," that court, in my view, should enjoin the other appellees from making grants to it. * This opinion also applies to No. 153, Tilton et al. v. Richardson, Secretary of Health, Education, and Welfare, et al., post, p. 403 U. S. 672 . [ Footnote 3/1 ] At the time of trial, 95% of the elementary school children in private schools in Rhode Island attended Roman Catholic schools. Only nonpublic school teachers could receive the subsidy, and then only if they taught in schools in which the average per-pupil expenditure on secular education did not equal or exceed the average for the State's public schools. Some 250 of the 342 lay teachers employed in Rhode Island Roman Catholic schools had applied for and been declared eligible for the subsidy. To receive it, the teacher must (1) have a state teaching certificate; (2) teach exclusively secular subjects taught in the State's public schools; (3) use only teaching materials approved for use in the public schools; (4) not teach religion; and (5) promise in writing not to teach a course in religion while receiving the salary supplement. Unlike the Rhode Island case, the Pennsylvania case lacks a factual record, since the complaint was dismissed on motion. We must therefore decide the constitutional challenge as addressed to the face of the Pennsylvania statute. Appellants allege that the nonpublic schools are segregated in Pennsylvania by race and religion, and that the Act perpetrates and promotes the segregation of races "with the ultimate result of promoting two school systems in Pennsylvania -- a public school system predominantly black, poor and inferior and a private, subsidized school system predominantly white, affluent and superior." Brief for Appellants Lemon et al. 9. The District Court held that appellants lacked standing to assert this equal protection claim. In my view, this was plain error. [ Footnote 3/2 ] E. Cubberley, Public Education in the United States 17 (1919); Abington School District v. Schempp, 374 U. S. 203 , 374 U. S. 238 n. 7 and authorities cited therein (BRENNAN, J., concurring). [ Footnote 3/3 ] C. Antieau, A. Downey, E. Roberts, Freedom from Federal Establishment 174 (1964). [ Footnote 3/4 ] B. Confrey, Secularism in American Education: Its History 127-129 (1931). [ Footnote 3/5 ] See generally R. Butts, The American Tradition in Religion and Education 111-145 (1950); 2 A. Stokes, Church and State in the United States 47-72 (1950); Cubberley, supra, 403 U.S. 602 fn3/2|>n. 2, at 155-181. [ Footnote 3/6 ] See Ala.Const., Art. XIV, § 263; Alaska Const., Art. VII, § 1; Ariz.Const., Art. II, § 12, Art. XI, §§ 7, 8; Ark.Const., Art. XIV, § 2; Calif.Const., Art. IX, § 8; Colo.Const., Art. IX, § 7; Conn.Const., Art. VIII, § 4; Del.Const., Art. X, § 3; Fla.Const., Decl. of Rights, Art. I, § 3; Ga.Const., Art. VIII, § 12, par. 1; Hawaii Const., Art. IX, § 1; Idaho Const., Art. IX, § 5; Ill.Const., Art. VIII, § 3; Ind.Const., Art. 8, § 3; Kan.Const., Art. 6, § 6(c); Ky.Const., § 189; La.Const., Art. XII, § 13; Mass.Const., Amend. Art. XLVI, § 2; Mich.Const., Art. I, § 4; Minn.Const., Art. VIII, § 2; Miss.Const., Art. 8, § 208; Mo.Const., Art. IX, § 8; Mont.Const., Art. XI, § 8; Neb.Const., Art. VII, § 11; Nev.Const., Art. 11, § 10; N.H.Const., Pt. II, Art. 83; N.J.Const., Art. VIII, § 4, par. 2; N.Mex.Const., Art. XII, § 3; N.Y.Const., Art. XI, § 3; N.Car.Const., Art. IX, §§ 4, 12; N.Dak.Const., Art. VIII, § 152; Ohio Const., Art. VI, § 2; Okla.Const., Art. II, § 5; Ore.Const., Art. VIII, § 2; Penn.Const., Art. 3, § 15; R.I.Const., Art. XII, § 4; S.C.Const., Art. XI, § 9; S. Dak.Const., Art. VIII, § 16; Tenn.Const., Art. XI, § 12; Tex.Const., Art. VII, § 5; Utah Const., Art. X, § 13; Va.Const., Art. IX, § 141; Wash.Const., Art. IX, § 4; W.Va.Const., Art. XII, § 4; Wis.Const., Art. I, § 18, Art. X, § 2; Wyo.Const., Art. 7, § 8. The overwhelming majority of these constitutional provisions either prohibit expenditures of public funds on sectarian schools or prohibit the expenditure of public school funds for any purpose other than support of public schools. For a discussion and categorization of the various constitutional formulations, see Note, Catholic Schools and Public Money, 50 Yale L.J. 917 (1941). Many of the constitutional provisions are collected in B. Confrey, Secularism in American Education: Its History 47-125 (1931). Many state constitutions explicitly apply the prohibition to aid to sectarian colleges and universities. See, e.g., Colo.Const., Art. IX, § 7; Idaho Const., Art. IX, § 5; Ill.Const., Art. VIII, § 3; Kan.Const., Art. 6, § 6(c); Mass.Const., Amend. Art. XLVI, § 2; Mo.Const., Art. IX, § 8; Mont.Const., Art. XI, § 8; Neb.Const., Art. VII, § 11; N.Mex.Const., Art. XII, § 3; S.C.Const., Art. XI, § 9; Utah Const., Art. X, § 13; Wyo.Const., Art. 7, § 8. At least one judicial decision construing the word "schools" held that the word does not include colleges and universities, Opinion of the Justice, 214 Mass. 599, 102 N.E. 464 (1913), but that decision was overruled by constitutional amendment. Mass.Const., Amend. Art. XLVI, § 2. [ Footnote 3/7 ] See, e.g., Wright v. School Dist., 151 Kan. 485, 99 P.2d 737 (1940); Atchison, T. & S. F. R. Co. v. City of Atchison, 47 Kan. 712, 28 P. 1000 (1892); Williams v. Board of Trustees, 173 Ky. 708, 191 S.W. 507 (1917); Opinion of the Justices, 214 Mass. 599, 102 N.E. 464 (1913); Jenkins v. Andover, 103 Mass. 94 (1869); Otken v. Lamkin, 56 Miss. 758 (1879); Harfst v. Hoegen, 349 Mo. 808, 163 S.W.2d 609 (1942); State ex rel. Public School Dist. v. Taylor, 122 Neb. 454, 240 N.W. 573 (1932); State ex rel. Nevada Orphan Asylum v. Hallock, 16 Nev. 373 (1882); Synod of Dakota v. State, 2 S.D. 366, 50 N.W. 632 (1891). [ Footnote 3/8 ] "Already, the Act has restricted the role of teachers. The evidence before us indicates that some otherwise qualified teachers have stopped teaching courses in religion in order to qualify for aid under the Act. One teacher, in fact, testified that he no longer prays with his class, lest he endanger his subsidy." 316 F. Supp. at 121. [ Footnote 3/9 ] The Office of Education stipulated as follows: "The Office of Education is now engaged in making a series of on-site reviews of completed projects to verify that conditions under which Federal assistance was provided are being implemented. During these visits, class schedules and course descriptions contained in the school catalog are analyzed to ascertain that nothing in the nature of sectarian instruction is scheduled in any area constructed with the use of Federal funds. If there is found to be an indication that a portion of academic facilities constructed with Federal assistance is used in any way for sectarian purposes, either the questionable practice must be terminated or the institution must assume full responsibility for the cost of constructing the area involved." App. in No. 153, p. 82 (emphasis added). [ Footnote 3/10 ] The plurality opinion in No. 153 would strike down the 20-year "period of Federal interest," 20 U.S.C. § 754(a), upon the ground that "[t]he restrictive obligations of a recipient institution under § 751(a)(2) cannot, compatibly with the Religion Clauses, expire while the building has substantial value." Post at 403 U. S. 683 . Thus, the surveillance constituting the "too close a proximity" which for me offends the Establishment Clause continues for the life of the building. [ Footnote 3/11 ] The Pennsylvania statute differs from Rhode Island's in providing the subsidy without regard to whether the sectarian school's average per-pupil expenditure on secular education equals or exceeds the average of the State's public schools. Nor is there any limitation of the subsidy to nonpublic schools that are financially embarrassed. Thus, the statute, on its face, permits use of the state subsidy for the purpose of maintaining or attracting an audience for religious education, and also permits sectarian schools not needing the aid to apply it to exceed the quality of secular education provided in public schools. These features of the Pennsylvania scheme seem to me to invalidate it under the Establishment Clause as granting preferences to sectarian schools. [ Footnote 3/12 ] The three dissenters in Allen focused primarily on their disagreement with the Court that the textbooks provided would be secular. See 392 U.S. at 392 U. S. 252 -253 (BLACK, J., dissenting); id. at 392 U. S. 257 (DOUGLAS, J., dissenting); id. at 392 U. S. 270 (Fortas, J., dissenting). [ Footnote 3/13 ] Much of the plurality's argument is directed at establishing that the specific institutional appellees here, as well as most church-related colleges, are not sectarian in that they do not have a purpose or function to advance or propagate a specific religion. Those questions must await hearings and findings by the District Court. MR. JUSTICE WHITE, concurring in the judgments in No. 153 ( post, p. 403 U. S. 672 ) and No. 90 and dissenting in Nos. 560 and 570. It is our good fortune that the States of this country long ago recognized that instruction of the young and old ranks high on the scale of proper governmental functions, Page 403 U. S. 662 and not only undertook secular education as a public responsibility, but also required compulsory attendance at school by their young. Having recognized the value of educated citizens and assumed the task of educating them, the States now before us assert a right to provide for the secular education of children whether they attend public schools or choose to enter private institutions, even when those institutions are church-related. The Federal Government also asserts that it is entitled, where requested, to contribute to the cost of secular education by furnishing buildings and facilities to all institutions of higher learning, public and private alike. Both the United States and the States urge that, if parents choose to have their children receive instruction in the required secular subjects in a school where religion is also taught and a religious atmosphere may prevail, part or all of the cost of such secular instruction may be paid for by governmental grants to the religious institution conducting the school and seeking the grant. Those who challenge this position would bar official contributions to secular education where the family prefers the parochial to both the public and nonsectarian private school. The issue is fairly joined. It is precisely the kind of issue the Constitution contemplates this Court must ultimately decide. This is true although neither affirmance nor reversal of any of these cases follows automatically from the spare language of the First Amendment, from its history, or from the cases of this Court construing it, and even though reasonable men can very easily and sensibly differ over the import of that language. But, while the decision of the Court is legitimate, it is surely quite wrong in overturning the Pennsylvania and Rhode Island statutes on the ground that they amount to an establishment of religion forbidden by the First Amendment. Page 403 U. S. 663 No one in these cases questions the constitutional right of parents to satisfy their state-imposed obligation to educate their children by sending them to private schools, sectarian or otherwise, as long as those schools meet minimum standards established for secular instruction. The States are not only permitted, but required by the Constitution, to free students attending private schools from any public school attendance obligation. Pierce v. Society of Sisters, 268 U. S. 510 (1925). The States may also furnish transportation for students, Everson v. Board of Education, 330 U. S. 1 (1947), and books for teaching secular subjects to students attending parochial and other private as well as public schools, Board of Education v. Allen, 392 U. S. 236 (1968); we have also upheld arrangements whereby students are released from public school classes so that they may attend religious instruction. Zorach v. Clauson, 343 U. S. 306 (1952). Outside the field of education, we have upheld Sunday closing laws, McGowan v. Maryland, 366 U. S. 420 (1961), state and federal laws exempting church property and church activity from taxation, Walz v. Tax Commission, 397 U. S. 664 (1970), and governmental grants to religious organizations for the purpose of financing improvements in the facilities of hospitals managed and controlled by religious orders. Bradfield v. Roberts, 175 U. S. 291 (1899). Our prior cases have recognized the dual role of parochial schools in American society: they perform both religious and secular functions. See Board of Education v. Allen, supra, at 392 U. S. 248 . Our cases also recognize that legislation having a secular purpose and extending governmental assistance to sectarian schools in the performance of their secular functions does not constitute "law[s] respecting an establishment of religion" forbidden by the First Amendment merely because a secular program may incidentally benefit a church in fulfilling its religious mission. Page 403 U. S. 664 That religion may indirectly benefit from governmental aid to the secular activities of churches does not convert that aid into an impermissible establishment of religion. This much the Court squarely holds in the Tilton case, where it also expressly rejects the notion that payments made directly to a religious institution are, without more, forbidden by the First Amendment. In Tilton, the Court decides that the Federal Government may finance the separate function of secular education carried on in a parochial setting. It reaches this result although sectarian institutions undeniably will obtain substantial benefit from federal aid; without federal funding to provide adequate facilities for secular education, the student bodies of those institutions might remain stationary, or even decrease in size, and the institutions might ultimately have to close their doors. It is enough for me that the States and the Federal Government are financing a separable secular function of overriding importance in order to sustain the legislation here challenged. That religion and private interests other than education may substantially benefit does not convert these laws into impermissible establishments of religion. It is unnecessary, therefore, to urge that the Free Exercise Clause of the First Amendment at least permits government, in some respects, to modify and mold its secular programs out of express concern for free-exercise values. See Walz v. Tax Commission, supra, at 397 U. S. 673 (tax exemption for religious properties; "[t]he limits of permissible state accommodation to religion are by no means coextensive with the noninterference mandated by the Free Exercise Clause. To equate the two would be to deny a national heritage with roots in the Revolution itself"); Sherbert v. Verner, 374 U. S. 398 (1963) (exemption of Seventh Day Adventist from eligibility requirements for Page 403 U. S. 665 unemployment insurance not only permitted, but required, by the Free Exercise Clause); Zorach v. Clauson, supra, at 343 U. S. 313 -314 (students excused from regular public school routine to obtain religious instruction; "[w]hen the state encourages religious instruction . . . , it follows the best of our traditions. For it then respects the religious nature of our people, and accommodates the public service to their spiritual needs"). See also Abington School District v. Schempp, 374 U. S. 203 , 374 U. S. 308 (1963) (STEWART, J., dissenting); Welsh v. United States, 398 U. S. 333 , 398 U. S. 367 (1970) (WHITE, J., dissenting). The Establishment Clause, however, coexists in the First Amendment with the Free Exercise Clause, and the latter is surely relevant in cases such as these. Where a state program seeks to ensure the proper education of its young, in private as well as public schools, free exercise considerations at least counsel against refusing support for students attending parochial schools simply because, in that setting, they are also being instructed in the tenets of the faith they are constitutionally free to practice. I would sustain both the federal and the Rhode Island programs at issue in these cases, and I therefore concur in the judgment in No. 153 [ Footnote 4/1 ] and dissent from the judgments in Nos. 569 and 570. Although I would also reject the facial challenge to the Pennsylvania statute, I concur in the judgment in No. 89 for the reasons given below. The Court strikes down the Rhode Island statute on its face. No fault is found with the secular purpose of the program; there is no suggestion that the purpose of the program was aid to religion disguised in secular attire. Nor does the Court find that the primary effect of the program is to aid religion, rather than to implement secular goals. The Court nevertheless finds Page 403 U. S. 666 that impermissible "entanglement" will result from administration of the program. The reasoning is a curious and mystifying blend, but a critical factor appears to be an unwillingness to accept the District Court's express findings that, on the evidence before it, none of the teachers here involved mixed religious and secular instruction. Rather, the District Court struck down the Rhode Island statute because it concluded that activities outside the secular classroom would probably have a religious content. and that support for religious education therefore necessarily resulted from the financial aid to the secular programs, since that aid generally strengthened the parochial schools and increased the number of their students. In view of the decision in Tilton, however, where these same factors were found insufficient to invalidate the federal plan, the Court is forced to other considerations. Accepting the District Court's observation in DiCenso that education is an integral part of the religious mission of the Catholic church -- an observation that should neither surprise nor alarm anyone, especially judges who have already approved substantial aid to parochial schools in various forms -- the majority then interposes findings and conclusions that the District Court expressly abjured, namely, that nuns, clerics, and dedicated Catholic laymen unavoidably pose a grave risk in that they might not be able to put aside their religion in the secular classroom. Although stopping short of considering them untrustworthy, the Court concludes that, for them, the difficulties of avoiding teaching religion along with secular subjects would pose intolerable risks, and would, in any event, entail an unacceptable enforcement regime. Thus, the potential for impermissible fostering of religion in secular classrooms -- an untested assumption of the Court -- paradoxically renders unacceptable the State's efforts at insuring that secular teachers under religious discipline successfully avoid conflicts between the religious mission Page 403 U. S. 667 of the school and the secular purpose of the State's education program. The difficulty with this is twofold. In the first place, it is contrary to the evidence and the District Court's findings in DiCenso. The Court points to nothing in this record indicating that any participating teacher had inserted religion into his secular teaching, or had had any difficulty in avoiding doing so. The testimony of the teachers was quite the contrary. The District Court expressly found that "[t]his concern for religious values does not necessarily affect the content of secular subjects in diocesan schools. On the contrary, several teachers testified at trial that they did not inject religion into their secular classes, and one teacher deposed that he taught exactly as he had while employed in a public school. This testimony gains added credibility from the fact that several of the teachers were non-Catholics. Moreover, because of the restrictions of Rhode Island's textbook loan law . . . and the explicit requirement of the Salary Supplement Act, teaching materials used by applicants for aid must be approved for use in the public schools." DiCenso v. Robinson, 316 F. Supp. 112 , 117 (RI 1970). Elsewhere, the District Court reiterated that the defect of the Rhode Island statute was "not that religious doctrine overtly intrudes into all instruction," ibid., but factors aside from secular courses, plus the fact that good secular teaching was itself essential for implementing the religious mission of the parochial school. Secondly, the Court accepts the model for the Catholic elementary and secondary schools that was rejected for the Catholic universities or colleges in the Tilton case. There, it was urged that the Catholic condition of higher learning was an integral part of the religious mission of the church, and that these institutions did everything they could to foster the faith. The Court's response was that, on the record before it, none of Page 403 U. S. 668 the involved institutions was shown to have complied with the model, and that it would not purport to pass on cases not before it. Here, however, the Court strikes down this Rhode Island statute based primarily on its own model and its own suppositions and unsupported views of what is likely to happen in Rhode Island parochial school classrooms, although, on this record, there is no indication that entanglement difficulties will accompany the salary supplement program. The Court thus creates an insoluble paradox for the State and the parochial schools. The State cannot finance secular instruction if it permits religion to be taught in the same classroom; but if it exacts a promise that religion not be so taught -- a promise the school and its teachers are quite willing and, on this record, able, to give -- and enforces it, it is then entangled in the "no entanglement" aspect of the Court's Establishment Clause jurisprudence. Why the federal program in the Tilton case is not embroiled in the same difficulties is never adequately explained. Surely the notion that college students are more mature and resistant to indoctrination is a makeweight, for, in Tilton, there is careful note of the federal condition on funding and the enforcement mechanism available. If religious teaching in federally financed buildings was permitted, the powers of resistance of college students would in no way save the federal scheme. Nor can I imagine the basis for finding college clerics more reliable in keeping promises than their counterparts in elementary and secondary schools -- particularly those in the Rhode Island case, since, within five years, the majority of teachers in Rhode Island parochial schools will be lay persons, many of them non-Catholic. Both the District Court and this Court in DiCenso have seized on the Rhode Island formula for supplementing Page 403 U. S. 669 teachers' salaries since it requires the State to verify the amount of school money spent for secular, as distinguished from religious, purposes. Only teachers in those schools having per-pupil expenditures for secular subjects below the state average qualify under the system, an aspect of the state scheme which is said to provoke serious "entanglement." But this is also a slender reed on which to strike down this law, for, as the District Court found, only once since the inception of the program has it been necessary to segregate expenditures in this manner. The District Court also focused on the recurring nature of payments by the State of Rhode Island; salaries must be supplemented and money appropriated every year, and hence the opportunity for controversy and friction over state aid to religious schools will constantly remain before the State. The Court, in DiCenso, adopts this theme, and makes much of the fact that, under the federal scheme, the grant to a religious institution is a one-time matter. But this argument is without real force. It is apparent that federal interest in any grant will be a continuing one, since the conditions attached to the grant must be enforced. More important, the federal grant program is an ongoing one. The same grant will not be repeated, but new ones to the same or different schools will be made year after year. Thus, the same potential for recurring political controversy accompanies the federal program. Rhode Island may have the problem of appropriating money each year to supplement the salaries of teachers, but the United States must each year seek financing for the new grants it desires to make and must supervise the ones already on the record. With respect to Pennsylvania, the Court, accepting as true the factual allegations of the complaint, as it must for purposes of a motion to dismiss, would reverse the dismissal of the complaint and invalidate the legislation. Page 403 U. S. 670 The critical allegations, as paraphrased by the Court, are that "the church-related elementary and secondary schools are controlled by religious organizations, have the purpose of propagating and promoting a particular religious faith, and conduct their operations to fulfill that purpose." Ante at 403 U. S. 620 . From these allegations, the Court concludes that forbidden entanglements would follow from enforcing compliance with the secular purpose for which the state money is being paid. I disagree. There is no specific allegation in the complaint that sectarian teaching does or would invade secular classes supported by state funds. That the schools are operated to promote a particular religion is quite consistent with the view that secular teaching devoid of religious instruction can successfully be maintained, for good secular instruction is, as Judge Coffin wrote for the District Court in the Rhode Island case, essential to the success of the religious mission of the parochial school. I would no more here than in the Rhode Island case substitute presumption for proof that religion is or would be taught in state-financed secular courses or assume that enforcement measures would be so extensive as to border on a free exercise violation. We should not forget that the Pennsylvania statute does not compel church schools to accept state funds. I cannot hold that the First Amendment forbids an agreement between the school and the State that the state funds would be used only to teach secular subjects. I do agree, however, that the complaint should not have been dismissed for failure to state a cause of action. Although it did not specifically allege that the schools involved mixed religious teaching with secular subjects, the complaint did allege that the schools were operated to fulfill religious purposes. and one of the legal theories stated in the complaint was that the Pennsylvania Act "finances and participates in the blending of sectarian Page 403 U. S. 671 and secular instruction." At trial under this complaint, evidence showing such a blend in a course supported by state funds would appear to be admissible and, if credited, would establish financing of religious instruction by the State. Hence, I would reverse the judgment of the District Court and remand the case for trial, thereby holding the Pennsylvania legislation valid on its face but leaving open the question of its validity as applied to the particular facts of this case. I find it very difficult to follow the distinction between the federal and state programs in terms of their First Amendment acceptability. My difficulty is not surprising, since there is frank acknowledgment that "we can only dimly perceive the boundaries of permissible government activity in this sensitive area of constitutional adjudication," Tilton v. Richardson, post at 403 U. S. 678 , and that "[j]udicial caveats against entanglement" are a "blurred, indistinct and variable barrier." Ante at 403 U. S. 614 . I find it even more difficult, with these acknowledgments in mind, to understand how the Court can accept the considered judgment of Congress that its program is constitutional, and yet reject the equally considered decisions of the Rhode Island and Pennsylvania legislatures that their programs represent a constitutionally acceptable accommodation between church and state. [ Footnote 4/2 ] [ Footnote 4/1 ] I accept the Court's invalidation of the provision in the federal legislation whereby the restriction on the use of buildings constructed with federal funds terminates after 20 years. [ Footnote 4/2 ] As a postscript, I should note that both the federal and state cases are decided on specified Establishment Clause considerations, without reaching the questions that would be presented if the evidence in any of these cases showed that any of the involved schools restricted entry on racial or religious grounds or required all students gaining admission to receive instruction in the tenets of a particular faith. For myself, if such proof were made, the legislation would, to that extent, be unconstitutional.

The Supreme Court ruled that both the Rhode Island Salary Supplement Act and Pennsylvania's Nonpublic Elementary and Secondary Education Act violated the Establishment Clause of the First Amendment due to excessive entanglement between government and religion. The court found that the religious nature of the church-affiliated schools and the potential for religious influence on teachers created an unconstitutional relationship between church and state.

Religion

Marsh v. Chambers

https://supreme.justia.com/cases/federal/us/463/783/

U.S. Supreme Court Marsh v. Chambers, 463 U.S. 783 (1983) Marsh v. Chambers No. 82-23 Argued April 20, 1983 Decided July 5, 1983 463 U.S. 783 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT Syllabus The Nebraska Legislature begins each of its sessions with a prayer by a chaplain paid by the State with the legislature's approval. Respondent member of the Nebraska Legislature brought an action in Federal District Court, claiming that the legislature's chaplaincy practice violates the Establishment Clause of the First Amendment, and seeking injunctive relief. The District Court held that the Establishment Clause was not breached by the prayer, but was violated by paying the chaplain from public funds, and accordingly enjoined the use of such funds to pay the chaplain. The Court of Appeals held that the whole chaplaincy practice violated the Establishment Clause, and accordingly prohibited the State from engaging in any aspect of the practice. Held: The Nebraska Legislature's chaplaincy practice does not violate the Establishment Clause. Pp. 463 U. S. 786 -795. (a) The practice of opening sessions of Congress with prayer has continued without interruption for almost 200 years, ever since the First Congress drafted the First Amendment, and a similar practice has been followed for more than a century in Nebraska and many other states. While historical patterns, standing alone, cannot justify contemporary violations of constitutional guarantees, historical evidence in the context of this case sheds light not only on what the drafters of the First Amendment intended the Establishment Clause to mean, but also on how they thought that Clause applied to the chaplaincy practice authorized by the First Congress. In applying the First Amendment to the states through the Fourteenth Amendment, it would be incongruous to interpret the Clause as imposing more stringent First Amendment limits on the states than the draftsmen imposed on the Federal Government. In light of the history, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke divine guidance on a public body entrusted with making the laws is not, in these circumstances, a violation of the Establishment Clause; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country. Pp. 463 U. S. 786 -792. (b) Weighed against the historical background, the facts that a clergyman of only one denomination has been selected by the Nebraska Legislature Page 463 U. S. 784 for 16 years, that the chaplain is paid at public expense, and that the prayers are in the Judeo-Christian tradition do not serve to invalidate Nebraska's practice. Pp. 463 U. S. 792 -795. 675 F.2d 228, reversed. BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 463 U. S. 795 . STEVENS, J., filed a dissenting opinion, post, p. 463 U. S. 822 . CHIEF JUSTICE BURGER delivered the opinion of the Court. The question presented is whether the Nebraska Legislature's practice of opening each legislative day with a prayer by a chaplain paid by the State violates the Establishment Clause of the First Amendment. I The Nebraska Legislature begins each of its sessions with a prayer offered by a chaplain who is chosen biennially by the Executive Board of the Legislative Council and paid out of Page 463 U. S. 785 public funds. [ Footnote 1 ] Robert E. Palmer, a Presbyterian minister, has served as chaplain since 1965 at a salary of $319.75 per month for each month the legislature is in session. Ernest Chambers is a member of the Nebraska Legislature and a taxpayer of Nebraska. Claiming that the Nebraska Legislature's chaplaincy practice violates the Establishment Clause of the First Amendment, he brought this action under 42 U.S.C. § 1983, seeking to enjoin enforcement of the practice. [ Footnote 2 ] After denying a motion to dismiss on the ground of legislative immunity, the District Court held that the Establishment Clause was not breached by the prayers, but was violated by paying the chaplain from public funds. 504 F. Supp. 585 (Neb.1980). It therefore enjoined the legislature from using public funds to pay the chaplain; it declined to enjoin the policy of beginning sessions with prayers. Cross-appeals were taken. [ Footnote 3 ] The Court of Appeals for the Eighth Circuit rejected arguments that the case should be dismissed on Tenth Amendment, legislative immunity, standing, or federalism grounds. On the merits of the chaplaincy issue, the court refused to treat respondent's challenges as separable issues, as the District Court had done. Instead, the Court of Appeals assessed the practice as a whole because "[p]arsing out [the] Page 463 U. S. 786 elements" would lead to "an incongruous result." 675 F.2d 228, 233 (1982). Applying the three-part test of Lemon v. Kurtzman, 403 U. S. 602 , 403 U. S. 612 -613 (1971), as set out in Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756 , 413 U. S. 773 (1973), the court held that the chaplaincy practice violated all three elements of the test: the purpose and primary effect of selecting the same minister for 16 years and publishing his prayers was to promote a particular religious expression; use of state money for compensation and publication led to entanglement. 675 F.2d at 234-235. Accordingly, the Court of Appeals modified the District Court's injunction and prohibited the State from engaging in any aspect of its established chaplaincy practice. We granted certiorari limited to the challenge to the practice of opening sessions with prayers by a state-employed clergyman, 459 U.S. 966 (1982), and we reverse. [ Footnote 4 ] II The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country. From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom. In the very courtrooms in which the United States District Judge and later three Circuit Judges heard and decided this case, the proceedings opened with an announcement that concluded, "God save the United States and this Honorable Court." The same invocation occurs at all sessions of this Court. Page 463 U. S. 787 The tradition in many of the Colonies was, of course, linked to an established church, [ Footnote 5 ] but the Continental Congress, beginning in 1774, adopted the traditional procedure of opening its sessions with a prayer offered by a paid chaplain. See, e.g., 1 J.Continental Cong. 26 (1774); 2 id. at 12 (1775); 5 id. at 530 (1776); 6 id. at 887 (1776); 27 id. at 683 (1784). See also 1 A. Stokes, Church and State in the United States 448-450 (1950). Although prayers were not offered during the Constitutional Convention, [ Footnote 6 ] the First Congress, as one of Page 463 U. S. 788 its early items of business, adopted the policy of selecting a chaplain to open each session with prayer. Thus, on April 7, 1789, the Senate appointed a committee "to take under consideration the manner of electing Chaplains." S.Jour., 1st Cong., 1st Sess., 10 (1820 ed.). On April 9, 1789, a similar committee was appointed by the House of Representatives. On April 25, 1789, the Senate elected its first chaplain, id. at 16; the House followed suit on May 1, 1789, H.R.Jour., 1st Cong., 1st Sess., 26 (1826 ed.). A statute providing for the payment of these chaplains was enacted into law on September 22, 1789. [ Footnote 7 ] 2 Annals of Cong. 2180; § 4, 1 Stat. 71. [ Footnote 8 ] On September 25, 1789, three days after Congress authorized the appointment of paid chaplains, final agreement was reached on the language of the Bill of Rights, S.Jour., supra, at 88; H.R.Jour., supra, at 121. [ Footnote 9 ] Clearly the men who wrote the First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress. [ Footnote 10 ] It has also been followed consistently Page 463 U. S. 789 in most of the states, [ Footnote 11 ] including Nebraska, where the institution of opening legislative sessions with prayer was adopted even before the State attained statehood. Neb. Page 463 U. S. 790 Jour. of Council, General Assembly, 1st Sess., 16 (Jan. 22, 1855). Standing alone, historical patterns cannot justify contemporary violations of constitutional guarantees, but there is far more here than simply historical patterns. In this context, historical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied to the practice authorized by the First Congress -- their actions reveal their intent. An Act "passed by the first Congress assembled under the Constitution, many of whose members had taken part in framing that instrument, . . . is contemporaneous and weighty evidence of its true meaning." Wisconsin v. Pelican Ins. Co., 127 U. S. 265 , 127 U. S. 297 (1888). In Walz v. Tax Comm'n, 397 U. S. 664 , 397 U. S. 678 (1970), we considered the weight to be accorded to history: "It is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence, and indeed predates it. Yet an unbroken practice . . . is not something to be lightly cast aside." No more is Nebraska's practice of over a century, consistent with two centuries of national practice, to be cast aside. It can hardly be thought that, in the same week, Members of the First Congress voted to appoint and to pay a chaplain for each House and also voted to approve the draft of the First Amendment for submission to the states, they intended the Establishment Clause of the Amendment to forbid what they had just declared acceptable. In applying the First Amendment to the states through the Fourteenth Amendment, Cantwell v. Connecticut, 310 U. S. 296 (1940), it would be incongruous to interpret that Clause as imposing more stringent Page 463 U. S. 791 First Amendment limits on the states than the draftsmen imposed on the Federal Government. This unique history leads us to accept the interpretation of the First Amendment draftsmen who saw no real threat to the Establishment Clause arising from a practice of prayer similar to that now challenged. We conclude that legislative prayer presents no more potential for establishment than the provision of school transportation, Everson v. Board of Education, 330 U. S. 1 (1947), beneficial grants for higher education, Tilton v. Richardson, 403 U. S. 672 (1971), or tax exemptions for religious organizations, Walz, supra. Respondent cites JUSTICE BRENNAN's concurring opinion in Abington School Dist. v. Schempp, 374 U. S. 203 , 374 U. S. 237 (1963), and argues that we should not rely too heavily on "the advice of the Founding Fathers," because the messages of history often tend to be ambiguous, and not relevant to a society far more heterogeneous than that of the Framers, id. at 374 U. S. 240 . Respondent also points out that John Jay and John Rutledge opposed the motion to begin the first session of the Continental Congress with prayer. Brief for Respondent 60. [ Footnote 12 ] We do not agree that evidence of opposition to a measure weakens the force of the historical argument; indeed it infuses it with power by demonstrating that the subject was considered carefully and the action not taken thoughtlessly, by force of long tradition and without regard to the problems posed by a pluralistic society. Jay and Rutledge specifically grounded their objection on the fact that the delegates to the Congress "were so divided in religious sentiments . . . that [they] could not join in the same act of worship." Their objection Page 463 U. S. 792 was met by Samuel Adams, who stated that "he was no bigot, and could hear a prayer from a gentleman of piety and virtue, who was at the same time a friend to his country." C. Adams, Familiar Letters of John Adams and his Wife, Abigail Adams, during the Revolution 37-38, reprinted in Stokes, at 449. This interchange emphasizes that the delegates did not consider opening prayers as a proselytizing activity or as symbolically placing the government's "official seal of approval on one religious view," cf. 675 F.2d at 234. Rather, the Founding Fathers looked at invocations as "conduct whose . . . effect . . . harmonize[d] with the tenets of some or all religions." McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 442 (1961). The Establishment Clause does not always bar a state from regulating conduct simply because it "harmonizes with religious canons." Id. at 366 U. S. 462 (Frankfurter, J., concurring). Here, the individual claiming injury by the practice is an adult, presumably not readily susceptible to "religious indoctrination," see Tilton, supra, at 403 U. S. 686 ; Colo v. Treasurer & Receiver General, 378 Mass. 550, 559, 392 N.E.2d 1195 , 1200 (1979), or peer pressure, compare Abington, supra, at 374 U. S. 290 (BRENNAN, J., concurring). In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an "establishment" of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country. As Justice Douglas observed, "[w]e are a religious people whose institutions presuppose a Supreme Being." Zorach v. Clauson, 343 U. S. 306 , 343 U. S. 313 (1952). III We turn then to the question of whether any features of the Nebraska practice violate the Establishment Clause. Page 463 U. S. 793 Beyond the bare fact that a prayer is offered, three points have been made: first, that a clergyman of only one denomination -- Presbyterian -- has been selected for 16 years; [ Footnote 13 ] second, that the chaplain is paid at public expense; and third, that the prayers are in the Judeo-Christian tradition. [ Footnote 14 ] Weighed against the historical background, these factors do not serve to invalidate Nebraska's practice. [ Footnote 15 ] The Court of Appeals was concerned that Palmer's long tenure has the effect of giving preference to his religious views. We cannot, any more than Members of the Congresses of this century, perceive any suggestion that choosing a clergyman of one denomination advances the beliefs of a particular church. To the contrary, the evidence indicates that Palmer was reappointed because his performance and personal qualities were acceptable to the body appointing him. [ Footnote 16 ] Palmer was not the only clergyman heard by the legislature; guest chaplains have officiated at the request of various legislators and as substitutes during Palmer's absences. Tr. of Oral Arg. 10. Absent proof that the chaplain's reappointment stemmed from an impermissible motive, we conclude Page 463 U. S. 794 that his long tenure does not in itself conflict with the Establishment Clause. [ Footnote 17 ] Nor is the compensation of the chaplain from public funds a reason to invalidate the Nebraska Legislature's chaplaincy; remuneration is grounded in historic practice initiated, as we noted earlier, supra at 463 U. S. 788 , by the same Congress that drafted the Establishment Clause of the First Amendment. The Continental Congress paid its chaplain, see, e.g., 6 J.Continental Cong. 887 (1776), as did some of the states, see, e.g., Debates of the Convention of Virginia 470 (June 26, 1788). Currently, many state legislatures and the United States Congress provide compensation for their chaplains, Brief for National Conference of State Legislatures as Amicus Curiae 3; 2 U.S.C. §§ 61d and 84-2 (1982 ed.); H.R. Res. 7, 96th Cong., 1st Sess. (1979). [ Footnote 18 ] Nebraska has paid its chaplain for well over a century, see 1867 Neb. Laws 85, §§ 2-4 (June 21, 1867), reprinted in Neb. Gen.Stat. 459 (1873). The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, Page 463 U. S. 795 or to disparage any other, faith or belief. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer. We do not doubt the sincerity of those, who like respondent, believe that to have prayer in this context risks the beginning of the establishment the Founding Fathers feared. But this concern is not well-founded, for as Justice Goldberg aptly observed in his concurring opinion in Abington, 374 U.S. at 374 U. S. 308 : "It is, of course, true that great consequences can grow from small beginnings, but the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow." The unbroken practice for two centuries in the National Congress and for more than a century in Nebraska and in many other states gives abundant assurance that there is no real threat "while this Court sits," Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U. S. 218 , 277 U. S. 223 (1928) (Holmes, J., dissenting). The judgment of the Court of Appeals is Reversed. [ Footnote 1 ] Rules of the Nebraska Unicameral, Rules 1, 2, and 21. These prayers are recorded in the Legislative Journal and, upon the vote of the legislature, collected from time to time into prayerbooks, which are published at public expense. In 1975, 200 copies were printed; prayerbooks were also published in 1978 (200 copies), and 1979 (100 copies). In total, publication costs amounted to $458.56. [ Footnote 2 ] Respondent named as defendants State Treasurer Frank Marsh, Chaplain Palmer, and the members of the Executive Board of the Legislative Council in their official capacity. All appear as petitioners before us. [ Footnote 3 ] The District Court also enjoined the State from using public funds to publish the prayers, holding that this practice violated the Establishment Clause. Petitioners have represented to us that they did not challenge this facet of the District Court's decision, Tr. of Oral Arg.19-20. Accordingly, no issue as to publishing these prayers is before us. [ Footnote 4 ] Petitioners also sought review of their Tenth Amendment, federalism, and immunity claims. They did not, however, challenge the Court of Appeals' decision as to standing, and we agree that Chambers, as a member of the legislature and as a taxpayer whose taxes are used to fund the chaplaincy, has standing to assert this claim. [ Footnote 5 ] The practice in Colonies with established churches is, of course, not dispositive of the legislative prayer question. The history of Virginia is instructive, however, because that Colony took the lead in defining religious rights. In 1776, the Virginia Convention adopted a Declaration of Rights that included, as Article 16, a guarantee of religious liberty that is considered the precursor of both the Free Exercise and Establishment Clauses. 1 B. Schwartz, The Bill of Rights: A Documentary History 231-236 (1971); S. Cobb, The Rise of Religious Liberty in America 491-492 (1970). Virginia was also among the first to disestablish its church. Both before and after disestablishment, however, Virginia followed the practice of opening legislative sessions with prayer. See, e.g., J. House of Burgesses 34 (Nov. 20, 1712); Debates of the Convention of Virginia 470 (June 2, 1788) (ratification convention); J. House of Delegates of Va. 3 (June 24, 1788) (state legislature). Rhode Island's experience mirrored that of Virginia. That Colony was founded by Roger Williams, who was among the first of his era to espouse the principle of religious freedom. Cobb, supra at 426. As early as 1641, its legislature provided for liberty of conscience. Id. at 430. Yet the sessions of its ratification convention, like Virginia's, began with prayers, see W. Staples, Rhode Island in the Continental Congress, 1765-1790, p. 668 (1870) (reprinting May 26, 1790, minutes of the convention). [ Footnote 6 ] History suggests that this may simply have been an oversight. At one point, Benjamin Franklin suggested that "henceforth prayers imploring the assistance of Heaven, and its blessings on our deliberations, be held in this Assembly every morning before we proceed to business." 1 M. Farrand, Records of the Federal Convention of 1787, p. 452 (1911). His proposal was rejected not because the Convention was opposed to prayer, but because it was thought that a midstream adoption of the policy would highlight prior omissions, and because "[t]he Convention had no funds." Ibid.; see also Stokes at 455-456. [ Footnote 7 ] The statute provided: "[T]here shall be allowed to each chaplain of Congress . . . five hundred dollars per annum during the session of Congress. This salary compares favorably with the Congressmen's own salaries of $6 for each day of attendance, 1 Stat. 70-71." [ Footnote 8 ] It bears note that James Madison, one of the principal advocates of religious freedom in the Colonies and a drafter of the Establishment Clause, see, e.g., Cobb, supra, n. 5, at 495-497; Stokes, at 537-552, was one of those appointed to undertake this task by the House of Representatives, H.R. Jour., at 11-12; Stokes, at 541-549, and voted for the bill authorizing payment of the chaplains, 1 Annals of Cong. 891(1789). [ Footnote 9 ] Interestingly, September 25, 1789, was also the day that the House resolved to request the President to set aside a Thanksgiving Day to acknowledge "the many signal favors of Almighty God," H.R.Jour. at 123. See also S.Jour. at 88. [ Footnote 10 ] The chaplaincy was challenged in the 1850's by "sundry petitions praying Congress to abolish the office of chaplain," S.Rep. No. 376, 32d Cong., 2d Sess., 1 (1853). After consideration by the Senate Committee on the Judiciary, the Senate decided that the practice did not violate the Establishment Clause, reasoning that a rule permitting Congress to elect chaplains is not a law establishing a national church, and that the chaplaincy was no different from Sunday Closing Laws, which the Senate thought clearly constitutional. In addition, the Senate reasoned that, since prayer was said by the very Congress that adopted the Bill of Rights, the Founding Fathers could not have intended the First Amendment to forbid legislative prayer or viewed prayer as a step toward an established church. Id. at 2-4. In any event, the 35th Congress abandoned the practice of electing chaplains in favor of inviting local clergy to officiate, see Cong.Globe, 35th Cong., 1st Sess., 14, 27-28 (1857). Elected chaplains were reinstituted by the 36th Congress, Cong.Globe, 36th Cong., 1st Sess., 162 (1859); id. at 1016 (1860). [ Footnote 11 ] See Brief for National Conference of State Legislatures as Amicus Curiae. Although most state legislatures begin their sessions with prayer, most do not have a formal rule requiring this procedure. But see, e.g., Alaska Legislature Uniform Rules 11 and 17 (1981) (providing for opening invocation); Ark.Rule of Senate 18 (1983); Colo.Legislator's Handbook, H.R.Rule 44 (1982); Idaho Rules of H.R. and Joint Rules 2 and 4 (1982); Ind.H.R.Rule 10 (1983); Kan.Rule of Senate 4 (1983); Kan.Rule of H.R. 103 (1983); Ky.General Assembly H.Res. 2 (1982); La.Rules of Order, Senate Rule 10.1 (1983); La.Rules of Order, H.R.Rule 8.1 (1982); Me.Senate and House Register, Rule of H.R. 4 (1983); Md.Senate and House of Delegates Rules 1 (1982 and 1983); Mo.Rules of Legislature, Joint Rule 1-1 (1983); N.H.Manual for the General Court of N.H., Rule of H.R. 52(a) (1981); N.D. Senate and H.R.Rules 101 and 301 (1983); Ore.Rule of Senate 4.01 (1983); Ore.Rule of H.R. 4.01 (1983) (opening session only); 104 Pa. Code § 11.11 (1983), 107 Pa.Code § 21.17 (1983); S.D.Official Directory and Rules of Senate and H.R., Joint Rule of the Senate and House 4-1 (1983); Tenn.Permanent Rules of Order of the Senate 1 and 6 (1981-1982) (provides for admission into Senate chamber of the "Chaplain of the Day"); Tex.Rule of H.R. 2, § 6 (1983); Utah Rules of Senate and H.R. 4.04 (1983); Va. Manual of Senate and House of Delegates, Rule of Senate 21(a) (1982) (session opens with "period of devotions"); Wash.Permanent Rule of H.R. 15 (1983); Wyo.Rule of Senate 4-1 (1983); Wyo.Rule of H.R. 2-1 (1983). See also P. Mason, Manual of Legislative Procedure § 586(2) (1979). [ Footnote 12 ] It also could be noted that objections to prayer were raised, apparently successfully, in Pennsylvania while ratification of the Constitution was debated, Penn. Herald, Nov. 24, 1787, and that, in the 1820's, Madison expressed doubts concerning the chaplaincy practice. See L. Pfeffer, Church, State, and Freedom 248-249 (rev. ed.1967), citing Fleet, Madison's "Detached Memoranda," 3 Wm. & Mary Quarterly 534, 558-559 (1946). [ Footnote 13 ] In comparison, the First Congress provided for the appointment of two chaplains of different denominations who would alternate between the two Chambers on a weekly basis, S.Jour., 1st Cong., 1st Sess., 12 (1820 ed.); H.R.Jour., 1st Cong., 1st Sess., 16 (1826 ed.). [ Footnote 14 ] Palmer characterizes his prayers as "nonsectarian," "Judeo Christian," and with "elements of the American civil religion." App. 75 and 87 (deposition of Robert E. Palmer). Although some of his earlier prayers were often explicitly Christian, Palmer removed all references to Christ after a 1980 complaint from a Jewish legislator. Id. at 49. [ Footnote 15 ] It is also claimed that Nebraska's practice of collecting the prayers into books violates the First Amendment. Because the State did not appeal the District Court order enjoining further publications, see n. 3, supra, this issue is not before us, and we express no opinion on it. [ Footnote 16 ] Nebraska's practice is consistent with the manner in which the First Congress viewed its chaplains. Reports contemporaneous with the elections reported only the chaplains' names, and not their religions or church affiliations, see, e.g., 2 Gazette of the U.S. 18 (Apr. 25, 1789); 5 id. at 18 (Apr. 27, 1789) (listing nominees for Chaplain of the House); 6 id. at 23 (May 1, 1789). See also S.Rep. 376, supra, n. 10, at 3. [ Footnote 17 ] We note that Dr. Edward L. R. Elson served as Chaplain of the Senate of the United States from January, 1969, to February, 1981, a period of 12 years; Dr. Frederick Brown Harris served from February, 1949, to January, 1969, a period of 20 years. Senate Library, Chaplains of the Federal Government (rev. ed.1982). [ Footnote 18 ] The states' practices differ widely. Like Nebraska, several states choose a chaplain who serves for the entire legislative session. In other states, the prayer is offered by a different clergyman each day. Under either system, some states pay their chaplains, and others do not. For States providing for compensation statutorily or by resolution, see, e.g., Cal.Gov't Code Ann. §§ 9170, 9171, 9320 (West 1980), and S.Res. No. 6, 1983-1984 Sess.; Colo.H.R.J., 54th Gen. Assembly, 1st Sess., 17-19 (Jan. 5, 1983); Conn.Gen.Stat.Ann. § 2-9 (1983-1984); Ga.H.R. Res. No. 3, § 1(e) (1983); Ga.S.Res. No. 3, § 1(c) (1983); Iowa Code § 2.11 (1983); Mo.Rev.Stat. § 21.150 (1978); Nev.Rev.Stat. § 218.200 (1981); N.J.Stat.Ann. § 52 2 (West 1970); N.M. Const., Art. IV, § 9; Okla.Stat.Ann., Tit. 74, §§ 291.12 and 292.1 (West Supp.1982-1983); Vt.Stat.Ann., Tit. 2, § 19 (Supp.1982); Wis.Stat.Ann. § 13.125 (West Supp.1982). JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting. The Court today has written a narrow and, on the whole, careful opinion. In effect, the Court holds that officially sponsored legislative prayer, primarily on account of its "unique history," ante at 463 U. S. 791 , is generally exempted from the First Amendment's prohibition against "an establishment of religion." The Court's opinion is consistent with dictum in at least one of our prior decisions, [ Footnote 2/1 ] and its limited rationale should pose little threat to the overall fate of the Establishment Clause. Moreover, disagreement with the Court Page 463 U. S. 796 requires that I confront the fact that, some 20 years ago, in a concurring opinion in one of the cases striking down official prayer and ceremonial Bible reading in the public schools, I came very close to endorsing essentially the result reached by the Court today. [ Footnote 2/2 ] Nevertheless, after much reflection, I have come to the conclusion that I was wrong then, and that the Court is wrong today. I now believe that the practice of official invocational prayer, as it exists in Nebraska and most other state legislatures, is unconstitutional. It is contrary to the doctrine as well the underlying purposes of the Establishment Clause, and it is not saved either by its history or by any of the other considerations suggested in the Court's opinion. I respectfully dissent. I The Court makes no pretense of subjecting Nebraska's practice of legislative prayer to any of the formal "tests" that have traditionally structured our inquiry under the Establishment Clause. That it fails to do so is, in a sense, a good thing, for it simply confirms that the Court is carving out an exception to the Establishment Clause, rather than reshaping Establishment Clause doctrine to accommodate legislative prayer. For my purposes, however, I must begin by demonstrating what should be obvious: that, if the Court were to judge legislative prayer through the unsentimental eye of our settled doctrine, it would have to strike it down as a clear violation of the Establishment Clause. The most commonly cited formulation of prevailing Establishment Clause doctrine is found in Lemon v. Kurtzman, 403 U. S. 602 (1971): Page 463 U. S. 797 "Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute [at issue] must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster 'an excessive government entanglement with religion.'" Id. at 403 U. S. 612 -613 (citations omitted). [ Footnote 2/3 ] That the "purpose" of legislative prayer is preeminently religious, rather than secular, seems to me to be self-evident. [ Footnote 2/4 ] "To invoke Divine guidance on a public body entrusted with making the laws," ante at 463 U. S. 792 , is nothing but a religious act. Moreover, whatever secular functions legislative prayer might play -- formally opening the legislative session, getting the members of the body to quiet down, and imbuing them with a sense of seriousness and high purpose -- could so plainly be performed in a purely nonreligious fashion that to claim a secular purpose for the prayer is an insult to the perfectly Page 463 U. S. 798 honorable individuals who instituted and continue the practice. The "primary effect" of legislative prayer is also clearly religious. As we said in the context of officially sponsored prayers in the public schools, "prescribing a particular form of religious worship," even if the individuals involved have the choice not to participate, places "indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion. . . ." Engel v. Vitale, 370 U. S. 421 , 370 U. S. 431 (1962). [ Footnote 2/5 ] More importantly, invocations in Nebraska's legislative halls explicitly link religious belief and observance to the power and prestige of the State. "[T]he mere appearance of a joint exercise of legislative authority by Church and State provides a significant symbolic benefit to religion in the minds of some by reason of the power conferred." Larkin v. Grendel's Den, Inc., 459 U. S. 116 , 459 U. S. 125 -126 (1982). [ Footnote 2/6 ] See Abington School Dist. v. Schempp, 374 U. S. 203 , 374 U. S. 224 (1963). Finally, there can be no doubt that the practice of legislative prayer leads to excessive "entanglement" between the State and religion. Lemon pointed out that "entanglement" can take two forms: first, a state statute or program might involve the state impermissibly in monitoring and overseeing Page 463 U. S. 799 religious affairs. 403 U.S. at 403 U. S. 614 -622. [ Footnote 2/7 ] In the case of legislative prayer, the process of choosing a "suitable" chaplain, whether on a permanent or rotating basis, and insuring that the chaplain limits himself or herself to "suitable" prayers, involves precisely the sort of supervision that agencies of government should if at all possible avoid. [ Footnote 2/8 ] Second, excessive "entanglement" might arise out of "the divisive political potential" of a state statute or program. 403 U.S. at 403 U. S. 622 . "Ordinarily political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. The potential divisiveness of such conflict is a threat to the normal political process." Ibid. (citations omitted). In this case, this second aspect of entanglement is also clear. The controversy between Senator Chambers and his colleagues, which had reached the stage of difficulty and rancor long before this lawsuit was brought, has split the Nebraska Page 463 U. S. 800 Legislature precisely on issues of religion and religious conformity. App. 21-24. The record in this case also reports a series of instances, involving legislators other than Senator Chambers, in which invocations by Reverend Palmer and others led to controversy along religious lines. [ Footnote 2/9 ] And in general, the history of legislative prayer has been far more eventful -- and divisive -- than a hasty reading of the Court's opinion might indicate. [ Footnote 2/10 ] In sum, I have no doubt that, if any group of law students were asked to apply the principles of Lemon to the question Page 463 U. S. 801 of legislative prayer, they would nearly unanimously find the practice to be unconstitutional. [ Footnote 2/11 ] II The path of formal doctrine, however, can only imperfectly capture the nature and importance of the issues at stake in this case. A more adequate analysis must therefore take Page 463 U. S. 802 into account the underlying function of the Establishment Clause, and the forces that have shaped its doctrine. A Most of the provisions of the Bill of Rights, even if they are not generally enforceable in the absence of state action, nevertheless arise out of moral intuitions applicable to individuals as well as governments. The Establishment Clause, however, is quite different. It is, to its core, nothing less and nothing more than a statement about the proper role of government in the society that we have shaped for ourselves in this land. The Establishment Clause embodies a judgment, born of a long and turbulent history, that, in our society, religion "must be a private matter for the individual, the family, and the institutions of private choice. . . ." Lemon v. Kurtzman, 403 U.S. at 403 U. S. 625 . "Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of no-religion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion." Epperson v. Arkansas, 393 U. S. 97 , 393 U. S. 103 -104 (1968) (footnote omitted). "In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and State.'" Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 16 (1947), quoting Reynolds v. United States, 98 U. S. 145 , 98 U. S. 164 (1879). [ Footnote 2/12 ] Page 463 U. S. 803 The principles of "separation" and "neutrality" implicit in the Establishment Clause serve many purposes. Four of these are particularly relevant here. The first, which is most closely related to the more general conceptions of liberty found in the remainder of the First Amendment, is to guarantee the individual right to conscience. [ Footnote 2/13 ] The right to conscience, in the religious sphere, is not only implicated when the government engages in direct or indirect coercion. It is also implicated when the government requires individuals to support the practices of a faith with which they do not agree. "'[T]o compel a man to furnish contributions of money for the propagation of [religious] opinions which he disbelieves, is sinful and tyrannical; . . . even . . . forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor, whose morals he would make his pattern. . . .'" Everson v. Board of Education, supra, at 330 U. S. 13 , quoting Virginia Bill for Religious Liberty, 12 Hening, Statutes of Virginia 84 (1823). The second purpose of separation and neutrality is to keep the state from interfering in the essential autonomy of religious life, either by taking upon itself the decision of religious Page 463 U. S. 804 issues, [ Footnote 2/14 ] or by unduly involving itself in the supervision of religious institutions or officials. [ Footnote 2/15 ] The third purpose of separation and neutrality is to prevent the trivialization and degradation of religion by too close an attachment to the organs of government. The Establishment Clause "stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its 'unhallowed perversion' by a civil magistrate." Engel v. Vitale, 370 U.S. at 370 U. S. 432 , quoting Memorial and Remonstrance against Religious Assessments, 2 Writings of Madison 187. See also Schempp, 374 U.S. at 374 U. S. 221 -222; id. at 374 U. S. 283 -287 (BRENNAN, J., concurring). [ Footnote 2/16 ] Page 463 U. S. 805 Finally, the principles of separation and neutrality help assure that essentially religious issues, precisely because of their importance and sensitivity, not become the occasion for battle in the political arena. See Lemon, 403 U.S. at 403 U. S. 622 -624; Board of Education v. Allen, 392 U. S. 236 , 392 U. S. 249 (Harlan, J., concurring); Engel, supra, at 370 U. S. 429 -430. With regard to most issues, the government may be influenced by partisan argument and may act as a partisan itself. In each case, there will be winners and losers in the political battle, and the losers' most common recourse is the right to dissent and the right to fight the battle again another day. With regard to matters that are essentially religious, however, the Establishment Clause seeks that there should be no political battles, and that no American should at any point feel alienated Page 463 U. S. 806 from his government because that government has declared or acted upon some "official" or "authorized" point of view on a matter of religion. [ Footnote 2/17 ] The imperatives of separation and neutrality are not limited to the relationship of government to religious institutions or denominations, but extend as well to the relationship of government to religious beliefs and practices. In Torcaso v. Watkins, 367 U. S. 488 (1961), for example, we struck down a state provision requiring a religious oath as a qualification to hold office, not only because it violated principles of free exercise of religion, but also because it violated the principles of nonestablishment of religion. And, of course, in the pair of cases that hang over this one like a reproachful set of parents, we held that official prayer and prescribed Bible reading in the public schools represent a serious encroachment on the Establishment Clause. Schempp, supra; Engel, supra. As we said in Engel, "[i]t is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves, and to those the people choose to look to for religious guidance." 370 U.S. at 370 U. S. 435 (footnote omitted). Nor should it be thought that this view of the Establishment Clause is a recent concoction of an overreaching judiciary. Page 463 U. S. 807 Even before the First Amendment was written, the Framers of the Constitution broke with the practice of the Articles of Confederation and many state constitutions, and did not invoke the name of God in the document. This "omission of a reference to the Deity was not inadvertent; nor did it remain unnoticed." [ Footnote 2/18 ] Moreover, Thomas Jefferson and Andrew Jackson, during their respective terms as President, both refused on Establishment Clause grounds to declare national days of thanksgiving or fasting. [ Footnote 2/19 ] And James Madison, writing subsequent to his own Presidency on essentially the very issue we face today, stated: "Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom?" "In strictness, the answer on both points must be in the negative. The Constitution of the U.S. forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of Page 463 U. S. 808 them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation." Fleet, Madison's "Detached Memoranda," 3 Wm. & Mary Quarterly 534, 558 (1946). C Legislative prayer clearly violates the principles of neutrality and separation that are embedded within the Establishment Clause. It is contrary to the fundamental message of Engel and Schempp. It intrudes on the right to conscience by forcing some legislators either to participate in a "prayer opportunity," ante at 463 U. S. 794 , with which they are in basic disagreement, or to make their disagreement a matter of public comment by declining to participate. It forces all residents of the State to support a religious exercise that may be contrary to their own beliefs. It requires the State to commit itself on fundamental theological issues. [ Footnote 2/20 ] It has the potential for degrading religion by allowing a religious call to worship to be intermeshed with a secular call to order. And it injects religion into the political sphere by creating the potential that each and every selection of a chaplain, or consideration of a particular prayer, or even reconsideration of the practice itself, will provoke a political battle along religious lines and ultimately alienate some religiously identified group of citizens. [ Footnote 2/21 ] Page 463 U. S. 809 D One response to the foregoing account, of course, is that "neutrality" and "separation" do not exhaust the full meaning of the Establishment Clause as it has developed in our cases. It is indeed true that there are certain tensions inherent in the First Amendment itself, or inherent in the role of religion and religious belief in any free society, that have shaped the doctrine of the Establishment Clause, and required us to deviate from an absolute adherence to separation and neutrality. Nevertheless, these considerations, although very important, are also quite specific, and where none of them is present, the Establishment Clause gives us no warrant simply to look the other way and treat an unconstitutional practice as if it were constitutional. Because the Court occasionally suggests that some of these considerations might apply here, it becomes important that I briefly identify the most prominent of them and explain why they do not, in fact, have any relevance to legislative prayer. (1) A number of our cases have recognized that religious institutions and religious practices may, in certain contexts, receive the benefit of government programs and policies generally available, on the basis of some secular criterion, to a wide class of similarly situated nonreligious beneficiaries, [ Footnote 2/22 ] and the precise cataloging of those contexts is not necessarily an easy task. I need not tarry long here, however, because the provision for a daily official invocation by a nonmember officer of Page 463 U. S. 810 a legislative body could by no stretch of the imagination appear anywhere in that catalog. (2) Conversely, our cases have recognized that religion can encompass a broad, if not total, spectrum of concerns, overlapping considerably with the range of secular concerns, and that not every governmental act which coincides with or conflicts with a particular religious belief is, for that reason, an establishment of religion. See, e.g., McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 431 -445 (1961) (Sunday Laws); Harris v. McRae, 448 U. S. 297 , 448 U. S. 319 -320 (1980) (abortion restrictions). The Court seems to suggest at one point that the practice of legislative prayer may be excused on this ground, ante at 463 U. S. 792 , but I cannot really believe that it takes this position seriously. [ Footnote 2/23 ] The practice of legislative prayer is nothing like the statutes we considered in McGowan and Harris v. McRae; prayer is not merely "conduct whose . . . effect . . . harmonize[s] with the tenets of some or all religions," McGowan, supra, at 366 U. S. 442 ; prayer is fundamentally and necessarily religious. "It is prayer which distinguishes religious phenomena from all those which resemble them or lie near to them, from the moral sense, for instance, or aesthetic feeling. [ Footnote 2/24 ]" Accord, Engel, 370 U.S. at 370 U. S. 424 . (3) We have also recognized that government cannot, without adopting a decidedly anti -religious point of view, be forbidden Page 463 U. S. 811 to recognize the religious beliefs and practices of the American people as an aspect of our history and culture. [ Footnote 2/25 ] Certainly, bona fide classes in comparative religion can be offered in the public schools. [ Footnote 2/26 ] And certainly, the text of Abraham Lincoln's Second Inaugural Address which is inscribed on a wall of the Lincoln Memorial need not be purged of its profound theological content. The practice of offering invocations at legislative sessions cannot, however, simply be dismissed as "a tolerable acknowledgment of beliefs widely held among the people of this country." Ante at 463 U. S. 792 (emphasis added). "Prayer is religion in act. " [ Footnote 2/27 ] "Praying means to take hold of a word, the end, so to speak, of a line that leads to God." [ Footnote 2/28 ] Reverend Palmer and other members of the clergy who offer invocations at legislative sessions are not museum pieces put on display once a day for the edification of the legislature. Rather, they are engaged by the legislature to lead it -- as a body -- in an act of religious worship. If upholding the practice requires denial of this fact, I suspect that many supporters of legislative prayer would feel that they had been handed a pyrrhic victory. (4) Our cases have recognized that the purposes of the Establishment Clause can sometimes conflict. For example, in Walz v. Tax Comm'n, 397 U. S. 664 (1970), we upheld tax exemptions for religious institutions in part because subjecting those institutions to taxation might foster serious administrative entanglement. Id. at 397 U. S. 674 -676. Here, however, no Page 463 U. S. 812 such tension exists; the State can vindicate all the purposes of the Establishment Clause by abolishing legislative prayer. (5) Finally, our cases recognize that, in one important respect, the Constitution is not neutral on the subject of religion: under the Free Exercise Clause, religiously motivated claims of conscience may give rise to constitutional rights that other strongly held beliefs do not. See 463 U.S. 783 fn2/13|>n. 13, supra. Moreover, even when the government is not compelled to do so by the Free Exercise Clause, it may to some extent act to facilitate the opportunities of individuals to practice their religion. [ Footnote 2/29 ] See Schempp, 374 U.S. at 374 U. S. 299 (BRENNAN, J., concurring) ("hostility, not neutrality, would characterize the refusal to provide chaplains and places of worship for prisoners and soldiers cut off by the State from all civilian opportunities for public communion"). This is not, however, a case in which a State is accommodating individual religious interests. We are not faced here with the right of the legislature to allow its members to offer prayers during the course of Page 463 U. S. 813 general legislative debate. We are certainly not faced with the right of legislators to form voluntary groups for prayer or worship. We are not even faced with the right of the State to employ members of the clergy to minister to the private religious needs of individual legislators. Rather, we are faced here with the regularized practice of conducting official prayers, on behalf of the entire legislature, as part of the order of business constituting the formal opening of every single session of the legislative term. If this is free exercise, the Establishment Clause has no meaning whatsoever. III With the exception of the few lapses I have already noted, each of which is commendably qualified so as to be limited to the facts of this case, the Court says almost nothing contrary to the above analysis. Instead, it holds that "the practice of opening legislative sessions with prayer has become part of the fabric of our society," ante at 463 U. S. 792 , and chooses not to interfere. I sympathize with the Court's reluctance to strike down a practice so prevalent and so ingrained as legislative prayer. I am, however, unconvinced by the Court's arguments, and cannot shake my conviction that legislative prayer violates both the letter and the spirit of the Establishment Clause. A The Court's main argument for carving out an exception sustaining legislative prayer is historical. The Court cannot -- and does not -- purport to find a pattern of "undeviating acceptance," Walz, supra, at 397 U. S. 681 (BRENNAN, J., concurring), of legislative prayer. See ante at 463 U. S. 791 , and n. 12; n. 10, supra. It also disclaims exclusive reliance on the mere longevity of legislative prayer. Ante at 463 U. S. 790 . The Court does, however, point out that, only three days before the First Congress reached agreement on the final wording of the Bill of Rights, it authorized the appointment of paid chaplains for Page 463 U. S. 814 its own proceedings, ante at 463 U. S. 788 , and the Court argues that in light of this "unique history," ante at 463 U. S. 791 , the actions of Congress reveal its intent as to the meaning of the Establishment Clause, ante at 463 U. S. 788 -790. I agree that historical practice is "of considerable import in the interpretation of abstract constitutional language," Walz, 397 U.S. at 397 U. S. 681 (BRENNAN, J., concurring). This is a case, however, in which -- absent the Court's invocation of history -- there would be no question that the practice at issue was unconstitutional. And despite the surface appeal of the Court's argument, there are at least three reasons why specific historical practice should not in this case override that clear constitutional imperative. [ Footnote 2/30 ] First, it is significant that the Court's historical argument does not rely on the legislative history of the Establishment Clause itself. Indeed, that formal history is profoundly unilluminating on this and most other subjects. Rather, the Court assumes that the Framers of the Establishment Clause would not have themselves authorized a practice that they thought violated the guarantees contained in the Clause. Ante at 463 U. S. 790 . This assumption, however, is questionable. Legislators, influenced by the passions and exigencies of the moment, the pressure of constituents and colleagues, and the press of business, do not always pass sober constitutional judgment on every piece of legislation they enact, [ Footnote 2/31 ] and this Page 463 U. S. 815 must be assumed to be as true of the Members of the First Congress as any other. Indeed, the fact that James Madison, who voted for the bill authorizing the payment of the first congressional chaplains, ante at 463 U. S. 788 , n. 8, later expressed the view that the practice was unconstitutional, see supra at 463 U. S. 807 -808, is instructive on precisely this point. Madison's later views may not have represented so much a change of mind as a change of role, from a Member of Congress engaged in the hurly-burly of legislative activity to a detached observer engaged in unpressured reflection. Since the latter role is precisely the one with which this Court is charged, I am not at all sure that Madison's later writings should be any less influential in our deliberations than his earlier vote. Second, the Court's analysis treats the First Amendment simply as an Act of Congress, as to whose meaning the intent of Congress is the single touchstone. Both the Constitution and its Amendments, however, became supreme law only by virtue of their ratification by the States, and the understanding of the States should be as relevant to our analysis as the understanding of Congress. [ Footnote 2/32 ] See Richardson v. Ramirez, 418 U. S. 24 , 418 U. S. 43 (1974); Maxwell v. Dow, 176 U. S. 581 , 176 U. S. 602 (1900). [ Footnote 2/33 ] This observation is especially compelling in considering Page 463 U. S. 816 the meaning of the Bill of Rights. The first 10 Amendments were not enacted because the Members of the First Congress came up with a bright idea one morning; rather, their enactment was forced upon Congress by a number of the States as a condition for their ratification of the original Constitution. [ Footnote 2/34 ] To treat any practice authorized by the First Congress as presumptively consistent with the Bill of Rights is therefore somewhat akin to treating any action of a party to a contract as presumptively consistent with the terms of the contract. The latter proposition, if it were accepted, would of course resolve many of the heretofore perplexing issues in contract law. Finally, and most importantly, the argument tendered by the Court is misguided because the Constitution is not a static document whose meaning on every detail is fixed for all time by the life experience of the Framers. We have recognized in a wide variety of constitutional contexts that the practices that were in place at the time any particular guarantee was enacted into the Constitution do not necessarily fix forever the meaning of that guarantee. [ Footnote 2/35 ] To be truly faithful to the Framers, "our use of the history of their time must limit itself to broad purposes, not specific practices." Abington School Dist. v. Schempp, 374 U.S. at 374 U. S. 241 (BRENNAN, J., concurring). Our primary task must be to translate "the majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the Page 463 U. S. 817 problems of the twentieth century. . . ." West Virginia Bd. of Education v. Barnette, 319 U. S. 624 , 319 U. S. 639 (1943). The inherent adaptability of the Constitution and its amendments is particularly important with respect to the Establishment Clause. "[O]ur religious composition makes us a vastly more diverse people than were our forefathers. . . . In the face of such profound changes, practices which may have been objectionable to no one in the time of Jefferson and Madison may today be highly offensive to many persons, the deeply devout and the nonbelievers alike." Schempp, supra, at 374 U. S. 240 -241 (BRENNAN, J., concurring). Cf. McDaniel v. Paty, 435 U. S. 618 , 435 U. S. 628 (1978) (plurality opinion). President John Adams issued during his Presidency a number of official proclamations calling on all Americans to engage in Christian prayer. [ Footnote 2/36 ] Justice Story, in his treatise on the Constitution, contended that the "real object" of the First Amendment "was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects. . . . [ Footnote 2/37 ]" Whatever deference Adams' actions and Story's views might once have deserved in this Court, the Establishment Clause must now be read in a very different light. Similarly, the Members of the First Congress should be treated, not as sacred figures whose every action must be emulated, but as the authors of a document meant to last for the ages. Indeed, a proper respect for the Framers themselves forbids us to give so static and lifeless a meaning to their work. To my mind, the Court's focus here on a narrow piece of history is, in a fundamental sense, a betrayal of the lessons of history. Page 463 U. S. 818 B Of course, the Court does not rely entirely on the practice of the First Congress in order to validate legislative prayer. There is another theme which, although implicit, also pervades the Court's opinion. It is exemplified by the Court's comparison of legislative prayer with the formulaic recitation of "God save the United States and this Honorable Court." Ante at 463 U. S. 786 . It is also exemplified by the Court's apparent conclusion that legislative prayer is, at worst, a " mere shadow'" on the Establishment Clause, rather than a "`real threat'" to it. Ante at 463 U. S. 795 , quoting Schempp, supra, at 374 U. S. 308 (Goldberg, J., concurring). Simply put, the Court seems to regard legislative prayer as at most a de minimis violation, somehow unworthy of our attention. I frankly do not know what should be the proper disposition of features of our public life such as "God save the United States and this Honorable Court," "In God We Trust," "One Nation Under God," and the like. I might well adhere to the view expressed in Schempp that such mottos are consistent with the Establishment Clause, not because their import is de minimis, but because they have lost any true religious significance. 374 U.S. at 374 U. S. 303 -304 (BRENNAN, J., concurring). Legislative invocations, however, are very different. First of all, as JUSTICE STEVENS' dissent so effectively highlights, legislative prayer, unlike mottos with fixed wordings, can easily turn narrowly and obviously sectarian. [ Footnote 2/38 ] I agree with the Court that the federal judiciary should not sit as a board of censors on individual prayers, but, to my mind, the better way of avoiding that task is by striking down all official legislative invocations. Page 463 U. S. 819 More fundamentally, however, any practice of legislative prayer, even if it might look "nonsectarian" to nine Justices of the Supreme Court, will inevitably and continuously involve the State in one or another religious debate. [ Footnote 2/39 ] Prayer is serious business -- serious theological business -- and it is not a mere "acknowledgment of beliefs widely held among the people of this country" for the State to immerse itself in that business. [ Footnote 2/40 ] Some religious individuals or groups find it theologically problematic to engage in joint religious exercises predominantly influenced by faiths not their own. [ Footnote 2/41 ] Some might object even to the attempt to fashion a "nonsectarian" prayer. [ Footnote 2/42 ] Some would find it impossible to participate in any "prayer opportunity," ante at 463 U. S. 794 , marked by Page 463 U. S. 820 Trinitarian references. [ Footnote 2/43 ] Some would find a prayer not invoking the name of Christ to represent a flawed view of the relationship between human beings and God. [ Footnote 2/44 ] Some might find any petitionary prayer to be improper. [ Footnote 2/45 ] Some might find any prayer that lacked a petitionary element to be deficient. [ Footnote 2/46 ] Some might be troubled by what they consider shallow public prayer, [ Footnote 2/47 ] or nonspontaneous prayer, [ Footnote 2/48 ] or prayer without adequate spiritual preparation or concentration. [ Footnote 2/49 ] Some might, of course, have theological objections to any prayer sponsored by an organ of government. [ Footnote 2/50 ] Some Page 463 U. S. 821 might object on theological grounds to the level of political neutrality generally expected of government-sponsored invocational prayer. [ Footnote 2/51 ] And some might object on theological grounds to the Court's requirement, ante at 463 U. S. 794 , that prayer, even though religious, not be proselytizing. [ Footnote 2/52 ] If these problems arose in the context of a religious objection to some otherwise decidedly secular activity, then whatever remedy there is would have to be found in the Free Exercise Clause. See 463 U.S. 783 fn2/13|>n. 13, supra. But, in this case, we are faced with potential religious objections to an activity at the very center of religious life, and it is simply beyond the competence of government, and inconsistent with our conceptions of liberty, for the State to take upon itself the role of ecclesiastical arbiter. IV The argument is made occasionally that a strict separation of religion and state robs the Nation of its spiritual identity. I believe quite the contrary. It may be true that individuals cannot be "neutral" on the question of religion. [ Footnote 2/53 ] But the judgment of the Establishment Clause is that neutrality by the organs of government on questions of religion is both possible and imperative. Alexis de Tocqueville wrote the following concerning his travels through this land in the early 1830's: "The religious atmosphere of the country was the first thing that struck me on arrival in the United States. . . ." "In France, I had seen the spirits of religion and of freedom almost always marching in opposite directions. In America, I found them intimately linked together in joint reign over the same land. Page 463 U. S. 822 " "My longing to understand the reason for this phenomenon increased daily." "To find this out, I questioned the faithful of all communions; I particularly sought the society of clergymen, who are the depositaries of the various creeds and have a personal interest in their survival. . . . I expressed my astonishment and revealed my doubts to each of them; I found that they all agreed with each other except about details; all thought that the main reason for the quiet sway of religion over their country was the complete separation of church and state. I have no hesitation in stating that, throughout my stay in America, I met nobody, lay or cleric, who did not agree about that." Democracy in America 295 (G. Lawrence trans., J. Mayer ed., 1969). More recent history has only confirmed De Tocqueville's observations. [ Footnote 2/54 ] If the Court had struck down legislative prayer today, it would likely have stimulated a furious reaction. But it would also, I am convinced, have invigorated both the "spirit of religion" and the "spirit of freedom." I respectfully dissent. [ Footnote 2/1 ] See Zorach v. Clauson, 343 U. S. 306 , 343 U. S. 312 -313 (1952); cf. Abington School Dist. v. Schempp, 374 U. S. 203 , 374 U. S. 213 (1963). [ Footnote 2/2 ] "The saying of invocational prayers in legislative chambers, state or federal, and the appointment of legislative chaplains, might well represent no involvements of the kind prohibited by the Establishment Clause. Legislators, federal and state, are mature adults who may presumably absent themselves from such public and ceremonial exercises without incurring any penalty, direct or indirect." Schempp, supra, at 374 U. S. 299 -300 (BRENNAN, J., concurring) (footnote omitted). [ Footnote 2/3 ] See, e.g., Larkin v. Grendel's Den, Inc., 459 U. S. 116 , 459 U. S. 123 (1982); Widmar v. Vincent, 454 U. S. 263 , 454 U. S. 271 (1981); Wolman v. Walter, 433 U. S. 229 , 433 U. S. 236 (1977); Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756 , 413 U. S. 772 -773 (1973). [ Footnote 2/4 ] See Stone v. Graham, 449 U. S. 39 , 449 U. S. 41 (1980) (finding "preeminent purpose" of state statute requiring posting of Ten Commandments in each public school classroom to be "plainly religious in nature," despite legislative recitations of "supposed secular purpose"); Epperson v. Arkansas, 393 U. S. 97 , 393 U. S. 107 -109 (1968) (state "anti-evolution" statute clearly religious in purpose); cf. Schempp, supra, at 374 U. S. 223 -224 (public school exercise consisting of Bible reading and recitation of Lord's Prayer). As Reverend Palmer put the matter: "I would say that I strive to relate the Senators and their helpers to the divine." Palmer Deposition, at 28. "[M]y purpose is to provide an opportunity for Senators to be drawn closer to their understanding of God as they understand God. In order that the divine wisdom might be theirs as they conduct their business for the day." Id. at 46. Cf. Prayers of the Chaplain of the Massachusetts Senate, 1963-1968, p. 58 (1969) (hereinafter Massachusetts Senate Prayers) ("Save this moment, O God, from merely being a gesture to custom"). [ Footnote 2/5 ] Cf. Stone v. Graham, supra, at 449 U. S. 42 . The Court argues that legislators are adults, "presumably not readily susceptible to . . . peer pressure." Ante at 463 U. S. 792 . I made a similar observation in my concurring opinion in Schempp. See 463 U.S. 783 fn2/2|>n. 2, supra. Quite apart from the debatable constitutional significance of this argument, see Schempp, 374 U.S. at 374 U. S. 224 -225; Engel v. Vitale, 370 U.S. at 370 U. S. 430 , I am now most uncertain as to whether it is even factually correct: legislators, by virtue of their instinct for political survival, are often loath to assert in public religious views that their constituents might perceive as hostile or nonconforming. See generally P. Blanshard, God and Man in Washington 94-106 (1960). [ Footnote 2/6 ] As I point out infra at 463 U. S. 803 -804, 463 U. S. 808 , official religious exercises may also be of significant symbolic detriment to religion. [ Footnote 2/7 ] See Larkin v. Grendel's Den, Inc., supra, at 459 U. S. 125 , n. 9; Walz v. Tax Comm'n, 397 U. S. 664 , 397 U. S. 674 -676 (1970). [ Footnote 2/8 ] In Lemon, we struck down certain state statutes providing aid to sectarian schools, in part because "the program requires the government to examine the school's records in order to determine how much of the total expenditures is attributable to secular education and how much to religious activity." 403 U.S. at 403 U. S. 620 . In this case, by the admission of the very government officials involved, supervising the practice of legislative prayer requires those officials to determine if particular members of the clergy and particular prayers are "too explicitly Christian," App. 49 (testimony of Rev. Palmer) or consistent with "the various religious preferences that the Senators may or may not have," id. at 48 (same), or likely to "inject some kind of a religious dogma" into the proceedings, id. at 68 (testimony of Frank Lewis, Chairman of the Nebraska Legislature Executive Board). [ Footnote 2/9 ] See id. at 49 (testimony of Rev. Palmer) (discussing objections raised by some Senators to Christological references in certain of his prayers and in a prayer offered by a guest member of the clergy). [ Footnote 2/10 ] As the Court points out, the practice of legislative prayers in Congress gave rise to serious controversy at points in the 19th century. Ante at 463 U. S. 788 -789, n. 10. Opposition to the practice in that period arose "both on the part of certain radicals and of some rather extreme Protestant sects. These have been inspired by very different motives, but have united in opposing government chaplaincies as breaking down the line of demarcation between Church and State. The sectarians felt that religion had nothing to do with the State, while the radicals felt that the State had nothing to do with religion." 3 A. Stokes, Church and State in the United States 130 (1950) (hereinafter Stokes). See also id. at 133-134. Similar controversies arose in the States. See Report of the Select Committee of the New York State Assembly on the Several Memorials Against Appointing Chaplains to the Legislature (1832) (recommending that practice be abolished), reprinted in J. Blau, Cornerstones of Religious Freedom in America 141-156 (1949). In more recent years, particular prayers and particular chaplains in the state legislatures have periodically led to serious political divisiveness along religious lines. See, e.g., The Oregonian, Apr. 1, 1983, p. C8 ("Despite protests from at least one representative, a follower of an Indian guru was allowed to give the prayer at the start of Thursday's [Oregon] House [of Representatives] session. Shortly before Ma Anand Sheela began the invocation, about a half-dozen representatives walked off the House floor in apparent protest of the prayer"); Cal.Senate Jour., 37th Sess., 171-173, 307-308 (1907) (discussing request by a State Senator that State Senate Chaplain not use the name of Christ in legislative prayer, and response by one local clergyman claiming that the legislator who made the request had committed a "crowning infamy" and that his "words were those of an irreverent and godless man"). See also infra, at 463 U. S. 805 -806, 463 U. S. 808 , 463 U. S. 818 -821. [ Footnote 2/11 ] The Lemon tests do not, of course, exhaust the set of formal doctrines that can be brought to bear on the issues before us today. Last Term, for example, we made clear that a state program that discriminated among religious faiths, and not merely in favor of all religious faiths, "must be invalidated unless it is justified by a compelling governmental interest, cf. Widmar v. Vincent, 454 U. S. 263 , 454 U. S. 269 -270 (1981), and unless it is closely fitted to further that interest, Murdock v. Pennsylvania, 319 U. S. 105 , 319 U. S. 116 -117 (1943)." Larson v. Valente, 456 U. S. 228 , 456 U. S. 247 (1982). In this case, the appointment of a single chaplain for 16 years, and the evident impossibility of a Buddhist monk's or Sioux Indian religious worker's being appointed for a similar period, App. 69-70, see post, p. 463 U. S. 822 (STEVENS, J., dissenting), might well justify application of the Larson test. Moreover, given the pains that petitioners have gone through to emphasize the "ceremonial" function of legislative prayer, Brief for Petitioners 16, and given the ease with which a similar "ceremonial" function could be performed without the necessity for prayer, cf. supra, at 463 U. S. 797 -798, I have little doubt that the Nebraska practice, at least, would fail the Larson test. In addition, I still find compelling the Establishment Clause test that I articulated in Schempp: "What the Framers meant to foreclose, and what our decisions under the Establishment Clause have forbidden, are those involvements of religious with secular institutions which (a) serve the essentially religious activities of religious institutions; (b) employ the organs of government for essentially religious purposes; or (c) use essentially religious means to serve governmental ends, where secular means would suffice." 374 U.S. at 374 U. S. 294 -295. See Roemer v. Marland Board of Public Works, 426 U. S. 736 , 426 U. S. 770 -771 (1976) (BRENNAN, J., dissenting); Hunt v. McNair, 413 U. S. 734 , 413 U. S. 750 (1973) (BRENNAN, J., dissenting); Lemon v. Kurtzman, 403 U.S. at 403 U. S. 643 (BRENNAN, J., concurring); Walz v. Tax Comm'n, 397 U.S. at 397 U. S. 680 -681 (BRENNAN, J., concurring). For reasons similar to those I have already articulated, I believe that the Nebraska practice of legislative prayer, as well as most other comparable practices, would fail at least the second and third elements of this test. [ Footnote 2/12 ] See also, e.g., Larkin v. Grendel's Den, Inc., 459 U.S. at 459 U. S. 122 -123; Stone v. Graham, 449 U.S. at 449 U. S. 42 ; Abington School Dist. v. Schempp, 374 U.S. at 374 U. S. 214 -225; id. at 374 U. S. 232 -234, 374 U. S. 243 -253 (BRENNAN, J., concurring). [ Footnote 2/13 ] See, e.g., Larson v. Valente, supra, at 456 U. S. 244 -247; Schempp, supra, at 374 U. S. 222 ; Torcaso v. Watkins, 367 U. S. 488 , 367 U. S. 490 , 367 U. S. 494 -496 (1961); McDaniel v. Paty, 435 U. S. 618 , 435 U. S. 636 (1978) (BRENNAN, J., concurring in judgment). The Free Exercise Clause serves a similar function, though often in a quite different way. In particular, we have held that, under certain circumstances, an otherwise constitutional law may not be applied as against persons for whom the law creates a burden on religious belief or practice. See, e.g., Thomas v. Review Bd. of Indiana Employment Security Division, 450 U. S. 707 (1981); Wisconsin v. Yoder, 406 U. S. 205 (1972); Sherbert v. Verner, 374 U. S. 398 (1963). [ Footnote 2/14 ] See, e.g., Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U. S. 440 (1969); United State v. Ballard, 322 U. S. 78 (1944). [ Footnote 2/15 ] See Lemon v. Kurtzman, 403 U.S. at 403 U. S. 614 -622; NLRB v. Catholic Bishop of Chicago, 440 U. S. 490 , 440 U. S. 501 -504 (1979). This and the remaining purposes that I discuss cannot be reduced simply to a question of individual liberty. A court, for example, will refuse to decide an essentially religious issue even if the issue is otherwise properly before the court, and even if it is asked to decide it. [ Footnote 2/16 ] Consider, in addition to the formal authorities cited in text, the following words by a leading Methodist clergyman: "[Some propose] to reassert religious values by posting the Ten Commandments on every school-house wall, by erecting cardboard nativity shrines on every corner, by writing God's name on our money, and by using His Holy Name in political oratory. Is this not the ultimate in profanity?" " * * * *" "What is the result of all this display of holy things in public places? Does it make the market-place more holy? Does it improve people? Does it change their character or motives? On the contrary, the sacred symbols are thereby cheapened and degraded. The effect is often that of a television commercial on a captive audience -- boredom and resentment." Kelley, Beyond Separation of Church and State, 5 J. Church & State 181, 190-191 (1963). Consider also this condensed version of words first written in 1954 by one observer of the American scene: "The manifestations of religion in Washington have become pretty thick. We have had opening prayers, Bible breakfasts, [and so on]; now we have added . . . a change in the Pledge of Allegiance. The Pledge, which has served well enough in times more pious than ours, has now had its rhythm upset but its anti-Communist spirituality improved by the insertion of the phrase 'under God.' . . . A bill has been introduced directing the post office to cancel mail with the slogan 'Pray for Peace.' (The devout, in place of daily devotions, can just read what is stuck and stamped all over the letters in their mail.)" " * * * *" "To note all this in a deflationary tone is not to say that religion and politics don't mix. Politicians should develop deeper religious convictions, and religious folk should develop wiser political convictions; both need to relate political duties to religious faith -- but not in an unqualified and public way that confuses the absolute and emotional loyalties of religion with the relative and shifting loyalties of politics." " * * * *" "All religious affirmations are in danger of standing in contradiction to the life that is lived under them, but none more so than these general, inoffensive, and externalized ones which are put together for public purposes." W. Miller, Piety along the Potomac 41-46 (1964). See also e.g., Prayer in Public Schools and Buildings -- Federal Court Jurisdiction, Hearings before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Committee on the Judiciary, 96th Cong., 2d Sess., 46-47 (1980) (testimony of M. William Howard, President of the National Council of the Churches of Christ in the U.S.A.) (hereinafter Hearings); cf. Fox, The National Day of Prayer, 29 Theology Today 258 (1972). [ Footnote 2/17 ] It is sometimes argued that to apply the Establishment Clause alienates those who wish to see a tighter bond between religion and state. This is obviously true. (I would vigorously deny, however, any claim that the Establishment Clause disfavors the much broader class of persons for whom religion is a necessary and important part of life. See supra at 463 U. S. 803 -804; infra, at 463 U. S. 821 -822.) But I would submit that even this dissatisfaction is tempered by the knowledge that society is adhering to a fixed rule of neutrality, rather than rejecting a particular expression of religious belief. [ Footnote 2/18 ] Pfeffer, The Deity in American Constitutional History, 23 J.Church & State 215, 217 (1981). See also 1 Stokes 523. [ Footnote 2/19 ] See L. Pfeffer, Church, State, and Freedom 266 (rev. ed.1967) (hereinafter Pfeffer). Jefferson expressed his views as follows: "'I consider the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. [I]t is only proposed that I should recommend not prescribe a day of fasting and prayer. [But] I do not believe it is for the interest of religion to invite the civil magistrate to direct its exercises, its discipline, or its doctrine. . . . Fasting and prayer are religious exercises; the enjoining of them an act of discipline. Every religious society has a right to determine for itself the times for these exercises, and the objects proper for them, according to their own particular tenets; and the right can never be safer than in their hands, where the Constitution has deposited it.'" Ibid., quoting 11 Jefferson's Writings 428-430 (Monticello ed.1905). [ Footnote 2/20 ] See also infra, at 463 U. S. 819 -821. [ Footnote 2/21 ] In light of the discussion in text, I am inclined to agree with the Court that the Nebraska practice of legislative prayer is not significantly more troubling than that found in other States. For example, appointing one chaplain for 16 years may give the impression of "establishing" one particular religion, but the constant attention to the selection process which would be the result of shorter terms might well increase the opportunity for religious discord and entanglement. The lesson I draw from all this, however, is that any regular practice of official invocational prayer must be deemed unconstitutional. [ Footnote 2/22 ] See, e.g., Everson v. Board of Education, 330 U. S. 1 (1947) (transportation of students to and from school); Walz v. Tax Comm'n, 397 U. S. 664 (1970) (charitable tax exemptions). [ Footnote 2/23 ] The Court does sensibly, if not respectfully, ascribe this view to the Founding Fathers, rather than to itself. See ante at 463 U. S. 792 . [ Footnote 2/24 ] A. Sabatier, Outlines of a Philosophy of Religion 25-26 (T. Seed trans., 1957 ed.). See also e.g., W. James, The Varieties of Religious Experience 352-353 (New American Library ed., 1958); F. Heiler, Prayer xiii-xvi (S. McComb trans., 1958 ed.). [ Footnote 2/25 ] See Schempp, 374 U.S. at 374 U. S. 300 -304 (BRENNAN, J., concurring); Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203 , 333 U. S. 236 -236 (1948) (Jackson, J., concurring). [ Footnote 2/26 ] See Schempp, supra, at 374 U. S. 226 . [ Footnote 2/27 ] Sabatier, supra, at 25 (emphasis added). [ Footnote 2/28 ] A. Heschel, Man's Quest for God 30 (1964). [ Footnote 2/29 ] Justice Douglas' famous observation that "[w]e are a religious people whose institutions presuppose a Supreme Being," Zorach v. Clauson, 343 U.S. at 343 U. S. 313 , see ante at 463 U. S. 792 , arose in precisely such a context. Indeed, a more complete quotation from the paragraph in which that statement appears is instructive here: "We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. . . . The government must be neutral when it comes to competition between sects. It may not thrust any sect on any person. It may not make a religious observance compulsory. It may not coerce anyone to attend church, to observe a religious holiday, or to take religious instruction. But it can close its doors or suspend its operations as to those who want to repair to their religious sanctuary for worship or instruction. No more than that is undertaken here." 343 U.S. at 343 U. S. 313 -314. [ Footnote 2/30 ] Indeed, the sort of historical argument made by the Court should be advanced with some hesitation in light of certain other skeletons in the congressional closet. See, e.g., An Act for the Punishment of certain Crimes against the United States, § 16, 1 Stat. 116 (1790) (enacted by the First Congress and requiring that persons convicted of certain theft offenses "be publicly whipped, not exceeding thirty-nine stripes"); Act of July 23, 1866, 1 Stat. 216 (reaffirming the racial segregation of the public schools in the District of Columbia; enacted exactly one week after Congress proposed Fourteenth Amendment to the States). [ Footnote 2/31 ] See generally D. Morgan, Congress and the Constitution (1966); E. Eidenberg & R. Morey, An Act of Congress (1969); cf. C. Miller, The Supreme Court and the Uses of History 61-64 (1969). One commentator has pointed out that the chaplaincy established by the First Congress was a carry-over from the days of the Continental Congress, which . . . exercised plenary jurisdiction in matters of religion; and ceremonial practices such as [this] are not easily dislodged after becoming so firmly established. Pfeffer 170. [ Footnote 2/32 ] As a practical matter, "we know practically nothing about what went on in the state legislatures" during the process of ratifying the Bill of Rights. 2 B. Schwartz, The Bill of Rights: A Documentary History 1171 (1971). Moreover, looking to state practices is, as the Court admits, ante at 463 U. S. 787 , n. 5, of dubious relevance, because the Establishment Clause did not originally apply to the States. Nevertheless, these difficulties give us no warrant to give controlling weight on the constitutionality of a specific practice to the collateral acts of the Members of Congress who proposed the Bill of Rights to the States. [ Footnote 2/33 ] See also 1 J. Story, Commentaries on the Constitution § 406 (1st ed., 1833); Fleet, Madison's "Detached Memoranda," 3 Wm. & Mary Quarterly 534, 544 (1946); Wofford, The Blinding Light: The Uses of History in Constitutional Interpretation, 31 U.Chi.L.Rev. 502, 508-509 (1964). [ Footnote 2/34 ] See generally 1 Annals of Cong. 431-433, 662, 730 (1789); Barron v. Mayor and City Council of Baltimore , 7 Pet. 243, 250 (1833); E. Dumbauld, The Bill of Rights and What it Means Today 10-34 (1957); 2 Schwartz, supra, at 697-980, 983-984. [ Footnote 2/35 ] See, e.g., Frontiero v. Richardson, 411 U. S. 677 (1973) (gender discrimination); Brown v. Board of Education, 347 U. S. 483 (1954) (race discrimination); Colgrove v. Battin, 413 U. S. 149 , 413 U. S. 155 -158 (1973) (jury trial); Trop v. Dulles, 356 U. S. 86 , 356 U. S. 101 (1958) (cruel and unusual punishment); Katz v. United States, 389 U. S. 347 (1967) (search and seizure). [ Footnote 2/36 ] See Pfeffer 266; 1 Stokes 513. [ Footnote 2/37 ] 3 Story, supra, § 1871. Cf. Church of Holy Trinity v. United States, 143 U. S. 457 , 143 U. S. 470 -471 (1892); 43 U. S. Girard's Executors, 2 How. 127, 43 U. S. 197 -199 (1844). [ Footnote 2/38 ] Indeed, the prayers said by Reverend Palmer in the Nebraska Legislature are relatively "nonsectarian" in comparison with some other examples. See, e.g., Massachusetts Senate Prayers 11, 14-17, 71-73, 108; Invocations by Rev. Fred S. Holloman, Chaplain of the Kansas Senate, 1980-1982 Legislative Sessions, pp. 40-41, 46-47, 101-102, 106-107. [ Footnote 2/39 ] See generally Cahn, On Government and Prayer, 37 N.Y.U.L.Rev. 981 (1962); Hearings, at 47 (testimony of M. Howard) ("there is simply no such thing as nonsectarian' prayer . . ."). Cf. N.Y. Times, Sept. 4, 1982, p. 8, col. 2 ("Mr. [Jerry] Falwell [founder of the organization "Moral Majority"] is quoted as telling a meeting of the Religious Newswriters Association in New Orleans that, because members of the Moral Majority represented a variety of denominations, if we ever opened a Moral Majority meeting with prayer, silent or otherwise, we would disintegrate'"). [ Footnote 2/40 ] I put to one side, not because of its irrelevance, but because of its obviousness, the fact that any official prayer will pose difficulties both for nonreligious persons and for religious persons whose faith does not include the institution of prayer, see, e.g., H. Smith, The Religions of Man 138 (Perennial Library ed.1965) (discussing Theravada Buddhism). [ Footnote 2/41 ] See, e.g., Hearings, at 46-47 (testimony of M. Howard) ("We are told that [school] prayers could be nonsectarian,' or that they could be offered from various religious traditions in rotation. I believe such a solution is least acceptable to those most fervently devoted to their own religion"); S. Freehof, Modern Reform Responsa 71 (1971) (ecumenical services not objectionable in principle, but they should not take place too frequently); J. Bancroft, Communication in Religious Worship with Non-Catholics (1943). [ Footnote 2/42 ] See, e.g., Hearings, at 47 (testimony of M. Howard) (nonsectarian prayer, even if were possible, would likely be "offensive to devout members of all religions"). [ Footnote 2/43 ] See, e.g., S. Freehof, Reform Responsa 115 (1960). [ Footnote 2/44 ] See, e.g., D. Bloesch, The Struggle of Prayer 36-37 (1980) (hereinafter Bloesch) ("Because our Savior plays such a crucial role in the life of prayer, we should always pray having in mind his salvation and intercession. We should pray not only in the spirit of Christ, but also in the name of Christ. . . . To pray in his name means that we recognize that our prayers cannot penetrate the tribunal of God unless they are presented to the Father by the Son, our one Savior and Redeemer"); cf. Fischer, The Role of Christ in Christian Prayer, 41 Encounter 153, 155-156 (1980). As the Court points out, Reverend Palmer eliminated the Christological references in his prayers after receiving complaints from some of the State Senators. Ante at 463 U. S. 793 , n. 14. Suppose, however, that Reverend Palmer had said that he could not in good conscience omit some references. Should he have been dismissed? And, if so, what would have been the implications of that action under both the Establishment and the Free Exercise Clauses? [ Footnote 2/45 ] See, e.g., Meister Eckhart 88-89 (R. Blakney trans.1941); T. Merton, Contemplative Prayer (1971); J. Williams, What Americans Believe and How they Worship 412-413 (3d ed.1969) (hereinafter Williams) (discussing Christian Science belief that only proper prayer is prayer of communion). [ Footnote 2/46 ] See, e.g., Bloesch 72-73; Stump, Petitionary Prayer, 16 Am.Philosophical Q. 81 (1979); Wells, Prayer: Rebelling Against the Status Quo, Christianity Today, Nov. 2, 1979, pp. 32-34. [ Footnote 2/47 ] See, e.g., Matthew 6:6 ("But thou, when thou prayest, enter into thy closet, and when thou hast shut thy door, pray to thy Father which is in secret; and thy Father which seeth in secret shall reward thee openly"). [ Footnote 2/48 ] See, e.g., Williams 274-275 (discussing traditional Quaker practice). [ Footnote 2/49 ] See, e.g., Heschel, supra, 463 U.S. 783 fn2/28|>n. 28, at 53; Heiler, supra, 463 U.S. 783 fn2/24|>n. 24, at 283-285. [ Footnote 2/50 ] See, e.g., Williams 256; 3 Stokes 133-134; Hearings, at 65-66 (statement of Baptist Joint Committee on Public Affairs). [ Footnote 2/51 ] See, e.g., R. Niebuhr, Faith and Politics 100 (R. Stone ed.1968) ("A genuinely prophetic religion speaks a word of judgment against every ruler and every nation, even against good rulers and good nations"). [ Footnote 2/52 ] See, e.g., Bloesch 159 ("World evangelization is to be numbered among the primary goals in prayer, since the proclaiming of the gospel is what gives glory to God"). [ Footnote 2/53 ] See W. James, The Will to Believe 1-31 (1st ed. 1897). [ Footnote 2/54 ] See generally J. Murray, We Hold These Truths 73-74 (American religion "has benefited . . . by the maintenance, even in exaggerated form, of the distinction between church and state"); Martin, Revived Dogma and New Cult, 111 Daedalus 53, 54-55 (1982) (The "icy thinness of religion in the cold airs of Northwest Europe and in the vapors of Protestant England is highly significant, because it represents a fundamental difference in the Protestant world between North America and the original exporting countries. In all those countries with stable monarchies and Protestant state churches, [religious] institutional vitality is low. In North America, lacking either monarch or state church, it is high." (footnote omitted)). JUSTICE STEVENS, dissenting. In a democratically elected legislature, the religious beliefs of the chaplain tend to reflect the faith of the majority of the Page 463 U. S. 823 lawmakers' constituents. Prayers may be said by a Catholic priest in the Massachusetts Legislature and by a Presbyterian minister in the Nebraska Legislature, but I would not expect to find a Jehovah's Witness or a disciple of Mary Baker Eddy or the Reverend Moon serving as the official chaplain in any state legislature. Regardless of the motivation of the majority that exercises the power to appoint the chaplain, [ Footnote 3/1 ] it seems plain to me that the designation of a member of one religious faith to serve as the sole official chaplain of a state legislature for a period of 16 years constitutes the preference of one faith over another in violation of the Establishment Clause of the First Amendment. The Court declines to "embark on a sensitive evaluation or to parse the content of a particular prayer." Ante at 463 U. S. 795 . Perhaps it does so because it would be unable to explain away the clearly sectarian content of some of the prayers given by Nebraska's chaplain. [ Footnote 3/2 ] Or perhaps the Court is unwilling to Page 463 U. S. 824 acknowledge that the tenure of the chaplain must inevitably be conditioned on the acceptability of that content to the silent majority. I would affirm the judgment of the Court of Appeals. [ Footnote 3/1 ] The Court holds that a chaplain's 16-year tenure is constitutional as long as there is no proof that his reappointment "stemmed from an impermissible motive." Ante at 463 U. S. 793 . Thus, once again, the Court makes the subjective motivation of legislators the decisive criterion for judging the constitutionality of a state legislative practice. Cf. Roger v. Lodge, 458 U. S. 613 (1982), and City of Mobile v. Bolden, 446 U. S. 55 (1980). Although that sort of standard maximizes the power of federal judges to review state action, it is not conducive to the evenhanded administration of the law. See 458 U.S. at 458 U. S. 642 -650 (STEVENS, J., dissenting); 446 U.S. at 446 U. S. 91 -94 (STEVENS, J., concurring in judgment). [ Footnote 3/2 ] On March 20, 1978, for example, Chaplain Palmer gave the following invocation: "Father in heaven, the suffering and death of your son brought life to the whole world moving our hearts to praise your glory. The power of the cross reveals your concern for the world and the wonder of Christ crucified." "The days of his life-giving death and glorious resurrection are approaching. This is the hour when he triumphed over Satan's pride; the time when we celebrate the great event of our redemption." "We are reminded of the price he paid when we pray with the Psalmist:" "My God, my God, why have you forsaken me, far from my prayer, from the word of my cry?" "O my God, I cry out by day, and you answer not; by night, and there is no relief for me." "Yet you are enthroned in the Holy Place, O glory of Israel!" "In you our fathers trusted; they trusted, and you delivered them." "To you they cried, and they escaped; in you they trusted, and they were not put to shame." "But I am a worm, not a man; the scorn of men, despised by the people." "All who see me scoff at me; they mock me with parted lips, they wag their heads:" "He relied on the Lord; let Him deliver him, let Him rescue him, if He loves him." "Amen." App. 103-104.

Here is a summary of the Marsh v. Chambers case: The case concerned the practice of the Nebraska Legislature, which began each session with a prayer by a chaplain paid by the state. A member of the legislature brought an action claiming that this practice violated the Establishment Clause of the First Amendment. The Supreme Court held that the Nebraska Legislature's chaplaincy practice did not violate the Establishment Clause. The Court considered the historical context, noting that the practice of opening legislative sessions with prayer has been followed for almost 200 years at the federal level and for over a century in Nebraska and many other states. The Court reasoned that this historical evidence shed light on the intentions of the drafters of the First Amendment and how they believed it applied to chaplaincy practices. The Court also weighed the specific facts of the case against this historical background and found that the selection of a clergyman from one denomination for 16 years, the payment of the chaplain from public funds, and the prayers' Judeo-Christian tradition did not invalidate Nebraska's practice. In conclusion, the Court reversed the Court of Appeals' decision and held that the Nebraska Legislature's chaplaincy practice was constitutional.

Religion

Lynch v. Donnelly

https://supreme.justia.com/cases/federal/us/465/668/

U.S. Supreme Court Lynch v. Donnelly, 465 U.S. 668 (1984) Lynch v. Donnelly No. 82-1256 Argued October 4, 1983 Decided March 5, 1984 465 U.S. 668 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT Syllabus The city of Pawtucket, R.I., annually erects a Christmas display in a park owned by a nonprofit organization and located in the heart of the city's shopping district. The display includes, in addition to such objects as a Santa Claus house, a Christmas tree, and a banner that reads "SEASONS GREETINGS," a creche or Nativity scene, which has been part of this annual display for 40 years or more. Respondents brought an action in Federal District Court, challenging the inclusion of the creche in the display on the ground that it violated the Establishment Clause of the First Amendment, as made applicable to the states by the Fourteenth Amendment. The District Court upheld the challenge and permanently enjoined the city from including the creche in the display. The Court of Appeals affirmed. Held: Notwithstanding the religious significance of the creche, Pawtucket has not violated the Establishment Clause. Pp. 465 U. S. 672 -687. (a) The concept of a "wall" of separation between church and state is a useful metaphor, but is not an accurate description of the practical aspects of the relationship that in fact exists. The Constitution does not require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any. Anything less would require the "callous indifference," Zorach v. Clauson, 343 U. S. 306 , 343 U. S. 314 , that was never intended by the Establishment Clause. Pp. 465 U. S. 672 -673. (b) This Court's interpretation of the Establishment Clause comports with the contemporaneous understanding of the Framers' intent. That neither the draftsmen of the Constitution, who were Members of the First Congress, nor the First Congress itself saw any establishment problem in employing Chaplains to offer daily prayers in the Congress is a striking example of the accommodation of religious beliefs intended by the Framers. Pp. 465 U. S. 673 -674. (c) Our history is pervaded by official acknowledgment of the role of religion in American life, and equally pervasive is evidence of accommodation of all faiths and all forms of religious expression and hostility toward none. Pp. 465 U. S. 674 -678. Page 465 U. S. 669 (d) Rather than taking an absolutist approach in applying the Establishment Clause and mechanically invalidating all governmental conduct or statutes that confer benefits or give special recognition to religion in general or to one faith, this Court has scrutinized challenged conduct or legislation to determine whether, in reality, it establishes a religion or religious faith or tends to do so. In the line-drawing process called for in each case, it has often been found useful to inquire whether the challenged law or conduct has a secular purpose, whether its principal or primary effect is to advance or inhibit religion, and whether it creates an excessive entanglement of government with religion. But this Court has been unwilling to be confined to any single test or criterion in this sensitive area. Pp. 465 U. S. 678 -679. (e) Here, the focus of the inquiry must be on the creche in the context of the Christmas season. Focus exclusively on the religious component of any activity would inevitably lead to its invalidation under the Establishment Clause. Pp. 465 U. S. 679 -680. (f) Based on the record in this case, the city has a secular purpose for including the creche in its Christmas display, and has not impermissibly advanced religion or created an excessive entanglement between religion and government. The display is sponsored by the city to celebrate the Holiday recognized by Congress and national tradition and to depict the origins of that Holiday; these are legitimate secular purposes. Whatever benefit to one faith or religion or to all religions inclusion of the creche in the display effects, is indirect, remote, and incidental, and is no more an advancement or endorsement of religion than the congressional and executive recognition of the origins of Christmas, or the exhibition of religious paintings in governmentally supported museums. This Court is unable to discern a greater aid to religion from the inclusion of the creche than from the substantial benefits previously held not violative of the Establishment Clause. As to administrative entanglement, there is no evidence of contact with church authorities concerning the content or design of the exhibition prior to or since the city's purchase of the creche. No expenditures for maintenance of the creche have been necessary, and, since the city owns the creche, now valued at $200, the tangible material it contributes is de minimis. Political divisiveness alone cannot serve to invalidate otherwise permissible conduct, and, in any event, apart from the instant litigation, there is no evidence of political friction or divisiveness over the creche in the 40-year history of the city's Christmas celebration. Pp. 465 U. S. 680 -685. (g) It would be ironic if the inclusion of the creche in the display, as part of a celebration of an event acknowledged in the Western World for 20 centuries, and in this country by the people, the Executive Branch, Page 465 U. S. 670 Congress, and the courts for 2 centuries, would so "taint" the exhibition as to render it violative of the Establishment Clause. To forbid the use of this one passive symbol while hymns and carols are sung and played in public places including schools, and while Congress and state legislatures open public sessions with prayers, would be an overreaction contrary to this Nation's history and this Court's holdings. Pp. 465 U. S. 685 -686. 691 F.2d 1029, reversed. BURGER, C.J., delivered the opinion of the Court, in which WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. O'CONNOR, J., filed a concurring opinion, post, p. 465 U. S. 687 . BRENNAN, J., filed a dissenting opinion, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined, post, p. 465 U. S. 694 . BLACKMUN, J., filed a dissenting opinion, in which STEVENS, J., joined, post, p. 465 U. S. 726 . CHIEF JUSTICE BURGER delivered the opinion of the Court. We granted certiorari to decide whether the Establishment Clause of the First Amendment prohibits a municipality Page 465 U. S. 671 from including a creche, or Nativity scene, in its annual Christmas display. I Each year, in cooperation with the downtown retail merchants' association, the city of Pawtucket, R.I., erects a Christmas display as part of its observance of the Christmas holiday season. The display is situated in a park owned by a nonprofit organization and located in the heart of the shopping district. The display is essentially like those to be found in hundreds of towns or cities across the Nation -- often on public grounds -- during the Christmas season. The Pawtucket display comprises many of the figures and decorations traditionally associated with Christmas, including, among other things, a Santa Claus house, reindeer pulling Santa's sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, a large banner that reads "SEASONS GREETINGS," and the creche at issue here. All components of this display are owned by the city. The creche, which has been included in the display for 40 or more years, consists of the traditional figures, including the Infant Jesus, Mary and Joseph, angels, shepherds, kings, and animals, all ranging in height from 5" to 5'. In 1973, when the present creche was acquired, it cost the city $1,365; it now is valued at $200. The erection and dismantling of the creche costs the city about $20 per year; nominal expenses are incurred in lighting the creche. No money has been expended on its maintenance for the past 10 years. Respondents, Pawtucket residents and individual members of the Rhode Island affiliate of the American Civil Liberties Union, and the affiliate itself, brought this action in the United States District Court for Rhode Island, challenging the city's inclusion of the creche in the annual display. The District Court held that the city's inclusion of the creche in the display violates the Establishment Clause, 525 F. Supp. 1150 , 1178 (1981), which is binding on the states through the Page 465 U. S. 672 Fourteenth Amendment. The District Court found that, by including the creche in the Christmas display, the city has "tried to endorse and promulgate religious beliefs," id. at 1173, and that "erection of the creche has the real and substantial effect of affiliating the City with the Christian beliefs that the creche represents." Id. at 1177. This "appearance of official sponsorship," it believed, "confers more than a remote and incidental benefit on Christianity." Id. at 1178. Last, although the court acknowledged the absence of administrative entanglement, it found that excessive entanglement has been fostered as a result of the political divisiveness of including the creche in the celebration. Id. at 1179-1180. The city was permanently enjoined from including the creche in the display. A divided panel of the Court of Appeals for the First Circuit affirmed. 691 F.2d 1029 (1982). We granted certiorari, 460 U.S. 1080 (1983), and we reverse. II A This Court has explained that the purpose of the Establishment and Free Exercise Clauses of the First Amendment is "to prevent, as far as possible, the intrusion of either [the church or the state] into the precincts of the other." Lemon v. Kurtzman, 403 U. S. 602 , 403 U. S. 614 (1971). At the same time, however, the Court has recognized that "total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable." Ibid. In every Establishment Clause case, we must reconcile the inescapable tension between the objective of preventing unnecessary intrusion of either the church or the state upon the other, and the reality that, as the Court has so often noted, total separation of the two is not possible. Page 465 U. S. 673 The Court has sometimes described the Religion Clauses as erecting a "wall" between church and state, see, e.g., Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 18 (1947). The concept of a "wall" of separation is a useful figure of speech probably deriving from views of Thomas Jefferson. [ Footnote 1 ] The metaphor has served as a reminder that the Establishment Clause forbids an established church or anything approaching it. But the metaphor itself is not a wholly accurate description of the practical aspects of the relationship that in fact exists between church and state. No significant segment of our society, and no institution within it, can exist in a vacuum or in total or absolute isolation from all the other parts, much less from government. "It has never been thought either possible or desirable to enforce a regime of total separation. . . ." Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756 , 413 U. S. 760 (1973). Nor does the Constitution require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any. See, e.g., Zorach v. Clauson, 343 U. S. 306 , 343 U. S. 314 , 343 U. S. 315 (1952); Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203 , 333 U. S. 211 (1948). Anything less would require the "callous indifference" we have said was never intended by the Establishment Clause. Zorach, supra, at 343 U. S. 314 . Indeed, we have observed, such hostility would bring us into "war with our national tradition as embodied in the First Amendment's guaranty of the free exercise of religion." McCollum, supra, at 333 U. S. 211 -212. B The Court's interpretation of the Establishment Clause has comported with what history reveals was the contemporaneous understanding of its guarantees. A significant example Page 465 U. S. 674 of the contemporaneous understanding of that Clause is found in the events of the first week of the First Session of the First Congress in 1789. In the very week that Congress approved the Establishment Clause as part of the Bill of Rights for submission to the states, it enacted legislation providing for paid Chaplains for the House and Senate. In Marsh v. Chambers, 463 U. S. 783 (1983), we noted that 17 Members of that First Congress had been Delegates to the Constitutional Convention where freedom of speech, press, and religion and antagonism toward an established church were subjects of frequent discussion. We saw no conflict with the Establishment Clause when Nebraska employed members of the clergy as official legislative Chaplains to give opening prayers at sessions of the state legislature. Id. at 463 U. S. 791 . The interpretation of the Establishment Clause by Congress in 1789 takes on special significance in light of the Court's emphasis that the First Congress "was a Congress whose constitutional decisions have always been regarded, as they should be regarded, as of the greatest weight in the interpretation of that fundamental instrument," Myers v. United States, 272 U. S. 52 , 272 U. S. 174 -175 (1926). It is clear that neither the 17 draftsmen of the Constitution who were Members of the First Congress, nor the Congress of 1789, saw any establishment problem in the employment of congressional Chaplains to offer daily prayers in the Congress, a practice that has continued for nearly two centuries. It would be difficult to identify a more striking example of the accommodation of religious belief intended by the Framers. C There is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789. Seldom in our opinions was this more affirmatively expressed than in Justice Douglas' opinion for the Court validating a program allowing release of Page 465 U. S. 675 public school students from classes to attend off-campus religious exercises. Rejecting a claim that the program violated the Establishment Clause, the Court asserted pointedly: "We are a religious people whose institutions presuppose a Supreme Being." Zorach v. Clauson, supra, at 343 U. S. 313 . See also Abington School District v. Schempp, 374 U. S. 203 , 374 U. S. 213 (1963). Our history is replete with official references to the value and invocation of Divine guidance in deliberations and pronouncements of the Founding Fathers and contemporary leaders. Beginning in the early colonial period long before Independence, a day of Thanksgiving was celebrated as a religious holiday to give thanks for the bounties of Nature as gifts from God. President Washington and his successors proclaimed Thanksgiving, with all its religious overtones, a day of national celebration [ Footnote 2 ] and Congress made it a National Holiday more than a century ago. Ch. 167, 16 Stat. 168. That holiday has not lost its theme of expressing thanks for Divine aid [ Footnote 3 ] any more than has Christmas lost its religious significance. Page 465 U. S. 676 Executive Orders and other official announcements of Presidents and of the Congress have proclaimed both Christmas and Thanksgiving National Holidays in religious terms. And, by Acts of Congress, it has long been the practice that federal employees are released from duties on these National Holidays, while being paid from the same public revenues that provide the compensation of the Chaplains of the Senate and the House and the military services. See J.Res. 5, 23 Stat. 516. Thus, it is clear that Government has long recognized -- indeed it has subsidized -- holidays with religious significance. Other examples of reference to our religious heritage are found in the statutorily prescribed national motto "In God We Trust," 36 U.S.C. § 186, which Congress and the President mandated for our currency, see 31 U.S.C. § 5112(d)(1) (1982 ed.), and in the language "One nation under God," as part of the Pledge of Allegiance to the American flag. That pledge is recited by many thousands of public school children -- and adults every year. Art galleries supported by public revenues display religious paintings of the 15th and 16th centuries, predominantly inspired by one religious faith. The National Gallery in Page 465 U. S. 677 Washington, maintained with Government support, for example, has long exhibited masterpieces with religious messages, notably the Last Supper, and paintings depicting the Birth of Christ, the Crucifixion, and the Resurrection, among many others with explicit Christian themes and messages. [ Footnote 4 ] The very chamber in which oral arguments on this case were heard is decorated with a notable and permanent -- not seasonal -- symbol of religion: Moses with the Ten Commandments. Congress has long provided chapels in the Capitol for religious worship and meditation. There are countless other illustrations of the Government's acknowledgment of our religious heritage and governmental sponsorship of graphic manifestations of that heritage. Congress has directed the President to proclaim a National Day of Prayer each year "on which [day] the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals." 36 U.S.C. § 169h. Our Presidents have repeatedly issued such Proclamations. [ Footnote 5 ] Presidential Proclamations and messages have also issued to commemorate Jewish Heritage Week, Presidential Proclamation No. 4844, 3 CFR 30 (1982), and the Jewish High Holy Days, 17 Weekly Comp. of Pres.Doc. 1058 (1981). One cannot look at even this brief resume without finding that our history is pervaded by expressions of religious beliefs such as are found in Zorach. Equally pervasive is the evidence of accommodation of all faiths and all forms of religious expression, and hostility toward none. Through this accommodation, Page 465 U. S. 678 as Justice Douglas observed, governmental action has "follow[ed] the best of our traditions" and "respect[ed] the religious nature of our people." 343 U.S. at 3 343 U. S. 14 . III This history may help explain why the Court consistently has declined to take a rigid, absolutist view of the Establishment Clause. We have refused "to construe the Religion Clauses with a literalness that would undermine the ultimate constitutional objective as illuminated by history. " Walz v. Tax Comm'n, 397 U. S. 664 , 397 U. S. 671 (1970) (emphasis added). In our modern, complex society, whose traditions and constitutional underpinnings rest on and encourage diversity and pluralism in all areas, an absolutist approach in applying the Establishment Clause is simplistic, and has been uniformly rejected by the Court. Rather than mechanically invalidating all governmental conduct or statutes that confer benefits or give special recognition to religion in general or to one faith -- as an absolutist approach would dictate -- the Court has scrutinized challenged legislation or official conduct to determine whether, in reality, it establishes a religion or religious faith, or tends to do so. See Walz, supra, at 397 U. S. 669 . Joseph Story wrote a century and a half ago: "The real object of the [First] Amendment was . . . to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government." 3 J. Story, Commentaries on the Constitution of the United States 728 (1833). In each case, the inquiry calls for line-drawing; no fixed, per se rule can be framed. The Establishment Clause, like the Due Process Clauses, is not a precise, detailed provision in a legal code capable of ready application. The purpose of the Establishment Clause "was to state an objective, not to write a statute." Walz, supra, at 397 U. S. 668 . The line between permissible relationships and those barred by the Clause can no Page 465 U. S. 679 more be straight and unwavering than due process can be defined in a single stroke or phrase or test. The Clause erects a "blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship." Lemon, 403 U.S. at 403 U. S. 614 . In the line-drawing process, we have often found it useful to inquire whether the challenged law or conduct has a secular purpose, whether its principal or primary effect is to advance or inhibit religion, and whether it creates an excessive entanglement of government with religion. Lemon, supra. But we have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area. See, e.g., Tilton v. Richardson, 403 U. S. 672 , 403 U. S. 677 -678 (1971); Nyquist, 413 U.S. at 413 U. S. 773 . In two cases, the Court did not even apply the Lemon "test." We did not, for example, consider that analysis relevant in Marsh v. Chambers, 463 U. S. 783 (1983). Nor did we find Lemon useful in Larson v. Valente, 456 U. S. 228 (1982), where there was substantial evidence of overt discrimination against a particular church. In this case, the focus of our inquiry must be on the creche in the context of the Christmas season. See, e.g., Stone v. Graham, 449 U. S. 39 (1980) (per curiam); Abington School District v. Schempp, 374 U. S. 203 (1963). In Stone, for example, we invalidated a state statute requiring the posting of a copy of the Ten Commandments on public classroom walls. But the Court carefully pointed out that the Commandments were posted purely as a religious admonition, not "integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like." 449 U.S. at 449 U. S. 42 . Similarly, in Abington, although the Court struck down the practices in two States requiring daily Bible readings in public schools, it specifically noted that nothing in the Court's holding was intended to "indicat[e] that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently Page 465 U. S. 680 with the First Amendment." 374 U.S. at 374 U. S. 225 . Focus exclusively on the religious component of any activity would inevitably lead to its invalidation under the Establishment Clause. The Court has invalidated legislation or governmental action on the ground that a secular purpose was lacking, but only when it has concluded there was no question that the statute or activity was motivated wholly by religious considerations. See, e.g., Stone v. Graham, supra, at 449 U. S. 41 ; Epperson v. Arkansas, 393 U. S. 97 , 393 U. S. 107 -109 (1968); Abington School District v. Schempp, supra, at 374 U. S. 223 -224; Engel v. Vitale, 370 U. S. 421 , 370 U. S. 424 -425 (1962). Even where the benefits to religion were substantial, as in Everson v. Board of Education, 330 U. S. 1 (1947); Board of Education v. Allen, 392 U. S. 236 (1968); Walz, supra; and Tilton, supra, we saw a secular purpose and no conflict with the Establishment Clause. Cf. Larkin v. Grendel's Den, Inc., 459 U. S. 116 (1982). The District Court inferred from the religious nature of the creche that the city has no secular purpose for the display. In so doing, it rejected the city's claim that its reasons for including the creche are essentially the same as its reasons for sponsoring the display as a whole. The District Court plainly erred by focusing almost exclusively on the creche. When viewed in the proper context of the Christmas Holiday season, it is apparent that, on this record, there is insufficient evidence to establish that the inclusion of the creche is a purposeful or surreptitious effort to express some kind of subtle governmental advocacy of a particular religious message. In a pluralistic society, a variety of motives and purposes are implicated. The city, like the Congresses and Presidents, however, has principally taken note of a significant historical religious event long celebrated in the Western World. The creche in the display depicts the historical origins of this traditional event long recognized as a National Holiday. See Allen v. Hickel, 138 U.S.App.D.C. 31, 424 F.2d 944 Page 465 U. S. 681 (1970); Citizens Concerned for Separation of Church and State v. City and County of Denver, 526 F. Supp. 1310 (Colo.1981). The narrow question is whether there is a secular purpose for Pawtucket's display of the creche. The display is sponsored by the city to celebrate the Holiday and to depict the origins of that Holiday. These are legitimate secular purposes. [ Footnote 6 ] The District Court's inference, drawn from the religious nature of the creche, that the city has no secular purpose was, on this record, clearly erroneous. [ Footnote 7 ] The District Court found that the primary effect of including the creche is to confer a substantial and impermissible benefit on religion in general, and on the Christian faith in particular. Comparisons of the relative benefits to religion of different forms of governmental support are elusive and difficult to make. But to conclude that the primary effect of including the creche is to advance religion in violation of the Establishment Clause would require that we view it as more beneficial to and more an endorsement of religion, for example, than expenditure of large sums of public money for textbooks supplied throughout the country to students attending church-sponsored schools, Board of Education v. Allen, supra; [ Footnote 8 ] expenditure of public funds for transportation of Page 465 U. S. 682 students to church-sponsored schools, Everson v. Board of Education, supra; [ Footnote 9 ] federal grants for college buildings of church-sponsored institutions of higher education combining secular and religious education, Tilton v. Richardson, 403 U. S. 672 (1971); [ Footnote 10 ] noncategorical grants to church-sponsored colleges and universities, Roemer v. Board of Public Works, 426 U. S. 736 (1976); and the tax exemptions for church properties sanctioned in Walz v. Tax Comm'n, 397 U. S. 664 (1970). It would also require that we view it as more of an endorsement of religion than the Sunday Closing Laws upheld in McGowan v. Maryland, 366 U. S. 420 (1961); [ Footnote 11 ] the release time program for religious training in Zorach v. Clauson, 343 U. S. 306 (1952); and the legislative prayers upheld in Marsh v. Chambers, 463 U. S. 783 (1983). We are unable to discern a greater aid to religion deriving from inclusion of the creche than from these benefits and endorsements previously held not violative of the Establishment Clause. What was said about the legislative prayers in Marsh, supra, at 463 U. S. 792 , and implied about the Sunday Closing Laws in McGowan is true of the city's inclusion of the creche: its "reason or effect merely happens to coincide or harmonize with the tenets of some . . . religions." See McGowan, supra, at 366 U. S. 442 . This case differs significantly from Larkin v. Grendel's Den, Inc., supra, and McCollum, where religion was substantially Page 465 U. S. 683 aided. In Grendel's Den, important governmental power -- a licensing veto authority -- had been vested in churches. In McCollum, government had made religious instruction available in public school classrooms; the State had not only used the public school buildings for the teaching of religion, it had "afford[ed] sectarian groups an invaluable aid . . . [by] provid[ing] pupils for their religious classes through use of the State's compulsory public school machinery." 333 U.S. at 333 U. S. 212 . No comparable benefit to religion is discernible here. The dissent asserts some observers may perceive that the city has aligned itself with the Christian faith by including a Christian symbol in its display, and that this serves to advance religion. We can assume, arguendo, that the display advances religion in a sense; but our precedents plainly contemplate that, on occasion, some advancement of religion will result from governmental action. The Court has made it abundantly clear, however, that "not every law that confers an indirect,' `remote,' or `incidental' benefit upon [religion] is, for that reason alone, constitutionally invalid." Nyquist, 413 U.S. at 771; see also Widmar v. Vincent, 454 U. S. 263 , 454 U. S. 273 (1981). Here, whatever benefit there is to one faith or religion or to all religions, is indirect, remote, and incidental; display of the creche is no more an advancement or endorsement of religion than the Congressional and Executive recognition of the origins of the Holiday itself as "Christ's Mass," or the exhibition of literally hundreds of religious paintings in governmentally supported museums. The District Court found that there had been no administrative entanglement between religion and state resulting from the city's ownership and use of the creche. 525 F. Supp. at 1179. But it went on to hold that some political divisiveness was engendered by this litigation. Coupled with its finding of an impermissible sectarian purpose and effect, this persuaded the court that there was "excessive entanglement." The Court of Appeals expressly declined to Page 465 U. S. 684 accept the District Court's finding that inclusion of the creche has caused political divisiveness along religious lines, and noted that this Court has never held that political divisiveness alone was sufficient to invalidate government conduct. Entanglement is a question of kind and degree. In this case, however, there is no reason to disturb the District Court's finding on the absence of administrative entanglement. There is no evidence of contact with church authorities concerning the content or design of the exhibit prior to or since Pawtucket's purchase of the creche. No expenditures for maintenance of the creche have been necessary; and since the city owns the creche, now valued at $200, the tangible material it contributes is de minimis. In many respects, the display requires far less ongoing, day-to-day interaction between church and state than religious paintings in public galleries. There is nothing here, of course, like the "comprehensive, discriminating, and continuing state surveillance" or the "enduring entanglement" present in Lemon, 403 U.S. at 403 U. S. 619 -622. The Court of Appeals correctly observed that this Court has not held that political divisiveness alone can serve to invalidate otherwise permissible conduct. And we decline to so hold today. This case does not involve a direct subsidy to church-sponsored schools or colleges, or other religious institutions, and hence no inquiry into potential political divisiveness is even called for, Mueller v. Allen, 463 U. S. 388 , 463 U. S. 403 -404, n. 11 (1983). In any event, apart from this litigation, there is no evidence of political friction or divisiveness over the creche in the 40-year history of Pawtucket's Christmas celebration. The District Court stated that the inclusion of the creche for the 40 years has been "marked by no apparent dissension," and that the display has had a "calm history." 525 F. Supp. at 1179. Curiously, it went on to hold that the political divisiveness engendered by this lawsuit was evidence of excessive entanglement. A litigant cannot, by the very act of commencing a lawsuit, however, create the appearance Page 465 U. S. 685 of divisiveness and then exploit it as evidence of entanglement. We are satisfied that the city has a secular purpose for including the creche, that the city has not impermissibly advanced religion, and that including the creche does not create excessive entanglement between religion and government. IV JUSTICE BRENNAN describes the creche as a "re-creation of an event that lies at the heart of Christian faith," post at 465 U. S. 711 . The creche, like a painting, is passive; admittedly it is a reminder of the origins of Christmas. Even the traditional, purely secular displays extant at Christmas, with or without a creche, would inevitably recall the religious nature of the Holiday. The display engenders a friendly community spirit of goodwill in keeping with the season. The creche may well have special meaning to those whose faith includes the celebration of religious Masses, but none who sense the origins of the Christmas celebration would fail to be aware of its religious implications. That the display brings people into the central city, and serves commercial interests and benefits merchants and their employees, does not, as the dissent points out, determine the character of the display. That a prayer invoking Divine guidance in Congress is preceded and followed by debate and partisan conflict over taxes, budgets, national defense, and myriad mundane subjects, for example, has never been thought to demean or taint the sacredness of the invocation. [ Footnote 12 ] Of course, the creche is identified with one religious faith, but no more so than the examples we have set out from prior cases in which we found no conflict with the Establishment Page 465 U. S. 686 Clause. See, e.g., McGowan v. Maryland, 366 U. S. 420 (1961); Marsh v. Chambers, 463 U. S. 783 (1983). It would be ironic, however, if the inclusion of a single symbol of a particular historic religious event, as part of a celebration acknowledged in the Western World for 20 centuries, and in this country by the people, by the Executive Branch, by the Congress, and the courts for 2 centuries, would so "taint" the city's exhibit as to render it violative of the Establishment Clause. To forbid the use of this one passive symbol -- the creche -- at the very time people are taking note of the season with Christmas hymns and carols in public schools and other public places, and while the Congress and legislatures open sessions with prayers by paid chaplains, would be a stilted overreaction contrary to our history and to our holdings. If the presence of the creche in this display violates the Establishment Clause, a host of other forms of taking official note of Christmas, and of our religious heritage, are equally offensive to the Constitution. The Court has acknowledged that the "fears and political problems" that gave rise to the Religion Clauses in the 18th century are of far less concern today. Everson, 330 U.S. at 330 U. S. 8 . We are unable to perceive the Archbishop of Canterbury, the Bishop of Rome, or other powerful religious leaders behind every public acknowledgment of the religious heritage long officially recognized by the three constitutional branches of government. Any notion that these symbols pose a real danger of establishment of a state church is farfetched indeed. V That this Court has been alert to the constitutionally expressed opposition to the establishment of religion is shown in numerous holdings striking down statutes or programs as violative of the Establishment Clause. See, e.g., Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203 (1948); Epperson v. Arkansas, 393 U. S. 97 (1968); Lemon v. Kurtzman, supra; Levitt v. Committee for Public Education & Religious Liberty, 413 U. S. 472 (1973); Committee Page 465 U. S. 687 for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756 (1973); Meek v. Pittenger, 421 U. S. 349 (1975); and Stone v. Graham, 449 U. S. 39 (1980). The most recent example of this careful scrutiny is found in the case invalidating a municipal ordinance granting to a church a virtual veto power over the licensing of liquor establishments near the church. Larkin v. Grendel's Den, Inc., 459 U. S. 116 (1982). Taken together, these cases abundantly demonstrate the Court's concern to protect the genuine objectives of the Establishment Clause. It is far too late in the day to impose a crabbed reading of the Clause on the country. VI We hold that, notwithstanding the religious significance of the creche, the city of Pawtucket has not violated the Establishment Clause of the First Amendment. [ Footnote 13 ] Accordingly, the judgment of the Court of Appeals is reversed. It is so ordered. [ Footnote 1 ] See Reynolds v. United States, 98 U. S. 145 , 98 U. S. 164 (1879) (quoting reply from Thomas Jefferson to an address by a committee of the Danbury Baptist Association (January 1, 1802)). [ Footnote 2 ] The day after the First Amendment was proposed, Congress urged President Washington to proclaim "a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favours of Almighty God." See A. Stokes & L. Pfeffer, Church and State in the United States 87 (rev. 1st ed.1964). President Washington proclaimed November 26, 1789, a day of thanksgiving to "offe[r] our prayers and supplications to the Great Lord and Ruler of Nations, and beseech Him to pardon our national and other transgressions. . . ." J. Richardson, A Compilation of the Messages and Papers of the Presidents 1789-1897, p. 64 (1899). Presidents Adams and Madison also issued Thanksgiving Proclamations, as have almost all our Presidents, see 3 A. Stokes, Church and State in the United States 180-193 (1950), through the incumbent, see Presidential Proclamation No. 4883, 3 CFR 68 (1982). [ Footnote 3 ] An example is found in President Roosevelt's 1944 Proclamation of Thanksgiving: "[I]t is fitting that we give thanks with special fervor to our Heavenly Father for the mercies we have received individually and as a nation and for the blessings He has restored, through the victories of our arms and those of our Allies, to His children in other lands." " * * * *" "To the end that we may bear more earnest witness to our gratitude to Almighty God, I suggest a nationwide reading of the Holy Scriptures during the period from Thanksgiving Day to Christmas." Presidential Proclamation No. 2629, 58 Stat. 1160. President Reagan and his immediate predecessors have issued similar Proclamations. See, e.g., Presidential Proclamation No. 5098, 3 CFR 94 (1984); Presidential Proclamation No. 4803, 3 CFR 117 (1981); Presidential Proclamation No. 4333, 3 CFR 419 (1971-1975 Comp.); Presidential Proclamation No. 4093, 3 CFR 89 (1971-1975 Comp.); Presidential Proclamation No. 3752, 3 CFR 75 (1966-1970 Comp.); Presidential Proclamation No. 3560, 3 CFR 312 (1959-1963 Comp.). [ Footnote 4 ] The National Gallery regularly exhibits more than 200 similar religious paintings. [ Footnote 5 ] See, e.g., Presidential Proclamation No. 5017, 3 CFR 8 (1984); Presidential Proclamation No. 4795, 3 CFR 109 (1981); Presidential Proclamation No. 4379, 3 CFR 486 (1971-1975 Comp.); Presidential Proclamation No. 4087, 3 CFR 81 (1971-1975 Comp.); Presidential Proclamation No. 3812, 3 CFR 155 (1966-1970 Comp.); Presidential Proclamation No. 3501, 3 CFR 228 (1959-1963 Comp.). [ Footnote 6 ] The city contends that the purposes of the display are "exclusively secular." We hold only that Pawtucket has a secular purpose for its display, which is all that Lemon v. Kurtzman, 403 U. S. 602 (1971), requires. Were the test that the government must have "exclusively secular" objectives, much of the conduct and legislation this Court has approved in the past would have been invalidated. [ Footnote 7 ] JUSTICE BRENNAN argues that the city's objectives could have been achieved without including the creche in the display, post at 465 U. S. 699 . True or not, that is irrelevant. The question is whether the display of the creche violates the Establishment Clause. [ Footnote 8 ] The Allen Court noted that "[p]erhaps free books make it more likely that some children choose to attend a sectarian school. . . ." 392 U.S. at 392 U. S. 244 . [ Footnote 9 ] In Everson, the Court acknowledged that "[i]t is undoubtedly true that children are helped to get to church schools," and that "some of the children might not be sent to the church schools if the parents were compelled to pay their children's bus fares out of their own pockets. . . ." 330 U.S. at 330 U. S. 17 . [ Footnote 10 ] We recognized in Tilton that the construction grants "surely aid[ed]" the institutions that received them. 403 U.S. at 403 U. S. 679 . [ Footnote 11 ] "In McGowan v. Maryland . . . , Sunday Closing Laws were sustained even though one of their undeniable effects was to render it somewhat more likely that citizens would respect religious institutions and even attend religious services." Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756 , 413 U. S. 775 -776 (1973). [ Footnote 12 ] JUSTICE BRENNAN states that "by focusing on the holiday context' in which the nativity scene appear[s]," the Court "seeks to explain away the clear religious import of the creche," post, at 465 U. S. 705 , and that it has equated the creche with a Santa's house or reindeer, post, at 465 U. S. 711 -712. Of course, this is not true. [ Footnote 13 ] The Court of Appeals viewed Larson v. Valente, 456 U. S. 228 (1982), as commanding a "strict scrutiny" due to the city's ownership of the $200 creche which it considers as a discrimination between Christian and other religions. It is correct that we require strict scrutiny of a statute or practice patently discriminatory on its face. But we are unable to see this display, or any part of it, as explicitly discriminatory in the sense contemplated in Larson. JUSTICE O'CONNOR, concurring. I concur in the opinion of the Court. I write separately to suggest a clarification of our Establishment Clause doctrine. The suggested approach leads to the same result in this case as that taken by the Court, and the Court's opinion, as I read it, is consistent with my analysis. I The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive Page 465 U. S. 688 entanglement with religious institutions, which may interfere with the independence of the institutions, give the institutions access to government or governmental powers not fully shared by nonadherents of the religion, and foster the creation of political constituencies defined along religious lines. E.g., Larkin v. Grendel's Den, Inc., 459 U. S. 116 (1982). The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message. See generally Abington School District v. Schempp, 374 U. S. 203 (1963). Our prior cases have used the three-part test articulated in Lemon v. Kurtzman, 403 U. S. 602 , 403 U. S. 612 -613 (1971), as a guide to detecting these two forms of unconstitutional government action. * It has never been entirely clear, however, Page 465 U. S. 689 how the three parts of the test relate to the principles enshrined in the Establishment Clause. Focusing on institutional entanglement and on endorsement or disapproval of religion clarifies the Lemon test as an analytical device. II In this case, as even the District Court found, there is no institutional entanglement. Nevertheless, the respondents contend that the political divisiveness caused by Pawtucket's display of its creche violates the excessive entanglement prong of the Lemon test. The Court's opinion follows the suggestion in Mueller v. Allen, 463 U. S. 388 , 463 U. S. 403 -404, n. 11 (1983), and concludes that "no inquiry into potential political divisiveness is even called for" in this case. Ante at 465 U. S. 684 . In my view, political divisiveness along religious lines should not be an independent test of constitutionality. Although several of our cases have discussed political divisiveness under the entanglement prong of Lemon, see, e.g., Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756 , 413 U. S. 796 (1973); Lemon v. Kurtzman, supra, at 403 U. S. 623 , we have never relied on divisiveness as an independent ground for holding a government practice unconstitutional. Guessing the potential for political divisiveness inherent in a government practice is simply too speculative an enterprise, in part because the existence of the litigation, as this case illustrates, itself may affect the political response to the government practice. Political divisiveness is admittedly an evil addressed by the Establishment Clause. Its existence may be evidence that institutional entanglement is excessive or that a government practice is perceived as an endorsement of religion. But the constitutional inquiry should focus ultimately on the character of the government activity that might cause such divisiveness, not on the divisiveness itself. The entanglement prong of the Lemon test is properly limited to institutional entanglement. Page 465 U. S. 690 III The central issue in this case is whether Pawtucket has endorsed Christianity by its display of the creche. To answer that question, we must examine both what Pawtucket intended to communicate in displaying the creche and what message the city's display actually conveyed. The purpose and effect prongs of the Lemon test represent these two aspects of the meaning of the city's action. The meaning of a statement to its audience depends both on the intention of the speaker and on the "objective" meaning of the statement in the community. Some listeners need not rely solely on the words themselves in discerning the speaker's intent: they can judge the intent by, for example, examining the context of the statement or asking questions of the speaker. Other listeners do not have or will not seek access to such evidence of intent. They will rely instead on the words themselves; for them, the message actually conveyed may be something not actually intended. If the audience is large, as it always is when government "speaks" by word or deed, some portion of the audience will inevitably receive a message determined by the "objective" content of the statement, and some portion will inevitably receive the intended message. Examination of both the subjective and the objective components of the message communicated by a government action is therefore necessary to determine whether the action carries a forbidden meaning. The purpose prong of the Lemon test asks whether government's actual purpose is to endorse or disapprove of religion. The effect prong asks whether, irrespective of government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval. An affirmative answer to either question should render the challenged practice invalid. A The purpose prong of the Lemon test requires that a government activity have a secular purpose. That requirement Page 465 U. S. 691 is not satisfied, however, by the mere existence of some secular purpose, however dominated by religious purposes. In Stone v. Graham, 449 U. S. 39 (1980), for example, the Court held that posting copies of the Ten Commandments in schools violated the purpose prong of the Lemon test, yet the State plainly had some secular objectives, such as instilling most of the values of the Ten Commandments and illustrating their connection to our legal system, but see 449 U.S. at 449 U. S. 41 . See also Abington School District v. Schempp, 374 U.S. at 374 U. S. 223 -224. The proper inquiry under the purpose prong of Lemon, I submit, is whether the government intends to convey a message of endorsement or disapproval of religion. Applying that formulation to this case, I would find that Pawtucket did not intend to convey any message of endorsement of Christianity or disapproval of non-Christian religions. The evident purpose of including the creche in the larger display was not promotion of the religious content of the creche, but celebration of the public holiday through its traditional symbols. Celebration of public holidays, which have cultural significance even if they also have religious aspects, is a legitimate secular purpose. The District Court's finding that the display of the creche had no secular purpose was based on erroneous reasoning. The District Court believed that it should ascertain the city's purpose in displaying the creche separate and apart from the general purpose in setting up the display. It also found that, because the tradition-celebrating purpose was suspect in the court's eyes, the city's use of an unarguably religious symbol "raises an inference" of intent to endorse. When viewed in light of correct legal principles, the District Court's finding of unlawful purpose was clearly erroneous. B Focusing on the evil of government endorsement or disapproval of religion makes clear that the effect prong of the Lemon test is properly interpreted not to require invalidation of a government practice merely because it in fact causes, Page 465 U. S. 692 even as a primary effect, advancement or inhibition of religion. The laws upheld in Walz v. Tax Comm'n, 397 U. S. 664 (1970) (tax exemption for religious, educational, and charitable organizations), in McGowan v. Maryland, 366 U. S. 420 (1961) (mandatory Sunday closing law), and in Zorach v. Clauson, 343 U. S. 306 (1952) (released time from school for off-campus religious instruction), had such effects, but they did not violate the Establishment Clause. What is crucial is that a government practice not have the effect of communicating a message of government endorsement or disapproval of religion. It is only practices having that effect, whether intentionally or unintentionally, that make religion relevant, in reality or public perception, to status in the political community. Pawtucket's display of its creche, I believe, does not communicate a message that the government intends to endorse the Christian beliefs represented by the creche. Although the religious and indeed sectarian significance of the creche, as the District Court found, is not neutralized by the setting, the overall holiday setting changes what viewers may fairly understand to be the purpose of the display -- as a typical museum setting, though not neutralizing the religious content of a religious painting, negates any message of endorsement of that content. The display celebrates a public holiday, and no one contends that declaration of that holiday is understood to be an endorsement of religion. The holiday itself has very strong secular components and traditions. Government celebration of the holiday, which is extremely common, generally is not understood to endorse the religious content of the holiday, just as government celebration of Thanksgiving is not so understood. The creche is a traditional symbol of the holiday that is very commonly displayed along with purely secular symbols, as it was in Pawtucket. These features combine to make the government's display of the creche in this particular physical setting no more an endorsement of religion than such governmental "acknowledgments" Page 465 U. S. 693 of religion as legislative prayers of the type approved in Marsh v. Chambers, 463 U. S. 783 (1983), government declaration of Thanksgiving as a public holiday, printing of "In God We Trust" on coins, and opening court sessions with "God save the United States and this honorable court." Those government acknowledgments of religion serve, in the only ways reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society. For that reason, and because of their history and ubiquity, those practices are not understood as conveying government approval of particular religious beliefs. The display of the creche likewise serves a secular purpose -- celebration of a public holiday with traditional symbols. It cannot fairly be understood to convey a message of government endorsement of religion. It is significant in this regard that the creche display apparently caused no political divisiveness prior to the filing of this lawsuit, although Pawtucket had incorporated the creche in its annual Christmas display for some years. For these reasons, I conclude that Pawtucket's display of the creche does not have the effect of communicating endorsement of Christianity. The District Court's subsidiary findings on the effect test are consistent with this conclusion. The court found as facts that the creche has a religious content, that it would not be seen as an insignificant part of the display, that its religious content is not neutralized by the setting, that the display is celebratory and not instructional, and that the city did not seek to counteract any possible religious message. These findings do not imply that the creche communicates government approval of Christianity. The District Court also found, however, that the government was understood to place its imprimatur on the religious content of the creche. But whether a government activity communicates endorsement of religion is not a question of simple historical fact. Page 465 U. S. 694 Although evidentiary submissions may help answer it, the question is, like the question whether racial or sex-based classifications communicate an invidious message, in large part a legal question to be answered on the basis of judicial interpretation of social facts. The District Court's conclusion concerning the effect of Pawtucket's display of its creche was in error as a matter of law. IV Every government practice must be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion. In making that determination, courts must keep in mind both the fundamental place held by the Establishment Clause in our constitutional scheme and the myriad, subtle ways in which Establishment Clause values can be eroded. Government practices that purport to celebrate or acknowledge events with religious significance must be subjected to careful judicial scrutiny. The city of Pawtucket is alleged to have violated the Establishment Clause by endorsing the Christian beliefs represented by the creche included in its Christmas display. Giving the challenged practice the careful scrutiny it deserves, I cannot say that the particular creche display at issue in this case was intended to endorse or had the effect of endorsing Christianity. I agree with the Court that the judgment below must be reversed. * The Court wrote in Lemon v. Kurtzman that a statute must pass three tests to withstand Establishment Clause challenge. "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster 'an excessive government entanglement with religion.'" 403 U.S. at 403 U. S. 612 -613 (citations omitted). Though phrased as a uniformly applicable test for constitutionality, this three-part test "provides no more than [a] helpful signpos[t]' in dealing with Establishment Clause challenges." Mueller v. Allen, 463 U. S. 388 , 463 U. S. 394 (1983) (quoting Hunt v. McNair, 413 U. S. 734 , 413 U. S. 741 (1973)). Moreover, the Court has held that a statute or practice that plainly embodies an intentional discrimination among religions must be closely fitted to a compelling state purpose in order to survive constitutional challenge. See Larson v. Valente, 456 U. S. 228 (1982). As the Court's opinion observes, ante at 465 U. S. 687 , n. 13, this case does not involve such discrimination. The Larson standard, I believe, may be assimilated to the Lemon test in the clarified version I propose. Plain intentional discrimination should give rise to a presumption, which may be overcome by a showing of compelling purpose and close fit, that the challenged government conduct constitutes an endorsement of the favored religion or a disapproval of the disfavored. JUSTICE BRENNAN, with whom JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS join, dissenting. The principles announced in the compact phrases of the Religion Clauses have, as the Court today reminds us, ante at 465 U. S. 678 -679, proved difficult to apply. Faced with that uncertainty, the Court properly looks for guidance to the settled test announced in Lemon v. Kurtzman, 403 U. S. 602 (1971), for assessing whether a challenged governmental practice involves an impermissible step toward the establishment of religion. Ante at 465 U. S. 679 . Applying that test to this case, the Page 465 U. S. 695 Court reaches an essentially narrow result which turns largely upon the particular holiday context in which the city of Pawtucket's nativity scene appeared. The Court's decision implicitly leaves open questions concerning the constitutionality of the public display on public property of a creche standing alone, or the public display of other distinctively religious symbols such as a cross. [ Footnote 2/1 ] Despite the narrow contours of the Court's opinion, our precedents, in my view, compel the holding that Pawtucket's inclusion of a life-sized display depicting the biblical description of the birth of Christ as part of its annual Christmas celebration is unconstitutional. Nothing in the history of such practices or the setting in which the city's creche is presented obscures or diminishes the plain fact that Pawtucket's action amounts to an impermissible governmental endorsement of a particular faith. I Last Term, I expressed the hope that the Court's decision in Marsh v. Chambers, 463 U. S. 783 (1983), would prove to be only a single, aberrant departure from our settled method Page 465 U. S. 696 of analyzing Establishment Clause cases. Id. at 463 U. S. 796 (BRENNAN, J., dissenting). That the Court today returns to the settled analysis of our prior cases gratifies that hope. At the same time, the Court's less-than-vigorous application of the Lemon test suggests that its commitment to those standards may only be superficial. [ Footnote 2/2 ] After reviewing the Court's opinion, I am convinced that this case appears hard not because the principles of decision are obscure, but because the Christmas holiday seems so familiar and agreeable. Although the Page 465 U. S. 697 Court's reluctance to disturb a community's chosen method of celebrating such an agreeable holiday is understandable, that cannot justify the Court's departure from controlling precedent. In my view, Pawtucket's maintenance and display at public expense of a symbol as distinctively sectarian as a creche simply cannot be squared with our prior cases. And it is plainly contrary to the purposes and values of the Establishment Clause to pretend, as the Court does, that the otherwise secular setting of Pawtucket's nativity scene dilutes in some fashion the creche's singular religiosity, or that the city's annual display reflects nothing more than an "acknowledgment" of our shared national heritage. Neither the character of the Christmas holiday itself nor our heritage of religious expression supports this result. Indeed, our remarkable and precious religious diversity as a Nation, see Torcaso v. Watkins, 367 U. S. 488 , 367 U. S. 495 (1961); Abington School Dist. v. Schempp, 374 U. S. 203 , 374 U. S. 240 -241 (1963) (BRENNAN, J., concurring), which the Establishment Clause seeks to protect, runs directly counter to today's decision. A As we have sought to meet new problems arising under the Establishment Clause, our decisions, with few exceptions, have demanded that a challenged governmental practice satisfy the following criteria: "First, the [practice] must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, [it] must not foster 'an excessive government entanglement with religion.'" Lemon v. Kurtzman, 403 U.S. at 465 U. S. 612 -613 (citations omitted). [ Footnote 2/3 ] Page 465 U. S. 698 This well-defined three-part test expresses the essential concerns animating the Establishment Clause. Thus, the test is designed to ensure that the organs of government remain strictly separate and apart from religious affairs, for "a union of government and religion tends to destroy government and degrade religion." Engel v. Vitale, 370 U. S. 421 , 370 U. S. 431 (1962). And it seeks to guarantee that government maintains a position of neutrality with respect to religion and neither advances nor inhibits the promulgation and practice of religious beliefs. Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 15 (1947) ("Neither [a State nor the Federal Government] can pass laws which aid one religion, aid all religions, or prefer one religion over another"); Epperson v. Arkansas, 393 U. S. 97 , 393 U. S. 103 -104 (1968); Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756 , 413 U. S. 792 -793 (1973). In this regard, we must be alert in our examination of any challenged practice not only for an official establishment of religion, but also for those other evils at which the Clause was aimed -- " sponsorship, financial support, and active involvement of the sovereign in religious activity.'" Committee for Public Education & Religious Liberty v. Nyquist, supra, at 413 U. S. 772 (quoting Walz v. Tax Comm'n, 397 U. S. 664 , 397 U. S. 668 (1970)). Applying the three-part test to Pawtucket's creche, I am persuaded that the city's inclusion of the creche in its Christmas display simply does not reflect a "clearly secular . . . purpose." Nyquist, supra, at 413 U. S. 773 . Unlike the typical case in which the record reveals some contemporaneous expression of a clear purpose to advance religion, see, e.g., Epperson v. Arkansas, supra, at 393 U. S. 107 -109; Engel v. Vitale, supra, at 370 U. S. 423 , or, conversely, a clear secular purpose, see, e.g., Lemon v. Kurtzman, supra, at 403 U. S. 613 ; Wolman v. Walter, Page 465 U. S. 699 433 U. S. 229 , 433 U. S. 236 (1977), here we have no explicit statement of purpose by Pawtucket's municipal government accompanying its decision to purchase, display, and maintain the creche. Governmental purpose may nevertheless be inferred. For instance, in Stone v. Graham, 449 U. S. 39 , 449 U. S. 41 (1980) (per curiam), this Court found, despite the State's avowed purpose of reminding schoolchildren of the secular application of the commands of the Decalogue, that the "preeminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature." In the present case, the city claims that its purposes were exclusively secular. Pawtucket sought, according to this view, only to participate in the celebration of a national holiday and to attract people to the downtown area in order to promote pre-Christmas retail sales and to help engender the spirit of goodwill and neighborliness commonly associated with the Christmas season. Brief for Petitioners 29. Despite these assertions, two compelling aspects of this case indicate that our generally prudent "reluctance to attribute unconstitutional motives" to a governmental body, Mueller v. Allen, 463 U. S. 388 , 463 U. S. 394 (1983), should be overcome. First, as was true in Larkin v. Grendel's Den, Inc., 459 U. S. 116 , 459 U. S. 123 -124 (1982), all of Pawtucket's "valid secular objectives can be readily accomplished by other means." [ Footnote 2/4 ] Plainly, the city's interest in celebrating the holiday and in promoting both retail sales and goodwill are fully served by the elaborate display of Santa Claus, reindeer, and wishing wells that are already a part of Pawtucket's annual Christmas Page 465 U. S. 700 display. [ Footnote 2/5 ] More importantly, the nativity scene, unlike every other element of the Hodgson Park display, reflects a sectarian exclusivity that the avowed purposes of celebrating the holiday season and promoting retail commerce simply do not encompass. To be found constitutional, Pawtucket's seasonal celebration must at least be nondenominational and not serve to promote religion. The inclusion of a distinctively religious element like the creche, however, demonstrates that a narrower sectarian purpose lay behind the decision to include a nativity scene. That the creche retained this religious character for the people and municipal government of Pawtucket is suggested by the Mayor's testimony at trial, in which he stated that, for him as well as others in the city, the effort to eliminate the nativity scene from Pawtucket's Christmas celebration "is a step towards establishing another religion, non-religion that it may be." App. 100. [ Footnote 2/6 ] Plainly, the city and its leaders understood that the inclusion of the creche in its display would serve the wholly religious purpose Page 465 U. S. 701 of "keep[ing] Christ in Christmas.'" 525 F. Supp. 1150 , 1173 (RI 1981). From this record, therefore, it is impossible to say with the kind of confidence that was possible in McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 445 (1961), that a wholly secular goal predominates. The "primary effect" of including a nativity scene in the city's display is, as the District Court found, to place the government's imprimatur of approval on the particular religious beliefs exemplified by the creche. Those who believe in the message of the nativity receive the unique and exclusive benefit of public recognition and approval of their views. For many, the city's decision to include the creche as part of its extensive and costly efforts to celebrate Christmas can only mean that the prestige of the government has been conferred on the beliefs associated with the creche, thereby providing "a significant symbolic benefit to religion. . . ." Larkin v. Grendel's Den, Inc., supra, at 459 U. S. 125 -126. The effect on minority religious groups, as well as on those who may reject all religion, is to convey the message that their views are not similarly worthy of public recognition nor entitled to public support. [ Footnote 2/7 ] It was precisely this sort of religious chauvinism that the Establishment Clause was intended forever to prohibit. In this case, as in Engel v. Vitale, "[w]hen the power, prestige and financial support of government is placed behind Page 465 U. S. 702 a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain." 370 U.S. at 370 U. S. 431 . Our decision in Widmar v. Vincent, 454 U. S. 263 (1981), rests upon the same principle. There the Court noted that a state university policy of "equal access" for both secular and religious groups would "not confer any imprimatur of state approval" on the religious groups permitted to use the facilities because "a broad spectrum of groups" would be served and there was no evidence that religious groups would dominate the forum. Id. at 454 U. S. 274 . Here, by contrast, Pawtucket itself owns the creche, and instead of extending similar attention to a "broad spectrum" of religious and secular groups, it has singled out Christianity for special treatment. Finally, it is evident that Pawtucket's inclusion of a creche as part of its annual Christmas display does pose a significant threat of fostering "excessive entanglement." As the Court notes, ante at 465 U. S. 683 , the District Court found no administrative entanglement in this case, primarily because the city had been able to administer the annual display without extensive consultation with religious officials. See 525 F. Supp. at 1179. Of course, there is no reason to disturb that finding, but it is worth noting that, after today's decision, administrative entanglements may well develop. Jews and other non-Christian groups, prompted perhaps by the Mayor's remark that he will include a Menorah in future displays, [ Footnote 2/8 ] can be expected to press government for inclusion of their symbols, and faced with such requests, government will have to become involved in accommodating the various demands. Cf. Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. at 413 U. S. 796 ("competing efforts [by religious groups] to gain or maintain the support of government" may "occasio[n] considerable civil strife"). More importantly, although no political divisiveness was apparent in Pawtucket Page 465 U. S. 703 prior to the filing of respondents' lawsuit, that act, as the District Court found, unleashed powerful emotional reactions which divided the city along religious lines. 525 F. Supp. at 1180. The fact that calm had prevailed prior to this suit does not immediately suggest the absence of any division on the point for, as the District Court observed, the quiescence of those opposed to the creche may have reflected nothing more than their sense of futility in opposing the majority. Id. at 1179. Of course, the Court is correct to note that we have never held that the potential for divisiveness alone is sufficient to invalidate a challenged governmental practice; we have, nevertheless, repeatedly emphasized that "too close a proximity" between religious and civil authorities, Schempp, 374 U.S. at 374 U. S. 259 (BRENNAN, J., concurring), may represent a "warning signal" that the values embodied in the Establishment Clause are at risk. Committee for Public Education & Religious Liberty v. Nyquist, supra, at 413 U. S. 798 . [ Footnote 2/9 ] Furthermore, the Court should not blind itself to the fact that, because communities Page 465 U. S. 704 differ in religious composition, the controversy over whether local governments may adopt religious symbols will continue to fester. In many communities, non-Christian groups can be expected to combat practices similar to Pawtucket's; this will be so especially in areas where there are substantial non-Christian minorities. [ Footnote 2/10 ] In sum, considering the District Court's careful findings of fact under the three-part analysis called for by our prior cases, I have no difficulty concluding that Pawtucket's display of the creche is unconstitutional. [ Footnote 2/11 ] Page 465 U. S. 705 B The Court advances two principal arguments to support its conclusion that the Pawtucket creche satisfies the Lemon test. Neither is persuasive. First. The Court, by focusing on the holiday "context" in which the nativity scene appeared, seeks to explain away the clear religious import of the creche and the findings of the District Court that most observers understood the creche as both a symbol of Christian beliefs and a symbol of the city's support for those beliefs. See ante at 465 U. S. 679 -684; see also ante at 465 U. S. 694 (O'CONNOR, J., concurring). Thus, although the Court concedes that the city's inclusion of the nativity scene plainly serves "to depict the origins" of Christmas as a "significant historical religious event," ante at 465 U. S. 681 , 465 U. S. 680 , and that the creche "is identified with one religious faith," ante at 465 U. S. 685 , we are nevertheless expected to believe that Pawtucket's use of the creche does not signal the city's support for the sectarian symbolism that the nativity scene evokes. The effect of the creche, of course, must be gauged not only by its inherent religious Page 465 U. S. 706 significance, but also by the overall setting in which it appears. But it blinks reality to claim, as the Court does, that by including such a distinctively religious object as the creche in its Christmas display, Pawtucket has done no more than make use of a "traditional" symbol of the holiday, and has thereby purged the creche of its religious content and conferred only an "incidental and indirect" benefit on religion. The Court's struggle to ignore the clear religious effect of the creche seems to me misguided for several reasons. In the first place, the city has positioned the creche in a central and highly visible location within the Hodgson Park display. The District Court's findings in this regard are unambiguous: "[D]espite the small amount of ground covered by the creche, viewers would not regard the creche as an insignificant part of the display. It is an almost life sized tableau marked off by a white picket fence. Furthermore, its location lends the creche significance. The creche faces the Roosevelt Avenue bus stops and access stairs where the bulk of the display is placed. Moreover, the creche is near two of the most enticing parts of the display for children -- Santa's house and the talking wishing well. Although the Court recognizes that one cannot see the creche from all possible vantage points, it is clear from the City's own photos that people standing at the two bus shelters and looking down at the display will see the creche centrally and prominently positioned." 525 F. Supp. at 1176-1177 (citations omitted; footnote omitted). Moreover, the city has done nothing to disclaim government approval of the religious significance of the creche, to suggest that the creche represents only one religious symbol among many others that might be included in a seasonal display truly aimed at providing a wide catalog of ethnic and religious celebrations, or to disassociate itself from the religious content of the creche. In Abington School Dist. v. Schempp, 374 U.S. at 374 U. S. 225 , we noted that reading aloud Page 465 U. S. 707 from the Bible would be a permissible schoolroom exercise only if it was "presented objectively as part of a secular program of education" that would remove any message of governmental endorsement of religion. Similarly, when the Court of Appeals for the District of Columbia Circuit approved the inclusion of a creche as part of a national "Pageant of Peace" on federal parkland adjacent to the White House, it did so on the express condition that the Government would erect "explanatory plaques" disclaiming any sponsorship of religious beliefs associated with the creche. Allen v. Morton, 161 U.S.App.D.C. 239, 241-242, 495 F.2d 65, 67-68 (1973) (per curiam). In this case, by contrast, Pawtucket has made no effort whatever to provide a similar cautionary message. Third, we have consistently acknowledged that an otherwise secular setting alone does not suffice to justify a governmental practice that has the effect of aiding religion. In Hunt v. McNair, 413 U. S. 734 , 413 U. S. 743 (1973), for instance, we observed that "[a]id normally may be thought to have a primary effect of advancing religion . . . when it [supports] a specifically religious activity in an otherwise substantially secular setting." The demonstrably secular context of public education, therefore, did not save the challenged practice of school prayer in Engel or in Schempp. Similarly, in Tilton v. Richardson, 403 U. S. 672 , 403 U. S. 683 (1971), despite the generally secular thrust of the financing legislation under review, the Court unanimously struck down that aspect of the program which permitted church-related institutions eventually to assume total control over the use of buildings constructed with federal aid. [ Footnote 2/12 ] Page 465 U. S. 708 Finally, and most importantly, even in the context of Pawtucket's seasonal celebration, the creche retains a specifically Christian religious meaning. I refuse to accept the notion implicit in today's decision that non-Christians would find that the religious content of the creche is eliminated by the fact that it appears as part of the city's otherwise secular celebration of the Christmas holiday. The nativity scene is clearly distinct in its purpose and effect from the rest of the Hodgson Park display for the simple reason that it is the only one rooted in a biblical account of Christ's birth. It is the chief symbol of the characteristically Christian belief that a divine Savior was brought into the world and that the purpose of this miraculous birth was to illuminate a path toward salvation and redemption. [ Footnote 2/13 ] For Christians, that path is exclusive, precious, and holy. But for those who do not share these beliefs, the symbolic reenactment of the birth of a divine being who has been miraculously incarnated as a man stands as a dramatic reminder of their differences with Christian faith. [ Footnote 2/14 ] When government appears to sponsor such religiously Page 465 U. S. 709 inspired views, we cannot say that the practice is "'so separate and so indisputably marked off from the religious function,' . . . that [it] may fairly be viewed as reflect[ing] a neutral posture toward religious institutions." Nyquist, 413 U.S. at 413 U. S. 782 (quoting Everson, 330 U.S. at 330 U. S. 18 ). To be so excluded on religious grounds by one's elected government is an insult and an injury that, until today, could not be countenanced by the Establishment Clause. Second. The Court also attempts to justify the creche by entertaining a beguilingly simple, yet faulty syllogism. The Court begins by noting that government may recognize Christmas Day as a public holiday; the Court then asserts that the creche is nothing more than a traditional element of Christmas celebrations; and it concludes that the inclusion of a creche as part of a government's annual Christmas celebration is constitutionally permissible. See ante at 465 U. S. 680 -683, 465 U. S. 685 -686; see also ante at 465 U. S. 692 -694 (O'CONNOR, J., concurring). The Court apparently believes that once it finds that the designation of Christmas as a public holiday is constitutionally acceptable, it is then free to conclude that virtually every form of governmental association with the celebration of the holiday is also constitutional. The vice of this dangerously superficial argument is that it overlooks the fact that the Christmas holiday in our national culture contains both secular and sectarian elements. [ Footnote 2/15 ] To say that government may recognize the holiday's traditional, secular elements of Page 465 U. S. 710 gift-giving, public festivities, and community spirit, does not mean that government may indiscriminately embrace the distinctively sectarian aspects of the holiday. Indeed, in its eagerness to approve the creche, the Court has advanced a rationale so simplistic that it would appear to allow the Mayor of Pawtucket to participate in the celebration of a Christmas Mass, since this would be just another unobjectionable way for the city to "celebrate the holiday." As is demonstrated below, the Court's logic is fundamentally flawed both because it obscures the reason why public designation of Christmas Day as a holiday is constitutionally acceptable, and blurs the distinction between the secular aspects of Christmas and its distinctively religious character, as exemplified by the creche. When government decides to recognize Christmas Day as a public holiday, it does no more than accommodate the calendar of public activities to the plain fact that many Americans will expect on that day to spend time visiting with their families, attending religious services, and perhaps enjoying some respite from pre-holiday activities. The Free Exercise Clause, of course, does not necessarily compel the government to provide this accommodation, but neither is the Establishment Clause offended by such a step. Cf. Zorach v. Clauson, 343 U. S. 306 (1952). Because it is clear that the celebration of Christmas has both secular and sectarian elements, it may well be that, by taking note of the holiday, the government is simply seeking to serve the same kinds of wholly secular goals -- for instance, promoting goodwill and a common day of rest -- that were found to justify Sunday Closing Laws in McGowan v. Maryland, 366 U. S. 420 (1961). [ Footnote 2/16 ] If public officials go further and participate in the secular celebration Page 465 U. S. 711 of Christmas -- by, for example, decorating public places with such secular images as wreaths, garlands, or Santa Claus figures -- they move closer to the limits of their constitutional power, but nevertheless remain within the boundaries set by the Establishment Clause. But when those officials participate in or appear to endorse the distinctively religious elements of this otherwise secular event, they encroach upon First Amendment freedoms. For it is at that point that the government brings to the forefront the theological content of the holiday, and places the prestige, power, and financial support of a civil authority in the service of a particular faith. The inclusion of a creche in Pawtucket's otherwise secular celebration of Christmas clearly violates these principles. Unlike such secular figures as Santa Claus, reindeer, and carolers, a nativity scene represents far more than a mere "traditional" symbol of Christmas. The essence of the creche's symbolic purpose and effect is to prompt the observer to experience a sense of simple awe and wonder appropriate to the contemplation of one of the central elements of Christian dogma -- that God sent His Son into the world to be a Messiah. [ Footnote 2/17 ] Contrary to the Court's suggestion, the creche is far from a mere representation of a "particular historic religious event." Ante at 465 U. S. 686 . It is, instead, best understood as a mystical re-creation of an event that lies at the heart of Christian faith. [ Footnote 2/18 ] To suggest, as the Court does, Page 465 U. S. 712 that such a symbol is merely "traditional," and therefore no different from Santa's house or reindeer is not only offensive to those for whom the creche has profound significance [ Footnote 2/19 ] but insulting to those who insist, for religious or personal reasons, that the story of Christ is in no sense a part of "history" nor an unavoidable element of our national "heritage." [ Footnote 2/20 ] For these reasons, the creche in this context simply cannot be viewed as playing the same role that an ordinary museum display does. See ante at 465 U. S. 676 -677, 465 U. S. 683 , 465 U. S. 685 . The Court seems to assume that prohibiting Pawtucket from displaying a creche would be tantamount to prohibiting a state college from including the Bible or Milton's Paradise Lost in a course on English literature. But in those cases, the religiously inspired materials are being considered solely as literature. The purpose is plainly not to single out the particular religious beliefs that may have inspired the authors, but to see in these writings the outlines of a larger imaginative universe shared with other forms of literary expression. [ Footnote 2/21 ] The same may be said of a course devoted to the study of art; when the course turns to Gothic architecture, the emphasis is not on the religious beliefs which the cathedrals exalt, but rather upon the "aesthetic consequences of [such religious] thought." [ Footnote 2/22 ] Page 465 U. S. 713 In this case, by contrast, the creche plays no comparable secular role. Unlike the poetry of Paradise Lost which students in a literature course will seek to appreciate primarily for esthetic or historical reasons, the angels, shepherds, Magi, and infant of Pawtucket's nativity scene can only be viewed as symbols of a particular set of religious beliefs. It would be another matter if the creche were displayed in a museum setting, in the company of other religiously inspired artifacts, as an example, among many, of the symbolic representation of religious myths. In that setting, we would have objective guarantees that the creche could not suggest that a particular faith had been singled out for public favor and recognition. The effect of Pawtucket's creche, however, is not confined by any of these limiting attributes. In the absence of any other religious symbols or of any neutral disclaimer, the inescapable effect of the creche will be to remind the average observer of the religious roots of the celebration he is witnessing and to call to mind the scriptural message that the nativity symbolizes. The fact that Pawtucket has gone to the trouble of making such an elaborate public celebration and of including a creche in that otherwise secular setting inevitably serves to reinforce the sense that the city means to express solidarity with the Christian message of the creche and to dismiss other faiths as unworthy of similar attention and support. II Although the Court's relaxed application of the Lemon test to Pawtucket's creche is regrettable, it is at least understandable and properly limited to the particular facts of this case. The Court's opinion, however, also sounds a broader Page 465 U. S. 714 and more troubling theme. Invoking the celebration of Thanksgiving as a public holiday, the legend "In God We Trust" on our coins, and the proclamation "God save the United States and this Honorable Court" at the opening of judicial sessions, the Court asserts, without explanation, that Pawtucket's inclusion of a creche in its annual Christmas display poses no more of a threat to Establishment Clause values than these other official "acknowledgments" of religion. Ante at 465 U. S. 674 -678, 465 U. S. 685 -686; see also ante at 465 U. S. 692 -693 (O'CONNOR, J., concurring). Intuition tells us that some official "acknowledgment" is inevitable in a religious society if government is not to adopt a stilted indifference to the religious life of the people. See Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203 , 333 U. S. 232 (1948) (Jackson, J., concurring). It is equally true, however, that, if government is to remain scrupulously neutral in matters of religious conscience, as our Constitution requires, then it must avoid those overly broad acknowledgments of religious practices that may imply governmental favoritism toward one set of religious beliefs. This does not mean, of course, that public officials may not take account, when necessary, of the separate existence and significance of the religious institutions and practices in the society they govern. Should government choose to incorporate some arguably religious element into its public ceremonies, that acknowledgment must be impartial; it must not tend to promote one faith or handicap another; and it should not sponsor religion generally over nonreligion. Thus, in a series of decisions concerned with such acknowledgments, we have repeatedly held that any active form of public acknowledgment of religion indicating sponsorship or endorsement is forbidden. E.g., Stone v. Graham, 449 U. S. 39 (1980) (posting of Ten Commandments in schoolroom); Epperson v. Arkansas, 393 U. S. 97 (1968) (prohibition on teaching principles of Darwinian evolution); Abington School Dist. v. Schempp, 374 U. S. 203 (1963) (mandatory Bible-reading at beginning of Page 465 U. S. 715 school day); Engel v. Vitale, 370 U. S. 421 (1962) (mandatory reading of state-composed prayer); Illinois ex rel. McCollum v. Board of Education, supra, (use of public school facilities for religious instruction). Despite this body of case law, the Court has never comprehensively addressed the extent to which government may acknowledge religion by, for example, incorporating religious references into public ceremonies and proclamations, and I do not presume to offer a comprehensive approach. Nevertheless, it appears from our prior decisions that at least three principles -- tracing the narrow channels which government acknowledgments must follow to satisfy the Establishment Clause -- may be identified. First, although the government may not be compelled to do so by the Free Exercise Clause, it may, consistently with the Establishment Clause, act to accommodate to some extent the opportunities of individuals to practice their religion. See Schempp, supra, at 374 U. S. 296 -299 (BRENNAN, J., concurring). That is the essential meaning, I submit, of this Court's decision in Zorach v. Clauson, 343 U. S. 306 (1952), finding that government does not violate the Establishment Clause when it simply chooses to "close its doors or suspend its operations as to those who want to repair to their religious sanctuary for worship or instruction." Id. at 343 U. S. 314 . And for me, that principle would justify government's decision to declare December 25th a public holiday. See supra at 465 U. S. 710 . Second, our cases recognize that, while a particular governmental practice may have derived from religious motivations and retain certain religious connotations, it is nonetheless permissible for the government to pursue the practice when it is continued today solely for secular reasons. As this Court noted with reference to Sunday Closing Laws in McGowan v. Maryland, 366 U. S. 420 (1961), the mere fact that a governmental practice coincides to some extent with certain religious beliefs does not render it unconstitutional. Thanksgiving Day, in my view, fits easily within this principle, Page 465 U. S. 716 for, despite its religious antecedents, [ Footnote 2/23 ] the current practice of celebrating Thanksgiving is unquestionably secular and patriotic. We all may gather with our families on that day to give thanks both for personal and national good fortune, but we are free, given the secular character of the holiday, to address that gratitude either to a divine beneficence or to such mundane sources as good luck or the country's abundant natural wealth. Finally, we have noted that government cannot be completely prohibited from recognizing in its public actions the religious beliefs and practices of the American people as an aspect of our national history and culture. See Engel v. Vitale, supra, at 370 U. S. 435 , n. 21; Schempp, supra, at 374 U. S. 300 -304 (BRENNAN, J., concurring). While I remain uncertain about these questions, I would suggest that such practices as the designation of "In God We Trust" as our national motto, or the references to God contained in the Pledge of Allegiance to the flag can best be understood, in Dean Rostow's apt phrase, as a form a "ceremonial deism," [ Footnote 2/24 ] protected from Establishment Clause scrutiny chiefly because they have lost through rote repetition any significant religious content. See Marsh v. Chambers, 463 U.S. at 463 U. S. 818 (BRENNAN, J., dissenting). Page 465 U. S. 717 Moreover, these references are uniquely suited to serve such wholly secular purposes as solemnizing public occasions, or inspiring commitment to meet some national challenge in a manner that simply could not be fully served in our culture if government were limited to purely nonreligious phrases. Cf. Schempp, supra, at 374 U. S. 265 (BRENNAN, J., concurring). The practices by which the government has long acknowledged religion are therefore probably necessary to serve certain secular functions, and that necessity, coupled with their long history, gives those practices an essentially secular meaning. The creche fits none of these categories. Inclusion of the creche is not necessary to accommodate individual religious expression. This is plainly not a case in which individual residents of Pawtucket have claimed the right to place a creche as part of a wholly private display on public land. Cf. Widmar v. Vincent, 454 U. S. 263 (1981); McCreary v. Stone, 575 F. Supp. 1112 (SDNY 1983). Nor is the inclusion of the creche necessary to serve wholly secular goals; it is clear that the city's secular purposes of celebrating the Christmas holiday and promoting retail commerce can be fully served without the creche. Cf. McGowan v. Maryland and supra at 465 U. S. 699 -700. And the creche, because of its unique association with Christianity, is clearly more sectarian than those references to God that we accept in ceremonial phrases or in other contexts that assure neutrality. The religious works on display at the National Gallery, Presidential references to God during an Inaugural Address, or the national motto present no risk of establishing religion. To be sure, our understanding of these expressions may begin in contemplation of some religious element, but it does not end there. Their message is dominantly secular. In contrast, the message of the creche begins and ends with reverence for a particular image of the divine. By insisting that such a distinctively sectarian message is merely an unobjectionable part of our "religious heritage," see ante at 465 U. S. 676 , 465 U. S. 685 -686, the Court takes a long step backwards Page 465 U. S. 718 to the days when Justice Brewer could arrogantly declare for the Court that "this is a Christian nation." Church of Holy Trinity v. United States, 143 U. S. 457 , 143 U. S. 471 (1892). Those days, I had thought, were forever put behind us by the Court's decision in Engel v. Vitale, in which we rejected a similar argument advanced by the State of New York that its Regent's Prayer was simply an acceptable part of our "spiritual heritage." 370 U.S. at 370 U. S. 425 . III The American historical experience concerning the public celebration of Christmas, if carefully examined, provides no support for the Court's decision. The opening sections of the Court's opinion, while seeking to rely on historical evidence, do no more than recognize the obvious: because of the strong religious currents that run through our history, an inflexible or absolutistic enforcement of the Establishment Clause would be both imprudent and impossible. See ante at 465 U. S. 673 -678. This observation is at once uncontroversial and unilluminating. Simply enumerating the various ways in which the Federal Government has recognized the vital role religion plays in our society does nothing to help decide the question presented in this case. Indeed, the Court's approach suggests a fundamental misapprehension of the proper uses of history in constitutional interpretation. Certainly, our decisions reflect the fact that an awareness of historical practice often can provide a useful guide in interpreting the abstract language of the Establishment Clause. See, e.g., Walz v. Tax Comm'n, 397 U.S. at 397 U. S. 676 -680; McGowan v. Maryland, 366 U.S. at 366 U. S. 431 -445; Engel, 370 U.S. at 370 U. S. 425 -429. But historical acceptance of a particular practice alone is never sufficient to justify a challenged governmental action, since, as the Court has rightly observed, "no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it." Walz, supra, at 397 U. S. 678 . See also Committee for Page 465 U. S. 719 Public Education & Religious Liberty v. Nyquist, 413 U.S. at 413 U. S. 792 . Attention to the details of history should not blind us to the cardinal purposes of the Establishment Clause, nor limit our central inquiry in these cases -- whether the challenged practices "threaten those consequences which the Framers deeply feared." Abington School Dist. v. Schempp, 374 U.S. at 374 U. S. 236 (BRENNAN, J., concurring). In recognition of this fact, the Court has, until today, consistently limited its historical inquiry to the particular practice under review. In McGowan, for instance, the Court carefully canvassed the entire history of Sunday Closing Laws from the colonial period up to modern times. On the basis of this analysis, we concluded that, while such laws were rooted in religious motivations, the current purpose was to serve the wholly secular goal of providing a uniform day of rest for all citizens. 366 U.S. at 366 U. S. 445 . Our inquiry in Walz was similarly confined to the special history of the practice under review. There the Court found a pattern of "undeviating acceptance" over the entire course of the Nation's history of according property tax exemptions to religious organizations, a pattern which supported our finding that the practice did not violate the Religion Clauses. Finally, where direct inquiry into the Framers' intent reveals that the First Amendment was not understood to prohibit a particular practice, we have found such an understanding compelling. Thus, in Marsh v. Chambers, after marshaling the historical evidence which indicated that the First Congress had authorized the appointment of paid chaplains for its own proceedings only three days before it reached agreement on the final wording of the Bill of Rights, the Court concluded on the basis of this "unique history" that the modern-day practice of opening legislative sessions with prayer was constitutional. 463 U.S. at 463 U. S. 787 -791. Although invoking these decisions in support of its result, the Court wholly fails to discuss the history of the public celebration of Christmas or the use of publicly displayed nativity scenes. The Court, instead, simply asserts, without any historical analysis or support whatsoever, that the now-familiar Page 465 U. S. 720 celebration of Christmas springs from an unbroken history of acknowledgment "by the people, by the Executive Branch, by the Congress, and the courts for 2 centuries. . . ." Ante at 465 U. S. 686 . The Court's complete failure to offer any explanation of its assertion is perhaps understandable, however, because the historical record points in precisely the opposite direction. Two features of this history are worth noting. First, at the time of the adoption of the Constitution and the Bill of Rights, there was no settled pattern of celebrating Christmas, either as a purely religious holiday or as a public event. Second, the historical evidence, such as it is, offers no uniform pattern of widespread acceptance of the holiday, and indeed suggests that the development of Christmas as a public holiday is a comparatively recent phenomenon. [ Footnote 2/25 ] The intent of the Framers with respect to the public display of nativity scenes is virtually impossible to discern, primarily because the widespread celebration of Christmas did not emerge in its present form until well into the 19th century. Carrying a well-defined Puritan hostility to the celebration of Christ's birth with them to the New World, the founders of the Massachusetts Bay Colony pursued a vigilant policy of opposition to any public celebration of the holiday. Page 465 U. S. 721 To the Puritans, the celebration of Christmas represented a "Popish" practice lacking any foundation in Scripture. This opposition took legal form in 1659 when the Massachusetts Bay Colony made the observance of Christmas Day, "by abstinence from labor, feasting, or any other way," an offense punishable by fine. Although the Colony eventually repealed this ban in 1681, the Puritan objection remained firm. [ Footnote 2/26 ] During the 18th century, sectarian division over the celebration of the holiday continued. As increasing numbers of members of the Anglican and the Dutch and German Reformed Churches arrived, the practice of celebrating Christmas as a purely religious holiday grew. But denominational differences continued to dictate differences in attitude toward the holiday. American Anglicans, who carried with them the Church of England's acceptance of the holiday, Roman Catholics, and various German groups all made the celebration of Christmas a vital part of their religious life. By contrast, many nonconforming Protestant groups, including the Presbyterians, Congregationalists, Baptists, and Methodists, continued to regard the holiday with suspicion and antagonism well into the 19th century. [ Footnote 2/27 ] This pattern of sectarian Page 465 U. S. 722 division concerning the holiday suggests that for the Framers of the Establishment Clause, who were acutely sensitive to such sectarian controversies, no single view of how government should approach the celebration of Christmas would be possible. Many of the same religious sects that were devotedly opposed to the celebration of Christmas on purely religious grounds were also some of the most vocal and dedicated foes of established religions in the period just prior to the Revolutionary War. [ Footnote 2/28 ] The Puritans, and later the Presbyterians, Baptists, and Methodists, generally associated the celebration of Christmas with the elaborate and, in their view, sacreligious celebration of the holiday by the Church of England, and also with, for them, the more sinister theology of "Popery." [ Footnote 2/29 ] In the eyes of these dissenting religious sects, therefore, the groups most closely associated with established Page 465 U. S. 723 religion -- the Churches of England and of Rome -- were also most closely linked to the profane practice of publicly celebrating Christmas. For those who authored the Bill of Rights, it seems reasonable to suppose that the public celebration of Christmas would have been regarded as at least a sensitive matter, if not deeply controversial. As we have repeatedly observed, the Religion Clauses were intended to ensure a benign regime of competitive disorder among all denominations, so that each sect was free to vie against the others for the allegiance of its followers without state interference. See Everson v. Board of Education, 330 U. S. 1 (1947). The historical record, contrary to the Court's uninformed assumption, suggests that at the very least conflicting views toward the celebration of Christmas were an important element of that competition at the time of the adoption of the Constitution. Furthermore, unlike the religious tax exemptions upheld in Walz, the public display of nativity scenes as part of governmental celebrations of Christmas does not come to us supported by an unbroken history of widespread acceptance. It was not until 1836 that a State first granted legal recognition to Christmas as a public holiday. This was followed in the period between 1845 and 1865, by 28 jurisdictions which included Christmas Day as a legal holiday. [ Footnote 2/30 ] Congress did not follow the States' lead until 1870, when it established December 25th, along with the Fourth of July, New Year's Day, and Thanksgiving, as a legal holiday in the District of Columbia. [ Footnote 2/31 ] This pattern of legal recognition tells us only that Page 465 U. S. 724 public acceptance of the holiday was gradual and that the practice -- in stark contrast to the record presented in either Walz or Marsh -- did not take on the character of a widely recognized holiday until the middle of the 19th century. The historical evidence with respect to public financing and support for governmental displays of nativity scenes is even more difficult to gauge. What is known suggests that German immigrants who settled in Pennsylvania early in the 18th century, presumably drawing upon European traditions, were probably the first to introduce nativity scenes to the American celebration of Christmas. [ Footnote 2/32 ] It also appears likely that this practice expanded as more Roman Catholic immigrants settled during the 19th century. From these modest beginnings, the familiar creche scene developed and gained wider recognition by the late 19th century. [ Footnote 2/33 ] It is simply impossible to tell, however, whether the practice ever gained widespread acceptance, much less official endorsement, until the 20th century. In sum, there is no evidence whatsoever that the Framers would have expressly approved a federal celebration of the Christmas holiday including public displays of a nativity Page 465 U. S. 725 scene; accordingly, the Court's repeated invocation of the decision in Marsh, see ante at 465 U. S. 673 -674, 465 U. S. 682 , 465 U. S. 685 -686, is not only baffling, it is utterly irrelevant. Nor is there any suggestion that publicly financed and supported displays of Christmas creches are supported by a record of widespread, undeviating acceptance that extends throughout our history. Therefore, our prior decisions which relied upon concrete, specific historical evidence to support a particular practice simply have no bearing on the question presented in this case. Contrary to today's careless decision, those prior cases have all recognized that the "illumination" provided by history must always be focused on the particular practice at issue in a given case. Without that guiding principle and the intellectual discipline it imposes, the Court is at sea, free to select random elements of America's varied history solely to suit the views of five Members of this Court. IV Under our constitutional scheme, the role of safeguarding our "religious heritage" and of promoting religious beliefs is reserved as the exclusive prerogative of our Nation's churches, religious institutions, and spiritual leaders. Because the Framers of the Establishment Clause understood that "religion is too personal, too sacred, too holy to permit its unhallowed perversion' by civil [authorities]," Engel v. Vitale, 370 U.S. at 370 U. S. 432 , the Clause demands that government play no role in this effort. The Court today brushes aside these concerns by insisting that Pawtucket has done nothing more than include a "traditional" symbol of Christmas in its celebration of this national holiday, thereby muting the religious content of the creche. Ante at 465 U. S. 685 . But the city's action should be recognized for what it is: a coercive, though perhaps small, step toward establishing the sectarian preferences of the majority at the expense of the minority, accomplished by placing public facilities and funds in support of the religious symbolism and theological tidings that the Page 465 U. S. 726 creche conveys. As Justice Frankfurter, writing in McGowan v. Maryland, observed, the Establishment Clause "withdr[aws] from the sphere of legitimate legislative concern and competence a specific, but comprehensive, area of human conduct: man's belief or disbelief in the verity of some transcendental idea and man's expression in action of that belief or disbelief." 366 U.S. at 366 U. S. 465 -466 (separate opinion). That the Constitution sets this realm of thought and feeling apart from the pressures and antagonisms of government is one of its supreme achievements. Regrettably, the Court today tarnishes that achievement. I dissent. [ Footnote 2/1 ] For instance, nothing in the Court's opinion suggests that the Court of Appeals for the Third Circuit erred when it found that a city-financed platform and cross used by Pope John Paul II to celebrate Mass and deliver a sermon during his 1979 visit to Philadelphia was an unconstitutional expenditure of city funds. Gifillan v. City of Philadelphia, 637 F.2d 924 (1980). Nor does the Court provide any basis for disputing the holding of the Court of Appeals for the Eleventh Circuit that the erection and maintenance of an illuminated Latin cross on state park property violates the Establishment Clause. American Civil Liberties Union of Georgia v. Rabun County Chamber of Commerce, Inc., 698 F.2d 1098 (1983). See also Fox v. City of Los Angeles, 22 Cal. 3d 792 , 587 P.2d 663 (1978); Lowe v. City of Eugene, 254 Ore. 539, 463 P.2d 360 (1969). And given the Court's focus upon the otherwise secular setting of the Pawtucket creche, it remains uncertain whether, absent such secular symbols as Santa Claus' house, a talking wishing well, and cutout clowns and bears, a similar nativity scene would pass muster under the Court's standard. Cf. McCreary v. Stone, 575 F. Supp. 1112 (SDNY 1983) (holding that village did not violate Establishment Clause by refusing to permit a private group to erect a creche in a public park). [ Footnote 2/2 ] Although I agree with the Court that no single formula can ever fully capture the analysis that may be necessary to resolve difficult Establishment Clause problems, see 465 U.S. 668 fn2/11|>n. 11, infra, I fail to understand the Court's insistence upon referring to the settled test set forth in Lemon as simply one path that may be followed or not at the Court's option. See ante at 465 U. S. 679 . The Court's citation of Tilton v. Richardson, 403 U. S. 672 (1971), and Committee for Public Education Religious Liberty v. Nyquist, 413 U. S. 756 (1973), to support this assertion is meaningless, because both of those decisions applied the three-prong Lemon test. Indeed, ever since its initial formulation, the Lemon test has been consistently looked upon as the fundamental tool of Establishment Clause analysis. In Nyquist, the Court described the test in mandatory terms: "Taken together, [our] decisions dictate that to pass muster under the Establishment Clause the law in question [must satisfy the three elements of the Lemon test]." 413 U.S. at 413 U. S. 772 -773. And just last Term, in Larkin v. Grendel's Den, Inc., 459 U. S. 116 (1982), THE CHIEF JUSTICE, speaking for the Court, wrote that "[t]his Court has consistently held that a statute must satisfy three criteria [as set forth in Lemon ] to pass muster under the Establishment Clause." Id. at 459 U. S. 123 . See also Stone v. Graham, 449 U. S. 39 , 449 U. S. 40 -41 (1980) (per curiam); Wolman v. Walter, 433 U. S. 229 , 433 U. S. 236 -236 (1977). In addition, the Court's citation of Larson v. Valente, 456 U. S. 228 (1982), also fails to support the Court's assertion. In Larson, we first reviewed a state law granting a denominational preference under a "strict scrutiny" analysis, id. at 456 U. S. 246 -251, but then concluded by finding the statute unconstitutional under the Lemon analysis as well. Id. at 456 U. S. 251 -255. Thus, despite the Court's efforts to evade the point, the fact remains that Marsh v. Chambers, 463 U. S. 783 (1983), is the only case in which the Court has not applied either the Lemon or a "strict scrutiny" analysis. I can only conclude that, with today's unsupported assertion, the Court hopes to provide a belated excuse for the failure in Marsh to address the analysis of the Lemon test. [ Footnote 2/3 ] See Larkin v. Grendel's Den, Inc., supra, at 459 U. S. 123 ; Widmar v. Vincent, 454 U. S. 263 , 454 U. S. 271 (1981); Wolman v. Walter, 433 U. S. 229 , 433 U. S. 236 (1977); Walz v. Tax Comm'n, 397 U. S. 664 , 397 U. S. 674 (1970). As JUSTICE O'CONNOR's concurring opinion rightly observes, this test provides a helpful analytical tool in considering the central question posed in this case -- whether Pawtucket has run afoul of the Establishment Clause by endorsing religion through its display of the creche. Ante at 465 U. S. 690 . [ Footnote 2/4 ] I find it puzzling, to say the least, that the Court today should find "irrelevant," ante at 465 U. S. 681 , n. 7, the fact that the city's secular objectives can be readily and fully accomplished without including the creche, since only last Term, in Larkin v. Grendel's Den, Inc., 459 U.S. at 459 U. S. 123 -124, the Court relied upon precisely the same point in striking down a Massachusetts statute which vested in church governing bodies the power to veto applications for liquor licenses. It seems the Court is willing to alter its analysis from Term to Term in order to suit its preferred results. [ Footnote 2/5 ] Several representatives of Pawtucket's business community testified that, although the overall Christmas display played an important role in promoting downtown holiday trade, the display would serve this purpose equally well even if the creche were removed. App. 133, 135, 139-140. The Mayor also testified that, if the nativity scene had to be eliminated, the city would continue to erect the annual display without it. Id. at 115. [ Footnote 2/6 ] The District Court also admitted into evidence, without objection from petitioners, a considerable amount of correspondence received by Mayor Lynch in support of maintaining the creche in the city's Christmas display. One such letter, which appears to be representative of the views of many, congratulates the Mayor on his efforts "to keep Christ' in Christmas. . . ." App. 161. For the District Court's findings concerning the meaning of these letters, see 525 F. Supp. 1150 , 1162 (RI 1981) ("Overall the tenor of the correspondence is that the lawsuit represents an attack on the presence of religion as part of the community's life, an attempt to deny the majority the ability to express publically its beliefs in a desired and traditionally accepted way"). Furthermore, as the District Court found, "the City has accepted and implemented the view of its predominantly Christian citizens that it is a 'good thing' to have a creche in a Christmas display . . . because it is a good thing to 'keep Christ in Christmas.'" Id. at 1173. [ Footnote 2/7 ] In this regard, the views expressed by the California Supreme Court in considering a similar issue are particularly relevant: "When a city so openly promotes the religious meaning of one religion's holidays, the benefit reaped by that religion and the disadvantage suffered by other religions is obvious. Those persons who do not share those holidays are relegated to the status of outsiders by their own government; those persons who do observe those holidays can take pleasure in seeing the symbol of their belief given official sanction and special status." Fox v. City of Los Angeles, 22 Cal. 3d at 803, 687 P.2d at 670 (striking down as unconstitutional the erection of an illuminated cross in front of city hall). See also Lowe v. City of Eugene, 264 Ore. at 644-546, 463 P.2d at 363. [ Footnote 2/8 ] See App. 104. [ Footnote 2/9 ] The suggestion in Mueller v. Allen, 463 U. S. 388 , 463 U. S. 403 -404, n. 11 (1983), relied upon by the Court today, see ante at 465 U. S. 684 ; ante at 465 U. S. 689 (O'CONNOR, J., concurring), that inquiry into potential political divisiveness is unnecessary absent direct subsidies to church-sponsored schools or colleges, derives from a distorted reading of our prior cases. Simply because the Court in Lemon -- a case involving such subsidies -- inquired into potential divisiveness while distinguishing Everson and Allen -- cases not involving such subsidies -- does not provide any authority for the proposition that the Court in Lemon meant to confine the divisiveness inquiry only to cases factually identical to Lemon itself. Indeed, in Walz, the Court considered the question of divisiveness in the context of state tax exemptions to all religious institutions. I agree, however, with JUSTICE O'CONNOR's helpful suggestion that, while political divisiveness is "an evil addressed by the Establishment Clause," the ultimate inquiry must always focus on "the character of the government activity that might cause such divisiveness." Ante at 465 U. S. 689 . Having said that, I should also emphasize that I disagree fundamentally with JUSTICE O'CONNOR's apparent conclusion that Pawtucket's inclusion of the creche is not the kind of governmental act that may engender sharp division along religious lines. The contrary is demonstrated by the history of this case. [ Footnote 2/10 ] This and similar issues relating to governmental endorsement of religious symbols has engendered continuing controversy which has reached the courts on many occasions. See, e.g., American Civil Liberties Union of Georgia v. Rabun County Chamber of Commerce, Inc., 698 F.2d 1098 (CA11 1983); Florey v. Sioux Falls School Dist., 619 F.2d 1311 (CA8 1980); Allen v. Morton, 161 U.S.App.D.C. 239, 495 F.2d 65 (1973); Allen v. Hickel, 138 U.S.App.D.C. 31, 424 F.2d 944 (1970); McCreary v. Stone, 575 F. Supp. 1112 (SDNY 1983); Citizens Concerned for Separation of Church and State v. Denver, 508 F. Supp. 823 (Colo.1981); Russell v. Mamaroneck, 440 F. Supp. 607 (SDNY 1977); Lawrence v. Buchmueller, 40 Misc.2d 300, 243 N.Y.S.2d 87 (Sup.Ct.1963). Given the narrowness of the Court's decision today, see supra at 465 U. S. 694 -695, and n. 1, the potential for controversy is unlikely to abate. [ Footnote 2/11 ] The Court makes only a half-hearted attempt, see ante at 465 U. S. 680 -681, 465 U. S. 682 -683, to grapple with the fact that Judge Pettine's detailed findings may not be overturned unless they are shown to be "clearly erroneous." Fed.Rule Civ.Proc. 52(a). See Pullman-Standard v. Swint, 456 U. S. 273 , 456 U. S. 285 -290 (1982). In my view, petitioners have made no such showing in this case. JUSTICE O'CONNOR's concurring opinion properly accords greater respect to the District Court's findings, but I am at a loss to understand how the court's specific and well-supported finding that the city was understood to have placed its stamp of approval on the sectarian content of the creche can, in the face of the Lemon test, be dismissed as simply an "error as a matter of law." Ante at 465 U. S. 694 . Moreover, although the Court brushes the point aside with little explanation, see ante at 465 U. S. 687 , n. 13, the Lemon decision's three-prong analysis is not the only available standard of review. As the Court of Appeals recognized, the "strict scrutiny" analysis adopted in Larson v. Valente, 456 U.S. at 456 U. S. 244 -246, addresses situations in which a governmental policy or practice grants official preference to one religious denomination over another. 691 F.2d 1029, 1034-1035 (CA1 1982). While I am inclined to agree with the Court of Appeals that Pawtucket's practice fails this test, it is not necessary that I address this point in view of my conclusion that the city's inclusion of the creche violates the standards fixed in Lemon. Furthermore, I continue to believe that the test I set forth in Schempp is an appropriate means of determining whether rights guaranteed by the Establishment Clause have been infringed. In my view, "those involvements of religious with secular institutions which (a) serve the essentially religious activities of religious institutions; (b) employ the organs of government for essentially religious purposes; or (c) use essentially religious means to serve governmental ends, where secular means would suffice" must be struck down. 374 U.S. at 374 U. S. 294 -295. In the present case, I particularly believe the third element of this test is not met, since all of Pawtucket's governmental goals -- celebrating the holiday season and promoting commerce -- can be fully realized without the use of the creche by employing such wholly secular means as Santa Claus, reindeer, and cutout figures. See supra at 465 U. S. 699 -700. [ Footnote 2/12 ] Indeed, in the aid-to-sectarian-schools cases, the state financing schemes under review almost always require us to focus on a specific element that may violate the Establishment Clause, even though it is a part of a complex and otherwise secular statutory framework. See, e.g., Meek v. Pittenger, 421 U. S. 349 (1975); Wolman v. Walter, 433 U. S. 229 (1977). See also Committee for Public Education & Religious Liberty v. Regan, 444 U. S. 646 , 444 U. S. 662 (1980) (BLACKMUN, J., dissenting). [ Footnote 2/13 ] See R. Brown, The Birth of the Messiah (1977); W. Auld, Christmas Traditions (1931); A. McArthur, The Evolution of the Christian Year (1953). [ Footnote 2/14 ] For Christians, of course, the essential message of the nativity is that God became incarnate in the person of Christ. But just as fundamental to Jewish thought is the belief in the "non-incarnation of God, . . . [t]he God in whom [Jews] believe, to whom [Jews] are pledged, does not unite with human substance on earth." M. Buber, Israel and the World (1948) (reprinted in F. Talmage, Disputation and Dialogue: Readings in the Jewish-Christian Encounter 281-282 (1975)) (emphasis deleted). This distinction, according to Buber, "constitute[s] the ultimate division between Judaism and Christianity." Id. at 281. See also R. Reuther, Faith and Fratricide 246 (1974). Similarly, those who follow the tenets of Unitarianism might well find Pawtucket's support for the symbolism of the creche, which highlights the Trinitarian tradition in Christian faith, to be an affront to their belief in a single divine being. See J. Williams, What Americans Believe and How They Worship 316-317 (3d ed.1969). See also C. Olmstead, History of Religion in the United States 296-299 (1960). [ Footnote 2/15 ] Both the District Court and the Court of Appeals recognized that Christmas comprises both secular and sectarian elements, and that this distinction is of constitutional importance. See 525 F.Supp. at 1163-1164; 691 F.2d at 1032-1033; id. at 1035-1037 (Bownes, J., concurring). In addition, many observers have explained that historically the Christmas celebration derives both from traditional, folk elements such as gift-giving and winter seasonal celebrations, as well as from Christian religious elements. See, e.g., J. Barnett, The American Christmas, A Study in National Culture 9-14 (1954) (hereafter Barnett); R. Meyers, Celebrations: The Complete Book of American Holidays 309-344 (1972); B. Rosenthal & N. Rosenthal, Christmas 14-15 (1980). [ Footnote 2/16 ] It is worth noting that Christmas shares the list of federal holidays with such patently secular, patriotic holidays as the Fourth of July, Memorial Day, Washington's Birthday, Labor Day, and Veterans Day. See 5 U.S.C. § 6103(a). We may reasonably infer from the distinctly secular character of the company that Christmas keeps on this list that it too is included for essentially secular reasons. [ Footnote 2/17 ] See W. Auld, Christmas Traditions (1931); A. McArthur, The Evolution of the Christian Year (1953). [ Footnote 2/18 ] As one commentator has observed: "Today, of course, it is admitted even by Catholic exegetes that [the Biblical stories recounting Christ's birth] are a collection of largely uncertain, mutually contradictory, strongly legendary and ultimately theologically motivated narratives, with a character of their own. Unlike the rest of Jesus' life, there are dream happenings here and angels constantly enter on the scene and leave it -- as heavenly messengers of God announcing important events." H. Kung, On Being A Christian 451 (E. Quinn trans., 1976) (footnote omitted). See also R. Brown, The Birth of the Messiah 25-41 (1977); Elliott, The Birth and Background of Jesus of Nazareth, 28 History Today 773, 774-780 (1978). [ Footnote 2/19 ] Many Christian commentators have voiced strong objections to what they consider to be the debasement and trivialization of Christmas through too close a connection with commercial and public celebrations. See, e.g., Kelley, Beyond Separation of Church and State, 5 J. Church & State 181 (1963). See generally Barnett 55-57. [ Footnote 2/20 ] See A. Stokes & L. Pfeffer, Church and State in the United States 383 (rev. ed.1964); R. Morgan, The Supreme Court and Religion 126 (1972); Barnett 68 (discussing opposition by Jews and other non-Christian religious groups to public celebrations of Christmas). See also Talmage, supra, 465 U.S. 668 fn2/14|>n. 14. [ Footnote 2/21 ] See N. Frye, The Secular Scripture 14-15 (1976). [ Footnote 2/22 ] O. von Simson, The Gothic Cathedral 27 (1956). See also E. Panofsky Meaning in the Visual Arts (1974). Compare Justice Jackson's explanation of his view that the study of religiously inspired material can, in the correct setting, be made a part of a secular educational program: "[m]usic without sacred music, architecture minus the cathedral, or painting without the scriptural themes would be eccentric and incomplete, even from a secular point of view." Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203 , 333 U. S. 236 (1948) (concurring opinion). [ Footnote 2/23 ] The constitutional problems posed by the religious antecedents of the early Thanksgiving celebrations were well recognized by Thomas Jefferson. Refusing on Establishment Clause grounds to declare national days of thanksgiving or fasting, Jefferson explained: "I consider the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, disciplines, or exercises. . . . [I]t is only proposed that I should recommend, not prescribe, a day of fasting and prayer. . . . [But] I do not believe it is for the interest of religion to invite the civil magistrate to direct its exercises, its discipline, or its doctrines. . . . Fasting and prayer are religious exercises; the enjoining them an act of discipline." 11 Jefferson's Writings 428-430 (1904) (emphasis deleted). See generally L. Pfeffer, Church, State and Freedom 266 (1967). [ Footnote 2/24 ] Sutherland, Book Review, 40 Ind.L.J. 83, 86 (1964) (quoting Dean Rostow's 1962 Meiklejohn Lecture delivered at Brown University). [ Footnote 2/25 ] The Court's insistence upon pursuing this vague historical analysis is especially baffling since even the petitioners and their supporting amici concede that no historical evidence equivalent to that relied upon in Marsh, McGowan, or Walz supports publicly sponsored Christmas displays. At oral argument, counsel for petitioners was asked whether there is "anything we can refer to to let us know how long it has been the practice in this country for public bodies to have nativity scenes displayed?" Counsel responded: "Specifically, I cannot. . . . The recognition of Christmas [as a public holiday] began in the middle part of the last century . . . but specifically with respect to the use of the nativity scene, we have been unable to locate that data." Tr. of Oral Arg. 8. In addition, the Solicitor General, appearing as amicus in support of petitioners, was asked: "Do we have . . . evidence [of the intent of the Framers] here with respect to the display of a nativity scene?" He responded: "Not with that degree of specificity." Id. at 22-23. [ Footnote 2/26 ] See S. Cobb, The Rise of Religious Liberty in America 209 (rev. ed.1970). For an example of this notorious Puritan antipathy to the holiday, consider the remarks of Judge Sewell, a Puritan, who in 1685 expressed his concerns about the influence of public celebration of Christmas: "Some, somehow observe the day, but are vexed, I believe, that the Body of the People Profane it; and, blessed be God, no Authority yet to compel them to keep it." Quoted in Barnett 3. [ Footnote 2/27 ] See generally Barnett 4-6, 21-22; Sweet, Christmas in American History, 22 Chi.Theol.Sem.Register 12, 14 (Nov.1932); R. Meyers, Celebrations: The Complete Book of American Holidays 314-315 (1972). Some indication of this denominational opposition to the religious celebration of Christmas can be gleaned from the following account of Christmas services in the New York Daily Times for December 26, 1855: "The churches of the Presbyterians, Baptists and Methodists were not open on Dec. 25 except where some Mission Schools had a celebration. They do not accept the day as a Holy One, but the Episcopalian, Catholic and German Churches were all open. Inside they were decked with evergreens." Quoted in Barnett 8. In addition, consider the account written in 1874 of Henry Ward Beecher, a Congregationalist, describing his New England childhood: "To me, Christmas is a foreign day, and I shall die so. When I was a boy, I wondered what Christmas was. I knew there was such a time, because we had an Episcopal church in our town and I saw them dressing it with evergreens. . . . A little later, I understood it was a Romish institution, kept up by the Romish Church. Brought up in the strictest state of New England, brought up in the most literal style of worship . . . I passed all my youth without any knowledge of Christmas, and so I have no associations with the day." Quoted in Meyers, supra 465 U.S. 668 fn2/15|>n. 15, at 315-316. [ Footnote 2/28 ] The role of these religious groups in the struggle for disestablishment and their place in the history of the Establishment Clause have already been chronicled at some length in our cases, and therefore I will not repeat that history here. See Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 9 -15 (1947); Engel v. Vitale, 370 U. S. 421 , 370 U. S. 428 , and n. 10 (1962); Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. at 413 U. S. 770 , and n. 28. For more comprehensive discussions of the efforts of these denominations to bring about disestablishment, see S. Cobb, The Rise of Religious Liberty in America (rev. ed.1970); B. Bailyn, The Ideological Origins of the American Revolution 257-263 (1967); W. McLoughlin, New England Dissent: 1630-1833 (1971); L. Pfeffer, Church, State and Freedom (1967). [ Footnote 2/29 ] See Barnett 2-6. [ Footnote 2/30 ] For a compilation of these developments, see id. at 19-20. [ Footnote 2/31 ] Ch. 167, 16 Stat. 168. There is no suggestion in the brief congressional discussion concerning the decision to declare Christmas Day a public holiday in the District of Columbia that Congress meant to do anything more than to put the District on equal footing with the many States that had declared those days public holidays by that time. See Cong.Globe, 41st Cong., 2d Sess., 4805 (1870). Significantly, it was not until 1885 that Congress provided holiday payment for federal employees on December 25. See J.Res. 5, 23 Stat. 516. [ Footnote 2/32 ] See Barnett 11-12; Meyers, supra, 465 U.S. 668 fn2/15|>n. 15 . The symbol of the creche as an artifact of Christmas celebration apparently owes its origins to St. Francis of Assisi who, according to most accounts, first popularized the ritual reenactment of the birth of Christ by erecting a manger attended by townspeople who played the now-traditional roles of shepherds, Magi, etc., in the village of Greccio, Italy, in 1224. See W. Auld, Christmas Traditions 56 (1931); M. Krythe, All About Christmas 85 (1954). [ Footnote 2/33 ] One commentator has noted that the increasing secularization of the Christmas celebration which occurred during the 19th century led "members of the Puritan and evangelical churches [to be] less inclined to oppose the secular celebration when it no longer symbolized the religious and political dominance of the Church of England. This tolerance increased during the nineteenth century, and undoubtedly encouraged [the] popularity [of the celebration of Christmas]." Barnett 6; see also id. at 11-12, 22-23. JUSTICE BLACKMUN, with whom JUSTICE STEVENS joins, dissenting. As JUSTICE BRENNAN points out, the logic of the Court's decision in Lemon v. Kurtzman, 403 U. S. 602 , 403 U. S. 612 -613 (1971) (which THE CHIEF JUSTICE would say has been applied by this Court "often," ante at 465 U. S. 679 , but which JUSTICE O'CONNOR acknowledges with the words, "Our prior cases have used the three-part test articulated in Lemon, " ante at 465 U. S. 688 ), compels an affirmance here. If that case and its guidelines mean anything, the presence of Pawtucket's creche in a municipally sponsored display must be held to be a violation of the First Amendment. Not only does the Court's resolution of this controversy make light of our precedents, but also, ironically, the majority does an injustice to the creche and the message it manifests. While certain persons, including the Mayor of Pawtucket, undertook a crusade to "keep Christ' in Christmas," App. 161, the Court today has declared that presence virtually irrelevant. The majority urges that the display, "with or without a creche," "recall[s] the religious nature of the Holiday," and "engenders a friendly community spirit of goodwill in keeping with the season." Ante at 465 U. S. 685 . Before the District Court, an expert witness for the city made Page 465 U. S. 727 a similar, though perhaps more candid, point, stating that Pawtucket's display invites people "to participate in the Christmas spirit, brotherhood, peace, and let loose with their money." See 525 F. Supp. 1150 , 1161 (RI 1981). The creche has been relegated to the role of a neutral harbinger of the holiday season, useful for commercial purposes but devoid of any inherent meaning and incapable of enhancing the religious tenor of a display of which it is an integral part. The city has its victory -- but it is a Pyrrhic one indeed. The import of the Court's decision is to encourage use of the creche in a municipally sponsored display, a setting where Christians feel constrained in acknowledging its symbolic meaning and non-Christians feel alienated by its presence. Surely, this is a misuse of a sacred symbol. Because I cannot join the Court in denying either the force of our precedents or the sacred message that is at the core of the creche, I dissent and join JUSTICE BRENNAN's opinion.

In Lynch v. Donnelly, the US Supreme Court ruled that the inclusion of a religious symbol, in this case, a creche or Nativity scene, in a public Christmas display did not violate the Establishment Clause of the First Amendment. The Court interpreted the Establishment Clause as mandating accommodation and tolerance of all religions rather than complete separation of church and state. The decision considered the historical context and intent of the Framers, acknowledging the role of religion in American life and the absence of hostility towards any particular faith. The Court concluded that the city of Pawtucket's display, including the creche, did not establish or tend to establish a religion and thus did not breach the Establishment Clause.

Religion

Abington School District v. Schempp

https://supreme.justia.com/cases/federal/us/374/203/

U.S. Supreme Court School Dist. of Abington Tp. v. Schempp, 374 U.S. 203 (1963) School District of Abington Township, Pennsylvania v. Schempp No. 142 Argued February 27-28, 1963 Decided June 17, 1963 374 U.S. 203 ast|>* 374 U.S. 203 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Syllabus Because of the prohibition of the First Amendment against the enactment by Congress of any law "respecting an establishment of religion," which is made applicable to the States by the Fourteenth Amendment, no state law or school board may require that passages from the Bible be read or that the Lord's Prayer be recited in the public schools of a State at the beginning of each school day -- even if individual students may be excused from attending or participating in such exercises upon written request of their parents. Pp. 374 U. S. 205 -227. 201 F. Supp. 815 , affirmed. 228 Md. 239, 179 A.2d 698, reversed. Page 374 U. S. 205 MR. JUSTICE CLARK delivered the opinion of the Court. Once again, we are called upon to consider the scope of the provision of the First Amendment to the United States Constitution which declares that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ." These companion cases present the issues in the context of state action requiring that schools begin each day with readings from the Bible. While raising the basic questions under slightly different factual situations, the cases permit of joint treatment. In light of the history of the First Amendment and of our cases interpreting and applying its requirements, we hold that the practices at issue and the laws requiring them are unconstitutional under the Establishment Clause, as applied to the States through the Fourteenth Amendment. I The Facts in Each Case: No. 142. The Commonwealth of Pennsylvania, by law, 24 Pa.Stat. § 15-1516, as amended, Pub.Law 1928 (Supp. 1960) Dec. 17, 1959, requires that "At least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each school day. Any child shall be excused from such Bible reading, or attending such Bible reading, upon the written request of his parent or guardian." The Schempp family, husband and wife and two of their three children, brought suit to enjoin enforcement of the statute, contending that their rights under the Fourteenth Amendment to the Constitution of the United States are, have been, and will continue to be, violated unless this statute be declared unconstitutional as violative of these provisions of the First Amendment. They sought to enjoin the appellant school district, wherein the Schempp children attend school, and its officers and the Page 374 U. S. 206 Superintendent of Public Instruction of the Commonwealth from continuing to conduct such readings and recitation of the Lord's Prayer in the public schools of the district pursuant to the statute. A three-judge statutory District Court for the Eastern District of Pennsylvania held that the statute is violative of the Establishment Clause of the First Amendment as applied to the States by the Due Process Clause of the Fourteenth Amendment, and directed that appropriate injunctive relief issue. 201 F. Supp. 815 . [ Footnote 1 ] On appeal by the District, its officials, and the Superintendent under 28 U.S.C. § 1253, we noted probable jurisdiction. 371 U.S. 807. The appellees Edward Lewis Schempp, his wife Sidney, and their children, Roger and Donna, are of the Unitarian faith, and are members of the Unitarian Church in Germantown, Philadelphia, Pennsylvania, where they, as well as another son, Ellory, regularly attend religious services. The latter was originally a party, but, having graduated from the school system pendente lite, was voluntarily dismissed from the action. The other children attend the Abington Senior High School, which is a public school operated by appellant district. On each school day at the Abington Senior High School between 8:15 and 8:30 a.m., while the pupils are attending their home rooms or advisory sections, opening exercises Page 374 U. S. 207 are conducted pursuant to the statute. The exercises are broadcast into each room in the school building through an intercommunications system, and are conducted under the supervision of a teacher by students attending the school's radio and television workshop. Selected students from this course gather each morning in the school's workshop studio for the exercises, which include readings by one of the students of 10 verses of the Holy Bible, broadcast to each room in the building. This is followed by the recitation of the Lord's Prayer, likewise over the intercommunications system, but also by the students in the various classrooms, who are asked to stand and join in repeating the prayer in unison. The exercises are closed with the flag salute and such pertinent announcements as are of interest to the students. Participation in the opening exercises, as directed by the statute, is voluntary. The student reading the verses from the Bible may select the passages and read from any version he chooses, although the only copies furnished by the school are the King James version, copies of which were circulated to each teacher by the school district. During the period in which the exercises have been conducted, the King James, the Douay, and the Revised Standard versions of the Bible have been used, as well as the Jewish Holy Scriptures. There are no prefatory statements, no questions asked or solicited, no comments or explanations made, and no interpretations given at or during the exercises. The students and parents are advised that the student may absent himself from the classroom or, should he elect to remain, not participate in the exercises. It appears from the record that, in schools not having an intercommunications, system the Bible reading and the recitation of the Lord's Prayer were conducted by the Page 374 U. S. 208 home-room teacher, [ Footnote 2 ] who chose the text of the verses and read them herself or had students read them in rotation or by volunteers. This was followed by a standing recitation of the Lord's Prayer, together with the Pledge of Allegiance to the Flag by the class in unison and a closing announcement of routine school items of interest. At the first trial, Edward Schempp and the children testified as to specific religious doctrines purveyed by a literal reading of the Bible "which were contrary to the religious beliefs which they held, and to their familial teaching." 177 F. Supp. 398 , 400. The children testified that all of the doctrines to which they referred were read to them at various times as part of the exercises. Edward Schempp testified at the second trial that he had considered having Roger and Donna excused from attendance at the exercises, but decided against it for several reasons, including his belief that the children's relationships with their teachers and classmates would be adversely affected. [ Footnote 3 ] Page 374 U. S. 209 Expert testimony was introduced by both appellants and appellees at the first trial, which testimony was summarized by the trial court as follows: "Dr. Solomon Grayzel testified that there were marked differences between the Jewish Holy Scriptures and the Christian Holy Bible, the most obvious of which was the absence of the New Testament in the Jewish Holy Scriptures. Dr. Grayzel testified that portions of the New Testament were offensive to Jewish tradition, and that, from the standpoint of Jewish faith, the concept of Jesus Christ as the Son of God was 'practically blasphemous.' He cited instances in the New Testament which, assertedly, were not only sectarian in nature but tended to bring the Jews into ridicule or scorn. Dr. Grayzel gave as his expert opinion that such material from the New Testament could be explained to Jewish children in such a way as to do no harm to them. But if portions of the New Testament were read without explanation, they could be, and, in his specific experience with children, Dr. Grayzel observed, had been, psychologically harmful to the child, and had caused a divisive force within the social media of the school." "Dr. Grayzel also testified that there was significant difference in attitude with regard to the respective Books of the Jewish and Christian Religions in that Judaism attaches no special significance to the reading of the Bible per se, and that the Jewish Holy Scriptures are source materials to be studied. But Dr. Grayzel did state that many portions of the New, Page 374 U. S. 210 as well as of the Old, Testament contained passages of great literary and moral value." "Dr. Luther A. Weigle, an expert witness for the defense, testified in some detail as to the reasons for and the methods employed in developing the King James and the Revised Standard Versions of the Bible. On direct examination, Dr. Weigle stated that the Bible was nonsectarian. He later stated that the phrase 'nonsectarian' meant to him nonsectarian within the Christian faiths. Dr. Weigle stated that his definition of the Holy Bible would include the Jewish Holy Scriptures, but also stated that the 'Holy Bible' would not be complete without the New Testament. He stated that the New Testament 'conveyed the message of Christians.' In his opinion, reading of the Holy Scriptures to the exclusion of the New Testament would be a sectarian practice. Dr. Weigle stated that the Bible was of great moral, historical and literary value. This is conceded by all the parties, and is also the view of the court." 177 F. Supp. 398 , 401-402. The trial court, in striking down the practices and the statute requiring them, made specific findings of fact that the children's attendance at Abington Senior High School is compulsory, and that the practice of reading 10 verses from the Bible is also compelled by law. It also found that: "The reading of the verses, even without comment, possesses a devotional and religious character and constitutes, in effect, a religious observance. The devotional and religious nature of the morning exercises is made all the more apparent by the fact that the Bible reading is followed immediately by a recital in unison by the pupils of the Lord's Prayer. The fact that some pupils, or, theoretically, all pupils, might be excused from attendance at the exercises Page 374 U. S. 211 does not mitigate the obligatory nature of the ceremony, for . . . Section 1516 . . . unequivocally requires the exercises to be held every school day in every school in the Commonwealth. The exercises are held in the school buildings, and perforce are conducted by and under the authority of the local school authorities, and during school sessions. Since the statute requires the reading of the 'Holy Bible,' a Christian document, the practice . . . prefers the Christian religion. The record demonstrates that it was the intention of . . . the Commonwealth . . . to introduce a religious ceremony into the public schools of the Commonwealth." 201 F. Supp. at 819. No. 119. In 1905, the Board of School Commissioners of Baltimore City adopted a rule pursuant to Art. 77, § 202 of the Annotated Code of Maryland. The rule provided for the holding of opening exercises in the schools of the city, consisting primarily of the "reading, without comment, of a chapter in the Holy Bible and/or the use of the Lord's Prayer." The petitioners, Mrs. Madalyn Murray and her son, William J. Murray III, are both professed atheists. Following unsuccessful attempts to have the respondent school board rescind the rule, this suit was filed for mandamus to compel its rescission and cancellation. It was alleged that William was a student in a public school of the city, and Mrs. Murray, his mother, was a taxpayer therein; that it was the practice under the rule to have a reading on each school morning from the King James version of the Bible; that, at petitioners' insistence, the rule was amended [ Footnote 4 ] to permit children to Page 374 U. S. 212 be excused from the exercise on request of the parent, and that William had been excused pursuant thereto; that nevertheless the rule as amended was in violation of the petitioners' rights "to freedom of religion under the First and Fourteenth Amendments" and in violation of "the principle of separation between church and state, contained therein. . . ." The petition particularized the petitioners' atheistic beliefs and stated that the rule, as practiced, violated their rights "in that it threatens their religious liberty by placing a premium on belief as against non-belief and subjects their freedom of conscience to the rule of the majority; it pronounces belief in God as the source of all moral and spiritual values, equating these values with religious values, and thereby renders sinister, alien and suspect the beliefs and ideals of your Petitioners, promoting doubt and question of their morality, good citizenship and good faith." The respondents demurred, and the trial court, recognizing that the demurrer admitted all facts well pleaded, sustained it without leave to amend. The Maryland Court of Appeals affirmed, the majority of four justices holding the exercise not in violation of the First and Fourteenth Amendments, with three justices dissenting. 228 Md. 239, 179 A.2d 698. We granted certiorari. 371 U.S. 809. II It is true that religion has been closely identified with our history and government. As we said in Engel v. Vitale, 370 U. S. 421 , 370 U. S. 434 (1962), "The history of man is inseparable from the history of religion. And . . . , since Page 374 U. S. 213 the beginning of that history, many people have devoutly believed that 'More things are wrought by prayer than this world dreams of.'" In Zorach v. Clauson, 343 U. S. 306 , 343 U. S. 313 (1952), we gave specific recognition to the proposition that "[w]e are a religious people whose institutions presuppose a Supreme Being." The fact that the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself. This background is evidenced today in our public life through the continuance in our oaths of office from the Presidency to the Alderman of the final supplication, "So help me God." Likewise, each House of the Congress provides through its Chaplain an opening prayer, and the sessions of this Court are declared open by the crier in a short ceremony, the final phrase of which invokes the grace of God. Again, there are such manifestations in our military forces, where those of our citizens who are under the restrictions of military service wish to engage in voluntary worship. Indeed, only last year, an official survey of the country indicated that 64% of our people have church membership, Bureau of the Census, U.S. Department of Commerce, Statistical Abstract of the United States (83d ed.1962), 48, while less than 30% profess no religion whatever. Id. at p. 46. It can be truly said, therefore, that today, as in the beginning, our national life reflects a religious people who, in the words of Madison, are "earnestly praying, as . . . in duty bound, that the Supreme Lawgiver of the Universe . . . guide them into every measure which may be worthy of his [blessing. . . ]." Memorial and Remonstrance Against Religious Assessments, quoted in Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 71 -72 (1947) (Appendix to dissenting opinion of Rutledge, J.). Page 374 U. S. 214 This is not to say, however, that religion has been so identified with our history and government that religious freedom is not likewise as strongly imbedded in our public and private life. Nothing but the most telling of personal experiences in religious persecution suffered by our forebears, see Everson v. Board of Education, supra, at 330 U. S. 8 -11, could have planted our belief in liberty of religious opinion any more deeply in our heritage. It is true that this liberty frequently was not realized by the colonists, but this is readily accountable by their close ties to the Mother Country. [ Footnote 5 ] However, the views of Madison and Jefferson, preceded by Roger Williams, [ Footnote 6 ] came to be incorporated not only in the Federal Constitution but likewise in those of most of our States. This freedom to worship was indispensable in a country whose people came from the four quarters of the earth and brought with them a diversity of religious opinion. Today authorities list 83 separate religious bodies, each with membership exceeding 50,000, existing among our people, as well as innumerable smaller groups. Bureau of the Census, op. cit. supra, at 46-47. III Almost a hundred years ago, in Minor v. Board of Education of Cincinnati, [ Footnote 7 ] Judge Alphonso Taft, father Page 374 U. S. 215 of the revered Chief Justice, in an unpublished opinion, stated the ideal of our people as to religious freedom as one of "absolute equality before the law, of all religious opinions and sects. . . ." " * * * *" "The government is neutral, and, while protecting all, it prefers none, and it disparages none." Before examining this "neutral" position in which the Establishment and Free Exercise Clauses of the First Amendment place our Government, it is well that we discuss the reach of the Amendment under the cases of this Court. First, this Court has decisively settled that the First Amendment's mandate that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" has been made wholly applicable to the States by the Fourteenth Amendment. Twenty-three years ago, in Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 303 (1940), this Court, through Mr. Justice Roberts, said: "The fundamental concept of liberty embodied in that [Fourteenth] Amendment embraces the liberties guaranteed by the First Amendment. The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment Page 374 U. S. 216 has rendered the legislatures of the states as incompetent as Congress to enact such laws. [ Footnote 8 ]" In a series of cases since Cantwell, the Court has repeatedly reaffirmed that doctrine, and we do so now. Murdock v. Pennsylvania, 319 U. S. 105 , 319 U. S. 108 (1943); Everson v. Board of Education, supra; Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203 , 333 U. S. 210 -211 (1948); Zorach v. Clauson, supra; McGowan v. Maryland, 366 U. S. 420 (1961); Torcaso v. Watkins, 367 U. S. 488 (1961), and Engel v. Vitale, supra. Second, this Court has rejected unequivocally the contention that the Establishment Clause forbids only governmental preference of one religion over another. Almost 20 years ago in Everson, supra, at 330 U. S. 15 , the Court said that "[n]either a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another." And Mr. Justice Jackson, dissenting, agreed: "There is no answer to the proposition . . . that the effect of the religious freedom Amendment to our Constitution was to take every form of propagation of religion out of the realm of things which could directly or indirectly be made public business, and thereby be supported in whole or in part at taxpayers' expense. . . . This freedom was first in the Bill of Rights because it was first in the forefathers' minds; it was set forth in absolute terms, and its strength is its rigidity." Id. at 330 U. S. 26 . Page 374 U. S. 217 Further, Mr. Justice Rutledge, joined by Justices Frankfurter, Jackson and Burton, declared: "The [First] Amendment's purpose was not to strike merely at the official establishment of a single sect, creed or religion, outlawing only a formal relation such as had prevailed in England and some of the colonies. Necessarily, it was to uproot all such relationships. But the object was broader than separating church and state in this narrow sense. It was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion." Id. at 330 U. S. 31 -32. The same conclusion has been firmly maintained ever since that time, see Illinois ex rel. McCollum, supra, at pp. 333 U. S. 210 -211; McGowan v. Maryland, supra, at 366 U. S. 442 -443; Torcaso v. Watkins, supra, at 367 U. S. 492 -493, 367 U. S. 495 , and we reaffirm it now. While none of the parties to either of these cases has questioned these basic conclusions of the Court, both of which have been long established, recognized, and consistently reaffirmed, others continue to question their history, logic and efficacy. Such contentions, in the light of the consistent interpretation in cases of this Court, seem entirely untenable, and of value only as academic exercises. IV The interrelationship of the Establishment and the Free Exercise Clauses was first touched upon by Mr. Justice Roberts for the Court in Cantwell v. Connecticut, supra, at 310 U. S. 303 -304, where it was said that their "inhibition of legislation" had "a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of Page 374 U. S. 218 conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted br law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus, the Amendment embraces two concepts -- freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be." A half dozen years later in Everson v. Board of Education, supra, at 330 U. S. 14 -15, this Court, through MR. JUSTICE BLACK, stated that the "scope of the First Amendment . . . was designed forever to suppress" the establishment of religion or the prohibition of the free exercise thereof. In short, the Court held that the Amendment "requires the state to be a neutral in its relations with groups of religious believers and nonbelievers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them." Id. at 330 U. S. 18 . And Mr. Justice Jackson, in dissent, declared that public schools are organized "on the premise that secular education can be isolated from all religious teaching so that the school can inculcate all needed temporal knowledge and also maintain a strict and lofty neutrality as to religion. The assumption is that, after the individual has been instructed in worldly wisdom, he will be better fitted to choose his religion." Id. at 330 U. S. 23 -24. Moreover, all of the four dissenters, speaking through Mr. Justice Rutledge, agreed that "Our constitutional policy . . . does not deny the value or the necessity for religious training, teaching or observance. Rather, it secures their free exercise. But, to that end, it does deny that the state can undertake or sustain them in any form or degree. For this Page 374 U. S. 219 reason, the sphere of religious activity, as distinguished from the secular intellectual liberties, has been given the two-fold protection, and, as the state cannot forbid, neither can it perform or aid in performing, the religious function. The dual prohibition makes that function altogether private." Id. at 330 U. S. 52 . Only one year later, the Court was asked to reconsider and repudiate the doctrine of these cases in McCollum v. Board of Education. It was argued that, "historically, the First Amendment was intended to forbid only government preference of one religion over another. . . . In addition, they ask that we distinguish or overrule our holding in the Everson case that the Fourteenth Amendment made the 'establishment of religion' clause of the First Amendment applicable as a prohibition against the States." 333 U.S. at 333 U. S. 211 . The Court, with Mr. Justice Reed alone dissenting, was unable to "accept either of these contentions." Ibid. Mr. Justice Frankfurter, joined by Justices Jackson, Rutledge and Burton, wrote a very comprehensive and scholarly concurrence in which he said that "[s]eparation is a requirement to abstain from fusing functions of Government and of religious sects, not merely to treat them all equally." Id. at 333 U. S. 227 . Continuing, he stated that: "the Constitution . . . prohibited the Government common to all from becoming embroiled, however innocently, in the destructive religious conflicts of which the history of even this country records some dark pages." Id. at 333 U. S. 228 . In 1952, in Zorach v. Clauson, supra, MR. JUSTICE DOUGLAS, for the Court, reiterated: "There cannot be the slightest doubt that the First Amendment reflects the philosophy that Church and State should be separated. And, so far as interference with the 'free exercise' of religion and an Page 374 U. S. 220 'establishment' of religion are concerned, the separation must be complete and unequivocal. The First Amendment, within the scope of its coverage, permits no exception; the prohibition is absolute. The First Amendment, however, does not say that, in every and all respects, there shall be a separation of Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be no concert or union or dependency one on the other. That is the common sense of the matter." 343 U.S. at 343 U. S. 312 . And then, in 1961, in McGowan v. Maryland and in Torcaso v. Watkins, each of these cases was discussed and approved. CHIEF JUSTICE WARREN, in McGowan, for a unanimous Court on this point, said: "But the First Amendment, in its final form, did not simply bar a congressional enactment establishing a church; it forbade all laws respecting an establishment of religion. Thus, this Court has given the Amendment a 'broad interpretation . . . in the light of its history and the evils it was designed forever to suppress. . . .'" 366 U.S. at 366 U. S. 441 -442. And MR. JUSTICE BLACK, for the Court, in Torcaso, without dissent but with Justices Frankfurter and HARLAN concurring in the result, used this language: "We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person 'to profess a belief or disbelief in any religion.' Neither can constitutionally pass laws or impose requirements which aid all religions as against nonbelievers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs." 367 U.S. at 367 U. S. 495 . Finally, in Engel v. Vitale, only last year, these principles were so universally recognized that the Court, without Page 374 U. S. 221 the citation of a single case and over the sole dissent of MR. JUSTICE STEWART, reaffirmed them. The Court found the 22-word prayer used in "New York's program of daily classroom invocation of God's blessings as prescribed in the Regents' prayer . . . [to be] a religious activity." 370 U.S. at 370 U. S. 424 . It held that "it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government." Id. at 370 U. S. 425 . In discussing the reach of the Establishment and Free Exercise Clauses of the First Amendment, the Court said: "Although these two clauses may in certain instances overlap, they forbid two quite different kinds of governmental encroachment upon religious freedom. The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion, and is violated by the enactment of laws which establish an official religion, whether those laws operate directly to coerce nonobserving individuals or not. This is not to say, of course, that laws officially prescribing a particular form of religious worship do not involve coercion of such individuals. When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain." Id. at 370 U. S. 430 -431. And, in further elaboration, the Court found that the "first and most immediate purpose [of the Establishment Clause] rested on the belief that a union of government and religion tends to destroy government and to degrade religion." Id. at 370 U. S. 431 . When government, the Court said, allies itself with one particular form of religion, the Page 374 U. S. 222 inevitable result is that it incurs "the hatred, disrespect and even contempt of those who held contrary beliefs." Ibid. V The wholesome "neutrality" of which this Court's cases speak thus stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or dependency of one upon the other to the end that official support of the State or Federal Government would be placed behind the tenets of one or of all orthodoxies. This the Establishment Clause prohibits. And a further reason for neutrality is found in the Free Exercise Clause, which recognizes the value of religious training, teaching and observance and, more particularly, the right of every person to freely choose his own course with reference thereto, free of any compulsion from the state. This the Free Exercise Clause guarantees. Thus, as we have seen, the two clauses may overlap. As we have indicated, the Establishment Clause has been directly considered by this Court eight times in the past score of years and, with only one Justice dissenting on the point, it has consistently held that the clause withdrew all legislative power respecting religious belief or the expression thereof. The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion, then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that, to withstand the strictures of the Establishment Clause, there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion. Everson v. Board of Education, supra; McGowan v. Maryland, supra, at 366 U. S. 442 . The Free Exercise Clause, likewise considered many times here, withdraws from legislative power, state and federal, the exertion of any restraint on the free exercise Page 374 U. S. 223 of religion. Its purpose is to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority. Hence, it is necessary in a free exercise case for one to show the coercive effect of the enactment as it operates against him in the practice of his religion. The distinction between the two clauses is apparent -- a violation of the Free Exercise Clause is predicated on coercion, while the Establishment Clause violation need not be so attended. Applying the Establishment Clause principles to the cases at bar, we find that the States are requiring the selection and reading at the opening of the school day of verses from the Holy Bible and the recitation of the Lord's Prayer by the students in unison. These exercises are prescribed as part of the curricular activities of students who are required by law to attend school. They are held in the school buildings under the supervision and with the participation of teachers employed in those schools. None of these factors, other than compulsory school attendance, was present in the program upheld in Zorach v. Clauson. The trial court in No. 142 has found that such an opening exercise is a religious ceremony, and was intended by the State to be so. We agree with the trial court's finding as to the religious character of the exercises. Given that finding, the exercises and the law requiring them are in violation of the Establishment Clause. There is no such specific finding as to the religious character of the exercises in No. 119, and the State contends (as does the State in No. 142) that the program is an effort to extend its benefits to all public school children without regard to their religious belief. Included within its secular purposes, it says, are the promotion of moral values, the contradiction to the materialistic trends of our times, the perpetuation of our institutions and the teaching of literature. The case came up Page 374 U. S. 224 on demurrer, of course, to a petition which alleged that the uniform practice under the rule had been to read from the King James version of the Bible, and that the exercise was sectarian. The short answer, therefore, is that the religious character of the exercise was admitted by the State. But even if its purpose is not strictly religious, it is sought to be accomplished through readings, without comment, from the Bible. Surely the place of the Bible as an instrument of religion cannot be gainsaid, and the State's recognition of the pervading religious character of the ceremony is evident from the rule's specific permission of the alternative use of the Catholic Douay version, as well as the recent amendment permitting nonattendance at the exercises. None of these factors is consistent with the contention that the Bible is here used either as an instrument for nonreligious moral inspiration or as a reference for the teaching of secular subjects. The conclusion follows that, in both cases, the laws require religious exercises, and such exercises are being conducted in direct violation of the rights of the appellees and petitioners. [ Footnote 9 ] Nor are these required exercises mitigated by the fact that individual students may absent Page 374 U. S. 225 themselves upon parental request, for that fact furnishes no defense to a claim of unconstitutionality under the Establishment Clause. See Engel v. Vitale, supra, at 370 U. S. 430 . Further, it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment. The breach of neutrality that is today a trickling stream may all too soon become a raging torrent and, in the words of Madison, "it is proper to take alarm at the first experiment on our liberties." Memorial and Remonstrance Against Religious Assessments, quoted in Everson, supra, at 330 U. S. 65 . It is insisted that, unless these religious exercises are permitted, a "religion of secularism" is established in the schools. We agree, of course, that the State may not establish a "religion of secularism" in the sense of affirmatively opposing or showing hostility to religion, thus "preferring those who believe in no religion over those who do believe." Zorach v. Clauson, supra, at 343 U. S. 314 . We do not agree, however, that this decision in any sense has that effect. In addition, it might well be said that one's education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment. But the exercises here do not fall into those categories. They are religious exercises, required by the States in violation of the command of the First Amendment that the Government maintain strict neutrality, neither aiding nor opposing religion. Finally, we cannot accept that the concept of neutrality, which does not permit a State to require a religious exercise even with the consent of the majority of those Page 374 U. S. 226 affected, collides with the majority's right to free exercise of religion. [ Footnote 10 ] While the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs. Such a contention was effectively answered by Mr. Justice Jackson for the Court in West Virginia Board of Education v. Barnette, 319 U. S. 624 , 319 U. S. 638 (1943): "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to . . . freedom of worship . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality. Though the application of that rule requires interpretation of a delicate sort, the rule itself is clearly and concisely stated in the words of the First Amendment. Applying that rule to the facts of these cases, we affirm the judgment in No. 142. Page 374 U. S. 227 In No. 119, the judgment is reversed, and the cause remanded to the Maryland Court of Appeals for further proceedings consistent with this opinion It is so ordered. * Together with No. 119, Murray et al. v. Curlett et al., Constituting the Board of School Commissioners of Baltimore City, on certiorari to the Court of Appeals of Maryland, argued February 27, 1963. [ Footnote 1 ] The action was brought in 1958, prior to the 1959 amendment of § 15-1516 authorizing a child's nonattendance at the exercises upon parental request. The three-judge court held the statute and the practices complained of unconstitutional under both the Establishment Clause and the Free Exercise Clause. 177 F. Supp. 398 . Pending appeal to this Court by the school district, the statute was so amended, and we vacated the judgment and remanded for further proceedings. 364 U. S. 298 . The same three-judge court granted appellees' motion to amend the pleadings, 195 F. Supp. 518, held a hearing on the amended pleadings and rendered the judgment, 201 F. Supp. 815 , from which appeal is now taken. [ Footnote 2 ] The statute, as amended, imposes no penalty upon a teacher refusing to obey its mandate. However, it remains to be seen whether one refusing could have his contract of employment terminated for "willful violation of the school laws." 24 Pa.Stat. (Supp. 1960) § 11-1122. [ Footnote 3 ] The trial court summarized his testimony as follows: "Edward Schempp, the children's father, testified that, after careful consideration, he had decided that he should not have Roger or Donna excused from attendance at these morning ceremonies. Among his reasons were the following. He said that he thought his children would be "labeled as odd balls'" before their teachers and classmates every school day; that children, like Roger's and Donna's classmates, were liable "to lump all particular religious difference[s] or religious objections [together] as `atheism,'" and that, today, the word "atheism" is often connected with "atheistic communism," and has "very bad" connotations, such as "un-American" or "anti-Red," with overtones of possible immorality. Mr. Schempp pointed out that, due to the events of the morning exercises following in rapid succession, the Bible reading, the Lord's Prayer, the Flag Salute, and the announcements, excusing his children from the Bible reading would mean that probably they would miss hearing the announcements so important to children. He testified also that, if Roger and Donna were excused from Bible reading, they would have to stand in the hall outside their "homeroom," and that this carried with it the imputation of punishment for bad conduct." 201 F. Supp. at 818. [ Footnote 4 ] The rule as amended provides as follows: "Opening Exercises. Each school, either collectively or in classes, shall be opened by the reading, without comment, of a chapter in the Holy Bible and/or the use of the Lord's Prayer. The Douay version may be used by those pupils who prefer it. Appropriate patriotic exercises should be held as a part of the general opening exercise of the school or class. Any child shall be excused from participating in the opening exercises or from attending the opening exercises upon the written request of his parent or guardian." [ Footnote 5 ] There were established churches in at least eight of the original colonies, and various degrees of religious support in others as late as the Revolutionary War. See Engel v. Vitale, supra, at 370 U. S. 428 , n. 10. [ Footnote 6 ] "There goes many a ship to sea, with many hundred souls in one ship, whose weal and woe is common, and is a true picture of a commonwealth, or human combination, or society. It hath fallen out sometimes that both Papists and Protestants, Jews and Turks, may be embarked in one ship; upon which supposal, I affirm that all the liberty of conscience I ever pleaded for turns upon these two hinges, that none of the Papists, Protestants, Jews, or Turks be forced to come to the ship's prayers or worship, nor compelled from their own particular prayers or worship, if they practice any." [ Footnote 7 ] Superior Court of Cincinnati, February, 1870. The opinion is not reported, but is published under the title The Bible in the Common Schools (Cincinnati: Robert Clarke & Co. 1870). Judge Taft's views, expressed in dissent, prevailed on appeal. See Board of Educational of Cincinnati v. Minor, 23 Ohio St. 211, 253 (1872), in which the Ohio Supreme Court held that: "The great bulk of human affairs and human interests is left by any free government to individual enterprise and individual action. Religion is eminently one of these interests, lying outside the true and legitimate province of government." [ Footnote 8 ] Application to the States of other clauses of the First Amendment obtained even before Cantwell. Almost 40 years ago, in the opinion of the Court in Gitlow v. New York, 268 U. S. 652 , 268 U. S. 666 (1925), Mr. Justice Sanford said: "For present purposes, we may and do assume that freedom of speech and of the press -- which are protected by the First Amendment from abridgment by Congress -- are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States." [ Footnote 9 ] It goes without saying that the laws and practices involved here can be challenged only by persons having standing to complain. But the requirements for standing to challenge state action under the Establishment Clause, unlike those relating to the Free Exercise Clause, do not include proof that particular religious freedoms are infringed. McGowan v. Maryland, supra, at 366 U. S. 429 -430. The parties here are school children and their parents, who are directly affected by the laws and practices against which their complaints are directed. These interests surely suffice to give the parties standing to complain. See Engel v. Vitale, supra. Cf. McCollum v. Board of Education, supra; Everson v. Board of Education, supra. Compare Doremus v. Board of Education, 342 U. S. 429 (1952), which involved the same substantive issues presented here. The appeal was there dismissed upon the graduation of the school child involved and because of the appellants' failure to establish standing as taxpayers. [ Footnote 10 ] We are not, of course, presented with, and therefore do not pass upon, a situation such as military service, where the Government regulates the temporal and geographic environment of individuals to a point that, unless it permits voluntary religious services to be conducted with the use of government facilities, military personnel would be unable to engage in the practice of their faiths. MR. JUSTICE DOUGLAS, concurring. I join the opinion of the Court and add a few words in explanation. While the Free Exercise Clause of the First Amendment is written in terms of what the State may not require of the individual, the Establishment Clause, serving the same goal of individual religious freedom, is written in different terms. Establishment of a religion can be achieved in several ways. The church and state can be one; the church may control the state, or the state may control the church; or the relationship may take one of several possible forms of a working arrangement between the two bodies. [ Footnote 2/1 ] Under all of these arrangements, the church typically has a place in the state's budget, and church law usually governs such matters as baptism, marriage, divorce and separation, at least for its members and sometimes for the entire body politic. [ Footnote 2/2 ] Education, too, is usually high on the priority Page 374 U. S. 228 list of church interests. [ Footnote 2/3 ] In the past, schools were often made the exclusive responsibility of the church. Today, in some state-church countries, the state runs the public schools, but compulsory religious exercises are often required of some or all students. Thus, under the agreement Franco made with the Holy See when he came to power in Spain, "The Church regained its place in the national budget. It insists on baptizing all children, and has made the catechism obligatory in state schools. [ Footnote 2/4 ]" The vice of all such arrangements under the Establishment Clause is that the state is lending its assistance to a church's efforts to gain and keep adherents. Under the First Amendment, it is strictly a matter for the individual and his church as to what church he will belong to and how much support, in the way of belief, time, activity or money, he will give to it. "This pure Religious Liberty" "declared . . . [all forms of church-state relationships] and their fundamental idea to be oppressions of conscience and abridgments of that liberty which God and nature had conferred on every living soul. [ Footnote 2/5 ]" In these cases, we have no coercive religious exercise aimed at making the students conform. The prayers announced are not compulsory, though some may think they have that indirect effect because the nonconformist student may be induced to participate for fear of being called an "oddball." But that coercion, if it be present, Page 374 U. S. 229 has not been shown; so the vices of the present regimes are different. These regimes violate the Establishment Clause in two different ways. In each case, the State is conducting a religious exercise; and, as the Court holds, that cannot be done without violating the "neutrality" required of the State by the balance of power between individual, church and state that has been struck by the First Amendment. But the Establishment Clause is not limited to precluding the State itself from conducting religious exercises. It also forbids the State to employ its facilities or funds in a way that gives any church, or all churches, greater strength in our society than it would have by relying on its members alone. Thus, the present regimes must fall under that clause for the additional reason that public funds, though small in amount, are being used to promote a religious exercise. Through the mechanism of the State, all of the people are being required to finance a religious exercise that only some of the people want and that violates the sensibilities of others. The most effective way to establish any institution is to finance it, and this truth is reflected in the appeals by church groups for public funds to finance their religious schools. [ Footnote 2/6 ] Financing a church either in its strictly religious activities or in its other activities is equally unconstitutional, as I understand the Establishment Clause. Budgets for one activity may be technically separable from budgets for others. [ Footnote 2/7 ] But the institution is an inseparable whole, a living organism, which is strengthened in proselytizing when it is strengthened in any department by contributions from other than its own members. Page 374 U. S. 230 Such contributions may not be made by the State even in a minor degree without violating the Establishment Clause. It is not the amount of public funds expended; as this case illustrates, it is the use to which public funds are put that is controlling. For the First Amendment does not say that some forms of establishment are allowed; it says that "no law respecting an establishment of religion" shall be made. What may not be done directly may not be done indirectly, lest the Establishment Clause become a mockery. [ Footnote 2/1 ] See Bates, Religious Liberty: An Inquiry (1945), 9-14, 239-252; Cobb, Religious Liberty in America (1902), 1-2, cc. IV, V; Gledhill, Pakistan, The Development of its Laws and Constitution (8 British Commonwealth, 1957), 11-15; Keller, Church and State on the European Continent (1936), c. 2; Pfeffer, Church, State, and Freedom (1953), c. 2; I Stokes, Church and State in the United States (1950), 151-169. [ Footnote 2/2 ] See III Stokes, op. cit. supra, 374 U.S. 203 fn2/1|>n. 1, 42-67; Bates, op. cit. supra, 374 U.S. 203 fn2/1|>n. 1, 9-11, 58-59, 98, 245; Gledhill, op. cit. supra, 374 U.S. 203 fn2/1|>n. 1, 128, 192, 205, 208; Rackman, Israel's Emerging Constitution (1955), 120-134; Drinan, Religious Freedom in Israel, America (Apr. 6, 1963), 456-457. [ Footnote 2/3 ] See II Stokes, op. cit. supra, 374 U.S. 203 fn2/1|>n. 1, 488-548; Boles, The Bible, Religion, and the Public Schools (2d ed.1963), 4-10; Rackman, op. cit. supra, 374 U.S. 203 fn2/2|>n. 2, at 136-141; O'Brien, The Engel Case From A Swiss Perspective, 61 Mich.L.Rev. 1069; Freund, Muslim Education in West Pakistan, 56 Religious Education 31. [ Footnote 2/4 ] Bates, op. cit. supra, 374 U.S. 203 fn2/1|>n. 1, at 18; Pfeffer, op. cit. supra, 374 U.S. 203 fn2/1|>n. 1, at 28-31; Thomas, The Balance of Forces in Spain, 41 Foreign Affairs 208, 210. [ Footnote 2/5 ] Cobb, op. cit. supra, 374 U.S. 203 fn2/1|>n. 1, at 2. [ Footnote 2/6 ] See II Stokes, op. cit. supra, 374 U.S. 203 fn2/1|>n. 1, at 681-695. [ Footnote 2/7 ] See Accountants' Handbook (4th ed.1956) 4.8-4.15. MR. JUSTICE BRENNAN, concurring. Almost a century and a half ago, John Marshall, in M'Culloch v. Maryland , enjoined: ". . . we must never forget, that it is a constitution we are expounding." 4 Wheat. 316, 17 U. S. 407 . The Court's historic duty to expound the meaning of the Constitution has encountered few issues more intricate or more demanding than that of the relationship between religion and the public schools. Since undoubtedly we are "a religious people whose institutions presuppose a Supreme Being," Zorach v. Clauson, 343 U. S. 306 , 343 U. S. 313 , deep feelings are aroused when aspects of that relationship are claimed to violate the injunction of the First Amendment that government may make "no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ." Americans regard the public schools as a most vital civic institution for the preservation of a democratic system of government. It is therefore understandable that the constitutional prohibitions encounter their severest test when they are sought to be applied in the school classroom. Nevertheless it is this Court's inescapable duty to declare whether exercises in the public schools of the States, such as those of Pennsylvania and Maryland questioned here, are involvements of religion in public institutions of a kind which offends the First and Fourteenth Amendments. Page 374 U. S. 231 When John Locke ventured in 1689, "I esteem it above all things necessary to distinguish exactly the business of civil government from that of religion and to settle the just bounds that lie between the one and the other, [ Footnote 3/1 ]" he anticipated the necessity which would be thought by the Framers to require adoption of a First Amendment, but not the difficulty that would be experienced in defining those "just bounds." The fact is that the line which separates the secular from the sectarian in American life is elusive. The difficulty of defining the boundary with precision inheres in a paradox central to our scheme of liberty. While our institutions reflect a firm conviction that we are a religious people, those institutions, by solemn constitutional injunction, may not officially involve religion in such a way as to prefer, discriminate against, or oppress, a particular sect or religion. Equally, the Constitution enjoins those involvements of religious with secular institutions which (a) serve the essentially religious activities of religious institutions; (b) employ the organs of government for essentially religious purposes; or (c) use essentially religious means to serve governmental ends where secular means would suffice. The constitutional mandate expresses a deliberate and considered judgment that such matters are to be left to the conscience of the citizen, and declares as a basic postulate of the relation between the citizen and his government that "the rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand. . . ." [ Footnote 3/2 ] I join fully in the opinion and the judgment of the Court. I see no escape from the conclusion that the exercises Page 374 U. S. 232 called in question in these two cases violate the constitutional mandate. The reasons we gave only last Term in Engel v. Vitale, 370 U. S. 421 , for finding in the New York Regents' prayer an impermissible establishment of religion compel the same judgment of the practices at bar. The involvement of the secular with the religious is no less intimate here, and it is constitutionally irrelevant that the State has not composed the material for the inspirational exercises presently involved. It should be unnecessary to observe that our holding does not declare that the First Amendment manifests hostility to the practice or teaching of religion, but only applies prohibitions incorporated in the Bill of Rights in recognition of historic needs shared by Church and State alike. While it is my view that not every involvement of religion in public life is unconstitutional, I consider the exercises at bar a form of involvement which clearly violates the Establishment Clause. The importance of the issue and the deep conviction with which views on both sides are held seem to me to justify detailing at some length my reasons for joining the Court's judgment and opinion. I The First Amendment forbids both the abridgment of the free exercise of religion and the enactment of laws "respecting an establishment of religion." The two clauses, although distinct in their objectives and their applicability, emerged together from a common panorama of history. The inclusion of both restraints upon the power of Congress to legislate concerning religious matters shows unmistakably that the Framers of the First Amendment were not content to rest the protection of religious liberty exclusively upon either clause. "In assuring the free exercise of religion," Mr. Justice Frankfurter has said, Page 374 U. S. 233 "the Framers of the First Amendment were sensitive to the then recent history of those persecutions and impositions of civil disability with which sectarian majorities in virtually all of the Colonies had visited deviation in the matter of conscience. This protection of unpopular creeds, however, was not to be the full extent of the Amendment's guarantee of freedom from governmental intrusion in matters of faith. The battle in Virginia, hardly four years won, where James Madison had led the forces of disestablishment in successful opposition to Patrick Henry's proposed Assessment Bill levying a general tax for the support of Christian teachers, was a vital and compelling memory in 1789." McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 464 -465. It is true that the Framers' immediate concern was to prevent the setting up of an official federal church of the kind which England and some of the Colonies had long supported. But nothing in the text of the Establishment Clause supports the view that the prevention of the setting up of an official church was meant to be the full extent of the prohibitions against official involvements in religion. It has rightly been said: "If the framers of the Amendment meant to prohibit Congress merely from the establishment of a 'church,' one may properly wonder why they didn't so state. That the words church and religion were regarded as synonymous seems highly improbable, particularly in view of the fact that the contemporary state constitutional provisions dealing with the subject of establishment used definite phrases such as 'religious sect,' 'sect,' or 'denomination.' . . . With such specific wording in contemporary state constitutions, why was not a similar wording adopted for the First Amendment if its framers intended to prohibit nothing more than what the States were prohibiting? " Page 374 U. S. 234 Lardner, How Far Does the Constitution Separate Church and State? 45 Am.Pol.Sci.Rev. 110, 112 (1951). Plainly, the Establishment Clause, in the contemplation of the Framers, "did not limit the constitutional proscription to any particular, dated form of state-supported theological venture." "What Virginia had long practiced, and what Madison, Jefferson and others fought to end, was the extension of civil government's support to religion in a manner which made the two in some degree interdependent, and thus threatened the freedom of each. The purpose of the Establishment Clause was to assure that the national legislature would not exert its power in the service of any purely religious end; that it would not, as Virginia and virtually all of the Colonies had done, make of religion, as religion, an object of legislation. . . . The Establishment Clause withdrew from the sphere of legitimate legislative concern and competence a specific, but comprehensive, area of human conduct: man's belief or disbelief in the verity of some transcendental idea and man's expression in action of that belief or disbelief." McGowan v. Maryland, supra, at 366 U. S. 465 -466 (opinion of Frankfurter, J.). In sum, the history which our prior decisions have summoned to aid interpretation of the Establishment Clause permits little doubt that its prohibition was designed comprehensively to prevent those official involvements of religion which would tend to foster or discourage religious worship or belief. But an awareness of history and an appreciation of the aims of the Founding Fathers do not always resolve concrete problems. The specific question before us has, for example, aroused vigorous dispute whether the architects of the First Amendment -- James Madison and Thomas Jefferson particularly -- understood the prohibition against any "law respecting an establishment of Page 374 U. S. 235 religion" to reach devotional exercises in the public schools. [ Footnote 3/3 ] It may be that Jefferson and Madison would have held such exercises to be permissible -- although, even in Jefferson's case, serious doubt is suggested by his admonition against "putting the Bible and Testament into the hands of the children at an age when their judgments are not sufficiently matured for religious inquiries. . . . [ Footnote 3/4 ]" But Page 374 U. S. 236 I doubt that their view, even if perfectly clear one way or the other, would supply a dispositive answer to the question presented by these cases. A more fruitful inquiry, it seems to me, is whether the practices here challenged threaten those consequences which the Framers deeply feared; whether, in short, they tend to promote that type of interdependence between religion and state which the First Amendment was designed to prevent. [ Footnote 3/5 ] Our task is to translate "the majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials Page 374 U. S. 237 dealing with the problems of the twentieth century. . . ." West Virginia State Board of Education v. Barnette, 319 U. S. 624 , 319 U. S. 639 . A too literal quest for the advice of the Founding Fathers upon the issues of these cases seems to me futile and misdirected for several reasons: first, on our precise problem, the historical record is, at best, ambiguous, and statements can readily be found to support either side of the proposition. The ambiguity of history is understandable if we recall the nature of the problems uppermost in the thinking of the statesmen who fashioned the religious guarantees; they were concerned with far more flagrant intrusions of government into the realm of religion than any that our century has witnessed. [ Footnote 3/6 ] While it is clear to me that the Framers meant the Establishment Clause to prohibit more than the creation of an established federal church such as existed in England, I have no doubt that, in their preoccupation with the imminent question of established churches, they gave no distinct Page 374 U. S. 238 consideration to the particular question whether the clause also forbade devotional exercises in public institutions. Second, the structure of American education has greatly changed since the First Amendment was adopted. In the context of our modern emphasis upon public education available to all citizens, any views of the eighteenth century as to whether the exercises at bar are an "establishment" offer little aid to decision. Education, as the Framers knew it, was in the main confined to private schools more often than not under strictly sectarian supervision. Only gradually did control of education pass largely to public officials. [ Footnote 3/7 ] It would, therefore, Page 374 U. S. 239 hardly be significant if the fact was that the nearly universal devotional exercises in the schools of the young Republic did not provoke criticism; even today, religious ceremonies in church supported private schools are constitutionally unobjectionable. Page 374 U. S. 240 Third, our religious composition makes us a vastly more diverse people than were our forefathers. They knew differences chiefly among Protestant sects. Today, the Nation is far more heterogeneous religiously, including as it does substantial minorities not only of Catholics and Jews but as well of those who worship according to no version of the Bible and those who worship no God at all. [ Footnote 3/8 ] Page 374 U. S. 241 See Torcaso v. Watkins, 367 U. S. 488 , 367 U. S. 495 . In the face of such profound changes, practices which may have been objectionable to no one in the time of Jefferson and Madison may today be highly offensive to many persons, the deeply devout and the nonbelievers alike. Whatever Jefferson or Madison would have thought of Bible reading or the recital of the Lord's Prayer in what few public schools existed in their day, our use of the history of their time must limit itself to broad purposes, not specific practices. By such a standard, I am persuaded, as is the Court, that the devotional exercises carried on in the Baltimore and Abington schools offend the First Amendment because they sufficiently threaten in our day those substantive evils the fear of which called forth the Establishment Clause of the First Amendment. It is "a constitution we are expounding," and our interpretation of the First Amendment must necessarily be responsive to the much more highly charged nature of religious questions in contemporary society. Fourth, the American experiment in free public education available to all children has been guided in large measure by the dramatic evolution of the religious diversity among the population which our public schools serve. The interaction of these two important forces in our national life has placed in bold relief certain positive values in the consistent application to public institutions generally, and public schools particularly, of the constitutional decree against official involvements of religion which might produce the evils the Framers meant the Establishment Clause to forestall. The public schools are supported entirely, in most communities, by public funds -- funds exacted not only from parents, nor alone from those who hold particular religious views, nor indeed from those who subscribe to any creed at all. It is implicit in the history and character of American public education that the public schools serve a uniquely Page 374 U. S. 242 public function: the training of American citizens in an atmosphere free of parochial, divisive, or separatist influences of any sort -- an atmosphere in which children may assimilate a heritage common to all American groups and religions. See Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203 . This is a heritage neither theistic nor atheistic, but simply civic and patriotic. See Meyer v. Nebraska, 262 U. S. 390 , 262 U. S. 400 -403. Attendance at the public schools has never been compulsory; parents remain morally and constitutionally free to choose the academic environment in which they wish their children to be educated. The relationship of the Establishment Clause of the First Amendment to the public school system is preeminently that of reserving such a choice to the individual parent, rather than vesting it in the majority of voters of each State or school district. The choice which is thus preserved is between a public secular education, with its uniquely democratic values, and some form of private or sectarian education, which offers values of its own. In my judgment, the First Amendment forbids the State to inhibit that freedom of choice by diminishing the attractiveness of either alternative -- either by restricting the liberty of the private schools to inculcate whatever values they wish, or by jeopardizing the freedom of the public schools from private or sectarian pressures. The choice between these very different forms of education is one very much like the choice of whether or not to worship -- which our Constitution leaves to the individual parent. It is no proper function of the state or local government to influence or restrict that election. The lesson of history -- drawn more from the experiences of other countries than from our own -- is that a system of free public education forfeits its unique contribution to the growth of democratic citizenship when that choice ceases to be freely available to each parent. Page 374 U. S. 243 II The exposition by this Court of the religious guarantees of the First Amendment has consistently reflected and reaffirmed the concerns which impelled the Framers to write those guarantees into the Constitution. It would be neither possible nor appropriate to review here the entire course of our decisions on religious questions. There emerge from those decisions, however, three principles of particular relevance to the issue presented by the cases at bar, and some attention to those decisions is therefore appropriate. First. One line of decisions derives from contests for control of a church property or other internal ecclesiastical disputes. This line has settled the proposition that, in order to give effect to the First Amendment's purpose of requiring on the part of all organs of government a strict neutrality toward theological questions, courts should not undertake to decide such questions. These principles were first expounded in the case of Watson v. Jones , 13 Wall. 679, which declared that judicial intervention in such a controversy would open up "the whole subject of the doctrinal theology, the usages and customs, the written laws, and fundamental organization of every religious denomination. . . ." 13 Wall. at 80 U. S. 733 . Courts above all must be neutral, for "[t]he law knows no heresy, and is committed to the support of no dogma, the establishment of no sect." [ Footnote 3/9 ] 13 Wall. at 80 U. S. 728 . This principle has recently Page 374 U. S. 244 been reaffirmed in Kedroff v. St. Nicholas Cathedral, 344 U. S. 94 , and Kreshik v. St. Nicholas Cathedral, 363 U. S. 190 . The mandate of judicial neutrality in theological controversies met its severest test in United States v. Ballard, 322 U. S. 78 . That decision put in sharp relief certain principles which bear directly upon the questions presented in these cases. Ballard was indicted for fraudulent use of the mails in the dissemination of religious literature. He requested that the trial court submit to the jury the question of the truthfulness of the religious views he championed. The requested charge was refused, and we upheld that refusal, reasoning that the First Amendment foreclosed any judicial inquiry into the truth or falsity of the defendant's religious beliefs. We said: "Man's relation to his God was made no concern of the state. He was granted the right to worship as he pleased and to answer to no man for the verity of his religious views." "Men may believe what they cannot Page 374 U. S. 245 prove. They may not be put to the proof of their religious doctrines or beliefs. . . . Many take their gospel from the New Testament. But it would hardly be supposed that they could be tried before a jury charged with the duty of determining whether those teachings contained false representations." 322 U.S. at 322 U. S. 86 -87. The dilemma presented by the case was severe. While the alleged truthfulness of nonreligious publications could ordinarily have been submitted to the jury, Ballard was deprived of that defense only because the First Amendment forbids governmental inquiry into the verity of religious beliefs. In dissent, Mr. Justice Jackson expressed the concern that, under this construction of the First Amendment, "[p]rosecutions of this character easily could degenerate into religious persecution." 322 U.S. at 322 U. S. 95 . The case shows how elusive is the line which enforces the Amendment's injunction of strict neutrality, while manifesting no official hostility toward religion -- a line which must be considered in the cases now before us. [ Footnote 3/10 ] Some might view the result of the Ballard case as a manifestation of hostility -- in that the conviction stood because the defense could not be raised. To others, it Page 374 U. S. 246 might represent merely strict adherence to the principle of neutrality already expounded in the cases involving doctrinal disputes. Inevitably, insistence upon neutrality, vital as it surely is for untrammeled religious liberty, may appear to border upon religious hostility. But, in the long view, the independence of both church and state in their respective spheres will be better served by close adherence to the neutrality principle. If the choice is often difficult, the difficulty is endemic to issues implicating the religious guarantees of the First Amendment. Freedom of religion will be seriously jeopardized if we admit exceptions for no better reason than the difficulty of delineating hostility from neutrality in the closest cases. Second. It is only recently that our decisions have dealt with the question whether issues arising under the Establishment Clause may be isolated from problems implicating the Free Exercise Clause. Everson v. Board of Education, 330 U. S. 1 , is, in my view, the first of our decisions which treats a problem of asserted unconstitutional involvement as raising questions purely under the Establishment Clause. A scrutiny of several earlier decisions said by some to have etched the contours of the clause shows that such cases neither raised nor decided any constitutional issues under the First Amendment. Bradfield v. Roberts, 175 U. S. 291 , for example, involved challenges to a federal grant to a hospital administered by a Roman Catholic order. The Court rejected the claim for lack of evidence that any sectarian influence changed its character as a secular institution chartered as such by the Congress. [ Footnote 3/11 ] Quick Bear v. Leupp, 210 U. S. 50 , is also illustrative. The immediate question there was one of statutory construction, although the issue had originally involved the Page 374 U. S. 247 constitutionality of the use of federal funds to support sectarian education on Indian reservations. Congress had already prohibited federal grants for that purpose, thereby removing the broader issue, leaving only the question whether the statute authorized the appropriation for religious teaching of Treaty funds held by the Government in trust for the Indians. Since these were the Indians' own funds, the Court held only that the Indians might direct their use for such educational purposes as they chose, and that the administration by the Treasury of the disbursement of the funds did not inject into the case any issue of the propriety of the use of federal moneys. [ Footnote 3/12 ] Indeed, the Court expressly approved the reasoning of the Court of Appeals that to deny the Indians the right to spend their own moneys for religious purposes of their choice might well infringe the free exercise of their religion: "it seems inconceivable that Congress should have intended to prohibit them from receiving religious education at their own cost if they so desired it. . . ." 210 U.S. at 210 U. S. 82 . This case forecast, however, an increasingly troublesome First Amendment paradox: that the logical interrelationship between the Establishment and Free Exercise Clauses may produce situations where an injunction against an apparent establishment must be withheld in order to avoid infringement of rights of free exercise. That paradox was not squarely presented in Quick Bear, but the care taken by the Court Page 374 U. S. 248 to avoid a constitutional confrontation discloses an awareness of possible conflicts between the two clauses. I shall come back to this problem later, infra, pp. 374 U. S. 296 -299. A third case in this group is Cochran v. Louisiana State Board, 281 U. S. 370 , which involved a challenge to a state statute providing public funds to support a loan of free textbooks to pupils of both public and private schools. The constitutional issues in this Court extended no further than the claim that this program amounted to a taking of private property for nonpublic use. The Court rejected the claim on the ground that no private use of property was involved; ". . . we cannot doubt that the taxing power of the State is exerted for a public purpose." 281 U.S. at 281 U. S. 375 . The case therefore raised no issue under the First Amendment. [ Footnote 3/13 ] In Pierce v. Society of Sisters, 268 U. S. 510 , a Catholic parochial school and a private but nonsectarian military academy challenged a state law requiring all children between certain ages to attend the public schools. This Court held the law invalid as an arbitrary and unreasonable interference both with the rights of the schools and with the liberty of the parents of the children who attended them. The due process guarantee of the Fourteenth Amendment "excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only." 268 U.S. at 268 U. S. 535 . While one of the plaintiffs was indeed a parochial school, the case obviously decided no First Amendment question, but recognized only the constitutional right to establish and patronize private schools -- including parochial schools -- which meet the state's reasonable minimum curricular requirements. Page 374 U. S. 249 Third. It is true, as the Court says, that the "two clauses [Establishment and Free Exercise] may overlap." Because of the overlap, however, our decisions under the Free Exercise Clause bear considerable relevance to the problem now before us, and should be briefly reviewed. The early free exercise cases generally involved the objections of religious minorities to the application to them of general nonreligious legislation governing conduct. Reynolds v. United States, 98 U. S. 145 , involved the claim that a belief in the sanctity of plural marriage precluded the conviction of members of a particular sect under nondiscriminatory legislation against such marriage. The Court rejected the claim, saying: "Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances. [ Footnote 3/14 ]" 98 U.S. at 98 U. S. 166 -167. Page 374 U. S. 250 Davis v. Beason, 133 U. S. 333 , similarly involved the claim that the First Amendment insulated from civil punishment certain practices inspired or motivated by religious beliefs. The claim was easily rejected: "It was never intended or supposed that the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order and morals of society." 133 U.S. at 133 U. S. 342 . See also Mormon Church v. United States, 136 U. S. 1 ; Jacobson v. Massachusetts, 197 U. S. 11 ; Prince v. Massachusetts, 321 U. S. 158 ; Cleveland v. United States, 329 U. S. 14 . But we must not confuse the issue of governmental power to regulate or prohibit conduct motivated by religious beliefs with the quite different problem of governmental authority to compel behavior offensive to religious principles. In Hamilton v. Regents of the University of California, 293 U. S. 245 , the question was that of the power of a State to compel students at the State University to participate in military training instruction against their religious convictions. The validity of the statute was sustained against claims based upon the First Amendment. But the decision rested on a very narrow principle: since there was neither a constitutional right nor a legal obligation to attend the State University, the obligation to participate in military training courses, Page 374 U. S. 251 reflecting a legitimate state interest, might properly be imposed upon those who chose to attend. Although the rights protected by the First and Fourteenth Amendments were presumed to include "the right to entertain the beliefs, to adhere to the principles and to teach the doctrines on which these students base their objections to the order prescribing military training," those Amendments were construed not to free such students from the military training obligations if they chose to attend the University. Justices Brandeis, Cardozo and Stone, concurring separately, agreed that the requirement infringed no constitutionally protected liberties. They added, however, that the case presented no question under the Establishment Clause. The military instruction program was not an establishment, since it in no way involved "instruction in the practice or tenets of a religion." 293 U.S. at 293 U. S. 266 . Since the only question was one of free exercise, they concluded, like the majority, that the strong state interest in training a citizen militia justified the restraints imposed, at least so long as attendance at the University was voluntary. [ Footnote 3/15 ] Hamilton has not been overruled, although United States v. Schwimmer, 279 U. S. 644 , and United States v. Macintosh, 283 U. S. 605 , upon which the Court in Hamilton relied, have since been overruled by Girouard v. United States, 328 U. S. 61 . But if Hamilton retains any vitality with respect to higher education, we recognized its inapplicability to cognate questions in the public primary and secondary schools when we held, in West Virginia Board of Education v. Barnette, supra, that a State had no power to expel from public schools students who refused on religious grounds to comply with a daily flag Page 374 U. S. 252 salute requirement. Of course, such a requirement was no more a law "respecting an establishment of religion" than the California law compelling the college students to take military training. The Barnette plaintiffs, moreover, did not ask that the whole exercise be enjoined, but only that an excuse or exemption be provided for those students whose religious beliefs forbade them to participate in the ceremony. The key to the holding that such a requirement abridged rights of free exercise lay in the fact that attendance at school was not voluntary but compulsory. The Court said: "This issue is not prejudiced by the Court's previous holding that, where a State, without compelling attendance, extends college facilities to pupils who voluntarily enroll, it may prescribe military training as part of the course without offense to the Constitution. . . . Hamilton v. Regents, 293 U. S. 245 . In the present case, attendance is not optional." 319 U.S. at 319 U. S. 631 -632. The Barnette decision made another significant point. The Court held that the State must make participation in the exercise voluntary for all students, and not alone for those who found participation obnoxious on religious grounds. In short, there was simply no need to "inquire whether nonconformist beliefs will exempt from the duty to salute," because the Court found no state "power to make the salute a legal duty." 319 U.S. at 319 U. S. 635 . The distinctions between Hamilton and Barnette are, I think, crucial to the resolution of the cases before us. The different results of those cases are attributable only in part to a difference in the strength of the particular state interests which the respective statutes were designed to serve. Far more significant is the fact that Hamilton dealt with the voluntary attendance at college of young adults, while Barnette involved the compelled attendance Page 374 U. S. 253 of young children at elementary and secondary schools. [ Footnote 3/16 ] This distinction warrants a difference in constitutional results. And it is with the involuntary attendance of young school children that we are exclusively concerned in the cases now before the Court. III No one questions that the Framers of the First Amendment intended to restrict exclusively the powers of the Federal Government. [ Footnote 3/17 ] Whatever limitations that Amendment now imposes upon the States derive from the Fourteenth Amendment. The process of absorption of the religious guarantees of the First Amendment as protections against the States under the Fourteenth Amendment began with the Free Exercise Clause. In 1923 the Court held that the protections of the Fourteenth included at least a person's freedom "to worship God according to the dictates of his own conscience. . . ." [ Footnote 3/18 ] Meyer v. Nebraska, 262 U. S. 390 , 262 U. S. 399 . See also Hamilton v. Regents, supra, at 293 U. S. 262 . Cantwell v. Connecticut, 310 U. S. 296 , completed in 1940 the process of absorption Page 374 U. S. 254 of the Free Exercise Clause and recognized its dual aspect: the Court affirmed freedom of belief as an absolute liberty, but recognized that conduct, while it may also be comprehended by the Free Exercise Clause, "remains subject to regulation for the protection of society." 310 U.S. at 310 U. S. 303 -304. This was a distinction already drawn by Reynolds v. United States, supra. From the beginning, this Court has recognized that, while government may regulate the behavioral manifestations of religious beliefs, it may not interfere at all with the beliefs themselves. The absorption of the Establishment Clause has, however, come later, and by a route less easily charted. It has been suggested, with some support in history, that absorption of the First Amendment's ban against congressional legislation "respecting an establishment of religion" is conceptually impossible, because the Framers meant the Establishment Clause also to foreclose any attempt by Congress to disestablish the existing official state churches. [ Footnote 3/19 ] Whether or not such was the understanding of the Framers, and whether such a purpose would have inhibited the absorption of the Establishment Clause at the threshold of the Nineteenth Century, are questions not dispositive of our present inquiry. For it is Page 374 U. S. 255 clear on the record of history that the last of the formal state establishments was dissolved more than three decades before the Fourteenth Amendment was ratified, and thus the problem of protecting official state churches from federal encroachments could hardly have been any concern of those who framed the post-Civil War Amendments. [ Footnote 3/20 ] Any such objective of the First Amendment, having become historical anachronism by 1868, cannot be thought to have deterred the absorption of the Establishment Clause to any greater degree than it would, for example, have deterred the absorption of the Free Exercise Clause. That no organ of the Federal Government possessed in 1791 any power to restrain the interference of the States in religious matters is indisputable. See Permoli v. New Orleans , 3 How. 589. It is equally plain, on the other hand, that the Fourteenth Amendment created a panoply of new federal rights for the protection of citizens of the various States. And among those rights was freedom from such state governmental involvement in the affairs of religion as the Establishment Clause had originally foreclosed on the part of Congress. Page 374 U. S. 256 It has also been suggested that the "liberty" guaranteed by the Fourteenth Amendment logically cannot absorb the Establishment Clause because that Clause is not one of the provisions of the Bill of Rights which in terms protects a "freedom" of the individual. See Corwin, A Constitution of Powers in a Secular State (1951), 113-116. The fallacy in this contention, I think, is that it underestimates the role of the Establishment Clause as a co-guarantor, with the Free Exercise Clause, of religious liberty. The Framers did not entrust the liberty of religious beliefs to either clause alone. The Free Exercise Clause "was not to be the full extent of the Amendment's guarantee of freedom from governmental intrusion in matters of faith." McGowan v. Maryland, supra, at 366 U. S. 464 (opinion of Fankfurter, J.). Finally, it has been contended that absorption of the Establishment Clause is precluded by the absence of any intention on the part of the Framers of the Fourteenth Amendment to circumscribe the residual powers of the States to aid religious activities and institutions in ways which fell short of formal establishments. [ Footnote 3/21 ] That argument relies in part upon the express terms of the Page 374 U. S. 257 abortive Blaine Amendment -- proposed several years after the adoption of the Fourteenth Amendment -- which would have added to the First Amendment a provision that "[n]o State shall make any law respecting an establishment of religion. . . ." Such a restriction would have been superfluous, it is said, if the Fourteenth Amendment had already made the Establishment Clause binding upon the States. The argument proves too much, for the Fourteenth Amendment's protection of the free exercise of religion can hardly be questioned; yet the Blaine Amendment would also have added an explicit protection against state laws abridging that liberty. [ Footnote 3/22 ] Even if we assume that the draftsmen of the Fourteenth Amendment saw no immediate connection between its protections against state action infringing personal liberty and the guarantees of the First Amendment, it is certainly too late in the day to suggest that their assumed inattention to the question dilutes the force of these constitutional guarantees in their application to the States. [ Footnote 3/23 ] It is enough to conclude Page 374 U. S. 258 that the religious liberty embodied in the Fourteenth Amendment would not be viable if the Constitution were interpreted to forbid only establishments ordained by Congress. [ Footnote 3/24 ] Page 374 U. S. 259 The issue of what particular activities the Establishment Clause forbids the States to undertake is our more immediate concern. In Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 15 -16, a careful study of the relevant history led the Court to the view, consistently recognized in decisions since Everson, that the Establishment Clause embodied the Framers' conclusion that government and religion have discrete interests which are mutually best served when each avoids too close a proximity to the other. It is not only the nonbeliever who fears the injection of sectarian doctrines and controversies into the civil polity, but in as high degree it is the devout believer who fears the secularization of a creed which becomes too deeply involved with and dependent upon the government. [ Footnote 3/25 ] It Page 374 U. S. 260 has rightly been said of the history of the Establishment Clause that "our tradition of civil liberty rests not only on the secularism of a Thomas Jefferson, but also on the fervent sectarianism . . . of a Roger Williams." Freund, The Supreme Court of the United States (1961), 84. Our decisions on questions of religious education or exercises in the public schools have consistently reflected this dual aspect of the Establishment Clause. Engel v. Vitale unmistakably has its roots in three earlier cases which, on cognate issues, shaped the contours of the Establishment Clause. First, in Everson, the Court held that reimbursement by the town of parents for the cost of transporting their children by public carrier to parochial (as well as public and private nonsectarian) schools did not offend the Establishment Clause. Such reimbursement, by easing the financial burden upon Catholic parents, may indirectly have fostered the operation of the Catholic schools, and may thereby indirectly have facilitated the teaching of Catholic principles, thus serving ultimately a religious goal. But this form of governmental assistance was difficult to distinguish from myriad other incidental, if not insignificant, government benefits enjoyed by religious institutions -- fire and police protection, tax exemptions, and the pavement of streets and sidewalks, for example. "The State contributes no money to the schools. It does not support them. Its legislation, as applied, does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from Page 374 U. S. 261 accredited schools." 330 U.S. at 330 U. S. 18 . Yet even this form of assistance was thought by four Justices of the Everson Court to be barred by the Establishment Clause because too perilously close to that public support of religion forbidden by the First Amendment. The other two cases, Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203 , and Zorach v. Clauson, 343 U. S. 306 , can best be considered together. Both involved programs of released time for religious instruction of public school students. I reject the suggestion that Zorach overruled McCollum in silence. [ Footnote 3/26 ] The distinction which the Court drew in Zorach between the two cases is, in my view, faithful to the function of the Establishment Clause. I should first note, however, that McCollum and Zorach do not seem to me distinguishable in terms of the free exercise claims advanced in both cases. [ Footnote 3/27 ] The nonparticipant in the McCollum program was given secular instruction in a separate room during the times his classmates had religious lessons; the nonparticipant in any Zorach program also received secular instruction, while his classmates repaired to a place outside the school for religious instruction. The crucial difference, I think, was that the McCollum program offended the Establishment Clause, while the Zorach program did not. This was not, in my view, because of the difference in public expenditures involved. True, the McCollum program involved the regular use of school facilities, classrooms, heat and light and time from the regular school day -- even though the actual Page 374 U. S. 262 incremental cost may have been negligible. All religious instruction under the Zorach program, by contrast, was carried on entirely off the school premises, and the teacher's part was simply to facilitate the children's release to the churches. The deeper difference was that the McCollum program placed the religious instructor in the public school classroom in precisely the position of authority held by the regular teachers of secular subjects, while the Zorach program did not. [ Footnote 3/28 ] The McCollum program, Page 374 U. S. 263 in lending to the support of sectarian instruction all the authority of the governmentally operated public school system, brought government and religion into that proximity which the Establishment Clause forbids. To be sure, a religious teacher presumably commands substantial respect and merits attention in his own right. But the Constitution does not permit that prestige and capacity for influence to be augmented by investiture of all the symbols of authority at the command of the lay teacher for the enhancement of secular instruction. More recent decisions have further etched the contours of Establishment. In the Sunday Law Cases, we found in state laws compelling a uniform day of rest from worldly labor no violation of the Establishment Clause ( McGowan v. Maryland, 366 U. S. 420 ). The basic Page 374 U. S. 264 ground of our decision was that, granted the Sunday Laws were first enacted for religious ends, they were continued in force for reasons wholly secular, namely, to provide a universal day of rest and ensure the health and tranquillity of the community. In other words, government may originally have decreed a Sunday day of rest for the impermissible purpose of supporting religion, but abandoned that purpose and retained the laws for the permissible purpose of furthering overwhelmingly secular ends. Such was the evolution of the contours of the Establishment Clause before Engel v. Vitale. There, a year ago, we held that the daily recital of the state-composed Regents' Prayer constituted an establishment of religion because, although the prayer itself revealed no sectarian content or purpose, its nature and meaning were quite clearly religious. New York, in authorizing its recitation, had not maintained that distance between the public and the religious sectors commanded by the Establishment Clause when it placed the "power, prestige and financial support of government" behind the prayer. In Engel, as in McCollum, it did not matter that the amount of time and expense allocated to the daily recitation was small, so long as the exercise itself was manifestly religious. Nor did it matter that few children had complained of the practice, for the measure of the seriousness of a breach of the Establishment Clause has never been thought to be the number of people who complain of it. We also held two Terms ago, in Torcaso v. Watkins, supra, that a State may not constitutionally require an applicant for the office of Notary Public to swear or affirm that he believes in God. The problem of that case was strikingly similar to the issue presented 18 years before in the flag salute case, West Virginia Board of Education v. Barnette, supra. In neither case was there any claim of establishment of religion, but only of infringement of Page 374 U. S. 265 the individual's religious liberty -- in the one case, that of the nonbeliever who could not attest to a belief in God; in the other, that of the child whose creed forbade in to salute the flag. But Torcaso added a new element not present in Barnette. The Maryland test oath involved an attempt to employ essentially religious (albeit nonsectarian) means to achieve a secular goal to which the means bore no reasonable relationship. No one doubted the State's interest in the integrity of its Notaries Public, but that interest did not warrant the screening of applicants by means of a religious test. The Sunday Law Cases were different in that respect. Even if Sunday Laws retain certain religious vestiges, they are enforced today for essentially secular objectives which cannot be effectively achieved in modern society except by designating Sunday as the universal day of rest. The Court's opinions cited very substantial problems in selecting or enforcing an alternative day of rest. But the teaching of both Torcaso and the Sunday Law Cases is that government may not employ religious means to serve secular interests, however legitimate they may be, at least without the clearest demonstration that nonreligious means will not suffice. [ Footnote 3/29 ] Page 374 U. S. 266 IV I turn now to the cases before us. [ Footnote 3/30 ] The religious nature of the exercises here challenged seems plain. Unless Engel v. Vitale is to be overruled or we are to engage in wholly disingenuous distinction, we cannot sustain Page 374 U. S. 267 these practices. Daily recital of the Lord's Prayer and the reading of passages of Scripture are quite as clearly breaches of the command of the Establishment Clause as was the daily use of the rather bland Regents' Prayer in the New York public schools. Indeed, I would suppose that, if anything, the Lord's Prayer and the Holy Bible are more clearly sectarian, and the present violations of the First Amendment consequently more serious. But the religious exercises challenged in these cases have a long history. And, almost from the beginning, Bible reading and daily prayer in the schools have been the subject of debate, criticism by educators and other public officials, and proscription by courts and legislative councils. At the outset, then, we must carefully canvass both aspects of this history. The use of prayers and Bible readings at the opening of the school day long antedates the founding of our Republic. The Rules of the New Haven Hopkins Grammar School required in 1684 "[t]hat, the Scholars being Page 374 U. S. 268 called together, the Mr. shall every morning begin his work with a short prayer for a blessing on his Laboures and their learning. . . . [ Footnote 3/31 ]" More rigorous was the provision in a 1682 contract with a Dutch schoolmaster in Flatbush, New York: "When the school begins, one of the children shall read the morning prayer, as it stands in the catechism, and close with the prayer before dinner; in the afternoon, it shall begin with the prayer after dinner, and end with the evening prayer. The evening school shall begin with the Lord's prayer, and close by singing a psalm. [ Footnote 3/32 ]" After the Revolution, the new States uniformly continued these long-established practices in the private and the few public grammar schools. The school committee of Boston in 1789, for example, required the city's several schoolmasters "daily to commence the duties of their office by prayer and reading a portion of the Sacred Scriptures. . . ." [ Footnote 3/33 ] That requirement was mirrored throughout the original States, and exemplified the universal practice well into the nineteenth century. As the free public schools gradually supplanted the private academies and sectarian schools between 1800 and 1850, morning devotional exercises were retained with few alterations. Indeed, public pressures upon school administrators in many parts of the country would hardly have condoned abandonment of practices to which a century or more of private religious education had accustomed the American people. [ Footnote 3/34 ] The controversy centered, in Page 374 U. S. 269 fact, principally about the elimination of plainly sectarian practices and textbooks, and led to the eventual substitution of nonsectarian, though still religious, exercises and materials. [ Footnote 3/35 ] Statutory provision for daily religious exercises is, however, of quite recent origin. At the turn of this century, there was but one State -- Massachusetts -- which had a law making morning prayer or Bible reading obligatory. Statutes elsewhere either permitted such practices or simply left the question to local option. It was not until after 1910 that 11 more States, within a few years, joined Massachusetts in making one or both exercises compulsory. [ Footnote 3/36 ] The Pennsylvania law with which we are Page 374 U. S. 270 concerned in the Schempp case, for example, took effect in 1913, and even the Rule of the Baltimore School Board involved in the Murray case dates only from 1905. In no State has there ever been a constitutional or statutory prohibition against the recital of prayers or the reading of Scripture, although a number of States have outlawed these practices by judicial decision or administrative order. What is noteworthy about the panoply of state and local regulations from which these cases emerge is the relative recency of the statutory codification of practices which have ancient roots, and the rather small number of States which have ever prescribed compulsory religious exercises in the public schools. The purposes underlying the adoption and perpetuation of these practices are somewhat complex. It is beyond question that the religious benefits and values realized from daily prayer and Bible reading have usually been considered paramount, and sufficient to justify the continuation of such practices. To Horace Mann, embroiled in an intense controversy over the role of sectarian instruction and textbooks in the Boston public schools, there was little question that the regular use of the Bible -- which he thought essentially nonsectarian -- would bear fruit in the spiritual enlightenment of his pupils. [ Footnote 3/37 ] A contemporary of Mann's, the Commissioner of Education of a neighboring State, expressed a view which many enlightened educators of that day shared: "As a textbook of morals, the Bible is preeminent, and should have a prominent place in our schools, Page 374 U. S. 271 either as a reading book or as a source of appeal and instruction. Sectarianism, indeed, should not be countenanced in the schools; but the Bible is not sectarian. . . . The Scriptures should at least be read at the opening of the school, if no more. Prayer may also be offered with the happiest effects. [ Footnote 3/38 ]" Wisconsin's Superintendent of Public Instruction, writing a few years later in 1858, reflected the attitude of his eastern colleagues, in that he regarded "with special favor the use of the Bible in public schools, as preeminently first in importance among textbooks for teaching the noblest principles of virtue, morality, patriotism, and good order -- love and reverence for God -- charity and good will to man. [ Footnote 3/39 ]" Such statements reveal the understanding of educators that the daily religious exercises in the schools served broader goals than compelling formal worship of God or fostering church attendance. The religious aims of the educators who adopted and retained such exercises were comprehensive, and in many cases quite devoid of sectarian bias -- but the crucial fact is that they were nonetheless religious. While it has been suggested, see pp. 374 U. S. 278 -281, infra that daily prayer and reading of Scripture now serve secular goals as well, there can be no doubt that the origins of these practices were unambiguously religious, even where the educator's aim was not to win adherents to a particular creed or faith. Almost from the beginning, religious exercises in the public schools have been the subject of intense criticism, vigorous debate, and judicial or administrative prohibition. Significantly, educators and school boards Page 374 U. S. 272 early entertained doubts about both the legality and the soundness of opening the school day with compulsory prayer or Bible reading. Particularly in the large Eastern cities, where immigration had exposed the public schools to religious diversities and conflicts unknown to the homogeneous academies of the eighteenth century, local authorities found it necessary even before the Civil War to seek an accommodation. In 1843, the Philadelphia School Board adopted the following resolutions: "RESOLVED, that no children be required to attend or unite in the reading of the Bible in the Public Schools, whose parents are conscientiously opposed thereto: " "RESOLVED, that those children whose parents conscientiously prefer and desire any particular version of the Bible, without note or comment, be furnished with same. [ Footnote 3/40 ]" A decade later, the Superintendent of Schools of New York State issued an even bolder decree that prayers could no longer be required as part of public school activities, and that, where the King James Bible was read, Catholic students could not be compelled to attend. [ Footnote 3/41 ] This type of accommodation was not restricted to the East Coast; the Cincinnati Board of Education resolved in 1869 that "religious instruction and the reading of religious books, including the Holy Bible, are prohibited in the common schools of Cincinnati, it being the true object and intent of this rule to allow the children of the parents of all sects and opinions, in matters of faith and worship, Page 374 U. S. 273 to enjoy alike the benefit of the common school fund. [ Footnote 3/42 ]" The Board repealed at the same time an earlier regulation which had required the singing of hymns and psalms to accompany the Bible reading at the start of the school day. And, in 1889, one commentator ventured the view that "[t]here is not enough to be gained from Bible reading to justify the quarrel that has been raised over it." [ Footnote 3/43 ] Thus, a great deal of controversy over religion in the public schools had preceded the debate over the Blaine Amendment, precipitated by President Grant's insistence that matters of religion should be left "to the family altar, the church, and the private school, supported entirely by private contributions." [ Footnote 3/44 ] There was ample precedent, too, for Theodore Roosevelt's declaration that, in the interest of "absolutely nonsectarian public schools," it was "not our business to have the Protestant Bible or the Catholic Vulgate or the Talmud read in those schools." [ Footnote 3/45 ] The same principle appeared in the message of an Ohio Governor who vetoed a compulsory Bible reading bill in 1925: "It is my belief that religious teaching in our homes, Sunday schools, churches, by the good Page 374 U. S. 274 mothers, fathers, and ministers of Ohio is far preferable to compulsory teaching of religion by the state. The spirit of our federal and state constitutions from the beginning. . . [has] been to leave religious instruction to the discretion of parents. [ Footnote 3/46 ]" The same theme has recurred in the opinions of the Attorneys General of several States holding religious exercises or instruction to be in violation of the state or federal constitutional command of separation of church and state. [ Footnote 3/47 ] Thus, the basic principle upon which our decision last year in Engel v. Vitale necessarily rested, and which we reaffirm today, can hardly be thought to be radical or novel. Particularly relevant for our purposes are the decisions of the state courts on questions of religion in the public schools. Those decisions, while not, of course, authoritative in this Court, serve nevertheless to define the problem before us and to guide our inquiry. With the growth of religious diversity and the rise of vigorous dissent it was inevitable that the courts would be called upon to enjoin religious practices in the public schools which offended certain sects and groups. The earliest of such decisions declined to review the propriety of actions taken by school authorities, so long as those actions were within Page 374 U. S. 275 the purview of the administrators' powers. [ Footnote 3/48 ] Thus, where the local school board required religious exercises, the courts would not enjoin them, [ Footnote 3/49 ] and where, as in at least one case, the school officials forbade devotional practices, the court refused on similar grounds to overrule that decision. [ Footnote 3/50 ] Thus, whichever way the early cases came up, the governing principle of nearly complete deference to administrative discretion effectively foreclosed any consideration of constitutional questions. The last quarter of the nineteenth century found the courts beginning to question the constitutionality of public school religious exercises. The legal context was still, of course, that of the state constitutions, since the First Amendment had not yet been held applicable to state action. And the state constitutional prohibitions against church-state cooperation or governmental aid to religion were generally less rigorous than the Establishment Clause of the First Amendment. It is therefore remarkable that the courts of a half dozen States found compulsory religious exercises in the public schools in violation of their respective state constitutions. [ Footnote 3/51 ] These Page 374 U. S. 276 courts attributed much significance to the clearly religious origins and content of the challenged practices, and to the impossibility of avoiding sectarian controversy in their conduct. The Illinois Supreme Court expressed in 1910 the principles which characterized these decisions: "The public school is supported by the taxes which each citizen, regardless of his religion or his lack of it, is compelled to pay. The school, like the government, is simply a civil institution. It is secular, and not religious, in its purposes. The truths of the Bible are the truths of religion, which do not come within the province of the public school. . . . No one denies that they should be taught to the youth of the State. The constitution and the law do not interfere with such teaching, but they do banish theological polemics from the schools and the school districts. This is done not from any hostility to religion, but because it is no part of the duty of the State to teach religion -- to take the money of all and apply it to teaching the children of all the religion of a part only. Instruction in religion must be voluntary." People ex rel. Ring v. Board of Education, 245 Ill. 334, 349, 92 N.E. 251, 256 (1910). The Supreme Court of South Dakota, in banning devotional exercises from the public schools of that State, also cautioned that "[t]he state as an educator must keep out of this field, and especially is this true in the common schools, where the child is immature, without fixed religious convictions. . . ." State ex rel. Finger v. Weedman, 55 S.D. 343, 357, 226 N.W. 348, 354 (1929). Page 374 U. S. 277 Even those state courts which have sustained devotional exercises under state law [ Footnote 3/52 ] have usually recognized the primarily religious character of prayers and Bible readings. If such practices were not for that reason unconstitutional, it was necessarily because the state constitution forbade only public expenditures for sectarian instruction, or for activities which made the schoolhouse a "place of worship," but said nothing about the subtler question of laws "respecting an establishment of religion." [ Footnote 3/53 ] Thus, the panorama of history permits no Page 374 U. S. 278 other conclusion than that daily prayers and Bible readings in the public schools have always been designed to be, and have been regarded as, essentially religious exercises. Unlike the Sunday closing laws, these exercises appear neither to have been divorced from their religious origins nor deprived of their centrally religious character by the passage of time, [ Footnote 3/54 ] cf. McGowan v. Maryland, supra, at 366 U. S. 442 -445. On this distinction alone we might well rest a constitutional decision. But three further contentions have been pressed in the argument of these cases. These contentions deserve careful consideration, for if the position of the school authorities were correct in respect to any of them, we would be misapplying the principles of Engel v. Vitale. A First, it is argued that, however clearly religious may have been the origins and early nature of daily prayer and Bible reading, these practices today serve so clearly secular educational purposes that their religious attributes may be overlooked. I do not doubt, for example, that morning devotional exercises may foster better discipline in the classroom, and elevate the spiritual level on which the school day opens. The Pennsylvania Superintendent of Public Instruction, testifying by deposition in the Schempp case, offered his view that daily Bible reading "places upon the children or those hearing the reading of this, and the atmosphere which goes on in the reading . . . one of the last vestiges of moral value Page 374 U. S. 279 that we have left in our school system." The exercise thus affords, the Superintendent concluded, "a strong contradiction to the materialistic trends of our time." Baltimore's Superintendent of Schools expressed a similar view of the practices challenged in the Murray case, to the effect that "[t]he acknowledgement of the existence of God as symbolized in the opening exercises establishes a discipline tone which tends to cause each individual pupil to constrain his overt acts and to consequently conform to accepted standards of behavior during his attendance at school." These views are by no means novel, see, e.g., Billard v. Board of Education, 69 Kan. 53, 57-58, 76 P. 422, 423 (1904). [ Footnote 3/55 ] It is not the business of this Court to gainsay the judgments of experts on matters of pedagogy. Such decisions must be left to the discretion of those administrators charged with the supervision of the Nation's public schools. The limited province of the courts is to determine whether the means which the educators have chosen to achieve legitimate pedagogical ends infringe the constitutional freedoms of the First Amendment. The secular purposes which devotional exercises are said to serve fall into two categories -- those which depend upon an immediately religious experience shared by the participating children and those which appear sufficiently divorced from the religious content of the devotional material that they can be served equally by nonreligious Page 374 U. S. 280 materials. With respect to the first objective, much has been written about the moral and spiritual values of infusing some religious influence or instruction into the public school classroom. [ Footnote 3/56 ] To the extent that only religious materials will serve this purpose, it seems to me that the purpose, as well as the means, is so plainly religious that the exercise is necessarily forbidden by the Establishment Clause. The fact that purely secular benefits may eventually result does not seem to me to justify the exercises, for similar indirect nonreligious benefits could no doubt have been claimed for the released time program invalidated in McCollum. The second justification assumes that religious exercises at the start of the school day may directly serve solely secular ends -- for example, by fostering harmony and tolerance among the pupils, enhancing the authority of the teacher, and inspiring better discipline. To the extent that such benefits result not from the content of the readings and recitation, but simply from the holding of such a solemn exercise at the opening assembly or the first class of the day, it would seem that less sensitive materials might equally well serve the same purpose. I have previously suggested that Torcaso and the Sunday Law Cases forbid the use of religious means to achieve secular Page 374 U. S. 281 ends where nonreligious means will suffice. That principle is readily applied to these cases. It has not been shown that readings from the speeches and messages of great Americans, for example, or from the documents of our heritage of liberty, daily recitation of the Pledge of Allegiance, or even the observance of a moment of reverent silence at the opening of class, may not adequately serve the solely secular purposes of the devotional activities without jeopardizing either the religious liberties of any members of the community or the proper degree of separation between the spheres of religion and government. [ Footnote 3/57 ] Such substitutes would, I think, be unsatisfactory or inadequate only to the extent that the present activities do, in fact, serve religious goals. While I do not question the judgment of experienced educators that the challenged practices may well achieve valuable secular ends, it seems to me that the State acts unconstitutionally if it either sets about to attain even indirectly religious ends by religious means, or if it uses religious means to serve secular ends where secular means would suffice. B Second, it is argued that the particular practices involved in the two cases before us are unobjectionable Page 374 U. S. 282 because the prefer no particular sect or sects at the expense of others. Both the Baltimore and Abington procedures permit, for example, the reading of any of several versions of the Bible, and this flexibility is said to ensure neutrality sufficiently to avoid the constitutional prohibition. One answer, which might be dispositive, is that any version of the Bible is inherently sectarian, else there would be no need to offer a system of rotation or alternation of versions in the first place, that is, to allow different sectarian versions to be used on different days. The sectarian character of the Holy Bible has been at the core of the whole controversy over religious practices in the public schools throughout its long and often bitter history. [ Footnote 3/58 ] To Page 374 U. S. 283 vary the version as the Abington and Baltimore schools have done may well be less offensive than to read from the King James version every day, as once was the practice. But the result even of this relatively benign procedure is that majority sects are preferred in approximate proportion to their representation in the community and in the student body, while the smaller sects suffer commensurate discrimination. So long as the subject matter of the exercise is sectarian in character, these consequences cannot be avoided. The argument contains, however, a more basic flaw. There are persons in every community -- often deeply devout -- to whom any version of the Judaeo-Christian Bible is offensive. [ Footnote 3/59 ] There are others whose reverence for the Holy Scriptures demands private study or reflection, and to whom public reading or recitation is sacrilegious, as one of the expert witnesses at the trial of the Schempp case explained. To such persons, it is not the fact of using the Bible in the public schools, nor the content of any particular version, that is offensive, but only the manner in Page 374 U. S. 284 which it is used. [ Footnote 3/60 ] For such persons, the anathema of public communion is even more pronounced when prayer is involved. Many deeply devout persons have always regarded prayer as a necessarily private experience. [ Footnote 3/61 ] One Protestant group recently commented, for example: "When one thinks of prayer as sincere outreach of a Page 374 U. S. 285 human soul to the Creator, 'required prayer' becomes an absurdity." [ Footnote 3/62 ] There is a similar problem with respect to comment upon the passages of Scripture which are to be read. Most present statutes forbid comment, and this practice accords with the views of many religious groups as to the manner in which the Bible should be read. However, as a recent survey discloses, scriptural passages read without comment frequently convey no message to the younger children in the school. Thus, there has developed a practice in some schools of bridging the gap between faith and understanding by means of "definitions," even where "comment" is forbidden by statute. [ Footnote 3/63 ] The present practice, therefore, poses a difficult dilemma: while Bible reading is almost universally required to be without comment, since only by such a prohibition can sectarian interpretation be excluded from the classroom, Page 374 U. S. 286 the rule breaks down at the point at which rudimentary definitions of Biblical terms are necessary for comprehension if the exercise is to be meaningful at all. It has been suggested that a tentative solution to these problems may lie in the fashioning of a "common core" of theology tolerable to all creeds but preferential to none. [ Footnote 3/64 ] But as one commentator has recently observed, "[h]istory is not encouraging to" those who hope to fashion a "common denominator of religion detached from its manifestation in any organized church." Sutherland, Establishment According to Engel, 76 Harv.L.Rev. 25, 51 (1962). Thus, the notion of a "common core" litany or supplication offends many deeply devout worshippers who do not find clearly sectarian practices objectionable. [ Footnote 3/65 ] Father Gustave Weigel has recently expressed Page 374 U. S. 287 a widely shared view: "The moral code held by each separate religious community can reductively be unified, but the consistent particular believer wants no such reduction. [ Footnote 3/66 ]" And, as the American Council on Education warned several years ago, "The notion of a common core suggests a watering down of the several faiths to the point where common essentials appear. This might easily lead to a new sect -- a public school sect -- which would take its place alongside the existing faiths and compete with them. [ Footnote 3/67 ]" Engel is surely authority that nonsectarian religious practices, equally with sectarian exercises, violate the Establishment Clause. Moreover, even if the Establishment Clause were oblivious to nonsectarian religious practices, I think it quite likely that the "common core" approach would be sufficiently objectionable to many groups to be foreclosed by the prohibitions of the Free Exercise Clause. C A third element which is said to absolve the practices involved in these cases from the ban of the religious guarantees of the Constitution is the provision to excuse or exempt students who wish not to participate. Insofar as these practices are claimed to violate the Establishment Page 374 U. S. 288 Clause, I find the answer which the District Court gave after our remand of Schempp to be altogether dispositive: "The fact that some pupils, or theoretically all pupils, might be excused from attendance at the exercises does not mitigate the obligatory nature of the ceremony. . . . The exercises are held in the school buildings, and perforce are conducted by and under the authority of the local school authorities and during school sessions. Since the statute requires the reading of the 'Holy Bible,' a Christian document, the practice, as we said in our first opinion, prefers the Christian religion. The record demonstrates that it was the intention of the General Assembly of the Commonwealth of Pennsylvania to introduce a religious ceremony into the public schools of the Commonwealth." 201 F. Supp. at 819. Thus, the short, and to me sufficient, answer is that the availability of excusal or exemption simply has no relevance to the establishment question, if it is once found that these practices are essentially religious exercises designed at least in part to achieve religious aims through the use of public school facilities during the school day. The more difficult question, however, is whether the availability of excusal for the dissenting child serves to refute challenges to these practices under the Free Exercise Clause. While it is enough to decide these cases to dispose of the establishment questions, questions of free exercise are so inextricably interwoven into the history and present status of these practices as to justify disposition of this second aspect of the excusal issue. The answer is that the excusal procedure itself necessarily operates in such a way as to infringe the rights of free exercise of those children who wish to be excused. We have held in Barnette and Torcaso, respectively, that a State may require neither public school students nor candidates Page 374 U. S. 289 for an office of public trust to profess beliefs offensive to religious principles. By the same token, the State could not constitutionally require a student to profess publicly his disbelief as the prerequisite to the exercise of his constitutional right of abstention. And apart from Torcaso and Barnette, I think Speiser v. Randall, 357 U. S. 513 , suggests a further answer. We held there that a State may not condition the grant of a tax exemption upon the willingness of those entitled to the exemption to affirm their loyalty to the Government, even though the exemption was itself a matter of grace, rather than of constitutional right. We concluded that to impose upon the eligible taxpayers the affirmative burden of proving their loyalty impermissibly jeopardized the freedom to engage in constitutionally protected activities close to the area to which the loyalty oath related. Speiser v. Randall seems to me to dispose of two aspects of the excusal or exemption procedure now before us. First, by requiring what is tantamount in the eyes of teachers and schoolmates to a profession of disbelief, or at least of nonconformity, the procedure may well deter those children who do not wish to participate for any reason based upon the dictates of conscience from exercising an indisputably constitutional right to be excused. [ Footnote 3/68 ] Thus, the excusal Page 374 U. S. 290 provision in its operation subjects them to a cruel dilemma. In consequence, even devout children may well avoid claiming their right and simply continue to participate in exercises distasteful to them because of an understandable reluctance to be stigmatized as atheists or nonconformists simply on the basis of their request. Such reluctance to seek exemption seems all the more likely in view of the fact that children are disinclined at this age to step out of line or to flout "peer-group norms." Such is the widely held view of experts who have studied the behaviors and attitudes of children. [ Footnote 3/69 ] This is also Page 374 U. S. 291 the basis of Mr. Justice Frankfurter's answer to a similar contention made in the McCollum case: "That a child is offered an alternative may reduce the constraint; it does not eliminate the operation of influence by the school in matters sacred to conscience and outside the school's domain. The law of imitation operates, and nonconformity is not an Page 374 U. S. 292 outstanding characteristic of children. The result is an obvious pressure upon children to attend." 333 U.S. at 333 U. S. 227 . Also apposite is the answer given more than 70 years ago by the Supreme Court of Wisconsin to the argument that an excusal provision saved a public school devotional exercise from constitutional invalidation: ". . . the excluded pupil loses caste with his fellows, and is liable to be regarded with aversion, and subjected to reproach and insult. But it is a sufficient refutation of the argument that the practice in question tends to destroy the equality of the pupils which the constitution seeks to establish and protect, and puts a portion of them to serious disadvantage in many ways with respect to the others." State ex rel. Weiss v. District Board of School District No. 8, 76 Wis. 177, 200, 44 N.W. 967, 975. And, 50 years ago, a like answer was offered by the Louisiana Supreme Court: "Under such circumstances, the children would be excused from the opening exercises . . . because of their religious beliefs. And excusing such children on religious grounds, although the number excused might be very small, would be a distinct preference in favor of the religious beliefs of the majority, and would work a discrimination against those who were excused. The exclusion of a pupil under such circumstances puts him in a class by himself; it subjects him to a religious stigma, and all because of his religious belief. Equality in public education would be destroyed by such act, under a Constitution which seeks to establish equality and freedom in religious matters." Herold v. Parish Board of School Directors, 136 La. 1034, 1049-1050, 68 So. 116, 121. See also Tudor v. Board of Education, 14 N.J. 31, 48-52, Page 374 U. S. 293 100 A.2d 857 , 867-868; Brown v. Orange County Board of Public Instruction, 128 So. 2d 181, 185 (Fla.App.). Speiser v. Randall also suggests the answer to a further argument based on the excusal procedure. It has been suggested by the School Board, in Schempp, that we ought not pass upon the appellees' constitutional challenge at least until the children have availed themselves of the excusal procedure and found it inadequate to redress their grievances. Were the right to be excused not itself of constitutional stature, I might have some doubt about this issue. But we held in Speiser that the constitutional vice of the loyalty oath procedure discharged any obligation to seek the exemption before challenging the constitutionality of the conditions upon which it might have been denied. 357 U.S. at 357 U. S. 529 . Similarly, we have held that one need not apply for a permit to distribute constitutionally protected literature, Lovell v. Griffin, 303 U. S. 444 , or to deliver a speech, Thomas v. Collins, 323 U. S. 516 , before he may attack the constitutionality of a licensing system of which the defect is patent. Insofar as these cases implicate only questions of establishment, it seems to me that the availability of an excuse is constitutionally irrelevant. Moreover, the excusal procedure seems to me to operate in such a way as to discourage the free exercise of religion on the part of those who might wish to utilize it, thereby rendering it unconstitutional in an additional and quite distinct respect. To summarize my views concerning the merits of these two cases: the history, the purpose and the operation of the daily prayer recital and Bible reading leave no doubt that these practices, standing by themselves, constitute an impermissible breach of the Establishment Clause. Such devotional exercises may well serve legitimate nonreligious purposes. To the extent, however, that such purposes Page 374 U. S. 294 are really without religious significance, it has never been demonstrated that secular means would not suffice. Indeed, I would suggest that patriotic or other nonreligious materials might provide adequate substitutes -- inadequate only to the extent that the purposes now served are indeed directly or indirectly religious. Under such circumstances, the States may not employ religious means to reach a secular goal unless secular means are wholly unavailing. I therefore agree with the Court that the judgment in Schempp, No. 142, must be affirmed, and that, in Murray, No. 119, must be reversed. V These considerations bring me to a final contention of the school officials in these cases: that the invalidation of the exercises at bar permits this Court no alternative but to declare unconstitutional every vestige, however slight, of cooperation or accommodation between religion and government. I cannot accept that contention. While it is not, of course, appropriate for this Court to decide questions not presently before it, I venture to suggest that religious exercises in the public schools present a unique problem. For not every involvement of religion in public life violates the Establishment Clause. Our decision in these cases does not clearly forecast anything about the constitutionality of other types of interdependence between religious and other public institutions. Specifically, I believe that the line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers. It is a line which the Court has consistently sought to mark in its decisions expounding the religious guarantees of the First Amendment. What the Framers meant to foreclose, and what our decisions under the Establishment Clause have forbidden, Page 374 U. S. 295 are those involvements of religious with secular institutions which (a) serve the essentially religious activities of religious institutions; (b) employ the organs of government for essentially religious purposes; or (c) use essentially religious means to serve governmental ends where secular means would suffice. When the secular and religious institutions become involved in such a manner, there inhere in the relationship precisely those dangers -- as much to church as to state -- which the Framers feared would subvert religious liberty and the strength of a system of secular government. On the other hand, there may be myriad forms of involvements of government with religion which do not import such dangers, and therefore should not, in my judgment, be deemed to violate the Establishment Clause. Nothing in the Constitution compels the organs of government to be blind to what everyone else perceives -- that religious differences among Americans have important and pervasive implications for our society. Likewise, nothing in the Establishment Clause forbids the application of legislation having purely secular ends in such a way as to alleviate burdens upon the free exercise of an individual's religious beliefs. Surely the Framers would never have understood that such a construction sanctions that involvement which violates the Establishment Clause. Such a conclusion can be reached, I would suggest, only by using the words of the First Amendment to defeat its very purpose. The line between permissible and impermissible forms of involvement between government and religion has already been considered by the lower federal and state courts. I think a brief survey of certain of these forms of accommodation will reveal that the First Amendment commands not official hostility toward religion, but only a strict neutrality in matters of religion. Moreover, it may serve to suggest that the scope of our holding today Page 374 U. S. 296 is to be measured by the special circumstances under which these cases have arisen, and by the particular dangers to church and state which religious exercises in the public schools present. It may be helpful for purposes of analysis to group these other practices and forms of accommodation into several rough categories. A. The Conflict Between Establishment and Free Exercise. -- There are certain practices, conceivably violative of the Establishment Clause, the striking down of which might seriously interfere with certain religious liberties also protected by the First Amendment. [ Footnote 3/70 ] Provisions for churches and chaplains at military establishments for those in the armed services may afford one such example. [ Footnote 3/71 ] Page 374 U. S. 297 The like provision by state and federal governments for chaplains in penal institutions may afford another example. [ Footnote 3/72 ] It is argued that such provisions may be assumed to contravene the Establishment Clause, yet be sustained on constitutional grounds as necessary to secure to the members of the Armed Forces and prisoners those rights of worship guaranteed under the Free Exercise Clause. Since government has deprived such persons of the opportunity Page 374 U. S. 298 to practice their faith at places of their choice, the argument runs, government may, in order to avoid infringing the free exercise guarantees, provide substitutes where it requires such persons to be. Such a principle might support, for example, the constitutionality of draft exemptions for ministers and divinity students, [ Footnote 3/73 ] cf. Selective Draft Law Cases, 245 U. S. 366 , 245 U. S. 389 -390; of the excusal of children from school on their respective religious holidays, and of the allowance by government of temporary use of public buildings by religious organizations when their own churches have become unavailable because of a disaster or emergency. [ Footnote 3/74 ] Such activities and practices seem distinguishable from the sponsorship of daily Bible reading and prayer recital. For one thing, there is no element of coercion present in the appointment of military or prison chaplains; the soldier or convict who declines the opportunities for worship would not ordinarily subject himself to the suspicion or obloquy of his peers. Of special significance to this distinction is the fact that we are here usually dealing Page 374 U. S. 299 with adults, not with impressionable children as in the public schools. Moreover, the school exercises are not designed to provide the pupils with general opportunities for worship denied them by the legal obligation to attend school. The student's compelled presence in school for five days a week in no way renders the regular religious facilities of the community less accessible to him than they are to others. The situation of the school child is therefore plainly unlike that of the isolated soldier or the prisoner. The State must be steadfastly neutral in all matters of faith, and neither favor nor inhibit religion. In my view, government cannot sponsor religious exercises in the public schools without jeopardizing that neutrality. On the other hand, hostility, not neutrality, would characterize the refusal to provide chaplains and places of worship for prisoners and soldiers cut off by the State from all civilian opportunities for public communion, the withholding of draft exemptions for ministers and conscientious objectors, or the denial of the temporary use of an empty public building to a congregation whose place of worship has been destroyed by fire or flood. I do not say that government must provide chaplains or draft exemptions, or that the courts should intercede if it fails to do so. B. Establishment and Exercises in Legislative Bodies. -- The saying of invocational prayers in legislative chambers, state or federal, and the appointment of legislative chaplains, might well represent no involvements of the kind prohibited by the Establishment Clause. [ Footnote 3/75 ] Legislators, federal and state, are mature adults who may presumably absent themselves from such public and ceremonial Page 374 U. S. 300 exercises without incurring any penalty, direct or indirect. It may also be significant that, at least in the case of the Congress, Art. I, § 5, of the Constitution makes each House the monitor of the "Rules of its Proceedings" so that it is at least arguable whether such matters present "political questions" the resolution of which is exclusively confided to Congress. See Baker v. Carr, 369 U. S. 186 , 369 U.S. 232 . Finally, there is the difficult question of who may be heard to challenge such practices. See Elliott v. White, 23 F.2d 997. C. Non-Devotional Use of the Bible in the Public Schools. -- The holding of the Court today plainly does not foreclose teaching about the Holy Scriptures or about the differences between religious sects in classes in literature or history. Indeed, whether or not the Bible is involved, it would be impossible to teach meaningfully many subjects in the social sciences or the humanities without some mention of religion. [ Footnote 3/76 ] To what extent, and at what points in the curriculum, religious materials should be cited are matters which the courts ought to entrust very largely to the experienced officials who superintend our Nation's public schools. They are experts in such matters, and we are not. We should heed Mr. Justice Jackson's caveat that any attempt by this Court to announce curricular standards would be "to decree a uniform, rigid and, if we are consistent, an unchanging standard for countless school boards representing Page 374 U. S. 301 and serving highly localized groups which not only differ from each other, but which themselves from time to time change attitudes." Illinois ex rel. McCollum v. Board of Education, supra, at 333 U. S. 237 . We do not, however, in my view, usurp the jurisdiction of school administrators by holding, as we do today, that morning devotional exercises in any form are constitutionally invalid. But there is no occasion now to go further and anticipate problems we cannot judge with the material now before us. Any attempt to impose rigid limits upon the mention of God or references to the Bible in the classroom would be fraught with dangers. If it should sometime hereafter be shown that, in fact, religion can play no part in the teaching of a given subject without resurrecting the ghost of the practices we strike down today, it will then be time enough to consider questions we must now defer. D. Uniform Tax Exemptions Incidentally Available to Religious Institutions. -- Nothing we hold today questions the propriety of certain tax deductions or exemptions which incidentally benefit churches and religious institutions, along with many secular charities and nonprofit organizations. If religious institutions benefit, it is in spite of, rather than because of, their religious character. For religious institutions simply share benefits which government makes generally available to educational, charitable, and eleemosynary groups. [ Footnote 3/77 ] There is no indication that taxing authorities have used such benefits in any way to subsidize worship or foster belief in God. And as Page 374 U. S. 302 among religious beneficiaries, the tax exemption or deduction can be truly nondiscriminatory, available on equal terms to small as well as large religious bodies, to popular and unpopular sects, and to those organizations which reject, as well as those which accept, a belief in God. [ Footnote 3/78 ] E. Religious Considerations in Public Welfare Programs. -- Since government may not support or directly aid religious activities without violating the Establishment Clause, there might be some doubt whether nondiscriminatory programs of governmental aid may constitutionally include individuals who become eligible wholly or partially for religious reasons. For example, it might be suggested that, where a State provides unemployment compensation generally to those who are unable to find suitable work, it may not extend such benefits to persons who are unemployed by reason of religious beliefs or practices without thereby establishing the religion to which those persons belong. Therefore, the argument runs, the State may avoid an establishment only by singling out and excluding such persons on the ground that religious beliefs or practices have made them potential beneficiaries. Such a construction would, it seems to me, require government to impose religious discriminations and disabilities, thereby jeopardizing the free exercise of religion, in order to avoid what is thought to constitute an establishment. The inescapable flaw in the argument, I suggest, is its quite unrealistic view of the aims of the Establishment Clause. The Framers were not concerned with the effects of certain incidental aids to individual worshippers which come about as by-products of general and nondiscriminatory welfare programs. If such benefits serve to make Page 374 U. S. 303 easier or less expensive the practice of a particular creed, or of all religions, it can hardly be said that the purpose of the program is in any way religious, or that the consequence of its nondiscriminatory application is to create the forbidden degree of interdependence between secular and sectarian institutions. I cannot therefore accept the suggestion, which seems to me implicit in the argument outlined here, that every judicial or administrative construction which is designed to prevent a public welfare program from abridging the free exercise of religious beliefs, is for, that reason, ipso facto, an establishment of religion. F. Activities Which, Though Religious in Origin, Have Ceased to Have Religious Meaning. -- As we noted in our Sunday Law decisions, nearly every criminal law on the books can be traced to some religious principle or inspiration. But that does not make the present enforcement of the criminal law in any sense an establishment of religion, simply because it accords with widely held religious principles. As we said in McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 442 , "the 'Establishment' Clause does not ban federal or state regulation of conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some or all religions." This rationale suggests that the use of the motto "In God We Trust" on currency, on documents and public buildings and the like may not offend the clause. It is not that the use of those four words can be dismissed as " de minimis " -- for I suspect there would be intense opposition to the abandonment of that motto. The truth is that we have simply interwoven the motto so deeply into the fabric of our civil polity that its present use may well not present that type of involvement which the First Amendment prohibits. This general principle might also serve to insulate the various patriotic exercises and activities used in the public schools and elsewhere which, whatever may have been Page 374 U. S. 304 their origins, no longer have a religious purpose or meaning. The reference to divinity in the revised pledge of allegiance, for example, may merely recognize the historical fact that our Nation was believed to have been founded "under God." Thus, reciting the pledge may be no more of a religious exercise than the reading aloud of Lincoln's Gettysburg Address, which contains an allusion to the same historical fact. The principles which we reaffirm and apply today can hardly be thought novel or radical. They are, in truth, as old as the Republic itself, and have always been as integral a part of the First Amendment as the very words of that charter of religious liberty. No less applicable today than they were when first pronounced a century ago, one year after the very first court decision involving religious exercises in the public schools, are the words of a distinguished Chief Justice of the Commonwealth of Pennsylvania, Jeremiah S. Black: "The manifest object of the men who framed the institutions of this country, was to have a State without religion, and a Church without politics -- that is to say, they meant that one should never be used as an engine for any purpose of the other, and that no man's rights in one should be tested by his opinions about the other. As the Church takes no note of men's political differences, so the State looks with equal eye on all the modes of religious faith. . . . Our fathers seem to have been perfectly sincere in their belief that the members of the Church would be more patriotic, and the citizens of the State more religious, by keeping their respective functions entirely separate." Essay on Religious Liberty, in Black, ed., Essays and Speeches of Jeremiah S. Black (1886), 53. Page 374 U. S. 305 [ Footnote 3/1 ] Locke, A Letter Concerning Toleration, in 35 Great Books of the Western World (Hutchins ed.1952), 2. [ Footnote 3/2 ] Representative Daniel Carroll of Maryland during debate upon the proposed Bill of Rights in the First Congress, August 15, 1789, I Annals of Cong. 730. [ Footnote 3/3 ] See Healey, Jefferson on Religion in Public Education (1962); Boles, The Bible, Religion, and the Public Schools (1961), 16-21; Butts, The American Tradition in Religion and Education (1950), 119-130; Cahn, On Government and Prayer, 37 N.Y.U.L.Rev. 981 (1962); Costanzo, Thomas Jefferson, Religious Education and Public Law, 8 J.Pub.Law 81 (1959); Comment, The Supreme Court, the First Amendment, and Religion in the Public Schools, 63 Col.L.Rev. 73, 79-83 (1963). [ Footnote 3/4 ] Jefferson's caveat was, in full: "Instead, therefore, of putting the Bible and Testament into the hands of the children at an age when their judgments are not sufficiently matured for religious inquiries, their memories may here be stored with the most useful facts from Grecian, Roman, European and American history." 2 Writings of Thomas Jefferson (Memorial ed.1903), 204. Compare Jefferson's letter to his nephew, Peter Carr, when the latter was about to begin the study of law, in which Jefferson outlined a suggested course of private study of religion, since "[y]our reason is now mature enough to examine this object." Letter to Peter Carr, August 10, 1787, in Padover, The Complete Jefferson (1943), 1058. Jefferson seems to have opposed sectarian instruction at any level of public education, see Healey, Jefferson on Religion in Public Education (1962), 206-210, 256, 264-265. The absence of any mention of religious instruction in the projected elementary and secondary schools contrasts significantly with Jefferson's quite explicit proposals concerning religious instruction at the University of Virginia. His draft for "A Bill for the More General Diffusion of Knowledge," in 1779, for example, outlined in some detail the secular curriculum for the public schools, while avoiding any references to religious studies. See Padover, supra, at 1048-1054. The later draft of an "Act for Establishing Elementary Schools" which Jefferson submitted to the Virginia General Assembly in 1817 provided that "no religious reading, instruction or exercise, shall be prescribed or practiced inconsistent with the tenets of any religious sect or denomination." Padover, supra, at 1076. Reliance upon Jefferson's apparent willingness to permit certain religious instruction at the University seems, therefore, to lend little support to such instruction in the elementary and secondary schools. Compare, e.g., Corwin, A Constitution of Powers in a Secular State (1951), 104-106; Costanzo, Thomas Jefferson, Religious Education and Public Law, 8 J.Pub.Law 81, 100-106 (1959). [ Footnote 3/5 ] Cf. Mr. Justice Rutledge's observations in Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 53 -54 (dissenting opinion). See also Fellman, Separation of Church and State in the United States: A Summary View, 1950 Wis.L.Rev. 427, 428-429; Rosenfield, Separation of Church and State in the Public Schools, 22 U. of Pitt.L.Rev. 561, 569 (1961); MacKinnon, Freedom? -- or Toleration? The Problem of Church and State in the United States, [1959] Pub.Law 374. One author has suggested these reasons for cautious application of the history of the Constitution's religious guarantees to contemporary problems: "First, the brevity of Congressional debate and the lack of writings on the question by the framers make any historical argument inconclusive, and open to serious question. Second, the amendment was designed to outlaw practices which had existed before its writing, but there is no authoritative declaration of the specific practices at which it was aimed. And third, most of the modern religious freedom cases turn on issues which were, at most, academic in 1789, and perhaps did not exist at all. Public education was almost nonexistent in 1789, and the question of religious education in public schools may not have been foreseen." Beth, The American Theory of Church and State (1958), 88. [ Footnote 3/6 ] See generally, for discussion of the early efforts for disestablishment of the established colonial churches, and of the conditions against which the proponents of separation of church and state contended, Sweet, The Story of Religion in America (1950), c. XIII; Cobb, The Rise of Religious Liberty in America (1902), c. IX; Eckenrode, Separation of Church and State in Virginia (1910); Brant, James Madison -- The Nationalist, 1780-1787 (1948), c. XXII; Bowers, The Young Jefferson (1945), 193-199; Butts, The American Tradition in Religion and Education (1950), c. II; Kruse, The Historical Meaning and Judicial Construction of the Establishment of Religion Clause of the First Amendment, 2 Washburn L.J. 65, 79-83 (1962). Compare also Alexander Hamilton's conception of "the characteristic difference between a tolerated and established religion" and his grounds of opposition to the latter, in his remarks on the Quebec Bill in 1775, 2 Works of Alexander Hamilton (Hamilton ed. 1850), 133-138. Compare, for the view that contemporary evidence reveals a design of the Framers to forbid not only formal establishment of churches, but various forms of incidental aid to or support of religion, Lardner, How Far Does the Constitution Separate Church and State? 45 Am.Pol.Sci.Rev. 110, 112-115 (1951). [ Footnote 3/7 ] The origins of the modern movement for free state supported education cannot be fixed with precision. In England, the Levellers unavailingly urged in their platform of 1649 the establishment of free primary education for all, or at least for boys. See Brailsford, The Levellers and the English Revolution (1961), 534. In the North American Colonies, education was, almost without exception, under private sponsorship and supervision, frequently under control of the dominant Protestant sects. This condition prevailed after the Revolution and into the first quarter of the nineteenth century. See generally Mason, Moral Values and Secular Education (1950), c. II; Thayer, The Role of the School in American Society (1960), c. X; Greene, Religion and the State: The Making and Testing of an American Tradition (1941), 120-122. Thus, Virginia's colonial Governor Berkeley exclaimed in 1671: "I thank God there are no free schools nor printing, and I hope we shall not have them these hundred years; for learning has brought disobedience, and heresy, and sects into the world. . . ." (Emphasis deleted.) Bates, Religious Liberty: An Inquiry (1945), 327. The exclusively private control of American education did not, however, quite survive Berkeley's expectations. Benjamin Franklin's proposals in 1749 for a Philadelphia Academy heralded the dawn of publicly supported secondary education, although the proposal did not bear immediate fruit. See Johnson and Yost, Separation of Church and State in the United States (1948), 26-27. Jefferson's elaborate plans for a public school system in Virginia came to naught after the defeat in 1796 of his proposed Elementary School Bill, which found little favor among the wealthier legislators. See Bowers, The Young Jefferson (1945), 182-186. It was not until the 1820's and 1830's, under the impetus of Jacksonian democracy, that a system of public education really took root in the United States. See 1 Beard, The Rise of American Civilization (1937), 810-818. One force behind the development of secular public schools may have been a growing dissatisfaction with the tightly sectarian control over private education, see Harner, Religion's Place in General Education (1949), 29-30. Yet the burgeoning public school systems did not immediately supplant the old sectarian and private institutions; Alexis de Tocqueville, for example, remarked after his tour of the Eastern States in 1831 that "[a]lmost all education is entrusted to the clergy." 1 Democracy in America (Bradley ed.1945) 309, n. 4. And compare Lord Bryce's observations, a half century later, on the still largely denominational character of American higher education, 2 The American Commonwealth (1933), 734-735. Efforts to keep the public schools of the early nineteenth century free from sectarian influence were of two kinds. One took the form of constitutional provisions and statutes adopted by a number of States forbidding appropriations from the public treasury for the support of religious instruction in any manner. See Moehlman, The Wall of Separation Between Church and State (1951), 132-135; Lardner, How Far Does the Constitution Separate Church and State? 45 Am.Pol.Sci.Rev. 110, 122 (1951). The other took the form of measures directed against the use of sectarian reading and teaching materials in the schools. The texts used in the earliest public schools had been largely taken over from the private academies, and retained a strongly religious character and content. See Nichols, Religion and American Democracy (1959), 640; Kinney, Church and State, The Struggle for Separation in New Hampshire, 1630-1900 (1955), 150-153. In 1827, however, Massachusetts enacted a statute providing that school boards might not thereafter "direct any school books to be purchased or used, in any of the schools . . . which are calculated to favour any particular religious sect or tenet." 2 Stokes, Church and State in the United States (1950), 53. For further discussion of the background of the Massachusetts law and difficulties in its early application, see Dunn, What Happened to Religious Education? (1958), c. IV. As other States followed the example of Massachusetts, the use of sectarian texts was in time as widely prohibited as the appropriation of public funds for religious instruction. Concerning the evolution of the American public school systems free of sectarian influence, compare Mr. Justice Frankfurter's account: "It is pertinent to remind that the establishment of this principle of Separation in the field of education was not due to any decline in the religious beliefs of the people. Horace Mann was a devout Christian, and the deep religious feeling of James Madison is stamped upon the Remonstrance. The secular public school did not imply indifference to the basic role of religion in the life of the people, nor rejection of religious education as a means of fostering it. The claims of religion were not minimized by refusing to make the public schools agencies for their assertion. The nonsectarian or secular public school was the means of reconciling freedom in general with religious freedom. The sharp confinement of the public schools to secular education was a recognition of the need of a democratic society to educate its children, insofar as the State undertook to do so, in an atmosphere free from pressures in a realm in which pressures are most resisted and where conflicts are most easily and most bitterly engendered." Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203 , 333 U. S. 216 . [ Footnote 3/8 ] The comparative religious homogeneity of the United States at the time the Bill of Rights was adopted has been considered in Haller, The Puritan Background of the First Amendment, in Read ed., The Constitution Reconsidered (1938) , 131, 133-134; Beth, The American Theory of Church and State (1958), 74; Kinney, Church and State, The Struggle for Separation in New Hampshire, 1630-1900 (1955), 155-161. However, Madison suggested in the Fifty-first Federalist that the religious diversity which existed at the time of the Constitutional Convention constituted a source of strength for religious freedom, much as the multiplicity of economic and political interests enhanced the security of other civil rights. The Federalist (Cooke ed.1961), 351-352. [ Footnote 3/9 ] See Comment, The Power of Courts Over the Internal Affairs of Religious Groups, 43 Calif.L.Rev. 322 (1955); Comment, Judicial Intervention in Disputes Within Independent Church Bodies, 54 Mich.L.Rev. 102 (1955); Note, Judicial Intervention in Disputes Over the Use of Church Property, 75 Harv.L.Rev. 1142 (1962). Compare 43 U. S. Girard's Executors, 2 How. 127. The principle of judicial nonintervention in essentially religious disputes appears to have been reflected in the decisions of several state courts declining to enforce essentially private agreements concerning the religious education and worship of children of separated or divorced parents. See, e.g., Hackett v. Hackett, 78 Ohio Abs. 485, 150 N.E.2d 431; Stanton v. Stanton, 213 Ga. 545, 100 S.E.2d 289 ; Friedman, The Parental Right to Control the Religious Education of a Child, 29 Harv.L.Rev. 485 (1916); 72 Harv.L.Rev. 372 (1958); Note, 10 West. Res.L.Rev. 171 (1959). Governmental nonintervention in religious affairs and institutions seems assured by Article 26 of the Constitution of India, which provides: "Subject to public order, morality and health, every religious denomination or any section thereof shall have the right --" "(a) to establish and maintain institutions for religious and charitable purposes;" "(b) to manage its own affairs in matters of religion;" "(c) to own and acquire movable and immovable property; and" "(d) to administer such property in accordance with law." See 1 Chaudhri, Constitutional Rights and Limitations (1955), 875. This Article does not, however, appear to have completely foreclosed judicial inquiry into the merits of intradenominational disputes. See Gledhill, Fundamental Rights in India (1955), 101-102. [ Footnote 3/10 ] For a discussion of the difficulties inherent in the Ballard case, see Kurland, Religion and the Law (1962), 75-79. This Court eventually reversed the convictions on the quite unrelated ground that women had been systematically excluded from the jury, Ballard v. United States, 329 U. S. 187 . For discussions of the difficulties in interpreting and applying the First Amendment so as to foster the objective of neutrality without hostility, see, e.g., Katz, Freedom of Religion and State Neutrality, 20 U. of Chi.L.Rev. 426, 438 (1953); Kauper, Church, State, and Freedom: A Review, 52 Mich.L.Rev. 829, 842 (1954). Compare, for an interesting apparent attempt to avoid the Ballard problem at the international level, Article 3 of the Multilateral Treaty between the United States and certain American Republics, which provides that extradition will not be granted, inter alia, when "the offense is . . . directed against religion." Blakely, American State Papers and Related Documents on Freedom in Religion (4th rev. ed.1949), 316. [ Footnote 3/11 ] See Kurland, Religion and the Law (1962), 32-34. [ Footnote 3/12 ] Compare the treatment of an apparently very similar problem in Article 28 of the Constitution of India: "(1) No religious instruction shall be provided in any educational institution wholly maintained out of State funds." "(2) Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution." 1 Chaudhri, Constitutional Rights and Limitations (1955), 875-876, 939. [ Footnote 3/13 ] See Kurland, Religion and the Law (1962), 231; Fellman, Separation of Church and State in the United State: A Summary View, 1950 Wis.L.Rev. 427, 442. [ Footnote 3/14 ] This distinction, implicit in the First Amendment, had been made explicit in the original Virginia Bill of Rights provision that "all men should enjoy the fullest toleration in the exercise of religion according to the dictates of conscience, unpunished and unrestrained by the magistrate, unless, under color of religion, any man disturb the peace, the happiness, or safety of society." See Cobb, The Rise of Religious Liberty in America (1902), 491. Concerning various legislative limitations and restraints upon religiously motivated behavior which endangers or offends society, see Manwaring, Render Unto Caesar: The Flag-Salute Controversy (1962), 412. Various courts have applied this principle to proscribe certain religious exercises or activities which were thought to threaten the safety or morals of the participants or the rest of the community, e.g., State v. Massey, 229 N.C. 734, 51 S.E.2d 179; Harden v. State, 188 Tenn. 17, 216 S.W.2d 708; Lawson v. Commonwealth, 291 Ky. 437, 164 S.W.2d 972; cf. Sweeney v. Webb, 33 Tex.Civ.App. 324, 76 S.W. 766. That the principle of these cases, and the distinction between belief and behavior, are susceptible of perverse application may be suggested by Oliver Cromwell's mandate to the besieged Catholic community in Ireland: "As to freedom of conscience, I meddle with no man's conscience; but if you mean by that liberty to celebrate the Mass, I would have you understand that in no place where the power of the Parliament of England prevails shall that be permitted." Quoted in Hook, The Paradoxes of Freedom (1962), 23. [ Footnote 3/15 ] With respect to the decision in Hamilton v. Regents, compare two recent comments: Kurland, Religion and the Law (1962), 40, and French, Comment, Unconstitutional Conditions: An Analysis 50 Geo.L.J. 234, 246 (1961). [ Footnote 3/16 ] See generally as to the background and history of the Barnette case, Manwaring, Render Unto Caesar: The Flag-Salute Controversy (1962), especially at 252-253. Compare, for the interesting treatment of a problem similar to that of Barnette, in a nonconstitutional context, Chabot v. Les Commissaires D'Ecoles de Lamorandiere, [1957] Que.B.R. 707, noted in 4 McGill L.J. 268 (1958). [ Footnote 3/17 ] See Barron v. Baltimore , 7 Pet. 243; Permoli v. New Orleans , 3 How. 589, 44 U. S. 609 ; cf. 46 U. S. Ohio, 5 How. 410, 46 U. S. 434 -435; Withers v. Buckley , 20 How. 84, 61 U. S. 89 -91. As early as 1825, however, at least one commentator argued that the guarantees of the Bill of Rights, excepting only those of the First and Seventh Amendments, were meant to limit the powers of the States. Rawle, A View of the Constitution of the United States of America (1825), 120-130. [ Footnote 3/18 ] In addition to the statement of this Court in Meyer, at least one state court assumed as early as 1921 that claims of abridgment of the free exercise of religion in the public schools must be tested under the guarantees of the First Amendment, as well as those of the state constitution. Hardwick v. Board of School Trustees, 54 Cal. App. 696, 704-705, 205 P. 49, 52. See Louisell and Jackson, Religion, Theology, and Public Higher Education, 50 Cal.L.Rev. 751, 772 (1962). Even before the Fourteenth Amendment, New York State enacted a general common school law in 1844 which provided that no religious instruction should be given which could be construed to violate the rights of conscience "as secured by the constitution of this state and the United States." N.Y.Laws, 1844, c. 320, § 12. [ Footnote 3/19 ] See, e.g., Snee, Religious Disestablishment and the Fourteenth Amendment, 1954 Wash.U.L.Q. 371, 373-394; Kruse, The Historical Meaning and Judicial Construction of the Establishment of Religion Clause of the First Amendment, 2 Washburn L.J. 65, 84-85, 127130 (1962); Katz, Religion and American Constitutions, Address at Northwestern University Law School, March 20, 1963, pp.6-7. But see the debate in the Constitutional Convention over the question whether it was necessary or advisable to include among the enumerated powers of the Congress a power "to establish an University, in which no preferences or distinctions should be allowed on account of religion." At least one delegate thought such an explicit delegation "is not necessary," for "[t]he exclusive power at the Seat of Government will reach the object." The proposal was defeated by only two votes. 2 Farrand, Records of the Federal Convention of 1787 (1911), 616. [ Footnote 3/20 ] The last formal establishment, that of Massachusetts, was dissolved in 1833. The process of disestablishment in that and other States is described in Cobb, The Rise of Religious Liberty in America (1902), c. X; Sweet, The Story of Religion in America (1950), c. XIII. The greater relevance of conditions existing at the time of adoption of the Fourteenth Amendment is suggested in Note, State Sunday Laws and the Religious Guarantees of the Federal Constitution, 7 Harv.L.Rev. 729, 739, n. 79 (1960). [ Footnote 3/21 ] See Corwin, A Constitution of Powers in a Secular State (1951), 111-114; Fairman and Morrison, Does the Fourteenth Amendment Incorporate the Bill of Rights? 2 Stan.L.Rev. 5 (1949); Meyer, Comment, The Blaine Amendment and the Bill of Rights, 64 Harv.L.Rev. 939 (1951); Howe, Religion and Race in Public Education, 8 Buffalo L.Rev. 242, 245-247 (1959). Cf. Cooley, Principles of Constitutional Law (2d ed. 1891), 213-214. Compare Professor Freund's comment: "Looking back, it is hard to see how the Court could have done otherwise, how it could have persisted in accepting freedom of contract as a guaranteed liberty without giving equal status to freedom of press and speech, assembly, and religious observance. What does not seem so inevitable is the inclusion within the Fourteenth Amendment of the concept of nonestablishment of religion in the sense of forbidding nondiscriminatory aid to religion, where there is no interference with freedom of religious exercise." Freund, The Supreme Court of the United States (1961), 58-59. [ Footnote 3/22 ] The Blaine Amendment, 4 Cong.Rec. 5580, included also a more explicit provision that "no money raised by taxation in any State for the support of public schools or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect or denomination. . . ." The Amendment passed the House but failed to obtain the requisite two-thirds vote in the Senate. See 4 Cong.Rec. 5595. The prohibition which the Blaine Amendment would have engrafted onto the American Constitution has been incorporated in the constitutions of other nations; compare Article 28(1) of the Constitution of India ("No religious instruction shall be provided in any educational institution wholly maintained out of State funds"); Article XX of the Constitution of Japan (". . . the State and its organs shall refrain from religious education or any other religious activity"). See 1 Chaudhri, Constitutional Rights and Limitations (1955), 875, 876. [ Footnote 3/23 ] Three years after the adoption of the Fourteenth Amendment, Mr. Justice Bradley wrote a letter expressing his views on a proposed constitutional amendment designed to acknowledge the dependence of the Nation upon God, and to recognize the Bible as the foundation of its laws and the supreme ruler of its conduct: "I have never been able to see the necessity or expediency of the movement for obtaining such an amendment. The Constitution was evidently framed and adopted by the people of the United States with the fixed determination to allow absolute religious freedom and equality, and to avoid all appearance even of a State religion, or a State endorsement of any particular creed or religious sect. . . . And after the Constitution in its original form was adopted, the people made haste to secure an amendment that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. This shows the earnest desire of our Revolutionary fathers that religion should be left to the free and voluntary action of the people themselves. I do not regard it as manifesting any hostility to religion, but as showing a fixed determination to leave the people entirely free on the subject." "And it seems to me that our fathers were wise; that the great voluntary system of this country is quite as favorable to the promotion of real religion as the systems of governmental protection and patronage have been in other countries. And whilst I do not understand that the association which you represent desire to invoke any governmental interference, still the amendment sought is a step in that direction which our fathers (quite as good Christians as ourselves) thought it wise not to take. In this country, they thought they had settled one thing at least, that it is not the province of government to teach theology." ". . . Religion, as the basis and support of civil government, must reside not in the written Constitution, but in the people themselves. And we cannot legislate religion into the people. It must be infused by gentler and wiser methods." Miscellaneous Writings of Joseph P. Bradley (1901), 357-359. For a later phase of the controversy over such a constitutional amendment as that which Justice Bradley opposed, see Finlator, Christ in Congress, 4 J. Church and State 205 (1962). [ Footnote 3/24 ] There is no doubt that, whatever "establishment" may have meant to the Framers of the First Amendment in 1791, the draftsmen of the Fourteenth Amendment three quarters of a century later understood the Establishment Clause to foreclose many incidental forms of governmental aid to religion which fell far short of the creation or support of an official church. The Report of a Senate Committee as early as 1853, for example, contained this view of the Establishment Clause: "If Congress has passed, or should pass, any law which, fairly construed, has in any degree introduced, or should attempt to introduce, in favor of any church, or ecclesiastical association, or system of religious faith, all or any one of these obnoxious particulars -- endowment at the public expense, peculiar privileges to its members, or disadvantages or penalties upon those who should reject its doctrines or belong to other communions -- such law would be a 'law respecting an establishment of religion,' and, therefore, in violation of the constitution." S.Rep. No. 376, 32d Cong., 2d Sess. 1-2. Compare Thomas M. Cooley's exposition in the year in which the Fourteenth Amendment was ratified: "Those things which are not lawful under any of the American constitutions may be stated thus:" "1. Any law respecting an establishment of religion. . . ." "2. Compulsory support, by taxation or otherwise, of religious instruction. Not only is no one denomination to be favored at the expense of the rest, but all support of religious instruction must be entirely voluntary." Cooley, Constitutional Limitations (1st ed. 1868), 469. [ Footnote 3/25 ] Compare, e.g., Miller, Roger Williams: is Contribution to the American Tradition (1953), 83, with Madison, Memorial and Remonstrance Against Religious Assessments, reprinted as an Appendix to the dissenting opinion of Mr. Justice Rutledge, Everson v. Board of Education, supra at 330 U. S. 63 -72. See also Cahn, On Government and Prayer, 37 N.Y.U.L.Rev. 981, 982-985 (1962); Jefferson's Bill for Establishing Religious Freedom, in Padover, The Complete Jefferson (1943), 946-947; Moulton and Myers, Report on Appointing Chaplains to the Legislature of New York, in Blau, Cornerstones of Religious Freedom in America (1949), 141-156; Bury, A History of Freedom of Thought (2d ed.1952), 75-76. [ Footnote 3/26 ] See, e.g., Spicer, The Supreme Court and Fundamental Freedoms (1959), 83-84; Kauper, Church, State, and Freedom: A Review, 52 Mich.L.Rev. 829, 839 (1954); Reed, Church-State and the Zorach Case, 27 Notre Dame Lawyer 529, 539-541 (1952). [ Footnote 3/27 ] See 343 U.S. at 343 U. S. 321 -322 (Frankfurter, J., dissenting); Kurland, Religion and the Law (1962), 89. I recognize that there is a question whether, in Zorach, the free exercise claims asserted were, in fact, proved. 343 U.S. at 343 U. S. 311 . [ Footnote 3/28 ] Mr. Justice Frankfurter described the effects of the McCollum program thus: "Religious education so conducted on school time and property is patently woven into the working scheme of the school. The Champaign arrangement thus presents powerful elements of inherent pressure by the school system in the interest of religious sects. . . . As a result, the public school system of Champaign actively furthers inculcation in the religious tenets of some faiths, and in the process, sharpens the consciousness of religious differences, at least among some of the children committed to its care." 333 U.S. at 333 U. S. 227 -228. For similar reasons, some state courts have enjoined the public schools from employing or accepting the services of members of religious orders even in the teaching of secular subjects, e.g., Zellers v. Huff, 55 N.M. 501, 236 P.2d 949 ; Berghorn v. Reorganized School Dist. No. 8, 364 Mo. 121, 260 S.W.2d 573 ; compare ruling of Texas Commissioner of Education, Jan. 25, 1961, in 63 American Jewish Yearbook (1962), 188. Over a half century ago, a New York court sustained a school board's exclusion from the public schools of teachers wearing religious garb on similar grounds: "Then, all through the school hours, these teachers . . . were before the children as object lessons of the order and church of which they were members. It is within our common observation that young children . . . are very susceptible to the influence of their teachers and of the kind of object lessons continually before them in schools conducted under these circumstances and with these surroundings." O'Connor v. Hendrick, 109 App.Div. 361, 371-372, 96 N.Y.Supp. 161, 169. See also Commonwealth v. Herr, 229 Pa. 132, 78 A. 68; Comment, Religious Garb in the Public Schools -- A Study in Conflicting Liberties, 22 U. of Chi.L.Rev. 888 (1955). Also apposite are decisions of several courts which have enjoined the use of parochial schools as part of the public school system, Harfst v. Hoegen, 349 Mo. 808, 163 S.W.2d 609; or have invalidated programs for the distribution in public school classrooms of Gideon Bibles, Brown v. Orange County Board of Public Instruction, 128 So. 2d 181 (Fla.App.); Tudor v. Board of Education, 14 N.J. 31, 100 A.2d 857 . See Note, The First Amendment and Distribution of Religious Literature in the Public Schools, 41 Va.L.Rev. 789, 803-806 (1955). In Tudor, the court stressed the role of the public schools in the Bible program: ". . . the public school machinery is used to bring about the distribution of these Bibles to the children. . . . In the eyes of the pupils and their parents, the board of education has placed its stamp of approval upon this distribution and, in fact, upon the Gideon Bible itself. . . . This is more than mere 'accommodation' of religion permitted in the Zorach case. The school's part in this distribution is an active one, and cannot be sustained on the basis of a mere assistance to religion." 14 N.J. at 51-52, 100 A.2d at 868. The significance of the teacher's authority was recognized by one early state court decision: "The school being in session, the right to command was vested in the teacher, and the duty of obedience imposed upon the pupils. Under such circumstances, a request and a command have the same meaning. A request from one in authority is understood to be a mere euphemism. It is, in fact, a command in an inoffensive form." State ex rel. Freeman v. Scheve, 65 Neb. 876, 880, 93 N.W. 169, 170. [ Footnote 3/29 ] See, for other illustrations of the principle that, where First Amendment freedoms are or may be affected, government must employ those means which will least inhibit the exercise of constitutional liberties, Lovell v. Griffin, 303 U. S. 444 ; Schneider v. State, 308 U. S. 147 , 308 U. S. 161 ; Martin v. Struthers, 319 U. S. 141 ; Saia v. New York, 334 U. S. 558 ; Shelton v. Tucker, 364 U. S. 479 , 364 U. S. 488 -489; Bantam Books, Inc., v. Sullivan, 372 U. S. 58 , 372 U. S. 66 , 372 U. S. 69 -71. See also Note, State Sunday Laws and the Religious Guarantees of the Federal Constitution, 73 Harv.L.Rev. 729, 743-745 (1960); Freund, The Supreme Court of the United States (1961), 86-87; 74 Harv.L.Rev. 613 (1961). And compare Miller v. Cooper, 56 N.M. 355, 244 P.2d 520 (1952), in which a state court permitted the holding of public school commencement exercises in a church building only because no public buildings in the community were adequate to accommodate the ceremony. [ Footnote 3/30 ] No question has been raised in these cases concerning the standing of these parents to challenge the religious practices conducted in the schools which their children presently attend. Whatever authority Doremus v. Board of Education, 342 U. S. 429 , might have on the question of the standing of one not the parent of children affected by the challenged exercises is not before us in these cases. Neither in McCollum nor in Zorach was there any reason to question the standing of the parent plaintiffs under settled principles of justiciability and jurisdiction, whether or not their complaints alleged pecuniary loss or monetary injury. The free exercise claims of the parents alleged injury sufficient to give them standing. If, however, the gravamen of the lawsuit were exclusively one of establishment, it might seem illogical to confer standing upon a parent who -- though he is concededly in the best position to assert a free exercise claim -- suffers no financial injury, by reason of being a parent, different from that of the ordinary taxpayer, whose standing may be open to question. See Sutherland, Establishment According to Engel, 76 Harv.L.Rev. 25, 41-43 (1962). I would suggest several answers to this conceptual difficulty. First, the parent is surely the person most directly and immediately concerned about and affected by the challenged establishment, and to deny him standing either in his own right or on behalf of his child might effectively foreclose judicial inquiry into serious breaches of the prohibitions of the First Amendment -- even though no special monetary injury could be shown. See Schempp v. School District of Abington Township, 177 F. Supp. 398 , 407; Kurland, The Regents' Prayer Case: "Full of Sound and Fury, Signifying . . . ," 1962 Supreme Court Review 1, 22. Second, the complaint in every case thus far challenging an establishment has set forth at least a colorable claim of infringement of free exercise. When the complaint includes both claims, and neither is frivolous, it would surely be overtechnical to say that a parent who does not detail the monetary cost of the exercises to him may ask the court to pass only upon the free exercise claim, however logically the two may be related. Cf. Pierce v. Society of Sisters, supra; Truax v. Raich, 239 U. S. 33 , 239 U. S. 38 -39; NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 458-460; Bell v. Hood, 327 U. S. 678 ; Bantam Books, Inc., v. Sullivan, 372 U. S. 58 , 372 U. S. 64 , n. 6. Finally, the concept of standing is a necessarily flexible one, designed principally to ensure that the plaintiffs have "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions. . . ." Baker v. Carr, 369 U. S. 186 , 369 U. S. 204 . It seems to me that even a cursory examination of the complaints in these two cases and the opinions below discloses that these parents have very real grievances against the respective school authorities which cannot be resolved short of constitutional adjudication. See generally Arthur Garfield Hays Civil Liberties Conference: Public Aid to Parochial Schools and Standing to Bring Suit, 12 Buffalo L.Rev. 35 (1962); Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv.L.Rev. 1265 (1961); Sutherland, Due Process and Disestablishment, 62 Harv.L.Rev. 1306, 1327-1332 (1949); Comment, The Supreme Court, the First Amendment, and Religion in the Public Schools, 63 Col.L.Rev. 73, 94, n. 153 (1963). [ Footnote 3/31 ] Quoted in Dunn, What Happened to Religious Education? (1958), 21. [ Footnote 3/32 ] Quoted id. at 22 [ Footnote 3/33 ] Quoted in Hartford, Moral Values in Public Education: Lessons From the Kentucky Experience (1958), 31. [ Footnote 3/34 ] See Culver, Horace Mann and Religion in the Massachusetts Public Schools (1929), for an account of one prominent educator's efforts to satisfy both the protests of those who opposed continuation of sectarian lessons and exercises in public schools, and the demands of those who insisted upon the retention of some essentially religious practices. Mann's continued use of the Bible for what he regarded as nonsectarian exercises represented his response to these cross-pressures. See Mann, Religious Education, in Blau, Cornerstones of Religious Freedom in America (1949), 163-201 (from the Twelfth Annual Report for 1848 of the Secretary of the Board of Education of Massachusetts). See also Boles, The Bible, Religion, and the Public Schools (1961), 22-27. [ Footnote 3/35 ] See 2 Stokes, Church and State in the United States (1950), 572-579; Greene, Religion and the State: The Making and Testing of an American Tradition (1941), 122-126. [ Footnote 3/36 ] E.g., Ala.Code, Tit. 52, § 542; Del.Code Ann., Tit. 14, §§ 4101-4102; Fla.Stat.Ann. § 231.09(2); Mass.Ann.Laws, c. 71, § 31; Tenn.Code Ann. § 49-1307(4). Some statutes, like the recently amended Pennsylvania statute involved in Schempp, provide for the excusal or exemption of children whose parents do not wish them to participate. See generally Johnson and Yost, Separation of Church and State in the United States (1948), 33-36; Thayer, The Role of the School in American Society (1960), 374-375; Beth, The American Theory of Church and State (1958), 106-107. Compare with the American statutory approach Article 28(3) of the Constitution of India: "(3) No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto." See 1 Chaudhri, Constitutional Rights and Limitations (1955), 876, 939. [ Footnote 3/37 ] See 374 U.S. 203 fn3/34|>note 34, supra. [ Footnote 3/38 ] Quoted from New Hampshire School Reports, 1850, 31-32, in Kinney, Church and State: The Struggle for Separation in New Hampshire, 1630-1900 (1955), 157-158. [ Footnote 3/39 ] Quoted in Boyer, Religious Education of Public School Pupils in Wisconsin, 1953 Wis.L.Rev. 181, 186. [ Footnote 3/40 ] Quoted in Dunn, What Happened to Religious Education? (195), 271. [ Footnote 3/41 ] Quoted in Butts, The American Tradition in Religion and Education (1950), 135-136. [ Footnote 3/42 ] See Board of Education v. Minor, 23 Ohio St. 211; Blakely, American State Papers and Related Documents on Freedom in Religion (4th rev. ed.1949), 864. [ Footnote 3/43 ] Report of the United States Commissioner of Education for the Year 1888-1889, part I, H.R.Exec.Doc. No. 1, part 5, 51st Cong., 1st Sess. 627. [ Footnote 3/44 ] Quoted in Illinois ex rel. McCollum v. Board of Education, supra at 333 U. S. 218 (opinion of Frankfurter, J.). See also President Grant's Annual Message to Congress, Dec. 7, 1875, 4 Cong.Rec. 175 et seq., which apparently inspired the drafting and submission of the Blaine Amendment. See Meyer, Comment, The Blaine Amendment and the Bill of Rights, 64 Harv.L.Rev. 939 (1951). [ Footnote 3/45 ] Theodore Roosevelt to Michael A. Schaap, Feb. 22, 1915, 8 Letters of Theodore Roosevelt (Morison ed.1954), 893. [ Footnote 3/46 ] Quoted in Boles, The Bible, Religion, and the Public Schools (1961), 238. [ Footnote 3/47 ] E.g., 1955 op. Ariz. Atty.Gen. 67; 26 Ore.Op.Atty.Gen. 46 (1952); 25 Cal.Op.Atty.Gen. 316 (1955); 1948-1950 Nev. Atty.Gen. Rep. 69 (1948). For a 1961 opinion of the Attorney General of Michigan to the same effect, see 63 American Jewish Yearbook (1962) 189. In addition to the Governor of Ohio, see 374 U.S. 203 fn3/46|>note 46, supra, a Governor of Arizona vetoed a proposed law which would have permitted "reading the Bible, without comment, except to teach Historical or Literary facts." See 2 Stokes, Church and State in the United States (1950), 568. [ Footnote 3/48 ] See Johnson and Yost, Separation of Church and State in the United States (1948), 71; Note, Bible Reading in Public Schools, 9 Vand.L.Rev. 849, 851 (1956). [ Footnote 3/49 ] E.g., Spiller v. Inhabitants of Woburn, 12 Allen (Mass.) 127 (1866); Donahoe v. Richards, 38 Maine 376, 413 (1854); cf. Ferriter v. Tyler, 48 Vt. 444, 471-472 (1876). [ Footnote 3/50 ] Board of Education v. Minor, 23 Ohio St. 211 (1873). [ Footnote 3/51 ] People ex rel. Ring v. Board of Education, 245 Ill. 334, 92 N.E. 251 (1910); Herold v. Parish Board of School Directors, 136 La. 1034, 68 So. 116 (1915); State ex rel. Weiss v. District Board, 76 Wis. 177, 44 N.W. 967 (1890); State ex rel. Finger v. Weedman, 55 S.D. 343, 226 N.W. 348 (1929); State ex rel. Dearle v. Frazier, 102 Wash. 369, 173 P. 35 (1918); cf. State ex rel. Clithero v. Showalter, 159 Wash. 519, 293 P. 1000 (1930); State ex rel. Freeman v. Scheve, 65 Neb. 853, 91 N.W. 846 (1902), modified, 65 Neb. 876, 93 N.W. 169 (1903). The cases are discussed in Boles, The Bible, Religion, and the Public Schools (1961), c. IV; Harrison, The Bible, the Constitution and Public Education, 29 Tenn.L.Rev. 363, 386-389 (1962). [ Footnote 3/52 ] Moore v. Monroe, 64 Iowa 367, 20 N.W. 475 (1884); Hackett v. Brooksville Graded School District, 120 Ky. 608, 87 S.W. 792 (1905); Billard v. Board of Education, 69 Kan. 53, 76 P. 422 (1904); Pfeiffer v. Board of Education, 118 Mich. 560, 77 N.W. 250 (1898); Kaplan v. School District, 171 Minn. 142, 214 N.W. 18 (1927); Lewis v. Board of Education, 157 Misc. 520, 285 N.Y. Supp. 164 (Sup.Ct.1935), modified on other grounds, 247 App.Div. 106, 286 N.Y. Supp. 174 (1936), appeal dismissed, 276 N.Y. 490, 12 N.E.2d 172 (1937); Doremus v. Board of Education, 5 N.J. 435, 75 A.2d 880 (1950), appeal dismissed, 342 U. S. 429 ; Church v. Bullock, 104 Tex. 1, 109 S.W. 115 (1908); People ex rel. Vollmar v. Stanley, 81 Colo. 276, 255 P. 610 (1927); Wilkerson v. City of Rome, 152 Ga. 762, 110 S.E. 895 (1922); Carden v. Bland, 199 Tenn. 665, 288 S.W.2d 718 (1956); Chamberlin v. Dade County Board of Public Instruction, 143 So. 2d 21 (Fla.1962). [ Footnote 3/53 ] For discussion of the constitutional and statutory provisions involved in the state cases which sustained devotional exercises in the public schools, see Boles, The Bible, Religion, and the Public Schools (1961), c. III; Harrison, The Bible, the Constitution and Public Education, 29 Tenn.L.Rev. 363, 381-385 (1962); Fellman, Separation of Church and State in the United States: A Summary View, 1950 Wis.L.Rev. 427, 45452; Note, Bible Reading in Public Schools, 9 Vand.L.Rev. 849, 854-859 (1956); Note, Nineteenth Century Judicial Thought Concerning Church-State Relations, 40 Minn.L.Rev. 672, 675-678 (1956). State courts appear to have been increasingly influenced in sustaining devotional practices by the availability of an excuse or exemption for dissenting students. See Cushman, The Holy Bible and the Public Schools, 40 Cornell L.Q. 475, 477 (1955); 13 Vand.L.Rev. 552 (1960). [ Footnote 3/54 ] See Rosenfield, Separation of Church and State in the Public Schools, 22 U. of Pitt.L.Rev. 561, 571-572 (1961); Harrison, The Bible the Constitution and Public Education, 29 Tenn.L.Rev. 363 399-400 (1962); 30 Ford.L.Rev. 801, 803 (1962); 45 Va.L.Rev. 1381 (1959). The essentially religious character of the materials used in these exercises is, in fact, strongly suggested by the presence of excusal or exemption provisions, and by the practice of rotating or alternating the use of different prayers and versions of the Holy Bible [ Footnote 3/55 ] In the Billard case, the teacher whose use of the Lord's Prayer and the Twenty-third Psalm was before the court testified that the exercise served disciplinary, rather than spiritual, purposes: "It is necessary to have some general exercise after the children come in from the playground to prepare them for their work. You need some general exercise to quiet them down." When asked again if the purpose were not at least partially religious, the teacher replied, "[i]t was religious to the children that are religious, and to the others it was not." 69 Kan. at 57-58, 76 P. at 423. [ Footnote 3/56 ] See, e.g., Henry, The Place of Religion in Public Schools (1950); Martin, Our Public Schools -- Christian or Secular (1952); Educational Policies Comm'n of the National Educational Assn., Moral and Spiritual Values in the Public Schools (1951), c. IV; Harner, Religion's Place in General Education (1949). Educators are by no means unanimous, however, on this question. See Boles, The Bible, Religion, and the Public Schools (1961), 223-224. Compare George Washington's advice in his Farewell Address: "And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle." 35 Writings of George Washington (Fitzpatrick ed.1940), 229. [ Footnote 3/57 ] Thomas Jefferson's insistence that, where the judgments of young children "are not sufficiently matured for religious inquiries, their memories may here be stored with the most useful facts from Grecian, Roman, European and American history," 2 Writings of Thomas Jefferson (Memorial ed.1903), 204, is relevant here. Recent proposals have explored the possibility of commencing the school day "with a quiet moment that would still the tumult of the playground and start a day of study," Editorial, Washington Post, June 28, 1962, § A, p. 22, col. 2. See also New York Times, Aug. 30, 1962, § 1, p. 18, col. 2. For a consideration of these and other alternative proposals see Choper, Religion in the Public Schools: A Proposed Constitutional Standard, 47 Minn.L.Rev. 329, 370-371 (1963). See also 2 Stokes, Church and State in the United States (1950), 571. [ Footnote 3/58 ] The history, as it bears particularly upon the role of sectarian differences concerning Biblical texts and interpretation, has been summarized in Tudor v. Board of Education, 14 N.J. 31, 36-44, 100 A.2d 857 , 859-864. See also State ex rel. Weiss v. District Board, 76 Wis. 177, 190-193, 44 N.W. 967, 972-975. One state court adverted to these differences a half century ago: "The Bible, in its entirety, is a sectarian book as to the Jew and every believer in any religion other than the Christian religion, and, as to those who are heretical or who hold beliefs that are not regarded as orthodox . . . , its use in the schools necessarily results in sectarian instruction. There are many sects of Christians, and their differences grow out of their differing constructions of various parts of the Scriptures -- the different conclusions drawn as to the effect of the same words. The portions of Scripture which form the basis of these sectarian differences cannot be thoughtfully and intelligently read without impressing the reader, favorably or otherwise, with reference to the doctrines supposed to be derived from them." People ex rel. Ring v. Board of Education, 245 Ill. 334, 347-348, 92 N.E. 251, 255. But see, for a sharply critical comment, Schofield, Religious Liberty and Bible Reading in Illinois Public Schools, 6 Ill.L.Rev. 17 (1911), See also Dunn, What Happened to Religious Education? (1958), 268-273; Dawson, America's Way in Church, State, and Society (1953), 53-54; Johnson and Yost, Separation of Church and State in the United States (1948), c. IV; Harpster, Religion, Education and the Law, 36 Marquette L.Rev. 24, 445 (1952); 20 Ohio State L.J. 701, 702-703 (1959). [ Footnote 3/59 ] See Torcaso v. Watkins, supra, at 367 U. S. 495 , n. 11; Cushman, The Holy Bible and the Public Schools, 40 Cornell L.Q. 475, 480-483 (1955); Note, Separation of Church and State: Religious Exercises in the Schools, 31 U. of Cinc.L.Rev. 408, 41112 (1962). Few religious persons today would share the universality of the Biblical canons of John Quincy Adams: "You ask me what Bible I take as the standard of my faith -- the Hebrew, the Samaritan, the old English translation, or what? I answer, the Bible containing the sermon upon the mount -- any Bible that I can read and understand. . . . I take any one of them for my standard of faith. If Socinus or Priestley had made a fair translation of the Bible, I would have taken that, but without their comments." John Quincy Adams to John Adams, Jan. 3, 1817, in Koch and Peden, Selected Writings of John and John Quincy Adams (1946), 292. [ Footnote 3/60 ] Rabbi Solomon Grayzel testified before the District Court, "In Judaism, the Bible is not read, it is studied. There is no special virtue attached to a mere reading of the Bible; there is a great deal of virtue attached to a study of the Bible." " See Boles, The Bible, Religion, and the Public Schools (1961), 208-218; Choper, Religion in the Public Schools: A Proposed Constitutional Standard, 47 Minn.L.Rev. 39, 372-375 (1963). One religious periodical has suggested the danger that" "an observance of this sort is likely to deteriorate quickly into an empty formality with little, if any, spiritual significance. Prescribed forms of this sort, as many colleges have concluded after years of compulsory chapel attendance, can actually work against the inculcation of vital religion." Prayers in Public Schools Opposed, 69 Christian Century, Jan. 9, 1952, p. 35. [ Footnote 3/61 ] See Cahn, On Government and Prayer, 37 N.Y.U.L.Rev. 981, 993-994 (1962). A leading Protestant journal recently noted: "Agitation for removal of religious practices in public schools is not prompted or supported entirely by Jews, humanists, and atheists. At both local and national levels, many Christian leaders, concerned both for civil rights of minorities and for adequate religious education, are opposed to religious exercises in public schools. . . . Many persons, both Jews and Christians, believe that prayer and Bible reading are too sacred to be permitted in public schools, in spite of their possible moral value." Smith, The Religious Crisis In Our Schools, 128 The Episcopalian, May 1963, pp. 12-13. See, e.g., for other recent statements on this question, Editorial, Amending the Amendment, 108 America, May 25, 1963, p. 736; Sissel, A Christian View: Behind the Fight Against School Prayer, 27 Look, June 18, 1963, p.25. It should be unnecessary to demonstrate that the Lord's Prayer, more clearly than the Regents' Prayer involved in Engel v. Vitale, is an essentially Christian supplication. See, e.g., Scott, The Lord's Prayer: Its Character, Purpose, and Interpretation (1951), 55; Buttrick, So We Believe, So We Pray (1951), 142; Levy, Lord's Prayer, in 7 Universal Jewish Encyclopedia (1948), 19-193. [ Footnote 3/62 ] Statement of the Baptist Joint Committee on Public Affairs, in 4 J. Church and State 144 (1962). [ Footnote 3/63 ] See Harrison, The Bible, the Constitution and Public Education, 29 Tenn.L.Rev. 363, 397 (1962). The application of statutes and regulations which forbid comment on scriptural passages is further complicated by the view of certain religious groups that reading without comment is either meaningless or actually offensive. Compare Rabbi Grayzel's testimony before the District Court that "the Bible is misunderstood when it is taken without explanation." A recent survey of the attitudes of certain teachers disclosed concern that "refusal to answer pupil questions regarding any curricular activity is not educationally sound," and that reading without comment might create in the minds of the pupils the impression that something was "hidden or wrong." Boles, The Bible, Religion, and the Public Schools (1961), 235-236. Compare the comment of a foreign observer: "In no other field of learning would we expect a child to draw the full meaning from what he reads without accompanying explanatory comment. But comment by the teacher will inevitably reveal his own personal preferences, and the exhibition of preferences is what we are seeking to eliminate." MacKinnon, Freedom? -- or Toleration? The Problem of Church and State in the United States, [1959] Pub.Law 374, 383. [ Footnote 3/64 ] See Abbott, A Common Bible Reader for Public Schools, 56 Religious Education 20 (1961); Note, 22 Albany L.Rev. 156-157 (1958); 2 Stokes, Church and State in the United States (1950), 501-506 (describing the "common denominator" or "three faiths" plan and certain programs of instruction designed to implement the "common core" approach). The attempts to evolve a universal, nondenominational prayer are by no means novel. See, e.g., Madison's letter to Edward Everett, March 19, 1823, commenting upon a "project of a prayer . . . intended to comprehend & conciliate College Students of every [Christian] denomination, by a Form composed wholly of texts & phrases of scripture." 9 Writings of James Madison (Hunt ed.1910), 126. For a fuller description of this and other attempts to fashion a "common core" or nonsectarian exercise, see Engel v. Vitale, 18 Misc.2d 659, 660-662, 191 N.Y.S.2d 453, 459-460. [ Footnote 3/65 ] See the policy statement recently drafted by the National Council of the Churches of Christ: ". . . neither true religion nor good education is dependent upon the devotional use of the Bible in the public school program. . . . Apart from the constitutional questions involved, attempts to establish a 'common core' of religious beliefs to be taught in public schools for the purpose of indoctrination are unrealistic and unwise. Major faith groups have not agreed on a formulation of religious beliefs common to all. Even if they had done so, such a body of religious doctrine would tend to become a substitute for the more demanding commitments of historic faiths." Washington Post, May 25, 1963, § A, p. 1, col. 4. See also Choper, Religion in the Public Schools: A Proposed Constitutional Standard, 47 Minn.L.Rev. 329, 341, 368-369 (1963). See also Hartford, Moral Values in Public Education: Lessons from the Kentucky Experience (1958), 261-262; Moehlman, The Wall of Separation Between Church and State (1951), 158-159. Cf. Mosk, "Establishment Clause" Clarified, 22 Law in Transition 231, 235-236 (1963). [ Footnote 3/66 ] Quoted in Kurland, The Regents' Prayer Case: "Full of Sound and Fury, Signifying . . . ,"1962 Supreme Court Review (1962), 1, 31. [ Footnote 3/67 ] Quoted in Harrison, The Bible, the Constitution and Public Education, 29 Tenn.L.Rev. 363, 417 (1962). See also Dawson, America's Way in Church, State, and Society (1953), 54. [ Footnote 3/68 ] See the testimony of Edward L. Schempp, the father of the children in the Abington schools and plaintiff appellee in No. 142, concerning his reasons for not asking that his children be excused from the morning exercises after excusal was made available through amendment of the statute: "We originally objected to our children being exposed to the reading of the King James version of the Bible . . . , and under those conditions, we would have theoretically liked to have had the children excused. But we felt that the penalty of having our children labelled as 'odd balls' before their teachers and classmates every day in the year was even less satisfactory than the other problem. . . ." "The children, the classmates of Roger and Donna are very liable to label and lump all particular religious difference or religious objections as atheism, particularly, today the word 'atheism' is so often tied to atheistic communism, and atheism has very bad connotations in the minds of children and many adults today." A recent opinion of the Attorney General of California gave as one reason for finding devotional exercises unconstitutional the likelihood that "[c]hildren forced by conscience to leave the room during such exercises would be placed in a position inferior to that of students adhering to the State-endorsed religion." 25 Cal.Op.Atty.Gen. 316, 319 (1955). Other views on this question, and possible effects of the excusal procedure, are summarized in Rosenfield, Separation of Church and State in the Public Schools, 22 U. of Pitt.L.Rev. 561, 581-585 (1961); Note, Separation of Church and State: Religious Exercises in the Schools, 31 U. of Cinc.L.Rev. 408, 416 (1962); Note, 62 W.Va.L.Rev. 353, 358 (1960). [ Footnote 3/69 ] Extensive testimony by behavioral scientists concerning the effect of similar practices upon children's attitudes and behaviors is discussed in Tudor v. Board of Education, 14 N.J. 31, 50-52, 100 A.2d 857 , 867-868. See also Choper, Religion in the Public Schools: A Proposed Constitutional Standard, 47 Minn.L.Rev. 329, 344 (1963). There appear to be no reported experiments which bear directly upon the question under consideration. There have, however, been numerous experiments which indicate the susceptibility of school children to peer group pressures, especially where important group norms and values are involved. See, e.g., Berenda, The Influence of the Group on the Judgments of Children (1950), 26-33; Argyle, Social Pressure in Public and Private Situations, 54 J. Abnormal & Social Psych. 172 (1957); cf. Rhine, The Effect of Peer Group Influence Upon Concept-Attitude Development and Change, 51 J. Social Psych. 173 (1960); French, Morrison and Levinger, Coercive Power and Forces Affecting Conformity, 61 J. Abnormal and Social Psych. 93 (1960). For a recent and important experimental study of the susceptibility of students to various factors in the school environment, see Zander, Curtis and Rosenfeld, The Influence of Teachers and Peers on Aspirations of Youth (U.S. Office of Education Cooperative Research Project No. 451, 1961), 24-25, 78-79. It is also apparent that the susceptibility of school children to prestige suggestion and social influence within the school environment varies inversely with the age, grade level, and consequent degree of sophistication of the child, see Pated and Gordon, Some Personal and Situational Determinants of Yielding to Influence, 61 J. Abnormal and Social Psych. 411, 417 (1960). Experimental findings also shed some light upon the probable effectiveness of a provision for excusal when, as is usually the case, the percentage of the class wishing not to participate in the exercises is very small. It has been demonstrated, for example, that the inclination even of adults to depart or dissent overtly from strong group norms varies proportionately with the size of the dissenting group -- that is, inversely with the apparent or perceived strength of the norm itself -- and is markedly slighter in the case of the sole or isolated dissenter. See, e.g., Asch, Studies of Independence and Conformity: I. A Minority of One Against a Unanimous Majority (Psych. Monographs No. 416, 1956), 69-70; Asch, Effects of Group Pressure upon the Modification and Distortion of Judgments, in Cartwright and Zander, Group Dynamics (2d ed.1960), 189-199; Luchins and Luchins, On Conformity With True and False Communications, 42 J. Social Psych. 283 (1955). Recent important findings on these questions are summarized in Hare, Handbook of Small Group Research (1962), c. II. [ Footnote 3/70 ] See, on the general problem of conflict and accommodation between the two clauses, Katz, Freedom of Religion and State Neutrality, 20 U. of Chi.L.Rev. 426, 429 (1953); Griswold, Absolute Is In the Dark, 8 Utah L.Rev. 167, 176-179 (1963); Kauper, Church, State, and Freedom: A Review, 52 Mich.L.Rev. 829, 833 (1954). One author has suggested that the Establishment and Free Exercise Clauses must be "read as stating a single precept: that government cannot utilize religion as a standard for action or inaction because these clauses, read together as they should be, prohibit classification in terms of religion either to confer a benefit or to impose a burden." Kurland, Religion and the Law (1962), 112. Compare the formula of accommodation embodied in the Australian Constitution, § 116: "The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth." Essays on the Australian Constitution (Else-Mitchell ed.1961), 15. [ Footnote 3/71 ] There has been much difference of opinion throughout American history concerning the advisability of furnishing chaplains at government expense. Compare, e.g., Washington's order regarding chaplains for the Continental Army, July 9, 1776, in 5 Writings of George Washington (Fitzpatrick ed.1932), 244, with Madison's views on a very similar question, letter to Eduard Livingston, July 10, 1822, 9 Writings of James Madison (Hunt ed.1910), 100-103. Compare also this statement by the Armed Forces Chaplains Board concerning the chaplain's obligation: "To us has been entrusted the spiritual and moral guidance of the young men and women in the Armed Services of this country. A chaplain has many duties -- yet first and foremost is that of presenting God to men and women wearing the military uniform. What happens to them while they are in military service has a profound effect on what happens in the community as they resume civilian life. We, as chaplains, must take full cognizance of that fact and dedicate our work to making them finer, spiritually strengthened citizens." Builders of Faith (U.S. Department of Defense 1955), ii. It is interesting to compare in this regard an express provision, Article 140, of the Weimar Constitution: "Necessary free time shall be accorded to the members of the armed forces for the fulfillment of their religious duties." McBain and Rogers, The New Constitutions of Europe (1922), 203. [ Footnote 3/72 ] For a discussion of some recent and difficult problems in connection with chaplains and religious exercises in prisons, see, e.g., Pierce v. La Vallee, 293 F.2d 233; In re Ferguson, 55 Cal. 2d 663 , 361 P.2d 417; McBride v. McCorkle, 44 N.J.Super. 468, 130 A.2d 881 ; Brown v. McGinnis, 10 N.Y.2d 531, 180 N.E.2d 791; discussed in Comment, 62 Col.L.Rev. 1488 (1962); 75 Harv.L.Rev. 837 (1962). Compare Article XVIII of the Hague Convention Regulations of 1899: "Prisoners of war shall enjoy every latitude in the exercise of their religion, including attendance at their own church services, provided only they comply with the regulations for order and police issued by the military authorities." Quoted in Blakely, American State Papers and Related Documents on Freedom in Religion (4th rev. ed.1949), 313. [ Footnote 3/73 ] Compare generally Sibley and Jacob, Conscription of Conscience: The American State and the Conscientious Objector, 1940-1947 (1952), with Conklin, Conscientious Objector Provisions: A View in the Light of Torcaso v. Watkins, 51 Geo.L.J. 252 (1963). [ Footnote 3/74 ] See, e.g., Southside Estates Baptist Church v. Board of Trustees, 115 So. 2d 697 (Fla.); Lewis v. Mandeville, 201 Misc. 120, 107 N.Y.S.2d 865; cf. School District No. 97 v. Schmidt, 128 Colo. 495, 263 P.2d 581 (temporary loan of school district's custodian to church). A different problem may be presented with respect to the regular use of public school property for religious activities, State ex rel. Gilbert v. Dilley, 95 Neb. 527, 145 N.W. 999; the erection on public property of a statue of or memorial to an essentially religious figure, State ex rel. Singelmann v. Morrison, 57 So. 2d 238 (La.App.); seasonal displays of a religious character, Baer v. Kolmorgen, 14 Misc.2d 1015, 181 N.Y.S.2d 230; or the performance on public property of a drama or opera based on religious material or carrying a religious message, cf. County of Los Angeles v. Hollinger, 200 Cal. App. 2d 877 , 19 Cal. Rptr. 648. [ Footnote 3/75 ] Compare Moulton and Myers, Report on Appointing Chaplains to the Legislature of New York, in Blau, Cornerstones of Religious Freedom in America (1949), 141-156; Comment, 63 Col.L.Rev. 73, 97 (1963) [ Footnote 3/76 ] A comprehensive survey of the problems raised concerning the role of religion in the secular curriculum is contained in Brown, ed., The Study of Religion in the Public Schools: An Appraisal (1958). See also Katz, Religion and American Constitutions, Lecture at Northwestern University Law School, March 21, 1963, pp. 37-41; Educational Policies Comm'n of the National Education Assn., Moral and Spiritual Values in the Public Schools (1951), 49-80. Compare, for a consideration of similar problems in state supported colleges and universities, Louisell and Jackson, Religion, Theology, and Public Higher Education, 50 Cal.L.Rev. 751 (1962). [ Footnote 3/77 ] See generally Torpey, Judicial Doctrines of Religious Rights in America (1948), c. VI; Van Alstyne, Tax Exemption of Church Property, 20 Ohio State L.J. 461 (1959); Sutherland, Due Process and Disestablishment, 62 Harv.L.Rev. 1306, 1336-1338 (1949); Louisell and Jackson, Religion, Theology, and Public Higher Education, 50 Cal.L.Rev. 751, 773-780 (1962); 7 De Paul L.Rev. 206 (1958); 58 Col.L.Rev. 417 (1958); 9 Stan.L.Rev. 366 (1957). [ Footnote 3/78 ] See, e.g., Washington Ethical Society v. District of Columbia, 101 U.S.App.D.C. 371, 249 F.2d 127; Fellowship of Humanity v. County of Alameda, 153 Cal. App. 2d 673 , 315 P.2d 394. MR. JUSTICE GOLDBERG, with whom MR. JUSTICE HARLAN joins, concurring. As is apparent from the opinions filed today, delineation of the constitutionally permissible relationship between religion and government is a most difficult and sensitive task, calling for the careful exercise of both judicial and public judgment and restraint. The considerations which lead the Court today to interdict the clearly religious practices presented in these cases are to me wholly compelling; I have no doubt as to the propriety of the decision, and therefore join the opinion and judgment of the Court. The singular sensitivity and concern which surround both the legal and practical judgments involved impel me, however, to add a few words in further explication, while at the same time avoiding repetition of the carefully and ably framed examination of history and authority by my Brethren. The First Amendment's guarantees, as applied to the States through the Fourteenth Amendment, foreclose not only laws "respecting an establishment of religion", but also those "prohibiting the free exercise thereof." These two proscriptions are to be read together, and in light of the single end which they are designed to serve. The basic purpose of the religion clause of the First Amendment is to promote and assure the fullest possible scope of religious liberty and tolerance for all, and to nurture the conditions which secure the best hope of attainment of that end. The fullest realization of true religious liberty requires that government neither engage in nor compel religious practices, that it effect no favoritism among sects or between religion and nonreligion, and that it work deterrence of no religious belief. But devotion even to these simply stated objectives presents no easy course, for the unavoidable accommodations necessary to achieve the Page 374 U. S. 306 maximum enjoyment of each and all of them are often difficult of discernment. There is for me no simple and clear measure which by precise application can readily and invariably demark the permissible from the impermissible. It is said, and I agree, that the attitude of government toward religion must be one of neutrality. But untutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious. Such results are not only not compelled by the Constitution, but, it seems to me, are prohibited by it. Neither government nor this Court can or should ignore the significance of the fact that a vast portion of our people believe in and worship God, and that many of our legal, political and personal values derive historically from religious teachings. Government must inevitably take cognizance of the existence of religion and, indeed, under certain circumstances, the First Amendment may require that it do so. And it seems clear to me from the opinions in the present and past cases that the Court would recognize the propriety of providing military chaplains and of the teaching about religion, as distinguished from the teaching of religion, in the public schools. The examples could readily be multiplied, for both the required and the permissible accommodations between state and church frame the relation as one free of hostility or favor and productive of religious and political harmony, but without undue involvement of one in the concerns or practices of the other. To be sure, the judgment in each case is a delicate one, but it must be made if we are to do loyal service as judges to the ultimate First Amendment objective of religious liberty. Page 374 U. S. 307 The practices here involved do not fall within any sensible or acceptable concept of compelled or permitted accommodation, and involve the state so significantly and directly in the realm of the sectarian as to give rise to those very divisive influences and inhibitions of freedom which both religion clauses of the First Amendment preclude. The state has ordained and has utilized its facilities to engage in unmistakably religious exercises -- the devotional reading and recitation of the Holy Bible -- in a manner having substantial and significant import and impact. That it has selected, rather than written, a particular devotional liturgy seems to me without constitutional import. The pervasive religiosity and direct governmental involvement inhering in the prescription of prayer and Bible reading in the public schools, during and as part of the curricular day, involving young impressionable children whose school attendance is statutorily compelled, and utilizing the prestige, power, and influence of school administration, staff, and authority, cannot realistically be termed simply accommodation, and must fall within the interdiction of the First Amendment. I find nothing in the opinion of the Court which says more than this. And, of course, today's decision does not mean that all incidents of government which import of the religious are therefore, and without more, banned by the strictures of the Establishment Clause. As the Court declared only last Term in Engel v. Vitale, 370 U. S. 421 , 370 U. S. 435 , n. 21: "There is, of course, nothing in the decision reached here that is inconsistent with the fact that school children and others are officially encouraged to express love for our country by reciting historical documents such as the Declaration of Independence which contain references to the Deity or by singing officially espoused anthems which include the composer's professions of faith in a Supreme Being, or Page 374 U. S. 308 with the fact that there are many manifestations in our public life of belief in God. Such patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise that the State . . . has sponsored in this instance." The First Amendment does not prohibit practices which, by any realistic measure, create none of the dangers which it is designed to prevent and which do not so directly or substantially involve the state in religious exercises or in the favoring of religion as to have meaningful and practical impact. It is, of course, true that great consequences can grow from small beginnings, but the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow. MR. JUSTICE STEWART, dissenting. I think the records in the two cases before us are so fundamentally deficient as to make impossible an informed or responsible determination of the constitutional issues presented. Specifically, I cannot agree that, on these records, we can say that the Establishment Clause has necessarily been violated. [ Footnote 4/1 ] But I think there exist serious questions under both that provision and the Free Exercise Clause -- insofar as each is imbedded in the Fourteenth Amendment -- which require the remand of these cases for the taking of additional evidence. I The First Amendment declares that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ." It is, I Page 374 U. S. 309 think, a fallacious oversimplification to regard these two provisions as establishing a single constitutional standard of "separation of church and state," which can be mechanically applied in every case to delineate the required boundaries between government and religion. We err in the first place if we do not recognize, as a matter of history and as a matter of the imperatives of our free society, that religion and government must necessarily interact in countless ways. Secondly, the fact is that, while in many contexts the Establishment Clause and the Free Exercise Clause fully complement each other, there are areas in which a doctrinaire reading of the Establishment Clause leads to irreconcilable conflict with the Free Exercise Clause. A single obvious example should suffice to make the point. Spending federal funds to employ chaplains for the armed forces might be said to violate the Establishment Clause. Yet a lonely soldier stationed at some faraway outpost could surely complain that a government which did not provide him the opportunity for pastoral guidance was affirmatively prohibiting the free exercise of his religion. And such examples could readily be multiplied. The short of the matter is simply that the two relevant clauses of the First Amendment cannot accurately be reflected in a sterile metaphor which by its very nature may distort, rather than illumine, the problems involved in a particular case. Cf. Sherbert v. Verner, post, p. 374 U. S. 398 . II As a matter of history, the First Amendment was adopted solely as a limitation upon the newly created National Government. The events leading to its adoption strongly suggest that the Establishment Clause was primarily an attempt to insure that Congress not only would be powerless to establish a national church, but Page 374 U. S. 310 would also be unable to interfere with existing state establishments. See McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 440 -441. Each State was left free to go its own way and pursue its own policy with respect to religion. Thus, Virginia from the beginning pursued a policy of disestablishmentarianism. Massachusetts, by contrast, had an established church until well into the nineteenth century. So matters stood until the adoption of the Fourteenth Amendment, or, more accurately, until this Court's decision in Cantwell v. Connecticut, in 1940. 310 U. S. 296 . In that case, the Court said: "The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. [ Footnote 4/2 ]" I accept without question that the liberty guaranteed by the Fourteenth Amendment against impairment by the States embraces in full the right of free exercise of religion protected by the First Amendment, and I yield to no one in my conception of the breadth of that freedom. See Braunfeld v. Brown, 366 U. S. 599 , 366 U. S. 616 (dissenting opinion). I accept too the proposition that the Fourteenth Amendment has somehow absorbed the Establishment Clause, although it is not without irony that a constitutional provision evidently designed to leave the States free to go their own way should now have become a restriction upon their autonomy. But I cannot agree with what seems to me the insensitive definition of the Establishment Clause contained in the Court's opinion, nor with the different, but, I think, equally mechanistic definitions contained in the separate opinions which have been filed. Page 374 U. S. 311 III Since the Cantwell pronouncement in 1940, this Court has only twice held invalid state laws on the ground that they were laws "respecting an establishment of religion" in violation of the Fourteenth Amendment. McCollum v. Board of Education, 333 U. S. 203 ; Engel v. Vitale, 370 U. S. 421 . On the other hand, the Court has upheld against such a challenge laws establishing Sunday as a compulsory day of rest, McGowan v. Maryland, 366 U. S. 420 , and a law authorizing reimbursement from public funds for the transportation of parochial school pupils. Everson v. Board of Education, 330 U. S. 1 . Unlike other First Amendment guarantees, there is an inherent limitation upon the applicability of the Establishment Clause's ban on state support to religion. That limitation was succinctly put in Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 18 : "State power is no more to be used so as to handicap religions than it is to favor them." [ Footnote 4/3 ] And in a later case, this Court recognized that the limitation was one which was itself compelled by the free exercise guarantee. "To hold that a state cannot, consistently with the First and Fourteenth Amendments, utilize its public school system to aid any or all religious faiths or sects in the dissemination of their doctrines and ideals does not . . . manifest a governmental hostility to religion or religious teachings. A manifestation of such hostility would be at war with our national tradition as embodied in the First Amendment's guaranty of the free Page 374 U. S. 312 exercise of religion." McCollum v. Board of Education, 333 U. S. 203 , 333 U. S. 211 -212. That the central value embodied in the First Amendment -- and, more particularly, in the guarantee of "liberty" contained in the Fourteenth -- is the safeguarding of an individual's right to free exercise of his religion has been consistently recognized. Thus, in the case of Hamilton v. Regents, 293 U. S. 245 , 293 U. S. 265 , Mr. Justice Cardozo, concurring, assumed that it was ". . . the religious liberty protected by the First Amendment against invasion by the nation [which] is protected by the Fourteenth Amendment against invasion by the states." (Emphasis added.) And in Cantwell v. Connecticut, supra, the purpose of those guarantees was described in the following terms: "On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion." 310 U.S. at 310 U. S. 303 . It is this concept of constitutional protection embodied in our decisions which makes the cases before us such difficult ones for me. For there is involved in these cases a substantial free exercise claim on the part of those who affirmatively desire to have their children's school day open with the reading of passages from the Bible. It has become accepted that the decision in Pierce v. Society of Sisters, 268 U. S. 510 , upholding the right of parents to send their children to nonpublic schools, was ultimately based upon the recognition of the validity of the free exercise claim involved in that situation. It might be argued here that parents who wanted their children to be exposed to religious influences in school could, under Pierce, send their children to private or parochial Page 374 U. S. 313 schools. But the consideration which renders this contention too facile to be determinative has already been recognized by the Court: "Freedom of speech, freedom of the press, freedom of religion are available to all, not merely to those who can pay their own way." Murdock v. Pennsylvania, 319 U. S. 105 , 319 U. S. 111 . It might also be argued that parents who want their children exposed to religious influences can adequately fulfill that wish off school property and outside school time. With all its surface persuasiveness, however, this argument seriously misconceives the basic constitutional justification for permitting the exercises at issue in these cases. For a compulsory state educational system so structures a child's life that, if religious exercises are held to be an impermissible activity in schools, religion is placed at an artificial and state-created disadvantage. Viewed in this light, permission of such exercises for those who want them is necessary if the schools are truly to be neutral in the matter of religion. And a refusal to permit religious exercises thus is seen not as the realization of state neutrality, but rather as the establishment of a religion of secularism, or, at the least, as government support of the beliefs of those who think that religious exercises should be conducted only in private. What seems to me to be of paramount importance, then, is recognition of the fact that the claim advanced here in favor of Bible reading is sufficiently substantial to make simple reference to the constitutional phrase "establishment of religion" as inadequate an analysis of the cases before us as the ritualistic invocation of the nonconstitutional phrase "separation of church and state." What these cases compel, rather, is an analysis of just what the "neutrality" is which is required by the interplay of the Establishment and Free Exercise Clauses of the First Amendment, as imbedded in the Fourteenth. Page 374 U. S. 314 IV Our decisions make clear that there is no constitutional bar to the use of government property for religious purposes. On the contrary, this Court has consistently held that the discriminatory barring of religious groups from public property is itself a violation of First and Fourteenth Amendment guarantees. Fowler v. Rhode Island, 345 U. S. 67 ; Niemotko v. Maryland, 340 U. S. 268 . A different standard has been applied to public school property, because of the coercive effect which the use by religious sects of a compulsory school system would necessarily have upon the children involved. McCollum v. Board of Education, 333 U. S. 203 . But insofar as the McCollum decision rests on the Establishment, rather than the Free Exercise, Clause, it is clear that its effect is limited to religious instruction -- to government support of proselytizing activities of religious sects by throwing the weight of secular authority behind the dissemination of religious tenets. [ Footnote 4/4 ] The dangers both to government and to religion inherent in official support of instruction in the tenets of various religious sects are absent in the present cases, which involve only a reading from the Bible unaccompanied by comments which might otherwise constitute instruction. Indeed, since, from all that appears in either record, any teacher who does not wish to do so is free not to participate, [ Footnote 4/5 ] it cannot even be contended that some Page 374 U. S. 315 infinitesimal part of the salaries paid by the State are made contingent upon the performance of a religious function. In the absence of evidence that the legislature or school board intended to prohibit local schools from substituting a different set of readings where parents requested such a change, we should not assume that the provisions before us -- as actually administered -- may not be construed simply as authorizing religious exercises, nor that the designations may not be treated simply as indications of the promulgating body's view as to the community's preference. We are under a duty to interpret these provisions so as to render them constitutional if reasonably possible. Compare Two Guys v. McGinley, 366 U. S. 582 , 366 U. S. 592 -595; Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 4 , and n. 2. In the Schempp case there is evidence which indicates that variations were, in fact, permitted by the very school there involved, and that further variations were not introduced only because of the absence of requests from parents. And in the Murray case, the Baltimore rule itself contains a provision permitting another version of the Bible to be substituted for the King James version. If the provisions are not so construed, I think that their validity under the Establishment Clause would be extremely doubtful, because of the designation of a particular religious book and a denominational prayer. But since, even if the provisions are construed as I believe they must be, I think that the cases before us must be remanded for further evidence on other issues -- thus affording the plaintiffs an opportunity to prove that local variations are not, in fact, permitted -- I shall for the balance Page 374 U. S. 316 of this dissenting opinion treat the provisions before us as making the variety and content of the exercises, as well as a choice as to their implementation, matters which ultimately reflect the consensus of each local school community. In the absence of coercion upon those who do not wish to participate -- because they hold less strong beliefs, other beliefs, or no beliefs at all -- such provisions cannot, in my view, be held to represent the type of support of religion barred by the Establishment Clause. For the only support which such rules provide for religion is the withholding of state hostility -- a simple acknowledgment on the part of secular authorities that the Constitution does not require extirpation of all expression of religious belief. V I have said that these provisions authorizing religious exercises are properly to be regarded as measures making possible the free exercise of religion. But it is important to stress that, strictly speaking, what is at issue here is a privilege, rather than a right. In other words, the question presented is not whether exercises such as those at issue here are constitutionally compelled, but rather whether they are constitutionally invalid. And that issue, in my view, turns on the question of coercion. It is clear that the dangers of coercion involved in the holding of religious exercises in a school room differ qualitatively from those presented by the use of similar exercises or affirmations in ceremonies attended by adults. Even as to children, however, the duty laid upon government in connection with religious exercises in the public schools is that of refraining from so structuring the school environment as to put any kind of pressure on a child to participate in those exercises; it is not that of providing an atmosphere in which children are kept scrupulously insulated from any awareness that some of their fellows Page 374 U. S. 317 may want to open the school day with prayer, or of the fact that there exist in our pluralistic society differences of religious belief. These are not, it must be stressed, cases like Brown v. Board of Education, 347 U. S. 483 , in which this Court held that, in the sphere of public education, the Fourteenth Amendment's guarantee of equal protection of the laws required that race not be treated as a relevant factor. A segregated school system is not invalid because its operation is coercive; it is invalid simply because our Constitution presupposes that men are created equal, and that, therefore, racial differences cannot provide a valid basis for governmental action. Accommodation of religious differences on the part of the State, however, is not only permitted but required by that same Constitution. The governmental neutrality which the First and Fourteenth Amendments require in the cases before us, in other words, is the extension of evenhanded treatment to all who believe, doubt, or disbelieve -- a refusal on the part of the State to weight the scales of private choice. In these cases, therefore, what is involved is not state action based on impermissible categories, but rather an attempt by the State to accommodate those differences which the existence in our society of a variety of religious beliefs makes inevitable. The Constitution requires that such efforts be struck down only if they are proven to entail the use of the secular authority of government to coerce a preference among such beliefs. It may well be, as has been argued to us, that even the supposed benefits to be derived from noncoercive religious exercises in public schools are incommensurate with the administrative problems which they would create. The choice involved, however, is one for each local community and its school board, and not for this Court. For, as I have said, religious exercises are not constitutionally invalid if they simply reflect differences which exist in the Page 374 U. S. 318 society from which the school draws its pupils. They become constitutionally invalid only if their administration places the sanction of secular authority behind one or more particular religious or irreligious beliefs. To be specific, it seems to me clear that certain types of exercises would present situations in which no possibility of coercion on the part of secular officials could be claimed to exist. Thus, if such exercises were held either before or after the official school day, or if the school schedule were such that participation were merely one among a number of desirable alternatives, [ Footnote 4/6 ] it could hardly be contended that the exercises did anything more than to provide an opportunity for the voluntary expression of religious belief. On the other hand, a law which provided for religious exercises during the school day and which contained no excusal provision would obviously be unconstitutionally coercive upon those who did not wish to participate. And even under a law containing an excusal provision, if the exercises were held during the school day, and no equally desirable alternative were provided by the school authorities, the likelihood that children might be under at least some psychological compulsion to participate would be great. In a case such as the latter, however, I think we would err if we assumed such coercion in the absence of any evidence. [ Footnote 4/7 ] Page 374 U. S. 319 VI Viewed in this light, it seems to me clear that the records in both of the cases before us are wholly inadequate to support an informed or responsible decision. Both cases involve provisions which explicitly permit any student who wishes, to be excused from participation in the exercises. There is no evidence in either case as to whether there would exist any coercion of any kind upon a student who did not want to participate. No evidence at all was adduced in the Murray case, because it was decided upon a demurrer. All that we have in that case, therefore, is the conclusory language of a pleading. While such conclusory allegations are acceptable for procedural purposes, I think that the nature of the constitutional problem involved here clearly demands that no decision be made except upon evidence. In the Schempp case, the record shows no more than a subjective prophecy by a parent of what he thought would happen if a request were made to be excused from participation in the exercises under the amended statute. No such request was ever made, and there is no evidence whatever as to what might or would actually happen, nor of what administrative arrangements the school actually might or could make to free from pressure of any kind those who do not want to participate in the exercises. There were no District Court findings on this issue, since the case under the amended statute was decided exclusively on Establishment Clause grounds. 201 F. Supp. 815 What our Constitution indispensably protects is the freedom of each of us, be he Jew or Agnostic, Christian or Page 374 U. S. 320 Atheist, Buddhist or Freethinker, to believe or disbelieve, to worship or not worship, to pray or keep silent, according to his own conscience, uncoerced and unrestrained by government. It is conceivable that these school boards, or even all school boards, might eventually find it impossible to administer a system of religious exercises during school hours in such a way as to meet this constitutional standard -- in such a way as completely to free from any kind of official coercion those who do not affirmatively want to participate. [ Footnote 4/8 ] But I think we must not assume that school boards so lack the qualities of inventiveness and good will as to make impossible the achievement of that goal. I would remand both cases for further hearings. [ Footnote 4/1 ] It is instructive, in this connection, to examine the complaints in the two cases before us. Neither complaint attacks the challenged practices as "establishments." What both allege as the basis for their causes of actions are, rather, violations of religious liberty. [ Footnote 4/2 ] 310 U.S. at 310 U. S. 303 . The Court's statement as to the Establishment Clause in Cantwell was dictum. The case was decided on free exercise grounds. [ Footnote 4/3 ] See also, in this connection, Zorach v. Clauson, 343 U. S. 306 , 343 U. S. 314 : "Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person. But we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence." [ Footnote 4/4 ] "This is, beyond all question, a utilization of the tax established and tax supported public school system to aid religious groups to spread their faith. " McCollum v. Board of Education, 333 U. S. 203 , 333 U. S. 210 . (Emphasis added.) [ Footnote 4/5 ] The Pennsylvania statute was specifically amended to remove the compulsion upon teachers. Act of December 17, 1959, p. L.1928, 24 Purdon's Pa.Stat.Ann. § 15-1516. Since the Maryland case is here on a demurrer, the issue of whether or not a teacher could be dismissed for refusal to participate seems, among many others, never to have been raised. [ Footnote 4/6 ] See, e.g., the description of a plan permitting religious instruction off school property contained in McCollum v. Board of Education, 333 U. S. 203 , 333 U. S. 224 (separate opinion of Mr. Justice Frankfurter). [ Footnote 4/7 ] Cf. "The task of separating the secular from the religious in education is one of magnitude, intricacy and delicacy. To lay down a sweeping constitutional doctrine as demanded by complainant and apparently approved by the Court, applicable alike to all school boards of the nation, . . . is to decree a uniform, rigid and, if we are consistent, an unchanging standard for countless school boards representing and serving highly localized groups which not only differ from each other but which themselves from time to time change attitudes. It seems to me that to do so is to allow zeal for our own ideas of what is good in public instruction to induce us to accept the role of a super board of education for every school district in the nation." McCollum v. Board of Education, 333 U. S. 203 , 333 U. S. 237 (concurring opinion of Mr. Justice Jackson). [ Footnote 4/8 ] For example, if the record in the Schempp case contained proof (rather than mere prophecy) that the timing of morning announcements by the school was such as to handicap children who did not want to listen to the Bible reading, or that the excusal provision was so administered as to carry any overtones of social inferiority, then impermissible coercion would clearly exist.

In School District of Abington Township v. Schempp (1963), the Supreme Court ruled that a Pennsylvania law requiring public schools to start each day with Bible readings, even with an option to be excused, violated the Establishment Clause of the First Amendment, applied to the states via the Fourteenth Amendment. The Court held that the law unconstitutionally established religion in public schools, emphasizing the prohibition on state-sponsored religious instruction and the protection of religious liberty. This decision reaffirmed the separation of church and state, marking a significant milestone in religious freedom in US public education.

Religion

Estate of Thornton v. Caldor, Inc.

https://supreme.justia.com/cases/federal/us/472/703/

U.S. Supreme Court Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985) Estate of Thornton v. Caldor, Inc. No. 83-1158 Argued November 7, 1984 Decided June 26, 1985 472 U.S. 703 CERTIORARI TO THE SUPREME COURT OF CONNECTICUT Syllabus Petitioner's decedent, Donald E. Thornton, worked in a managerial position at a Connecticut store owned by respondent, which operated a chain of New England retail stores. In 1979, Thornton informed respondent that he would no longer work on Sundays, as was required by respondent as to managerial employees. Thornton invoked the Connecticut statute which provides: "No person who states that a particular day of the week is observed as his Sabbath may be required by his employer to work on such day. An employee's refusal to work on his Sabbath shall not constitute grounds for his dismissal." Thornton rejected respondent's offer either to transfer him to a management job in a Massachusetts store that was closed on Sundays, or to transfer him to a nonsupervisory position in the Connecticut store at a lower salary. Subsequently, respondent transferred Thornton to a clerical position in the Connecticut store; Thornton resigned two days later and filed a grievance with the State Board of Mediation and Arbitration, alleging that he was discharged from his manager's position in violation of the Connecticut statute. The Board sustained the grievance, ordering respondent to reinstate Thornton, and the Connecticut Superior Court affirmed the Board's ruling, concluding that the statute did not offend the Establishment Clause of the First Amendment. The Connecticut Supreme Court reversed. Held: The Connecticut statute, by providing Sabbath observers with an absolute and unqualified right not to work on their chosen Sabbath, violates the Establishment Clause. To meet constitutional requirements under that Clause, a statute must not only have a secular purpose and not foster excessive entanglement of government with religion, its primary effect must not advance or inhibit religion. Lemon v. Kurtzman, 403 U. S. 602 . The Connecticut statute imposes on employers and employees an absolute duty to conform their business practices to the particular religious practices of an employee by enforcing observance of the Sabbath that the latter unilaterally designates. The State thus commands that Sabbath religious concerns automatically control over all secular interests at the workplace; the statute takes no account of the convenience or interests of the employer or those of other employees who do not observe a Sabbath. In granting unyielding weighting in favor of Sabbath observers over all other interests, the statute has a Page 472 U. S. 704 primary effect that impermissibly advances a particular religious practice. Pp. 472 U. S. 708 -711. 191 Conn.336, 464 A.2d 785, affirmed. BURGR, C.J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, STEVENS, and O'CONNOR, JJ., joined. O'CONNOR, J., filed a concurring opinion, in which MARSHALL, J., joined, post, p. 472 U. S. 711 . REHNQUIST, J., dissented. CHIEF JUSTICE BURGER delivered the opinion of the Court. We granted certiorari to decide whether a state statute that provides employees with the absolute right not to work Page 472 U. S. 705 on their chosen Sabbath violates the Establishment Clause of the First Amendment. I In early 1975, petitioner's decedent Donald E. Thornton [ Footnote 1 ] began working for respondent Caldor, Inc., a chain of New England retail stores; he managed the men's and boys' clothing department in respondent's Waterbury, Connecticut, store. At that time, respondent's Connecticut stores were closed on Sundays pursuant to state law. Conn.Gen.Stat. §§ 53-300 to 53-303 (1958). In 1977, following the state legislature's revision of the Sunday closing laws, [ Footnote 2 ] respondent opened its Connecticut stores for Sunday business. In order to handle the expanded store hours, respondent required its managerial employees to work every third or fourth Sunday. Thornton, a Presbyterian who observed Sunday as his Sabbath, initially Page 472 U. S. 706 complied with respondent's demand and worked a total of 31 Sundays in 1977 and 1978. In October, 1978, Thornton was transferred to a management position in respondent's Torrington store; he continued to work on Sundays during the first part of 1979. In November, 1979, however, Thornton informed respondent that he would no longer work on Sundays because he observed that day as his Sabbath; he invoked the protection of Conn.Gen.Stat. § 53-303e(b) (1985), which provides: "No person who states that a particular day of the week is observed as his Sabbath may be required by his employer to work on such day. An employee's refusal to work on his Sabbath shall not constitute grounds for his dismissal. [ Footnote 3 ]" Thornton rejected respondent's offer either to transfer him to a management job in a Massachusetts store that was closed on Sundays or to transfer him to a nonsupervisory position in the Torrington store at a lower salary. [ Footnote 4 ] In March, 1980, respondent transferred Thornton to a clerical position in the Torrington store; Thornton resigned two days later Page 472 U. S. 707 and filed a grievance with the State Board of Mediation and Arbitration alleging that he was discharged from his manager's position in violation of Conn.Gen.Stat. § 53-303e(b) (1985). Respondent defended its action on the ground that Thornton had not been "discharged" within the meaning of the statute; respondent also urged the Board to find that the statute violated Article 7 of the Connecticut Constitution as well as the Establishment Clause of the First Amendment. After holding an evidentiary hearing the Board evaluated the sincerity of Thornton's claim and concluded it was based on a sincere religious conviction; it issued a formal decision sustaining Thornton's grievance. The Board framed the statutory issue as follows: "If a discharge for refusal to work Sunday hours occurred and Sunday was the Grievant's Sabbath . . . ," § 53-303e(b) would be violated; the Board held that respondent had violated the statute by "discharg[ing] Mr. Thornton as a management employee for refusing to work . . . [on] Thornton's . . . Sabbath." App. 11a, 12a. The Board ordered respondent to reinstate Thornton with backpay and compensation for lost fringe benefits. [ Footnote 5 ] The Superior Court, in affirming that ruling, concluded that the statute did not offend the Establishment Clause. The Supreme Court of Connecticut reversed, holding the statute did not have a "clear secular purpose." Caldor, Inc. v. Thornton, 191 Conn.336, 349, 464 A.2d 785, 793 (1983). [ Footnote 6 ] By authorizing each employee to designate his own Sabbath as a day off, the statute evinced the "unmistakable purpose . . . [of] allow[ing] those persons who wish to worship on a particular day the freedom to do so." Ibid. The court then held that the "primary effect" of the statute was to advance Page 472 U. S. 708 religion because the statute "confers its 'benefit' on an explicitly religious basis. Only those employees who designate a Sabbath are entitled not to work on that particular day, and may not be penalized for so doing." Id. at 350, 464 A.2d at 794. The court noted that the statute required the State Mediation Board to decide which religious activities may be characterized as an "observance of Sabbath" in order to assess employees' sincerity, and concluded that this type of inquiry is "exactly the type of 'comprehensive, discriminating and continuing state surveillance' . . . which creates excessive governmental entanglements between church and state." Id. at 351, 464 A.2d at 794 ( quoting Lemon v. Kurtzman, 403 U. S. 602 , 403 U. S. 619 (1971)). We granted certiorari, 465 U.S. 1078 (1984). [ Footnote 7 ] We affirm. II Under the Religion Clauses, government must guard against activity that impinges on religious freedom, and must take pains not to compel people to act in the name of any religion. In setting the appropriate boundaries in Establishment Clause cases, the Court has frequently relied on our holding in Lemon, supra, for guidance, and we do so here. To pass constitutional muster under Lemon a statute must not only have a secular purpose and not foster excessive entanglement of government with religion, its primary effect must not advance or inhibit religion. The Connecticut statute challenged here guarantees every employee, who "states that a particular day of the week is observed as his Sabbath," the right not to work on his chosen day. Conn.Gen.Stat. § 53-303e(b) (1985). The State has thus decreed that those who observe a Sabbath any day of the week as a matter of religious conviction must be relieved of the duty to work on that day, no matter what burden or Page 472 U. S. 709 inconvenience this imposes on the employer or fellow workers. The statute arms Sabbath observers with an absolute and unqualified right not to work on whatever day they designate as their Sabbath. [ Footnote 8 ] In essence, the Connecticut statute imposes on employers and employees an absolute duty to conform their business practices to the particular religious practices of the employee by enforcing observance of the Sabbath the employee unilaterally designates. The State thus commands that Sabbath religious concerns automatically control over all secular interests at the workplace; the statute takes no account of the convenience or interests of the employer or those of other employees who do not observe a Sabbath. The employer and others must adjust their affairs to the command of the State whenever the statute is invoked by an employee. There is no exception under the statute for special circumstances, such as the Friday Sabbath observer employed in an occupation with a Monday through Friday schedule a school teacher, for example; the statute provides for no special consideration if a high percentage of an employer's workforce asserts rights to the same Sabbath. Moreover, there is no exception when honoring the dictates of Sabbath observers Page 472 U. S. 710 would cause the employer substantial economic burdens or when the employer's compliance would require the imposition of significant burdens on other employees required to work in place of the Sabbath observers. [ Footnote 9 ] Finally, the statute allows for no consideration as to whether the employer has made reasonable accommodation proposals. This unyielding weighting in favor of Sabbath observers over all other interests contravenes a fundamental principle of the Religion Clauses, so well articulated by Judge Learned Hand: "The First Amendment . . . gives no one the right to insist that, in pursuit of their own interests, others must conform their conduct to his own religious necessities." Otten v. Baltimore & Ohio R. Co., 205 F.2d 58, 61 (CA2 1953). As such, the statute goes beyond having an incidental or remote effect of advancing religion. See, e.g., Roemer v. Maryland Bd. of Public Works, 426 U. S. 736 , 426 U. S. 747 (1976); Board of Education v. Allen, 392 U. S. 236 (1968). The statute has a primary effect that impermissibly advances a particular religious practice. III We hold that the Connecticut statute, which provides Sabbath observers with an absolute and unqualified right not to Page 472 U. S. 711 work on their Sabbath, violates the Establishment Clause of the First Amendment. Accordingly, the judgment of the Supreme Court of Connecticut is Affirmed. JUSTICE REHNQUIST dissents. [ Footnote 1 ] Thornton died on February 4, 1982, while his appeal was pending before the Supreme Court of Connecticut. The administrator of Thornton's estate has continued the suit on behalf of the decedent's estate. [ Footnote 2 ] The state legislature revised the Sunday closing laws in 1976 after a state court held that the existing laws were unconstitutionally vague. State v. Anonymous, 33 Conn.Supp. 55, 364 A.2d 244 (Com.Pl.1976). The legislature modified the laws to permit certain classes of businesses to remain open. Conn.Gen.Stat. § 53-302a (1985). At the same time, a new provision was added, § 53-303e, which prohibited employment of more than six days in any calendar week and guaranteed employees the right not to work on the Sabbath of their religious faith. See n 3, infra. Soon after the revised Sunday closing law was enacted, the Court of Common Pleas once again declared it unconstitutional. State v. Anonymous, 33 Conn.Supp. 141, 366 A.2d 200 (1976). This decision was limited to the provision requiring Sunday closing, § 53-302a; the court did not consider the validity of other provisions such as § 53-303e. In 1978, the state legislature tried its hand at enacting yet another Sunday closing law, Pub. Act No. 78-329, 1978 Conn.Pub. Acts 700-702; the Supreme Court of Connecticut declared the statute unconstitutional. Caldor's Inc. v. Bedding Barn, Inc., 177 Conn.304, 417 A.2d 343 (1979). As had the Court of Common Pleas, the Connecticut Supreme Court did not address the constitutionality of § 53-303e and that provision remained in effect until challenged in this action. [ Footnote 3 ] Thornton had learned of this statutory protection by consulting with an attorney. See App. 88a-9Oa. Section 53-303e was enacted as part of the 1976 revision of the Sunday closing laws. Apart from the 6-day week and the Sabbath observance provisions, see n 2, supra, the remainder of the statute provides: "(c) Any employee, who believes that his discharge was in violation of subsection (a) or (b) of this section may appeal such discharge to the state board of mediation and arbitration. If said board finds that the employee was discharged in violation of said subsection (a) or (b), it may order whatever remedy will make the employee whole, including but not limited to reinstatement to his former or a comparable position." "(d) No employer may, as a prerequisite to employment, inquire whether the applicant observes any Sabbath." "(e) Any person who violates any provision of this section shall not be fined more than two hundred dollars." [ Footnote 4 ] The collective bargaining agreement in effect for nonsupervisory employees provided that they were not required to work on Sundays if it was "contrary [to the employee's] personal religious convictions." App. 91a. [ Footnote 5 ] The Board refused to consider respondent's constitutional challenge on the ground that, as a quasi-judicial body, it had no authority to pass on the constitutionality of state law. Id. at 9a-10a. [ Footnote 6 ] The court expressly chose not to consider whether the statute violated Article 7 of the Connecticut Constitution. 191 Conn. at 346, n. 7, 464 A.2d at 792, n. 7. [ Footnote 7 ] We also granted the State of Connecticut's motion to intervene as of right to defend the constitutionality of the state law. 465 U.S. 1098 (1984). [ Footnote 8 ] The State Board of Mediation and Arbitration construed the statute as providing Thornton with the absolute right not to work on his Sabbath. Caldor, Inc. v. Thornton, Conn.Bd. Med. & Arb. No. 7980-A-727 (Oct. 20, 1980), App. 11a-12a; accord, G. Fox & Co. v. Rinaldi, Conn.Bd. Med. & Arb. No. 8182-A-440 (Nov. 17, 1982) ("There is no question that . . . the employee has an absolute right to designate any day of the week as his or her sabbath [and that § 53-303e(b) would be violated if] the termination was as a result of the employee's refusal to work on her sabbath"). Following settled state law, see, e.g., Bruno v. Department of Consumer Protection, 190 Conn.14, 18, 458 A.2d 685, 688 (1983) (per curiam), the State Superior Court and the Supreme Court of Connecticut adopted the Board's construction of the statute, 191 Conn. at 340-343, 350, 464 A.2d at 789-790, 794. This construction of the state law is, of course, binding on federal courts. E.g., Brown v. Ohio, 432 U. S. 161 , 432 U. S. 167 (1977); Garner v. Louisiana, 368 U. S. 157 , 368 U. S. 169 (1961); Murdock v. City of Memphis , 20 Wall. 590 (1875). [ Footnote 9 ] Section 53-303e(b) gives Sabbath observers the valuable right to designate a particular weekly day off -- typically a weekend day, widely prized as a day off. Other employees who have strong and legitimate, but nonreligious, reasons for wanting a weekend day off have no rights under the statute. For example, those employees who have earned the privilege through seniority to have weekend days off may be forced to surrender this privilege to the Sabbath observer; years of service and payment of "dues" at the workplace simply cannot compete with the Sabbath observer's absolute right under the statute. Similarly, those employees who would like a weekend day off, because that is the only day their spouses are also not working, must take a back seat to the Sabbath observer. JUSTICE O'CONNOR, with whom JUSTICE MARSHALL joins, concurring. The Court applies the test enunciated in Lemon v. Kurtzman, 403 U. S. 602 , 403 U. S. 612 -613 (1971), and concludes that Conn.Gen.Stat. § 53-303e(b) (1985) has a primary effect that impermissibly advances religion. I agree, and I join the Court's opinion and judgment. In my view, the Connecticut Sabbath law has an impermissible effect because it conveys a message of endorsement of the Sabbath observance. All employees, regardless of their religious orientation, would value the benefit which the statute bestows on Sabbath observers -- the right to select the day of the week in which to refrain from labor. Yet Connecticut requires private employers to confer this valued and desirable benefit only on those employees who adhere to a particular religious belief. The statute singles out Sabbath observers for special and, as the Court concludes, absolute protection without according similar accommodation to ethical and religious beliefs and practices of other private employees. There can be little doubt that an objective observer or the public at large would perceive this statutory scheme precisely as the Court does today. Ante at 472 U. S. 708 -710. The message conveyed is one of endorsement of a particular religious belief, to the detriment of those who do not share it. As such, the Connecticut statute has the effect of advancing religion, and cannot withstand Establishment Clause scrutiny. I do not read the Court's opinion as suggesting that the religious accommodation provisions of Title VII of the Civil Rights Act of 1964 are similarly invalid. These provisions preclude employment discrimination based on a person's religion Page 472 U. S. 712 and require private employers to reasonably accommodate the religious practices of employees unless to do so would cause undue hardship to the employer's business. 42 U.S.C. §§ 2000e(J) and 2000e-2(a)(1). Like the Connecticut Sabbath law, Title VII attempts to lift a burden on religious practice that is imposed by private employers, and hence it is not the sort of accommodation statute specifically contemplated by the Free Exercise Clause. See Wallace v. Jaffree, ante at 472 U. S. 83 -84 (opinion concurring in judgment). The provisions of Title VII must therefore manifest a valid secular purpose and effect to be valid under the Establishment Clause. In my view, a statute outlawing employment discrimination based on race, color, religion, sex, or national origin has the valid secular purpose of assuring employment opportunity to all groups in our pluralistic society. See Trans World Airlines, Inc. v. Hardison, 432 U. S. 63 , 432 U. S. 90 , n. 4 (1977) (MARSHALL, J., dissenting). Since Title VII calls for reasonable rather than absolute accommodation and extends that requirement to all religious beliefs and practices rather than protecting only the Sabbath observance, I believe an objective observer would perceive it as an antidiscrimination law rather than an endorsement of religion or a particular religious practice.

In *Estate of Thornton v. Caldor, Inc.*, the U.S. Supreme Court ruled that a Connecticut statute granting employees an absolute right to refuse work on their chosen Sabbath day violated the Establishment Clause of the First Amendment. The Court held that the statute had the primary effect of advancing a particular religious practice by imposing an absolute duty on employers to accommodate an employee's Sabbath observance, without considering the interests of the employer or other employees. The statute's unyielding weighting in favor of Sabbath observers was seen as an endorsement of a particular religious belief, impermissibly advancing religion.

Religion

Wallace v. Jaffree

https://supreme.justia.com/cases/federal/us/472/38/

U.S. Supreme Court Wallace v. Jaffree, 472 U.S. 38 (1985) Wallace v. Jaffree No. 83-812 Argued December 4, 1984 Decided June 4, 1985 472 U.S. 38 ast|>* 472 U.S. 38 APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE `ELEVENTH CIRCUIT Syllabus In proceedings instituted in Federal District Court, appellees challenged the constitutionality of, inter alia, a 1981 Alabama Statute (§ 16-1-20.1) authorizing a 1-minute period of silence in all public schools "for meditation or voluntary prayer." Although finding that § 16-1-20.1 was an effort to encourage a religious activity, the District Court ultimately held that the Establishment Clause of the First Amendment does not prohibit a State from establishing a religion. The Court of Appeals reversed. Held: Section 16-1-20.1 is a law respecting the establishment of religion, and thus violates the First Amendment. Pp. 472 U. S. 48 -61. (a) The proposition that the several States have no greater power to restrain the individual freedoms protected by the First Amendment than does Congress is firmly embedded in constitutional jurisprudence. The First Amendment was adopted to curtail Congress' power to interfere with the individual's freedom to believe, to worship, and to express himself in accordance with the dictates of his own conscience, and the Fourteenth Amendment imposed the same substantive limitations on the States' power to legislate. The individual's freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed established by the majority. Moreover, the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all. Pp. 472 U. S. 48 -55. (b) One of the well-established criteria for determining the constitutionality of a statute under the Establishment Clause is that the statute must have a secular legislative purpose. Lemon v. Kurtzman, 403 U. S. 602 , 403 U. S. 612 -613. The First Amendment requires that a statute must be invalidated if it is entirely motivated by a purpose to advance religion. Pp. 472 U. S. 55 -56. (c) The record here not only establishes that § 16-1-20.1's purpose was to endorse religion, it also reveals that the enactment of the statute was not motivated by any clearly secular purpose. In particular, the statements of § 16-120.1's sponsor in the legislative record and in his Page 472 U. S. 39 testimony before the District Court indicate that the legislation was solely an "effort to return voluntary prayer" to the public schools. Moreover, such unrebutted evidence of legislative intent is confirmed by a consideration of the relationship between § 16-1-20.1 and two other Alabama statutes -- one of which, enacted in 1982 as a sequel to § 16-1-20.1, authorized teachers to lead "willing students" in a prescribed prayer, and the other of which, enacted in 1978 as § 16-1-20. l's predecessor, authorized a period of silence "for meditation" only. The State's endorsement, by enactment of § 16-1-20.1, of prayer activities at the beginning of each schoolday is not consistent with the established principle that the government must pursue a course of complete neutrality toward religion. Pp. 472 U. S. 56 -61. 705 F.2d 1526 and 713 F.2d 614, affirmed. STEVENS, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, and POWELL, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 472 U. S. 62 . O'CONNOR, J., filed an opinion concurring in the judgment, post, p. 472 U. S. 67 . BURGER, C.J., post, p. 472 U. S. 84 , WHITE, J., post, p. 472 U. S. 90 , and REHNQUIST, J., post, p. 472 U. S. 91 , filed dissenting opinions. Page 472 U. S. 40 JUSTICE STEVENS delivered the opinion of the Court. At an early stage of this litigation, the constitutionality of three Alabama statutes was questioned: (1) § 16-1-20, enacted in 1978, which authorized a 1-minute period of silence in all public schools "for meditation"; [ Footnote 1 ] (2) § 16-1-20.1, enacted in 1981, which authorized a period of silence "for meditation or voluntary prayer"; [ Footnote 2 ] and (3) § 16-1-20.2, enacted in 1982, which authorized teachers to lead "willing students" in a prescribed prayer to "Almighty God . . . the Creator and Supreme Judge of the world." [ Footnote 3 ] Page 472 U. S. 41 At the preliminary injunction stage of this case, the District Court distinguished § 16-1-20 from the other two statutes. It then held that there was "nothing wrong" with § 16-1-20, [ Footnote 4 ] but that §§ 16-1-20.1 and 16-1-20.2 were both invalid because the sole purpose of both was "an effort on the part of the State of Alabama to encourage a religious activity." [ Footnote 5 ] After the trial on the merits, the District Court did not change its interpretation of these two statutes, but held that they were constitutional because, in its opinion, Alabama has the power to establish a state religion if it chooses to do so. [ Footnote 6 ] The Court of Appeals agreed with the District Court's initial interpretation of the purpose of both § 16-1-20.1 and § 16-1-20.2, and held them both unconstitutional. [ Footnote 7 ] We have already affirmed the Court of Appeals' holding with respect to § 16-1-20.2. [ Footnote 8 ] Moreover, appellees have not questioned the holding that § 16-1-20 is valid. [ Footnote 9 ] Thus, the narrow question for decision is whether § 16-1-20.1, which authorizes a period of silence for "meditation or voluntary prayer," is a Page 472 U. S. 42 law respecting the establishment of religion within the meaning of the First Amendment. [ Footnote 10 ] I Appellee Ishmael Jaffree is a resident of Mobile County, Alabama. On May 28, 1982, he filed a complaint on behalf of three of his minor children; two of them were second-grade students and the third was then in kindergarten. The complaint named members of the Mobile County School Board, various school officials, and the minor plaintiffs' three teachers as defendants. [ Footnote 11 ] The complaint alleged that the appellees brought the action "seeking principally a declaratory judgment and an injunction restraining the Defendants and each of them from maintaining or allowing the maintenance of regular religious prayer services or other forms of religious observances in the Mobile County Public Schools in violation of the First Amendment as made applicable to states by the Fourteenth Amendment to the United States Constitution. [ Footnote 12 ]" The complaint further alleged that two of the children had been subjected to various acts of religious indoctrination "from the beginning of the school year in September, 1981"; [ Footnote 13 ] that the defendant teachers had "on a daily basis" led their classes in saying certain prayers in unison; [ Footnote 14 ] that the minor children were exposed to ostracism from their peer group class members if they did not participate; [ Footnote 15 ] and that Ishmael Jaffree had repeatedly but unsuccessfully requested that the devotional services be stopped. The original complaint made no reference to any Alabama statute. Page 472 U. S. 43 On June 4, 1982, appellees filed an amended complaint seeking class certification, [ Footnote 16 ] and on June 30, 1982, they filed a second amended complaint naming the Governor of Alabama and various state officials as additional defendants. In that amendment, the appellees challenged the constitutionality of three Alabama statutes: §§ 16-1-20, 16-1-20.1, and 16-l-20.2. [ Footnote 17 ] On August 2, 1982, the District Court held an evidentiary hearing on appellees' motion for a preliminary injunction. At that hearing, State Senator Donald G. Holmes testified that he was the "prime sponsor" of the bill that was enacted in 1981 as § 16-l-20.1. [ Footnote 18 ] He explained that the bill was an "effort to return voluntary prayer to our public schools . . . it is a beginning and a step in the right direction." [ Footnote 19 ] Apart from the purpose to return voluntary prayer to public school, Senator Holmes unequivocally testified that he had "no other purpose in mind." [ Footnote 20 ] A week after the hearing, the District Court entered a preliminary injunction. [ Footnote 21 ] The court held that appellees were likely to prevail on the merits because the enactment of §§ 16-1-20.1 and 16-1-20.2 did not reflect a clearly secular purpose. [ Footnote 22 ] Page 472 U. S. 44 In November 1982, the District Court held a 4-day trial on the merits. The evidence related primarily to the 1981-1982 academic year -- the year after the enactment of § 16-120.1 and prior to the enactment of § 16-1-20.2. The District Court found that, during that academic year, each of the minor plaintiffs' teachers had led classes in prayer activities, even after being informed of appellees' objections to these activities. [ Footnote 23 ] In its lengthy conclusions of law, the District Court reviewed a number of opinions of this Court interpreting the Page 472 U. S. 45 Establishment Clause of the First Amendment, and then embarked on a fresh examination of the question whether the First Amendment imposes any barrier to the establishment of an official religion by the State of Alabama. After reviewing at length what it perceived to be newly discovered historical evidence, the District Court concluded that "the establishment clause of the first amendment to the United States Constitution does not prohibit the state from establishing a religion. [ Footnote 24 ]" In a separate opinion, the District Court dismissed appellees' challenge to the three Alabama statutes because of a failure to state any claim for which relief could be granted. The court's dismissal of this challenge was also based on its conclusion that the Establishment Clause did not bar the States from establishing a religion. [ Footnote 25 ] Page 472 U. S. 46 The Court of Appeals consolidated the two cases; not surprisingly, it reversed. The Court of Appeals noted that this Court had considered and had rejected the historical arguments Page 472 U. S. 47 that the District Court found persuasive, and that the District Court had misapplied the doctrine of stare decisis. [ Footnote 26 ] The Court of Appeals then held that the teachers' religious activities violated the Establishment Clause of the First Amendment. [ Footnote 27 ] With respect to § 16-1-20.1 and § 16-1-20.2, the Court of Appeals stated that "both statutes advance and encourage religious activities." [ Footnote 28 ] The Court of Appeals then quoted with approval the District Court's finding that § 161-20.1, and § 16-1-20.2, were efforts "'to encourage a religious activity. Even though these statutes are permissive in form, it is nevertheless state involvement respecting an establishment of religion.' [ Footnote 29 ]" Thus, the Court of Appeals concluded that both statutes were "specifically the type which the Supreme Court addressed in Engel [v. Vitale, 370 U. S. 421 (1962)]." [ Footnote 30 ] Page 472 U. S. 48 A suggestion for rehearing en banc was denied over the dissent of four judges who expressed the opinion that the full court should reconsider the panel decision insofar as it held § 16-1-20.1 unconstitutional. [ Footnote 31 ] When this Court noted probable jurisdiction, it limited argument to the question that those four judges thought worthy of reconsideration. The judgment of the Court of Appeals with respect to the other issues presented by the appeals was affirmed. Wallace v. Jaffree, 466 U. S. 924 (1984). II Our unanimous affirmance of the Court of Appeals' judgment concerning § 16-1-20.2 makes it unnecessary to comment at length on the District Court's remarkable conclusion that the Federal Constitution imposes no obstacle to Alabama's establishment of a state religion. Before analyzing the precise issue that is presented to us, it is nevertheless appropriate to recall how firmly embedded in our constitutional jurisprudence is the proposition that the several States have no greater power to restrain the individual freedoms Page 472 U. S. 49 protected by the First Amendment than does the Congress of the United States. As is plain from its text, the First Amendment was adopted to curtail the power of Congress to interfere with the individual's freedom to believe, to worship, and to express himself in accordance with the dictates of his own conscience. [ Footnote 32 ] Until the Fourteenth Amendment was added to the Constitution, the First Amendment's restraints on the exercise of federal power simply did not apply to the States. [ Footnote 33 ] But when the Constitution was amended to prohibit any State from depriving any person of liberty without due process of law, that Amendment imposed the same substantive limitations on the States' power to legislate that the First Amendment had always imposed on the Congress' power. This Court has confirmed and endorsed this elementary proposition of law time and time again. [ Footnote 34 ] Page 472 U. S. 50 Writing for a unanimous Court in Cantwell v. Connecticut, 310 U. S. 296 , 303 (1940), Justice Roberts explained: ". . . We hold that the statute, as construed and applied to the appellants, deprives them of their liberty without due process of law in contravention of the Fourteenth Amendment. The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment. The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion." Cantwell, of course, is but one case in which the Court has identified the individual's freedom of conscience as the central liberty that unifies the various Clauses in the First Amendment. [ Footnote 35 ] Enlarging on this theme, THE CHIEF JUSTICE recently wrote: Page 472 U. S. 51 "We begin with the proposition that the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all. See Board of Education v. Barnette, 319 U. S. 624 , 319 U. S. 633 -634 (1943); id. at 319 U. S. 645 (Murphy, J., concurring). A system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts. The right to speak and the right to refrain from speaking are complementary components of the broader concept of 'individual freedom of mind.' Id. at 319 U. S. 637 ." " * * * *" "The Court in Barnette, supra, was faced with a state statute which required public school students to participate in daily public ceremonies by honoring the flag both with words and traditional salute gestures. In overruling its prior decision in Minersville District v. Gobitis, 310 U. S. 586 (1940), the Court held that" "a ceremony so touching matters of opinion and political attitude may [not] be imposed upon the individual by official authority under powers committed to any political organization under our Constitution." "319 U.S. at 319 U. S. 636 . Compelling the affirmative act of a flag salute involved a more serious infringement upon personal liberties than the passive act of carrying the state motto on a license plate, but the difference is essentially one of degree. Here, as in Barnette, we are faced with a state measure which forces an individual, as part of his daily life -- indeed constantly while his automobile is in public view -- to be an Page 472 U. S. 52 instrument for fostering public adherence to an ideological point of view he finds unacceptable. In doing so, the State" "invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control." " Id. at 319 U. S. 642 ." Wooley v. Maynard, 430 U. S. 705 , 430 U. S. 714 -715 (1977). Just as the right to speak and the right to refrain from speaking are complementary components of a broader concept of individual freedom of mind, so also the individual's freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed established by the majority. At one time, it was thought that this right merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism. [ Footnote 36 ] But when the underlying principle has been examined in the crucible of litigation, the Page 472 U. S. 53 Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all. [ Footnote 37 ] This conclusion derives support not only from the interest in respecting the individual's freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of free and voluntary choice by the faithful, [ Footnote 38 ] Page 472 U. S. 54 and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects -- or even intolerance among "religions" -- to encompass intolerance of the disbeliever and the uncertain. [ Footnote 39 ] Page 472 U. S. 55 As Justice Jackson eloquently stated in West Virginia Board of Education v. Barnette, 319 U. S. 624 , 319 U. S. 642 (1943): "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." The State of Alabama, no less than the Congress of the United States, must respect that basic truth. III When the Court has been called upon to construe the breadth of the Establishment Clause, it has examined the criteria developed over a period of many years. Thus, in Lemon v. Kurtzman 403 U. S. 602 , 403 U. S. 612 -613 (1971), we wrote: "Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U. S. 236 , 396 U. S. 243 (1968); finally, the statute must not foster 'an excessive Page 472 U. S. 56 government entanglement with religion.' Walz [v. Tax Comm'n, 397 U. S. 664 , 397 U. S. 674 (1970)]." It is the first of these three criteria that is most plainly implicated by this case. As the District Court correctly recognized, no consideration of the second or third criteria is necessary if a statute does not have a clearly secular purpose. [ Footnote 40 ] For even though a statute that is motivated in part by a religious purpose may satisfy the first criterion, see, e.g., Abington School District v. Schempp, 374 U. S. 203 , 374 U. S. 296 -303 (1963) (BRENNAN, J., concurring), the First Amendment requires that a statute must be invalidated if it is entirely motivated by a purpose to advance religion. [ Footnote 41 ] In applying the purpose test, it is appropriate to ask "whether government's actual purpose is to endorse or disapprove of religion." [ Footnote 42 ] In this case, the answer to that question is dispositive. For the record not only provides us with an unambiguous affirmative answer, but it also reveals that the enactment of § 16-1-20.1 was not motivated by any clearly secular purpose indeed, the statute had no secular purpose. IV The sponsor of the bill that became § 16-1-20.1, Senator Donald Holmes, inserted into the legislative record -- apparently Page 472 U. S. 57 without dissent -- a statement indicating that the legislation was an "effort to return voluntary prayer" to the public schools. [ Footnote 43 ] Later Senator Holmes confirmed this purpose before the District Court. In response to the question whether he had any purpose for the legislation other than returning voluntary prayer to public schools, he stated: "No, I did not have no other purpose in mind." [ Footnote 44 ] The State did not present evidence of any secular purpose. [ Footnote 45 ] Page 472 U. S. 58 The unrebutted evidence of legislative intent contained in the legislative record and in the testimony of the sponsor of § 16-1-20.1 is confirmed by a consideration of the relationship between this statute and the two other measures that were considered in this case. The District Court found that the 1981 statute and its 1982 sequel had a common, nonsecular purpose. The wholly religious character of the later enactment is plainly evident from its text. When the differences between § 16-1-20.1 and its 1978 predecessor, § 16-1-20, are examined, it is equally clear that the 1981 statute has the same wholly religious character. There are only three textual differences between § 161-20.1 and § 16-1-20: (1) the earlier statute applies only to grades one through six, whereas § 16-1-20.1 applies to all grades; (2) the earlier statute uses the word "shall" whereas § 16-1-20.1 uses the word "may"; (3) the earlier statute refers Page 472 U. S. 59 only to "meditation" whereas § 16-1-20.1 refers to "meditation or voluntary prayer." The first difference is of no relevance in this litigation, because the minor appellees were in kindergarten or second grade during the 1981-1982 academic year. The second difference would also have no impact on this litigation, because the mandatory language of § 16-1-20 continued to apply to grades one through six. [ Footnote 46 ] Thus, the only significant textual difference is the addition of the words "or voluntary prayer." The legislative intent to return prayer to the public schools is, of course, quite different from merely protecting every student's right to engage in voluntary prayer during an appropriate moment of silence during the schoolday. The 1978 statute already protected that right, containing nothing that prevented any student from engaging in voluntary prayer during a silent minute of meditation. [ Footnote 47 ] Appellants have not identified any secular purpose that was not fully served by § 16-1-20 before the enactment of § 16-1-20.1. Thus, only two conclusions are consistent with the text of § 16-1-20.1: (1) the statute was enacted to convey a message of state endorsement and promotion of prayer; or (2) the statute was enacted for no purpose. No one suggests that the statute was nothing but a meaningless or irrational act. [ Footnote 48 ] We must, therefore, conclude that the Alabama Legislature intended to change existing law, [ Footnote 49 ] and that it was motivated Page 472 U. S. 60 by the same purpose that the Governor's answer to the second amended complaint expressly admitted; that the statement inserted in the legislative history revealed; and that Senator Holmes' testimony frankly described. The legislature enacted § 16-1-20.1, despite the existence of § 161-20, for the sole purpose of expressing the State's endorsement of prayer activities for one minute at the beginning of each schoolday. The addition of "or voluntary prayer" indicates that the State intended to characterize prayer as a favored practice. Such an endorsement is not consistent with the established principle that the government must pursue a course of complete neutrality toward religion. [ Footnote 50 ] The importance of that principle does not permit us to treat this as an inconsequential case involving nothing more than a few words of symbolic speech on behalf of the political majority. [ Footnote 51 ] For whenever the State itself speaks on a religious Page 472 U. S. 61 subject, one of the questions that we must ask is "whether the government intends to convey a message of endorsement or disapproval of religion." [ Footnote 52 ] The well-supported concurrent findings of the District Court and the Court of Appeals -- that § 16-1-20.1 was intended to convey a message of state approval of prayer activities in the public schools -- make it unnecessary, and indeed inappropriate, to evaluate the practical significance of the addition of the words "or voluntary prayer" to the statute. Keeping in mind, as we must, "both the fundamental place held by the Establishment Clause in our constitutional scheme and the myriad, subtle ways in which Establishment Clause values can be eroded, [ Footnote 53 ]" we conclude that § 16-1-20.1 violates the First Amendment. The judgment of the Court of Appeals is affirmed. It is so ordered. Page 472 U. S. 62 * Together with No. 83-929, Smith et al. v. Jaffree et al., also on appeal from the same court. [ Footnote 1 ] Alabama Code § 16-1-20 (Supp.1984) reads as follows: "At the commencement of the first class each day in the first through the sixth grades in all public schools, the teacher in charge of the room in which each such class is held shall announce that a period of silence, not to exceed one minute in duration, shall be observed for meditation, and during any such period silence shall be maintained and no activities engaged in." Appellees have abandoned any claim that § 16-120 is unconstitutional. See Brief for Appellees 2. [ Footnote 2 ] Alabama Code § 16-120.1 (Supp.1984) provides: "At the commencement of the first class of each day in all grades in all public schools the teacher in charge of the room in which each class is held may announce that a period of silence not to exceed one minute in duration shall be observed for meditation or voluntary prayer, and during any such period no other activities shall be engaged in." [ Footnote 3 ] Alabama Code § 16-120.2 (Supp.1984) provides: "From henceforth, any teacher or professor in any public educational institution within the state of Alabama, recognizing that the Lord God is one, at the beginning of any homeroom or any class, may pray, may lead willing students in prayer, or may lead the willing students in the following prayer to God:" "Almighty God, You alone are our God. We acknowledge You as the Creator and Supreme Judge of the world. May Your justice, Your truth, and Your peace abound this day in the hearts of our countrymen, in the counsels of our government, in the sanctity of our homes and in the classrooms of our schools in the name of our Lord. Amen." [ Footnote 4 ] The court stated that it did not find any potential infirmity in § 16-1-20 because "it is a statute which prescribes nothing more than a child in school shall have the right to meditate in silence and there is nothing wrong with a little meditation and quietness." Jaffree v. James, 544 F. Supp. 727 , 732 (SD Ala. 1982). [ Footnote 5 ] Ibid. [ Footnote 6 ] Jaffree v. Board of School Comm'rs of Mobile County, 554 F. Supp. 1104 , 1128 (SD Ala. 1983). [ Footnote 7 ] 705 F.2d 1526, 1535-1536 (CA11 1983). [ Footnote 8 ] Wallace v. Jaffree, 466 U. S. 924 (1984). [ Footnote 9 ] See n 1, supra. [ Footnote 10 ] The Establishment Clause of the First Amendment, of course, has long been held applicable to the State. Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 15 -16 (1947). [ Footnote 11 ] App. 4-7. [ Footnote 12 ] Id. at 4. [ Footnote 13 ] Id. at 7. [ Footnote 14 ] Ibid. [ Footnote 15 ] Id. at 8-9. [ Footnote 16 ] Id. at 17. [ Footnote 17 ] Id. at 21. See nn. 1 2 and 3 supra. [ Footnote 18 ] App. 47-49. [ Footnote 19 ] Id. at 50. [ Footnote 20 ] Id. at 52 [ Footnote 21 ] Jaffree v. James, 544 F. Supp. 727 (SD Ala.1982). [ Footnote 22 ] See Lemon v. Kurtzman, 403 U. S. 602 , 403 U. S. 612 -613 (1971). Insofar as relevant to the issue now before us, the District Court explained: "The injury to plaintiffs from the possible establishment of a religion by the State of Alabama contrary to the proscription of the establishment clause outweighs any indirect harm which may occur to defendants as a result of an injunction. Granting an injunction will merely maintain the status quo existing prior to the enactment of the statutes." " * * * *" "The purpose of Senate Bill 8 [§ 16-1-20.2] as evidenced by its preamble, is to provide for a prayer that may be given in public schools. Senator Holmes testified that his purpose in sponsoring § 16-1-20.1 was to return voluntary prayer to the public schools. He intended to provide children the opportunity of sharing in their spiritual heritage of Alabama and of this country. See Alabama Senate Journal 921 (1981). The Fifth Circuit has explained that 'prayer is a primary religious activity in itself. . . .' Karen B. v. Treen, 653 F.2d 897, 901 (5th Cir.1981). The state may not employ a religious means in its public schools. Abington School District v. Schempp , [ 374 U.S. 203 , 374 U. S. 224 ] (1963). Since these statutes do not reflect a clearly secular purpose, no consideration of the remaining two parts of the Lemon test is necessary." "The enactment of Senate Bill 8 [§ 16-1-20.2] and § 16-1-20.1 is an effort on the part of the State of Alabama to encourage a religious activity. Even though these statutes are permissive in form, it is nevertheless state involvement respecting an establishment of religion. Engel v. Vitale , [ 370 U.S. 421 , 370 U. S. 430 ] (1962). Thus, binding precedent which this Court is under a duty to follow indicates the substantial likelihood plaintiffs will prevail on the merits." 544 F. Supp. at 730-732. [ Footnote 23 ] The District Court wrote: "Defendant Boyd, as early as September 16, 1981, led her class at E. R. Dickson in singing the following phrase:" "God is great, God is good," "Let us thank him for our food," "bow our heads we all are fed," "Give us Lord our daily bread." "Amen!" "The recitation of this phrase continued on a daily basis throughout the 1981-82 school year." " * * * *" "Defendant Pixie Alexander has led her class at Craighead in reciting the following phrase:" "God is great, God is good," "Let us thank him for our food." "Further, defendant Pixie Alexander had her class recite the following, which is known as the Lord's Prayer:" " Our Father, which are in heaven, hallowed be Thy name. Thy kingdom come. Thy will be done on earth as it is in heaven. Give us this day our daily bread and forgive us our debts as we forgive our debtors. And lead us not into temptation but deliver us from evil for thine is the kingdom and the power and the glory forever. Amen." "The recitation of these phrases continued on a daily basis throughout the 1981-82 school year." " * * * *" "Ms. Green admitted that she frequently leads her class in singing the following song:" " For health and strength and daily food, we praise Thy name, Oh Lord." "This activity continued throughout the school year, despite the fact that Ms. Green had knowledge that plaintiff did not want his child exposed to the above-mentioned song." Jaffree v. Board of School Comm'rs of Mobile County, 554 F. Supp. at 1107-1108. [ Footnote 24 ] Id. at 1128. [ Footnote 25 ] Jaffree v. James, 554 F. Supp. 1130 , 1132 (SD Ala.1983). The District Court's opinion was announced on January 14, 1983. On February 11, 1983, JUSTICE POWELL, in his capacity as Circuit Justice for the Eleventh Circuit, entered a stay which in effect prevented the District Court from dissolving the preliminary injunction that had been entered in August, 1982. JUSTICE POWELL accurately summarized the prior proceedings: "The situation, quite briefly, is as follows: beginning in the fall of 1981, teachers in the minor applicants' schools conducted prayers in their regular classes, including group recitations of the Lord's Prayer. At the time, an Alabama statute provided for a one-minute period of silence 'for meditation or voluntary prayer' at the commencement of each day's classes in the public elementary schools. Ala.Code § 16-1-20.1 (Supp.1982). In 1982, Alabama enacted a statute permitting public school teachers to lead their classes in prayer. 1982 Ala. Acts 735." "Applicants, objecting to prayer in the public schools, filed suit to enjoin the activities. They later amended their complaint to challenge the applicable state statutes. After a hearing, the District Court granted a preliminary injunction. Jaffree v. James, 544 F. Supp. 727 (1982). It recognized that it was bound by the decisions of this Court, id. at 731, and that, under those decisions, it was 'obligated to enjoin the enforcement' of the statutes, id. at 733." "In its subsequent decision on the merits, however, the District Court reached a different conclusion. Jaffree v. Board of School Commissioners of Mobile County, 554 F. Supp. 1104 (1983). It again recognized that the prayers at issue, given in public school classes and led by teachers, were violative of the Establishment Clause of the First Amendment as that Clause had been construed by this Court. The District Court nevertheless ruled 'that the United States Supreme Court has erred.' Id. at 1128. It therefore dismissed the complaint and dissolved the injunction." "There can be little doubt that the District Court was correct in finding that conducting prayers as part of a school program is unconstitutional under this Court's decisions. In Engel v. Vitale, 370 U. S. 421 (1962), the Court held that the Establishment Clause of the First Amendment, made applicable to the States by the Fourteenth Amendment, prohibits a State from authorizing prayer in the public schools. The following Term, in Murray v. Curlett, decided with Abington School District v. Schempp, 374 U. S. 203 (1963), the Court explicitly invalidated a school district's rule providing for the reading of the Lord's Prayer as part of a school's opening exercises, despite the fact that participation in those exercises was voluntary." "Unless and until this Court reconsiders the foregoing decisions, they appear to control this case. In my view, the District Court was obligated to follow them." Jaffree v. Board of School Comm'rs of Mobile County, 459 U. S. 1314 , 459 U. S. 1315 -1316 (1983). [ Footnote 26 ] The Court of Appeals wrote: "The stare decisis doctrine and its exceptions do not apply where a lower court is compelled to apply the precedent of a higher court. See 20 Am.Jur.2d Courts § 183 (1965)." "Federal district courts and circuit courts are bound to adhere to the controlling decisions of the Supreme Court. Hutto v. Davis , [ 454 U.S. 370 , 454 U. S. 375 ] (1982). . . . Justice Rehnquist emphasized the importance of precedent when he observed that," "unless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be." " Davis, [454 U.S. at 454 U. S. 375 ]. See also Thurston Motor Line, Inc. v. Jordan K. Rand, Ltd. , [ 460 U.S. 533 , 460 U. S. 535 ] (1983) (the Supreme Court, in a per curiam decision, recently stated: 'Needless to say, only this Court may overrule one of its precedents')." 705 F.2d at 1532. [ Footnote 27 ] Id. at 1533-1534. This Court has denied a petition for a writ of certiorari that presented the question whether the Establishment Clause prohibited the teachers' religious prayer activities. Board of School Comm'rs of Mobile County v. Jaffree, 466 U.S. 926 (1984). [ Footnote 28 ] 705 F.2d at 1535. [ Footnote 29 ] Ibid. [ Footnote 30 ] Ibid. After noting that the invalidity of § 16-1-20.2 was aggravated by "the existence of a government-composed prayer," and that the proponents of the legislation admitted that that section "amounts to the establishment of a state religion," the court added this comment on § 16-1-20.1: "The objective of the meditation or prayer statute (Ala.Code § 16-120.1) was also the advancement of religion. This fact was recognized by the district court at the hearing for preliminary relief where it was established that the intent of the statute was to return prayer to the public schools. James, 544 F. Supp. at 731. The existence of this fact and the inclusion of prayer obviously involves the state in religious activities. Beck v. McElrath, 548 F. Supp. 1161 (MD Tenn.1982). This demonstrates a lack of secular legislative purpose on the part of the Alabama Legislature. Additionally, the statute has the primary effect of advancing religion. We do not imply that simple meditation or silence is barred from the public schools; we hold that the state cannot participate in the advancement of religious activities through any guise, including teacher-led meditation. It is not the activity itself that concerns us; it is the purpose of the activity that we shall scrutinize. Thus, the existence of these elements require that we also hold section 16-1-20.1 in violation of the establishment clause." Id. at 1535-1536. [ Footnote 31 ] 713 F.2d 614 (CA11 1983) (per curiam). [ Footnote 32 ] The First Amendment provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." [ Footnote 33 ] See Permoli v. Municipality No. 1 of the City of New Orleans , 3 How. 589, 44 U. S. 609 (1845). [ Footnote 34 ] See, e.g., Wooley v. Maynard, 430 U. S. 705 , 430 U. S. 714 (1977) (right to refuse endorsement of an offensive state motto); Terminiello v. Chicago, 337 U. S. 1 , 337 U. S. 4 (1949) (right to free speech); West Virginia Board of Education v. Barnette, 319 U. S. 624 , 319 U. S. 637 -638 (1943) (right to refuse to participate in a ceremony that offends one's conscience); Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 303 (1940) (right to proselytize one's religious faith); Hague v. CIO, 307 U. S. 496 , 307 U. S. 519 (1939) (opinion of Stone, J.) (right to assemble peaceably); Near v. Minnesota ex rel. Olson, 283 U. S. 697 , 283 U. S. 707 (1931) (right to publish an unpopular newspaper); Whitney v. California, 274 U. S. 357 , 274 U. S. 373 (1927) (Brandeis, J., concurring) (right to advocate the cause of Communism); Gitlow v. New York, 268 U. S. 652 , 268 U. S. 672 (1925) (Holmes, J., dissenting) (right to express an unpopular opinion); cf. Abington School District v. Schempp, 374 U. S. 203 , 374 U. S. 215 , n. 7 (1963), where the Court approvingly quoted Board of Education v. Minor, 23 Ohio St. 211, 253 (1872) which stated: "The great bulk of human affairs and human interests is left by any free government to individual enterprise and individual action. Religion is eminently one of these interests, lying outside the true and legitimate province of government." [ Footnote 35 ] For example, in Prince v. Massachusetts, 321 U. S. 158 , 321 U. S. 164 (1944), the Court wrote: "If by this position appellant seeks for freedom of conscience a broader protection than for freedom of the mind, it may be doubted that any of the great liberties insured by the First Article can be given higher place than the others. All have preferred position in our basic scheme. Schneider v. State, 308 U. S. 147 ; Cantwell v. Connecticut, 310 U. S. 296 . All are interwoven there together. Differences there are, in them and in the modes appropriate for their exercise. But they have unity in the charter's prime place because they have unity in their human sources and functionings." See also Widmar v. Vincent, 454 U. S. 263 , 454 U. S. 269 (1981) (stating that religious worship and discussion "are forms of speech and association protected by the First Amendment"). [ Footnote 36 ] Thus Joseph Story wrote: "Probably at the time of the adoption of the constitution, and of the amendment to it now under consideration [First Amendment], the general, if not the universal sentiment in America was that christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation." 2 J. Story, Commentaries on the Constitution of the United States § 1874, p. 593 (1851) (footnote omitted). In the same volume, Story continued: "The real object of the amendment was not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating christianity, but to exclude all rivalry among christian sects, and to prevent any national ecclesiastical establishment, which should give to a hierarchy the exclusive patronage of the national government. It thus cut off the means of religious persecution (the vice and pest of former ages) and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age. . . ." Id. § 1877, at 594 (emphasis supplied). [ Footnote 37 ] Thus, in Everson v. Board of Education, 330 U.S. at 330 U. S. 15 , the Court stated: "The 'establishment of religion' clause of the First Amendment means at least this: neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another." Id. at 330 U. S. 18 (the First Amendment "requires the state to be a neutral in its relations with groups of religious believers and non-believers"); Abington School District v. Schempp, 374 U.S. at 347 U. S. 216 ("this Court has rejected unequivocally the contention that the Establishment Clause forbids only governmental preference of one religion over another"); id. at 347 U. S. 226 ("The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of the government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality"); Torcaso v. Watkins, 367 U. S. 488 , 367 U. S. 495 (1961) ("We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person to profess a belief or disbelief in any religion.' Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs"). [ Footnote 38 ] In his "Memorial and Remonstrance Against Religious Assessments, 1785," James Madison wrote, in part: "1. Because we hold it for a fundamental and undeniable truth" "that Religion or the duty which we owe to our Creator and the [Manner of discharging it, can be directed only by reason and] conviction, not by force or violence." "The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable because the opinions of men, depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men. It is unalienable also, because what is here a right towards men is a duty towards the Creator. It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. . . . We maintain therefore that, in matters of Religion, no man's right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance." " * * * *" "3. Because it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens, and one of [the] noblest characteristics of the late Revolution. The freemen of America did not wait till usurped power had strengthened itself by exercise and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much soon to forget it. Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?" The Complete Madison 299-301 (S. Padover ed.1953). See also Engel v. Vitale, 370 U. S. 421 , 370 U. S. 435 (1962) ("It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look for religious guidance"). [ Footnote 39 ] As the Barnette opinion explained, it is the teaching of history, rather than any appraisal of the quality of a State's motive, that supports this duty to respect basic freedoms: "Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon, but at other times and places, the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard." 319 U.S. at 319 U. S. 640 -641. See also Engel v. Vitale, 370 U.S. at 370 U. S. 431 ("a union of government and religion tends to destroy government and to degrade religion"). [ Footnote 40 ] See n 22, supra. [ Footnote 41 ] See Lynch v. Donnelly, 465 U. S. 668 , 465 U. S. 680 (1984); id. at 465 U. S. 690 (O'CONNOR, J., concurring); id. at 465 U. S. 697 (BRENNAN, J., joined by MARSHALL, BLACKMUN, and STEVENS, JJ., dissenting); Mueller v. Allen, 463 U. S. 388 , 463 U. S. 394 (1983); Widmar v. Vincent, 454 U.S. at 454 U. S. 271 ; Stone v. Graham, 449 U. S. 39 , 449 U. S. 40 -41 (1980) (per curiam); Wolman v. Walter, 433 U. S. 229 , 433 U. S. 236 (1977). [ Footnote 42 ] Lynch v. Donnelly, 465 U.S. at 465 U. S. 690 (O'CONNOR, J., concurring) ("The purpose prong of the Lemon test asks whether government's actual purpose is to endorse or disapprove of religion. The effect prong asks whether, irrespective of government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval. An affirmative answer to either question should render the challenged practice invalid"). [ Footnote 43 ] The statement indicated, in pertinent part: "Gentlemen, by passage of this bill by the Alabama Legislature, our children in this state will have the opportunity of sharing in the spiritual heritage of this state and this country. The United States as well as the State of Alabama was founded by people who believe in God. I believe this effort to return voluntary prayer to our public schools for its return to us to the original position of the writers of the Constitution, this local philosophies and beliefs hundreds of Alabamians have urged my continuous support for permitting school prayer. Since coming to the Alabama Senate, I have worked hard on this legislation to accomplish the return of voluntary prayer in our public schools and return to the basic moral fiber. " App. 50 (emphasis added). [ Footnote 44 ] Id. at 52. The District Court and the Court of Appeals agreed that the purpose of § 16-1-20.1 was "an effort on the part of the State of Alabama to encourage a religious activity." Jaffree v. James, 544 F. Supp. at 732; 705 F.2d at 1535. The evidence presented to the District Court elaborated on the express admission of the Governor of Alabama (then Fob James) that the enactment of § 16-1-20.1 was intended to "clarify [the State's] intent to have prayer as part of the daily classroom activity," compare Second Amended Complaint � 32(d) (App. 24-25) with Governor's Answer to § 32(d) (App. 40); and that the "expressed legislative purpose in enacting Section 16-1-20.1 (1981) was to return voluntary prayer to public schools,'" compare Second Amended Complaint �� 32(b) and (c) (App. 24) with Governor's Answer to �� 32(b) and (c) (App. 40). [ Footnote 45 ] Appellant Governor George C. Wallace now argues that § 16-1-20.1 "is best understood as a permissible accommodation of religion," and that, viewed even in terms of the Lemon test, the "statute conforms to acceptable constitutional criteria." Brief for Appellant Wallace 5; see also Brief for Appellants Smith et al. 39 (§ 16-1-20.1 "accommodates the free exercise of the religious beliefs and free exercise of speech and belief of those affected"); id. at 47. These arguments seem to be based on the theory that the free exercise of religion of some of the State's citizens was burdened before the statute was enacted. The United States, appearing as amicus curiae in support of the appellants, candidly acknowledges that "it is unlikely that, in most contexts, a strong Free Exercise claim could be made that time for personal prayer must be set aside during the school day." Brief for United States as Amicus Curiae 10. There is no basis for the suggestion that § 16-1-20.1 "is a means for accommodating the religious and meditative needs of students without in any way diminishing the school's own neutrality or secular atmosphere." Id. at 11. In this case, it is undisputed that, at the time of the enactment of § 16-1-20.1, there was no governmental practice impeding students from silently praying for one minute at the beginning of each schoolday; thus, there was no need to "accommodate" or to exempt individuals from any general governmental requirement because of the dictates of our cases interpreting the Free Exercise Clause. See, e.g., Thomas v. Review Board, Indiana Employment Security Div., 450 U. S. 707 (1981); Sherbert v. Verner, 374 U. S. 398 (1963); see also Abington School District v. Schempp, 374 U.S. at 374 U. S. 226 ("While the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs"). What was missing in the appellants' eyes at the time of the enactment of § 16-1-20.1 -- and therefore what is precisely the aspect that makes the statute unconstitutional -- was the State's endorsement and promotion of religion and a particular religious practice. [ Footnote 46 ] See n 1, supra. [ Footnote 47 ] Indeed, for some persons, meditation itself may be a form of prayer. B. Larson, Larson's Book of Cults 62-65 (1982); C. Whittier, Silent Prayer and Meditation in World Religions 1-7 (Congressional Research Service 1982). [ Footnote 48 ] If the conclusion that the statute had no purpose were tenable, it would remain true that no purpose is not a secular purpose. But such a conclusion is inconsistent with the common-sense presumption that statutes are usually enacted to change existing law. Appellants do not even suggest that the State had no purpose in enacting § 16-1-20.1. [ Footnote 49 ] United States v. Champlin Refining Co., 341 U. S. 290 , 341 U. S. 297 (1951) (a "statute cannot be divorced from the circumstances existing at the time it was passed"); id. at 341 U. S. 298 (refusing to attribute pointless purpose to Congress in the absence of facts to the contrary); United States v. National City Lines, Inc., 337 U. S. 78 , 337 U. S. 80 -81 (1949) (rejecting Government's argument that Congress had no desire to change law when enacting legislation). [ Footnote 50 ] See, e.g., Stone v. Graham, 449 U.S. at 449 U. S. 42 (per curiam); Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756 , 413 U. S. 792 -793 (1973) ("A proper respect for both the Free Exercise and the Establishment Clauses compels the State to pursue a course of neutrality' toward religion"); Epperson v. Arkansas, 393 U. S. 97 , 393 U. S. 109 (1968); Abington School District v. Schempp, 374 U.S. at 374 U. S. 215 -222; Engel v. Vitale, 370 U.S. at 370 U. S. 430 ("Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause"); Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203 , 333 U. S. 211 -212 (1948); Everson v. Board of Education, 330 U.S. at 330 U. S. 18 . [ Footnote 51 ] As this Court stated in Engel v. Vitale, 370 U.S. at 370 U. S. 430 : "The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion, and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not." Moreover, this Court has noted that "[w]hen the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain." Id. at 370 U. S. 431 . This comment has special force in the public school context where attendance is mandatory. Justice Frankfurter acknowledged this reality in Illinois ex rel. McCollum v. Board of Education, 333 U.S. at 333 U. S. 227 (concurring opinion): "That a child is offered an alternative may reduce the constraint; it does not eliminate the operation of influence by the school in matters sacred to conscience and outside the school's domain. The law of imitation operates, and nonconformity is not an outstanding characteristic of children." See also Abington School District v. Schempp, 374 U.S. at 374 U. S. 290 (BRENNAN, J., concurring); cf. Marsh v. Chambers, 463 U. S. 783 , 463 U. S. 792 (1983) (distinguishing between adults not susceptible to "religious indoctrination" and children subject to "peer pressure"). Further, this Court has observed: "That [Boards of Education] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes." West Virginia Board of Education v. Barnette, 319 U.S. at 319 U. S. 637 . [ Footnote 52 ] Lynch v. Donnelly, 465 U.S. at 465 U. S. 690 -691 (O'CONNOR, J., concurring) ("The purpose prong of the Lemon test requires that a government activity have a secular purpose. . . . The proper inquiry under the purpose prong of Lemon . . . is whether the government intends to convey a message of endorsement or disapproval of religion"). [ Footnote 53 ] Id. at 465 U. S. 694 . JUSTICE POWELL, concurring. I concur in the Court's opinion and judgment that Ala.Code § 16-1-20.1 (Supp.1984) violates the Establishment Clause of the First Amendment. My concurrence is prompted by Alabama's persistence in attempting to institute state-sponsored prayer in the public schools by enacting three successive statutes. [ Footnote 2/1 ] I agree fully with JUSTICE O'CONNOR's assertion that some moment-of-silence statutes may be constitutional, [ Footnote 2/2 ] a suggestion set forth in the Court's opinion as well. Ante at 472 U. S. 59 . Page 472 U. S. 63 I write separately to express additional views and to respond to criticism of the three-pronged Lemon test. [ Footnote 2/3 ] Lemon v. Kurtzman, 403 U. S. 602 (1971), identifies standards that have proved useful in analyzing case after case both in our decisions and in those of other courts. It is the only coherent test a majority of the Court has ever adopted. Only once since our decision in Lemon, supra, have we addressed an Establishment Clause issue without resort to its three-pronged test. See Marsh v. Chambers, 463 U. S. 783 (1983). [ Footnote 2/4 ] Lemon, supra, has not been overruled or its test modified. Yet continued criticism of it could encourage other courts to feel free to decide Establishment Clause cases on an ad hoc basis. [ Footnote 2/5 ] Page 472 U. S. 64 The first inquiry under Lemon is whether the challenged statute has a "secular legislative purpose." Lemon v. Kurtzman, supra, at 403 U. S. 612 . AS JUSTICE O'CONNOR recognizes, this secular purpose must be "sincere"; a law will not pass constitutional muster if the secular purpose articulated by the legislature is merely a "sham." Post at 472 U. S. 75 (concurring in judgment). In Stone v. Graham, 449 U. S. 39 (1980) (per curiam), for example, we held that a statute requiring the posting of the Ten Commandments in public schools violated the Establishment Clause, even though the Kentucky Legislature asserted that its goal was educational. We have not interpreted the first prong of Lemon, supra, however, as requiring that a statute have "exclusively secular" objectives. [ Footnote 2/6 ] Lynch v. Donnelly, 465 U. S. 668 , 465 U. S. 681 , n. 6 (1984). If such a requirement existed, much conduct and legislation approved by this Court in the past would have been invalidated. See, e.g., Walz v. Tax Comm'n, 397 U. S. 664 (1970) (New York's property tax exemption for religious organizations upheld); Everson v. Board of Education, 330 U. S. 1 (1947) (holding that a township may reimburse parents for the cost of transporting their children to parochial schools). Page 472 U. S. 65 The record before us, however, makes clear that Alabama's purpose was solely religious in character. Senator Donald Holmes, the sponsor of the bill that became Alabama Code § 16-1-20.1 (Supp.1984), freely acknowledged that the purpose of this statute was "to return voluntary prayer" to the public schools. See ante at 472 U. S. 57 , n. 43. I agree with JUSTICE O'CONNOR that a single legislator's statement, particularly if made following enactment, is not necessarily sufficient to establish purpose. See post at 472 U. S. 77 (concurring in judgment). But, as noted in the Court's opinion, the religious purpose of § 16-1-20.1 is manifested in other evidence, including the sequence and history of the three Alabama statutes. See ante at 472 U. S. 58 -60. I also consider it of critical importance that neither the District Court nor the Court of Appeals found a secular purpose, while both agreed that the purpose was to advance religion. In its first opinion (enjoining the enforcement of § 16-1-20.1 pending a hearing on the merits), the District Court said that the statute did "not reflect a clearly secular purpose." Jaffree v. James, 544 F. Supp. 727 , 732 (SD Ala.1982). Instead, the District Court found that the enactment of the statute was an "effort on the part of the State of Alabama to encourage a religious activity." [ Footnote 2/7 ] Ibid. The Court of Appeals likewise applied the Lemon test and found "a lack of secular purpose on the part of the Alabama Legislature." Page 472 U. S. 66 705 F.2d 1526, 1535 (CA11 1983). It held that the objective of § 16-1-20.1 was the "advancement of religion." Ibid. When both courts below are unable to discern an arguably valid secular purpose, this Court normally should hesitate to find one. I would vote to uphold the Alabama statute if it also had a clear secular purpose. See Mueller v. Allen, 463 U. S. 388 , 463 U. S. 394 -395 (1983) (the Court is "reluctan[t] to attribute unconstitutional motives to the States, particularly when a plausible secular purpose for the State's program may be discerned from the face of the statute"). Nothing in the record before us, however, identifies a clear secular purpose, and the State also has failed to identify any nonreligious reason for the statute's enactment. [ Footnote 2/8 ] Under these circumstances, the Court is required by our precedents to hold that the statute fails the first prong of the Lemon test, and therefore violates the Establishment Clause. Although we do not reach the other two prongs of the Lemon test, I note that the "effect" of a straightforward moment-of-silence statute is unlikely to "advanc[e] or inhibi[t] religion." [ Footnote 2/9 ] See Board of Education v. Allen, 392 U. S. 236 , 392 U. S. 243 (1968). Nor would such a statute "foster an excessive government entanglement with religion.'" Lemon Page 472 U. S. 67 v. Kurtzman, 403 U.S. at 403 U. S. 612 -613, quoting Walz v. Tax Comm'n, 397 U.S. at 397 U. S. 674 . I join the opinion and judgment of the Court. [ Footnote 2/1 ] The three statutes are Ala.Code § 16-1-20 (Supp.1984) (moment of silent meditation); Ala.Code § 16-1-20.1 (Supp.1984) (moment of silence for meditation or prayer); and Ala.Code § 16-1-20.2 (Supp.1984) (teachers authorized to lead students in vocal prayer). These statutes were enacted over a span of four years. There is some question whether § 16-1-20 was repealed by implication. The Court already has summarily affirmed the Court of Appeals' holding that § 16-1-20.2 is invalid. Wallace v. Jaffree, 466 U. S. 924 (1984). Thus, our opinions today address only the validity of § 16-1-20.1. See ante at 472 U. S. 41 -42. [ Footnote 2/2 ] JUSTICE O'CONNOR is correct in stating that moment-of-silence statutes cannot be treated in the same manner as those providing for vocal prayer: "A state-sponsored moment of silence in the public schools is different from state-sponsored vocal prayer or Bible reading. First, a moment of silence is not inherently religious. Silence, unlike prayer or Bible reading, need not be associated with a religious exercise. Second, a pupil who participates in a moment of silence need not compromise his or her beliefs. During a moment of silence, a student who objects to prayer is left to his or her own thoughts, and is not compelled to listen to the prayers or thoughts of others. For these simple reasons, a moment of silence statute does not stand or fall under the Establishment Clause according to how the Court regards vocal prayer or Bible reading. Scholars and at least one Member of this Court have recognized the distinction and suggested that a moment of silence in public schools would be constitutional. See Abington, [374 U.S.] at 374 U. S. 281 (BRENNAN, J., concurring) ( [T]he observance of a moment of reverent silence at the opening of class' may serve `the solely secular purposes of the devotional activities without jeopardizing either the religious liberties of any members of the community or the proper degree of separation between the spheres of religion and government'); L. Tribe, American Constitutional Law § 14-6, P. 829 (1978); P. Freund, The Legal Issue, in Religion and the Public Schools 23 (1965); Choper, 47 Minn.L.Rev. at 371; Kauper, Prayer, Public Schools, and the Supreme Court, 61 Mich.L.Rev. 1031, 1041 (1963). As a general matter, I agree. It is difficult to discern a serious threat to religious liberty from a room of silent, thoughtful schoolchildren." Post at 472 U. S. 72 -73 (concurring in judgment). [ Footnote 2/3 ] JUSTICE O'CONNOR asserts that the "standards announced in Lemon should be reexamined and refined in order to make them more useful in achieving the underlying purpose of the First Amendment." Post at 472 U. S. 68 (concurring in judgment). JUSTICE REHNQUIST would discard the Lemon test entirely. Post at 472 U. S. 112 (dissenting). As I state in the text, the Lemon test has been applied consistently in Establishment Clause cases since it was adopted in 1971. In a word, it has been the law. Respect for stare decisis should require us to follow Lemon. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 , 469 U. S. 559 (1985) (POWELL, J., dissenting) ("The stability of judicial decision, and with it respect for the authority of this Court, are not served by the precipitous overruling of multiple precedents . . ."). [ Footnote 2/4 ] In Marsh v. Chambers, we held that the Nebraska Legislature's practice of opening each day's session with a prayer by a chaplain paid by the State did not violate the Establishment Clause of the First Amendment. Our holding was based upon the historical acceptance of the practice that had become "part of the fabric of our society." 463 U.S. at 463 U. S. 792 . [ Footnote 2/5 ] Lemon v. Kurtzman, 403 U. S. 602 (1971), was a carefully considered opinion of THE CHIEF JUSTICE, in which he was joined by six other Justices. Lemon's three-pronged test has been repeatedly followed. In Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756 (1973), for example, the Court applied the "now well-defined three-part test" of Lemon. 413 U.S. at 413 U. S. 772 . In Lynch v. Donnelly, 465 U. S. 668 (1984), we said that the Court is not "confined to any single test or criterion in this sensitive area." Id. at 465 U. S. 679 . The decision in Lynch, like that in Marsh v. Chambers, was based primarily on the long historical practice of including religious symbols in the celebration of Christmas. Nevertheless, the Court, without any criticism of Lemon, applied its three-pronged test to the facts of that case. It focused on the "question . . . whether there is a secular purpose for [the] display of the creche." 465 U.S. at 465 U. S. 681 . [ Footnote 2/6 ] The Court's opinion recognizes that "a statute that is motivated in part by a religious purpose may satisfy the first criterion." Ante at 472 U. S. 56 . The Court simply holds that "a statute must be invalidated if it is entirely motivated by a purpose to advance religion." Ibid. (emphasis added). [ Footnote 2/7 ] In its subsequent decision on the merits, the District Court held that prayer in the public schools -- even if led by the teacher -- did not violate the Establishment Clause of the First Amendment. The District Court recognized that its decision was inconsistent with Engel v. Vitale, 370 U. S. 421 (1962), and other decisions of this Court. The District Court nevertheless ruled that its decision was justified because "the United States Supreme Court has erred. . . ." Jaffree v. Board of School Comm'rs of Mobile County, 554 F. Supp. 1104 , 1128 (SD Ala.1983). In my capacity as Circuit Justice, I stayed the judgment of the District Court pending appeal to the Court of Appeals for the Eleventh Circuit. Jaffree v. Board of School Comm'rs of Mobile County, 459 U. S. 1314 (1983) (in chambers). [ Footnote 2/8 ] Instead, the State criticizes the Lemon test and asserts that "the principal problems [with the test] stem from the purpose prong." See Brief for Appellant Wallace 9 et seq. [ Footnote 2/9 ] If it were necessary to reach the "effects" prong of Lemon, we would be concerned primarily with the effect on the minds and feelings of immature pupils. As JUSTICE O'CONNOR notes, during "a moment of silence, a student who objects to prayer [even where prayer may be the purpose] is left to his or her own thoughts, and is not compelled to listen to the prayers or thoughts of others." Post at 472 U. S. 72 (concurring in judgment). Given the types of subjects youthful minds are primarily concerned with, it is unlikely that many children would use a simple "moment of silence" as a time for religious prayer. There are too many other subjects on the mind of the typical child. Yet there also is the likelihood that some children, raised in strongly religious families, properly would use the moment to reflect on the religion of his or her choice. JUSTICE O'CONNOR, concurring in the judgment. Nothing in the United States Constitution as interpreted by this Court or in the laws of the State of Alabama prohibits public school students from voluntarily praying at any time before, during, or after the schoolday. Alabama has facilitated voluntary silent prayers of students who are so inclined by enacting Ala.Code § 16-1-20 (Supp.1984), which provides a moment of silence in appellees' schools each day. The parties to these proceedings concede the validity of this enactment. At issue in these appeals is the constitutional validity of an additional and subsequent Alabama statute, Ala.Code § 16-1-20.1 (Supp.1984), which both the District Court and the Court of Appeals concluded was enacted solely to officially encourage prayer during the moment of silence. I agree with the judgment of the Court that, in light of the findings of the courts below and the history of its enactment, § 16-1-20.1 of the Alabama Code violates the Establishment Clause of the First Amendment. In my view, there can be little doubt that the purpose and likely effect of this subsequent enactment is to endorse and sponsor voluntary prayer in the public schools. I write separately to identify the peculiar features of the Alabama law that render it invalid, and to explain why moment of silence laws in other States do not necessarily manifest the same infirmity. I also write to explain why neither history nor the Free Exercise Clause of the First Amendment validates the Alabama law struck down by the Court today. I The Religion Clauses of the First Amendment, coupled with the Fourteenth Amendment's guarantee of ordered liberty, preclude both the Nation and the States from making any law respecting an establishment of religion or prohibiting Page 472 U. S. 68 the free exercise thereof. Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 303 (1940). Although a distinct jurisprudence has enveloped each of these Clauses, their common purpose is to secure religious liberty. See Engel v. Vitale, 370 U. S. 421 , 370 U. S. 430 (1962). On these principles, the Court has been and remains unanimous. As these cases once again demonstrate, however, "it is far easier to agree on the purpose that underlies the First Amendment's Establishment and Free Exercise Clauses than to obtain agreement on the standards that should govern their application." Walz v. Tax Comm'n, 397 U. S. 664 , 397 U. S. 694 (1970) (opinion of Harlan, J.). It once appeared that the Court had developed a workable standard by which to identify impermissible government establishments of religion. See Lemon v. Kurtzman, 403 U. S. 602 (1971). Under the now familiar Lemon test, statutes must have both a secular legislative purpose and a principal or primary effect that neither advances nor inhibits religion, and in addition they must not foster excessive government entanglement with religion. Id. at 403 U. S. 612 -613. Despite its initial promise, the Lemon test has proved problematic. The required inquiry into "entanglement" has been modified and questioned, see Mueller v. Allen, 463 U. S. 388 , 463 U. S. 403 , n. 11 (1983), and in one case we have upheld state action against an Establishment Clause challenge without applying the Lemon test at all. Marsh v. Chambers, 463 U. S. 783 (1983). The author of Lemon himself apparently questions the test's general applicability. See Lynch v. Donnelly, 465 U. S. 668 , 465 U. S. 679 (1984). JUSTICE REHNQUIST today suggests that we abandon Lemon entirely, and in the process limit the reach of the Establishment Clause to state discrimination between sects and government designation of a particular church as a "state" or "national" one. Post at 472 U. S. 108 -113. Perhaps because I am new to the struggle, I am not ready to abandon all aspects of the Lemon test. I do believe, however, that the standards announced in Lemon should be Page 472 U. S. 69 reexamined and refined in order to make them more useful in achieving the underlying purpose of the First Amendment. We must strive to do more than erect a constitutional "signpost," Hunt v. McNair, 413 U. S. 734 , 413 U. S. 741 (1973), to be followed or ignored in a particular case as our predilections may dictate. Instead, our goal should be "to frame a principle for constitutional adjudication that is not only grounded in the history and language of the first amendment, but one that is also capable of consistent application to the relevant problems." Choper, Religion in the Public Schools: A Proposed Constitutional Standard, 47 Minn.L.Rev. 329, 332-333 (1963) (footnotes omitted). Last Term, I proposed a refinement of the Lemon test with this goal in mind. Lynch v. Donnelly, 465 U.S. at 465 U. S. 687 -689 (concurring opinion). The Lynch concurrence suggested that the religious liberty protected by the Establishment Clause is infringed when the government makes adherence to religion relevant to a person's standing in the political community. Direct government action endorsing religion or a particular religious practice is invalid under this approach because it "sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." Id. at 465 U. S. 688 . Under this view, Lemon's inquiry as to the purpose and effect of a statute requires courts to examine whether government's purpose is to endorse religion and whether the statute actually conveys a message of endorsement. The endorsement test is useful because of the analytic content it gives to the Lemon -mandated inquiry into legislative purpose and effect. In this country, church and state must necessarily operate within the same community. Because of this coexistence, it is inevitable that the secular interests of government and the religious interests of various sects and their adherents will frequently intersect, conflict, and combine. A statute that ostensibly promotes a secular interest Page 472 U. S. 70 often has an incidental or even a primary effect of helping or hindering a sectarian belief. Chaos would ensue if every such statute were invalid under the Establishment Clause. For example, the State could not criminalize murder for fear that it would thereby promote the Biblical command against killing. The task for the Court is to sort out those statutes and government practices whose purpose and effect go against the grain of religious liberty protected by the First Amendment. The endorsement test does not preclude government from acknowledging religion or from taking religion into account in making law and policy. It does preclude government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred. Such an endorsement infringes the religious liberty of the nonadherent, for "[w]hen the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain." Engel v. Vitale, supra, at 370 U. S. 431 . At issue today is whether state moment of silence statutes in general, and Alabama's moment of silence statute in particular, embody an impermissible endorsement of prayer in public schools. A Twenty-five states permit or require public school teachers to have students observe a moment of silence in their classrooms. [ Footnote 3/1 ] A few statutes provide that the moment of silence Page 472 U. S. 71 is for the purpose of meditation alone. See Ariz.Rev.Stat.Ann. § 15-22 (1984); Conn.Gen.Stat. § 10-16a (1983); R.I.Gen.Laws § 16-12-3.1 (1981). The typical statute, however, calls for a moment of silence at the beginning of the schoolday during which students may meditate, pray, or reflect on the activities of the day. See, e.g., Ark.Stat.Ann. § 80-1607.1 (1980); Ga.Code Ann. § 20-2-1050 (1982); Ill.Rev.Stat., ch. 122, � 771 (1983); Ind.Code § 20-10.1-7-11 (1982); Kan.Stat.Ann. § 72-5308a (1980); Pa. Stat.Ann., Tit. 24, § 15-1516.1 (Purdon Supp.1984-1985). Federal trial courts have divided on the constitutionality of these moment of silence laws. Compare Gaines v. Anderson, 421 F. Supp. 337 (Mass.1976) (upholding statute), with May v. Cooperman, 572 F. Supp. 1561 (NJ 1983) (striking down statute); Duffy v. Las Cruces Public Schools, 557 F. Supp. 1013 (NM 1983) (same); and Beck v. McElrath, 548 F. Supp. 1161 (MD Tenn.1982) (same). See also Walter v. West Virginia Board of Education, Civ. Action No. 84-5366 (SD W.Va. Mar. 14, 1985) (striking down state constitutional amendment). Relying on this Court's decisions disapproving vocal prayer and Bible reading in the public schools, see Abington School District v. Schempp, 374 U. S. 203 (1963); Engel v. Vitale, 370 U. S. 421 (1962), the courts that have struck down the moment of silence statutes generally conclude that their purpose and effect are to encourage prayer in public schools. The Engel and Abington decisions are not dispositive on the constitutionality of moment of silence laws. In those Page 472 U. S. 72 cases, public school teachers and students led their classes in devotional exercises. In Engel, a New York statute required teachers to lead their classes in a vocal prayer. The Court concluded that "it is no part of the business of government to compose official prayers for any group of the American people to recite as part of a religious program carried on by the government." 370 U.S. at 370 U. S. 425 . In Abington, the Court addressed Pennsylvania and Maryland statutes that authorized morning Bible readings in public schools. The Court reviewed the purpose and effect of the statutes, concluded that they required religious exercises, and therefore found them to violate the Establishment Clause. 374 U.S. at 374 U. S. 223 -224. Under all of these statutes, a student who did not share the religious beliefs expressed in the course of the exercise was left with the choice of participating, thereby compromising the nonadherent's beliefs, or withdrawing, thereby calling attention to his or her nonconformity. The decisions acknowledged the coercion implicit under the statutory schemes, see Engel, supra, at 370 U. S. 431 , but they expressly turned only on the fact that the government was sponsoring a manifestly religious exercise. A state-sponsored moment of silence in the public schools is different from state-sponsored vocal prayer or Bible reading. First, a moment of silence is not inherently religious. Silence, unlike prayer or Bible reading, need not be associated with a religious exercise. Second, a pupil who participates in a moment of silence need not compromise his or her beliefs. During a moment of silence, a student who objects to prayer is left to his or her own thoughts, and is not compelled to listen to the prayers or thoughts of others. For these simple reasons, a moment of silence statute does not stand or fall under the Establishment Clause according to how the Court regards vocal prayer or Bible reading. Scholars and at least one Member of this Court have recognized the distinction and suggested that a moment of silence in public schools would be constitutional. See Abington, supra, at 374 U. S. 281 (BRENNAN, J., concurring) ("[T]he observance of a moment Page 472 U. S. 73 of reverent silence at the opening of class" may serve "the solely secular purposes of the devotional activities without jeopardizing either the religious liberties of any members of the community or the proper degree of separation between the spheres of religion and government"); L. Tribe, American Constitutional Law § 14-6, p. 829 (1978); P. Freund, The Legal Issue, in Religion and the Public Schools 23 (1965); Choper, 47 Minn.L.Rev. at 371; Kauper, Prayer, Public Schools, and the Supreme Court, 61 Mich.L.Rev. 1031, 1041 (1963). As a general matter, I agree. It is difficult to discern a serious threat to religious liberty from a room of silent, thoughtful schoolchildren. By mandating a moment of silence, a State does not necessarily endorse any activity that might occur during the period. Cf. Widmar v. Vincent, 454 U. S. 263 , 454 U. S. 272 , n. 11 (1981) ("[B]y creating a forum, the [State] does not thereby endorse or promote any of the particular ideas aired there"). Even if a statute specifies that a student may choose to pray silently during a quiet moment, the State has not thereby encouraged prayer over other specified alternatives. Nonetheless, it is also possible that a moment of silence statute, either as drafted or as actually implemented, could effectively favor the child who prays over the child who does not. For example, the message of endorsement would seem inescapable if the teacher exhorts children to use the designated time to pray. Similarly, the face of the statute or its legislative history may clearly establish that it seeks to encourage or promote voluntary prayer over other alternatives, rather than merely provide a quiet moment that may be dedicated to prayer by those so inclined. The crucial question is whether the State has conveyed or attempted to convey the message that children should use the moment of silence for prayer. [ Footnote 3/2 ] Page 472 U. S. 74 This question cannot be answered in the abstract, but instead requires courts to examine the history, language, and administration of a particular statute to determine whether it operates as an endorsement of religion. Lynch, 465 U.S. at 465 U. S. 694 (concurring opinion) ("Every government practice must be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion"). Before reviewing Alabama's moment of silence law to determine whether it endorses prayer, some general observations on the proper scope of the inquiry are in order. First, the inquiry into the purpose of the legislature in enacting a moment of silence law should be deferential and limited. See Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 6 (1947) (courts must exercise "the most extreme caution" in assessing whether a state statute has a proper public purpose). In determining whether the government intends a moment of silence statute to convey a message of endorsement or disapproval of religion, a court has no license to psychoanalyze the legislators. See McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 466 (1961) (opinion of Frankfurter, J.). If a legislature expresses a plausible secular purpose for a moment of silence statute in either the text or the legislative history, [ Footnote 3/3 ] or if the statute disclaims an intent to encourage prayer over alternatives during a moment of silence, [ Footnote 3/4 ] then courts should generally Page 472 U. S. 75 defer to that stated intent. See Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756 , 413 U. S. 773 (1973); Tilton v. Richardson, 403 U. S. 672 , 403 U. S. 678 -679 (1971). It is particularly troublesome to denigrate an expressed secular purpose due to postenactment testimony by particular legislators or by interested persons who witnessed the drafting of the statute. Even if the text and official history of a statute express no secular purpose, the statute should be held to have an improper purpose only if it is beyond purview that endorsement of religion or a religious belief "was and is the law's reason for existence." Epperson v. Arkansas, 393 U. S. 97 , 393 U. S. 108 (1968). Since there is arguably a secular pedagogical value to a moment of silence in public schools, courts should find an improper purpose behind such a statute only if the statute on its face, in its official legislative history, or in its interpretation by a responsible administrative agency suggests it has the primary purpose of endorsing prayer. JUSTICE REHNQUIST suggests that this sort of deferential inquiry into legislative purpose "means little," because "it only requires the legislature to express any secular purpose and omit all sectarian references." Post at 472 U. S. 108 . It is not a trivial matter, however, to require that the legislature manifest a secular purpose and omit all sectarian endorsements from its laws. That requirement is precisely tailored to the Establishment Clause's purpose of assuring that government not intentionally endorse religion or a religious practice. It is of course possible that a legislature will enunciate a sham secular purpose for a statute. I have little doubt that our courts are capable of distinguishing a sham secular purpose from a sincere one, or that the Lemon inquiry into the effect of an enactment would help decide those close cases where the validity of an expressed secular purpose is in doubt. While the secular purpose requirement alone may rarely be determinative in striking down a statute, it nevertheless serves an important function. It reminds government that, Page 472 U. S. 76 when it acts, it should do so without endorsing a particular religious belief or practice that all citizens do not share. In this sense, the secular purpose requirement is squarely based in the text of the Establishment Clause it helps to enforce. Second, the Lynch concurrence suggested that the effect of a moment of silence law is not entirely a question of fact: "[W]hether a government activity communicates endorsement of religion is not a question of simple historical fact. Although evidentiary submissions may help answer it, the question is, like the question whether racial or sex-based classifications communicate an invidious message, in large part a legal question to be answered on the basis of judicial interpretation of social facts." 465 U.S. at 465 U. S. 693 -694. The relevant issue is whether an objective observer, acquainted with the text, legislative history, and implementation of the statute, would perceive it as a state endorsement of prayer in public schools. Cf. Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485 , 466 U. S. 517 -518, n. 1 (1984) (REHNQUIST, J., dissenting) (noting that questions whether fighting words are "likely to provoke the average person to retaliation," Street v. New York, 394 U. S. 576 , 394 U. S. 592 (1969), and whether allegedly obscene material appeals to "prurient interests," Miller v. California, 413 U. S. 15 , 413 U. S. 24 (1973), are mixed questions of law and fact that are properly subject to de novo appellate review). A moment of silence law that is clearly drafted and implemented so as to permit prayer, meditation, and reflection within the prescribed period, without endorsing one alternative over the others, should pass this test. B The analysis above suggests that moment of silence laws in many States should pass Establishment Clause scrutiny, because they do not favor the child who chooses to pray during a moment of silence over the child who chooses to meditate Page 472 U. S. 77 or reflect. Alabama Code § 16-1-20.1 (Supp.1984) does not stand on the same footing. However deferentially one examines its text and legislative history, however objectively one views the message attempted to be conveyed to the public, the conclusion is unavoidable that the purpose of the statute is to endorse prayer in public schools. I accordingly agree with the Court of Appeals, 705 F.2d 1526, 1535 (1983), that the Alabama statute has a purpose which is in violation of the Establishment Clause, and cannot be upheld. In finding that the purpose of § 16-1-20.1 is to endorse voluntary prayer during a moment of silence, the Court relies on testimony elicited from State Senator Donald G. Holmes during a preliminary injunction hearing. Ante at 472 U. S. 56 -57. Senator Holmes testified that the sole purpose of the statute was to return voluntary prayer to the public schools. For the reasons expressed above, I would give little, if any, weight to this sort of evidence of legislative intent. Nevertheless, the text of the statute in light of its official legislative history leaves little doubt that the purpose of this statute corresponds to the purpose expressed by Senator Holmes at the preliminary injunction hearing. First, it is notable that Alabama already had a moment of silence statute before it enacted § 16-1-20.1. See Ala.Code § 16-1-20 (Supp.1984), quoted ante at 472 U. S. 40 , n. 1. Appellees do not challenge this statute indeed, they concede its validity. See Brief for Appellees 2. The only significant addition made by § 16-1-20.1 is to specify expressly that voluntary prayer is one of the authorized activities during a moment of silence. Any doubt as to the legislative purpose of that addition is removed by the official legislative history. The sole purpose reflected in the official history is "to return voluntary prayer to our public schools." App. 50. Nor does anything in the legislative history contradict an intent to encourage children to choose prayer over other alternatives during the moment of silence. Given this legislative history, it is not surprising that the State of Alabama conceded in the Page 472 U. S. 78 courts below that the purpose of the statute was to make prayer part of daily classroom activity, and that both the District Court and the Court of Appeals concluded that the law's purpose was to encourage religious activity. See ante at 472 U. S. 57 , n. 44. In light of the legislative history and the findings of the courts below, I agree with the Court that the State intended § 16-1-20.1 to convey a message that prayer was the endorsed activity during the state-prescribed moment of silence. [ Footnote 3/5 ] While it is therefore unnecessary also to determine the effect of the statute, Lynch, 465 U.S. at 465 U. S. 690 (concurring opinion), it also seems likely that the message actually conveyed to objective observers by § 16-1-20.1 is approval of the child who selects prayer over other alternatives during a moment of silence. Given this evidence in the record, candor requires us to admit that this Alabama statute was intended to convey a message of state encouragement and endorsement of religion. In Walz v. Tax Comm'n, 397 U.S. at 397 U. S. 669 , the Court stated that the Religion Clauses of the First Amendment are flexible enough to "permit religious exercise to exist without sponsorship and without interference." Alabama Code § 16-1-20.1 (Supp.1984) does more than permit prayer to occur during a moment of silence "without interference." It Page 472 U. S. 79 endorses the decision to pray during a moment of silence, and accordingly sponsors a religious exercise. For that reason, I concur in the judgment of the Court. II In his dissenting opinion, post at 472 U. S. 91 -106, JUSTICE REHNQUIST reviews the text and history of the First Amendment Religion Clauses. His opinion suggests that a long line of this Court's decisions are inconsistent with the intent of the drafters of the Bill of Rights. He urges the Court to correct the historical inaccuracies in its past decisions by embracing a far more restricted interpretation of the Establishment Clause, an interpretation that presumably would permit vocal group prayer in public schools. See generally R. Cord, Separation of Church and State (1982). The United States, in an amicus brief, suggests a less sweeping modification of Establishment Clause principles. In the Federal Government's view, a state-sponsored moment of silence is merely an "accommodation" of the desire of some public school children to practice their religion by praying silently. Such an accommodation is contemplated by the First Amendment's guarantee that the Government will not prohibit the free exercise of religion. Because the moment of silence implicates free exercise values, the United States suggests that the Lemon -mandated inquiry into purpose and effect should be modified. Brief for United States as Amicus Curiae 22. There is an element of truth and much helpful analysis in each of these suggestions. Particularly when we are interpreting the Constitution, "a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U. S. 345 , 256 U. S. 349 (1921). Whatever the provision of the Constitution that is at issue, I continue to believe that "fidelity to the notion of constitutional -- as opposed to purely judicial -- limits on governmental action requires us to impose a heavy burden on those who claim that practices accepted when [the provision] was Page 472 U. S. 80 adopted are now constitutionally impermissible." Tennessee v. Garner, 471 U. S. 1 , 471 U. S. 26 (1985) (dissenting opinion). The Court properly looked to history in upholding legislative prayer, Marsh v. Chambers, 463 U. S. 783 (1983), property tax exemptions for houses of worship, Walz v. Tax Comm'n, supra, and Sunday closing laws, McGowan v. Maryland, 366 U. S. 420 (1961). As Justice Holmes once observed, "[i]f a thing has been practised for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it." Jackman v. Rosenbaum Co., 260 U. S. 22 , 260 U. S. 31 (1922). JUSTICE REHNQUIST does not assert, however, that the drafters of the First Amendment expressed a preference for prayer in public schools, or that the practice of prayer in public schools enjoyed uninterrupted government endorsement from the time of enactment of the Bill of Rights to the present era. The simple truth is that free public education was virtually nonexistent in the late 18th century. See Abington, 374 U.S. at 374 U. S. 238 , and n. 7 (BRENNAN, J., concurring). Since there then existed few government-run schools, it is unlikely that the persons who drafted the First Amendment, or the state legislators who ratified it, anticipated the problems of interaction of church and state in the public schools. Sky, The Establishment Clause, the Congress, and the Schools: An Historical Perspective, 52 Va.L.Rev. 1395, 1403-1404 (1966). Even at the time of adoption of the Fourteenth Amendment, education in Southern States was still primarily in private hands, and the movement toward free public schools supported by general taxation had not taken hold. Brown v. Board of Education, 347 U. S. 483 , 489-490 (1954) This uncertainty as to the intent of the Framers of the Bill of Rights does not mean we should ignore history for guidance on the role of religion in public education. The Court has not done so. See, e.g., Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203 , 333 U. S. 212 (1948) (Frankfurter, Page 472 U. S. 81 J., concurring). When the intent of the Framers is unclear, I believe we must employ both history and reason in our analysis. The primary issue raised by JUSTICE REHNQUIST's dissent is whether the historical fact that our Presidents have long called for public prayers of Thanks should be dispositive on the constitutionality of prayer in public schools. [ Footnote 3/6 ] I think not. At the very least, Presidential Proclamations are distinguishable from school prayer in that they are received in a noncoercive setting and are primarily directed at adults, who presumably are not readily susceptible to unwilling religious indoctrination. This Court's decisions have recognized a distinction when government-sponsored religious exercises are directed at impressionable children who are required to attend school, for then government endorsement is much more likely to result in coerced religious beliefs. See, e.g., Marsh v. Chambers, supra, at 463 U. S. 792 ; Tilton v. Richardson, 403 U.S. at 403 U. S. 686 . Although history provides a touchstone for constitutional problems, the Establishment Clause concern for religious liberty is dispositive here. The element of truth in the United States' arguments, I believe, lies in the suggestion that Establishment Clause analysis must comport with the mandate of the Free Exercise Clause that government make no law prohibiting the free exercise of religion. Our cases have interpreted the Free Exercise Clause to compel the government to exempt persons from some generally applicable government requirements so as to permit those persons to freely exercise their religion. See, e.g., Thomas v. Review Board of the Indiana Employment Security Division, 450 U. S. 707 (1981); Wisconsin v. Yoder, 406 U. S. 205 (1972); Sherbert v. Verner , 374 U. S. 398 Page 472 U. S. 82 (1963). Even where the Free Exercise Clause does not compel the government to grant an exemption, the Court has suggested that the government in some circumstances may voluntarily choose to exempt religious observers without violating the Establishment Clause. See, e.g., Gillette v. United States, 401 U. S. 437 , 401 U. S. 453 (1971); Braunfeld v. Brown, 366 U. S. 599 (1961). The challenge posed by the United States' argument is how to define the proper Establishment Clause limits on voluntary government efforts to facilitate the free exercise of religion. On the one hand, a rigid application of the Lemon test would invalidate legislation exempting religious observers from generally applicable government obligations. By definition, such legislation has a religious purpose and effect in promoting the free exercise of religion. On the other hand, judicial deference to all legislation that purports to facilitate the free exercise of religion would completely vitiate the Establishment Clause. Any statute pertaining to religion can be viewed as an "accommodation" of free exercise rights. Indeed, the statute at issue in Lemon, which provided salary supplements, textbooks, and instructional materials to Pennsylvania parochial schools, can be viewed as an accommodation of the religious beliefs of parents who choose to send their children to religious schools. It is obvious that either of the two Religion Clauses, "if expanded to a logical extreme, would tend to clash with the other." Walz, 397 U.S. at 397 U. S. 668 -669. The Court has long exacerbated the conflict by calling for government "neutrality" toward religion. See, e.g., Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756 (1973); Board of Education v. Allen, 392 U. S. 236 (1968). It is difficult to square any notion of "complete neutrality," ante at 472 U. S. 60 , with the mandate of the Free Exercise Clause that government must sometimes exempt a religious observer from an otherwise generally applicable obligation. A government that confers a benefit on an explicitly religious basis is not Page 472 U. S. 83 neutral toward religion. See Welsh v. United States, 398 U. S. 333 , 398 U. S. 372 (1970) (WHITE, J., dissenting). The solution to the conflict between the Religion Clauses lies not in "neutrality," but rather in identifying workable limits to the government's license to promote the free exercise of religion. The text of the Free Exercise Clause speaks of laws that prohibit the free exercise of religion. On its face, the Clause is directed at government interference with free exercise. Given that concern, one can plausibly assert that government pursues Free Exercise Clause values when it lifts a government-imposed burden on the free exercise of religion. If a statute falls within this category, then the standard Establishment Clause test should be modified accordingly. It is disingenuous to look for a purely secular purpose when the manifest objective of a statute is to facilitate the free exercise of religion by lifting a government-imposed burden. Instead, the Court should simply acknowledge that the religious purpose of such a statute is legitimated by the Free Exercise Clause. I would also go further. In assessing the effect of such a statute -- that is, in determining whether the statute conveys the message of endorsement of religion or a particular religious belief -- courts should assume that the "objective observer," supra at 472 U. S. 76 , is acquainted with the Free Exercise Clause and the values it promotes. Thus individual perceptions, or resentment that a religious observer is exempted from a particular government requirement, would be entitled to little weight if the Free Exercise Clause strongly supported the exemption. While this "accommodation" analysis would help reconcile our Free Exercise and Establishment Clause standards, it would not save Alabama's moment of silence law. If we assume that the religious activity that Alabama seeks to protect is silent prayer, then it is difficult to discern any state-imposed burden on that activity that is lifted by Alabama Code § 16-1-20.1 (Supp.1984). No law prevents a student who is so inclined from praying silently in public schools. Page 472 U. S. 84 Moreover, state law already provided a moment of silence to these appellees irrespective of § 16-1-20.1. See Ala.Code § 16-1-20 (Supp.1984). Of course, the State might argue that § 16-1-20.1 protects not silent prayer, but rather group silent prayer under state sponsorship. Phrased in these terms, the burden lifted by the statute is not one imposed by the State of Alabama, but by the Establishment Clause as interpreted in Engel and Abington. In my view, it is beyond the authority of the State of Alabama to remove burdens imposed by the Constitution itself. I conclude that the Alabama statute at issue today lifts no state-imposed burden on the free exercise of religion, and accordingly cannot properly be viewed as an accommodation statute. III The Court does not hold that the Establishment Clause is so hostile to religion that it precludes the States from affording schoolchildren an opportunity for voluntary silent prayer. To the contrary, the moment of silence statutes of many States should satisfy the Establishment Clause standard we have here applied. The Court holds only that Alabama has intentionally crossed the line between creating a quiet moment during which those so inclined may pray and affirmatively endorsing the particular religious practice of prayer. This line may be a fine one, but our precedents and the principles of religious liberty require that we draw it. In my view, the judgment of the Court of Appeals must be affirmed. [ Footnote 3/1 ] See Ala.Code §§ 16-1-20, 16-1-20.1 (Supp.1984); Ariz.Rev.Stat.Ann. § 15-522 (1984); Ark.Stat.Ann. 80-1607.1 (1980); Conn.Gen.Stat. § 10-16a (1983); Del. Code Ann., Tit. 14, § 4101 (1981) (as interpreted in Del.Op.Atty.Gen. 79-1011 (1979)); Fla.Stat. § 233.062 (1983); Ga.Code Ann. § 20-2-1050 (1982); Ill.Rev.Stat., ch. 122, 11771 (1983); Ind.Code § 20-10.1-7-11 (1982); Kan.Stat.Ann. § 72.5308a (1980); La.Rev.Stat.Ann. § 17:2115(A) (West 1982); Me.Rev.Stat.Ann., Tit. 20-A, § 4805 (1983); Md.Educ.Code Ann. § 7-104 (1985); Mass.Gen.Laws Ann., ch. 71, § 1A (West 1982); Mich.Comp.Laws Ann. § 380.1565 (Supp.1984-1985); N.J.Stat.Ann. § 18A:36-4 (West Supp.1984-1985); N.M.Stat.Ann. § 22-5-4.1 (1981); N.Y. Educ. Law § 3029-a (McKinney 1981); N.D.Cent.Code § 15-47-30.1 (1981); Ohio Rev.Code Ann. § 3313.60.1 (1980); Pa. Stat.Ann., Tit. 24, § 15.1516.1 (Purdon Supp.1984-1985); R.I.Gen.Laws § 16-12-3.1 (1981); Tenn.Code Ann. § 49-6-1004 (1983); Va.Code § 22.1203 (1980); W.Va. Const., Art. III, § 15-a. For a useful comparison of the provisions of many of these statutes, see Note, Daily Moments of Silence in Public Schools: A Constitutional Analysis, 58 N.Y.U.L.Rev. 4, 407-408 (1983). [ Footnote 3/2 ] Appellants argue that Zorach v. Clauson, 343 U. S. 306 , 343 U. S. 313 -314 (1952), suggests there is no constitutional infirmity in a State's encouraging a child to pray during a moment of silence. The cited dicta from Zorach however, is inapposite. There the Court stated that "[w]hen the state encourages religious instruction . . . by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions." Ibid. (emphasis added). When the State provides a moment of silence during which prayer may occur at the election of the student, it can be said to be adjusting the schedule of public events to sectarian needs. But when the State also encourages the student to pray during a moment of silence, it converts an otherwise inoffensive moment of silence into an effort by the majority to use the machinery of the State to encourage the minority to participate in a religious exercise. See Abington School District v. Schempp, 374 U. S. 203 , 374 U. S. 226 (1963). [ Footnote 3/3 ] See, e.g., Tenn.Code Ann. § 49-6-1004 (1983). [ Footnote 3/4 ] See, e.g., W.Va. Const., Art. III, § 15-a. [ Footnote 3/5 ] THE CHIEF JUSTICE suggests that one consequence of the Court's emphasis on the difference between § 16-1-20.1 and its predecessor statute might be to render the Pledge of Allegiance unconstitutional because Congress amended it in 1954 to add the words "under God." Post at 472 U. S. 88 . I disagree. In my view, the words "under God" in the Pledge, as codified at 36 U.S.C. § 172, serve as an acknowledgment of religion with "the legitimate secular purposes of solemnizing public occasions, [and] expressing confidence in the future." Lynch v. Donnelly, 465 U. S. 668 , 465 U. S. 693 (1984) (concurring opinion). I also disagree with THE CHIEF JUSTICE's suggestion that the Court's opinion invalidates any moment of silence statute that includes the word "prayer." Post at 472 U. S. 85 . As noted supra at 472 U. S. 73 , "[e]ven if a statute specifies that a student may choose to pray silently during a quiet moment, the State has not thereby encouraged prayer over other specified alternatives." [ Footnote 3/6 ] Even assuming a taxpayer could establish standing to challenge such a practice, see Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464 (1982), these Presidential Proclamations would probably withstand Establishment Clause scrutiny, given their long history. See Marsh v. Chambers, 463 U. S. 783 (1983). CHIEF JUSTICE BURGER, dissenting. Some who trouble to read the opinions in these cases will find it ironic -- perhaps even bizarre -- that on the very day we heard arguments in the cases, the Court's session opened with an invocation for Divine protection. Across the park a few hundred yards away, the House of Representatives and Page 472 U. S. 85 the Senate regularly open each session with a prayer. These legislative prayers are not just one minute in duration, but are extended, thoughtful invocations and prayers for Divine guidance. They are given, as they have been since 1789, by clergy appointed as official chaplains and paid from the Treasury of the United States. Congress has also provided chapels in the Capitol, at public expense, where Members and others may pause for prayer, meditation -- or a moment of silence. Inevitably some wag is bound to say that the Court's holding today reflects a belief that the historic practice of the Congress and this Court is justified because members of the Judiciary and Congress are more in need of Divine guidance than are schoolchildren. Still others will say that all this controversy is "much ado about nothing," since no power on earth -- including this Court and Congress -- can stop any teacher from opening the schoolday with a moment of silence for pupils to meditate, to plan their day -- or to pray if they voluntarily elect to do so. I make several points about today's curious holding. (a) It makes no sense to say that Alabama has "endorsed prayer" by merely enacting a new statute "to specify expressly that voluntary prayer is one of the authorized activities during a moment of silence," ante at 472 U. S. 77 (O'CONNOR, J., concurring in judgment) (emphasis added). To suggest that a moment-of-silence statute that includes the word "prayer" unconstitutionally endorses religion, while one that simply provides for a moment of silence does not, manifests not neutrality, but hostility, toward religion. For decades, our opinions have stated that hostility toward any religion or toward all religions is as much forbidden by the Constitution as is an official establishment of religion. The Alabama Legislature has no more "endorsed" religion than a state or the Congress does when it provides for legislative chaplains, or than this Court does when it opens each session with an invocation to Page 472 U. S. 86 God. Today's decision recalls the observations of Justice Goldberg: "[U]ntutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive dedication to the secular and a passive, or even active, hostility to the religious. Such results are not only not compelled by the Constitution, but, it seems to me, are prohibited by it." Abington School District v. Schempp, 374 U. S. 203 , 374 U. S. 306 (1963) (concurring opinion). (b) The inexplicable aspect of the foregoing opinions, however, is what they advance as support for the holding concerning the purpose of the Alabama Legislature. Rather than determining legislative purpose from the face of the statute as a whole, [ Footnote 4/1 ] the opinions rely on three factors in concluding that the Alabama Legislature had a "wholly religious" purpose for enacting the statute under review, Ala.Code § 16-1-20.1 (Supp.1984): (i) statements of the statute's sponsor, (ii) admissions in Governor James' answer to the second amended complaint, and (iii) the difference between § 16-1-20.1 and its predecessor statute. Curiously, the opinions do not mention that all of the sponsor's statements relied upon -- including the statement "inserted" into the Senate Journal -- were made after the legislature had passed the statute; indeed, the testimony that the Court finds critical was given well over a year after the statute was enacted. As even the appellees concede, see Brief for Appellees 18, there is not a shred of evidence that Page 472 U. S. 87 the legislature as a whole shared the sponsor's motive or that a majority in either house was even aware of the sponsor's view of the bill when it was passed. The sole relevance of the sponsor's statements, therefore, is that they reflect the personal, subjective motives of a single legislator. No case in the 195-year history of this Court supports the disconcerting idea that postenactment statements by individual legislators are relevant in determining the constitutionality of legislation. Even if an individual legislator's after-the-fact statements could rationally be considered relevant, all of the opinions fail to mention that the sponsor also testified that one of his purposes in drafting and sponsoring the moment-of-silence bill was to clear up a widespread misunderstanding that a schoolchild is legally prohibited from engaging in silent, individual prayer once he steps inside a public school building. See App. 53-54. That testimony is at least as important as the statements the Court relies upon, and surely that testimony manifests a permissible purpose. The Court also relies on the admissions of Governor James' answer to the second amended complaint. Strangely, however, the Court neglects to mention that there was no trial bearing on the constitutionality of the Alabama statutes; trial became unnecessary when the District Court held that the Establishment Clause does not apply to the states. [ Footnote 4/2 ] The absence of a trial on the issue of the constitutionality of § 16-1-20.1 is significant because the answer filed by the State Board and Superintendent of Education did not make the same admissions that the Governor's answer made. See 1 Record 187. The Court cannot know whether, if these cases had been tried, those state officials would have offered evidence to contravene appellees' allegations concerning legislative purpose. Thus, it is completely inappropriate to accord any relevance to the admissions in the Governor's answer. Page 472 U. S. 88 The several preceding opinions conclude that the principal difference between § 16-1-20.1 and its predecessor statute proves that the sole purpose behind the inclusion of the phrase "or voluntary prayer" in § 16-1-20.1 was to endorse and promote prayer. This reasoning is simply a subtle way of focusing exclusively on the religious component of the statute, rather than examining the statute as a whole. Such logic -- if it can be called that -- would lead the Court to hold, for example, that a state may enact a statute that provides reimbursement for bus transportation to the parents of all schoolchildren, but may not add parents of parochial school students to an existing program providing reimbursement for parents of public school students. Congress amended the statutory Pledge of Allegiance 31 years ago to add the words "under God." Act of June 14, 1954, Pub.L. 396, 68 Stat. 249. Do the several opinions in support of the judgment today render the Pledge unconstitutional? That would be the consequence of their method of focusing on the difference between § 16-1-20.1 and its predecessor statute, rather than examining § 16-1-20.1 as a whole. [ Footnote 4/3 ] Any such holding would of course make a mockery of our decisionmaking in Establishment Clause cases. And even were the Court's method correct, the inclusion of the words "or voluntary prayer" in § 16-1-20.1 is wholly consistent with the clearly permissible purpose of clarifying that silent, voluntary prayer is not forbidden in the public school building. [ Footnote 4/4 ] Page 472 U. S. 89 (c) The Court's extended treatment of the "test" of Lemon v. Kurtzman, 403 U. S. 602 (1971), suggests a naive preoccupation with an easy, bright-line approach for addressing constitutional issues. We have repeatedly cautioned that Lemon did not establish a rigid caliper capable of resolving every Establishment Clause issue, but that it sought only to provide "signposts." "In each [Establishment Clause] case, the inquiry calls for line-drawing; no fixed, per se rule can be framed." Lynch v. Donnelly, 465 U. S. 668 , 465 U. S. 678 (1984). In any event, our responsibility is not to apply tidy formulas by rote; our duty is to determine whether the statute or practice at issue is a step toward establishing a state religion. Given today's decision, however, perhaps it is understandable that the opinions in support of the judgment all but ignore the Establishment Clause itself and the concerns that underlie it. (d) The notion that the Alabama statute is a step toward creating an established church borders on, if it does not trespass into, the ridiculous. The statute does not remotely threaten religious liberty; it affirmatively furthers the values of religious freedom and tolerance that the Establishment Clause was designed to protect. Without pressuring those who do not wish to pray, the statute simply creates an opportunity to think, to plan, or to pray if one wishes -- as Congress does by providing chaplains and chapels. It accommodates the purely private, voluntary religious choices of the individual pupils who wish to pray while at the same time creating a time for nonreligious reflection for those who do not choose to pray. The statute also provides a meaningful opportunity for schoolchildren to appreciate the absolute constitutional right of each individual to worship and believe as the individual wishes. The statute "endorses" only the view that the religious observances of others should be tolerated and, Page 472 U. S. 90 where possible, accommodated. If the government may not accommodate religious needs when it does so in a wholly neutral and noncoercive manner, the "benevolent neutrality" that we have long considered the correct constitutional standard will quickly translate into the "callous indifference" that the Court has consistently held the Establishment Clause does not require. The Court today has ignored the wise admonition of Justice Goldberg that "the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow." Abington School District v. Schempp, 374 U.S. at 374 U. S. 308 (concurring opinion). The innocuous statute that the Court strikes down does not even rise to the level of "mere shadow." JUSTICE O'CONNOR paradoxically acknowledges: "It is difficult to discern a serious threat to religious liberty from a room of silent, thoughtful schoolchildren." Ante at 472 U. S. 73 . [ Footnote 4/5 ] I would add to that, "even if they choose to pray." The mountains have labored and brought forth a mouse. [ Footnote 4/6 ] [ Footnote 4/1 ] The foregoing opinions likewise completely ignore the statement of purpose that accompanied the moment-of-silence bill throughout the legislative process: "To permit a period of silence to be observed for the purpose of meditation or voluntary prayer at the commencement of the first class of each day in all public schools." 1981 Ala. Senate J. 14 (emphasis added). See also id. at 150, 307, 410, 535, 938, 967. [ Footnote 4/2 ] The four days of trial to which the Court refers concerned only the alleged practices of vocal, group prayer in the classroom. [ Footnote 4/3 ] The House Report on the legislation amending the Pledge states that the purpose of the amendment was to affirm the principle that "our people and our Government [are dependent] upon the moral directions of the Creator." H.R.Rep. No. 1693, 83d Cong., 2d Sess., 2 (1954). If this is simply "acknowledgment," not "endorsement," of religion, see ante at 472 U. S. 78 , n. 5 (O'CONNOR, J., concurring in judgment), the distinction is far too infinitesimal for me to grasp. [ Footnote 4/4 ] The several opinions suggest that other similar statutes may survive today's decision. See ante at 472 U. S. 59 ; ante at 472 U. S. 62 (POWELL, J., concurring); ante at 472 U. S. 78 , n. 5 (O'CONNOR, J., concurring in judgment). If this is true, these opinions become even less comprehensible, given that the Court holds this statute invalid when there is no legitimate evidence of "impermissible" purpose; there could hardly be less evidence of "impermissible" purpose than was shown in these cases. [ Footnote 4/5 ] The principal plaintiff in this action has stated: "'I probably wouldn't have brought the suit just on the silent meditation or prayer statute. . . . If that's all that existed, that wouldn't have caused me much concern, unless it was implemented in a way that suggested prayer was the preferred activity.'" Malone, Prayers for Relief, 71 A.B.A.J. 61, 62, col. l (Apr.1985) (quoting Ishmael Jaffree). [ Footnote 4/6 ] Horace, Epistles, bk. III (Ars Poetica), line 139. JUSTICE WHITE, dissenting. For the most part agreeing with the opinion of THE CHIEF JUSTICE, I dissent from the Court's judgment invalidating Ala.Code § 16-1-20.1 (Supp.1984). Because I do, it is apparent that in my view the First Amendment does not proscribe either (1) statutes authorizing or requiring in so many words a moment of silence before classes begin or (2) a statute that provides, when it is initially passed, for a moment of silence for meditation or prayer. As I read the filed opinions, Page 472 U. S. 91 a majority of the Court would approve statutes that provided for a moment of silence but did not mention prayer. But if a student asked whether he could pray during that moment, it is difficult to believe that the teacher could not answer in the affirmative. If that is the case, I would not invalidate a statute that at the outset provided the legislative answer to the question "May I pray?" This is so even if the Alabama statute is infirm, which I do not believe it is, because of its peculiar legislative history. I appreciate JUSTICE REHNQUIST's explication of the history of the Religion Clauses of the First Amendment. Against that history, it would be quite understandable if we undertook to reassess our cases dealing with these Clauses, particularly those dealing with the Establishment Clause. Of course, I have been out of step with many of the Court's decisions dealing with this subject matter, and it is thus not surprising that I would support a basic reconsideration of our precedents. JUSTICE REHNQUIST, dissenting. Thirty-eight years ago this Court, in Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 16 (1947), summarized its exegesis of Establishment Clause doctrine thus: "In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and State.' Reynolds v. United States , [ 98 U.S. 145 , 98 U. S. 164 (1879)]." This language from Reynolds, a case involving the Free Exercise Clause of the First Amendment, rather than the Establishment Clause, quoted from Thomas Jefferson's letter to the Danbury Baptist Association the phrase "I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation Page 472 U. S. 92 between church and State." 8 Writings of Thomas Jefferson 113 (H. Washington ed. 1861). [ Footnote 5/1 ] It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson's misleading metaphor for nearly 40 years. Thomas Jefferson was, of course, in France at the time the constitutional Amendments known as the Bill of Rights were passed by Congress and ratified by the States. His letter to the Danbury Baptist Association was a short note of courtesy, written 14 years after the Amendments were passed by Congress. He would seem to any detached observer as a less than ideal source of contemporary history as to the meaning of the Religion Clauses of the First Amendment. Jefferson's fellow Virginian, James Madison, with whom he was joined in the battle for the enactment of the Virginia Statute of Religious Liberty of 1786, did play as large a part as anyone in the drafting of the Bill of Rights. He had two advantages over Jefferson in this regard: he was present in the United States, and he was a leading Member of the First Congress. But when we turn to the record of the proceedings in the First Congress leading up to the adoption of the Establishment Clause of the Constitution, including Madison's significant contributions thereto, we see a far different picture of its purpose than the highly simplified "wall of separation between church and State." During the debates in the Thirteen Colonies over ratification of the Constitution, one of the arguments frequently used by opponents of ratification was that, without a Bill of Rights guaranteeing individual liberty, the new general Government Page 472 U. S. 93 carried with it a potential for tyranny. The typical response to this argument on the part of those who favored ratification was that the general Government established by the Constitution had only delegated powers, and that these delegated powers were so limited that the Government would have no occasion to violate individual liberties. This response satisfied some, but not others, and of the 11 Colonies which ratified the Constitution by early 1789, 5 proposed one or another amendments guaranteeing individual liberty. Three -- New Hampshire, New York, and Virginia -- included in one form or another a declaration of religious freedom. See 3 J. Elliot, Debates on the Federal Constitution 659 (1891); 1 id. at 328. Rhode Island and North Carolina flatly refused to ratify the Constitution in the absence of amendments in the nature of a Bill of Rights. 1 id. at 334; 4 id. at 244. Virginia and North Carolina proposed identical guarantees of religious freedom: "[A]ll men have an equal, natural and unalienable right to the free exercise of religion, according to the dictates of conscience, and . . . no particular religious sect or society ought to be favored or established, by law, in preference to others." 3 id. at 659; 4 id. at 244. [ Footnote 5/2 ] On June 8, 1789, James Madison rose in the House of Representatives and "reminded the House that this was the day that he had heretofore named for bringing forward amendments to the Constitution." 1 Annals of Cong. 424. Madison's subsequent remarks in urging the House to adopt his drafts of the proposed amendments were less those of a dedicated advocate of the wisdom of such measures than those of a prudent statesman seeking the enactment of measures Page 472 U. S. 94 sought by a number of his fellow citizens which could surely do no harm, and might do a great deal of good. He said, inter alia: "It appears to me that this House is bound by every motive of prudence, not to let the first session pass over without proposing to the State Legislatures, some things to be incorporated into the Constitution, that will render it as acceptable to the whole people of the United States, as it has been found acceptable to a majority of them. I wish, among other reasons why something should be done, that those who had been friendly to the adoption of this Constitution may have the opportunity of proving to those who were opposed to it that they were as sincerely devoted to liberty and a Republican Government, as those who charged them with wishing the adoption of this Constitution in order to lay the foundation of an aristocracy or despotism. It will be a desirable thing to extinguish from the bosom of every member of the community, any apprehensions that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled. And if there are amendments desired of such a nature as will not injure the Constitution, and they can be ingrafted so as to give satisfaction to the doubting part of our fellow-citizens, the friends of the Federal Government will evince that spirit of deference and concession for which they have hitherto been distinguished." Id. at 431-432. The language Madison proposed for what ultimately became the Religion Clauses of the First Amendment was this: "The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed." Id. at 434. Page 472 U. S. 95 On the same day that Madison proposed them, the amendments which formed the basis for the Bill of Rights were referred by the House to a Committee of the Whole, and after several weeks' delay, were then referred to a Select Committee consisting of Madison and 10 others. The Committee revised Madison's proposal regarding the establishment of religion to read: "[N]o religion shall be established by law, nor shall the equal rights of conscience be infringed." Id. at 729. The Committee's proposed revisions were debated in the House on August 15, 1789. The entire debate on the Religion Clauses is contained in two full columns of the "Annals," and does not seem particularly illuminating. See id. at 729-731. Representative Peter Sylvester of New York expressed his dislike for the revised version, because it might have a tendency "to abolish religion altogether." Representative John Vining suggested that the two parts of the sentence be transposed; Representative Elbridge Gerry thought the language should be changed to read "that no religious doctrine shall be established by law." Id. at 729. Roger Sherman of Connecticut had the traditional reason for opposing provisions of a Bill of Rights -- that Congress had no delegated authority to "make religious establishments" -- and therefore he opposed the adoption of the amendment. Representative Daniel Carroll of Maryland thought it desirable to adopt the words proposed, saying "[h]e would not contend with gentlemen about the phraseology, his object was to secure the substance in such a manner as to satisfy the wishes of the honest part of the community." Madison then spoke, and said that "he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience." Id. at 730. He said that some of the state conventions had thought that Congress might rely on Page 472 U. S. 96 the Necessary and Proper Clause to infringe the rights of conscience or to establish a national religion, and "to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit." Ibid. Representative Benjamin Huntington then expressed the view that the Committee's language might "be taken in such latitude as to be extremely hurtful to the cause of religion. He understood the amendment to mean what had been expressed by the gentleman from Virginia; but others might find it convenient to put another construction upon it." Huntington, from Connecticut, was concerned that in the New England States, where state-established religions were the rule, rather than the exception, the federal courts might not be able to entertain claims based upon an obligation under the bylaws of a religious organization to contribute to the support of a minister or the building of a place of worship. He hoped that "the amendment would be made in such a way as to secure the rights of conscience, and a free exercise of the rights of religion, but not to patronise those who professed no religion at all." Id. at 730-731. Madison responded that the insertion of the word "national" before the word "religion" in the Committee version should satisfy the minds of those who had criticized the language. "He believed that the people feared one sect might obtain a preeminence, or two combine together, and establish a religion to which they would compel others to conform. He thought that, if the word 'national' was introduced, it would point the amendment directly to the object it was intended to prevent." Id. at 731. Representative Samuel Livermore expressed himself as dissatisfied with Madison's proposed amendment, and thought it would be better if the Committee language were altered to read that "Congress shall make no laws touching religion, or infringing the rights of conscience." Ibid. Representative Gerry spoke in opposition to the use of the word "national" because of strong feelings expressed during Page 472 U. S. 97 the ratification debates that a federal government, not a national government, was created by the Constitution. Madison thereby withdrew his proposal, but insisted that his reference to a "national religion" only referred to a national establishment, and did not mean that the Government was a national one. The question was taken on Representative Livermore's motion, which passed by a vote of 31 for and 20 against. Ibid. The following week, without any apparent debate, the House voted to alter the language of the Religion Clauses to read "Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience." Id. at 766. The floor debates in the Senate were secret, and therefore not reported in the Annals. The Senate, on September 3, 1789, considered several different forms of the Religion Amendment, and reported this language back to the House: "Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion." C. Antieau, A. Downey, & E. Roberts, Freedom From Federal Establishment 130 (1964). The House refused to accept the Senate's changes in the Bill of Rights, and asked for a conference; the version which emerged from the conference was that which ultimately found its way into the Constitution as a part of the First Amendment. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The House and the Senate both accepted this language on successive days, and the Amendment was proposed in this form. On the basis of the record of these proceedings in the House of Representatives, James Madison was undoubtedly the most important architect among the Members of the Page 472 U. S. 98 House of the Amendments which became the Bill of Rights, but it was James Madison speaking as an advocate of sensible legislative compromise, not as an advocate of incorporating the Virginia Statute of Religious Liberty into the United States Constitution. During the ratification debate in the Virginia Convention, Madison had actually opposed the idea of any Bill of Rights. His sponsorship of the Amendments in the House was obviously not that of a zealous believer in the necessity of the Religion Clauses, but of one who felt it might do some good, could do no harm, and would satisfy those who had ratified the Constitution on the condition that Congress propose a Bill of Rights. [ Footnote 5/3 ] His original language "nor shall any national religion be established" obviously does not conform to the "wall of separation" between church and State idea which latter-day commentators have ascribed to him. His explanation on the floor of the meaning of his language -- "that Congress should not establish a religion, and enforce the legal observation of it by law" -- is of the same ilk. When he replied to Huntington in the debate over the proposal which came from the Select Committee of the House, he urged that the language "no religion shall be established by law" should be amended by inserting the word "national" in front of the word "religion." It seems indisputable from these glimpses of Madison's thinking, as reflected by actions on the floor of the House in 1789, that he saw the Amendment as designed to prohibit the establishment of a national religion, and perhaps to prevent discrimination among sects. He did not see it as requiring neutrality on the part of government between religion and irreligion. Thus the Court's opinion in Everson -- while correct in bracketing Madison and Jefferson together in their exertions in their home State leading to the enactment of the Page 472 U. S. 99 Virginia Statute of Religious Liberty -- is totally incorrect in suggesting that Madison carried these views onto the floor of the United States House of Representatives when he proposed the language which would ultimately become the Bill of Rights. The repetition of this error in the Court's opinion in Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203 (1948), and, inter alia, Engel v. Vitale, 370 U. S. 421 (1962), does not make it any sounder historically. Finally, in Abington School District v. Schempp, 374 U. S. 203 , 374 U. S. 214 (1963), the Court made the truly remarkable statement that "the views of Madison and Jefferson, preceded by Roger Williams, came to be incorporated not only in the Federal Constitution but likewise in those of most of our States" (footnote omitted). On the basis of what evidence we have, this statement is demonstrably incorrect as a matter of history. [ Footnote 5/4 ] And its repetition in varying forms in succeeding opinions of the Court can give it no more authority than it possesses as a matter of fact; stare decisis may bind courts as to matters of law, but it cannot bind them as to matters of history. None of the other Members of Congress who spoke during the August 15th debate expressed the slightest indication that they thought the language before them from the Select Committee, or the evil to be aimed at, would require that the Government be absolutely neutral as between religion and irreligion. The evil to be aimed at, so far as those who spoke were concerned, appears to have been the establishment of a national church, and perhaps the preference of one religious sect over another; but it was definitely not concerned about whether the Government might aid all religions evenhandedly. If one were to follow the advice of JUSTICE BRENNAN, concurring in Abington School District v. Schempp, supra, at 374 U. S. 236 , and construe the Amendment in the light of what particular Page 472 U. S. 100 "practices . . . challenged threaten those consequences which the Framers deeply feared; whether, in short, they tend to promote that type of interdependence between religion and state which the First Amendment was designed to prevent," one would have to say that the First Amendment Establishment Clause should be read no more broadly than to prevent the establishment of a national religion or the governmental preference of one religious sect over another. The actions of the First Congress, which reenacted the Northwest Ordinance for the governance of the Northwest Territory in 1789, confirm the view that Congress did not mean that the Government should be neutral between religion and irreligion. The House of Representatives took up the Northwest Ordinance on the same day as Madison introduced his proposed amendments which became the Bill of Rights; while at that time the Federal Government was, of course, not bound by draft amendments to the Constitution which had not yet been proposed by Congress, say nothing of ratified by the States, it seems highly unlikely that the House of Representatives would simultaneously consider proposed amendments to the Constitution and enact an important piece of territorial legislation which conflicted with the intent of those proposals. The Northwest Ordinance, 1 Stat. 50, reenacted the Northwest Ordinance of 1787 and provided that "[r]eligion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." Id. at 52, n. (a). Land grants for schools in the Northwest Territory were not limited to public schools. It was not until 1845 that Congress limited land grants in the new States and Territories to nonsectarian schools. 5 Stat. 788; C. Antieau, A. Downey, & E. Roberts, Freedom From Federal Establishment 163 (1964). On the day after the House of Representatives voted to adopt the form of the First Amendment Religion Clauses which was ultimately proposed and ratified, Representative Page 472 U. S. 101 Elias Boudinot proposed a resolution asking President George Washington to issue a Thanksgiving Day Proclamation. Boudinot said he "could not think of letting the session pass over without offering an opportunity to all the citizens of the United States of joining with one voice, in returning to Almighty God their sincere thanks for the many blessings he had poured down upon them." 1 Annals of Cong. 914 (1789). Representative Aedanas Burke objected to the resolution because he did not like "this mimicking of European customs"; Representative Thomas Tucker objected that whether or not the people had reason to be satisfied with the Constitution was something that the States knew better than the Congress, and, in any event, "it is a religious matter, and, as such, is proscribed to us." Id. at 915. Representative Sherman supported the resolution "not only as a laudable one in itself, but as warranted by a number of precedents in Holy Writ: for instance, the solemn thanksgivings and rejoicings which took place in the time of Solomon, after the building of the temple, was a case in point. This example, he thought, worthy of Christian imitation on the present occasion. . . ." Ibid. Boudinot's resolution was carried in the affirmative on September 25, 1789. Boudinot and Sherman, who favored the Thanksgiving Proclamation, voted in favor of the adoption of the proposed amendments to the Constitution, including the Religion Clauses; Tucker, who opposed the Thanksgiving Proclamation, voted against the adoption of the amendments which became the Bill of Rights. Within two weeks of this action by the House, George Washington responded to the Joint Resolution which by now had been changed to include the language that the President "recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness." 1 J. Richardson, Messages and Papers of Page 472 U. S. 102 the Presidents, 1789-1897, p. 64 (1897). The Presidential Proclamation was couched in these words: "Now, therefore, I do recommend and assign Thursday, the 26th day of November next, to be devoted by the people of these States to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be; that we may then all unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people of this country previous to their becoming a nation; for the signal and manifold mercies and the favorable interpositions of His providence in the course and conclusion of the late war; for the great degree of tranquillity, union, and plenty which we have since enjoyed; for the peaceable and rational manner in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national one now lately instituted; for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge; and, in general, for all the great and various favors which He has been pleased to confer upon us." "And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations, and beseech Him to pardon our national and other transgressions; to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually; to render our National Government a blessing to all the people by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed; to protect and guide all sovereigns and nations (especially such as have shown kindness to us), and to bless them with good governments, peace, and concord; to promote the knowledge and practice of true religion and virtue, and the increase of science among them and Page 472 U. S. 103 us; and, generally, to grant unto all mankind such a degree of temporal prosperity as He alone knows to be best." Ibid. George Washington, John Adams, and James Madison all issued Thanksgiving Proclamations; Thomas Jefferson did not, saying: "Fasting and prayer are religious exercises; the enjoining them an act of discipline. Every religious society has a right to determine for itself the times for these exercises, and the objects proper for them, according to their own particular tenets; and this right can never be safer than in their own hands, where the Constitution has deposited it." 11 Writings of Thomas Jefferson 429 (A. Lipscomb ed.1904). As the United States moved from the 18th into the 19th century, Congress appropriated time and again public moneys in support of sectarian Indian education carried on by religious organizations. Typical of these was Jefferson's treaty with the Kaskaskia Indians, which provided annual cash support for the Tribe's Roman Catholic priest and church. [ Footnote 5/5 ] It was not until 1897, when aid to sectarian education Page 472 U. S. 104 for Indians had reached $500,000 annually, that Congress decided thereafter to cease appropriating money for education in sectarian schools. See Act of June 7, 1897, 30 Stat. 62, 79; cf. Quick Bear v. Leupp, 210 U. S. 50 , 210 U. S. 77 -79 (1908); J. O'Neill, Religion and Education Under the Constitution 118-119 (1949). See generally R. Cord, Separation of Church and State 61-82 (1982). This history shows the fallacy of the notion found in Everson that "no tax in any amount" may be levied for religious activities in any form. 330 U.S. at 330 U. S. 15 -16. Joseph Story, a Member of this Court from 1811 to 1845, and during much of that time a professor at the Harvard Law School, published by far the most comprehensive treatise on the United States Constitution that had then appeared. Volume 2 of Story's Commentaries on the Constitution of the United States 630-632 (5th ed. 1891) discussed the meaning of the Establishment Clause of the First Amendment this way: "Probably at the time of the adoption of the Constitution, and of the amendment to it now under consideration [First Amendment], the general if not the universal sentiment in America was that Christianity ought to receive encouragement from the State so far as was not incompatible with the private rights of conscience and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation." " * * * *" "The real object of the [First] [A]mendment was not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity, but to exclude all rivalry among Christian sects, and to prevent Page 472 U. S. 105 any national ecclesiastical establishment which should give to a hierarchy the exclusive patronage of the national government. It thus cut off the means of religious persecution (the vice and pest of former ages), and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age. . . ." (Footnotes omitted.) Thomas Cooley's eminence as a legal authority rivaled that of Story. Cooley stated in his treatise entitled Constitutional Limitations that aid to a particular religious sect was prohibited by the United States Constitution, but he went on to say: "But while thus careful to establish, protect, and defend religious freedom and equality, the American constitutions contain no provisions which prohibit the authorities from such solemn recognition of a superintending Providence in public transactions and exercises as the general religious sentiment of mankind inspires, and as seems meet and proper in finite and dependent beings. Whatever may be the shades of religious belief, all must acknowledge the fitness of recognizing in important human affairs the superintending care and control of the Great Governor of the Universe, and of acknowledging with thanksgiving his boundless favors, or bowing in contrition when visited with the penalties of his broken laws. No principle of constitutional law is violated when thanksgiving or fast days are appointed; when chaplains are designated for the army and navy; when legislative sessions are opened with prayer or the reading of the Scriptures, or when religious teaching is encouraged by a general exemption of the houses of religious worship from taxation for the support of State government. Undoubtedly the spirit of the Constitution will require, in all these cases, that care be taken to avoid discrimination Page 472 U. S. 106 in favor of or against any one religious denomination or sect; but the power to do any of these things does not become unconstitutional simply because of its susceptibility to abuse. . . ." Id. at *470-*471. Cooley added that "[t]his public recognition of religious worship, however, is not based entirely, perhaps not even mainly, upon a sense of what is due to the Supreme Being himself as the author of all good and of all law; but the same reasons of state policy which induce the government to aid institutions of charity and seminaries of instruction will incline it also to foster religious worship and religious institutions, as conservators of the public morals and valuable, if not indispensable, assistants to the preservation of the public order." Id. at *470. It would seem from this evidence that the Establishment Clause of the First Amendment had acquired a well-accepted meaning: it forbade establishment of a national religion, and forbade preference among religious sects or denominations. Indeed, the first American dictionary defined the word "establishment" as "the act of establishing, founding, ratifying or ordaining," such as in "[t]he episcopal form of religion, so called, in England." 1 N. Webster, American Dictionary of the English Language (1st ed. 1828). The Establishment Clause did not require government neutrality between religion and irreligion, nor did it prohibit the Federal Government from providing nondiscriminatory aid to religion. There is simply no historical foundation for the proposition that the Framers intended to build the "wall of separation" that was constitutionalized in Everson. Notwithstanding the absence of a historical basis for this theory of rigid separation, the wall idea might well have served as a useful, albeit misguided, analytical concept, had it led this Court to unified and principled results in Establishment Clause cases. The opposite, unfortunately, has been Page 472 U. S. 107 true; in the 38 years since Everson, our Establishment Clause cases have been neither principled nor unified. Our recent opinions, many of them hopelessly divided pluralities, [ Footnote 5/6 ] have with embarrassing candor conceded that the "wall of separation" is merely a "blurred, indistinct, and variable barrier," which "is not wholly accurate" and can only be "dimly perceived." Lemon v. Kurtzman, 403 U. S. 602 , 403 U. S. 614 (1971); Tilton v. Richardson, 403 U. S. 672 , 403 U. S. 677 -678, (1971); Wolman v. Walter, 433 U. S. 229 , 433 U. S. 236 (1977); Lynch v. Donnelly, 465 U. S. 668 , 465 U. S. 673 (1984). Whether due to its lack of historical support or its practical unworkability, the Everson "wall" has proved all but useless as a guide to sound constitutional adjudication. It illustrates only too well the wisdom of Benjamin Cardozo's observation that "[m]etaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it." Berkey v. Third Avenue R. Co., 244 N.Y. 84, 94, 155 N.E. 58, 61 (1926). But the greatest injury of the "wall" notion is its mischievous diversion of judges from the actual intentions of the drafters of the Bill of Rights. The "crucible of litigation," ante at 472 U. S. 52 , is well adapted to adjudicating factual disputes on the basis of testimony presented in court, but no amount of repetition of historical errors in judicial opinions can make the errors true. The "wall of separation between church and State" is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned. Page 472 U. S. 108 The Court has more recently attempted to add some mortar to Everson's wall through the three-part test of Lemon v. Kurtzman, supra, at 403 U. S. 614 -615, which served at first to offer a more useful test for purposes of the Establishment Clause than did the "wall" metaphor. Generally stated, the Lemon test proscribes state action that has a sectarian purpose or effect, or causes an impermissible governmental entanglement with religion. Lemon cited Board of Education v. Allen, 392 U. S. 236 , 392 U. S. 243 (1968), as the source of the "purpose" and "effect" prongs of the three-part test. The Allen opinion explains, however, how it inherited the purpose and effect elements from Schempp and Everson, both of which contain the historical errors described above. See Allen, supra, at 392 U. S. 243 . Thus the purpose and effect prongs have the same historical deficiencies as the wall concept itself: they are in no way based on either the language or intent of the drafters. The secular purpose prong has proved mercurial in application because it has never been fully defined, and we have never fully stated how the test is to operate. If the purpose prong is intended to void those aids to sectarian institutions accompanied by a stated legislative purpose to aid religion, the prong will condemn nothing so long as the legislature utters a secular purpose and says nothing about aiding religion. Thus, the constitutionality of a statute may depend upon what the legislators put into the legislative history and, more importantly, what they leave out. The purpose prong means little if it only requires the legislature to express any secular purpose and omit all sectarian references, because legislators might do just that. Faced with a valid legislative secular purpose, we could not properly ignore that purpose without a factual basis for doing so. Larson v. Valente, 456 U. S. 228 , 456 U. S. 262 -263 (1982) (WHITE, J., dissenting). However, if the purpose prong is aimed to void all statutes enacted with the intent to aid sectarian institutions, whether stated or not, then most statutes providing any aid, such as Page 472 U. S. 109 textbooks or bus rides for sectarian school children, will fail because one of the purposes behind every statute, whether stated or not, is to aid the target of its largesse. In other words, if the purpose prong requires an absence of any intent to aid sectarian institutions, whether or not expressed, few state laws in this area could pass the test, and we would be required to void some state aids to religion which we have already upheld. E.g., Allen, supra. The entanglement prong of the Lemon test came from Walz v. Tax Comm'n, 397 U. S. 664 , 397 U. S. 674 (1970). Walz involved a constitutional challenge to New York's time-honored practice of providing state property tax exemptions to church property used in worship. The Walz opinion refused to "undermine the ultimate constitutional objective [of the Establishment Clause] as illuminated by history," id. at 397 U. S. 671 , and upheld the tax exemption. The Court examined the historical relationship between the State and church when church property was in issue, and determined that the challenged tax exemption did not so entangle New York with the church as to cause an intrusion or interference with religion. Interferences with religion should arguably be dealt with under the Free Exercise Clause, but the entanglement inquiry in Walz was consistent with that case's broad survey of the relationship between state taxation and religious property. We have not always followed Walz' reflective inquiry into entanglement, however. E.g., Wolman, supra, at 433 U. S. 254 . One of the difficulties with the entanglement prong is that, when divorced from the logic of Walz, it creates an "insoluble paradox" in school aid cases: we have required aid to parochial schools to be closely watched lest it be put to sectarian use, yet this close supervision itself will create an entanglement. Roemer v. Maryland Bd. of Public Works, 426 U. S. 736 , 426 U. S. 768 -769 (1976) (WHITE, J., concurring in judgment). For example, in Wolman, supra, the Court in part struck the State's nondiscriminatory provision of buses for parochial school field trips, because the state supervision Page 472 U. S. 110 of sectarian officials in charge of field trips would be too onerous. This type of self-defeating result is certainly not required to ensure that States do not establish religions. The entanglement test as applied in cases like Wolman also ignores the myriad state administrative regulations properly placed upon sectarian institutions such as curriculum, attendance, and certification requirements for sectarian schools, or fire and safety regulations for churches. Avoiding entanglement between church and State may be an important consideration in a case like Walz, but if the entanglement prong were applied to all state and church relations in the automatic manner in which it has been applied to school aid cases, the State could hardly require anything of church-related institutions as a condition for receipt of financial assistance. These difficulties arise because the Lemon test has no more grounding in the history of the First Amendment than does the wall theory upon which it rests. The three-part test represents a determined effort to craft a workable rule from a historically faulty doctrine; but the rule can only be as sound as the doctrine it attempts to service. The three-part test has simply not provided adequate standards for deciding Establishment Clause cases, as this Court has slowly come to realize. Even worse, the Lemon test has caused this Court to fracture into unworkable plurality opinions, see 472 U.S. 38 fn5/6|>n. 6, supra, depending upon how each of the three factors applies to a certain state action. The results from our school services cases show the difficulty we have encountered in making the Lemon test yield principled results. For example, a State may lend to parochial school children geography textbooks [ Footnote 5/7 ] that contain maps of the United States, but the State may not lend maps of the United States for use in geography class. [ Footnote 5/8 ] A State may lend textbooks on American colonial history, but it may not lend a film on Page 472 U. S. 111 George Washington, or a film projector to show it in history class. A State may lend classroom workbooks, but may not lend workbooks in which the parochial school children write, thus rendering them nonreusable. [ Footnote 5/9 ] A State may pay for bus transportation to religious schools, [ Footnote 5/10 ] but may not pay for bus transportation from the parochial school to the public zoo or natural history museum for a field trip. [ Footnote 5/11 ] A State may pay for diagnostic services conducted in the parochial school, but therapeutic services must be given in a different building; speech and hearing "services" conducted by the State inside the sectarian school are forbidden, Meek v. Pittenger, 421 U. S. 349 , 421 U. S. 367 , 421 U. S. 371 (1975), but the State may conduct speech and hearing diagnostic testing inside the sectarian school. Wolman, 433 U.S. at 433 U. S. 241 . Exceptional parochial school students may receive counseling, but it must take place outside of the parochial school, [ Footnote 5/12 ] such as in a trailer parked down the street. Id. at 433 U. S. 245 . A State may give cash to a parochial school to pay for the administration of state-written tests and state-ordered reporting services, [ Footnote 5/13 ] but it may not provide funds for teacher-prepared tests on secular subjects. [ Footnote 5/14 ] Religious instruction may not be given in public school, [ Footnote 5/15 ] but the public school may release students during the day for religion classes elsewhere, and may enforce attendance at those classes with its truancy laws. [ Footnote 5/16 ] These results violate the historically sound principle "that the Establishment Clause does not forbid governments . . . to [provide] general welfare under which benefits are distributed to private individuals, even though many of those individuals Page 472 U. S. 112 may elect to use those benefits in ways that 'aid' religious instruction or worship." Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756 , 413 U. S. 799 (1973) (BURGER, C.J., concurring in part and dissenting in part). It is not surprising in the light of this record that our most recent opinions have expressed doubt on the usefulness of the Lemon test. Although the test initially provided helpful assistance, e.g., Tilton v. Richardson, 403 U. S. 672 (1971), we soon began describing the test as only a "guideline," Committee for Public Education & Religious Liberty v. Nyquist, supra, and lately we have described it as "no more than [a] useful signpos[t]." Mueller v. Allen, 463 U. S. 388 , 463 U. S. 394 (1983), citing Hunt v. McNair, 413 U. S. 734 , 413 U. S. 741 (1973); Larkin v. Grendel's Den, Inc., 459 U. S. 116 (1982). We have noted that the Lemon test is "not easily applied," Meek, supra, at 421 U. S. 358 , and as JUSTICE WHITE noted in Committee for Public Education & Religious Liberty v. Regan, 444 U. S. 646 (1980), under the Lemon test we have "sacrifice[d] clarity and predictability for flexibility." 444 U.S. at 444 U. S. 662 . In Lynch, we reiterated that the Lemon test has never been binding on the Court, and we cited two cases where we had declined to apply it. 465 U.S. at 465 U. S. 679 , citing Marsh v. Chambers, 463 U. S. 783 (1983); Larson v. Valente, 456 U. S. 228 (1982). If a constitutional theory has no basis in the history of the amendment it seeks to interpret, is difficult to apply, and yields unprincipled results, I see little use in it. The "crucible of litigation," ante at 472 U. S. 52 , has produced only consistent unpredictability, and today's effort is just a continuation of "the sisyphean task of trying to patch together the blurred, indistinct and variable barrier' described in Lemon v. Kurtzman. " Regan, supra, at 444 U. S. 671 (STEVENS, J., dissenting). We have done much straining since 1947, but still we admit that we can only "dimly perceive" the Everson wall. Tilton, supra. Our perception has been clouded not by the Constitution, but by the mists of an unnecessary metaphor. Page 472 U. S. 113 The true meaning of the Establishment Clause can only be seen in its history. See Walz, 397 U.S. at 397 U. S. 671 -673; see also Lynch, supra, at 465 U. S. 673 -678. As drafters of our Bill of Rights, the Framers inscribed the principles that control today. Any deviation from their intentions frustrates the permanence of that Charter, and will only lead to the type of unprincipled decisionmaking that has plagued our Establishment Clause cases since Everson. The Framers intended the Establishment Clause to prohibit the designation of any church as a "national" one. The Clause was also designed to stop the Federal Government from asserting a preference for one religious denomination or sect over others. Given the "incorporation" of the Establishment Clause as against the States via the Fourteenth Amendment in Everson, States are prohibited as well from establishing a religion or discriminating between sects. As its history abundantly shows, however, nothing in the Establishment Clause requires government to be strictly neutral between religion and irreligion, nor does that Clause prohibit Congress or the States from pursuing legitimate secular ends through nondiscriminatory sectarian means. The Court strikes down the Alabama statute because the State wished to "characterize prayer as a favored practice." Ante at 472 U. S. 60 . It would come as much of a shock to those who drafted the Bill of Rights as it will to a large number of thoughtful Americans today to learn that the Constitution, as construed by the majority, prohibits the Alabama Legislature from "endorsing" prayer. George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of "public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God." History must judge whether it was the Father of his Country in 1789, or a majority of the Court today, which has strayed from the meaning of the Establishment Clause. The State surely has a secular interest in regulating the manner in which public schools are conducted. Nothing in Page 472 U. S. 114 the Establishment Clause of the First Amendment, properly understood, prohibits any such generalized "endorsement" of prayer. I would therefore reverse the judgment of the Court of Appeals. [ Footnote 5/1 ] Reynolds is the only authority cited as direct precedent for the "wall of separation theory." 330 U.S. at 330 U. S. 16 . Reynolds is truly inapt; it dealt with a Mormon's Free Exercise Clause challenge to a federal polygamy law. [ Footnote 5/2 ] The New York and Rhode Island proposals were quite similar. They stated that no particular "religious sect or society ought to be favored or established by law in preference to others." 1 Elliot's Debates, at 328; id. at 334. [ Footnote 5/3 ] In a letter he sent to Jefferson in France, Madison stated that he did not see much importance in a Bill of Rights, but he planned to support it because it was "anxiously desired by others . . . [and] it might be of use, and if properly executed could not be of disservice." 5 Writings of James Madison 271 (G. Hunt ed.1904). [ Footnote 5/4 ] State establishments were prevalent throughout the late 18th and early 19th centuries. See Mass. Const. of 1780, Part 1, Art. III; N. H. Const. of 1784, Art. VI; Md. Declaration of Rights of 1776, Art. XXXIII; R. I. Charter of 1633 (superseded 1842). [ Footnote 5/5 ] The treaty stated in part: " And whereas, the greater part of said Tribe have been baptized and received into the Catholic church, to which they are much attached, the United States will give annually for seven years one hundred dollars towards the support of a priest of that religion . . . [a]nd . . . three hundred dollars, to assist the said Tribe in the erection of a church." 7 Stat. 79. From 1789 to 1823 the United States Congress had provided a trust endowment of up to 12,000 acres of land "for the Society of the United Brethren, for propagating the Gospel among the Heathen." See, e.g., ch. 46, 1 Stat. 490. The Act creating this endowment was renewed periodically and the renewals were signed into law by Washington, Adams, and Jefferson. Congressional grants for the aid of religion were not limited to Indians. In 1787, Congress provided land to the Ohio Company, including acreage for the support of religion. This grant was reauthorized in 1792. See 1 Stat. 257. In 1833, Congress authorized the State of Ohio to sell the land set aside for religion and use the proceeds "for the support of religion . . . and for no other use or purpose whatsoever. . . ." 4 Stat. 618-619. [ Footnote 5/6 ] Tilton v. Richardson, 403 U. S. 672 , 403 U. S. 677 (1971); Meek v. Pittenger, 421 U. S. 349 (1975) (partial); Roemer v. Maryland Bd. of Public Works, 426 U. S. 736 (1976); Wolman v. Walter, 433 U. S. 229 (1977). Many of our other Establishment Clause cases have been decided by bare 5-4 majorities. Committee for Public Education & Religious Liberty v. Regan, 444 U. S. 646 (1980); Larson v. Valente, 456 U. S. 228 (1982); Mueller v. Allen, 463 U. S. 388 (1983); Lynch v. Donnelly, 465 U. S. 668 (1984); cf. Levitt v. Committee for Public Education & Religious Liberty, 413 U. S. 472 (1973). [ Footnote 5/7 ] Board of Education v. Allen, 392 U. S. 236 (1968). [ Footnote 5/8 ] Meek, 421 U.S. at 421 U. S. 362 -366. A science book is permissible, a science kit is not. See Wolman, 433 U.S. at 433 U. S. 249 . [ Footnote 5/9 ] See Meek, supra, at 421 U. S. 354 -355, nn. 3, 4, 421 U. S. 362 -366. [ Footnote 5/10 ] Everson v. Board of Education, 330 U. S. 1 (1947). [ Footnote 5/11 ] Wolman, supra, at 433 U. S. 252 -255. [ Footnote 5/12 ] Wolman, supra, at 433 U. S. 241 -248; Meek, supra, at 421 U. S. 352 , n. 2, 421 U. S. 367 -373. [ Footnote 5/13 ] Regan, 444 U.S. at 444 U. S. 648 , 444 U. S. 657 -659. [ Footnote 5/14 ] Levitt, 413 U.S. at 413 U. S. 479 -482. [ Footnote 5/15 ] Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203 (1948). [ Footnote 5/16 ] Zorach v. Clauson, 343 U. S. 306 (1952).

In Wallace v. Jaffree, the Supreme Court ruled that an Alabama statute authorizing a moment of silence in public schools for meditation or voluntary prayer violated the Establishment Clause of the First Amendment. The Court found that the statute lacked a secular legislative purpose and was solely motivated by a purpose to advance religion, as indicated by the sponsor's statements and the statute's relationship with other Alabama laws. The ruling affirmed the individual's freedom to choose their own creed or none at all, protected by the First and Fourteenth Amendments, and prohibited states from establishing an official religion.

Religion

Lyng v. Northwest Indian Cemetery Protective Ass'n

https://supreme.justia.com/cases/federal/us/485/439/

U.S. Supreme Court Lyng v. Northwest Indian Cemetery, 485 U.S. 439 (1988) Lyng v. Northwest Indian Cemetery Protective Association No. 86-1013 Argued November 30, 1987 Decided April 19, 1988 485 U.S. 439 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus In 1982, the United States Forest Service prepared a final environmental impact statement for constructing a paved road through federal land, including the Chimney Rock area of the Six Rivers National Forest. This area, as reported in a study commissioned by the Service, has historically been used by certain American Indians for religious rituals that depend upon privacy, silence, and an undisturbed natural setting. Rejecting the study's recommendation that the road not be completed through the Chimney Rock area because it would irreparably damage the sacred areas, and also rejecting alternative routes outside the National Forest, the Service selected a route through the Chimney Rock area that avoided archeological sites and was removed as far as possible from the sites used by the Indians for specific spiritual activities. At about the same time, the Service also adopted a management plan allowing for timber harvesting in the same area, but providing for protective zones around all the religious sites identified in the study. After exhausting administrative remedies, respondents -- an Indian organization, individual Indians, nature organizations and members thereof, and the State of California -- filed suit in Federal District Court challenging both the road-building and timber harvesting decisions. The court issued a permanent injunction that prohibited the Government from constructing the Chimney Rock section of the road or putting the timber harvesting plan into effect, holding, inter alia, that such actions would violate respondent Indians' rights under the Free Exercise Clause of the First Amendment and would violate certain federal statutes. The Court of Appeals affirmed in pertinent part. Held: 1. The courts below did not clearly explain whether -- in keeping with the principle requiring that courts reach constitutional questions only when necessary -- they determined that a decision on the First Amendment issue was necessary because it might entitle respondents to relief beyond that to which they were entitled on their statutory claims. The structure and wording of the District Court's injunction, however, suggest that the statutory holding would not have supported all the relief Page 485 U. S. 440 granted, and the Court of Appeals' silence as to the necessity of reaching the First Amendment issue may have reflected its understanding that the District Court's injunction necessarily rested in part on constitutional grounds. Because it appears reasonably likely that the First Amendment issue was necessary to the decisions below, and because the Government is confident that it can cure the statutory defects identified below, it would be inadvisable for this Court to vacate and remand without addressing the constitutional question on the merits. Pp. 485 U. S. 445 -447. 2. The Free Exercise Clause does not prohibit the Government from permitting timber harvesting in the Chimney Rock area or constructing the proposed road. Pp. 485 U. S. 447 -458. (a) In Bowen v. Roy, 476 U. S. 693 -- which held that a federal statute requiring States to use Social Security numbers in administering certain welfare programs did not violate Indian religious rights under the Free Exercise Clause -- this Court rejected the same kind of challenge that respondents assert. Just as in Roy, the affected individuals here would not be coerced by the Government's action into violating their religious beliefs; nor would the governmental action penalize the exercise of religious rights by denying religious adherents an equal share of the rights, benefits, and privileges enjoyed by other citizens. Incidental effects of government programs, which may interfere with the practice of certain religions, but which have no tendency to coerce individuals into acting contrary to their religious beliefs, do not require government to bring forward a compelling justification for its otherwise lawful actions. The Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government. Even assuming that the Government's actions here will virtually destroy the Indians' ability to practice their religion, the Constitution simply does not provide a principle that could justify upholding respondents' legal claims. Pp. 485 U. S. 447 -453. (b) The Government's right to the use of its own lands need not and should not discourage it from accommodating religious practices like those engaged in by the Indian respondents. The Government has taken numerous steps to minimize the impact that construction of the road will have on the Indians' religious activities -- such as choosing the route that best protects sites of specific rituals from adverse audible intrusions and planning steps to reduce the visual impact of the road on the surrounding country. Such solicitude accords with the policy and requirements of the American Indian Religious Freedom Act. Contrary to respondents' contention, however, that Act does not create any enforceable legal right that could authorize the District Court's injunction. Pp. 485 U. S. 453 -455. 795 F.2d 688, reversed and remanded. Page 485 U. S. 441 O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, STEVENS, and SCALIA, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and BLACKMUN, JJ., joined, post, p. 485 U. S. 458 . KENNEDY, J., took no part in the consideration or decision of the case. JUSTICE O'CONNOR delivered the opinion of the Court. This case requires us to consider whether the First Amendment's Free Exercise Clause prohibits the Government from permitting timber harvesting in, or constructing a road through, a portion of a National Forest that has traditionally Page 485 U. S. 442 been used for religious purposes by members of three American Indian tribes in northwestern California. We conclude that it does not. I As part of a project to create a paved 75-mile road linking two California towns, Gasquet and Orleans, the United States Forest Service has upgraded 49 miles of previously unpaved roads on federal land. In order to complete this project (the G-O road), the Forest Service must build a 6-mile paved segment through the Chimney Rock section of the Six Rivers National Forest. That section of the forest is situated between two other portions of the road that are already complete. In 1977, the Forest Service issued a draft environmental impact statement that discussed proposals for upgrading an existing unpaved road that runs through the Chimney Rock area. In response to comments on the draft statement, the Forest Service commissioned a study of American Indian cultural and religious sites in the area. The Hoopa Valley Indian Reservation adjoins the Six Rivers National Forest, and the Chimney Rock area has historically been used for religious purposes by Yurok, Karok, and Tolowa Indians. The commissioned study, which was completed in 1979, found that the entire area "is significant as an integral and indispensable part of Indian religious conceptualization and practice." App. 181. Specific sites are used for certain rituals, and "successful use of the [area] is dependent upon and facilitated by certain qualities of the physical environment, the most important of which are privacy, silence, and an undisturbed natural setting." Ibid. (footnote omitted). The study concluded that constructing a road along any of the available routes "would cause serious and irreparable damage to the sacred areas which are an integral and necessary part of the belief systems and lifeway of Northwest California Indian peoples." Id. at 182. Accordingly, the report recommended that the G-O road not be completed. Page 485 U. S. 443 In 1982, the Forest Service decided not to adopt this recommendation, and it prepared a final environmental impact statement for construction of the road. The Regional Forester selected a route that avoided archeological sites and was removed as far as possible from the sites used by contemporary Indians for specific spiritual activities. Alternative routes that would have avoided the Chimney Rock area altogether were rejected because they would have required the acquisition of private land, had serious soil stability problems, and would in any event have traversed areas having ritualistic value to American Indians. See id. at 217-218. At about the same time, the Forest Service adopted a management plan allowing for the harvesting of significant amounts of timber in this area of the forest. The management plan provided for one-half mile protective zones around all the religious sites identified in the report that had been commissioned in connection with the G-O road. After exhausting their administrative remedies, respondents -- an Indian organization, individual Indians, nature organizations and individual members of those organizations, and the State of California -- challenged both the roadbuilding and timber harvesting decisions in the United States District Court for the Northern District of California. Respondents claimed that the Forest Service's decisions violated the Free Exercise Clause, the Federal Water Pollution Control Act (FWPCA), 86 Stat. 896, as amended, 33 U.S.C. § 1251 et seq., the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. § 4321 et seq., several other federal statutes, and governmental trust responsibilities to Indians living on the Hoopa Valley Reservation. After a trial, the District Court issued a permanent injunction prohibiting the Government from constructing the Chimney Rock section of the G-O road or putting the timber harvesting management plan into effect. See Northwest Indian Cemetery Protective Assn. v. Peterson, 565 F. Supp. 586 (1983). The court found that both actions would violate Page 485 U. S. 444 the Free Exercise Clause because they "would seriously damage the salient visual, aural, and environmental qualities of the high country." Id. at 594-595. The court also found that both proposed actions would violate the FWPCA, and that the environmental impact statements for construction of the road were deficient under the NEPA. Finally, the court concluded that both projects would breach the Government's trust responsibilities to protect water and fishing rights reserved to the Hoopa Valley Indians. While an appeal was pending before the United States Court of Appeals for the Ninth Circuit, Congress enacted the California Wilderness Act of 1984, Pub.L. 98-425, 98 Stat. 1619. Under that statute, much of the property covered by the Forest Service's management plan is now designated a wilderness area, which means that commercial activities such as timber harvesting are forbidden. The statute exempts a narrow strip of land, coinciding with the Forest Service's proposed route for the remaining segment of the G-O road, from the wilderness designation. The legislative history indicates that this exemption was adopted "to enable the completion of the Gasquet-Orleans Road project if the responsible authorities so decide." S.Rep. No. 98-582, p. 29 (1984). The existing unpaved section of road, however, lies within the wilderness area, and is therefore now closed to general traffic. A panel of the Ninth Circuit affirmed in part. Northwest Indian Cemetery Protective Assn. v. Peterson, 795 F.2d 688 (1986). The panel unanimously rejected the District Court's conclusion that the Government's proposed actions would breach its trust responsibilities to Indians on the Hoopa Valley Reservation. The panel also vacated the injunction to the extent that it had been rendered moot by the California Wilderness Act, which now prevents timber harvesting in certain areas covered by the District Court's order. The District Court's decision, to the extent that it rested on statutory grounds, was otherwise unanimously affirmed Page 485 U. S. 445 By a divided decision, the District Court's constitutional ruling was also affirmed. Relying primarily on the Forest Service's own commissioned study, the majority found that construction of the Chimney Rock section of the G-O road would have significant, though largely indirect, adverse effects on Indian religious practices. The majority concluded that the Government had failed to demonstrate a compelling interest in the completion of the road, and that it could have abandoned the road without thereby creating "a religious preserve for a single group in violation of the establishment clause." Id. at 694. The majority apparently applied the same analysis to logging operations that might be carried out in portions of the Chimney Rock area not covered by the California Wilderness Act. See id. at 692-693 ("Because most of the high country has now been designated by Congress as a wilderness area, the issue of logging becomes less significant, although it does not disappear"). The dissenting judge argued that certain of the adverse effects on the Indian respondents' religious practices could be eliminated by less drastic measures than a ban on building the road, and that other actual or suggested adverse effects did not pose a serious threat to the Indians' religious practices. He also concluded that the injunction against timber harvesting needed to be reconsidered in light of the California Wilderness Act: "It is not clear whether the district court would have issued an injunction based upon the development of the remaining small parcels. Accordingly, I would remand to allow the district court to reevaluate its injunction in light of the Act." Id. at 704. II We begin by noting that the courts below did not articulate the bases of their decisions with perfect clarity. A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them. See Three Page 485 U. S. 446 Affiliated Tribes of Ft. Berthold Reservation v. Wold Engineering, P. C., 467 U. S. 138 , 467 U. S. 157 -158 (1984); see also, e.g., Jean v. Nelson, 472 U. S. 846 , 472 U. S. 854 (1985); Gulf Oil Co. v. Bernard, 452 U. S. 89 , 452 U. S. 99 (1981); Ashwander v. TVA, 297 U. S. 288 , 297 U. S. 346 -348 (1936) (Brandeis, J., concurring). This principle required the courts below to determine, before addressing the constitutional issue, whether a decision on that question could have entitled respondents to relief beyond that to which they were entitled on their statutory claims. If no additional relief would have been warranted, a constitutional decision would have been unnecessary, and therefore inappropriate. Neither the District Court nor the Court of Appeals explained or expressly articulated the necessity for their constitutional holdings. Were we persuaded that those holdings were unnecessary, we could simply vacate the relevant portions of the judgment below without discussing the merits of the constitutional issue. The structure and wording of the District Court's injunctive order, however, suggest that the statutory holdings would not have supported all the relief granted. The order is divided into four sections. Two of those sections deal with a 31,100-acre tract referred to as the Blue Creek Roadless Area. The injunction prohibits the Forest Service from engaging in timber harvesting or roadbuilding anywhere on the tract "unless and until" compliance with the NEPA and the FWPCA have been demonstrated. 565 F. Supp. at 606-607. The sections of the injunction dealing with the smaller Chimney Rock area ( i.e., the area affected by the First Amendment challenge) are worded differently. The Forest Service is permanently enjoined, without any qualifying language, from constructing the proposed portion of the G-O road "and/or any alternative route " through that area; similarly, the injunction forbids timber harvesting or the construction of logging roads in the Chimney Rock area pursuant to the Forest Service's proposed management plan "or any other land management plan. " Page 485 U. S. 447 Id. at 606 (emphasis added). These differences in wording suggest, without absolutely implying, that an injunction covering the Chimney Rock area would in some way have been conditional, or narrower in scope, if the District Court had not decided the First Amendment issue as it did. Similarly, the silence of the Court of Appeals as to the necessity of reaching the First Amendment issue may have reflected its understanding that the District Court's injunction necessarily rested in part on constitutional grounds. Because it appears reasonably likely that the First Amendment issue was necessary to the decisions below, we believe that it would be inadvisable to vacate and remand without addressing that issue on the merits. This conclusion is strengthened by considerations of judicial economy. The Government, which petitioned for certiorari on the constitutional issue alone, has informed us that it believes it can cure the statutory defects identified below, intends to do so, and will not challenge the adverse statutory rulings. Tr. of Oral Arg. 9-10. In this circumstance, it is difficult to see what principle would be vindicated by sending this case on what would almost certainly be a brief round trip to the courts below. III A The Free Exercise Clause of the First Amendment provides that "Congress shall make no law . . . prohibiting the free exercise [of religion]." It is undisputed that the Indian respondents' beliefs are sincere and that the Government's proposed actions will have severe adverse effects on the practice of their religion. Those respondents contend that the burden on their religious practices is heavy enough to violate the Free Exercise Clause unless the Government can demonstrate a compelling need to complete the G-O road or to engage in timber harvesting in the Chimney Rock area. We disagree. Page 485 U. S. 448 In Bowen v. Roy, 476 U. S. 693 (1986), we considered a challenge to a federal statute that required the States to use Social Security numbers in administering certain welfare programs. Two applicants for benefits under these programs contended that their religious beliefs prevented them from acceding to the use of a Social Security number for their 2-year-old daughter because the use of a numerical identifier would " rob the spirit' of [their] daughter and prevent her from attaining greater spiritual power." Id. at 476 U. S. 696 . Similarly, in this case, it is said that disruption of the natural environment caused by the G-O road will diminish the sacredness of the area in question and create distractions that will interfere with "training and ongoing religious experience of individuals using [sites within] the area for personal medicine and growth . . . and as integrated parts of a system of religious belief and practice which correlates ascending degrees of personal power with a geographic hierarchy of power." App. 181. Cf. id. at 178 ("Scarred hills and mountains, and disturbed rocks destroy the purity of the sacred areas, and [Indian] consultants repeatedly stressed the need of a training doctor to be undistracted by such disturbance"). The Court rejected this kind of challenge in Roy: "The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens. Just as the Government may not insist that [the Roys] engage in any set form of religious observance, so [they] may not demand that the Government join in their chosen religious practices by refraining from using a number to identify their daughter. . . ." ". . . The Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government's internal procedures." 476 U.S. at 476 U. S. 699 -700. Page 485 U. S. 449 The building of a road or the harvesting of timber on publicly owned land cannot meaningfully be distinguished from the use of a Social Security number in Roy. In both cases, the challenged Government action would interfere significantly with private persons' ability to pursue spiritual fulfillment according to their own religious beliefs. In neither case, however, would the affected individuals be coerced by the Government's action into violating their religious beliefs; nor would either governmental action penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens. We are asked to distinguish this case from Roy on the ground that the infringement on religious liberty here is "significantly greater," or on the ground that the Government practice in Roy was "purely mechanical," whereas this case involves "a case-by-case substantive determination as to how a particular unit of land will be managed." Brief for Indian Respondents 33-34. Similarly, we are told that this case can be distinguished from Roy because "the government action is not at some physically removed location where it places no restriction on what a practitioner may do." Brief for Respondent State of California 18. The State suggests that the Social Security number in Roy "could be characterized as interfering with Roy's religious tenets from a subjective point of view, where the government's conduct of 'its own internal affairs' was known to him only second-hand, and did not interfere with his ability to practice his religion." Id. at 19 (footnote omitted; internal citation omitted). In this case, however, it is said that the proposed road will "physically destro[y] the environmental conditions and the privacy without which the [religious] practices cannot be conducted." Ibid. These efforts to distinguish Roy are unavailing. This Court cannot determine the truth of the underlying beliefs that led to the religious objections here or in Roy, see Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136 , 480 U. S. 144 , n. 9 (1987), and accordingly cannot weigh the adverse effects Page 485 U. S. 450 on the appellees in Roy and compare them with the adverse effects on the Indian respondents. Without the ability to make such comparisons, we cannot say that the one form of incidental interference with an individual's spiritual activities should be subjected to a different constitutional analysis than the other. Respondents insist, nonetheless, that the courts below properly relied on a factual inquiry into the degree to which the Indians' spiritual practices would become ineffectual if the G-O road were built. They rely on several cases in which this Court has sustained free exercise challenges to government programs that interfered with individuals' ability to practice their religion. See Wisconsin v. Yoder, 406 U. S. 205 (1972) (compulsory school-attendance law); Sherbert v. Verner, 374 U. S. 398 (1963) (denial of unemployment benefits to applicant who refused to accept work requiring her to violate the Sabbath); Thomas v. Review Board, Indiana Employment Security Div., 450 U. S. 707 (1981) (denial of unemployment benefits to applicant whose religion forbade him to fabricate weapons); Hobbie, supra, (denial of unemployment benefits to religious convert who resigned position that required her to work on the Sabbath). Even apart from the inconsistency between Roy and respondents' reading of these cases, their interpretation will not withstand analysis. It is true that this Court has repeatedly held that indirect coercion or penalties on the free exercise of religion, not just outright prohibitions, are subject to scrutiny under the First Amendment. Thus, for example, ineligibility for unemployment benefits, based solely on a refusal to violate the Sabbath, has been analogized to a fine imposed on Sabbath worship. Sherbert, supra, at 374 U. S. 404 . This does not and cannot imply that incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs, require government to bring forward a compelling justification Page 485 U. S. 451 for its otherwise lawful actions. T he crucial word in the constitutional text is "prohibit": "For the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government." Sherbert, supra, at 374 U. S. 412 (Douglas, J., concurring). Whatever may be the exact line between unconstitutional prohibitions on the free exercise of religion and the legitimate conduct by government of its own affairs, the location of the line cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development. The Government does not dispute, and we have no reason to doubt, that the logging and roadbuilding projects at issue in this case could have devastating effects on traditional Indian religious practices. Those practices are intimately and inextricably bound up with the unique features of the Chimney Rock area, which is known to the Indians as the "high country." Individual practitioners use this area for personal spiritual development; some of their activities are believed to be critically important in advancing the welfare of the Tribe, and indeed, of mankind itself. The Indians use this area, as they have used it for a very long time, to conduct a wide variety of specific rituals that aim to accomplish their religious goals. According to their beliefs, the rituals would not be efficacious if conducted at other sites than the ones traditionally used, and too much disturbance of the area's natural state would clearly render any meaningful continuation of traditional practices impossible. To be sure, the Indians themselves were far from unanimous in opposing the G-O road, see App. 180, and it seems less than certain that construction of the road will be so disruptive that it will doom their religion. Nevertheless, we can assume that the threat to the efficacy of at least some religious practices is extremely grave. Even if we assume that we should accept the Ninth Circuit's prediction, according to which the G-O road will "virtually destroy the . . . Indians' ability to practice their religion," Page 485 U. S. 452 795 F.2d at 693 (opinion below), the Constitution simply does not provide a principle that could justify upholding respondents' legal claims. However much we might wish that it were otherwise, government simply could not operate if it were required to satisfy every citizen's religious needs and desires. A broad range of government activities -- from social welfare programs to foreign aid to conservation projects -- will always be considered essential to the spiritual wellbeing of some citizens, often on the basis of sincerely held religious beliefs. Others will find the very same activities deeply offensive, and perhaps incompatible with their own search for spiritual fulfillment and with the tenets of their religion. The First Amendment must apply to all citizens alike, and it can give to none of them a veto over public programs that do not prohibit the free exercise of religion. The Constitution does not, and courts cannot, offer to reconcile the various competing demands on government, many of them rooted in sincere religious belief, that inevitably arise in so diverse a society as ours. That task, to the extent that it is feasible, is for the legislatures and other institutions. Cf. The Federalist No. 10 (suggesting that the effects of religious factionalism are best restrained through competition among a multiplicity of religious sects). One need not look far beyond the present case to see why the analysis in Roy, but not respondents' proposed extension of Sherbert and its progeny, offers a sound reading of the Constitution. Respondents attempt to stress the limits of the religious servitude that they are now seeking to impose on the Chimney Rock area of the Six Rivers National Forest. While defending an injunction against logging operations and the construction of a road, they apparently do not at present object to the area's being used by recreational visitors, other Indians, or forest rangers. Nothing in the principle for which they contend, however, would distinguish this case from another lawsuit in which they (or similarly situated religious objectors) might seek to exclude all human activity but Page 485 U. S. 453 their own from sacred areas of the public lands. The Indian respondents insist that " [p]rivacy during the power quests is required for the practitioners to maintain the purity needed for a successful journey." Brief for Indian Respondents 8 (emphasis added; citation to record omitted). Similarly: "The practices conducted in the high country entail intense meditation and require the practitioner to achieve a profound awareness of the natural environment. Prayer seats are oriented so there is an unobstructed view, and the practitioner must be surrounded by undisturbed naturalness." Id. at 8, n. 4 (emphasis added; citations to record omitted). No disrespect for these practices is implied when one notes that such beliefs could easily require de facto beneficial ownership of some rather spacious tracts of public property. Even without anticipating future cases, the diminution of the Government's property rights, and the concomitant subsidy of the Indian religion, would in this case be far from trivial: the District Court's order permanently forbade commercial timber harvesting, or the construction of a two-lane road, anywhere within an area covering a full 27 sections ( i.e. more than 17,000 acres) of public land. The Constitution does not permit government to discriminate against religions that treat particular physical sites as sacred, and a law prohibiting the Indian respondents from visiting the Chimney Rock area would raise a different set of constitutional questions. Whatever rights the Indians may have to the use of the area, however, those rights do not divest the Government of its right to use what is, after all, its land. Cf. Bowen v. Roy, 476 U.S. at 476 U. S. 724 -727 (O'CONNOR, J., concurring in part and dissenting in part) (distinguishing between the Government's use of information in its possession and the Government's requiring an individual to provide such information). B Nothing in our opinion should be read to encourage governmental insensitivity to the religious needs of any citizen. Page 485 U. S. 454 The Government's rights to the use of its own land, for example, need not and should not discourage it from accommodating religious practices like those engaged in by the Indian respondents. Cf. Sherbert, 374 U.S. at 374 U. S. 422 -423 (Harlan, J., dissenting). It is worth emphasizing, therefore, that the Government has taken numerous steps in this very case to minimize the impact that construction of the G-O road will have on the Indians' religious activities. First, the Forest Service commissioned a comprehensive study of the effects that the project would have on the cultural and religious value of the Chimney Rock area. The resulting 423-page report was so sympathetic to the Indians' interests that it has constituted the principal piece of evidence relied on by respondents throughout this litigation. Although the Forest Service did not in the end adopt the report's recommendation that the project be abandoned, many other ameliorative measures were planned. No sites where specific rituals take place were to be disturbed. In fact, a major factor in choosing among alternative routes for the road was the relation of the various routes to religious sites: the route selected by the Regional Forester is, he noted, "the farthest removed from contemporary spiritual sites; thus, the adverse audible intrusions associated with the road would be less than all other alternatives." App. 102. Nor were the Forest Service's concerns limited to "audible intrusions." As the dissenting judge below observed, 10 specific steps were planned to reduce the visual impact of the road on the surrounding country. See 795 F.2d at 703 (Beezer, J., dissenting in part). Except for abandoning its project entirely, and thereby leaving the two existing segments of road to dead-end in the middle of a National Forest, it is difficult to see how the Government could have been more solicitous. Such solicitude accords with "the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions Page 485 U. S. 455 of the American Indian . . . including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites." American Indian Religious Freedom Act (AIRFA), Pub.L. 95-341, 92 Stat. 469, 42 U.S.C. § 1996. Respondents, however, suggest that AIRFA goes further, and in effect enacts their interpretation of the First Amendment into statutory law. Although this contention was rejected by the District Court, they seek to defend the judgment below by arguing that AIRFA authorizes the injunction against completion of the G-O road. This argument is without merit. After reciting several legislative findings, AIRFA "resolves" upon the policy quoted above. A second section of the statute, 92 Stat. 470, required an evaluation of federal policies and procedures, in consultation with native religious leaders, of changes necessary to protect and preserve the rights and practices in question. The required report dealing with this evaluation was completed and released in 1979. Reply Brief for Petitioners 2, n. 3. Nowhere in the law is there so much as a hint of any intent to create a cause of action or any judicially enforceable individual rights. What is obvious from the face of the statute is confirmed by numerous indications in the legislative history. The sponsor of the bill that became AIRFA, Representative Udall, called it "a sense of Congress joint resolution," aimed at ensuring that "the basic right of the Indian people to exercise their traditional religious practices is not infringed without a clear decision on the part of the Congress or the administrators that such religious practices must yield to some higher consideration." 124 Cong.Rec. 21444 (1978). Representative Udall emphasized that the bill would not "confer special religious rights on Indians," would "not change any existing State or Federal law," and in fact "has no teeth in it." Id. at 21444-21445. Page 485 U. S. 456 C The dissent proposes an approach to the First Amendment that is fundamentally inconsistent with the principles on which our decision rests. Notwithstanding the sympathy that we all must feel for the plight of the Indian respondents, it is plain that the approach taken by the dissent cannot withstand analysis. On the contrary, the path towards which it points us is incompatible with the text of the Constitution, with the precedents of this Court, and with a responsible sense of our own institutional role. The dissent begins by asserting that the "constitutional guarantee we interpret today . . . is directed against any form of government action that frustrates or inhibits religious practice." Post at 485 U. S. 459 (emphasis added). The Constitution, however, says no such thing. Rather, it states: "Congress shall make no law . . . prohibiting the free exercise [of religion]." U.S.Const., Amdt. 1 (emphasis added). As we explained above, Bowen v. Roy rejected a First Amendment challenge to Government activities that the religious objectors sincerely believed would " rob the spirit' of [their] daughter and prevent her from attaining greater spiritual power." See supra at 485 U. S. 448 (quoting Roy, 476 U.S. at 476 U. S. 696 ). The dissent now offers to distinguish that case by saying that the Government was acting there "in a purely internal manner," whereas land-use decisions "are likely to have substantial external effects." Post at 485 U. S. 470 . Whatever the source or meaning of the dissent's distinction, it has no basis in Roy. Robbing the spirit of a child, and preventing her from attaining greater spiritual power, is both a "substantial external effect" and one that is remarkably similar to the injury claimed by respondents in the case before us today. The dissent's reading of Roy would effectively overrule that decision, without providing any compelling justification for doing so. The dissent also misreads Wisconsin v. Yoder, 406 U. S. 205 (1972). The statute at issue in that case prohibited the Page 485 U. S. 457 Amish parents, on pain of criminal prosecution, from providing their children with the kind of education required by the Amish religion. Id. at 406 U. S. 207 -209, 406 U. S. 223 . The statute directly compelled the Amish to send their children to public high schools "contrary to the Amish religion and way of life." Id. at 406 U. S. 209 . The Court acknowledged that the statute might be constitutional, despite its coercive nature, if the State could show with sufficient "particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish." Id. at 406 U. S. 236 (citation omitted). The dissent's out-of-context quotations notwithstanding, there is nothing whatsoever in the Yoder opinion to support the proposition that the "impact" on the Amish religion would have been constitutionally problematic if the statute at issue had not been coercive in nature. Cf. post at 485 U. S. 466 . Perceiving a "stress point in the longstanding conflict between two disparate cultures," the dissent attacks us for declining to "balanc[e] these competing and potentially irreconcilable interests, choosing instead to turn this difficult task over to the Federal Legislature." Post at 485 U. S. 473 . Seeing the Court as the arbiter, the dissent proposes a legal test under which it would decide which public lands are "central" or "indispensable" to which religions, and by implication which are "dispensable" or "peripheral," and would then decide which government programs are "compelling" enough to justify "infringement of those practices." Post at 485 U. S. 475 . We would accordingly be required to weigh the value of every religious belief and practice that is said to be threatened by any government program. Unless a "showing of centrality,'" post at 485 U. S. 474 , is nothing but an assertion of centrality, see post at 485 U. S. 475 , the dissent thus offers us the prospect of this Court's holding that some sincerely held religious beliefs and practices are not "central" to certain religions, despite protestations to the contrary from the religious objectors who brought the lawsuit. In other words, the dissent's approach would Page 485 U. S. 458 require us to rule that some religious adherents misunderstand their own religious beliefs. We think such an approach cannot be squared with the Constitution or with our precedents, and that it would cast the Judiciary in a role that we were never intended to play. IV The decision of the court below, according to which the First Amendment precludes the Government from completing the G-O road or from permitting timber harvesting in the Chimney Rock area, is reversed. In order that the District Court's injunction may be reconsidered in light of this holding, and in the light of any other relevant events that may have intervened since the injunction issued, the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE KENNEDY took no part in the consideration or decision of this case. JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, dissenting. " [T]he Free Exercise Clause,'" the Court explains today, "`is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.'" Ante at 485 U. S. 451 (quoting Sherbert v. Verner, 374 U. S. 398 , 374 U. S. 412 (1963) (Douglas, J., concurring)). Pledging fidelity to this unremarkable constitutional principle, the Court nevertheless concludes that, even where the Government uses federal land in a manner that threatens the very existence of a Native American religion, the Government is simply not "doing" anything to the practitioners of that faith. Instead, the Court believes that Native Americans who request that the Government refrain from destroying their religion effectively seek to exact from the Government de facto beneficial ownership of federal property. These two astonishing conclusions follow naturally from the Court's determination Page 485 U. S. 459 that federal land use decisions that render the practice of a given religion impossible do not burden that religion in a manner cognizable under the Free Exercise Clause, because such decisions neither coerce conduct inconsistent with religious belief nor penalize religious activity. The constitutional guarantee we interpret today, however, draws no such fine distinctions between types of restraints on religious exercise, but rather is directed against any form of governmental action that frustrates or inhibits religious practice. Because the Court today refuses even to acknowledge the constitutional injury respondents will suffer, and because this refusal essentially leaves Native Americans with absolutely no constitutional protection against perhaps the gravest threat to their religious practices, I dissent. I For at least 200 years and probably much longer, the Yurok, Karok, and Tolowa Indians have held sacred an approximately 25-square-mile area of land situated in what is today the Blue Creek Unit of Six Rivers National Forest in northwestern California. As the Government readily concedes, regular visits to this area, known to respondent Indians as the "high country," have played and continue to play a "critical" role in the religious practices and rituals of these Tribes. Brief for Petitioners 3. Those beliefs, only briefly described in the Court's opinion, are crucial to a proper understanding of respondents' claims. As the Forest Service's commissioned study, the Theodoratus Report, explains, for Native Americans religion is not a discrete sphere of activity separate from all others, and any attempt to isolate the religious aspects of Indian life "is in reality an exercise which forces Indian concepts into non-Indian categories." App. 110; D. Theodoratus, Cultural Resources of the Chimney Rock Section, Gasquet-Orleans Road, Six Rivers National Forest (1979). Thus, for most Native Americans, "[t]he area of worship cannot be delineated from Page 485 U. S. 460 social, political, cultur[al], and other areas o[f] Indian lifestyle." American Indian Religious Freedom, Hearings on S. J. Res. 102 before the Senate Select Committee on Indian Affairs, 95th Cong., 2d Sess., 86 (1978) (statement of Barney Old Coyote, Crow Tribe). A pervasive feature of this lifestyle is the individual's relationship with the natural world; this relationship, which can accurately though somewhat incompletely be characterized as one of stewardship, forms the core of what might be called, for want of a better nomenclature, the Indian religious experience. While traditional Western religions view creation as the work of a deity "who institutes natural laws which then govern the operation of physical nature," tribal religions regard creation as an ongoing process in which they are morally and religiously obligated to participate. U.S. Federal Agencies Task Force, American Indian Religious Freedom Act Report 11 (1979) (Task Force Report). Native Americans fulfill this duty through ceremonies and rituals designed to preserve and stabilize the earth and to protect humankind from disease and other catastrophes. Failure to conduct these ceremonies in the manner and place specified, adherents believe, will result in great harm to the earth and to the people whose welfare depends upon it. Id. at 10. In marked contrast to traditional Western religions, the belief systems of Native Americans do not rely on doctrines, creeds, or dogmas. Established or universal truths -- the mainstay of Western religions -- play no part in Indian faith. Ceremonies are communal efforts undertaken for specific purposes in accordance with instructions handed down from generation to generation. Commentaries on or interpretations of the rituals themselves are deemed absolute violations of the ceremonies, whose value lies not in their ability to explain the natural world or to enlighten individual believers, but in their efficacy as protectors and enhancers of tribal existence. Ibid. Where dogma lies at the heart of Western religions, Native American faith is inextricably Page 485 U. S. 461 bound to the use of land. The site-specific nature of Indian religious practice derives from the Native American perception that land is itself a sacred, living being. See Suagee, American Indian Religious Freedom and Cultural Resources Management: Protecting Mother Earth's Caretakers, 10 Am.Ind.L.Rev. 1, 10 (1982). Rituals are performed in prescribed locations not merely as a matter of traditional orthodoxy, but because land, like all other living things, is unique, and specific sites possess different spiritual properties and significance. Within this belief system, therefore, land is not fungible; indeed, at the time of the Spanish colonization of the American Southwest, "all . . . Indians held in some form a belief in a sacred and indissoluble bond between themselves and the land in which their settlements were located." E. Spicer, Cycles of Conquest: The Impact of Spain, Mexico, and the United States on the Indians of the Southwest, 1533-1960, p. 576 (1962). For respondent Indians, the most sacred of lands is the high country where, they believe, prehuman spirits moved with the coming of humans to the Earth. Because these spirits are seen as the source of religious power, or "medicine," many of the tribes' rituals and practices require frequent journeys to the area. Thus, for example, religious leaders preparing for the complex of ceremonies that underlie the Tribes' World Renewal efforts must travel to specific sites in the high country in order to attain the medicine necessary for successful renewal. Similarly, individual tribe members may seek curative powers for the healing of the sick, or personal medicine for particular purposes such as good luck in singing, hunting, or love. A period of preparation generally precedes such visits, and individuals must select trails in the sacred area according to the medicine they seek and their abilities, gradually moving to increasingly more powerful sites, which are typically located at higher altitudes. Among the most powerful of sites are Chimney Rock, Doctor Rock, and Peak 8, all of which are elevated rock outcroppings. Page 485 U. S. 462 According to the Theodoratus Report, the qualities "of silence, the aesthetic perspective, and the physical attributes, are an extension of the sacredness of [each] particular site." App. 148. The act of medicine-making is akin to meditation: the individual must integrate physical, mental, and vocal actions in order to communicate with the prehuman spirits. As a result, "successful use of the high country is dependent upon and facilitated by certain qualities of the physical environment, the most important of which are privacy, silence, and an undisturbed natural setting." Id. at 181. Although few Tribe members actually make medicine at the most powerful sites, the entire Tribe's welfare hinges on the success of the individual practitioners. Beginning in 1972, the Forest Service began preparing a multiple-use management plan for the Blue Creek Unit. The plan's principal features included the harvesting of 733 million board feet of Douglas fir over an 80-year period and the completion of a 6-mile segment of paved road running between two northern California towns, Gasquet and Orleans (the G-O road). The road's primary purpose was to provide a route for hauling the timber harvested under the management plan; in addition, it would enhance public access to the Six Rivers and other national forests, and allow for more efficient maintenance and fire control by the Forest Service itself. In the mid-1970's, the Forest Service circulated draft environmental impact statements evaluating the effects of several proposed routes for the final segment of the G-O road, including at least two that circumnavigated the high country altogether. Ultimately, however, the Service settled on a route running along the Chimney Rock Corridor, which traverses the Indians' sacred lands. Respondent Indians brought suit to enjoin implementation of the plan, alleging that the road construction and timber harvesting would impermissibly interfere with their religious practices in violation of the Free Exercise Clause of the First Page 485 U. S. 463 Amendment. [ Footnote 1 ] Following a trial, the District Court granted the requested injunctive relief. The court found that "use of the high country is essential to [respondents'] 'World Renewal' ceremonies . . . which constitute the heart of the Northwest Indian religious belief system," and that "'[i]ntrusions on the sanctity of the Blue Creek high country are . . . potentially destructive of the very core of Northwest [Indian] religious beliefs and practices.'" Northwest Indian Cemetery Protective Assn. v. Peterson, 565 F. Supp. 586 , 594-595 (ND Cal.1983) (quoting the Theodoratus Report, at 420). Concluding that these burdens on respondents' religious practices were sufficient to trigger the protections of the Free Exercise Clause, the court found that the interests served by the G-O road and the management plan were insufficient to justify those burdens. In particular, the court found that the road would not improve access to timber resources in the Blue Creek Unit and indeed was unnecessary to the harvesting of that timber; that it would not significantly improve the administration of the Six Rivers National Forest; and that it would increase recreational access only marginally, and at the expense of the very pristine environment that makes the area suitable for primitive recreational use in the first place. 565 F. Supp. at 595-596. The court further found that the unconnected segments of the road had independent utility, [ Footnote 2 ] and that, although completion of the Page 485 U. S. 464 Chimney Rock segment would reduce timber hauling costs, it would not generate new jobs, but would, instead, merely shift work from one area of the region to another. Id. at 596. Finally, in enjoining the proposed harvesting activities, the court found that the Blue Creek Unit's timber resources were but a small fraction of those located in the entire National Forest, and that the local timber industry would not suffer seriously if access to this fraction were foreclosed. Ibid. While the case was pending on appeal before the Court of Appeals for the Ninth Circuit, Congress passed the California Wilderness Act of 1984, Pub.L. 98-425, 98 Stat. 1619, which designates most of the the Blue Creek Unit a wilderness area, and thus precludes logging and all other commercial activities in most of the area covered by the Forest Service's management plan. Thereafter, the Court of Appeals affirmed the District Court's determination that the proposed harvesting and construction activities violated respondents' constitutional rights. Recognizing that the high country is "indispensable" to the religious lives of the approximately 5,000 Tribe members who reside in the area, Northwest Indian Cemetery Protective Assn. v. Peterson, 795 F.2d 688, 692 (1986), the court concluded "that the proposed government operations would virtually destroy the . . . Indians' ability to practice their religion. " Id. at 693 (emphasis added). [ Footnote 3 ] Like the lower court, the Court of Appeals found Page 485 U. S. 465 the Government's interests in building the road and permitting limited timber harvesting -- interests which of course were considerably undermined by passage of the California Wilderness Act -- did not justify the destruction of respondents' religion. Id. at 695. II The Court does not for a moment suggest that the interests served by the G-O road are in any way compelling, or that they outweigh the destructive effect construction of the road will have on respondents' religious practices. Instead, the Court embraces the Government's contention that its prerogative as landowner should always take precedence over a claim that a particular use of federal property infringes religious practices. Attempting to justify this rule, the Court argues that the First Amendment bars only outright prohibitions, indirect coercion, and penalties on the free exercise of religion. All other "incidental effects of government programs," it concludes, even those "which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs," simply do not give rise to constitutional concerns. See ante at 485 U. S. 450 . Since our recognition nearly half a century ago that restraints on religious conduct implicate the concerns of the Free Exercise Clause, see Prince v. Massachusetts, 321 U. S. 158 (1944), we have never suggested that the protections of the guarantee are limited to so narrow a range of governmental burdens. The land use decision challenged here will restrain respondents from practicing their religion as surely and as completely as any of the governmental actions we have struck down in the past, and the Court's efforts simply to define away respondents' injury Page 485 U. S. 466 as nonconstitutional are both unjustified and ultimately unpersuasive. A The Court ostensibly finds support for its narrow formulation of religious burdens in our decisions in Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136 (1987), Thomas v. Review Bd., Indiana Employment Security Division, 450 U. S. 707 (1981), and Sherbert v. Verner, 374 U. S. 398 (1963). In those cases, the laws at issue forced individuals to choose between adhering to specific religious tenets and forfeiting unemployment benefits on the one hand, and accepting work repugnant to their religious beliefs on the other. The religions involved, therefore, lent themselves to the coercion analysis the Court espouses today, for they proscribed certain conduct such as munitions work ( Thomas ) or working on Saturdays ( Sherbert, Hobbie ) that the unemployment benefits laws effectively compelled. In sustaining the challenges to these laws, however, we nowhere suggested that such coercive compulsion exhausted the range of religious burdens recognized under the Free Exercise Clause. Indeed, in Wisconsin v. Yoder, 406 U. S. 205 (1972), we struck down a state compulsory school attendance law on free exercise grounds not so much because of the affirmative coercion the law exerted on individual religious practitioners, but because of "the impact that compulsory high school attendance could have on the continued survival of Amish communities." Id. at 406 U. S. 209 (emphasis added). Like respondents here, the Amish view life as pervasively religious and their faith accordingly dictates their entire lifestyle. See id. at 406 U. S. 210 . Detailed as their religious rules are, however, the parents in Yoder did not argue that their religion expressly proscribed public education beyond the eighth grade; rather, they objected to the law because "the values . . . of the modern secondary school are in sharp conflict with the fundamental mode of life mandated by the Amish religion." Id. at 406 U. S. 217 (emphasis added). By exposing Amish children "to a Page 485 U. S. 467 "worldly" influence in conflict with their beliefs," and by removing those children "from their community, physically and emotionally, during the crucial and formative adolescent period of life" when Amish beliefs are inculcated, id. at 406 U. S. 211 , the compulsory school law posed "a very real threat of undermining the Amish community and religious practice." Id. at 406 U. S. 218 . Admittedly, this threat arose from the compulsory nature of the law at issue, but it was the "impact" on religious practice itself, not the source of that impact, that led us to invalidate the law. I thus cannot accept the Court's premise that the form of the government's restraint on religious practice, rather than its effect, controls our constitutional analysis. Respondents here have demonstrated that construction of the G-O road will completely frustrate the practice of their religion, for, as the lower courts found, the proposed logging and construction activities will virtually destroy respondents' religion, and will therefore necessarily force them into abandoning those practices altogether. Indeed, the Government's proposed activities will restrain religious practice to a far greater degree here than in any of the cases cited by the Court today. None of the religious adherents in Hobbie, Thomas, and Sherbert, for example, claimed or could have claimed that the denial of unemployment benefits rendered the practice of their religions impossible; at most, the challenged laws made those practices more expensive. Here, in stark contrast, respondents have claimed -- and proved -- that the desecration of the high country will prevent religious leaders from attaining the religious power or medicine indispensable to the success of virtually all their rituals and ceremonies. Similarly, in Yoder, the compulsory school law threatened to "undermin[e] the Amish community and religious practice," and thus to force adherents to "abandon belief . . . or . . . to migrate to some other and more tolerant region." 406 U.S. at 406 U. S. 218 . Here the threat posed by the desecration of sacred lands that are indisputably essential to Page 485 U. S. 468 respondents' religious practices is both more direct and more substantial than that raised by a compulsory school law that simply exposed Amish children to an alien value system. And of course respondents here do not even have the option, however unattractive it might be, of migrating to more hospitable locales; the site-specific nature of their belief system renders it nontransportable. Ultimately, the Court's coercion test turns on a distinction between governmental actions that compel affirmative conduct inconsistent with religious belief, and those governmental actions that prevent conduct consistent with religious belief. In my view, such a distinction is without constitutional significance. The crucial word in the constitutional text, as the Court itself acknowledges, is "prohibit," see ante at 485 U. S. 451 , a comprehensive term that in no way suggests that the intended protection is aimed only at governmental actions that coerce affirmative conduct. [ Footnote 4 ] Nor does the Court's distinction comport with the principles animating the constitutional guarantee: religious freedom is threatened no less by governmental action that makes the practice of one's chosen faith impossible than by governmental programs that pressure one to engage in conduct inconsistent with religious beliefs. The Court attempts to explain the line it draws by arguing that the protections of the Free Exercise Clause "cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development," ibid., Page 485 U. S. 469 for in a society as diverse as ours, the Government cannot help but offend the "religious needs and desires" of some citizens. Ante at 485 U. S. 452 . While I agree that governmental action that simply offends religious sensibilities may not be challenged under the Clause, we have recognized that laws that affect spiritual development by impeding the integration of children into the religious community or by increasing the expense of adherence to religious principles -- in short, laws that frustrate or inhibit religious practice -- trigger the protections of the constitutional guarantee. Both common sense and our prior cases teach us, therefore, that governmental action that makes the practice of a given faith more difficult necessarily penalizes that practice, and thereby tends to prevent adherence to religious belief. The harm to the practitioners is the same regardless of the manner in which the government restrains their religious expression, and the Court's fear that an "effects" test will permit religious adherents to challenge governmental actions they merely find "offensive" in no way justifies its refusal to recognize the constitutional injury citizens suffer when governmental action not only offends, but actually restrains, their religious practices. Here, respondents have demonstrated that the Government's proposed activities will completely prevent them from practicing their religion, and such a showing, no less than those made out in Hobbie, Thomas, Sherbert, and Yoder, entitles them to the protections of the Free Exercise Clause. B Nor can I agree with the Court's assertion that respondents' constitutional claim is foreclosed by our decision in Bowen v. Roy, 476 U. S. 693 (1986). There, applicants for certain welfare benefits objected to the use of a Social Security number in connection with the administration of their 2-year-old daughter's application for benefits, contending that such use would "rob the [child's] spirit," and thus interfere with her spiritual development. In rejecting that challenge, Page 485 U. S. 470 we stated that "[t]he Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens." Id. at 476 U. S. 699 (emphasis added); see also id. at 716-717 (STEVENS, J., concurring in part) ("[T]he Free Exercise Clause does not give an individual the right to dictate the Government's method of recordkeeping"). Accordingly, we explained that Roy could "no more prevail on his religious objection to the Government's use of a Social Security number for his daughter than he could on a sincere religious objection to the size or color of the Government's filing cabinets. The Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government's internal procedures. " Id. at 476 U. S. 700 (emphasis added). Today the Court professes an inability to differentiate Roy from the present case, suggesting that "[t]he building of a road or the harvesting of timber on publicly owned land cannot meaningfully be distinguished from the use of a Social Security number." Ante at 485 U. S. 449 . I find this inability altogether remarkable. In Roy, we repeatedly stressed the "internal" nature of the Government practice at issue, noting that Roy objected to "the widespread use of the social security number by the federal or state governments in their computer systems, " 476 U.S. at 476 U. S. 697 (citation omitted; internal quotation marks omitted; emphasis added), we likened the use of such recordkeeping numbers to decisions concerning the purchase of office equipment. When the Government processes information, of course, it acts in a purely internal manner, and any free exercise challenge to such internal recordkeeping in effect seeks to dictate how the Government conducts its own affairs. Federal land use decisions, by contrast, are likely to have substantial external effects that government decisions concerning Page 485 U. S. 471 office furniture and information storage obviously will not, and they are correspondingly subject to public scrutiny and public challenge in a host of ways that office equipment purchases are not. [ Footnote 5 ] Indeed, in the American Indian Religious Freedom Act (AIRFA), 42 U.S.C. § 1996, Congress expressly recognized the adverse impact land use decisions and other governmental actions frequently have on the site-specific religious practices of Native Americans, and the Act accordingly directs agencies to consult with Native American religious leaders before taking actions that might impair those practices. Although I agree that the Act does not create any judicially enforceable rights, see ante at 485 U. S. 455 , the absence of any private right of action in no way undermines the statute's significance as an express congressional determination that federal land management decisions are not "internal" Government "procedures," but are instead governmental actions that can and indeed are likely to burden Native American religious practices. That such decisions should be subject to constitutional challenge, and potential constitutional limitations, should hardly come as a surprise. The Court today, however, ignores Roy's emphasis on the internal nature of the Government practice at issue there, Page 485 U. S. 472 and instead construes that case as further support for the proposition that governmental action that does not coerce conduct inconsistent with religious faith simply does not implicate the concerns of the Free Exercise Clause. That such a reading is wholly untenable, however, is demonstrated by the cruelly surreal result it produces here: governmental action that will virtually destroy a religion is nevertheless deemed not to "burden" that religion. Moreover, in AIRFA, Congress explicitly acknowledged that federal "policies and regulations" could and often did "intrud[e] upon [and] interfer[e] with" site-specific Native American religious ceremonies, Pub.L. 95-341, 92 Stat. 469, and in Roy we recognized that this Act -- "with its emphasis on protecting the freedom to believe, express, and exercise a religion -- accurately identifies the mission of the Free Exercise Clause itself." 476 U.S. at 476 U. S. 700 . Ultimately, in Roy we concluded that, however much the Government's recordkeeping system may have offended Roy's sincere religious sensibilities, he could not challenge that system under the Free Exercise Clause because the Government's practice did not "in any degree impair Roy's freedom to believe, express, and exercise ' his religion." Id. at 476 U. S. 700 -701 (quoting AIRFA, 42 U.S.C. § 1996) (emphasis added). That determination distinguishes the injury at issue here, which the Court finds so "remarkably similar" to Roy's , ante at 485 U. S. 456 , for respondents have made an uncontroverted showing that the proposed construction and logging activities will impair their freedom to exercise their religion in the greatest degree imaginable, and Congress has "accurately identifie[d]" such injuries as falling within the scope of the Free Exercise Clause. The Court's reading of Roy, therefore, simply cannot be squared with our endorsement -- in that very same case -- of this congressional determination. More important, it lends no support to the Court's efforts to narrow both the reach and promise of the Free Exercise Clause itself. Page 485 U. S. 473 C In the final analysis, the Court's refusal to recognize the constitutional dimension of respondents' injuries stems from its concern that acceptance of respondents' claim could potentially strip the Government of its ability to manage and use vast tracts of federal property. See ante at 485 U. S. 452 -453. In addition, the nature of respondents' site-specific religious practices raises the specter of future suits in which Native Americans seek to exclude all human activity from such areas. Ibid. These concededly legitimate concerns lie at the very heart of this case, which represents yet another stress point in the longstanding conflict between two disparate cultures -- the dominant Western culture, which views land in terms of ownership and use, and that of Native Americans, in which concepts of private property are not only alien, but contrary to a belief system that holds land sacred. Rather than address this conflict in any meaningful fashion, however, the Court disclaims all responsibility for balancing these competing and potentially irreconcilable interests, choosing instead to turn this difficult task over to the Federal Legislature. Such an abdication is more than merely indefensible as an institutional matter: by defining respondents' injury as "nonconstitutional," the Court has effectively bestowed on one party to this conflict the unilateral authority to resolve all future disputes in its favor, subject only to the Court's toothless exhortation to be "sensitive" to affected religions. In my view, however, Native Americans deserve -- and the Constitution demands -- more than this. Prior to today's decision, several Courts of Appeals had attempted to fashion a test that accommodates the competing "demands" placed on federal property by the two cultures. Recognizing that the Government normally enjoys plenary authority over federal lands, the Courts of Appeals required Native Americans to demonstrate that any land use decisions they challenged involved lands that were "central" or "indispensable" to their religious practices. See, e.g., Northwest Page 485 U. S. 474 Indian Cemetery Protective Assn. v. Peterson, 795 F.2d 688 (CA9 1986) (case below); Wilson v. Block, 228 U.S.App.D.C. 166, 708 F.2d 735, cert. denied, 464 U.S. 956 (1983); Badoni v. Higginson, 638 F.2d 172 (CA10 1980), cert. denied, 452 U.S. 954 (1981); Sequoyah v. TVA, 620 F.2d 1159 (CA6), cert. denied, 449 U.S. 953 (1980); Crow v. Gullet, 541 F. Supp. 785 (SD 1982), aff'd, 706 F.2d 856 (CA8), cert. denied, 464 U.S. 977 (1983). Although this requirement limits the potential number of free exercise claims that might be brought to federal land management decisions, and thus forestalls the possibility that the Government will find itself ensnared in a host of Lilliputian lawsuits, it has been criticized as inherently ethnocentric, for it incorrectly assumes that Native American belief systems ascribe religious significance to land in a traditionally Western hierarchical manner. See Michaelsen, American Indian Religious Freedom Litigation: Promise and Perils, 3 J. Law & Rel. 47 (1985); Pepper, Conundrum of the Free Exercise Clause -- Some Reflections on Recent Cases, 9 N.Ky.L.Rev. 265, 283-284 (1982). It is frequently the case in constitutional litigation, however, that courts are called upon to balance interests that are not readily translated into rough equivalents. At their most absolute, the competing claims that both the Government and Native Americans assert in federal land are fundamentally incompatible, and unless they are tempered by compromise, mutual accommodation will remain impossible. I believe it appropriate, therefore, to require some showing of "centrality" before the Government can be required either to come forward with a compelling justification for its proposed use of federal land or to forgo that use altogether. "Centrality," however, should not be equated with the survival or extinction of the religion itself. In Yoder, for example, we treated the objection to the compulsory school attendance of adolescents as "central" to the Amish faith even though such attendance did not prevent or otherwise render the practice of that religion impossible, and instead simply Page 485 U. S. 475 threatened to "undermine" that faith. Because of their perceptions of and relationship with the natural world, Native Americans consider all land sacred. Nevertheless, the Theodoratus Report reveals that respondents here deemed certain lands more powerful and more directly related to their religious practices than others. Thus, in my view, while Native Americans need not demonstrate, as respondents did here, that the Government's land use decision will assuredly eradicate their faith, I do not think it is enough to allege simply that the land in question is held sacred. Rather, adherents challenging a proposed use of federal land should be required to show that the decision poses a substantial and realistic threat of frustrating their religious practices. Once such a showing is made, the burden should shift to the Government to come forward with a compelling state interest sufficient to justify the infringement of those practices. The Court today suggests that such an approach would place courts in the untenable position of deciding which practices and beliefs are "central" to a given faith and which are not, and invites the prospect of judges advising some religious adherents that they "misunderstand their own religious beliefs." Ante at 485 U. S. 458 . In fact, however, courts need not undertake any such inquiries: like all other religious adherents, Native Americans would be the arbiters of which practices are central to their faith, subject only to the normal requirement that their claims be genuine and sincere. The question for the courts, then, is not whether the Native American claimants understand their own religion, but rather whether they have discharged their burden of demonstrating, as the Amish did with respect to the compulsory school law in Yoder, that the land use decision poses a substantial and realistic threat of undermining or frustrating their religious practices. Ironically, the Court's apparent solicitude for the integrity of religious belief and its desire to forestall the possibility that courts might second-guess the Page 485 U. S. 476 claims of religious adherents leads to far greater inequities than those the Court postulates: today's ruling sacrifices a religion at least as old as the Nation itself, along with the spiritual wellbeing of its approximately 5,000 adherents, so that the Forest Service can build a 6-mile segment of road that two lower courts found had only the most marginal and speculative utility, both to the Government itself and to the private lumber interests that might conceivably use it. Similarly, the Court's concern that the claims of Native Americans will place "religious servitudes" upon vast tracts of federal property cannot justify its refusal to recognize the constitutional injury respondents will suffer here. It is true, as the Court notes, that respondents' religious use of the high country requires privacy and solitude. The fact remains, however, that respondents have never asked the Forest Service to exclude others from the area. Should respondents or any other group seek to force the Government to protect their religious practices from the interference of private parties, such a demand would implicate not only the concerns of the Free Exercise Clause, but also those of the Establishment Clause as well. That case, however, is most assuredly not before us today, and in any event cannot justify the Court's refusal to acknowledge that the injuries respondents will suffer as a result of the Government's proposed activities are sufficient to state a constitutional cause of action. III Today, the Court holds that a federal land use decision that promises to destroy an entire religion does not burden the practice of that faith in a manner recognized by the Free Exercise Clause. Having thus stripped respondents and all other Native Americans of any constitutional protection against perhaps the most serious threat to their age-old religious practices, and indeed to their entire way of life, the Court assures us that nothing in its decision "should be read to encourage governmental insensitivity to the religious Page 485 U. S. 477 needs of any citizen." Ante at 485 U. S. 453 . I find it difficult, however, to imagine conduct more insensitive to religious needs than the Government's determination to build a marginally useful road in the face of uncontradicted evidence that the road will render the practice of respondents' religion impossible. Nor do I believe that respondents will derive any solace from the knowledge that, although the practice of their religion will become "more difficult" as a result of the Government's actions, they remain free to maintain their religious beliefs. Given today's ruling, that freedom amounts to nothing more than the right to believe that their religion will be destroyed. The safeguarding of such a hollow freedom not only makes a mockery of the "policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the[ir] traditional religions," ante at 485 U. S. 454 (quoting AIRFA), it fails utterly to accord with the dictates of the First Amendment. I dissent. [ Footnote 1 ] Respondent Indians were joined in this suit by the State of California as well as various environmental groups. For the sake of simplicity, I use the term "respondents" to refer exclusively to the affected Native American religious practitioners. [ Footnote 2 ] The Court overlooks this finding when it suggests that the only protective measure the Service did not take was the untenable one of "abandoning its project entirely, and thereby leaving the two existing segments of road to dead-end in the middle of a National Forest." Ante at 485 U. S. 454 . Far from finding that option untenable, the District Court expressly concluded that the segments had independent economic and administrative utility, and thus that past investments in the paved sections did not justify construction of the Chimney Rock segment. See 565 F. Supp. at 596. [ Footnote 3 ] Remarkably, the Court treats this factual determination as nothing more than an assumption or "prediction," ante at 451, and suggests that it is "less than certain that construction of the road will be so disruptive that it will doom [respondents'] religion." Ibid. Such speculation flies in the face of the most basic principles of appellate review, see Fed.Rule Civ.Proc. 52(a) ("Findings of fact . . . shall not be set aside unless clearly erroneous"), and is wholly at odds with the well-settled rule that this Court will not disturb findings of facts agreed upon by both lower courts unless those findings are clearly in error. United States v. Ceccolini, 435 U. S. 268 , 435 U. S. 273 (1978). Even if our review were not governed by such rules, however, the mere fact that a handful of the Native Americans who reside in the affected area do not oppose the road in no way casts doubt upon the validity of the lower courts' amply supported factual findings, particularly where the members of this minority did not indicate whether their lack of objection reflected their assessment of the religious significance of the high country or their own apathy towards religious matters generally. [ Footnote 4 ] The Court is apparently of the view that the term "prohibit" in the Free Exercise Clause somehow limits the constitutional protection such that it cannot possibly be understood to reach " any form of government action that frustrates or inhibits religious practice.'" Ante at 485 U. S. 456 (quoting supra at 485 U. S. 459 ) (emphasis added by majority). Although the dictionary is hardly the final word on the meaning of constitutional language, it is noteworthy that Webster's includes, as one of the two accepted definitions of "prohibit," "to prevent from doing something." Webster's Ninth New Collegiate Dictionary 940 (1983). Government action that frustrates or inhibits religious practice fits far more comfortably within this definition than does the Court's affirmative compulsion test. [ Footnote 5 ] Thus, for example, agencies proposing to use or permit activities on federal lands must comply with various public notice, consultation, and impact evaluation requirements imposed by the National Historic Preservation Act, 16 U.S.C. §§ 470f,470h-2(f); the Archaeological Resources Protection Act, 16 U.S.C. § 470aa et seq.; the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq.; the Wilderness Act, 16 U.S.C. § 1131 et seq.; and the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. Concededly, these statutes protect interests in addition to the religious interests Native Americans may have in a pristine environment, and of course the constitutional protection afforded those religious interests is not dependent upon these congressional enactments. Nevertheless, the laws stand as evidence, if indeed any were needed, that federal land use decisions are fundamentally different from government decisions concerning information management, and that, under Roy, this difference in external effects is of constitutional magnitude.

Here is a summary of the case: The US Supreme Court case *Lyng v. Northwest Indian Cemetery Protective Association* (1988) concerned a dispute over the construction of a paved road and timber harvesting in the Chimney Rock area of the Six Rivers National Forest, considered sacred by certain American Indians for religious rituals. The case was brought by an Indian organization, individual Indians, nature organizations, and the State of California against the US Forest Service, who had rejected recommendations to avoid constructing the road through the sacred area. The lower courts issued a permanent injunction, prohibiting the construction of the road and timber harvesting, citing violations of the Free Exercise Clause of the First Amendment and federal statutes. The Supreme Court, however, disagreed with the lower courts' interpretation of the First Amendment issue and found that the government's actions did not violate the respondents' religious freedom. The Court held that while the government's actions may have an impact on the respondents' ability to practice their religion, they did not prohibit or compel religious conduct and thus did not violate the Free Exercise Clause. The Court also addressed the issue of whether it was necessary to reach the First Amendment issue, given that the lower courts' decisions could have been based solely on statutory grounds. The Court suggested that the statutory holding may not have supported all the relief granted by the lower courts, indicating that the First Amendment issue was likely necessary to the decisions. Ultimately, the case highlights the complex interplay between religious freedom and government actions, particularly regarding land use decisions on federally owned lands.

Religion

Goldman v. Weinberger

https://supreme.justia.com/cases/federal/us/475/503/

U.S. Supreme Court Goldman v. Weinberger, 475 U.S. 503 (1986) Goldman v. Weinberger No. 84-1097 Argued January 14, 1986 Decided March 25, 1986 475 U.S. 503 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Syllabus Petitioner, an Orthodox Jew and ordained rabbi, was ordered not to wear a yarmulke while on duty and in uniform as a commissioned officer in the Air Force at March Air Force Base, pursuant to an Air Force regulation that provides that authorized headgear may be worn out of doors but that indoors "[h]eadgear [may] not be worn . . . except by armed security police in the performance of their duties." Petitioner then brought an action in Federal District Court, claiming that the application of the regulation to prevent him from wearing his yarmulke infringed upon his First Amendment freedom to exercise his religious beliefs. The District Court permanently enjoined the Air Force from enforcing the regulation against petitioner. The Court of Appeals reversed. Held: The First Amendment does not prohibit the challenged regulation from being applied to petitioner, even though its effect is to restrict the wearing of the headgear required by his religious beliefs. That Amendment does not require the military to accommodate such practices as wearing a yarmulke in the face of its view that they would detract from the uniformity sought by dress regulations. Here, the Air Force has drawn the line essentially between religious apparel that is visible and that which is not, and the challenged regulation reasonably and evenhandedly regulates dress in the interest of the military's perceived need for uniformity. Pp. 475 U. S. 506 -510. 236 U.S.App.D.C. 248, 734 F.2d 1531, affirmed. REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, and STEVENS, JJ joined. STEVENS, J filed a concurring opinion, in which WHITE and POWELL, JJ., joined, post, p. 475 U. S. 510 . BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 475 U. S. 513 . BLACKMUN, J., filed a dissenting opinion, post, p. 475 U. S. 524 . O'CONNOR, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 475 U. S. 528 . Page 475 U. S. 504 JUSTICE REHNQUIST delivered the opinion of the Court. Petitioner S. Simcha Goldman contends that the Free Exercise Clause of the First Amendment to the United States Constitution permits him to wear a yarmulke while in uniform, notwithstanding an Air Force regulation mandating uniform dress for Air Force personnel. The District Court for the District of Columbia permanently enjoined the Air Force from enforcing its regulation against petitioner and from penalizing him for wearing his yarmulke. The Court of Appeals for the District of Columbia Circuit reversed on the ground that the Air Force's strong interest in discipline justified the strict enforcement of its uniform dress requirements. We granted certiorari because of the importance of the question, 472 U.S. 1016 (1985), and now affirm. Petitioner Goldman is an Orthodox Jew and ordained rabbi. In 1973, he was accepted into the Armed Forces Health Professions Scholarship Program and placed on inactive reserve status in the Air Force while he studied clinical psychology at Loyola University of Chicago. During his three years in the scholarship program, he received a monthly stipend and an allowance for tuition, books, and fees. After completing his Ph.D. in psychology, petitioner Page 475 U. S. 505 entered active service in the United States Air Force as a commissioned officer, in accordance with a requirement that participants in the scholarship program serve one year of active duty for each year of subsidized education. Petitioner was stationed at March Air Force Base in Riverside, California, and served as a clinical psychologist at the mental health clinic on the base. Until 1981, petitioner was not prevented from wearing his yarmulke on the base. He avoided controversy by remaining close to his duty station in the health clinic and by wearing his service cap over the yarmulke when out of doors. But in April, 1981, after he testified as a defense witness at a court-martial wearing his yarmulke but not his service cap, opposing counsel lodged a complaint with Colonel Joseph Gregory, the Hospital Commander, arguing that petitioner's practice of wearing his yarmulke was a violation of Air Force Regulation (AFR) 35-10. This regulation states in pertinent part that "[h]eadgear will not be worn . . . [w]hile indoors except by armed security police in the performance of their duties." AFR 35-10, � 1-6.h(2)(f) (1980). Colonel Gregory informed petitioner that wearing a yarmulke while on duty does indeed violate AFR 35-10, and ordered him not to violate this regulation outside the hospital. Although virtually all of petitioner's time on the base was spent in the hospital, he refused. Later, after petitioner's attorney protested to the Air Force General Counsel, Colonel Gregory revised his order to prohibit petitioner from wearing the yarmulke even in the hospital. Petitioner's request to report for duty in civilian clothing pending legal resolution of the issue was denied. The next day, he received a formal letter of reprimand, and was warned that failure to obey AFR 35-10 could subject him to a court-martial. Colonel Gregory also withdrew a recommendation that petitioner's application to extend the term of his active service be approved, and substituted a negative recommendation. Page 475 U. S. 506 Petitioner then sued respondent Secretary of Defense and others, claiming that the application of AFR 35-10 to prevent him from wearing his yarmulke infringed upon his First Amendment freedom to exercise his religious beliefs. The United States District Court for the District of Columbia preliminarily enjoined the enforcement of the regulation, Goldman v. Secretary of Defense, 530 F. Supp. 12 (1981), and then, after a full hearing, permanently enjoined the Air Force from prohibiting petitioner from wearing a yarmulke while in uniform. Goldman v. Secretary of Defense, 29 EPD � 32,753 (1982). Respondents appealed to the Court of Appeals for the District of Columbia Circuit, which reversed. Goldman v. Secretary of Defense, 236 U.S.App.D.C. 248, 734 F.2d 1531 (1984). As an initial matter, the Court of Appeals determined that the appropriate level of scrutiny of a military regulation that clashes with a constitutional right is neither strict scrutiny nor rational basis. Id. at 252, 734 F.2d at 1535-1536. Instead, it held that a military regulation must be examined to determine whether "legitimate military ends are sought to be achieved," id. at 253, 734 F.2d at 1536, and whether it is "designed to accommodate the individual right to an appropriate degree." Ibid. Applying this test, the court concluded that "the Air Force's interest in uniformity renders the strict enforcement of its regulation permissible." Id. at 257, 734 F.2d at 1540. The full Court of Appeals denied a petition for rehearing en banc, with three judges dissenting. 238 U.S.App.D.C. 267, 739 F.2d 657 (1984). Petitioner argues that AFR 35-10, as applied to him, prohibits religiously motivated conduct, and should therefore be analyzed under the standard enunciated in Sherbert v. Verner, 374 U. S. 398 , 374 U. S. 406 (1963). See also Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 (1981); Wisconsin v. Yoder, 406 U. S. 205 (1972). But we have repeatedly held that "the military is, by necessity, a specialized society separate from civilian society." Page 475 U. S. 507 Parker v. Levy, 417 U. S. 733 , 417 U. S. 743 (1974). See also Chappell v. Wallace, 462 U. S. 296 , 462 U. S. 300 (1983); Schlesinger v. Councilman, 420 U. S. 738 , 420 U. S. 757 (1975); Orloff v. Willoughby, 345 U. S. 83 , 345 U. S. 94 (1953). "[T]he military must insist upon a respect for duty and a discipline without counterpart in civilian life," Schlesinger v. Councilman, supra, at 420 U. S. 757 , in order to prepare for and perform its vital role. See also Brown v. Glines, 444 U. S. 348 , 354 (1980). Our review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society. The military need not encourage debate or tolerate protest to the extent that such tolerance is required of the civilian state by the First Amendment; to accomplish its mission, the military must foster instinctive obedience, unity, commitment, and esprit de corps. See, e.g., Chappell v. Wallace, supra, at 462 U. S. 300 ; Greer v. Spock, 424 U. S. 828 , 424 U. S. 843 -844 (1976) (POWELL, J., concurring); Parker v. Levy, supra, at 417 U. S. 744 . The essence of military service "is the subordination of the desires and interests of the individual to the needs of the service." Orloff v. Willoughby, supra, at 345 U. S. 92 . These aspects of military life do not, of course, render entirely nugatory in the military context the guarantees of the First Amendment. See, e.g., Chappell v. Wallace, supra, at 462 U. S. 304 . But "within the military community, there is simply not the same [individual] autonomy as there is in the larger civilian community." Parker v. Levy, supra, at 417 U. S. 751 . In the context of the present case, when evaluating whether military needs justify a particular restriction on religiously motivated conduct, courts must give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest. See Chappell v. Wallace, supra, at 462 U. S. 305 ; Orloff v. Willoughby, supra, 345 U. S. 93 -94. Not only are courts " ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have,'" Chappell v. Wallace, Page 475 U. S. 508 supra, at 462 U. S. 305 , quoting Warren, The Bill of Rights and the Military, 37 N.Y.U.L.Rev. 181, 187 (1962), but the military authorities have been charged by the Executive and Legislative Branches with carrying out our Nation's military policy. "[J]udicial deference . . . is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged." Rostker v. Goldberg, 453 U. S. 57 , 453 U. S. 70 (1981). The considered professional judgment of the Air Force is that the traditional outfitting of personnel in standardized uniforms encourages the subordination of personal preferences and identities in favor of the overall group mission. Uniforms encourage a sense of hierarchical unity by tending to eliminate outward individual distinctions except for those of rank. The Air Force considers them as vital during peacetime as during war, because its personnel must be ready to provide an effective defense on a moment's notice; the necessary habits of discipline and unity must be developed in advance of trouble. We have acknowledged that "[t]he inescapable demands of military discipline and obedience to orders cannot be taught on battlefields; the habit of immediate compliance with military procedures and orders must be virtually reflex, with no time for debate or reflection." Chappell v. Wallace, supra, at 462 U. S. 300 . To this end, the Air Force promulgated AFR 35-10, a 190-page document, which states that "Air Force members will wear the Air Force uniform while performing their military duties, except when authorized to wear civilian clothes on duty." AFR 35-10, � 1-6 (1980). The rest of the document describes in minute detail all of the various items of apparel that must be worn as part of the Air Force uniform. It authorizes a few individualized options with respect to certain pieces of jewelry and hairstyle, but even these are subject to severe limitations. See AFR 35-10, Table 1-1, and � 1-12.b(1)(b) (1980). In general, authorized headgear may Page 475 U. S. 509 be worn only out of doors. See AFR 35-10, � 1-6.h (1980). Indoors, "[h]eadgear [may] not be worn . . . except by armed security police in the performance of their duties." AFR 35-10, � 1-6.h(2)(f) (1980). A narrow exception to this rule exists for headgear worn during indoor religious ceremonies. See AFR 35-10, � 1-6.h(2)(d) (1980). In addition, military commanders may in their discretion permit visible religious headgear and other such apparel in designated living quarters and nonvisible items generally. See Department of Defense Directive 1300.17 (June 18, 1985). Petitioner Goldman contends that the Free Exercise Clause of the First Amendment requires the Air Force to make an exception to its uniform dress requirements for religious apparel unless the accouterments create a "clear danger" of undermining discipline and esprit de corps. He asserts that, in general, visible but "unobtrusive" apparel will not create such a danger, and must therefore be accommodated. He argues that the Air Force failed to prove that a specific exception for his practice of wearing an unobtrusive yarmulke would threaten discipline. He contends that the Air Force's assertion to the contrary is mere ipse dixit, with no support from actual experience or a scientific study in the record, and is contradicted by expert testimony that religious exceptions to AFR 35-10 are in fact desirable, and will increase morale by making the Air Force a more humane place. But whether or not expert witnesses may feel that religious exceptions to AFR 35-10 are desirable is quite beside the point. The desirability of dress regulations in the military is decided by the appropriate military officials, and they are under no constitutional mandate to abandon their considered professional judgment. Quite obviously, to the extent the regulations do not permit the wearing of religious apparel such as a yarmulke, a practice described by petitioner as silent devotion akin to prayer, military life may be more objectionable for petitioner and probably others. But the First Amendment does not require the military to accommodate Page 475 U. S. 510 such practices in the face of its view that they would detract from the uniformity sought by the dress regulations. The Air Force has drawn the line essentially between religious apparel that is visible and that which is not, and we hold that those portions of the regulations challenged here reasonably and evenhandedly regulate dress in the interest of the military's perceived need for uniformity. The First Amendment therefore does not prohibit them from being applied to petitioner, even though their effect is to restrict the wearing of the headgear required by his religious beliefs. The judgment of the Court of Appeals is Affirmed. JUSTICE STEVENS, with whom JUSTICE WHITE and JUSTICE POWELL join, concurring. Captain Goldman presents an especially attractive case for an exception from the uniform regulations that are applicable to all other Air Force personnel. His devotion to his faith is readily apparent. The yarmulke is a familiar and accepted sight. [ Footnote 1 ] In addition to its religious significance for the wearer, the yarmulke may evoke the deepest respect and admiration -- the symbol of a distinguished tradition [ Footnote 2 ] and an Page 475 U. S. 511 eloquent rebuke to the ugliness of anti-Semitism. [ Footnote 3 ] Captain Goldman's military duties are performed in a setting in which a modest departure from the uniform regulation creates almost no danger of impairment of the Air Force's military mission. Moreover, on the record before us, there is reason to believe that the policy of strict enforcement against Captain Goldman had a retaliatory motive -- he had worn his yarmulke while testifying on behalf of a defendant in a court-martial proceeding. [ Footnote 4 ] Nevertheless, as the case has been argued, [ Footnote 5 ] Page 475 U. S. 512 I believe we must test the validity of the Air Force's rule not merely as it applies to Captain Goldman, but also as it applies to all service personnel who have sincere religious beliefs that may conflict with one or more military commands. JUSTICE BRENNAN is unmoved by the Government's concern that, "while a yarmulke might not seem obtrusive to a Jew, neither does a turban to a Sikh, a saffron robe to a Satchidananda Ashram-Integral Yogi, nor do dreadlocks to a Rastafarian." Post at 475 U. S. 519 . He correctly points out that "turbans, saffron robes, and dreadlocks are not before us in this case," and then suggests that other cases may be fairly decided by reference to a reasonable standard based on "functional utility, health and safety considerations, and the goal of a polished, professional appearance." Ibid. As the Court has explained, this approach attaches no weight to the separate interest in uniformity itself. Because professionals in the military service attach great importance to that plausible interest, it is one that we must recognize as legitimate and rational even though personal experience or admiration for the performance of the "rag-tag band of soldiers" that won us our freedom in the Revolutionary War might persuade us that the Government has exaggerated the importance of that interest. The interest in uniformity, however, has a dimension that is of still greater importance for me. It is the interest in uniform treatment for the members of all religious faiths. The very strength of Captain Goldman's claim creates the danger that a similar claim on behalf of a Sikh or a Rastafarian might readily be dismissed as "so extreme, so unusual, or so faddish an image that public confidence in his ability to perform his duties will be destroyed." Post at 475 U. S. 518 . If exceptions from dress code regulations are to be granted on the basis of a multifactored test such as that proposed by JUSTICE BRENNAN, inevitably the decisionmaker's evaluation of the character Page 475 U. S. 513 and the sincerity of the requester's faith -- as well as the probable reaction of the majority to the favored treatment of a member of that faith -- will play a critical part in the decision. For the difference between a turban or a dreadlock on the one hand, and a yarmulke on the other, is not merely a difference in "appearance" -- it is also the difference between a Sikh or a Rastafarian, on the one hand, and an Orthodox Jew on the other. The Air Force has no business drawing distinctions between such persons when it is enforcing commands of universal application. [ Footnote 6 ] As the Court demonstrates, the rule that is challenged in this case is based on a neutral, completely objective standard -- visibility. It was not motivated by hostility against, or any special respect for, any religious faith. An exception for yarmulkes would represent a fundamental departure from the true principle of uniformity that supports that rule. For that reason, I join the Court's opinion and its judgment. [ Footnote 1 ] Captain Goldman states in his brief "Yarmulkes are generally understood to be a form of religious observance. They are commonly seen and accepted in today's society wherever Orthodox Jews are found. University Campuses -- particularly on the East Coast -- have substantial numbers of young men who wear yarmulkes. On the streets of New York City, Los Angeles, Chicago, or Miami, yarmulkes are commonplace. They are increasingly visible in centers of commerce, including retail businesses, brokerage houses, and stock exchanges. Attorneys wearing yarmulkes can be found in the state and federal courthouses of New York, and attorneys wearing yarmulkes have been permitted to sit in the Bar Section of this Court and attend oral arguments." Brief for Petitioner 11. [ Footnote 2 ] In dissenting from the Court of Appeals' denial of rehearing en banc, Judge Starr was moved to describe the yarmulke as the "symbol of [a] faith whose roots are as deep and venerable as Western civilization itself " and the "symbol of a great faith from which Western morality and the Judaeo-Christian tradition have arisen." 238 U.S.App.D.C. 267, 268, 739 F.2d 657, 658 (1984). [ Footnote 3 ] Cf. N. Belth, A Promise to Keep (1979) (recounting history of anti-Semitism in the United States). The history of intolerance in our own country can be glimpsed by reviewing Justice Story's observation that the purpose of the First Amendment was "not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity, but to exclude all rivalry among Christian sects," 2 J. Story, Commentaries on the Constitution of the United States § 1877, p. 594 (1851) -- a view that the Court has, of course, explicitly rejected. See Wallace v. Jaffree, 472 U. S. 38 , 472 U. S. 52 -55 (1985). [ Footnote 4 ] Before the testimony at the court-martial that provoked this confrontation, Captain Goldman had received extremely high ratings in his performance evaluations. App. 214-225. Indeed, one of the evaluators noted: "He maintains appropriate military dress and bearing." Id. at 217. Although the Air Force stated that an officer had received one or two complaints about Captain Goldman's wearing of the yarmulke, id. at 15, 22, no complaint was acted upon until the court-martial incident. See Goldman v. Secretary of Defense, 29 EPD � 32,753, p. 25,539 (1982) (District Court finding that, until the court-martial, "no objection was raised to Goldman's wearing his yarmulke while in uniform"). [ Footnote 5 ] Captain Goldman has mounted a broad challenge to the prohibition on visible religious wear as it applies to yarmulkes. He has not argued the far narrower ground that, even if the general prohibition is valid, its application in his case was retaliatory and impermissible. See, e.g., Brief for Petitioner i (stating the Question Presented as "Whether the Air Force may constitutionally prohibit an Orthodox Jewish psychologist from wearing a yarmulke' -- an unobtrusive skullcap which is part of his religious observance -- while he is in uniform on duty at a military hospital"); id. at 8 ("The Air Force's asserted grounds for barring yarmulkes are patently unsound. . . . Indeed, the symbolic significance of our Nation's military services and the educational role of the military in teaching the young defenders of our country the principles of liberty require acceptance of petitioner's religious observance"). [ Footnote 6 ] See United States v. Lee, 455 U. S. 252 , 455 U. S. 263 , n. 2 (1982) (STEVENS, J., concurring in judgment) ("In my opinion, the principal reason for adopting a strong presumption against such claims is not a matter of administrative convenience. It is the overriding interest in keeping the government -- whether it be the legislature or the courts -- out of the business of evaluating the relative merits of differing religious claims"). Cf. Wallace v. Jaffree, 472 U.S. at 472 U. S. 60 (referring to "the established principle that the government must pursue a course of complete neutrality toward religion"); Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756 , 413 U. S. 792 -793 (1973) ("A proper respect for both the Free Exercise and the Establishment Clauses compels the State to pursue a course of neutrality' toward religion"); Abington School District v. Schempp, 374 U. S. 203 , 374 U. S. 226 (1963) ("In the relationship between man and religion, the State is firmly committed to a position of neutrality"). JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting. Simcha Goldman invokes this Court's protection of his First Amendment right to fulfill one of the traditional religious obligations of a male Orthodox Jew -- to cover his head before an onmipresent God. The Court's response to Goldman's Page 475 U. S. 514 request is to abdicate its role as principal expositor of the Constitution and protector of individual liberties in favor of credulous deference to unsupported assertions of military necessity. I dissent. I In ruling that the paramount interests of the Air Force override Dr. Goldman's free exercise claim, the Court overlooks the sincere and serious nature of his constitutional claim. It suggests that the desirability of certain dress regulations, rather than a First Amendment right, is at issue. The Court declares that, in selecting dress regulations, "military officials . . . are under no constitutional mandate to abandon their considered professional judgment." Ante at 475 U. S. 509 . If Dr. Goldman wanted to wear a hat to keep his head warm or to cover a bald spot, I would join the majority. Mere personal preferences in dress are not constitutionally protected. The First Amendment, however, restrains the Government's ability to prevent an Orthodox Jewish serviceman from, or punish him for, wearing a yarmulke. [ Footnote 2/1 ] The Court also attempts, unsuccessfully, to minimize the burden that was placed on Dr. Goldman's rights. The fact that "the regulations do not permit the wearing of . . . a yarmulke," does not simply render military life for observant Orthodox Jews "objectionable." Ibid. It sets up an almost absolute bar to the fulfillment of a religious duty. Dr. Goldman spent most of his time in uniform indoors, where the dress code forbade him even to cover his head with his service cap. Consequently, he was asked to violate the tenets of his faith virtually every minute of every workday. II A Dr. Goldman has asserted a substantial First Amendment claim, which is entitled to meaningful review by this Court. Page 475 U. S. 515 The Court, however, evades its responsibility by eliminating, in all but name only, judicial review of military regulations that interfere with the fundamental constitutional rights of service personnel. Our cases have acknowledged that, in order to protect our treasured liberties, the military must be able to command service members to sacrifice a great many of the individual freedoms they enjoyed in the civilian community, and to endure certain limitations on the freedoms they retain. See, e.g., Brown v. Glines, 444 U. S. 348 , 444 U. S. 354 -357 (1980); Greer v. Spock, 424 U. S. 828 , 424 U. S. 848 (1976) (POWELL, J., concurring); Parker v. Levy, 417 U. S. 733 , 417 U. S. 743 -744, 417 U. S. 751 (1974). Notwithstanding this acknowledgment, we have steadfastly maintained that " our citizens in uniform may not be stripped of basic rights simply because they have doffed their civilian clothes.'" Chappell v. Wallace, 462 U. S. 296 , 462 U. S. 304 (1983) (quoting Warren, The Bill of Rights and the Military, 37 N.Y.U.L.Rev. 181, 188 (1962)); see also Glines, supra, at 444 U. S. 354 . And, while we have hesitated, due to our lack of expertise concerning military affairs and our respect for the delegated authority of a coordinate branch, to strike down restrictions on individual liberties which could reasonably be justified as necessary to the military's vital function, see, e.g., Rostker v. Goldberg, 453 U. S. 57 , 453 U. S. 66 -67 (1981) (citing cases), we have never abdicated our obligation of judicial review. See, e.g., id. at 453 U. S. 67 . Today the Court eschews its constitutionally mandated role. It adopts for review of military decisions affecting First Amendment rights a subrational basis standard -- absolute, uncritical "deference to the professional judgment of military authorities." Ante at 475 U. S. 507 . If a branch of the military declares one of its rules sufficiently important to outweigh a service person's constitutional rights, it seems that the Court will accept that conclusion, no matter how absurd or unsupported it may be. Page 475 U. S. 516 A deferential standard of review, however, need not, and should not, mean that the Court must credit arguments that defy common sense. When a military service burdens the free exercise rights of its members in the name of necessity, it must provide, as an initial matter and at a minimum, a credible explanation of how the contested practice is likely to interfere with the proffered military interest. [ Footnote 2/2 ] Unabashed ipse dixit cannot outweigh a constitutional right. In the present case, the Air Force asserts that its interests in discipline and uniformity would be undermined by an exception to the dress code permitting observant male Orthodox Jews to wear yarmulkes. The Court simply restates these assertions without offering any explanation how the exception Dr. Goldman requests reasonably could interfere with the Air Force's interests. Had the Court given actual consideration to Goldman's claim, it would have been compelled to decide in his favor. B 1 The Government maintains in its brief that discipline is jeopardized whenever exceptions to military regulations are granted. Service personnel must be trained to obey even the most arbitrary command reflexively. Non-Jewish personnel will perceive the wearing of a yarmulke by an Orthodox Jew as an unauthorized departure from the rules, and will begin to question the principle of unswerving obedience. Thus shall our fighting forces slip down the treacherous slope Page 475 U. S. 517 toward unkempt appearance, anarchy, and, ultimately, defeat at the hands of our enemies. The contention that the discipline of the Armed Forces will be subverted if Orthodox Jews are allowed to wear yarmulkes with their uniforms surpasses belief. It lacks support in the record of this case, and the Air Force offers no basis for it as a general proposition. While the perilous slope permits the services arbitrarily to refuse exceptions requested to satisfy mere personal preferences, before the Air Force may burden free exercise rights, it must advance, at the very least, a rational reason for doing so. Furthermore, the Air Force cannot logically defend the content of its rule by insisting that discipline depends upon absolute adherence to whatever rule is established. If, as General Usher admitted at trial, App. 52, the dress code codified religious exemptions from the "no-headgear-indoors" regulation, then the wearing of a yarmulke would be sanctioned by the code, and could not be considered an unauthorized deviation from the rules. 2 The Government also argues that the services have an important interest in uniform dress, because such dress establishes the preeminence of group identity, thus fostering esprit de corps and loyalty to the service that transcends individual bonds. In its brief, the Government characterizes the yarmulke as an assertion of individuality and as a badge of religious and ethnic identity, strongly suggesting that, as such, it could drive a wedge of divisiveness between members of the services. First, the purported interests of the Air Force in complete uniformity of dress and in elimination of individuality or visible identification with any group other than itself are belied by the service's own regulations. The dress code expressly abjures the need for total uniformity: Page 475 U. S. 518 "(1) The American public and its elected representatives draw certain conclusions on military effectiveness based on what they see; that is, the image the Air Force presents. The image must instill public confidence and leave no doubt that the service member lives by a common standard and responds to military order and discipline." "(2) Appearance in uniform is an important part of this image. . . . Neither the Air Force nor the public expects absolute uniformity of appearance. Each member has the right, within limits, to express individuality through his or her appearance. However, the image of a disciplined service member who can be relied on to do his or her job excludes the extreme, the unusual, and the fad." AFR 35-10, �� 1-12a(1) and (2) (1978). [ Footnote 2/3 ] It cannot be seriously contended that a serviceman in a yarmulke presents so extreme, so unusual, or so faddish an image that public confidence in his ability to perform his duties will be destroyed. Under the Air Force's own standards, then, Dr. Goldman should have and could have been granted an exception to wear his yarmulke. The dress code also allows men to wear up to three rings and one identification bracelet of "neat and conservative," but nonuniform, design. AFR 35-10, � 1-12b(1)(b) (1978). This jewelry is apparently permitted even if, as is often the case with rings, it associates the wearer with a denominational school or a religious or secular fraternal organization. If these emblems of religious, social, and ethnic identity are not deemed to be unacceptably divisive, the Air Force cannot rationally justify its bar against yarmulkes on that basis. Moreover, the services allow, and rightly so, other manifestations of religious diversity. It is clear to all service personnel that some members attend Jewish services, some Page 475 U. S. 519 Christian, some Islamic, and some yet other religious services. Barracks mates see Mormons wearing temple garments, Orthodox Jews wearing tzitzit, and Catholics wearing crosses and scapulars. That they come from different faiths and ethnic backgrounds is not a secret that can or should be kept from them. I find totally implausible the suggestion that the overarching group identity of the Air Force would be threatened if Orthodox Jews were allowed to wear yarmulkes with their uniforms. To the contrary, a yarmulke worn with a United States military uniform is an eloquent reminder that the shared and proud identity of United States serviceman embraces and unites religious and ethnic pluralism. Finally, the Air Force argues that, while Dr. Goldman describes his yarmulke as an "unobtrusive" addition to his uniform, obtrusiveness is a purely relative, standardless judgment. The Government notes that, while a yarmulke might not seem obtrusive to a Jew, neither does a turban to a Sikh, a saffron robe to a Satchidananda Ashram-Integral Yogi, nor dreadlocks to a Rastafarian. If the Court were to require the Air Force to permit yarmulkes, the service must also allow all of these other forms of dress and grooming. The Government dangles before the Court a classic parade of horribles, the specter of a brightly-colored, "rag-tag band of soldiers." Brief for Respondents 20. Although turbans, saffron robes, and dreadlocks are not before us in this case, and must each be evaluated against the reasons a service branch offers for prohibiting personnel from wearing them while in uniform, a reviewing court could legitimately give deference to dress and grooming rules that have a reasoned basis in, for example, functional utility, health and safety considerations, and the goal of a polished, professional appearance. [ Footnote 2/4 ] AFR 35-10, �� 1-12a and 1-12a(1) (1978) Page 475 U. S. 520 (identifying neatness, cleanliness, safety, and military image as the four elements of the dress code's "high standard of dress and personal appearance"). It is the lack of any reasoned basis for prohibiting yarmulkes that is so striking here. Furthermore, contrary to its intimations, the Air Force has available to it a familiar standard for determining whether a particular style of yarmulke is consistent with a polished, professional military appearance -- the "neat and conservative" standard by which the service judges jewelry. AFR 35-10, � 1-12b(1)(b) (1978). No rational reason exists why yarmulkes cannot be judged by the same criterion. Indeed, at argument, Dr. Goldman declared himself willing to wear whatever style and color yarmulke the Air Force believes best comports with its uniform. Tr. 18. 3 Department of Defense Directive 1300.17 (June 18, 1985) grants commanding officers the discretion to permit service personnel to wear religious items and apparel that are not visible with the uniform, such as crosses, temple garments, and scapulars. JUSTICE STEVENS favors this "visibility test," because he believes that it does not involve the Air Force in drawing distinctions among faiths. Ante at 475 U. S. 512 -513. He rejects functional utility, health, and safety considerations, and similar grounds as criteria for religious exceptions to the dress code, because he fears that these standards will allow some servicepersons to satisfy their religious dress and grooming obligations, while preventing others from fulfilling theirs. Ibid. But the visible/not visible standard has that same effect. Furthermore, it restricts the free exercise rights of a larger number of servicepersons. The visibility test permits only individuals whose outer garments and grooming are indistinguishable from those of mainstream Christians to fulfill their religious duties. In my view, the Page 475 U. S. 521 Constitution requires the Selection of criteria that permit the greatest possible number of persons to practice their faiths freely. Implicit in JUSTICE STEVENS' concurrence, and in the Government's arguments, is what might be characterized as a fairness concern. It would be unfair to allow Orthodox Jews to wear yarmulkes while prohibiting members of other minority faiths with visible dress and grooming requirements from wearing their saffron robes, dreadlocks, turbans, and so forth. While I appreciate and share this concern for the feelings and the free exercise rights of members of these other faiths, I am baffled by this formulation of the problem. What puzzles me is the implication that a neutral standard that could result in the disparate treatment of Orthodox Jews and, for example, Sikhs is more troublesome or unfair than the existing neutral standard that does result in the different treatment of Christians, on the one hand, and Orthodox Jews and Sikhs on the other. Both standards are constitutionally suspect; before either can be sustained, it must be shown to be a narrowly tailored means of promoting important military interests. I am also perplexed by the related notion that, for purposes of constitutional analysis, religious faiths may be divided into two categories -- those with visible dress and grooming requirements and those without. This dual category approach seems to incorporate an assumption that fairness, the First Amendment, and, perhaps, equal protection, require all faiths belonging to the same category to be treated alike, but permit a faith in one category to be treated differently from a faith belonging to the other category. The practical effect of this categorization is that, under the guise of neutrality and evenhandedness, majority religions are favored over distinctive minority faiths. This dual category analysis is fundamentally flawed, and leads to a result that the First Amendment was intended to prevent. Under the Constitution, there is only one relevant category -- all faiths. Burdens Page 475 U. S. 522 placed on the free exercise rights of members of one faith must be justified independently of burdens placed on the rights of members of another religion. It is not enough to say that Jews cannot wear yarmulkes simply because Rastafarians might not be able to wear dreadlocks. Unless the visible/not visible standard for evaluating requests for religious exceptions to the dress code promotes a significant military interest, it is constitutionally impermissible. JUSTICE STEVENS believes that this standard advances an interest in the "uniform treatment" of all religions. Ante at 475 U. S. 512 . As I have shown, that uniformity is illusory, unless uniformity means uniformly accommodating majority religious practices and uniformly rejecting distinctive minority practices. But, more directly, Government agencies are not free to define their own interests in uniform treatment of different faiths. That function has been assigned to the First Amendment. The First Amendment requires that burdens on free exercise rights be justified by independent and important interests that promote the function of the agency. See, e.g., United States v. Lee, 455 U. S. 252 , 455 U. S. 257 -258 (1982); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 (1981); Wisconsin v. Yoder, 406 U. S. 205 (1972); Sherbert v. Verner, 374 U. S. 398 (1963). The only independent military interest furthered by the visibility standard is uniformity of dress. And that interest, as I demonstrated in 475 U. S. supra, does not support a prohibition against yarmulkes. The Air Force has failed utterly to furnish a credible explanation why an exception to the dress code permitting Orthodox Jews to wear neat and conservative yarmulkes while in uniform is likely to interfere with its interest in discipline and uniformity. We cannot "distort the Constitution to approve all that the military may deem expedient." Korematsu v. United States, 323 U. S. 214 , 323 U. S. 244 (1944) (Jackson, J., dissenting). Under any meaningful level of judicial review, Simcha Goldman should prevail. Page 475 U. S. 523 III Through our Bill of Rights, we pledged ourselves to attain a level of human freedom and dignity that had no parallel in history. Our constitutional commitment to religious freedom and to acceptance of religious pluralism is one of our greatest achievements in that noble endeavor. Almost 200 years after the First Amendment was drafted, tolerance and respect for all religions still set us apart from most other countries and draws to our shores refugees from religious persecution from around the world. Guardianship of this precious liberty is not the exclusive domain of federal courts. It is the responsibility as well of the States and of the other branches of the Federal Government. Our military services have a distinguished record of providing for many of the religious needs of their personnel. But that they have satisfied much of their constitutional obligation does not remove their actions from judicial scrutiny. Our Nation has preserved freedom of religion, not through trusting to the good faith of individual agencies of government alone, but through the constitutionally mandated vigilant oversight and checking authority of the judiciary. It is not the province of the federal courts to second-guess the professional judgments of the military services, but we are bound by the Constitution to assure ourselves that there exists a rational foundation for assertions of military necessity when they interfere with the free exercise of religion. "The concept of military necessity is seductively broad," Glines, 444 U.S. at 444 U. S. 369 (BRENNAN, J., dissenting), and military decisionmakers themselves are as likely to succumb to its allure as are the courts and the general public. Definitions of necessity are influenced by decisionmakers' experiences and values. As a consequence, in pluralistic societies such as ours, institutions dominated by a majority are inevitably, if inadvertently, insensitive to the needs and values of minorities when these needs and values differ from those Page 475 U. S. 524 of the majority. The military, with its strong ethic of conformity and unquestioning obedience, may be particularly impervious to minority needs and values. A critical function of the Religion Clauses of the First Amendment is to protect the rights of members of minority religions against quiet erosion by majoritarian social institutions that dismiss minority beliefs and practices as unimportant, because unfamiliar. It is the constitutional role of this Court to ensure that this purpose of the First Amendment be realized. The Court and the military services [ Footnote 2/5 ] have presented patriotic Orthodox Jews with a painful dilemma -- the choice between fulfilling a religious obligation and serving their country. Should the draft be reinstated, compulsion will replace choice. Although the pain the services inflict on Orthodox Jewish servicemen is clearly the result of insensitivity, rather than design, it is unworthy of our military, because it is unnecessary. The Court and the military have refused these servicemen their constitutional rights; we must hope that Congress will correct this wrong. [ Footnote 2/1 ] The yarmulke worn by Dr. Goldman was a dark-colored skullcap measuring approximately 5 1/2 inches in diameter. Brief for Petitioner 3. [ Footnote 2/2 ] I continue to believe that Government restraints on First Amendment rights, including limitations placed on military personnel, may be justified only upon showing a compelling state interest which is precisely furthered by a narrowly tailored regulation. See, e.g., Brown v. Glines, 444 U. S. 348 , 444 U. S. 367 (1980) (BRENNAN, J., dissenting). I think that any special needs of the military can be accommodated in the compelling-interest prong of the test. My point here is simply that, even under a more deferential test, Dr. Goldman should prevail. [ Footnote 2/3 ] The 1978 and 1980 editions of AFR 35-10 governed, sequentially, the Air Force dress code during Dr. Goldman's period of service. The two editions are substantially identical in all respects relevant to this case. [ Footnote 2/4 ] For example, the Air Force could no doubt justify regulations ordering troops to wear uniforms, prohibiting garments that could become entangled in machinery, and requiring hair to be worn short so that it may not be grabbed in combat and may be kept louse-free in field conditions. [ Footnote 2/5 ] I refer to all of the military services, rather than just to the Air Force, because, as the Government emphasizes in its brief, Brief for Respondents 20, n. 11, all of the uniformed services have dress and appearance regulations comparable to AFR 36-10, and the Court's decision in this case will apply to all the services. Furthermore, all Military Departments are subject to the recent Department of Defense Directive 1300.17 (June 18, 1985), which deals with the accommodation of religious practices. This Directive does not provide for the type of exception sought by Dr. Goldman. JUSTICE BLACKMUN, dissenting. I would reverse the judgment of the Court of Appeals, but for reasons somewhat different from those respectively enunciated by JUSTICE BRENNAN and JUSTICE O'CONNOR. I feel that the Air Force is justified in considering not only the costs of allowing Captain Goldman to cover his head indoors, but also the cumulative costs of accommodating constitutionally indistinguishable requests for religious exemptions. Because, however, the Government has failed to make any Page 475 U. S. 525 meaningful showing that either set of costs is significant, I dissent from the Court's rejection of Goldman's claim. The Government concedes that Goldman wears his yarmulke out of sincere religious conviction. For Goldman, as for many other Jews, "a yarmulke is an expression of respect for God . . . intended to keep the wearer aware of God's presence." App. 156 (petitioner's deposition). If the Free Exercise Clause of the First Amendment means anything, it must mean that an individual's desire to follow his or her faith is not simply another personal preference, to be accommodated by government when convenience allows. Indeed, this Court has read the Clause, I believe correctly, to require that "only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion." Wisconsin v. Yoder, 406 U. S. 205 , 406 U. S. 215 (1972). In general, government "may justify an inroad on religious liberty [only] by showing that it is the least restrictive means of achieving some compelling state interest." Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 , 450 U. S. 718 (1981); see also Sherbert v. Verner, 374 U. S. 398 (1963). The clear import of Sherbert, Yoder, and Thomas is that this showing must be made even when the inroad results from the "evenhanded" application of a facially neutral requirement. "Rules are rules" is not by itself a sufficient justification for infringing religious liberty. Nor may free exercise rights be compromised simply because the military says they must be. To be sure, application of the First Amendment to members of the Armed Services must take into account "the different character of the military community and of the military mission." Parker v. Levy, 417 U. S. 733 , 417 U. S. 758 (1974). As JUSTICE BRENNAN and JUSTICE O'CONNOR point out, however, military personnel do not forfeit their constitutional rights as a price of enlistment. Except as otherwise required by "interests of the highest order," soldiers as well as civilians are entitled to follow the dictates of their faiths. Page 475 U. S. 526 In my view, this case does not require us to determine the extent to which the ordinary test for inroads on religious freedom must be modified in the military context, because the Air Force has failed to produce even a minimally credible explanation for its refusal to allow Goldman to keep his head covered indoors. I agree with the Court that deference is due the considered judgment of military professionals that, as a general matter, standardized dress serves to promote discipline and esprit de corps. But Goldman's modest supplement to the Air Force uniform clearly poses, by itself, no threat to the Nation's military readiness. Indeed, the District Court specifically found that Goldman has worn a yarmulke on base for years without any adverse effect on his performance, any disruption of operations at the base, or any complaints from other personnel. Goldman v. Secretary of Defense, 29 EPD � 32,753, pp. 25,540-25,541 (1982). The Air Force argues that it has no way of distinguishing fairly between Goldman's request for an exemption and the potential requests of others whose religious practices may conflict with the appearance code, perhaps in more conspicuous ways. In theory, this argument makes some sense. Like any rules prescribing a uniform, the Air Force dress code is, by nature, arbitrary; few of its requirements could be defended on purely functional grounds. Particularly for personnel such as Goldman who serve in noncombat roles, variations from the prescribed attire frequently will interfere with no military goals other than those served by uniformity itself. There thus may be no basis on which to distinguish some variations from others, aside from the degree to which they detract from the overall image of the service, a criterion that raises special constitutional problems when applied to religious practices. To allow noncombat personnel to wear yarmulkes, but not turbans or dreadlocks, because the latter seem more obtrusive -- or, as JUSTICE BRENNAN suggests, less "polished" and "professional," ante at 475 U. S. 519 -520 -- would be to discriminate in favor of this country's more established, Page 475 U. S. 527 mainstream religions, the practices of which are more familiar to the average observer. Not only would conventional faiths receive special treatment under such an approach; they would receive special treatment precisely because they are conventional. In general, I see no constitutional difficulty in distinguishing between religious practices based on how difficult it would be to accommodate them, but favoritism based on how unobtrusive a practice appears to the majority could create serious problems of equal protection and religious establishment, problems the Air Force clearly has a strong interest in avoiding by drawing an objective line at visibility. The problem with this argument, it seems to me, is not doctrinal, but empirical. The Air Force simply has not shown any reason to fear that a significant number of enlisted personnel and officers would request religious exemptions that could not be denied on neutral grounds such as safety, let alone that granting these requests would noticeably impair the overall image of the service. Cf. Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. at 450 U. S. 719 ; Sherbert v. Verner, 374 U.S. at 374 U. S. 407 . The Air Force contends that the potential for such disruption was demonstrated at trial through the introduction of an Army publication discussing the beliefs and practices of a variety of religious denominations, some of which have traditions or requirements involving attire. See Department of the Army Pamphlet No. 165-13-1, Religious Requirements and Practices of Certain Selected Groups: A Handbook Supplement for Chaplains (1980). But that publication provides no indication whatsoever as to how many soldiers belong to the denominations it describes, or as to how many are likely to seek religious exemptions from the dress code. In these circumstances, deference seems unwarranted. Reasoned military judgments, of course, are entitled to respect, but the military has failed to show that this particular judgment with respect to Captain Goldman is a reasoned one. If, in the future, the Air Force is besieged with requests for Page 475 U. S. 528 religious exemptions from the dress code, and those requests cannot be distinguished on functional grounds from Goldman's, the service may be able to argue credibly that circumstances warrant a flat rule against any visible religious apparel. That, however, would be a case different from the one at hand. JUSTICE O'CONNOR, with whom JUSTICE MARSHALL joins, dissenting. The issue posed in this case is whether, consistent with the Free Exercise Clause of the First Amendment, the Air Force may prohibit Captain Goldman, an Orthodox Jewish psychologist, from wearing a yarmulke while he is in uniform on duty inside a military hospital. The Court rejects Captain Goldman's claim without even the slightest attempt to weigh his asserted right to the free exercise of his religion against the interest of the Air Force in uniformity of dress within the military hospital. No test for free exercise claims in the military context is even articulated, much less applied. It is entirely sufficient for the Court if the military perceives a need for uniformity. JUSTICE STEVENS acknowledges that "Captain Goldman's military duties are performed in a setting in which a modest departure from the uniform regulation creates almost no danger of impairment of the Air Force's military mission." Ante at 475 U. S. 511 (concurring). Nevertheless, JUSTICE STEVENS is persuaded that a governmental regulation based on any "neutral, completely objective standard," ante at 475 U. S. 513 , will survive a free exercise challenge. In contrast, JUSTICE BRENNAN recognizes that the Court "overlooks the sincere and serious nature of [the] constitutional claim." Ante at 475 U. S. 514 (dissenting). He properly notes that, even with respect to military rules and regulations, the courts have a duty to weigh sincere First Amendment claims of its members against the necessity of the particular application of the rule. But JUSTICE BRENNAN applies no particular test or standard to determine such claims. Page 475 U. S. 529 JUSTICE BLACKMUN focuses on the particular ways in which the military may pursue its interest in uniformity, ante at 475 U. S. 526 -527 (dissenting), but nonetheless declines "to determine the extent to which the ordinary test for inroads on religious freedom must be modified in the military context," ante at 475 U. S. 526 . I believe that the Court should attempt to articulate and apply an appropriate standard for a free exercise claim in the military context, and should examine Captain Goldman's claim in light of that standard. Like the Court today in this case involving the military, the Court in the past has had some difficulty, even in the civilian context, in articulating a clear standard for evaluating free exercise claims that result from the application of general state laws burdening religious conduct. In Sherbert v. Verner, 374 U. S. 398 (1963), and Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 (1981), the Court required the States to demonstrate that their challenged policies were "the least restrictive means of achieving some compelling state interest" in order to deprive claimants of unemployment benefits when the refusal to work was based on sincere religious beliefs. Thomas, supra, at 450 U. S. 718 . See also Sherbert, supra, at 374 U. S. 406 -408. In Wisconsin v. Yoder, 406 U. S. 205 , 406 U. S. 215 (1972), the Court noted that "only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion" in deciding that the Amish were exempt from a State's requirement that children attend school through the age of 16. In United States v. Lee, 455 U. S. 252 , 455 U. S. 257 -258 (1982), the Court stated that "[t]he State may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest," and held that the Amish could not exempt themselves from the Social Security system on religious grounds. See also Gillette v. United States, 401 U. S. 437 (1971) (rejecting challenges under the Establishment and Free Exercise Clauses to the Page 475 U. S. 530 Federal Government's refusal to give conscientious objector status to those objecting on religious grounds only to a particular war, rather than to all wars). These tests, though similar, are not identical. One can, however, glean at least two consistent themes from this Court's precedents. First, when the government attempts to deny a free exercise claim, it must show that an unusually important interest is at stake, whether that interest is denominated "compelling," "of the highest order," or "overriding." Second, the government must show that granting the requested exemption will do substantial harm to that interest, whether by showing that the means adopted is the "least restrictive" or "essential," or that the interest will not "otherwise be served." These two requirements are entirely sensible in the context of the assertion of a free exercise claim. First, because the government is attempting to override an interest specifically protected by the Bill of Rights, the government must show that the opposing interest it asserts is of especial importance before there is any chance that its claim can prevail. Second, since the Bill of Rights is expressly designed to protect the individual against the aggregated and sometimes intolerant powers of the state, the government must show that the interest asserted will, in fact, be substantially harmed by granting the type of exemption requested by the individual. There is no reason why these general principles should not apply in the military, as well as the civilian, context. As this Court has stated unanimously, " our citizens in uniform may not be stripped of basic rights simply because they have doffed their civilian clothes.'" Chappell v. Wallace, 462 U. S. 296 , 462 U. S. 304 (1983) (quoting Warren, The Bill of Rights and the Military, 37 N.Y.U.L.Rev. 181, 188 (1962)). Furthermore, the test that one can glean from this Court's decisions in the civilian context is sufficiently flexible to take into account the special importance of defending our Nation without Page 475 U. S. 531 abandoning completely the freedoms that make it worth defending. The first question that the Court should face here, therefore, is whether the interest that the Government asserts against the religiously based claim of the individual is of unusual importance. It is perfectly appropriate at this step of the analysis to take account of the special role of the military. The mission of our Armed Services is to protect our Nation from those who would destroy all our freedoms. I agree that, in order to fulfill that mission, the military is entitled to take some freedoms from its members. As the Court notes, the military " must insist upon a respect for duty and a discipline without counterpart in civilian life.'" Ante at 475 U. S. 507 (quoting Schlesinger v. Councilman, 420 U. S. 738 , 420 U. S. 757 (1975)). The need for military discipline and esprit de corps is unquestionably an especially important governmental interest. But the mere presence of such an interest cannot, as the majority implicitly believes, end the analysis of whether a refusal by the Government to honor the free exercise of an individual's religion is constitutionally acceptable. A citizen pursuing even the most noble cause must remain within the bounds of the law. So, too, the Government may, even in pursuing its most compelling interests, be subject to specific restraints in doing so. The second question in the analysis of a free exercise claim under this Court's precedents must also be reached here: will granting an exemption of the type requested by the individual do substantial harm to the especially important governmental interest? I have no doubt that there are many instances in which the unique fragility of military discipline and esprit de corps necessitates rigidity by the Government when similar rigidity to preserve an assertedly analogous interest would not pass constitutional muster in the civilian sphere. Compare Greer v. Spock, 424 U. S. 828 (1976), with Metromedia, Inc. v. San Diego, 453 U. S. 490 (1981), and West Virginia Board of Education v. Barnette, 319 U. S. 624 , 319 U. S. 630 -634 (1943). Page 475 U. S. 532 Nonetheless, as JUSTICE BRENNAN persuasively argues, the Government can present no sufficiently convincing proof in this case to support an assertion that granting an exemption of the type requested here would do substantial harm to military discipline and esprit de corps. Ante at 475 U. S. 517 -620 (dissenting). First, the Government's asserted need for absolute uniformity is contradicted by the Government's own exceptions to its rule. As JUSTICE BRENNAN notes, ante at 475 U. S. 518 , an Air Force dress code in force at the time of Captain Goldman's service states: "Neither the Air Force nor the public expects absolute uniformity of appearance. Each member has the right, within limits, to express individuality through his or her appearance. However, the image of a disciplined service member who can be relied on to do his or her. job excludes the extreme, the unusual, and the fad." AFR 35-10, � 1-12.a.(2) (1978). Furthermore, the Government does not assert, and could not plausibly argue, that petitioner's decision to wear his yarmulke while indoors at the hospital presents a threat to health or safety. And finally, the District Court found as fact that, in this particular case, far from creating discontent or indiscipline in the hospital where Captain Goldman worked, "[f]rom September, 1977, to May 7, 1981, no objection was raised to Goldman's wearing of his yarmulke while in uniform." See Goldman v. Secretary of Defense, 29 EPD � 32,753, p. 25,539 (1982) (emphasis added). In the rare instances where the military has not consistently or plausibly justified its asserted need for rigidity of enforcement, and where the individual seeking the exemption establishes that the assertion by the military of a threat to discipline or esprit de corps is in his or her case completely unfounded, I would hold that the Government's policy of uniformity must yield to the individual's assertion of the right of free exercise of religion. On the facts of this case, therefore, Page 475 U. S. 533 I would require the Government to accommodate the sincere religious belief of Captain Goldman. Napoleon may have been correct to assert that, in the military sphere, morale is to all other factors as three is to one, * but contradicted assertions of necessity by the military do not on the scales of justice bear a similarly disproportionate weight to sincere religious beliefs of the individual. I respectfully dissent. * See Letter, Aug. 27, 1808 ("In war, moral considerations account for three-quarters, the balance of actual forces only for the other quarter"), as translated and quoted in J. Cohen & M. Cohen, The Penguin Dictionary of Quotations 268 (1962).

The case of Goldman v. Weinberger (1986) concerned an Orthodox Jewish rabbi and Air Force officer who was ordered not to wear a yarmulke while on duty and in uniform, due to an Air Force regulation prohibiting indoor headgear except for armed security personnel. The rabbi sued, arguing that this regulation infringed on his First Amendment right to religious freedom. The Supreme Court, however, ruled in favor of the Air Force, stating that the First Amendment does not prohibit the regulation from being applied to the rabbi. The Court acknowledged the military's interest in uniformity and found that the Air Force's regulation reasonably and evenhandedly regulated dress to achieve that goal. The Court drew a line between visible and invisible religious apparel, and in this case, the yarmulke was visible. Some dissenting opinions argued that the military's need for absolute uniformity was contradicted by its own exceptions and that the rabbi's yarmulke did not pose a threat to health or safety. They suggested that in cases where the military's justification for strict enforcement is contradicted or unfounded, the individual's right to religious freedom should prevail.

Religion

Bowen v. Roy

https://supreme.justia.com/cases/federal/us/476/693/

U.S. Supreme Court Bowen v. Roy, 476 U.S. 693 (1986) Bowen v. Roy No. 84-780 Argued January 14, 1986 Decided June 11, 1986 476 U.S. 693 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA Syllabus Appellees applied for and received benefits under the Aid to Families with Dependent Children (AFDC) program and the Food Stamp program. They refused, however, to comply with the federal statutory requirements that participants in those programs furnish the state welfare agencies who administer the programs with their Social Security numbers and those of each member of their household as a condition of receiving benefits, and that each state agency utilize those numbers in administering the programs. Appellees contended that obtaining a Social Security number for their 2-year-old daughter would violate their Native American religious beliefs. Thereafter, the Pennsylvania Department of Public Welfare terminated AFDC benefits payable to appellees on the child's behalf and instituted proceedings to reduce the level of food stamps that appellees' household was receiving. Appellees then filed an action in Federal District Court, claiming that the Free Exercise Clause of the First Amendment entitled them to an exemption from the Social Security number requirements, and requesting injunctive and other relief. Following a trial in which it was disclosed that the child had in fact been assigned a Social Security number, the court held that the public interest in maintaining an efficient and fraud-resistant system could be met without requiring a Social Security number for the child. The court then enjoined the Secretary of Health and Human Services from using and disseminating the Social Security number issued in the child's name, and also enjoined the federal and state defendants from denying appellees benefits, until the child's 16th birthday, because of their refusal to provide a Social Security number for her. Held: The judgment is vacated, and the case is remanded. 590 F. Supp. 600 , vacated and remanded. CHIEF JUSTICE BURGER delivered the opinion of the Court with respect to Parts I and II, concluding that the statutory requirement that a state agency utilize Social Security numbers in administering the programs in question does not violate the Free Exercise Clause. That Clause affords an individual protection from certain forms of governmental compulsion, but does not afford an individual a right to dictate the conduct of the Government's internal procedures. The Government's Page 476 U. S. 694 use of a Social Security number for appellees' child does not itself impair appellees' freedom to exercise their religion. Pp. 476 U. S. 699 -701. CHIEF JUSTICE BURGER, joined by JUSTICE POWELL and JUSTICE REHNQUIST, concluded in Part III that the statutory requirement that applicants provide a Social Security number as a condition of eligibility for the benefits in question does not violate the Free Exercise Clause. That requirement is facially neutral in religious terms, applies to all applicants for the benefits involved, and clearly promotes a legitimate and important public interest. Preventing fraud in these benefit programs is an important goal, and the Social Security number requirement is a reasonable means of promoting that goal. Government regulation that indirectly and incidentally calls for a choice between securing a governmental benefit and adherence to religious beliefs is wholly different from governmental action or legislation that criminalizes religiously inspired activity or compels conduct that some find objectionable for religious reasons. Pp. 476 U. S. 701 -712. BURGER, C.J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, in which BRENNAN, MARSHALL, BLACKMUN, POWELL, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined, and an opinion with respect to Part III, in which POWELL and REHNQUIST, JJ., joined. BLACKMUN, J., filed an opinion concurring in part, post, p. 476 U. S. 712 . STEVENS, J., filed an opinion concurring in part and concurring in the result, post, p. 476 U. S. 716 . O'CONNOR, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined, post, p. 476 U. S. 724 . WHITE, J., filed a dissenting opinion, post, p. 476 U. S. 733 . Page 476 U. S. 695 CHIEF JUSTICE BURGER announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, and an opinion with respect to Part III, in which JUSTICE POWELL and JUSTICE REHNQUIST join. The question presented is whether the Free Exercise Clause of the First Amendment compels the Government to accommodate a religiously based objection to the statutory requirements that a Social Security number be provided by an applicant seeking to receive certain welfare benefits, and that the States use these numbers in administering the benefit programs. I Appellees Stephen J. Roy and Karen Miller applied for and received benefits under the Aid to Families with Dependent Children program and the Food Stamp program. They refused to comply, however, with the requirement, contained in 42 U.S.C. § 602(a)(25) [ Footnote 1 ] and 7 U.S.C. § 2025(e), that participants in these programs furnish their state welfare agencies with the Social Security numbers of the members of their household as a condition of receiving benefits. Appellees contended that obtaining a Social Security number for their 2-year-old daughter, Little Bird of the Snow, would violate their Native American religious beliefs. The Pennsylvania Department of Public Welfare thereafter terminated AFDC and medical benefits payable to appellees on the child's behalf and instituted proceedings to reduce the level of food stamps that appellees' household was receiving. Appellees then filed this action against the Secretary of the Pennsylvania Department of Public Welfare, the Secretary of Health and Human Services, and the Secretary of Agriculture, arguing that the Free Exercise Clause entitled them to an exemption from the Social Security number requirement. In their complaint, Page 476 U. S. 696 appellees stated that "[t]he sole basis" for the denial of welfare benefits was "Mr. Roy's refusal to obtain a Social Security Number for Little Bird of the Snow," and thus requested injunctive relief, damages, and benefits. In the statement of "undisputed facts," the parties agreed that Little Bird of the Snow did not have a Social Security number. At trial, Roy testified that he had recently developed a religious objection to obtaining a Social Security number for Little Bird of the Snow. [ Footnote 2 ] Roy is a Native American descended from the Abenaki Tribe, and he asserts a religious belief that control over one's life is essential to spiritual purity, and indispensable to "becoming a holy person." Based on recent conversations with an Abenaki chief, Roy believes that technology is "robbing the spirit of man." In order to prepare his daughter for greater spiritual power, therefore, Roy testified to his belief that he must keep her person and spirit unique, and that the uniqueness of the Social Security number as an identifier, coupled with the other uses of the number over which she has no control, will serve to "rob the spirit" of his daughter and prevent her from attaining greater spiritual power. For purposes of determining the breadth of Roy's religious concerns, the trial judge raised the possibility of using the phonetics of his daughter's name to derive a Social Security number. Although Roy saw "a lot of good" in this suggestion, he stated it would violate his religious beliefs because the special number still would apply uniquely and identify her. Roy also testified that his religious objection would not be satisfied even if the Social Security Administration appended the daughter's full tribal name to her Social Security number. Page 476 U. S. 697 In Roy's own testimony, he emphasized the evil that would flow simply from obtaining a number. [ Footnote 3 ] On the last day of trial, however, a federal officer inquired whether Little Bird of the Snow already had a Social Security number; he learned that a number had been assigned -- under first name "Little," middle name "Bird of the Snow," and last name "Roy." The Government at this point suggested that the case had become moot, because, under Roy's beliefs, Little Bird of the Snow's spirit had already been "robbed." Roy, however, was recalled to the stand and testified that her spirit would be robbed only by "use" of the number. Since no known use of the number had yet been made, Roy expressed his belief that her spirit had not been damaged. The District Court concluded that the case was not moot because of Roy's beliefs regarding "use" of the number. See Roy v. Cohen, 590 F. Supp. 600 , 605 (MD Pa.1984) (finding of fact 33) ("Roy believes that the establishment of a social security number for Little Bird of the Snow, without more, has not robbed her spirit,' but widespread use of the social security number by the federal or state governments in their computer systems would have that effect"). After hearing all of the testimony, the District Court denied appellees' request for damages and benefits, but granted injunctive relief. Based on the testimony of the Government's experts and the obvious fact that many people share certain names, the District Court found that "[u]tilization in Page 476 U. S. 698 the computer system of the name of a benefit recipient alone frequently is not sufficient to ensure the proper payment of benefits." The court nevertheless concluded that the public "interest in maintaining an efficient and fraud resistant system can be met without requiring use of a social security number for Little Bird of the Snow," elaborating: "It appears to the Court that the harm that the Government might suffer if [appellees] prevailed in this case would be, at worst, that one or perhaps a few individuals could fraudulently obtain welfare benefits. Such a result would obtain only if (1) Little Bird of the Snow attempted fraudulently to obtain welfare benefits or someone else attempted fraudulently to obtain such benefits using Little Bird of the Snow's name and (2) identification procedures available to the Defendants that do not require utilization of a social security number failed to expose the fraud. This possibility appears to the Court to be remote." Id. at 612-613. Citing our decision in United States v. Lee, 455 U. S. 252 (1982), the court entered an injunction containing two basic components. First, the Secretary of Health and Human Services was "permanently restrained from making any use of the social security number which was issued in the name of Little Bird of the Snow Roy and from disseminating the number to any agency, individual, business entity, or any other third party." Second, the federal and state defendants were enjoined until Little Bird of the Snow's 16th birthday from denying Roy cash assistance, medical assistance, and food stamps "because of the [appellees'] refusal to provide a social security number for her." We noted probable jurisdiction, 472 U.S. 1016 (1985), and we vacate and remand. Page 476 U. S. 699 II Appellees raise a constitutional challenge to two features of the statutory scheme here. [ Footnote 4 ] They object to Congress' requirement that a state AFDC plan " must . . . provide (A) that, as a condition of eligibility under the plan, each applicant for or recipient of aid shall furnish to the State agency his social security account number." 42 U.S.C. § 602(a)(25) (emphasis added). They also object to Congress' requirement that "such State agency shall utilize such account numbers . . . in the administration of such plan." Ibid. (emphasis added). [ Footnote 5 ] We analyze each of these contentions, turning to the latter contention first. Our cases have long recognized a distinction between the freedom of individual belief, which is absolute, and the freedom of individual conduct, which is not absolute. This case implicates only the latter concern. Roy objects to the statutory requirement that state agencies "shall utilize" Social Security numbers not because it places any restriction on what he may believe or what he may do, but because he believes the use of the number may harm his daughter's spirit. Never to our knowledge has the Court interpreted the First Amendment to require the Government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family. The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens. Just as the Government may not insist that appellees engage in Page 476 U. S. 700 any set form of religious observance, so appellees may not demand that the Government join in their chosen religious practices by refraining from using a number to identify their daughter. "[T]he Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can extract from the government." Sherbert v. Verner, 374 U. S. 398 , 374 U. S. 412 (1963) (Douglas, J., concurring). As a result, Roy may no more prevail on his religious objection to the Government's use of a Social Security number for his daughter than he could on a sincere religious objection to the size or color of the Government's filing cabinets. The Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government's internal procedures. As Roy points out, eight years ago, Congress passed a Joint Resolution concerning American Indian religious freedom that provides guidance with respect to this case. As currently codified, the Resolution provides: "On and after August 11, 1978, it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites." 42 U.S.C. § 1996. That Resolution -- with its emphasis on protecting the freedom to believe, express, and exercise a religion -- accurately identifies the mission of the Free Exercise Clause itself. The Federal Government's use of a Social Security number for Little Bird of the Snow does not itself in any degree impair Roy's "freedom to believe, express, and exercise" his religion. [ Footnote 6 ] Page 476 U. S. 701 Consequently, appellees' objection to the statutory requirement that each state agency "shall utilize" a Social Security number in the administration of its plan is without merit. It follows that their request for an injunction against use of the Social Security number in processing benefit applications should have been rejected. We therefore hold that the portion of the District Court's injunction that permanently restrained the Secretary from making any use of the Social Security number that had been issued in the name of Little Bird of the Snow Roy must be vacated. III Roy also challenges Congress' requirement that a state AFDC plan " must . . . provide (A) that, as a condition of eligibility under the plan, each applicant for or recipient of aid shall furnish to the State agency his social security account number." 42 U.S.C. § 602(a)(25) (emphasis added). [ Footnote 7 ] The Page 476 U. S. 702 First Amendment's guarantee that "Congress shall make no law . . . prohibiting the free exercise" of religion holds an important place in our scheme of ordered liberty, but the Court has steadfastly maintained that claims of religious conviction do not automatically entitle a person to fix unilaterally the conditions and terms of dealings with the Government. Not all burdens on religion are unconstitutional. See Reynolds v. United States, 98 U. S. 145 (1879). This was treated recently in United States v. Lee: "To maintain an organized society that guarantees religious freedom to a great variety of faiths requires that some religious practices yield to the common good. Religious beliefs can be accommodated, but there is a point at which accommodation would 'radically restrict the operating latitude of the legislature.'" 455 U.S. at 455 U. S. 259 . Page 476 U. S. 703 The statutory requirement that applicants provide a Social Security number is wholly neutral in religious terms, and uniformly applicable. There is no claim that there is any attempt by Congress to discriminate invidiously, or any covert suppression of particular religious beliefs. The administrative requirement does not create any danger of censorship, [ Footnote 8 ] or place a direct condition or burden on the dissemination of religious views. [ Footnote 9 ] It does not intrude on the organization of a religious institution [ Footnote 10 ] or school. [ Footnote 11 ] It may indeed confront some applicants for benefits with choices, but in no sense does it affirmatively compel appellees, by threat of sanctions, to refrain from religiously motivated conduct [ Footnote 12 ] or to engage in conduct that they find objectionable for religious reasons. [ Footnote 13 ] Rather, it is appellees who seek benefits from the Government and who assert that, because of certain religious beliefs, they should be excused from compliance with a condition that is binding on all other persons who seek the same benefits from the Government. This is far removed from the historical instances of religious persecution and intolerance that gave concern to those who drafted the Free Exercise Clause of the First Amendment. See generally M. Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment (1978). We are not unmindful of the importance of many government benefits today or of the value of sincerely held religious beliefs. Page 476 U. S. 704 However, while we do not believe that no government compulsion is involved, we cannot ignore the reality that denial of such benefits by a uniformly applicable statute neutral on its face is of a wholly different, less intrusive nature than affirmative compulsion or prohibition, by threat of penal sanctions, for conduct that has religious implications. This distinction is clearly revealed in the Court's opinions. Decisions rejecting religiously based challenges have often recited the fact that a mere denial of a governmental benefit by a uniformly applicable statute does not constitute infringement of religious liberty. In Hamilton v. Regents of University of California, 293 U. S. 245 (1934), for example, the Court rejected a religious challenge by students to military courses required as part of their curriculum, explaining: "The fact that they are able to pay their way in this university, but not in any other institution in California, is without significance upon any constitutional or other question here involved. California has not drafted or called them to attend the university. They are seeking education offered by the State, and at the same time insisting that they be excluded from the prescribed course solely upon grounds of their religious beliefs and conscientious objections to war. . . ." Id. at 293 U. S. 262 . [ Footnote 14 ] In cases upholding First Amendment challenges, on the other hand, the Court has often relied on the showing that compulsion of certain activity with religious significance was involved. Page 476 U. S. 705 In West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943), for example, the Court distinguished the earlier Hamilton holding and upheld a challenge to a flag salute requirement: "Here . . . we are dealing with a compulsion of students to declare a belief. . . . This issue is not prejudiced by the Court's previous holding that, where a State, without compelling attendance, extends college facilities to pupils who voluntarily enroll, it may prescribe military training as part of the course without offense to the Constitution. It was held that those who take advantage of its opportunities may not, on ground of conscience, refuse compliance with such conditions. Hamilton v. Regents, 293 U. S. 245 . In the present case, attendance is not optional." 319 U.S. at 319 U. S. 631 -632. [ Footnote 15 ] The distinction between governmental compulsion and conditions relating to governmental benefits contained in these two cases was emphasized by JUSTICE BRENNAN in his concurring opinion in Abington School District v. Schempp, 374 U. S. 203 (1963): "The different results of [ Hamilton and Barnette ] are attributable only in part to a difference in the strength of the particular state interests which the respective statutes were designed to serve. Far more significant is the fact that Hamilton dealt with the voluntary attendance at college of young adults, while Barnette involved the compelled attendance of young children at elementary and secondary schools. This distinction warrants a difference in constitutional results." Id. at 374 U. S. 252 -253 (footnote omitted). Page 476 U. S. 706 We have repeatedly emphasized this distinction: in rejecting a Free Exercise challenge in Bob Jones University v. United States, 461 U. S. 574 , 461 U. S. 603 -604 (1983), for example, we observed that the "[d]enial of tax benefits will inevitably have a substantial impact on the operation of private religious schools, but will not prevent those schools from observing their religious tenets. [ Footnote 16 ]" We conclude then that government regulation that indirectly and incidentally calls for a choice between securing a governmental benefit and adherence to religious beliefs is wholly different from governmental action or legislation that criminalizes religiously inspired activity or inescapably compels conduct that some find objectionable for religious reasons. Although the denial of government benefits over religious objection can raise serious Free Exercise problems, these two very different forms of government action are not governed by the same constitutional standard. A governmental burden on religious liberty is not insulated from review simply because it is indirect, Thomas v. Review Board of Indiana Employment Security Div., 450 U. S. 707 , 450 U. S. 717 -718 (1981) (citing Sherbert v. Verner, 374 U.S. at 374 U. S. 404 ); Page 476 U. S. 707 but the nature of the burden is relevant to the standard the government must meet to justify the burden. The general governmental interests involved here buttress this conclusion. Governments today grant a broad range of benefits; inescapably, at the same time, the administration of complex programs requires certain conditions and restrictions. Although, in some situations, a mechanism for individual consideration will be created, a policy decision by a government that it wishes to treat all applicants alike, and that it does not wish to become involved in case-by-case inquiries into the genuineness of each religious objection to such condition or restrictions is entitled to substantial deference. Moreover, legitimate interests are implicated in the need to avoid any appearance of favoring religious over nonreligious applicants. The test applied in cases like Wisconsin v. Yoder, 406 U. S. 205 (1972), is not appropriate in this setting. In the enforcement of a facially neutral and uniformly applicable requirement for the administration of welfare programs reaching many millions of people, the Government is entitled to wide latitude. The Government should not be put to the strict test applied by the District Court; that standard required the Government to justify enforcement of the use of Social Security number requirement as the least restrictive means of accomplishing a compelling state interest. [ Footnote 17 ] Absent proof of an intent to discriminate against particular religious beliefs or against religion in general, the Government Page 476 U. S. 708 meets its burden when it demonstrates that a challenged requirement for governmental benefits, neutral and uniform in its application, is a reasonable means of promoting a legitimate public interest. We reject appellees' contention that Sherbert and Thomas compel affirmance. The statutory conditions at issue in those cases provided that a person was not eligible for unemployment compensation benefits if, "without good cause," he had quit work or refused available work. The "good cause" standard created a mechanism for individualized exemptions. If a state creates such a mechanism, its refusal to extend an exemption to an instance of religious hardship suggests a discriminatory intent. Thus, as was urged in Thomas, to consider a religiously motivated resignation to be "without good cause" tends to exhibit hostility, not neutrality, towards religion. See Brief for Petitioner 15, and Brief for American Jewish Congress as Amicus Curiae 11, in Thomas v. Review Board of Indiana Employment Security Div., O.T. 1979, No. 79-952. See also Sherbert, supra, at 374 U. S. 401 -402, n. 4; United States v. Lee, 455 U.S. at 455 U. S. 264 , n. 3 (STEVENS, J., concurring in judgment) ( Thomas and Sherbert may be viewed "as a protection against unequal treatment, rather than a grant of favored treatment for the members of the religious sect"). In those cases, therefore, it was appropriate to require the State to demonstrate a compelling reason for denying the requested exemption. Here there is nothing whatever suggesting antagonism by Congress towards religion generally, or towards any particular religious beliefs. The requirement that applicants provide a Social Security number is facially neutral, and applies to all applicants for the benefits involved. Congress has made no provision for individual exemptions to the requirement in the two statutes in question. Indeed, to the contrary, Congress has specified that a state AFDC plan " must . . . provide (A) that, as a condition of eligibility under the plan, each applicant for or recipient of aid shall furnish to the Page 476 U. S. 709 State agency his social security account number," 42 U.S.C. § 602(a)(25) (emphasis added), and that "[s]tate agencies shall (1) require, as a condition of eligibility for participation in the food stamp program, that each household member furnish to the State agency their social security account number," 7 U.S.C. § 2025(e) (emphasis added). Nor are these requirements relics from the past; Congress made the requirement mandatory for the Food Stamp program in 1981. Compare 7 U.S.C. § 2025(f) (1976 ed., Supp. IV) (State agencies "may" require that each household member furnish their Social Security number), with 7 U.S.C. § 2025(e) (States "shall" require that such numbers be furnished). Congress also recently extended to several other aid programs the mandatory requirement that the States use Social Security numbers in verifying eligibility for benefits. See Deficit Reduction Act of 1984, Pub.L. 98-369, § 2651(a), 98 Stat. 1147. The Social Security number requirement clearly promotes a legitimate and important public interest. No one can doubt that preventing fraud in these benefits programs is an important goal. As Representative Richmond explained in support of the bill that made the Social Security number requirement mandatory for the Food Stamp program: "We know that, however generously motivated Americans may be to furnish resources to the poor to enable them to survive, . . . they understandably object if they believe that those resources are being abused or wasted. . . ." "We want to be certain that the food stamp program is run as efficiently and as error-free as possible." "We want applicants and recipients alike constantly to be aware that the Congress does not and will not tolerate any refusal to disclose earnings accurately, and underreporting of welfare or other assistance program benefits, any efforts to evade the work requirement, or any other attempts to take advantage of the program and dollars intended only for those who completely satisfy the stringent Page 476 U. S. 710 eligibility requirements set forth in sections 5 and 7 of the Food Stamp Act of 1977 and further tightened this year and in this bill." 127 Cong.Rec. 24783 (1981). We also think it plain that the Social Security number requirement is a reasonable means of promoting that goal. The programs at issue are of truly staggering magnitude. Each year, roughly 3.8 million families receive $7.8 billion through federally funded AFDC programs, and 20 million persons receive $11 billion in food stamps. The Social Security program itself is the largest domestic governmental program in the United States today, distributing approximately $51 billion monthly to 36 million recipients. Because of the tremendous administrative problems associated with managing programs of this size, the District Court found: "Social security numbers are used in making the determination that benefits in the programs are properly paid and that there is no duplication of benefits or failure of payment. . . . Utilization in the computer system of the name of a benefit recipient alone frequently is not sufficient to ensure the proper payment of benefits." Social Security numbers are unique numerical identifiers, and are used pervasively in these programs. The numbers are used, for example, to keep track of persons no longer entitled to receive food stamps because of past fraud or abuses of the program. Moreover, the existence of this unique numerical identifier creates opportunities for ferreting out fraudulent applications through computer "matching" techniques. One investigation, "Project Match," compared federal employee files against AFDC and Medicaid files to determine instances of Government employees receiving welfare benefits improperly. Data from 26 States were examined, and 9,000 individuals were identified as receiving duplicate welfare payments. While undoubtedly some fraud escapes detection in spite of such investigations, the President's Private Sector Survey on Cost Control, known more popularly as the "Grace Commission," Page 476 U. S. 711 recently reported that matching "is the Federal Government's most cost-effective tool for verification or investigation in the prevention and detection of fraud, waste and abuse." 7 The President's Private Sector Survey on Cost Control, Management Office Selected Issues -- Information Gap in the Federal Government 90 (1984). The importance of the Social Security number to these matching techniques is illustrated by the facts of this case. The District Court found that "efficient operation of these [matching] programs requires the use of computer systems that utilize unique numerical identifiers such as the social security number." 590 F. Supp. at 606. It further found that exempting even appellees alone from this requirement could result in "one or perhaps a few individuals . . . fraudulently obtain[ing] welfare benefits," id. at 612, a prospect the court termed "remote." Id. at 613. The District Court's assessment of this probability seems quite dubious. [ Footnote 18 ] But in any event, we know of no case obligating the Government to tolerate a slight risk of "one or perhaps a few individuals" fraudulently obtaining benefits in order to satisfy a religious objection to a requirement designed to combat that very risk. Appellees may not use the Free Exercise Clause to demand Page 476 U. S. 712 Government benefits, but only on their own terms, particularly where that insistence works a demonstrable disadvantage to the Government in the administration of the programs. As the Court has recognized before, given the diversity of beliefs in our pluralistic society and the necessity of providing governments with sufficient operating latitude, some incidental neutral restraints on the free exercise of religion are inescapable. As a matter of legislative policy, a legislature might decide to make religious accommodations to a general and neutral system of awarding benefits, [ Footnote 19 ] "[b]ut our concern is not with the wisdom of legislation, but with its constitutional limitation." Braunfeld v. Brown, 366 U. S. 599 , 366 U. S. 608 (1961) (plurality opinion). We conclude that the Congress' refusal to grant appellees a special exemption does not violate the Free Exercise Clause. The judgment of the District Court is vacated and the case is remanded. It is so ordered. [ Footnote 1 ] We refer to the statutory scheme as it existed at the time appellees filed suit. The scheme has since been amended, although the Social Security number requirement has been retained in virtually identical form. See Deficit Reduction Act of 1984, Pub.L. 98-369, § 2651(a), 98 Stat. 1147. [ Footnote 2 ] Roy and Miller both have Social Security numbers. They also obtained a Social Security number for their 5-year-old daughter Renee at some time prior to the present dispute. [ Footnote 3 ] "[Q.] Mr. Roy, could you explain why obtaining a Social Security Number for Little Bird of the Snow would be contrary to your religious beliefs as a native Abenaki?" "A. Yes. Because we felt that this number would be used to rob her of her ability to have greater power in that this number is a unique number. It serves unique purposes. It's applied to her and only her; and being applied to her, that's what offends us, and we try to keep her person unique, and we try to keep her spirit unique, and we're scared that, if we were to use this number, she would lose control of that, and she would have no ability to protect herself from any evil that that number might be used against her." App. 85. [ Footnote 4 ] They also raise a statutory argument -- that the Government's denial of benefits to them constitutes illegal discrimination on the basis of religion or national origin. See 42 U.S.C. § 2000d; 7 U.S.C. §2011. We find these claims to be without merit. [ Footnote 5 ] The Food Stamp program restrictions that appellees challenge contain restrictions virtually identical to those in the AFDC program quoted in the text. See 7 U.S.C. § 2025(e). [ Footnote 6 ] Roy's religious views may not accept this distinction between individual and governmental conduct. See, e.g., n 3, supra. It is clear, however, that the Free Exercise Clause, and the Constitution generally, recognize such a distinction; for the adjudication of a constitutional claim, the Constitution, rather than an individual's religion, must supply the frame of reference. [ Footnote 7 ] This issue is clearly not moot in light of our discussion in 476 U. S. contrary to the suggestion of the two concurrences. JUSTICE STEVENS asserts that "there is nothing in the record to suggest that the Government will not pay the benefits in dispute as soon as the District Court's injunction against the use of the number has been vacated." Post at 476 U. S. 723 . To my mind, this statement, while true, fundamentally misperceives the nature of appellees' suit. Appellees do not seek to have the Government "pay the benefits in dispute as soon as the District Court's injunction against use of the number has been vacated." Such payment would entail use of Little Bird of the Snow's Social Security number, use that appellees filed suit to prevent. JUSTICE BLACKMUN similarly believes that, on remand, "it is possible that the Government, in a welcome display of reasonableness, will decide that, since it already has a Social Security number for Little Bird of the Snow, it will not insist that appellees resupply it." Post at 476 U.S. 714 -715. My reading of the record is that such an occurrence is not a mere "possibility." JUSTICE STEVENS cites federal regulations that provide that the Government will assist households that, for some reason or other, are unable to furnish a Social Security number. See post at 476 U. S. 721 -722. Moreover, the Government's brief in this Court reports that "we are advised by the Social Security Administration that the agency itself assigns [Social Security numbers] to persons who are required by federal law to have one, but decline to complete an application. If, for religious reasons, the individual requiring [a Social Security number] does not wish to receive a social security card, the agency will accommodate that request. Similarly, when an applicant refuses to sign an application for [a Social Security number] on religious grounds, [Social Security Administration personnel] may sign in lieu of the applicant." Brief for Appellants 46, n.19 (emphasis added; citations omitted). Thus, the Government undoubtedly would be happy to "supply" the number for appellees -- i.e., fill the number in on their applications -- if this is what they wanted. But appellees do not desire any such assistance from the Government; instead they filed suit seeking a ruling excluding them from the operation of any portion of the statutory scheme involving Social Security numbers. They continue to press this claim in this Court. For the reasons advanced here, this claim ultimately lacks merit, but it certainly is not moot. Also, in view of our analysis of the case, because all relevant facts are before the Court and further proceedings in the District Court could not produce information that would change the result, the case is ripe for decision. [ Footnote 8 ] Cf. Cantwell v. Connecticut, 310 U. S. 296 , 305 (1940). [ Footnote 9 ] Cf. Follett v. Town of McCormick, 321 U. S. 573 , 577-578 (1944); Murdock v. Pennsylvania, 319 U. S. 105 , 112 (1943). [ Footnote 10 ] Cf. Kedroff v. St. Nicholas Cathedral, 344 U. S. 94 (1952). [ Footnote 11 ] Cf. NLRB v. Catholic Bishop of Chicago, 440 U. S. 490 (1979). [ Footnote 12 ] Cf. Prince v. Massachusetts, 321 U. S. 158 (1944); Cox v. New Hampshire, 312 U. S. 569 , 312 U. S. 574 (1941); Pierce v. Society of Sisters, 268 U. S. 510 (1925); Reynolds v. United States, 98 U. S. 145 , 98 U. S. 167 (1879). [ Footnote 13 ] United States v. Lee, 455 U. S. 252 , 455 U. S. 259 (1982); Wisconsin v. Yoder, 406 U. S. 205 (1972); Gilette v. United States, 401 U. S. 437 (1971); West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943); Jacobson v. Massachusetts, 197 U. S. 11 (1905). [ Footnote 14 ] Concurring in McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 521 (1961), Justice Frankfurter viewed it as important that the challenged statutes "do not make criminal, do not place under the onus of civil or criminal disability, any act which is itself prescribed by the duties of the Jewish or other religions." In Braunfeld v. Brown, 366 U. S. 599 , 366 U. S. 605 -606 (1961), the plurality opinion emphasized: "Fully recognizing that the alternatives open to appellants and others similarly situated . . . may result in some financial sacrifice in order to observe their religious beliefs; still the option is wholly different than when the legislation attempts to make a religious practice itself unlawful." [ Footnote 15 ] In Wisconsin v. Yoder, supra, at 406 U. S. 218 , we similarly relied on the fact that "[t]he impact of the compulsory attendance law on respondents' practice of the Amish religion is not only severe, but inescapable, for the Wisconsin law affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs." [ Footnote 16 ] JUSTICE O'CONNOR's partial dissent asserts that the Court's holding "has no basis in precedent," post at 476 U. S. 727 . To the contrary, it is the history advanced by the dissenting opinions that is revisionist. The dissent characterizes our prior cases as holding that the denial of a benefit is the same, for constitutional purposes, as the imposition of a criminal sanction. In Bob Jones University, however, the Court upheld the denial of tax benefits to a school that prohibited interracial dating, observing that the school remained wholly free to "observ[e] [its] religious tenets." 461 U.S. at 461 U. S. 604 . If denying governmental benefits is the same as imposing criminal sanctions, then the Free Exercise Clause could not prevent the Government from ordering Bob Jones University, under pain of criminal penalty, to violate its religious beliefs and permit interracial dating on its campus. But that difficult question is still an open one, since "the Constitution may compel toleration of private discrimination in some circumstances." Norwood v. Harrison, 413 U. S. 455 , 413 U. S. 463 (1973). [ Footnote 17 ] It is readily apparent that virtually every action that the Government takes, no matter how innocuous it might appear, is potentially susceptible to a Free Exercise objection. For example, someone might raise a religious objection, based on Norse mythology, to filing a tax return on a Wednesday (Woden's day). Accordingly, if the dissent's interpretation of the Free Exercise Clause is to be taken seriously, then the Government will be unable to enforce any generally applicable rule unless it can satisfy a federal court that it has a "compelling government interest." While libertarians and anarchists will no doubt applaud this result, it is hard to imagine that this is what the Framers intended. [ Footnote 18 ] The District Court's assessment appears to have turned in part on its belief that it was unlikely that Little Bird of the Snow or her parents would attempt fraudulently to obtain welfare benefits. Without in any way questioning the conclusion that appellees are law-abiding citizens, we believe that the District Court misperceived the nature of the Government's interest. The Government's interest is ensuring a fraud-resistent system in the event that a fraudulent application is made by appellees. This misunderstanding of the Government's interest probably accounts for the District Court's conclusion that the Government's interest in preventing fraud "can be satisfied without requiring a social security number for Little Bird of the Snow." 590 F. Supp. at 607. In any event, this conclusionary statement is certainly at odds with the District Court's more specific statement quoted in text regarding the prospects for "one or perhaps a few individuals . . . fraudulently obtain[ing] welfare benefits." Indeed, the partial dissent appears to concede that its position might result in one or perhaps a few individuals fraudulently receiving benefits. [ Footnote 19 ] An exemption adopted by Congress to accommodate religious beliefs such as appellees' would not violate the First Amendment's Establishment Clause. See Sherbert v. Verner, 374 U. S. 398 , 374 U. S. 409 -410 (1963). JUSTICE BLACKMUN, concurring in part. I join only Parts I and II of the opinion written by THE CHIEF JUSTICE. In August, 1983, appellees Stephen J. Roy and Karen Miller sued to prevent the Government from requiring them to provide a social security number for their 2-year-old daughter, Little Bird of the Snow, as a condition for obtaining food stamps and welfare benefits for the child. They object to the social security number requirement because of their sincere religious conviction that the Government's widespread use of a unique numerical identifier for their daughter will deprive her of spiritual power. After it developed at trial that the Government already had a social security Page 476 U. S. 713 number for Little Bird of the Snow, the District Court enjoined the Government not only from denying benefits to her based on her parents' failure to provide a social security number, but also from using or disseminating the number already in the Government's possession until the child's 16th birthday. App. to Juris. Statement 25a. I agree with the Court that the District Court erred in enjoining the Government's internal use of Little Bird of the Snow's social security number. It is easy to understand the rationale for that part of the District Court's injunction: appellees argue plausibly that the Government's threat to put the social security number into active use if they apply for benefits for their daughter requires them to choose between the child's physical sustenance and the dictates of their faith, the same dilemma created by the Government's initial requirement that appellees themselves supply a social security number for Little Bird of the Snow. Cf. Sherbert v. Verner, 374 U. S. 398 , 374 U. S. 404 (1963). They claim that, absent some compelling state interest, the Government should refrain from acting in ways that appellees believe on religious grounds will harm their daughter's spiritual development. Although this argument has some facial appeal, I conclude, for the reasons stated in 476 U. S. that it stretches the Free Exercise Clause too far. Consequently, I agree that the portion of the District Court's judgment that enjoins the Government from using or disseminating the social security number already assigned to Little Bird of the Snow must be vacated. I would also vacate the remainder of the judgment and remand the case for further proceedings, because, once the injunction against use or dissemination is set aside, it is unclear on the record presently before us whether a justiciable controversy remains with respect to the rest of the relief ordered by the District Court. Roy and Miller evidently objected to the social security number requirement primarily because they did not want the Government Page 476 U. S. 714 to be able to use a unique numerical identifier for Little Bird of the Snow, and that injury cannot be redressed if, as the Court today holds, the Government cannot be enjoined from using the preexisting number. It is possible, however, that appellees still would have an independent religious objection to their being forced to cooperate actively with the Government by themselves providing their daughter's social security number on benefit applications. Cf. United States v. Lee, 455 U. S. 252 , 455 U. S. 257 (1982); Thomas v. Review Board of Indiana Employment Security Div., 450 U. S. 707 , 450 U. S. 711 (1981). In my view, the record is ambiguous on this score. In rejecting the Government's argument that the existence of the number rendered the case moot, the District Court found that Roy "feels compelled by his religious belief to avoid any use of that number and, to that end, has refused to provide the number to the Defendants in order to receive welfare benefits for Little Bird of the Snow." Roy v. Cohen, 590 F. Supp. 600 , 608 (MD Pa.1984). It is unclear whether the "use" to which the District Court referred included use by Roy and Miller, or just the more extensive use of the number by the Government. And even if the court meant to refer only to use by the Government, it is not clear that appellees do not also have an independent religious objection to the requirement that they provide a social security number for their daughter. On the other hand, even if appellees do have such an objection, vacating the District Court's injunction against governmental use or dissemination of the number may moot this case in other ways. Regardless of whether Roy and Miller are required to provide their daughter's social security number on applications for benefits, they may simply be unwilling to apply for benefits without an assurance that the application will not trigger the use of the number. Conversely, it is possible that the Government, in a welcome display of reasonableness, Page 476 U. S. 715 will decide that, since it already has a social security number for Little Bird of the Snow, it will not insist that appellees resupply it. [ Footnote 2/1 ] Since the proceedings on remand might well render unnecessary any discussion of whether appellees constitutionally may be required to provide a social security number for Little Bird of the Snow in order to obtain Government assistance on her behalf, that question could be said not to be properly before us. I nonetheless address it, partly because the rest of the Court has seen fit to do so and partly because I think it is not the kind of difficult constitutional question that we should refrain from deciding except when absolutely necessary. Indeed, for the reasons expressed by JUSTICE O'CONNOR, see post at 476 U. S. 726 -732, I think the question requires nothing more than a straightforward application of Page 476 U. S. 716 Sherbert, Thomas, and Wisconsin v. Yoder, 406 U. S. 205 (1972). [ Footnote 2/2 ] If it proves necessary to reach the issue on remand, I agree with JUSTICE O'CONNOR that, on the facts as determined by the District Court, the Government may not deny assistance to Little Bird of the Snow solely because her parents' religious convictions prevent them from supplying the Government with a social security number for their daughter. [ Footnote 2/1 ] Unfortunately, I cannot agree that such flexibility on the Government's part is assured either by the Government's earlier argument to the District Court that the case should be dismissed as moot, or by regulations providing special assistance to handicapped applicants and applicants who cannot read and write English. Cf. ante at 476 U. S. 701 -702, n. 7 (opinion of BURGER, C.J.); post at 476 U. S. 720 (STEVENS, J., concurring in part and concurring in result). Before this Court, the Government concedes only that " it would not be an unreasonable construction of the statutes [at issue in this case] to conclude that they are satisfied by the government's ability to use [social security numbers] already in its possession, as is the case with Little Bird of the Snow, or by the government's ability to assign (and then use) [a number] for a person who refuses to apply for one." Brief for Appellants 46, n.19 (emphasis added). What the Government does not say is that it, in fact ,will adopt this construction, which it does not appear to have followed in the past. It is worth recalling that the Government's response to appellees' refusal to supply a social security number for their daughter was not to assign her a number unilaterally, or to offer to do so, but rather to cut off benefits for the child. Given THE CHIEF JUSTICE's contrary view that the Government "undoubtedly" will not insist that appellees themselves provide a social security number for Little Bird of the Snow, see ante at 476 U. S. 702 , n. 7, I am at a loss to understand why THE CHIEF JUSTICE believes there is still a live controversy. [ Footnote 2/2 ] I do not share JUSTICE STEVENS' narrow view of Sherbert and Thomas. Compare post at 476 U. S. 722 , n. 17, with Goldman v. Weinberger, 475 U. S. 503 , 475 U. S. 524 (1986) (BLACKMUN, J., dissenting). Consequently, I have no occasion to consider separately, as he does, the "hypothetical questions," post at 476 U. S. 723 , that would arise if the Government refused to grant religious objectors an exemption from the social security number requirement while simultaneously offering comparable exemptions and special assistance to applicants who are prevented in other ways from completing the required application forms. See post at 476 U. S. 720 -722. JUSTICE STEVENS, concurring in part and concurring in the result. Members of the Abenaki Indian Tribe are unquestionably entitled to the same constitutional protection against governmental action "prohibiting the free exercise" of their religion as are the adherents of other faiths. [ Footnote 3/1 ] Our respect for the sincerity of their religious beliefs does not, however, relieve us from the duty to identify the precise character of the two quite different claims that the parents of Little Bird of the Snow have advanced. They claim, first, that they are entitled to an injunction preventing the Government from making any use of a Social Security number assigned to Little Bird of the Snow, and second, that they are entitled to receive a full allowance of food stamps and cash assistance for Little Bird of the Snow without providing a Social Security number for her. As the Court holds in Part 476 U. S. which I join, the first claim must fail because the Free Exercise Clause Page 476 U. S. 717 does not give an individual the right to dictate the Government's method of recordkeeping. The second claim, I submit, is either moot or not ripe for decision. I In order to understand the precise nature and current posture of appellees' claims, it is necessary to emphasize an extremely unusual feature of this case. At the outset of the litigation, the parties assumed -- indeed, they stipulated to -- a critical fact that was discovered to be inaccurate on the last day of the trial. Although the parties believed that Little Bird of the Snow did not have a Social Security number, the District Court found, and the parties now agree, that she has had a Social Security number since birth. The contrary belief had been central to the parties' perception of the litigation, and to the requested relief. It is thus also central to the state of the record as we find it. At the state agency administrative hearing on the threatened withdrawal of certain benefits, the issue had been framed as whether to affirm a decision "determining the appellant's daughter, Little Bird of the Snow, ineligible for public assistance and Medical Assistance because the appellant would not apply for a Social Security Number for her. [ Footnote 3/2 ]" In their complaint, Little Bird's parents alleged that "[t]he sole basis" for the denial of welfare benefits was "Mr. Roy's refusal to obtain a Social Security Number for Little Bird of the Snow," [ Footnote 3/3 ] and thus requested injunctive relief, damages, and benefits. In the statement of "undisputed facts," the parties stipulated that Little Bird of the Snow did not have a Social Security number. [ Footnote 3/4 ] In the District Court's opinion Page 476 U. S. 718 denying summary judgment, the court began its opinion by observing that Roy and Miller "have refused to obtain a Social Security number for their two-year-old daughter, Little Bird of the Snow, on the ground that doing so would be contrary to their Native Abenaki Indian religious beliefs. [ Footnote 3/5 ]" At trial, Roy's counsel introduced his case by emphasizing that Little Bird of the Snow, unlike the other members of the family, did not have a Social Security number, and thus had not been exposed to the evil that the number represents. [ Footnote 3/6 ] In Roy's own testimony, he emphasized the evil that would flow from obtaining a number. [ Footnote 3/7 ] On the last day of trial, however, in response to questions, a federal official inquired, during a court recess, whether Little Bird of the Snow already had a Social Security number, and discovered that she had been assigned a Social Security number at birth. [ Footnote 3/8 ] This discovery had a dramatic impact on the litigation, and on the judgment under review. Because there was no longer any apparent basis for the dispute, the Government Page 476 U. S. 719 suggested that the case had become moot. [ Footnote 3/9 ] Roy, however, responded to the discovery by changing his request for relief and asking for a cancellation of the existing number. [ Footnote 3/10 ] Concluding that the discovery did not moot the case, [ Footnote 3/11 ] the District Court denied the request for damages and benefits, but granted injunctive relief. The injunction -- the judgment that we are considering -- contains two basic components. First, the Secretary of Health and Human Services is "permanently restrained from making any use of the social security number which was issued in the name of Little Bird of the Snow Roy and from disseminating the number to any agency, individual, business entity, or any other third party. [ Footnote 3/12 ]" Second, the federal and state defendants are enjoined until Little Bird of the Snow's 16th birthday from denying Roy cash assistance, medical assistance, and food stamps "because of the Plaintiffs' refusal to provide a social security number for her." [ Footnote 3/13 ] Of course, if the injunction preventing the Secretary from making use of the already existing number had not been granted, there would have been no apparent impediment to providing the benefits that had previously been denied. As the case comes to us, the first question to be decided is whether the District Court erred in effectively canceling the number that had already been issued for Little Bird of the Snow, and that established the appellees' eligibility for the benefits in dispute. The Court correctly holds that the District Page 476 U. S. 720 Court did err, and that "the portion of the District Court's injunction that permanently restrained the Secretary from making any use of the Social Security number that had been issued in the name of Little Bird of the Snow Roy must be vacated." Ante at 476 U. S. 701 . Having so held, however, the Court should pause to consider whether any other constitutional issue need be addressed. For, as the Court demonstrates, an objection to the Government's use of a Social Security number, and a possible objection to "providing" the number when the Government already has it, pose very different constitutional problems. II Once we vacate the injunction preventing the Government from making routine use of the number that has already been assigned to Little Bird of the Snow, there is nothing disclosed by the record to prevent the appellees from receiving the payments that are in dispute. Indeed, since the Government itself suggested to the District Court that the case had become moot as soon as it was learned that a Social Security number already existed, it is obvious that the Government perceives no difficulty in making the requested payments in the future. The only issue that prevented the case from becoming moot was the claim asserted by Roy that he was entitled to an injunction that effectively canceled the existing number. Since that issue has now been resolved, nothing remains of the case. Neither Roy nor the Government has pointed to anything in the record suggesting that Roy will be under any further obligation to "provide" a Social Security number for Little Bird of the Snow. Even if one makes the unsupported assumption that Roy may object to filing certain forms in the future, there is a conspicuous lack of evidence and findings concerning the extent to which such requirements might impose a burden either on Roy or on any other person who finds difficulty in providing information on pertinent forms. Page 476 U. S. 721 The absence of this information in the record is significant. Current regulations suggest that assistance for such difficulties may well be available in the programs at issue, [ Footnote 3/14 ] particularly for those with mental, physical, and linguistic handicaps that prevent completion of the required forms, [ Footnote 3/15 ] or other required steps in the application process. [ Footnote 3/16 ] To the extent that Page 476 U. S. 722 other food stamp and welfare applicants are, in fact, offered exceptions and special assistance in response to their inability to "provide" required information, it would seem that a religious inability should be given no less deference. For our recent free exercise cases suggest that religious claims should not be disadvantaged in relation to other claims. [ Footnote 3/17 ] These considerations highlight the fact that, if this case is not moot, it surely is not ripe. The case, as litigated, simply bears no resemblance to the currently abstract question about what the Government may require if it seeks a Social Security number that it already has. Consistent with our longstanding principles of constitutional adjudication, we should decide nothing more than is actually necessary to dispose of the precise dispute before the Court, [ Footnote 3/18 ] and nothing more than is fairly presented by the Page 476 U. S. 723 record and the factual findings. [ Footnote 3/19 ] Because the District Court has not made findings about the extent to which other exceptions and assistance are available for those who cannot, or do not, "provide" required information, and because there is nothing in the record to suggest that the Government will not pay the benefits in dispute as soon as the District Court's injunction against the use of the number has been vacated, I concur in the judgment vacating the remainder of the injunction. No matter how interesting, or how clear their answers may appear to be, however, I would not address the hypothetical questions debated by THE CHIEF JUSTICE and JUSTICE O'CONNOR, because they are not properly presented by the record in this case. [ Footnote 3/20 ] Page 476 U. S. 724 [ Footnote 3/1 ] The First Amendment provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ." [ Footnote 3/2 ] Department of Public Welfare Adjudication, Complaint, Ex. A, p. 2. [ Footnote 3/3 ] Complaint � 11. [ Footnote 3/4 ] Statement of Undisputed Facts � 6, App. 13 ("With the exception of Little Bird of the Snow, [the members of the Roy family] all have Social Security Numbers"); � 20, App. 14 ("The sole basis for these actions [the reduction of AFDC and medical assistance] was Mr. Roy's refusal to obtain a Social Security Number for Little Bird of the Snow"). [ Footnote 3/5 ] App. to Juris. Statement 27a. [ Footnote 3/6 ] See App. 52-53 ("Mr. Roy has a Social Security number, as does his eldest daughter, Renee; but, as Mr. Roy will explain, the number was obtained before he became aware of what he perceives as a potential for evil of these numbers; and he will tell you that, once that number is provided, the evil is done, and continuing to do so has no further effect; but with respect to Little Bird of the Snow, he simply cannot do so"). [ Footnote 3/7 ] "[Q.] Mr. Roy, could you explain why obtaining a Social Security Number for Little Bird of the Snow would be contrary to your religious beliefs as a native Abenaki?" "A. Yes. Because we felt that this number would be used to rob her of her ability to have greater power in that this number is a unique number. It serves unique purposes. It's applied to her and only her; and being applied to her, that's what offends us, and we try to keep her person unique, and we try to keep her spirit unique, and we're scared that, if we were to use this number, she would lose control of that, and she would have no ability to protect herself from any evil that that number might be used against her." Id. at 85. [ Footnote 3/8 ] Id. at 442-443. [ Footnote 3/9 ] See id. at 514-515 (argument of Deputy Attorney General of Pennsylvania); id. at 521 (argument of Attorney for United States Dept. of Justice); Record, Doc. No. 68, p. 2 (federal defendants' motion to dismiss). [ Footnote 3/10 ] Record, Doc. No. 65, pp. 2-3. [ Footnote 3/11 ] See Roy v. Cohen, 590 F. Supp. 600 , 605 (MD Pa.1984) (finding of fact 33) ("Roy believes that the establishment of a social security number for Little Bird of the Snow, without more, has not robbed her spirit,' but widespread use of the social security number by the federal or state governments in their computer systems would have that effect"). [ Footnote 3/12 ] App. to Juris. Statement 24a. [ Footnote 3/13 ] Id. at 25a. [ Footnote 3/14 ] See, e.g., 7 CFR §273.2(c)(1) (1986) ("The household shall be advised that it . . . may file an incomplete application form as long as the form contains the applicant's name and address and is signed by a responsible member of the household or the household's authorized representative"). [ Footnote 3/15 ] See 7 CFR § 282.17(c)(3)(v) (1985) ("Households which require special assistance in order to apply for food stamps if that special assistance will not be available for completing the monthly reports. Special assistance shall include authorized representatives to complete monthly reports, home visits or telephone reporting in lieu of the report form. Such households may be comprised of blind, mentally or physically disabled persons, persons whose reading and writing skills are so limited that they cannot complete monthly reports on their own, or non-English speaking persons residing in project areas where the bilingual requirement of § 272.4(c) do not apply"). [ Footnote 3/16 ] See 7 CFR § 273.2(e)(2) (1985) ("The office interview shall be waived if requested by any household which is unable to appoint an authorized representative and which has no household members able to come to the food stamp office because they are 65 years of age or older, or are mentally or physically handicapped"); ibid; ("The State agency shall waive the office interview on a case-by-case basis for any household which is unable to appoint an authorized representative and which has no household members able to come to the food stamp office because of transportation difficulties or similar hardships which the State agency determines warrants a waiver of the office interview. These hardship conditions include, but are not limited to: illness, care of a household member, prolonged severe weather, or work hours which preclude in-office interview"). Indeed, the regulations suggest that there may be a limited exception to the Social Security number requirement itself. See 7 CFR § 273.6 (b)(2) (1985) ("For those individuals required to provide an SSN who do not have one, the State agency shall act as follows. . . . If an individual applies through the State agency, the State agency shall complete the application for an SSN, Form SS-5"); 50 Fed.Reg. 10469 (1985) (proposed 7 CFR § 273.6(d)) ("In determining if good cause exists for failure to comply with the requirement to apply for or provide the State agency with an SSN, the State agency shall consider information from the household member, the Social Security Administration, and the State agency. . . . Good cause does not include delays due to illness, lack of transportation or temporary absences, because SSA makes provisions for mail-in applications in lieu of applying in person. . . . If the household member(s) applying for an SSN has been unable to obtain the documents required by SSA, the State agency caseworker should make every effort to assist the individual(s) in obtaining these documents"). [ Footnote 3/17 ] In Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 (1981), and Sherbert v. Verner, 374 U. S. 398 (1963), the granting of a religious exemption was necessary to prevent the treatment of religious claims less favorably than other claims. See United States v. Lee, 455 U. S. 252 , 455 U. S. 264 , n. 3 (1982) (STEVENS, J., concurring in judgment) (In Thomas and Sherbert, "the treatment of the religious objection to the new job requirements as though it were tantamount to a physical impairment that made it impossible for the employee to continue to work under changed circumstances could be viewed as a protection against unequal treatment, rather than a grant of favored treatment for the members of the religious sect"). [ Footnote 3/18 ] See Rescue Army v. Municipal Court, 331 U. S. 549 , 331 U. S. 569 (1947) ("[C]onstitutional issues affecting legislation will not be determined . . . in broader terms than are required by the precise facts to which the ruling is to be applied"); Coffman v. Breeze Corp., 323 U. S. 316 , 323 U. S. 324 -325 (1945) ("[T]he Court will not pass upon the constitutionality of legislation . . . until it is necessary to do so to preserve the rights of the parties"); Liverpool, New York and Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U. S. 33 , 113 U. S. 39 (1885) (This Court "is bound by two rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other, never to formulate a rule of constitutional law broader than is required by the precise facts to which it is applied"). [ Footnote 3/19 ] See Bender v. Williamsport Area School Dist., 475 U. S. 534 , 475 U. S. 542 , n. 5 (1986) ("We have frequently recognized the importance of the facts and the fact-finding process in constitutional adjudication"); Minnick v. California Dept. of Corrections, 452 U. S. 105 , 452 U. S. 123 (1981) ("In this case, our analysis of the question whether the federal constitutional issues may be affected by additional proceedings in the state courts . . . is . . . affected by ambiguities in the record"); England v. Louisiana Board of Medical Examiners, 375 U. S. 411 , 375 U. S. 416 (1964) ("How the facts are found will often dictate the decision of federal claims"); Townsend v. Sain, 372 U. S. 293 , 372 U. S. 312 (1963) ("It is the typical, not the rare, case in which constitutional claims turn upon the resolution of contested factual issues"); Wiener v. United States, 357 U. S. 349 , 357 U. S. 352 (1958) ("The versatility of circumstances often mocks a natural desire for definitiveness"); Hammond v. Schappi Bus Line, 275 U. S. 164 , 275 U. S. 171 -172 (1927) ("Before any of the questions suggested, which are both novel and of far-reaching importance, are passed upon by this Court, the facts essential to their decision should be definitely found by the lower courts upon adequate evidence"). [ Footnote 3/20 ] Curiously, in explaining why they discourse at length on constitutional questions, THE CHIEF JUSTICE and JUSTICE O'CONNOR appear to rely on different factual assumptions. Compare ante at 476 U. S. 702 , n. 7 (BURGER, C.J.) (The "Government undoubtedly would be happy to supply' the number for appellees -- i.e., fill the number in on their applications -- if this is what they wanted"), with post at 476 U. S. 725 (O'CONNOR, J., concurring in part and dissenting in part) ("The Government still refuses to concede that it should now provide welfare benefits to Little Bird of the Snow, even though it now claims to possess Little Bird of the Snow's Social Security number"). It is, of course, an elementary principle of judicial restraint that uncertainty about the facts should prevent unnecessary constitutional disquisitions. JUSTICE O'CONNOR, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, concurring in part and dissenting in part. I join Parts 476 U. S. S. 699|>II of THE CHIEF JUSTICE's opinion, and I would vacate only a portion of the injunction issued by the District Court. I I believe that appellees cannot pursue their free exercise claim based solely on the actions of the Government with respect to the use of a Social Security number already in its possession, or with respect to any other identification number the Government may wish to assign and use in connection with its administration of its welfare assistance program. Accordingly, I join Parts 476 U. S. S. 699|>II of THE CHIEF JUSTICE's opinion, and I would vacate that portion of the District Court's judgment that enjoins the Government from using or disseminating the Social Security number already assigned to Little Bird of the Snow. In all, eight Members of the Court believe that the District Court's injunction was overbroad in preventing the Government from using information already in its possession. See ante at 476 U. S. 699 -701 (opinion of BURGER, C.J., joined by POWELL and REHNQUIST, JJ.); ante at 476 U. S. 716 -717 (STEVENS, J., concurring in part and concurring in the result); ante at 476 U. S. 713 (BLACKMUN, J., concurring in part); supra, this page. A logical next step on the facts of this case is to consider whether the case is moot. Only two Members of the Court Page 476 U. S. 725 believe that the case is, or may be, moot. See ante at 476 U. S. 720 -723 (STEVENS, J., concurring in part and concurring in result) (stating that the case is moot or not ripe); ante at 476 U.S. 714 -716 (BLACKMUN, J., concurring in part) (District Court should consider whether the case is moot). I agree with THE CHIEF JUSTICE, ante at 476 U. S. 701 -702, n. 7, that the case is not moot. The District Court enjoined the Government not only from disseminating or using the Social Security number already in its possession, but "from denying Plaintiff Roy cash assistance and medical assistance benefits for Little Bird of the Snow for the Plaintiffs' failure to provide a social security number for her." App. to Juris. Statement 24a. Because of this portion of the District Court's injunction, we continue to have before us a live case or controversy. Mr. Roy sought in part an injunction that "restrai[ns the Government] from denying cash assistance and medical assistance to Little Bird of the Snow for failure to provide a Social Security Number." Record, Doc. No. 65, Proposed Orders Submitted by Plaintiff 1-2. The District Court granted that relief. App. to Juris. Statement 24a. The Government still refuses to concede that it should now provide welfare benefits to Little Bird of the Snow, even though it now claims to possess Little Bird of the Snow's Social Security number, and even though the Solicitor General has been "advised by the Social Security Administration that the agency itself assigns [Social Security numbers] to persons who are required by federal law to have one, but decline to complete an application." Brief for Appellants 46, n.19. Because the Government contests the District Court's decision that the Government may not deny welfare benefits to Little Bird of the Snow despite its acknowledgment of appellees' sincere religious objections, Mr. Roy may properly press his suit. Although the Government properly challenges part of the District Court's injunction as overbroad, it seeks to overturn the rest of the injunction only on the grounds that the District Court improperly applied the substantive standards of the First Amendment. Page 476 U. S. 726 II Given that a majority of the Court believes that the Government may use and disseminate information already in its possession, and given that the case is not moot, there is probably less remaining in this case than meets the eye. The interest asserted by the Government before the District Court could be wholly served after accommodating appellees' sincere religious beliefs, and the interests remaining after vacating the overbroad portion of the injunction are certainly no more difficult to pursue. The Government has identified its goal as preventing fraud and abuse in the welfare system, a goal that is both laudable and compelling. The District Court, however, soundly rejected the Government's assertion that provision of the Social Security number was necessary to prevent such fraud and abuse. Among the means for which the Social Security number is used to reduce such fraud is "cross-matching," in which various computerized lists are compared with the welfare rolls to detect unreported income, individuals claimed as part of more than one household, and other fraudulent practices. Roy v. Cohen, 590 F. Supp. 600 , 606-607 (MD Pa.1984). As now appears, the Government not only has the Social Security number it wants for Little Bird of the Snow, but it can also use it. But even under the erroneous assumption of the District Court that no such number was available for use, that court found as a fact that, while cross-matching is "more difficult" without Social Security numbers, "[t]he file on a particular benefit recipient can be identified and cross-matching performed, if the recipient's full name, date of birth, and parents' names are entered into the computerized systems." Id. at 607. The District Court's generalized evaluation of the asserted indispensability of the Social Security number similarly undermines the Government's claim here: " The government's interest in preventing Little Bird of the Snow from fraudulently receiving welfare benefits can be satisfied without requiring a social security number Page 476 U. S. 727 for Little Bird of the Snow." Ibid. (emphasis added). Faced with these facts, however, THE CHIEF JUSTICE not only believes appellees themselves must provide a Social Security number to the Government before receiving benefits, but he also finds it necessary to invoke a new standard to be applied to test the validity of Government regulations under the Free Exercise Clause. Ante at 476 U. S. 707 -708. He would uphold any facially neutral and uniformly applicable governmental requirement if the Government shows its rule to be "a reasonable means of promoting a legitimate public interest." Ante at 476 U. S. 708 . Such a test has no basis in precedent, and relegates a serious First Amendment value to the barest level of minimal scrutiny that the Equal Protection Clause already provides. I would apply our long line of precedents to hold that the Government must accommodate a legitimate free exercise claim unless pursuing an especially important interest by narrowly tailored means. This Court has stated: "Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists." Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 , 450 U. S. 717 -718 (1981). Indeed, THE CHIEF JUSTICE appears to acknowledge at least that the law at issue here involves governmental compulsion. See ante at 476 U. S. 704 ("[W]e do not believe that no government compulsion is involved"). The Free Exercise Clause is therefore clearly implicated in this case. See Thomas v. Review Bd., supra, at 450 U. S. 717 -718; Sherbert v. Verner, 374 U. S. 398 , 374 U. S. 403 -406 (1963). Page 476 U. S. 728 Once it has been shown that a governmental regulation burdens the free exercise of religion, "only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion." Wisconsin v. Yoder, 406 U. S. 205 , 406 U. S. 215 (1972). This Court has consistently asked the Government to demonstrate that unbending application of its regulation to the religious objector "is essential to accomplish an overriding governmental interest," United States v. Lee, 455 U. S. 252 , 455 U. S. 257 -258 (1982), or represents "the least restrictive means of achieving some compelling state interest," Thomas v. Review Bd., supra, at 450 U. S. 718 . See also Braunfeld v. Brawn, 366 U. S. 599 , 366 U. S. 607 (1961); Sherbert v. Verner, supra, at 374 U. S. 406 . Only an especially important governmental interest pursued by narrowly tailored means can justify exacting a sacrifice of First Amendment freedoms a§ the price for an equal share of the rights, benefits, and privileges enjoyed by other citizens. Granting an exemption to Little Bird of the Snow, and to the handful of others who can be expected to make a similar religious objection to providing the Social Security number in conjunction with the receipt of welfare benefits, will not demonstrably diminish the Government's ability to combat welfare fraud. The District Court found that the governmental appellants had hardly shown that a significant number of other individuals were likely to make a claim similar to that at issue here: "There have been four reported cases involving challenges to the social security number requirement for welfare benefits based upon the contention that the number violates sincerely held religious beliefs of the welfare recipient." 590 F. Supp. at 607. Cf. United States v. Lee, supra, (refusing request for exemption from mandatory taxation); Gillette v. United States, 401 U. S. 437 (1971) (refusing request for exemption from involuntary military service). The danger that a religious exemption would invite or encourage fraudulent applications seeking Page 476 U. S. 729 to avoid cross-matching performed with the use of Social Security numbers is remote on the facts as found by the District Court: few would-be lawbreakers would risk arousing suspicion by requesting an exemption granted only to a very few. And the sincerity of appellees' religious beliefs is here undisputed. There is therefore no reason to believe that our previous standard for determining whether the Government must accommodate a free exercise claim does not apply. Bob Jones University v. United States, 461 U. S. 574 (1983), does not support THE CHIEF JUSTICE's analysis. The Court stated in that case: "The governmental interest at stake here is compelling. . . . [T]he Government has a fundamental, overriding interest in eradicating racial discrimination in education -- discrimination that prevailed, with official approval, for the first 165 years of this Nation's constitutional history. That governmental interest substantially outweighs whatever burden denial of tax benefits places on petitioners' exercise of their religious beliefs. The interests asserted by petitioners cannot be accommodated with that compelling governmental interest, see United States v. Lee, supra, at 455 U. S. 259 -260; and no 'less restrictive means,' see Thomas v. Review Board of Indiana Employment Security Div., supra, at 450 U. S. 718 , are available to achieve the governmental interest." Id. at 461 U. S. 604 (footnotes omitted). See also id. at 461 U. S. 603 ("'The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest'") (emphasis added) (quoting United States v. Lee, supra, at 455 U. S. 257 -258). It is clear that the Court in Bob Jones University did not adopt anything like the legitimate interest/rational means test propounded by THE CHIEF JUSTICE, but rather continued to require the Government to show pursuit of an especially important interest by narrowly tailored means. In addition, Page 476 U. S. 730 the interest that the Court in Bob Jones University balanced against asserted religious interests was not merely a compelling governmental interest, but a constitutional interest. Here, although prevention of welfare fraud is concededly a compelling interest, the Government asserts only administrative efficiency as its reason for refusing to exempt appellees from furnishing the Social Security number. The District Court found that assertion sorely wanting, and our conclusion that part of the resulting injunction was overbroad only makes the Government's assertion less plausible. Surely the fact that the Court was willing in Bob Jones University to give overriding weight to the Government's interest in eradicating the scourge of racial discrimination does not mean that the Court must also give overriding weight to the unanchored anxieties of the welfare bureaucracy. Hamilton v. Regents of University of California, 293 U. S. 245 (1934), also fails to support THE CHIEF JUSTICE'S construction of a new test. When the Court decided Hamilton, it had not yet applied, and did not in Hamilton apply, the Free Exercise Clause to actions of the States. Cf. Cantwell v. Connecticut, 310 U. S. 296 (1940). The Court's discussion in Hamilton of the state university's decision to require military training is therefore limited to a generalized analysis under the Fourteenth Amendment of whether the State's policy deprived the would-be students of "life, liberty, or property." See 293 U.S. at 293 U. S. 261 -262. The Court concluded that no such deprivation was involved when the State "ha[d] not drafted or called [the individuals] to [war]." Id. at 293 U. S. 262 . This Court's opinions have never turned on so slender a reed as whether the challenged requirement is merely a "reasonable means of promoting a legitimate public interest." Ante at 476 U. S. 708 (opinion of BURGER, C.J.). THE CHIEF JUSTICE appears to believe that the added inconvenience to the State of administering a selective exemption overbalances any burden on individual religious exercise. But this Court Page 476 U. S. 731 has held that administrative inconvenience is not alone sufficient to justify a burden on free exercise unless it creates problems of substantial magnitude. See Sherbert v. Verner, 374 U.S. at 374 U. S. 408 -409. And as 476 U. S. there is essentially no administrative burden imposed on the Government in this case. Appellants have rested their case on vague allegations of administrative inconvenience and harm to the public fisc that are wholly unsubstantiated by the record and the findings of the District Court. The Court simply cannot, consistent with its precedents, distinguish this case from the wide variety of factual situations in which the Free Exercise Clause indisputably imposes significant constraints upon government. Indeed, five Members of the Court agree that Sherbert and Thomas, in which the government was required to accommodate sincere religious beliefs, control the outcome of this case to the extent it is not moot. See ante at 476 U. S. 716 (BLACKMUN, J., concurring in part); post at 476 U. S. 733 (WHITE, J., dissenting); supra at 476 U. S. 728 -730. THE CHIEF JUSTICE's distinction between this case and the Court's previous decisions on free exercise claims -- that here "it is appellees who seek benefits from the Government and who assert that . . . they should be excused from compliance with a condition that is binding on all other persons who seek the same benefits from the Government," ante at 476 U. S. 703 -- has been directly rejected. The fact that the underlying dispute involves an award of benefits, rather than an exaction of penalties, does not grant the Government license to apply a different version of the Constitution: "[Welfare] benefits are a matter of statutory entitlement for persons qualified to receive them. Their termination involves state action that adjudicates important rights. The constitutional challenge cannot be answered by an argument that public assistance benefits are "a privilege,' and not a `right.'" Shapiro v. Thompson, 394 U. S. 618 , 394 U. S. 627 n. 6 (1969). Relevant constitutional Page 476 U. S. 732 restraints apply as much to the withdrawal of public assistance benefits as to disqualification for unemployment compensation, Sherbert v. Verner, 374 U. S. 398 (1963). . . ." Goldberg v. Kelly, 397 U. S. 254 , 397 U. S. 262 (1970) (footnote omitted). See also Sherbert v. Verner, supra, at 374 U. S. 404 ("It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege"). The fact that appellees seek exemption from a precondition that the Government attaches to an award of benefits does not, therefore, generate a meaningful distinction between this case and one where appellees seek an exemption from the Government's imposition of penalties upon them. Even if the Founding Fathers did not live in a society with the "broad range of benefits" and "complex programs" that the Federal Government administers today, ante at 476 U. S. 707 (opinion of BURGER, C.J.), they constructed a society in which the Constitution placed express limits upon governmental actions limiting the freedoms of that society's members. The rise of the welfare state was not the fall of the Free Exercise Clause. Our precedents have long required the Government to show that a compelling state interest is served by its refusal to grant a religious exemption. The Government here has clearly and easily met its burden of showing that the prevention of welfare fraud is a compelling governmental goal. If the Government could meet its compelling needs only by refusing to grant a religious exemption, and chose a narrowly tailored means to do so, then the Government would prevail. But the Government has failed to show that granting a religious exemption to those who legitimately object to providing a Social Security number will do any harm to its compelling interest in preventing welfare fraud. I would merely vacate that portion of the injunction issued by the District Court that enjoins the Government from Page 476 U. S. 733 using or disseminating the Social Security number already in its possession. JUSTICE WHITE, dissenting. Being of the view that Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 (1981), and Sherbert v. Verner, 374 U. S. 398 (1963), control this case, I cannot join the Court's opinion and judgment.

In Bowen v. Roy, the Supreme Court considered whether the Free Exercise Clause of the First Amendment entitled Native American parents to an exemption from providing their child's Social Security number to receive government benefits. The Court held that the Free Exercise Clause protects individuals from specific forms of compulsion but does not allow individuals to dictate the government's internal procedures. While the government must show a compelling interest to refuse a religious exemption, it also has to prove that granting the exemption would harm that interest. In this case, the government failed to show how granting a religious exemption would harm its interest in preventing welfare fraud. The Court vacated the lower court's injunction and remanded the case.

Religion

Allegheny County v. ACLU

https://supreme.justia.com/cases/federal/us/492/573/

U.S. Supreme Court County of Allegheny v. ACLU, 492 U.S. 573 (1989) County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter No. 87-2050 Argued February 22, 1989 Decided July 3, 1989 492 U.S. 573 ast|>* 492 U.S. 573 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Syllabus This litigation concerns the constitutionality of two recurring holiday displays located on public property in downtown Pittsburgh. The first, a creche depicting the Christian nativity scene, was placed on the Grand Staircase of the Allegheny County Courthouse, which is the "main," "most beautiful," and "most public" part of the courthouse. The creche was donated by the Holy Name Society, a Roman Catholic group, and bore a sign to that effect. Its manger had at its crest an angel bearing a banner proclaiming "Gloria in Excelsis Deo," meaning "Glory to God in the Highest." The second of the holiday displays in question was an 18-foot Chanukah menorah or candelabrum, which was placed just outside the City-County Building next to the city's 45-foot decorated Christmas tree. At the foot of the tree was a sign bearing the mayor's name and containing text declaring the city's "salute to liberty." The menorah is owned by Chabad, a Jewish group, but is stored, erected, and removed each year by the city. Respondents, the Greater Pittsburgh Chapter of the American Civil Liberties Union and seven local residents, filed suit seeking permanently to enjoin the county from displaying the creche and the city from displaying the menorah on the ground that the displays violated the Establishment Clause of the First Amendment, made applicable to state governments by the Fourteenth Amendment. The District Court denied relief, relying on Lynch v. Donnelly, 465 U. S. 668 , which held that a city's inclusion of a creche in its annual Christmas display in a private park did not violate the Establishment Clause. The Court of Appeals reversed, distinguishing Lynch v. Donnelly and holding that the creche and the menorah in the present case must be understood as an impermissible governmental endorsement of Christianity and Judaism under Lemon v. Kurtzman, 403 U. S. 602 . Page 492 U. S. 574 Held: The judgment is affirmed in part and reversed in part, and the cases are remanded. 842 F.2d 655, affirmed in part, reversed in part, and remanded. JUSTICE BLACKMUN delivered the opinion of the Court with respect to Parts III-A, IV, and V, concluding that: 1. Under Lemon v. Kurtzman, 403 U.S. at 403 U. S. 612 , a "practice which touches upon religion, if it is to be permissible under the Establishment Clause," must not, inter alia, "advance [or] inhibit religion in its principal or primary effect." Although, in refining the definition of governmental action that unconstitutionally "advances" religion, the Court's subsequent decisions have variously spoken in terms of "endorsement," "favoritism," "preference," or "promotion," the essential principle remains the same: the Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief or from "making adherence to a religion relevant in any way to a person's standing in the political community." Lynch v. Donnelly, 465 U.S. at 465 U. S. 687 (O'CONNOR, J., concurring). Pp. 492 U. S. 589 -594. 2. When viewed in its overall context, the creche display violates the Establishment Clause. The creche angel's words endorse a patently Christian message: Glory to God for the birth of Jesus Christ. Moreover, in contrast to Lynch, nothing in the creche's setting detracts from that message. Although the government may acknowledge Christmas as a cultural phenomenon, it may not observe it as a Christian holy day by suggesting that people praise God for the birth of Jesus. Pp. 492 U. S. 598 -602. 3. JUSTICE KENNEDY's reasons for permitting the creche on the Grand Staircase and his condemnation of the Court's reasons for deciding otherwise are unpersuasive. Pp. 492 U. S. 602 -613. (a) History cannot legitimate practices like the creche display that demonstrate the government's allegiance to a particular sect or creed. Pp. 492 U. S. 602 -605. (b) The question whether a particular practice would constitute governmental proselytization is much the same as the endorsement inquiry, except to the extent the proselytization test requires an "obvious" allegiance between the government and the favored sect. This Court's decisions, however, impose no such burden on demonstrating that the government has favored a particular sect or creed, but, to the contrary, have required strict scrutiny of practices suggesting a denominational preference. E.g., Larson v. Valente, 456 U. S. 228 , 456 U. S. 246 . Pp. 492 U. S. 605 -609. (c) The Constitution mandates that the government remain secular, rather than affiliating itself with religious beliefs or institutions, precisely in order to avoid discriminating against citizens on the basis of their religious faiths. Thus, the claim that prohibiting government from celebrating Christmas as a religious holiday discriminates against Christians Page 492 U. S. 575 in favor of nonadherents must fail, since it contradicts the fundamental premise of the Establishment Clause itself. In contrast, confining the government's own Christmas celebration to the holiday's secular aspects does not favor the religious beliefs of non-Christians over those of Christians, but simply permits the government to acknowledge the holiday without expressing an impermissible allegiance to Christian beliefs. Pp. 492 U. S. 610 -613. JUSTICE BLACKMUN, joined by JUSTICE STEVENS, concluded in Part III-B that the concurring and dissenting opinions in Lynch v. Donnelly set forth the proper analytical framework for determining whether the government's display of objects having religious significance improperly advances religion. 465 U.S. at 465 U. S. 687 -694 (O'CONNOR, J., concurring); id. at 465 U. S. 694 -726 (BRENNAN, J., dissenting). Pp. 492 U. S. 594 -597. JUSTICE BLACKMUN concluded in Part VI that the menorah display does not have the prohibited effect of endorsing religion, given its "particular physical setting." Its combined display with a Christmas tree and a sign saluting liberty does not impermissibly endorse both the Christian and Jewish faiths, but simply recognizes that both Christmas and Chanukah are part of the same winter holiday season, which has attained a secular status in our society. The widely accepted view of the Christmas tree as the preeminent secular symbol of the Christmas season emphasizes this point. The tree, moreover, by virtue of its size and central position in the display, is clearly the predominant element, and the placement of the menorah beside it is readily understood as simply a recognition that Christmas is not the only traditional way of celebrating the season. The absence of a more secular alternative to the menorah negates the inference of endorsement. Similarly, the presence of the mayor's sign confirms that, in the particular context, the government's association with a religious symbol does not represent sponsorship of religious beliefs, but simply a recognition of cultural diversity. Given all these considerations, it is not sufficiently likely that a reasonable observer would view the combined display as an endorsement or disapproval of his individual religious choices. Pp. 492 U. S. 613 -621. JUSTICE O'CONNOR also concluded that the city's display of a menorah, together with a Christmas tree and a sign saluting liberty, does not violate the Establishment Clause. The Christmas tree, whatever its origins, is widely viewed today as a secular symbol of the Christmas holiday. Although there may be certain secular aspects to Chanukah, it is primarily a religious holiday, and the menorah its central religious symbol and ritual object. By including the menorah with the tree, however, and with the sign saluting liberty, the city conveyed a message of pluralism and freedom of belief during the holiday season, which, in this particular physical setting, could not be interpreted by a reasonable Page 492 U. S. 576 observer as an endorsement of Judaism or Christianity or disapproval of alternative beliefs. Pp. 492 U. S. 632 -637. JUSTICE KENNEDY, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE SCALIA, concluded that both the menorah display and the creche display are permissible under the Establishment Clause. Pp. 492 U. S. 655 -667. (a) The test set forth in Lemon v. Kurtzman, 403 U. S. 602 , 403 U. S. 612 -- which prohibits the "principal or primary effect" of a challenged governmental practice from either advancing or inhibiting religion -- when applied with the proper sensitivity to our traditions and case law, supports the conclusion that both the creche and the menorah are permissible displays in the context of the holiday season. The requirement of neutrality inherent in the Lemon formulation does not require a relentless extirpation of all contact between government and religion. Government policies of accommodation, acknowledgment, and support for religion are an accepted part of our political and cultural heritage, and the Establishment Clause permits government some latitude in recognizing the central role of religion in society. Any approach less sensitive to our heritage would border on latent hostility to religion, as it would require government in all its multifaceted roles to acknowledge only the secular, to the exclusion, and so to the detriment, of the religious. Thus, this Court's decisions disclose two principles limiting the government's ability to recognize and accommodate religion: it may not coerce anyone to support or participate in any religion or its exercise; and it may not, in the guise of avoiding hostility or callous indifference, give direct benefits to a religion in such a degree that it, in fact, establishes a state religion or tends to do so. In other words, the government may not place its weight behind an obvious effort to proselytize on behalf of a particular religion. On the other hand, where the government's act of recognition or accommodation is passive and symbolic, any intangible benefit to religion is unlikely to present a realistic risk of establishment. To determine whether there exists an establishment, or a tendency toward one, reference must be made to the other types of church-state contacts that have existed unchallenged throughout our history or that have been found permissible in our case law. For example, Lynch v. Donnelly, 465 U. S. 668 , upheld a city's holiday display of a creche, and Marsh v. Chambers, 463 U. S. 783 , held that a State's practice of employing a legislative chaplain was permissible. Pp. 492 U. S. 655 -663. (b) In permitting the displays of the menorah and the creche, the city and county sought merely to "celebrate the season," and to acknowledge the historical background and the religious as well as secular nature of the Chanukah and Christmas holidays. This interest falls well within the tradition of governmental accommodation and acknowledgment of religion Page 492 U. S. 577 that has marked our history from the beginning. If government is to participate in its citizens' celebration of a holiday that contains both a secular and a religious component, enforced recognition of only the secular aspect would signify the callous indifference toward religious faith that our cases and traditions do not require; for by commemorating the holiday only as it is celebrated by nonadherents, the government would be refusing to acknowledge the plain fact, and the historical reality, that many of its citizens celebrate the religious aspects of the holiday as well. There is no suggestion here that the government's power to coerce has been used to further Christianity or Judaism, or that the city or the county contributed money to further any one faith or intended to use the creche or the menorah to proselytize. Thus, the creche and menorah are purely passive symbols of religious holidays, and their use is permissible under Lynch, supra. If Marsh, supra, allows Congress and the state legislatures to begin each day with a state-sponsored prayer offered by a government-employed chaplain, a menorah or creche, displayed in the limited context of the holiday season, cannot be invalid. The facts that, unlike the creche in Lynch, the menorah and creche at issue were both located on government property and were not surrounded by secular holiday paraphernalia are irrelevant, since the displays present no realistic danger of moving the government down the forbidden road toward an establishment of religion. Pp. 492 U. S. 663 -667. BLACKMUN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts III-A, IV, and V, in which BRENNAN, MARSHALL, STEVENS, and O'CONNOR, JJ., joined, an opinion with respect to Parts I and II, in which STEVENS and O'CONNOR, JJ., joined, an opinion with respect to Part III-B, in which STEVENS, J., joined, an opinion with respect to Part VII, in which O'CONNOR, J., joined, and an opinion with respect to Part VI. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in Part II of which BRENNAN and STEVENS, JJ., joined, post, p. 492 U. S. 623 . BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and STEVENS, JJ., joined, post, p. 492 U. S. 637 . STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined, post, p. 492 U. S. 646 . KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C.J., and WHITE and SCALIA, JJ., joined, post, p. 492 U. S. 655 . Page 492 U. S. 578 JUSTICE BLACKMUN announced the judgment of the Court and delivered the opinion of the Court with respect to Parts III-A, IV, and V, an opinion with respect to Parts I and II, in which JUSTICE STEVENS and JUSTICE O'CONNOR join, an opinion with respect to Part III-B, in which JUSTICE STEVENS joins, an opinion with respect to Part VII, in which JUSTICE O'CONNOR joins, and an opinion with respect to Part VI. This litigation concerns the constitutionality of two recurring holiday displays located on public property in downtown Pittsburgh. The first is a creche placed on the Grand Staircase of the Allegheny County Courthouse. The second is a Chanukah menorah placed just outside the City-County Building, next to a Christmas tree and a sign saluting liberty. The Court of Appeals for the Third Circuit ruled that each display violates the Establishment Clause of the First Amendment because each has the impermissible effect of endorsing religion. Page 492 U. S. 579 842 F.2d 655 (1988). We agree that the creche display has that unconstitutional effect, but reverse the Court of Appeals' judgment regarding the menorah display. I A The county courthouse is owned by Allegheny County and is its seat of government. It houses the offices of the county commissioners, controller, treasurer, sheriff, and clerk of court. Civil and criminal trials are held there. App. 69. The "main," "most beautiful," and "most public" part of the courthouse is its Grand Staircase, set into one arch and surrounded by others, with arched windows serving as a backdrop. Id. at 157-158; see Joint Exhibit Volume (JEV) 31. Since 1981, the county has permitted the Holy Name Society, a Roman Catholic group, to display a creche in the county courthouse during the Christmas holiday season. App. 164. Christmas, we note perhaps needlessly, is the holiday when Christians celebrate the birth of Jesus of Nazareth, whom they believe to be the Messiah. [ Footnote 1 ] Western churches have celebrated Christmas Day on December 25 since the fourth century. [ Footnote 2 ] As observed in this Nation, Christmas has a secular, as well as a religious, dimension. [ Footnote 3 ] Page 492 U. S. 580 The creche in the county courthouse, like other creches, is a visual representation of the scene in the manger in Bethlehem shortly after the birth of Jesus, as described in the Gospels of Luke and Matthew. [ Footnote 4 ] The creche includes figures of the infant Jesus, Mary, Joseph, farm animals, shepherds, and wise men, all placed in or before a wooden representation of a manger, which has at its crest an angel bearing a banner that proclaims "Gloria in Excelsis Deo!" [ Footnote 5 ] During the 1986-1987 holiday season, the creche was on display on the Grand Staircase from November 26 to January 9. App. 15, 59. It had a wooden fence on three sides, and bore a plaque stating: "This Display Donated by the Holy Name Society." Sometime during the week of December 2, the county placed red and white poinsettia plants around the fence. Id. at 96. The county also placed a small evergreen tree, decorated with a red bow, behind each of the two endposts of the fence. Id. at 204; JEV 7. [ Footnote 6 ] These trees stood alongside the manger backdrop, and were slightly shorter than it was. The angel thus was at the apex of the creche display. Altogether, the creche, the fence, the poinsettias, and the trees occupied a substantial amount of space on the Grand Staircase. No figures of Santa Claus or other decorations Page 492 U. S. 581 appeared on the Grand Staircase. App. 188. [ Footnote 7 ] Cf. Lynch v. Donnelly, 465 U. S. 668 , 465 U. S. 671 (1984). Appendix A [omitted] at the end of this opinion is a photograph of the display. The county uses the creche as the setting for its annual Christmas carol program. See JEV 36. During the 1986 season, the county invited high school choirs and other musical groups to perform during weekday lunch hours from December 3 through December 23. The county dedicated this program to world peace and to the families of prisoners of war and of persons missing in action in Southeast Asia. App. 160; JEV 30. Near the Grand Staircase is an area of the county courthouse known as the "gallery forum" used for art and other cultural exhibits. App. 163. The creche, with its fence and floral frame, however, was distinct, and not connected with any exhibit in the gallery forum. See Tr. of Oral Arg. 7 (the forum was "not any kind of an integral part of the Christmas display"); see also JEV 32-34. In addition, various departments and offices within the county courthouse had their own Christmas decorations, but these also are not visible from the Grand Staircase. App. 167. B The City-County Building is separate and a block removed from the county courthouse and, as the name implies, is jointly owned by the city of Pittsburgh and Allegheny County. The city's portion of the building houses the city's principal offices, including the mayor's. Id. at 17. The city is responsible for the building's Grant Street entrance, which has three rounded arches supported by columns. Id. at 194, 207. For a number of years, the city has had a large Christmas tree under the middle arch outside the Grant Street entrance. Following this practice, city employees, on November Page 492 U. S. 582 17, 1986, erected a 45-foot tree under the middle arch and decorated it with lights and ornaments. Id. at 218-219. A few days later, the city placed at the foot of the tree a sign bearing the mayor's name and entitled "Salute to Liberty." Beneath the title, the sign stated: "During this holiday season, the city of Pittsburgh salutes liberty. Let these festive lights remind us that we are the keepers of the flame of liberty and our legacy of freedom." JEV 41. At least since 1982, the city has expanded its Grant Street holiday display to include a symbolic representation of Chanukah, an 8-day Jewish holiday that begins on the 25th day of the Jewish lunar month of Kislev. App. 138. [ Footnote 8 ] The 25th of Kislev usually occurs in December, [ Footnote 9 ] and thus Chanukah is the annual Jewish holiday that falls closest to Christmas Day each year. In 1986, Chanukah began at sundown on December 26. Id. at 138-139. According to Jewish tradition, on the 25th of Kislev in 164 B.C.E. (before the common era (165 B.C.)), the Maccabees rededicated the Temple of Jerusalem after recapturing it from the Greeks, or, more accurately, from the Greek-influenced Seleucid Empire, in the course of a political rebellion. Id. Page 492 U. S. 583 at 138. [ Footnote 10 ] Chanukah is the holiday which celebrates that event. [ Footnote 11 ] The early history of the celebration of Chanukah is unclear; it appears that the holiday's central ritual -- the lighting of lamps -- was well established long before a single explanation of that ritual took hold. [ Footnote 12 ] The Talmud [ Footnote 13 ] explains the lamp-lighting ritual as a commemoration of an event that occurred during the rededication of the Temple. The Temple housed a seven-branch menorah, [ Footnote 14 ] which was to be kept burning continuously. Id. at 139, 144. When the Maccabees rededicated the Temple, they had only enough oil to last for one day. But, according to the Talmud, the oil miraculously lasted for eight days (the length of time it took to obtain additional oil). Id. at 139. [ Footnote 15 ] To celebrate and publicly proclaim this miracle, the Talmud prescribes that it is a mitzvah ( i.e., a religious deed or commandment), id. at 140, [ Footnote 16 ] for Jews to place a lamp with eight lights just outside the entrance to their homes or in a front window during the eight days of Chanukah. Id. at Page 492 U. S. 584 147. [ Footnote 17 ] Where practicality or safety from persecution so requires, the lamp may be placed in a window or inside the home. [ Footnote 18 ] The Talmud also ordains certain blessings to be recited each night of Chanukah before lighting the lamp. [ Footnote 19 ] One such benediction has been translated into English as "We are blessing God who has sanctified us and commanded us with mitzvot and has told us to light the candles of Hanukkah." Id. at 306. [ Footnote 20 ] Although Jewish law does not contain any rule regarding the shape or substance of a Chanukah lamp (or "hanukkiyyah"), id. at 146, 238, [ Footnote 21 ] it became customary to evoke the memory of the Temple menorah. Id. at 139, 144. The Temple menorah was of a tree-and-branch design; it had a central candlestick with six branches. Id. at 259. [ Footnote 22 ] In contrast, a Chanukah menorah of tree-and-branch design has eight branches -- one for each day of the holiday -- plus a ninth to hold the shamash (an extra candle used to light the other eight). Id. at 144. [ Footnote 23 ] Also in contrast to the Temple menorah, the Chanukah menorah is not a sanctified object; it need not be treated with special care. [ Footnote 24 ] Page 492 U. S. 585 Lighting the menorah is the primary tradition associated with Chanukah, but the holiday is marked by other traditions as well. One custom among some Jews is to give children Chanukah gelt, or money. [ Footnote 25 ] Another is for the children to gamble their gelt using a dreidel, a top with four sides. Each of the four sides contains a Hebrew letter; together, the four letters abbreviate a phrase that refers to the Chanukah miracle. Id. at 241-242. [ Footnote 26 ] Chanukah, like Christmas, is a cultural event as well as a religious holiday. Id. at 143. Indeed, the Chanukah story always has had a political or national, as well as a religious, dimension: it tells of national heroism in addition to divine intervention. [ Footnote 27 ] Also, Chanukah, like Christmas, is a winter holiday; according to some historians, it was associated in ancient times with the winter solstice. [ Footnote 28 ] Just as some Americans celebrate Christmas without regard to its religious significance, some nonreligious American Jews celebrate Chanukah as an expression of ethnic identity, and "as a cultural or national event, rather than as a specifically religious event." Ibid. [ Footnote 29 ] Page 492 U. S. 586 The cultural significance of Chanukah varies with the setting in which the holiday is celebrated. In contemporary Israel, the nationalist and military aspects of the Chanukah story receive special emphasis. [ Footnote 30 ] In this country, the tradition of giving Chanukah gelt has taken on greater importance because of the temporal proximity of Chanukah to Christmas. [ Footnote 31 ] Indeed, some have suggested that the proximity of Christmas accounts for the social prominence of Chanukah in this country. [ Footnote 32 ] Whatever the reason, Chanukah is observed by American Jews to an extent greater than its religious importance Page 492 U. S. 587 would indicate: in the hierarchy of Jewish holidays, Chanukah ranks fairly low in religious significance. [ Footnote 33 ] This socially heightened status of Chanukah reflects its cultural or secular dimension. [ Footnote 34 ] On December 22 of the 1986 holiday season, the city placed at the Grant Street entrance to the City-County Building an 18-foot Chanukah menorah of an abstract tree-and-branch design. The menorah was placed next to the city's 45-foot Christmas tree, against one of the columns that supports the arch into which the tree was set. The menorah is owned by Chabad, a Jewish group, [ Footnote 35 ] but is stored, erected, and removed each year by the city. Id. at 290; see also Brief for Petitioner in No. 88-96, p. 4. The tree, the sign, and the menorah were all removed on January 13. App. 58, 220-221. Appendix B [omitted], p. 622, is a photograph of the tree, the sign, and the menorah. Id. at 212; JEV 40. II This litigation began on December 10, 1986, when respondents, the Greater Pittsburgh Chapter of the American Civil Liberties Union and seven local residents, filed suit against the county and the city, seeking permanently to enjoin the county from displaying the creche in the county courthouse and the city from displaying the menorah in front of the City-County Page 492 U. S. 588 Building. [ Footnote 36 ] Respondents claim that the displays of the creche and the menorah each violate the Establishment Clause of the First Amendment, made applicable to state governments by the Fourteenth Amendment. See Wallace v. Jaffree, 472 U. S. 38 , 472 U. S. 48 -55 (1985). [ Footnote 37 ] Chabad was permitted to intervene to defend the display of its menorah. [ Footnote 38 ] On May 8, 1987, the District Court denied respondents' request for a permanent injunction. Relying on Lynch v. Donnelly, 465 U. S. 668 (1984), the court stated that "the creche was but part of the holiday decoration of the stairwell and a foreground for the highschool choirs which entertained each day at noon." App. to Pet. for Cert. in No. 87-2050, p. 4a. Regarding the menorah, the court concluded that "it was but an insignificant part of another holiday display." Ibid. The court also found that "the displays had a secular purpose," and "did not create an excessive entanglement of government with religion." Id. at 5a. Respondents appealed, and a divided panel of the Court of Appeals reversed. 842 F.2d 655 (CA3 1988). Distinguishing Lynch v. Donnelly, the panel majority determined that the creche and the menorah must be understood as endorsing Christianity and Judaism. The court observed: "Each display was located at or in a public building devoted Page 492 U. S. 589 to core functions of government." 842 F.2d at 662. The court also stated: "Further, while the menorah was placed near a Christmas tree, neither the creche nor the menorah can reasonably be deemed to have been subsumed by a larger display of non-religious items." Ibid. Because the impermissible effect of endorsing religion was a sufficient basis for holding each display to be in violation of the Establishment Clause under Lemon v. Kurzman, 403 U. S. 602 (1971), the Court of Appeals did not consider whether either one had an impermissible purpose or resulted in an unconstitutional entanglement between government and religion. The dissenting judge stated that the creche, "accompanied by poinsettia plants and evergreens, does not violate the Establishment Clause simply because plastic Santa Clauses or reindeer are absent." 842 F.2d at 670. As to the menorah, he asserted: "Including a reference to Chanukah did no more than broaden the commemoration of the holiday season and stress the notion of sharing its joy." Id. at 670-671. Rehearing en banc was denied by a 6-to-5 vote. See App. to Pet. for Cert. in No. 87-2050, p. 45a. The county, the city, and Chabad each filed a petition for certiorari. We granted all three petitions. 488 U.S. 816 (1988). III A This Nation is heir to a history and tradition of religious diversity that dates from the settlement of the North American Continent. Sectarian differences among various Christian denominations were central to the origins of our Republic. Since then, adherents of religions too numerous to name have made the United States their home, as have those whose beliefs expressly exclude religion. Precisely because of the religious diversity that is our national heritage, the Founders added to the Constitution a Bill of Rights, the very first words of which declare: "Congress shall make no law respecting an establishment of religion, or Page 492 U. S. 590 prohibiting the free exercise thereof. . . ." Perhaps in the early days of the Republic these words were understood to protect only the diversity within Christianity, but today they are recognized as guaranteeing religious liberty and equality to "the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism." Wallace v. Jaffee, 472 U. at 472 U. S. 52 . [ Footnote 39 ] It is settled law that no government official in this Nation may violate these fundamental constitutional rights regarding matters of conscience. Id. at 472 U. S. 49 . In the course of adjudicating specific cases, this Court has come to understand the Establishment Clause to mean that government may not promote or affiliate itself with any religious doctrine or organization, [ Footnote 40 ] may not discriminate among persons on the basis of their religious beliefs and practices, [ Footnote 41 ] Page 492 U. S. 591 may not delegate a governmental power to a religious institution, [ Footnote 42 ] and may not involve itself too deeply in such an institution's affairs. [ Footnote 43 ] Although "the myriad, subtle ways in which Establishment Clause values can be eroded," Lynch v. Donnelly, 465 U.S. at 465 U. S. 694 (O'CONNOR, J., concurring), are not susceptible to a single verbal formulation, this Court has attempted to encapsulate the essential precepts of the Establishment Clause. Thus, in Everson v. Board of Education of Ewing, 330 U. S. 1 (1947), the Court gave this often-repeated summary: "The 'establishment of religion' clause of the First Amendment means at least this: neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or remain away from church against his will, or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa." Id. at 330 U. S. 15 -16. Page 492 U. S. 592 In Lemon v. Kurtzman, supra, the Court sought to refine these principles by focusing on three "tests" for determining whether a government practice violates the Establishment Clause. Under the Lemon analysis, a statute or practice which touches upon religion, if it is to be permissible under the Establishment Clause, must have a secular purpose; it must neither advance nor inhibit religion in its principal or primary effect; and it must not foster an excessive entanglement with religion. 403 U.S. at 403 U. S. 612 -613. This trilogy of tests has been applied regularly in the Court's later Establishment Clause cases. [ Footnote 44 ] Our subsequent decisions further have refined the definition of governmental action that unconstitutionally advances religion. In recent years, we have paid particularly close attention to whether the challenged governmental practice either has the purpose or effect of "endorsing" religion, a concern that has long had a place in our Establishment Clause jurisprudence. See Engel v. Vitale, 370 U. S. 421 , 370 U. S. 436 (1962). Thus, in Wallace v. Jaffree, 472 U.S. at 472 U. S. 60 , the Court held unconstitutional Alabama's moment-of-silence statute because it was "enacted . . . for the sole purpose of expressing the State's endorsement of prayer activities." The Court similarly invalidated Louisiana's "Creationism Act" because it "endorses religion" in its purpose. Edwards v. Aguillard, 482 U. S. 578 , 482 U. S. 593 (1987). And the educational Page 492 U. S. 593 program in School Dist. of Grand Rapids v. Ball, 473 U. S. 373 , 473 U. S. 389 -392 (1985), was held to violate the Establishment Clause because of its "endorsement" effect. See also Texas Monthly, Inc. v. Bullock, 489 U. S. 1 , 489 U. S. 17 (1989) (plurality opinion) (tax exemption limited to religious periodicals "effectively endorses religious belief "). Of course, the word "endorsement" is not self-defining. Rather, it derives its meaning from other words that this Court has found useful over the years in interpreting the Establishment Clause. Thus, it has been noted that the prohibition against governmental endorsement of religion "preclude[s] government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred. " Wallace v. Jaffree, 472 U.S. at 472 U. S. 70 (O'CONNOR, J., concurring in judgment) (emphasis added). Accord, Texas Monthly, Inc. v. Bullock, 489 U.S. at 489 U. S. 27 , 489 U. S. 28 (separate opinion concurring in judgment) (reaffirming that "government may not favor religious belief over disbelief" or adopt a "preference for the dissemination of religious ideas"); Edwards v. Aguillard, 482 U.S. at 593 ("preference" for particular religious beliefs constitutes an endorsement of religion); Abington School District v. Schempp, 374 U. S. 203 , 374 U. S. 305 (1963) (Goldberg, J., concurring) ("The fullest realization of true religious liberty requires that government . . . effect no favoritism among sects or between religion and nonreligion"). Moreover, the term "endorsement" is closely linked to the term "promotion," Lynch v. Donnelly, 465 U.S. at 465 U. S. 691 (O'CONNOR, J., concurring), and this Court long since has held that government "may not . . . promote one religion or religious theory against another or even against the militant opposite," Epperson v. Arkansas, 393 U. S. 97 , 393 U. S. 104 (1968). See also Wallace v. Jaffree, 472 U.S. at 472 U. S. 59 -60 (using the concepts of endorsement, promotion, and favoritism interchangeably). Whether the key word is "endorsement," "favoritism," or "promotion," the essential principle remains the same. The Page 492 U. S. 594 Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief or from "making adherence to a religion relevant in any way to a person's standing in the political community." Lynch v. Donnelly, 465 U.S. at 465 U. S. 687 (O'CONNOR, J., concurring). B We have had occasion in the past to apply Establishment Clause principles to the government's display of objects with religious significance. In Stone v. Graham, 449 U. S. 39 (1980), we held that the display of a copy of the Ten Commandments on the walls of public classrooms violates the Establishment Clause. Closer to the facts of this litigation is Lynch v. Donnelly, supra, in which we considered whether the city of Pawtucket, R.I., had violated the Establishment Clause by including a creche in its annual Christmas display, located in a private park within the downtown shopping district. By a 5-to-4 decision in that difficult case, the Court upheld inclusion of the creche in the Pawtucket display, holding, inter alia, that the inclusion of the creche did not have the impermissible effect of advancing or promoting religion. [ Footnote 45 ] The rationale of the majority opinion in Lynch is none too clear: the opinion contains two strands, neither of which provides guidance for decision in subsequent cases. First, the opinion states that the inclusion of the creche in the display was "no more an advancement or endorsement of religion" than other "endorsements" this Court has approved in the past, 465 U.S. at 465 U. S. 683 -- but the opinion offers no discernible measure for distinguishing between permissible and impermissible endorsements. Second, the opinion observes that any benefit the government's display of the creche gave to religion was no more than "indirect, remote, and incidental," ibid. -- without saying how or why. Page 492 U. S. 595 Although JUSTICE O'CONNOR joined the majority opinion in Lynch, she wrote a concurrence that differs in significant respects from the majority opinion. The main difference is that the concurrence provides a sound analytical framework for evaluating governmental use of religious symbols. First and foremost, the concurrence squarely rejects any notion that this Court will tolerate some government endorsement of religion. Rather, the concurrence recognizes any endorsement of religion as "invalid," id. at 465 U. S. 690 , because it "sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community," id. at 465 U. S. 688 . Second, the concurrence articulates a method for determining whether the government's use of an object with religious meaning has the effect of endorsing religion. The effect of the display depends upon the message that the government's practice communicates: the question is "what viewers may fairly understand to be the purpose of the display." Id. at 465 U. S. 692 . That inquiry, of necessity, turns upon the context in which the contested object appears: "[A] typical museum setting, though not neutralizing the religious content of a religious painting, negates any message of endorsement of that content." Ibid. The concurrence thus emphasizes that the constitutionality of the creche in that case depended upon its "particular physical setting," ibid., and further observes: "Every government practice must be judged in its unique circumstances to determine whether it [endorses] religion," id. at 465 U. S. 694 . [ Footnote 46 ] Page 492 U. S. 596 The concurrence applied this mode of analysis to the Pawtucket creche, seen in the context of that city's holiday celebration as a whole. In addition to the creche, the city's display contained: a Santa Claus house with a live Santa distributing candy; reindeer pulling Santa's sleigh; a live 40-foot Christmas tree strung with lights; statues of carolers in old-fashioned dress; candy-striped poles; a "talking" wishing well; a large banner proclaiming "SEASONS GREETINGS"; a miniature "village" with several houses and a church; and various "cut-out" figures, including those of a clown, a dancing elephant, a robot, and a teddy bear. See 525 F. Supp. 1150 , 1155 (RI 1981). The concurrence concluded that, both because the creche is "a traditional symbol" of Christmas, a holiday with strong secular elements, and because the creche was "displayed along with purely secular symbols," the creche's setting "changes what viewers may fairly understand to be the purpose of the display" and "negates any message of endorsement" of "the Christian beliefs represented by the creche." 465 U.S. at 465 U. S. 692 . The four Lynch dissenters agreed with the concurrence that the controlling question was "whether Pawtucket ha[d] run afoul of the Establishment Clause by endorsing religion through its display of the creche." Id. at 465 U. S. 698 , n. 3 (BRENNAN, J., dissenting). The dissenters also agreed with the Page 492 U. S. 597 general proposition that the context in which the government uses a religious symbol is relevant for determining the answer to that question. Id. at 465 U. S. 705 -706. They simply reached a different answer: the dissenters concluded that the other elements of the Pawtucket display did not negate the endorsement of Christian faith caused by the presence of the creche. They viewed the inclusion of the creche in the city's overall display as placing "the government's imprimatur of approval on the particular religious beliefs exemplified by the creche." Id. at 465 U. S. 701 . Thus, they stated: "The effect on minority religious groups, as well as on those who may reject all religion, is to convey the message that their views are not similarly worthy of public recognition nor entitled to public support." Ibid. Thus, despite divergence at the bottom line, the five Justices in concurrence and dissent in Lynch agreed upon the relevant constitutional principles: the government's use of religious symbolism is unconstitutional if it has the effect of endorsing religious beliefs, and the effect of the government's use of religious symbolism depends upon its context. These general principles are sound, and have been adopted by the Court in subsequent cases. Since Lynch, the Court has made clear that, when evaluating the effect of government conduct under the Establishment Clause, we must ascertain whether "the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choices." Grand Rapids, 473 U.S. at 473 U. S. 390 . Accordingly, our present task is to determine whether the display of the creche and the menorah, in their respective "particular physical settings," has the effect of endorsing or disapproving religious beliefs. [ Footnote 47 ] Page 492 U. S. 598 IV We turn first to the county's creche display. There is no doubt, of course, that the creche itself is capable of communicating a religious message. See Lynch, 465 U.S. at 465 U. S. 685 (majority opinion); id. at 465 U. S. 692 (O'CONNOR, J., concurring); id. at 465 U. S. 701 (BRENNAN, J., dissenting); id. at 465 U. S. 727 (BLACKMUN, J., dissenting). Indeed, the creche in this lawsuit uses words, as well as the picture of the nativity scene, to make its religious meaning unmistakably clear. "Glory to God in the Highest!" says the angel in the creche -- Glory to God because of the birth of Jesus. This praise to God in Christian terms is indisputably religious -- indeed sectarian -- just as it is when said in the Gospel or in a church service. Under the Court's holding in Lynch, the effect of a creche display turns on its setting. Here, unlike in Lynch, nothing in the context of the display detracts from the creche's religious message. The Lynch display comprised a series of figures and objects, each group of which had its own focal point. Santa's house and his reindeer were objects of attention separate from the creche, and had their specific visual story to tell. Similarly, whatever a "talking" wishing well may be, it obviously was a center of attention separate from the creche. Here, in contrast, the creche stands alone: it is the single element of the display on the Grand Staircase. [ Footnote 48 ] Page 492 U. S. 599 The floral decoration surrounding the creche cannot be viewed as somehow equivalent to the secular symbols in the overall Lynch display. The floral frame, like all good frames, serves only to draw one's attention to the message inside the frame. The floral decoration surrounding the creche contributes to, rather than detracts from, the endorsement of religion conveyed by the creche. It is as if the county had allowed the Holy Name Society to display a cross on the Grand Staircase at Easter, and the county had surrounded the cross with Easter lilies. The county could not say that surrounding the cross with traditional flowers of the season would negate the endorsement of Christianity conveyed by the cross on the Grand Staircase. Its contention that the traditional Christmas greens negate the endorsement effect of the creche fares no better. Nor does the fact that the creche was the setting for the county's annual Christmas carol program diminish its religious meaning. First, the carol program in 1986 lasted only from December 3 to December 23, and occupied, at most, one hour a day. JEV 28. The effect of the creche on those who viewed it when the choirs were not singing -- the vast majority of the time -- cannot be negated by the presence of the choir program. Second, because some of the carols performed at the site of the creche were religious in nature, [ Footnote 49 ] those carols were more likely to augment the religious quality of the scene than to secularize it. Furthermore, the creche sits on the Grand Staircase, the "main" and "most beautiful part" of the building that is the seat of county government. App. 157. No viewer could reasonably think that it occupies this location without the Page 492 U. S. 600 support and approval of the government. [ Footnote 50 ] Thus, by permitting the "display of the creche in this particular physical setting," Lynch, 465 U.S. at 465 U. S. 692 (O'CONNOR, J., concurring), the county sends an unmistakable message that it supports and promotes the Christian praise to God that is the creche's religious message. The fact that the creche bears a sign disclosing its ownership by a Roman Catholic organization does not alter this conclusion. On the contrary, the sign simply demonstrates that the government is endorsing the religious message of that organization, rather than communicating a message of its own. But the Establishment Clause does not limit only the religious content of the government's own communications. It also prohibits the government's support and promotion of religious communications by religious organizations. See, e.g., Texas Monthly, Inc. v. Bullock, 489 U. S. 1 (1989) (government support of the distribution of religious messages by religious organizations violates the Establishment Clause). Indeed, the very concept of "endorsement" conveys Page 492 U. S. 601 the sense of promoting someone else's message. Thus, by prohibiting government endorsement of religion, the Establishment Clause prohibits precisely what occurred here: the government's lending its support to the communication of a religious organization's religious message. Finally, the county argues that it is sufficient to validate the display of the creche on the Grand Staircase that the display celebrates Christmas, and Christmas is a national holiday. This argument obviously proves too much. It would allow the celebration of the Eucharist inside a courthouse on Christmas Eve. While the county may have doubts about the constitutional status of celebrating the Eucharist inside the courthouse under the government's auspices, see Tr. of Oral Arg. 8-9, this Court does not. The government may acknowledge Christmas as a cultural phenomenon, but, under the First Amendment, it may not observe it as a Christian holy day by suggesting that people praise God for the birth of Jesus. [ Footnote 51 ] In sum, Lynch teaches that government may celebrate Christmas in some manner and form, but not in a way that endorses Christian doctrine. Here, Allegheny County has transgressed this line. It has chosen to celebrate Christmas in a way that has the effect of endorsing a patently Christian message: Glory to God for the birth of Jesus Christ. Under Lynch, and the rest of our cases, nothing more is required to Page 492 U. S. 602 demonstrate a violation of the Establishment Clause. The display of the creche in this context, therefore, must be permanently enjoined. V JUSTICE KENNEDY and the three Justices who join him would find the display of the creche consistent with the Establishment Clause. He argues that this conclusion necessarily follows from the Court's decision in Marsh v. Chambers, 463 U. S. 783 (1983), which sustained the constitutionality of legislative prayer. Post at 492 U. S. 665 . He also asserts that the creche, even in this setting, poses "no realistic risk" of "represent[ing] an effort to proselytize," post at 492 U. S. 664 , having repudiated the Court's endorsement inquiry in favor of a "proselytization" approach. The Court's analysis of the creche, he contends, "reflects an unjustified hostility toward religion." Post at 492 U. S. 655 . JUSTICE KENNEDY's reasons for permitting the creche on the Grand Staircase and his condemnation of the Court's reasons for deciding otherwise are so far-reaching in their implications that they require a response in some depth. A In Marsh, the Court relied specifically on the fact that Congress authorized legislative prayer at the same time that it produced the Bill of Rights. See 492 U. S. 46, supra. JUSTICE KENNEDY, however, argues that Marsh legitimates all "practices with no greater potential for an establishment of religion" than those "accepted traditions dating back to the Founding." Post at 492 U. S. 669 , 492 U. S. 670 . Otherwise, the Justice asserts, such practices as our national motto ("In God We Trust") and our Pledge of Allegiance (with the phrase "under God," added in 1954, Pub.L. 396, 68 Stat. 249) are in danger of invalidity. Our previous opinions have considered in dicta the motto and the pledge, characterizing them as consistent with the proposition that government may not communicate an endorsement Page 492 U. S. 603 of religious belief. Lynch, 465 U.S. at 465 U. S. 693 (O'CONNOR, J., concurring); id. at 465 U. S. 716 -717 (BRENNAN, J., dissenting). We need not return to the subject of "ceremonial deism," see n 46, supra, because there is an obvious distinction between creche displays and references to God in the motto and the pledge. However history may affect the constitutionality of nonsectarian references to religion by the government, [ Footnote 52 ] history cannot legitimate practices that demonstrate the government's allegiance to a particular sect or creed. Indeed, in Marsh itself, the Court recognized that not even the "unique history" of legislative prayer, 463 U.S. at 463 U. S. 791 , can justify contemporary legislative prayers that have the effect of affiliating the government with any one specific faith or belief. Id. at 463 U. S. 794 -795. The legislative prayers involved in Marsh did not violate this principle, because the particular chaplain had "removed all references to Christ." Id. at 463 U. S. 793 , n. 14. Thus, Marsh plainly does not stand for the sweeping proposition JUSTICE KENNEDY apparently would ascribe to it, namely, that all accepted practices 200 years old and their equivalents are constitutional today. Nor can Marsh, given its facts and its reasoning, compel the conclusion that the display of the creche involved in this lawsuit is constitutional. Although JUSTICE KENNEDY says that he "cannot comprehend" how the creche display could be invalid after Marsh, post at 492 U. S. 665 , surely he is able to distinguish between a specifically Christian symbol, like a creche, and more general religious references, like the legislative prayers in Marsh. Page 492 U. S. 604 JUSTICE KENNEDY's reading of Marsh would gut the core of the Establishment Clause as this Court understands it. The history of this Nation, it is perhaps sad to say, contains numerous examples of official acts that endorsed Christianity specifically. See M. Borden, Jews, Turks, and Infidels (1984). [ Footnote 53 ] Some of these examples date back to the Founding of the Republic, [ Footnote 54 ] but this heritage of official discrimination Page 492 U. S. 605 against non-Christians has no place in the jurisprudence of the Establishment Clause. Whatever else the Establishment Clause may mean (and we have held it to mean no official preference even for religion over nonreligion, see, e.g., Texas Monthly, Inc. v. Bullock, 489 U. S. 1 (1989)), it certainly means, at the very least, that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions). "The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another." Larson v. Valente, 456 U. S. 228 , 456 U. S. 244 (1982). There have been breaches of this command throughout this Nation's history, but they cannot diminish in any way the force of the command. Cf. Laycock, supra, n 39, at 923. [ Footnote 55 ] B Although JUSTICE KENNEDY's misreading of Marsh is predicated on a failure to recognize the bedrock Establishment Clause principle that, regardless of history, government may not demonstrate a preference for a particular faith, even he is forced to acknowledge that some instances of such favoritism are constitutionally intolerable. Post at 492 U. S. 664 -665, n. 3. He concedes also that the term "endorsement" long has been another way of defining a forbidden "preference" for Page 492 U. S. 606 a particular sect, post at 492 U. S. 668 -669, but he would repudiate the Court's endorsement inquiry as a "jurisprudence of minutiae," post at 492 U. S. 674 , because it examines the particular contexts in which the government employs religious symbols. This label, of course, could be tagged on many areas of constitutional adjudication. For example, in determining whether the Fourth Amendment requires a warrant and probable cause before the government may conduct a particular search or seizure, "we have not hesitated to balance the governmental and privacy interests to assess the practicality of the warrant and probable cause requirements in the particular context, " Skinner v. Railway Labor Executives' Assn., 489 U. S. 602 , 489 U. S. 619 (1989) (emphasis added), an inquiry that " depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself,'" ibid., quoting United States v. Montoya de Hernandez, 473 U. S. 531 , 473 U. S. 537 (1985); see also Treasury Employees v. Von Raab, 489 U. S. 656 , 489 U. S. 666 (1989) (repeating the principle that the applicability of the warrant requirement turns on "the particular context" of the search at issue). It is perhaps unfortunate, but nonetheless inevitable, that the broad language of many clauses within the Bill of Rights must be translated into adjudicatory principles that realize their full meaning only after their application to a series of concrete cases. Indeed, not even under JUSTICE KENNEDY's preferred approach can the Establishment Clause be transformed into an exception to this rule. The Justice would substitute the term "proselytization" for "endorsement," post at 492 U.S. 659 -660, 492 U. S. 661 , 492 U. S. 664 , but his "proselytization" test suffers from the same "defect," if one must call it that, of requiring close factual analysis. JUSTICE KENNEDY has no doubt, "for example, that the [Establishment] Clause forbids a city to permit the permanent erection of a large Latin cross on the roof of city hall . . . because such an obtrusive year-round religious display Page 492 U. S. 607 would place the government's weight behind an obvious effort to proselytize on behalf of a particular religion." Post at 492 U. S. 661 . He also suggests that a city would demonstrate an unconstitutional preference for Christianity if it displayed a Christian symbol during every major Christian holiday, but did not display the religious symbols of other faiths during other religious holidays. Post at 492 U. S. 664 -665, n. 3. But, for JUSTICE KENNEDY, would it be enough of a preference for Christianity if that city each year displayed a creche for 40 days during the Christmas season and a cross for 40 days during Lent (and never the symbols of other religions)? If so, then what if there were no cross, but the 40-day creche display contained a sign exhorting the city's citizens "to offer up their devotions to God their Creator, and his Son Jesus Christ, the Redeemer of the world"? See n. 53, supra. The point of these rhetorical questions is obvious. In order to define precisely what government could and could not do under JUSTICE KENNEDY's "proselytization" test, the Court would have to decide a series of cases with particular fact patterns that fall along the spectrum of government references to religion (from the permanent display of a cross atop city hall to a passing reference to divine Providence in an official address). If one wished to be "uncharitable" to JUSTICE KENNEDY, see post at 492 U. S. 675 , one could say that his methodology requires counting the number of days during which the government displays Christian symbols and subtracting from this the number of days during which non-Christian symbols are displayed, divided by the number of different non-Christian religions represented in these displays, and then somehow factoring into this equation the prominence of the display's location and the degree to which each symbol possesses an inherently proselytizing quality. JUSTICE KENNEDY, of course, could defend his position by pointing to the inevitably fact-specific nature of the question whether a particular governmental practice signals the government's Page 492 U. S. 608 unconstitutional preference for a specific religious faith. But because JUSTICE KENNEDY's formulation of this essential Establishment Clause inquiry is no less fact-intensive than the "endorsement" formulation adopted by the Court, JUSTICE KENNEDY should be wary of accusing the Court's formulation as "using little more than intuition and a tape measure," post at 492 U. S. 675 , lest he find his own formulation convicted on an identical charge. Indeed, perhaps the only real distinction between JUSTICE KENNEDY's "proselytization" test and the Court's "endorsement" inquiry is a burden of "unmistakable" clarity that JUSTICE KENNEDY apparently would require of government favoritism for specific sects in order to hold the favoritism in violation of the Establishment Clause. Post at 492 U. S. 664 -665, n. 3. The question whether a particular practice "would place the government's weight behind an obvious effort to proselytize for a particular religion," post at 492 U. S. 661 , is much the same as whether the practice demonstrates the government's support, promotion, or "endorsement" of the particular creed of a particular sect -- except to the extent that it requires an "obvious" allegiance between the government and the sect. [ Footnote 56 ] Our cases, however, impose no such burden on demonstrating that the government has favored a particular sect or creed. On the contrary, we have expressly required "strict Page 492 U. S. 609 scrutiny" of practices suggesting "a denominational preference," Larson v. Valente, 456 U.S. at 456 U. S. 246 , in keeping with " the unwavering vigilance that the Constitution requires'" against any violation of the Establishment Clause. Bowen v. Kendrick, 487 U. S. 589 , 487 U. S. 623 (1988) (O'CONNOR, J., concurring), quoting id. at 487 U. S. 648 (dissenting opinion); see also Lynch, 465 U.S. at 465 U. S. 694 (O'CONNOR, J., concurring) ("[T]he myriad, subtle ways in which Establishment Clause values can be eroded" necessitates "careful judicial scrutiny" of "[g]overnment practices that purport to celebrate or acknowledge events with religious significance"). Thus, when all is said and done, JUSTICE KENNEDY's effort to abandon the "endorsement" inquiry in favor of his "proselytization" test seems nothing more than an attempt to lower considerably the level of scrutiny in Establishment Clause cases. We choose, however, to adhere to the vigilance the Court has managed to maintain thus far, and to the endorsement inquiry that reflects our vigilance. [ Footnote 57 ] Page 492 U. S. 610 C Although JUSTICE KENNEDY repeatedly accuses the Court of harboring a "latent hostility" or "callous indifference" toward religion, post at 492 U. S. 657 , 492 U. S. 664 , nothing could be further from the truth, and the accusations could be said to be as offensive as they are absurd. JUSTICE KENNEDY apparently has misperceived a respect for religious pluralism, a respect commanded by the Constitution, as hostility or indifference to religion. No misperception could be more antithetical to the values embodied in the Establishment Clause. JUSTICE KENNEDY's accusations are shot from a weapon triggered by the following proposition: if government may celebrate the secular aspects of Christmas, then it must be allowed to celebrate the religious aspects as well because, otherwise, the government would be discriminating against citizens who celebrate Christmas as a religious, and not just a secular, holiday. Post at 492 U. S. 663 -664. This proposition, however, is flawed at its foundation. The government does not discriminate against any citizen on the basis of the citizen's religious faith if the government is secular in its functions and operations. On the contrary, the Constitution mandates that the government remain secular, rather than affiliate itself with religious beliefs or institutions, precisely in order to avoid discriminating among citizens on the basis of their religious faiths. A secular state, it must be remembered, is not the same as an atheistic or antireligious state. A secular state establishes neither atheism nor religion as its official creed. JUSTICE KENNEDY thus has it exactly backwards when he says that enforcing the Constitution's requirement that government Page 492 U. S. 611 remain secular is a prescription of orthodoxy. Post at 492 U. S. 678 . It follows directly from the Constitution's proscription against government affiliation with religious beliefs or institutions that there is no orthodoxy on religious matters in the secular state. Although JUSTICE KENNEDY accuses the Court of "an Orwellian rewriting of history," ibid., perhaps it is JUSTICE KENNEDY himself who has slipped into a form of Orwellian newspeak when he equates the constitutional command of secular government with a prescribed orthodoxy. To be sure, in a pluralistic society, there may be some would-be theocrats who wish that their religion were an established creed, and some of them perhaps may be even audacious enough to claim that the lack of established religion discriminates against their preferences. But this claim gets no relief, for it contradicts the fundamental premise of the Establishment Clause itself. The antidiscrimination principle inherent in the Establishment Clause necessarily means that would-be discriminators on the basis of religion cannot prevail. For this reason, the claim that prohibiting government from celebrating Christmas as a religious holiday discriminates against Christians in favor of nonadherents must fail. Celebrating Christmas as a religious, as opposed to a secular, holiday, necessarily entails professing, proclaiming, or believing that Jesus of Nazareth, born in a manger in Bethlehem, is the Christ, the Messiah. If the government celebrates Christmas as a religious holiday (for example, by issuing an official proclamation saying: "We rejoice in the glory of Christ's birth!"), it means that the government really is declaring Jesus to be the Messiah, a specifically Christian belief. In contrast, confining the government's own celebration of Christmas to the holiday's secular aspects does not favor the religious beliefs of non-Christians over those of Christians. Rather, it simply permits the government to acknowledge the holiday without expressing an allegiance to Page 492 U. S. 612 Christian beliefs, an allegiance that would truly favor Christians over non-Christians. To be sure, some Christians may wish to see the government proclaim its allegiance to Christianity in a religious celebration of Christmas, but the Constitution does not permit the gratification of that desire, which would contradict the " the logic of secular liberty'" it is the purpose of the Establishment Clause to protect. See Larson v. Valente, 456 U.S. at 456 U. S. 244 , quoting B. Bailyn, The Ideological Origins of the American Revolution 265 (1967). Of course, not all religious celebrations of Christmas located on government property violate the Establishment Clause. It obviously is not unconstitutional, for example, for a group of parishioners from a local church to go caroling through a city park on any Sunday in Advent or for a Christian club at a public university to sing carols during their Christmas meeting. Cf. Widmar v. Vincent, 454 U. S. 263 (1981). [ Footnote 58 ] The reason is that activities of this nature do not demonstrate the government's allegiance to, or endorsement of, the Christian faith. Equally obvious, however, is the proposition that not all proclamations of Christian faith located on government property are permitted by the Establishment Clause just because they occur during the Christmas holiday season, as the example of a Mass in the courthouse surely illustrates. And once the judgment has been made that a particular proclamation of Christian belief, when disseminated from a particular location on government property, has the effect of demonstrating the government's endorsement of Christian faith, then it necessarily follows that the practice must be enjoined to protect the constitutional rights of those citizens who follow some creed other than Christianity. It is thus incontrovertible that the Court's decision today, premised on the determination that the creche display on the Grand Staircase demonstrates Page 492 U. S. 613 the county's endorsement of Christianity, does not represent a hostility or indifference to religion but, instead, the respect for religious diversity that the Constitution requires. [ Footnote 59 ] VI The display of the Chanukah menorah in front of the City-County Building may well present a closer constitutional question. The menorah, one must recognize, is a religious symbol: it serves to commemorate the miracle of the oil as described in the Talmud. But the menorah's message is not exclusively religious. The menorah is the primary visual Page 492 U. S. 614 symbol for a holiday that, like Christmas, has both religious and secular dimensions. [ Footnote 60 ] Moreover, the menorah here stands next to a Christmas tree and a sign saluting liberty. While no challenge has been made here to the display of the tree and the sign, their presence is obviously relevant in determining the effect of the menorah's display. The necessary result of placing a menorah next to a Christmas tree is to create an "overall holiday setting" that represents both Christmas and Chanukah -- two holidays, not one. See Lynch, 465 U.S. at 465 U. S. 692 (O'CONNOR, J., concurring). The mere fact that Pittsburgh displays symbols of both Christmas and Chanukah does not end the constitutional inquiry. If the city celebrates both Christmas and Chanukah as religious holidays, then it violates the Establishment Clause. Page 492 U. S. 615 The simultaneous endorsement of Judaism and Christianity is no less constitutionally infirm than the endorsement of Christianity alone. [ Footnote 61 ] Conversely, if the city celebrates both Christmas and Chanukah as secular holidays, then its conduct is beyond the reach of the Establishment Clause. Because government may celebrate Christmas as a secular holiday, [ Footnote 62 ] it follows that government may also acknowledge Chanukah as a secular holiday. Simply put, it would be a form of discrimination against Jews to allow Pittsburgh to celebrate Christmas as a cultural tradition while simultaneously disallowing the city's acknowledgment of Chanukah as a contemporaneous cultural tradition. [ Footnote 63 ] Page 492 U. S. 616 Accordingly, the relevant question for Establishment Clause purposes is whether the combined display of the tree, the sign, and the menorah has the effect of endorsing both Christian and Jewish faiths, or rather simply recognizes that both Christmas and Chanukah are part of the same winter holiday season, which has attained a secular status in our society. Of the two interpretations of this particular display, the latter seems far more plausible, and is also in line with Lynch. [ Footnote 64 ] The Christmas tree, unlike the menorah, is not itself a religious symbol. Although Christmas trees once carried religious connotations, today they typify the secular celebration of Christmas. See American Civil Liberties Union of Illinois v. St. Charles, 794 F.2d 265, 271 (CA7), cert. denied, 479 U.S. 961 (1986); L. Tribe, American Constitutional Law 1295 (2d ed.1988) (Tribe). [ Footnote 65 ] Numerous Americans place Page 492 U. S. 617 Christmas trees in their homes without subscribing to Christian religious beliefs, and when the city's tree stands alone in front of the City-County Building, it is not considered an endorsement of Christian faith. Indeed, a 40-foot Christmas tree was one of the objects that validated the creche in Lynch. The widely accepted view of the Christmas tree as the preeminent secular symbol of the Christmas holiday season serves to emphasize the secular component of the message communicated by other elements of an accompanying holiday display, including the Chanukah menorah. [ Footnote 66 ] The tree, moreover, is clearly the predominant element in the city's display. The 45-foot tree occupies the central position beneath the middle archway in front of the Grant Street entrance to the City-County Building; the 18-foot menorah is positioned to one side. Given this configuration, it is much more sensible to interpret the meaning of the menorah in light of the tree, rather than vice-versa. In the shadow of the tree, the menorah is readily understood as simply a recognition that Christmas is not the only traditional way of observing the winter holiday season. In these circumstances, then, the combination of the tree and the menorah communicates not a simultaneous endorsement of both the Christian Page 492 U. S. 618 and Jewish faiths, but instead, a secular celebration of Christmas coupled with an acknowledgment of Chanukah as a contemporaneous alternative tradition. Although the city has used a symbol with religious meaning as its representation of Chanukah, this is not a case in which the city has reasonable alternatives that are less religious in nature. It is difficult to imagine a predominantly secular symbol of Chanukah that the city could place next to its Christmas tree. An 18-foot dreidel would look out of place, and might be interpreted by some as mocking the celebration of Chanukah. The absence of a more secular alternative symbol is itself part of the context in which the city's actions must be judged in determining the likely effect of its use of the menorah. Where the government's secular message can be conveyed by two symbols, only one of which carries religious meaning, an observer reasonably might infer from the fact that the government has chosen to use the religious symbol that the government means to promote religious faith. See Abington School District v. Schempp, 374 U.S. at 374 U. S. 295 (BRENNAN, J., concurring) (Establishment Clause forbids use of religious means to serve secular ends when secular means suffice); see also Tribe 1285. [ Footnote 67 ] But where, as here, no such choice has been made, this inference of endorsement is not present. [ Footnote 68 ] Page 492 U. S. 619 The mayor's sign further diminishes the possibility that the tree and the menorah will be interpreted as a dual endorsement of Christianity and Judaism. The sign states that, during the holiday season, the city salutes liberty. Moreover, the sign draws upon the theme of light, common to both Chanukah and Christmas as winter festivals, and links that theme with this Nation's legacy of freedom, which allows an American to celebrate the holiday season in whatever way he wishes, religiously or otherwise. While no sign can disclaim an overwhelming message of endorsement, see Stone v. Graham, 449 U.S. at 449 U. S. 41 , an "explanatory plaque" may confirm that in particular contexts the government's association with a religious symbol does not represent the government's sponsorship of religious beliefs. See Lynch, 465 U.S. at 465 U. S. 707 (BRENNAN, J., dissenting). Here, the mayor's sign serves to confirm what the context already reveals: that the display of the menorah is not an endorsement of religious faith, but simply a recognition of cultural diversity. Page 492 U. S. 620 Given all these considerations, it is not "sufficiently likely" that residents of Pittsburgh will perceive the combined display of the tree, the sign, and the menorah as an "endorsement" or "disapproval . . . of their individual religious choices." Grand Rapids, 473 U.S. at 473 U. S. 390 . While an adjudication of the display's effect must take into account the perspective of one who is neither Christian nor Jewish, as well as of those who adhere to either of these religions, ibid., the constitutionality of its effect must also be judged according to the standard of a "reasonable observer," see Witters v. Washington Dept. of Services for Blind, 474 U. S. 481 , 474 U. S. 493 (1986) (O'CONNOR, J., concurring in part and concurring in judgment); see also Tribe 1296 (challenged government practices should be judged "from the perspective of a reasonable non-adherent'"). When measured against this standard, the menorah need not be excluded from this particular display. The Christmas tree alone in the Pittsburgh location does not endorse Christian belief; and, on the facts before us, the addition of the menorah "cannot fairly be understood to" result in the simultaneous endorsement of Christian and Jewish faiths. Lynch, 465 U.S. at 465 U. S. 693 (O'CONNOR, J., concurring). On the contrary, for purposes of the Establishment Clause, the city's overall display must be understood as conveying the city's secular recognition of different traditions for celebrating the winter-holiday season. [ Footnote 69 ] The conclusion here that, in this particular context, the menorah's display does not have an effect of endorsing religious Page 492 U. S. 621 faith does not foreclose the possibility that the display of the menorah might violate either the "purpose" or "entanglement" prong of the Lemon analysis. These issues were not addressed by the Court of Appeals, and may be considered by that court on remand. [ Footnote 70 ] VII Lynch v. Donnelly confirms, and in no way repudiates, the longstanding constitutional principle that government may not engage in a practice that has the effect of promoting or endorsing religious beliefs. The display of the creche in the county courthouse has this unconstitutional effect. The display of the menorah in front of the City-County Building, however, does not have this effect, given its "particular physical setting." The judgment of the Court of Appeals is affirmed in part and reversed in part, and the cases are remanded for further proceedings. It is so ordered. Page 492 U. S. 623 * Together with No. 88-90, Chabad v. American Civil Liberties Union et al., and No. 88-96, City of Pittsburgh v. American Civil Liberties Union, Greater Pittsburgh Chapter, et al., also on certiorari to the same court. [ Footnote 1 ] See 8 Encyclopedia of Religion, "Jesus," 15, 18 (1987). [ Footnote 2 ] See 3 Encyclopedia of Religion, "Christmas," 460 (1987). Some eastern churches, however, have not adopted December 25 as the Feast of the Nativity, retaining January 6 as the date for celebrating both the birth and the baptism of Jesus. R. Myers, Celebrations: The Complete Book of American Holidays 15, 17 (1972) (Myers). [ Footnote 3 ] "[T]he Christmas holiday in our national culture contains both secular and sectarian elements." Lynch v. Donnelly, 465 U. S. 668 , 465 U. S. 709 , and n. 15 (1984) (BRENNAN, J., dissenting). It has been suggested that the cultural aspect of Christmas in this country now exceeds the theological significance of the holiday. See J. Barnett, The American Christmas, a Study in National Culture 23 (1954) (Barnett) ("[B]y the latter part of the last century, the folk-secular aspects of Christmas were taking precedence over its religious ones"). [ Footnote 4 ] Luke 2:1-21; Matthew 2 [ Footnote 5 ] This phrase comes from Luke, who tells of an angel appearing to the shepherds to announce the birth of the Messiah. After the angel told the shepherds that they would find the baby lying in a manger, "suddenly there was with the angel a multitude of the heavenly host praising God, and saying, Glory to God in the highest, and on earth peace, good will towards men." Luke 2:13-14 (King James Version). It is unlikely that an observer standing at the bottom of the Grand Staircase would be able to read the text of the angel's banner from that distance, but might be able to do so from a closer vantage point. [ Footnote 6 ] On each side of the staircase was a sign indicating the direction of county offices. JEV 7-8. A small evergreen tree, decorated much like the trees behind the endposts, was placed next to each directional sign. Ibid. [ Footnote 7 ] In the arched windows behind the staircase were two large wreaths, each with a large red ribbon. Ibid. [ Footnote 8 ] See generally A. Bloch, The Biblical and Historical Background of the Jewish Holy Days 49-78 (1978) (Bloch, Holy Days); A. Bloch, The Biblical and Historical Background of Jewish Customs and Ceremonies 267-278 (1980) (Bloch, Ceremonies); 6 Encyclopedia of Religion, "Hanukkah," 193194; 7 Encyclopaedia Judaica, "Hanukkah," 1280-1288 (1972); O. Rankin, The Origins of the Festival of Hanukkah (1930) (Rankin); A. Chill, The Minhagim 241-254 (1979) (Chill); L. Trepp, The Complete Book of Jewish Observance 137-151 (1980) (Trepp); M. Strassfeld, The Jewish Holidays 161-177 (1985) (Strassfeld). [ Footnote 9 ] See Columbia Encyclopedia 1190 (4th ed.1975); J. Williams, What Americans Believe and How they Worship 348 (3d ed.1969); Myers 302; see also Strassfeld 202; see generally A. Spier, The Comprehensive Hebrew Calendar (1981). [ Footnote 10 ] See P. Johnson, A History of the Jews 104 (1987) (Johnson); R. Seltzer, Jewish People, Jewish Thought: The Jewish Experience in History 158 (1980) (Seltzer). [ Footnote 11 ] The word Chanukah, sometimes spelled Chanukkah or Hanukkah, is drawn from the Hebrew for "dedication." 7 Encyclopaedia Judaica 1280. [ Footnote 12 ] See Strassfeld 161-163; Rankin 133. [ Footnote 13 ] The Talmud (specifically the Babylonian Talmud) is a collection of rabbinic commentary on Jewish law that was compiled before the sixth century, App. 140. See 14 Encyclopedia of Religion, "Talmud," 256-259; see also Seltzer 265. [ Footnote 14 ] "Menorah" is Hebrew for "candelabrum." See 11 Encyclopaedia Judaica, "Menorah," at 1356. [ Footnote 15 ] See The Babylonian Talmud, Seder Mo'ed, 1 Shabbath 21b (Soncino Press 1938); Strassfeld 163; Trepp 143. [ Footnote 16 ] Cf. "Mitzvah," in 12 Encyclopaedia Judaica 162 (4th ed., 1972) ("In common usage, mitzvah has taken on the meaning of a good deed. Already in the Talmud, this word was used for a meritorious act, as distinct from a positive commandment"). The plural of mitzvah is mitzvot. [ Footnote 17 ] See also Bloch, Ceremonies 269. According to some Jewish authorities, the miracle of Chanukah is the success of the Maccabees over the Seleucids, rather than the fact that the oil lasted eight days. App. 141. Either way, the purpose of lighting the Chanukah candles, as a religious mitzvah, is to celebrate a miracle. Ibid. [ Footnote 18 ] Trepp 146; 7 Encyclopaedia Judaica 1283; Talmud Shabbath 21b. [ Footnote 19 ] Bloch, Ceremonies 274. [ Footnote 20 ] Another translation is "Praised are you, Lord our God, Ruler of the universe, who has sanctified our lives through His commandments, commanding us to kindle the Hanukkah lights." Strassfeld 167. [ Footnote 21 ] Trepp 145; see generally 7 Encyclopaedia Judaica, "Hanukkah Lamp," 1288-1316. [ Footnote 22 ] The design of the menorah is set forth in Exodus 25:31-40; see also 11 Encyclopaedia Judaica 1356-1370. [ Footnote 23 ] Bloch, Ceremonies 274-275. [ Footnote 24 ] A Torah scroll -- which contains the five Books of Moses -- must be buried in a special manner when it is no longer usable. App. 237-238. [ Footnote 25 ] Strassfeld 167; Bloch, Ceremonies 277. [ Footnote 26 ] Id. at 277-278; Trepp 147. It is also a custom to serve potato pancakes or other fried foods on Chanukah because the oil in which they are fried is, by tradition, a reminder of the miracle of Chanukah. App. 242-243; Strassfeld 168. [ Footnote 27 ] Id. at 164 [ Footnote 28 ] Trepp 144, 150; 6 Encyclopedia of Religion 193; see also Strassfeld 176. Of course, the celebration of Christmas and Chanukah in the Southern Hemisphere occurs during summer. Nonetheless, both Christmas and Chanukah first developed in the Northern Hemisphere, and have longstanding cultural associations with the beginning of winter. In fact, ancient rabbis chose Chanukah as the means to mark the beginning of winter. See Bloch, Holy Days 77. [ Footnote 29 ] See also App. 229, 237. The Court of Appeals in this litigation plainly erred when it asserted that Chanukah "is not . . . a holiday with secular aspects." 842 F.2d 655, 662 (CA3 1988). This assertion contradicts uncontroverted record evidence presented by respondents' own expert witness: "There are also those Jews within the Jewish community who are nontheistic. . . . [T]hey base their celebration [of Chanukah] on something other than religion." App. 143. In response to further questioning, the expert added that the celebration of Chanukah as a cultural event "certainly exists." Ibid. Thus, on this record, Chanukah unquestionably has "secular aspects," although it is also a religious holiday. See Chill 241 (Chanukah is celebrated by secular as well as religious Jews). [ Footnote 30 ] Strassfeld 164-165; see also 7 Encyclopaedia Judaica 1288. [ Footnote 31 ] "In America, Hanukkah has been influenced by the celebration of Christmas. While a tradition of giving Hanukkah gelt -- money -- is an old one, the proximity to Christmas has made gift-giving an intrinsic part of the holiday." Strassfeld 164. [ Footnote 32 ] "In general, the attempt to create a Jewish equivalent to Christmas has given Hanukkah more significance in the festival cycle than it has had in the past." Ibid. "Hanukkah has prospered because it comes about the same time as Christmas and can be used as the Jewish equivalent." D. Elazar, Community and Polity: The Organizational Dynamics of American Jewry 119 (1976). "Hanukkah was elaborated by American Jews to protect the child and to defend Judaism against the glamour and seductive power of Christmas." C. Liebman, The Ambivalent American Jew 66 (1973). See also M. Sklare & J. Greenblum, Jewish Identity on the Suburban Frontier 58 (1967): "The aspects of Hanukkah observance currently emphasized -- the exchange of gifts and the lighting and display of the menorah in the windows of homes -- offer ready parallels to the general mode of Christmas observance, as well as provide a " "'Jewish' alternative to the holiday. Instead of alienating the Jew from the general culture, Hanukkah helps situate him as a participant in that culture. Hanukkah, in short, becomes for some the Jewish Christmas." [ Footnote 33 ] See Chill 241 (from the perspective of Jewish religious law, Chanukah is "only a minor festival"). [ Footnote 34 ] Additionally, menorahs -- like Chanukah itself -- have a secular, as well as a religious, dimension. The record in this litigation contains a passing reference to the fact that menorahs "are used extensively by secular Jewish organizations to represent the Jewish people." App. 310. [ Footnote 35 ] Chabad, also known as Lubavitch, is an organization of Hasidic Jews who follow the teachings of a particular Jewish leader, the Lubavitch Rebbe. Id. at 228, 253-254. The Lubavitch movement is a branch of Hasidism, which itself is a branch of orthodox Judaism. Id. at 249-250. Pittsburgh has a total population of 45,000 Jews; of these, 100 to 150 families attend synagogue at Pittsburgh's Lubavitch Center. Id. at 247-251. [ Footnote 36 ] Respondents also sought a preliminary injunction against the display of the creche and menorah for the 1986-1987 holiday season. Characterizing the creche and menorah as " de minimis in the context of the First Amendment," the District Court, on December 15, denied respondents' motion for preliminary injunctive relief. Id. at 10. [ Footnote 37 ] Respondents, however, do not claim that the city's Christmas tree violates the Establishment Clause, and do not seek to enjoin its display. Respondents also do not claim that the county's Christmas carol program is unconstitutional. See Tr. of Oral Arg. 32. [ Footnote 38 ] In addition to agreeing with the city that the menorah's display does not violate the Establishment Clause, Chabad contends that it has a constitutional right to display the menorah in front of the City-County Building. In light of the Court's disposition of the Establishment Clause question as to the menorah, there is no need to address Chabad's contention. [ Footnote 39 ] See also M. Borden, Jews, Turks, and Infidels (1984) (charting the history of discrimination against non-Christian citizens of the United States in the 18th and 19th centuries); Laycock, "Nonpreferential" Aid to Religion: A False Claim About Original Intent, 27 Wm. & Mary L.Rev. 876, 919-920 (1986) (Laycock) (the intolerance of late 18th-century Americans towards Catholics, Jews, Moslems, and atheists cannot be the basis of interpreting the Establishment Clause today). [ Footnote 40 ] A State may neither allow public school students to receive religious instruction on public school premises, Illinois ex rel. McCollum v. Board of Education of School Dist. No. 71, Champaign County, 333 U. S. 203 (1948), nor allow religious school students to receive state-sponsored education in their religious schools. School District of Grand Rapids v. Ball, 473 U. S. 373 (1985). Similarly unconstitutional is state-sponsored prayer in public schools. Abington School District v. Schempp, 374 U. S. 203 (1963); Engel v. Vitale, 370 U. S. 421 (1962). And the content of a public school's curriculum may not be based on a desire to promote religious beliefs. Edwards v. Aguillard, 482 U. S. 578 (1987); Epperson v. Arkansas, 393 U. S. 97 (1968). For the same reason, posting the Ten Commandments on the wall of a public school classroom violates the Establishment Clause. Stone v. Graham, 449 U. S. 39 (1980). [ Footnote 41 ] A statute that conditions the holding of public office on a belief in the existence of God is unconstitutional, Torcaso v. Watkins, 367 U. S. 488 (1961), as is one that grants a tax exemption for only religious literature, Texas Monthly, Inc. v. Bullock, 489 U. S. 1 (1989), and one that grants an employee a right not to work on his Sabbath, Estate of Thornton v. Caldor, Inc., 472 U. S. 703 , 472 U. S. 709 -710, and n. 9 (1985) (reasoning that other employees might also have strong reasons for taking a particular day off from work each week). See also Larson v. Valente, 456 U. S. 228 (1982) (invalidating a statute that imposed registration and reporting requirements upon only those religious organizations that solicit more than 50% of their funds from nonmembers). [ Footnote 42 ] Larkin v. Grendel's Den, Inc., 459 U. S. 116 (1982). [ Footnote 43 ] See Aguilar v. Felton, 473 U. S. 402 , 473 U. S. 409 (1985); Wolman v. Walter, 433 U. S. 229 , 433 U. S. 254 (1977); Meek v. Pittenger, 421 U. S. 349 , 421 U. S. 370 (1975); Lemon v. Kurtzman, 403 U. S. 602 , 403 U. S. 619 -622 (1971). [ Footnote 44 ] See, e.g., Bowen v. Kendrick, 487 U. S. 589 , 487 U. S. 602 (1988); Edwards v. Aguillard, 482 U.S. at 482 U. S. 583 ; Witters v. Washington Dept. of Services for Blind, 474 U. S. 481 , 474 U. S. 485 (1986); Aguilar v. Felton, 473 U.S. at 473 U. S. 410 ; School Dist. of Grand Rapids v. Ball, 473 U.S. at 473 U. S. 382 -383; Estate of Thornton v. Caldor, Inc., 472 U.S. at 472 U. S. 708 ; Wallace v. Jaffree, 472 U. S. 38 , 472 U. S. 55 -56 (1985); Larkin v. Grendel's Den, Inc., 459 U.S. at 459 U. S. 123 ; Stone v. Graham, 449 U.S. at 449 U. S. 40 ; Committee for Public Education and Religious Liberty v. Regan, 444 U. S. 646 , 444 U. S. 653 (1980); Meek v. Pittenger, supra; Sloan v. Lemon , 413 U. S. 825 (1973); Committee for Public Education and Religious Liberty v. Nyquist, 413 U. S. 756 , 413 U. S. 772 -773 (1973); Hunt v. McNair, 413 U. S. 734 , 413 U. S. 741 (1973); Levitt v. Committee for Public Education and Religious Liberty, 413 U. S. 472 , 413 U. S. 481 -482 (1973). [ Footnote 45 ] There is no need here to review the applications in Lynch of the "purpose" and "entanglement" elements of the Lemon inquiry, since, in the present action, the Court of Appeals did not consider these issues. [ Footnote 46 ] The difference in approach between the Lynch majority and the concurrence is especially evident in each opinion's treatment of Marsh v. Chambers, 463 U. S. 783 (1983). In that case, the Court sustained the practice of legislative prayer based on its unique history: Congress authorized the payment of legislative chaplains during the same week that it reached final agreement on the language of the Bill of Rights. Id. at 463 U. S. 788 . The Lynch majority employed Marsh comparatively: to forbid the use of the creche while the Congress and legislatures open sessions with prayers by paid chaplains would be a stilted overreaction contrary to our history and to our holdings. Lynch, 465 U.S. at 465 U. S. 686 . The concurrence, in contrast, harmonized the result in Marsh with the endorsement principle in a rigorous way, explaining that legislative prayer (like the invocation that commences each session of this Court) is a form of acknowledgment of religion that "serve[s], in the only wa[y] reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society." 465 U.S. at 465 U. S. 693 . The function and history of this form of ceremonial deism suggest that "those practices are not understood as conveying government approval of particular religious beliefs." Ibid.; see also id. at 465 U. S. 717 (BRENNAN, J., dissenting). [ Footnote 47 ] The county and the city argue that their use of religious symbols does not violate the Establishment Clause unless they are shown to be "coercive." Reply Brief for Petitioners County of Allegheny et al. 1-6; Tr. of Oral Arg. 9, 11. They recognize that this Court repeatedly has stated that "proof of coercion" is "not a necessary element of any claim under the Establishment Clause." Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. at 413 U. S. 786 ; see also Abington School District v. Schempp, 374 U.S. at 374 U. S. 222 -223; Engel v. Vitale, 370 U.S. at 370 U. S. 430 . But they suggest that the Court reconsider this principle. Reply Brief for Petitioners Allegheny County et al. 3; cf. American Jewish Congress v. Chicago, 827 F.2d 120, 137 (CA7 1987) (dissenting opinion); McConnell, Coercion: The Lost Element of Establishment, 27 Wm. & Mary L.Rev. 933 (1986). The Court declines to do so, and proceeds to apply the controlling endorsement inquiry, which does not require an independent showing of coercion. [ Footnote 48 ] The presence of Santas or other Christmas decorations elsewhere in the county courthouse, and of the nearby gallery forum, fail to negate the endorsement effect of the creche. The record demonstrates clearly that the creche, with its floral frame, was its own display distinct from any other decorations or exhibitions in the building. Tr. of Oral Arg. 7. [ Footnote 49 ] See App. 169 (religious as well as nonreligious carols were sung at the program). [ Footnote 50 ] The Grand Staircase does not appear to be the kind of location in which all were free to place their displays for weeks at a time, so that the presence of the creche in that location for over six weeks would then not serve to associate the government with the creche. Even if the Grand Staircase occasionally was used for displays other than the creche (for example, a display of flags commemorating the 25th anniversary of Israel's independence, id. at 176), it remains true that any display located there fairly may be understood to express views that receive the support and endorsement of the government. In any event, the county's own press releases made clear to the public that the county associated itself with the creche. JEV 28 (flier identifying the choral program as county sponsored); id. at 30; App. 174 (linking the creche to the choral program). Moreover, the county created a visual link between itself and the creche: it placed next to official county signs two small evergreens identical to those in the creche display. In this respect, the creche here does not raise the kind of "public forum" issue, cf. Widmar v. Vincent, 454 U. S. 263 (1981), presented by the creche in McCreary v. Stone, 739 F.2d 716 (CA2 1984), aff'd by an equally divided Court sub nom. Board of Trustees of Scarsdale v. McCreary, 471 U. S. 83 (1985) (private creche in public park). [ Footnote 51 ] Nor can the display of the creche be justified as an "accommodation" of religion. See Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327 (1987). Government efforts to accommodate religion are permissible when they remove burdens on the free exercise of religion. Id. at 483 U. S. 348 (O'CONNOR, J., concurring in judgment). The display of a creche in a courthouse does not remove any burden on the free exercise of Christianity. Christians remain free to display creches in their homes and churches. To be sure, prohibiting the display of a creche in the courthouse deprives Christians of the satisfaction of seeing the government adopt their religious message as their own, but this kind of government affiliation with particular religious messages is precisely what the Establishment Clause precludes. [ Footnote 52 ] It is worth noting that, just because Marsh sustained the validity of legislative prayer, it does not necessarily follow that practices like proclaiming a National Day of Prayer are constitutional. See post at 492 U. S. 672 -673. Legislative prayer does not urge citizens to engage in religious practices, and, on that basis, could well be distinguishable from an exhortation from government to the people that they engage in religious conduct. But, as this practice is not before us, we express no judgment about its constitutionality. [ Footnote 53 ] Among the stories this scholar recounts is one that is especially apt in light of JUSTICE KENNEDY's citation of Thanksgiving Proclamations, post at 492 U. S. 671 : "When James H. Hammond, governor of South Carolina, announced a day of 'Thanksgiving, Humiliation, and Prayer' in 1844, he . . . exhorted" "our citizens of all denominations to assemble at their respective places of worship, to offer up their devotions to God their Creator, and his Son Jesus Christ, the Redeemer of the world." "The Jews of Charleston protested, charging Hammond with" "such obvious discrimination and preference in the tenor of your proclamation, as amounted to an utter exclusion of a portion of the people of South Carolina." "Hammond responded that" "I have always thought it a settled matter that I lived in a Christian land! And that I was the temporary chief magistrate of a Christian people. That in such a country and among such a people I should be, publicly, called to an account, reprimanded and required to make amends for acknowledging Jesus Christ as the Redeemer of the world, I would not have believed possible, if it had not come to pass." "( The Occident, January 1845)." Borden 142, n. 2 (emphasis in Borden). Thus, not all Thanksgiving proclamations fit the nonsectarian or deist mold as did those examples quoted by JUSTICE KENNEDY. Moreover, the Jews of Charleston succinctly captured the precise evil caused by such sectarian proclamations as Governor Hammond's -- they demonstrate an official preference for Christianity and a corresponding official discrimination against all non-Christians, amounting to an exclusion of a portion of the political community. It is against this very evil that the Establishment Clause, in part, is directed. Indeed, the Jews of Charleston could not better have formulated the essential concepts of the endorsement inquiry. [ Footnote 54 ] In 1776, for instance, Maryland adopted a "Declaration of Rights" that allowed its legislature to impose a tax "for the support of the Christian religion" and a requirement that all state officials declare "a belief in the Christian religion." 1 A. Stokes, Church and State in the United States 865-866 (1950). Efforts made in 1797 to remove these discriminations against non-Christians were unsuccessful. Id. at 867. See also id. at 513 (quoting the explicitly Christian proclamation of President John Adams, who urged all Americans to seek God's grace "through the Redeemer of the world" and "by His Holy Spirit"). [ Footnote 55 ] JUSTICE KENNEDY evidently believes that contemporary references to exclusively Christian creeds (like the Trinity or the divinity of Jesus) in official acts or proclamations is justified by the religious sentiments of those responsible for the adoption of the First Amendment. See 2 J. Story, Commentaries on the Constitution of the United States § 1874, p. 663 (1858) (at the time of the First Amendment's adoption, "the general, if not the universal, sentiment in America was that Christianity ought to receive encouragement from the state"). This Court, however, squarely has rejected the proposition that the Establishment Clause is to be interpreted in light of any favoritism for Christianity that may have existed among the Founders of the Republic. Wallace v. Jaffree, 472 U.S. at 472 U. S. 52 . [ Footnote 56 ] In describing what would violate his "proselytization" test, JUSTICE KENNEDY uses the adjectives "permanent," "year-round," and "continual," post at 492 U. S. 661 , 492 U. S. 664 -665, n. 3, as if to suggest that temporary acts of favoritism for a particular sect do not violate the Establishment Clause. Presumably, however, JUSTICE KENNEDY does not really intend these adjectives to define the limits of his principle, since it is obvious that the government's efforts to proselytize may be of short duration, as Governor Hammond's Thanksgiving Proclamation illustrates. See n 53, supra. In any event, the Court repudiated any notion that preferences for particular religious beliefs are permissible unless permanent when, in Bowen v. Kendrick, 487 U. S. 589 , 487 U. S. 620 (1988), it ordered an inquiry into the "specific instances of impermissible behavior" that may have occurred in the administration of a statutory program. [ Footnote 57 ] It is not clear, moreover, why JUSTICE KENNEDY thinks the display of the creche in this lawsuit is permissible even under his lax "proselytization" test. Although, early on in his opinion, he finds "no realistic risk that the creche . . . represent[s] an effort to proselytize," post at 492 U. S. 664 , at the end, he concludes: "[T]he eager proselytizer may seek to use [public creche displays] for his own ends. The urge to use them to teach or to taunt is always present. " Post at 492 U. S. 678 (emphasis added). Whatever the cause of this inconsistency, it should be obvious to all that the creche on the Grand Staircase communicates the message that Jesus is the Messiah and to be worshipped as such, an inherently prosyletizing message if ever there was one. In fact, the angel in the creche display represents, according to Christian tradition, one of the original "proselytizers" of the Christian faith: the angel who appeared to the shepherds to tell them of the birth of Christ. Thus, it would seem that JUSTICE KENNEDY should find this display unconstitutional according to a consistent application of his principle that government may not place its weight behind obvious efforts to proselytize Christian creeds specifically. Contrary to JUSTICE KENNEDY's assertion, the Court's decision in Lynch does not foreclose this conclusion. Lynch certainly is not "dispositive of [a] claim," post at 492 U. S. 665 , regarding the government's display of a creche bearing an explicitly proselytizing sign (like "Let's all rejoice in Jesus Christ, the Redeemer of the world," cf. n 53, supra ). As much as JUSTICE KENNEDY tries, see post at 492 U. S. 665 -666, there is no hiding behind the fiction that Lynch decides the constitutionality of every possible government creche display. Once stripped of this fiction, JUSTICE KENNEDY's opinion transparently lacks a principled basis, consistent with our precedents, for asserting that the creche display here must be held constitutional. [ Footnote 58 ] Thus, JUSTICE KENNEDY is incorrect when he says, post at 492 U. S. 674 , n. 10, that the Court fails to explain why today's decision does not require the elimination of all religious Christmas music from public property. [ Footnote 59 ] In his attempt to legitimate the display of the creche on the Grand Staircase, JUSTICE KENNEDY repeatedly characterizes it as an "accommodation" of religion. See, e.g., post at 492 U. S. 663 , 492 U. S. 664 . But an accommodation of religion, in order to be permitted under the Establishment Clause, must lift "an identifiable burden on the exercise of religion. " Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. at 483 U. S. 348 (O'CONNOR, J., concurring in judgment) (emphasis in original); see also McConnell, Accommodation of Religion, 1985 S.Ct.Rev. 1, 3-4 (defining "accommodation" as government action as "specifically for the purpose of facilitating the free exercise of religion," usually by exempting religious practices from general regulations). Defined thus, the concept of accommodation plainly has no relevance to the display of the creche in this lawsuit. See n 51, supra. One may agree with JUSTICE KENNEDY that the scope of accommodations permissible under the Establishment Clause is larger than the scope of accommodations mandated by the Free Exercise Clause. See post at 492 U. S. 663 , n. 2. An example prompted by the Court's decision in Goldman v. Weinberger, 475 U. S. 503 (1986), comes readily to mind: although the Free Exercise Clause does not require the Air Force to exempt yarmulkes from a no-headdress rule, it is at least plausible that the Establishment Clause permits the Air Force to promulgate a regulation exempting yarmulkes (and similar religiously motivated headcoverings) from its no-headdress rule. But a category of "permissible accommodations of religion not required by the Free Exercise Clause" aids the creche on the Grand Staircase not at all. Prohibiting the display of a creche at this location, it bears repeating, does not impose a burden on the practice of Christianity (except to the extent that some Christian sect seeks to be an officially approved religion), and therefore permitting the display is not an "accommodation" of religion in the conventional sense. [ Footnote 60 ] JUSTICE KENNEDY is clever but mistaken in asserting that the description of the menorah, supra, at 492 U. S. 582 -587, purports to turn the Court into a "national theology board." Post at 492 U. S. 678 . Any inquiry concerning the government's use of a religious object to determine whether that use results in an unconstitutional religious preference requires a review of the factual record concerning the religious object -- even if the inquiry is conducted pursuant to JUSTICE KENNEDY's "proselytization" test. Surely JUSTICE KENNEDY cannot mean that this Court must keep itself in ignorance of the symbol's conventional use and decide the constitutional question knowing only what it knew before the case was filed. This prescription of ignorance obviously would bias this Court according to the religious and cultural backgrounds of its Members, a condition much more intolerable than any which results from the Court's efforts to become familiar with the relevant facts. Moreover, the relevant facts concerning Chanukah and the menorah are largely to be found in the record, as indicated by the extensive citation to the Appendix, supra at 492 U. S. 582 -585. In any event, Members of this Court have not hesitated in referring to secondary sources in aid of their Establishment Clause analysis, see, e.g., Lynch, 465 U.S. at 465 U. S. 709 -712, 465 U. S. 721 -724 (BRENNAN, J., dissenting), because the question "whether a government activity communicates an endorsement of religion" is "in large part a legal question to be answered on the basis of judicial interpretation of social facts," id. at 465 U. S. 693 -694 (O'CONNOR, J., concurring). [ Footnote 61 ] The display of a menorah next to a creche on government property might prove to be invalid. Cf. Greater Houston Chapter of American Civil Liberties Union v. Eckels, 589 F. Supp. 222 (SD Tex.1984), appeal dism'd, 755 F.2d 426 (CA5), cert. denied, 474 U.S. 980 (1985) (war memorial containing crosses and a Star of David unconstitutionally favored Christianity and Judaism, discriminating against the beliefs of patriotic soldiers who were neither Christian nor Jewish). [ Footnote 62 ] It is worth recalling here that no Member of the Court in Lynch suggested that government may not celebrate the secular aspects of Christmas. On the contrary, the four dissenters there stated: "If public officials . . . participate in the secular celebration of Christmas -- by, for example, decorating public places with such secular images as wreaths, garlands, or Santa Claus figures -- they move closer to the limits of their constitutional power but nevertheless remain within the boundaries set by the Establishment Clause." 465 U.S. at 465 U. S. 710 -711 (BRENNAN, J., dissenting) (emphasis in original). [ Footnote 63 ] Thus, to take the most obvious of examples, if it were permissible for the city to display in front of the City-County Building a banner exclaiming "Merry Christmas," then it would also be permissible for the city to display in the same location a banner proclaiming "Happy Chanukah." JUSTICE BRENNAN, however, seems to suggest that even this practice is problematic, because holidays associated with other religious traditions would be excluded. See post at 492 U. S. 664 . But when the government engages in the secular celebration of Christmas, without any reference to holidays celebrated by non-Christians, other traditions are excluded -- and yet JUSTICE BRENNAN has approved the government's secular celebration of Christmas. See n. 62 supra. [ Footnote 64 ] It is distinctly implausible to view the combined display of the tree, the sign, and the menorah as endorsing the Jewish faith alone. During the time of this litigation, Pittsburgh had a population of 387,000, of which approximately 45,000 were Jews. U.S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States 34 (108th ed.1988); App. 247. When a city like Pittsburgh places a symbol of Chanukah next to a symbol of Christmas, the result may be a simultaneous endorsement of Christianity and Judaism (depending upon the circumstances of the display). But the city's addition of a visual representation of Chanukah to its preexisting Christmas display cannot reasonably be understood as an endorsement of Jewish -- yet not Christian -- belief. Thus, unless the combined Christmas-Chanukah display fairly can be seen as a double endorsement of Christian and Jewish faiths, it must be viewed as celebrating both holidays without endorsing either faith. The conclusion that Pittsburgh's combined Christmas-Chanukah display cannot be interpreted as endorsing Judaism alone does not mean, however, that it is implausible, as a general matter, for a city like Pittsburgh to endorse a minority faith. The display of a menorah alone might well have that effect. [ Footnote 65 ] See also Barnett 141-142 (describing the Christmas tree, along with gift giving and Santa Claus, as those aspects of Christmas which have become "so intimately identified with national life" that immigrants feel the need to adopt these customs in order to be a part of American culture). Of course, the tree is capable of taking on a religious significance if it is decorated with religious symbols. Cf. Gilbert, The Season of Good Will and Inter-religious Tension, 24 Reconstructionist 13 (1958) (considering the Christmas tree, without the Star of Bethlehem, as one of "the cultural aspects of the Christmas celebration"). [ Footnote 66 ] Although the Christmas tree represents the secular celebration of Christmas, its very association with Christmas (a holiday with religious dimensions) makes it conceivable that the tree might be seen as representing Christian religion when displayed next to an object associated with Jewish religion. For this reason, I agree with JUSTICE BRENNAN and JUSTICE STEVENS that one must ask whether the tree and the menorah together endorse the religious beliefs of Christians and Jews. For the reasons stated in the text, however, I conclude the city's overall display does not have this impermissible effect. [ Footnote 67 ] Contrary to the assertions of JUSTICE O'CONNOR and JUSTICE KENNEDY, I have not suggested here that the government's failure to use an available secular alternative necessarily results in an Establishment Clause violation. Rather, it suffices to say that the availability or unavailability of secular alternatives is an obvious factor to be considered in deciding whether the government's use of a religious symbol amounts to an endorsement of religious faith. [ Footnote 68 ] In Lynch, in contrast, there was no need for Pawtucket to include a creche in order to convey a secular message about Christmas. See 465 U.S. at 465 U. S. 726 -727 (BLACKMUN, J., dissenting). Thus, unless the addition of the creche to the Pawtucket display was recognized as an endorsement of Christian faith, the creche there was "relegated to the role of a neutral harbinger of the holiday season," id. at 465 U. S. 727 , serving no function different from that performed by the secular symbols of Christmas. But the same cannot be said of the addition of the menorah to the Pittsburgh display. The inclusion of the menorah here broadens the Pittsburgh display to refer not only to Christmas but also to Chanukah -- a different holiday belonging to a different tradition. It does not demean Jewish faith or the religious significance of the menorah to say that the menorah in this context represents the holiday of Chanukah as a whole (with religious and secular aspects), just as the Christmas tree in this context can be said to represent the holiday of Christmas as a whole (with its religious and secular aspects). Thus, the menorah retains its religious significance even in this display, but it does not follow that the city has endorsed religious belief over nonbelief. In displaying the menorah next to the tree, the city has demonstrated no preference for the religious celebration of the holiday season. This conclusion, however, would be untenable had the city substituted a creche for its Christmas tree or if the city had failed to substitute for the menorah an alternative, more secular, representation of Chanukah. [ Footnote 69 ] This is not to say that the combined display of a Christmas tree and a menorah is constitutional wherever it may be located on government property. For example, when located in a public school, such a display might raise additional constitutional considerations. Cf. Edwards v. Aguillard, 482 U.S. at 482 U. S. 583 -584 (Establishment Clause must be applied with special sensitivity in the public school context). [ Footnote 70 ] In addition, nothing in this opinion forecloses the possibility that on other facts a menorah display could constitute an impermissible endorsement of religion. Indeed, there is some evidence in this record that, in the past, Chabad lit the menorah in front of the City-County Building in a religious ceremony that included the recitation of traditional religious blessings. See App. 281. Respondents, however, did not challenge this practice, there are no factual findings on it, and the Court of Appeals did not consider it in deciding that the display of a menorah in this location necessarily endorses Judaism. See 842 F.2d at 662. There is also some suggestion in the record that Chabad advocates the public display of menorahs as part of its own proselytizing mission, but again there have been no relevant factual findings that would enable this Court to conclude that Pittsburgh has endorsed Chabad's particular proselytizing message. Of course, nothing in this opinion forecloses a challenge to a menorah display based on such factual findings. JUSTICE O'CONNOR, with whom JUSTICE BRENNAN and JUSTICE STEVENS join as to Part II, concurring in part and concurring in the judgment. I Judicial review of government action under the Establishment Clause is a delicate task. The Court has avoided drawing lines which entirely sweep away all government recognition and acknowledgment of the role of religion in the lives of our citizens, for to do so would exhibit not neutrality, but hostility, to religion. Instead, the courts have made case-specific examinations of the challenged government action and have attempted to do so with the aid of the standards described by JUSTICE BLACKMUN in Part III-A of the Court's opinion. Ante at 492 U. S. 590 -594. Unfortunately, even the development of articulable standards and guidelines has not always resulted in agreement among the Members of this Court on the results in individual cases. And so it is again today. The constitutionality of the two displays at issue in these cases turns on how we interpret and apply the holding in Lynch v. Donnelly, 465 U. S. 668 (1984), in which we rejected an Establishment Clause challenge to the city of Pawtucket's inclusion of a creche in its annual Christmas holiday display. The seasonal display reviewed in Lynch was located in a privately owned park in the heart of the shopping district. Id. at 465 U. S. 671 . In addition to the creche, the display included "a Santa Claus house, reindeer pulling Santa's sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, [and] a large banner that rea[d] 'SEASONS GREETINGS.'" Ibid. The city owned all the components of the display. Setting up and dismantling the creche cost the city about $20 a year, and nominal expenses were incurred in lighting the creche. The Lynch Court began its analysis by stating that Establishment Clause cases call for careful line drawing: "[N]o fixed, per se rule can be framed." Id. at 465 U. S. 678 . Although declaring Page 492 U. S. 624 that it was not willing to be confined to any single test, the Court essentially applied the Lemon test, asking "whether the challenged law or conduct has a secular purpose, whether its principal or primary effect is to advance or inhibit religion, and whether it creates an excessive entanglement of government with religion." 465 U.S. at 465 U. S. 679 (citing Lemon v. Kurtzman, 403 U. S. 602 (1971)). In reversing the lower court's decision, which held that inclusion of the creche in the holiday display violated the Establishment Clause, the Court stressed that the lower court erred in "focusing almost exclusively on the creche." 465 U.S. at 465 U. S. 680 . "In so doing, it rejected the city's claim that its reasons for including the creche are essentially the same as its reasons for sponsoring the display as a whole." Ibid. When viewed in the "context of the Christmas Holiday season," the Court reasoned, there was insufficient evidence to suggest that inclusion of the creche as part of the holiday display was an effort to advocate a particular religious message. Ibid. The Court concluded that Pawtucket had a secular purpose for including the creche in its Christmas holiday display, namely, "to depict the origins of that Holiday." Id. at 465 U. S. 681 . The Court also concluded that inclusion of the creche in the display did not have the primary effect of advancing religion. "[D]isplay of the creche is no more an advancement or endorsement of religion than the Congressional and Executive recognition of the origins of the Holiday itself as 'Christ's Mass,' or the exhibition of literally hundreds of religious paintings in governmentally supported museums." Id. at 465 U. S. 683 . Finally, the Court found no excessive entanglement between religion and government. There was "no evidence of contact with church authorities concerning the content or design of the exhibit prior to or since Pawtucket's purchase of the creche." Id. at 465 U. S. 684 . I joined the majority opinion in Lynch because, as I read that opinion, it was consistent with the analysis set forth in my separate concurrence, which stressed that "[e]very government Page 492 U. S. 625 practice must be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion." Id. at 465 U. S. 694 (emphasis added). Indeed, by referring repeatedly to "inclusion of the creche" in the larger holiday display, id. at 465 U. S. 671 , 465 U. S. 680 -682, 465 U. S. 686 , the Lynch majority recognized that the creche had to be viewed in light of the total display of which it was a part. Moreover, I joined the Court's discussion in Part II of Lynch concerning government acknowledgments of religion in American life because, in my view, acknowledgments such as the legislative prayers upheld in Marsh v. Chambers, 463 U. S. 783 (1983), and the printing of "In God We Trust" on our coins serve the secular purposes of "solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society." Lynch, 465 U.S. at 465 U. S. 693 (concurring opinion). Because they serve such secular purposes and because of their "history and ubiquity," such government acknowledgments of religion are not understood as conveying an endorsement of particular religious beliefs. Ibid. At the same time, it is clear that "[g]overnment practices that purport to celebrate or acknowledge events with religious significance must be subjected to careful judicial scrutiny." Id. at 465 U. S. 694 . In my concurrence in Lynch, I suggested a clarification of our Establishment Clause doctrine to reinforce the concept that the Establishment Clause "prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community." Id. at 465 U. S. 687 . The government violates this prohibition if it endorses or disapproves of religion. Id. at 465 U. S. 688 . "Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." Ibid. Disapproval of religion conveys the opposite message. Thus, in my view, the central issue in Lynch was whether the city of Pawtucket had Page 492 U. S. 626 endorsed Christianity by displaying a creche as part of a larger exhibit of traditional secular symbols of the Christmas holiday season. In Lynch, I concluded that the city's display of a creche in its larger holiday exhibit in a private park in the commercial district had neither the purpose nor the effect of conveying a message of government endorsement of Christianity or disapproval of other religions. The purpose of including the creche in the larger display was to celebrate the public holiday through its traditional symbols, not to promote the religious content of the creche. Id. at 465 U. S. 691 . Nor, in my view, did Pawtucket's display of the creche along with secular symbols of the Christmas holiday objectively convey a message of endorsement of Christianity. Id. at 465 U. S. 692 . For the reasons stated in 492 U. S. I agree that the creche displayed on the Grand Staircase of the Allegheny County Courthouse, the seat of county government, conveys a message to nonadherents of Christianity that they are not full members of the political community, and a corresponding message to Christians that they are favored members of the political community. In contrast to the creche in Lynch, which was displayed in a private park in the city's commercial district as part of a broader display of traditional secular symbols of the holiday season, this creche stands alone in the county courthouse. The display of religious symbols in public areas of core government buildings runs a special risk of "mak[ing] religion relevant, in reality or public perception, to status in the political community." Lynch, supra, at 465 U. S. 692 (concurring opinion). See also American Jewish Congress v. Chicago, 827 F.2d 120, 128 (CA7 1987) ("Because City Hall is so plainly under government ownership and control, every display and activity in the building is implicitly marked with the stamp of government approval. The presence of a nativity scene in the lobby, therefore, inevitably creates a clear and strong impression that the local government tacitly endorses Page 492 U. S. 627 Christianity"). The Court correctly concludes that placement of the central religious symbol of the Christmas holiday season at the Allegheny County Courthouse has the unconstitutional effect of conveying a government endorsement of Christianity. II In his separate opinion, JUSTICE KENNEDY asserts that the endorsement test "is flawed in its fundamentals and unworkable in practice." Post at 492 U. S. 669 (opinion concurring in judgment in part and dissenting in part). In my view, neither criticism is persuasive. As a theoretical matter, the endorsement test captures the essential command of the Establishment Clause, namely, that government must not make a person's religious beliefs relevant to his or her standing in the political community by conveying a message "that religion or a particular religious belief is favored or preferred." Wallace v. Jaffree, 472 U. S. 38 , 472 U. S. 70 (1985) (O'CONNOR, J., concurring in judgment); School Dist. of Grand Rapids v. Ball, 473 U. S. 373 , 473 U. S. 389 (1985). See also Beschle, The Conservative as Liberal: The Religion Clauses, Liberal Neutrality, and the Approach of Justice O'Connor, 62 Notre Dame L.Rev. 151 (1987); Note, Developments in the Law -- Religion and the State, 100 Harv.L.Rev. 1606, 1647 (1987) (Developments in the Law). We live in a pluralistic society. Our citizens come from diverse religious traditions, or adhere to no particular religious beliefs at all. If government is to be neutral in matters of religion, rather than showing either favoritism or disapproval towards citizens based on their personal religious choices, government cannot endorse the religious practices and beliefs of some citizens without sending a clear message to nonadherents that they are outsiders or less than full members of the political community. An Establishment Clause standard that prohibits only "coercive" practices or overt efforts at government proselytization, post at 492 U.S. 659 -662, 492 U. S. 664 -665, but fails to take account of the numerous more subtle ways that government can show favoritism Page 492 U. S. 628 to particular beliefs or convey a message of disapproval to others, would not, in my view, adequately protect the religious liberty or respect the religious diversity of the members of our pluralistic political community. Thus, this Court has never relied on coercion alone as the touchstone of Establishment Clause analysis. See, e.g., Committee for Public Education and Religious Liberty v. Nyquist, 413 U. S. 756 , 413 U. S. 786 (1973) ("[W]hile proof of coercion might provide a basis for a claim under the Free Exercise Clause, it [is] not a necessary element of any claim under the Establishment Clause"); Engel v. Vitale, 370 U. S. 421 , 370 U. S. 430 (1962). To require a showing of coercion, even indirect coercion, as an essential element of an Establishment Clause violation would make the Free Exercise Clause a redundancy. See Abington School District v. Schempp, 374 U. S. 203 , 374 U. S. 223 (1963) ("The distinction between the two clauses is apparent -- a violation of the Free Exercise Clause is predicated on coercion, while the Establishment Clause violation need not be so attended"). See also Laycock, "Nonpreferential" Aid to Religion: A False Claim About Original Intent, 27 Wm. & Mary L.Rev. 875, 922 (1986) ("If coercion is also an element of the establishment clause, establishment adds nothing to free exercise"). Moreover, as even JUSTICE KENNEDY recognizes, any Establishment Clause test limited to " direct coercion" clearly would fail to account for forms of "[s]ymbolic recognition or accommodation of religious faith" that may violate the Establishment Clause. Post at 492 U. S. 661 . I continue to believe that the endorsement test asks the right question about governmental practices challenged on Establishment Clause grounds, including challenged practices involving the display of religious symbols. Moreover, commentators in the scholarly literature have found merit in the approach. See, e.g., Beschle, supra, at 174; Comment, Lemon Reconstituted: Justice O'Connor's Proposed Modifications of the Lemon Test for Establishment Clause Violations, 1986 B.Y.U.L.Rev. 465; Marshall, "We Know It When We Page 492 U. S. 629 See It": The Supreme Court and Establishment, 59 S. Cal.L.Rev. 495 (1986); Developments in the Law 1647. I also remain convinced that the endorsement test is capable of consistent application. Indeed, it is notable that the three Circuit courts which have considered challenges to the display of a creche standing alone at city hall have each concluded, relying in part on endorsement analysis, that such a practice sends a message to nonadherents of Christianity that they are outsiders in the political community. See 842 F.2d 655 (CA3 1988); American Jewish Congress v. Chicago, 827 F.2d 120, 127-128 (CA7 1987); ACLU v. Birmingham, 791 F.2d 1561, 1566-1567 (CA6), cert. denied, 479 U.S. 939 (1986). See also Friedman v. Board of County Commissioners of Bernalillo County, 781 F.2d 777, 780-782 (CA10 1985) (en banc), cert. denied, 476 U.S. 1169 (1986) (county seal including Latin cross and Spanish motto translated as "With This We Conquer," conveys a message of endorsement of Christianity). To be sure, the endorsement test depends on a sensitivity to the unique circumstances and context of a particular challenged practice and, like any test that is sensitive to context, it may not always yield results with unanimous agreement at the margins. But that is true of many standards in constitutional law, and even the modified coercion test offered by JUSTICE KENNEDY involves judgment and hard choices at the margin. He admits as much by acknowledging that the permanent display of a Latin cross at city hall would violate the Establishment Clause, as would the display of symbols of Christian holidays alone. Post at 492 U. S. 661 , 492 U. S. 664 -665, n. 3. Would the display of a Latin cross for six months have such an unconstitutional effect, or the display of the symbols of most Christian holidays and one Jewish holiday? Would the Christmastime display of a creche inside a courtroom be "coercive" if subpoenaed witnesses had no opportunity to "turn their backs" and walk away? Post at 492 U. S. 664 . Would displaying a creche in front of a public school violate the Establishment Clause under JUSTICE KENNEDY's test? Page 492 U. S. 630 We cannot avoid the obligation to draw lines, often close and difficult lines, in deciding Establishment Clause cases, and that is not a problem unique to the endorsement test. JUSTICE KENNEDY submits that the endorsement test is inconsistent with our precedents and traditions because, in his words, if it were "applied without artificial exceptions for historical practice," it would invalidate many traditional practices recognizing the role of religion in our society. Post at 492 U. S. 670 . This criticism shortchanges both the endorsement test itself and my explanation of the reason why certain longstanding government acknowledgments of religion do not, under that test, convey a message of endorsement. Practices such as legislative prayers or opening Court sessions with "God save the United States and this honorable Court" serve the secular purposes of "solemnizing public occasions" and "expressing confidence in the future," Lynch, 465 U.S. at 465 U. S. 693 (concurring opinion). These examples of ceremonial deism do not survive Establishment Clause scrutiny simply by virtue of their historical longevity alone. Historical acceptance of a practice does not, in itself, validate that practice under the Establishment Clause if the practice violates the values protected by that Clause, just as historical acceptance of racial or gender based discrimination does not immunize such practices from scrutiny under the 14th Amendment. As we recognized in Walz v. Tax Comm'n of New York City, 397 U. S. 664 , 397 U. S. 678 (1970), "[N]o one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it." Under the endorsement test, the "history and ubiquity" of a practice is relevant not because it creates an "artificial exception" from that test. On the contrary, the "history and ubiquity" of a practice is relevant because it provides part of the context in which a reasonable observer evaluates whether a challenged governmental practice conveys a message of endorsement of religion. It is the combination of the Page 492 U. S. 631 longstanding existence of practices such as opening legislative sessions with legislative prayers or opening Court sessions with "God save the United States and this honorable Court," as well as their nonsectarian nature, that leads me to the conclusion that those particular practices, despite their religious roots, do not convey a message of endorsement of particular religious beliefs. See Lynch, supra, at 465 U.S. 465 U. S. 693 (concurring opinion); Developments in the Law 1652-1654. Similarly, the celebration of Thanksgiving as a public holiday, despite its religious origins, is now generally understood as a celebration of patriotic values, rather than particular religious beliefs. The question under endorsement analysis, in short, is whether a reasonable observer would view such longstanding practices as a disapproval of his or her particular religious choices, in light of the fact that they serve a secular purpose, rather than a sectarian one, and have largely lost their religious significance over time. See L. Tribe, American Constitutional Law 1294-1296 (2d ed.1988). Although the endorsement test requires careful and often difficult linedrawing and is highly context-specific, no alternative test has been suggested that captures the essential mandate of the Establishment Clause as well as the endorsement test does, and it warrants continued application and refinement. Contrary to JUSTICE KENNEDY's assertions, neither the endorsement test nor its application in this case reflects "an unjustified hostility toward religion." Post at 492 U. S. 655 . See also post at 492 U. S. 663 , 492 U. S. 667 -678. Instead, the endorsement standard recognizes that the religious liberty so precious to the citizens who make up our diverse country is protected, not impeded, when government avoids endorsing religion or favoring particular beliefs over others. Clearly, the government can acknowledge the role of religion in our society in numerous ways that do not amount to an endorsement. See Lynch, supra, at 465 U. S. 693 (concurring opinion). Moreover, the government can accommodate religion by lifting government-imposed burdens on religion. See Wallace v. Jaffree, 472 Page 492 U. S. 632 U.S. at 472 U. S. 83 -84 (opinion concurring in judgment). Indeed, the Free Exercise Clause may mandate that it do so in particular cases. In cases involving the lifting of government burdens on the free exercise of religion, a reasonable observer would take into account the values underlying the Free Exercise Clause in assessing whether the challenged practice conveyed a message of endorsement. Id. at 472 U. S. 83 . By "build[ing] on the concerns at the core of nonestablishment doctrine and recogniz[ing] the role of accommodations in furthering free exercise," the endorsement test "provides a standard capable of consistent application and avoids the criticism leveled against the Lemon test." Rostain, Permissible Accommodations of Religion: Reconsidering the New York Get Statute, 96 Yale L.J. 1147, 1159-1160 (1987). The cases before the Court today, however, do not involve lifting a governmental burden on the free exercise of religion. By repeatedly using the terms "acknowledgment" of religion and "accommodation" of religion interchangeably, however, post at 492 U. S. 662 -664, 492 U. S. 670 , 492 U. S. 678 , JUSTICE KENNEDY obscures the fact that the displays at issue in these cases were not placed at city hall in order to remove a government-imposed burden on the free exercise of religion. Christians remain free to display their creches at their homes and churches. Ante at 492 U. S. 601 , n. 51. Allegheny County has neither placed nor removed a governmental burden on the free exercise of religion, but rather, for the reasons stated in Part IV of the Court's opinion, has conveyed a message of governmental endorsement of Christian beliefs. This the Establishment Clause does not permit. III For reasons which differ somewhat from those set forth in 492 U. S. I also conclude that the city of Pittsburgh's combined holiday display of a Chanukah menorah, a Christmas tree, and a sign saluting liberty does not have the effect of conveying an endorsement of religion. I agree with JUSTICE BLACKMUN, ante at 492 U. S. 616 -617, Page 492 U. S. 633 that the Christmas tree, whatever its origins, is not regarded today as a religious symbol. Although Christmas is a public holiday that has both religious and secular aspects, the Christmas tree is widely viewed as a secular symbol of the holiday, in contrast to the creche, which depicts the holiday's religious dimensions. A Christmas tree displayed in front of city hall, in my view, cannot fairly be understood as conveying government endorsement of Christianity. Although JUSTICE BLACKMUN's opinion acknowledges that a Christmas tree alone conveys no endorsement of Christian beliefs, it formulates the question posed by Pittsburgh's combined display of the tree and the menorah as whether the display "has the effect of endorsing both Christian and Jewish faiths, or rather simply recognizes that both Christmas and Chanukah are part of the same winter holiday season, which has attained a secular status in our society." Ante at 492 U. S. 616 (emphasis added). That formulation of the question disregards the fact that the Christmas tree is a predominantly secular symbol, and, more significantly, obscures the religious nature of the menorah and the holiday of Chanukah. The opinion is correct to recognize that the religious holiday of Chanukah has historical and cultural, as well as religious, dimensions, and that there may be certain "secular aspects" to the holiday. But that is not to conclude, however, as JUSTICE BLACKMUN seems to do, that Chanukah has become a "secular holiday" in our society. Ante at 492 U. S. 615 . The Easter holiday celebrated by Christians may be accompanied by certain "secular aspects" such as Easter bunnies and Easter egg hunts, but it is nevertheless a religious holiday. Similarly, Chanukah is a religious holiday with strong historical components particularly important to the Jewish people. Moreover, the menorah is the central religious symbol and ritual object of that religious holiday. Under JUSTICE BLACKMUN's view, however, the menorah "has been relegated to the role of a neutral harbinger of the holiday season," Lynch, 465 U.S. at 465 U. S. 727 Page 492 U. S. 634 (BLACKMUN, J., dissenting), almost devoid of any religious significance. In my view, the relevant question for Establishment Clause purposes is whether the City of Pittsburgh's display of the menorah, the religious symbol of a religious holiday, next to a Christmas tree and a sign saluting liberty sends a message of government endorsement of Judaism, or whether it sends a message of pluralism and freedom to choose one's own beliefs. In characterizing the message conveyed by this display as either a "double endorsement" or a secular acknowledgment of the winter holiday season, the opinion states that "[i]t is distinctly implausible to view the combined display of the tree, the sign, and the menorah as endorsing Jewish faith alone." Ante at 492 U. S. 616 , n. 64. That statement, however, seems to suggest that it would be implausible for the city to endorse a faith adhered to by a minority of the citizenry. Regardless of the plausibility of a putative governmental purpose, the more important inquiry here is whether the governmental display of a minority faith's religious symbol could ever reasonably be understood to convey a message of endorsement of that faith. A menorah standing alone at city hall may well send such a message to nonadherents, just as, in this case, the creche standing alone at the Allegheny County Courthouse sends a message of governmental endorsement of Christianity, whatever the county's purpose in authorizing the display may have been. Thus, the question here is whether Pittsburgh's holiday display conveys a message of endorsement of Judaism, when the menorah is the only religious symbol in the combined display and when the opinion acknowledges that the tree cannot reasonably be understood to convey an endorsement of Christianity. One need not characterize Chanukah as a "secular" holiday or strain to argue that the menorah has a "secular" dimension, ante at 492 U. S. 587 , n. 34, in order to conclude that the city of Pittsburgh's combined display does not convey a message of endorsement of Judaism or of religion in general. Page 492 U. S. 635 In setting up its holiday display, which included the lighted tree and the menorah, the city of Pittsburgh stressed the theme of liberty and pluralism by accompanying the exhibit with a sign bearing the following message: "'During this holiday season, the city of Pittsburgh salutes liberty. Let these festive lights remind us that we are the keepers of the flame of liberty and our legacy of freedom.'" Ante at 492 U. S. 582 . This sign indicates that the city intended to convey its own distinctive message of pluralism and freedom. By accompanying its display of a Christmas tree -- a secular symbol of the Christmas holiday season -- with a salute to liberty, and by adding a religious symbol from a Jewish holiday also celebrated at roughly the same time of year, I conclude that the city did not endorse Judaism or religion in general, but rather conveyed a message of pluralism and freedom of belief during the holiday season. "Although the religious, and indeed sectarian, significance" of the menorah "is not neutralized by the setting," Lynch, 465 U.S. at 465 U. S. 692 (concurring opinion), this particular physical setting "changes what viewers may fairly understand to be the purpose of the display -- as a typical museum setting, though not neutralizing the religious content of a religious painting, negates any message of endorsement of that content." Ibid. The message of pluralism conveyed by the city's combined holiday display is not a message that endorses religion over nonreligion. Just as government may not favor particular religious beliefs over others, "government may not favor religious belief over disbelief." Texas Monthly, Inc. v. Bullock, 489 U. S. 1 , 489 U. S. 27 (1989) (BLACKMUN, J., concurring in judgment); Wallace v. Jaffree, 472 U.S. at 472 U. S. 52 -54; id. at 472 U. S. 70 (O'CONNOR, J., concurring in judgment). Here, by displaying a secular symbol of the Christmas holiday season rather than a religious one, the city acknowledged a public holiday celebrated by both religious and nonreligious citizens alike, and it did so without endorsing Christian beliefs. A reasonable observer would, in my view, appreciate that the combined Page 492 U. S. 636 display is an effort to acknowledge the cultural diversity of our country and to convey tolerance of different choices in matters of religious belief or nonbelief by recognizing that the winter holiday season is celebrated in diverse ways by our citizens. In short, in the holiday context, this combined display in its particular physical setting conveys neither an endorsement of Judaism or Christianity nor disapproval of alternative beliefs, and thus does not have the impermissible effect of "mak[ing] religion relevant, in reality or public perception, to status in the political community." Lynch, supra, at 465 U. S. 692 (concurring opinion). My conclusion does not depend on whether or not the city had "a more secular alternative symbol" of Chanukah, ante at 492 U. S. 618 , just as the Court's decision in Lynch clearly did not turn on whether the city of Pawtucket could have conveyed its tribute to the Christmas holiday season by using a "less religious" alternative to the creche symbol in its display of traditional holiday symbols. See Lynch, supra, at 465 U. S. 681 , n. 7 ("JUSTICE BRENNAN argues that the city's objectives could have been achieved without including the creche in the display, [465 U.S.] at 465 U. S. 699 . True or not, that is irrelevant. The question is whether the display of the creche violates the Establishment Clause"). In my view, JUSTICE BLACKMUN's new rule, ante at 492 U. S. 618 , that an inference of endorsement arises every time government uses a symbol with religious meaning if a "more secular alternative" is available is too blunt an instrument for Establishment Clause analysis, which depends on sensitivity to the context and circumstances presented by each case. Indeed, the opinion appears to recognize the importance of this contextual sensitivity by creating an exception to its new rule in the very case announcing it: the opinion acknowledges that "a purely secular symbol" of Chanukah is available, namely, a dreidel or four-sided top, but rejects the use of such a symbol because it "might be interpreted by some as mocking the celebration of Chanukah." Ibid. This recognition that the more religious Page 492 U. S. 637 alternative may, depending on the circumstances, convey a message that is least likely to implicate Establishment Clause concerns is an excellent example of the need to focus on the specific practice in question in its particular physical setting and context in determining whether government has conveyed or attempted to convey a message that religion or a particular religious belief is favored or preferred. In sum, I conclude that the city of Pittsburgh's combined holiday display had neither the purpose nor the effect of endorsing religion, but that Allegheny County's creche display had such an effect. Accordingly, I join Parts I, II, III-A, IV, V, and VII of the Court's opinion, and concur in the judgment. JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE STEVENS join, concurring in part and dissenting in part. I have previously explained at some length my views on the relationship between the Establishment Clause and government-sponsored celebrations of the Christmas holiday. See Lynch v. Donnelly, 465 U. S. 668 , 465 U. S. 694 -726 (1984) (dissenting opinion). I continue to believe that the display of an object that "retains a specifically Christian [or other] religious meaning," id. at 465 U. S. 708 , is incompatible with the separation of church and state demanded by our Constitution. I therefore agree with the Court that Allegheny County's display of a creche at the county courthouse signals an endorsement of the Christian faith in violation of the Establishment Clause, and join Parts III-A, IV, and V of the Court's opinion. I cannot agree, however, that the city's display of a 45-foot Christmas tree and an 18-foot Chanukah menorah at the entrance to the building housing the mayor's office shows no favoritism towards Christianity, Judaism, or both. Indeed, I should have thought that the answer as to the first display supplied the answer to the second. According to the Court, the creche display sends a message endorsing Christianity because the creche itself bears a Page 492 U. S. 638 religious meaning, because an angel in the display carries a banner declaring "Glory to God in the highest!," and because the floral decorations surrounding the creche highlight it, rather than secularize it. The display of a Christmas tree and Chanukah menorah, in contrast, is said to show no endorsement of a particular faith or faiths, or of religion in general, because the Christmas tree is a secular symbol which brings out the secular elements of the menorah. Ante at 492 U. S. 616 -617. And, JUSTICE BLACKMUN concludes, even though the menorah has religious aspects, its display reveals no endorsement of religion because no other symbol could have been used to represent the secular aspects of the holiday of Chanukah without mocking its celebration. Ante at 492 U. S. 618 . Rather than endorsing religion, therefore, the display merely demonstrates that "Christmas is not the only traditional way of observing the winter holiday season," and confirms our "cultural diversity." Ante at 492 U. S. 617 , 492 U. S. 619 . Thus, the decision as to the menorah rests on three premises: the Christmas tree is a secular symbol; Chanukah is a holiday with secular dimensions, symbolized by the menorah; and the government may promote pluralism by sponsoring or condoning displays having strong religious associations on its property. None of these is sound. I The first step toward JUSTICE BLACKMUN's conclusion is the claim that, despite its religious origins, the Christmas tree is a secular symbol. He explains: "The Christmas tree, unlike the menorah, is not itself a religious symbol. Although Christmas trees once carried religious connotations, today they typify the secular celebration of Christmas. Numerous Americans place Christmas trees in their homes without subscribing to Christian religious beliefs, and when the city's tree stands alone in front of the City-County Building, it is not considered an endorsement of Christian faith. Indeed, Page 492 U. S. 639 a 40-foot Christmas tree was one of the objects that validated the creche in Lynch. The widely accepted view of the Christmas tree as the preeminent secular symbol of the Christmas holiday season serves to emphasize the secular component of the message communicated by other elements of an accompanying holiday display, including the Chanukah menorah." Ante at 492 U. S. 616 -617 (citations and footnotes omitted). JUSTICE O'CONNOR accepts this view of the Christmas tree because, "whatever its origins, [it] is not regarded today as a religious symbol. Although Christmas is a public holiday that has both religious and secular aspects, the Christmas tree is widely viewed as a secular symbol of the holiday, in contrast to the creche, which depicts the holiday's religious dimensions." Ante at 492 U. S. 633 . Thus, while acknowledging the religious origins of the Christmas tree, JUSTICES BLACKMUN and O'CONNOR dismiss their significance. In my view, this attempt to take the "Christmas" out of the Christmas tree is unconvincing. That the tree may, without controversy, be deemed a secular symbol if found alone does not mean that it will be so seen when combined with other symbols or objects. Indeed, JUSTICE BLACKMUN admits that "the tree is capable of taking on a religious significance if it is decorated with religious symbols." Ante at 492 U. S. 617 , n. 65. The notion that the Christmas tree is necessarily secular is, indeed, so shaky that, despite superficial acceptance of the idea, JUSTICE O'CONNOR does not really take it seriously. While conceding that the "menorah standing alone at city hall may well send" a message of endorsement of the Jewish faith, she nevertheless concludes: "By accompanying its display of a Christmas tree -- a secular symbol of the Christmas holiday season -- with a salute to liberty, and by adding a religious symbol from a Jewish holiday also celebrated at roughly the same time of year, I conclude that the city did not endorse Judaism or religion in general, but rather conveyed a message Page 492 U. S. 640 of pluralism and freedom of belief during the holiday season." Ante at 492 U. S. 635 . But the "pluralism" to which JUSTICE O'CONNOR refers is religious pluralism, and the "freedom of belief" she emphasizes is freedom of religious belief.* The display of the tree and the menorah will symbolize such pluralism and freedom only if more than one religion is represented; if only Judaism is represented, the scene is about Judaism, not about pluralism. Thus, the pluralistic message JUSTICE O'CONNOR stresses depends on the tree's possessing some religious significance. In asserting that the Christmas tree, regardless of its surroundings, is a purely secular symbol, JUSTICES BLACKMUN and O'CONNOR ignore the precept they otherwise so enthusiastically embrace: that context is all-important in determining the message conveyed by particular objects. See ante at 492 U. S. 597 (BLACKMUN, J.) (relevant question is "whether the Page 492 U. S. 641 display of the creche and the menorah, in their respective particular physical settings,' has the effect of endorsing or disapproving religious beliefs") (quoting School Dist. of Grand Rapids v. Ball, 473 U. S. 373 , 473 U. S. 390 (1985)); ante at 492 U. S. 624 (O'CONNOR, J.) ("`[E]very government practice must be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion'") (quoting Lynch v. Donnelly, 465 U.S. at 465 U. S. 694 (O'CONNOR, J., concurring)); ante at 492 U. S. 636 (O'CONNOR, J.) ("Establishment Clause analysis . . . depends on sensitivity to the context and circumstances presented by each case"); ante at 492 U. S. 637 (O'CONNOR, J.) (emphasizing "the need to focus on the specific practice in question in its particular physical setting and context"). In analyzing the symbolic character of the Christmas tree, both JUSTICES BLACKMUN and O'CONNOR abandon this contextual inquiry. In doing so, they go badly astray. Positioned as it was, the Christmas tree's religious significance was bound to come to the fore. Situated next to the menorah -- which, JUSTICE BLACKMUN acknowledges, is "a symbol with religious meaning," ante at 492 U. S. 618 , and indeed, is "the central religious symbol and ritual object of " Chanukah, ante at 492 U. S. 633 (O'CONNOR, J.) -- the Christmas tree's religious dimension could not be overlooked by observers of the display. Even though the tree alone may be deemed predominantly secular, it can hardly be so characterized when placed next to such a forthrightly religious symbol. Consider a poster featuring a star of David, a statue of Buddha, a Christmas tree, a mosque, and a drawing of Krishna. There can be no doubt that, when found in such company, the tree serves as an unabashedly religious symbol. JUSTICE BLACKMUN believes that it is the tree that changes the message of the menorah, rather than the menorah that alters our view of the tree. After the abrupt dismissal of the suggestion that the flora surrounding the creche might have diluted the religious character of the display at the county courthouse, ante at 492 U. S. 599 , his quick conclusion that Page 492 U. S. 642 the Christmas tree had a secularizing effect on the menorah is surprising. The distinguishing characteristic, it appears, is the size of the tree. The tree, we are told, is much taller -- 2 1/2 times taller, in fact -- than the menorah, and is located directly under one of the building's archways, whereas the menorah "is positioned to one side . . . [i]n the shadow of the tree." Ante at 492 U. S. 617 . As a factual matter, it seems to me that the sight of an 18-foot menorah would be far more eye-catching than that of a rather conventionally sized Christmas tree. It also seems to me likely that the symbol with the more singular message will predominate over one lacking such a clear meaning. Given the homogenized message that JUSTICE BLACKMUN associates with the Christmas tree, I would expect that the menorah, with its concededly religious character, would tend to dominate the tree. And, though JUSTICE BLACKMUN shunts the point to a footnote at the end of his opinion, ante at 492 U. S. 621 , n. 70, it is highly relevant that the menorah was lit during a religious ceremony complete with traditional religious blessings. I do not comprehend how the failure to challenge separately this portion of the city's festivities precludes us from considering it in assessing the message sent by the display as a whole. But see ibid. With such an openly religious introduction, it is most likely that the religious aspects of the menorah would be front and center in this display. I would not, however, presume to say that my interpretation of the tree's significance is the "correct" one, or the one shared by most visitors to the City-County Building. I do not know how we can decide whether it was the tree that stripped the religious connotations from the menorah or the menorah that laid bare the religious origins of the tree. Both are reasonable interpretations of the scene the city presented, and thus both, I think, should satisfy JUSTICE BLACKMUN's requirement that the display "be judged according to the standard of a reasonable observer.'" Ante at 492 U. S. 620 . I Page 492 U. S. 643 shudder to think that the only "reasonable observer" is one who shares the particular views on perspective, spacing, and accent expressed in JUSTICE BLACKMUN's opinion, thus making analysis under the Establishment Clause look more like an exam in Art 101 than an inquiry into constitutional law. II The second premise on which today's decision rests is the notion that Chanukah is a partly secular holiday, for which the menorah can serve as a secular symbol. It is no surprise and no anomaly that Chanukah has historical and societal roots that range beyond the purely religious. I would venture that most, if not all, major religious holidays have beginnings and enjoy histories studded with figures, events, and practices that are not strictly religious. It does not seem to me that the mere fact that Chanukah shares this kind of background makes it a secular holiday in any meaningful sense. The menorah is indisputably a religious symbol, used ritually in a celebration that has deep religious significance. That, in my view, is all that need be said. Whatever secular practices the holiday of Chanukah has taken on in its contemporary observance are beside the point. Indeed, at the very outset of his discussion of the menorah display, JUSTICE BLACKMUN recognizes that the menorah is a religious symbol. Ante at 492 U. S. 613 . That should have been the end of the case. But, as did the Court in Lynch, JUSTICE BLACKMUN, "by focusing on the holiday 'context' in which the [menorah] appeared, seeks to explain away the clear religious import of the [menorah]. . . ." 465 U.S. at 465 U. S. 705 (BRENNAN, J., dissenting). By the end of the opinion, the menorah has become but a coequal symbol, with the Christmas tree, of "the winter-holiday season." Ante at 492 U. S. 620 . Pittsburgh's secularization of an inherently religious symbol, aided and abetted here by JUSTICE BLACKMUN's opinion, recalls the effort in Lynch to render the creche a secular symbol. As I said then: "To suggest, as the Court does, that such a symbol Page 492 U. S. 644 is merely 'traditional,' and therefore no different from Santa's house or reindeer, is not only offensive to those for whom the creche has profound significance but insulting to those who insist, for religious or personal reasons, that the story of Christ is in no sense a part of 'history,' nor an unavoidable element of our national 'heritage.'" 465 U.S. at 465 U. S. 711 -712. As JUSTICE O'CONNOR rightly observes, JUSTICE BLACKMUN "obscures the religious nature of the menorah and the holiday of Chanukah." Ante at 492 U. S. 633 . I cannot, in short, accept the effort to transform an emblem of religious faith into the innocuous "symbol for a holiday that . . . has both religious and secular dimensions." Ante at 492 U. S. 614 (BLACKMUN, J.). III JUSTICE BLACKMUN, in his acceptance of the city's message of "diversity," ante at 492 U. S. 619 , and, even more so, JUSTICE O'CONNOR, in her approval of the "message of pluralism and freedom to choose one's own beliefs," ante at 492 U. S. 634 , appear to believe that, where seasonal displays are concerned, more is better. Whereas a display might be constitutionally problematic if it showcased the holiday of just one religion, those problems vaporize as soon as more than one religion is included. I know of no principle under the Establishment Clause, however, that permits us to conclude that governmental promotion of religion is acceptable so long as one religion is not favored. We have, on the contrary, interpreted that Clause to require neutrality, not just among religions, but between religion and nonreligion. See, e.g., Everson v. Board of Education of Ewing, 330 U. S. 1 , 330 U. S. 15 (1947); Wallace v. Jaffree, 472 U. S. 38 , 472 U. S. 52 -54 (1985). Nor do I discern the theory under which the government is permitted to appropriate particular holidays and religious objects to its own use in celebrating "pluralism." The message of the sign announcing a "Salute to Liberty" is not religious, but patriotic; the government's use of religion to promote its Page 492 U. S. 645 own cause is undoubtedly offensive to those whose religious beliefs are not bound up with their attitude toward the Nation. The uncritical acceptance of a message of religious pluralism also ignores the extent to which even that message may offend. Many religious faiths are hostile to each other, and indeed refuse even to participate in ecumenical services designed to demonstrate the very pluralism JUSTICES BLACKMUN and O'CONNOR extol. To lump the ritual objects and holidays of religions together without regard to their attitudes toward such inclusiveness, or to decide which religions should be excluded because of the possibility of offense, is not a benign or beneficent celebration of pluralism: it is instead an interference in religious matters precluded by the Establishment Clause. The government-sponsored display of the menorah alongside a Christmas tree also works a distortion of the Jewish religious calendar. As JUSTICE BLACKMUN acknowledges, "the proximity of Christmas [may] accoun[t] for the social prominence of Chanukah in this country." Ante at 492 U. S. 586 . It is the proximity of Christmas that undoubtedly accounts for the city's decision to participate in the celebration of Chanukah, rather than the far more significant Jewish holidays of Rosh Hashanah and Yom Kippur. Contrary to the impression the city and JUSTICES BLACKMUN and O'CONNOR seem to create, with their emphasis on "the winter holiday season," December is not the holiday season for Judaism. Thus, the city's erection alongside the Christmas tree of the symbol of a relatively minor Jewish religious holiday, far from conveying "the city's secular recognition of different traditions for celebrating the winter-holiday season," ante at 492 U. S. 620 (BLACKMUN, J.), or "a message of pluralism and freedom of belief," ante at 492 U. S. 635 (O'CONNOR, J.), has the effect of promoting a Christianized version of Judaism. The holiday calendar they appear willing to accept revolves exclusively around a Christian holiday. And those religions that have Page 492 U. S. 646 no holiday at all during the period between Thanksgiving and New Year's Day will not benefit, even in a second-class manner, from the city's once-a-year tribute to "liberty" and "freedom of belief." This is not "pluralism" as I understand it. * If it is not religious pluralism that the display signifies, then I do not know what kind of "pluralism" JUSTICE O'CONNOR has in mind. Perhaps she means the cultural pluralism that results from recognition of many different holidays, religious and nonreligious. In that case, however, the display of a menorah next to a giant firecracker, symbolic of the Fourth of July, would seem to be equally representative of this pluralism, yet I do not sense that this display would pass muster under JUSTICE O'CONNOR's view. If, instead, JUSTICE O'CONNOR means to approve the pluralistic message associated with a symbolic display that may stand for either the secular or religious aspects of a given holiday, then this view would logically entail the conclusion that the display of a Latin cross next to an Easter bunny in the springtime would be valid under the Establishment Clause; again, however, I sense that such a conclusion would not comport with JUSTICE O'CONNOR's views. The final possibility, and the one that seems most consonant with the views outlined in her opinion, see ante at 492 U. S. 635 , is that the pluralism that JUSTICE O'CONNOR perceives in Pittsburgh's display arises from the recognition that there are many different ways to celebrate "the winter holiday season," ante at 492 U. S. 636 . But winter is " the holiday season" to Christians, not to Jews, and the implicit message that it, rather than autumn, is the time for pluralism sends an impermissible signal that only holidays stemming from Christianity, not those arising from other religions, favorably dispose the government towards "pluralism." See infra at 492 U. S. 645 . JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, concurring in part and dissenting in part. Governmental recognition of not one but two religions distinguishes these cases from our prior Establishment Clause cases. It is, therefore, appropriate to reexamine the text and context of the Clause to determine its impact on this novel situation. Relations between church and state at the end of the 1780's fell into two quite different categories. In several European countries, one national religion, such as the Church of England in Great Britain, was established. The established church typically was supported by tax revenues, by laws conferring privileges only upon members, and sometimes by violent persecution of nonadherents. In contrast, although several American Colonies had assessed taxes to support one chosen faith, none of the newly United States subsidized a single religion. Some States had repealed establishment laws altogether, while others had replaced single establishments with laws providing for nondiscriminatory support of more than one religion. [ Footnote 2/1 ] Page 492 U. S. 647 It is against this historical backdrop that James Madison, then a Representative from Virginia, rose to the floor of the First Congress on June 8, 1789, and proposed a number of amendments to the Constitution, including the following: "The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed." 1 Annals of Cong. 434 (1789) (emphasis added). Congressional debate produced several reformulations of the italicized language. [ Footnote 2/2 ] One Member suggested the words "Congress shall make no laws touching religion, " id. at 731 (emphasis added), soon amended to "Congress shall make no law establishing religion, " id. at 766 (emphasis added). After further alteration, this passage became one of the Religion Clauses of the First Amendment. Ratified in 1791, they state that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," U.S.Const., Amdt. 1 (emphasis added). By its terms, the initial draft of the Establishment Clause would have prohibited only the national established church that prevailed in England; multiple establishments, such as existed in six States, would have been permitted. But even Page 492 U. S. 648 in those States and even among members of the established churches, there was widespread opposition to multiple establishments because of the social divisions they caused. [ Footnote 2/3 ] Perhaps in response to this opposition, subsequent drafts broadened the scope of the Establishment Clause from "any national religion" to "religion," a word understood primarily to mean "[v]irtue, as founded upon reverence of God, and expectation of future rewards and punishments," and only secondarily "[a] system of divine faith and worship, as opposite to others." S. Johnson, A Dictionary of the English Language (7th ed. 1785); accord, T. Sheridan, A Complete Dictionary of the English Language 6th ed. (1796). Cf. Frazee v. Illinois Dept. of Employment Security, 489 U. S. 829 , 489 U. S. 834 (1989) (construing "religion" protected by Free Exercise Page 492 U. S. 649 Clause to include "sincerely held religious belief" apart from "membership in an organized religious denomination"). Plainly, the Clause as ratified proscribes federal legislation establishing a number of religions as well as a single national church. [ Footnote 2/4 ] Similarly expanded was the relationship between government and religion that was to be disallowed. Whereas earlier drafts had barred only laws "establishing" or "touching" religion, the final text interdicts all laws "respecting an establishment of religion." This phrase forbids even a partial establishment, Lemon v. Kurtzman, 403 U. S. 602 , 403 U. S. 612 (1971); Engel v. Vitale, 370 U. S. 421 , 370 U. S. 436 (1962), not only of a particular sect in favor of others, but also of religion in preference to nonreligion, Wallace v. Jaffree, 472 U. S. 38 , 472 U. S. 52 (1985). It is also significant that the final draft contains the word "respecting." Like "touching," "respecting" means concerning, or with reference to. But it also means with respect -- that is, "reverence," "good will," "regard" -- to. [ Footnote 2/5 ] Taking into account this richer meaning, the Establishment Clause, in banning laws that concern religion, especially prohibits those that pay homage to religion. Treatment of a symbol of a particular tradition demonstrates one's attitude toward that tradition. Cf. Texas v. Johnson, 491 U. S. 397 (1989). Thus the prominent display of religious symbols on government property falls within the compass of the First Amendment, even though interference with personal choices about supporting a church, by means of governmental tithing, was the primary concern in 1791. See Walz v. Tax Comm'n of New York City, 397 U. S. 664 , 397 U. S. 668 (1970); 492 U.S. 573 fn2/3|>n. 3, supra. Whether the vice in such a display is Page 492 U. S. 650 characterized as "coercion," see post at 492 U. S. 660 -661 (KENNEDY, J., concurring in judgment in part and dissenting in part), or "endorsement," see ante at 492 U. S. 625 (O'CONNOR, J., concurring in part and concurring in judgment), or merely as state action with the purpose and effect of providing support for specific faiths, cf. Lemon, 403 U.S. at 403 U. S. 612 , it is common ground that this symbolic governmental speech "respecting an establishment of religion" may violate the Constitution. [ Footnote 2/6 ] Cf. Jaffree, 472 U.S. at 472 U. S. 60 -61; Lynch v. Donnelly, 465 U. S. 668 (1984). In my opinion, the Establishment Clause should be construed to create a strong presumption against the display of religious symbols on public property. [ Footnote 2/7 ] There is always a Page 492 U. S. 651 risk that such symbols will offend nonmembers of the faith being advertised as well as adherents who consider the particular advertisement disrespectful. Some devout Christians believe that the creche should be placed only in reverential settings, such as a church or perhaps a private home; they do not countenance its use as an aid to commercialization of Christ's birthday. Cf. Lynch, 465 U.S. at 465 U. S. 726 -727 (BLACKMUN, J., dissenting). [ Footnote 2/8 ] In this very suit, members of the Jewish faith firmly opposed the use to which the menorah was put by the particular sect that sponsored the display at Pittsburgh's City-county Building. [ Footnote 2/9 ] Even though "[p]assersby who disagree with the message conveyed by these displays are free to ignore them, or even to turn their backs," see post at 492 U. S. 664 (KENNEDY, J., concurring in judgment in part and dissenting in part), displays of this kind inevitably have a greater tendency to emphasize sincere and deeply felt differences among individuals than to achieve an ecumenical goal. The Establishment Clause does not allow public bodies to foment such disagreement. [ Footnote 2/10 ] Page 492 U. S. 652 Application of a strong presumption against the public use of religious symbols scarcely will "require a relentless extirpation of all contact between government and religion," see post at 492 U. S. 657 (KENNEDY, J., concurring in judgment in part and dissenting in part), [ Footnote 2/11 ] for it will prohibit a display only when its message, evaluated in the context in which it is presented, is nonsecular. [ Footnote 2/12 ] For example, a carving of Moses holding the Ten Commandments, if that is the only adornment on a courtroom wall, conveys an equivocal message, perhaps of respect for Judaism, for religion in general, or for law. The addition of carvings depicting Confucius and Mohammed may honor religion, or particular religions, to an extent that the First Amendment does not tolerate any more than it does "the permanent erection of a large Latin cross on the roof of city hall." See post at 492 U. S. 661 (KENNEDY, J., concurring in judgment in part and dissenting in part). Cf. Stone v. Graham, 449 U. S. 39 (1980) (per curiam). Placement of secular figures such as Caesar Augustus, William Blackstone, Napoleon Bonaparte, and John Marshall alongside these three religious leaders, however, signals respect not Page 492 U. S. 653 for great proselytizers but for great lawgivers. It would be absurd to exclude such a fitting message from a courtroom, [ Footnote 2/13 ] as it would to exclude religious paintings by Italian Renaissance masters from a public museum. Cf. Lynch, 465 U.S. at 465 U. S. 712 -713, 465 U. S. 717 (BRENNAN, J., dissenting). Far from "border[ing] on latent hostility toward religion," see post at 492 U. S. 657 (KENNEDY, J., concurring in judgment in part and dissenting in part), this careful consideration of context gives due regard to religious and nonreligious members of our society. [ Footnote 2/14 ] Thus, I find wholly unpersuasive JUSTICE KENNEDY's attempts, post at 492 U. S. 664 -667, to belittle the importance of the obvious differences between the display of the creche in this case and that in Lynch v. Donnelly, 465 U. S. 668 (1984). Even if I had not dissented from the Court's conclusion that the creche in Lynch was constitutional, I would conclude that Allegheny County's unambiguous exposition of a sacred symbol inside its courthouse promoted Christianity to a degree Page 492 U. S. 654 that violated the Establishment Clause. Accordingly, I concur in the Court's judgment regarding the creche for substantially the same reasons discussed in JUSTICE BRENNAN's opinion, which I join, as well as 492 U. S. S. 623|>Part I of JUSTICE O'CONNOR's opinion. I cannot agree with the Court's conclusion that the display at Pittsburgh's City-County Building was constitutional. Standing alone in front of a governmental headquarters, a lighted, 45-foot evergreen tree might convey holiday greetings linked too tenuously to Christianity to have constitutional moment. Juxtaposition of this tree with an 18-foot menorah does not make the latter secular, as JUSTICE BLACKMUN contends, ante at 492 U. S. 616 . Rather, the presence of the Chanukah menorah, unquestionably a religious symbol, [ Footnote 2/15 ] gives religious significance to the Christmas tree. The overall display thus manifests governmental approval of the Jewish and Christian religions. Cf. Jaffree, 472 U.S. at 472 U. S. 60 -61 (quoting Lynch, 465 U.S. at 465 U. S. 690 -691 (O'CONNOR, J., concurring)). Page 492 U. S. 655 Although it conceivably might be interpreted as sending "a message of pluralism and freedom to choose one's own beliefs," ante at 492 U. S. 634 (O'CONNOR, J., concurring in part and concurring in judgment); accord, ante at 492 U. S. 617 -618 (opinion of BLACKMUN, J.), the message is not sufficiently clear to overcome the strong presumption that the display, respecting two religions to the exclusion of all others, is the very kind of double establishment that the First Amendment was designed to outlaw. I would, therefore, affirm the judgment of the Court of Appeals in its entirety. [ Footnote 2/1 ] The history of religious establishments is discussed in, e.g., J. Swomley, Religious Liberty and the Secular State 24-41 (1987) (Swomley). See generally L. Levy, The Establishment Clause (1986) (Levy). One historian describes the situation at the time of the passage of the First Amendment as follows: "In America, there was no establishment of a single church, as in England. Four states had never adopted any establishment practices. Three had abolished their establishments during the Revolution. The remaining six states -- Massachusetts, New Hampshire, Connecticut, Maryland, South Carolina, and Georgia -- changed to comprehensive or 'multiple' establishments. That is, aid was provided to all churches in each state on a nonpreferential basis, except that the establishment was limited to churches of the Protestant religion in three states and to those of the Christian religion in the other three states. Since there were almost no Catholics in the first group of states, and very few Jews in any state, this meant that the multiple establishment practices included every religious group with enough members to form a church. It was this nonpreferential assistance to organized churches that constituted 'establishment of religion' in 1791, and it was this practice that the amendment forbade Congress to adopt." C. Pritchett, The American Constitution 401 (3d ed.1977). [ Footnote 2/2 ] For a comprehensive narration of this process, see Levy 75-89. See also e.g., Wallace v. Jaffree, 472 U. S. 38 , 472 U. S. 92 -97 (1985) (REHNQUIST, J., dissenting); Swomley 43-49; Drakeman, Religion and the Republic: James Madison and the First Amendment, in James Madison on Religious Liberty 233-235 (R. Alley ed.1985). [ Footnote 2/3 ] "Other members of the established church also disapproved taxation for religious purposes. One of these, James Sullivan, who was later elected Governor of Massachusetts, wrote about such taxation:" "This glaring piece of religious tyranny was founded upon one or the other of these suppositions: that the church members were more religious, had more understanding, or had a higher privilege than, or a preeminence over, those who were not in full communion, or in other words, that their growth in grace or religious requirements, gave them the right of taking and disposing of the property of other people against their consent." "The struggle for religious liberty in Massachusetts was the struggle against taxation for religious purposes. In that struggle, there was civil disobedience; there were appeals to the Court and to the Crown in faraway England. Societies were organized to fight the tax. Even after some denominations had won the right to be taxed only for their own churches or meetings, they continued to resist the tax, even on the nonpreferential basis by which all organized religious groups received tax funds. Finally, the state senate, which had refused to end establishment, voted in 1831 to submit the issue to the people. The vote, which took place in 1833, was 32,234 for disestablishment to 3,273 for keeping the multiple establishments of religion. It was a 10 to 1 vote, and in 1834, the amendment was made effective by legislation." Swomley 28. Cf. Engel v. Vitale, 370 U. S. 421 , 370 U. S. 432 (1962) ("Another purpose of the Establishment Clause rested upon an awareness of the historical fact that governmentally established religions and religious persecutions go hand in hand"). [ Footnote 2/4 ] This proscription applies to the States by virtue of the Fourteenth Amendment. Jaffree, 472 U.S. at 472 U. S. 48 -55. [ Footnote 2/5 ] "Respect," as defined in T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796). See S. Johnson, A Dictionary of the English Language (7th ed. 1785); see also The Oxford English Dictionary 733-734 (1989); Webster's Ninth New Collegiate Dictionary 1004 (1988). [ Footnote 2/6 ] The criticism that JUSTICE KENNEDY levels at JUSTICE O'CONNOR's endorsement standard for evaluating symbolic speech, see post at 492 U. S. 668 -678, is not only "uncharitable," post at 492 U. S. 675 , but also largely unfounded. Inter alia, he neglects to mention that 1 of the 2 articles he cites as disfavoring the endorsement test, post at 699, itself cites no fewer than 16 articles and 1 book lauding the test. See Smith, Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutrality and the "No Endorsement" Test, 86 Mich.L.Rev. 266, 274, n. 45 (1987). JUSTICE KENNEDY's preferred "coercion" test, moreover, is, as he himself admits, post at 492 U. S. 660 , out of step with our precedent. The Court has stated: "The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion, and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not." Engel, 370 U.S. at 370 U. S. 430 . Even if the law were not so, it seems unlikely that "coercion" identifies the line between permissible and impermissible religious displays any more brightly than does "endorsement." [ Footnote 2/7 ] In a similar vein, we have interpreted the Amendment's strictly worded Free Speech and Free Press Clauses to raise a strong presumption against, rather than to ban outright, state abridgment of communications. See, e.g., Roaden v. Kentucky, 413 U. S. 496 , 413 U. S. 504 (1973). By suggesting such a presumption plays a role in considering governmental symbolic speech about religion, I do not retreat from my position that a " high and impregnable' wall" should separate government funds from parochial schools' treasuries. See Committee for Public Education and Religious Liberty v. Regan, 444 U. S. 646 , 444 U. S. 671 (1980) (STEVENS, J., dissenting) (quoting Everson v. Board of Education of Ewing, 330 U. S. 1 , 330 U. S. 18 (1947)). [ Footnote 2/8 ] The point is reiterated here by amicus the Governing Board Of the National Counsel of Churches of Christ in the U.S.A. which argues that "government acceptance of a creche on public property . . . secularizes and degrades a sacred symbol of Christianity," Brief for American Jewish Committee et al. as Amici Curiae ii. See also Engel, 370 U.S. at 370 U. S. 431 . Indeed, two Roman Catholics testified before the District Court in this case that the creche display offended them. App. 79-80, 93-96. [ Footnote 2/9 ] See Brief for American Jewish Committee et al. as Amici Curiae i-ii; Brief for American Jewish Congress et al. as Amici Curiae 1-2; Tr. of Oral Arg. 44. [ Footnote 2/10 ] These cases illustrate the danger that governmental displays of religious symbols may give rise to unintended divisiveness, for the net result of the Court's disposition is to disallow the display of the creche but to allow the display of the menorah. Laypersons unfamiliar with the intricacies of Establishment Clause jurisprudence may reach the wholly unjustified conclusion that the Court itself is preferring one faith over another. See Goldman v. Weinberger, 475 U. S. 503 , 475 U. S. 512 -513 (1986) (STEVENS, J., concurring). Cf. Lemon v. Kurtzman, 403 U. S. 602 , 403 U. S. 623 (1971) ("[T]he Constitution's authors sought to protect religious worship from the pervasive power of government"); Engel, 370 U.S. at 370 U. S. 430 ("Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause"). [ Footnote 2/11 ] The suggestion that the only alternative to governmental support of religion is governmental hostility to it represents a giant step backward in our Religion Clause jurisprudence. Indeed in its first contemporary examination of the Establishment Clause, the Court, while differing on how to apply the principle, unanimously agreed that government could not require believers or nonbelievers to support religions. Everson v. Board of Education of Ewing, 330 U.S. at 330 U. S. 15 -16; see also id. at 330 U. S. 31 -33 (Rutledge, J., dissenting). Accord, Jaffree, 472 U.S. at 472 U. S. 52 -55. [ Footnote 2/12 ] Cf. New York v. Ferber, 458 U. S. 747 , 458 U. S. 778 (1982) (STEVENS, J., concurring in judgment) ("The question whether a specific act of communication is protected by the First Amendment always requires some consideration of both its content and its context"). [ Footnote 2/13 ] All these leaders, of course, appear in friezes on the walls of our courtroom. See The Supreme Court of the United States 31 (published with the cooperation of the Historical Society of the Supreme Court of the United States). [ Footnote 2/14 ] The Court long ago rejected a contention similar to that JUSTICE KENNEDY advances today: "It has been argued that to apply the Constitution in such a way as to prohibit state laws respecting an establishment of religious services in public schools is to indicate a hostility toward religion or toward prayer. Nothing, of course, could be more wrong. The history of man is inseparable from the history of religion. . . . [Early Americans] knew that the First Amendment, which tried to put an end to governmental control of religion and of prayer, was not written to destroy either. They knew rather that it was written to quiet well-justified fears which nearly all of them felt arising out of an awareness that governments of the past had shackled men's tongues to make them speak only the religious thoughts that government wanted them to speak and to pray only to the God that government wanted them to pray to. It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance." Engel, 370 U.S. at 370 U. S. 433 -435 (footnotes omitted). [ Footnote 2/15 ] After the judge and counsel for both sides agreed at a preliminary injunction hearing that the menorah was a religious symbol, App. 144-145, a rabbi testified as an expert witness that the menorah and the creche "are comparable symbols, that they both represent what we perceive to be miracles," id. at 146, and that he had never "heard of Hanukkah being declared a general secular holiday in the United States," id. at 148. Although a witness for intervenor Chabad testified at a later hearing that, "[w]hen used on Hanukkah in the home, it is definitely symbolizing a religious ritual . . . whereas, at other times, the menorah can symbolize anything that one wants it to symbolize," id. at 240, he also agreed that lighting the menorah in a public place "probably would" publicize the miracle it represents, id. at 263. Nonetheless, JUSTICE BLACKMUN attaches overriding secular meaning to the menorah. Ante at 492 U. S. 613 -616. Contra, ante at 492 U. S. 632 -634 (O'CONNOR, J., concurring in part and concurring in judgment); ante at 492 U. S. 638 , 492 U. S. 641 -643 (BRENNAN, J., concurring in part and dissenting in part); post at 492 U. S. 664 (KENNEDY, J., concurring in judgment in part and dissenting in part). He reaches this conclusion only after exhaustive reference, not only to facts of record but primarily to academic treatises, to assess the degrees to which the menorah, the tree, and the creche are religious or secular. Ante at 492 U. S. 579 -587, 492 U. S. 616 . JUSTICE KENNEDY, with whom THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE SCALIA join, concurring in the judgment in part and dissenting in part. The majority holds that the County of Allegheny violated the Establishment Clause by displaying a creche in the county courthouse, because the "principal or primary effect" of the display is to advance religion within the meaning of Lemon v. Kurtzman, 403 U. S. 602 , 403 U. S. 612 -613 (1971). This view of the Establishment Clause reflects an unjustified hostility toward religion, a hostility inconsistent with our history and our precedents, and I dissent from this holding. The creche display is constitutional, and, for the same reasons, the display of a menorah by the city of Pittsburgh is permissible as well. On this latter point, I concur in the result, but not the reasoning, of 492 U. S. I In keeping with the usual fashion of recent years, the majority applies the Lemon test to judge the constitutionality of the holiday displays here in question. I am content for present purposes to remain within the Lemon framework, but do not wish to be seen as advocating, let alone adopting, that test as our primary guide in this difficult area. Persuasive criticism of Lemon has emerged. See Edwards v. Aguillard, 482 U. S. 578 , 482 U. S. 636 -640 (1987) (SCALIA, J., dissenting); Page 492 U. S. 656 Aguilar v. Felton, 473 U. S. 402 , 473 U. S. 426 -430 (1985) (O'CONNOR J., dissenting); Wallace v. Jaffree, 472 U. S. 38 , 472 U. S. 108 -113 (1985) (REHNQUIST, J., dissenting); Roemer v. Maryland Bd. of Public Works, 426 U. S. 736 , 426 U. S. 768 -769 (1976) (WHITE, J., concurring in judgment). Our cases often question its utility in providing concrete answers to Establishment Clause questions, calling it but a " helpful signpos[t]'" or "`guidelin[e]'" to assist our deliberations, rather than a comprehensive test. Mueller v. Allen, 463 U. S. 388 , 463 U. S. 394 (1983) (quoting Hunt v. McNair, 413 U. S. 734 , 413 U. S. 741 (1973)); Committee for Public Education and Religious Liberty v. Nyquist, 413 U. S. 756 , 413 U. S. 773 , n. 31 (1973) (quoting Tilton v. Richardson, 403 U. S. 672 , 403 U. S. 677 -678 (1971)); see Lynch v. Donnelly, 465 U. S. 668 , 465 U. S. 679 (1984) ("[W]e have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area"). Substantial revision of our Establishment Clause doctrine may be in order; but it is unnecessary to undertake that task today, for even the Lemon test, when applied with proper sensitivity to our traditions and our case law, supports the conclusion that both the creche and the menorah are permissible displays in the context of the holiday season. The only Lemon factor implicated in these cases directs us to inquire whether the "principal or primary effect" of the challenged government practice is "one that neither advances nor inhibits religion." 403 U.S. at 403 U. S. 612 . The requirement of neutrality inherent in that formulation has sometimes been stated in categorical terms. For example, in Everson v. Board of Education of Ewing, 330 U. S. 1 (1947), the first case in our modern Establishment Clause jurisprudence, Justice Black wrote that the Clause forbids laws "which aid one religion, aid all religions, or prefer one religion over another." Id. at 330 U. S. 15 -16. We have stated that government "must be neutral in matters of religious theory, doctrine, and practice" and "may not aid, foster, or promote one religion or religious theory against another or even against the Page 492 U. S. 657 militant opposite." Epperson v. Arkansas, 393 U. S. 97 , 393 U. S. 103 -104 (1968). And we have spoken of a prohibition against conferring an " imprimatur of state approval'" on religion, Mueller v. Allen, supra, at 463 U. S. 399 (quoting Widmar v. Vincent, 454 U. S. 263 , 454 U. S. 274 (1981)), or "favor[ing] the adherents of any sect or religious organization," Gillette v. United States, 401 U. S. 437 , 401 U. S. 450 (1971). These statements must not give the impression of a formalism that does not exist. Taken to its logical extreme, some of the language quoted above would require a relentless extirpation of all contact between government and religion. But that is not the history or the purpose of the Establishment Clause. Government policies of accommodation, acknowledgment, and support for religion are an accepted part of our political and cultural heritage. As Chief Justice Burger wrote for the Court in Walz v. Tax Comm'n of New York City, 397 U. S. 664 (1970), we must be careful to avoid "[t]he hazards of placing too much weight on a few words or phrases of the Court," and so we have "declined to construe the Religion Clauses with a literalness that would undermine the ultimate constitutional objective as illuminated by history." Id. at 397 U. S. 670 -671. Rather than requiring government to avoid any action that acknowledges or aids religion, the Establishment Clause permits government some latitude in recognizing and accommodating the central role religion plays in our society. Lynch v. Donnelly, supra, at 465 U. S. 678 ; Walz v. Tax Comm'n of New York City, supra, at 397 U. S. 669 . Any approach less sensitive to our heritage would border on latent hostility toward religion, as it would require government, in all its multifaceted roles, to acknowledge only the secular, to the exclusion and so to the detriment of the religious. A categorical approach would install federal courts as jealous guardians of an absolute "wall of separation," sending a clear message of disapproval. In this century, as the modern administrative state expands to touch the lives of its citizens in such diverse ways and redirects Page 492 U. S. 658 their financial choices through programs of its own, it is difficult to maintain the fiction that requiring government to avoid all assistance to religion can, in fairness, be viewed as serving the goal of neutrality. Our cases reflect this understanding. In Zorach v. Clauson, 343 U. S. 306 (1952), for example, we permitted New York City's public school system to accommodate the religious preferences of its students by giving them the option of staying in school or leaving to attend religious classes for part of the day. Justice Douglas wrote for the Court: "When the state encourages religious instruction . . . , it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe." Id. at 343 U. S. 313 -314. Nothing in the First Amendment compelled New York City to establish the release-time policy in Zorach, but the fact that the policy served to aid religion, and in particular those sects that offer religious education to the young, did not invalidate the accommodation. Likewise, we have upheld government programs supplying textbooks to students in parochial schools, Board of Education of Central School Dist. No. 1 v. Allen, 392 U. S. 236 (1968), providing grants to church-sponsored universities and colleges, Roemer v. Maryland Bd. of Public Works, supra; Tilton v. Richardson, supra, and exempting churches from the obligation to pay taxes, Walz v. Tax Comm'n of New York City, supra. These programs all have the effect of providing substantial benefits to particular religions, see, e.g., Tilton, supra, at 403 U. S. 679 (grants to church-sponsored educational institutions "surely aid" those institutions), but they are nonetheless permissible. See Lynch v. Donnelly, supra; 366 U. S. Page 492 U. S. 659 Maryland, 366 U. S. 420 , 366 U. S. 445 (1961); Illinois ex rel. McCollum v. Board of Education of School Dist. No. 71, Champaign County, 333 U. S. 203 , 333 U. S. 211 -212 (1948). As Justice Goldberg wrote in Abington School District v. Schempp, 374 U. S. 203 (1963): "It is said, and I agree, that the attitude of government toward religion must be one of neutrality. But untutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious. Such results are not only not compelled by the Constitution, but, it seems to me, are prohibited by it." "Neither government nor this Court can or should ignore the significance of the fact that a vast portion of our people believe in and worship God and that many of our legal, political and personal values derive historically from religious teachings. Government must inevitably take cognizance of the existence of religion. . . ." Id. at 374 U. S. 306 (concurring opinion, joined by Harlan, J.). The ability of the organized community to recognize and accommodate religion in a society with a pervasive public sector requires diligent observance of the border between accommodation and establishment. Our cases disclose two limiting principles: government may not coerce anyone to support or participate in any religion or its exercise; and it may not, in the guise of avoiding hostility or callous indifference, give direct benefits to religion in such a degree that it, in fact, "establishes a [state] religion or religious faith, or tends to do so." Lynch v. Donnelly, 465 U.S. at 465 U. S. 678 . These two principles, while distinct, are not unrelated, for it would be difficult indeed to establish a religion without some measure of more or less subtle coercion, be it in the form of taxation to supply the substantial benefits that would sustain Page 492 U. S. 660 a state-established faith, direct compulsion to observance, or governmental exhortation to religiosity that amounts in fact to proselytizing. It is no surprise that, without exception, we have invalidated actions that further the interests of religion through the coercive power of government. Forbidden involvements include compelling or coercing participation or attendance at a religious activity, see Engel v. Vitale, 370 U. S. 421 (1962); McGowan v. Maryland, supra, at 366 U. S. 452 (discussing McCollum v. Board of Education of School Dist. No. 71, Champaign County, supra ), requiring religious oaths to obtain government office or benefits, Torcaso v. Watkins, 367 U. S. 488 (1961), or delegating government power to religious groups, Larkin v. Grendel's Den, Inc., 459 U. S. 116 (1982). The freedom to worship as one pleases without government interference or oppression is the great object of both the Establishment and the Free Exercise Clauses. Barring all attempts to aid religion through government coercion goes far toward attainment of this object. See McGowan v. Maryland, supra, at 366 U. S. 441 , quoting 1 Annals of Congress 730 (1789) (James Madison, who proposed the First Amendment in Congress, " apprehended the meaning of the [Religion Clauses] to be that Congress should not establish a religion and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience'"); Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 303 (1940) (the Religion Clauses "forestal[l] compulsion by law of the acceptance of any creed or the practice of any form of worship"). As JUSTICE BLACKMUN observes, ante at 492 U. S. 597 -598, n. 47, some of our recent cases reject the view that coercion is the sole touchstone of an Establishment Clause violation. See Engel v. Vitale, supra, at 370 U. S. 430 (dictum) (rejecting, without citation of authority, proposition that coercion is required to demonstrate an Establishment Clause violation); Abington School District v. Schempp, supra, at 374 U. S. 223 ; Nyquist, 413 U.S. at 413 U. S. 786 . That may be true if by "coercion" is meant Page 492 U. S. 661 direct coercion in the classic sense of an establishment of religion that the Framers knew. But coercion need not be a direct tax in aid of religion or a test oath. Symbolic recognition or accommodation of religious faith may violate the Clause in an extreme case. [ Footnote 3/1 ] I doubt not, for example, that the Clause forbids a city to permit the permanent erection of a large Latin cross on the roof of city hall. This is not because government speech about religion is per se suspect, as the majority would have it, but because such an obtrusive year-round religious display would place the government's weight behind an obvious effort to proselytize on behalf of a particular religion. Cf. Friedman v. Board of County Comm'rs of Bernalillo County, 781 F.2d 777 (CA10 1985) (en banc) (Latin cross on official county seal); American Civil Liberties Union of Georgia v. Rabun County Chamber of Commerce, Inc., 698 F.2d 1098 (CA11 1983) (cross erected in public park); Lowe v. Eugene, 254 Ore. 518, 463 P.2d 360 (1969) (same). Speech may coerce in some circumstances, but this does not justify a ban on all government recognition of religion. As Chief Justice Burger wrote for the Court in Walz: "The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts, there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist Page 492 U. S. 662 without sponsorship and without interference." 397 U.S. at 397 U. S. 669 . This is most evident where the government's act of recognition or accommodation is passive and symbolic, for in that instance any intangible benefit to religion is unlikely to present a realistic risk of establishment. Absent coercion, the risk of infringement of religious liberty by passive or symbolic accommodation is minimal. Our cases reflect this reality by requiring a showing that the symbolic recognition or accommodation advances religion to such a degree that it actually "establishes a religion or religious faith, or tends to do so." Lynch, 465 U.S. at 465 U. S. 678 . In determining whether there exists an establishment, or a tendency toward one, we refer to the other types of church-state contacts that have existed unchallenged throughout our history, or that have been found permissible in our case law. In Lynch, for example, we upheld the city of Pawtucket's holiday display of a creche, despite the fact that "the display advance[d] religion in a sense." Id. at 465 U. S. 683 . We held that the creche conferred no greater benefit on religion than did governmental support for religious education, legislative chaplains, "recognition of the origins of the [Christmas] Holiday itself as Christ's Mass,'" or many other forms of symbolic or tangible governmental assistance to religious faiths that are ensconced in the safety of national tradition. Id. at 465 U. S. 681 , 465 U. S. 683 . And in Marsh v. Chambers, we found that Nebraska's practice of employing a legislative chaplain did not violate the Establishment Clause, because "legislative prayer presents no more potential for establishment than the provision of school transportation, beneficial grants for higher education, or tax exemptions for religious organizations." 463 U.S. at 463 U. S. 791 (citations omitted). Noncoercive government action within the realm of flexible accommodation or passive acknowledgment of existing symbols does not violate the Establishment Clause unless it benefits religion in a way Page 492 U. S. 663 more direct and more substantial than practices that are accepted in our national heritage. II These principles are not difficult to apply to the facts of the cases before us. In permitting the displays on government property of the menorah and the creche, the city and county sought to do no more than "celebrate the season," Brief for Petitioner County of Allegheny in No. 87-2050, p. 27, and to acknowledge, along with many of their citizens, the historical background and the religious, as well as secular, nature of the Chanukah and Christmas holidays. This interest falls well within the tradition of government accommodation and acknowledgment of religion that has marked our history from the beginning. [ Footnote 3/2 ] It cannot be disputed that government, if it chooses, may participate in sharing with its citizens the joy of the holiday season, by declaring public holidays, installing or permitting festive displays, sponsoring celebrations and parades, and providing holiday vacations for its employees. All levels of our government do precisely that. As we said in Lynch, "Government has long recognized -- indeed it has subsidized -- holidays with religious significance." 465 U.S. at 465 U. S. 676 . If government is to participate in its citizens' celebration of a holiday that contains both a secular and a religious component, enforced recognition of only the secular aspect would Page 492 U. S. 664 signify the callous indifference toward religious faith that our cases and traditions do not require; for, by commemorating the holiday only as it is celebrated by nonadherents, the government would be refusing to acknowledge the plain fact, and the historical reality, that many of its citizens celebrate its religious aspects as well. Judicial invalidation of government's attempts to recognize the religious underpinnings of the holiday would signal not neutrality, but a pervasive intent to insulate government from all things religious. The Religion Clauses do not require government to acknowledge these holidays or their religious component; but our strong tradition of government accommodation and acknowledgment permits government to do so. See Lynch v. Donnelly, supra; cf. Zorach v. Clauson, 343 U.S. at 343 U. S. 314 ; Abington School District v. Schempp, 374 U.S. at 374 U. S. 306 (Goldberg, J., concurring). There is no suggestion here that the government's power to coerce has been used to further the interests of Christianity or Judaism in any way. No one was compelled to observe or participate in any religious ceremony or activity. Neither the city nor the county contributed significant amounts of tax money to serve the cause of one religious faith. The creche and the menorah are purely passive symbols of religious holidays. Passersby who disagree with the message conveyed by these displays are free to ignore them, or even to turn their backs, just as they are free to do when they disagree with any other form of government speech. There is no realistic risk that the creche and the menorah represent an effort to proselytize or are otherwise the first step down the road to an establishment of religion. [ Footnote 3/3 ] Lynch Page 492 U. S. 665 is dispositive of this claim with respect to the creche, and I find no reason for reaching a different result with respect to the menorah. Both are the traditional symbols of religious holidays that, over time, have acquired a secular component. Ante at 492 U. S. 579 , and n. 3, 492 U. S. 585 , and n. 29. Without ambiguity, Lynch instructs that "the focus of our inquiry must be on the [religious symbol] in the context of the [holiday] season," 465 U.S. at 465 U. S. 679 . In that context, religious displays that serve "to celebrate the Holiday and to depict the origins of that Holiday" give rise to no Establishment Clause concern. Id. at 465 U. S. 681 . If Congress and the state legislatures do not run afoul of the Establishment Clause when they begin each day with a state-sponsored prayer for divine guidance offered by a chaplain whose salary is paid at government expense, I cannot comprehend how a menorah or a creche, displayed in the limited context of the holiday season, can be invalid. [ Footnote 3/4 ] Respondents say that the religious displays involved here are distinguishable from the creche in Lynch because they are located on government property and are not surrounded Page 492 U. S. 666 by the candy canes, reindeer, and other holiday paraphernalia that were a part of the display in Lynch. Nothing in Chief Justice Burger's opinion for the Court in Lynch provides support for these purported distinctions. After describing the facts, the Lynch opinion makes no mention of either of these factors. It concentrates instead on the significance of the creche as part of the entire holiday season. Indeed, it is clear that the Court did not view the secular aspects of the display as somehow subduing the religious message conveyed by the creche, for the majority expressly rejected the dissenters' suggestion that it sought " to explain away the clear religious import of the creche'" or had "equated the creche with a Santa's house or reindeer." Id. at 465 U. S. 685 , n. 12. Crucial to the Court's conclusion was not the number, prominence, or type of secular items contained in the holiday display, but the simple fact that, when displayed by government during the Christmas season, a creche presents no realistic danger of moving government down the forbidden road toward an establishment of religion. Whether the creche be surrounded by poinsettias, talking wishing wells, or carolers, the conclusion remains the same, for the relevant context is not the items in the display itself, but the season as a whole. The fact that the creche and menorah are both located on government property, even at the very seat of government, is likewise inconsequential. In the first place, the Lynch Court did not rely on the fact that the setting for Pawtucket's display was a privately owned park, and it is difficult to suggest that anyone could have failed to receive a message of government sponsorship after observing Santa Claus ride the city fire engine to the park to join with the mayor of Pawtucket in inaugurating the holiday season by turning on the lights of the city-owned display. See Donnelly v. Lynch, 525 F. Supp. 1150 , 1156 (RI 1981). Indeed, the District Court in Lynch found that "people might reasonably mistake Page 492 U. S. 667 the Park for public property," and rejected as "frivolous" the suggestion that the display was not directly associated with the city. Id. at 1176, and n. 35. Our cases do not suggest, moreover, that the use of public property necessarily converts otherwise permissible government conduct into an Establishment Clause violation. To the contrary, in some circumstances, the First Amendment may require that government property be available for use by religious groups, see Widmar v. Vincent, 454 U. S. 263 (1981); Fowler v. Rhode Island, 345 U. S. 67 (1953); Niemotko v. Maryland, 340 U. S. 268 (1951), and even where not required, such use has long been permitted. The prayer approved in Marsh v. Chambers, for example, was conducted in the legislative chamber of the State of Nebraska, surely the single place most likely to be thought the center of state authority. Nor can I comprehend why it should be that placement of a government-owned creche on private land is lawful, while placement of a privately owned creche on public land is not. [ Footnote 3/5 ] If anything, I should have thought government ownership of a religious symbol presented the more difficult question under the Establishment Clause, but as Lynch resolved that question to sustain the government action, the sponsorship here ought to be all the easier to sustain. In short, nothing about the religious displays here distinguishes them in any meaningful way from the creche we permitted in Lynch. If Lynch is still good law -- and until today it was -- the judgment below cannot stand. I accept and indeed approve both the holding and the reasoning of Chief Justice Burger's opinion in Lynch, and so I must dissent from the judgment that the creche display is unconstitutional. On the same reasoning, I agree that the menorah display is constitutional. Page 492 U. S. 668 III The majority invalidates display of the creche not because it disagrees with the interpretation of Lynch applied above, but because it chooses to discard the reasoning of the Lynch majority opinion in favor of JUSTICE O'CONNOR's concurring opinion in that case. See ante at 492 U. S. 594 -597. It has never been my understanding that a concurring opinion "suggest[ing] a clarification of our . . . doctrine," Lynch, 465 U.S. at 465 U. S. 687 (O'CONNOR, J., concurring), could take precedence over an opinion joined in its entirety by five Members of the Court. [ Footnote 3/6 ] As a general rule, the principle of stare decisis directs us to adhere not only to the holdings of our prior cases but also to their explications of the governing rules of law. Since the majority does not state its intent to overrule Lynch, I find its refusal to apply the reasoning of that decision quite confusing. Even if Lynch did not control, I would not commit this Court to the test applied by the majority today. The notion that cases arising under the Establishment Clause should be decided by an inquiry into whether a " reasonable observer'" may "`fairly understand'" government action to "`sen[d] a message to nonadherents that they are outsiders, not full members of the political community,'" is a recent, and, in my view, most unwelcome, addition to our tangled Establishment Clause jurisprudence. Ante at 492 U. S. 595 , 492 U. S. 620 . Although a scattering of our cases have used "endorsement" as another word for "preference" or "imprimatur," the endorsement test applied by the majority had its genesis in JUSTICE O'CONNOR's concurring opinion in Lynch. See also Corporation of the Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327 , 483 U. S. 346 (1987) (O'CONNOR, J., concurring in judgment); Estate of Thornton v. Caldor, Inc., 472 U. S. 703 , 472 U. S. 711 (1985) (O'CONNOR, J., concurring); Wallace Page 492 U. S. 669 v. Jaffree, 472 U.S. at 472 U. S. 67 (O'CONNOR, J., concurring in judgment). The endorsement test has been criticized by some scholars in the field, see, e.g., Smith, Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutrality and the "No Endorsement" Test, 86 Mich.L.Rev. 266 (1987); Tushnet, The Constitution of Religion, 18 Conn.Law Rev. 701, 711-712 (1986). Only one opinion for the Court has purported to apply it in full, see School Dist. of Grand Rapids v. Ball, 473 U. S. 373 , 473 U. S. 389 -392 (1985), but the majority's opinion in this case suggests that this novel theory is fast becoming a permanent accretion to the law. See also Texas Monthly, Inc. v. Bullock, 489 U. S. 1 , 489 U. S. 8 -9 (1989) (opinion of BRENNAN, J.). For the reasons expressed below, I submit that the endorsement test is flawed in its fundamentals and unworkable in practice. The uncritical adoption of this standard is every bit as troubling as the bizarre result it produces in the cases before us. A I take it as settled law that, whatever standard the Court applies to Establishment Clause claims, it must at least suggest results consistent with our precedents and the historical practices that, by tradition, have informed our First Amendment jurisprudence. See supra at 492 U. S. 655 -663; Lynch, supra, at 465 U. S. 673 -674; Marsh v. Chambers, 463 U.S. at 463 U. S. 790 -791; Walz v. Tax Comm'n of New York City, 397 U.S. at 397 U. S. 671 . It is true that, for reasons quite unrelated to the First Amendment, displays commemorating religious holidays were not commonplace in 1791. See generally J. Barnett, The American Christmas: A Study in National Culture 2-11 (1954). But the relevance of history is not confined to the inquiry into whether the challenged practice itself is a part of our accepted traditions dating back to the Founding. Our decision in Marsh v. Chambers illustrates this proposition. The dissent in that case sought to characterize the decision as "carving out an exception to the Establishment Page 492 U. S. 670 Clause, rather than reshaping Establishment Clause doctrine to accommodate legislative prayer," 463 U.S. at 463 U. S. 796 (BRENNAN, J., dissenting), but the majority rejected the suggestion that "historical patterns ca[n] justify contemporary violations of constitutional guarantees," id. at 463 U. S. 790 . Marsh stands for the proposition not that specific practices common in 1791 are an exception to the otherwise broad sweep of the Establishment Clause, but rather that the meaning of the Clause is to be determined by reference to historical practices and understandings. [ Footnote 3/7 ] Whatever test we choose to apply must permit not only legitimate practices two centuries old, but also any other practices with no greater potential for an establishment of religion. See Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. at 413 U. S. 808 (REHNQUIST, J., dissenting in part). The First Amendment is a rule, not a digest or compendium. A test for implementing the protections of the Establishment Clause that, if applied with consistency, would invalidate longstanding traditions cannot be a proper reading of the Clause. If the endorsement test, applied without artificial exceptions for historical practice, reached results consistent with history, my objections to it would have less force. But, as I understand that test, the touchstone of an Establishment Clause violation is whether nonadherents would be made to feel like "outsiders" by government recognition or accommodation of religion. Few of our traditional practices recognizing the part religion plays in our society can withstand scrutiny under a faithful application of this formula. Page 492 U. S. 671 Some examples suffice to make plain my concerns. Since the Founding of our Republic, American Presidents have issued Thanksgiving Proclamations establishing a national day of celebration and prayer. The first such proclamation was issued by President Washington at the request of the First Congress, and "recommend[ed] and assign[ed]" a day "to be devoted by the people of these States to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be," so that "we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations, and beseech Him to . . . promote the knowledge and practice of true religion and virtue. . . ." 1 J. Richardson, A Compilation of Messages and Papers of the Presidents, 1789-1897, p. 64 (1899). Most of President Washington's successors have followed suit, [ Footnote 3/8 ] and the forthrightly religious nature of these proclamations has not waned with the years. President Franklin D. Roosevelt went so far as to "suggest a nationwide reading of the Holy Scriptures during the period from Thanksgiving Day to Christmas" so that "we may bear more earnest witness to our gratitude to Almighty God." Presidential Proclamation No. 2629, 58 Stat. 1160. It requires little imagination to conclude that these proclamations would cause nonadherents to feel excluded, yet they have been a part of our national heritage from the beginning. [ Footnote 3/9 ] Page 492 U. S. 672 The Executive has not been the only Branch of our Government to recognize the central role of religion in our society. The fact that this Court opens its sessions with the request that "God save the United States and this honorable Court" has been noted elsewhere. See Lynch, 465 U.S. at 465 U. S. 677 . The Legislature has gone much further, not only employing legislative chaplains, see 2 U.S.C. § 61d, but also setting aside a special prayer room in the Capitol for use by Members of the House and Senate. The room is decorated with a large stained glass panel that depicts President Washington kneeling in prayer; around him is etched the first verse of the 16th Psalm: "Preserve me, O God, for in Thee do I put my trust." Beneath the panel is a rostrum on which a Bible is placed; next to the rostrum is an American Flag. See L. Aikman, We the People: The Story of the United States Capitol 122 (1978). Some endorsement is inherent in these reasonable accommodations, yet the Establishment Clause does not forbid them. The United States Code itself contains religious references that would be suspect under the endorsement test. Congress has directed the President to "set aside and proclaim a suitable day each year . . . as a National Day of Prayer, on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals." 36 U.S.C. § 169h. This statute does not require anyone to pray, of course, but it is a straightforward endorsement of the concept of "turn[ing] to God in prayer." Also by statute, the Pledge of Allegiance to the Flag describes the United States as "one Nation under God." 36 U.S.C. § 172. Page 492 U. S. 673 To be sure, no one is obligated to recite this phrase, see West Virginia State Board of Education v. Barnette, 319 U. S. 624 (1943), but it borders on sophistry to suggest that the " reasonable'" atheist would not feel less than a "`full membe[r] of the political community'" every time his fellow Americans recited, as part of their expression of patriotism and love for country, a phrase he believed to be false. Likewise, our national motto, "In God we trust," 36 U.S.C. § 186, which is prominently engraved in the wall above the Speaker's dias in the Chamber of the House of Representatives and is reproduced on every coin minted and every dollar printed by the Federal Government, 31 U.S.C. §§ 5112(d)(1), 5114(b), must have the same effect. If the intent of the Establishment Clause is to protect individuals from mere feelings of exclusion, then legislative prayer cannot escape invalidation. It has been argued that "[these] government acknowledgments of religion serve, in the only ways reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society." Lynch, supra, at 465 U. S. 693 (O'CONNOR, J., concurring). I fail to see why prayer is the only way to convey these messages; appeals to patriotism, moments of silence, and any number of other approaches would be as effective, were the only purposes at issue the ones described by the Lynch concurrence. Nor is it clear to me why "encouraging the recognition of what is worthy of appreciation in society" can be characterized as a purely secular purpose if it can be achieved only through religious prayer. No doubt prayer is "worthy of appreciation," but that is most assuredly not because it is secular. Even accepting the secular solemnization explanation at face value, moreover, it seems incredible to suggest that the average observer of legislative prayer who either believes in no religion or whose faith rejects the concept of God would not receive the clear message that his faith is out of step with the Page 492 U. S. 674 political norm. Either the endorsement test must invalidate scores of traditional practices recognizing the place religion holds in our culture or it must be twisted and stretched to avoid inconsistency with practices we know to have been permitted in the past, while condemning similar practices with no greater endorsement effect simply by reason of their lack of historical antecedent. [ Footnote 3/10 ] Neither result is acceptable. B In addition to disregarding precedent and historical fact, the majority's approach to government use of religious symbolism threatens to trivialize constitutional adjudication. By mischaracterizing the Court's opinion in Lynch as an endorsement-in-context test, ante at 492 U. S. 597 , JUSTICE BLACKMUN embraces a jurisprudence of minutiae. A reviewing court must consider whether the city has included Santas, talking wishing wells, reindeer, or other secular symbols as "a center of attention separate from the creche." Ante at 492 U. S. 598 . After determining whether these centers of attention are sufficiently "separate" that each "had their specific visual story to tell," the court must then measure their proximity to the creche. Ante at 492 U. S. 598 , and n. 48. A community that wishes to construct a constitutional display must also Page 492 U. S. 675 take care to avoid floral frames or other devices that might insulate the creche from the sanitizing effect of the secular portions of the display. Ibid. The majority also notes the presence of evergreens near the creche that are identical to two small evergreens placed near official county signs. Ante at 492 U. S. 600 , n. 50. After today's decision, municipal greenery must be used with care. Another important factor will be the prominence of the setting in which the display is placed. In this case, the Grand Staircase of the county courthouse proved too resplendent. Indeed, the Court finds that this location itself conveyed an "unmistakable message that [the county] supports and promotes the Christian praise to God that is the creche's religious message." Ante at 492 U. S. 600 . My description of the majority's test, though perhaps uncharitable, is intended to illustrate the inevitable difficulties with its application. [ Footnote 3/11 ] This test could provide workable guidance to the lower courts, if ever, only after this Court has decided a long series of holiday display cases, using little more than intuition and a tape measure. Deciding cases on Page 492 U. S. 676 the basis of such an unguided examination of marginalia is irreconcilable with the imperative of applying neutral principles in constitutional adjudication. "It would be appalling to conduct litigation under the Establishment Clause as if it were a trademark case, with experts testifying about whether one display is really like another, and witnesses testifying they were offended -- but would have been less so were the creche five feet closer to the jumbo candy cane." American Jewish Congress v. Chicago, 827 F.2d 120, 130 (CA7 1987) (Easterbrook, J., dissenting). JUSTICE BLACKMUN employs in many respects a similar analysis with respect to the menorah, principally discussing its proximity to the Christmas tree and whether "it is . . . more sensible to interpret the menorah in light of the tree, rather than vice versa." Ante at 492 U. S. 617 ; see also ante at 492 U. S. 635 (O'CONNOR, J., concurring in part and concurring in judgment) (concluding that combination of tree, menorah, and salute to liberty conveys no message of endorsement to reasonable observers). JUSTICE BLACKMUN goes further, however, and, in upholding the menorah as an acknowledgment of a holiday with secular aspects, emphasizes the city's lack of "reasonable alternatives that are less religious in nature." Ante at 492 U. S. 618 ; see ibid. (noting absence of a "more secular alternative symbol"). This least-religious-means test presents several difficulties. [ Footnote 3/12 ] First, it creates an internal inconsistency in JUSTICE BLACKMUN's opinion. JUSTICE BLACKMUN earlier suggests that the display of a creche is sometimes constitutional. Ante at 492 U. S. 598 . But it is obvious that there are innumerable secular symbols of Christmas, and that there will always be a more secular alternative available in place of a creche. Second, the test as applied by JUSTICE BLACKMUN is unworkable, for it requires not only that the Court engage in the unfamiliar task of deciding whether a particular alternative Page 492 U. S. 677 symbol is more or less religious, but also whether the alternative would "look out of place." Ante at 492 U. S. 618 . Third, although JUSTICE BLACKMUN purports not to be overruling Lynch, the more-secular-alternative test contradicts that decision, as it comes not from the Court's opinion, nor even from the concurrence, but from the dissent. See 465 U.S. at 465 U. S. 699 (BRENNAN, J., dissenting). The Court in Lynch noted that the dissent "argues that the city's objectives could have been achieved without including the creche in the display." Id. at 465 U. S. 681 , n. 7. "True or false," we said, "that is irrelevant." The result the Court reaches in these cases is perhaps the clearest illustration of the unwisdom of the endorsement test. Although JUSTICE O'CONNOR disavows JUSTICE BLACKMUN's suggestion that the minority or majority status of a religion is relevant to the question whether government recognition constitutes a forbidden endorsement, ante at 492 U. S. 634 (O'CONNOR, J., concurring in part and concurring in judgment), the very nature of the endorsement test, with its emphasis on the feelings of the objective observer, easily lends itself to this type of inquiry. If there be such a person as the "reasonable observer," I am quite certain that he or she will take away a salient message from our holding in these cases: the Supreme Court of the United States has concluded that the First Amendment creates classes of religions based on the relative numbers of their adherents. Those religions enjoying the largest following must be consigned to the status of least favored faiths so as to avoid any possible risk of offending members of minority religions. I would be the first to admit that many questions arising under the Establishment Clause do not admit of easy answers, but whatever the Clause requires, it is not the result reached by the Court today. IV The approach adopted by the majority contradicts important values embodied in the Clause. Obsessive, implacable resistance to all but the most carefully scripted and secularized Page 492 U. S. 678 forms of accommodation requires this Court to act as a censor, issuing national decrees as to what is orthodox and what is not. What is orthodox, in this context, means what is secular; the only Christmas the State can acknowledge is one in which references to religion have been held to a minimum. The Court thus lends its assistance to an Orwellian rewriting of history as many understand it. I can conceive of no judicial function more antithetical to the First Amendment. A further contradiction arises from the majority's approach, for the Court also assumes the difficult and inappropriate task of saying what every religious symbol means. Before studying this case, I had not known the full history of the menorah, and I suspect the same was true of my colleagues. More important, this history was, and is, likely unknown to the vast majority of people of all faiths who saw the symbol displayed in Pittsburgh. Even if the majority is quite right about the history of the menorah, it hardly follows that this same history informed the observers' view of the symbol and the reason for its presence. This Court is ill-equipped to sit as a national theology board, and I question both the wisdom and the constitutionality of its doing so. Indeed, were I required to choose between the approach taken by the majority and a strict separationist view, I would have to respect the consistency of the latter. The suit before us is admittedly a troubling one. It must be conceded that, however neutral the purpose of the city and county, the eager proselytizer may seek to use these symbols for his own ends. The urge to use them to teach or to taunt is always present. It is also true that some devout adherents of Judaism or Christianity may be as offended by the holiday display as are nonbelievers, if not more so. To place these religious symbols in a common hallway or sidewalk, where they may be ignored or even insulted, must be distasteful to many who cherish their meaning. Page 492 U. S. 679 For these reasons, I might have voted against installation of these particular displays were I a local legislative official. But we have no jurisdiction over matters of taste within the realm of constitutionally permissible discretion. Our role is enforcement of a written Constitution. In my view, the principles of the Establishment Clause and our Nation's historic traditions of diversity and pluralism allow communities to make reasonable judgments respecting the accommodation or acknowledgment of holidays with both cultural and religious aspects. No constitutional violation occurs when they do so by displaying a symbol of the holiday's religious origins. [ Footnote 3/1 ] JUSTICE STEVENS is incorrect when he asserts that requiring a showing of direct or indirect coercion in Establishment Clause cases is "out of step with our precedent." Ante at 492 U.S. 650 , n. 6. As is demonstrated by the language JUSTICE STEVENS quotes from Engel v. Vitale, 370 U. S. 421 , 370 U. S. 430 (1962), our cases have held only that direct coercion need not always be shown to establish an Establishment Clause violation. The prayer invalidated in Engel was unquestionably coercive in an indirect manner, as the Engel Court itself recognized in the sentences immediately following the passage JUSTICE STEVENS chooses to quote. Id. at 370 U. S. 430 -431. [ Footnote 3/2 ] The majority rejects the suggestion that the display of the creche can "be justified as an accommodation' of religion," because it "does not remove any burden on the free exercise of Christianity." Ante at 492 U. S. 601 , n. 51. Contrary to the assumption implicit in this analysis, however, we have never held that government's power to accommodate and recognize religion extends no further than the requirements of the Free Exercise Clause. To the contrary, "[t]he limits of permissible state accommodation to religion are by no means coextensive with the non-interference mandated by the Free Exercise Clause." Walz v. Tax Comm'n of New York City, 397 U. S. 664 , 397 U. S. 673 (1970). Cf. Texas Monthly, Inc. v. Bullock, 489 U. S. 1 , 489 U. S. 38 (1989) (SCALIA, J., dissenting). [ Footnote 3/3 ] One can imagine a case in which the use of passive symbols to acknowledge religious holidays could present this danger. For example, if a city chose to recognize, through religious displays, every significant Christian holiday while ignoring the holidays of all other faiths, the argument that the city was simply recognizing certain holidays celebrated by its citizens without establishing an official faith or applying pressure to obtain adherents would be much more difficult to maintain. On the facts of these cases, no such unmistakable and continual preference for one faith has been demonstrated or alleged. [ Footnote 3/4 ] The majority suggests that our approval of legislative prayer in Marsh v. Chambers is to be distinguished from these cases on the ground that legislative prayer is nonsectarian, while creches and menorahs are not. Ante at 492 U. S. 603 . In the first place, of course, this purported distinction is utterly inconsistent with the majority's belief that the Establishment Clause "mean[s] no official preference even for religion over nonreligion." Ante at 492 U. S. 605 . If year-round legislative prayer does not express "official preference for religion over nonreligion," a creche or menorah display in the context of the holiday season certainly does not "demonstrate a preference for one particular sect or creed." Ibid. Moreover, the majority chooses to ignore the Court's opinion in Lynch v. Donnelly, 465 U. S. 668 (1984), which applied precisely the same analysis as that I apply today: "to conclude that the primary effect of including the creche is to advance religion in violation of the Establishment Clause would require that we view it as more beneficial to and more an endorsement of religion . . . than . . . the legislative prayers upheld in Marsh v. Chambers. . . ." Id. at 465 U. S. 681 -682. [ Footnote 3/5 ] The creche in Lynch was owned by Pawtucket. Neither the creche nor the menorah at issue in this case is owned by a governmental entity. [ Footnote 3/6 ] The majority illustrates the depth of its error in this regard by going so far as to refer to the concurrence and dissent in Lynch as "[o]ur previous opinions. . . ." Ante at 492 U. S. 602 . [ Footnote 3/7 ] Contrary to the majority's discussion, ante at 492 U. S. 604 -605, and nn. 53-54, the relevant historical practices are those conducted by governmental units which were subject to the constraints of the Establishment Clause. Acts of "official discrimination against non-Christians" perpetrated in the 18th and 19th centuries by States and municipalities are, of course, irrelevant to this inquiry, but the practices of past Congresses and Presidents are highly informative. [ Footnote 3/8 ] In keeping with his strict views of the degree of separation mandated by the Establishment Clause, Thomas Jefferson declined to follow this tradition. See 11 Writings of Thomas Jefferson 429 (A. Lipscomb ed.1904). [ Footnote 3/9 ] Similarly, our presidential inaugurations have traditionally opened with a request for divine blessing. At our most recent such occasion, on January 20, 1989, thousands bowed their heads in prayer to this invocation: "Our Father and our God, Thou hast said blessed is the nation whose God is the Lord." "We recognize on this historic occasion that we are a nation under God. This faith in God is our foundation and our heritage. . . ." "As George Washington reminded us in his Farewell Address, morality and faith are the pillars of our society. May we never forget that." " * * * *" "We acknowledge Thy divine help in the selection of our leadership each 4 years." " * * * *" "All this we pray in the name of the Father, the Son, and the Holy Spirit. Amen." 135 Cong.Rec. S67 (Jan. 20, 1989) (Rev. Billy Graham). [ Footnote 3/10 ] If the majority's test were to be applied logically, it would lead to the elimination of all nonsecular Christmas caroling in public buildings or, presumably, anywhere on public property. It is difficult to argue that lyrics like "Good Christian men, rejoice," "Joy to the world! the Savior reigns," "This, this is Christ the King," "Christ, by highest heav'n adored," and "Come and behold Him, Born the King of angels" have acquired such a secular nature that nonadherents would not feel "left out" by a government-sponsored or approved program that included these carols. See W. Ehret & G. Evans, The International Book of Christmas Carols 12, 28, 30, 46, 318 (1963). We do not think for a moment that the Court will ban such carol programs, however. Like Thanksgiving Proclamations, the reference to God in the Pledge of Allegiance, and invocations to God in sessions of Congress and of this Court, they constitute practices that the Court will not proscribe, but that the Court's reasoning today does not explain. [ Footnote 3/11 ] JUSTICE BLACKMUN and JUSTICE O'CONNOR defend the majority's test by suggesting that the approach followed in Lynch would require equally difficult line drawing. Ante at 492 U. S. 606 ; ante at 492 U. S. 629 -630 (O'CONNOR, J., concurring in part and concurring in judgment). It is true that the Lynch test may involve courts in difficult linedrawing in the unusual case where a municipality insists on such extreme use of religious speech that an establishment of religion is threatened. See supra at 492 U. S. 661 . Only adoption of the absolutist views that either all government involvement with religion is permissible or that none is can provide a bright line in all cases. That price for clarity is neither exacted nor permitted by the Constitution. But for the most part, JUSTICE BLACKMUN's and JUSTICE O'CONNOR's objections are not well taken. As a practical matter, the only cases of symbolic recognition likely to arise with much frequency are those involving simple holiday displays, and, in that context, Lynch provides unambiguous guidance. I would follow it. The majority's test, on the other hand, demands the Court to draw exquisite distinctions from fine detail in a wide range of cases. The anomalous result the test has produced here speaks for itself. [ Footnote 3/12 ] Of course, a majority of the Court today rejects JUSTICE BLACKMUN's approach in this regard. See ante at 492 U. S. 636 -637 (O'CONNOR, J., concurring in part and concurring in judgment).

In *County of Allegheny v. ACLU*, the US Supreme Court ruled on the constitutionality of two holiday displays on public property in Pittsburgh: a Christian nativity scene and an 18-foot menorah. The Court held that the nativity scene violated the Establishment Clause as it endorsed Christianity, but the menorah, in context, did not violate the Establishment Clause as it did not endorse Judaism. The Court's decision considered the religious nature of the displays, their location on public property, and their potential to exclude non-adherents.

Religion

Employment Division v. Smith

https://supreme.justia.com/cases/federal/us/494/872/

U.S. Supreme Court Employment Div. v. Smith., 494 U.S. 872 (1990) Employment Division, Department of Human Resources of Oregon v. Smith No. 88-1213 Argued Nov. 6, 1989 Decided April 17, 1990 494 U.S. 872 CERTIORARI TO THE SUPREME COURT OF OREGON Syllabus Respondents Smith and Black were fired by a private drug rehabilitation organization because they ingested peyote, a hallucinogenic drug, for sacramental purposes at a ceremony of their Native American Church. Their applications for unemployment compensation were denied by the State of Oregon under a state law disqualifying employees discharged for work-related "misconduct." Holding that the denials violated respondents' First Amendment free exercise rights, the State Court of Appeals reversed. The State Supreme Court affirmed, but this Court vacated the judgment and remanded for a determination whether sacramental peyote use is proscribed by the State's controlled substance law, which makes it a felony to knowingly or intentionally possess the drug. Pending that determination, the Court refused to decide whether such use is protected by the Constitution. On remand, the State Supreme Court held that sacramental peyote use violated, and was not excepted from, the state law prohibition, but concluded that that prohibition was invalid under the Free Exercise Clause. Held: The Free Exercise Clause permits the State to prohibit sacramental peyote use, and thus to deny unemployment benefits to persons discharged for such use. Pp. 494 U. S. 876 -890. (a) Although a State would be "prohibiting the free exercise [of religion]" in violation of the Clause if it sought to ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons. See, e.g., Reynolds v. United States, 98 U. S. 145 , 98 U. S. 166 -167. The only decisions in which this Court has held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action are distinguished on the ground that they involved not the Free Exercise Clause alone, but that Clause in conjunction with other constitutional Page 494 U. S. 873 protections. See, e.g., Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 304 -307; Wisconsin v. Yoder, 406 U. S. 205 . Pp. 494 U. S. 876 -882. (b) Respondents' claim for a religious exemption from the Oregon law cannot be evaluated under the balancing test set forth in the line of cases following Sherbert v. Verner, 374 U. S. 398 , 374 U. S. 402 -403, whereby governmental actions that substantially burden a religious practice must be justified by a "compelling governmental interest." That test was developed in a context -- unemployment compensation eligibility rules -- that lent itself to individualized governmental assessment of the reasons for the relevant conduct. The test is inapplicable to an across-the-board criminal prohibition on a particular form of conduct. A holding to the contrary would create an extraordinary right to ignore generally applicable laws that are not supported by "compelling governmental interest" on the basis of religious belief. Nor could such a right be limited to situations in which the conduct prohibited is "central" to the individual's religion, since that would enmesh judges in an impermissible inquiry into the centrality of particular beliefs or practices to a faith. Cf. Hernandez v. Commissioner, 490 U. S. 680 , 490 U. S. 699 . Thus, although it is constitutionally permissible to exempt sacramental peyote use from the operation of drug laws, it is not constitutionally required. Pp. 494 U. S. 882 -890. 307 Or. 68, 763 P.2d 146 , reversed. SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, STEVENS, and KENNEDY, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment, in Parts I and II of which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined without concurring in the judgment, post, p. 494 U. S. 891 . BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 494 U. S. 907 . Page 494 U. S. 874 Justice SCALIA delivered the opinion of the Court. This case requires us to decide whether the Free Exercise Clause of the First Amendment permits the State of Oregon to include religiously inspired peyote use within the reach of its general criminal prohibition on use of that drug, and thus permits the State to deny unemployment benefits to persons dismissed from their jobs because of such religiously inspired use. I Oregon law prohibits the knowing or intentional possession of a "controlled substance" unless the substance has been prescribed by a medical practitioner. Ore.Rev.Stat. § 475.992(4) (1987). The law defines "controlled substance" as a drug classified in Schedules I through V of the Federal Controlled Substances Act, 21 U.S.C. §§ 811-812 (1982 ed. and Supp. V), as modified by the State Board of Pharmacy. Ore.Rev.Stat. § 475.005(6) (1987). Persons who violate this provision by possessing a controlled substance listed on Schedule I are "guilty of a Class B felony." § 475.992(4)(a). As compiled by the State Board of Pharmacy under its statutory authority, see Ore.Rev.Stat. § 475.035 (1987), Schedule I contains the drug peyote, a hallucinogen derived from the plant Lophophorawilliamsii Lemaire. Ore.Admin. Rule 855-80-021(3)(s) (1988). Respondents Alfred Smith and Galen Black were fired from their jobs with a private drug rehabilitation organization because they ingested peyote for sacramental purposes at a ceremony of the Native American Church, of which both are members. When respondents applied to petitioner Employment Division for unemployment compensation, they were determined to be ineligible for benefits because they had been discharged for work-related "misconduct". The Oregon Court of Appeals reversed that determination, holding that the denial of benefits violated respondents' free exercise rights under the First Amendment. Page 494 U. S. 875 On appeal to the Oregon Supreme Court, petitioner argued that the denial of benefits was permissible because respondents' consumption of peyote was a crime under Oregon law. The Oregon Supreme Court reasoned, however, that the criminality of respondents' peyote use was irrelevant to resolution of their constitutional claim -- since the purpose of the "misconduct" provision under which respondents had been disqualified was not to enforce the State's criminal laws, but to preserve the financial integrity of the compensation fund, and since that purpose was inadequate to justify the burden that disqualification imposed on respondents' religious practice. Citing our decisions in Sherbert v. Verner, 374 U. S. 398 (1963), and Thomas v. Review Board, Indiana Employment Security Div., 450 U. S. 707 (1981), the court concluded that respondents were entitled to payment of unemployment benefits. Smith v. Employment Div., Dept. of Human Resources, 301 Or. 209, 217-219, 721 P.2d 445 , 449-450 (1986). We granted certiorari. 480 U.S. 916 (1987). Before this Court in 1987, petitioner continued to maintain that the illegality of respondents' peyote consumption was relevant to their constitutional claim. We agreed, concluding that "if a State has prohibited through its criminal laws certain kinds of religiously motivated conduct without violating the First Amendment, it certainly follows that it may impose the lesser burden of denying unemployment compensation benefits to persons who engage in that conduct." Employment Div., Dept. of Human Resources of Oregon v. Smith, 485 U. S. 660 , 485 U. S. 670 (1988) ( Smith I ). We noted, however, that the Oregon Supreme Court had not decided whether respondents' sacramental use of peyote was in fact proscribed by Oregon's controlled substance law, and that this issue was a matter of dispute between the parties. Being "uncertain about the legality of the religious use of peyote in Oregon," we determined that it would not be "appropriate for us to decide whether the practice is protected by the Federal Constitution." Id. at 485 U. S. 673 . Accordingly, we Page 494 U. S. 876 vacated the judgment of the Oregon Supreme Court and remanded for further proceedings. Id. at 485 U. S. 674 . On remand, the Oregon Supreme Court held that respondents' religiously inspired use of peyote fell within the prohibition of the Oregon statute, which "makes no exception for the sacramental use" of the drug. 307 Or. 68, 72-73, 763 P.2d 146 , 148 (1988). It then considered whether that prohibition was valid under the Free Exercise Clause, and concluded that it was not. The court therefore reaffirmed its previous ruling that the State could not deny unemployment benefits to respondents for having engaged in that practice. We again granted certiorari. 489 U.S. 1077 (1989). II Respondents' claim for relief rests on our decisions in Sherbert v. Verner, supra, Thomas v. Review Board, Indiana Employment Security Div., supra, and Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U. S. 136 (1987), in which we held that a State could not condition the availability of unemployment insurance on an individual's willingness to forgo conduct required by his religion. As we observed in Smith I, however, the conduct at issue in those cases was not prohibited by law. We held that distinction to be critical, for "if Oregon does prohibit the religious use of peyote, and if that prohibition is consistent with the Federal Constitution, there is no federal right to engage in that conduct in Oregon," and "the State is free to withhold unemployment compensation from respondents for engaging in work-related misconduct, despite its religious motivation." 485 U.S. at 485 U. S. 672 . Now that the Oregon Supreme Court has confirmed that Oregon does prohibit the religious use of peyote, we proceed to consider whether that prohibition is permissible under the Free Exercise Clause. A The Free Exercise Clause of the First Amendment, which has been made applicable to the States by incorporation into Page 494 U. S. 877 the Fourteenth Amendment, see Cantwell v. Connecticut, 310 U. S. 296 , 303 (1940), provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . . " U.S. Const. Am. I (emphasis added). The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires. Thus, the First Amendment obviously excludes all "governmental regulation of religious beliefs as such." Sherbert v. Verner, supra, 374 U.S. at 374 U. S. 402 . The government may not compel affirmation of religious belief, see Torcaso v. Watkins, 367 U. S. 488 (1961), punish the expression of religious doctrines it believes to be false, United States v. Ballard, 322 U. S. 78 , 322 U. S. 86 -88 (1944), impose special disabilities on the basis of religious views or religious status, see McDaniel v. Paty, 435 U. S. 618 (1978); Fowler v. Rhode Island, 345 U. S. 67 , 345 U. S. 69 (1953); cf. Larson v. Valente, 456 U. S. 228 , 456 U. S. 245 (1982), or lend its power to one or the other side in controversies over religious authority or dogma, see Presbyterian Church v. Hull Church, 393 U. S. 440 , 393 U. S. 445 -452 (1969); Kedroff v. St. Nicholas Cathedral, 344 U. S. 94 , 344 U. S. 95 -119 (1952); Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U. S. 696 , 426 U. S. 708 -725 (1976). But the "exercise of religion" often involves not only belief and profession but the performance of (or abstention from) physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation. It would be true, we think (though no case of ours has involved the point), that a state would be "prohibiting the free exercise [of religion]" if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display. It would doubtless be unconstitutional, for example, to ban the casting of "statues that are to be used Page 494 U. S. 878 for worship purposes," or to prohibit bowing down before a golden calf. Respondents in the present case, however, seek to carry the meaning of "prohibiting the free exercise [of religion]" one large step further. They contend that their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice, and that is concededly constitutional as applied to those who use the drug for other reasons. They assert, in other words, that "prohibiting the free exercise [of religion]" includes requiring any individual to observe a generally applicable law that requires (or forbids) the performance of an act that his religious belief forbids (or requires). As a textual matter, we do not think the words must be given that meaning. It is no more necessary to regard the collection of a general tax, for example, as "prohibiting the free exercise [of religion]" by those citizens who believe support of organized government to be sinful than it is to regard the same tax as "abridging the freedom . . . of the press" of those publishing companies that must pay the tax as a condition of staying in business. It is a permissible reading of the text, in the one case as in the other, to say that, if prohibiting the exercise of religion (or burdening the activity of printing) is not the object of the tax, but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended. Compare Citizen Publishing Co. v. United States, 394 U. S. 131 , 139 (1969) (upholding application of antitrust laws to press), with Grosjean v. American Press Co., 297 U. S. 233 , 297 U. S. 250 -251 (1936) (striking down license tax applied only to newspapers with weekly circulation above a specified level); see generally Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U. S. 575 , 460 U. S. 581 (1983). Our decisions reveal that the latter reading is the correct one. We have never held that an individual's religious beliefs Page 494 U. S. 879 excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. As described succinctly by Justice Frankfurter in Minersville School Dist. Bd. of Educ. v. Gobitis, 310 U. S. 586 , 310 U. S. 594 -595 (1940): "Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities." (Footnote omitted.) We first had occasion to assert that principle in Reynolds v. United States, 98 U. S. 145 (1879), where we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. "Laws," we said, "are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." Id. at 166- 98 U. S. 167 . Subsequent decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a "valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." United States v. Lee, 455 U. S. 252 , 455 U. S. 263 , n. 3 (1982) (STEVENS, J., concurring in judgment); see Minersville School Dist. Bd. of Educ. v. Gobitis, supra, 310 U.S. at 310 U. S. 595 (collecting cases). In Prince v. Massachusetts, 321 U. S. 158 (1944), we held that a mother could be prosecuted under the child labor laws Page 494 U. S. 880 for using her children to dispense literature in the streets, her religious motivation notwithstanding. We found no constitutional infirmity in "excluding [these children] from doing there what no other children may do." Id. at 321 U. S. 171 . In Braunfeld v. Brown, 366 U. S. 599 (1961) (plurality opinion), we upheld Sunday closing laws against the claim that they burdened the religious practices of persons whose religions compelled them to refrain from work on other days. In Gillette v. United States, 401 U. S. 437 , 401 U. S. 461 (1971), we sustained the military selective service system against the claim that it violated free exercise by conscripting persons who opposed a particular war on religious grounds. Our most recent decision involving a neutral, generally applicable regulatory law that compelled activity forbidden by an individual's religion was United States v. Lee, 455 U.S. at 455 U. S. 258 -261. There, an Amish employer, on behalf of himself and his employees, sought exemption from collection and payment of Social Security taxes on the ground that the Amish faith prohibited participation in governmental support programs. We rejected the claim that an exemption was constitutionally required. There would be no way, we observed, to distinguish the Amish believer's objection to Social Security taxes from the religious objections that others might have to the collection or use of other taxes. "If, for example, a religious adherent believes war is a sin, and if a certain percentage of the federal budget can be identified as devoted to war-related activities, such individuals would have a similarly valid claim to be exempt from paying that percentage of the income tax. The tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief." Id. at 455 U. S. 260 . Cf. Hernandez v. Commissioner, 490 U. S. 680 (1989) (rejecting free exercise challenge to payment of income taxes alleged to make religious activities more difficult). Page 494 U. S. 881 The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, see Cantwell v. Connecticut, 310 U.S. at 304, 310 U. S. 307 (invalidating a licensing system for religious and charitable solicitations under which the administrator had discretion to deny a license to any cause he deemed nonreligious); Murdock v. Pennsylvania, 319 U. S. 105 (1943) (invalidating a flat tax on solicitation as applied to the dissemination of religious ideas); Follett v. McCormick, 321 U. S. 573 (1944) (same), or the right of parents, acknowledged in Pierce v. Society of Sisters, 268 U. S. 510 (1925), to direct the education of their children, see Wisconsin v. Yoder, 406 U. S. 205 (1972) (invalidating compulsory school attendance laws as applied to Amish parents who refused on religious grounds to send their children to school). [ Footnote 1 ] Page 494 U. S. 882 Some of our cases prohibiting compelled expression, decided exclusively upon free speech grounds, have also involved freedom of religion, cf. Wooley v. Maynard, 430 U. S. 705 (1977) (invalidating compelled display of a license plate slogan that offended individual religious beliefs); West Virginia Board of Education v. Barnette, 319 U. S. 624 (1943) (invalidating compulsory flag salute statute challenged by religious objectors). And it is easy to envision a case in which a challenge on freedom of association grounds would likewise be reinforced by Free Exercise Clause concerns. Cf. Roberts v. United States Jaycees, 468 U. S. 609 , 468 U. S. 622 (1983) ("An individual's freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State [if] a correlative freedom to engage in group effort toward those ends were not also guaranteed."). The present case does not present such a hybrid situation, but a free exercise claim unconnected with any communicative activity or parental right. Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now. There being no contention that Oregon's drug law represents an attempt to regulate religious beliefs, the communication of religious beliefs, or the raising of one's children in those beliefs, the rule to which we have adhered ever since Reynolds plainly controls. "Our cases do not at their farthest reach support the proposition that a stance of conscientious opposition relieves an objector from any colliding duty fixed by a democratic government." Gillette v. United States, supra, 401 U.S. at 401 U. S. 461 . B Respondents argue that, even though exemption from generally applicable criminal laws need not automatically be extended to religiously motivated actors, at least the claim for a Page 494 U. S. 883 religious exemption must be evaluated under the balancing test set forth in Sherbert v. Verner, 374 U. S. 398 (1963). Under the Sherbert test, governmental actions that substantially burden a religious practice must be justified by a compelling governmental interest. See id. at 374 U. S. 402 -403; see also Hernandez v. Commissioner, supra, 490 U.S. at 490 U. S. 699 . Applying that test, we have, on three occasions, invalidated state unemployment compensation rules that conditioned the availability of benefits upon an applicant's willingness to work under conditions forbidden by his religion. See Sherbert v. Verner, supra; Thomas v. Review Board, Indiana Employment Div., 450 U. S. 707 (1981); Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U. S. 136 (1987). We have never invalidated any governmental action on the basis of the Sherbert test except the denial of unemployment compensation. Although we have sometimes purported to apply the Sherbert test in contexts other than that, we have always found the test satisfied, see United States v. Lee, 455 U. S. 252 (1982); Gillette v. United States, 401 U. S. 437 (1971). In recent years we have abstained from applying the Sherbert test (outside the unemployment compensation field) at all. In Bowen v. Roy, 476 U. S. 693 (1986), we declined to apply Sherbert analysis to a federal statutory scheme that required benefit applicants and recipients to provide their Social Security numbers. The plaintiffs in that case asserted that it would violate their religious beliefs to obtain and provide a Social Security number for their daughter. We held the statute's application to the plaintiffs valid regardless of whether it was necessary to effectuate a compelling interest. See id. at 476 U. S. 699 -701. In Lyng v. Northwest Indian Cemetery Protective Assn., 485 U. S. 439 (1988), we declined to apply Sherbert analysis to the Government's logging and road construction activities on lands used for religious purposes by several Native American Tribes, even though it was undisputed that the activities "could have devastating effects on traditional Indian religious practices," 485 U.S. at 485 U. S. 451 . Page 494 U. S. 884 In Goldman v. Weinberger, 475 U. S. 503 (1986), we rejected application of the Sherbert test to military dress regulations that forbade the wearing of yarmulkes. In O'Lone v. Estate of Shabazz, 482 U. S. 342 (1987), we sustained, without mentioning the Sherbert test, a prison's refusal to excuse inmates from work requirements to attend worship services. Even if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field, we would not apply it to require exemptions from a generally applicable criminal law. The Sherbert test, it must be recalled, was developed in a context that lent itself to individualized governmental assessment of the reasons for the relevant conduct. As a plurality of the Court noted in Roy, a distinctive feature of unemployment compensation programs is that their eligibility criteria invite consideration of the particular circumstances behind an applicant's unemployment: "The statutory conditions [in Sherbert and Thomas ] provided that a person was not eligible for unemployment compensation benefits if, 'without good cause,' he had quit work or refused available work. The 'good cause' standard created a mechanism for individualized exemptions." Bowen v. Roy, supra, 476 U.S. at 476 U. S. 708 (opinion of Burger, C.J., joined by Powell and REHNQUIST, JJ.). See also Sherbert, supra, 374 U.S. at 374 U. S. 401 n. 4 (reading state unemployment compensation law as allowing benefits for unemployment caused by at least some "personal reasons"). As the plurality pointed out in Roy, our decisions in the unemployment cases stand for the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of "religious hardship" without compelling reason. Bowen v. Roy, supra, 476 U.S. at 476 U. S. 708 . Whether or not the decisions are that limited, they at least have nothing to do with an across-the-board criminal prohibition on a particular form of conduct. Although, as noted earlier, we have sometimes used the Sherbert test to analyze free exercise challenges to such laws, see United States v. Page 494 U. S. 885 Lee, supra, 455 U.S. at 455 U. S. 257 -260; Gillette v. United States, supra, 401 U.S. at 401 U. S. 462 , we have never applied the test to invalidate one. We conclude today that the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the test inapplicable to such challenges. The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, "cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development." Lyng, supra, 485 U.S. at 485 U. S. 451 . To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is "compelling" -- permitting him, by virtue of his beliefs, "to become a law unto himself," Reynolds v. United States, 98 U.S. at 98 U. S. 167 -- contradicts both constitutional tradition and common sense. [ Footnote 2 ] The "compelling government interest" requirement seems benign, because it is familiar from other fields. But using it as the standard that must be met before the government may accord different treatment on the basis of race, see, e.g., Page 494 U. S. 886 Palmore v. Sidoti, 466 U. S. 429 , 466 U. S. 432 (1984), or before the government may regulate the content of speech, see, e.g., Sable Communications of California v. FCC, 492 U. S. 115 (1989), is not remotely comparable to using it for the purpose asserted here. What it produces in those other fields -- equality of treatment, and an unrestricted flow of contending speech -- are constitutional norms; what it would produce here -- a private right to ignore generally applicable laws -- is a constitutional anomaly. [ Footnote 3 ] Nor is it possible to limit the impact of respondents' proposal by requiring a "compelling state interest" only when the conduct prohibited is "central" to the individual's religion. Cf. Lyng v. Northwest Indian Cemetery Protective Assn., supra, 485 U.S. at 485 U. S. 474 -476 (BRENNAN, J., dissenting). It is no Page 494 U. S. 887 more appropriate for judges to determine the "centrality" of religious beliefs before applying a "compelling interest" test in the free exercise field than it would be for them to determine the "importance" of ideas before applying the "compelling interest" test in the free speech field. What principle of law or logic can be brought to bear to contradict a believer's assertion that a particular act is "central" to his personal faith? Judging the centrality of different religious practices is akin to the unacceptable "business of evaluating the relative merits of differing religious claims." United States v. Lee, 455 U.S. at 455 U. S. 263 n. 2 (STEVENS, J., concurring). As we reaffirmed only last Term, "[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretation of those creeds." Hernandez v. Commissioner, 490 U.S. at 490 U. S. 699 . Repeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim. See, e.g., Thomas v. Review Board, Indiana Employment Security Div., 450 U.S. at 450 U. S. 716 ; Presbyterian Church v. Hull Church, 393 U.S. at 393 U. S. 450 ; Jones v. Wolf, 443 U. S. 595 , 443 U. S. 602 -606 (1979); United States v. Ballard, 322 U. S. 78 , 322 U. S. 85 -87 (1944). [ Footnote 4 ] Page 494 U. S. 888 If the "compelling interest" test is to be applied at all, then, it must be applied across the board, to all actions thought to be religiously commanded. Moreover, if "compelling interest" really means what it says (and watering it down here would subvert its rigor in the other fields where it is applied), many laws will not meet the test. Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society's diversity of religious beliefs, and its determination to coerce or suppress none of them. Precisely because "we are a cosmopolitan nation made up of people of almost every conceivable religious preference," Braunfeld v. Brown, 366 U.S. at 366 U. S. 606 , and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind -- ranging from Page 494 U. S. 889 compulsory military service, see, e.g., Gillette v. United States, 401 U. S. 437 (1971), to the payment of taxes, see, e.g., United States v. Lee, supra; to health and safety regulation such as manslaughter and child neglect laws, see, e.g., Funkhouser v. State, 763 P.2d 695 (Okla.Crim.App.1988), compulsory vaccination laws, see, e.g., Cude v. State, 237 Ark. 927, 377 S.W.2d 816 (1964), drug laws, see, e.g., Olsen v. Drug Enforcement Administration, 279 U.S.App.D.C. 1, 878 F.2d 1458 (1989), and traffic laws, see Cox v. New Hampshire, 312 U. S. 569 (1941); to social welfare legislation such as minimum wage laws, see Susan and Tony Alamo Foundation v. Secretary of Labor, 471 U. S. 290 (1985), child labor laws, see Prince v. Massachusetts, 321 U. S. 158 (1944), animal cruelty laws, see, e.g., Church of the Lukumi Babalu Aye Inc. v. City of Hialeah, 723 F. Supp. 1467 (S.D.Fla.1989), cf. State v. Massey, 229 N.C. 734, 51 S.E.2d 179, appeal dism'd, 336 U.S. 942 (1949), environmental protection laws, see United States v. Little, 638 F. Supp. 337 (Mont.1986), and laws providing for equality of opportunity for the races, see, e.g., Bob Jones University v. United States, 461 U. S. 574 , 461 U. S. 603 -604 (1983). The First Amendment's protection of religious liberty does not require this. [ Footnote 5 ] Page 494 U. S. 890 Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process. Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well. It is therefore not surprising that a number of States have made an exception to their drug laws for sacramental peyote use. See, e.g., Ariz.Rev.Stat.Ann. § 13-3402(B)(1) (3) (1989); Colo.Rev.Stat. § 12-22-317(3) (1985); N.M.Stat.Ann. § 30-31-6(D) (Supp.1989). But to say that a nondiscriminatory religious practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required, and that the appropriate occasions for its creation can be discerned by the courts. It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs. * * * * Because respondents' ingestion of peyote was prohibited under Oregon law, and because that prohibition is constitutional, Oregon may, consistent with the Free Exercise Clause, deny respondents unemployment compensation when their dismissal results from use of the drug. The decision of the Oregon Supreme Court is accordingly reversed. It is so ordered. Page 494 U. S. 891 [ Footnote 1 ] Both lines of cases have specifically adverted to the non-free exercise principle involved. Cantwell, for example, observed that "[t]he fundamental law declares the interest of the United States that the free exercise of religion be not prohibited and that freedom to communicate information and opinion be not abridged." 310 U.S. at 310 U. S. 307 . Murdock said: "We do not mean to say that religious groups and the press are free from all financial burdens of government. . . . We have here something quite different, for example, from a tax on the income of one who engages in religious activities or a tax on property used or employed in connection with those activities. It is one thing to impose a tax on the income or property of a preacher. It is quite another thing to exact a tax from him for the privilege of delivering a sermon. . . . Those who can deprive religious groups of their colporteurs can take from them a part of the vital power of the press which has survived from the Reformation." 319 U.S. at 319 U. S. 112 . Yoder said that "the Court's holding in Pierce stands as a charter of the rights of parents to direct the religious upbringing of their children. And, when the interests of parenthood are combined with a free exercise claim of the nature revealed by this record, more than merely a 'reasonable relation to some purpose within the competency of the State' is required to sustain the validity of the State's requirement under the First Amendment." 406 U.S. at 406 U. S. 233 . [ Footnote 2 ] Justice O'CONNOR seeks to distinguish Lyng v. Northwest Indian Cemetery Protective Assn., supra, and Bowen v. Roy, supra, on the ground that those cases involved the government's conduct of "its own internal affairs," which is different because, as Justice Douglas said in Sherbert, "'the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.'" Post at 494 U. S. 900 (O'CONNOR, J., concurring), quoting Sherbert, supra, at 374 U. S. 412 (Douglas, J., concurring). But since Justice Douglas voted with the majority in Sherbert, that quote obviously envisioned that what "the government cannot do to the individual" includes not just the prohibition of an individual's freedom of action through criminal laws, but also the running of its programs (in Sherbert, state unemployment compensation) in such fashion as to harm the individual's religious interests. Moreover, it is hard to see any reason in principle or practicality why the government should have to tailor its health and safety laws to conform to the diversity of religious belief, but should not have to tailor its management of public lands, Lyng, supra, or its administration of welfare programs, Roy, supra. [ Footnote 3 ] Justice O'CONNOR suggests that "[t]here is nothing talismanic about neutral laws of general applicability," and that all laws burdening religious practices should be subject to compelling interest scrutiny because "the First Amendment unequivocally makes freedom of religion, like freedom from race discrimination and freedom of speech, a 'constitutional norm,' not an 'anomaly.'" Post at 494 U. S. 901 (O'CONNOR, J., concurring). But this comparison with other fields supports, rather than undermines, the conclusion we draw today. Just as we subject to the most exacting scrutiny laws that make classifications based on race, see Palmore v. Sidoti, supra, or on the content of speech, see Sable Communications, supra, so too we strictly scrutinize governmental classifications based on religion, see McDaniel v. Paty, 435 U. S. 618 (1978); see also Torcaso v. Watkins, 367 U. S. 488 (1961). But we have held that race-neutral laws that have the effect of disproportionately disadvantaging a particular racial group do not thereby become subject to compelling interest analysis under the Equal Protection Clause, see Washington v. Davis, 426 U. S. 229 (1976) (police employment examination); and we have held that generally applicable laws unconcerned with regulating speech that have the effect of interfering with speech do not thereby become subject to compelling interest analysis under the First Amendment, see Citizen Publishing Co. v. United States, 394 U. S. 131 , 394 U. S. 139 (1969) (antitrust laws). Our conclusion that generally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interest is the only approach compatible with these precedents. [ Footnote 4 ] While arguing that we should apply the compelling interest test in this case, Justice O'CONNOR nonetheless agrees that "our determination of the constitutionality of Oregon's general criminal prohibition cannot, and should not, turn on the centrality of the particular religious practice at issue," post at 494 U. S. 906 -907 (O'CONNOR, J., concurring). This means, presumably, that compelling interest scrutiny must be applied to generally applicable laws that regulate or prohibit any religiously motivated activity, no matter how unimportant to the claimant's religion. Earlier in her opinion, however, Justice O'CONNOR appears to contradict this, saying that the proper approach is "to determine whether the burden on the specific plaintiffs before us is constitutionally significant and whether the particular criminal interest asserted by the State before us is compelling." Post at 494 U. S. 899 . "Constitutionally significant burden" would seem to be "centrality" under another name. In any case, dispensing with a "centrality" inquiry is utterly unworkable. It would require, for example, the same degree of "compelling state interest" to impede the practice of throwing rice at church weddings as to impede the practice of getting married in church. There is no way out of the difficulty that, if general laws are to be subjected to a "religious practice" exception, both the importance of the law at issue and the centrality of the practice at issue must reasonably be considered. Nor is this difficulty avoided by Justice BLACKMUN's assertion that "although courts should refrain from delving into questions of whether, as a matter of religious doctrine, a particular practice is 'central' to the religion, I do not think this means that the courts must turn a blind eye to the severe impact of a State's restrictions on the adherents of a minority religion." Post at 494 U. S. 919 (dissenting opinion). As Justice BLACKMUN's opinion proceeds to make clear, inquiry into "severe impact" is no different from inquiry into centrality. He has merely substituted for the question "How important is X to the religious adherent?" the question "How great will be the harm to the religious adherent if X is taken away?" There is no material difference. [ Footnote 5 ] Justice O'CONNOR contends that the "parade of horribles" in the text only "demonstrates . . . that courts have been quite capable of strik[ing] sensible balances between religious liberty and competing state interests." Post at 494 U. S. 902 (O'CONNOR, J., concurring). But the cases we cite have struck "sensible balances" only because they have all applied the general laws, despite the claims for religious exemption. In any event, Justice O'CONNOR mistakes the purpose of our parade: it is not to suggest that courts would necessarily permit harmful exemptions from these laws (though they might), but to suggest that courts would constantly be in the business of determining whether the "severe impact" of various laws on religious practice (to use Justice BLACKMUN's terminology) or the "constitutiona[l] significan[ce]" of the "burden on the particular plaintiffs" (to use Justice O'CONNOR's terminology) suffices to permit us to confer an exemption. It is a parade of horribles because it is horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice. Justice O'CONNOR, with whom Justice BRENNAN, Justice MARSHALL, and Justice BLACKMUN join as to Parts I and II, concurring in the judgment. * Although I agree with the result the Court reaches in this case, I cannot join its opinion. In my view, today's holding dramatically departs from well settled First Amendment jurisprudence, appears unnecessary to resolve the question presented, and is incompatible with our Nation's fundamental commitment to individual religious liberty. I At the outset, I note that I agree with the Court's implicit determination that the constitutional question upon which we granted review -- whether the Free Exercise Clause protects a person's religiously motivated use of peyote from the reach of a State's general criminal law prohibition -- is properly presented in this case. As the Court recounts, respondents Alfred Smith and Galen Black were denied unemployment compensation benefits because their sacramental use of peyote constituted work-related "misconduct," not because they violated Oregon's general criminal prohibition against possession of peyote. We held, however, in Employment Div., Dept. of Human Resources of Oregon v. Smith, 485 U. S. 660 (1988) ( Smith I ), that whether a State may, consistent with federal law, deny unemployment compensation benefits to persons for their religious use of peyote depends on whether the State, as a matter of state law, has criminalized the underlying conduct. See id. at 485 U. S. 670 -672. The Oregon Supreme Court, on remand from this Court, concluded that "the Oregon statute against possession of controlled substances, which include peyote, makes no exception for the sacramental use of peyote." 307 Or. 68, 72-73, 763 P.2d 146 , 148 (1988) (footnote omitted). Page 494 U. S. 892 Respondents contend that, because the Oregon Supreme Court declined to decide whether the Oregon Constitution prohibits criminal prosecution for the religious use of peyote, see id. at 73, n. 3, 763 P.2d at 148, n. 3, any ruling on the federal constitutional question would be premature. Respondents are of course correct that the Oregon Supreme Court may eventually decide that the Oregon Constitution requires the State to provide an exemption from its general criminal prohibition for the religious use of peyote. Such a decision would then reopen the question whether a State may nevertheless deny unemployment compensation benefits to claimants who are discharged for engaging in such conduct. As the case comes to us today, however, the Oregon Supreme Court has plainly ruled that Oregon's prohibition against possession of controlled substances does not contain an exemption for the religious use of peyote. In light of our decision in Smith I, which makes this finding a "necessary predicate to a correct evaluation of respondents' federal claim," 485 U.S. at 485 U. S. 672 , the question presented and addressed is properly before the Court. II The Court today extracts from our long history of free exercise precedents the single categorical rule that "if prohibiting the exercise of religion . . . is . . . merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended." Ante at 494 U. S. 878 (citations omitted). Indeed, the Court holds that, where the law is a generally applicable criminal prohibition, our usual free exercise jurisprudence does not even apply. Ante at 494 U. S. 884 . To reach this sweeping result, however, the Court must not only give a strained reading of the First Amendment but must also disregard our consistent application of free exercise doctrine to cases involving generally applicable regulations that burden religious conduct. Page 494 U. S. 893 A The Free Exercise Clause of the First Amendment commands that "Congress shall make no law . . . prohibiting the free exercise [of religion]." In Cantwell v. Connecticut, 310 U. S. 296 (1940), we held that this prohibition applies to the States by incorporation into the Fourteenth Amendment and that it categorically forbids government regulation of religious beliefs. Id. at 310 U. S. 303 . As the Court recognizes, however, the "free exercise" of religion often, if not invariably, requires the performance of (or abstention from) certain acts. Ante at 494 U. S. 877 ; cf. 3 A New English Dictionary on Historical Principles 401-402 (J. Murray, ed. 1897) (defining "exercise" to include "[t]he practice and performance of rites and ceremonies, worship, etc.; the right or permission to celebrate the observances (of a religion)" and religious observances such as acts of public and private worship, preaching, and prophesying). "[B]elief and action cannot be neatly confined in logic-tight compartments." Wisconsin v. Yoder, 406 U. S. 205 , 406 U. S. 220 (1972). Because the First Amendment does not distinguish between religious belief and religious conduct, conduct motivated by sincere religious belief, like the belief itself, must therefore be at least presumptively protected by the Free Exercise Clause. The Court today, however, interprets the Clause to permit the government to prohibit, without justification, conduct mandated by an individual's religious beliefs, so long as that prohibition is generally applicable. Ante at 494 U. S. . But a law that prohibits certain conduct -- conduct that happens to be an act of worship for someone -- manifestly does prohibit that person's free exercise of his religion. A person who is barred from engaging in religiously motivated conduct is barred from freely exercising his religion. Moreover, that person is barred from freely exercising his religion regardless of whether the law prohibits the conduct only when engaged in for religious reasons, only by members of that religion, or by all persons. It is difficult to deny that a law that prohibits Page 494 U. S. 894 religiously motivated conduct, even if the law is generally applicable, does not at least implicate First Amendment concerns. The Court responds that generally applicable laws are "one large step" removed from laws aimed at specific religious practices. Ibid. The First Amendment, however, does not distinguish between laws that are generally applicable and laws that target particular religious practices. Indeed, few States would be so naive as to enact a law directly prohibiting or burdening a religious practice as such. Our free exercise cases have all concerned generally applicable laws that had the effect of significantly burdening a religious practice. If the First Amendment is to have any vitality, it ought not be construed to cover only the extreme and hypothetical situation in which a State directly targets a religious practice. As we have noted in a slightly different context, "'[s]uch a test has no basis in precedent and relegates a serious First Amendment value to the barest level of minimum scrutiny that the Equal Protection Clause already provides.'" Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U. S. 136 , 480 U. S. 141 -142 (1987) (quoting Bowen v. Roy, 476 U. S. 693 , 476 U. S. 727 (1986) (opinion concurring in part and dissenting in part)). To say that a person's right to free exercise has been burdened, of course, does not mean that he has an absolute right to engage in the conduct. Under our established First Amendment jurisprudence, we have recognized that the freedom to act, unlike the freedom to believe, cannot be absolute. See, e.g., Cantwell, supra, 310 U.S. at 310 U. S. 304 ; Reynolds v. United States, 98 U. S. 145 , 98 U. S. 161 -167. Instead, we have respected both the First Amendment's express textual mandate and the governmental interest in regulation of conduct by requiring the Government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest. See Hernandez v. Commissioner, 490 U. S. 680 , Page 494 U. S. 895 490 U. S. 699 (1989); Hobbie, supra, 480 U.S. at 480 U. S. 141 ; United States v. Lee, 455 U. S. 252 , 455 U. S. 257 -258 (1982); Thomas v. Review Bd., Indiana Employment Security Div., 450 U. S. 707 , 450 U. S. 718 (1981); McDaniel v. Paty, 435 U. S. 618 , 435 U. S. 626 -629 (1978) (plurality opinion); Yoder, supra, 406 U.S. at 406 U. S. 215 ; Gillette v. United States, 401 U. S. 437 , 401 U. S. 462 (1971); Sherbert v. Verner, 374 U. S. 398 , 374 U. S. 403 (1963); see also Bowen v. Roy, supra, 476 U.S. at 476 U. S. 732 (opinion concurring in part and dissenting in part); West Virginia State Bd. of Educ. v. Barnette, 319 U. S. 624 , 319 U. S. 639 (1943). The compelling interest test effectuates the First Amendment's command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling governmental interests "of the highest order," Yoder, supra, 406 U.S. at 406 U. S. 215 . "Only an especially important governmental interest pursued by narrowly tailored means can justify exacting a sacrifice of First Amendment freedoms as the price for an equal share of the rights, benefits, and privileges enjoyed by other citizens." Roy, supra, 476 U.S. at 476 U. S. 728 (opinion concurring in part and dissenting in part). The Court attempts to support its narrow reading of the Clause by claiming that "[w]e have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State IS free to regulate." Ante at 494 U. S. 878 -879. But as the Court later notes, as it must, in cases such as Cantwell and Yoder, we have in fact interpreted the Free Exercise Clause to forbid application of a generally applicable prohibition to religiously motivated conduct. See Cantwell, supra, 310 U.S. at 310 U. S. 304 -307; Yoder, supra, 406 U.S. at 406 U. S. 214 -234. Indeed, in Yoder we expressly rejected the interpretation the Court now adopts: "[O]ur decisions have rejected the idea that religiously grounded conduct is always outside the protection of the Free Exercise Clause. It is true that activities of individuals, even when religiously based, are often subject Page 494 U. S. 896 to regulation by the States in the exercise of their undoubted power to promote the health, safety, and general welfare, or the Federal Government in the exercise of its delegated powers. But to agree that religiously grounded conduct must often be subject to the broad police power of the State is not to deny that there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability. . . . " ". . . A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for government neutrality if it unduly burdens the free exercise of religion." 406 U.S. at 406 U. S. 219 -220 (emphasis added; citations omitted). The Court endeavors to escape from our decisions in Cantwell and Yoder by labeling them "hybrid" decisions, ante at 494 U. S. 892 , but there is no denying that both cases expressly relied on the Free Exercise Clause, see Cantwell, 310 U.S. at 310 U. S. 303 -307; Yoder, 406 U.S. at 406 U. S. 219 -229, and that we have consistently regarded those cases as part of the mainstream of our free exercise jurisprudence. Moreover, in each of the other cases cited by the Court to support its categorical rule, ante at 494 U. S. 879 -880, we rejected the particular constitutional claims before us only after carefully weighing the competing interests. See Prince v. Massachusetts, 321 U. S. 158 , 321 U. S. 168 -170 (1944) (state interest in regulating children's activities justifies denial of religious exemption from child labor laws); Braunfeld v. Brown, 366 U. S. 599 , 366 U. S. 608 -609 (1961) (plurality opinion) (state interest in uniform day of rest justifies denial of religious exemption from Sunday closing law); Gillette, supra, 401 U.S. at 462 (state interest in military affairs justifies denial of religious exemption from conscription laws); Lee, supra, 455 U.S. at 455 U. S. 258 -259 (state interest in comprehensive social security system justifies denial of religious exemption from mandatory participation requirement). That we rejected the free exercise Page 494 U. S. 897 claims in those cases hardly calls into question the applicability of First Amendment doctrine in the first place. Indeed, it is surely unusual to judge the vitality of a constitutional doctrine by looking to the win-loss record of the plaintiffs who happen to come before us. B Respondents, of course, do not contend that their conduct is automatically immune from all governmental regulation simply because it is motivated by their sincere religious beliefs. The Court's rejection of that argument, ante at 494 U. S. 882 , might therefore be regarded as merely harmless dictum. Rather, respondents invoke our traditional compelling interest test to argue that the Free Exercise Clause requires the State to grant them a limited exemption from its general criminal prohibition against the possession of peyote. The Court today, however, denies them even the opportunity to make that argument, concluding that "the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the [compelling interest] test inapplicable to" challenges to general criminal prohibitions. Ante at 494 U. S. 885 . In my view, however, the essence of a free exercise claim is relief from a burden imposed by government on religious practices or beliefs, whether the burden is imposed directly through laws that prohibit or compel specific religious practices, or indirectly through laws that, in effect, make abandonment of one's own religion or conformity to the religious beliefs of others the price of an equal place in the civil community. As we explained in Thomas: "Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists." 450 U.S. at 450 U. S. 717 -718. Page 494 U. S. 898 See also Frazee v. Illinois Dept. of Employment Security, 489 U. S. 829 , 489 U. S. 832 (1989); Hobbie, 480 U.S. at 480 U. S. 141 . A State that makes criminal an individual's religiously motivated conduct burdens that individual's free exercise of religion in the severest manner possible, for it "results in the choice to the individual of either abandoning his religious principle or facing criminal prosecution." Braunfeld, supra, 366 U.S. at 366 U. S. 605 . I would have thought it beyond argument that such laws implicate free exercise concerns. Indeed, we have never distinguished between cases in which a State conditions receipt of a benefit on conduct prohibited by religious beliefs and cases in which a State affirmatively prohibits such conduct. The Sherbert compelling interest test applies in both kinds of cases. See, e.g., Lee, 455 U.S. at 455 U. S. 257 -260 (applying Sherbert to uphold social security tax liability); Gillette, 401 U.S. at 401 U. S. 462 (applying Sherbert to uphold military conscription requirement); Yoder, supra, 406 U.S. at 406 U. S. 215 -234 (applying Sherbert to strike down criminal convictions for violation of compulsory school attendance law). As I noted in Bowen v. Roy: "The fact that the underlying dispute involves an award of benefits rather than an exaction of penalties does not grant the Government license to apply a different version of the Constitution. . . . " ". . . The fact that appellees seek exemption from a precondition that the Government attaches to an award of benefits does not, therefore, generate a meaningful distinction between this case and one where appellees seek an exemption from the Government's imposition of penalties upon them." 476 U.S. at 476 U. S. 731 -732 (opinion concurring in part and dissenting in part). See also Hobbie, supra, 480 U.S. at 480 U. S. 141 -142; Sherbert, 374 U.S. at 374 U. S. 404 . I would reaffirm that principle today: a neutral criminal law prohibiting conduct that a State may legitimately regulate is, if anything, more burdensome than a neutral civil Page 494 U. S. 899 statute placing legitimate conditions on the award of a state benefit. Legislatures, of course, have always been "left free to reach actions which were in violation of social duties or subversive of good order." Reynolds, 98 U.S. at 98 U. S. 164 ; see also Yoder, 406 U.S. at 406 U. S. 219 -220; Braunfeld, 366 U.S. at 366 U. S. 603 -604. Yet because of the close relationship between conduct and religious belief, "[i]n every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom." Cantwell, 310 U.S. at 310 U. S. 304 . Once it has been shown that a government regulation or criminal prohibition burdens the free exercise of religion, we have consistently asked the Government to demonstrate that unbending application of its regulation to the religious objector "is essential to accomplish an overriding governmental interest," Lee, supra, 455 U.S. at 455 U. S. 257 -258, or represents "the least restrictive means of achieving some compelling state interest," Thomas, 450 U.S. at 450 U. S. 718 . See, e.g., Braunfeld, supra, 366 U.S. at 366 U. S. 607 ; Sherbert, supra, 374 U.S. at 374 U. S. 406 ; Yoder, supra, 406 U.S. at 406 U. S. 214 -215; Roy, 476 U.S. at 476 U. S. 728 -732 (opinion concurring in part and dissenting in part). To me, the sounder approach -- the approach more consistent with our role as judges to decide each case on its individual merits -- is to apply this test in each case to determine whether the burden on the specific plaintiffs before us is constitutionally significant, and whether the particular criminal interest asserted by the State before us is compelling. Even if, as an empirical matter, a government's criminal laws might usually serve a compelling interest in health, safety, or public order, the First Amendment at least requires a case-by-case determination of the question, sensitive to the facts of each particular claim. Cf. McDaniel, 435 U.S. at 435 U. S. 628 , n. 8 (plurality opinion) (noting application of Sherbert to general criminal prohibitions and the "delicate balancing required by our decisions in" Sherbert and Yoder ). Given the range of conduct that a State might legitimately make Page 494 U. S. 900 criminal, we cannot assume, merely because a law carries criminal sanctions and is generally applicable, that the First Amendment never requires the State to grant a limited exemption for religiously motivated conduct. Moreover, we have not "rejected" or "declined to apply" the compelling interest test in our recent cases. Ante at 494 U. S. 883 -884. Recent cases have instead affirmed that test as a fundamental part of our First Amendment doctrine. See, e.g., Hernandez, 490 U.S. at 490 U. S. 699 ; Hobbie, supra, 480 U.S. at 480 U. S. 141 -142 (rejecting Chief Justice Burger's suggestion in Roy, supra, 476 U.S. at 476 U. S. 707 -708, that free exercise claims be assessed under a less rigorous "reasonable means" standard). The cases cited by the Court signal no retreat from our consistent adherence to the compelling interest test. In both Bowen v. Roy, supra, and Lyng v. Northwest Indian Cemetary Protective Assn., 485 U. S. 439 (1988), for example, we expressly distinguished Sherbert on the ground that the First Amendment does not "require the Government itself to behave in ways that the individual believes will further his or her spiritual development. . . . The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens." Roy, supra, 476 U.S. at 476 U. S. 699 ; see Lyng, supra, 485 U.S. at 485 U. S. 449 . This distinction makes sense because "the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government." Sherbert, supra, 374 U.S. at 374 U. S. 412 (Douglas, J., concurring). Because the case sub judice, like the other cases in which we have applied Sherbert, plainly falls into the former category, I would apply those established precedents to the facts of this case. Similarly, the other cases cited by the Court for the proposition that we have rejected application of the Sherbert test outside the unemployment compensation field, ante at 494 U. S. 884 , are distinguishable because they arose in the narrow, specialized contexts in which we have not traditionally required Page 494 U. S. 901 the government to justify a burden on religious conduct by articulating a compelling interest. See Goldman v. Weinberger, 475 U. S. 503 , 475 U. S. 507 (1986) ("Our review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society"); O'Lone v. Estate of Shabazz, 482 U. S. 342 , 482 U. S. 349 (1987) ("[P]rison regulations alleged to infringe constitutional rights are judged under a reasonableness' test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights") (citation omitted). That we did not apply the compelling interest test in these cases says nothing about whether the test should continue to apply in paradigm free exercise cases such as the one presented here. The Court today gives no convincing reason to depart from settled First Amendment jurisprudence. There is nothing talismanic about neutral laws of general applicability or general criminal prohibitions, for laws neutral toward religion can coerce a person to violate his religious conscience or intrude upon his religious duties just as effectively as laws aimed at religion. Although the Court suggests that the compelling interest test, as applied to generally applicable laws, would result in a "constitutional anomaly," ante at 494 U. S. 886 , the First Amendment unequivocally makes freedom of religion, like freedom from race discrimination and freedom of speech, a "constitutional nor[m]," not an "anomaly." Ibid. Nor would application of our established free exercise doctrine to this case necessarily be incompatible with our equal protection cases. Cf. Rogers v. Lodge, 458 U. S. 613 , 458 U. S. 618 (1982) (race-neutral law that " bears more heavily on one race than another'" may violate equal protection) (citation omitted); Castaneda v. Partida, 430 U. S. 482 , 430 U. S. 492 -495 (1977) (grand jury selection). We have, in any event, recognized that the Free Exercise Clause protects values distinct from those protected by the Equal Protection Clause. See Hobbie, 480 U.S. at 480 U. S. 141 -142. As the language of the Page 494 U. S. 902 Clause itself makes clear, an individual's free exercise of religion is a preferred constitutional activity. See, e.g., McConnell, Accommodation of Religion, 1985 Sup.Ct.Rev. 1, 9 ("[T]he text of the First Amendment itself `singles out' religion for special protections"); P. Kauper, Religion and the Constitution 17 (1964). A law that makes criminal such an activity therefore triggers constitutional concern -- and heightened judicial scrutiny -- even if it does not target the particular religious conduct at issue. Our free speech cases similarly recognize that neutral regulations that affect free speech values are subject to a balancing, rather than categorical, approach. See, e.g., United States v. O'Brien, 391 U. S. 367 , 391 U. S. 377 (1968); City of Renton v. Playtime Theatres, Inc., 475 U. S. 41 , 475 U. S. 46 -47 (1986); cf. Anderson v. Celebrezze, 460 U. S. 780 , 460 U. S. 792 -794 (1983) (generally applicable laws may impinge on free association concerns). The Court's parade of horribles, ante at 494 U. S. 888 -889, not only fails as a reason for discarding the compelling interest test, it instead demonstrates just the opposite: that courts have been quite capable of applying our free exercise jurisprudence to strike sensible balances between religious liberty and competing state interests. Finally, the Court today suggests that the disfavoring of minority religions is an "unavoidable consequence" under our system of government, and that accommodation of such religions must be left to the political process. Ante at 494 U. S. 890 . In my view, however, the First Amendment was enacted precisely to protect the rights of those whose religious practices are not shared by the majority and may be viewed with hostility. The history of our free exercise doctrine amply demonstrates the harsh impact majoritarian rule has had on unpopular or emerging religious groups such as the Jehovah's Witnesses and the Amish. Indeed, the words of Justice Jackson in West Virginia Board of Education v. Barnette (overruling Minersville School District v. Gobitis, 310 U. S. 586 (1940)) are apt: Page 494 U. S. 903 "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." 319 U.S. at 319 U. S. 638 . See also United States v. Ballard, 322 U. S. 78 , 322 U. S. 87 (1944) ("The Fathers of the Constitution were not unaware of the varied and extreme views of religious sects, of the violence of disagreement among them, and of, the lack of any one religions creed on which all men would agree. They fashioned a charter of government which envisaged the widest possible toleration of conflicting views"). The compelling interest test reflects the First Amendment's mandate of preserving religious liberty to the fullest extent possible in a pluralistic society. For the Court to deem this command a "luxury," ante at 494 U. S. 888 , is to denigrate "[t]he very purpose of a Bill of Rights." III The Court's holding today not only misreads settled First Amendment precedent; it appears to be unnecessary to this case. I would reach the same result applying our established free exercise jurisprudence. A There is no dispute that Oregon's criminal prohibition of peyote places a severe burden on the ability of respondents to freely exercise their religion. Peyote is a sacrament of the Native American Church, and is regarded as vital to respondents' ability to practice their religion. See O. Stewart, Peyote Religion: A History 327-336 (1987) (describing modern status of peyotism); E. Anderson, Peyote: The Divine Cactus 41-65 (1980) (describing peyote ceremonies); Teachings from Page 494 U. S. 904 the American Earth: Indian Religion and Philosophy 96-104 (D. Tedlock & B. Tedlock eds. 1975) (same); see also People v. Woody, 61 Cal. 2d 716 , 721-722, 40 Cal. Rptr. 69, 73-74, 394 P.2d 813, 817-818 (1964). As we noted in Smith I, the Oregon Supreme Court concluded that "the Native American Church is a recognized religion, that peyote is a sacrament of that church, and that respondent's beliefs were sincerely held." 485 U.S. at 485 U. S. 667 . Under Oregon law, as construed by that State's highest court, members of the Native American Church must choose between carrying out the ritual embodying their religious beliefs and avoidance of criminal prosecution. That choice is, in my view, more than sufficient to trigger First Amendment scrutiny. There is also no dispute that Oregon has a significant interest in enforcing laws that control the possession and use of controlled substances by its citizens. See, e.g., Sherbert, 374 U.S. at 374 U. S. 403 (religiously motivated conduct may be regulated where such conduct "pose[s] some substantial threat to public safety, peace or order"); Yoder, 406 U.S. at 406 U. S. 220 ("activities of individuals, even when religiously based, are often subject to regulation by the States in the exercise of their undoubted power to promote the health, safety and general welfare"). As we recently noted, drug abuse is "one of the greatest problems affecting the health and welfare of our population" and thus "one of the most serious problems confronting our society today." Treasury Employees v. Von Raab, 489 U. S. 656 , 489 U. S. 668 , 489 U. S. 674 (1989). Indeed, under federal law (incorporated by Oregon law in relevant part, see Ore.Rev.Stat. § 475.005(6) (1989)), peyote is specifically regulated as a Schedule I controlled substance, which means that Congress has found that it has a high potential for abuse, that there is no currently accepted medical use, and that there is a lack of accepted safety for use of the drug under medical supervision. See 21 U.S.C. § 812(b)(1). See generally R. Julien, A Primer of Drug Action 149 (3d ed. 1981). In light of our recent decisions holding that the governmental Page 494 U. S. 905 interests in the collection of income tax, Hernandez, 490 U.S. at 490 U. S. 699 -700, a comprehensive social security system, see Lee, 455 U.S. at 455 U. S. 258 -259, and military conscription, see Gillette, 401 U.S. at 401 U. S. 460 , are compelling, respondents do not seriously dispute that Oregon has a compelling interest in prohibiting the possession of peyote by its citizens. B Thus, the critical question in this case is whether exempting respondents from the State's general criminal prohibition "will unduly interfere with fulfillment of the governmental interest." Lee, supra, 455 U.S. at 455 U. S. 259 ; see also Roy, 476 U.S. at 476 U. S. 727 ("[T]he Government must accommodate a legitimate free exercise claim unless pursuing an especially important interest by narrowly tailored means"); Yoder, 406 U.S. at 406 U. S. 221 ; Braunfeld, 366 U.S. at 366 U. S. 605 -607. Although the question is close, I would conclude that uniform application of Oregon's criminal prohibition is "essential to accomplish," Lee, supra, at 455 U.S. at 455 U. S. 257 , its overriding interest in preventing the physical harm caused by the use of a Schedule I controlled substance. Oregon's criminal prohibition represents that State's judgment that the possession and use of controlled substances, even by only one person, is inherently harmful and dangerous. Because the health effects caused by the use of controlled substances exist regardless of the motivation of the user, the use of such substances, even for religious purposes, violates the very purpose of the laws that prohibit them. Cf. State v. Massey, 229 N.C. 734, 51 S.E.2d 179 (denying religious exemption to municipal ordinance prohibiting handling of poisonous reptiles), appeal dism'd sub nom. Bunn v. North Carolina, 336 U.S. 942 (1949). Moreover, in view of the societal interest in preventing trafficking in controlled substances, uniform application of the criminal prohibition at issue is essential to the effectiveness of Oregon's stated interest in preventing any possession of peyote. Cf. 197 U. S. Page 494 U. S. 906 Massachusetts, 197 U. S. 11 (1905) (denying exemption from smallpox vaccination requirement). For these reasons, I believe that granting a selective exemption in this case would seriously impair Oregon's compelling interest in prohibiting possession of peyote by its citizens. Under such circumstances, the Free Exercise Clause does not require the State to accommodate respondents' religiously motivated conduct. See, e.g., Thomas, 450 U.S. at 450 U. S. 719 . Unlike in Yoder, where we noted that "[t]he record strongly indicates that accommodating the religious objections of the Amish by forgoing one, or at most two, additional years of compulsory education will not impair the physical or mental health of the child, or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society," 406 U.S. at 406 U. S. 234 ; see also id. at 406 U. S. 238 -240 (WHITE, J., concurring), a religious exemption in this case would be incompatible with the State's interest in controlling use and possession of illegal drugs. Respondents contend that any incompatibility is belied by the fact that the Federal Government and several States provide exemptions for the religious use of peyote, see 21 CFR § 1307.31 (1989); 307 Or. at 73, n. 2, 763 P.2d at 148, n. 2 (citing 11 state statutes that expressly exempt sacramental peyote use from criminal proscription). But other governments may surely choose to grant an exemption without Oregon, with its specific asserted interest in uniform application of its drug laws, being required to do so by the First Amendment. Respondents also note that the sacramental use of peyote is central to the tenets of the Native American Church, but I agree with the Court, ante at 494 U. S. 886 -887, that because "[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith," Hernandez, supra, at 494 U. S. 699 , our determination of the constitutionality of Oregon's general criminal prohibition cannot, and should not, turn on the centrality of the particular Page 494 U. S. 907 religious practice at issue. This does not mean, of course, that courts may not make factual findings as to whether a claimant holds a sincerely held religious belief that conflicts with, and thus is burdened by, the challenged law. The distinction between questions of centrality and questions of sincerity and burden is admittedly fine, but it is one that is an established part of our free exercise doctrine, see Ballard, 322 U.S. at 322 U. S. 85 -88, and one that courts are capable of making. See Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U. S. 290 , 471 U. S. 303 -305 (1985). I would therefore adhere to our established free exercise jurisprudence and hold that the State in this case has a compelling interest in regulating peyote use by its citizens, and that accommodating respondents' religiously motivated conduct "will unduly interfere with fulfillment of the governmental interest." Lee, 455 U.S. at 455 U. S. 259 . Accordingly, I concur in the judgment of the Court. * Although Justice BRENNAN, Justice MARSHALL, and Justice BLACKMUN join Parts I and II of this opinion, they do not concur in the judgment. Justice BLACKMUN, with whom Justice BRENNAN and Justice MARSHALL join, dissenting. This Court over the years painstakingly has developed a consistent and exacting standard to test the constitutionality of a state statute that burdens the free exercise of religion. Such a statute may stand only if the law in general, and the State's refusal to allow a religious exemption in particular, are justified by a compelling interest that cannot be served by less restrictive means. [ Footnote 2/1 ] Page 494 U. S. 908 Until today, I thought this was a settled and inviolate principle of this Court's First Amendment jurisprudence. The majority, however, perfunctorily dismisses it as a "constitutional anomaly." Ante at 494 U. S. 886 . As carefully detailed in Justice O'CONNOR's concurring opinion, ante, the majority is able to arrive at this view only by mischaracterizing this Court's precedents. The Court discards leading free exercise cases such as Cantwell v. Connecticut, 310 U. S. 296 (1940), and Wisconsin v. Yoder, 406 U. S. 205 (1972), as "hybrid." Ante at 494 U. S. 882 . The Court views traditional free exercise analysis as somehow inapplicable to criminal prohibitions (as opposed to conditions on the receipt of benefits), and to state laws of general applicability (as opposed, presumably, to laws that expressly single out religious practices). Ante at 494 U. S. 884 -885. The Court cites cases in which, due to various exceptional circumstances, we found strict scrutiny inapposite, to hint that the Court has repudiated that standard altogether. Ante at 494 U. S. 882 -884. In short, it effectuates a wholesale overturning of settled law concerning the Religion Clauses of our Constitution. One hopes that the Court is aware of the consequences, and that its result is not a product of overreaction to the serious problems the country's drug crisis has generated. This distorted view of our precedents leads the majority to conclude that strict scrutiny of a state law burdening the free exercise of religion is a "luxury" that a well-ordered society Page 494 U. S. 909 cannot afford, ante at 494 U. S. 888 , and that the repression of minority religions is an "unavoidable consequence of democratic government." Ante at 494 U. S. 890 . I do not believe the Founders thought their dearly bought freedom from religious persecution a "luxury," but an essential element of liberty -- and they could not have thought religious intolerance "unavoidable," for they drafted the Religion Clauses precisely in order to avoid that intolerance. For these reasons, I agree with Justice O'CONNOR's analysis of the applicable free exercise doctrine, and I join parts I and II of her opinion. [ Footnote 2/2 ] As she points out, "the critical question in this case is whether exempting respondents from the State's general criminal prohibition 'will unduly interfere with fulfillment of the governmental interest.'" Ante at 494 U. S. 905 , quoting United States v. Lee, 455 U. S. 252 , 455 U. S. 259 (1982). I do disagree, however, with her specific answer to that question. I In weighing respondents' clear interest in the free exercise of their religion against Oregon's asserted interest in enforcing its drug laws, it is important to articulate in precise terms the state interest involved. It is not the State's broad interest Page 494 U. S. 910 in fighting the critical "war on drugs" that must be weighed against respondents' claim, but the State's narrow interest in refusing to make an exception for the religious, ceremonial use of peyote. See Bowen v. Roy, 476 U. S. 693 , 476 U. S. 728 (1986) (O'CONNOR, J., concurring in part and dissenting in part) ("This Court has consistently asked the Government to demonstrate that unbending application of its regulation to the religious objector is essential to accomplish an overriding governmental interest,'" quoting Lee, 455 U.S. at 455 U. S. 257 -258); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 , 450 U. S. 719 (1981) ("focus of the inquiry" concerning State's asserted interest must be "properly narrowed"); Yoder, 406 U.S. at 406 U. S. 221 ("Where fundamental claims of religious freedom are at stake," the Court will not accept a State's "sweeping claim" that its interest in compulsory education is compelling; despite the validity of this interest "in the generality of cases, we must searchingly examine the interests that the State seeks to promote . . . and the impediment to those objectives that would flow from recognizing the claimed Amish exception"). Failure to reduce the competing interests to the same plane of generality tends to distort the weighing process in the State's favor. See Clark, Guidelines for the Free Exercise Clause, 83 Harv.L.Rev. 327, 330-331 (1969) ("The purpose of almost any law can be traced back to one or another of the fundamental concerns of government: public health and safety, public peace and order, defense, revenue. To measure an individual interest directly against one of these rarified values inevitably makes the individual interest appear the less significant"); Pound, A Survey of Social Interests, 57 Harv.L.Rev. 1, 2 (1943) ("When it comes to weighing or valuing claims or demands with respect to other claims or demands, we must be careful to compare them on the same plane . . . [or else] we may decide the question in advance in our very way of putting it"). The State's interest in enforcing its prohibition, in order to be sufficiently compelling to outweigh a free exercise claim, Page 494 U. S. 911 cannot be merely abstract or symbolic. The State cannot plausibly assert that unbending application of a criminal prohibition is essential to fulfill any compelling interest if it does not, in fact, attempt to enforce that prohibition. In this case, the State actually has not evinced any concrete interest in enforcing its drug laws against religious users of peyote. Oregon has never sought to prosecute respondents, and does not claim that it has made significant enforcement efforts against other religious users of peyote. [ Footnote 2/3 ] The State's asserted interest thus amounts only to the symbolic preservation of an unenforced prohibition. But a government interest in "symbolism, even symbolism for so worthy a cause as the abolition of unlawful drugs," Treasury Employees v. Von Raab, 489 U. S. 656 , 489 U. S. 687 (1989) (SCALIA, J., dissenting), cannot suffice to abrogate the constitutional rights of individuals. Similarly, this Court's prior decisions have not allowed a government to rely on mere speculation about potential harms, but have demanded evidentiary support for a refusal to allow a religious exception. See Thomas, 450 U.S. at 450 U. S. 719 (rejecting State's reasons for refusing religious exemption, for lack of "evidence in the record"); Yoder, 406 U.S. at 406 U. S. 224 -229 (rejecting State's argument concerning the dangers of a religious exemption as speculative, and unsupported by the record); Sherbert v. Verner, 374 U. S. 398 , 374 U. S. 407 (1963) ("there is no proof whatever to warrant such fears . . . as those which the [State] now advance[s]"). In this case, the State's justification for refusing to recognize an exception to its criminal laws for religious peyote use is entirely speculative. The State proclaims an interest in protecting the health and safety of its citizens from the dangers of unlawful drugs. It offers, however, no evidence that the religious use of peyote Page 494 U. S. 912 has ever harmed anyone. [ Footnote 2/4 ] The factual findings of other courts cast doubt on the State's assumption that religious use of peyote is harmful. See State v. Whittingham, 19 Ariz.App. 27, 30, 504 P.2d 950, 953 (1973) ("the State failed to prove that the quantities of peyote used in the sacraments of the Native American Church are sufficiently harmful to the health and welfare of the participants so as to permit a legitimate intrusion under the State's police power"); People v. Woody, 61 Cal. 2d 716 , 722-723, 40 Cal. Rptr. 69, 74, 394 P.2d 813, 818 (1964) ("as the Attorney General . . . admits, the opinion of scientists and other experts is that peyote . . . works no permanent deleterious injury to the Indian'"). The fact that peyote is classified as a Schedule I controlled substance does not, by itself, show that any and all uses of peyote, in any circumstance, are inherently harmful and dangerous. The Federal Government, which created the classifications of unlawful drugs from which Oregon's drug laws are derived, apparently does not find peyote so dangerous as to preclude an exemption for religious use. [ Footnote 2/5 ] Moreover, Page 494 U. S. 913 other Schedule I drugs have lawful uses. See Olsen v. Drug Enforcement Admin., 279 U.S.App.D.C. 1-6, n. 4, 878 F.2d 1458, 1463, n. 4 (medical and research uses of marijuana). The carefully circumscribed ritual context in which respondents used peyote is far removed from the irresponsible and unrestricted recreational use of unlawful drugs. [ Footnote 2/6 ] The Native American Church's internal restrictions on, and supervision of, its members' use of peyote substantially obviate the State's health and safety concerns. See Olsen, 279 U.S.App.D.C. at 10, 878 F.2d at 1467 ("The Administrator [of DEA] finds that . . . the Native American Church's use of peyote is isolated to specific ceremonial occasions," and so "an accommodation can be made for a religious organization which uses peyote in circumscribed ceremonies" (quoting DEA Final Order)); id. at 7, 878 F.2d at 1464 ("for members of the Native American Church, use of peyote outside the ritual is sacrilegious"); Woody, 61 Cal. 2d at 721, 394 P.2d at 817 ("to use peyote for nonreligious purposes is sacrilegious"); R. Julien, A Primer of Drug Action 148 (3d ed. 1981) ("peyote is seldom abused by members of the Native American Page 494 U. S. 914 Church"); J. Slotkin, The Peyote Way, in Teachings from the American Faith (D. Tedlock & B. Tedlock, eds., 1975) 96, 104 ("the Native American Church . . . refuses to permit the presence of curiosity seekers at its rites, and vigorously opposes the sale or use of Peyote for nonsacramental purposes"); R. Bergman, Navajo Peyote Use: Its Apparent Safety, 128 Am.J. Psychiatry 695 (1971) (Bergman). [ Footnote 2/7 ] Moreover, just as in Yoder, the values and interests of those seeking a religious exemption in this case are congruent, to a great degree, with those the State seeks to promote through its drug laws. See Yoder, 406 U.S. at 224, 406 U. S. 228 -229 (since the Amish accept formal schooling up to 8th grade, and then provide "ideal" vocational education, State's interest in enforcing its law against the Amish is "less substantial than . . . for children generally"); id. at 406 U. S. 238 (WHITE, J., concurring opinion). Not only does the Church's doctrine forbid nonreligious use of peyote; it also generally advocates self-reliance, familial responsibility, and abstinence from alcohol. See Brief for Association on American Indian Affairs, et al., as Amici Curiae 33-34 (the Church's "ethical code" has four parts: brotherly love, care of family, self-reliance, and avoidance of alcohol (quoting from the Church membership card)); Olsen, 279 U.S.App.D.C., at 7, 878 F.2d at 1464 (the Native American Church, "for all purposes other than the special, stylized ceremony, reinforced the state's prohibition"); Page 494 U. S. 915 Woody, 61 Cal. 2d at 721-722, n. 3, 394 P.2d at 818, n. 3 ("most anthropological authorities hold Peyotism to be a positive, rather than negative, force in the lives of its adherents . . . the church forbids the use of alcohol . . . "). There is considerable evidence that the spiritual and social support provided by the Church has been effective in combatting the tragic effects of alcoholism on the Native American population. Two noted experts on peyotism, Dr. Omer C. Stewart and Dr. Robert Bergman, testified by affidavit to this effect on behalf of respondent Smith before the Employment Appeal Board. Smith Tr., Exh. 7; see also E. Anderson, Peyote: The Divine Cactus 165-166 (1980) (research by Dr. Bergman suggests "that the religious use of peyote seemed to be directed in an ego-strengthening direction with an emphasis on interpersonal relationships where each individual is assured of his own significance as well as the support of the group;" many people have " come through difficult crises with the help of this religion. . . . It provides real help in seeing themselves not as people whose place and way in the world is gone, but as people whose way can be strong enough to change and meet new challenges'" (quoting Bergman, at 698)); P. Pascarosa and S. Futterman, Ethnopsychedelic Therapy for Alcoholics: Observations in the Peyote Ritual of the Native American Church, 8 (No. 3) J. of Psychedelic Drugs 215 (1976) (religious peyote use has been helpful in overcoming alcoholism); B. Albaugh and P. Anderson, Peyote in the Treatment of Alcoholism among American Indians, 131:11 Am.J.Psychiatry 1247, 1249 (1974) ("the philosophy, teachings, and format of the [Native American Church] can be of great benefit to the Indian alcoholic"); see generally O. Stewart, Peyote Religion 75 et seq. (1987) (noting frequent observations, across many tribes and periods in history, of correlation between peyotist religion and abstinence from alcohol). Far from promoting the lawless and irresponsible use of drugs, Native American Church members' spiritual Page 494 U. S. 916 code exemplifies values that Oregon's drug laws are presumably intended to foster. The State also seeks to support its refusal to make an exception for religious use of peyote by invoking its interest in abolishing drug trafficking. There is, however, practically no illegal traffic in peyote. See Olsen, 279 U.S.App.D.C., at 6, 10, 878 F.2d at 1463, 1467 (quoting DEA Final Order to the effect that total amount of peyote seized and analyzed by federal authorities between 1980 and 1987 was 19.4 pounds; in contrast, total amount of marijuana seized during that period was over 15 million pounds). Also, the availability of peyote for religious use, even if Oregon were to allow an exemption from its criminal laws, would still be strictly controlled by federal regulations, see 21 U.S.C. §§ 821-823 (registration requirements for distribution of controlled substances); 21 CFR § 1307.31 (1989) (distribution of peyote to Native American Church subject to registration requirements), and by the State of Texas, the only State in which peyote grows in significant quantities. See Texas Health & Safety Code, § 481.111 (1990); Texas Admin.Code, Tit. 37, pt. 1, ch. 13, Controlled Substances Regulations, §§ 13.35-1-3.41 (1989); Woody, 61 Cal. 2d at 720, 394 P.2d at 816 (peyote is "found in the Rio Grande Valley of Texas and northern Mexico"). Peyote simply is not a popular drug; its distribution for use in religious rituals has nothing to do with the vast and violent traffic in illegal narcotics that plagues this country. Finally, the State argues that granting an exception for religious peyote use would erode its interest in the uniform, fair, and certain enforcement of its drug laws. The State fears that, if it grants an exemption for religious peyote use, a flood of other claims to religious exemptions will follow. It would then be placed in a dilemma, it says, between allowing a patchwork of exemptions that would hinder its law enforcement efforts, and risking a violation of the Establishment Clause by arbitrarily limiting its religious exemptions. This Page 494 U. S. 917 argument, however, could be made in almost any free exercise case. See Lupu, Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, 102 Harv.L.Rev. 933, 947 (1989) ("Behind every free exercise claim is a spectral march; grant this one, a voice whispers to each judge, and you will be confronted with an endless chain of exemption demands from religious deviants of every stripe"). This Court, however, consistently has rejected similar arguments in past free exercise cases, and it should do so here as well. See Frazee v. Illinois Dept. of Employment Security, 489 U. S. 829 , 489 U. S. 835 (1989) (rejecting State's speculation concerning cumulative effect of many similar claims); Thomas, 450 U.S. at 450 U. S. 719 (same); Sherbert, 374 U.S. at 374 U. S. 407 . The State's apprehension of a flood of other religious claims is purely speculative. Almost half the States, and the Federal Government, have maintained an exemption for religious peyote use for many years, and apparently have not found themselves overwhelmed by claims to other religious exemptions. [ Footnote 2/8 ] Allowing an exemption for religious peyote use Page 494 U. S. 918 would not necessarily oblige the State to grant a similar exemption to other religious groups. The unusual circumstances that make the religious use of peyote compatible with the State's interests in health and safety and in preventing drug trafficking would not apply to other religious claims. Some religions, for example, might not restrict drug use to a limited ceremonial context, as does the Native American Church. See, e.g., Olsen, 279 U.S.App.D.C., at 7, 878 F.2d at 1464 ("the Ethiopian Zion Coptic Church . . . teaches that marijuana is properly smoked continually all day'"). Some religious claims, see n. 8, supra, involve drugs such as marijuana and heroin, in which there is significant illegal traffic, with its attendant greed and violence, so that it would be difficult to grant a religious exemption without seriously compromising law enforcement efforts. [ Footnote 2/9 ] That the State might grant an exemption for religious peyote use, but deny other religious claims arising in different circumstances, would not violate the Establishment Clause. Though the State must treat all religions equally, and not favor one over another, this obligation is fulfilled by the uniform application of the "compelling interest" test to all free exercise claims, not by reaching uniform results as to all claims. A showing that religious peyote use does not unduly interfere with the State's interests is "one that probably few other religious groups or sects could make," Yoder, 406 U.S. at 406 U. S. 236 ; this does not mean that an exemption limited to peyote use is tantamount to an establishment of religion. See Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136 , 480 U. S. 144 -145 (1987) ("the government may (and Page 494 U. S. 919 sometimes must) accommodate religious practices and . . . may do so without violating the Establishment Clause"); Yoder, 406 U.S. at 406 U. S. 220 -221 ("Court must not ignore the danger that an exception from a general [law] . . . may run afoul of the Establishment Clause, but that danger cannot be allowed to prevent any exception no matter how vital it may be to the protection of values promoted by the right of free exercise"); id. at 406 U. S. 234 , n. 22. III Finally, although I agree with Justice O'CONNOR that courts should refrain from delving into questions of whether, as a matter of religious doctrine, a particular practice is "central" to the religion, ante at 494 U. S. 906 -907, I do not think this means that the courts must turn a blind eye to the severe impact of a State's restrictions on the adherents of a minority religion. Cf. Yoder, 406 U.S. at 406 U. S. 219 (since "education is inseparable from and a part of the basic tenets of their religion . . . [just as] baptism, the confessional, or a sabbath may be for others," enforcement of State's compulsory education law would "gravely endanger if not destroy the free exercise of respondents' religious beliefs"). Respondents believe, and their sincerity has never been at issue, that the peyote plant embodies their deity, and eating it is an act of worship and communion. Without peyote, they could not enact the essential ritual of their religion. See Brief for Association on American Indian Affairs, et al., as Amici Curiae 5-6 ("To the members, peyote is consecrated with powers to heal body, mind and spirit. It is a teacher; it teaches the way to spiritual life through living in harmony and balance with the forces of the Creation. The rituals are an integral part of the life process. They embody a form of worship in which the sacrament Peyote is the means for communicating with the Great Spirit"). See also Stewart, Peyote Religion at 327-330 (description of peyote ritual); Page 494 U. S. 920 T. Hillerman, People of Darkness 153 (1980) (description of Navajo peyote ritual). If Oregon can constitutionally prosecute them for this act of worship, they, like the Amish, may be "forced to migrate to some other and more tolerant region." Yoder, 406 U.S. at 406 U. S. 218 . This potentially devastating impact must be viewed in light of the federal policy -- reached in reaction to many years of religious persecution and intolerance -- of protecting the religious freedom of Native Americans. See American Indian Religious Freedom Act, 92 Stat. 469, 42 U.S.C. § 1996 ("it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions . . . , including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites"). [ Footnote 2/10 ] Congress recognized that certain substances, such as peyote, "have religious significance because they are sacred, they have power, they heal, they are necessary to the exercise of Page 494 U. S. 921 the rites of the religion, they are necessary to the cultural integrity of the tribe, and, therefore, religious survival." H.R.Rep. No. 95-1308, p. 2 (1978), U.S.Code Cong. & Admin.News 1978, pp. 1262, 1263. The American Indian Religious Freedom Act, in itself, may not create rights enforceable against government action restricting religious freedom, but this Court must scrupulously apply its free exercise analysis to the religious claims of Native Americans, however unorthodox they may be. Otherwise, both the First Amendment and the stated policy of Congress will offer to Native Americans merely an unfulfilled and hollow promise. IV For these reasons, I conclude that Oregon's interest in enforcing its drug laws against religious use of peyote is not sufficiently compelling to outweigh respondents' right to the free exercise of their religion. Since the State could not constitutionally enforce its criminal prohibition against respondents, the interests underlying the State's drug laws cannot justify its denial of unemployment benefits. Absent such justification, the State's regulatory interest in denying benefits for religiously motivated "misconduct," see ante at 494 U. S. 874 , is indistinguishable from the state interests this Court has rejected in Frazee, Hobbie, Thomas, and Sherbert . The State of Oregon cannot, consistently with the Free Exercise Clause, deny respondents unemployment benefits. I dissent. [ Footnote 2/1 ] See Hernandez v. Commissioner, 490 U. S. 680 , 490 U. S. 699 (1989) ("The free exercise inquiry asks whether government has placed a substantial burden on the observation of a central religious belief or practice and, if so, whether a compelling governmental interest justifies the burden"); Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136 , 480 U. S. 141 (1987) (state laws burdening religions "must be subjected to strict scrutiny and could be justified only by proof by the State of a compelling interest"); Bowen v. Roy, 476 U. S. 693 , 476 U. S. 732 (1986) (O'CONNOR, J., concurring in part and dissenting in part) ("Our precedents have long required the Government to show that a compelling state interest is served by its refusal to grant a religious exemption"); United States v. Lee, 455 U. S. 252 , 455 U. S. 257 -258 (1982) ("The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest"); Thomas v. Review Bd of Indiana Security Div., 450 U. S. 707 , 450 U. S. 718 (1981) ("The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest"); Wisconsin v. Yoder, 406 U. S. 205 , 406 U. S. 215 (1972) ("only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion"); Sherbert v. Verner, 374 U. S. 398 , 374 U. S. 406 (1963) (question is "whether some compelling state interest . . . justifies the substantial infringement of appellant's First Amendment right"). [ Footnote 2/2 ] I reluctantly agree that, in light of this Court's decision in Employment Division v. Smith, 485 U. S. 660 (1988), the question on which certiorari was granted is properly presented in this case. I have grave doubts, however, as to the wisdom or propriety of deciding the constitutionality of a criminal prohibition which the State has not sought to enforce, which the State did not rely on in defending its denial of unemployment benefits before the state courts, and which the Oregon courts could, on remand, either invalidate on state constitutional grounds or conclude that it remains irrelevant to Oregon's interest in administering its unemployment benefits program. It is surprising, to say the least, that this Court, which so often prides itself about principles of judicial restraint and reduction of federal control over matters of state law, would stretch its jurisdiction to the limit in order to reach, in this abstract setting, the constitutionality of Oregon's criminal prohibition of peyote use. [ Footnote 2/3 ] The only reported case in which the State of Oregon has sought to prosecute a person for religious peyote use is State v. Soto, 21 Ore.App. 794, 537 P.2d 142 (1975), cert. denied, 424 U.S. 955 (1976). [ Footnote 2/4 ] This dearth of evidence is not surprising, since the State never asserted this health and safety interest before the Oregon courts; thus, there was no opportunity for factfinding concerning the alleged dangers of peyote use. What has now become the State's principal argument for its view that the criminal prohibition is enforceable against religious use of peyote rests on no evidentiary foundation at all. [ Footnote 2/5 ] See 21 CFR § 1307.31 (1989) ("The listing of peyote as a controlled substance in Schedule I does not apply to the nondrug use of peyote in bona fide religious ceremonies of the Native American Church, and members of the Native American Church so using peyote are exempt from registration. Any person who manufactures peyote for or distributes peyote to the Native American Church, however, is required to obtain registration annually and to comply with all other requirements of law"); see Olsen v. Drug Enforcement Admin., 279 U.S.App.D.C. 1, 6-7, 878 F.2d 1458, 1463-1464 (1989) (explaining DEA's rationale for the exception). Moreover, 23 States, including many that have significant Native American populations, have statutory or judicially crafted exemptions in their drug laws for religious use of peyote. See Smith v. Employment Division, 307 Ore. 68, 73, n. 2, 763 P.2d 146 , 148, n. 2 (1988). Although this does not prove that Oregon must have such an exception too, it is significant that these States, and the Federal Government, all find their (presumably compelling) interests in controlling the use of dangerous drugs compatible with an exemption for religious use of peyote. Cf. Boos v. Barry, 485 U. S. 312 , 485 U. S. 329 (1988) (finding that an ordinance restricting picketing near a foreign embassy was not the least restrictive means of serving the asserted government interest; existence of an analogous, but more narrowly drawn, federal statute showed that "a less restrictive alternative is readily available"). [ Footnote 2/6 ] In this respect, respondents' use of peyote seems closely analogous to the sacramental use of wine by the Roman Catholic Church. During Prohibition, the Federal Government exempted such use of wine from its general ban on possession and use of alcohol. See National Prohibition Act, Title II, § 3, 41 Stat. 308. However compelling the Government's then general interest in prohibiting the use of alcohol may have been, it could not plausibly have asserted an interest sufficiently compelling to outweigh Catholics' right to take communion. [ Footnote 2/7 ] The use of peyote is, to some degree, self-limiting. The peyote plant is extremely bitter, and eating it is an unpleasant experience, which would tend to discourage casual or recreational use. See State v. Whittingham, 19 Ariz.App. 27, 30, 504 P.2d 950, 953 (1973) ("peyote can cause vomiting by reason of its bitter taste"); E. Anderson, Peyote: The Divine Cactus 161 (1980) ("[T]he eating of peyote usually is a difficult ordeal in that nausea and other unpleasant physical manifestations occur regularly. Repeated use is likely, therefore, only if one is a serious researcher or is devoutly involved in taking peyote as part of a religious ceremony"); Slotkin, The Peyote Way at 98 ("many find it bitter, inducing indigestion or nausea"). [ Footnote 2/8 ] Over the years, various sects have raised free exercise claims regarding drug use. In no reported case, except those involving claims of religious peyote use, has the claimant prevailed. See, e.g., Olsen v. Iowa, 808 F.2d 652 (CA8 1986) (marijuana use by Ethiopian Zion Coptic Church); United States v. Rush, 738 F.2d 497 (CA1 1984), cert. denied, 470 U.S. 1004 (1985) (same); United States v. Middleton, 690 F.2d 820 (CA11 1982), cert. denied, 460 U.S. 1051 (1983) (same); United States v. Hudson, 431 F.2d 468 (CA5 1970), cert. denied, 400 U.S. 1011 (1971) (marijuana and heroin use by Moslems); Leary v. United States, 383 F.2d 851 (CA5 1967), rev'd on other grounds, 395 U. S. 6 (1969) (marijuana use by Hindu); Commonwealth v. Nissenbaum, 404 Mass. 575, 536 N.E.2d 592 (1989) (marijuana use by Ethiopian Zion Coptic Church); State v. Blake, 5 Haw.App. 411, 695 P.2d 336 (1985) (marijuana use in practice of Hindu Tantrism); Whyte v. United States, 471 A.2d 1018 (D.C.App.1984) (marijuana use by Rastafarian); State v. Rocheleau, 142 Vt. 61, 451 A.2d 1144 (1982) (marijuana use by Tantric Buddhist); State v. Brashear, 92 N.M. 622, 593 P.2d 63 (1979) (marijuana use by nondenominational Christian); State v. Randall, 540 S.W.2d 156 (Mo.App.1976) (marijuana, LSD, and hashish use by Aquarian Brotherhood Church). See generally Annotation, Free Exercise of Religion as Defense to Prosecution for Narcotic or Psychedelic Drug Offense, 35 A.L.R.3d 939 (1971 and Supp.1989). [ Footnote 2/9 ] Thus, this case is distinguishable from United States v. Lee, 455 U. S. 252 (1982), in which the Court concluded that there was "no principled way" to distinguish other exemption claims, and the "tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief." 455 U.S. at 455 U. S. 260 . [ Footnote 2/10 ] See Report to Congress on American Indian Religious Freedom Act of 1978, pp. 1-8 (1979) (history of religious persecution); Barsh, The Illusion of Religious Freedom for Indigenous Americans, 65 Ore.L.Rev. 363, 369-374 (1986). Indeed, Oregon's attitude toward respondents' religious peyote use harkens back to the repressive federal policies pursued a century ago: "In the government's view, traditional practices were not only morally degrading, but unhealthy. 'Indians are fond of gatherings of every description,' a 1913 public health study complained, advocating the restriction of dances and 'sings' to stem contagious diseases. In 1921, the Commissioner of Indian Affairs, Charles Burke, reminded his staff to punish any Indian engaged in" "any dance which involves . . . the reckless giving away of property . . . frequent or prolonged periods of celebration . . . in fact, any disorderly or plainly excessive performance that promotes superstitious cruelty, licentiousness, idleness, danger to health, and shiftless indifference to family welfare." "Two years later, he forbade Indians under the age of 50 from participating in any dances of any kind, and directed federal employees 'to educate public opinion' against them." Id. at 370-371 (footnotes omitted).

Here is a summary of the case: In Employment Division v. Smith, the Supreme Court of the United States ruled that the Free Exercise Clause of the First Amendment does not provide an exemption from neutral, generally applicable laws. Respondents Smith and Black were fired for ingesting peyote, a hallucinogenic drug, for religious purposes. They were denied unemployment benefits by the state of Oregon, as their actions were considered "misconduct" under state law. The Oregon Supreme Court held that the denial of benefits violated the Free Exercise Clause, but the US Supreme Court disagreed. The Court clarified that while the Free Exercise Clause protects religious beliefs, it does not shield individuals from obeying neutral laws of general applicability. The Court distinguished this case from previous rulings, noting that exemptions from such laws are not required by the First Amendment. The Court concluded that Oregon's law prohibiting peyote use applied regardless of religious motivation and, therefore, the state could deny unemployment benefits to respondents without violating their free exercise rights. This decision set a precedent for the interplay between religious freedom and compliance with neutral laws.

Religion

Edwards v. Aguillard

https://supreme.justia.com/cases/federal/us/482/578/

U.S. Supreme Court Edwards v. Aguillard, 482 U.S. 578 (1987) Edwards v. Aguillard No. 85-1513 Argued December 10, 1986 Decided June 19, 1987 482 U.S. 578 APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Syllabus Louisiana's "Creationism Act" forbids the teaching of the theory of evolution in public elementary and secondary schools unless accompanied by instruction in the theory of "creation science." The Act does not require the teaching of either theory unless the other is taught. It defines the theories as "the scientific evidences for [creation or evolution] and inferences from those scientific evidences." Appellees, who include Louisiana parents, teachers, and religious leaders, challenged the Act's constitutionality in Federal District Court, seeking an injunction and declaratory relief. The District Court granted summary judgment to appellees, holding that the Act violated the Establishment Clause of the First Amendment. The Court of Appeals affirmed. Held: 1. The Act is facially invalid as violative of the Establishment Clause of the First Amendment, because it lacks a clear secular purpose. Pp. 482 U.S. 585 -594. (a) The Act does not further its stated secular purpose of "protecting academic freedom." It does not enhance the freedom of teachers to teach what they choose, and fails to further the goal of "teaching all of the evidence." Forbidding the teaching of evolution when creation science is not also taught undermines the provision of a comprehensive scientific education. Moreover, requiring the teaching of creation science with evolution does not give schoolteachers a flexibility that they did not already possess to supplant the present science curriculum with the presentation of theories, besides evolution, about the origin of life. Furthermore, the contention that the Act furthers a "basic concept of fairness" by requiring the teaching of all of the evidence on the subject is without merit. Indeed, the Act evinces a discriminatory preference for the teaching of creation science and against the teaching of evolution by requiring that curriculum guides be developed and resource services supplied for teaching creationism, but not for teaching evolution, by limiting membership on the resource services panel to "creation scientists," and by forbidding school boards to discriminate against anyone who "chooses to be a creation scientist" or to teach creation science, while failing to protect those who choose to teach other theories or who refuse Page 482 U. S. 579 to teach creation science. A law intended to maximize the comprehensiveness and effectiveness of science instruction would encourage the teaching of all scientific theories about human origins. Instead, this Act has the distinctly different purpose of discrediting evolution by counterbalancing its teaching at every turn with the teaching of creationism. Pp. 482 U. S. 586 -589. (b) The Act impermissibly endorses religion by advancing the religious belief that a supernatural being created humankind. The legislative history demonstrates that the term "creation science," as contemplated by the state legislature, embraces this religious teaching. The Act's primary purpose was to change the public school science curriculum to provide persuasive advantage to a particular religious doctrine that rejects the factual basis of evolution in its entirety. Thus, the Act is designed either to promote the theory of creation science that embodies a particular religious tenet or to prohibit the teaching of a scientific theory disfavored by certain religious sects. In either case, the Act violates the First Amendment. Pp. 482 U. S. 589 -594. 2. The District Court did not err in granting summary judgment upon a finding that appellants had failed to raise a genuine issue of material fact. Appellants relied on the "uncontroverted" affidavits of scientists, theologians, and an education administrator defining creation science as "origin through abrupt appearance in complex form" and alleging that such a viewpoint constitutes a true scientific theory. The District Court, in its discretion, properly concluded that the postenactment testimony of these experts concerning the possible technical meanings of the Act's terms would not illuminate the contemporaneous purpose of the state legislature when it passed the Act. None of the persons making the affidavits produced by appellants participated in or contributed to the enactment of the law. Pp. 482 U. S. 594 -596. 765 F.2d 1251, affirmed. BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined, and in all but Part II of which O'CONNOR, J., joined. POWELL, J., filed a concurring opinion, in which O'CONNOR, J., joined, post, p. 482 U. S. 597 . WHITE, J., filed an opinion concurring in the judgment, post, p. 482 U. S. 608 . SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C.J., joined, post, p. 482 U. S. 610 . Page 482 U. S. 580 JUSTICE BRENNAN delivered the opinion of the Court.t The question for decision is whether Louisiana's "Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction" Act (Creationism Act), La.Rev.Stat.Ann. §§ 17:286.1-17:286.7 (West 1982), is facially invalid Page 482 U. S. 581 as violative of the Establishment Clause of the First Amendment. I The Creationism Act forbids the teaching of the theory of evolution in public schools unless accompanied by instruction in "creation science." § 17:286.4A. No school is required to teach evolution or creation science. If either is taught, however, the other must also be taught. Ibid. The theories of evolution and creation science are statutorily defined as "the scientific evidences for [creation or evolution] and inferences from those scientific evidences." §§ 17.286.3(2) and (3). Appellees, who include parents of children attending Louisiana public schools, Louisiana teachers, and religious leaders, challenged the constitutionality of the Act in District Court, seeking an injunction and declaratory relief. [ Footnote 1 ] Appellants, Louisiana officials charged with implementing the Act, defended on the ground that the purpose of the Act is to protect a legitimate secular interest, namely, academic freedom. [ Footnote 2 ] Appellees attacked the Act as facially invalid because Page 482 U. S. 582 it violated the Establishment Clause and made a motion for summary judgment. The District Court granted the motion. Aguillard v. Treen, 634 F. Supp. 426 (ED La.1985). The court held that there can be no valid secular reason for prohibiting the teaching of evolution, a theory historically opposed by some religious denominations. The court further concluded that "the teaching of 'creation-science' and 'creationism,' as contemplated by the statute, involves teaching 'tailored to the principles' of a particular religious sect or group of sects." Id. at 427 (citing Epperson v. Arkansas, 393 U. S. 97 , 393 U. S. 106 (1968)). The District Court therefore held that the Creationism Act violated the Establishment Clause either because it prohibited the teaching of evolution or because it required the teaching of creation science with the purpose of advancing a particular religious doctrine. The Court of Appeals affirmed. 765 F.2d 1251 (CA5 1985). The court observed that the statute's avowed purpose of protecting academic freedom was inconsistent with requiring, upon risk of sanction, the teaching of creation science whenever evolution is taught. Id. at 1257. The court found that the Louisiana Legislature's actual intent was "to discredit evolution by counterbalancing its teaching at every turn with the teaching of creationism, a religious belief." Ibid. Because the Creationism Act was thus a law furthering a particular religious belief, the Court of Appeals held that the Act violated the Establishment Clause. A suggestion for rehearing en banc was denied over a dissent. 778 F.2d 225 (CA5 1985). We noted probable jurisdiction, 476 U.S. 1103 (1986), and now affirm. II The Establishment Clause forbids the enactment of any law "respecting an establishment of religion." [ Footnote 3 ] The Court Page 482 U. S. 583 has applied a three-pronged test to determine whether legislation comports with the Establishment Clause. First, the legislature must have adopted the law with a secular purpose. Second, the statute's principal or primary effect must be one that neither advances nor inhibits religion. Third, the statute must not result in an excessive entanglement of government with religion. Lemon v. Kurtzman, 403 U. S. 602 , 403 U. S. 612 -613 (1971). [ Footnote 4 ] State action violates the Establishment Clause if it fails to satisfy any of these prongs. In this case, the Court must determine whether the Establishment Clause was violated in the special context of the public elementary and secondary school system. States and local school boards are generally afforded considerable discretion in operating public schools. See Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675 , 478 U. S. 683 (1986); id. at 478 U. S. 687 (BRENNAN, J., concurring in judgment); Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 , 393 U. S. 507 (1969). "At the same time . . . we have necessarily recognized that the discretion of the States and local school boards in matters of education must be exercised in a manner that comports with the transcendent imperatives of the First Amendment." Board of Education, Island Trees Union Free School Dist. No. 26 v. Pico, 457 U. S. 853 , 457 U. S. 864 (1982). The Court has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and Page 482 U. S. 584 secondary schools. Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family. Students in such institutions are impressionable, and their attendance is involuntary. See, e.g., Grand Rapids School Dist. v. Ball, 473 U. S. 373 , 473 U. S. 383 (1985); Wallace v. Jaffree, 472 U. S. 38 , 472 U. S. 60 , n. 51 (1985); Meek v. Pittenger, 421 U. S. 349 , 421 U. S. 369 (1975); Abington School Dist. v. Schempp, 374 U. S. 203 , 374 U. S. 252 -253 (1963) (BRENNAN, J., concurring). The State exerts great authority and coercive power through mandatory attendance requirements, and because of the students' emulation of teachers as role models and the children's susceptibility to peer pressure. [ Footnote 5 ] See Bethel School Dist. No. 403 v. Fraser, supra, at 478 U. S. 683 ; Wallace v. Jaffree, supra, at 472 U. S. 81 (O'CONNOR, J., concurring in judgment). Furthermore, "[t]he public school is at once the symbol of our democracy and the most pervasive means for promoting our common destiny. In no activity of the State is it more vital to keep out divisive forces than in its schools. . . ." Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203 , 333 U. S. 231 (1948) (opinion of Frankfurter, J.). Consequently, the Court has been required often to invalidate statutes which advance religion in public elementary and secondary schools. See, e.g., Grand Rapids School Dist. v. Ball, supra, (school district's use of religious school teachers in public schools); Wallace v. Jaffree, supra, (Alabama statute authorizing moment of silence for school prayer); Stone v. Page 482 U. S. 585 Graham, 449 U. S. 39 (1980) (posting copy of Ten Commandments on public classroom wall); Epperson v. Arkansas, 393 U. S. 97 (1968) (statute forbidding teaching of evolution); Abington School Dist. v. Schempp, supra, (daily reading of Bible); Engel v. Vitale, 370 U. S. 421 , 370 U. S. 430 (1962) (recitation of "denominationally neutral" prayer). Therefore, in employing the three-pronged Lemon test, we must do so mindful of the particular concerns that arise in the context of public elementary and secondary schools. We now turn to the evaluation of the Act under the Lemon test. III Lemon's first prong focuses on the purpose that animated adoption of the Act. "The purpose prong of the Lemon test asks whether government's actual purpose is to endorse or disapprove of religion." Lynch v. Donnelly, 465 U. S. 668 , 465 U. S. 690 (1984) (O'CONNOR, J., concurring). A governmental intention to promote religion is clear when the State enacts a law to serve a religious purpose. This intention may be evidenced by promotion of religion in general, see Wallace v. Jaffree, supra, at 472 U. S. 52 -53 (Establishment Clause protects individual freedom of conscience "to select any religious faith or none at all"), or by advancement of a particular religious belief, e.g., Stone v. Graham, supra, at 449 U. S. 41 (invalidating requirement to post Ten Commandments, which are "undeniably a sacred text in the Jewish and Christian faiths") (footnote omitted); Epperson v. Arkansas, supra, at 393 U. S. 106 (holding that banning the teaching of evolution in public schools violates the First Amendment, since "teaching and learning" must not "be tailored to the principles or prohibitions of any religious sect or dogma"). If the law was enacted for the purpose of endorsing religion, "no consideration of the second or third criteria [of Lemon ] is necessary." Wallace v. Jaffree, supra, at 472 U. S. 56 . In this case, appellants have identified no clear secular purpose for the Louisiana Act. Page 482 U. S. 586 True, the Act's stated purpose is to protect academic freedom. La.Rev.Stat.Ann. § 17:286.2 (West 1982). This phrase might, in common parlance, be understood as referring to enhancing the freedom of teachers to teach what they will. The Court of Appeals, however, correctly concluded that the Act was not designed to further that goal. [ Footnote 6 ] We find no merit in the State's argument that the "legislature may not [have] use[d] the terms 'academic freedom' in the correct legal sense. They might have [had] in mind, instead, a basic concept of fairness; teaching all of the evidence." Tr. of Oral Arg. 60. Even if "academic freedom" is read to mean "teaching all of the evidence" with respect to the origin of human beings, the Act does not further this purpose. The goal of providing a more comprehensive science curriculum is not furthered either by outlawing the teaching of evolution or by requiring the teaching of creation science. A While the Court is normally deferential to a State's articulation of a secular purpose, it is required that the statement Page 482 U. S. 587 of such purpose be sincere, and not a sham. See Wallace v. Jaffree, 472 U.S. at 472 U. S. 64 (POWELL, J., concurring); id. at 472 U. S. 75 (O'CONNOR, J., concurring in judgment); Stone v. Graham, supra, at 449 U. S. 41 ; Abington School Dist. v. Schempp, 374 U.S. at 374 U. S. 223 -224. As JUSTICE O'CONNOR stated in Wallace: "It is not a trivial matter, however, to require that the legislature manifest a secular purpose and omit all sectarian endorsements from its laws. That requirement is precisely tailored to the Establishment Clause's purpose of assuring that Government not intentionally endorse religion or a religious practice." 472 U.S. at 472 U. S. 75 (concurring in judgment). It is clear from the legislative history that the purpose of the legislative sponsor, Senator Bill Keith, was to narrow the science curriculum. During the legislative hearings, Senator Keith stated: "My preference would be that neither [creationism nor evolution] be taught." 2 App. E-621. Such a ban on teaching does not promote -- indeed, it undermines -- the provision of a comprehensive scientific education. It is equally clear that requiring schools to teach creation science with evolution does not advance academic freedom. The Act does not grant teachers a flexibility that they did not already possess to supplant the present science curriculum with the presentation of theories, besides evolution, about the origin of life. Indeed, the Court of Appeals found that no law prohibited Louisiana public school teachers from teaching any scientific theory. 765 F.2d at 1257. As the president of the Louisiana Science Teachers Association testified, "[a]ny scientific concept that's based on established fact can be included in our curriculum already, and no legislation allowing this is necessary." 2 App. E-616. The Act provides Louisiana schoolteachers with no new authority. Thus, the stated purpose is not furthered by it. The Alabama statute held unconstitutional in Wallace v. Jaffree, supra, is analogous. In Wallace, the State characterized its new law as one designed to provide a 1-minute period for meditation. We rejected that stated purpose as insufficient, Page 482 U. S. 588 because a previously adopted Alabama law already provided for such a 1-minute period. Thus, in this case, as in Wallace, "[a]ppellants have not identified any secular purpose that was not fully served by [existing state law] before the enactment of [the statute in question]." 472 U.S. at 472 U. S. 59 . Furthermore, the goal of basic "fairness" is hardly furthered by the Act's discriminatory preference for the teaching of creation science and against the teaching of evolution. [ Footnote 7 ] While requiring that curriculum guides be developed for creation science, the Act says nothing of comparable guides for evolution. La.Rev.Stat.Ann. § 17:286.7A (West 1982). Similarly, resource services are supplied for creation science, but not for evolution. § 17:286.7B. Only "creation scientists" can serve on the panel that supplies the resource services. Ibid. The Act forbids school boards to discriminate against anyone who "chooses to be a creation scientist" or to teach "creationism," but fails to protect those who choose to teach evolution or any other non-creation-science theory, or who refuse to teach creation science. § 17:286.4C. If the Louisiana Legislature's purpose was solely to maximize the comprehensiveness and effectiveness of science instruction, it would have encouraged the teaching of all scientific theories about the origins of humankind. [ Footnote 8 ] But under Page 482 U. S. 589 the Act's requirements, teachers who were once free to teach any and all facets of this subject are now unable to do so. Moreover, the Act fails even to ensure that creation science will be taught, but instead requires the teaching of this theory only when the theory of evolution is taught. Thus we agree with the Court of Appeals' conclusion that the Act does not serve to protect academic freedom, but has the distinctly different purpose of discrediting "evolution by counterbalancing its teaching at every turn with the teaching of creationism. . . ." 765 F.2d at 1257. B Stone v. Graham invalidated the State's requirement that the Ten Commandments be posted in public classrooms. "The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact" 449 U.S. at 449 U. S. 41 (footnote omitted). As a result, the contention that the law was designed to provide instruction on a "fundamental legal code" was "not sufficient to avoid conflict with the First Amendment." Ibid. Similarly, Abington School Dist. v. Schempp held unconstitutional a statute "requiring the selection and reading at the opening of the school day of verses from the Holy Bible and the recitation of the Lord's Prayer by the students in unison," despite the proffer of such secular purposes as the promotion of moral values, the contradiction Page 482 U. S. 590 to the materialistic trends of our times, the perpetuation of our institutions, and the teaching of literature. 374 U.S. at 374 U. S. 223 . As in Stone and Abington, we need not be blind in this case to the legislature's preeminent religious purpose in enacting this statute. There is a historic and contemporaneous link between the teachings of certain religious denominations and the teaching of evolution. [ Footnote 9 ] It was this link that concerned the Court in Epperson v. Arkansas, 393 U. S. 97 (1968), which also involved a facial challenge to a statute regulating the teaching of evolution. In that case, the Court reviewed an Arkansas statute that made it unlawful for an instructor to teach evolution or to use a textbook that referred to this scientific theory. Although the Arkansas anti-evolution law did not explicitly state its predominate religious purpose, the Court could not ignore that "[t]he statute was a product of the upsurge of fundamentalist' religious fervor" that has long viewed this particular scientific theory as contradicting the literal interpretation of the Bible. Id. at 393 U. S. 98 , 393 U. S. 106 -107. [ Footnote 10 ] After reviewing the history of anti-evolution statutes, the Court determined that "there can be no doubt that the motivation for the [Arkansas] law was the same [as other anti-evolution statutes]: to suppress the teaching of a theory which, it was thought, 'denied' the divine creation of man." Id. at 393 U. S. 109 . The Court found that there can be no legitimate Page 482 U. S. 591 state interest in protecting particular religions from scientific views "distasteful to them," id. at 393 U. S. 107 (citation omitted), and concluded "that the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma, . . ." id. at 393 U. S. 106 . These same historic and contemporaneous antagonisms between the teachings of certain religious denominations and the teaching of evolution are present in this case. The preeminent purpose of the Louisiana Legislature was clearly to advance the religious viewpoint that a supernatural being created humankind. [ Footnote 11 ] The term "creation science" was defined as embracing this particular religious doctrine by those responsible for the passage of the Creationism Act. Senator Keith's leading expert on creation science, Edward Boudreaux, testified at the legislative hearings that the theory of creation science included belief in the existence of a supernatural creator. See 1 App. E-421 - E-422 (noting that "creation scientists" point to high probability that life was "created by an intelligent mind"). [ Footnote 12 ] Senator Keith also cited testimony from other experts to support the creation science view that "a creator [was] responsible for the universe and everything in it." [ Footnote 13 ] 2 App. E-497. The legislative history Page 482 U. S. 592 therefore reveals that the term "creation science," as contemplated by the legislature that adopted this Act, embodies the religious belief that a supernatural creator was responsible for the creation of humankind. Furthermore, it is not happenstance that the legislature required the teaching of a theory that coincided with this religious view. The legislative history documents that the Act's primary purpose was to change the science curriculum of public schools in order to provide persuasive advantage to a particular religious doctrine that rejects the factual basis of evolution in its entirety. The sponsor of the Creationism Act, Senator Keith, explained during the legislative hearings that his disdain for the theory of evolution resulted from the support that evolution supplied to views contrary to his own religious beliefs. According to Senator Keith, the theory of evolution was consonant with the "cardinal principle[s] of religious humanism, secular humanism, theological liberalism, aetheistism [ sic ]." 1 App. E-312 - E-313; see also 2 App. E-499 - E-500. The state senator repeatedly stated that scientific evidence supporting his religious views should be included in the public school curriculum to redress the fact that the theory of evolution incidentally coincided with what he characterized as religious beliefs antithetical to his own. [ Footnote 14 ] Page 482 U. S. 593 The legislation therefore sought to alter the science curriculum to reflect endorsement of a religious view that is antagonistic to the theory of evolution. In this case, the purpose of the Creationism Act was to restructure the science curriculum to conform with a particular religious viewpoint. Out of many possible science subjects taught in the public schools, the legislature chose to affect the teaching of the one scientific theory that historically has been opposed by certain religious sects. As in Epperson, the legislature passed the Act to give preference to those religious groups which have as one of their tenets the creation of humankind by a divine creator. The "overriding fact" that confronted the Court in Epperson was "that Arkansas' law selects from the body of knowledge a particular segment which it proscribes for the sole reason that it is deemed to conflict with . . . a particular interpretation of the Book of Genesis by a particular religious group." 393 U.S. at 393 U. S. 103 . Similarly, the Creationism Act is designed either to promote the theory of creation science which embodies a particular religious tenet by requiring that creation science be taught whenever evolution is taught or to prohibit the teaching of a scientific theory disfavored by certain religious sects by forbidding the teaching of evolution when creation science is not also taught. The Establishment Clause, however, "forbids alike the preference of a religious doctrine or the prohibition of theory which is deemed antagonistic to a particular dogma." Id. at 393 U. S. 106 -107 (emphasis added). Because the primary purpose of the Creationism Act is to advance a particular religious belief, the Act endorses religion in violation of the First Amendment. We do not imply that a legislature could never require that scientific critiques of prevailing scientific theories be taught. Indeed, the Court acknowledged in Stone that its decision Page 482 U. S. 594 forbidding the posting of the Ten Commandments did not mean that no use could ever be made of the Ten Commandments, or that the Ten Commandments played an exclusively religious role in the history of Western Civilization. 449 U.S. at 449 U. S. 42 . In a similar way, teaching a variety of scientific theories about the origins of humankind to schoolchildren might be validly done with the clear secular intent of enhancing the effectiveness of science instruction. But because the primary purpose of the Creationism Act is to endorse a particular religious doctrine, the Act furthers religion in violation of the Establishment Clause. [ Footnote 15 ] IV Appellants contend that genuine issues of material fact remain in dispute, and therefore the District Court erred in granting summary judgment. Federal Rule of Civil Procedure 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." A court's finding of improper purpose behind a statute is appropriately determined by the statute on its face, its legislative history, or its interpretation by a responsible administrative agency. See, e.g., Wallace v. Jaffree, 472 U.S. at 472 U. S. 56 -61; Stone v. Graham, 449 U.S. at 449 U. S. 41 -42; Epperson v. Arkansas, 393 U.S. at 393 U. S. 103 -109. The plain meaning of the statute's words, enlightened by their context and the contemporaneous legislative history, can control the determination of legislative purpose. See Wallace v. Jaffree, supra, at 472 U. S. 74 (O'CONNOR, J., concurring in judgment); Richards v. United States, 369 U. S. 1 , 369 U. S. 9 (1962); Jay Page 482 U. S. 595 v. Boyd, 351 U. S. 345 , 351 U. S. 357 (1956). Moreover, in determining the legislative purpose of a statute, the Court has also considered the historical context of the statute, e.g., Epperson v. Arkansas, supra, and the specific sequence of events leading to passage of the statute, e.g., Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 (1977). In this case, appellees' motion for summary judgment rested on the plain language of the Creationism Act, the legislative history and historical context of the Act, the specific sequence of events leading to the passage of the Act, the State Board's report on a survey of school superintendents, and the correspondence between the Act's legislative sponsor and its key witnesses. Appellants contend that affidavits made by two scientists, two theologians, and an education administrator raise a genuine issue of material fact, and that summary judgment was therefore barred. The affidavits define creation science as "origin through abrupt appearance in complex form," and allege that such a viewpoint constitutes a true scientific theory. See App. to Brief for Appellants A-7 to A-40. We agree with the lower courts that these affidavits do not raise a genuine issue of material fact. The existence of "uncontroverted affidavits" does not bar summary judgment. [ Footnote 16 ] Moreover, the postenactment testimony of outside experts is of little use in determining the Louisiana Legislature's purpose in enacting this statute. The Louisiana Legislature did hear and rely on scientific experts in passing the bill, [ Footnote 17 ] but none of the persons making the affidavits produced by the appellants Page 482 U. S. 596 participated in or contributed to the enactment of the law or its implementation. [ Footnote 18 ] The District Court, in its discretion, properly concluded that a Monday morning "battle of the experts" over possible technical meanings of terms in the statute would not illuminate the contemporaneous purpose of the Louisiana Legislature when it made the law. [ Footnote 19 ] We therefore conclude that the District Court did not err in finding that appellants failed to raise a genuine issue of material fact, and in granting summary judgment. [ Footnote 20 ] V The Louisiana Creationism Act advances a religious doctrine by requiring either the banishment of the theory of evolution from public school classrooms or the presentation of a religious viewpoint that rejects evolution in its entirety. Page 482 U. S. 597 The Act violates the Establishment Clause of the First Amendment because it seeks to employ the symbolic and financial support of government to achieve a religious purpose. The judgment of the Court of Appeals therefore is Affirmed. [ Footnote 1 ] Appellants, the Louisiana Governor, the Attorney General, the State Superintendent, the State Department of Education, and the St. Tammany Parish School Board, agreed not to implement the Creationism Act pending the final outcome of this litigation. The Louisiana Board of Elementary and Secondary Education, and the Orleans Parish School Board were among the original defendants in the suit, but both later realigned as plaintiffs. [ Footnote 2 ] The District Court initially stayed the action pending the resolution of a separate lawsuit brought by the Act's legislative sponsor and others for declaratory and injunctive relief. After the separate suit was dismissed on jurisdictional grounds, Keith v. Louisiana Department of Education, 553 F. Supp. 295 (MD La.1982), the District Court lifted its stay in this case and held that the Creationism Act violated the Louisiana Constitution. The court ruled that the State Constitution grants authority over the public school system to the Board of Elementary and Secondary Education, rather than the state legislature. On appeal, the Court of Appeals certified the question to the Louisiana Supreme Court, which found the Creationism Act did not violate the State Constitution, Aguillard v. Treen, 440 So. 2d 704 (1983). The Court of Appeals then remanded the case to the District Court to determine whether the Creationism Act violates the Federal Constitution. Aguillard v. Treen, 720 F.2d 676 (CA5 1983). [ Footnote 3 ] The First Amendment states: "Congress shall make no law respecting an establishment of religion. . . ." Under the Fourteenth Amendment, this "fundamental concept of liberty" applies to the States. Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 303 (1940). [ Footnote 4 ] The Lemon test has been applied in all cases since its adoption in 1971, except in Marsh v. Chambers, 463 U. S. 783 (1983), where the Court held that the Nebraska Legislature's practice of opening a session with a prayer by a chaplain paid by the State did not violate the Establishment Clause. The Court based its conclusion in that case on the historical acceptance of the practice. Such a historical approach is not useful in determining the proper roles of church and state in public schools, since free public education was virtually nonexistent at the time the Constitution was adopted. See Wallace v. Jaffree, 472 U. S. 38 , 472 U. S. 80 (1985) (O'CONNOR, J., concurring in judgment) (citing Abington School Dist. v. Schempp, 374 U. S. 203 , 374 U. S. 238 , and n. 7 (1963) (BRENNAN, J., concurring)). [ Footnote 5 ] The potential for undue influence is far less significant with regard to college students, who voluntarily enroll in courses. "This distinction warrants a difference in constitutional results." Abington School Dist. v. Schempp, supra, at 374 U. S. 253 (BRENNAN, J., concurring). Thus, for instance, the Court has not questioned the authority of state colleges and universities to offer courses on religion or theology. See Widmar v. Vincent, 454 U. S. 263 , 454 U. S. 271 (1981) (POWELL, J.); id. at 474 U. S. 281 (STEVENS, J., concurring in judgment). [ Footnote 6 ] The Court of Appeals stated that "[a]cademic freedom embodies the principle that individual instructors are at liberty to teach that which they deem to be appropriate in the exercise of their professional judgment." 765 F.2d at 1257. But, in the State of Louisiana, courses in public schools are prescribed by the State Board of Education, and teachers are not free, absent permission, to teach courses different from what is required. Tr. of Oral Arg. 44-46. "Academic freedom," at least as it is commonly understood, is not a relevant concept in this context. Moreover, as the Court of Appeals explained, the Act "requires, presumably upon risk of sanction or dismissal for failure to comply, the teaching of creation science whenever evolution is taught. Although states may prescribe public school curriculum concerning science instruction under ordinary circumstances, the compulsion inherent in the Balanced Treatment Act is, on its face, inconsistent with the idea of academic freedom as it is universally understood." 765 F.2d at 1257 (emphasis in original). The Act actually serves to diminish academic freedom by removing the flexibility to teach evolution without also teaching creation science, even if teachers determine that such curriculum results in less effective and comprehensive science instruction. [ Footnote 7 ] The Creationism Act's provisions appear among other provisions prescribing the courses of study in Louisiana's public schools. These other provisions, similar to those in other States, prescribe courses of study in such topics as driver training, civics, the Constitution, and free enterprise. None of these other provisions, apart from those associated with the Creationism Act, nominally mandates "equal time" for opposing opinions within a specific area of learning. See, e.g., La.Rev.Stat.Ann. §§ 17:261-17:281 (West 1982 and Supp.1987). [ Footnote 8 ] The dissent concludes that the Act's purpose was to protect the academic freedom of students, and not that of teachers. Post at 482 U. S. 628 . Such a view is not at odds with our conclusion that, if the Act's purpose was to provide comprehensive scientific education (a concern shared by students and teachers, as well as parents), that purpose was not advanced by the statute's provisions. Supra at 482 U. S. 587 . Moreover, it is astonishing that the dissent, to prove its assertion, relies on a section of the legislation that was eventually deleted by the legislature. Compare § 3702 in 1 App. E-292 (text of section prior to amendment) with La.Rev.Stat.Ann. § 17:286.2 (West 1982). The dissent contends that this deleted section -- which was explicitly rejected by the Louisiana Legislature -- reveals the legislature's "obviously intended meaning of the statutory terms academic freedom.'" Post at 482 U. S. 628 . Quite to the contrary, Boudreaux, the main expert relied on by the sponsor of the Act, cautioned the legislature that the words "academic freedom" meant "freedom to teach science." 1 App. E-429. His testimony was given at the time the legislature was deciding whether to delete this section of the Act. [ Footnote 9 ] See McLean v. Arkansas Bd. of Ed., 529 F. Supp. 1255 , 1258-1264 (ED Ark.1982) (reviewing historical and contemporary antagonisms between the theory of evolution and religious movements). [ Footnote 10 ] The Court evaluated the statute in light of a series of anti-evolution statutes adopted by state legislatures dating back to the Tennessee statute that was the focus of the celebrated Scopes trial in 1925. Epperson v. Arkansas, 393 U.S. at 393 U. S. 98 , 393 U. S. 101 , n. 8, and 393 U. S. 109 . The Court found the Arkansas statute comparable to this Tennessee "monkey law," since both gave preference to " religious establishments which have as one of their tenets or dogmas the instantaneous creation of man.'" Id. at 393 U. S. 103 , n. 11 (quoting Scopes v. State, 154 Tenn. 105, 126, 289 S.W. 363, 369 (1927) (Chambliss, J., concurring)). [ Footnote 11 ] While the belief in the instantaneous creation of humankind by a supernatural creator may require the rejection of every aspect of the theory of evolution, an individual instead may choose to accept some or all of this scientific theory as compatible with his or her spiritual outlook. See Tr. of Oral Arg. 23-29. [ Footnote 12 ] Boudreaux repeatedly defined creation science in terms of a theory that supports the existence of a supernatural creator. See, e.g., 2 App. E-501 - E-502 (equating creation science with a theory pointing "to conditions of a creator"); 1 App. E-153 - E-154 ("Creation . . . requires the direct involvement of a supernatural intelligence"). The lead witness at the hearings introducing the original bill, Luther Sunderland, described creation science as postulating "that everything was created by some intelligence or power external to the universe." Id. at E-9 - E-10. [ Footnote 13 ] Senator Keith believed that creation science embodied this view: "One concept is that a creator, however you define a creator, was responsible for everything that is in this world. The other concept is that it just evolved." Id. at E-280. Besides Senator Keith, several of the most vocal legislators also revealed their religious motives for supporting the bill in the official legislative history. See, e.g., id. at E-441, E-443 (Sen. Saunders noting that bill was amended so that teachers could refer to the Bible and other religious texts to support the creation science theory); 2 App. E-561 - E-662, E-610 (Rep. Jenkins contending that the existence of God was a scientific fact). [ Footnote 14 ] See, e.g., 1 App. E-74 - E-75 (noting that evolution is contrary to his family's religious beliefs); id. at E-313 (contending that evolution advances religions contrary to his own); id. at E-357 (stating that evolution is "almost a religion" to science teachers); id. at E-418 (arguing that evolution is cornerstone of some religions contrary to his own); 2 App. E-763 - E-764 (author of model bill, from which Act is derived, sent copy of the model bill to Senator Keith and advised that "I view this whole battle as one between God and anti-God forces. . . . [I]f evolution is permitted to continue, . . . it will continue to be made to appear that a Supreme Being is unnecessary. . . ."). [ Footnote 15 ] Neither the District Court nor the Court of Appeals found a clear secular purpose, while both agreed that the Creationism Act's primary purpose was to advance religion. "When both courts below are unable to discern an arguably valid secular purpose, this Court normally should hesitate to find one." Wallace v. Jaffree, 472 U.S. at 472 U. S. 66 (POWELL, J., concurring). [ Footnote 16 ] There is "no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim." Celotex Corp. v. Catrett, 477 U. S. 317 , 477 U. S. 323 (1986) (emphasis in original). [ Footnote 17 ] The experts, who were relied upon by the sponsor of the bill and the legislation's other supporters, testified that creation science embodies the religious view that there is a supernatural creator of the universe. See, supra, at 482 U. S. 591 -592. [ Footnote 18 ] Appellants contend that the affidavits are relevant because the term "creation science" is a technical term similar to that found in statutes that regulate certain scientific or technological developments. Even assuming, arguendo, that "creation science" is a term of art as represented by appellants, the definition provided by the relevant agency provides a better insight than the affidavits submitted by appellants in this case. In a 1981 survey conducted by the Louisiana Department of Education, the school superintendents in charge of implementing the provisions of the Creationism Act were asked to interpret the meaning of "creation science" as used in the statute. About 75 percent of Louisiana's superintendents stated that they understood "creation science" to be a religious doctrine. 2 App. E-798 - E-799. Of this group, the largest proportion of superintendents interpreted creation science, as defined by the Act, to mean the literal interpretation of the Book of Genesis. The remaining superintendents believed that the Act required teaching the view that "the universe was made by a creator." Id. at E-799. [ Footnote 19 ] The Court has previously found the postenactment elucidation of the meaning of a statute to be of little relevance in determining the intent of the legislature contemporaneous to the passage of the statute. See Wallace v. Jaffree, 472 U.S. at 472 U. S. 57 , n. 45; id. at 472 U. S. 75 (O'CONNOR, J., concurring in judgment). [ Footnote 20 ] Numerous other Establishment Clause cases that found state statutes to be unconstitutional have been disposed of without trial. E.g., Larkin v. Grendel's Den, Inc., 459 U. S. 116 (1982); Lemon v. Kurtzman, 403 U. S. 602 (1971); Engel v. Vitale, 370 U. S. 421 (1962). JUSTICE POWELL, with whom JUSTICE O'CONNOR joins, concurring. I write separately to note certain aspects of the legislative history, and to emphasize that nothing in the Court's opinion diminishes the traditionally broad discretion accorded state and local school officials in the selection of the public school curriculum. I This Court consistently has applied the three-pronged test of Lemon v. Kurtzman, 403 U. S. 602 (1971), to determine whether a particular state action violates the Establishment Clause of the Constitution. [ Footnote 2/1 ] See, e.g., Grand Rapids School Dist. v. Ball, 473 U. S. 373 , 473 U. S. 383 (1985) ("We have particularly relied on Lemon in every case involving the sensitive relationship between government and religion in the education of our children"). The first requirement of the Lemon test is that the challenged statute have a "secular legislative purpose." Lemon v. Kurtzman, supra, at 403 U. S. 612 . See Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756 , 413 U. S. 773 (1973). If no valid secular purpose can be identified, then the statute violates the Establishment Clause. A "The starting point in every case involving construction of a statute is the language itself." Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723 , 421 U. S. 756 (1975) (POWELL, J., Page 482 U. S. 598 concurring). The Balanced Treatment for Creation-Science and Evolution-Science Act (Act or Balanced Treatment Act), La.Rev.Stat.Ann. § 17:286.1 et seq. (West 1982), provides in part: "[P]ublic schools within [the] state shall give balanced treatment to creation-science and to evolution-science. Balanced treatment of these two models shall be given in classroom lectures taken as a whole for each course, in textbook materials taken as a whole for each course, in library materials taken as a whole for the sciences and taken as a whole for the humanities, and in other educational programs in public schools, to the extent that such lectures, textbooks, library materials, or educational programs deal in any way with the subject of the origin of man, life, the earth, or the universe. When creation or evolution is taught, each shall be taught as a theory, rather than as proven scientific fact." § 17:286.4(A). "Balanced treatment" means providing whatever information and instruction in both creation and evolution models the classroom teacher determines is necessary and appropriate to provide insight into both theories in view of the textbooks and other instructional materials available for use in his classroom. § 17:286.3(1). "Creation-science" is defined as "the scientific evidences for creation and inferences from those scientific evidences." § 17:286.3(2). "Evolution-science" means "the scientific evidences for evolution and inferences from those scientific evidences." § 17:286.3(3). Although the Act requires the teaching of the scientific evidences of both creation and evolution whenever either is taught, it does not define either term. "A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning." Perrin v. United States, 444 U. S. 37 , 444 U. S. 42 (1979). The "doctrine or theory of creation" is commonly defined as "holding that matter, the various forms of life, and the world were created by a transcendent God out Page 482 U. S. 599 of nothing." Webster's Third New International Dictionary 532 (unabridged 1981). "Evolution" is defined as "the theory that the various types of animals and plants have their origin in other preexisting types, the distinguishable differences being due to modifications in successive generations." Id. at 789. Thus, the Balanced Treatment Act mandates that public schools present the scientific evidence to support a theory of divine creation whenever they present the scientific evidence to support the theory of evolution. "[C]oncepts concerning God or a supreme being of some sort are manifestly religious. . . . These concepts do not shed that religiosity merely because they are presented as a philosophy or as a science." Malnak v. Yogi, 440 F. Supp. 1284 , 1322 (NJ 1977), aff'd, per curiam, 592 F.2d 197 (CA3 1979). From the face of the statute, a purpose to advance a religious belief is apparent. A religious purpose alone is not enough to invalidate an act of a state legislature. The religious purpose must predominate. See Wallace v. Jaffree, 472 U. S. 38 , 472 U. S. 56 (1985); id. at 472 U. S. 64 (POWELL, J., concurring); Lynch v. Donnelly, 465 U. S. 668 , 465 U. S. 681 , n. 6 (1984). The Act contains a statement of purpose: to "protec[t] academic freedom." § 17:286.2. This statement is puzzling. Of course, the "academic freedom" of teachers to present information in public schools, and students to receive it, is broad. But it necessarily is circumscribed by the Establishment Clause. "Academic freedom" does not encompass the right of a legislature to structure the public school curriculum in order to advance a particular religious belief. Epperson v. Arkansas, 393 U. S. 97 , 393 U. S. 106 (1968). Nevertheless, I read this statement in the Act as rendering the purpose of the statute at least ambiguous. Accordingly, I proceed to review the legislative history of the Act. B In June, 1980, Senator Bill Keith introduced Senate Bill 956 in the Louisiana Legislature. The stated purpose of the bill Page 482 U. S. 600 was to "assure academic freedom by requiring the teaching of the theory of creation ex nihilo in all public schools where the theory of evolution is taught." 1 App. E-1. [ Footnote 2/2 ] The bill defined the "theory of creation ex nihilo " as "the belief that the origin of the elements, the galaxy, the solar system, of life, of all the species of plants and animals, the origin of man, and the origin of all things and their processes and relationships were created ex nihilo and fixed by God." Id. at E-1a - E-1b. This theory was referred to by Senator Keith as "scientific creationism." Id. at E-2. While a Senate committee was studying scientific creationism, Senator Keith introduced a second draft of the bill, requiring balanced treatment of "evolution science" and "creation science." Id. at E-108. Although the Keith bill prohibited "instruction in any religious doctrine or materials," id. at E-302, it defined "creation-science" to include "the scientific evidences and related inferences that indicate (a) sudden creation of the universe, energy, and life from nothing; (b) the insufficiency of mutation and natural selection in bringing about development of all living kinds from a single organism; (c) changes only within fixed limits or originally created kinds of plants and animals; (d) separate ancestry for man and apes; (e) explanation of the earth's geology by catastrophism, including the occurrence of a worldwide flood; and (f) a Page 482 U. S. 601 relatively recent inception of the earth and living kinds." Id. at E-298 - E-299. Significantly, the model Act on which the Keith bill relied was also the basis for a similar statute in Arkansas. See McLean v. Arkansas Board of Education, 529 F. Supp. 1255 (ED Ark.1982). The District Court in McLean carefully examined this model Act, particularly the section defining creation science, and concluded that "[b]oth [its] concepts and wording . . . convey an inescapable religiosity." Id. at 1265. The court found that "[t]he ideas of [this section] are not merely similar to the literal interpretation of Genesis; they are identical and parallel to no other story of creation." Ibid. The complaint in McLean was filed on May 27, 1981. On May 28, the Louisiana Senate committee amended the Keith bill to delete the illustrative list of scientific evidences. According to the legislator who proposed the amendment, it was "not intended to try to gut [the bill] in any way, or defeat the purpose [for] which Senator Keith introduced [it]," 1 App. E-432, and was not viewed as working "any violence to the bill." Id. at E-438. Instead, the concern was "whether this should be an all-inclusive list." Ibid. The legislature then held hearings on the amended bill that became the Balanced Treatment Act under review. The principal creation scientist to testify in support of the Act was Dr. Edward Boudreaux. He did not elaborate on the nature of creation science except to indicate that the "scientific evidences" of the theory are "the objective information of science [that] point[s] to conditions of a creator." 2 id. at E-501 - E-502. He further testified that the recognized creation scientists in the United States, who "numbe[r] something like a thousand [and] who hold doctorate and masters degrees in all areas of science," are affiliated with either or both the Institute for Creation Research and the Creation Research Society. Id. at E-503 - E-504. Information on both of these organizations is part of the legislative history, Page 482 U. S. 602 and a review of their goals and activities sheds light on the nature of creation science as it was presented to, and understood by, the Louisiana Legislature. The Institute for Creation Research is an affiliate of the Christian Heritage College in San Diego, California. The Institute was established to address the "urgent need for our nation to return to belief in a personal, omnipotent Creator, who has a purpose for His creation and to whom all people must eventually give account." 1 id. at E-197. A goal of the Institute is "a revival of belief in special creation as the true explanation of the origin of the world." Therefore, the Institute currently is working on the "development of new methods for teaching scientific creationism in public schools." Id. at E-197 - E-199. The Creation Research Society (CRS) is located in Ann Arbor, Michigan. A member must subscribe to the following statement of belief: "The Bible is the written word of God, and because it is inspired throughout, all of its assertions are historically and scientifically true." 2 id. at E-583. To study creation science at the CRS, a member must accept "that the account of origins in Genesis is a factual presentation of simple historical truth." Ibid. [ Footnote 2/3 ] Page 482 U. S. 603 C When, as here, "both courts below are unable to discern an arguably valid secular purpose, this Court normally should hesitate to find one." Wallace v. Jaffree, 472 U.S. at 472 U. S. 66 (POWELL, J., concurring). My examination of the language and the legislative history of the Balanced Treatment Act confirms that the intent of the Louisiana Legislature was to promote a particular religious belief. The legislative history of the Arkansas statute prohibiting the teaching of evolution examined in Epperson v. Arkansas, 393 U. S. 97 (1968), was strikingly similar to the legislative history of the Balanced Treatment Act. In Epperson, the Court found: "It is clear that fundamentalist sectarian conviction was and is the law's reason for existence. Its antecedent, Tennessee's 'monkey law,' candidly stated its purpose: to make it unlawful" "to teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals." "Perhaps the sensational publicity attendant upon the Scopes trial induced Arkansas to adopt less explicit language. It eliminated Tennessee's reference to 'the story of the Divine creation of man' as taught in the Bible, but there is no doubt that the motivation for the law was the same: to suppress the teaching of a theory which, it was thought, 'denied' the divine creation of man." Id. at 107-109 (footnotes omitted). Here, it is clear that religious belief is the Balanced Treatment Act's "reason for existence." The tenets of creation science parallel the Genesis story of creation, [ Footnote 2/4 ] and this is a Page 482 U. S. 604 religious belief. "[N]o legislative recitation of a supposed secular purpose can blind us to that fact." Stone v. Graham, 449 U. S. 39 , 449 U. S. 41 (1980). Although the Act, as finally enacted, does not contain explicit reference to its religious purpose, there is no indication in the legislative history that the deletion of "creation ex nihilo " and the four primary tenets of the theory was intended to alter the purpose of teaching creation science. Instead, the statements of purpose of the sources of creation science in the United States make clear that their purpose is to promote a religious belief. I find no persuasive evidence in the legislative history that the legislature's purpose was any different. The fact that the Louisiana Legislature purported to add information to the school curriculum, rather than detract from, it as in Epperson, does not affect my analysis. Both legislatures acted with the unconstitutional purpose of structuring the public school curriculum to make it compatible with a particular religious belief the "divine creation of man." That the statute is limited to the scientific evidences supporting the theory does not render its purpose secular. In reaching its conclusion that the Act is unconstitutional, the Court of Appeals "[did] not deny that the underpinnings of creationism may be supported by scientific evidence." 765 F.2d 1251, 1256 (1985). And there is no need to do so. Whatever the academic merit of particular subjects or theories, the Establishment Clause limits the discretion of state officials to pick and choose among them for the purpose of promoting a particular religious belief. The language of the statute and its legislative history convince me that the Louisiana Legislature exercised its discretion for this purpose in this case. Page 482 U. S. 605 II Even though I find Louisiana's Balanced Treatment Act unconstitutional, I adhere to the view "that the States and locally elected school boards should have the responsibility for determining the educational policy of the public schools." Board of Education, Island Trees Union Free School Dist. No. 26 v. Pico, 457 U. S. 853 , 457 U. S. 893 (1982) (POWELL, J., dissenting). A decision respecting the subject matter to be taught in public schools does not violate the Establishment Clause simply because the material to be taught " happens to coincide or harmonize with the tenets of some or all religions.'" Harris v. McRae, 448 U. S. 297 , 448 U. S. 319 (1980) (quoting McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 442 (1961)). In the context of a challenge under the Establishment Clause, interference with the decisions of these authorities is warranted only when the purpose for their decisions is clearly religious. The history of the Religion Clauses of the First Amendment has been chronicled by this Court in detail. See, e.g., Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 8 -14 (1947); Engel v. Vitale, 370 U. S. 421 , 370 U. S. 425 -430 (1962); McGowan v. Maryland, supra, at 366 U. S. 437 -442. Therefore, only a brief review at this point may be appropriate. The early settlers came to this country from Europe to escape religious persecution that took the form of forced support of state-established churches. The new Americans thus reacted strongly when they perceived the same type of religious intolerance emerging in this country. The reaction in Virginia, the home of many of the Founding Fathers, is instructive. George Mason's draft of the Virginia Declaration of Rights was adopted by the House of Burgesses in 1776. Because of James Madison's influence, the Declaration of Rights embodied the guarantee of free exercise of religion, as opposed to toleration. Eight years later, a provision prohibiting the establishment of religion became a part of Virginia law when James Madison's Memorial and Remonstrance against Religious Page 482 U. S. 606 Assessments, written in response to a proposal that all Virginia citizens be taxed to support the teaching of the Christian religion, spurred the legislature to consider and adopt Thomas Jefferson's Bill for Establishing Religious Freedom. See Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. at 413 U. S. 770 , n. 28. Both the guarantees of free exercise and against the establishment of religion were then incorporated into the Federal Bill of Rights by its drafter, James Madison. While the "meaning and scope of the First Amendment" must be read "in light of its history and the evils it was designed forever to suppress," Everson v. Board of Education, supra, at 330 U. S. 14 -15, this Court has also recognized that "this Nation's history has not been one of entirely sanitized separation between Church and State." Committee for Public Education & Religious Liberty v. Nyquist, supra, at 413 U. S. 760 . "The fact that the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself." Abington School District v. Schempp, 374 U. S. 203 , 374 U. S. 213 (1963). [ Footnote 2/5 ] The Court properly has noted "an unbroken history of official acknowledgment . . . of the role of religion in American life." Lynch v. Donnelly, 465 U.S. at 465 U. S. 674 , and has recognized that these references to "our religious heritage" are constitutionally acceptable. Id. at 465 U. S. 677 . As a matter of history, schoolchildren can and should properly be informed of all aspects of this Nation's religious heritage. I would see no constitutional problem if schoolchildren were taught the nature of the Founding Father's religious beliefs and how these beliefs affected the attitudes Page 482 U. S. 607 of the times and the structure of our government. [ Footnote 2/6 ] Courses in comparative religion, of course, are customary and constitutionally appropriate. [ Footnote 2/7 ] In fact, since religion permeates our history, a familiarity with the nature of religious beliefs is necessary to understand many historical, as well as contemporary, events. [ Footnote 2/8 ] In addition, it is worth noting that the Establishment Page 482 U. S. 608 Clause does not prohibit per se the educational use of religious documents in public school education. Although this Court has recognized that the Bible is "an instrument of religion," Abington School District v. Schempp, supra, at 374 U. S. 224 , it also has made clear that the Bible "may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like." Stone v. Graham, 449 U.S. at 449 U. S. 42 (citing Abington School District v. Schempp, supra, at 374 U. S. 225 ). The book is, in fact, "the world's all-time best seller," [ Footnote 2/9 ] with undoubted literary and historic value apart from its religious content. The Establishment Clause is properly understood to prohibit the use of the Bible and other religious documents in public school education only when the purpose of the use is to advance a particular religious belief. III In sum, I find that the language and the legislative history of the Balanced Treatment Act unquestionably demonstrate that its purpose is to advance a particular religious belief. Although the discretion of state and local authorities over public school curricula is broad, "the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma." Epperson v. Arkansas, 393 U.S. at 339 U. S. 106 . Accordingly, I concur in the opinion of the Court and its judgment that the Balanced Treatment Act violates the Establishment Clause of the Constitution. [ Footnote 2/1 ] As the Court recognizes, ante at 482 U. S. 583 , n. 4, the one exception to this consistent application of the Lemon test is Marsh v. Chambers, 463 U. S. 783 (1983). [ Footnote 2/2 ] Creation " ex nihilo " means creation "from nothing," and has been found to be an "inherently religious concept." McLean v. Arkansas Board of Education, 529 F. Supp. 1255 , 1266 (ED Ark.1982). The District Court in McLean found: "The argument that creation from nothing in [§] 4(a)(1) [of the substantially similar Arkansas Balanced Treatment Act] does not involve a supernatural deity has no evidentiary or rational support. To the contrary, 'creation out of nothing' is a concept unique to Western religions. In traditional Western religious thought, the conception of a creator of the world is a conception of God. Indeed, creation of the world 'out of nothing' is the ultimate religious statement, because God is the only actor." Id. at 1265. [ Footnote 2/3 ] The District Court in McLean noted three other elements of the CRS statement of belief to which members must subscribe: "'[i] All basic types of living things, including man, were made by direct creative acts of God during Creation Week as described in Genesis. Whatever biological changes have occurred since Creation have accomplished only changes within the original created kinds. [ii] The great Flood described in Genesis, commonly referred to as the Noachian Deluge, was an historical event, world-wide in its extent and effect. [iii] Finally, we are an organization of Christian men of science, who accept Jesus Christ as our Lord and Savior. The account of the special creation of Adam and Eve as one man and one woman, and their subsequent Fall into sin, is the basis for our belief in the necessity of a Savior for all mankind. Therefore, salvation can come only thru [ sic ] accepting Jesus Christ as our Savior.'" 629 F. Supp. at 1260, n. 7. [ Footnote 2/4 ] After hearing testimony from numerous experts, the District Court in McLean concluded that "[t]he parallels between [the definition section of the model Act] and Genesis are quite specific." Id. at 1265, n.19. It found the concepts of "sudden creation from nothing," a worldwide flood of divine origin, and "kinds" to be derived from Genesis; "relatively recent inception" to mean "an age of the earth from 6,000 to 10,000 years" and to be based "on the genealogy of the Old Testament using the rather astronomical ages assigned to the patriarchs"; and the "separate ancestry of man and ape" to focus on "the portion of the theory of evolution which Fundamentalists find most offensive." Ibid. (citing Epperson v. Arkansas, 393 U. S. 97 (1968)). [ Footnote 2/5 ] John Adams wrote to Thomas Jefferson: "[T]he Bible is the best book in the world. It contains more of my little philosophy than all the libraries I have seen; and such parts of it as I cannot reconcile to my little philosophy, I postpone for future investigation." Letter of Dec. 25, 1813, 10 Works of John Adams 85 (1856). [ Footnote 2/6 ] There is an enormous variety of religions in the United States. The Encyclopedia of American Religions (2d ed.1987) describes 1,347 religious organizations. The United States Census Bureau groups the major American religions into: Buddhist Churches of America; Eastern Churches; Jews; Old Catholic, Polish National Catholic, and Armenian Churches; The Roman Catholic Church; Protestants; and Miscellaneous. Statistical Abstract of the United States 50 (106th ed.1986). Our country has become strikingly multireligious, as well as multiracial and multiethnic. This fact, perhaps more than anything one could write, demonstrates the wisdom of including the Establishment Clause in the First Amendment. States' proposals for what became the Establishment Clause evidence the goal of accommodating competing religious beliefs. See, e.g., New York's Resolution of Ratification reprinted in 2 Documentary History of the Constitution 190, 191 (1894) ("[N]o Religious Sect or Society ought to be favoured or established by Law in preference of others"). [ Footnote 2/7 ] State-sponsored universities in Louisiana already offer courses integrating religious studies into the curriculum. Approximately half of the state-sponsored universities offer one or more courses involving religion. As an example, Louisiana State University at Baton Rouge offers seven courses: Introduction to Religion, Old Testament, New Testament, Faith and Doubt, Jesus in History and Tradition, Eastern Religions, and Philosophy of Religion. Of course, the difference in maturity between college-age and secondary students may affect the constitutional analysis of a particular public school policy. See Widmar v. Vincent, 454 U. S. 263 , 454 U. S. 274 , n. 14 (1981). Nevertheless, many general teaching guides suggest that education as to the nature of various religious beliefs could be integrated into a secondary school curriculum in a manner consistent with the Constitution. See, e.g., C. Kniker, Teaching about Religion in Public Schools (1985); Religion in Elementary Social Studies Project, Final Report (Fla.State Univ.1976); L. Karp, Teaching the Bible as Literature in Public Schools (1973). [ Footnote 2/8 ] For example, the political controversies in Northern Ireland, the Middle East, and India cannot be understood properly without reference to the underlying religious beliefs and the conflicts they tend to generate. [ Footnote 2/9 ] See N.Y. Times, May 10, 1981, section 2, p. 24, col. 3; N. McWhirter, 1986 Guiness Book of World Records 144 (the Bible is the world's most widely distributed book). JUSTICE WHITE, concurring in the judgment. As it comes to us, this is not a difficult case. Based on the historical setting and plain language of the Act, both courts construed the statutory words "creation science" to refer to a religious belief, which the Act required to be taught if evolution Page 482 U. S. 609 was taught. In other words, the teaching of evolution was conditioned on the teaching of a religious belief. Both courts concluded that the state legislature's primary purpose was to advance religion, and that the statute was therefore unconstitutional under the Establishment Clause. We usually defer to courts of appeals on the meaning of a state statute, especially when a district court has the same view. Of course, we have the power to disagree, and the lower courts in a particular case may be plainly wrong. But if the meaning ascribed to a state statute by a court of appeals is a rational construction of the statute, we normally accept it. Brockett v. Spokane Arcades, Inc., 472 U. S. 491 , 472 U. S. 499 -500 (1985); Chardon v. Fumero Soto, 462 U. S. 650 , 462 U. S. 654 -655, n. 5 (1983); Haring v. Prosise, 462 U. S. 306 , 462 U. S. 314 , n. 8 (1983); Pierson v. Ray, 386 U. S. 547 , 386 U. S. 558 , n. 12 (1967); General Box Co. v. United States, 351 U. S. 159 , 351 U. S. 165 (1956). We do so because we believe "that district courts and courts of appeals are better schooled in and more able to interpret the laws of their respective States." Brockett v. Spokane Arcades, supra, at 472 U. S. 500 . Brockett also indicates that the usual rule applies in First Amendment cases. Here, the District Judge, relying on the terms of the Act, discerned its purpose to be the furtherance of a religious belief, and a panel of the Court of Appeals agreed. Of those four judges, two are Louisianians. I would accept this view of the statute. Even if, as an original matter, I might have arrived at a different conclusion based on a reading of the statute and the record before us, I cannot say that the two courts below are so plainly wrong that they should be reversed. Rehearing en banc was denied by an 8-7 vote, the dissenters expressing their disagreement with the panel decision. The disagreement, however, was over the construction of the Louisiana statute, particularly the assessment of its purpose, and offers no justification for departing from the usual rule counseling against de novo constructions of state statutes. Page 482 U. S. 610 If the Court of Appeals' construction is to be accepted, so is its conclusion that, under our prior cases, the Balanced Treatment Act is unconstitutional because its primary purpose is to further a religious belief by imposing certain requirements on the school curriculum. Unless, therefore, we are to reconsider the Court's decisions interpreting the Establishment Clause, I agree that the judgment of the Court of Appeals must be affirmed. JUSTICE SCALIA, with whom THE CHIEF JUSTICE joins, dissenting. Even if I agreed with the questionable premise that legislation can be invalidated under the Establishment Clause on the basis of its motivation alone, without regard to its effects, I would still find no justification for today's decision. The Louisiana legislators who passed the "Balanced Treatment for Creation-Science and Evolution-Science Act" (Balanced Treatment Act), La.Rev.Stat.Ann. §§ 17:286.1-17:286.7 (West 1982), each of whom had sworn to support the Constitution, [ Footnote 3/1 ] were well aware of the potential Establishment Clause problems, and considered that aspect of the legislation with great care. After seven hearings and several months of study, resulting in substantial revision of the original proposal, they approved the Act overwhelmingly, and specifically articulated the secular purpose they meant it to serve. Although the record contains abundant evidence of the sincerity of that purpose (the only issue pertinent to this case), the Court today holds, essentially on the basis of "its visceral knowledge regarding what must have motivated the legislators," 778 F.2d 225, 227 (CA5 1985) (Gee, J., dissenting) (emphasis added), that the members of the Louisiana Legislature knowingly violated their oaths and then lied about it. I dissent. Had requirements of the Balanced Treatment Act that Page 482 U. S. 611 are not apparent on its face been clarified by an interpretation of the Louisiana Supreme Court, or by the manner of its implementation, the Act might well be found unconstitutional; but the question of its constitutionality cannot rightly be disposed of on the gallop, by impugning the motives of its supporters. I This case arrives here in the following posture: the Louisiana Supreme Court has never been given an opportunity to interpret the Balanced Treatment Act, State officials have never attempted to implement it, and it has never been the subject of a full evidentiary hearing. We can only guess at its meaning. We know that it forbids instruction in either "creation science" or "evolution science" without instruction in the other, § 17:286.4A, but the parties are sharply divided over what creation science consists of. Appellants insist that it is a collection of educationally valuable scientific data that has been censored from classrooms by an embarrassed scientific establishment. Appellees insist it is not science at all, but thinly veiled religious doctrine. Both interpretations of the intended meaning of that phrase find considerable support in the legislative history. At least at this stage in the litigation, it is plain to me that we must accept appellants' view of what the statute means. To begin with, the statute itself defines "creation science" as "the scientific evidences for creation and inferences from those scientific evidences. " § 17:286.3(2) (emphasis added). If, however, that definition is not thought sufficiently helpful, the means by which the Louisiana Supreme Court will give the term more precise content is quite clear -- and again, at this stage in the litigation, favors the appellants' view. "Creation science" is unquestionably a "term of art," see Brief for 72 Nobel Laureates et al. as Amici Curiae 20, and thus, under Louisiana law, is "to be interpreted according to [its] received meaning and acceptation with the learned in the art, trade or profession to which [it] refer[s]." La.Civ.Code Page 482 U. S. 612 Ann., Art. 15 (West 1952). [ Footnote 3/2 ] The only evidence in the record of the "received meaning and acceptation" of "creation science" is found in five affidavits filed by appellants. In those affidavits, two scientists, a philosopher, a theologian, and an educator, all of whom claim extensive knowledge of creation science, swear that it is essentially a collection of scientific data supporting the theory that the physical universe and life within it appeared suddenly, and have not changed substantially since appearing. See App. to Juris. Statement A-19 (Kenyon); id. at A-36 (Morrow); id. at A-41 (Miethe). These experts insist that creation science is a strictly scientific concept that can be presented without religious reference. See id. at A-19 - A-20, A-35 (Kenyon); id. at A-36 - A-38 (Morrow); id. at A-40, A-41, A-43 (Miethe); id. at A-47, A-48 (Most); id. at A-49 (Clinkert). At this point, then, we must assume that the Balanced Treatment Act does not require the presentation of religious doctrine. Nothing in today's opinion is plainly to the contrary, but what the statute means and what it requires are of rather little concern to the Court. Like the Court of Appeals, 765 F.2d 1251, 1253, 1254 (CA5 1985), the Court finds it necessary to consider only the motives of the legislators who supported the Balanced Treatment Act, ante at 482 U. S. 586 , 482 U. S. 593 -594, 482 U. S. 596 . After examining the statute, its legislative history, and its historical and social context, the Court holds that the Louisiana Legislature acted without "a secular legislative purpose," and that the Act therefore fails the "purpose" prong of the three-part test set forth in Lemon v. Kurtzman, 403 U. S. 602 , 403 U. S. 612 (1971). As I explain below, infra at 482 U. S. 636 -640, Page 482 U. S. 613 I doubt whether that "purpose" requirement of Lemon is a proper interpretation of the Constitution; but even if it were, I could not agree with the Court's assessment that the requirement was not satisfied here. This Court has said little about the first component of the Lemon test. Almost invariably, we have effortlessly discovered a secular purpose for measures challenged under the Establishment Clause, typically devoting no more than a sentence or two to the matter. See, e.g., Witters v. Washington Dept. of Services for Blind, 474 U. S. 481 , 474 U. S. 485 -486 (1986); Grand Rapids School District v. Ball, 473 U. S. 373 , 473 U. S. 383 (1985); Mueller v. Allen, 463 U. S. 388 , 463 U. S. 394 -395 (1983); Larkin v. Grendel's Den, Inc., 459 U. S. 116 , 459 U. S. 123 -124 (1982); Widmar v. Vincent, 454 U. S. 263 , 454 U. S. 271 (1981); Committee for Public Education & Religious Liberty v. Regan, 444 U. S. 646 , 444 U. S. 654 , 444 U. S. 657 (1980); Wolman v. Walter, 433 U. S. 229 , 433 U. S. 236 (1977) (plurality opinion); Meek v. Pittenger, 421 U. S. 349 , 421 U. S. 363 (1975); Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756 , 413 U. S. 773 (1973); Levitt v. Committee for Public Education & Religious Liberty, 413 U. S. 472 , 413 U. S. 479 -480, n. 7 (1973); Tilton v. Richardson, 403 U. S. 672 , 403 U. S. 678 -679 (1971) (plurality opinion); Lemon v. Kurtzman, supra, at 403 U. S. 613 . In fact, only once before deciding Lemon, and twice since, have we invalidated a law for lack of a secular purpose. See Wallace v. Jaffree, 472 U. S. 38 (1985); Stone v. Graham, 449 U. S. 39 (1980) (per curiam); Epperson v. Arkansas, 393 U. S. 97 (1968). Nevertheless, a few principles have emerged from our cases, principles which should, but to an unfortunately large extent do not, guide the Court's application of Lemon today. It is clear, first of all, that regardless of what "legislative purpose" may mean in other contexts, for the purpose of the Lemon test, it means the "actual" motives of those responsible for the challenged action. The Court recognizes this, see ante at 482 U.S. 585 , as it has in the past, see, e.g., Witters v. Washington Dept. of Services for Blind, supra, at 474 U. S. 486 ; Wallace v. Page 482 U. S. 614 Jaffree, supra, at 472 U. S. 56 . Thus, if those legislators who supported the Balanced Treatment Act in fact acted with a "sincere" secular purpose, ante at 482 U. S. 587 , the Act survives the first component of the Lemon test, regardless of whether that purpose is likely to be achieved by the provisions they enacted. Our cases have also confirmed that, when the Lemon Court referred to "a secular . . . purpose," 403 U.S. at 403 U. S. 612 , it meant " a secular purpose." The author of Lemon, writing for the Court, has said that invalidation under the purpose prong is appropriate when "there [is] no question that the statute or activity was motivated wholly by religious considerations." Lynch v. Donnelly, 465 U. S. 668 , 465 U. S. 680 (1984) (Burger, C.J.) (emphasis added); see also id. at 465 U. S. 681 , n. 6; Wallace v. Jaffree, supra, at 472 U. S. 56 ("[T]he First Amendment requires that a statute must be invalidated if it is entirely motivated by a purpose to advance religion") (emphasis added; footnote omitted). In all three cases in which we struck down laws under the Establishment Clause for lack of a secular purpose, we found that the legislature's sole motive was to promote religion. See Wallace v. Jaffree, supra, at 472 U. S. 56 , 472 U. S. 57 , 472 U. S. 60 ; Stone v. Graham, supra, at 449 U. S. 41 , 449 U. S. 43 , n. 5; Epperson v. Arkansas, supra, at 393 U. S. 103 , 393 U. S. 107 -108; see also Lynch v. Donnelly, supra, at 465 U. S. 680 (describing Stone and Epperson as cases in which we invalidated laws "motivated wholly by religious considerations"). Thus, the majority's invalidation of the Balanced Treatment Act is defensible only if the record indicates that the Louisiana Legislature had no secular purpose. It is important to stress that the purpose forbidden by Lemon is the purpose to "advance religion." 403 U.S. at 403 U. S. 613 ; accord, ante at 482 U.S. 585 ("promote" religion); Witters v. Washington Dept. of Services for Blind, supra, at 474 U. S. 486 ("endorse religion"); Wallace v. Jaffree, 472 U.S. at 472 U. S. 56 ("advance religion"); ibid. ("endorse . . . religion"); Committee for Public Education & Religious Liberty v. Nyquist, supra, at 413 U. S. 788 (" advancing' . . . religion"); Levitt v. Committee for Page 482 U. S. 615 Public Education & Religious Liberty, supra, at 413 U. S. 481 ("advancing religion"); Walz v. Tax Comm'n of New York City, 397 U. S. 664 , 397 U. S. 674 (1970) ("establishing, sponsoring, or supporting religion"); Board of Education v. Allen, 392 U. S. 236 , 392 U. S. 243 (1968) ("`advancement or inhibition of religion'") (quoting Abington School Dist. v. Schempp, 374 U. S. 203 , 374 U. S. 222 (1963)). Our cases in no way imply that the Establishment Clause forbids legislators merely to act upon their religious convictions. We surely would not strike down a law providing money to feed the hungry or shelter the homeless if it could be demonstrated that, but for the religious beliefs of the legislators, the funds would not have been approved. Also, political activism by the religiously motivated is part of our heritage. Notwithstanding the majority's implication to the contrary, ante at 482 U. S. 589 -591, we do not presume that the sole purpose of a law is to advance religion merely because it was supported strongly by organized religions or by adherents of particular faiths. See Walz v. Tax Comm'n of New York City, supra, at 397 U. S. 670 ; cf. Harris v. McRae, 448 U. S. 297 , 448 U. S. 319 -320 (1980). To do so would deprive religious men and women of their right to participate in the political process. Today's religious activism may give us the Balanced Treatment Act, but yesterday's resulted in the abolition of slavery, and tomorrow's may bring relief for famine victims. Similarly, we will not presume that a law's purpose is to advance religion merely because it " happens to coincide or harmonize with the tenets of some or all religions,'" Harris v. McRae, supra, at 448 U. S. 319 (quoting McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 442 (1961)), or because it benefits religion, even substantially. We have, for example, turned back Establishment Clause challenges to restrictions on abortion funding, Harris v. McRae, supra, and to Sunday closing laws, McGowan v. Maryland, supra, despite the fact that both "agre[e] with the dictates of [some] Judaeo-Christian religions," id. at 366 U. S. 442 . "In many instances, the Congress or state legislatures conclude that the general welfare of society, Page 482 U. S. 616 wholly apart from any religious considerations, demands such regulation." Ibid. On many past occasions, we have had no difficulty finding a secular purpose for governmental action far more likely to advance religion than the Balanced Treatment Act. See, e.g., Mueller v. Allen, 463 U.S. at 463 U. S. 394 -395 (tax deduction for expenses of religious education); Wolman v. Walter, 433 U.S. at 433 U. S. 236 (plurality opinion) (aid to religious schools); Meek v. Pittenger, 421 U.S. at 421 U. S. 363 (same); Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. at 413 U. S. 773 (same); Lemon v. Kurtzman, 403 U.S. at 403 U. S. 613 (same); Walz v. Tax Comm'n of New York City, supra, at 397 U. S. 672 (tax exemption for church property); Board of Education v. Allen, supra, at 392 U. S. 243 (textbook loans to students in religious schools). Thus, the fact that creation science coincides with the beliefs of certain religions, a fact upon which the majority relies heavily, does not itself justify invalidation of the Act. Finally, our cases indicate that even certain kinds of governmental actions undertaken with the specific intention of improving the position of religion do not "advance religion" as that term is used in Lemon. 403 U.S. at 403 U. S. 613 . Rather, we have said that, in at least two circumstances, government must act to advance religion, and that, in a third, it may do so. First, since we have consistently described the Establishment Clause as forbidding not only state action motivated by the desire to advance religion, but also that intended to "disapprove," "inhibit," or evince "hostility" toward religion, see, e.g., ante at 482 U.S. 585 (" disapprove'") (quoting Lynch v. Donnelly, supra, at 465 U. S. 690 (O'CONNOR, J., concurring)); Lynch v. Donnelly, supra, at 465 U. S. 673 ("hostility"); Committee for Public Education & Religious Liberty v. Nyquist, supra, at 413 U. S. 788 ("`inhibi[t]'"); and since we have said that governmental "neutrality" toward religion is the preeminent goal of the First Amendment, see, e.g., Grand Rapids School District v. Ball, 473 U.S. at 473 U. S. 382 ; Roemer v. Maryland Public Works Bd., 426 U. S. 736 , 426 U. S. 747 (1976) (plurality opinion); Page 482 U. S. 617 Committee for Public Education & Religious Liberty v. Nyquist, supra, at 413 U. S. 792 -793; a State which discovers that its employees are inhibiting religion must take steps to prevent them from doing so, even though its purpose would clearly be to advance religion. Cf. Walz v. Tax Comm'n of New York City, supra, at 397 U. S. 673 . Thus, if the Louisiana Legislature sincerely believed that the State's science teachers were being hostile to religion, our cases indicate that it could act to eliminate that hostility without running afoul of Lemon's purpose test. Second, we have held that intentional governmental advancement of religion is sometimes required by the Free Exercise Clause. For example, in Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136 (1987); Thomas v. Review Bd., Indiana Employment Security Div., 450 U. S. 707 (1981); Wisconsin v. Yoder, 406 U. S. 205 (1972); and Sherbert v. Verner, 374 U. S. 398 (1963), we held that, in some circumstances, States must accommodate the beliefs of religious citizens by exempting them from generally applicable regulations. We have not yet come close to reconciling Lemon and our Free Exercise cases, and typically we do not really try. See, e.g., Hobbie v. Unemployment Appeals Comm'n of Fla., supra, at 480 U. S. 144 -145; Thomas v. Review Bd., Indiana Employment Security Div., supra, at 450 U. S. 719 -720. It is clear, however, that members of the Louisiana Legislature were not impermissibly motivated for purposes of the Lemon test if they believed that approval of the Balanced Treatment Act was required by the Free Exercise Clause. We have also held that, in some circumstances, government may act to accommodate religion, even if that action is not required by the First Amendment. See Hobbie v. Unemployment Appeals Comm'n of Fla., supra, at 480 U. S. 144 -145. It is well established that "[t]he limits of permissible state accommodation to religion are by no means coextensive with the noninterference mandated by the Free Exercise Clause." Walz v. Tax Comm'n of New York City, supra, at 397 U. S. 673 ; Page 482 U. S. 618 see also Gillette v. United States, 401 U. S. 437 , 401 U. S. 453 (1971). We have implied that voluntary governmental accommodation of religion is not only permissible, but desirable. See, e.g., ibid. Thus, few would contend that Title VII of the Civil Rights Act of 1964, which both forbids religious discrimination by private sector employers, 78 Stat. 255, 42 U.S.C. § 2000e-2(a)(1), and requires them reasonably to accommodate the religious practices of their employees, § 2000e(j), violates the Establishment Clause, even though its "purpose" is, of course, to advance religion, and even though it is almost certainly not required by the Free Exercise Clause. While we have warned that, at some point, accommodation may devolve into "an unlawful fostering of religion," Hobbie v. Unemployment Appeals Comm'n of Fla., supra, at 480 U. S. 145 , we have not suggested precisely (or even roughly) where that point might be. It is possible, then, that, even if the sole motive of those voting for the Balanced Treatment Act was to advance religion, and its passage was not actually required, or even believed to be required, by either the Free Exercise or Establishment Clauses, the Act would nonetheless survive scrutiny under Lemon's purpose test. One final observation about the application of that test: although the Court's opinion gives no hint of it, in the past we have repeatedly affirmed "our reluctance to attribute unconstitutional motives to the States." Mueller v. Allen, supra, at 463 U. S. 394 ; see also Lynch v. Donnelly, 465 U.S. at 465 U. S. 699 (BRENNAN, J., dissenting). We "presume that legislatures act in a constitutional manner." Illinois v. Krull, 480 U. S. 340 , 480 U. S. 351 (1987); see also Clements v. Fashing, 457 U. S. 957 , 457 U. S. 963 (1982) (plurality opinion); Rostker v. Goldberg, 453 U. S. 57 , 453 U. S. 64 (1981); McDonald v. Board of Election Comm'rs of Chicago, 394 U. S. 802 , 394 U. S. 809 (1969). Whenever we are called upon to judge the constitutionality of an act of a state legislature, "we must have 'due regard to the fact that this Court is not exercising a primary judgment, but is sitting in judgment Page 482 U. S. 619 upon those who also have taken the oath to observe the Constitution and who have the responsibility for carrying on government.'" Rostker v. Goldberg, supra, at 453 U. S. 64 (quoting Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123 , 341 U. S. 164 (1951) (Frankfurter, J., concurring)). This is particularly true, we have said, where the legislature has specifically considered the question of a law's constitutionality. Ibid. With the foregoing in mind, I now turn to the purposes underlying adoption of the Balanced Treatment Act. II A We have relatively little information upon which to judge the motives of those who supported the Act. About the only direct evidence is the statute itself and transcripts of the seven committee hearings at which it was considered. Unfortunately, several of those hearings were sparsely attended, and the legislators who were present revealed little about their motives. We have no committee reports, no floor debates, no remarks inserted into the legislative history, no statement from the Governor, and no postenactment statements or testimony from the bill's sponsor or any other legislators. Cf. Wallace v. Jaffree, 472 U.S. at 472 U. S. 43 , 472 U. S. 56 -57. Nevertheless, there is ample evidence that the majority is wrong in holding that the Balanced Treatment Act is without secular purpose. At the outset, it is important to note that the Balanced Treatment Act did not fly through the Louisiana Legislature on wings of fundamentalist religious fervor -- which would be unlikely, in any event, since only a small minority of the State's citizens belong to fundamentalist religious denominations. See B. Quinn, H. Anderson, M. Bradley, P. Goetting, & P. Shriver, Churches and Church Membership in the United States 16 (1982). The Act had its genesis (so to speak) in legislation introduced by Senator Bill Keith in June, Page 482 U. S. 620 1980. After two hearings before the Senate Committee on Education, Senator Keith asked that his bill be referred to a study commission composed of members of both Houses of the Louisiana Legislature. He expressed hope that the joint committee would give the bill careful consideration and determine whether his arguments were "legitimate." 1 App. E-29 - E-30. The committee met twice during the interim, heard testimony (both for and against the bill) from several witnesses, and received staff reports. Senator Keith introduced his bill again when the legislature reconvened. The Senate Committee on Education held two more hearings, and approved the bill after substantially amending it (in part over Senator Keith's objection). After approval by the full Senate, the bill was referred to the House Committee on Education. That committee conducted a lengthy hearing, adopted further amendments, and sent the bill on to the full House, where it received favorable consideration. The Senate concurred in the House amendments, and, on July 20, 1981, the Governor signed the bill into law. Senator Keith's statements before the various committees that considered the bill hardly reflect the confidence of a man preaching to the converted. He asked his colleagues to "keep an open mind," and not to be "biased" by misleading characterizations of creation science. Id. at E-33. He also urged them to "look at this subject on its merits, and not on some preconceived idea." Id. at E-34; see also 2 id. at E-491. Senator Keith's reception was not especially warm. Over his strenuous objection, the Senate Committee on Education voted 5-1 to amend his bill to deprive it of any force; as amended, the bill merely gave teachers permission to balance the teaching of creation science or evolution with the other. 1 id. at E-442 - E-461. The House Committee restored the "mandatory" language to the bill by a vote of only 6-5, 2 id. at E-626 - E-627, and both the full House (by vote of 52-35), id. at E-700 - E-706, and full Senate (23-15), id. at E-735 - E-738, had to repel further efforts to gut the bill. Page 482 U. S. 621 The legislators understood that Senator Keith's bill involved a "unique" subject, 1 id. at E-106 (Rep. M. Thompson), and they were repeatedly made aware of its potential constitutional problems, see, e.g., id. at E-26 - E-28 (McGehee); id. at E-38 - E-39 (Sen. Keith); id. at E-241 - E-242 (Rossman); id. at E-257 (Probst); id. at E-261 (Beck); id. at E-282 (Sen. Keith). Although the Establishment Clause, including its secular purpose requirement, was of substantial concern to the legislators, they eventually voted overwhelmingly in favor of the Balanced Treatment Act: the House approved it 71-19 (with 15 members absent), 2 id. at E-716 - E-722; the Senate 26-12 (with all members present), id. at E-741 - E-744. The legislators specifically designated the protection of "academic freedom" as the purpose of the Act. La.Rev.Stat.Ann. § 17:286.2 (West 1982). We cannot accurately assess whether this purpose is a "sham," ante at 482 U. S. 587 , until we first examine the evidence presented to the legislature far more carefully than the Court has done. Before summarizing the testimony of Senator Keith and his supporters, I wish to make clear that I by no means intend to endorse its accuracy. But my views (and the views of this Court) about creation science and evolution are (or should be) beside the point. Our task is not to judge the debate about teaching the origins of life, but to ascertain what the members of the Louisiana Legislature believed. The vast majority of them voted to approve a bill which explicitly stated a secular purpose; what is crucial is not their wisdom in believing that purpose would be achieved by the bill, but their sincerity in believing it would be. Most of the testimony in support of Senator Keith's bill came from the Senator himself, and from scientists and educators he presented, many of whom enjoyed academic credentials that may have been regarded as quite impressive by members of the Louisiana Legislature. To a substantial extent, their testimony was devoted to lengthy, and, to the layman, seemingly expert, scientific expositions on the origin Page 482 U. S. 622 of life. See, e.g., 1 App. E-11 - E-18 (Sunderland); id. at E-50 - E-60 (Boudreaux); id. at E-86 - E-89 (Ward); id. at E-130 - E-153 (Boudreaux paper); id. at E-321 - E-326 (Boudreaux); id. at E-423 - E-428 (Sen. Keith). These scientific lectures touched upon, inter alia, biology, paleontology, genetics, astronomy, astrophysics, probability analysis, and biochemistry. The witnesses repeatedly assured committee members that "hundreds and hundreds" of highly respected, internationally renowned scientists believed in creation science, and would support their testimony. See, e.g., id. at E-5 (Sunderland); id. at E-76 (Sen. Keith); id. at E-100 - E-101 (Reiboldt); id. at E-327 - E-328 (Boudreaux); 2 id. at E-503 - E-504 (Boudreaux). Senator Keith and his witnesses testified essentially as set forth in the following numbered paragraphs: (1) There are two and only two scientific explanations for the beginning of life [ Footnote 3/3 ] -- evolution and creation science. 1 id. at E-6 (Sunderland); id. at E-34 (Sen. Keith); id. at E-280 (Sen. Keith); id. at E-417 - E-418 (Sen. Keith). Both are bona fide "sciences." Id. at E-6 - E-7 (Sunderland); id. at E-12 (Sunderland); id. at E-416 (Sen. Keith); id. at E-427 (Sen. Keith); 2 id. at E-491 - E-492 (Sen. Keith); id. at E-497 - E-498 (Sen. Keith). Both posit a theory of the origin of life, and subject that theory to empirical testing. Evolution posits that life arose out of inanimate chemical compounds and has gradually evolved over millions of years. Creation science posits that all life forms now on earth appeared suddenly and relatively recently, and have changed little. Since there are only two possible explanations of the origin of life, any evidence that tends to disprove the theory of evolution necessarily tends to prove the theory of creation science, and vice versa. For example, the abrupt appearance in the fossil record of complex life, and the extreme rarity Page 482 U. S. 623 of transitional life forms in that record, are evidence for creation science. 1 id. at E-7 (Sunderland); id. at E-12 - E-18 (Sunderland); id. at E-45 - E-60 (Boudreaux); id. at E-67 (Harlow); id. at E-130 - E-153 (Boudreaux paper); id. at E-423 - E-428 (Sen. Keith). (2) The body of scientific evidence supporting creation science is as strong as that supporting evolution. In fact, it may be stronger. Id. at E-214 (Young statement); id. at E-310 (Sen. Keith); id. at E-416 (Sen. Keith); 2 id. at E-492 (Sen. Keith). The evidence for evolution is far less compelling than we have been led to believe. Evolution is not a scientific "fact," since it cannot actually be observed in a laboratory. Rather, evolution is merely a scientific theory or "guess." 1 id. at E-20 - E-21 (Morris); id. at E-85 (Ward); id. at E-100 (Reiboldt); id. at E-328 - E-329 (Boudreaux); 2 id. at E-506 (Boudreaux). It is a very bad guess at that. The scientific problems with evolution are so serious that it could accurately be termed a "myth." 1 id. at E-85 (Ward); id. at E-92 - E-93 (Kalivoda); id. at E-95 - E-97 (Sen. Keith); id. at E-154 (Boudreaux paper); id. at E-329 (Boudreaux); id. at E-453 (Sen. Keith); 2 id. at E-505 - E-506 (Boudreaux); id. at E-516 (Young). (3) Creation science is educationally valuable. Students exposed to it better understand the current state of scientific evidence about the origin of life. 1 id. at E-19 (Sunderland); id. at E-39 (Sen. Keith); id. at E-79 (Kalivoda); id. at E-308 (Sen. Keith); 2 id. at E-513 - E-514 (Morris). Those students even have a better understanding of evolution. 1 id. at E-19 (Sunderland). Creation science can and should be presented to children without any religious content. Id. at E-12 (Sunderland); id. at E-22 (Sanderford); id. at E-35 - E-36 (Sen. Keith); id. at E-101 (Reiboldt); id. at E-279 - E-280 (Sen. Keith); id. at E-282 (Sen. Keith). (4) Although creation science is educationally valuable and strictly scientific, it is now being censored from or misrepresented in the public schools. Id. at E-19 (Sunderland); id. Page 482 U. S. 624 at E-21 (Morris); id. at E-34 (Sen. Keith); id. at E-37 (Sen. Keith); id. at E-42 (Sen. Keith); id. at E-92 (Kalivoda); id. at E-97 - E-98 (Reiboldt); id. at E-214 (Young statement); id. at E-218 (Young statement); id. at E-280 (Sen. Keith); id. at E-309 (Sen. Keith); 2 id. at E-513 (Morris). Evolution, in turn, is misrepresented as an absolute truth. 1 id. at E-63 (Harlow); id. at E-74 (Sen. Keith); id. at E-81 (Kalivoda); id. at E-214 (Young statement); 2 id. at E-507 (Harlow); id. at E-513 (Morris); id. at E-516 (Young). Teachers have been brainwashed by an entrenched scientific establishment composed almost exclusively of scientists to whom evolution is like a "religion." These scientists discriminate against creation scientists, so as to prevent evolution's weaknesses from being exposed. 1 id. at E-61 (Boudreaux); id. at E-63 - E-64 (Harlow); id. at E-78 - E-79 (Kalivoda); id. at E-80 (Kalivoda); id. at E-95 - E-97 (Sen. Keith); id. at E-129 (Boudreaux paper); id. at E-218 (Young statement); id. at E-357 (Sen. Keith); id. at E-430 (Boudreaux). (5) The censorship of creation science has at least two harmful effects. First, it deprives students of knowledge of one of the two scientific explanations for the origin of life, and leads them to believe that evolution is proven fact; thus, their education suffers, and they are wrongly taught that science has proved their religious beliefs false. Second, it violates the Establishment Clause. The United States Supreme Court has held that secular humanism is a religion. Id. at E-36 (Sen. Keith) (referring to Torcaso v. Watkins, 367 U. S. 488 , 367 U. S. 495 , n. 11 (1961));1 App. E-418 (Sen. Keith); 2 id. at E-499 (Sen. Keith). Belief in evolution is a central tenet of that religion. 1 id. at E-282 (Sen. Keith); id. at E-312 - E-313 (Sen. Keith); id. at E-317 (Sen. Keith); id. at E-418 (Sen. Keith); 2 id. at E-499 (Sen. Keith). Thus, by censoring creation science and instructing students that evolution is fact, public school teachers are now advancing religion in violation of the Establishment Clause. 1 id. at E-2 - E-4 Page 482 U. S. 625 (Sen. Keith); id. at E-36 - E-37, E-39 (Sen. Keith); id. at E-154 - E-155 (Boudreaux paper); id. at E-281 - E-282 (Sen. Keith); id. at E-313 (Sen. Keith); id. at E-315 - E-316 (Sen. Keith); id. at E-317 (Sen. Keith); 2 id. at E-499 - E-500 (Sen. Keith). Senator Keith repeatedly and vehemently denied that his purpose was to advance a particular religious doctrine. A t the outset of the first hearing on the legislation, he testified: "We are not going to say today that you should have some kind of religious instructions in our schools. . . . We are not talking about religion today. . . . I am not proposing that we take the Bible in each science class and read the first chapter of Genesis." 1 id. at E-35. At a later hearing, Senator Keith stressed: "[T]o . . . teach religion and disguise it as creationism . . . is not my intent. My intent is to see to it that our textbooks are not censored." Id. at E-280. He made many similar statements throughout the hearings. See, e.g., id. at E-41; id. at E-282; id. at E-310; id. at E-417; see also id. at E-44 (Boudreaux); id. at E-80 (Kalivoda). We have no way of knowing, of course, how many legislators believed the testimony of Senator Keith and his witnesses. But in the absence of evidence to the contrary, [ Footnote 3/4 ] we Page 482 U. S. 626 have to assume that many of them did. Given that assumption, the Court today plainly errs in holding that the Louisiana Legislature passed the Balanced Treatment Act for exclusively religious purposes. B Even with nothing more than this legislative history to go on, I think it would be extraordinary to invalidate the Balanced Treatment Act for lack of a valid secular purpose. Striking down a law approved by the democratically elected representatives of the people is no minor matter. "The cardinal principle of statutory construction is to save, and not to destroy. We have repeatedly held that, as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the act." NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1 , 301 U. S. 30 (1937). So, too, it seems to me, with discerning statutory purpose. Even if the legislative history were silent or ambiguous about the existence of a secular purpose -- and here it is not -- the statute should survive Lemon's purpose test. But even more validation than mere legislative history is present here. The Louisiana Legislature explicitly set forth its secular purpose Page 482 U. S. 627 ("protecting academic freedom") in the very text of the Act. La.Rev.Stat. § 17:286.2 (West 1982). We have in the past repeatedly relied upon or deferred to such expressions, see, e.g., Committee for Public Education & Religious Liberty v. Regan, 444 U.S. at 444 U. S. 654 ; Meek v. Pittenger, 421 U.S. at 363, 421 U. S. 367 -368; Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. at 413 U. S. 773 ; Levitt v. Committee for Public Education & Religious Liberty, 413 U.S. at 413 U. S. 479 -480, n. 7; Tilton v. Richardson, 403 U.S. at 403 U. S. 678 -679 (plurality opinion); Lemon v. Kurtzman, 403 U.S. at 403 U. S. 613 ; Board of Education v. Allen, 392 U.S. at 392 U. S. 243 . The Court seeks to evade the force of this expression of purpose by stubbornly misinterpreting it, and then finding that the provisions of the Act do not advance that misinterpreted purpose, thereby showing it to be a sham. The Court first surmises that "academic freedom" means "enhancing the freedom of teachers to teach what they will," ante at 482 U. S. 586 -- even though "academic freedom" in that sense has little scope in the structured elementary and secondary curriculums with which the Act is concerned. Alternatively, the Court suggests that it might mean "maximiz[ing] the comprehensiveness and effectiveness of science instruction," ante at 482 U. S. 588 -- though that is an exceedingly strange interpretation of the words, and one that is refuted on the very face of the statute. See § 17:286.5. Had the Court devoted to this central question of the meaning of the legislatively expressed purpose a small fraction of the research into legislative history that produced its quotations of religiously motivated statements by individual legislators, it would have discerned quite readily what "academic freedom" meant: students' freedom from indoctrination. The legislature wanted to ensure that students would be free to decide for themselves how life began, based upon a fair and balanced presentation of the scientific evidence -- that is, to protect "the right of each [student] voluntarily to determine what to believe (and what not to believe) free of any coercive pressures from the State." Grand Page 482 U. S. 628 Rapids School District v. Ball, 473 U.S. at 473 U. S. 385 . The legislature did not care whether the topic of origins was taught; it simply wished to ensure that, when the topic was taught, students would receive " all of the evidence.'" Ante at 482 U. S. 586 (quoting Tr. of Oral Arg. 60). As originally introduced, the "purpose" section of the Balanced Treatment Act read: "This Chapter is enacted for the purposes of protecting academic freedom . . . of students . . . and assisting students in their search for truth." 1 App. E-292 (emphasis added). Among the proposed findings of fact contained in the original version of the bill was the following: "Public school instruction in only evolution science . . . violates the principle of academic freedom because it denies students a choice between scientific models, and instead indoctrinates them in evolution science alone. " Id. at E-295 (emphasis added). [ Footnote 3/5 ] Senator Keith unquestionably understood "academic freedom" to mean "freedom from indoctrination." See id. at E-36 (purpose of bill is "to protect academic freedom by providing student choice"); id. at E-283 (purpose of bill is to protect "academic freedom" by giving students a "choice," rather than subjecting them to "indoctrination on origins"). If one adopts the obviously intended meaning of the statutory term "academic freedom," there is no basis whatever for concluding that the purpose they express is a "sham." Ante Page 482 U. S. 629 at 482 U. S. 587 . To the contrary, the Act pursues that purpose plainly and consistently. It requires that, whenever the subject of origins is covered, evolution be "taught as a theory, rather than as proven scientific fact," and that scientific evidence inconsistent with the theory of evolution ( viz., "creation science") be taught as well. La.Rev.Stat.Ann. § 17:286.4A (West 1982). Living up to its title of " Balanced Treatment for Creation-Science and Evolution-Science Act," § 17.286.1, it treats the teaching of creation the same way. It does not mandate instruction in creation science, § 17:286.5; forbids teachers to present creation science "as proven scientific fact," § 17:286.4A; and bans the teaching of creation science unless the theory is (to use the Court's terminology) "discredit[ed] . . . at every turn'" with the teaching of evolution. Ante at 482 U. S. 589 (quoting 765 F.2d at 1257). It surpasses understanding how the Court can see in this a purpose "to restructure the science curriculum to conform with a particular religious viewpoint," ante at 482 U. S. 593 , "to provide a persuasive advantage to a particular religious doctrine," ante at 482 U. S. 592 , "to promote the theory of creation science which embodies a particular religious tenet," ante at 482 U. S. 593 , and "to endorse a particular religious doctrine," ante at 482 U. S. 594 . The Act's reference to "creation" is not convincing evidence of religious purpose. The Act defines creation science as " scientific evidenc[e], " § 17:286.3(2) (emphasis added), and Senator Keith and his witnesses repeatedly stressed that the subject can and should be presented without religious content. See supra, at 482 U. S. 623 . We have no basis on the record to conclude that creation science need be anything other than a collection of scientific data supporting the theory that life abruptly appeared on earth. See 482 U.S. 578 fn3/4|>n. 4, supra. Creation science, its proponents insist, no more must explain whence life came than evolution must explain whence came the inanimate materials from which it says life evolved. But even if that were not so, to posit a past creator is not to posit the eternal and personal God who is the object of religious veneration. Page 482 U. S. 630 Indeed, it is not even to posit the " unmoved mover" hypothesized by Aristotle and other notably nonfundamentalist philosophers. Senator Keith suggested this when he referred to "a creator, however you define a creator. " 1 App. E-280 (emphasis added). The Court cites three provisions of the Act which, it argues, demonstrate a "discriminatory preference for the teaching of creation science" and no interest in "academic freedom." Ante at 482 U. S. 588 . First, the Act prohibits discrimination only against creation scientists and those who teach creation science. § 17:286.4C. Second, the Act requires local school boards to develop and provide to science teachers "a curriculum guide on presentation of creation-science." § 17:286.7A. Finally, the Act requires the Governor to designate seven creation scientists who shall, upon request, assist local school boards in developing the curriculum guides. § 17:286.7B. But none of these provisions casts doubt upon the sincerity of the legislators' articulated purpose of "academic freedom" -- unless, of course, one gives that term the obviously erroneous meanings preferred by the Court. The Louisiana legislators had been told repeatedly that creation scientists were scorned by most educators and scientists, who themselves had an almost religious faith in evolution. It is hardly surprising, then, that, in seeking to achieve a balanced, "nonindoctrinating" curriculum, the legislators protected from discrimination only those teachers whom they thought were suffering from discrimination. (Also, the legislators were undoubtedly aware of Epperson v. Arkansas, 393 U. S. 97 (1968), and thus could quite reasonably have concluded that discrimination against evolutionists was already prohibited.) The two provisions respecting the development of curriculum guides are also consistent with "academic freedom" as the Louisiana Legislature understood the term. Witnesses had informed the legislators that, because of the hostility of most scientists and educators to creation science, the topic had been censored from or badly misrepresented in elementary Page 482 U. S. 631 and secondary school texts. In light of the unavailability of works on creation science suitable for classroom use (a fact appellees concede, see Brief for Appellees 27, 40) and the existence of ample materials on evolution, it was entirely reasonable for the legislature to conclude that science teachers attempting to implement the Act would need a curriculum guide on creation science, but not on evolution, and that those charged with developing the guide would need an easily accessible group of creation scientists. Thus, the provisions of the Act of so much concern to the Court support the conclusion that the legislature acted to advance "academic freedom." The legislative history gives ample evidence of the sincerity of the Balanced Treatment Act's articulated purpose. Witness after witness urged the legislators to support the Act so that students would not be "indoctrinated," but would instead be free to decide for themselves, based upon a fair presentation of the scientific evidence, about the origin of life. See, e.g., 1 App. E-18 (Sunderland) ("all that we are advocating" is presenting "scientific data" to students and "letting [them] make up their own mind[s]"); id. at E-19 - E-20 (Sunderland) (Students are now being "indoctrinated" in evolution through the use of "censored school books. . . . All that we are asking for is [the] open unbiased education in the classroom . . . your students deserve"); id. at E-21 (Morris) ("A student cannot [make an intelligent decision about the origin of life] unless he is well informed about both [evolution and creation science]"); id. at E-22 (Sanderford) ("We are asking very simply [that] . . . creationism [be presented] alongside . . . evolution, and let people make their own mind[s] up"); id. at E-23 (Young) (the bill would require teachers to live up to their "obligation to present all theories," and thereby enable "students to make judgments themselves"); id. at E-44 (Boudreaux) ("Our intention is truth, and, as a scientist, I am interested in truth"); id. at E-60 - E-61 (Boudreaux) ("[W]e [teachers] are guilty of a lot of Page 482 U. S. 632 brainwashing. . . . We have a duty to . . . [present the] truth" to students "at all levels from grade school on through the college level"); id. at E-79 (Kalivoda) ("This [hearing] is being held, I think, to determine whether children will benefit from freedom of information, or if they will be handicapped educationally by having little or no information about creation"); id. at E-80 (Kalivoda) ("I am not interested in teaching religion in schools. . . . I am interested in the truth, and [students'] having the opportunity to hear more than one side"); id. at E-98 (Reiboldt) ("The students have a right to know there is an alternate creationist point of view. They have a right to know the scientific evidences which suppor[t] that alternative"); id. at E-218 (Young statement) (passage of the bill will ensure that "communication of scientific ideas and discoveries may be unhindered"); 2 id. at E-514 (Morris) ("[A]re we going to allow [students] to look at evolution, to look at creationism, and to let one or the other stand or fall on its own merits, or will we, by failing to pass this bill, . . . deny students an opportunity to hear another viewpoint?"); id. at E-516 - E-517 (Young) ("We want to give the children here in this state an equal opportunity to see both sides of the theories"). Senator Keith expressed similar views. See, e.g., 1 id. at E-36; id. at E-41; id. at E-280; id. at E-283. Legislators other than Senator Keith made only a few statements providing insight into their motives, but those statements cast no doubt upon the sincerity of the Act's articulated purpose. The legislators were concerned primarily about the manner in which the subject of origins was presented in Louisiana schools -- specifically, about whether scientifically valuable information was being censored, and students misled about evolution. Representatives Cain, Jenkins, and F. Thompson seemed impressed by the scientific evidence presented in support of creation science. See 2 id. at E-530 (Rep. F. Thompson); id. at E-533 (Rep. Cain); id. at E-613 (Rep. Jenkins). At the first study commission hearing, Senator Picard and Representative M. Thompson questioned Page 482 U. S. 633 Senator Keith about Louisiana teachers' treatment of evolution and creation science. See 1 id. at E-71 - E-74. At the close of the hearing, Representative M. Thompson told the audience: "We, as members of the committee, will also receive from the staff information of what is currently being taught in the Louisiana public schools. We really want to see [it]. I . . . have no idea in what manner [biology] is presented, and in what manner the creationist theories [are] excluded in the public school[s]. We want to look at what the status of the situation is." Id. at E-104. Legislators made other comments suggesting a concern about censorship and misrepresentation of scientific information. See, e.g., id. at E-386 (Sen. McLeod); 2 id. at E-527 (Rep. Jenkins); id. at E-528 (Rep. M. Thompson); id. at E-534 (Rep. Fair). It is undoubtedly true that what prompted the legislature to direct its attention to the misrepresentation of evolution in the schools (rather than the inaccurate presentation of other topics) was its awareness of the tension between evolution and the religious beliefs of many children. But even appellees concede that a valid secular purpose is not rendered impermissible simply because its pursuit is prompted by concern for religious sensitivities. Tr. of Oral Arg. 43, 56. If a history teacher falsely told her students that the bones of Jesus Christ had been discovered, or a physics teacher that the Shroud of Turin had been conclusively established to be inexplicable on the basis of natural causes, I cannot believe (despite the majority's implication to the contrary, see ante at 482 U. S. 592 -593) that legislators or school board members would be constitutionally prohibited from taking corrective action simply because that action was prompted by concern for the religious beliefs of the misinstructed students. In sum, even if one concedes, for the sake of argument, that a majority of the Louisiana Legislature voted for the Balanced Treatment Act partly in order to foster (rather Page 482 U. S. 634 than merely eliminate discrimination against) Christian fundamentalist beliefs, our cases establish that that, alone, would not suffice to invalidate the Act, so long as there was a genuine secular purpose as well. We have, moreover, no adequate basis for disbelieving the secular purpose set forth in the Act itself, or for concluding that it is a sham enacted to conceal the legislators' violation of their oaths of office. I am astonished by the Court's unprecedented readiness to reach such a conclusion, which I can only attribute to an intellectual predisposition created by the facts and the legend of Scopes v. State, 154 Tenn. 105, 289 S.W. 363 (1927) -- an instinctive reaction that any governmentally imposed requirements bearing upon the teaching of evolution must be a manifestation of Christian fundamentalist repression. In this case, however, it seems to me the Court's position is the repressive one. The people of Louisiana, including those who are Christian fundamentalists, are quite entitled, as a secular matter, to have whatever scientific evidence there may be against evolution presented in their schools, just as Mr. Scopes was entitled to present whatever scientific evidence there was for it. Perhaps what the Louisiana Legislature has done is unconstitutional because there is no such evidence, and the scheme they have established will amount to no more than a presentation of the Book of Genesis. But we cannot say that on the evidence before us in this summary judgment context, which includes ample uncontradicted testimony that "creation science" is a body of scientific knowledge, rather than revealed belief. Infinitely less can we say (or should we say) that the scientific evidence for evolution is so conclusive that no one could be gullible enough to believe that there is any real scientific evidence to the contrary, so that the legislation's stated purpose must be a lie. Yet that illiberal judgment, that Scopes -in-reverse, is ultimately the basis on which the Court's facile rejection of the Louisiana Legislature's purpose must rest. Page 482 U. S. 635 Since the existence of secular purpose is so entirely clear, and thus dispositive, I will not go on to discuss the fact that, even if the Louisiana Legislature's purpose were exclusively to advance religion, some of the well-established exceptions to the impermissibility of that purpose might be applicable -- the validating intent to eliminate a perceived discrimination against a particular religion, to facilitate its free exercise, or to accommodate it. See supra, at 482 U. S. 617 -618. I am not, in any case, enamored of those amorphous exceptions, since I think them no more than unpredictable correctives to what is (as the next Part of this opinion will discuss) a fundamentally unsound rule. It is surprising, however, that the Court does not address these exceptions, since the context of the legislature's action gives some reason to believe they may be applicable. [ Footnote 3/6 ] Page 482 U. S. 636 Because I believe that the Balanced Treatment Act had a secular purpose, which is all the first component of the Lemon test requires, I would reverse the judgment of the Court of Appeals and remand for further consideration. III I have to this point assumed the validity of the Lemon "purpose" test. In fact, however, I think the pessimistic evaluation that THE CHIEF JUSTICE made of the totality of Lemon is particularly applicable to the "purpose" prong: it is "a constitutional theory [that] has no basis in the history of the amendment it seeks to interpret, is difficult to apply, and yields unprincipled results. . . ." Wallace v. Jaffree, 472 U.S. at 472 U. S. 112 (REHNQUIST, J., dissenting). Our cases interpreting and applying the purpose test have made such a maze of the Establishment Clause that even the most conscientious governmental officials can only guess what motives will be held unconstitutional. We have said essentially the following: government may not act with the purpose of advancing religion, except when forced to do so by the Free Exercise Clause (which is now and then); or when eliminating existing governmental hostility to religion (which exists sometimes); or even when merely accommodating governmentally uninhibited religious practices, except that at some point (it is unclear where) intentional accommodation results in the fostering of religion, which is of course unconstitutional. See supra, at 482 U. S. 614 -618. But the difficulty of knowing what vitiating purpose one is looking for is as nothing compared with the difficulty of knowing how or where to find it. For while it is possible to discern the objective "purpose" of a statute ( i.e., the public good at which its provisions appear to be directed), or even the formal motivation for a statute where that is explicitly set forth (as it was, to no avail, here), discerning the subjective motivation of those enacting the statute is, to be honest, almost always an impossible task. The number of possible Page 482 U. S. 637 motivations, to begin with, is not binary, or indeed even finite. In the present case, for example, a particular legislator need not have voted for the Act either because he wanted to foster religion or because he wanted to improve education. He may have thought the bill would provide jobs for his district, or may have wanted to make amends with a faction of his party he had alienated on another vote, or he may have been a close friend of the bill's sponsor, or he may have been repaying a favor he owed the majority leader, or he may have hoped the Governor would appreciate his vote and make a fund-raising appearance for him, or he may have been pressured to vote for a bill he disliked by a wealthy contributor or by a flood of constituent mail, or he may have been seeking favorable publicity, or he may have been reluctant to hurt the feelings of a loyal staff member who worked on the bill, or he may have been settling an old score with a legislator who opposed the bill, or he may have been mad at his wife, who opposed the bill, or he may have been intoxicated and utterly unmotivated when the vote was called, or he may have accidentally voted "yes" instead of "no," or, of course, he may have had (and very likely did have) a combination of some of the above and many other motivations. To look for the sole purpose of even a single legislator is probably to look for something that does not exist. Putting that problem aside, however, where ought we to look for the individual legislator's purpose? We cannot, of course, assume that every member present (if, as is unlikely, we know who or even how many they were) agreed with the motivation expressed in a particular legislator's preenactment floor or committee statement. Quite obviously, "[w]hat motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it." United States v. O'Brien, 391 U. S. 367 , 391 U. S. 384 (1968). Can we assume, then, that they all agree with the motivation expressed in the staff-prepared committee reports they might have read -- even though we are unwilling to Page 482 U. S. 638 assume that they agreed with the motivation expressed in the very statute that they voted for? Should we consider postenactment floor statements? Or postenactment testimony from legislators, obtained expressly for the lawsuit? Should we consider media reports on the realities of the legislative bargaining? All of these sources, of course, are eminently manipulable. Legislative histories can be contrived and sanitized, favorable media coverage orchestrated, and postenactment recollections conveniently distorted. Perhaps most valuable of all would be more objective indications -- for example, evidence regarding the individual legislators' religious affiliations. And if that, why not evidence regarding the fervor or tepidity of their beliefs? Having achieved, through these simple means, an assessment of what individual legislators intended, we must still confront the question (yet to be addressed in any of our cases) how many of them must have the invalidating intent. If a state senate approves a bill by vote of 26 to 25, and only one of the 26 intended solely to advance religion, is the law unconstitutional? What if 13 of the 26 had that intent? What if 3 of the 26 had the impermissible intent, but 3 of the 25 voting against the bill were motivated by religious hostility, or were simply attempting to "balance" the votes of their impermissibly motivated colleagues? Or is it possible that the intent of the bill's sponsor is alone enough to invalidate it -- on a theory, perhaps, that even though everyone else's intent was pure, what they produced was the fruit of a forbidden tree? Because there are no good answers to these questions, this Court has recognized from Chief Justice Marshall, See Fletcher v. Peck , 6 Cranch 87, 10 U. S. 130 (1810), to Chief Justice Warren, United States v. O'Brien, supra, at 391 U. S. 383 -384, that determining the subjective intent of legislators is a perilous enterprise. See also Palmer v. Thompson, 403 U. S. 217 , 403 U. S. 224 -225 (1971); Epperson v. Arkansas, 393 U.S. at 393 U. S. 113 (Black, J., concurring). It is perilous, I might note, not just for the judges who will very likely reach the wrong result, Page 482 U. S. 639 but also for the legislators who find that they must assess the validity of proposed legislation -- and risk the condemnation of having voted for an unconstitutional measure -- not on the basis of what the legislation contains, nor even on the basis of what they themselves intend, but on the basis of what others have in mind. Given the many hazards involved in assessing the subjective intent of governmental decisionmakers, the first prong of Lemon is defensible, I think, only if the text of the Establishment Clause demands it. That is surely not the case. The Clause states that "Congress shall make no law respecting an establishment of religion." One could argue, I suppose, that any time Congress acts with the intent of advancing religion, it has enacted a "law respecting an establishment of religion"; but, far from being an unavoidable reading, it is quite an unnatural one. I doubt, for example, that the Clayton Act, 38 Stat. 730, as amended, 15 U.S.C. § 12 et seq., could reasonably be described as a "law respecting an establishment of religion" if bizarre new historical evidence revealed that it lacked a secular purpose, even though it has no discernible nonsecular effect. It is, in short, far from an inevitable reading of the Establishment Clause that it forbids all governmental action intended to advance religion; and, if not inevitable, any reading with such untoward consequences must be wrong. In the past, we have attempted to justify our embarrassing Establishment Clause jurisprudence [ Footnote 3/7 ] on the ground that it Page 482 U. S. 640 "sacrifices clarity and predictability for flexibility." Committee for Public Education & Religious Liberty v. Regan, 444 U.S. at 444 U. S. 662 . One commentator has aptly characterized this as "a euphemism . . . for . . . the absence of any principled rationale." Choper, supra, 482 U.S. 578 fn3/7|>n. 7, at 681. I think it time that we sacrifice some "flexibility" for "clarity and predictability." Abandoning Lemon's purpose test -- a test which exacerbates the tension between the Free Exercise and Establishment Clauses, has no basis in the language or history of the Amendment, and, as today's decision shows, has wonderfully flexible consequences -- would be a good place to start. [ Footnote 3/1 ] Article VI, cl. 3, of the Constitution provides that "the Members of the several State Legislatures . . . shall be bound by Oath or Affirmation, to support this Constitution." [ Footnote 3/2 ] Thus, the popular dictionary definitions cited by JUSTICE POWELL, ante at 482 U. S. 598 -599 (concurring opinion), and appellees, see Brief for Appellees 25, 26; Tr. of Oral Arg. 32, 34, are utterly irrelevant, as are the views of the school superintendents cited by the majority, ante at 482 U.S. 595 , n. 18. Three-quarters of those surveyed had "[n]o" or "[l]imited" knowledge of "creation science theory," and not a single superintendent claimed "[e]xtensive" knowledge of the subject. 2 App. E-798. [ Footnote 3/3 ] Although creation scientists and evolutionists also disagree about the origin of the physical universe, both proponents and opponents of Senator Keith's bill focused on the question of the beginning of life. [ Footnote 3/4 ] Although appellees and amici dismiss the testimony of Senator Keith and his witnesses as pure fantasy, they did not bother to submit evidence of that to the District Court, making it difficult for us to agree with them. The State, by contrast, submitted the affidavits of two scientists, a philosopher, a theologian, and an educator, whose academic credentials are rather impressive. See App. to Juris. Statement A-17 - A-18 (Kenyon); id. at A-36 (Morrow); id. at A-39 - A-40 (Miethe); id. at A-46 - A-47 (Most); id. at A-49 (Clinkert). Like Senator Keith and his witnesses, the affiants swear that evolution and creation science are the only two scientific explanations for the origin of life, see id. at A-19 - A-20 (Kenyon); id. at A-38 (Morrow); id. at A-41 (Miethe); that creation science is strictly scientific, see id. at A-18 (Kenyon); id. at A-36 (Morrow); id. at A-40 - A-41 (Miethe); id. at A-49 (Clinkert); that creation science is simply a collection of scientific data that supports the hypothesis that life appeared on earth suddenly, and has changed little, see id. at A-19 (Kenyon); id. at A-36 (Morrow); id. at A-41 (Miethe); that hundreds of respected scientists believe in creation science, see id. at A-20 (Kenyon); that evidence for creation science is as strong as evidence for evolution, see id. at A-21 (Kenyon); id. at A-34 - A-35 (Kenyon); id. at A-37 - A-38 (Morrow); that creation science is educationally valuable, see id. at A-19 (Kenyon); id. at A-36 (Morrow); id. at A-38 - A-39 (Morrow); id. at A-49 (Clinkert); that creation science can be presented without religious content, see id. at A-19 (Kenyon); id. at A-35 (Kenyon); id. at A-36 (Morrow); id. at A-40 (Miethe); id. at A-43 - A-44 (Miethe); id. at A-47 (Most); id. at A-49 (Clinkert); and that creation science is now censored from classrooms, while evolution is misrepresented as proven fact, see id. at A-20 (Kenyon); id. at A-35 (Kenyon); id. at A-39 (Morrow); id. at A-50 (Clinkert). It is difficult to conclude on the basis of these affidavits -- the only substantive evidence in the record -- that the laymen serving in the Louisiana Legislature must have disbelieved Senator Keith or his witnesses. [ Footnote 3/5 ] The majority finds it "astonishing" that I would cite a portion of Senator Keith's original bill that was later deleted as evidence of the legislature's understanding of the phrase "academic freedom." Ante at 482 U. S. 589 , n. 8. What is astonishing is the majority's implication that the deletion of that section deprives it of value as a clear indication of what the phrase meant -- there and in the other, retained, sections of the bill. The Senate Committee on Education deleted most of the lengthy "purpose" section of the bill (with Senator Keith's consent) because it resembled legislative "findings of fact," which, committee members felt, should generally not be incorporated in legislation. The deletion had absolutely nothing to do with the manner in which the section described "academic freedom." See 1 App. E-314 - E-320; id. at E-440 - E-442. [ Footnote 3/6 ] As the majority recognizes, ante at 482 U. S. 592 , Senator Keith sincerely believed that "secular humanism is a bona fide religion," 1 App. E-36; see also id. at E-418; 2 id. at E-499, and that "evolution is the cornerstone of that religion," 1 id. at E-418; see also id. at E-282; id. at E-312 - E-313; id. at E-317; 2 id. at E-499. The Senator even told his colleagues that this Court had "held" that secular humanism was a religion. See 1 id. at E-36, id. at E-418; 2 id. at E-499. (In Torcaso v. Watkins, 367 U. S. 488 , 367 U. S. 495 , n. 11 (1961), we did indeed refer to "Secular Humanism" as a "religio[n].") Senator Keith and his supporters raised the "religion" of secular humanism not, as the majority suggests, to explain the source of their "disdain for the theory of evolution," ante at 482 U. S. 592 , but to convince the legislature that the State of Louisiana was violating the Establishment Clause because its teachers were misrepresenting evolution as fact, and depriving students of the information necessary to question that theory. 1 App. E-2 - E-4 (Sen. Keith); id. at E-36 - E-37, E-39 (Sen. Keith); id. at E-154 - E-155 (Boudreaux paper); id. at E-281 - E-282 (Sen. Keith); id. at E-317 (Sen. Keith); 2 id. at E-499 - E-500 (Sen. Keith). The Senator repeatedly urged his colleagues to pass his bill to remedy this Establishment Clause violation by ensuring state neutrality in religious matters, see, e.g., 1 id. at E-36; id. at E-39; id. at E-313, surely a permissible purpose under Lemon. Senator Keith's argument may be questionable, but nothing in the statute or its legislative history gives us reason to doubt his sincerity or that of his supporters. [ Footnote 3/7 ] Professor Choper summarized our school aid cases thusly: "[A] provision for therapeutic and diagnostic health services to parochial school pupils by public employees is invalid if provided in the parochial school, but not if offered at a neutral site, even if in a mobile unit adjacent to the parochial school. Reimbursement to parochial schools for the expense of administering teacher-prepared tests required by state law is invalid, but the state may reimburse parochial schools for the expense of administering state-prepared tests. The state may lend school textbooks to parochial school pupils because, the Court has explained, the books can be checked in advance for religious content, and are 'self-policing;' but the state may not lend other seemingly self-policing instructional items such as tape recorders and maps. The state may pay the cost of bus transportation to parochial schools, which the Court has ruled are 'permeated' with religion; but the state is forbidden to pay for field trip transportation visits 'to governmental, industrial, cultural, and scientific centers designed to enrich the secular studies of students.'" Choper, The Religion Clauses of the First Amendment: Reconciling the Conflict, 41 U.Pitt.L.Rev. 673, 680-681 (1980) (footnotes omitted). Since that was written, more decisions on the subject have been rendered, but they leave the theme of chaos securely unimpaired. See, e.g., Aguilar v. Felton, 473 U. S. 402 (1985); Grand Rapids School District v. Ball, 473 U. S. 373 (1985).

In the case of Edwards v. Aguillard, the U.S. Supreme Court ruled that Louisiana's "Creationism Act," which required the teaching of creation science alongside evolution in public schools, violated the Establishment Clause of the First Amendment. The Court held that the law lacked a clear secular purpose and impermissibly endorsed religion by requiring the teaching of a religious-based theory as a counterbalance to evolution. The Court also found that the Act did not further academic freedom or enhance teachers' ability to teach, and that it discriminated against the teaching of evolution by requiring curriculum guides and resource services specifically for creation science.

Religion

Lee v. Weisman

https://supreme.justia.com/cases/federal/us/505/577/

OCTOBER TERM, 1991 Syllabus LEE ET AL. v. WEISMAN, PERSONALLY AND AS NEXT FRIEND OF WEISMAN CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. 90-1014. Argued November 6, 1991-Decided June 24, 1992 Principals of public middle and high schools in Providence, Rhode Island, are permitted to invite members of the clergy to give invocations and benedictions at their schools' graduation ceremonies. Petitioner Lee, a middle school principal, invited a rabbi to offer such prayers at the graduation ceremony for Deborah Weisman's class, gave the rabbi a pamphlet containing guidelines for the composition of public prayers at civic ceremonies, and advised him that the prayers should be nonsectarian. Shortly before the ceremony, the District Court denied the motion of respondent Weisman, Deborah's father, for a temporary restraining order to prohibit school officials from including the prayers in the ceremony. Deborah and her family attended the ceremony, and the prayers were recited. Subsequently, Weisman sought a permanent injunction barring Lee and other petitioners, various Providence public school officials, from inviting clergy to deliver invocations and benedictions at future graduations. It appears likely that such prayers will be conducted at Deborah's high school graduation. The District Court enjoined petitioners from continuing the practice at issue on the ground that it violated the Establishment Clause of the First Amendment. The Court of Appeals affirmed. Held: Including clergy who offer prayers as part of an official public school graduation ceremony is forbidden by the Establishment Clause. Pp.586-599. (a) This Court need not revisit the questions of the definition and scope of the principles governing the extent of permitted accommodation by the State for its citizens' religious beliefs and practices, for the controlling precedents as they relate to prayer and religious exercise in primary and secondary public schools compel the holding here. Thus, the Court will not reconsider its decision in Lemon v. Kurtzman, 403 U. S. 602. The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause, which guarantees at a minimum that a government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which "establishes a 578 Syllabus [state] religion or religious faith, or tends to do so." Lynch v. Donnelly, 465 U. S. 668 , 678. Pp. 586-587. (b) State officials here direct the performance of a formal religious exercise at secondary schools' promotional and graduation ceremonies. Lee's decision that prayers should be given and his selection of the religious participant are choices attributable to the State. Moreover, through the pamphlet and his advice that the prayers be nonsectarian, he directed and controlled the prayers' content. That the directions may have been given in a good-faith attempt to make the prayers acceptable to most persons does not resolve the dilemma caused by the school's involvement, since the government may not establish an official or civic religion as a means of avoiding the establishment of a religion with more specific creeds. Pp. 587-590. (c) The Establishment Clause was inspired by the lesson that in the hands of government what might begin as a tolerant expression of religious views may end in a policy to indoctrinate and coerce. Prayer exercises in elementary and secondary schools carry a particular risk of indirect coercion. Engel v. Vitale, 370 U. S. 421 ; School Dist. of Abington v. Schempp, 374 U. S. 203 . The school district's supervision and control of a high school graduation ceremony places subtle and indirect public and peer pressure on attending students to stand as a group or maintain respectful silence during the invocation and benediction. A reasonable dissenter of high school age could believe that standing or remaining silent signified her own participation in, or approval of, the group exercise, rather than her respect for it. And the State may not place the student dissenter in the dilemma of participating or protesting. Since adolescents are often susceptible to peer pressure, especially in matters of social convention, the State may no more use social pressure to enforce orthodoxy than it may use direct means. The embarrassment and intrusion of the religious exercise cannot be refuted by arguing that the prayers are of a de minimis character, since that is an affront to the rabbi and those for whom the prayers have meaning, and since any intrusion was both real and a violation of the objectors' rights. pp. 590-594. (d) Petitioners' argument that the option of not attending the ceremony excuses any inducement or coercion in the ceremony itself is rejected. In this society, high school graduation is one of life's most significant occasions, and a student is not free to absent herself from the exercise in any real sense of the term "voluntary." Also not dispositive is the contention that prayers are an essential part of these ceremonies because for many persons the occasion would lack meaning without the recognition that human achievements cannot be understood apart from their spiritual essence. This position fails to acknowledge that what 579 for many was a spiritual imperative was for the Weismans religious conformance compelled by the State. It also gives insufficient recognition to the real conflict of conscience faced by a student who would have to choose whether to miss graduation or conform to the state-sponsored practice, in an environment where the risk of compulsion is especially high. Pp. 594-596. (e) Inherent differences between the public school system and a session of a state legislature distinguish this case from Marsh v. Chambers, 463 U. S. 783 , which condoned a prayer exercise. The atmosphere at a state legislature's opening, where adults are free to enter and leave with little comment and for any number of reasons, cannot compare with the constraining potential of the one school event most important for the student to attend. pp. 596-598. 908 F.2d 1090 , affirmed. KENNEDY, J., delivered the opinion of the Court, in which BLACKMUN, STEVENS, O'CONNOR, and SOUTER, JJ., joined. BLACKMUN, J., post, p. 599, and SOUTER, J., post, p. 609, filed concurring opinions, in which STEVENS and O'CONNOR, JJ., joined. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and WHITE and THOMAS, JJ., joined, post, p. 631. Charles J. Cooper argued the cause for petitioners. With him on the briefs were Michael A. Carvin, Peter J. Ferrara, Robert J. Cynkar, Joseph A. Rotella, and Jay Alan Sekulow. Solicitor General Starr argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Gerson, Deputy Solicitor General Roberts, Deputy Assistant Attorney General McGinnis, and Richard H. Seamon. Sandra A. Blanding argued the cause for respondent. With her on the brief were Steven R. Shapiro and John A. Powell.* *Briefs of amici curiae urging reversal were filed for the Board of Education of Alpine School District by Brinton R. Burbidge and Merrill F. Nelson; for the Christian Legal Society et al. by Edward McGlynn Gaffney, Michael J. Woodruff, Samuel E. Ericsson, and Forest D. Montgomery; for the Clarendon Foundation by Kemp R. Harshman and Ronald 580 JUSTICE KENNEDY delivered the opinion of the Court. School principals in the public school system of the city of Providence, Rhode Island, are permitted to invite members of the clergy to offer invocation and benediction prayers as part of the formal graduation ceremonies for middle schools and for high schools. The question before us is whether including clerical members who offer prayers as part of the official school graduation ceremony is consistent with the Religion Clauses of the First Amendment, provisions the Fourteenth Amendment makes applicable with full force to the States and their school districts. D. Maines; for Concerned Women for America et al. by James Matthew Henderson, Sr., Jordan Lorence, Mark N Troobnick, and Thomas Patrick Monaghan; for Focus on the Family et al. by Stephen H. Galebach and Laura D. Millman; for the Liberty Counsel by Mathew D. Staver; for the National Jewish Commission on Law and Public Affairs by Nathan Lewin and Dennis Rapps; for the National Legal Foundation by Robert K. Skolrood and Brian M. McCormick; for the Rutherford Institute et al. by John W Whitehead, Alexis I. Crow, A. Eric Johnston, Stephen E. Hurst, Joseph Secola, Thomas S. Neuberger, J. Brian Heller, Amy Dougherty, David Melton, Thomas W Strahan, Robert R. Melnick, William Bonner, Larry Crain, W Charles Bundren, and James Knicely; for Specialty Research Associates, Inc., et al. by Jordan Lorence; for the Southern Baptist Convention Christian Life Commission by Michael K. Whitehead and James M. Smart, Jr.; and for the United States Catholic Conference by Mark E. Chopko and Phillip H. Harris. Briefs of amici curiae urging affirmance were filed for Americans for Religious Liberty by Ronald A. Lindsay; and for the American Jewish Congress et al. by Douglas Laycock. Briefs of amici curiae were filed for the State of Delaware by Charles M. Oberly III, Attorney General of Delaware, Michael F. Foster, Solicitor General, David S. Swayze, and David B. Ripsom; for the Council on Religious Freedom et al. by Lee Boothby, Robert W Nixon, Walter E. Carson, and Rolland Truman; for the Institute in Basic Life Principles by Joe Reynolds; for the National Coalition for Public Education and Religious Liberty et al. by David B. Isbell and T. Jeremy Gunn; and for the National School Boards Association by Gwendolyn H. Gregory, August W Steinhilber, and Thomas A. Shannon. 581 I A Deborah Weisman graduated from Nathan Bishop Middle School, a public school in Providence, at a formal ceremony in June 1989. She was about 14 years old. For many years it has been the policy of the Providence School Committee and the Superintendent of Schools to permit principals to invite members of the clergy to give invocations and benedictions at middle school and high school graduations. Many, but not all, of the principals elected to include prayers as part of the graduation ceremonies. Acting for himself and his daughter, Deborah's father, Daniel Weisman, objected to any prayers at Deborah's middle school graduation, but to no avail. The school principal, petitioner Robert E. Lee, invited a rabbi to deliver prayers at the graduation exercises for Deborah's class. Rabbi Leslie Gutterman, of the Temple Beth EI in Providence, accepted. It has been the custom of Providence school officials to provide invited clergy with a pamphlet entitled "Guidelines for Civic Occasions," prepared by the National Conference of Christians and Jews. The Guidelines recommend that public prayers at nonsectarian civic ceremonies be composed with "inclusiveness and sensitivity," though they acknowledge that "[p]rayer of any kind may be inappropriate on some civic occasions." App. 20-21. The principal gave Rabbi Gutterman the pamphlet before the graduation and advised him the invocation and benediction should be nonsectarian. Agreed Statement of Facts' 17, id., at 13. Rabbi Gutterman's prayers were as follows: "INVOCATION "God of the Free, Hope of the Brave: "For the legacy of America where diversity is celebrated and the rights of minorities are protected, we 582 thank YOU. May these young men and women grow up to enrich it. "For the liberty of America, we thank YOU. May these new graduates grow up to guard it. "For the political process of America in which all its citizens may participate, for its court system where all may seek justice we thank You. May those we honor this morning always turn to it in trust. "For the destiny of America we thank YOU. May the graduates of Nathan Bishop Middle School so live that they might help to share it. "May our aspirations for our country and for these young people, who are our hope for the future, be richly fulfilled. AMEN" "BENEDICTION "0 God, we are grateful to You for having endowed us with the capacity for learning which we have celebrated on this joyous commencement. "Happy families give thanks for seeing their children achieve an important milestone. Send Your blessings upon the teachers and administrators who helped prepare them. "The graduates now need strength and guidance for the future, help them to understand that we are not complete with academic knowledge alone. We must each strive to fulfill what You require of us all: To do justly, to love mercy, to walk humbly. "We give thanks to You, Lord, for keeping us alive, sustaining us and allowing us to reach this special, happy occasion. AMEN" Id., at 22-23. 583 The record in this case is sparse in many respects, and we are unfamiliar with any fixed custom or practice at middle school graduations, referred to by the school district as "promotional exercises." We are not so constrained with reference to high schools, however. High school graduations are such an integral part of American cultural life that we can with confidence describe their customary features, confirmed by aspects of the record and by the parties' representations at oral argument. In the Providence school system, most high school graduation ceremonies are conducted away from the school, while most middle school ceremonies are held on school premises. Classical High School, which Deborah now attends, has conducted its graduation ceremonies on school premises. Agreed Statement of Facts , 37, id., at 17. The parties stipulate that attendance at graduation ceremonies is voluntary. Agreed Statement of Facts' 41, id., at 18. The graduating students enter as a group in a processional, subject to the direction of teachers and school officials, and sit together, apart from their families. We assume the clergy's participation in any high school graduation exercise would be about what it was at Deborah's middle school ceremony. There the students stood for the Pledge of Allegiance and remained standing during the rabbi's prayers. Tr. of Oral Arg. 38. Even on the assumption that there was a respectful moment of silence both before and after the prayers, the rabbi's two presentations must not have extended much beyond a minute each, if that. We do not know whether he remained on stage during the whole ceremony, or whether the students received individual diplomas on stage, or if he helped to congratulate them. The school board (and the United States, which supports it as amicus curiae) argued that these short prayers and others like them at graduation exercises are of profound meaning to many students and parents throughout this country who consider that due respect and acknowledgment for divine guidance and for the deepest spiritual aspirations of 584 our people ought to be expressed at an event as important in life as a graduation. We assume this to be so in addressing the difficult case now before us, for the significance of the prayers lies also at the heart of Daniel and Deborah Weisman's case. B Deborah's graduation was held on the premises of Nathan Bishop Middle School on June 29, 1989. Four days before the ceremony, Daniel Weisman, in his individual capacity as a Providence taxpayer and as next friend of Deborah, sought a temporary restraining order in the United States District Court for the District of Rhode Island to prohibit school officials from including an invocation or benediction in the graduation ceremony. The court denied the motion for lack of adequate time to consider it. Deborah and her family attended the graduation, where the prayers were recited. In July 1989, Daniel Weisman filed an amended complaint seeking a permanent injunction barring petitioners, various officials of the Providence public schools, from inviting the clergy to deliver invocations and benedictions at future graduations. We find it unnecessary to address Daniel Weisman's taxpayer standing, for a live and justiciable controversy is before us. Deborah Weisman is enrolled as a student at Classical High School in Providence and from the record it appears likely, if not certain, that an invocation and benediction will be conducted at her high school graduation. Agreed Statement of Facts' 38, App. 17. The case was submitted on stipulated facts. The District Court held that petitioners' practice of including invocations and benedictions in public school graduations violated the Establishment Clause of the First Amendment, and it enjoined petitioners from continuing the practice. 728 F. Supp. 68 (1990). The court applied the three-part Establishment Clause test set forth in Lemon v. Kurtzman, 403 U. S. 602 (1971). Under that test as described in our past cases, to satisfy the Establishment Clause a governmen- 585 tal practice must (1) reflect a clearly secular purpose; (2) have a primary effect that neither advances nor inhibits religion; and (3) avoid excessive government entanglement with religion. Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756 , 773 (1973). The District Court held that petitioners' actions violated the second part of the test, and so did not address either the first or the third. The court decided, based on its reading of our precedents, that the effects test of Lemon is violated whenever government action "creates an identification of the state with a religion, or with religion in general," 728 F. Supp., at 71, or when "the effect of the governmental action is to endorse one religion over another, or to endorse religion in generaL" Id., at 72. The court determined that the practice of including invocations and benedictions, even so-called nonsectarian ones, in public school graduations creates an identification of governmental power with religious practice, endorses religion, and violates the Establishment Clause. In so holding the court expressed the determination not to follow Stein v. Plainwell Community Schools, 822 F.2d 1406 (1987), in which the Court of Appeals for the Sixth Circuit, relying on our decision in Marsh v. Chambers, 463 U. S. 783 (1983), held that benedictions and invocations at public school graduations are not always unconstitutional. In Marsh we upheld the constitutionality of the Nebraska State Legislature's practice of opening each of its sessions with a prayer offered by a chaplain paid out of public funds. The District Court in this case disagreed with the Sixth Circuit's reasoning because it believed that Marsh was a narrow decision, "limited to the unique situation of legislative prayer," and did not have any relevance to school prayer cases. 728 F. Supp., at 74. On appeal, the United States Court of Appeals for the First Circuit affirmed. The majority opinion by Judge Torruella adopted the opinion of the District Court. 908 F.2d 1090 (1990). Judge Bownes joined the majority, but wrote a separate concurring opinion in which he decided that the 586 practices challenged here violated all three parts of the Lemon test. Judge Bownes went on to agree with the District Court that Marsh had no application to school prayer cases and that the Stein decision was flawed. He concluded by suggesting that under Establishment Clause rules no prayer, even one excluding any mention of the Deity, could be offered at a public school graduation ceremony. 908 F. 2d, at 1090-1097. Judge Campbell dissented, on the basis of Marsh and Stein. He reasoned that if the prayers delivered were nonsectarian, and if school officials ensured that persons representing a variety of beliefs and ethical systems were invited to present invocations and benedictions, there was no violation of the Establishment Clause. 908 F. 2d, at 1099. We granted certiorari, 499 U. S. 918 (1991), and now affirm. II These dominant facts mark and control the confines of our decision: State officials direct the performance of a formal religious exercise at promotional and graduation ceremonies for secondary schools. Even for those students who object to the religious exercise, their attendance and participation in the state-sponsored religious activity are in a fair and real sense obligatory, though the school district does not require attendance as a condition for receipt of the diploma. This case does not require us to revisit the difficult questions dividing us in recent cases, questions of the definition and full scope of the principles governing the extent of permitted accommodation by the State for the religious beliefs and practices of many of its citizens. See County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573 (1989); Wallace v. Jaffree, 472 U. S. 38 (1985); Lynch v. Donnelly, 465 U. S. 668 (1984). For without reference to those principles in other contexts, the controlling precedents as they relate to prayer and religious exercise in primary and secondary public schools compel the holding here that the policy of the city of Providence is an 587 unconstitutional one. We can decide the case without reconsidering the general constitutional framework by which public schools' efforts to accommodate religion are measured. Thus we do not accept the invitation of petitioners and amicus the United States to reconsider our decision in Lemon v. Kurtzman, supra. The government involvement with religious activity in this case is pervasive, to the point of creating a state-sponsored and state-directed religious exercise in a public school. Conducting this formal religious observance conflicts with settled rules pertaining to prayer exercises for students, and that suffices to determine the question before us. The principle that government may accommodate the free exercise of religion does not supersede the fundamentallimitations imposed by the Establishment Clause. It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which "establishes a [state] religion or religious faith, or tends to do so." Lynch, supra, at 678; see also County of Allegheny, supra, at 591, quoting Everson v. Board of Ed. of Ewing, 330 U. S. 1 , 15-16 (1947). The State's involvement in the school prayers challenged today violates these central principles. That involvement is as troubling as it is undenied. A school official, the principal, decided that an invocation and a benediction should be given; this is a choice attributable to the State, and from a constitutional perspective it is as if a state statute decreed that the prayers must occur. The principal chose the religious participant, here a rabbi, and that choice is also attributable to the State. The reason for the choice of a rabbi is not disclosed by the record, but the potential for divisiveness over the choice of a particular member of the clergy to conduct the ceremony is apparent. Divisiveness, of course, can attend any state decision respecting religions, and neither its existence nor its potential 588 necessarily invalidates the State's attempts to accommodate religion in all cases. The potential for divisiveness is of particular relevance here though, because it centers around an overt religious exercise in a secondary school environment where, as we discuss below, see infra, at 593-594, subtle coercive pressures exist and where the student had no real alternative which would have allowed her to avoid the fact or appearance of participation. The State's role did not end with the decision to include a prayer and with the choice of a clergyman. Principal Lee provided Rabbi Gutterman with a copy of the "Guidelines for Civic Occasions," and advised him that his prayers should be nonsectarian. Through these means the principal directed and controlled the content of the prayers. Even if the only sanction for ignoring the instructions were that the rabbi would not be invited back, we think no religious representative who valued his or her continued reputation and effectiveness in the community would incur the State's displeasure in this regard. It is a cornerstone principle of our Establishment Clause jurisprudence that "it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government," Engel v. Vitale, 370 U. S. 421, 425 (1962), and that is what the school officials attempted to do. Petitioners argue, and we find nothing in the case to refute it, that the directions for the content of the prayers were a good-faith attempt by the school to ensure that the sectarianism which is so often the fiashpoint for religious animosity be removed from the graduation ceremony. The concern is understandable, as a prayer which uses ideas or images identified with a particular religion may foster a different sort of sectarian rivalry than an invocation or benediction in terms more neutral. The school's explanation, however, does not resolve the dilemma caused by its participation. The question is not the good faith of the school in attempting to make 589 the prayer acceptable to most persons, but the legitimacy of its undertaking that enterprise at all when the object is to produce a prayer to be used in a formal religious exercise which students, for all practical purposes, are obliged to attend. We are asked to recognize the existence of a practice of nonsectarian prayer, prayer within the embrace of what is known as the Judeo-Christian tradition, prayer which is more acceptable than one which, for example, makes explicit references to the God of Israel, or to Jesus Christ, or to a patron saint. There may be some support, as an empirical observation, to the statement of the Court of Appeals for the Sixth Circuit, picked up by Judge Campbell's dissent in the Court of Appeals in this case, that there has emerged in this country a civic religion, one which is tolerated when sectarian exercises are not. Stein, 822 F. 2d, at 1409; 908 F.2d 1090 , 1098-1099 (CA1 1990) (Campbell, J., dissenting) (case below); see also Note, Civil Religion and the Establishment Clause, 95 Yale L. J. 1237 (1986). If common ground can be defined which permits once conflicting faiths to express the shared conviction that there is an ethic and a morality which transcend human invention, the sense of community and purpose sought by all decent societies might be advanced. But though the First Amendment does not allow the government to stifle prayers which aspire to these ends, neither does it permit the government to undertake that task for itself. The First Amendment's Religion Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State. The design of the Constitution is that preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission. It must not be forgotten then, that while concern must be given to define the protection granted to an objector or a dissenting nonbeliever, these same Clauses exist to protect religion from government in- 590 terference. James Madison, the principal author of the Bill of Rights, did not rest his opposition to a religious establishment on the sole ground of its effect on the minority. A principal ground for his view was: "[E]xperience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation." Memorial and Remonstrance Against Religious Assessments (1785), in 8 Papers of James Madison 301 (w. Rachal, R. Rutland, B. Ripel, & F. Teute eds. 1973). These concerns have particular application in the case of school officials, whose effort to monitor prayer will be perceived by the students as inducing a participation they might otherwise reject. Though the efforts of the school officials in this case to find common ground appear to have been a good-faith attempt to recognize the common aspects of religions and not the divisive ones, our precedents do not permit school officials to assist in composing prayers as an incident to a formal exercise for their students. Engel v. Vitale, supra, at 425. And these same precedents caution us to measure the idea of a civic religion against the central meaning of the Religion Clauses of the First Amendment, which is that all creeds must be tolerated and none favored. The suggestion that government may establish an official or civic religion as a means of avoiding the establishment of a religion with more specific creeds strikes us as a contradiction that cannot be accepted. The degree of school involvement here made it clear that the graduation prayers bore the imprint of the State and thus put school-age children who objected in an untenable position. We turn our attention now to consider the position of the students, both those who desired the prayer and she who did not. To endure the speech of false ideas or offensive content and then to counter it is part of learning how to live in a pluralistic society, a society which insists upon open discourse towards the end of a tolerant citizenry. And toler- 591 ance presupposes some mutuality of obligation. It is argued that our constitutional vision of a free society requires confidence in our own ability to accept or reject ideas of which we do not approve, and that prayer at a high school graduation does nothing more than offer a choice. By the time they are seniors, high school students no doubt have been required to attend classes and assemblies and to complete assignments exposing them to ideas they find distasteful or immoral or absurd or all of these. Against this background, students may consider it an odd measure of justice to be subjected during the course of their educations to ideas deemed offensive and irreligious, but to be denied a brief, formal prayer ceremony that the school offers in return. This argument cannot prevail, however. It overlooks a fundamental dynamic of the Constitution. The First Amendment protects speech and religion by quite different mechanisms. Speech is protected by ensuring its full expression even when the government participates, for the very object of some of our most important speech is to persuade the government to adopt an idea as its own. Meese v. Keene, 481 U. S. 465 , 480-481 (1987); see also Keller v. State Bar of California, 496 U. S. 1 , 10-11 (1990); Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977). The method for protecting freedom of worship and freedom of conscience in religious matters is quite the reverse. In religious debate or expression the government is not a prime participant, for the Framers deemed religious establishment antithetical to the freedom of all. The Free Exercise Clause embraces a freedom of conscience and worship that has close parallels in the speech provisions of the First Amendment, but the Establishment Clause is a specific prohibition on forms of state intervention in religious affairs with no precise counterpart in the speech provisions. Buckley v. Valeo, 424 U. S. 1 , 92-93, and n. 127 (1976) (per curiam). The explanation lies in the lesson of history that was and is the inspiration for the Establishment Clause, the lesson that in 592 the hands of government what might begin as a tolerant expression of religious views may end in a policy to indoctrinate and coerce. A state-created orthodoxy puts at grave risk that freedom of belief and conscience which are the sole assurance that religious faith is real, not imposed. The lessons of the First Amendment are as urgent in the modern world as in the 18th century when it was written. One timeless lesson is that if citizens are subjected to statesponsored religious exercises, the State disavows its own duty to guard and respect that sphere of inviolable conscience and belief which is the mark of a free people. To compromise that principle today would be to deny our own tradition and forfeit our standing to urge others to secure the protections of that tradition for themselves. As we have observed before, there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools. See, e. g., School Dist. of Abington v. Schempp, 374 U. S. 203, 307 (1963) (Goldberg, J., concurring); Edwards v. Aguillard, 482 U. S. 578 , 584 (1987); Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226 , 261-262 (1990) (KENNEDY, J., concurring). Our decisions in Engel v. Vitale, 370 U. S. 421 (1962), and School Dist. of Abington, supra, recognize, among other things, that prayer exercises in public schools carry a particular risk of indirect coercion. The concern may not be limited to the context of schools, but it is most pronounced there. See County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S., at 661 (KENNEDY, J., concurring in judgment in part and dissenting in part). What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy. 593 We need not look beyond the circumstances of this case to see the phenomenon at work. The undeniable fact is that the school district's supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the invocation and benediction. This pressure, though subtle and indirect, can be as real as any overt compulsion. Of course, in our culture standing or remaining silent can signify adherence to a view or simple respect for the views of others. And no doubt some persons who have no desire to join a prayer have little objection to standing as a sign of respect for those who do. But for the dissenter of high school age, who has a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow, the injury is no less real. There can be no doubt that for many, if not most, of the students at the graduation, the act of standing or remaining silent was an expression of participation in the rabbi's prayer. That was the very point of the religious exercise. It is of little comfort to a dissenter, then, to be told that for her the act of standing or remaining in silence signifies mere respect, rather than participation. What matters is that, given our social conventions, a reasonable dissenter in this milieu could believe that the group exercise signified her own participation or approval of it. Finding no violation under these circumstances would place objectors in the dilemma of participating, with all that implies, or protesting. We do not address whether that choice is acceptable if the affected citizens are mature adults, but we think the State may not, consistent with the Establishment Clause, place primary and secondary school children in this position. Research in psychology supports the common assumption that adolescents are often susceptible to pressure from their peers towards conformity, and that the influence is strongest in matters of social convention. Brittain, Adolescent Choices and Parent-Peer Cross-Pressures, 594 28 Am. Sociological Rev. 385 (June 1963); Clasen & Brown, The Multidimensionality of Peer Pressure in Adolescence, 14 J. of Youth and Adolescence 451 (Dec. 1985); Brown, Clasen, & Eicher, Perceptions of Peer Pressure, Peer Conformity Dispositions, and Self-Reported Behavior Among Adolescents, 22 Developmental Psychology 521 (July 1986). To recognize that the choice imposed by the State constitutes an unacceptable constraint only acknowledges that the government may no more use social pressure to enforce orthodoxy than it may use more direct means. The injury caused by the government's action, and the reason why Daniel and Deborah Weisman object to it, is that the State, in a school setting, in effect required participation in a religious exercise. It is, we concede, a brief exercise during which the individual can concentrate on joining its message, meditate on her own religion, or let her mind wander. But the embarrassment and the intrusion of the religious exercise cannot be refuted by arguing that these prayers, and similar ones to be said in the future, are of a de minimis character. To do so would be an affront to the rabbi who offered them and to all those for whom the prayers were an essential and profound recognition of divine authority. And for the same reason, we think that the intrusion is greater than the two minutes or so of time consumed for prayers like these. Assuming, as we must, that the prayers were offensive to the student and the parent who now object, the intrusion was both real and, in the context of a secondary school, a violation of the objectors' rights. That the intrusion was in the course of promulgating religion that sought to be civic or nonsectarian rather than pertaining to one sect does not lessen the offense or isolation to the objectors. At best it narrows their number, at worst increases their sense of isolation and affront. See supra, at 593. There was a stipulation in the District Court that attendance at graduation and promotional ceremonies is voluntary. Agreed Statement of Facts , 41, App. 18. Petitioners and 595 the United States, as amicus, made this a center point of the case, arguing that the option of not attending the graduation excuses any inducement or coercion in the ceremony itself. The argument lacks all persuasion. Law reaches past formalism. And to say a teenage student has a real choice not to attend her high school graduation is formalistic in the extreme. True, Deborah could elect not to attend commencement without renouncing her diploma; but we shall not allow the case to turn on this point. Everyone knows that in our society and in our culture high school graduation is one of life's most significant occasions. A school rule which excuses attendance is beside the point. Attendance may not be required by official decree, yet it is apparent that a student is not free to absent herself from the graduation exercise in any real sense of the term "voluntary," for absence would require forfeiture of those intangible benefits which have motivated the student through youth and all her high school years. Graduation is a time for family and those closest to the student to celebrate success and express mutual wishes of gratitude and respect, all to the end of impressing upon the young person the role that it is his or her right and duty to assume in the community and all of its diverse parts. The importance of the event is the point the school district and the United States rely upon to argue that a formal prayer ought to be permitted, but it becomes one of the principal reasons why their argument must fail. Their contention, one of considerable force were it not for the constitutional constraints applied to state action, is that the prayers are an essential part of these ceremonies because for many persons an occasion of this significance lacks meaning if there is no recognition, however brief, that human achievements cannot be understood apart from their spiritual essence. We think the Government's position that this interest suffices to force students to choose between compliance or forfeiture demonstrates fundamental inconsistency in its argumentation. It fails to acknowledge that what for many of 596 Deborah's classmates and their parents was a spiritual imperative was for Daniel and Deborah Weisman religious conformance compelled by the State. While in some societies the wishes of the majority might prevail, the Establishment Clause of the First Amendment is addressed to this contingency and rejects the balance urged upon us. The Constitution forbids the State to exact religious conformity from a student as the price of attending her own high school graduation. This is the calculus the Constitution commands. The Government's argument gives insufficient recognition to the real conflict of conscience faced by the young student. The essence of the Government's position is that with regard to a civic, social occasion of this importance it is the objector, not the majority, who must take unilateral and private action to avoid compromising religious scruples, hereby electing to miss the graduation exercise. This turns conventional First Amendment analysis on its head. It is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practice. To say that a student must remain apart from the ceremony at the opening invocation and closing benediction is to risk compelling conformity in an environment analogous to the classroom setting, where we have said the risk of compulsion is especially high. See supra, at 593-594. Just as in Engel v. Vitale, 370 U. S., at 430, and School Dist. of Abington v. Schempp, 374 U. S., at 224-225, where we found that provisions within the challenged legislation permitting a student to be voluntarily excused from attendance or participation in the daily prayers did not shield those practices from invalidation, the fact that attendance at the graduation ceremonies is voluntary in a legal sense does not save the religious exercise. Inherent differences between the public school system and a session of a state legislature distinguish this case from Marsh v. Chambers, 463 U. S. 783 (1983). The considera- 597 tions we have raised in objection to the invocation and benediction are in many respects similar to the arguments we considered in Marsh. But there are also obvious differences. The atmosphere at the opening of a session of a state legislature where adults are free to enter and leave with little comment and for any number of reasons cannot compare with the constraining potential of the one school event most important for the student to attend. The influence and force of a formal exercise in a school graduation are far greater than the prayer exercise we condoned in Marsh. The Marsh majority in fact gave specific recognition to this distinction and placed particular reliance on it in upholding the prayers at issue there. 463 U. S., at 792. Today's case is different. At a high school graduation, teachers and principals must and do retain a high degree of control over the precise contents of the program, the speeches, the timing, the movements, the dress, and the decorum of the students. Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675 (1986). In this atmosphere the state-imposed character of an invocation and benediction by clergy selected by the school combine to make the prayer a state-sanctioned religious exercise in which the student was left with no alternative but to submit. This is different from Marsh and suffices to make the religious exercise a First Amendment violation. Our Establishment Clause jurisprudence remains a delicate and fact-sensitive one, and we cannot accept the parallel relied upon by petitioners and the United States between the facts of Marsh and the case now before us. Our decisions in Engel v. Vitale, supra, and School Dist. of Abington v. Schempp, supra, require us to distinguish the public school context. We do not hold that every state action implicating religion is invalid if one or a few citizens find it offensive. People may take offense at all manner of religious as well as nonreligious messages, but offense alone does not in every case show a violation. We know too that sometimes to endure 598 social isolation or even anger may be the price of conscience or nonconformity. But, by any reading of our cases, the conformity required of the student in this case was too high an exaction to withstand the test of the Establishment Clause. The prayer exercises in this case are especially improper because the State has in every practical sense compelled attendance and participation in an explicit religious exercise at an event of singular importance to every student, one the objecting student had no real alternative to avoid. Our jurisprudence in this area is of necessity one of linedrawing, of determining at what point a dissenter's rights of religious freedom are infringed by the State. "The First Amendment does not prohibit practices which by any realistic measure create none of the dangers which it is designed to prevent and which do not so directly or substantially involve the state in religious exercises or in the favoring of religion as to have meaningful and practical impact. It is of course true that great consequences can grow from small beginnings, but the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow." School Dist. of Abington v. Schempp, supra, at 308 (Goldberg, J., concurring). Our society would be less than true to its heritage if it lacked abiding concern for the values of its young people, and we acknowledge the profound belief of adherents to many faiths that there must be a place in the student's life for precepts of a morality higher even than the law we today enforce. We express no hostility to those aspirations, nor would our oath permit us to do so. A relentless and allpervasive attempt to exclude religion from every aspect of public life could itself become inconsistent with the Constitution. See School Dist. of Abington, supra, at 306 (Goldberg, J., concurring). We recognize that, at graduation time and throughout the course of the educational process, there will 599 be instances when religious values, religious practices, and religious persons will have some interaction with the public schools and their students. See Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226 (1990). But these matters, often questions of accommodation of religion, are not before us. The sole question presented is whether a religious exercise may be conducted at a graduation ceremony in circumstances where, as we have found, young graduates who object are induced to conform. No holding by this Court suggests that a school can persuade or compel a student to participate in a religious exercise. That is being done here, and it is forbidden by the Establishment Clause of the First Amendment. For the reasons we have stated, the judgment of the Court of Appeals is Affirmed. JUSTICE BLACKMUN, with whom JUSTICE STEVENS and JUSTICE O'CONNOR join, concurring. Nearly half a century of review and refinement of Establishment Clause jurisprudence has distilled one clear understanding: Government may neither promote nor affiliate itself with any religious doctrine or organization, nor may it obtrude itself in the internal affairs of any religious institution. The application of these principles to the present case mandates the decision reached today by the Court. I This Court first reviewed a challenge to state law under the Establishment Clause in Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947).1 Relying on the history of the 1 A few earlier cases involving federal laws touched on interpretation of the Establishment Clause. In Reynolds v. United States, 98 U. S. 145 (1879), and Davis v. Beason, 133 U. S. 333 (1890), the Court considered the Clause in the context of federal laws prohibiting bigamy. The Court in Reynolds accepted Thomas Jefferson's letter to the Danbury Baptist Asso- 600 Clause, and the Court's prior analysis, Justice Black outlined the considerations that have become the touchstone of Establishment Clause jurisprudence: Neither a State nor the Federal Government can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither a State nor the Federal Government, openly or secretly, can participate in the affairs of any religious organization and vice versa.2 "In the words of Jefferson, the clause ciation "almost as an authoritative declaration of the scope and effect" of the First Amendment. 98 U. S., at 164. In that letter Jefferson penned his famous lines that the Establishment Clause built "a wall of separation between church and State." Ibid. Davis considered that "[t]he first amendment to the Constitution ... was intended ... to prohibit legislation for the support of any religious tenets, or the modes of worship of any sect." 133 U. S., at 342. In another case, Bradfield v. Roberts, 175 U. S. 291 (1899), the Court held that it did not violate the Establishment Clause for Congress to construct a hospital building for caring for poor patients, although the hospital was managed by sisters of the Roman Catholic Church. The Court reasoned: "That the influence of any particular church may be powerful over the members of a non-sectarian and secular corporation, incorporated for a certain defined purpose and with clearly stated powers, is surely not sufficient to convert such a corporation into a religious or sectarian body." Id., at 298. Finally, in 1908 the Court held that "the spirit of the Constitution" did not prohibit the Indians from using their money, held by the United States Government, for religious education. See Quick Bear v. Leupp, 210 U. S. 50 , 81. 2 The Court articulated six examples of paradigmatic practices that the Establishment Clause prohibits: "The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious 601 against establishment of religion by law was intended to erect 'a wall of separation between church and State.'" Everson, 330 U. S., at 16 (quoting Reynolds v. United States, 98 U. S. 145 , 164 (1879)). The dissenters agreed: "The Amendment's purpose ... was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion." 330 U. S., at 31-32 (Rutledge, J., dissenting, joined by Frankfurter, Jackson, and Burton, JJ.). In Engel v. Vitale, 370 U. S. 421 (1962), the Court considered for the first time the constitutionality of prayer in a public school. Students said aloud a short prayer selected by the State Board of Regents: "'Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.'" Id., at 422. Justice Black, writing for the Court, again made clear that the First Amendment forbids the use of the power or prestige of the government to control, support, or influence the religious beliefs and practices of the American people. Although the prayer was "denominationally neutral" and "its observance on the part of the students [was] voluntary," id., at 430, the Court found that it violated this essential precept of the Establishment Clause. A year later, the Court again invalidated governmentsponsored prayer in public schools in School Dist. of Abington v. Schempp, 374 U. S. 203 (1963). In Schempp, the school day for Baltimore, Maryland, and Abington Township, Pennsylvania, students began with a reading from the Bible, or a recitation of the Lord's Prayer, or both. After a thorough review of the Court's prior Establishment Clause cases, the Court concluded: organizations or groups and vice versa." Everson v. Board of Ed. of Ewing, 330 U. S., at 15. 602 "[T]he Establishment Clause has been directly considered by this Court eight times in the past score of years and, with only one Justice dissenting on the point, it has consistently held that the clause withdrew all legislative power respecting religious belief or the expression thereof. The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion, then the enactment exceeds the scope of legislative power as circumscribed by the Constitution." Id., at 222. Because the schools' opening exercises were governmentsponsored religious ceremonies, the Court found that the primary effect was the advancement of religion and held, therefore, that the activity violated the Establishment Clause. Id., at 223-224. Five years later, the next time the Court considered whether religious activity in public schools violated the Establishment Clause, it reiterated the principle that government "may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite." Epperson v. Arkansas, 393 U. S. 97 , 104 (1968). "'If [the purpose or primary effect] is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution.'" Id., at 107 (quoting Schempp, 374 U. S., at 222). Finding that the Arkansas law aided religion by preventing the teaching of evolution, the Court invalidated it. In 1971, Chief Justice Burger reviewed the Court's past decisions and found: "Three ... tests may be gleaned from our cases." Lemon v. Kurtzman, 403 U. S. 602 , 612. In order for a statute to survive an Establishment Clause challenge, "[f]irst, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally the statute must not foster an excessive government entanglement with 603 religion." Id., at 612-613 (internal quotation marks and citations omitted).3 After Lemon, the Court continued to rely on these basic principles in resolving Establishment Clause disputes.4 Application of these principles to the facts of this case is straightforward. There can be "no doubt" that the "invocation of God's blessings" delivered at Nathan Bishop Middle School "is a religious activity." Engel, 370 U. S., at 424. In the words of Engel, the rabbi's prayer "is a solemn avowal of divine faith and supplication for the blessings of the Almighty. The nature of such a prayer has always been religious." Id., at 424-425. The question then is whether the government has "plac[ed] its official stamp of approval" on the prayer. Id., at 429. As the Court ably demonstrates, when the government "compose[s] official prayers," id., at 425, selects the member of the clergy to deliver the prayer, has the prayer delivered at a public school event that is planned, supervised, and given by school officials, and pres- 3 The final prong, excessive entanglement, was a focus of Walz v. Tax Comm'n of New York City, 397 U. S. 664 , 674 (1970), but harkens back to the final example in Everson: "Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa." Everson, 330 U. S., at 16. The discussion in Everson reflected the Madisonian concern that secular and religious authorities must not interfere with each other's respective spheres of choice and influence. See generally The Complete Madison 298-312 (S. Padover ed. 1953). 4 Since 1971, the Court has decided 31 Establishment Clause cases. In only one instance, the decision of Marsh v. Chambers, 463 U. S. 783 (1983), has the Court not rested its decision on the basic principles described in Lemon. For example, in the most recent Establishment Clause case, Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226 (1990), the Court applied the three-part Lemon analysis to the Equal Access Act, which made it unlawful for public secondary schools to deny equal access to any student wishing to hold religious meetings. Id., at 248-253 (plurality opinion); id., at 262 (Marshall, J., concurring in judgment). In no case involving religious activities in public schools has the Court failed to apply vigorously the Lemon factors. 604 sures students to attend and participate in the prayer, there can be no doubt that the government is advancing and promoting religion.5 As our prior decisions teach us, it is this that the Constitution prohibits. II I join the Court's opinion today because I find nothing in it inconsistent with the essential precepts of the Establishment Clause developed in our precedents. The Court holds that the graduation prayer is unconstitutional because the State "in effect required participation in a religious exercise." Ante, at 594. Although our precedents make clear that proof of government coercion is not necessary to prove an Establishment Clause violation, it is sufficient. Government pressure to participate in a religious activity is an obvious indication that the government is endorsing or promoting religion. But it is not enough that the government restrain from compelling religious practices: It must not engage in them either. See Schempp, 374 U. S., at 305 (Goldberg, J., concurring). The Court repeatedly has recognized that a violation of the Establishment Clause is not predicated on coercion. See, e. g., id., at 223; id., at 229 (Douglas, J., concurring); Wallace v. Jaffree, 472 U. S. 38 , 72 (1985) (O'CONNOR, J., concurring in judgment) ("The decisions [in Engel and Schempp] acknowledged the coercion implicit under the statutory schemes, but they expressly turned only on the fact that the government was sponsoring a manifestly religious exercise" (citation omitted)); Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756 , 786 (1973) ("[P]roof of coercion ... [is] not a necessary element of any claim under the Establishment Clause"). The Establishment Clause proscribes public schools from "conveying or attempting to con- 5 In this case, the religious message it promotes is specifically JudeoChristian. The phrase in the benediction: "We must each strive to fulfill what you require of us all, to do justly, to love mercy, to walk humbly" obviously was taken from the Book of the Prophet Micah, ch. 6, v. 8. 605 vey a message that religion or a particular religious belief is favored or preferred," County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573 , 593 (1989) (internal quotation marks omitted; emphasis in original), even if the schools do not actually "impos[e] pressure upon a student to participate in a religious activity."6 Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226 , 261 (1990) (KENNEDY, J., concurring in part and concurring in judgment). The scope of the Establishment Clause's prohibitions developed in our case law derives from the Clause's purposes. The First Amendment encompasses two distinct guarantees-the government shall make no law respecting an establishment of religion or prohibiting the free exercise thereof-both with the common purpose of securing religious liberty.7 Through vigorous enforcement of both Clauses, we "promote and assure the fullest possible scope of religious liberty and tolerance for all and ... nurture the conditions which secure the best hope of attainment of that end." Schempp, 374 U. S., at 305 (Goldberg, J., concurring). There is no doubt that attempts to aid religion through government coercion jeopardize freedom of conscience. Even subtle pressure diminishes the right of each individual to choose voluntarily what to believe. Representative Carroll explained during congressional debate over the Estab- 6 As a practical matter, of course, anytime the government endorses a religious belief there will almost always be some pressure to conform. "When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain." Engel v. Vitale, 370 U. S. 421 , 431 (1962). 7 See, e. g., Everson, 330 U. S., at 40 (Rutledge, J., dissenting) (" 'Establishment' and 'free exercise' were correlative and coextensive ideas, representing only different facets of the single great and fundamental freedom"); School Dist. of Abington v. Schempp, 374 U. S. 203 , 227 (1963) (Douglas, J., concurring); id., at 305 (Goldberg, J., concurring); Wallace v. Jaffree, 472 U. S. 38 , 50 (1985). 606 lishment Clause: "[T]he rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand." 1 Annals of Congo 757 (1789). Our decisions have gone beyond prohibiting coercion, however, because the Court has recognized that "the fullest possible scope of religious liberty," Schempp, 374 U. S., at 305 (Goldberg, J., concurring), entails more than freedom from coercion. The Establishment Clause protects religious liberty on a grand scale; it is a social compact that guarantees for generations a democracy and a strong religious community-both essential to safeguarding religious liberty. "Our fathers seem to have been perfectly sincere in their belief that the members of the Church would be more patriotic, and the citizens of the State more religious, by keeping their respective functions entirely separate." Religious Liberty, in Essays and Speeches of Jeremiah S. Black 53 (C. Black ed. 1885) (Chief Justice of the Commonwealth of Pennsylvania).8 The mixing of government and religion can be a threat to free government, even if no one is forced to participate. When the government puts its imprimatur on a particular religion, it conveys a message of exclusion to all those who do not adhere to the favored beliefs.9 A government cannot 8 See also Engel, 370 U. S., at 431 (The Clause's "first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion"); Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty., 333 U. S. 203, 212 (1948) ("[T]he First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere"). 9 "[T]he Establishment Clause is infringed when the government makes adherence to religion relevant to a person's standing in the political community. Direct government action endorsing religion or a particular religious practice is invalid under this approach because it sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." Wallace v. Jaffree, 472 U. S., at 69 (O'CONNOR, J., concurring in judgment) (internal quotation marks omitted). 607 be premised on the belief that all persons are created equal when it asserts that God prefers some. Only "[a]nguish, hardship and bitter strife" result "when zealous religious groups struggl[e] with one another to obtain the Government's stamp of approval." Engel, 370 U. S., at 429; see also Lemon, 403 U. S., at 622-623; Aguilar v. Felton, 473 U. S. 402 , 416 (1985) (Powell, J., concurring).l0 Such a struggle can "strain a political system to the breaking point." Walz v. Tax Comm'n of New York City, 397 U. S. 664 , 694 (1970) (opinion of Harlan, J.). When the government arrogates to itself a role in religious affairs, it abandons its obligation as guarantor of democracy. Democracy requires the nourishment of dialog and dissent, while religious faith puts its trust in an ultimate divine authority above all human deliberation. When the government appropriates religious truth, it "transforms rational debate into theological decree." Nuechterlein, Note, The Free Exercise Boundaries of Permissible Accommodation Under the Establishment Clause, 99 Yale L. J. 1127, 1131 (1990). Those who disagree no longer are questioning the policy judgment of the elected but the rules of a higher authority who is beyond reproach. 10 Sigmund Freud expressed it this way: "a religion, even if it calls itself the religion of love, must be hard and unloving to those who do not belong to it." S. Freud, Group Psychology and the Analysis of the Ego 51 (1922). James Madison stated the theory even more strongly in his "Memorial and Remonstrance" against a bill providing tax funds to religious teachers: "It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority. Distant as it may be, in its present form, from the Inquisition it differs from it only in degree. The one is the first step, the other the last in the career of intolerance." The Complete Madison, at 303. Religion has not lost its power to engender divisiveness. "Of all the issues the ACLU takes on-reproductive rights, discrimination, jail and prison conditions, abuse of kids in the public schools, police brutality, to name a few-by far the most volatile issue is that of school prayer. Aside from our efforts to abolish the death penalty, it is the only issue that elicits death threats." Parish, Graduation Prayer Violates the Bill of Rights, 4 Utah Bar J. 19 (June/July 1991). 608 Madison warned that government officials who would use religious authority to pursue secular ends "exceed the commission from which they derive their authority and are Tyrants. The People who submit to it are governed by laws made neither by themselves, nor by an authority derived from them, and are slaves." Memorial and Remonstrance against Religious Assessments (1785), in The Complete Madison 300 (S. Pad over ed. 1953). Democratic government will not last long when proclamation replaces persuasion as the medium of political exchange. Likewise, we have recognized that "[r]eligion flourishes in greater purity, without than with the aid of Gov[ernment]." 11 Id., at 309. To "make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary," Zorach v. Clauson, 343 U. S. 306 , 313 (1952), the government must not align itself with anyone of them. When the government favors a particular religion or sect, the disadvantage to all others is obvious, but even the favored religion may fear being "taint[ed] ... with a corrosive secularism." School Dist. of Grand Rapids v. Ball, 473 U. S. 373 , 385 (1985). The favored religion may be compromised as political figures reshape the religion's beliefs for their own purposes; it may be reformed as government largesse brings government regulation.12 Keeping religion in the hands of private groups minimizes state intrusion on religious choice and best enables each religion to "flourish according to the 11 The view that the Establishment Clause was primarily a vehicle for protecting churches was expounded initially by Roger Williams. "[W]ordly corruptions ... might consume the churches if sturdy fences against the wilderness were not maintained." M. Howe, The Garden and the Wilderness 6 (1965). 12 "[B]ut when a religion contracts an alliance of this nature, I do not hesitate to affirm that it commits the same error as a man who should sacrifice his future to his present welfare; and in obtaining a power to which it has no claim, it risks that authority which is rightfully its own." 1 A. de Tocqueville, Democracy in America 315 (H. Reeve transl. 1900). 609 zeal of its adherents and the appeal of its dogma." Zorach, 343 U. S., at 313. It is these understandings and fears that underlie our Establishment Clause jurisprudence. We have believed that religious freedom cannot exist in the absence of a free democratic government, and that such a government cannot endure when there is fusion between religion and the political regime. We have believed that religious freedom cannot thrive in the absence of a vibrant religious community and that such a community cannot prosper when it is bound to the secular. And we have believed that these were the animating principles behind the adoption of the Establishment Clause. To that end, our cases have prohibited government endorsement of religion, its sponsorship, and active involvement in religion, whether or not citizens were coerced to conform. I remain convinced that our jurisprudence is not misguided, and that it requires the decision reached by the Court today. Accordingly, I join the Court in affirming the judgment of the Court of Appeals. JUSTICE SOUTER, with whom JUSTICE STEVENS and JUSTICE O'CONNOR join, concurring. I join the whole of the Court's opinion, and fully agree that prayers at public school graduation ceremonies indirectly coerce religious observance. I write separately nonetheless on two issues of Establishment Clause analysis that underlie my independent resolution of this case: whether the Clause applies to governmental practices that do not favor one religion or denomination over others, and whether state coercion of religious conformity, over and above state endorsement of religious exercise or belief, is a necessary element of an Establishment Clause violation. I Forty-five years ago, this Court announced a basic principle of constitutional law from which it has not strayed: the 610 Establishment Clause forbids not only state practices that "aid one religion ... or prefer one religion over another," but also those that "aid all religions." Everson v. Board of Ed. of Ewing, 330 U. S. 1 , 15 (1947). Today we reaffirm that principle, holding that the Establishment Clause forbids state-sponsored prayers in public school settings no matter how nondenominational the prayers may be. In barring the State from sponsoring generically theistic prayers where it could not sponsor sectarian ones, we hold true to a line of precedent from which there is no adequate historical case to depart. A Since Everson, we have consistently held the Clause applicable no less to governmental acts favoring religion generally than to acts favoring one religion over others.1 Thus, in Engel v. Vitale, 370 U. S. 421 (1962), we held that the public schools may not subject their students to readings of any prayer, however "denominationally neutral." Id., at 430. More recently, in Wallace v. Jaffree, 472 U. S. 38 (1985), we held that an Alabama moment-of-silence statute passed for the sole purpose of "returning voluntary prayer to public schools," id., at 57, violated the Establishment Clause even though it did not encourage students to pray to any particular deity. We said that "when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all." Id., at 52-53. This conclusion, we held, "derives support not only from the interest in respecting the individual's freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of free and voluntary choice by the faithful, 1 Cf. Larson v. Valente, 456 U. S. 228 (1982) (subjecting discrimination against certain religious organizations to test of strict scrutiny). 611 and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects-or even intolerance among 'religions' -to encompass intolerance of the disbeliever and the uncertain." Id., at 53-54 (footnotes omitted). Likewise, in Texas Monthly, Inc. v. Bullock, 489 U. S. 1 (1989), we struck down a state tax exemption benefiting only religious periodicals; even though the statute in question worked no discrimination among sects, a majority of the Court found that its preference for religious publications over all other kinds "effectively endorses religious belief." Id., at 17 (plurality opinion); see id., at 28 (BLACKMUN, J., concurring in judgment) ("A statutory preference for the dissemination of religious ideas offends our most basic understanding of what the Establishment Clause is all about and hence is constitutionally intolerable"). And in Torcaso v. Watkins, 367 U. S. 488 (1961), we struck down a provision of the Maryland Constitution requiring public officials to declare a "'belief in the existence of God,'" id., at 489, reasoning that, under the Religion Clauses of the First Amendment, "neither a State nor the Federal Government ... can constitutionally pass laws or impose requirements which aid all religions as against non-believers ... ," id., at 495. See also Epperson v. Arkansas, 393 U. S. 97 , 104 (1968) ("The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion"); School Dist. of Abington v. Schempp, 374 U. S. 203 , 216 (1963) ("this Court has rejected unequivocally the contention that the Establishment Clause forbids only governmental preference of one religion over another"); id., at 319320 (Stewart, J., dissenting) (the Clause applies "to each of us, be he Jew or Agnostic, Christian or Atheist, Buddhist or Freethinker"). Such is the settled law. Here, as elsewhere, we should stick to it absent some compelling reason to discard it. See 612 Arizona v. Rumsey, 467 U. S. 203 , 212 (1984); Payne v. Tennessee, 501 U. S. 808 , 842 (1991) (SOUTER, J., concurring). B Some have challenged this precedent by reading the Establishment Clause to permit "nonpreferential" state promotion of religion. The challengers argue that, as originally understood by the Framers, "[t]he Establishment Clause did not require government neutrality between religion and irreligion nor did it prohibit the Federal Government from providing nondiscriminatory aid to religion." Wallace, supra, at 106 (REHNQUIST, J., dissenting); see also R. Cord, Separation of Church and State: Historical Fact and Current Fiction (1988). While a case has been made for this position, it is not so convincing as to warrant reconsideration of our settled law; indeed, I find in the history of the Clause's textual development a more powerful argument supporting the Court's jurisprudence following Everson. When James Madison arrived at the First Congress with a series of proposals to amend the National Constitution, one of the provisions read that "[t]he civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed." 1 Annals of Congo 434 (1789). Madison's language did not last long. It was sent to a Select Committee of the House, which, without explanation, changed it to read that "no religion shall be established by law, nor shall the equal rights of conscience be infringed." Id., at 729. Thence the proposal went to the Committee of the Whole, which was in turn dissatisfied with the Select Committee's language and adopted an alternative proposed by Samuel Livermore of New Hampshire: "Congress shall make no laws touching religion, or infringing the rights of conscience." See id., at 731. Livermore's proposal would have forbidden laws having anything to do with religion and was thus not 613 only far broader than Madison's version, but broader even than the scope of the Establishment Clause as we now understand it. See, e. g., Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327 (1987) (upholding legislative exemption of religious groups from certain obligations under civil rights laws). The House rewrote the amendment once more before sending it to the Senate, this time adopting, without recorded debate, language derived from a proposal by Fisher Ames of Massachusetts: "Congress shall make no law establishing Religion, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed." 1 Documentary History of the First Federal Congress of the United States of America 136 (Senate Journal) (L. de Pauw ed. 1972); see 1 Annals of Congo 765 (1789). Perhaps, on further reflection, the Representatives had thought Livermore's proposal too expansive, or perhaps, as one historian has suggested, they had simply worried that his language would not "satisfy the demands of those who wanted something said specifically against establishments of religion." L. Levy, The Establishment Clause 81 (1986) (hereinafter Levy). We do not know; what we do know is that the House rejected the Select Committee's version, which arguably ensured only that "no religion" enjoyed an official preference over others, and deliberately chose instead a prohibition extending to laws establishing "religion" in general. The sequence of the Senate's treatment of this House proposal, and the House's response to the Senate, confirm that the Framers meant the Establishment Clause's prohibition to encompass nonpreferential aid to religion. In September 1789, the Senate considered a number of provisions that would have permitted such aid, and ultimately it adopted one of them. First, it briefly entertained this language: "Congress shall make no law establishing One Religious Sect or Society in preference to others, nor shall the rights of conscience be infringed." See 1 Documentary History, at 151 614 (Senate Journal); id., at 136. After rejecting two minor amendments to that proposal, see id., at 151, the Senate dropped it altogether and chose a provision identical to the House's proposal, but without the clause protecting the "rights of conscience," ibid. With no record of the Senate debates, we cannot know what prompted these changes, but the record does tell us that, six days later, the Senate went half circle and adopted its narrowest language yet: "Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion." Id., at 166. The Senate sent this proposal to the House along with its versions of the other constitutional amendments proposed. Though it accepted much of the Senate's work on the Bill of Rights, the House rejected the Senate's version of the Establishment Clause and called for a joint conference committee, to which the Senate agreed. The House conferees ultimately won out, persuading the Senate to accept this as the final text of the Religion Clauses: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." What is remarkable is that, unlike the earliest House drafts or the final Senate proposal, the prevailing language is not limited to laws respecting an establishment of "a religion," "a national religion," "one religious sect," or specific "articles of faith." 2 The Framers re- 2 Some commentators have suggested that by targeting laws respecting "an" establishment of religion, the Framers adopted the very nonpreferentialist position whose much clearer articulation they repeatedly rejected. See, e. g., R. Cord, Separation of Church and State 11-12 (1988). Yet the indefinite article before the word "establishment" is better seen as evidence that the Clause forbids any kind of establishment, including a nonpreferential one. If the Framers had wished, for some reason, to use the indefinite term to achieve a narrow meaning for the Clause, they could far more aptly have placed it before the word "religion." See Laycock, "Nonpreferential" Aid to Religion: A False Claim About Original Intent, 27 Wm. & Mary L. Rev. 875, 884-885 (1986) (hereinafter Laycock, "Nonpreferential" Aid). 615 peatedly considered and deliberately rejected such narrow language and instead extended their prohibition to state support for "religion" in general. Implicit in their choice is the distinction between preferential and nonpreferential establishments, which the weight of evidence suggests the Framers appreciated. See, e. g., Laycock, "Nonpreferential" Aid 902-906; Levy 91-119. But cf. T. Curry, The First Freedoms 208-222 (1986). Of particular note, the Framers were vividly familiar with efforts in the Colonies and, later, the States to impose general, nondenominational assessments and other incidents of ostensibly ecumenical establishments. See generally Levy 1-62. The Virginia statute for religious freedom, written by Jefferson and sponsored by Madison, captured the separationist response to such measures. Condemning all establishments, however nonpreferentialist, the statute broadly guaranteed that "no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever," including his own. Act for Establishing Religious Freedom (1785), in 5 The Founders' Constitution 84, 85 (P. Kurland & R. Lerner eds. 1987). Forcing a citizen to support even his own church would, among other things, deny "the ministry those temporary rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labours for the instruction of mankind." Id., at 84. In general, Madison later added, "religion & Govt. will both exist in greater purity, the less they are mixed together." Letter from J. Madison to E. Livingston (July 10, 1822), in 5 The Founders' Constitution, at 105, 106. What we thus know of the Framers' experience underscores the observation of one prominent commentator, that confining the Establishment Clause to a prohibition on preferential aid "requires a premise that the Framers were extraordinarily bad drafters-that they believed one thing but adopted language that said something substantially different, and that they did so after repeatedly attending to the 616 choice of language." Laycock, "Nonpreferential" Aid 882883; see also County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573 , 647648 (1989) (opinion of STEVENS, J.). We must presume, since there is no conclusive evidence to the contrary, that the Framers embraced the significance of their textual judgment.3 Thus, on balance, history neither contradicts nor warrants reconsideration of the settled principle that the Establishment Clause forbids support for religion in general no less than support for one religion or some. C While these considerations are, for me, sufficient to reject the nonpreferentialist position, one further concern animates my judgment. In many contexts, including this one, nonpreferentialism requires some distinction between "sectarian" religious practices and those that would be, by some measure, ecumenical enough to pass Establishment Clause muster. Simply by requiring the enquiry, nonpreferentialists invite the courts to engage in comparative theology. I can hardly imagine a subject less amenable to the compe- 3 In his dissent in Wallace v. Jaffree, 472 U. S. 38 (1985), THE CHIEF JUSTICE rested his nonpreferentialist interpretation partly on the postratification actions of the early National Government. Aside from the willingness of some (but not all) early Presidents to issue ceremonial religious proclamations, which were at worst trivial breaches of the Establishment Clause, see infra, at 630-631, he cited such seemingly preferential aid as a treaty provision, signed by Jefferson, authorizing federal subsidization of a Roman Catholic priest and church for the Kaskaskia Indians. 472 U. S., at 103. But this proves too much, for if the Establishment Clause permits a special appropriation of tax money for the religious activities of a particular sect, it forbids virtually nothing. See Laycock, "Nonpreferential" Aid 915. Although evidence of historical practice can indeed furnish valuable aid in the interpretation of contemporary language, acts like the one in question prove only that public officials, no matter when they serve, can turn a blind eye to constitutional principle. See infra, at 626. 617 tence of the federal judiciary, or more deliberately to be avoided where possible. This case is nicely in point. Since the nonpreferentiality of a prayer must be judged by its text, JUSTICE BLACKMUN pertinently observes, ante, at 604, n. 5, that Rabbi Gutterman drew his exhortation" '[t]o do justly, to love mercy, to walk humbly'" straight from the King James version of Micah, ch. 6, v. 8. At some undefinable point, the similarities between a state-sponsored prayer and the sacred text of a specific religion would so closely identify the former with the latter that even a nonpreferentialist would have to concede a breach of the Establishment Clause. And even if Micah's thought is sufficiently generic for most believers, it still embodies a straightforwardly theistic premise, and so does the rabbi's prayer. Many Americans who consider themselves religious are not theistic; some, like several of the Framers, are deists who would question Rabbi Gutterman's plea for divine advancement of the country's political and moral good. Thus, a nonpreferentialist who would condemn subjecting public school graduates to, say, the Anglican liturgy would still need to explain why the government's preference for theistic over nontheistic religion is constitutional. Nor does it solve the problem to say that the State should promote a "diversity" of religious views; that position would necessarily compel the government and, inevitably, the courts to make wholly inappropriate judgments about the number of religions the State should sponsor and the relative frequency with which it should sponsor each. In fact, the prospect would be even worse than that. As Madison observed in criticizing religious Presidential proclamations, the practice of sponsoring religious messages tends, over time, "to narrow the recommendation to the standard of the predominant sect." Madison's "Detached Memoranda," 3 Wm. & Mary Q. 534, 561 (E. Fleet ed. 1946) (hereinafter Madison's "Detached Memoranda"). We have not changed much since the days of Madison, and the judiciary should not 618 willingly enter the political arena to battle the centripetal force leading from religious pluralism to official preference for the faith with the most votes. II Petitioners rest most of their argument on a theory that, whether or not the Establishment Clause permits extensive nonsectarian support for religion, it does not forbid the state to sponsor affirmations of religious belief that coerce neither support for religion nor participation in religious observance. I appreciate the force of some of the arguments supporting a "coercion" analysis of the Clause. See generally County of Allegheny, supra, at 655-679 (opinion of KENNEDY, J.); McConnell, Coercion: The Lost Element of Establishment, 27 Wm. & Mary L. Rev. 933 (1986). But we could not adopt that reading without abandoning our settled law, a course that, in my view, the text of the Clause would not readily permit. Nor does the extratextual evidence of original meaning stand so unequivocally at odds with the textual premise inherent in existing precedent that we should fundamentally reconsider our course. A Over the years, this Court has declared the invalidity of many noncoercive state laws and practices conveying a message of religious endorsement. For example, in County of Allegheny, supra, we forbade the prominent display of a nativity scene on public proper.ty; without contesting the dissent's observation that the creche coerced no one into accepting or supporting whatever message it proclaimed, five Members of the Court found its display unconstitutional as a state endorsement of Christianity. Id., at 589-594, 598-602. Likewise, in Wallace v. Jaffree, 472 U. S. 38 (1985), we struck down a state law requiring a moment of silence in public classrooms not because the statute coerced students to participate in prayer (for it did not), but because the manner of 619 its enactment "convey[ed] a message of state approval of prayer activities in the public schools." Id., at 61; see also id., at 67-84 (O'CONNOR, J., concurring in judgment). Cf. Engel v. Vitale, 370 U. S., at 431 ("When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. But the purposes underlying the Establishment Clause go much further than that"). In Epperson v. Arkansas, 393 U. S. 97 (1968), we invalidated a state law that barred the teaching of Darwin's theory of evolution because, even though the statute obviously did not coerce anyone to support religion or participate in any religious practice, it was enacted for a singularly religious purpose. See also Edwards v. Aguillard, 482 U. S. 578 , 593 (1987) (statute requiring instruction in "creation science" "endorses religion in violation of the First Amendment"). And in School Dist. of Grand Rapids v. Ball, 473 U. S. 373 (1985), we invalidated a program whereby the State sent public school teachers to parochial schools to instruct students on ostensibly nonreligious matters; while the scheme clearly did not coerce anyone to receive or subsidize religious instruction, we held it invalid because, among other things, "[t]he symbolic union of church and state inherent in the [program] threatens to convey a message of state support for religion to students and to the general public." Id., at 397; see also Texas Monthly, Inc. v. Bullock, 489 U. S., at 17 (plurality opinion) (tax exemption benefiting only religious publications "effectively endorses religious belief"); id., at 28 (BLACKMUN, J., concurring in judgment) (exemption unconstitutional because State "engaged in preferential support for the communication of religious messages"). Our precedents may not always have drawn perfectly straight lines. They simply cannot, however, support the position that a showing of coercion is necessary to a successful Establishment Clause claim. 620 B Like the prOVISIOns about "due" process and "unreasonable" searches and seizures, the constitutional language forbidding laws "respecting an establishment of religion" is not pellucid. But virtually everyone acknowledges that the Clause bans more than formal establishments of religion in the traditional sense, that is, massive state support for religion through, among other means, comprehensive schemes of taxation. See generally Levy 1-62 (discussing such establishments in the Colonies and early States). This much follows from the Framers' explicit rejection of simpler provisions prohibiting either the establishment of a religion or laws "establishing religion" in favor of the broader ban on laws "respecting an establishment of religion." See supra, at 612-614. While some argue that the Framers added the word "respecting" simply to foreclose federal interference with state establishments of religion, see, e. g., Amar, The Bill of Rights as a Constitution, 100 Yale L. J. 1131, 1157 (1991), the language sweeps more broadly than that. In Madison's words, the Clause in its final form forbids "everything like" a national religious establishment, see Madison's "Detached Memoranda" 558, and, after incorporation, it forbids "everything like" a state religious establishment.4 Cf. County of Allegheny, 492 U. S., at 649 (opinion of STEVENS, J.). The sweep is broad enough that Madison himself characterized congressional provisions for legislative and military chaplains as unconstitutional "establishments." Madison's "Detached Memoranda" 558-559; see infra, at 624-625, and n. 6. 4 In Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947), we unanimously incorporated the Establishment Clause into the Due Process Clause of the Fourteenth Amendment and, by so doing, extended its reach to the actions of States. Id., at 14-15; see also Cantwell v. Connecticut, 310 U. S. 296 , 303 (1940) (dictum). Since then, not one Member of this Court has proposed disincorporating the Clause. 621 While petitioners insist that the prohibition extends only to the "coercive" features and incidents of establishment, they cannot easily square that claim with the constitutional text. The First Amendment forbids not just laws "respecting an establishment of religion," but also those "prohibiting the free exercise thereof." Yet laws that coerce nonadherents to "support or participate in any religion or its exercise," County of Allegheny, supra, at 659-660 (opinion of KENNEDY, J.), would virtually by definition violate their right to religious free exercise. See Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 , 877 (1990) (under Free Exercise Clause, "government may not compel affirmation of religious belief"), citing Torcaso v. Watkins, 367 U. S. 488 (1961); see also J. Madison, Memorial and Remonstrance Against Religious Assessments (1785) (compelling support for religious establishments violates "free exercise of Religion"), quoted in 5 The Founders' Constitution, at 82, 84. Thus, a literal application of the coercion test would render the Establishment Clause a virtual nullity, as petitioners' counsel essentially conceded at oral argument. Tr. of Oral Arg. 18. Our cases presuppose as much; as we said in Schoo l Dist. of Abington, "[t]he distinction between the two clauses is apparent-a violation of the Free Exercise Clause is predicated on coercion while the Establishment Clause violation need not be so attended." 374 U. S., at 223; see also Laycock, "Nonpreferential" Aid 922 ("If coercion is ... an element of the establishment clause, establishment adds nothing to free exercise"). While one may argue that the Framers meant the Establishment Clause simply to ornament the First Amendment, cf. T. Curry, The First Freedoms 216-217 (1986), that must be a reading of last resort. Without compelling evidence to the contrary, we should presume that the Framers meant the Clause to stand for something more than petitioners attribute to it. 622 C Petitioners argue from the political setting in which the Establishment Clause was framed, and from the Framers' own political practices following ratification, that government may constitutionally endorse religion so long as it does not coerce religious conformity. The setting and the practices warrant canvassing, but while they yield some evidence for petitioners' argument, they do not reveal the degree of consensus in early constitutional thought that would raise a threat to stare decisis by challenging the presumption that the Establishment Clause adds something to the Free Exercise Clause that follows it. The Framers adopted the Religion Clauses in response to a long tradition of coercive state support for religion, particularly in the form of tax assessments, but their special antipathy to religious coercion did not exhaust their hostility to the features and incidents of establishment. Indeed, Jefferson and Madison opposed any political appropriation of religion, see infra, at 623-626, and, even when challenging the hated assessments, they did not always temper their rhetoric with distinctions between coercive and noncoercive state action. When, for example, Madison criticized Virginia's general assessment bill, he invoked principles antithetical to all state efforts to promote religion. An assessment, he wrote, is improper not simply because it forces people to donate "three pence" to religion, but, more broadly, because "it is itself a signal of persecution. It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority." J. Madison, Memorial and Remonstrance Against Religious Assessments (1785), in 5 The Founders' Constitution, at 83. Madison saw that, even without the tax collector's participation, an official endorsement of religion can impair religious liberty. Petitioners contend that because the early Presidents included religious messages in their inaugural and Thanksgiving Day addresses, the Framers could not have meant the 623 Establishment Clause to forbid noncoercive state endorsement of religion. The argument ignores the fact, however, that Americans today find such proclamations less controversial than did the founding generation, whose published thoughts on the matter belie petitioners' claim. President Jefferson, for example, steadfastly refused to issue Thanksgiving proclamations of any kind, in part because he thought they violated the Religion Clauses. Letter from Thomas Jefferson to Rev. S. Miller (Jan. 23, 1808), in 5 The Founders' Constitution, at 98. In explaining his views to the Reverend Samuel Miller, Jefferson effectively anticipated, and rejected, petitioners' position: "[I]t is only proposed that I should recommend, not prescribe a day of fasting & prayer. That is, that I should indirectly assume to the U. S. an authority over religious exercises which the Constitution has directly precluded from them. It must be meant too that this recommendation is to carry some authority, and to be sanctioned by some penalty on those who disregard it; not indeed of fine and imprisonment, but of some degree of proscription perhaps in public opinion." Id., at 98-99 (emphasis in original). By condemning such noncoercive state practices that, in "recommending" the majority faith, demean religious dissenters "in public opinion," Jefferson necessarily condemned what, in modern terms, we call official endorsement of religion. He accordingly construed the Establishment Clause to forbid not simply state coercion, but also state endorsement, of religious belief and observance.5 And if he opposed 5Petitioners claim that the quoted passage shows that Jefferson regarded Thanksgiving proclamations as "coercive": "Thus, while one may disagree with Jefferson's view that a recommendatory Thanksgiving proclamation would nonetheless be coercive ... one cannot disagree that Jefferson believed coercion to be a necessary element of a First Amendment violation." Brief for Petitioners 34. But this is wordplay. The "proscription" to which Jefferson referred was, of course, by the public and not 624 impersonal Presidential addresses for inflicting "proscription in public opinion," all the more would he have condemned less diffuse expressions of official endorsement. During his first three years in office, James Madison also refused to call for days of thanksgiving and prayer, though later, amid the political turmoil of the War of 1812, he did so on four separate occasions. See Madison's "Detached Memoranda" 562, and n. 54. Upon retirement, in an essay condemning as an unconstitutional "establishment" the use of public money to support congressional and military chaplains, id., at 558-560,6 he concluded that "[r]eligious procla- the government, whose only action was a noncoercive recommendation. And one can call any act of endorsement a form of coercion, but only if one is willing to dilute the meaning of "coercion" until there is no meaning left. Jefferson's position straightforwardly contradicts the claim that a showing of "coercion," under any normal definition, is prerequisite to a successful Establishment Clause claim. At the same time, Jefferson's practice, like Madison's, see infra this page and 625, sometimes diverged from principle, for he did include religious references in his inaugural speeches. See Inaugural Addresses of the Presidents of the United States 17,22-23 (1989); see also n. 3, supra. Petitioners also seek comfort in a different passage of the same letter. Jefferson argued that Presidential religious proclamations violate not just the Establishment Clause, but also the Tenth Amendment, for "what might be a right in a state government, was a violation of that right when assumed by another." Letter from Thomas Jefferson to Rev. S. Miller (Jan. 23,1808), in 5 The Founders' Constitution 99 (P. Kurland & R. Lerner eds. 1987). Jefferson did not, however, restrict himself to the Tenth Amendment in condemning such proclamations by a national officer. I do not, in any event, understand petitioners to be arguing that the Establishment Clause is exclusively a structural provision mediating the respective powers of the State and National Governments. Such a position would entail the argument, which petitioners do not make, and which we would almost certainly reject, that incorporation of the Establishment Clause under the Fourteenth Amendment was erroneous. 6 Madison found this practice "a palpable violation of ... Constitutional principles." Madison's "Detached Memoranda" 558. Although he sat on the committee recommending the congressional chaplainship, see R. Cord, Separation of Church and State: Historical Fact and Current Fiction 23 625 mations by the Executive recommending thanksgivings & fasts are shoots from the same root with the legislative acts reviewed. Altho' recommendations only, they imply a religious agency, making no part of the trust delegated to political rulers." Id., at 560. Explaining that "[t]he members of a Govt ... can in no sense, be regarded as possessing an advisory trust from their Constituents in their religious capacities," ibid., he further observed that the state necessarily freights all of its religious messages with political ones: "the idea of policy [is] associated with religion, whatever be the mode or the occasion, when a function of the latter is assumed by those in power." Id., at 562 (footnote omitted). Madison's failure to keep pace with his principles in the face of congressional pressure cannot erase the principles. He admitted to backsliding, and explained that he had made the content of his wartime proclamations inconsequential enough to mitigate much of their impropriety. See ibid.; see also Letter from J. Madison to E. Livingston (July 10, 1822), in 5 The Founders' Constitution, at 105. While his writings suggest mild variations in his interpretation of the Establishment Clause, Madison was no different in that respect from the rest of his political generation. That he expressed so much doubt about the constitutionality of religious proclamations, however, suggests a brand of separationism stronger even than that embodied in our traditional jurisprudence. So too does his characterization of public subsidies for legislative and military chaplains as unconstitutional "establishments," see supra, at 624 and this page, and n. 6, for the federal courts, however expansive their general view of the Establishment Clause, have upheld both practices. See Marsh v. Chambers, 463 U. S. 783 (1983) (legislative chap- (1988), he later insisted that "it was not with my approbation, that the deviation from [the immunity of religion from civil jurisdiction] took place in Congs., when they appointed Chaplains, to be paid from the N at!. Treasury." Letter from J. Madison to E. Livingston (July 10, 1822), in 5 The Founders' Constitution, at 105. 626 lains); Katcoff v. Marsh, 755 F.2d 223 (CA2 1985) (military chaplains). To be sure, the leaders of the young Republic engaged in some of the practices that separationists like Jefferson and Madison criticized. The First Congress did hire institutional chaplains, see Marsh v. Chambers, supra, at 788, and Presidents Washington and Adams unapologetically marked days of" 'public thanksgiving and prayer,'" see R. Cord, Separation of Church and State 53 (1988). Yet in the face of the separationist dissent, those practices prove, at best, that the Framers simply did not share a common understanding of the Establishment Clause, and, at worst, that they, like other politicians, could raise constitutional ideals one day and turn their backs on them the next. "Indeed, by 1787 the provisions of the state bills of rights had become what Madison called mere 'paper parchments' -expressions of the most laudable sentiments, observed as much in the breach as in practice." Kurland, The Origins of the Religion Clauses of the Constitution, 27 Wm. & Mary L. Rev. 839, 852 (1986) (footnote omitted). Sometimes the National Constitution fared no better. Ten years after proposing the First Amendment, Congress passed the Alien and Sedition Acts, measures patently unconstitutional by modern standards. If the early Congress's political actions were determinative, and not merely relevant, evidence of constitutional meaning, we would have to gut our current First Amendment doctrine to make room for political censorship. While we may be unable to know for certain what the Framers meant by the Clause, we do know that, around the time of its ratification, a respectable body of opinion supported a considerably broader reading than petitioners urge upon us. This consistency with the textual considerations is enough to preclude fundamentally reexamining our settled law, and I am accordingly left with the task of considering whether the state practice at issue here violates our traditional understanding of the Clause's proscriptions. 627 III While the Establishment Clause's concept of neutrality is not self-revealing, our recent cases have invested it with specific content: the State may not favor or endorse either religion generally over nonreligion or one religion over others. See, e. g., County of Allegheny, 492 U. S., at 589-594, 598 602; Texas Monthly, 489 U. S., at 17 (plurality opinion); id., at 28 (BLACKMUN, J., concurring in judgment); Edwards v. Aguillard, 482 U. S., at 593; School Dist. of Grand Rapids, 473 U. S., at 389-392; Wallace v. Jaffree, 472 U. S., at 61; see also Laycock, Formal, Substantive, and Disaggregated Neutrality Toward Religion, 39 DePaul L. Rev. 993 (1990); cf. Lemon v. Kurtzman, 403 U. S. 602 , 612-613 (1971). This principle against favoritism and endorsement has become the foundation of Establishment Clause jurisprudence, ensuring that religious belief is irrelevant to every citizen's standing in the political community, see County of Allegheny, supra, at 594; J. Madison, Memorial and Remonstrance Against Religious Assessments (1785), in 5 The Founders' Constitution, at 82-83, and protecting religion from the demeaning effects of any governmental embrace, see id., at 83. Now, as in the early Republic, "religion & Govt. will both exist in greater purity, the less they are mixed together." Letter from J. Madison to E. Livingston (July 10, 1822), in 5 The Founders' Constitution, at 106. Our aspiration to religious liberty, embodied in the First Amendment, permits no other standard. A That government must remain neutral in matters of religion does not foreclose it from ever taking religion into account. The State may "accommodate" the free exercise of religion by relieving people from generally applicable rules that interfere with their religious callings. See, e. g., Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327 (1987); see also Sherbert v. Verner, 374 U. S. 398 (1963). Contrary to the 628 views of some,7 such accommodation does not necessarily signify an official endorsement of religious observance over disbelief. In everyday life, we routinely accommodate religious beliefs that we do not share. A Christian inviting an Orthodox Jew to lunch might take pains to choose a kosher restaurant; an atheist in a hurry might yield the right of way to an Amish man steering a horse-drawn carriage. In so acting, we express respect for, but not endorsement of, the fundamental values of others. We act without expressing a position on the theological merit of those values or of religious belief in general, and no one perceives us to have taken such a position. The government may act likewise. Most religions encourage devotional practices that are at once crucial to the lives of believers and idiosyncratic in the eyes of nonadherents. By definition, secular rules of general application are drawn from the nonadherent's vantage and, consequently, fail to take such practices into account. Yet when enforcement of such rules cuts across religious sensibilities, as it often does, it puts those affected to the choice of taking sides between God and government. In such circumstances, accommodating religion reveals nothing beyond a recognition that general rules can unnecessarily offend the religious conscience when they offend the conscience of secular society not at all. Cf. Welsh v. United States, 398 U. S. 333 , 340 (1970) (plurality opinion). Thus, in freeing the Native American Church from federal laws forbidding peyote use, see Drug Enforcement Administration Miscellaneous Exemptions, 21 CFR 7 See, e. g., Thomas v. Review Ed. of Indiana Employment Security Div., 450 U. S. 707 , 726 (1981) (REHNQUIST, J., dissenting); Choper, The Religion Clauses of the First Amendment: Reconciling the Conflict, 41 U. Pitt. L. Rev. 673, 685-686 (1980); see also Walz v. Tax Comm'n of New York City, 397 U. S. 664 ,668-669 (1970); Sherbert v. Verner, 374 U. S. 398 , 414, 416 (1963) (Stewart, J., concurring in result); cf. Wallace v. Jaffree, 472 U. S., at 83 (O'CONNOR, J., concurring in judgment). 629 § 1307.31 (1991), the government conveys no endorsement of peyote rituals, the Church, or religion as such; it simply respects the centrality of peyote to the lives of certain Americans. See Note, The Free Exercise Boundaries of Permissible Accommodation Under the Establishment Clause, 99 Yale L. J. 1127, 1135-1136 (1990). B Whatever else may define the scope of accommodation permissible under the Establishment Clause, one requirement is clear: accommodation must lift a discernible burden on the free exercise of religion. See County of Allegheny, supra, at 601, n. 51; id., at 631-632 (O'CONNOR, J., concurring in part and concurring in judgment); Corporation of Presiding Bishop, supra, at 348 (O'CONNOR, J., concurring in judgment); see also Texas Monthly, supra, at 18, 18-19, n. 8 (plurality opinion); Wallace v. Jaffree, supra, at 57-58, n. 45. But see County of Allegheny, supra, at 663, n. 2 (KENNEDY, J., concurring in judgment in part and dissenting in part). Concern for the position of religious individuals in the modern regulatory State cannot justify official solicitude for a religious practice unburdened by general rules; such gratuitous largesse would effectively favor religion over disbelief. By these lights one easily sees that, in sponsoring the graduation prayers at issue here, the State has crossed the line from permissible accommodation to unconstitutional establishment. Religious students cannot complain that omitting prayers from their graduation ceremony would, in any realistic sense, "burden" their spiritual callings. To be sure, many of them invest this rite of passage with spiritual significance, but they may express their religious feelings about it before and after the ceremony. They may even organize a privately sponsored baccalaureate if they desire the company of likeminded students. Because they accordingly have no need for the machinery of the State to affirm their beliefs, the 630 government's sponsorship of prayer at the graduation ceremony is most reasonably understood as an official endorsement of religion and, in this instance, of theistic religion. One may fairly say, as one commentator has suggested, that the government brought prayer into the ceremony "precisely because some people want a symbolic affirmation that government approves and endorses their religion, and because many of the people who want this affirmation place little or no value on the costs to religious minorities." Laycock, Summary and Synthesis: The Crisis in Religious Liberty, 60 Geo. Wash. L. Rev. 841, 844 (1992).8 Petitioners would deflect this conclusion by arguing that graduation prayers are no different from Presidential religious proclamations and similar official "acknowledgments" of religion in public life. But religious invocations in Thanksgiving Day addresses and the like, rarely noticed, ignored without effort, conveyed over an impersonal medium, and directed at no one in particular, inhabit a pallid zone worlds apart from official prayers delivered to a captive audience of public school students and their families. Madison himself respected the difference between the trivial and the serious in constitutional practice. Realizing that his con- 8 If the State had chosen its graduation day speakers according to wholly secular criteria, and if one of those speakers (not a state actor) had individually chosen to deliver a religious message, it would have been harder to attribute an endorsement of religion to the State. Cf. Witters v. Washington Dept. of Services for Blind, 474 U. S. 481 (1986). But that is not our case. Nor is this a case where the State has, without singling out religious groups or individuals, extended benefits to them as members of a broad class of beneficiaries defined by clearly secular criteria. See Widmar v. Vincent, 454 U. S. 263 , 274-275 (1981); Walz, supra, at 696 (opinion of Harlan, J.) ("In any particular case the critical question is whether the circumference of legislation encircles a class so broad that it can be fairly concluded that religious institutions could be thought to fall within the natural perimeter"). Finally, this is not a case like Marsh v. Chambers, 463 U. S. 783 (1983), in which government officials invoke spiritual inspiration entirely for their own benefit without directing any religious message at the citizens they lead. 631 temporaries were unlikely to take the Establishment Clause seriously enough to forgo a legislative chaplainship, he suggested that "[r]ather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex .... " Madison's "Detached Memoranda" 559; see also Letter from J. Madison to E. Livingston (July 10, 1822), in 5 The Founders' Constitution, at 105. But that logic permits no winking at the practice in question here. When public school officials, armed with the State's authority, convey an endorsement of religion to their students, they strike near the core of the Establishment Clause. However "ceremonial" their messages may be, they are flatly unconstitutional. JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JusTICE WHITE, and JUSTICE THOMAS join, dissenting. Three Terms ago, I joined an opinion recognizing that the Establishment Clause must be construed in light of the "[g]overnment policies of accommodation, acknowledgment, and support for religion [that] are an accepted part of our political and cultural heritage." That opinion affirmed that "the meaning of the Clause is to be determined by reference to historical practices and understandings." It said that "[a] test for implementing the protections of the Establishment Clause that, if applied with consistency, would invalidate longstanding traditions cannot be a proper reading of the Clause." County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573 , 657, 670 (1989) (KENNEDY, J., concurring in judgment in part and dissenting in part). These views of course prevent me from joining today's opinion, which is conspicuously bereft of any reference to history. In holding that the Establishment Clause prohibits invocations and benedictions at public school graduation ceremonies, the Court-with nary a mention that it is doing 632 so-lays waste a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally. As its instrument of destruction, the bulldozer of its social engineering, the Court invents a boundless, and boundlessly manipulable, test of psychological coercion, which promises to do for the Establishment Clause what the Durham rule did for the insanity defense. See Durham v. United States, 94 U. S. App. D. C. 228, 214 F.2d 862 (1954). Today's opinion shows more forcefully than volumes of argumentation why our Nation's protection, that fortress which is our Constitution, cannot possibly rest upon the changeable philosophical predilections of the Justices of this Court, but must have deep foundations in the historic practices of our people. I Justice Holmes' aphorism that "a page of history is worth a volume of logic," New York Trust Co. v. Eisner, 256 U. S. 345 , 349 (1921), applies with particular force to our Establishment Clause jurisprudence. As we have recognized, our interpretation of the Establishment Clause should "compor[t] with what history reveals was the contemporaneous understanding of its guarantees." Lynch v. Donnelly, 465 U. S. 668 , 673 (1984). "[T]he line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers." School Dist. of Abington v. Schempp, 374 U. S. 203, 294 (1963) (Brennan, J., concurring). "[H]istorical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied" to contemporaneous practices. Marsh v. Chambers, 463 U. S. 783 , 790 (1983). Thus, "[t]he existence from the beginning of the Nation's life of a practice, [while] not conclusive of its constitutionality ... [,] is a fact of considerable import in the interpretation" of the 633 Establishment Clause. Walz v. Tax Comm'n of New York City, 397 U. S. 664 , 681 (1970) (Brennan, J., concurring). The history and tradition of our Nation are replete with public ceremonies featuring prayers of thanksgiving and petition. Illustrations of this point have been amply provided in our prior opinions, see, e. g., Lynch, supra, at 674-678; Marsh, supra, at 786-788; see also Wallace v. Jaffree, 472 U. S. 38 , 100-103 (1985) (REHNQUIST, J., dissenting); Engel v. Vitale, 370 U. S. 421 , 446-450, and n. 3 (1962) (Stewart, J., dissenting), but since the Court is so oblivious to our history as to suggest that the Constitution restricts "preservation and transmission of religious beliefs ... to the private sphere," ante, at 589, it appears necessary to provide another brief account. From our Nation's origin, prayer has been a prominent part of governmental ceremonies and proclamations. The Declaration of Independence, the document marking our birth as a separate people, "appeal[ed] to the Supreme Judge of the world for the rectitude of our intentions" and avowed "a firm reliance on the protection of divine Providence." In his first inaugural address, after swearing his oath of office on a Bible, George Washington deliberately made a prayer a part of his first official act as President: "[I]t would be peculiarly improper to omit in this first official act my fervent supplications to that Almighty Being who rules over the universe, who presides in the councils of nations, and whose providential aids can supply every human defect, that His benediction may consecrate to the liberties and happiness of the people of the United States a Government instituted by themselves for these essential purposes." Inaugural Addresses of the Presidents of the United States, S. Doc. 101-10, p.2 (1989). Such supplications have been a characteristic feature of inaugural addresses ever since. Thomas Jefferson, for example, 634 prayed in his first inaugural address: "[MJay that Infinite Power which rules the destinies of the universe lead our councils to what is best, and give them a favorable issue for your peace and prosperity." Id., at 17. In his second inaugural address, Jefferson acknowledged his need for divine guidance and invited his audience to join his prayer: "I shall need, too, the favor of that Being in whose hands we are, who led our fathers, as Israel of old, from their native land and planted them in a country flowing with all the necessaries and comforts of life; who has covered our infancy with His providence and our riper years with His wisdom and power, and to whose goodness I ask you to join in supplications with me that He will so enlighten the minds of your servants, guide their councils, and prosper their measures that whatsoever they do shall result in your good, and shall secure to you the peace, friendship, and approbation of all nations." Id., at 22-23. Similarly, James Madison, in his first inaugural address, placed his confidence "in the guardianship and guidance of that Almighty Being whose power regulates the destiny of nations, whose blessings have been so conspicuously dispensed to this rising Republic, and to whom we are bound to address our devout gratitude for the past, as well as our fervent supplications and best hopes for the future." Id., at 28. Most recently, President Bush, continuing the tradition established by President Washington, asked those attending his inauguration to bow their heads, and made a prayer his first official act as President. Id., at 346. Our national celebration of Thanksgiving likewise dates back to President Washington. As we recounted in Lynch: 635 "The day after the First Amendment was proposed, Congress urged President Washington to proclaim 'a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favours of Almighty God.' President Washington proclaimed November 26, 1789, a day of thanksgiving to 'offe[r] our prayers and supplications to the Great Lord and Ruler of Nations, and beseech Him to pardon our national and other transgressions .... '" 465 U. S., at 675, n. 2 (citations omitted). This tradition of Thanksgiving Proclamations-with their religious theme of prayerful gratitude to God-has been adhered to by almost every President. Id., at 675, and nn. 2 and 3; Wallace v. Jaffree, supra, at 100-103 (REHNQUIST, J., dissenting). The other two branches of the Federal Government also have a long-established practice of prayer at public events. As we detailed in Marsh, congressional sessions have opened with a chaplain's prayer ever since the First Congress. 463 U. S., at 787-788. And this Court's own sessions have opened with the invocation "God save the United States and this Honorable Court" since the days of Chief Justice Marshall. 1 C. Warren, The Supreme Court in United States History 469 (1922). In addition to this general tradition of prayer at public ceremonies, there exists a more specific tradition of invocations and benedictions at public school graduation exercises. By one account, the first public high school graduation ceremony took place in Connecticut in July 1868-the very month, as it happens, that the Fourteenth Amendment (the vehicle by which the Establishment Clause has been applied against the States) was ratified-when "15 seniors from the Norwich Free Academy marched in their best Sunday suits and dresses into a church hall and waited through majestic music and long prayers." Brodinsky, Commencement Rites Obsolete? Not At All, A 10-Week Study Shows, 10 Updat- 636 ing School Board Policies, No.4, p. 3 (Apr. 1979). As the Court obliquely acknowledges in describing the "customary features" of high school graduations, ante, at 583, and as respondents do not contest, the invocation and benediction have long been recognized to be "as traditional as any other parts of the [school] graduation program and are widely established." H. McKown, Commencement Activities 56 (1931); see also Brodinsky, supra, at 5. II The Court presumably would separate graduation invocations and benedictions from other instances of public "preservation and transmission of religious beliefs" on the ground that they involve "psychological coercion." I find it a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday displays, see County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573 (1989), has come to "requir[e] scrutiny more commonly associated with interior decorators than with the judiciary." American Jewish Congress v. Chicago, 827 F.2d 120 , 129 (CA7 1987) (Easterbrook, J., dissenting). But interior decorating is a rock-hard science compared to psychology practiced by amateurs. A few citations of "[r]esearch in psychology" that have no particular bearing upon the precise issue here, ante, at 593, cannot disguise the fact that the Court has gone beyond the realm where judges know what they are doing. The Court's argument that state officials have "coerced" students to take part in the invocation and benediction at graduation ceremonies is, not to put too fine a point on it, incoherent. The Court identifies two "dominant facts" that it says dictate its ruling that invocations and benedictions at public school graduation ceremonies violate the Establishment Clause. Ante, at 586. Neither of them is in any relevant sense true. 637 A The Court declares that students' "attendance and participation in the [invocation and benediction] are in a fair and real sense obligatory." Ibid. But what exactly is this "fair and real sense"? According to the Court, students at graduation who want "to avoid the fact or appearance of participation," ante, at 588, in the invocation and benediction are psychologically obligated by "public pressure, as well as peer pressure, ... to stand as a group or, at least, maintain respectful silence" during those prayers. Ante, at 593. This assertion-the very linchpin of the Court's opinion-is almost as intriguing for what it does not say as for what it says. It does not say, for example, that students are psychologically coerced to bow their heads, place their hands in a Durer-like prayer position, pay attention to the prayers, utter "Amen," or in fact pray. (Perhaps further intensive psychological research remains to be done on these matters.) It claims only that students are psychologically coerced "to stand ... or, at least, maintain respectful silence." Ibid. (emphasis added). Both halves of this disjunctive (both of which must amount to the fact or appearance of participation in prayer if the Court's analysis is to survive on its own terms) merit particular attention. To begin with the latter: The Court's notion that a student who simply sits in "respectful silence" during the invocation and benediction (when all others are standing) has somehow joined-or would somehow be perceived as having joinedin the prayers is nothing short of ludicrous. We indeed live in a vulgar age. But surely "our social conventions," ibid., have not coarsened to the point that anyone who does not stand on his chair and shout obscenities can reasonably be deemed to have assented to everything said in his presence. Since the Court does not dispute that students exposed to prayer at graduation ceremonies retain (despite "subtle coercive pressures," ante, at 588) the free will to sit, cf. ante, at 593, there is absolutely no basis for the Court's 638 decision. It is fanciful enough to say that "a reasonable dissenter," standing head erect in a class of bowed heads, "could believe that the group exercise signified her own participation or approval of it," ibid. It is beyond the absurd to say that she could entertain such a belief while pointedly declining to rise. But let us assume the very worst, that the nonparticipating graduate is "subtly coerced" ... to stand! Even that half of the disjunctive does not remotely establish a "participation" (or an "appearance of participation") in a religious exercise. The Court acknowledges that "in our culture standing ... can signify adherence to a view or simple respect for the views of others." Ibid. (Much more often the latter than the former, I think, except perhaps in the proverbial town meeting, where one votes by standing.) But if it is a permissible inference that one who is standing is doing so simply out of respect for the prayers of others that are in progress, then how can it possibly be said that a "reasonable dissenter ... could believe that the group exercise signified her own participation or approval"? Quite obviously, it cannot. I may add, moreover, that maintaining respect for the religious observances of others is a fundamental civic virtue that government (including the public schools) can and should cultivate-so that even if it were the case that the displaying of such respect might be mistaken for taking part in the prayer, I would deny that the dissenter's interest in avoiding even the false appearance of participation constitutionally trumps the government's interest in fostering respect for religion generally. The opinion manifests that the Court itself has not given careful consideration to its test of psychological coercion. For if it had, how could it observe, with no hint of concern or disapproval, that students stood for the Pledge of Allegiance, which immediately preceded Rabbi Gutterman's invocation? Ante, at 583. The government can, of course, no more coerce political orthodoxy than religious orthodoxy. West 639 Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 , 642 (1943). Moreover, since the Pledge of Allegiance has been revised since Barnette to include the phrase "under God," recital of the Pledge would appear to raise the same Establishment Clause issue as the invocation and benediction. If students were psychologically coerced to remain standing during the invocation, they must also have been psychologically coerced, moments before, to stand for (and thereby, in the Court's view, take part in or appear to take part in) the Pledge. Must the Pledge therefore be barred from the public schools (both from graduation ceremonies and from the classroom)? In Barnette we held that a public school student could not be compelled to recite the Pledge; we did not even hint that she could not be compelled to observe respectful silence-indeed, even to stand in respectful silence-when those who wished to recite it did so. Logically, that ought to be the next project for the Court's bulldozer. I also find it odd that the Court concludes that high school graduates may not be subjected to this supposed psychological coercion, yet refrains from addressing whether "mature adults" may. Ante, at 593. I had thought that the reason graduation from high school is regarded as so significant an event is that it is generally associated with transition from adolescence to young adulthood. Many graduating seniors, of course, are old enough to vote. Why, then, does the Court treat them as though they were first-graders? Will we soon have a jurisprudence that distinguishes between mature and immature adults? B The other "dominant fac[t]" identified by the Court is that "[s]tate officials direct the performance of a formal religious exercise" at school graduation ceremonies. Ante, at 586. "Direct[ing] the performance of a formal religious exercise" has a sound ofliturgy to it, summoning up images of the principal directing acolytes where to carry the cross, or showing the rabbi where to unroll the Torah. A Court professing to be 640 engaged in a "delicate and fact-sensitive" line-drawing, ante, at 597, would better describe what it means as "prescribing the content of an invocation and benediction." But even that would be false. All the record shows is that principals of the Providence public schools, acting within their delegated authority, have invited clergy to deliver invocations and benedictions at graduations; and that Principal Lee invited Rabbi Gutterman, provided him a two-page pamphlet, prepared by the National Conference of Christians and Jews, giving general advice on inclusive prayer for civic occasions, and advised him that his prayers at graduation should be nonsectarian. How these facts can fairly be transformed into the charges that Principal Lee "directed and controlled the content of [Rabbi Gutterman's] prayer," ante, at 588, that school officials "monitor prayer," ante, at 590, and attempted to "'compose official prayers,'" ante, at 588, and that the "government involvement with religious activity in this case is pervasive," ante, at 587, is difficult to fathom. The Court identifies nothing in the record remotely suggesting that school officials have ever drafted, edited, screened, or censored graduation prayers, or that Rabbi Gutterman was a mouthpiece of the school officials. These distortions of the record are, of course, not harmless error: without them the Court's solemn assertion that the school officials could reasonably be perceived to be "enforc[ing] a religious orthodoxy," ante, at 592, would ring as hollow as it ought. III The deeper flaw in the Court's opinion does not lie in its wrong answer to the question whether there was stateinduced "peer-pressure" coercion; it lies, rather, in the Court's making violation of the Establishment Clause hinge on such a precious question. The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty. Typically, attendance at the state 641 church was required; only clergy of the official church could lawfully perform sacraments; and dissenters, if tolerated, faced an array of civil disabilities. L. Levy, The Establishment Clause 4 (1986). Thus, for example, in the Colony of Virginia, where the Church of England had been established, ministers were required by law to conform to the doctrine and rites of the Church of England; and all persons were required to attend church and observe the Sabbath, were tithed for the public support of Anglican ministers, and were taxed for the costs of building and repairing churches. Id., at 3-4. The Establishment Clause was adopted to prohibit such an establishment of religion at the federal level (and to protect state establishments of religion from federal interference). I will further acknowledge for the sake of argument that, as some scholars have argued, by 1790 the term "establishment" had acquired an additional meaning-"financial support of religion generally, by public taxation" -that reflected the development of "general or multiple" establishments, not limited to a single church. Id., at 8-9. But that would still be an establishment coerced by force of law. And I will further concede that our constitutional tradition, from the Declaration of Independence and the first inaugural address of Washington, quoted earlier, down to the present day, has, with a few aberrations, see Church of Holy Trinity v. United States, 143 U. S. 457 (1892), ruled out of order governmentsponsored endorsement of religion-even when no legal coercion is present, and indeed even when no ersatz, "peerpressure" psycho-coercion is present-where the endorsement is sectarian, in the sense of specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ (for example, the divinity of Christ). But there is simply no support for the proposition that the officially sponsored nondenominational invocation and benediction read by Rabbi Gutterman-with no one legally coerced to recite 642 them-violated the Constitution of the United States. To the contrary, they are so characteristically American they could have come from the pen of George Washington or Abraham Lincoln himself. Thus, while I have no quarrel with the Court's general proposition that the Establishment Clause "guarantees that government may not coerce anyone to support or participate in religion or its exercise," ante, at 587, I see no warrant for expanding the concept of coercion beyond acts backed by threat of penalty-a brand of coercion that, happily, is readily discernible to those of us who have made a career of reading the disciples of Blackstone rather than of Freud. The Framers were indeed opposed to coercion of religious worship by the National Government; but, as their own sponsorship of nonsectarian prayer in public events demonstrates, they understood that "[s]peech is not coercive; the listener may do as he likes." American Jewish Congress v. Chicago, 827 F. 2d, at 132 (Easterbrook, J., dissenting). This historical discussion places in revealing perspective the Court's extravagant claim that the State has "for all practical purposes," ante, at 589, and "in every practical sense," ante, at 598, compelled students to participate in prayers at graduation. Beyond the fact, stipulated to by the parties, that attendance at graduation is voluntary, there is nothing in the record to indicate that failure of attending students to take part in the invocation or benediction was subject to any penalty or discipline. Contrast this with, for example, the facts of Barnette: Schoolchildren were required by law to recite the Pledge of Allegiance; failure to do so resulted in expulsion, threatened the expelled child with the prospect of being sent to a reformatory for criminally inclined juveniles, and subjected his parents to prosecution (and incarceration) for causing delinquency. 319 U. S., at 629-630. To characterize the "subtle coercive pressures," ante, at 588, allegedly present here as the "practical" equiva- 643 lent of the legal sanctions in Barnette is ... well, let me just say it is not a "delicate and fact-sensitive" analysis. The Court relies on our "school prayer" cases, Engel v. Vitale, 370 U. S. 421 (1962), and School Dist. of Abington v. Schempp, 374 U. S. 203 (1963). Ante, at 592. But whatever the merit of those cases, they do not support, much less compel, the Court's psycho-journey. In the first place, Engel and Schempp do not constitute an exception to the rule, distilled from historical practice, that public ceremonies may include prayer, see supra, at 633-636; rather, they simply do not fall within the scope of the rule (for the obvious reason that school instruction is not a public ceremony). Second, we have made clear our understanding that school prayer occurs within a framework in which legal coercion to attend school (i. e., coercion under threat of penalty) provides the ultimate backdrop. In Schempp, for example, we emphasized that the prayers were "prescribed as part of the curricular activities of students who are required by law to attend school." 374 U. S., at 223 (emphasis added). Engel's suggestion that the school prayer program at issue there-which permitted students "to remain silent or be excused from the room," 370 U. S., at 430-involved "indirect coercive pressure," id., at 431, should be understood against this backdrop of legal coercion. The question whether the opt-out procedure in Engel sufficed to dispel the coercion resulting from the mandatory attendance requirement is quite different from the question whether forbidden coercion exists in an environment utterly devoid of legal compulsion. And finally, our school prayer cases turn in part on the fact that the classroom is inherently an instructional setting, and daily prayer there-where parents are not present to counter "the students' emulation of teachers as role models and the children's susceptibility to peer pressure," Edwards v. Aguillard, 482 U. S. 578 , 584 (1987)-might be thought to raise special concerns regarding state interference with the liberty of parents to direct the religious upbringing of their children: "Families entrust pub- 644 lie schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family." Ibid.; see Pierce v. Society of Sisters, 268 U. S. 510 ,534-535 (1925). Voluntary prayer at graduation-a onetime ceremony at which parents, friends, and relatives are present-can hardly be thought to raise the same concerns. IV Our Religion Clause jurisprudence has become bedeviled (so to speak) by reliance on formulaic abstractions that are not derived from, but positively conflict with, our longaccepted constitutional traditions. Foremost among these has been the so-called Lemon test, see Lemon v. Kurtzman, 403 U. S. 602 , 612-613 (1971), which has received well-earned criticism from many Members of this Court. See, e. g., County of Allegheny, 492 U. S., at 655-656 (opinion of KENNEDY, J.); Edwards v. Aguillard, supra, at 636-640 (SCALIA, J., dissenting); Wallace v. Jaffree, 472 U. S., at 108-112 (REHNQUIST, J., dissenting); Aguilar v. Felton, 473 U. S. 402 , 426-430 (1985) (O'CONNOR, J., dissenting); Roemer v. Board of Pub. Works of Md., 426 U. S. 736 , 768-769 (1976) (WHITE, J., concurring in judgment). The Court today demonstrates the irrelevance of Lemon by essentially ignoring it, see ante, at 587, and the interment of that case may be the one happy byproduct of the Court's otherwise lamentable decision. Unfortunately, however, the Court has replaced Lemon with its psycho-coercion test, which suffers the double disability of having no roots whatever in our people's historic practice, and being as infinitely expandable as the reasons for psychotherapy itself. Another happy aspect of the case is that it is only a jurisprudential disaster and not a practical one. Given the odd basis for the Court's decision, invocations and benedictions will be able to be given at public school graduations next 645 June, as they have for the past century and a half, so long as school authorities make clear that anyone who abstains from screaming in protest does not necessarily participate in the prayers. All that is seemingly needed is an announcement, or perhaps a written insertion at the beginning of the graduation program, to the effect that, while all are asked to rise for the invocation and benediction, none is compelled to join in them, nor will be assumed, by rising, to have done so. That obvious fact recited, the graduates and their parents may proceed to thank God, as Americans have always done, for the blessings He has generously bestowed on them and on their country. *** The reader has been told much in this case about the personal interest of Mr. Weisman and his daughter, and very little about the personal interests on the other side. They are not inconsequential. Church and state would not be such a difficult subject if religion were, as the Court apparently thinks it to be, some purely personal avocation that can be indulged entirely in secret, like pornography, in the privacy of one's room. For most believers it is not that, and has never been. Religious men and women of almost all denominations have felt it necessary to acknowledge and beseech the blessing of God as a people, and not just as individuals, because they believe in the "protection of divine Providence," as the Declaration of Independence put it, not just for individuals but for societies; because they believe God to be, as Washington's first Thanksgiving Proclamation put it, the "Great Lord and Ruler of Nations." One can believe in the effectiveness of such public worship, or one can deprecate and deride it. But the longstanding American tradition of prayer at official ceremonies displays with unmistakable clarity that the Establishment Clause does not forbid the government to accommodate it. The narrow context of the present case involves a community's celebration of one of the milestones in its young citi- 646 zens' lives, and it is a bold step for this Court to seek to banish from that occasion, and from thousands of similar celebrations throughout this land, the expression of gratitude to God that a majority of the community wishes to make. The issue before us today is not the abstract philosophical question whether the alternative of frustrating this desire of a religious majority is to be preferred over the alternative of imposing "psychological coercion," or a feeling of exclusion, upon nonbelievers. Rather, the question is whether a mandatory choice in favor of the former has been imposed by the United States Constitution. As the age-old practices of our people show, the answer to that question is not at all in doubt. I must add one final observation: The Founders of our Republic knew the fearsome potential of sectarian religious belief to generate civil dissension and civil strife. And they also knew that nothing, absolutely nothing, is so inclined to foster among religious believers of various faiths a toleration-no, an affection-for one another than voluntarily joining in prayer together, to the God whom they all worship and seek. Needless to say, no one should be compelled to do that, but it is a shame to deprive our public culture of the opportunity, and indeed the encouragement, for people to do it voluntarily. The Baptist or Catholic who heard and joined in the simple and inspiring prayers of Rabbi Gutterman on this official and patriotic occasion was inoculated from religious bigotry and prejudice in a manner that cannot be replicated. To deprive our society of that important unifying mechanism, in order to spare the nonbeliever what seems to me the minimal inconvenience of standing or even sitting in respectful nonparticipation, is as senseless in policy as it is unsupported in law. For the foregoing reasons, I dissent.

The case of Lee et al. v. Weisman, personally and as next friend of Weismann, concerned the inclusion of clergy-led prayers in public school graduation ceremonies. The court ruled that including these prayers violated the Establishment Clause of the First Amendment, which prohibits the government from establishing a state religion or coercing participation in religious exercises. The majority opinion, written by Justice Anthony Kennedy, argued that the prayers constituted a formal religious exercise directed by the state. Justice Kennedy also emphasized the coercive nature of the prayers, suggesting that they could make non-believers or those of different faiths feel excluded or pressured to participate. In a dissenting opinion, Justice Antonin Scalia disagreed with the majority's interpretation of the Establishment Clause. He argued that the clause only prohibited the establishment of a national church or the preference of one religion over another. Justice Scalia highlighted the historical tradition of public prayer in the US and suggested that accommodating these prayers did not establish a state religion. He also disagreed with the notion that the prayers were coercive, arguing that non-believers could simply refrain from participating without feeling excluded.

Religion

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah

https://supreme.justia.com/cases/federal/us/508/520/

OCTOBER TERM, 1992 Syllabus CHURCH OF THE LUKUMI BABALU AYE, INC., ET AL. v. CITY OF HIALEAH CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 91-948. Argued November 4, 1992-Decided June 11, 1993 Petitioner church and its congregants practice the Santeria religion, which employs animal sacrifice as one of its principal forms of devotion. The animals are killed by cutting their carotid arteries and are cooked and eaten following all Santeria rituals except healing and death rites. After the church leased land in respondent city and announced plans to establish a house of worship and other facilities there, the city council held an emergency public session and passed, among other enactments, Resolution 87-66, which noted city residents' "concern" over religious practices inconsistent with public morals, peace, or safety, and declared the city's "commitment" to prohibiting such practices; Ordinance 87-40, which incorporates the Florida animal cruelty laws and broadly punishes "[w]hoever ... unnecessarily or cruelly ... kills any animal," and has been interpreted to reach killings for religious reasons; Ordinance 87-52, which defines "sacrifice" as "to unnecessarily kill ... an animal in a ... ritual ... not for the primary purpose of food consumption," and prohibits the "possess[ion], sacrifice, or slaughter" of an animal if it is killed in "any type of ritual" and there is an intent to use it for food, but exempts "any licensed [food] establishment" if the killing is otherwise permitted by law; Ordinance 87-71, which prohibits the sacrifice of animals, and defines "sacrifice" in the same manner as Ordinance 87-52; and Ordinance 87-72, which defines "slaughter" as "the killing of animals for food" and prohibits slaughter outside of areas zoned for slaughterhouses, but includes an exemption for "small numbers of hogs and/or cattle" when exempted by state law. Petitioners filed this suit under 42 U. S. C. § 1983, alleging violations of their rights under, inter alia, the Free Exercise Clause of the First Amendment. Although acknowledging that the foregoing ordinances are not religiously neutral, the District Court ruled for the city, concluding, among other things, that compelling governmental interests in preventing public health risks and cruelty to animals fully justified the absolute prohibition on ritual sacrifice accomplished by the ordinances, and that an exception to that prohibition for religious conduct would unduly interfere with fulfillment of the governmental interest because any more narrow restrictions would 521 be unenforceable as a result of the Santeria religion's secret nature. The Court of Appeals affirmed. Held: The judgment is reversed. 936 F.2d 586 , reversed. JUSTICE KENNEDY delivered the opinion of the Court with respect to Parts I, II-A-1, II-A-3, II-B, III, and IV, concluding that the laws in question were enacted contrary to free exercise principles, and they are void. Pp. 531-540, 542-547. (a) Under the Free Exercise Clause, a law that burdens religious practice need not be justified by a compelling governmental interest if it is neutral and of general applicability. Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 . However, where such a law is not neutral or not of general application, it must undergo the most rigorous of scrutiny: It must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest. Neutrality and general applicability are interrelated, and failure to satisfy one requirement is a likely indication that the other has not been satisfied. Pp.531-532. (b) The ordinances' texts and operation demonstrate that they are not neutral, but have as their object the suppression of Santeria's central element, animal sacrifice. That this religious exercise has been targeted is evidenced by Resolution 87-66's statements of "concern" and "commitment," and by the use of the words "sacrifice" and "ritual" in Ordinances 87-40, 87-52, and 87-71. Moreover, the latter ordinances' various prohibitions, definitions, and exemptions demonstrate that they were "gerrymandered" with care to proscribe religious killings of animals by Santeria church members but to exclude almost all other animal killings. They also suppress much more religious conduct than is necessary to achieve their stated ends. The legitimate governmental interests in protecting the public health and preventing cruelty to animals could be addressed by restrictions stopping far short of a flat prohibition of all Santeria sacrificial practice, such as general regulations on the disposal of organic garbage, on the care of animals regardless of why they are kept, or on methods of slaughter. Although Ordinance 87-72 appears to apply to substantial nonreligious conduct and not to be overbroad, it must also be invalidated because it functions in tandem with the other ordinances to suppress Santeria religious worship. Pp. 533-540. (c) Each of the ordinances pursues the city's governmental interests only against conduct motivated by religious belief and thereby violates the requirement that laws burdening religious practice must be of general applicability. Ordinances 87-40, 87-52, and 87-71 are substantially underinclusive with regard to the city's interest in preventing cruelty 522 522 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH Syllabus to animals, since they are drafted with care to forbid few animal killings but those occasioned by religious sacrifice, while many types of animal deaths or kills for nonreligious reasons are either not prohibited or approved by express provision. The city's assertions that it is "selfevident" that killing for food is "important," that the eradication of insects and pests is "obviously justified," and that euthanasia of excess animals "makes sense" do not explain why religion alone must bear the burden of the ordinances. These ordinances are also substantially underinclusive with regard to the city's public health interests in preventing the disposal of animal carcasses in open public places and the consumption of uninspected meat, since neither interest is pursued by respondent with regard to conduct that is not motivated by religious conviction. Ordinance 87-72 is underinc1usive on its face, since it does not regulate nonreligious slaughter for food in like manner, and respondent has not explained why the commercial slaughter of "small numbers" of cattle and hogs does not implicate its professed desire to prevent cruelty to animals and preserve the public health. Pp. 542-546. (d) The ordinances cannot withstand the strict scrutiny that is required upon their failure to meet the Smith standard. They are not narrowly tailored to accomplish the asserted governmental interests. All four are overbroad or underinclusive in substantial respects because the proffered objectives are not pursued with respect to analogous nonreligious conduct and those interests could be achieved by narrower ordinances that burdened religion to a far lesser degree. Moreover, where, as here, government restricts only conduct protected by the First Amendment and fails to enact feasible measures to restrict other conduct producing substantial harm or alleged harm of the same sort, the governmental interests given in justification of the restriction cannot be regarded as compelling. Pp.546-547. KENNEDY, J., delivered the opinion of the Court with respect to Parts I, III, and IV, in which REHNQUIST, C. J., and WHITE, STEVENS, SCALIA, SOUTER, and THOMAS, JJ., joined, the opinion of the Court with respect to Part II-B, in which REHNQUIST, C. J., and WHITE, STEVENS, SCALIA, and THOMAS, JJ., joined, the opinion of the Court with respect to Parts II-A-l and II-A-3, in which REHNQUIST, C. J., and STEVENS, SCALIA, and THOMAS, JJ., joined, and an opinion with respect to Part II-A-2, in which STEVENS, J., joined. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, in which REHNQUIST, C. J., joined, post, p. 557. SOUTER, J., filed an opinion concurring in part and concurring in the judgment, post, p. 559. BLACKMUN, J., filed an opinion concurring in the judgment, in which O'CONNOR, J., joined, post, p. 577. 523 Douglas Laycock argued the cause for petitioners. With him on the briefs were Jeanne Baker, Steven R. Shapiro, and Jorge A. Duarte. Richard G. Garrett argued the cause for respondent. With him on the brief were Stuart H. Singer and Steven M. Goldsmith.* JUSTICE KENNEDY delivered the opinion of the Court, except as to Part II-A-2.t The principle that government may not enact laws that suppress religious belief or practice is so well understood that few violations are recorded in our opinions. Cf. McDaniel v. Paty, 435 U. S. 618 (1978); Fowler v. Rhode Island, 345 U. S. 67 (1953). Concerned that this fundamental nonpersecution principle of the First Amendment was implicated here, however, we granted certiorari. 503 U. S. 935 (1992). *Briefs of amici curiae urging reversal were filed for Americans United for Separation of Church and State et al. by Edward McGlynn Gaffney, Jr., Steven T. McFarland, Bradley P. Jacob, and Michael W McConnell; for the Council on Religious Freedom by Lee Boothby, Robert W Nixon, Walter E. Carson, and Rolland Truman; and for the Rutherford Institute by John W Whitehead. Briefs of amici curiae urging affirmance were filed for the International Society for Animal Rights et al. by Henry Mark Holzer; for People for the Ethical Treatment of Animals et al. by Gary L. Francione; and for the Washington Humane Society by E. Edward Bruce. Briefs of amici curiae were filed for the United States Catholic Conference by Mark E. Chopko and John A. Liekweg; for the Humane Society of the United States et al. by Peter Buscemi, Maureen Beyers, Roger A. Kindler, and Eugene Underwood, Jr.; for the Institute for Animal Rights Law et al. by Henry Mark Holzer; and for the National Jewish Commission on Law and Public Affairs by Nathan Lewin and Dennis Rapps. tTHE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE THOMAS join all but Part II-A-2 of this opinion. JUSTICE WHITE joins all but Part II-A of this opinion. JUSTICE SOUTER joins only Parts I, III, and IV of this opinion. 524 524 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH Our review confirms that the laws in question were enacted by officials who did not understand, failed to perceive, or chose to ignore the fact that their official actions violated the Nation's essential commitment to religious freedom. The challenged laws had an impermissible object; and in all events the principle of general applicability was violated because the secular ends asserted in defense of the laws were pursued only with respect to conduct motivated by religious beliefs. We invalidate the challenged enactments and reverse the judgment of the Court of Appeals. I A This case involves practices of the Santeria religion, which originated in the 19th century. When hundreds of thousands of members of the Yoruba people were brought as slaves from western Africa to Cuba, their traditional African religion absorbed significant elements of Roman Catholicism. The resulting syncretion, or fusion, is Santeria, "the way of the saints." The Cuban Yoruba express their devotion to spirits, called oris has, through the iconography of Catholic saints, Catholic symbols are often present at Santeria rites, and Santeria devotees attend the Catholic sacraments. 723 F. Supp. 1467, 1469-1470 (SD Fla. 1989); 13 Encyclopedia of Religion 66 (M. Eliade ed. 1987); 1 Encyclopedia of the American Religious Experience 183 (C. Lippy & P. Williams eds. 1988). The Santeria faith teaches that every individual has a destiny from God, a destiny fulfilled with the aid and energy of the oris has. The basis of the Santeria religion is the nurture of a personal relation with the oris has, and one of the principal forms of devotion is an animal sacrifice. 13 Encyclopedia of Religion, supra, at 66. The sacrifice of animals as part of religious rituals has ancient roots. See generally 12 id., at 554-556. Animal sacrifice is mentioned throughout the Old Testament, see 14 Encyclopaedia Judaica 600, 600- 525 605 (1971), and it played an important role in the practice of Judaism before destruction of the second Temple in Jerusalem, see id., at 605-612. In modern Islam, there is an annual sacrifice commemorating Abraham's sacrifice of a ram in the stead of his son. See C. Glasse, Concise Encyclopedia of Islam 178 (1989); 7 Encyclopedia of Religion, supra, at 456. According to Santeria teaching, the orishas are powerful but not immortal. They depend for survival on the sacrifice. Sacrifices are performed at birth, marriage, and death rites, for the cure of the sick, for the initiation of new members and priests, and during an annual celebration. Animals sacrificed in Santeria rituals include chickens, pigeons, doves, ducks, guinea pigs, goats, sheep, and turtles. The animals are killed by the cutting of the carotid arteries in the neck. The sacrificed animal is cooked and eaten, except after healing and death rituals. See 723 F. Supp., at H71-1472; 13 Encyclopedia of Religion, supra, at 66; M. Gonzalez- Wippler, The Santeria Experience 105 (1982). Santeria adherents faced widespread persecution in Cuba, so the religion and its rituals were practiced in secret. The open practice of Santeria and its rites remains infrequent. See 723 F. SUPP.,;lt 1470; 13 Encyclopedia of Religion, supra, at 67; M. Gonzalez-Wippler, Santeria: The Religion 3-4 (1989). The religion was brought to this Nation most often by exiles from the Cuban revolution. The District Court estimated that there are at least 50,000 practitioners in South Florida today. See 723 F. Supp., at 1470. B Petitioner Church of the Lukumi Babalu Aye, Inc. (Church), is a not-for-profit corporation organized under Florida law in 1973. The Church and its congregants practice the Santeria religion. The president of the Church is petitioner Ernesto Pichardo, who is also the Church's priest and holds the religious title of Italero, the second highest in the Santeria faith. In April 1987, the Church leased land in 526 526 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH the city of Hialeah, Florida, and announced plans to establish a house of worship as well as a school, cultural center, and museum. Pichardo indicated that the Church's goal was to bring the practice of the Santeria faith, including its ritual of animal sacrifice, into the open. The Church began the process of obtaining utility service and receiving the necessary licensing, inspection, and zoning approvals. Although the Church's efforts at obtaining the necessary licenses and permits were far from smooth, see 723 F. Supp., at 1477-1478, it appears that it received all needed approvals by early August 1987. The prospect of a Santeria church in their midst was distressing to many members of the Hialeah community, and the announcement of the plans to open a Santeria church in Hialeah prompted the city council to hold an emergency public session on June 9, 1987. The resolutions and ordinances passed at that and later meetings are set forth in the Appendix following this opinion. A summary suffices here, beginning with the enactments passed at the June 9 meeting. First, the city council adopted Resolution 87-66, which noted the "concern" expressed by residents of the city "that certain religions may propose to engage in practices which are inconsistent with public morals, peace or safety," and declared that "[t]he City reiterates its commitment to a prohibition against any and all acts of any and all religious groups which are inconsistent with public morals, peace or safety." Next, the council approved an emergency ordinance, Ordinance 87-40, which incorporated in full, except as to penalty, Florida's animal cruelty laws. Fla. Stat. ch. 828 (1987). Among other things, the incorporated state law subjected to criminal punishment "[w]hoever ... unnecessarily or cruelly ... kills any animal." §828.12. The city council desired to undertake further legislative action, but Florida law prohibited a municipality from enacting legislation relating to animal cruelty that conflicted with 527 state law. § 828.27(4). To obtain clarification, Hialeah's city attorney requested an opinion from the attorney general of Florida as to whether § 828.12 prohibited "a religious group from sacrificing an animal in a religious ritual or practice" and whether the city could enact ordinances "making religious animal sacrifice unlawful." The attorney general responded in mid-July. He concluded that the "ritual sacrifice of animals for purposes other than food consumption" was not a "necessary" killing and so was prohibited by § 828.12. Fla. Op. Atty. Gen. 87-56, Annual Report of the Atty. Gen. 146, 147, 149 (1988). The attorney general appeared to define "unnecessary" as "done without any useful motive, in a spirit of wanton cruelty or for the mere pleasure of destruction without being in any sense beneficial or useful to the person killing the animal." Id., at 149, n. 11. He advised that religious animal sacrifice was against state law, so that a city ordinance prohibiting it would not be in conflict. Id., at 151. The city council responded at first with a hortatory enactment, Resolution 87-90, that noted its residents' "great concern regarding the possibility of public ritualistic animal sacrifices" and the state-law prohibition. The resolution declared the city policy "to oppose the ritual sacrifices of animals" within Hialeah and announced that any person or organization practicing animal sacrifice "will be prosecuted." In September 1987, the city council adopted three substantive ordinances addressing the issue of religious animal sacrifice. Ordinance 87-52 defined "sacrifice" as "to unnecessarily kill, torment, torture, or mutilate an animal in a public or private ritual or ceremony not for the primary purpose of food consumption," and prohibited owning or possessing an animal "intending to use such animal for food purposes." It restricted application of this prohibition, however, to any individual or group that "kills, slaughters or sacrifices animals for any type of ritual, regardless of whether or not the flesh or blood of the animal is to be consumed." The ordinance 528 528 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH contained an exemption for slaughtering by "licensed establishment[s]" of animals "specifically raised for food purposes." Declaring, moreover, that the city council "has determined that the sacrificing of animals within the city limits is contrary to the public health, safety, welfare and morals of the community," the city council adopted Ordinance 87-71. That ordinance defined "sacrifice" as had Ordinance 87-52, and then provided that "[i]t shall be unlawful for any person, persons, corporations or associations to sacrifice any animal within the corporate limits of the City of Hialeah, Florida." The final Ordinance, 87-72, defined "slaughter" as "the killing of animals for food" and prohibited slaughter outside of areas zoned for slaughterhouse use. The ordinance provided an exemption, however, for the slaughter or processing for sale of "small numbers of hogs and/or cattle per week in accordance with an exemption provided by state law." All ordinances and resolutions passed the city council by unanimous vote. Violations of each of the four ordinances were punishable by fines not exceeding $500 or imprisonment not exceeding 60 days, or both. Following enactment of these ordinances, the Church and Pichardo filed this action pursuant to 42 U. S. C. § 1983 in the United States District Court for the Southern District of Florida. Named as defendants were the city of Hialeah and its mayor and members of its city council in their individual capacities. Alleging violations of petitioners' rights under, inter alia, the Free Exercise Clause, the complaint sought a declaratory judgment and injunctive and monetary relief. The District Court granted summary judgment to the individual defendants, finding that they had absolute immunity for their legislative acts and that the ordinances and resolutions adopted by the council did not constitute an official policy of harassment, as alleged by petitioners. 688 F. Supp. 1522 (SD Fla. 1988). After a 9-day bench trial on the remaining claims, the District Court ruled for the city, finding no violation of petition- 529 ers' rights under the Free Exercise Clause. 723 F. Supp. 1467 (SD Fla. 1989). (The court rejected as well petitioners' other claims, which are not at issue here.) Although acknowledging that "the ordinances are not religiously neutral," id., at 1476, and that the city's concern about animal sacrifice was "prompted" by the establishment of the Church in the city, id., at 1479, the District Court concluded that the purpose of the ordinances was not to exclude the Church from the city but to end the practice of animal sacrifice, for whatever reason practiced, id., at 1479,1483. The court also found that the ordinances did not target religious conduct "on their face," though it noted that in any event "specifically regulating [religious] conduct" does not violate the First Amendment "when [the conduct] is deemed inconsistent with public health and welfare." Id., at 1483-1484. Thus, the court concluded that, at most, the ordinances' effect on petitioners' religious conduct was "incidental to [their] secular purpose and effect." Id., at 1484. The District Court proceeded to determine whether the governmental interests underlying the ordinances were compelling and, if so, to balance the "governmental and religious interests." The court noted that "[t]his 'balance depends upon the cost to the government of altering its activity to allow the religious practice to continue unimpeded versus the cost to the religious interest imposed by the government activity.'" Ibid., quoting Grosz v. City of Miami Beach, 721 F.2d 729 , 734 (CAll 1983), cert. denied, 469 U. S. 827 (1984). The court found four compelling interests. First, the court found that animal sacrifices present a substantial health risk, both to participants and the general public. According to the court, animals that are to be sacrificed are often kept in unsanitary conditions and are uninspected, and animal remains are found in public places. 723 F. Supp., at 1474-1475, 1485. Second, the court found emotional injury to children who witness the sacrifice of animals. Id., at 1475-1476, 1485-1486. Third, the court found compelling the city's in- 530 530 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH terest in protecting animals from cruel and unnecessary killing. The court determined that the method of killing used in Santeria sacrifice was "unreliable and not humane, and that the animals, before being sacrificed, are often kept in conditions that produce a great deal of fear and stress in the animal." Id., at 1472-1473, 1486. Fourth, the District Court found compelling the city's interest in restricting the slaughter or sacrifice of animals to areas zoned for slaughterhouse use. Id., at 1486. This legal determination was not accompanied by factual findings. Balancing the competing governmental and religious interests, the District Court concluded the compelling governmental interests "fully justify the absolute prohibition on ritual sacrifice" accomplished by the ordinances. Id., at 1487. The court also concluded that an exception to the sacrifice prohibition for religious conduct would "'unduly interfere with fulfillment of the governmental interest'" because any more narrow restrictions-e. g., regulation of disposal of animal carcasses-would be unenforceable as a result of the secret nature of the Santeria religion. Id., at 1486-1487, and nn. 57-59. A religious exemption from the city's ordinances, concluded the court, would defeat the city's compelling interests in enforcing the prohibition. Id., at 1487. The Court of Appeals for the Eleventh Circuit affirmed in a one-paragraph per curiam opinion. Judgt. order reported at 936 F.2d 586 (1991). Choosing not to rely on the District Court's recitation of a compelling interest in promoting the welfare of children, the Court of Appeals stated simply that it concluded the ordinances were consistent with the Constitution. App. to Pet. for Cert. A2. It declined to address the effect of Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), decided after the District Court's opinion, because the District Court "employed an arguably stricter standard" than that applied in Smith. App. to Pet. for Cert. A2, n. 1. 531 II The Free Exercise Clause of the First Amendment, which has been applied to the States through the Fourteenth Amendment, see Cantwell v. Connecticut, 310 U. S. 296 , 303 (1940), provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof .... " (Emphasis added.) The city does not argue that Santeria is not a "religion" within the meaning of the First Amendment. Nor could it. Although the practice of animal sacrifice may seem abhorrent to some, "religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection." Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 , 714 (1981). Given the historical association between animal sacrifice and religious worship, see supra, at 524-525, petitioners' assertion that animal sacrifice is an integral part of their religion "cannot be deemed bizarre or incredible." Frazee v. Illinois Dept. of Employment Security, 489 U. S. 829 , 834, n. 2 (1989). Neither the city nor the courts below, moreover, have questioned the sincerity of petitioners' professed desire to conduct animal sacrifices for religious reasons. We must consider petitioners' First Amendment claim. In addressing the constitutional protection for free exercise of religion, our cases establish the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice. Employment Div., Dept. of Human Resources of Ore. v. Smith, supra. Neutrality and general applicability are interrelated, and, as becomes apparent in this case, failure to satisfy one requirement is a likely indication that the other has not been satisfied. A law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance 532 532 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH that interest. These ordinances fail to satisfy the Smith requirements. We begin by discussing neutrality. A In our Establishment Clause cases we have often stated the principle that the First Amendment forbids an official purpose to disapprove of a particular religion or of religion in general. See, e. g., Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226 , 248 (1990) (plurality opinion); School Dist. of Grand Rapids v. Ball, 473 U. S. 373, 389 (1985); Wallace v. Jaffree, 472 U. S. 38 , 56 (1985); Epperson v. Arkansas, 393 U. S. 97 , 106-107 (1968); School Dist. of Abington v. Schempp, 374 U. S. 203 , 225 (1963); Everson v. Board of Ed. of Ewing, 330 U. S. 1 , 15-16 (1947). These cases, however, for the most part have addressed governmental efforts to benefit religion or particular religions, and so have dealt with a question different, at least in its formulation and emphasis, from the issue here. Petitioners allege an attempt to disfavor their religion because of the religious ceremonies it commands, and the Free Exercise Clause is dispositive in our analysis. At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons. See, e. g., Braunfeld v. Brown, 366 U. S. 599 , 607 (1961) (plurality opinion); Fowler v. Rhode Island, 345 U. S., at 69-70. Indeed, it was "historical instances of religious persecution and intolerance that gave concern to those who drafted the Free Exercise Clause." Bowen v. Roy, 476 U. S. 693 , 703 (1986) (opinion of Burger, C. J.). See J. Story, Commentaries on the Constitution of the United States §§ 991-992 (abridged ed. 1833) (reprint 1987); T. Cooley, Constitutional Limitations 467 (1868) (reprint 1972); McGowan v. Maryland, 366 U. S. 420 , 464, and n. 2 (1961) (opinion of Frankfurter, J.); Douglas v. Jeannette, 319 U. S. 157 , 179 (1943) (Jackson, J., concurring in re- 533 suIt); Davis v. Beason, 133 U. S. 333 , 342 (1890). These principles, though not often at issue in our Free Exercise Clause cases, have played a role in some. In McDaniel v. Paty, 435 U. S. 618 (1978), for example, we invalidated a state law that disqualified members of the clergy from holding certain public offices, because it "impose[d] special disabilities on the basis of ... religious status," Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S., at 877. On the same principle, in Fowler v. Rhode Island, supra, we found that a municipal ordinance was applied in an unconstitutional manner when interpreted to prohibit preaching in a public park by a Jehovah's Witness but to permit preaching during the course of a Catholic mass or Protestant church service. See also Niemotko v. Maryland, 340 U. S. 268 , 272-273 (1951). Cf. Larson v. Valente, 456 U. S. 228 (1982) (state statute that treated some religious denominations more favorably than others violated the Establishment Clause). 1 Although a law targeting religious beliefs as such is never permissible, McDaniel v. Paty, supra, at 626 (pluralityopinion); Cantwell v. Connecticut, supra, at 303-304, if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral, see Employment Div., Dept. of Human Resources of Ore. v. Smith, supra, at 878-879; and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest. There are, of course, many ways of demonstrating that the object or purpose of a law is the suppression of religion or religious conduct. To determine the object of a law, we must begin with its text, for the minimum requirement of neutrality is that a law not discriminate on its face. A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernible from the language or context. Petitioners contend that three of the ordinances fail this test of facial neutrality because they use the words 534 534 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH "sacrifice" and "ritual," words with strong religious connotations. Brief for Petitioners 16-17. We agree that these words are consistent with the claim of facial discrimination, but the argument is not conclusive. The words "sacrifice" and "ritual" have a religious origin, but current use admits also of secular meanings. See Webster's Third New International Dictionary 1961, 1996 (1971). See also 12 Encyclopedia of Religion, at 556 ("[T]he word sacrifice ultimately became very much a secular term in common usage"). The ordinances, furthermore, define "sacrifice" in secular terms, without referring to religious practices. We reject the contention advanced by the city, see Brief for Respondent 15, that our inquiry must end with the text of the laws at issue. Facial neutrality is not determinative. The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. The Clause "forbids subtle departures from neutrality," Gillette v. United States, 401 U. S. 437 , 452 (1971), and "covert suppression of particular religious beliefs," Bowen v. Roy, supra, at 703 (opinion of Burger, C. J.). Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality. The Free Exercise Clause protects against governmental hostility which is masked as well as overt. "The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders." Walz v. Tax Comm'n of New York City, 397 U. S. 664 , 696 (1970) (Harlan, J., concurring). The record in this case compels the conclusion that suppression of the central element of the Santeria worship service was the object of the ordinances. First, though use of the words "sacrifice" and "ritual" does not compel a finding of improper targeting of the Santeria religion, the choice of these words is support for our conclusion. There are further respects in which the text of the city council's enactments discloses the improper attempt to target Santeria. 535 Resolution 87-66, adopted June 9, 1987, recited that "residents and citizens of the City of Hialeah have expressed their concern that certain religions may propose to engage in practices which are inconsistent with public morals, peace or safety," and "reiterate[d]" the city's commitment to prohibit "any and all [such] acts of any and all religious groups." No one suggests, and on this record it cannot be maintained, that city officials had in mind a religion other than Santeria. It becomes evident that these ordinances target Santeria sacrifice when the ordinances' operation is considered. Apart from the text, the effect of a law in its real operation is strong evidence of its object. To be sure, adverse impact will not always lead to a finding of impermissible targeting. For example, a social harm may have been a legitimate concern of government for reasons quite apart from discrimination. McGowan v. Maryland, 366 U. S., at 442. See, e. g., Reynolds v. United States, 98 U. S. 145 (1879); Davis v. Beason, 133 U. S. 333 (1890). See also Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L. J. 1205, 1319 (1970). The subject at hand does implicate, of course, multiple concerns unrelated to religious animosity, for example, the suffering or mistreatment visited upon the sacrificed animals and health hazards from improper disposal. But the ordinances when considered together disclose an object remote from these legitimate concerns. The design of these laws accomplishes instead a "religious gerrymander," Walz v. Tax Comm'n of New York City, supra, at 696 (Harlan, J., concurring), an impermissible attempt to target petitioners and their religious practices. It is a necessary conclusion that almost the only conduct subject to Ordinances 87-40, 87-52, and 87-71 is the religious exercise of Santeria church members. The texts show that they were drafted in tandem to achieve this result. We begin with Ordinance 87-71. It prohibits the sacrifice of animals, but defines sacrifice as "to unnecessarily kill ... an animal in a public or private ritual or ceremony not for the 536 536 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH primary purpose of food consumption." The definition excludes almost all killings of animals except for religious sacrifice, and the primary purpose requirement narrows the proscribed category even further, in particular by exempting kosher slaughter, see 723 F. Supp., at 1480. We need not discuss whether this differential treatment of two religions is itself an independent constitutional violation. Cf. Larson v. Valente, 456 U. S., at 244-246. It suffices to recite this feature of the law as support for our conclusion that Santeria alone was the exclusive legislative concern. The net result of the gerrymander is that few if any killings of animals are prohibited other than Santeria sacrifice, which is proscribed because it occurs during a ritual or ceremony and its primary purpose is to make an offering to the oris has, not food consumption. Indeed, careful drafting ensured that, although Santeria sacrifice is prohibited, killings that are no more necessary or humane in almost all other circumstances are unpunished. Operating in similar fashion is Ordinance 87-52, which prohibits the "possess[ion], sacrifice, or slaughter" of an animal with the "inten[t] to use such animal for food purposes." This prohibition, extending to the keeping of an animal as well as the killing itself, applies if the animal is killed in "any type of ritual" and there is an intent to use the animal for food, whether or not it is in fact consumed for food. The ordinance exempts, however, "any licensed [food] establishment" with regard to "any animals which are specifically raised for food purposes," if the activity is permitted by zoning and other laws. This exception, too, seems intended to cover kosher slaughter. Again, the burden of the ordinance, in practical terms, falls on Santeria adherents but almost no others: If the killing is-unlike most Santeria sacrifices-unaccompanied by the intent to use the animal for food, then it is not prohibited by Ordinance 87-52; if the killing is specifically for food but does not occur during the course of "any type of ritual," it again falls outside the prohibition; and if 537 the killing is for food and occurs during the course of a ritual, it is still exempted if it occurs in a properly zoned and licensed establishment and involves animals "specifically raised for food purposes." A pattern of exemptions parallels the pattern of narrow prohibitions. Each contributes to the gerrymander. Ordinance 87-40 incorporates the Florida animal cruelty statute, Fla. Stat. § 828.12 (1987). Its prohibition is broad on its face, punishing "[w]hoever ... unnecessarily ... kills any animal." The city claims that this ordinance is the epitome of a neutral prohibition. Brief for Respondent 13-14. The problem, however, is the interpretation given to the ordinance by respondent and the Florida attorney general. Killings for religious reasons are deemed unnecessary, whereas most other killings fall outside the prohibition. The city, on what seems to be a per se basis, deems hunting, slaughter of animals for food, eradication of insects and pests, and euthanasia as necessary. See id., at 22. There is no indication in the record that respondent has concluded that hunting or fishing for sport is unnecessary. Indeed, one of the few reported Florida cases decided under § 828.12 concludes that the use of live rabbits to train greyhounds is not unnecessary. See Kiper v. State, 310 So. 2d 42 (Fla. App.), cert. denied, 328 So. 2d 845 (Fla. 1975). Further, because it requires an evaluation of the particular justification for the killing, this ordinance represents a system of "individualized governmental assessment of the reasons for the relevant conduct," Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S., at 884. As we noted in Smith, in circumstances in which individualized exemptions from a general requirement are available, the government "may not refuse to extend that system to cases of 'religious hardship' without compelling reason." Ibid., quoting Bowen v. Roy, 476 U. S., at 708 (opinion of Burger, C. J.). Respondent's application of the ordinance's test of necessity devalues religious reasons for killing by judging them to be of lesser import than nonre- 538 538 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH ligious reasons. Thus, religious practice is being singled out for discriminatory treatment. Id., at 722, and n. 17 (STEVENS, J., concurring in part and concurring in result); id., at 708 (opinion of Burger, C. J.); United States v. Lee, 455 U. S. 252 , 264, n. 3 (1982) (STEVENS, J., concurring in judgment). We also find significant evidence of the ordinances' improper targeting of Santeria sacrifice in the fact that they proscribe more religious conduct than is necessary to achieve their stated ends. It is not unreasonable to infer, at least when there are no persuasive indications to the contrary, that a law which visits "gratuitous restrictions" on religious conduct, McGowan v. Maryland, 366 U. S., at 520 (opinion of Frankfurter, J.), seeks not to effectuate the stated governmental interests, but to suppress the conduct because of its religious motivation. The legitimate governmental interests in protecting the public health and preventing cruelty to animals could be addressed by restrictions stopping far short of a fiat prohibition of all Santeria sacrificial practice. * If improper disposal, not the sacrifice itself, is the harm to be prevented, the city could have imposed a general regulation on the disposal of organic garbage. It did not do so. Indeed, counsel for the city conceded at oral argument that, under the ordinances, Santeria sacrifices would be illegal even if they occurred in licensed, inspected, and zoned slaughterhouses. Tr. of Oral Arg. 45. See also id., at 42, 48. Thus, these broad ordinances prohibit Santeria sacrifice even when it does not threaten the city's *Respondent advances the additional governmental interest in prohibiting the slaughter or sacrifice of animals in areas of the city not zoned for slaughterhouses, see Brief for Respondent 28-31, and the District Court found this interest to be compelling, see 723 F. Supp. 1467, 1486 (SD Fla. 1989). This interest cannot justify Ordinances 87-40, 87-52, and 87-71, for they apply to conduct without regard to where it occurs. Ordinance 87-72 does impose a locational restriction, but this asserted governmental interest is a mere restatement of the prohibition itself, not a justification for it. In our discussion, therefore, we put aside this asserted interest. 539 interest in the public health. The District Court accepted the argument that narrower regulation would be unenforceable because of the secrecy in the Santeria rituals and the lack of any central religious authority to require compliance with secular disposal regulations. See 723 F. Supp., at 1486-1487, and nn. 58-59. It is difficult to understand, however, how a prohibition of the sacrifices themselves, which occur in private, is enforceable if a ban on improper disposal, which occurs in public, is not. The neutrality of a law is suspect if First Amendment freedoms are curtailed to prevent isolated collateral harms not themselves prohibited by direct regulation. See, e. g., Schneider v. State, 308 U. S. 147 , 162 (1939). Under similar analysis, narrower regulation would achieve the city's interest in preventing cruelty to animals. With regard to the city's interest in ensuring the adequate care of animals, regulation of conditions and treatment, regardless of why an animal is kept, is the logical response to the city's concern, not a prohibition on possession for the purpose of sacrifice. The same is true for the city's interest in prohibiting cruel methods of killing. Under federal and Florida law and Ordinance 87-40, which incorporates Florida law in this regard, killing an animal by the "simultaneous and instantaneous severance of the carotid arteries with a sharp instrument"-the method used in kosher slaughter-is approved as humane. See 7 U. S. C. § 1902(b); Fla. Stat. § 828.23(7)(b) (1991); Ordinance 87-40, § 1. The District Court found that, though Santeria sacrifice also results in severance of the carotid arteries, the method used during sacrifice is less reliable and therefore not humane. See 723 F. Supp., at 14721473. If the city has a real concern that other methods are less humane, however, the subject of the regulation should be the method of slaughter itself, not a religious classification that is said to bear some general relation to it. Ordinance 87-72-unlike the three other ordinancesdoes appear to apply to substantial nonreligious conduct and 540 540 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH Opinion of KENNEDY, J. not to be overbroad. For our purposes here, however, the four substantive ordinances may be treated as a group for neutrality purposes. Ordinance 87-72 was passed the same day as Ordinance 87-71 and was enacted, as were the three others, in direct response to the opening of the Church. It would be implausible to suggest that the three other ordinances, but not Ordinance 87-72, had as their object the suppression of religion. We need not decide whether Ordinance 87-72 could survive constitutional scrutiny if it existed separately; it must be invalidated because it functions, with the rest of the enactments in question, to suppress Santeria religious worship. 2 In determining if the object of a law is a neutral one under the Free Exercise Clause, we can also find guidance in our equal protection cases. As Justice Harlan noted in the related context of the Establishment Clause, "[n]eutrality in its application requires an equal protection mode of analysis." Walz v. Tax Comm'n of New York City, 397 U. S., at 696 (concurring opinion). Here, as in equal protection cases, we may determine the city council's object from both direct and circumstantial evidence. Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252 , 266 (1977). Relevant evidence includes, among other things, the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body. Id., at 267-268. These objective factors bear on the question of discriminatory object. Personnel Administrator of Mass. v. Feeney, 442 U. S. 256 , 279, n. 24 (1979). That the ordinances were enacted "'because of,' not merely 'in spite of,'" their suppression of Santeria religious practice, id., at 279, is revealed by the events preceding their enactment. Although respondent claimed at oral argument 541 that it had experienced significant problems resulting from the sacrifice of animals within the city before the announced opening of the Church, Tr. of Oral Arg. 27, 46, the city council made no attempt to address the supposed problem before its meeting in June 1987, just weeks after the Church announced plans to open. The minutes and taped excerpts of the June 9 session, both of which are in the record, evidence significant hostility exhibited by residents, members of the city council, and other city officials toward the Santeria religion and its practice of animal sacrifice. The public crowd that attended the June 9 meetings interrupted statements by council members critical of Santeria with cheers and the brief comments of Pichardo with taunts. When Councilman Martinez, a supporter of the ordinances, stated that in prerevolution Cuba "people were put in jail for practicing this religion," the audience applauded. Taped excerpts of Hialeah City Council Meeting, June 9, 1987. Other statements by members of the city council were in a similar vein. For example, Councilman Martinez, after noting his belief that Santeria was outlawed in Cuba, questioned: "[I]f we could not practice this [religion] in our homeland [Cuba], why bring it to this country?" Councilman Cardoso said that Santeria devotees at the Church "are in violation of everything this country stands for." Councilman Mejides indicated that he was "totally against the sacrificing of animals" and distinguished kosher slaughter because it had a "real purpose." The "Bible says we are allowed to sacrifice an animal for consumption," he continued, "but for any other purposes, I don't believe that the Bible allows that." The president of the city council, Councilman Echevarria, asked: "What can we do to prevent the Church from opening?" Various Hialeah city officials made comparable comments. The chaplain of the Hialeah Police Department told the city council that Santeria was a sin, "foolishness," "an abomination to the Lord," and the worship of "demons." He advised 542 542 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH the city council: "We need to be helping people and sharing with them the truth that is found in Jesus Christ." He concluded: "I would exhort you ... not to permit this Church to exist." The city attorney commented that Resolution 87-66 indicated: "This community will not tolerate religious practices which are abhorrent to its citizens .... " Ibid. Similar comments were made by the deputy city attorney. This history discloses the object of the ordinances to target animal sacrifice by Santeria worshippers because of its religious motivation. 3 In sum, the neutrality inquiry leads to one conclusion: The ordinances had as their object the suppression of religion. The pattern we have recited discloses animosity to Santeria adherents and their religious practices; the ordinances by their own terms target this religious exercise; the texts of the ordinances were gerrymandered with care to proscribe religious killings of animals but to exclude almost all secular killings; and the ordinances suppress much more religious conduct than is necessary in order to achieve the legitimate ends asserted in their defense. These ordinances are not neutral, and the court below committed clear error in failing to reach this conclusion. B We turn next to a second requirement of the Free Exercise Clause, the rule that laws burdening religious practice must be of general applicability. Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S., at 879-881. All laws are selective to some extent, but categories of selection are of paramount concern when a law has the incidental effect of burdening religious practice. The Free Exercise Clause "protect[s] religious observers against unequal treatment," Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136 , 148 (1987) (STEVENS, J., concurring in judgment), and inequality results when a legislature decides that 543 the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation. The principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief is essential to the protection of the rights guaranteed by the Free Exercise Clause. The principle underlying the general applicability requirement has parallels in our First Amendment jurisprudence. See, e. g., Cohen v. Cowles Media Co., 501 U. S. 663 , 669-670 (1991); University of Pennsylvania v. EEOC, 493 U. S. 182, 201 (1990); Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U. S. 575 , 585 (1983); Larson v. Valente, 456 U. S., at 245-246; Presbyterian Church in U. S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U. S. 440 , 449 (1969). In this case we need not define with precision the standard used to evaluate whether a prohibition is of general application, for these ordinances fall well below the minimum standard necessary to protect First Amendment rights. Respondent claims that Ordinances 87-40, 87-52, and 87-71 advance two interests: protecting the public health and preventing cruelty to animals. The ordinances are underinclusive for those ends. They fail to prohibit nonreligious conduct that endangers these interests in a similar or greater degree than Santeria sacrifice does. The underinclusion is substantial, not inconsequential. Despite the city's proffered interest in preventing cruelty to animals, the ordinances are drafted with care to forbid few killings but those occasioned by religious sacrifice. Many types of animal deaths or kills for nonreligious reasons are either not prohibited or approved by express provision. For example, fishing-which occurs in Hialeah, see A. Khedouri & F. Khedouri, South Florida Inside Out 57 (1991)-is legal. Extermination of mice and rats within a home is also permitted. Florida law incorporated by Ordinance 87-40 sanctions 544 544 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH euthanasia of "stray, neglected, abandoned, or unwanted animals," Fla. Stat. § 828.058 (1987); destruction of animals judicially removed from their owners "for humanitarian reasons" or when the animal "is of no commercial value," § 828.073(4)(c)(2); the infliction of pain or suffering "in the interest of medical science," § 828.02; the placing of poison in one's yard or enclosure, § 828.08; and the use of a live animal "to pursue or take wildlife or to participate in any hunting," § 828.122(6)(b), and "to hunt wild hogs," § 828.122(6)(e). The city concedes that "neither the State of Florida nor the City has enacted a generally applicable ban on the killing of animals." Brief for Respondent 21. It asserts, however, that animal sacrifice is "different" from the animal killings that are permitted by law. Ibid. According to the city, it is "self-evident" that killing animals for food is "important"; the eradication of insects and pests is "obviously justified"; and the euthanasia of excess animals "makes sense." Id., at 22. These ipse dixits do not explain why religion alone must bear the burden of the ordinances, when many of these secular killings fall within the city's interest in preventing the cruel treatment of animals. The ordinances are also underinclusive with regard to the city's interest in public health, which is threatened by the disposal of animal carcasses in open public places and the consumption of uninspected meat, see Brief for Respondent 32, citing 723 F. Supp., at 1474-1475, 1485. Neither interest is pursued by respondent with regard to conduct that is not motivated by religious conviction. The health risks posed by the improper disposal of animal carcasses are the same whether Santeria sacrifice or some nonreligious killing preceded it. The city does not, however, prohibit hunters from bringing their kill to their houses, nor does it regulate disposal after their activity. Despite substantial testimony at trial that the same public health hazards result from improper disposal of garbage by restaurants, see 11 Record 566, 545 590-591, restaurants are outside the scope of the ordinances. Improper disposal is a general problem that causes substantial health risks, 723 F. Supp., at 1485, but which respondent addresses only when it results from religious exercise. The ordinances are underinclusive as well with regard to the health risk posed by consumption of uninspected meat. Under the city's ordinances, hunters may eat their kill and fishermen may eat their catch without undergoing governmental inspection. Likewise, state law requires inspection of meat that is sold but exempts meat from animals raised for the use of the owner and "members of his household and nonpaying guests and employees." Fla. Stat. § 585.88(1)(a) (1991). The asserted interest in inspected meat is not pursued in contexts similar to that of religious animal sacrifice. Ordinance 87-72, which prohibits the slaughter of animals outside of areas zoned for slaughterhouses, is underinclusive on its face. The ordinance includes an exemption for "any person, group, or organization" that "slaughters or processes for sale, small numbers of hogs and/or cattle per week in accordance with an exemption provided by state law." See Fla. Stat. § 828.24(3) (1991). Respondent has not explained why commercial operations that slaughter "small numbers" of hogs and cattle do not implicate its professed desire to prevent cruelty to animals and preserve the public health. Although the city has classified Santeria sacrifice as slaughter, subjecting it to this ordinance, it does not regulate other killings for food in like manner. We conclude, in sum, that each of Hialeah's ordinances pursues the city's governmental interests only against conduct motivated by religious belief. The ordinances "ha[ve] every appearance of a prohibition that society is prepared to impose upon [Santeria worshippers] but not upon itself." Florida Star v. B. J. F., 491 U. S. 524 , 542 (1989) (SCALIA, J., concurring in part and concurring in judgment). This 546 546 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH precise evil is what the requirement of general applicability is designed to prevent. III A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny. To satisfy the commands of the First Amendment, a law restrictive of religious practice must advance" 'interests of the highest order'" and must be narrowly tailored in pursuit of those interests. McDaniel v. Paty, 435 U. S., at 628, quoting Wisconsin v. Yoder, 406 U. S. 205 , 215 (1972). The compelling interest standard that we apply once a law fails to meet the Smith requirements is not "water[ed] ... down" but "really means what it says." Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S., at 888. A law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases. It follows from what we have already said that these ordinances cannot withstand this scrutiny. First, even were the governmental interests compelling, the ordinances are not drawn in narrow terms to accomplish those interests. As we have discussed, see supra, at 538540, 543-546, all four ordinances are overbroad or underinclusive in substantial respects. The proffered objectives are not pursued with respect to analogous nonreligious conduct, and those interests could be achieved by narrower ordinances that burdened religion to a far lesser degree. The absence of narrow tailoring suffices to establish the invalidity of the ordinances. See Arkansas Writers' Project, Inc. Respondent has not demonstrated, moreover, that, in the context of these ordinances, its governmental interests are compelling. Where government restricts only conduct protected by the First Amendment and fails to enact feasible 547 measures to restrict other conduct producing substantial harm or alleged harm of the same sort, the interest given in justification of the restriction is not compelling. It is established in our strict scrutiny jurisprudence that "a law cannot be regarded as protecting an interest 'of the highest order' ... when it leaves appreciable damage to that supposedly vital interest unprohibited." Florida Star v. B. J. F., supra, at 541-542 (SCALIA, J., concurring in part and concurring in judgment) (citation omitted). See Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105 , 119-120 (1991). Cf. Florida Star v. B. J. F., supra, at 540 541; Smith v. Daily Mail Publishing Co., 443 U. S. 97 , 104105 (1979); id., at 110 (REHNQUIST, J., concurring in judgment). As we show above, see supra, at 543-546, the ordinances are underinclusive to a substantial extent with respect to each of the interests that respondent has asserted, and it is only conduct motivated by religious conviction that bears the weight of the governmental restrictions. There can be no serious claim that those interests justify the ordinances. IV The Free Exercise Clause commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures. Those in office must be resolute in resisting importunate demands and must ensure that the sole reasons for imposing the burdens of law and regulation are secular. Legislators may not devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices. The laws here in question were enacted contrary to these constitutional principles, and they are void. Reversed. 548 548 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH Appendix to opinion of the Court APPENDIX TO OPINION OF THE COURT City of Hialeah, Florida, Resolution No. 87-66, adopted June 9, 1987, provides: "WHEREAS, residents and citizens of the City of Hialeah have expressed their concern that certain religions may propose to engage in practices which are inconsistent with public morals, peace or safety, and "WHEREAS, the Florida Constitution, Article I, Declaration of Rights, Section 3, Religious Freedom, specifically states that religious freedom shall not justify practices inconsistent with public morals, peace or safety. "NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF HIALEAH, FLORIDA, that: "1. The City reiterates its commitment to a prohibition against any and all acts of any and all religious groups which are inconsistent with public morals, peace or safety." City of Hialeah, Florida, Ordinance No. 87-40, adopted June 9, 1987, provides: "WHEREAS, the citizens of the City of Hialeah, Florida, have expressed great concern over the potential for animal sacrifices being conducted in the City of Hialeah; and "WHEREAS, Section 828.27, Florida Statutes, provides that 'nothing contained in this section shall prevent any county or municipality from enacting any ordinance relating to animal control or cruelty to animals which is identical to the provisions of this Chapter ... except as to penalty.' "NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF HIALEAH, FLORIDA, that: 549 "Section 1. The Mayor and City Council of the City of Hialeah, Florida, hereby adopt Florida Statute, Chapter 828-'Cruelty to Animals' (copy attached hereto and made a part hereof), in its entirety (relating to animal control or cruelty to animals), except as to penalty. "Section 2. Repeal of Ordinances in Conflict. "All ordinances or parts of ordinances in conflict herewith are hereby repealed to the extent of such conflict. "Section 3. Penalties. "Any person, firm or corporation convicted of violating the provisions of this ordinance shall be punished by a fine, not exceeding $500.00, or by a jail sentence, not exceeding sixty (60) days, or both, in the discretion of the Court. "Section 4. Inclusion in Code. "The provisions of this Ordinance shall be included and incorporated in the Code of the City of Hialeah, as an addition or amendment thereto, and the sections of this Ordinance shall be re-numbered to conform to the uniform numbering system of the Code. "Section 5. Severability Clause. "If any phrase, clause, sentence, paragraph or section of this Ordinance shall be declared invalid or unconstitutional by the judge or decree of a court of competent jurisdiction, such invalidity or unconstitutionality shall not effect any of the remaining phrases, clauses, sentences, paragraphs or sections of this ordinance. "Section 6. Effective Date. "This Ordinance shall become effective when passed by the City Council of the City of Hialeah and signed by the Mayor of the City of Hialeah." City of Hialeah Resolution No. 87-90, adopted August 11, 1987, provides: "WHEREAS, the residents and citizens of the City of Hialeah, Florida, have expressed great concern regard- 550 550 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH Appendix to opinion of the Court ing the possibility of public ritualistic animal sacrifices in the City of Hialeah, Florida; and "WHEREAS, the City of Hialeah, Florida, has received an opinion from the Attorney General of the State of Florida, concluding that public ritualistic animal sacrifices is [sic] a violation of the Florida State Statute on Cruelty to Animals; and "WHEREAS, the Attorney General further held that the sacrificial killing of animals other than for the primary purpose of food consumption is prohibited under state law; and "WHEREAS, the City of Hialeah, Florida, has enacted an ordinance mirroring state law prohibiting cruelty to animals. "NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF HIALEAH, FLORIDA, that: "Section 1. It is the policy of the Mayor and City Council of the City of Hialeah, Florida, to oppose the ritual sacrifices of animals within the City of Hialeah, FLorida [sic]. Any individual or organization that seeks to practice animal sacrifice in violation of state and local law will be prosecuted." City of Hialeah, Florida, Ordinance No. 87-52, adopted September 8, 1987, provides: "WHEREAS, the residents and citizens of the City of Hialeah, Florida, have expressed great concern regarding the possibility of public ritualistic animal sacrifices within the City of Hialeah, Florida; and "WHEREAS, the City of Hialeah, Florida, has received an opinion from the Attorney General of the State of Florida, concluding that public ritualistic animal sacrifice, other than for the primary purpose of food consumption, is a violation of state law; and 551 "WHEREAS, the City of Hialeah, Florida, has enacted an ordinance (Ordinance No. 87-40), mirroring the state law prohibiting cruelty to animals. "WHEREAS, the City of Hialeah, Florida, now wishes to specifically prohibit the possession of animals for slaughter or sacrifice within the City of Hialeah, Florida. "NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF HIALEAH, FLORIDA, that: "Section 1. Chapter 6 of the Code of Ordinances of the City of Hialeah, Florida, is hereby amended by adding thereto two (2) new Sections 6-8 'Definitions' and 6-9 'Prohibition Against Possession Of Animals For Slaughter Or Sacrifice', which is to read as follows: "Section 6-8. Definitions "1. Animal-any living dumb creature. "2. Sacrifice-to unnecessarily kill, torment, torture, or mutilate an animal in a public or private ritual or ceremony not for the primary purpose of food consumption. "3. Slaughter-the killing of animals for food. "Section 6-9. Prohibition Against Possession of Animals for Slaughter Or Sacrifice. "1. No person shall own, keep or otherwise possess, sacrifice, or slaughter any sheep, goat, pig, cow or the young of such species, poultry, rabbit, dog, cat, or any other animal, intending to use such animal for food purposes. "2. This section is applicable to any group or individual that kills, slaughters or sacrifices animals for any type of ritual, regardless of whether or not the flesh or blood of the animal is to be consumed. "3. Nothing in this ordinance is to be interpreted as prohibiting any licensed establishment from slaughtering for food purposes any animals which are specifically 552 552 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH Appendix to opinion of the Court raised for food purposes where such activity is properly zoned and/or permitted under state and local law and under rules promulgated by the Florida Department of Agriculture. "Section 2. Repeal of Ordinance in Conflict. "All ordinances or parts of ordinances in conflict herewith are hereby repealed to the extent of such conflict. "Section 3. Penalties. "Any person, firm or corporation convicted of violating the provisions of this ordinance shall be punished by a fine, not exceeding $500.00, or by a jail sentence, not exceeding sixty (60) days, or both, in the discretion of the Court. "Section 4. Inclusion in Code. "The provisions of this Ordinance shall be included and incorporated in the Code of the City of Hialeah, as an addition or amendment thereto, and the sections of this Ordinance shall be re-numbered to conform to the uniform numbering system of the Code. "Section 5. Severability Clause. "If any phrase, clause, sentence, paragraph or section of this Ordinance shall be declared invalid or unconstitutional by the judgement or decree of a court of competent jurisdiction, such invalidity or unconstitutionality shall not effect any of the remaining phrases, clauses, sentences, paragraphs or sections of this ordinance. "Section 6. Effective Date. "This Ordinance shall become effective when passed by the City Council of the City of Hialeah and signed by the Mayor of the City of Hialeah." City of Hialeah, Florida, Ordinance No. 87-71, adopted September 22, 1987, provides: "WHEREAS, the City Council of the City of Hialeah, Florida, has determined that the sacrificing of animals 553 within the city limits is contrary to the public health, safety, welfare and morals of the community; and "WHEREAS, the City Council of the City of Hialeah, Florida, desires to have qualified societies or corporations organized under the laws of the State of Florida, to be authorized to investigate and prosecute any violation(s) of the ordinance herein after set forth, and for the registration of the agents of said societies. "NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF HIALEAH, FLORIDA, that: "Section 1. For the purpose of this ordinance, the word sacrifice shall mean: to unnecessarily kill, torment, torture, or mutilate an animal in a public or private ritual or ceremony not for the primary purpose of food consumption. "Section 2. For the purpose of this ordinance, the word animal shall mean: any living dumb creature. "Section 3. It shall be unlawful for any person, persons, corporations or associations to sacrifice any animal within the corporate limits of the City of Hialeah, Florida. "Section 4. All societies or associations for the prevention of cruelty to animals organized under the laws of the State of Florida, seeking to register with the City of Hialeah for purposes of investigating and assisting in the prosecution of violations and provisions [sic] of this Ordinance, shall apply to the City Council for authorization to so register and shall be registered with the Office of the Mayor of the City of Hialeah, Florida, following approval by the City Council at a public hearing in accordance with rules and regulations (i. e., criteria) established by the City Council by resolution, and shall thereafter, be empowered to assist in the prosection of any violation of this Ordinance. 554 554 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH Appendix to opinion of the Court "Section 5. Any society or association for the prevention of cruelty to animals registered with the Mayor of the City of Hialeah, Florida, in accordance with the provisions of Section 4 hereinabove, may appoint agents for the purposes of investigating and assisting in the prosecution of violations and provisions [sic] of this Ordinance, or any other laws of the City of Hialeah, Florida, for the purpose of protecting animals and preventing any act prohibited hereunder. "Section 6. Repeal of Ordinances in Conflict. "All ordinances or parts of ordinances in conflict herewith are hereby repealed to the extent of such conflict. "Section 7. Penalties. "Any person, firm or corporation convicted of violating the provisions of this ordinance shall be punished by a fine, not exceeding $500.00, or by a jail sentence, not exceeding sixty (60) days, or both, in the discretion of the Court. "Section 8. Inclusion in Code. "The provisions of this Ordinance shall be included and incorporated in the Code of the City of Hialeah, as an addition or amendment thereto, and the sections of this Ordinance shall be re-numbered to conform to the uniform numbering system of the Code. "Section 9. Severability Clause. "If any phrase, clause, sentence, paragraph or section of this Ordinance shall be declared invalid or unconstitutional by the judgment or decree of a court of competent jurisdiction, such invalidity or unconstitutionality shall not effect any of the remaining phrases, clauses, sentences, paragraphs or sections of this Ordinance. "Section 10. Effective Date. "This Ordinance shall become effective when passed by the City Council of the City of Hialeah and signed by the Mayor of the City of Hialeah." 555 City of Hialeah, Florida, Ordinance No. 87-72, adopted September 22, 1987, provides: "WHEREAS, the City Council of the City of Hialeah, Florida, has determined that the slaughtering of animals on the premises other than those properly zoned as a slaughter house, is contrary to the public health, safety and welfare of the citizens of Hialeah, Florida. "NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF HIALEAH, FLORIDA, that: "Section 1. For the purpose of this Ordinance, the word slaughter shall mean: the killing of animals for food. "Section 2. For the purpose of this Ordinance, the word animal shall mean: any living dumb creature. "Section 3. It shall be unlawful for any person, persons, corporations or associations to slaughter any animal on any premises in the City of Hialeah, Florida, except those properly zoned as a slaughter house, and meeting all the health, safety and sanitation codes prescribed by the City for the operation of a slaughter house. "Section 4. All societies or associations for the prevention of cruelty to animals organized under the laws of the State of Florida, seeking to register with the City of Hialeah for purposes of investigating and assisting in the prosecution of violations and provisions [sic] of this Ordinance, shall apply to the City Council for authorization to so register and shall be registered with the Office of the Mayor of the City of Hialeah, Florida, following approval by the City Council at a public hearing in accordance with rules and regulations (i. e., criteria) established by the City Council by resolution, and shall thereafter, be empowered to assist in the prosection of any violations of this Ordinance. 556 556 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH Appendix to opinion of the Court "Section 5. Any society or association for the prevention of cruelty to animals registered with the Mayor of the City of Hialeah, Florida, in accordance with the provisions of Section 4 hereinabove, may appoint agents for the purposes of investigating and assisting in the prosecution of violations and provisions [sic] of this Ordinance, or any other laws of the City of Hialeah, Florida, for the purpose of protecting animals and preventing any act prohibited hereunder. "Section 6. This Ordinance shall not apply to any person, group, or organization that slaughters, or processes for sale, small numbers of hogs and/or cattle per week in accordance with an exemption provided by state law. "Section 7. Repeal of Ordinances in Conflict. "All ordinances or parts of ordinances in conflict herewith are hereby repealed to the extent of such conflict. "Section 8. Penalties. "Any person, firm or corporation convicted of violating the provisions of this ordinance shall be punished by a fine, not exceeding $500.00, or by a jail sentence, not exceeding sixty (60) days, or both, in the discretion of the Court. "Section 9. Inclusion in Code. "The provisions of this Ordinance shall be included and incorporated in the Code of the City of Hialeah, as an addition or amendment thereto, and the sections of this Ordinance shall be re-numbered to conform to the uniform numbering system of the Code. "Section 10. Severability Clause. "If any phrase, clause, sentence, paragraph or section of this Ordinance shall be declared invalid or unconstitutional by the judgment or decree of a court of competent jurisdiction, such invalidity or unconstitutionality shall not effect any of the remaining phrases, clauses, sentences, paragraphs or sections of this ordinance. 557 "Section 11. Effective Date. "This Ordinance shall become effective when passed by the City Council of the City of Hialeah and signed by the Mayor of the City of Hialeah." JUSTICE SCALIA, with whom THE CHIEF JUSTICE joins, concurring in part and concurring in the judgment. The Court analyzes the "neutrality" and the "general applicability" of the Hialeah ordinances in separate sections (Parts II-A and II-B, respectively), and allocates various invalidating factors to one or the other of those sections. If it were necessary to make a clear distinction between the two terms, I would draw a line somewhat different from the Court's. But I think it is not necessary, and would frankly acknowledge that the terms are not only "interrelated," ante, at 531, but substantially overlap. The terms "neutrality" and "general applicability" are not to be found within the First Amendment itself, of course, but are used in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), and earlier cases to describe those characteristics which cause a law that prohibits an activity a particular individual wishes to engage in for religious reasons nonetheless not to constitute a "law ... prohibiting the free exercise" of religion within the meaning of the First Amendment. In my view, the defect of lack of neutrality applies primarily to those laws that by their terms impose disabilities on the basis of religion (e. g., a law excluding members of a certain sect from public benefits, cf. Mc Daniel v. Paty, 435 U. S. 618 (1978)), see Bowen v. Roy, 476 U. S. 693, 703-704 (1986) (opinion of Burger, C. J.); whereas the defect of lack of general applicability applies primarily to those laws which, though neutral in their terms, through their design, construction, or enforcement target the practices of a particular religion for discriminatory treatment, see Fowler v. Rhode Island, 345 U. S. 67 (1953). But certainly a law that is not of general applicability (in the sense 558 558 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH Opinion of SCALIA, J. I have described) can be considered "nonneutral"; and certainly no law that is nonneutral (in the relevant sense) can be thought to be of general applicability. Because I agree with most of the invalidating factors set forth in Part II of the Court's opinion, and because it seems to me a matter of no consequence under which rubric ("neutrality," Part II-A, or "general applicability," Part II-B) each invalidating factor is discussed, I join the judgment of the Court and all of its opinion except section 2 of Part II-A. I do not join that section because it departs from the opinion's general focus on the object of the laws at issue to consider the subjective motivation of the lawmakers, i. e., whether the Hialeah City Council actually intended to disfavor the religion of Santeria. As I have noted elsewhere, it is virtually impossible to determine the singular "motive" of a collective legislative body, see, e. g., Edwards v. Aguillard, 482 U. S. 578 , 636-639 (1987) (dissenting opinion), and this Court has a long tradition of refraining from such inquiries, see, e. g., Fletcher v. Peck, 6 Cranch 87, 130-131 (1810) (Marshall, C. J.); United States v. O'Brien, 391 U. S. 367 , 383-384 (1968). Perhaps there are contexts in which determination of legislative motive must be undertaken. See, e. g., United States v. Lovett, 328 U. S. 303 (1946). But I do not think that is true of analysis under the First Amendment (or the Fourteenth, to the extent it incorporates the First). See Edwards v. Aguillard, supra, at 639 (SCALIA, J., dissenting). The First Amendment does not refer to the purposes for which legislators enact laws, but to the effects of the laws enacted: "Congress shall make no law ... prohibiting the free exercise [of religion] .... " This does not put us in the business of invalidating laws by reason of the evil motives of their authors. Had the Hialeah City Council set out resolutely to suppress the practices of Santeria, but ineptly adopted ordinances that failed to do so, I do not see how those laws could be said to "prohibi[t] the free exercise" of 559 religion. Nor, in my view, does it matter that a legislature consists entirely of the purehearted, if the law it enacts in fact singles out a religious practice for special burdens. Had the ordinances here been passed with no motive on the part of any councilman except the ardent desire to prevent cruelty to animals (as might in fact have been the case), they would nonetheless be invalid. JUSTICE SOUTER, concurring in part and concurring in the judgment. This case turns on a principle about which there is no disagreement, that the Free Exercise Clause bars government action aimed at suppressing religious belief or practice. The Court holds that Hialeah's animal-sacrifice laws violate that principle, and I concur in that holding without reservation. Because prohibiting religious exercise is the object of the laws at hand, this case does not present the more difficult issue addressed in our last free-exercise case, Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), which announced the rule that a "neutral, generally applicable" law does not run afoul of the Free Exercise Clause even when it prohibits religious exercise in effect. The Court today refers to that rule in dicta, and despite my general agreement with the Court's opinion I do not join Part II, where the dicta appear, for I have doubts about whether the Smith rule merits adherence. I write separately to explain why the Smith rule is not germane to this case and to express my view that, in a case presenting the issue, the Court should reexamine the rule Smith declared. I According to Smith, if prohibiting the exercise of religion results from enforcing a "neutral, generally applicable" law, the Free Exercise Clause has not been offended. Id., at 878-880. I call this the Smith rule to distinguish it from the noncontroversial principle, also expressed in Smith though 560 560 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH Opinion of SOUTER, J. established long before, that the Free Exercise Clause is offended when prohibiting religious exercise results from a law that is not neutral or generally applicable. It is this noncontroversial principle, that the Free Exercise Clause requires neutrality and general applicability, that is at issue here. But before turning to the relationship of Smith to this case, it will help to get the terms in order, for the significance of the Smith rule is not only in its statement that the Free Exercise Clause requires no more than "neutrality" and "general applicability," but also in its adoption of a particular, narrow conception of free-exercise neutrality. That the Free Exercise Clause contains a "requirement for governmental neutrality," Wisconsin v. Yoder, 406 U. S. 205 , 220 (1972), is hardly a novel proposition; though the term does not appear in the First Amendment, our cases have used it as shorthand to describe, at least in part, what the Clause commands. See, e. g., Jimmy Swaggart Ministries v. Board of Equalization of Cal., 493 U. S. 378 , 384 (1990); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 , 717 (1981); Yoder, supra, at 220; Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756 , 792-793 (1973); School Dist. of Abington v. Schempp, 374 U. S. 203 , 222 (1963); see also McDaniel v. Paty, 435 U. S. 618 , 627-629 (1978) (plurality opinion) (invalidating a nonneutral law without using the term). Nor is there anything unusual about the notion that the Free Exercise Clause requires general applicability, though the Court, until today, has not used exactly that term in stating a reason for invalidation. See Fowler v. Rhode Island, 345 U. S. 67 (1953); cf. Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U. S. 575 , 585 (1983); Larson v. Valente, 456 U. S. 228, 245-246 (1982).1 1 A law that is not generally applicable according to the Court's definition (one that "selective[ly] impose[s] burdens only on conduct motivated by religious belief," ante, at 543) would, it seems to me, fail almost any test for neutrality. Accordingly, the cases stating that the Free Exercise 561 While general applicability is, for the most part, selfexplanatory, free-exercise neutrality is not self-revealing. Cf. Lee v. Weisman, 505 U. S. 577 , 627 (1992) (SOUTER, J., concurring) (considering Establishment Clause neutrality). A law that is religion neutral on its face or in its purpose may lack neutrality in its effect by forbidding something that religion requires or requiring something that religion forbids. Cf. McConnell & Posner, An Economic Approach to Issues of Religious Freedom, 56 U. Chi. L. Rev. 1, 35 (1989) ("[A] regulation is not neutral in an economic sense if, whatever its normal scope or its intentions, it arbitrarily imposes greater costs on religious than on comparable nonreligious activities"). A secular law, applicable to all, that prohibits consumption of alcohol, for example, will affect members of religions that require the use of wine differently from members of other religions and nonbelievers, disproportionately burdening the practice of, say, Catholicism or Judaism. Without an exemption for sacramental wine, Prohibition may fail the test of religion neutrality.2 It does not necessarily follow from that observation, of course, that the First Amendment requires an exemption from Prohibition; that depends on the meaning of neutrality as the Free Exercise Clause embraces it. The point here is the unremarkable one that our common notion of neutrality is broad enough to cover not merely what might be called formal neutrality, which as a free-exercise requirement Clause requires neutrality are also fairly read for the proposition that the Clause requires general applicability. 2 Our cases make clear, to look at this from a different perspective, that an exemption for sacramental wine use would not deprive Prohibition of neutrality. Rather, "[s]uch an accommodation [would] 'reflec[t] nothing more than the governmental obligation of neutrality in the face of religious differences.''' Wisconsin v. Yoder, 406 U. S. 205 , 235, n. 22 (1972) (quoting Sherbert v. Verner, 374 U. S. 398 , 409 (1963)); see also Lee v. Weisman, 505 U. S. 577, 627 (1992) (SOUTER, J., concurring). The prohibition law in place earlier this century did in fact exempt "wine for sacramental purposes." National Prohibition Act, Title II, § 3, 41 Stat. 308. 562 562 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH Opinion of SOUTER, J. would only bar laws with an object to discriminate against religion, but also what might be called substantive neutrality, which, in addition to demanding a secular object, would generally require government to accommodate religious differences by exempting religious practices from formally neutrallaws. See generally Laycock, Formal, Substantive, and Disaggregated Neutrality Toward Religion, 39 DePaul L. Rev. 993 (1990). If the Free Exercise Clause secures only protection against deliberate discrimination, a formal requirement will exhaust the Clause's neutrality command; if the Free Exercise Clause, rather, safeguards a right to engage in religious activity free from unnecessary governmental interference, the Clause requires substantive, as well as formal, neutrality.3 Though Smith used the term "neutrality" without a modifier, the rule it announced plainly assumes that free-exercise neutrality is of the formal sort. Distinguishing between laws whose "object" is to prohibit religious exercise and those that prohibit religious exercise as an "incidental effect," Smith placed only the former within the reaches of the Free Exercise Clause; the latter, laws that satisfy formal neutrality, Smith would subject to no free-exercise scrutiny at all, even when they prohibit religious exercise in application. 494 U. S., at 878. The four Justices who rejected the Smith rule, by contrast, read the Free Exercise Clause as embracing what I have termed substantive neutrality. The enforcement of a law "neutral on its face," they said, may "nonetheless offend [the Free Exercise Clause's] requirement 3 One might further distinguish between formal neutrality and facial neutrality. While facial neutrality would permit discovery of a law's object or purpose only by analysis of the law's words, structure, and operation, formal neutrality would permit enquiry also into the intentions of those who enacted the law. Compare ante, at 540-542 (opinion of KENNEDY, J., joined by STEVENS, J.) with ante, p. 557 (opinion of SCALIA, J., joined by REHNQUIST, C. J.). For present purposes, the distinction between formal and facial neutrality is less important than the distinction between those conceptions of neutrality and substantive neutrality. 563 for government neutrality if it unduly burdens the free exercise of religion." Id., at 896 (opinion of O'CONNOR, J., joined by Brennan, Marshall, and BLACKMUN, JJ.) (internal quotation marks and citations omitted). The rule these Justices saw as flowing from free-exercise neutrality, in contrast to the Smith rule, "requir[es] the government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest." Id., at 894 (emphasis added). The proposition for which the Smith rule stands, then, is that formal neutrality, along with general applicability, are sufficient conditions for constitutionality under the Free Exercise Clause. That proposition is not at issue in this case, however, for Hialeah's animal-sacrifice ordinances are not neutral under any definition, any more than they are generally applicable. This case, rather, involves the noncontroversial principle repeated in Smith, that formal neutrality and general applicability are necessary conditions for freeexercise constitutionality. It is only "this fundamental nonpersecution principle of the First Amendment [that is] implicated here," ante, at 523, and it is to that principle that the Court adverts when it holds that Hialeah's ordinances "fail to satisfy the Smith requirements," ante, at 532. In applying that principle the Court does not tread on troublesome ground. In considering, for example, whether Hialeah's animalsacrifice laws violate free-exercise neutrality, the Court rightly observes that "[a]t a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons," ibid., and correctly finds Hialeah's laws to fail those standards. The question whether the protections of the Free Exercise Clause also pertain if the law at issue, though nondiscriminatory in its object, has the effect nonetheless of placing a burden on religious exercise is not before the Court 564 564 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH Opinion of SOUTER, J. today, and the Court's intimations on the matter are therefore dicta. The Court also rightly finds Hialeah's laws to fail the test of general applicability, and as the Court "need not define with precision the standard used to evaluate whether a prohibition is of general application, for these ordinances fall well below the minimum standard necessary to protect First Amendment rights," ante, at 543, it need not discuss the rules that apply to prohibitions found to be generally applicable. The question whether "there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability," Yoder, 406 U. S., at 220, is not before the Court in this case, and, again, suggestions on that score are dicta. II In being so readily susceptible to resolution by applying the Free Exercise Clause's "fundamental nonpersecution principle," ante, at 523, this is far from a representative freeexercise case. While, as the Court observes, the Hialeah City Council has provided a rare example of a law actually aimed at suppressing religious exercise, ante, at 523-524, Smith was typical of our free-exercise cases, involving as it did a formally neutral, generally applicable law. The rule Smith announced, however, was decidedly untypical of the cases involving the same type of law. Because Smith left those prior cases standing, we are left with a free-exercise jurisprudence in tension with itself, a tension that should be addressed, and that may legitimately be addressed, by reexamining the Smith rule in the next case that would turn upon its application. A In developing standards to judge the enforceability of formally neutral, generally applicable laws against the mandates of the Free Exercise Clause, the Court has addressed 565 the concepts of neutrality and general applicability by indicating, in language hard to read as not foreclosing the Smith rule, that the Free Exercise Clause embraces more than mere formal neutrality, and that formal neutrality and general applicability are not sufficient conditions for freeexercise constitutionality: "In a variety of ways we have said that '[a] regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion.'" Thomas, 450 U. S., at 717 (quoting Yoder, supra, at 220). "[T]o agree that religiously grounded conduct must often be subject to the broad police power of the State is not to deny that there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability." 450 U. S., at 717. Not long before the Smith decision, indeed, the Court specifically rejected the argument that "neutral and uniform" requirements for governmental benefits need satisfy only a reasonableness standard, in part because "[s]uch a test has no basis in precedent." Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136 , 141 (1987) (internal quotation marks omitted). Rather, we have said, "[o]ur cases have established that '[t]he free exercise inquiry asks whether government has placed a substantial burden on the observation of a central religious belief or practice and, if so, whether a compelling governmental interest justifies the burden.'" Swaggart Ministries, 493 U. S., at 384-385 (quoting Hernandez v. Commissioner, 490 U. S. 680 , 699 (1989)). Thus we have applied the same rigorous scrutiny to burdens on religious exercise resulting from the enforcement of formally neutral, generally applicable laws as we have applied to burdens caused by laws that single out religious ex- 566 566 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH Opinion of SOUTER, J. ercise: "'only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.'" McDaniel v. Paty, 435 U. S., at 628 (plurality opinion) (quoting Yoder, supra, at 215). Compare McDaniel, supra, at 628-629 (plurality opinion) (applying that test to a law aimed at religious conduct) with Yoder, supra, at 215-229 (applying that test to a formally neutral, general law). Other cases in which the Court has applied heightened scrutiny to the enforcement of formally neutral, generally applicable laws that burden religious exercise include Hernandez v. Commissioner, supra, at 699; Frazee v. Illinois Dept. of Employment Security, 489 U. S. 829 , 835 (1989); Hobbie v. Unemployment Appeals Comm'n, supra, at 141; Bob Jones Univ. v. United States, 461 U. S. 574 , 604 (1983); United States v. Lee, 455 U. S. 252 , 257-258 (1982); Thomas, supra, at 718; Sherbert v. Verner, 374 U. S. 398 , 403 (1963); and Cantwell v. Connecticut, 310 U. S. 296 , 304-307 (1940). Though Smith sought to distinguish the free-exercise cases in which the Court mandated exemptions from secular laws of general application, see 494 U. S., at 881-885, I am not persuaded. Wisconsin v. Yoder, and Cantwell v. Connecticut, according to Smith, were not true free-exercise cases but "hybrid[s]" involving "the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, or the right of parents ... to direct the education of their children." Smith, supra, at 881, 882. Neither opinion, however, leaves any doubt that "fundamental claims of religious freedom [were] at stake." Yoder, supra, at 221; see also Cantwell, supra, at 303-307.4 4 Yoder, which involved a challenge by Amish parents to the enforcement against them of a compulsory school attendance law, mentioned the parental rights recognized in Pierce v. Society of Sisters, 268 U. S. 510 (1925), as Smith pointed out. See Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S., at 881, n. 1 (citing Yoder, 406 U. S., at 233). But Yoder did so only to distinguish Pierce, which involved a 567 And the distinction Smith draws strikes me as ultimately untenable. If a hybrid claim is simply one in which another constitutional right is implicated, then the hybrid exception would probably be so vast as to swallow the Smith rule, and, indeed, the hybrid exception would cover the situation exemplified by Smith, since free speech and associational rights are certainly implicated in the peyote ritual. But if a hybrid claim is one in which a litigant would actually obtain an exemption from a formally neutral, generally applicable law under another constitutional provision, then there would have been no reason for the Court in what Smith calls the hybrid cases to have mentioned the Free Exercise Clause at all. Smith sought to confine the remaining free-exercise exemption victories, which involved unemployment compensa- substantive due process challenge to a compulsory school attendance law and which required merely a showing of "'reasonable[ness].' " 406 U. S., at 233 (quoting Pierce, supra, at 535). Where parents make a "free exercise claim," the Yoder Court said, the Pierce reasonableness test is inapplicable and the State's action must be measured by a stricter test, the test developed under the Free Exercise Clause and discussed at length earlier in the opinion. See 406 U. S., at 233; id., at 213-229. Quickly after the reference to parental rights, the Yoder opinion makes clear that the case involves "the central values underlying the Religion Clauses." Id., at 234. The Yoders raised only a free-exercise defense to their prosecution under the school-attendance law, id., at 209, and n. 4; certiorari was granted only on the free-exercise issue, id., at 207; and the Court plainly understood the case to involve "conduct protected by the Free Exercise Clause" even against enforcement of a "regulatio[n] of general applicability," id., at 220. As for Cantwell, Smith pointed out that the case explicitly mentions freedom of speech. See 494 U. S., at 881, n. 1 (citing Cantwell v. Connecticut, 310 U. S., at 307). But the quote to which Smith refers occurs in a portion of the Cantwell opinion (titled: "[slecond," and dealing with a breach-of-peace conviction for playing phonograph records, see 310 U. S., at 307) that discusses an entirely different issue from the section of Cantwell that Smith cites as involving a "neutral, generally applicable law" (titled: "[flirst," and dealing with a licensing system for solicitations, see Cantwell, supra, at 303-307). See Smith, supra, at 881. 568 568 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH Opinion of SOUTER, J. tion systems, see Frazee, supra; Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136 (1987); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 (1981); and Sherbert, supra, as "stand[ing] for the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of 'religious hardship' without compelling reason." 494 U. S., at 884. But prior to Smith the Court had already refused to accept that explanation of the unemployment compensation cases. See Hobbie, supra, at 142, n. 7; Bowen v. Roy, 476 U. S. 693 , 715-716 (1986) (opinion of BLACKMUN, J.); id., at 727-732 (opinion of O'CONNOR, J., joined by Brennan and Marshall, JJ.); id., at 733 (WHITE, J., dissenting). And, again, the distinction fails to exclude Smith: "If Smith is viewed as an unemployment compensation case, the distinction is obviously spurious. If Smith is viewed as a hypothetical criminal prosecution for peyote use, there would be an individual governmental assessment of the defendants' motives and actions in the form of a criminal trial." McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109, 1124 (1990). Smith also distinguished the unemployment compensation cases on the ground that they did not involve "an across-the-board criminal prohibition on a particular form of conduct." 494 U. S., at 884. But even Chief Justice Burger's plurality opinion in Bowen v. Roy, on which Smith drew for its analysis of the unemployment compensation cases, would have applied its reasonableness test only to "denial of government benefits" and not to "governmental action or legislation that criminalizes religiously inspired activity or inescapably compels conduct that some find objectionable for religious reasons," Bowen v. Roy, supra, at 706 (opinion of Burger, C. J., joined by Powell and REHNQUIST, JJ.); to the latter category of governmental action, it would have applied the test employed in Yoder, which involved an across-the-board criminal prohibition and which Chief Justice Burger's opinion treated as an ordinary free- 569 exercise case. See Bowen v. Roy, 476 U. S., at 706-707; id., at 705, n. 15; Yoder, 406 U. S., at 218; see also McDaniel v. Paty, 435 U. S., at 628, n. 8 (noting cases in which courts considered claims for exemptions from general criminal prohibitions, cases the Court thought were "illustrative of the general nature of free-exercise protections and the delicate balancing required by our decisions in [Sherbert and Yoder,] when an important state interest is shown"). As for the cases on which Smith primarily relied as establishing the rule it embraced, Reynolds v. United States, 98 U. S. 145 (1879), and Minersville School Dist. v. Gobitis, 310 U. S. 586 (1940), see Smith, supra, at 879, their subsequent treatment by the Court would seem to require rejection of the Smith rule. Reynolds, which in upholding the polygamy conviction of a Mormon stressed the evils it saw as associated with polygamy, see 98 U. S., at 166 ("polygamy leads to the patriarchal principle, and ... fetters the people in stationary despotism"); id., at 165, 168, has been read as consistent with the principle that religious conduct may be regulated by general or targeting law only if the conduct "pose[s] some substantial threat to public safety, peace or order." Sherbert v. Verner, 374 U. S., at 403; see also United States v. Lee, 455 U. S., at 257-258; Bob Jones University, 461 U. S., at 603; Yoder, supra, at 230. And Gobitis, after three Justices who originally joined the opinion renounced it for disregarding the government's constitutional obligation "to accommodate itself to the religious views of minorities," Jones v. Opelika, 316 U. S. 584 , 624 (1942) (opinion of Black, Douglas, and Murphy, JJ.), was explicitly overruled in West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 , 642 (1943); see also id., at 643-644 (Black and Douglas, JJ., concurring). Since holding in 1940 that the Free Exercise Clause applies to the States, see Cantwell v. Connecticut, 310 U. S. 296 , the Court repeatedly has stated that the Clause sets strict limits on the government's power to burden religious exercise, whether it is a law's object to do so or its unantici- 570 570 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH Opinion of SOUTER, J. pated effect. Smith responded to these statements by suggesting that the Court did not really mean what it said, detecting in at least the most recent opinions a lack of commitment to the compelling-interest test in the context of formally neutral laws. Smith, supra, at 884-885. But even if the Court's commitment were that palid, it would argue only for moderating the language of the test, not for eliminating constitutional scrutiny altogether. In any event, I would have trouble concluding that the Court has not meant what it has said in more than a dozen cases over several decades, particularly when in the same period it repeatedly applied the compelling-interest test to require exemptions, even in a case decided the year before Smith. See Frazee v. Illinois Dept. of Employment Security, 489 U. S. 829 (1989).5 In sum, it seems to me difficult to escape the con- 5 Though Smith implied that the Court, in considering claims for exemptions from formally neutral, generally applicable laws, has applied a "water[ed] down" version of strict scrutiny, 494 U. S., at 888, that appraisal confuses the cases in which we purported to apply strict scrutiny with the cases in which we did not. We did not purport to apply strict scrutiny in several cases involving discrete categories of governmental action in which there are special reasons to defer to the judgment of the political branches, and the opinions in those cases said in no uncertain terms that traditional heightened scrutiny applies outside those categories. See O'Lone v. Estate of Shabazz, 482 U. S. 342 , 349 (1987) ("[P]rison regulations ... are judged under a 'reasonableness' test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights"); Goldman v. Weinberger, 475 U. S. 503 , 507 (1986) ("Our review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society"); see also Johnson v. Robison, 415 U. S. 361 , 385-386 (1974); Gillette v. United States, 401 U. S. 437 , 462 (1971). We also did not purport to apply strict scrutiny in several cases in which the claimants failed to establish a constitutionally cognizable burden on religious exercise, and again the opinions in those cases left no doubt that heightened scrutiny applies to the enforcement of formally neutral, generallaws that do burden free exercise. See Jimmy Swaggart Ministries v. Board of Equalization of Gal., 493 U. S. 378 , 384-385 (1990) ("Our cases have established that [t]he free exercise inquiry asks whether government 571 clusion that, whatever Smith's virtues, they do not include a comfortable fit with settled law. B The Smith rule, in my view, may be reexamined consistently with principles of stare decisis. To begin with, the Smith rule was not subject to "full-dress argument" prior to its announcement. Mapp v. Ohio, 367 U. S. 643 , 676-677 (1961) (Harlan, J., dissenting). The State of Oregon in Smith contended that its refusal to exempt religious peyote use survived the strict scrutiny required by "settled free exercise principles," inasmuch as the State had "a compelling interest in regulating" the practice of peyote use and could not "accommodate the religious practice without compromis- has placed a substantial burden on the observation of a central religious belief or practice and, if so, whether a compelling governmental interest justifies the burden") (internal quotation marks and citation omitted); Lyng v. Northwest Indian Cemetery Protective Assn., 485 U. S. 439 , 450 (1988) ("[T]his Court has repeatedly held that indirect coercion or penalties on the free exercise of religion, not just outright prohibitions, are subject to [the] scrutiny" employed in Sherbert v. Verner, 374 U. S. 398 (1963); see also Braunfeld v. Brown, 366 U. S. 599 , 606-607 (1961) (plurality opinion). Among the cases in which we have purported to apply strict scrutiny, we have required free-exercise exemptions more often than we have denied them. Compare Frazee v. Illinois Dept. of Employment Security, 489 U. S. 829 (1989); Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136 (1987); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 (1981); Wisconsin v. Yoder, 406 U. S. 205 (1972); Cantwell v. Connecticut, 310 U. S. 296 (1940), with Hernandez v. Commissioner, 490 U. S. 680 (1989); Bob Jones Univ. v. United States, 461 U. S. 574 (1983); United States v. Lee, 455 U. S. 252 (1982). And of the three cases in which we found that denial of an exemption survived strict scrutiny (all tax cases), one involved the government's "fundamental, overriding interest in eradicating racial discrimination in education," Bob Jones University, supra, at 604; in a second the Court "doubt[ed] whether the alleged burden ... [was] a substantial one," Hernandez, supra, at 699; and the Court seemed to be of the same view in the third, see Lee, supra, at 261, n. 12. These cases, I think, provide slim grounds for concluding that the Court has not been true to its word. 572 572 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH Opinion of SOUTER, J. ing its interest." Brief for Petitioners in Smith, O. T. 1989, No. 88-1213, p. 5; see also id., at 5-36; Reply Brief for Petitioners in Smith, pp. 6-20. Respondents joined issue on the outcome of strict scrutiny on the facts before the Court, see Brief for Respondents in Smith, pp. 14-41, and neither party squarely addressed the proposition the Court was to embrace, that the Free Exercise Clause was irrelevant to the dispute. Sound judicial decisionmaking requires "both a vigorous prosecution and a vigorous defense" of the issues in dispute, Christiansburg Garment Co. v. EEOC, 434 U. S. 412 , 419 (1978), and a constitutional rule announced sua sponte is entitled to less deference than one addressed on full briefing and argument. Cf. Ladner v. United States, 358 U. S. 169 , 173 (1958) (declining to address "an important and complex" issue concerning the scope of collateral attack upon criminal sentences because it had received "only meagre argument" from the parties, and the Court thought it "should have the benefit of a full argument before dealing with the question"). The Smith rule's vitality as precedent is limited further by the seeming want of any need of it in resolving the question presented in that case. JUSTICE O'CONNOR reached the same result as the majority by applying, as the parties had requested, "our established free exercise jurisprudence," 494 U. S., at 903, and the majority never determined that the case could not be resolved on the narrower ground, going instead straight to the broader constitutional rule. But the Court's better practice, one supported by the same principles of restraint that underlie the rule of stare decisis, is not to "'formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.''' Ashwander v. TVA, 297 U. S. 288 , 347 (1936) (Brandeis, J., concurring) (quoting Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U. S. 33 , 39 (1885)). While I am not suggesting that the Smith Court lacked the power to announce its rule, I think a rule of law unnecessary to the outcome of a case, especially one not put 573 into play by the parties, approaches without more the sort of "dicta ... which may be followed if sufficiently persuasive but which are not controlling." Humphrey's Executor v. United States, 295 U. S. 602 , 627 (1935); see also Kastigar v. United States, 406 U. S. 441 , 454-455 (1972). I do not, of course, mean to imply that a broad constitutional rule announced without full briefing and argument necessarily lacks precedential weight. Over time, such a decision may become "part of the tissue of the law," Radovich v. National Football League, 352 U. S. 445 , 455 (1957) (Frankfurter, J., dissenting), and may be subject to reliance in a way that new and unexpected decisions are not. Cf. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 854-855 (1992). Smith, however, is not such a case. By the same token, by pointing out Smith's recent vintage I do not mean to suggest that novelty alone is enough to justify reconsideration. "[S]tare decisis," as Justice Frankfurter wrote, "is a principle of policy and not a mechanical formula," Helvering v. Hallock, 309 U. S. 106 , 119 (1940), and the decision whether to adhere to a prior decision, particularly a constitutional decision, is a complex and difficult one that does not lend itself to resolution by application of simple, categorical rules, but that must account for a variety of often competing considerations. The considerations of full briefing, necessity, and novelty thus do not exhaust the legitimate reasons for reexamining prior decisions, or even for reexamining the Smith rule. One important further consideration warrants mention here, however, because it demands the reexamination I have in mind. Smith presents not the usual question of whether to follow a constitutional rule, but the question of which constitutional rule to follow, for Smith refrained from overruling prior free-exercise cases that contain a free-exercise rule fundamentally at odds with the rule Smith declared. Smith, indeed, announced its rule by relying squarely upon 574 574 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH Opinion of SOUTER, J. the precedent of prior cases. See 494 U. S., at 878 ("Our decisions reveal that the ... reading" of the Free Exercise Clause contained in the Smith rule "is the correct one"). Since that precedent is nonetheless at odds with the Smith rule, as I have discussed above, the result is an intolerable tension in free-exercise law which may be resolved, consistently with principles of stare decisis, in a case in which the tension is presented and its resolution pivotal. While the tension on which I rely exists within the body of our extant case law, a rereading of that case law will not, of course, mark the limits of any enquiry directed to reexamining the Smith rule, which should be reviewed in light not only of the precedent on which it was rested but also of the text of the Free Exercise Clause and its origins. As for text, Smith did not assert that the plain language of the Free Exercise Clause compelled its rule, but only that the rule was "a permissible reading" of the Clause. Ibid. Suffice it to say that a respectable argument may be made that the pre-Smith law comes closer to fulfilling the language of the Free Exercise Clause than the rule Smith announced. "[T]he Free Exercise Clause ... , by its terms, gives special protection to the exercise of religion," Thomas, 450 U. S., at 713, specifying an activity and then flatly protecting it against government prohibition. The Clause draws no distinction between laws whose object is to prohibit religious exercise and laws with that effect, on its face seemingly applying to both. Nor did Smith consider the original meaning of the Free Exercise Clause, though overlooking the opportunity was no unique transgression. Save in a handful of passing remarks, the Court has not explored the history of the Clause since its early attempts in 1879 and 1890, see Reynolds v. United States, 98 U. S., at 162-166, and Davis v. Beason, 133 U. S. 333 ,342 (1890), attempts that recent scholarship makes clear were incomplete. See generally McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 575 103 Harv. L. Rev. 1409 (1990).6 The curious absence of history from our free-exercise decisions creates a stark contrast with our cases under the Establishment Clause, where historical analysis has been so prominent.7 This is not the place to explore the history that a century of free-exercise opinions have overlooked, and it is enough to note that, when the opportunity to reexamine Smith presents itself, we may consider recent scholarship raising serious questions about the Smith rule's consonance with the original understanding and purpose of the Free Exercise Clause. See McConnell, The Origins and Historical Understanding of Free Exercise of Religion, supra; Durham, Religious Liberty and the Call of Conscience, 42 DePaul L. Rev. 71, 79-85 (1992); see also Office of Legal Policy, U. S. Dept. of Justice, Report to the Attorney General, Religious Liberty under the Free Exercise Clause 38-42 (1986) (predating Smith). There appears to be a strong argument from the 6 Reynolds denied the free-exercise claim of a Mormon convicted of polygamy, and Davis v. Beason upheld against a free-exercise challenge a law denying the right to vote or hold public office to members of organizations that practice or encourage polygamy. Exactly what the two cases took from the Free Exercise Clause's origins is unclear. The cases are open to the reading that the Clause sometimes protects religious conduct from enforcement of generally applicable laws, see supra, at 569 (citing cases); that the Clause never protects religious conduct from the enforcement of generally applicable laws, see Smith, 494 U. S., at 879; or that the Clause does not protect religious conduct at all, see Yoder, 406 U. S., at 247 (Douglas, J., dissenting in part); McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1488, and n. 404 (1990). 7See Engel v. Vitale, 370 U. S. 421 , 425-436 (1962); McGowan v. Maryland, 366 U. S. 420 , 431-443 (1961); Everson v. Board of Ed. of Ewing, 330 U. S. 1 , 8-16 (1947); see also Lee v. Weisman, 505 U. S. 577 , 612-616, 622626 (1992) (SOUTER, J., concurring); Wallace v. Jaffree, 472 U. S. 38 , 91-107 (1985) (REHNQUIST, J., dissenting); School Dist. of Abington v. Schempp, 374 U. S. 203 , 232-239 (1963) (Brennan, J., concurring); McGowan v. Maryland, supra, at 459-495 (Frankfurter, J., concurring); Everson, supra, at 31-43 (Rutledge, J., dissenting). 576 576 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH Opinion of SOUTER, J. Clause's development in the First Congress, from its origins in the post-Revolution state constitutions and pre-Revolution colonial charters, and from the philosophy of rights to which the Framers adhered, that the Clause was originally understood to preserve a right to engage in activities necessary to fulfill one's duty to one's God, unless those activities threatened the rights of others or the serious needs of the State. If, as this scholarship suggests, the Free Exercise Clause's original "purpose [was] to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority," School Dist. of Abington v. Schempp, 374 U. S., at 223, then there would be powerful reason to interpret the Clause to accord with its natural reading, as applying to all laws prohibiting religious exercise in fact, not just those aimed at its prohibition, and to hold the neutrality needed to implement such a purpose to be the substantive neutrality of our pre-Smith cases, not the formal neutrality sufficient for constitutionality under Smith. s 8 The Court today observes that "historical instances of religious persecution and intolerance ... gave concern to those who drafted the Free Exercise Clause." Ante, at 532 (internal quotation marks and citations omitted). That is no doubt true, and of course it supports the proposition for which it was summoned, that the Free Exercise Clause forbids religious persecution. But the Court's remark merits this observation: the fact that the Framers were concerned about victims of religious persecution by no means demonstrates that the Framers intended the Free Exercise Clause to forbid only persecution, the inference the Smith rule requires. On the contrary, the eradication of persecution would mean precious little to a member of a formerly persecuted sect who was nevertheless prevented from practicing his religion by the enforcement of "neutral, generally applicable" laws. If what drove the Framers was a desire to protect an activity they deemed special, and if "the [Framers] were well aware of potential conflicts between religious conviction and social duties," A. Adams & C. Emmerich, A Nation Dedicated to Religious Liberty 61 (1990), they may well have hoped to bar not only prohibitions of religious exercise fueled by the hostility of the majority, but prohibitions flowing from the indifference or ignorance of the majority as well. 577 The scholarship on the original understanding of the Free Exercise Clause is, to be sure, not uniform. See, e. g., Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. L. Rev. 915 (1992); Bradley, Beguiled: Free Exercise Exemptions and the Siren Song of Liberalism, 20 Hofstra L. Rev. 245 (1991). And there are differences of opinion as to the weight appropriately accorded original meaning. But whether or not one considers the original designs of the Clause binding, the interpretive significance of those designs surely ranks in the hierarchy of issues to be explored in resolving the tension inherent in free-exercise law as it stands today. III The extent to which the Free Exercise Clause requires government to refrain from impeding religious exercise defines nothing less than the respective relationships in our constitutional democracy of the individual to government and to God. "Neutral, generally applicable" laws, drafted as they are from the perspective of the nonadherent, have the unavoidable potential of putting the believer to a choice between God and government. Our cases now present competing answers to the question when government, while pursuing secular ends, may compel disobedience to what one believes religion commands. The case before us is rightly decided without resolving the existing tension, which remains for another day when it may be squarely faced. JUSTICE BLACKMUN, with whom JUSTICE O'CONNOR joins, concurring in the judgment. The Court holds today that the city of Hialeah violated the First and Fourteenth Amendments when it passed a set of restrictive ordinances explicitly directed at petitioners' religious practice. With this holding I agree. I write separately to emphasize that the First Amendment's protection of religion extends beyond those rare occasions on which the government explicitly targets religion (or a particular reli- 578 578 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH BLACKMUN, J., concurring in judgment gion) for disfavored treatment, as is done in this case. In my view, a statute that burdens the free exercise of religion "may stand only if the law in general, and the State's refusal to allow a religious exemption in particular, are justified by a compelling interest that cannot be served by less restrictive means." Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 , 907 (1990) (dissenting opinion). The Court, however, applies a different test. It applies the test announced in Smith, under which "a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice." Ante, at 531. I continue to believe that Smith was wrongly decided, because it ignored the value of religious freedom as an affirmative individual liberty and treated the Free Exercise Clause as no more than an antidiscrimination principle. See 494 U. S., at 908-909. Thus, while I agree with the result the Court reaches in this case, I arrive at that result by a different route. When the State enacts legislation that intentionally or unintentionally places a burden upon religiously motivated practice, it must justify that burden by "showing that it is the least restrictive means of achieving some compelling state interest." Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 , 718 (1981). See also Wisconsin v. Yoder, 406 U. S. 205 , 215 (1972). A State may no more create an underinclusive statute, one that fails truly to promote its purported compelling interest, than it may create an overinclusive statute, one that encompasses more protected conduct than necessary to achieve its goal. In the latter circumstance, the broad scope of the statute is unnecessary to serve the interest, and the statute fails for that reason. In the former situation, the fact that allegedly harmful conduct falls outside the statute's scope belies a governmental assertion that it has genuinely pursued an interest "of the highest order." Ibid. If the State's goal is important enough to prohibit religiously motivated activity, it 579 will not and must not stop at religiously motivated activity. Cf. Zablocki v. Redhail, 434 U. S. 374 , 390 (1978) (invalidating certain restrictions on marriage as "grossly underinclusive with respect to [their] purpose"); Supreme Court of N. H. v. Piper, 470 U. S. 274 , 285, n. 19 (1985) (a rule excluding nonresidents from the bar of New Hampshire "is underinclusive ... because it permits lawyers who move away from the State to retain their membership in the bar"). In this case, the ordinances at issue are both overinclusive and underinclusive in relation to the state interests they purportedly serve. They are overinclusive, as the majority correctly explains, because the "legitimate governmental interests in protecting the public health and preventing cruelty to animals could be addressed by restrictions stopping far short of a fiat prohibition of all Santeria sacrificial practice." Ante, at 538. They are underinclusive as well, because "[d]espite the city's proffered interest in preventing cruelty to animals, the ordinances are drafted with care to forbid few killings but those occasioned by religious sacrifice." Ante, at 543. Moreover, the "ordinances are also underinclusive with regard to the city's interest in public health .... " Ante, at 544. When a law discriminates against religion as such, as do the ordinances in this case, it automatically will fail strict scrutiny under Sherbert v. Verner, 374 U. S. 398 , 402-403, 407 (1963) (holding that governmental regulation that imposes a burden upon religious practice must be narrowly tailored to advance a compelling state interest). This is true because a law that targets religious practice for disfavored treatment both burdens the free exercise of religion and, by definition, is not precisely tailored to a compelling governmental interest. Thus, unlike the majority, I do not believe that "[a] law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny." Ante, at 546. In my view, regulation that targets religion in this way, ipso facto, fails strict scrutiny. It is for this reason 580 580 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH BLACKMUN, J., concurring in judgment that a statute that explicitly restricts religious practices violates the First Amendment. Otherwise, however, "[t]he First Amendment ... does not distinguish between laws that are generally applicable and laws that target particular religious practices." Smith, 494 U. S., at 894 (opinion concurring in judgment). It is only in the rare case that a state or local legislature will enact a law directly burdening religious practice as such. See ibid. Because respondent here does single out religion in this way, the present case is an easy one to decide. A harder case would be presented if petitioners were requesting an exemption from a generally applicable anticruelty law. The result in the case before the Court today, and the fact that every Member of the Court concurs in that result, does not necessarily reflect this Court's views of the strength of a State's interest in prohibiting cruelty to animals. This case does not present, and I therefore decline to reach, the question whether the Free Exercise Clause would require a religious exemption from a law that sincerely pursued the goal of protecting animals from cruel treatment. The number of organizations that have filed amicus briefs on behalf of this interest, * however, demonstrates that it is not a concern to be treated lightly. *See Brief for Washington Humane Society in support of Respondent; Brieffor People for the Ethical Treatment of Animals, New Jersey Animal Rights Alliance, and Foundation for Animal Rights Advocacy in support of Respondent; Brief for Humane Society of the United States, American Humane Association, American Society for the Prevention of Cruelty to Animals, Animal Legal Defense Fund, Inc., and Massachusetts Society for the Prevention of Cruelty to Animals in support of Respondent; Brief for the International Society for Animal Rights, Citizens for Animals, Farm Animal Reform Movement, In Defense of Animals, Performing Animal Welfare Society, and Student Action Corps for Animals in support of Respondent; and Brief for the Institute for Animal Rights Law, American Fund for Alternatives to Animal Research, Farm Sanctuary, Jews for Animal Rights, United Animal Nations, and United Poultry Concerns in support of Respondent.

The Supreme Court ruled in favor of the Church of the Lukumi Babalu Aye, Inc., finding that the city of Hialeah's ordinances prohibiting animal sacrifice for religious purposes violated the Free Exercise Clause of the First Amendment. The court held that laws burdening religious practice that are not neutral or generally applicable must be narrowly tailored to advance a compelling state interest. In this case, the city's ordinances specifically targeted religious practice and were not precisely tailored to address concerns about public health and animal cruelty. The court also noted that any interference with religious practice must be more than hypothetical and must unduly interfere with fulfillment of governmental interests.

Religion

Santa Fe Independent School District v. Doe

https://supreme.justia.com/cases/federal/us/530/290/

OCTOBER TERM, 1999 Syllabus SANTA FE INDEPENDENT SCHOOL DISTRICT v. DOE, INDIVIDUALLY AND AS NEXT FRIEND FOR HER MINOR CHILDREN, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 99-62. Argued March 29, 2000-Decided June 19,2000 Prior to 1995, a student elected as Santa Fe High School's student council chaplain delivered a prayer over the public address system before each home varsity football game. Respondents, Mormon and Catholic students or alumni and their mothers, filed a suit challenging this practice and others under the Establishment Clause of the First Amendment. While the suit was pending, petitioner school district (District) adopted a different policy, which authorizes two student elections, the first to determine whether "invocations" should be delivered at games, and the second to select the spokesperson to deliver them. After the students held elections authorizing such prayers and selecting a spokesperson, the District Court entered an order modifying the policy to permit only nonsectarian, nonproselytizing prayer. The Fifth Circuit held that, even as modified by the District Court, the football prayer policy was invalid. Held: The District's policy permitting student-led, student-initiated prayer at football games violates the Establishment Clause. Pp.301-317. (a) The Court's analysis is guided by the principles endorsed in Lee v. Weisman, 505 U. S. 577 . There, in concluding that a prayer delivered by a rabbi at a graduation ceremony violated the Establishment Clause, the Court held that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way that establishes a state religion or religious faith, or tends to do so, id., at 587. The District argues unpersuasively that these principles are inapplicable because the policy's messages are private student speech, not public speech. The delivery of a message such as the invocation here-on school property, at school-sponsored events, over the school's public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer-is not properly characterized as "private" speech. Although the District relies heavily on this Court's cases addressing public forums, e. g., Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 , it is clear that the District's 291 pregame ceremony is not the type of forum discussed in such cases. The District simply does not evince an intent to open its ceremony to indiscriminate use by the student body generally, see, e. g., Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260 , 270, but, rather, allows only one student, the same student for the entire season, to give the invocation, which is subject to particular regulations that confine the content and topic of the student's message. The majoritarian process implemented by the District guarantees, by definition, that minority candidates will never prevail and that their views will be effectively silenced. See Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217 , 235. Moreover, the District has failed to divorce itself from the invocations' religious content. The policy involves both perceived and actual endorsement of religion, see Lee, 505 U. S., at 590, declaring that the student elections take place because the District "has chosen to permit" student-delivered invocations, that the invocation "shall" be conducted "by the high school student council" "[u]pon advice and direction of the high school principal," and that it must be consistent with the policy's goals, which include "solemniz[ing] the event." A religious message is the most obvious method of solemnizing an event. Indeed, the only type of message expressly endorsed in the policy is an "invocation," a term which primarily describes an appeal for divine assistance and, as used in the past at Santa Fe High School, has always entailed a focused religious message. A conclusion that the message is not "private speech" is also established by factors beyond the policy's text, including the official setting in which the invocation is delivered, see, e. g., Wallace v. Jaffree, 472 U. S. 38 , 73, 76, by the policy's sham secular purposes, see id., at 75, and by its history, which indicates that the District intended to preserve its long-sanctioned practice of prayer before football games, see Lee, 505 U. S., at 596. Pp. 301-310. (b) The Court rejects the District's argument that its policy is distinguishable from the graduation prayer in Lee because it does not coerce students to participate in religious observances. The first part of this argument-that there is no impermissible government coercion because the pregame messages are the product of student choices-fails for the reasons discussed above explaining why the mechanism of the dual elections and student speaker do not turn public speech into private speech. The issue resolved in the first election was whether a student would deliver prayer at varsity football games, and the controversy in this case demonstrates that the students' views are not unanimous on that issue. One of the Establishment Clause's purposes is to remove debate over this kind of issue from governmental supervision or control. See Lee, 505 U. S., at 589. Although the ultimate choice of student speaker is attributable to the students, the District's de- 292 cision to hold the constitutionally problematic election is clearly a choice attributable to the State, id., at 587. The second part of the District's argument-that there is no coercion here because attendance at an extracurricular event, unlike a graduation ceremony, is voluntary-is unpersuasive. For some students, such as cheerleaders, members of the band, and the team members themselves, attendance at football games is mandated, sometimes for class credit. The District's argument also minimizes the immense social pressure, or truly genuine desire, felt by many students to be involved in the extracurricular event that is American high school football. Id., at 593. The Constitution demands that schools not force on students the difficult choice between attending these games and avoiding personally offensive religious rituals. See id., at 596. Pp. 310-313. (c) The Court also rejects the District's argument that respondents' facial challenge to the policy necessarily must fail because it is premature: No invocation has as yet been delivered under the policy. This argument assumes that the Court is concerned only with the serious constitutional injury that occurs when a student is forced to participate in an act of religious worship because she chooses to attend a school event. But the Constitution also requires that the Court keep in mind the myriad, subtle ways in which Establishment Clause values can be eroded, Lynch v. Donnelly, 465 U. S. 668 , 694, and guard against other different, yet equally important, constitutional injuries. One is the mere passage by the District of a policy that has the purpose and perception of government establishment of religion. See, e. g., Bowen v. Kendrick, 487 U. S. 589 , 602; Lemon v. Kurtzman, 403 U. S. 602 , 612. As discussed above, the policy's text and the circumstances surrounding its enactment reveal that it has such a purpose. Another constitutional violation warranting the Court's attention is the District's implementation of an electoral process that subjects the issue of prayer to a majoritarian vote. Through its election scheme, the District has established a governmental mechanism that turns the school into a forum for religious debate and empowers the student body majority to subject students of minority views to constitutionally improper messages. The award of that power alone is not acceptable. Cf. Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217 . For the foregoing reasons, the policy is invalid on its face. Pp. 313-317. 168 F.3d 806 , affirmed. STEVENS, J., delivered the opinion of the Court, in which O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, 293 C. J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined, post, p. 318. Jay Alan Sekulow argued the cause for petitioner. With him on the briefs were Colby M. May, James M. Henderson, Sr., Mark N. Troobnick, Walter M. Weber, Paul D. Clement, John G. Stepanovich, Thomas P. Monaghan, Stuart J. Roth, John P. Tuskey, Joel H. Thornton, David A. Cortman, and Kelly Shackelford. John Cornyn, Attorney General of Texas, argued the cause for the State of Texas et al. as amici curiae urging reversal. With him on the brief were Andy Tay lor, First Assistant Attorney General, Linda S. Eads, Deputy Attorney General, Gregory S. Coleman, Solicitor General, Julie Caruthers Parsley, Deputy Solicitor General, and Meredith B. Parenti, Assistant Solicitor General. Anthony P. Griffin argued the cause for respondents. With him on the briefs were Douglas Laycock and Steven R. Shapiro. * *Briefs of amici curiae urging reversal were filed for the Christian Legal Society by Steffen N Johnson, Stephen M. Shapiro, Michael W McConnell, and Kimberlee W Colby; for Liberty Counsel et al. by Mathew D. Staver and Jerry Falwell, Jr.; for the Northstar Legal Center by Jordan W Lorence; for Spearman Independent School District et al. by Roger D. Hepworth; for the Texas Association of School Boards Legal Assistance Fund by David M. Feldman and Myra C. Schexnayder; for the Texas Justice Foundation et al. by Linda L. Schlueter; for Senator James M. Inhofe et al. by Barry C. Hodge; for Congressman Steve Largent et al. by Brett M. Kavanaugh; for Marian Ward et al. by Kelly J. Coghlan; and for Texas Public School Students et al. by John L. Carter. Briefs of amici curiae urging affirmance were filed for the American Jewish Congress et al. by Walter E. Dellinger and Marc D. Stern; and for the Baptist Joint Committee on Public Affairs et al. by Derek H. Davis and Melissa Rogers. Briefs of amici curiae were filed for the Rutherford Institute by John W Whitehead, Steven H. Aden, and James A. Hayes, Jr.; and for the Student Press Law Center by Richard A. Simpson and S. Mark Goodman. 294 JUSTICE STEVENS delivered the opinion of the Court. Prior to 1995, the Santa Fe High School student who occupied the school's elective office of student council chaplain delivered a prayer over the public address system before each varsity football game for the entire season. This practice, along with others, was challenged in District Court as a violation of the Establishment Clause of the First Amendment. While these proceedings were pending in the District Court, the school district adopted a different policy that permits, but does not require, prayer initiated and led by a student at all home games. The District Court entered an order modifying that policy to permit only nonsectarian, nonproselytizing prayer. The Court of Appeals held that, even as modified by the District Court, the football prayer policy was invalid. We granted the school district's petition for certiorari to review that holding. I The Santa Fe Independent School District (District) is a political subdivision of the State of Texas, responsible for the education of more than 4,000 students in a small community in the southern part of the State. The District includes the Santa Fe High School, two primary schools, an intermediate school and the junior high school. Respondents are two sets of current or former students and their respective mothers. One family is Mormon and the other is Catholic. The District Court permitted respondents (Does) to litigate anonymously to protect them from intimidation or harassment.1 1 A decision, the Fifth Circuit Court of Appeals noted, that many District officials "apparently neither agreed with nor particularly respected." 168 F.3d 806 , 809, n. 1 (CA5 1999). About a month after the complaint was filed, the District Court entered an order that provided, in part: "[A]ny further attempt on the part of District or school administration, officials, counsellors, teachers, employees or servants of the School District, parents, students or anyone else, overtly or covertly to ferret out the identities of the Plaintiffs in this cause, by means of bogus petitions, questionnaires, individual interrogation, or downright 'snooping', will 295 Respondents commenced this action in April 1995 and moved for a temporary restraining order to prevent the District from violating the Establishment Clause at the imminent graduation exercises. In their complaint the Does alleged that the District had engaged in several proselytizing practices, such as promoting attendance at a Baptist revival meeting, encouraging membership in religious clubs, chastising children who held minority religious beliefs, and distributing Gideon Bibles on school premises. They also alleged that the District allowed students to read Christian invocations and benedictions from the stage at graduation ceremonies,2 and to deliver overtly Christian prayers over the public address system at home football games. On May 10, 1995, the District Court entered an interim order addressing a number of different issues.3 With re- cease immediately. ANYONE TAKING ANY ACTION ON SCHOOL PROPERTY, DURING SCHOOL HOURS, OR WITH SCHOOL RESOURCES OR APPROVAL FOR PURPOSES OF ATTEMPTING TO ELICIT THE NAMES OR IDENTITIES OF THE PLAINTIFFS IN THIS CAUSE OF ACTION, BY OR ON BEHALF OF ANY OF THESE INDIVIDUALS, WILL FACE THE HARSHEST POSSIBLE CONTEMPT SANCTIONS FROM THIS COURT, AND MAY ADDITIONALLY FACE CRIMINAL LIABILITY. The Court wants these proceedings addressed on their merits, and not on the basis of intimidation or harassment of the participants on either side." App. 34-35. 2 At the 1994 graduation ceremony the senior class president delivered this invocation: "Please bow your heads. "Dear heavenly Father, thank you for allowing us to gather here safely tonight. We thank you for the wonderful year you have allowed us to spend together as students of Santa Fe. We thank you for our teachers who have devoted many hours to each of us. Thank you, Lord, for our parents and may each one receive the special blessing. We pray also for a blessing and guidance as each student moves forward in the future. Lord, bless this ceremony and give us all a safe journey home. In Jesus' name we pray." Id., at 19. 3 For example, it prohibited school officials from endorsing or participating in the baccalaureate ceremony sponsored by the Santa Fe Ministerial Alliance, and ordered the District to establish policies to deal with 296 spect to the impending graduation, the order provided that "non-denominational prayer" consisting of "an invocation and/or benediction" could be presented by a senior student or students selected by members of the graduating class. The text of the prayer was to be determined by the students, without scrutiny or preapproval by school officials. References to particular religious figures "such as Mohammed, Jesus, Buddha, or the like" would be permitted "as long as the general thrust of the prayer is non-proselytizing." App.32. In response to that portion of the order, the District adopted a series of policies over several months dealing with prayer at school functions. The policies enacted in May and July for graduation ceremonies provided the format for the August and October policies for football games. The May policy provided: "'The board has chosen to permit the graduating senior class, with the advice and counsel of the senior class principal or designee, to elect by secret ballot to choose whether an invocation and benediction shall be part of the graduation exercise. If so chosen the class shall elect by secret ballot, from a list of student volunteers, students to deliver nonsectarian, nonproselytizing invocations and benedictions for the purpose of solemnizing "manifest First Amendment infractions of teachers, counsellors, or other District or school officials or personnel, such as ridiculing, berating or holding up for inappropriate scrutiny or examination the beliefs of any individual students. Similarly, the School District will establish or clarify existing procedures for excluding overt or covert sectarian and proselytizing religious teaching, such as the use of blatantly denominational religious terms in spelling lessons, denominational religious songs and poems in English or choir classes, denominational religious stories and parables in grammar lessons and the like, while at the same time allowing for frank and open discussion of moral, religious, and societal views and beliefs, which are non-denominational and non-judgmental." Id., at 34. 297 their graduation ceremonies.'" 168 F.3d 806 , 811 (CAS 1999) (emphasis deleted). The parties stipulated that after this policy was adopted, "the senior class held an election to determine whether to have an invocation and benediction at the commencement [and that the] class voted, by secret ballot, to include prayer at the high school graduation." App. 52. In a second vote the class elected two seniors to deliver the invocation and benediction.4 In July, the District enacted another policy eliminating the requirement that invocations and benedictions be "nonsectarian and nonproselytising," but also providing that if the District were to be enjoined from enforcing that policy, the May policy would automatically become effective. The August policy, which was titled "Prayer at Football Games," was similar to the July policy for graduations. It also authorized two student elections, the first to determine whether "invocations" should be delivered, and the second to select the spokesperson to deliver them. Like the July policy, it contained two parts, an initial statement that omitted any requirement that the content of the invocation be "nonsectarian and nonproselytising," and a fallback provision that automatically added that limitation if the preferred policy should be enjoined. On August 31, 1995, according to the parties' stipulation: "[T]he district's high school students voted to determine whether a student would deliver prayer at varsity football games .... The students chose to allow a 4 The student giving the invocation thanked the Lord for keeping the class safe through 12 years of school and for gracing their lives with two special people and closed: "Lord, we ask that You keep Your hand upon us during this ceremony and to help us keep You in our hearts through the rest of our lives. In God's name we pray. Amen." Id., at 53. The student benediction was similar in content and closed: "Lord, we ask for Your protection as we depart to our next destination and watch over us as we go our separate ways. Grant each of us a safe trip and keep us secure throughout the night. In Your name we pray. Amen." Id., at 54. 298 student to say a prayer at football games." Id., at 65. A week later, in a separate election, they selected a student "to deliver the prayer at varsity football games." Id., at 66. The final policy (October policy) is essentially the same as the August policy, though it omits the word "prayer" from its title, and refers to "messages" and "statements" as well as "invocations." 5 It is the validity of that policy that is before us.6 5 Despite these changes, the school did not conduct another election, under the October policy, to supersede the results of the August policy election. 6 It provides: "STUDENT ACTIVITIES: "PRE-GAME CEREMONIES AT FOOTBALL GAMES "The board has chosen to permit students to deliver a brief invocation and/or message to be delivered during the pre-game ceremonies of home varsity football games to solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition. "Upon advice and direction of the high school principal, each spring, the high school student council shall conduct an election, by the high school student body, by secret ballot, to determine whether such a statement or invocation will be a part of the pre-game ceremonies and if so, shall elect a student, from a list of student volunteers, to deliver the statement or invocation. The student volunteer who is selected by his or her classmates may decide what message and/or invocation to deliver, consistent with the goals and purposes of this policy. "If the District is enjoined by a court order from the enforcement of this policy, then and only then will the following policy automatically become the applicable policy of the school district. "The board has chosen to permit students to deliver a brief invocation and/or message to be delivered during the pre-game ceremonies of home varsity football games to solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition. "Upon advice and direction of the high school principal, each spring, the high school student council shall conduct an election, by the high school student body, by secret ballot, to determine whether such a mes- 299 The District Court did enter an order precluding enforcement of the first, open-ended policy. Relying on our decision in Lee v. Weisman, 505 U. S. 577 (1992), it held that the school's "action must not 'coerce anyone to support or participate in' a religious exercise." App. to Pet. for Cert. E7. Applying that test, it concluded that the graduation prayers appealed "to distinctively Christian beliefs," 7 and that delivering a prayer "over the school's public address system prior to each football and baseball game coerces student participation in religious events."8 Both parties appealed, the District contending that the enjoined portion of the October policy was permissible and the Does contending that both alternatives violated the Establishment Clause. The Court of Appeals majority agreed with the Does. The decision of the Court of Appeals followed Fifth Circuit precedent that had announced two rules. In Jones v. Clear Creek Independent School Dist., 977 F.2d 963 (1992), that court held that student-led prayer that was approved by a vote of the students and was nonsectarian and nonproselytizing was permissible at high school graduation ceremonies. On the other hand, in later cases the Fifth Circuit made it clear that the Clear Creek rule applied only to high school sage or invocation will be a part of the pre-game ceremonies and if so, shall elect a student, from a list of student volunteers, to deliver the statement or invocation. The student volunteer who is selected by his or her classmates may decide what statement or invocation to deliver, consistent with the goals and purposes of this policy. Any message and/or invocation delivered by a student must be nonsectarian and nonproselytizing." Id., at 104-105. 7 "The graduation prayers at issue in the instant case, in contrast, are infused with explicit references to Jesus Christ and otherwise appeal to distinctively Christian beliefs. The Court accordingly finds that use of these prayers during graduation ceremonies, considered in light of the overall manner in which they were delivered, violated the Establishment Clause." App. to Pet. for Cert. E8. 8Id., at E8-E9. 300 graduations and that school-encouraged prayer was constitutionally impermissible at school-related sporting events. Thus, in Doe v. Duncanville Independent School Dist., 70 F. 3d 402 (1995), it had described a high school graduation as "a significant, once in-a-lifetime event" to be contrasted with athletic events in "a setting that is far less solemn and extraordinary." Id., at 406-407.9 In its opinion in this case, the Court of Appeals explained: "The controlling feature here is the same as in Duncanville: The prayers are to be delivered at football games-hardly the sober type of annual event that can be appropriately solemnized with prayer. The distinction to which [the District] points is simply one without difference. Regardless of whether the prayers are selected by vote or spontaneously initiated at these frequently-recurring, informal, school-sponsored events, school officials are present and have the authority to stop the prayers. Thus, as we indicated in Duncanville, our decision in Clear Creek II hinged on the singular context and singularly serious nature of a graduation ceremony. Outside that nurturing context, a Clear Creek Prayer Policy cannot survive. We therefore reverse the district court's holding that [the District's] alternative Clear Creek Prayer Policy can be extended to football games, irrespective of the presence of the nonsectarian, nonproselytizing restrictions." 168 F. 3d, at 823. The dissenting judge rejected the majority's distinction between graduation ceremonies and football games. In his 9 Because the dissent overlooks this case, it incorrectly assumes that a "prayer-only policy" at football games was permissible in the Fifth Circuit. See post, at 323 (opinion of REHNQUIST, C. J.). 301 opinion the District's October policy created a limited public forum that had a secular purpose 10 and provided neutral accommodation of noncoerced, private, religious speechY We granted the District's petition for certiorari, limited to the following question: "Whether petitioner's policy permitting student-led, student-initiated prayer at football games violates the Establishment Clause." 528 U. S. 1002 (1999). We conclude, as did the Court of Appeals, that it does. II The first Clause in the First Amendment to the Federal Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The Fourteenth Amendment imposes those substantive limitations on the legislative power of the States and their political subdivisions. Wallace v. Jaffree, 472 U. S. 38 , 49-50 (1985). In Lee v. Weisman, 505 U. S. 577 (1992), we held that a prayer delivered by a rabbi at a middle school graduation ceremony violated that Clause. Although this case involves student prayer at a different 10 "There are in fact several secular reasons for allowing a brief, serious message before football games-some of which [the District] has listed in its policy. At sporting events, messages and/or invocations can promote, among other things, honest and fair play, clean competition, individual challenge to be one's best, importance of team work, and many more goals that the majority could conceive would it only pause to do so. "Having again relinquished all editorial control, [the District] has created a limited public forum for the students to give brief statements or prayers concerning the value of those goals and the methods for achieving them." 168 F. 3d, at 835. 11 "The majority fails to realize that what is at issue in this facial chal lenge to this school policy is the neutral accommodation of non-coerced, private, religious speech, which allows students, selected by students, to express their personal viewpoints. The state is not involved. The school board has neither scripted, supervised, endorsed, suggested, nor edited these personal viewpoints. Yet the majority imposes a judicial curse upon sectarian religious speech." Id., at 836. 302 type of school function, our analysis is properly guided by the principles that we endorsed in Lee. As we held in that case: "The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause. It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which 'establishes a [state] religion or religious faith, or tends to do SO.'" Id., at 587 (citations omitted) (quoting Lynch v. Donnelly, 465 U. S. 668 , 678 (1984)). In this case the District first argues that this principle is inapplicable to its October policy because the messages are private student speech, not public speech. It reminds us that "there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226 , 250 (1990) (opinion of O'CONNOR, J.). We certainly agree with that distinction, but we are not persuaded that the pregame invocations should be regarded as "private speech." These invocations are authorized by a government policy and take place on government property at governmentsponsored school-related events. Of course, not every message delivered under such circumstances is the government's own. We have held, for example, that an individual's contribution to a government-created forum was not government speech. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995). Although the District relies heavily on Rosenberger and similar cases involving such 303 forums,12 it is clear that the pregame ceremony is not the type of forum discussed in those cases.13 The Santa Fe school officials simply do not "evince either 'by policy or by practice,' any intent to open the [pregame ceremony] to 'indiscriminate use,' ... by the student body generally." Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260 , 270 (1988) (quoting Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S. 37 , 47 (1983)). Rather, the school allows only one student, the same student for the entire season, to give the invocation. The statement or invocation, moreover, is subject to particular regulations that confine the content and topic of the student's message, see infra, at 306307, 309. By comparison, in Perry we rejected a claim that the school had created a limited public forum in its school mail system despite the fact that it had allowed far more speakers to address a much broader range of topics than the policy at issue here.14 As we concluded in Perry, "selective access does not transform government property into a public forum." 460 U. S., at 47. 12 See, e. g., Brief for Petitioner 44-48, citing Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995) (limited public forum); Widmar v. Vincent, 454 U. S. 263 (1981) (limited public forum); Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753 (1995) (traditional public forum); Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993) (limited public forum). Although the District relies on these public forum cases, it does not actually argue that the pregame ceremony constitutes such a forum. 13 A conclusion that the District had created a public forum would help shed light on whether the resulting speech is public or private, but we also note that we have never held the mere creation of a public forum shields the government entity from scrutiny under the Establishment Clause. See, e. g., Pinette, 515 U. S., at 772 (O'CONNOR, J., concurring in part and concurring in judgment) ("I see no necessity to carve out ... an exception to the endorsement test for the public forum context"). 14 The school's internal mail system in Perry was open to various private organizations such as "[l]ocal parochial schools, church groups, YMCA's, and Cub Scout units." 460 U. S., at 39, n. 2. 304 Granting only one student access to the stage at a time does not, of course, necessarily preclude a finding that a school has created a limited public forum. Here, however, Santa Fe's student election system ensures that only those messages deemed "appropriate" under the District's policy may be delivered. That is, the majoritarian process implemented by the District guarantees, by definition, that minority candidates will never prevail and that their views will be effectively silenced. Recently, in Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217 (2000), we explained why student elections that determine, by majority vote, which expressive activities shall receive or not receive school benefits are constitutionally problematic: "To the extent the referendum substitutes majority determinations for viewpoint neutrality it would undermine the constitutional protection the program requires. The whole theory of viewpoint neutrality is that minority views are treated with the same respect as are majority views. Access to a public forum, for instance, does not depend upon majoritarian consent. That principle is controlling here." Id., at 235. Like the student referendum for funding in Southworth, this student election does nothing to protect minority views but rather places the students who hold such views at the mercy of the majority.15 Because "fundamental rights may not be 15 If instead of a choice between an invocation and no pregame message, the first election determined whether a political speech should be made, and the second election determined whether the speaker should be a Democrat or a Republican, it would be rather clear that the public address system was being used to deliver a partisan message reflecting the viewpoint of the majority rather than a random statement by a private individual. The fact that the District's policy provides for the election of the speaker only after the majority has voted on her message identifies an obvious distinction between this case and the typical election of a "stu- 305 submitted to vote; they depend on the outcome of no elections," West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 , 638 (1943), the District's elections are insufficient safeguards of diverse student speech. In Lee, the school district made the related argument that its policy of endorsing only "civic or nonsectarian" prayer was acceptable because it minimized the intrusion on the audience as a whole. We rejected that claim by explaining that such a majoritarian policy "does not lessen the offense or isolation to the objectors. At best it narrows their number, at worst increases their sense of isolation and affront." 505 U. S., at 594. Similarly, while Santa Fe's majoritarian election might ensure that most of the students are represented, it does nothing to protect the minority; indeed, it likely serves to intensify their offense. Moreover, the District has failed to divorce itself from the religious content in the invocations. It has not succeeded in doing so, either by claiming that its policy is "'one of neutrality rather than endorsement'" 16 or by characterizing the individual student as the "circuit-breaker" 17 in the process. Contrary to the District's repeated assertions that it has adopted a "hands-off" approach to the pregame invocation, the realities of the situation plainly reveal that its policy involves both perceived and actual endorsement of religion. In this case, as we found in Lee, the "degree of school involvement" makes it clear that the pregame prayers bear "the imprint of the State and thus put school-age children who objected in an untenable position." Id., at 590. The District has attempted to disentangle itself from the religious messages by developing the two-step student dent body president, or even a newly elected prom king or queen." Post, at 321. 16 Brief for Petitioner 19 (quoting Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226 , 248 (1990) (plurality opinion)). 17Tr. of Oral Arg. 7. 306 election process. The text of the October policy, however, exposes the extent of the school's entanglement. The elections take place at all only because the school "board has chosen to permit students to deliver a brief invocation and/or message." App. 104 (emphasis added). The elections thus "shall" be conducted "by the high school student council" and "[u]pon advice and direction of the high school principal." Id., at 104-105. The decision whether to deliver a message is first made by majority vote of the entire student body, followed by a choice of the speaker in a separate, similar majority election. Even though the particular words used by the speaker are not determined by those votes, the policy mandates that the "statement or invocation" be "consistent with the goals and purposes of this policy," which are "to solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition." Ibid. In addition to involving the school in the selection of the speaker, the policy, by its terms, invites and encourages religious messages. The policy itself states that the purpose of the message is "to solemnize the event." A religious message is the most obvious method of solemnizing an event. Moreover, the requirements that the message "promote good sportsmanship" and "establish the appropriate environment for competition" further narrow the types of message deemed appropriate, suggesting that a solemn, yet nonreligious, message, such as commentary on United States foreign policy, would be prohibited.18 Indeed, the only type of message that is expressly endorsed in the text is an "invocation"-a term that primarily describes an appeal for divine 18 THE CHIEF JUSTICE'S hypothetical of the student body president asked by the school to introduce a guest speaker with a biography of her accomplishments, see post, at 325 (dissenting opinion), obviously would pose no problems under the Establishment Clause. 307 assistance.19 In fact, as used in the past at Santa Fe High School, an "invocation" has always entailed a focused religious message. Thus, the expressed purposes of the policy encourage the selection of a religious message, and that is precisely how the students understand the policy. The results of the elections described in the parties' stipulation 20 make it clear that the students understood that the central question before them was whether prayer should be a part of the pregame ceremony.21 We recognize the important role that public worship plays in many communities, as well as the sincere desire to include public prayer as a part of various occasions so as to mark those occasions' significance. But such religious activity in public schools, as elsewhere, must comport with the First Amendment. The actual or perceived endorsement of the message, moreover, is established by factors beyond just the text of the policy. Once the student speaker is selected and the message composed, the invocation is then delivered to a large audience assembled as part of a regularly scheduled, school-sponsored function conducted on school property. The message is broadcast over the school's public address system, which remains subject to the control of school officials. It is fair to assume that the pregame ceremony is 19 See, e. g., Webster's Third New International Dictionary 1190 (1993) (defining "invocation" as "a prayer of entreaty that is usu[ally] a call for the divine presence and is offered at the beginning of a meeting or service of worship"). 20 See supra, at 297-298, and n. 4. 21 Even if the plain language of the October policy were facially neutral, "the Establishment Clause forbids a State to hide behind the application of formally neutral criteria and remain studiously oblivious to the effects of its actions." Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S., at 777 (O'CONNOR, J., concurring in part and concurring in judgment); see also Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 , 534-535 (1993) (making the same point in the Free Exercise Clause context). 308 clothed in the traditional indicia of school sporting events, which generally include not just the team, but also cheerleaders and band members dressed in uniforms sporting the school name and mascot. The school's name is likely written in large print across the field and on banners and flags. The crowd will certainly include many who display the school colors and insignia on their school T-shirts, jackets, or hats and who may also be waving signs displaying the school name. It is in a setting such as this that "[t]he board has chosen to permit" the elected student to rise and give the "statement or invocation." In this context the members of the listening audience must perceive the pregame message as a public expression of the views of the majority of the student body delivered with the approval of the school administration. In cases involving state participation in a religious activity, one of the relevant questions is "whether an objective observer, acquainted with the text, legislative history, and implementation of the statute, would perceive it as a state endorsement of prayer in public schools." Wallace, 472 U. S., at 73, 76 (O'CONNOR, J., concurring in judgment); see also Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753 , 777 (1995) (O'CONNOR, J., concurring in part and concurring in judgment). Regardless of the listener's support for, or objection to, the message, an objective Santa Fe High School student will unquestionably perceive the inevitable pregame prayer as stamped with her school's seal of approval. The text and history of this policy, moreover, reinforce our objective student's perception that the prayer is, in actuality, encouraged by the school. When a governmental entity professes a secular purpose for an arguably religious policy, the government's characterization is, of course, entitled to some deference. But it is nonetheless the duty of the courts to "distinguis[h] a sham secular purpose from a sincere one." Wallace, 472 U. S., at 75 (O'CONNOR, J., concurring in judgment). 309 According to the District, the secular purposes of the policy are to "foste[r] free expression of private persons ... as well [as to] solemniz[e] sporting events, promot[e] good sportsmanship and student safety, and establis[h] an appropriate environment for competition." Brief for Petitioner 14. We note, however, that the District's approval of only one specific kind of message, an "invocation," is not necessary to further any of these purposes. Additionally, the fact that only one student is permitted to give a content-limited message suggests that this policy does little to "foste[r] free expression." Furthermore, regardless of whether one considers a sporting event an appropriate occasion for solemnity, the use of an invocation to foster such solemnity is impermissible when, in actuality, it constitutes prayer sponsored by the school. And it is unclear what type of message would be both appropriately "solemnizing" under the District's policy and yet nonreligious. Most striking to us is the evolution of the current policy from the long-sanctioned office of "Student Chaplain" to the candidly titled "Prayer at Football Games" regulation. This history indicates that the District intended to preserve the practice of prayer before football games. The conclusion that the District viewed the October policy simply as a continuation of the previous policies is dramatically illustrated by the fact that the school did not conduct a new election, pursuant to the current policy, to replace the results of the previous election, which occurred under the former policy. Given these observations, and in light of the school's history of regular delivery of a student-led prayer at athletic events, it is reasonable to infer that the specific purpose of the policy was to preserve a popular "state-sponsored religious practice." Lee, 505 U. S., at 596. School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherants "that they are outsiders, not full members of the political community, and an ac- 310 companying message to adherants that they are insiders, favored members of the political community." Lynch, 465 U. S., at 688 (O'CONNOR, J., concurring). The delivery of such a message-over the school's public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer-is not properly characterized as "private" speech. III The District next argues that its football policy is distinguishable from the graduation prayer in Lee because it does not coerce students to participate in religious observances. Its argument has two parts: first, that there is no impermissible government coercion because the pregame messages are the product of student choices; and second, that there is really no coercion at all because attendance at an extracurricular event, unlike a graduation ceremony, is voluntary. The reasons just discussed explaining why the alleged "circuit-breaker" mechanism of the dual elections and student speaker do not turn public speech into private speech also demonstrate why these mechanisms do not insulate the school from the coercive element of the final message. In fact, this aspect of the District's argument exposes anew the concerns that are created by the majoritarian election system. The parties' stipulation clearly states that the issue resolved in the first election was "whether a student would deliver prayer at varsity football games," App. 65, and the controversy in this case demonstrates that the views of the students are not unanimous on that issue. One of the purposes served by the Establishment Clause is to remove debate over this kind of issue from governmental supervision or control. We explained in Lee that the "preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere." 505 U. S., at 589. The two student elections au- 311 thorized by the policy, coupled with the debates that presumably must precede each, impermissibly invade that private sphere. The election mechanism, when considered in light of the history in which the policy in question evolved, reflects a device the District put in place that determines whether religious messages will be delivered at home football games. The mechanism encourages divisiveness along religious lines in a public school setting, a result at odds with the Establishment Clause. Although it is true that the ultimate choice of student speaker is "attributable to the students," Brief for Petitioner 40, the District's decision to hold the constitutionally problematic election is clearly "a choice attributable to the State," Lee, 505 U. S., at 587. The District further argues that attendance at the commencement ceremonies at issue in Lee "differs dramatically" from attendance at high school football games, which it contends "are of no more than passing interest to many students" and are "decidedly extracurricular," thus dissipating any coercion. Brief for Petitioner 41. Attendance at a high school football game, unlike showing up for class, is certainly not required in order to receive a diploma. Moreover, we may assume that the District is correct in arguing that the informal pressure to attend an athletic event is not as strong as a senior's desire to attend her own graduation ceremony. There are some students, however, such as cheerleaders, members of the band, and, of course, the team members themselves, for whom seasonal commitments mandate their attendance, sometimes for class credit. The District also minimizes the importance to many students of attending and participating in extracurricular activities as part of a complete educational experience. As we noted in Lee, "[l]aw reaches past formalism." 505 U. S., at 595. To assert that high school students do not feel immense social pressure, or have a truly genuine desire, to be involved in the extracurricular event that is American high school football is "formalistic in the extreme." Ibid. We stressed in Lee the 312 obvious observation that "adolescents are often susceptible to pressure from their peers towards conformity, and that the influence is strongest in matters of social convention." Id., at 593. High school home football games are traditional gatherings of a school community; they bring together students and faculty as well as friends and family from years present and past to root for a common cause. Undoubtedly, the games are not important to some students, and they voluntarily choose not to attend. For many others, however, the choice between attending these games and avoiding personally offensive religious rituals is in no practical sense an easy one. The Constitution, moreover, demands that the school may not force this difficult choice upon these students for "[i]t is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to statesponsored religious practice." Id., at 596. Even if we regard every high school student's decision to attend a home football game as purely voluntary, we are nevertheless persuaded that the delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship. For "the government may no more use social pressure to enforce orthodoxy than it may use more direct means." Id., at 594. As in Lee, "[w]hat to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy." Id., at 592. The constitutional command will not permit the District "to exact religious conformity from a student as the price" of joining her classmates at a varsity football game.22 22 "We think the Government's position that this interest suffices to force students to choose between compliance or forfeiture demonstrates fundamental inconsistency in its argumentation. It fails to acknowledge that what for many of Deborah's classmates and their parents was a spiritual 313 The Religion Clauses of the First Amendment prevent the government from making any law respecting the establishment of religion or prohibiting the free exercise thereof. By no means do these commands impose a prohibition on all religious activity in our public schools. See, e. g., Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 395 (1993); Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226 (1990); Wallace, 472 U. S., at 59. Indeed, the common purpose of the Religion Clauses "is to secure religious liberty." Engel v. Vitale, 370 U. S. 421 , 430 (1962). Thus, nothing in the Constitution as interpreted by this Court prohibits any public school student from voluntarily praying at any time before, during, or after the schoolday. But the religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer. IV Finally, the District argues repeatedly that the Does have made a premature facial challenge to the October policy that necessarily must fail. The District emphasizes, quite correctly, that until a student actually delivers a solemnizing message under the latest version of the policy, there can be no certainty that any of the statements or invocations will be religious. Thus, it concludes, the October policy necessarily survives a facial challenge. This argument, however, assumes that we are concerned only with the serious constitutional injury that occurs when a student is forced to participate in an act of religious wor- imperative was for Daniel and Deborah Weisman religious conformance compelled by the State. While in some societies the wishes of the majority might prevail, the Establishment Clause of the First Amendment is addressed to this contingency and rejects the balance urged upon us. The Constitution forbids the State to exact religious conformity from a student as the price of attending her own high school graduation. This is the calculus the Constitution commands." Lee, 505 U. S., at 595-596. 314 ship because she chooses to attend a school event. But the Constitution also requires that we keep in mind "the myriad, subtle ways in which Establishment Clause values can be eroded," Lynch, 465 U. S., at 694 (O'CONNOR, J., concurring), and that we guard against other different, yet equally important, constitutional injuries. One is the mere passage by the District of a policy that has the purpose and perception of government establishment of religion. Another is the implementation of a governmental electoral process that subjects the issue of prayer to a majoritarian vote. The District argues that the facial challenge must fail because "Santa Fe's Football Policy cannot be invalidated on the basis of some 'possibility or even likelihood' of an unconstitutional application." Brief for Petitioner 17 (quoting Bowen v. Kendrick, 487 U. S. 589 , 613 (1988)). Our Establishment Clause cases involving facial challenges, however, have not focused solely on the possible applications of the statute, but rather have considered whether the statute has an unconstitutional purpose. Writing for the Court in Bowen, THE CHIEF JUSTICE concluded that "[a]s in previous cases involving facial challenges on Establishment Clause grounds, e. g., Edwards v. Aguillard, [ 482 U. S. 578 (1987)]; Mueller v. Allen, 463 U. S. 388 (1983), we assess the constitutionality of an enactment by reference to the three factors first articulated in Lemon v. Kurtzman, 403 U. S. 602 , 612 (1971) ... , which guides '[t]he general nature of our inquiry in this area,' Mueller v. Allen, supra, at 394." 487 U. S., at 602. Under the Lemon standard, a court must invalidate a statute if it lacks "a secular legislative purpose." Lemon v. Kurtzman, 403 U. S. 602 , 612 (1971). It is therefore proper, as part of this facial challenge, for us to examine the purpose of the October policy. As discussed, supra, at 306-307,309, the text of the October policy alone reveals that it has an unconstitutional purpose. The plain language of the policy clearly spells out the extent of school involvement in both the election of the speaker 315 and the content of the message. Additionally, the text of the October policy specifies only one, clearly preferred message-that of Santa Fe's traditional religious "invocation." Finally, the extremely selective access of the policy and other content restrictions confirm that it is not a content-neutral regulation that creates a limited public forum for the expression of student speech. Our examination, however, need not stop at an analysis of the text of the policy. This case comes to us as the latest step in developing litigation brought as a challenge to institutional practices that unquestionably violated the Establishment Clause. One of those practices was the District's long-established tradition of sanctioning student-led prayer at varsity football games. The narrow question before us is whether implementation of the October policy insulates the continuation of such prayers from constitutional scrutiny. It does not. Our inquiry into this question not only can, but must, include an examination of the circumstances surrounding its enactment. Whether a government activity violates the Establishment Clause is "in large part a legal question to be answered on the basis of judicial interpretation of social facts .... Every government practice must be judged in its unique circumstances .... " Lynch, 465 U. S., at 693-694 (O'CONNOR, J., concurring). Our discussion in the previous sections, supra, at 307-310, demonstrates that in this case the District's direct involvement with school prayer exceeds constitutional limits. The District, nevertheless, asks us to pretend that we do not recognize what every Santa Fe High School student understands clearly-that this policy is about prayer. The District further asks us to accept what is obviously untrue: that these messages are necessary to "solemnize" a football game and that this single-student, year-long position is essential to the protection of student speech. We refuse to turn a blind eye to the context in which this policy arose, and that context quells any doubt that this policy was implemented with the purpose of endorsing school prayer. 316 Therefore, the simple enactment of this policy, with the purpose and perception of school endorsement of student prayer, was a constitutional violation. We need not wait for the inevitable to confirm and magnify the constitutional injury. In Wallace, for example, we invalidated Alabama's as yet unimplemented and voluntary "moment of silence" statute based on our conclusion that it was enacted "for the sole purpose of expressing the State's endorsement of prayer activities for one minute at the beginning of each school day." 472 U. S., at 60; see also Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 , 532 (1993). Therefore, even if no Santa Fe High School student were ever to offer a religious message, the October policy fails a facial challenge because the attempt by the District to encourage prayer is also at issue. Government efforts to endorse religion cannot evade constitutional reproach based solely on the remote possibility that those attempts may fail. This policy likewise does not survive a facial challenge because it impermissibly imposes upon the student body a majoritarian election on the issue of prayer. Through its election scheme, the District has established a governmental electoral mechanism that turns the school into a forum for religious debate. It further empowers the student body majority with the authority to subject students of minority views to constitutionally improper messages. The award of that power alone, regardless of the students' ultimate use of it, is not acceptable.23 Like the referendum in Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 23 THE CHIEF JUSTICE accuses us of "essentially invalidat[ing] all student elections," see post, at 321. This is obvious hyperbole. We have concluded that the resulting religious message under this policy would be attributable to the school, not just the student, see supra, at 301-310. For this reason, we now hold only that the District's decision to allow the student majority to control whether students of minority views are subjected to a school-sponsored prayer violates the Establishment Clause. 317 217 (2000), the election mechanism established by the District undermines the essential protection of minority viewpoints. Such a system encourages divisiveness along religious lines and threatens the imposition of coercion upon those students not desiring to participate in a religious exercise. Simply by establishing this school-related procedure, which entrusts the inherently nongovernmental subject of religion to a majoritarian vote, a constitutional violation has occurred.24 No further injury is required for the policy to fail a facial challenge. To properly examine this policy on its face, we "must be deemed aware of the history and context of the community and forum," Pinette, 515 U. S., at 780 (O'CONNOR, J., concurring in part and concurring in judgment). Our examination of those circumstances above leads to the conclusion that this policy does not provide the District with the constitutional safe harbor it sought. The policy is invalid on its face because it establishes an improper majoritarian election on religion, and unquestionably has the purpose and creates the perception of encouraging the delivery of prayer at a series of important school events. The judgment of the Court of Appeals is, accordingly, affirmed. It is so ordered. 24 THE CHIEF JUSTICE contends that we have "misconstrue[d] the nature ... [of] the policy as being an election on 'prayer' and 'religion,'" post, at 320. We therefore reiterate that the District has stipulated to the facts that the most recent election was held "to determine whether a student would deliver prayer at varsity football games," that the "students chose to allow a student to say a prayer at football games," and that a second election was then held "to determine which student would deliver the prayer." App. 65-66 (emphases added). Furthermore, the policy was titled "Prayer at Football Games." Id., at 99 (emphasis added). Although the District has since eliminated the word "prayer" from the policy, it apparently viewed that change as sufficiently minor as to make holding a new election unnecessary. 318 CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA and JUSTICE THOMAS join, dissenting. The Court distorts existing precedent to conclude that the school district's student-message program is invalid on its face under the Establishment Clause. But even more disturbing than its holding is the tone of the Court's opinion; it bristles with hostility to all things religious in public life. N either the holding nor the tone of the opinion is faithful to the meaning of the Establishment Clause, when it is recalled that George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of "public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God." Presidential Proclamation, 1 Messages and Papers of the Presidents, 1789-1897, p. 64 (J. Richardson ed. 1897). We do not learn until late in the Court's opinion that respondents in this case challenged the district's studentmessage program at football games before it had been put into practice. As the Court explained in United States v. Salerno, 481 U. S. 739 , 745 (1987), the fact that a policy might "operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid." See also Bowen v. Kendrick, 487 U. S. 589 , 612 (1988). While there is an exception to this principle in the First Amendment overbreadth context because of our concern that people may refrain from speech out of fear of prosecution, Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U. S. 32 , 38-40 (1999), there is no similar justification for Establishment Clause cases. No speech will be "chilled" by the existence of a government policy that might unconstitutionally endorse religion over nonreligion. Therefore, the question is not whether the district's policy may be applied in violation of the Establishment Clause, but whether it inevitably will be. 319 The Court, venturing into the realm of prophecy, decides that it "need not wait for the inevitable" and invalidates the district's policy on its face. See ante, at 316. To do so, it applies the most rigid version of the oft-criticized test of Lemon v. Kurtzman, 403 U. S. 602 (1971).1 Lemon has had a checkered career in the decisional law of this Court. See, e. g., Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 , 398-399 (1993) (SCALIA, J., concurring in judgment) (collecting opinions criticizing Lemon); Wallace v. Jaffree, 472 U. S. 38 , 108-114 (1985) (REHNQUIST, J., dissenting) (stating that Lemon's "three-part test represents a determined effort to craft a workable rule from a historically faulty doctrine; but the rule can only be as sound as the doctrine it attempts to service" (internal quotation marks omitted)); Committee for Public Ed. and Religious Liberty v. Regan, 444 U. S. 646 , 671 (1980) (STEVENS, J., dissenting) (deriding "the sisyphean task of trying to patch together the blurred, indistinct, and variable barrier described in Lemon"). We have even gone so far as to state that it has never been binding on us. Lynch v. Donnelly, 465 U. S. 668 , 679 (1984) ("[W]e have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area .... In two cases, the Court did not even apply the Lemon 'test' [citing Marsh 1 The Court rightly points out that in facial challenges in the Establishment Clause context, we have looked to Lemon's three factors to "guid[e] [t]he general nature of our inquiry." Ante, at 314 (internal quotation marks omitted) (citing Bowen v. Kendrick, 487 U. S. 589 , 602 (1988)). In Bowen, we looked to Lemon as such a guide and determined that a federal grant program was not invalid on its face, noting that "[i]t has not been the Court's practice, in considering facial challenges to statutes of this kind, to strike them down in anticipation that particular applications may result in unconstitutional use of funds." 487 U. S., at 612 (internal quotation marks omitted). But here the Court, rather than looking to Lemon as a guide, applies Lemon's factors stringently and ignores Bowen's admonition that mere anticipation of unconstitutional applications does not warrant striking a policy on its face. 320 v. Chambers, 463 U. S. 783 (1983), and Larson v. Valente, 456 U. S. 228 (1982)]"). Indeed, in Lee v. Weisman, 505 U. S. 577 (1992), an opinion upon which the Court relies heavily today, we mentioned, but did not feel compelled to apply, the Lemon test. See also Agostini v. Felton, 521 U. S. 203 , 233 (1997) (stating that Lemon's entanglement test is merely "an aspect of the inquiry into a statute's effect"); Hunt v. McNair, 413 U. S. 734 , 741 (1973) (stating that the Lemon factors are "no more than helpful signposts"). Even if it were appropriate to apply the Lemon test here, the district's student-message policy should not be invalidated on its face. The Court applies Lemon and holds that the "policy is invalid on its face because it establishes an improper majoritarian election on religion, and unquestionably has the purpose and creates the perception of encouraging the delivery of prayer at a series of important school events." Ante, at 317. The Court's reliance on each of these conclusions misses the mark. First, the Court misconstrues the nature of the "majoritarian election" permitted by the policy as being an election on "prayer" and "religion." 2 See ante, at 314, 317. To the contrary, the election permitted by the policy is a two-fold process whereby students vote first on whether to have a student speaker before football games at all, and second, if the students vote to have such a speaker, on who that speaker will be. App. 104-105. It is conceivable that the election could become one in which student candidates campaign on platforms that focus on whether or not they will 2 The Court attempts to support its misinterpretation of the nature of the election process by noting that the district stipulated to facts about the most recent election. See ante, at 317, n. 24. Of course, the most recent election was conducted under the previous policy-a policy that required an elected student speaker to give a pregame invocation. See App. 65-66, 99-100. There has not been an election under the policy at issue here, which expressly allows the student speaker to give a message as opposed to an invocation. 321 pray if elected. It is also conceivable that the election could lead to a Christian prayer before 90 percent of the football games. If, upon implementation, the policy operated in this fashion, we would have a record before us to review whether the policy, as applied, violated the Establishment Clause or unduly suppressed minority viewpoints. But it is possible that the students might vote not to have a pregame speaker, in which case there would be no threat of a constitutional violation. It is also possible that the election would not focus on prayer, but on public speaking ability or social popularity. And if student campaigning did begin to focus on prayer, the school might decide to implement reasonable campaign restrictions.3 But the Court ignores these possibilities by holding that merely granting the student body the power to elect a speaker that may choose to pray, "regardless of the students' ultimate use of it, is not acceptable." Ante, at 316. The Court so holds despite that any speech that may occur as a result of the election process here would be private, not government, speech. The elected student, not the government, would choose what to say. Support for the Court's holding cannot be found in any of our cases. And it essentially invalidates all student elections. A newly elected student body president, or even a newly elected prom king or queen, could use opportunities for public speaking to say prayers. Under the Court's view, the mere grant of power 3 The Court's reliance on language regarding the student referendum in Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217 (2000), to support its conclusion with respect to the election process is misplaced. That case primarily concerned free speech, and, more particularly, mandated financial support of a public forum. But as stated above, if this case were in the "as applied" context and we were presented with the appropriate record, our language in Southworth could become more applicable. In fact, Southworth itself demonstrates the impropriety of making a decision with respect to the election process without a record of its operation. There we remanded in part for a determination of how the referendum functions. See id., at 235-236. 322 to the students to vote for such offices, in light of the fear that those elected might publicly pray, violates the Establishment Clause. Second, with respect to the policy's purpose, the Court holds that "the simple enactment of this policy, with the purpose and perception of school endorsement of student prayer, was a constitutional violation." Ante, at 316. But the policy itself has plausible secular purposes: "[T]o solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition." App. 104-105. Where a governmental body "expresses a plausible secular purpose" for an enactment, "courts should generally defer to that stated intent." Wallace, 472 U. S., at 74-75 (O'CONNOR, J., concurring in judgment); see also Mueller v. Allen, 463 U. S. 388 , 394-395 (1983) (stressing this Court's "reluctance to attribute unconstitutional motives to the States, particularly when a plausible secular purpose for the State's program may be discerned from the face of the statute"). The Court grants no deference to-and appears openly hostile toward-the policy's stated purposes, and wastes no time in concluding that they are a sham. For example, the Court dismisses the secular purpose of solemnization by claiming that it "invites and encourages religious messages." Ante, at 306; Cf. Lynch, 465 U. S., at 693 (O'CONNOR, J., concurring) (discussing the "legitimate secular purposes of solemnizing public occasions"). The Court so concludes based on its rather strange view that a "religious message is the most obvious means of solemnizing an event." Ante, at 306. But it is easy to think of solemn messages that are not religious in nature, for example urging that a game be fought fairly. And sporting events often begin with a solemn rendition of our national anthem, with its concluding verse "And this be our motto: 'In God is our trust.'" Under the Court's logic, a public school that spon- 323 sors the singing of the national anthem before football games violates the Establishment Clause. Although the Court apparently believes that solemnizing football games is an illegitimate purpose, the voters in the school district seem to disagree. Nothing in the Establishment Clause prevents them from making this choice.4 The Court bases its conclusion that the true purpose of the policy is to endorse student prayer on its view of the school district's history of Establishment Clause violations and the context in which the policy was written, that is, as "the latest step in developing litigation brought as a challenge to institutional practices that unquestionably violated the Establishment Clause." Ante, at 308-309, 315. But the contextattempted compliance with a District Court order-actually demonstrates that the school district was acting diligently to come within the governing constitutional law. The District Court ordered the school district to formulate a policy consistent with Fifth Circuit precedent, which permitted a school district to have a prayer-only policy. See Jones v. Clear Creek Independent School Dist., 977 F.2d 963 (CAS 1992). But the school district went further than required by the District Court order and eventually settled on a policy that gave the student speaker a choice to deliver either an 4 The Court also determines that the use of the term "invocation" in the policy is an express endorsement of that type of message over all others. See ante, at 306-307. A less cynical view of the policy's text is that it permits many types of messages, including invocations. That a policy tolerates religion does not mean that it improperly endorses it. Indeed, as the majority reluctantly admits, the Free Exercise Clause mandates such tolerance. See ante, at 313 ("[N]othing in the Constitution as interpreted by this Court prohibits any public school student from voluntarily praying at any time before, during, or after the schoolday"); see also Lynch v. Donnelly, 465 U. S. 668 , 673 (1984) ("Nor does the Constitution require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any"). 324 invocation or a message. In so doing, the school district exhibited a willingness to comply with, and exceed, Establishment Clause restrictions. Thus, the policy cannot be viewed as having a sectarian purpose.5 The Court also relies on our decision in Lee v. Weisman, 505 U. S. 577 (1992), to support its conclusion. In Lee, we concluded that the content of the speech at issue, a graduation prayer given by a rabbi, was "directed and controlled" by a school official. Id., at 588. In other words, at issue in Lee was government speech. Here, by contrast, the potential speech at issue, if the policy had been allowed to proceed, would be a message or invocation selected or created by a student. That is, if there were speech at issue here, it would be private speech. The "crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect," applies with particular force to the question of endorsement. Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226 , 250 (1990) (plurality opinion) (emphasis in original). Had the policy been put into practice, the students may have chosen a speaker according to wholly secular criterialike good public speaking skills or social popularity-and the student speaker may have chosen, on her own accord, to deliver a religious message. Such an application of the policy 5 Wallace v. Jaffree, 472 U. S. 38 (1985), is distinguishable on these grounds. There we struck down an Alabama statute that added an express reference to prayer to an existing statute providing a moment of silence for meditation. Id., at 59. Here the school district added a secular alternative to a policy that originally provided only for prayer. More importantly, in Wallace, there was "unrebutted evidence" that pointed to a wholly religious purpose, id., at 58, and Alabama "conceded in the courts below that the purpose of the statute was to make prayer part of daily classroom activity," id., at 77-78 (O'CONNOR, J., concurring in judgment). There is no such evidence or concession here. 325 would likely pass constitutional muster. See Lee, supra, at 630, n. 8 (SOUTER, J., concurring) ("If the State had chosen its graduation day speakers according to wholly secular criteria, and if one of those speakers (not a state actor) had individually chosen to deliver a religious message, it would be harder to attribute an endorsement of religion to the State"). Finally, the Court seems to demand that a government policy be completely neutral as to content or be considered one that endorses religion. See ante, at 305. This is undoubtedly a new requirement, as our Establishment Clause jurisprudence simply does not mandate "content neutrality." That concept is found in our First Amendment speech cases and is used as a guide for determining when we apply strict scrutiny. For example, we look to "content neutrality" in reviewing loudness restrictions imposed on speech in public forums, see Ward v. Rock Against Racism, 491 U. S. 781 (1989), and regulations against picketing, see Boos v. Barry, 485 U. S. 312 (1988). The Court seems to think that the fact that the policy is not content neutral somehow controls the Establishment Clause inquiry. See ante, at 305. But even our speech jurisprudence would not require that all public school actions with respect to student speech be content neutral. See, e. g., Bethel School Dist. No . .1,03 v. Fraser, 478 U. S. 675 (1986) (allowing the imposition of sanctions against a student speaker who, in nominating a fellow student for elective office during an assembly, referred to his candidate in terms of an elaborate sexually explicit metaphor). Schools do not violate the First Amendment every time they restrict student speech to certain categories. But under the Court's view, a school policy under which the student body president is to solemnize the graduation ceremony by giving a favorable introduction to the guest speaker would be facially unconstitutional. Solemnization "invites and encourages" prayer and the policy's content limitations 326 prohibit the student body president from giving a solemn, yet nonreligious, message like "commentary on United States foreign policy." See ante, at 306. The policy at issue here may be applied in an unconstitutional manner, but it will be time enough to invalidate it if that is found to be the case. I would reverse the judgment of the Court of Appeals.

The Supreme Court ruled that a school district's policy of allowing student-led and student-initiated prayer at football games violates the Establishment Clause of the First Amendment. The Court found that the delivery of a prayer on school property, at a school-sponsored event, and over the school's public address system was not "private" speech and that the policy explicitly and implicitly encouraged public prayer. The Court also noted that the policy was not completely neutral as to content, which was a new requirement in Establishment Clause cases. Justice Rehnquist, in dissent, argued that the policy did not violate the Establishment Clause because it was neutral as to religion and provided a secular alternative to prayer.

Religion

Zobrest v. Catalina Foothills School District

https://supreme.justia.com/cases/federal/us/509/1/

CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1992 Syllabus ZOBREST ET AL. v. CATALINA FOOTHILLS SCHOOL DISTRICT CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 92-94. Argued February 24, 1993-Decided June 18, 1993 Petitioners, a deaf child and his parents, filed this suit after respondent school district refused to provide a sign-language interpreter to accompany the child to classes at a Roman Catholic high school. They alleged that the Individuals with Disabilities Education Act (IDEA) and the Free Exercise Clause of the First Amendment required respondent to provide the interpreter and that the Establishment Clause did not bar such relief. The District Court granted respondent summary judgment on the ground that the interpreter would act as a conduit for the child's religious inculcation, thereby promoting his religious development at government expense in violation of the Establishment Clause. The Court of Appeals affirmed. Held: 1. The prudential rule of avoiding constitutional questions if there is a nonconstitutional ground for decision is inapplicable here, since respondent did not urge upon the District Court or the Court of Appeals any of the nonconstitutional grounds it now raises in this Court. Pp.6-8. 2. The Establishment Clause does not prevent respondent from furnishing a disabled child enrolled in a sectarian school with a signlanguage interpreter in order to facilitate his education. Government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also 2 receive an attenuated financial benefit. Mueller v. Allen, 463 U. S. 388 ; Witters v. Washington Dept. of Services for Blind, 474 U. S. 481 . The same reasoning used in Mueller and Witters applies here. The service in this case is part of a general government program that distributes benefits neutrally to any child qualifying as disabled under the IDEA, without regard to the sectarian-nonsectarian, or public-nonpublic nature of the school the child attends. By according parents freedom to select a school of their choice, the statute ensures that a government-paid interpreter will be present in a sectarian school only as a result of individual parents' private decisions. Since the IDEA creates no financial incentive for parents to choose a sectarian school, an interpreter's presence there cannot be attributed to state decisionmaking. The fact that a public employee will be physically present in a sectarian school does not by itself make this the same type of aid that was disapproved in Meek v. Pittenger, 421 U. S. 349 , and School Dist. of Grand Rapids v. Ball, 473 U. S. 373 . In those cases, the challenged programs gave direct grants of government aid-instructional equipment and material, teachers, and guidance counselors-which relieved sectarian schools of costs they otherwise would have borne in educating their students. Here, the child is the primary beneficiary, and the school receives only an incidental benefit. In addition, an interpreter, unlike a teacher or guidance counselor, neither adds to nor subtracts from the sectarian school's environment but merely interprets whatever material is presented to the class as a whole. There is no absolute bar to the placing of a public employee in a sectarian school. Pp.8-14. 963 F.2d 1190 , reversed. REHNQUIST, C. J., delivered the opinion of the Court, in which WHITE, SCALIA, KENNEDY, and THOMAS, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which SOUTER, J., joined, and in which STEVENS and O'CONNOR, JJ., joined as to Part I, post, p. 14. O'CONNOR, J., filed a dissenting opinion, in which STEVENS, J., joined, post, p. 24. William Bentley Ball argued the cause for petitioners. With him on the briefs was Thomas J. Berning. Acting Solicitor General Bryson argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Roberts, Ronald J. Mann, Jeffrey C. Martin, and Susan Craig. 3 John C. Richardson argued the cause for respondent. With him on the brief was Gary F. Urman. * CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. Petitioner James Zobrest, who has been deaf since birth, asked respondent school district to provide a sign-language interpreter to accompany him to classes at a Roman Catholic high school in Tucson, Arizona, pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U. S. C. § 1400 et seq., and its Arizona counterpart, Ariz. Rev. Stat. Ann. § 15 761 et seq. (1991 and Supp. 1992). The United States Court of Appeals for the Ninth Circuit decided, however, that provision of such a publicly employed interpreter would violate the Establishment Clause of the First Amendment. We hold that the Establishment Clause does not bar the school district from providing the requested interpreter. *Briefs of amici curiae urging reversal were filed for the Alexander Graham Bell Association for the Deaf by Bonnie P. Tucker; for the American Jewish Congress et al. by Marc D. Stern, Lois C. Waldman, Oliver S. Thomas, and J. Brent Walker; for the Christian Legal Society et al. by Michael W McConnell, Steven T. McFarland, and Bradley P. Jacob; for the Deaf Community Center, Inc., by Jay Alan Sekulow, James M. Henderson, Sr., Mark N. Troobnick, Jordan W Lorence, Keith A. Fournier, John G. Stepanovich, Thomas Patrick Monaghan, and Walter M. Weber; for the United States Catholic Conference by Mark E. Chopko, John A. Liekweg, and Phillip H. Harris; for the Institute for Justice by William H. Mellor III and Clint Bolick; and for the National Jewish Commission on Law and Public Mfairs by Nathan Lewin and Dennis Rapps. Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Bradley S. Phillips, Steven R. Shapiro, John A. Powell, Steven K. Green, Steven M. Freeman, and Samuel Rabinove; for the Arizona School Boards Association, Inc., by Robert J. DuComb, Jr.; for the Council on Religious Freedom by Lee Boothby, Robert W Nixon, Walter E. Carson, and Rolland Truman; for the National School Boards Association by Gwendolyn H. Gregory, August W Steinhilber, and Thomas A. Shannon; and for the National Committee for Public Education and Religious Liberty et al. by David B. Isbell, T. Jeremy Gunn, and Elliot M. Mincberg. 4 James Zobrest attended grades one through five in a school for the deaf, and grades six through eight in a public school operated by respondent. While he attended public school, respondent furnished him with a sign-language interpreter. For religious reasons, James' parents (also petitioners here) enrolled him for the ninth grade in Salpointe Catholic High School, a sectarian institution.1 When petitioners requested that respondent supply James with an interpreter at Salpointe, respondent referred the matter to the county attorney, who concluded that providing an interpreter on the school's premises would violate the United States Constitution. App. 10-18. Pursuant to Ariz. Rev. Stat. Ann. § 15253(B) (1991), the question next was referred to the Arizona attorney general, who concurred in the county attorney's opinion. App. to Pet. for Cert. A-137. Respondent accordingly declined to provide the requested interpreter. Petitioners then instituted this action in the United States District Court for the District of Arizona under 20 U. S. C. § 1415(e)(4)(A), which grants the district courts jurisdiction over disputes regarding the services due disabled children under the IDEA.2 Petitioners asserted that the IDEA and the Free Exercise Clause of the First Amendment require respondent to provide James with an interpreter at Salpointe, and that the Establishment Clause does not bar such relief. The complaint sought a preliminary injunction and "such other and further relief as the Court deems just and proper." App. 25.3 The District Court denied petitioners' 1 The parties have stipulated: "The two functions of secular education and advancement of religious values or beliefs are inextricably intertwined throughout the operations of Salpointe." App. 92. 2 The parties agreed that exhaustion of administrative remedies would be futile here. Id., at 94-95. 3 During the pendency of this litigation, James completed his high school studies and graduated from Salpointe on May 16, 1992. This case nonetheless presents a continuing controversy, since petitioners seek reimbursement for the cost they incurred in hiring their own interpreter, more than $7,000 per year. Id., at 65. 5 request for a preliminary injunction, finding that the provision of an interpreter at Salpointe would likely offend the Establishment Clause. Id., at 52-53. The court thereafter granted respondent summary judgment, on the ground that "[t]he interpreter would act as a conduit for the religious inculcation of James-thereby, promoting James' religious development at government expense." App. to Pet. for Cert. A-35. "That kind of entanglement of church and state," the District Court concluded, "is not allowed." Ibid. The Court of Appeals affirmed by a divided vote, 963 F.2d 1190 (CA9 1992), applying the three-part test announced in Lemon v. Kurtzman, 403 U. S. 602 , 613 (1971). It first found that the IDEA has a clear secular purpose: "'to assist States and Localities to provide for the education of all handicapped children.'" 963 F. 2d, at 1193 (quoting 20 U. S. C. § 1400(c)).4 Turning to the second prong of the Lemon inquiry, though, the Court of Appeals determined that the IDEA, if applied as petitioners proposed, would have the primary effect of advancing religion and thus would run afoul of the Establishment Clause. "By placing its employee in the sectarian school," the Court of Appeals reasoned, "the government would create the appearance that it was a 'joint sponsor' of the school's activities." 963 F. 2d, at 1194-1195. This, the court held, would create the "symbolic union of government and religion" found impermissible in School Dist. of Grand Rapids v. Ball, 473 U. S. 373 , 392 (1985).5 In contrast, the dissenting judge argued that "[g]eneral welfare programs neutrally available to all children," such as the IDEA, pass constitutional muster, "because their benefits diffuse over the entire population." 963 F. 2d, at 1199 (opinion of Tang, 4 Respondent now concedes that "the IDEA has an appropriate 'secular purpose.' " Brief for Respondent 16. 5 The Court of Appeals also rejected petitioners' Free Exercise Clause claim. 963 F. 2d, at 1196-1197. Petitioners have not challenged that part of the decision below. Pet. for Cert. 10, n. 9. 6 J.). We granted certiorari, 506 U. S. 813 (1992), and now reverse. Respondent has raised in its brief in opposition to certiorari and in isolated passages in its brief on the merits several issues unrelated to the Establishment Clause question.6 Respondent first argues that 34 CFR § 76.532(a)(1) (1992), a regulation promulgated under the IDEA, precludes it from using federal funds to provide an interpreter to James at Salpointe. Brief in Opposition 13.7 In the alternative, respondent claims that even if there is no affirmative bar to the relief, it is not required by statute or regulation to furnish interpreters to students at sectarian schools. Brief for Respondent 4, n. 4.8 And respondent adds that providing such 6 Respondent may well have waived these other defenses. For in response to an interrogatory asking why it had refused to provide the requested service, respondent referred only to the putative Establishment Clause bar. App. 59-60. 7 That regulation prohibits the use of federal funds to pay for "[r]eligious worship, instruction, or proselytization." 34 CFR § 76.532(a)(1) (1992). The United States asserts that the regulation merely implements the Secretary of Education's understanding of (and thus is coextensive with) the requirements of the Establishment Clause. Brief for United States as Amicus Curiae 23; see also Brief for United States as Amicus Curiae in Witters v. Dept. of Services for Blind, O. T. 1985, No. 84-1070, p. 21, n. 11 ("These regulations are based on the Department's interpretation of constitutional requirements"). This interpretation seems persuasive to us. The only authority cited by the Secretary for issuance of the regulation is his general rulemaking power. See 34 CFR § 76.532 (1992) (citing 20 U. S. C. §§ 1221e-3(a)(1), 2831(a), and 2974(b)). Though the Fourth Circuit placed a different interpretation on § 76.532 in Goodall v. Stafford County School Board, 930 F.2d 363 , 369 (holding that the regulation prohibits the provision of an interpreter to a student in a sectarian school), cert. denied, 502 U. S. 864 (1991), that court did not have the benefit of the United States' views. 8 In our view, this belated contention is entitled to little, if any, weight here given respondent's repeated concession that, but for the perceived federal constitutional bar, it would have willingly provided James with an interpreter at Salpointe as a matter of local policy. See, e. g., Tr. of Oral Arg. 31 ("We don't deny that ... we would have voluntarily done 7 a service would offend Art. II, § 12, of the Arizona Constitution. Tr. of Oral Arg. 28. It is a familiar principle of our jurisprudence that federal courts will not pass on the constitutionality of an Act of Congress if a construction of the Act is fairly possible by which the constitutional question can be avoided. See, e. g., United States v. Locke, 471 U. S. 84 , 92 (1985), and cases cited therein. In Locke, a case coming here by appeal under 28 U. S. C. § 1252 (1982 ed.), we said that such an appeal "brings before this Court not merely the constitutional question decided below, but the entire case." 471 U. S., at 92. "The entire case," we explained, "includes nonconstitutional questions actually decided by the lower court as well as nonconstitutional grounds presented to, but not passed on, by the lower court." Ibid. Therefore, in that case, we turned "first to the nonconstitutional questions pressed below." Ibid. Here, in contrast to Locke and other cases applying the prudential rule of avoiding constitutional questions, only First Amendment questions were pressed in the Court of Appeals. In the opening paragraph of its opinion, the Court of Appeals noted that petitioners' appeal raised only First Amendment issues: "The Zobrests appeal the district court's ruling that provision of a state-paid sign language interpreter to James Zobrest while he attends a sectarian high school would violate the Establishment Clause. The Zobrests also argue that denial of such assistance violates the Free Exercise Clause." 963 F. 2d, at 1191. Respondent did not urge any statutory grounds for affirmance upon the Court of Appeals, and thus the Court of Appeals decided only the federal constitutional claims raised by petitioners. In the District Court, too, the parties chose to that. The only concern that came up at the time was the Establishment Clause concern"). 8 litigate the case on the federal constitutional issues alone. "Both parties' motions for summary judgment raised only federal constitutional issues." Brief for Respondent 4, n. 4. Accordingly, the District Court's order granting respondent summary judgment addressed only the Establishment Clause question. App. to Pet. for Cert. A-35. Given this posture of the case, we think the prudential rule of avoiding constitutional questions has no application. The fact that there may be buried in the record a nonconstitutional ground for decision is not by itself enough to invoke this rule. See, e. g., Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569 , 572 (1987). "Where issues are neither raised before nor considered by the Court of Appeals, this Court will not ordinarily consider them." Adickes v. S. H. Kress & Co., 398 U. S. 144 , 147, n. 2 (1970). We therefore turn to the merits of the constitutional claim. We have never said that "religious institutions are disabled by the First Amendment from participating in publicly sponsored social welfare programs." Bowen v. Kendrick, 487 U. S. 589 , 609 (1988). For if the Establishment Clause did bar religious groups from receiving general government benefits, then "a church could not be protected by the police and fire departments, or have its public sidewalk kept in repair." Widmar v. Vincent, 454 U. S. 263 , 274-275 (1981) (internal quotation marks omitted). Given that a contrary rule would lead to such absurd results, we have consistently held that government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated financial benefit. Nowhere have we stated this principle more clearly than in Mueller v. Allen, 463 U. S. 388 (1983), and Witters v. Washington Dept. of Services for Blind, 474 U. S. 481 (1986), two cases dealing specifically 9 with government programs offering general educational assistance. In Mueller, we rejected an Establishment Clause challenge to a Minnesota law allowing taxpayers to deduct certain educational expenses in computing their state income tax, even though the vast majority of those deductions (perhaps over 90%) went to parents whose children attended sectarian schools. See 463 U. S., at 401; id., at 405 (Marshall, J., dissenting). Two factors, aside from States' traditionally broad taxing authority, informed our decision. See Witters, supra, at 491 (Powell, J., concurring) (discussing Mueller). We noted that the law "permits all parents-whether their children attend public school or private-to deduct their children's educational expenses." 463 U. S., at 398 (emphasis in original). See also Widmar, supra, at 274 ("The provision of benefits to so broad a spectrum of groups is an important index of secular effect"); Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226 , 248 (1990) (plurality opinion) (same). We also pointed out that under Minnesota's scheme, public funds become available to sectarian schools "only as a result of numerous private choices of individual parents of school-age children," thus distinguishing Mueller from our other cases involving "the direct transmission of assistance from the State to the schools themselves." 463 U. S., at 399. Witters was premised on virtually identical reasoning. In that case, we upheld against an Establishment Clause challenge the State of Washington's extension of vocational assistance, as part of a general state program, to a blind person studying at a private Christian college to become a pastor, missionary, or youth director. Looking at the statute as a whole, we observed that "[a]ny aid provided under Washington's program that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients." 474 U. S., at 487. The program, we said, "creates no financial incentive for students 10 to undertake sectarian education." Id., at 488. We also remarked that, much like the law in Mueller, "Washington's program is 'made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited.''' Witters, supra, at 487 (quoting Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756, 782-783, n. 38 (1973)). In light of these factors, we held that Washington's program-even as applied to a student who sought state assistance so that he could become a pastor-would not advance religion in a manner inconsistent with the Establishment Clause. Witters, supra, at 489. That same reasoning applies with equal force here. The service at issue in this case is part of a general government program that distributes benefits neutrally to any child qualifying as "disabled" under the IDEA, without regard to the "sectarian-nonsectarian, or public-nonpublic nature" of the school the child attends. By according parents freedom to select a school of their choice, the statute ensures that a government-paid interpreter will be present in a sectarian school only as a result of the private decision of individual parents. In other words, because the IDEA creates no financial incentive for parents to choose a sectarian school, an interpreter's presence there cannot be attributed to state decisionmaking. Viewed against the backdrop of Mueller and Witters, then, the Court of Appeals erred in its decision. When the government offers a neutral service on the premises of a sectarian school as part of a general program that "is in no way skewed towards religion," Witters, supra, at 488, it follows under our prior decisions that provision of that service does not offend the Establishment Clause. See Wolman v. Walter, 433 U. S. 229 , 244 (1977). Indeed, this is an even easier case than Mueller and Witters in the sense that, under the IDEA, no funds traceable to the government ever find their way into sectarian schools' coffers. The only indirect economic benefit a sectarian school might receive by dint of the IDEA is the disabled child's tuition-and that is, 11 of course, assuming that the school makes a profit on each student; that, without an IDEA interpreter, the child would have gone to school elsewhere; and that the school, then, would have been unable to fill that child's spot. Respondent contends, however, that this case differs from Mueller and Witters, in that petitioners seek to have a public employee physically present in a sectarian school to assist in James' religious education. In light of this distinction, respondent argues that this case more closely resembles Meek v. Pittenger, 421 U. S. 349 (1975), and School Dist. of Grand Rapids v. Ball, 473 U. S. 373 (1985). In Meek, we struck down a statute that, inter alia, provided "massive aid" to private schools-more than 75% of which were church related-through a direct loan of teaching material and equipment. 421 U. S., at 364-365. The material and equipment covered by the statute included maps, charts, and tape recorders. Id., at 355. According to respondent, if the government could not place a tape recorder in a sectarian school in Meek, then it surely cannot place an interpreter in Salpointe. The statute in Meek also authorized state-paid personnel to furnish "auxiliary services" -which included remedial and accelerated instruction and guidance counseling-on the premises of religious schools. We determined that this part of the statute offended the First Amendment as well. Id., at 372. Ball similarly involved two public programs that provided services on private school premises; there, public employees taught classes to students in private school classrooms.9 473 U. S., at 375. We found that those programs likewise violated the Constitution, relying largely on Meek. 473 U. S., at 386-389. According to respondent, if the government could not provide educational services on the premises of sectarian schools in Meek and Ball, then it surely cannot provide James with an interpreter on the premises of Salpointe. 9Forty of the forty-one private schools involved in Ball were pervasively sectarian. 473 U. S., at 384-385. 12 Respondent's reliance on Meek and Ball is misplaced for two reasons. First, the programs in Meek and Ball through direct grants of government aid-relieved sectarian schools of costs they otherwise would have borne in educating their students. See Witters, 474 U. S., at 487 ("[T]he State may not grant aid to a religious school, whether cash or in kind, where the effect of the aid is 'that of a direct subsidy to the religious school' from the State") (quoting Ball, supra, at 394). For example, the religious schools in Meek received teaching material and equipment from the State, relieving them of an otherwise necessary cost of performing their educational function. 421 U. S., at 365-366. "Substantial aid to the educational function of such schools," we explained, "necessarily results in aid to the sectarian school enterprise as a whole," and therefore brings about "the direct and substantial advancement of religious activity." Id., at 366. So, too, was the case in Ball: The programs challenged there, which provided teachers in addition to instructional equipment and material, "in effect subsidize[d] the religious functions of the parochial schools by taking over a substantial portion of their responsibility for teaching secular subjects." 473 U. S., at 397. "This kind of direct aid," we determined, "is indistinguishable from the provision of a direct cash subsidy to the religious school." Id., at 395. The extension of aid to petitioners, however, does not amount to "an impermissible 'direct subsidy'" of Salpointe, Witters, supra, at 487, for Salpointe is not relieved of an expense that it otherwise would have assumed in educating its students. And, as we noted above, any attenuated financial benefit that parochial schools do ultimately receive from the IDEA is attributable to "the private choices of individual parents." Mueller, 463 U. S., at 400. Disabled children, not sectarian schools, are the primary beneficiaries of the IDEA; to the extent sectarian schools benefit at all from the IDEA, they are only incidental beneficiaries. Thus, the function of the IDEA is hardly" 'to provide desired financial 13 support for nonpublic, sectarian institutions.'" Witters, supra, at 488 (quoting Nyquist, supra, at 783). Second, the task of a sign-language interpreter seems to us quite different from that of a teacher or guidance counselor. Notwithstanding the Court of Appeals' intimations to the contrary, see 963 F. 2d, at 1195, the Establishment Clause lays down no absolute bar to the placing of a public employee in a sectarian schoo1.10 Such a fiat rule, smacking of antiquated notions of "taint," would indeed exalt form over substance.ll Nothing in this record suggests that a sign-language interpreter would do more than accurately interpret whatever material is presented to the class as a whole. In fact, ethical guidelines require interpreters to "transmit everything that is said in exactly the same way it was intended." App. 73. James' parents have chosen of their own free will to place him in a pervasively sectarian environment. The sign-language interpreter they have requested will neither add to nor subtract from that environment, and hence the provision of such assistance is not barred by the Establishment Clause. The IDEA creates a neutral government program dispensing aid not to schools but to individual handicapped children. If a handicapped child chooses to enroll in a sectarian school, 10 For instance, in Wolman v. Walter, 433 U. S. 229 , 242 (1977), we made clear that "the provision of health services to all schoolchildren-public and nonpublic-does not have the primary effect of aiding religion," even when those services are provided within sectarian schools. We accordingly rejected a First Amendment challenge to the State's providing diagnostic speech and hearing services on sectarian school premises. Id., at 244; see also Meek v. Pittenger, 421 U. S. 349 , 371, n. 21 (1975). 11 Indeed, respondent readily admits, as it must, that there would be no problem under the Establishment Clause if the IDEA funds instead went directly to James' parents, who, in turn, hired the interpreter themselves. Brief for Respondent 11 ("If such were the case, then the sign language interpreter would be the student's employee, not the School District's, and governmental involvement in the enterprise would end with the disbursement of funds"). 14 we hold that the Establishment Clause does not prevent the school district from furnishing him with a sign-language interpreter there in order to facilitate his education. The judgment of the Court of Appeals is therefore Reversed. JUSTICE BLACKMUN, with whom JUSTICE SOUTER joins, and with whom JUSTICE STEVENS and JUSTICE O'CONNOR join as to Part I, dissenting. Today, the Court unnecessarily addresses an important constitutional issue, disregarding longstanding principles of constitutional adjudication. In so doing, the Court holds that placement in a parochial school classroom of a public employee whose duty consists of relaying religious messages does not violate the Establishment Clause of the First Amendment. I disagree both with the Court's decision to reach this question and with its disposition on the merits. I therefore dissent. I "If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality ... unless such adjudication is unavoidable." Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101 , 105 (1944). See Brockett v. Spokane Arcades, Inc., 472 U. S. 491 , 501 (1985); Ashwander v. TVA, 297 U. S. 288 , 347 (1936) (Brandeis, J., concurring); Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U. S. 33 , 39 (1885). This is a "fundamental rule of judicial restraint," Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. c., 467 U. S. 138 , 157 (1984), which has received the sanction of time and experience. It has been described as a "corollary" to the Article III case or controversy requirement, see Rescue Army v. Municipal Court of Los Angeles, 331 U. S. 549 , 570 (1947), and is grounded in basic 15 principles regarding the institution of judicial review and this Court's proper role in our federal system, ibid. Respondent School District makes two arguments that could provide grounds for affirmance, rendering consideration of the constitutional question unnecessary. First, respondent maintains that the Individuals with Disabilities Education Act (IDEA), 20 U. S. C. § 1400 et seq., does not require it to furnish James Zobrest with an interpreter at any private school so long as special education services are made available at a public school. The United States endorses this interpretation of the statute, explaining that "the IDEA itself does not establish an individual entitlement to services for students placed in private schools at their parents' option." Brief for United States as Amicus Curiae 13. And several courts have reached the same conclusion. See, e. g., Goodall v. Stafford County School Bd., 930 F.2d 363 (CA4), cert. denied, 502 U. S. 864 (1991); McNair v. Cardimone, 676 F. Supp. 1361 (SD Ohio 1987), aff'd sub nom. McNair v. Oak Hills Local School Dist., 872 F.2d 153 (CA6 1989); Work v. McKenzie, 661 F. Supp. 225 (DC 1987). Second, respondent contends that 34 CFR § 76.532(a)(1) (1992), a regulation promulgated under the IDEA, which forbids the use of federal funds to pay for "[r]eligious worship, instruction, or proselytization," prohibits provision of a signlanguage interpreter at a sectarian school. The United States asserts that this regulation does not preclude the relief petitioners seek, Brief for United States as Amicus Curiae 23, but at least one federal court has concluded otherwise. See Goodall, supra. This Court could easily refrain from deciding the constitutional claim by vacating and remanding the case for consideration of the statutory and regulatory issues. Indeed, the majority's decision does not eliminate the need to resolve these remaining questions. For, regardless of the Court's views on the Establishment Clause, petitioners will not obtain what they seek if the federal stat- 16 ute does not require or the federal regulations prohibit provision of a sign-language interpreter in a sectarian school.1 The majority does not deny the existence of these alternative grounds, nor does it dispute the venerable principle that constitutional questions should be avoided when there are nonconstitutional grounds for a decision in the case. Instead, in its zeal to address the constitutional question, the majority casts aside this "time-honored canon of constitutional adjudication," Spector Motor Service, 323 U. S., at 105, with the cursory observation that "the prudential rule of avoiding constitutional questions has no application" in light of the "posture" of this case, ante, at 8. Because the parties chose not to litigate the federal statutory issues in the District Court and in the Court of Appeals, the majority blithely proceeds to the merits of their constitutional claim. But the majority's statements are a non sequitur. From the rule against deciding issues not raised or considered below, it does not follow that the Court should consider constitutional issues needlessly. The obligation to avoid unnecessary adjudication of constitutional questions does not depend upon the parties' litigation strategy, but rather is a "self-imposed limitation on the exercise of this Court's jurisdiction [that] has an importance to the institution that transcends the significance of particular controversies." City of Mesquite v. Aladdin's Castle, Inc., 455 U. S. 283 , 294 (1982). It is a rule whose aim is to protect not parties but the law and the adjudicatory process. Indeed, just a few days ago, we expressed concern that "litigants, by agreeing on the legal issue presented, [could] extract the opinion of a court 1 Respondent also argues that public provision of a sign-language interpreter would violate the Arizona Constitution. Article II, § 12, of the Arizona Constitution provides: "No public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment." The Arizona attorney general concluded that, under this provision, interpreter services could not be furnished to James. See App. 9. 17 on hypothetical Acts of Congress or dubious constitutional principles, an opinion that would be difficult to characterize as anything but advisory." United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U. S. 439 , 447 (1993). See United States v. CIO, 335 U. S. 106 , 126 (1948) (Frankfurter, J., concurring). That the federal statutory and regulatory issues have not been properly briefed or argued does not justify the Court's decision to reach the constitutional claim. The very posture of this case should have alerted the courts that the parties were seeking what amounts to an advisory opinion. After the Arizona attorney general concluded that provision of a sign-language interpreter would violate the Federal and State Constitutions, the parties bypassed the federal statutes and regulations and proceeded directly to litigate the constitutional issue. Under such circumstances, the weighty nonconstitutional questions that were left unresolved are hardly to be described as "buried in the record." Ante, at 8. When federal- and state-law questions similarly remained open in Wheeler v. Barrera, 417 U. S. 402 (1974), this Court refused to pass upon the scope or constitutionality of a federal statute that might have required publicly employed teachers to provide remedial instruction on the premises of sectarian schools. Prudence counsels that the Court follow a similar practice here by vacating and remanding this case for consideration of the nonconstitutional questions, rather than proceeding directly to the merits of the constitutional claim. See Youakim v. Miller, 425 U. S. 231 (1976) (vacating and remanding for consideration of statutory issues not presented to or considered by lower court); Escambia County v. McMillan, 466 U. S. 48 ,51-52 (1984) (vacating and remanding for lower court to consider statutory issue parties had not briefed and Court of Appeals had not passed upon); Edward J. DeBartolo Corp. v. NLRB, 463 U. S. 147 , 157-158 (1983) (vacating and remanding for consideration of statutory question). 18 II Despite my disagreement with the majority's decision to reach the constitutional question, its arguments on the merits deserve a response. Until now, the Court never has authorized a public employee to participate directly in religious indoctrination. Yet that is the consequence of today's decision. Let us be clear about exactly what is going on here. The parties have stipulated to the following facts. James Zobrest requested the State to supply him with a sign-language interpreter at Salpointe High School, a private Roman Catholic school operated by the Carmelite Order of the Catholic Church. App.90. Salpointe is a "pervasively religious" institution where "[t]he two functions of secular education and advancement of religious values or beliefs are inextricably intertwined." Id., at 92. Salpointe's overriding "objective" is to "instill a sense of Christian values." Id., at 90. Its "distinguishing purpose" is "the inculcation in its students of the faith and morals of the Roman Catholic Church." Religion is a required subject at Salpointe, and Catholic students are "strongly encouraged" to attend daily Mass each morning. Ibid. Salpointe's teachers must sign a Faculty Employment Agreement which requires them to promote the relationship among the religious, the academic, and the extracurricular.2 They are encouraged to do so by "assist[ing] students in experiencing how the presence of God is manifest in nature, human history, in the struggles for economic and political justice, and other secular areas of the curriculum." Id., at 92. The agreement also sets forth detailed rules of 2 The Faculty Employment Agreement provides: "'Religious programs are of primary importance in Catholic educational institutions. They are not separate from the academic and extracurricular programs, but are instead interwoven with them and each is believed to promote the other.''' App.90-91. 19 conduct teachers must follow in order to advance the school's Christian mission.3 At Salpointe, where the secular and the sectarian are "inextricably intertwined," governmental assistance to the educational function of the school necessarily entails governmental participation in the school's inculcation of religion. A state-employed sign-language interpreter would be required to communicate the material covered in religion class, the nominally secular subjects that are taught from a religious perspective, and the daily Masses at which Salpointe encourages attendance for Catholic students. In an environment so pervaded by discussions of the divine, the interpreter's every gesture would be infused with religious significance. Indeed, petitioners willingly concede this point: "That the interpreter conveys religious messages is a given in the case." Brief for Petitioners 22. By this concession, petitioners would seem to surrender their constitutional claim. The majority attempts to elude the impact of the record by offering three reasons why this sort of aid to petitioners survives Establishment Clause scrutiny. First, the majority observes that provision of a sign-language interpreter 3 The Faculty Employment Agreement sets forth the following detailed rules of conduct: "'1. Teacher shall at all times present a Christian image to the students by promoting and living the school philosophy stated herein, in the School's Faculty Handbook, the School Catalog and other published statements of this School. In this role the teacher shall support all aspects of the School from its religious programs to its academic and social functions. It is through these areas that a teacher administers to mind, body and spirit of the young men and women who attend Salpointe Catholic High School. "'3. The School believes that faithful adherence to its philosophical principles by its teachers is essential to the School's mission and purpose. Teachers will therefore be expected to assist in the implementation of the philosophical policies of the School, and to compel proper conduct on the part of the students in the areas of general behavior, language, dress and attitude toward the Christian ideaL'" Id., at 91. 20 occurs as "part of a general government program that distributes benefits neutrally to any child qualifying as 'disabled' under the IDEA, without regard to the 'sectariannonsectarian, or public-nonpublic nature' of the school the child attends." Ante, at 10. Second, the majority finds significant the fact that aid is provided to pupils and their parents, rather than directly to sectarian schools. As a result, " '[a]ny aid ... that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients.'" Ante, at 9, quoting Witters v. Washington Dept. of Services for Blind, 474 U. S. 481 , 487 (1986). And, finally, the majority opines that "the task of a sign-language interpreter seems to us quite different from that of a teacher or guidance counselor." Ante, at 13. But the majority's arguments are unavailing. As to the first two, even a general welfare program may have specific applications that are constitutionally forbidden under the Establishment Clause. See Bowen v. Kendrick, 487 U. S. 589 (1988) (holding that Adolescent Family Life Act on its face did not violate the Establishment Clause, but remanding for examination of the constitutionality of particular applications). For example, a general program granting remedial assistance to disadvantaged schoolchildren attending public and private, secular and sectarian schools alike would clearly offend the Establishment Clause insofar as it authorized the provision of teachers. See Aguilar v. Felton, 473 U. S. 402 , 410 (1985); School Dist. of Grand Rapids v. Ball, 473 U. S. 373 , 385 (1985); Meek v. Pittenger, 421 U. S. 349 , 371 (1975). Such a program would not be saved simply because it supplied teachers to secular as well as sectarian schools. Nor would the fact that teachers were furnished to pupils and their parents, rather than directly to sectarian schools, immunize such a program from Establishment Clause scrutiny. See Witters, 474 U. S., at 487 ("Aid may have [unconstitutional] effect even though it takes the form of aid to students 21 or parents"); Wolman v. Walter, 433 U. S. 229 , 250 (1977) (it would "exalt form over substance if this distinction [between equipment loaned to the pupil or his parent and equipment loaned directly to the school] were found to justify a ... different" result); Ball, 473 U. S., at 395 (rejecting "fiction that a ... program could be saved by masking it as aid to individual students"). The majority's decision must turn, then, upon the distinction between a teacher and a signlanguage interpreter. "Although Establishment Clause jurisprudence is characterized by few absolutes," at a minimum "the Clause does absolutely prohibit government-financed or governmentsponsored indoctrination into the beliefs of a particular religious faith." Id., at 385. See Bowen v. Kendrick, 487 U. S., at 623 (O'CONNOR, J., concurring) ("[Ainy use of public funds to promote religious doctrines violates the Establishment Clause") (emphasis in original); Meek, 421 U. S., at 371 (" 'The State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion,'" quoting Lemon v. Kurtzman, 403 U. S. 602 , 619 (1971)); Levitt v. Committee for Public Ed. & Religious Liberty, 413 U. S. 472 , 480 (1973) ("[T]he State is constitutionally compelled to assure that the state-supported activity is not being used for religious indoctrination"). In keeping with this restriction, our cases consistently have rejected the provision by government of any resource capable of advancing a school's religious mission. Although the Court generally has permitted the provision of "secular and nonideological services unrelated to the primary, religion-oriented educational function of the sectarian school," Meek, 421 U. S., at 364, it has always proscribed the provision of benefits that afford even the "opportunity for the transmission of sectarian views," Wolman, 433 U. S., at 244. Thus, the Court has upheld the use of public school buses to transport children to and from school, Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947), while striking down the 22 employment of publicly funded buses for field trips controlled by parochial school teachers, Wolman, 433 U. S., at 254. Similarly, the Court has permitted the provision of secular textbooks whose content is immutable and can be ascertained in advance, Board of Ed. of Central School Dist. No.1 v. Allen, 392 U. S. 236 (1968), while prohibiting the provision of any instructional materials or equipment that could be used to convey a religious message, such as slide projectors, tape recorders, record players, and the like, Wolman, 433 U. S., at 249. State-paid speech and hearing therapists have been allowed to administer diagnostic testing on the premises of parochial schools, id., at 241-242, whereas state-paid remedial teachers and counselors have not been authorized to offer their services because of the risk that they may inculcate religious beliefs, Meek, 421 U. S., at 371. These distinctions perhaps are somewhat fine, but" 'lines must be drawn.'" Ball, 473 U. S., at 398 (citation omitted). And our cases make clear that government crosses the boundary when it furnishes the medium for communication of a religious message. If petitioners receive the relief they seek, it is beyond question that a state-employed signlanguage interpreter would serve as the conduit for James' religious education, thereby assisting Salpointe in its mission of religious indoctrination. But the Establishment Clause is violated when a sectarian school enlists "the machinery of the State to enforce a religious orthodoxy." Lee v. Weisman, 505 U. S. 577 , 592 (1992). Witters, supra, and Mueller v. Allen, 463 U. S. 388 (1983), are not to the contrary. Those cases dealt with the payment of cash or a tax deduction, where governmental involvement ended with the disbursement of funds or lessening of tax. This case, on the other hand, involves ongoing, daily, and intimate governmental participation in the teaching and propagation of religious doctrine. When government dispenses public funds to individuals who employ them to finance private choices, it is difficult to argue that government 23 is actually endorsing religion. But the graphic symbol of the concert of church and state that results when a public employee or instrumentality mouths a religious message is likely to "enlis[t]-at least in the eyes of impressionable youngsters-the powers of government to the support of the religious denomination operating the school." Ball, 473 U. S., at 385. And the union of church and state in pursuit of a common enterprise is likely to place the imprimatur of governmental approval upon the favored religion, conveying a message of exclusion to all those who do not adhere to its tenets. Moreover, this distinction between the provision of funds and the provision of a human being is not merely one of form. It goes to the heart of the principles animating the Establishment Clause. As amicus Council on Religious Freedom points out, the provision of a state-paid sign-language interpreter may pose serious problems for the church as well as for the state. Many sectarian schools impose religiously based rules of conduct, as Salpointe has in this case. A traditional Hindu school would be likely to instruct its students and staff to dress modestly, avoiding any display of their bodies. And an orthodox Jewish yeshiva might well forbid all but kosher food upon its premises. To require public employees to obey such rules would impermissibly threaten individualliberty, but to fail to do so might endanger religious autonomy. For such reasons, it long has been feared that "a union of government and religion tends to destroy government and to degrade religion." Engel v. Vitale, 370 U. S. 421 , 431 (1962). The Establishment Clause was designed to avert exactly this sort of conflict. III The Establishment Clause "rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere." Illinois ex rel. McCollum v. Board of Ed. of 24 School Dist. No. 71, Champaign Cty., 333 U. S. 203 , 212 (1948). To this end, our cases have strived to "chart a course that preserve[s] the autonomy and freedom of religious bodies while avoiding any semblance of established religion." Walz v. Tax Comm'n of New York City, 397 U. S. 664 , 672 (1970). I would not stray, as the Court does today, from the course set by nearly five decades of Establishment Clause jurisprudence. Accordingly, I dissent. JUSTICE O'CONNOR, with whom JUSTICE STEVENS joins, dissenting. I join Part I of JUSTICE BLACKMUN'S dissent. In my view, the Court should vacate and remand this case for consideration of the various threshold problems, statutory and regulatory, that may moot the constitutional question urged upon us by the parties. "It is a fundamental rule of judicial restraint ... that this Court will not reach constitutional questions in advance of the necessity of deciding them." Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. c., 467 U. S. 138 , 157 (1984). That "fundamental rule" suffices to dispose of the case before us, whatever the proper answer to the decidedly hypothetical issue addressed by the Court. I therefore refrain from addressing it myself. See Rust v. Sullivan, 500 U. S. 173 , 223-225 (1991) (O'CONNOR, J., dissenting).

The Supreme Court ruled that the Establishment Clause does not prevent a school district from providing a sign-language interpreter to a deaf student enrolled in a sectarian school, as it is part of a general government program that provides benefits neutrally and does not create a financial incentive for parents to choose a sectarian school. The Court also noted the distinction between providing funds and providing a human service, which can pose different challenges for the state and religious institutions.

Religion

Zelman v. Simmons-Harris

https://supreme.justia.com/cases/federal/us/536/639/

OCTOBER TERM, 2001 Syllabus ZELMAN, SUPERINTENDENT OF PUBLIC INSTRUCTION OF OHIO, ET AL. v. SIMMONS-HARRIS ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No.00-1751. Argued February 20, 2002-Decided June 27, 2002* Ohio's Pilot Project Scholarship Program gives educational choices to families in any Ohio school district that is under state control pursuant to a federal-court order. The program provides tuition aid for certain students in the Cleveland City School District, the only covered district, to attend participating public or private schools of their parent's choosing and tutorial aid for students who choose to remain enrolled in public school. Both religious and nonreligious schools in the district may participate, as may public schools in adjacent school districts. Tuition aid is distributed to parents according to financial need, and where the aid is spent depends solely upon where parents choose to enroll their children. The number of tutorial assistance grants provided to students remaining in public school must equal the number of tuition aid scholarships. In the 1999-2000 school year, 82% of the participating private schools had a religious affiliation, none of the adjacent public schools participated, and 96% of the students participating in the scholarship program were enrolled in religiously affiliated schools. Sixty percent of the students were from families at or below the poverty line. Cleveland schoolchildren also have the option of enrolling in community schools, which are funded under state law but run by their own school boards and receive twice the per-student funding as participating private schools, or magnet schools, which are public schools emphasizing a particular subject area, teaching method, or service, and for which the school district receives the same amount per student as it does for a student enrolled at a traditional public school. Respondents, Ohio taxpayers, sought to enjoin the program on the ground that it violated the Establishment Clause. The Federal District Court granted them summary judgment, and the Sixth Circuit affirmed. Held: The program does not offend the Establishment Clause. Pp. 648-663. *Together with No. 00-1777, Hanna Perkins School et al. v. SimmonsHarris et al., and No. 00-1779, Taylor et al. v. Simmons-Harris et al., also on certiorari to the same court. 640 Syllabus (a) Because the program was enacted for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system, the question is whether the program nonetheless has the forbidden effect of advancing or inhibiting religion. See Agostini v. Felton, 521 U. S. 203 , 222-223. This Court's jurisprudence makes clear that a government aid program is not readily subject to challenge under the Establishment Clause if it is neutral with respect to religion and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice. See, e. g., Mueller v. Allen, 463 U. S. 388 . Under such a program, government aid reaches religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual aid recipients, not the government, whose role ends with the disbursement of benefits. Pp. 648-653. (b) The instant program is one of true private choice, consistent with the Mueller line of cases, and thus constitutional. It is neutral in all respects toward religion, and is part of Ohio's general and multifaceted undertaking to provide educational opportunities to children in a failed school district. It confers educational assistance directly to a broad class of individuals defined without reference to religion and permits participation of all district schools-religious or nonreligious-and adjacent public schools. The only preference in the program is for lowincome families, who receive greater assistance and have priority for admission. Rather than creating financial incentives that skew it toward religious schools, the program creates financial disincentives: Private schools receive only half the government assistance given to community schools and one-third that given to magnet schools, and adjacent public schools would receive two to three times that given to private schools. Families too have a financial disincentive, for they have to copay a portion of private school tuition, but pay nothing at a community, magnet, or traditional public school. No reasonable observer would think that such a neutral private choice program carries with it the imprimatur of government endorsement. Nor is there evidence that the program fails to provide genuine opportunities for Cleveland parents to select secular educational options: Their children may remain in public school as before, remain in public school with funded tutoring aid, obtain a scholarship and choose to attend a religious school, obtain a scholarship and choose to attend a nonreligious private school, enroll in a community school, or enroll in a magnet school. The Establishment Clause question whether Ohio is coercing parents into sending their children to religious schools must be answered by evaluating all options 641 Ohio provides Cleveland schoolchildren, only one of which is to obtain a scholarship and then choose a religious school. Cleveland's preponderance of religiously affiliated schools did not result from the program, but is a phenomenon common to many American cities. Eighty-two percent of Cleveland's private schools are religious, as are 81% of Ohio's private schools. To attribute constitutional significance to the 82% figure would lead to the absurd result that a neutral school-choice program might be permissible in parts of Ohio where the percentage is lower, but not in Cleveland, where Ohio has deemed such programs most sorely needed. Likewise, an identical private choice program might be constitutional only in States with a lower percentage of religious private schools. Respondents' additional argument that constitutional significance should be attached to the fact that 96% of the scholarship recipients have enrolled in religious schools was flatly rejected in Mueller. The constitutionality of a neutral educational aid program simply does not turn on whether and why, in a particular area, at a particular time, most private schools are religious, or most recipients choose to use the aid at a religious school. Finally, contrary to respondents' argument, Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756 -a case that expressly reserved judgment on the sort of program challenged here-does not govern neutral educational assistance programs that offer aid directly to a broad class of individuals defined without regard to religion. pp. 653-663. 234 F.3d 945 , reversed. REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. O'CONNOR, J., post, p. 663, and THOMAS, J., post, p. 676, filed concurring opinions. STEVENS, J., filed a dissenting opinion, post, p. 684. SOUTER, J., filed a dissenting opinion, in which STEVENS, GINSBURG, and BREYER, JJ., joined, post, p. 686. BREYER, J., filed a dissenting opinion, in which STEVENS and SouTER, JJ., joined, post, p. 717. Judith L. French, Assistant Attorney General of Ohio, argued the cause for petitioners in No. 00-1751. With her on the briefs were Betty D. Montgomery, Attorney General, David M. Gormley, State Solicitor, Karen L. Lazorishak, James G. Tassie, and Robert L. Strayer, Assistant Attorneys General, Kenneth W Starr, and Robert R. Gasaway. David J. Young argued the cause for petitioners in No. 00-1777. With him on the briefs were Michael R. Reed and David 642 Counsel J. Hessler. Clint Bolick, William H. Mellor, Richard D. Komer, Robert Freedman, David Tryon, and Charles Fried filed briefs for petitioners in No. 00-1779. Solicitor General Olson argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General McCallum, Deputy Solicitor General Kneedler, Gregory G. Garre, Robert M. Loeb, and Lowell v: Sturgill, Jr. Robert H. Chanin argued the cause for respondents Simmons- Harris et al. in all cases. With him on the brief were Andrew D. Roth, Laurence Gold, Steven R. Shapiro, Raymond Vasvari, Elliot M. Mincberg, and Judith E. Schaeffer. Marvin E. Frankel argued the cause for respondents Gatton et al. in all cases. With him on the brief were David J. Strom, Donald J. Mooney, Jr., and Marc D. Stern.t tBriefs of amici curiae urging reversal were filed for the State of Florida et al. by Robert A. Butterworth, Attorney General of Florida, Thomas E. Warner, Solicitor General, and Matthew J. Conigliaro, Deputy Solicitor General, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, M. Jane Brady of Delaware, Don Stenberg of Nebraska, D. Michael Fisher of Pennsylvania, Charles M. Condon of South Carolina, and Randolph A. Beales of Virginia; for the State of Wisconsin by Stephen P. Hurley, Gordon P. Giampietro, and Donald A. Daugherty, Jr.; for Gary E. Johnson, Governor of New Mexico, by Jeffrey S. Bucholtz; for Mayor Rudolph W. Giuliani et al. by Michael D. Hess, Corporation Counsel of the City of New York, Leonard J. Koerner, and Edward F. X. Hart; for Councilwoman Fannie Lewis by Steffen N Johnson, Stephen M. Shapiro, Robert M. Dow, Jr., and Richard P. Hutchison; for the American Education Reform Council by Louis R. Cohen, C. Boyden Gray, and Todd Zubler; for the American Civil Rights Union by Peter J. Ferrara; for the American Center for Law and Justice, Inc., et al. by Jay Alan Sekulow, James M. Henderson, Sr., Colby M. May, Vincent McCarthy, and Walter M. Weber; for the Association of Christian Schools International et al. by Edward McGlynn Gaffney, Jr., and Richard A. Epstein; for the Becket Fund for Religious Liberty by Kevin J. Hasson, Eric W Treene, Roman P. Storzer, Anthony R. Picarello, Jr., and Richard Garnett; for the Black Alliance for Educational Options by Samuel Estreicher; for the Catholic League for Religious and Civil Rights by Robert P. George; for the Center for Education Reform et al. by Robert A. Destro 643 CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. The State of Ohio has established a pilot program designed to provide educational choices to families with children who and Joseph E. Schmitz; for the Center for Individual Freedom et al. by Erik S. Jaffe; for Children First America et al. by Harold J. (Tex) Lezar, Jr., and Stephen G. Gilles; for the Christian Legal Society et al. by Stuart J. Lark and Gregory S. Baylor; for the Claremont Institute Center for Constitutional Jurisprudence by Edwin Meese III; for the Coalition for Local Sovereignty by Kenneth B. Clark; for the National Association of Independent Schools by Allen G. Siegel; for the National Jewish Commission on Law and Public Affairs by Nathan Lewin, Dennis Rapps, Nathan Diament, and David Zwiebel; for the REACH Alliance by Philip J. Murren; for the Rutherford Institute by John W Whitehead, Steven H. Aden, Robert R. Melnick, and James J. Knicely; for the Solidarity Center for Law and Justice, P. C., by James P. Kelly III; for the United States Conference of Catholic Bishops by Mark E. Chopko, John Liekweg, and Jeffrey Hunter Moon; and for Hugh Calkins, pro se. Briefs of amici curiae urging affirmance were filed for the American Jewish Committee et al. by Howard G. Kristol, Erwin Chemerinsky, Jeffrey P. Sinensky, Kara H. Stein, Arthur H. Bryant, and Victoria W Ni; for the Anti-Defamation League by Martin E. Karlinsky, Daniel J. Beller, Steven M. Freeman, and Frederick M. Lawrence; for the Council on Religious Freedom et al. by Lee Boothby and Alan J. Reinach; for the NAACP Legal Defense and Educational Fund, Inc., et al. by Norman J. Chachkin, Elaine R. Jones, Theodore M. Shaw, James L. Cott, Dennis D. Parker, and Dennis Courtland Hayes; for the National Committee for Public Education and Religious Liberty by Geoffrey F. Aronow and Stanley Geller; for the National School Boards Association et al. by Julie K. Underwood, Scott Bales, and James Martin; for the Ohio Association for Public Education and Religious Liberty by Patrick Farrell Timmins, Jr.; and for the Ohio School Boards Association et al. by Kimball H. Carey and Susan Briefs of amici curiae were filed for the California Alliance for Public Schools by Robin B. Johansen and Joseph Remcho; for Vermonters for Better Education by Michael D. Dean; for John E. Coons et al. by Mr. Coons, pro se, and Stephen D. Sugarman, pro se; for Jesse H. Choper et al. by Mr. Choper, pro se, William Bassett, Teresa Collett, David Forte, Richard Garnett, Lino Graglia, Michael Heise, Gail Heriot, Roderick Hills, Grant Nelson, Michael Perry, David Post, Charles Rice, Rosemary Salomone, Gregory Sisk, Steve Smith, and Harry Tepker; and for Ira J. Paul et al. by Sharon L. Browne. 644 reside in the Cleveland City School District. The question presented is whether this program offends the Establishment Clause of the United States Constitution. We hold that it does not. There are more than 75,000 children enrolled in the Cleveland City School District. The majority of these children are from low-income and minority families. Few of these families enjoy the means to send their children to any school other than an inner-city public school. For more than a generation, however, Cleveland's public schools have been among the worst performing public schools in the Nation. In 1995, a Federal District Court declared a "crisis of magnitude" and placed the entire Cleveland school district under state control. See Reed v. Rhodes, No. 1:73 CV 1300 (ND Ohio, Mar. 3, 1995). Shortly thereafter, the state auditor found that Cleveland's public schools were in the midst of a "crisis that is perhaps unprecedented in the history of American education." Cleveland City School District Performance Audit 2-1 (Mar. 1996). The district had failed to meet any of the 18 state standards for minimal acceptable performance. Only 1 in 10 ninth graders could pass a basic proficiency examination, and students at all levels performed at a dismal rate compared with students in other Ohio public schools. More than two-thirds of high school students either dropped or failed out before graduation. Of those students who managed to reach their senior year, one of every four still failed to graduate. Of those students who did graduate, few could read, write, or compute at levels comparable to their counterparts in other cities. It is against this backdrop that Ohio enacted, among other initiatives, its Pilot Project Scholarship Program, Ohio Rev. Code Ann. §§ 3313.974-3313.979 (Anderson 1999 and Supp. 2000) (program). The program provides financial assistance to families in any Ohio school district that is or has been "under federal court order requiring supervision and opera- 645 tional management of the district by the state superintendent." § 3313.975(A). Cleveland is the only Ohio school district to fall within that category. The program provides two basic kinds of assistance to parents of children in a covered district. First, the program provides tuition aid for students in kindergarten through third grade, expanding each year through eighth grade, to attend a participating public or private school of their parent's choosing. §§ 3313.975(B) and (C)(l). Second, the program provides tutorial aid for students who choose to remain enrolled in public school. § 3313.975(A). The tuition aid portion of the program is designed to provide educational choices to parents who reside in a covered district. Any private school, whether religious or nonreligious, may participate in the program and accept program students so long as the school is located within the boundaries of a covered district and meets statewide educational standards. § 313.976(A)(3). Participating private schools must agree not to discriminate on the basis of race, religion, or ethnic background, or to "advocate or foster unlawful behavior or teach hatred of any person or group on the basis of race, ethnicity, national origin, or religion." § 3313.976(A)(6). Any public school located in a school district adjacent to the covered district may also participate in the program. § 3313.976(C). Adjacent public schools are eligible to receive a $2,250 tuition grant for each program student accepted in addition to the full amount of per-pupil state funding attributable to each additional student. §§ 3313.976(C), 3317.03(1)(1).1 All participating schools, 1 Although the parties dispute the precise amount of state funding received by suburban school districts adjacent to the Cleveland City School District, there is no dispute that any suburban district agreeing to participate in the program would receive a $2,250 tuition grant plus the ordinary allotment of per-pupil state funding for each program student enrolled in a suburban public school. See Brief for Respondents Simmons-Harris 646 whether public or private, are required to accept students in accordance with rules and procedures established by the state superintendent. §§ 3313.977(A)(1)(a)-(c). Tuition aid is distributed to parents according to financial need. Families with incomes below 200% of the poverty line are given priority and are eligible to receive 90% of private school tuition up to $2,250. §§ 3313.978(A) and (C)(l). For these lowest income families, participating private schools may not charge a parental copayment greater than $250. § 3313.976(A)(8). For all other families, the program pays 75% of tuition costs, up to $1,875, with no copayment cap. §§ 3313.976(A)(8), 3313.978(A). These families receive tuition aid only if the number of available scholarships exceeds the number of low-income children who choose to participate.2 Where tuition aid is spent depends solely upon where parents who receive tuition aid choose to enroll their child. If parents choose a private school, checks are made payable to the parents who then endorse the checks over to the chosen school. § 3313.979. The tutorial aid portion of the program provides tutorial assistance through grants to any student in a covered district who chooses to remain in public school. Parents arrange for registered tutors to provide assistance to their children and then submit bills for those services to the State for payment. §§ 3313.976(D), 3313.979(C). Students from low-income families receive 90% of the amount charged for such assistance up to $360. All other students receive 75% of that amount. § 3313.978(B). The number of tutorial assistance grants offered to students in a covered district must equal the number of tuition aid scholarships provided to stu- et al. 30, n. 11 (suburban schools would receive "on average, approximately, $4,750" per program student); Brief for Petitioners in No. 00-1779, p. 39 (suburban schools would receive "about $6,544" per program student). 2 The number of available scholarships per covered district is determined annually by the Ohio Superintendent for Public Instruction. §§ 3313.978(A)-(B). 647 dents enrolled at participating private or adjacent public schools. § 3313.975(A). The program has been in operation within the Cleveland City School District since the 1996-1997 school year. In the 1999-2000 school year, 56 private schools participated in the program, 46 (or 82%) of which had a religious affiliation. None of the public schools in districts adjacent to Cleveland have elected to participate. More than 3,700 students participated in the scholarship program, most of whom (96%) enrolled in religiously affiliated schools. Sixty percent of these students were from families at or below the poverty line. In the 1998-1999 school year, approximately 1,400 Cleveland public school students received tutorial aid. This number was expected to double during the 1999-2000 school year. The program is part of a broader undertaking by the State to enhance the educational options of Cleveland's schoolchildren in response to the 1995 takeover. That undertaking includes programs governing community and magnet schools. Community schools are funded under state law but are run by their own school boards, not by local school districts. §§ 3314.01(B), 3314.04. These schools enjoy academic independence to hire their own teachers and to determine their own curriculum. They can have no religious affiliation and are required to accept students by lottery. During the 1999-2000 school year, there were 10 startup community schools in the Cleveland City School District with more than 1,900 students enrolled. For each child enrolled in a community school, the school receives state funding of $4,518, twice the funding a participating program school may receive. Magnet schools are public schools operated by a local school board that emphasize a particular subject area, teaching method, or service to students. For each student enrolled in a magnet school, the school district receives $7,746, including state funding of $4,167, the same amount received 648 per student enrolled at a traditional public school. As of 1999, parents in Cleveland were able to choose from among 23 magnet schools, which together enrolled more than 13,000 students in kindergarten through eighth grade. These schools provide specialized teaching methods, such as Montessori, or a particularized curriculum focus, such as foreign language, computers, or the arts. In 1996, respondents, a group of Ohio taxpayers, challenged the Ohio program in state court on state and federal grounds. The Ohio Supreme Court rejected respondents' federal claims, but held that the enactment of the program violated certain procedural requirements of the Ohio Constitution. Simmons-Harris v. Goff, 86 Ohio St. 3d 1, 8-9, 711 N. E. 2d 203, 211 (1999). The state legislature immediately cured this defect, leaving the basic provisions discussed above intact. In July 1999, respondents filed this action in United States District Court, seeking to enjoin the reenacted program on the ground that it violated the Establishment Clause of the United States Constitution. In August 1999, the District Court issued a preliminary injunction barring further implementation of the program, 54 F. Supp. 2d 725 (ND Ohio), which we stayed pending review by the Court of Appeals, 528 U. S. 983 (1999). In December 1999, the District Court granted summary judgment for respondents. 72 F. Supp. 2d 834. In December 2000, a divided panel of the Court of Appeals affirmed the judgment of the District Court, finding that the program had the "primary effect" of advancing religion in violation of the Establishment Clause. 234 F.3d 945 (CA6). The Court of Appeals stayed its mandate pending disposition in this Court. App. to Pet. for Cert. in No. 00-1779, p. 151. We granted certiorari, 533 U. S. 976 (2001), and now reverse the Court of Appeals. The Establishment Clause of the First Amendment, applied to the States through the Fourteenth Amendment, prevents a State from enacting laws that have the "purpose" 649 or "effect" of advancing or inhibiting religion. Agostini v. Felton, 521 U. S. 203 , 222-223 (1997) ("[WJe continue to ask whether the government acted with the purpose of advancing or inhibiting religion [and] whether the aid has the 'effect' of advancing or inhibiting religion" (citations omitted)). There is no dispute that the program challenged here was enacted for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system. Thus, the question presented is whether the Ohio program nonetheless has the forbidden "effect" of advancing or inhibiting religion. To answer that question, our decisions have drawn a consistent distinction between government programs that provide aid directly to religious schools, Mitchell v. Helms, 530 U. S. 793, 810-814 (2000) (plurality opinion); id., at 841-844 (O'CONNOR, J., concurring in judgment); Agostini, supra, at 225-227; Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 , 842 (1995) (collecting cases), and programs of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals, Mueller v. Allen, 463 U. S. 388 (1983); Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481 (1986); Zobrest v. Catalina Foothills School Dist., 509 U. S. 1 (1993). While our jurisprudence with respect to the constitutionality of direct aid programs has "changed significantly" over the past two decades, Agostini, supra, at 236, our jurisprudence with respect to true private choice programs has remained consistent and unbroken. Three times we have confronted Establishment Clause challenges to neutral government programs that provide aid directly to a broad class of individuals, who, in turn, direct the aid to religious schools or institutions of their own choosing. Three times we have rejected such challenges. In Mueller, we rejected an Establishment Clause challenge to a Minnesota program authorizing tax deductions for various educational expenses, including private school tu- 650 ition costs, even though the great majority of the program's beneficiaries (96%) were parents of children in religious schools. We began by focusing on the class of beneficiaries, finding that because the class included "all parents," including parents with "children [who] attend nonsectarian private schools or sectarian private schools," 463 U. S., at 397 (emphasis in original), the program was "not readily subject to challenge under the Establishment Clause," id., at 399 (citing Widmar v. Vincent, 454 U. S. 263 , 274 (1981) ("The provision of benefits to so broad a spectrum of groups is an important index of secular effect")). Then, viewing the program as a whole, we emphasized the principle of private choice, noting that public funds were made available to religious schools "only as a result of numerous, private choices of individual parents of school-age children." 463 U. S., at 399-400. This, we said, ensured that "no 'imprimatur of state approval' can be deemed to have been conferred on any particular religion, or on religion generally." Id., at 399 (quoting Widmar, supra, at 274)). We thus found it irrelevant to the constitutional inquiry that the vast majority of beneficiaries were parents of children in religious schools, saying: "We would be loath to adopt a rule grounding the constitutionality of a facially neutral law on annual reports reciting the extent to which various classes of private citizens claimed benefits under the law." 463 U. S., at 401. That the program was one of true private choice, with no evidence that the State deliberately skewed incentives toward religious schools, was sufficient for the program to survive scrutiny under the Establishment Clause. In Witters, we used identical reasoning to reject an Establishment Clause challenge to a vocational scholarship program that provided tuition aid to a student studying at a religious institution to become a pastor. Looking at the program as a whole, we observed that "[a]ny aid ... that ulti- 651 mately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients." 474 U. S., at 487. We further remarked that, as in Mueller, "[the] program is made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited." 474 U. S., at 487 (internal quotation marks omitted). In light of these factors, we held that the program was not inconsistent with the Establishment Clause. Id., at 488-489. Five Members of the Court, in separate opinions, emphasized the general rule from Mueller that the amount of government aid channeled to religious institutions by individual aid recipients was not relevant to the constitutional inquiry. 474 U. S., at 490-491 (Powell, J., joined by Burger, C. J., and REHNQUIST, J., concurring) (citing Mueller, supra, at 398399); 474 U. S., at 493 (O'CONNOR, J., concurring in part and concurring in judgment); id., at 490 (White, J., concurring). Our holding thus rested not on whether few or many recipients chose to expend government aid at a religious school but, rather, on whether recipients generally were empowered to direct the aid to schools or institutions of their own choosing. Finally, in Zobrest, we applied Mueller and Witters to reject an Establishment Clause challenge to a federal program that permitted sign-language interpreters to assist deaf children enrolled in religious schools. Reviewing our earlier decisions, we stated that "government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge." 509 U. S., at 8. Looking once again to the challenged program as a whole, we observed that the program "distributes benefits neutrally to any child qualifying as 'disabled.'" Id., at 10. Its "primary beneficiaries," we said, were "disabled children, not sectarian schools." Id., at 12. 652 We further observed that "[b]y according parents freedom to select a school of their choice, the statute ensures that a government-paid interpreter will be present in a sectarian school only as a result of the private decision of individual parents." Id., at 10. Our focus again was on neutrality and the principle of private choice, not on the number of program beneficiaries attending religious schools. Id., at 10-11. See, e. g., Agostini, 521 U. S., at 229 ("Zobrest did not turn on the fact that James Zobrest had, at the time of litigation, been the only child using a publicly funded sign-language interpreter to attend a parochial school"). Because the program ensured that parents were the ones to select a religious school as the best learning environment for their handicapped child, the circuit between government and religion was broken, and the Establishment Clause was not implicated. Mueller, Witters, and Zobrest thus make clear that where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause. A program that shares these features permits government aid to reach religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits. As a plurality of this Court recentlyobserved: "[I]f numerous private choices, rather than the single choice of a government, determine the distribution of aid, pursuant to neutral eligibility criteria, then a government cannot, or at least cannot easily, grant special 653 favors that might lead to a religious establishment." Mitchell, 530 U. S., at 810. See also id., at 843 (O'CONNOR, J., concurring in judgment) ("[W]hen government aid supports a school's religious mission only because of independent decisions made by numerous individuals to guide their secular aid to that school, 'no reasonable observer is likely to draw from the facts ... an inference that the State itself is endorsing a religious practice or belief'" (quoting Witters, 474 U. S., at 493 (O'CONNOR, J., concurring in part and concurring in judgment))). It is precisely for these reasons that we have never found a program of true private choice to offend the Establishment Clause. We believe that the program challenged here is a program of true private choice, consistent with Mueller, Witters, and Zobrest, and thus constitutional. As was true in those cases, the Ohio program is neutral in all respects toward religion. It is part of a general and multifaceted undertaking by the State of Ohio to provide educational opportunities to the children of a failed school district. It confers educational assistance directly to a broad class of individuals defined without reference to religion, i. e., any parent of a school-age child who resides in the Cleveland City School District. The program permits the participation of all schools within the district, religious or nonreligious. Adjacent public schools also may participate and have a financial incentive to do so. Program benefits are available to participating families on neutral terms, with no reference to religion. The only preference stated anywhere in the program is a preference for low-income families, who receive greater assistance and are given priority for admission at participating schools. There are no "financial incentive[s]" that "ske[w]" the program toward religious schools. Witters, supra, at 487-488. Such incentives "[are] not present ... where the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both reli- 654 gious and secular beneficiaries on a nondiscriminatory basis." Agostini, supra, at 231. The program here in fact creates financial disincentives for religious schools, with private schools receiving only half the government assistance given to community schools and one-third the assistance given to magnet schools. Adjacent public schools, should any choose to accept program students, are also eligible to receive two to three times the state funding of a private religious school. Families too have a financial disincentive to choose a private religious school over other schools. Parents that choose to participate in the scholarship program and then to enroll their children in a private school (religious or nonreligious) must copay a portion of the school's tuition. Families that choose a community school, magnet school, or traditional public school pay nothing. Although such features of the program are not necessary to its constitutionality, they clearly dispel the claim that the program "creates ... financial incentive[s] for parents to choose a sectarian school." Zobrest, 509 U. S., at 10.3 Respondents suggest that even without a financial incentive for parents to choose a religious school, the program creates a "public perception that the State is endorsing religious practices and beliefs." Brief for Respondents Simmons-Harris et al. 37-38. But we have repeatedly rec- 3 JUSTICE SOUTER suggests the program is not "neutral" because program students cannot spend scholarship vouchers at traditional public schools. Post, at 697-698 (dissenting opinion). This objection is mistaken: Public schools in Cleveland already receive $7,097 in public funding per pupil-$4,167 of which is attributable to the State. App. 56a. Program students who receive tutoring aid and remain enrolled in traditional public schools therefore direct almost twice as much state funding to their chosen school as do program students who receive a scholarship and attend a private school. Ibid. JUSTICE SOUTER does not seriously claim that the program differentiates based on the religious status of beneficiaries or providers of services, the touchstone of neutrality under the Establishment Clause. Mitchell v. Helms, 530 U. S. 793 , 809 (2000) (plurality opinion); id., at 838 (O'CONNOR, J., concurring in judgment). 655 ognized that no reasonable observer would think a neutral program of private choice, where state aid reaches religious schools solely as a result of the numerous independent decisions of private individuals, carries with it the imprimatur of government endorsement. Mueller, 463 U. S., at 399; Witters, supra, at 488-489; Zobrest, supra, at 10-11; e. g., Mitchell, supra, at 842-843 (O'CONNOR, J., concurring in judgment) ("In terms of public perception, a government program of direct aid to religious schools ... differs meaningfully from the government distributing aid directly to individual students who, in turn, decide to use the aid at the same religious schools"). The argument is particularly misplaced here since "the reasonable observer in the endorsement inquiry must be deemed aware" of the "history and context" underlying a challenged program. Good News Club v. Milford Central School, 533 U. S. 98 , 119 (2001) (internal quotation marks omitted). See also Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753 , 780 (1995) (O'CONNOR, J., concurring in part and concurring in judgment). Any objective observer familiar with the full history and context of the Ohio program would reasonably view it as one aspect of a broader undertaking to assist poor children in failed schools, not as an endorsement of religious schooling in general. There also is no evidence that the program fails to provide genuine opportunities for Cleveland parents to select secular educational options for their school-age children. Cleveland schoolchildren enjoy a range of educational choices: They may remain in public school as before, remain in public school with publicly funded tutoring aid, obtain a scholarship and choose a religious school, obtain a scholarship and choose a nonreligious private school, enroll in a community school, or enroll in a magnet school. That 46 of the 56 private schools now participating in the program are religious schools does not condemn it as a violation of the Establishment Clause. The Establishment Clause question is whether Ohio is coerc- 656 ing parents into sending their children to religious schools, and that question must be answered by evaluating all options Ohio provides Cleveland schoolchildren, only one of which is to obtain a program scholarship and then choose a religious school. JUSTICE SOUTER speculates that because more private religious schools currently participate in the program, the program itself must somehow discourage the participation of private nonreligious schools. Post, at 703-705 (dissenting opinion).4 But Cleveland's preponderance of religiously af- 4JUSTICE SOUTER appears to base this claim on the unfounded assumption that capping the amount of tuition charged to low-income students (at $2,500) favors participation by religious schools. Post, at 704-705 (dissenting opinion). But elsewhere he claims that the program spends too much money on private schools and chides the state legislature for even proposing to raise the scholarship amount for low-income recipients. Post, at 697-698, 710-711, 714-715. His assumption also finds no support in the record, which shows that nonreligious private schools operating in Cleveland also seek and receive substantial third-party contributions. App. 194a-195a; App. to Pet. for Cert. in No. 00-1777, p. 119a. Indeed, the actual operation of the program refutes JUSTICE SOUTER'S argument that few but religious schools can afford to participate: Ten secular private schools operated within the Cleveland City School District when the program was adopted. Reply Brieffor Petitioners in No. 00-1777, p. 4 (citing Ohio Educational Directory, 1999-2000 School Year, Alphabetic List of Nonpublic Schools, Ohio Dept. of Ed.). All 10 chose to participate in the program and have continued to participate to this day. App. 281a- 286a. And while no religious schools have been created in response to the program, several nonreligious schools have been created, id., at 144a-148a, 224a-225a, in spite of the fact that a principal barrier to entry of new private schools is the uncertainty caused by protracted litigation which has plagued the program since its inception, post, at 672 (O'CONNOR, J., concurring) (citing App. 225a, 227a). See also 234 F.3d 945 , 970 (CA6 2000) (Ryan, J., concurring in part and dissenting in part) ("There is not a scintilla of evidence in this case that any school, public or private, has been discouraged from participating in the school voucher program because it cannot 'afford' to do so"). Similarly mistaken is JUSTICE SOUTER'S reliance on the low enrollment of scholarship students in nonreligious schools 657 filiated private schools certainly did not arise as a result of the program; it is a phenomenon common to many American cities. See U. S. Dept. of Ed., National Center for Education Statistics, Private School Universe Survey: 1999-2000, pp. 2-4 (NCES 2001-330, 2001) (hereinafter Private School Universe Survey) (cited in Brief for United States as Amicus Curiae 24). Indeed, by all accounts the program has captured a remarkable cross-section of private schools, religious and nonreligious. It is true that 82% of Cleveland's participating private schools are religious schools, but it is also true that 81% of private schools in Ohio are religious schools. See Brief for State of Florida et al. as Amici Curiae 16 (citing Private School Universe Survey). To attribute constitutional significance to this figure, moreover, would lead to the absurd result that a neutral school-choice program might be permissible in some parts of Ohio, such as Columbus, where a lower percentage of private schools are religious schools, see Ohio Educational Directory (Lodging of Respondents Gatton et al., available in Clerk of Court's case file), and Reply Brief for Petitioners in No. 00-1751, p. 12, n. 1, but not in inner-city Cleveland, where Ohio has deemed such programs most sorely needed, but where the preponderance of religious schools happens to be greater. Cf. Brief for State of Florida et al. as Amici Curiae 17 ("[T]he percentages of sectarian to nonsectarian private schools within Florida's 67 school districts ... vary from zero to 100 percent"). Likewise, an identical private choice program might be constitutional in some States, such as Maine or Utah, where less during the 1999-2000 school year. Post, at 704 (citing Brief for California Alliance for Public Schools as Amicus Curiae 15). These figures ignore the fact that the number of program students enrolled in nonreligious schools has widely varied from year to year, infra, at 659; e. g., n. 5, infra, underscoring why the constitutionality of a neutral choice program does not turn on annual tallies of private decisions made in any given year by thousands of individual aid recipients, infra, at 659 (citing Mueller v. Allen, 463 U. S. 388 , 401 (1983)). 658 than 45% of private schools are religious schools, but not in other States, such as Nebraska or Kansas, where over 90% of private schools are religious schools. Id., at 15-16 (citing Private School Universe Survey). Respondents and JUSTICE SOUTER claim that even if we do not focus on the number of participating schools that are religious schools, we should attach constitutional significance to the fact that 96% of scholarship recipients have enrolled in religious schools. They claim that this alone proves parents lack genuine choice, even if no parent has ever said so. We need not consider this argument in detail, since it was flatly rejected in Mueller, where we found it irrelevant that 96% of parents taking deductions for tuition expenses paid tuition at religious schools. Indeed, we have recently found it irrelevant even to the constitutionality of a direct aid program that a vast majority of program benefits went to religious schools. See Agostini, 521 U. S., at 229 ("Nor are we willing to conclude that the constitutionality of an aid program depends on the number of sectarian school students who happen to receive the otherwise neutral aid" (citing Mueller, 463 U. S., at 401)); see also Mitchell, 530 U. S., at 812, n. 6 (plurality opinion) ("[Agostini] held that the proportion of aid benefiting students at religious schools pursuant to a neutral program involving private choices was irrelevant to the constitutional inquiry"); id., at 848 (O'CONNOR, J., concurring in judgment) (same) (quoting Agostini, supra, at 229). The constitutionality of a neutral educational aid program simply does not turn on whether and why, in a particular area, at a particular time, most private schools are run by religious organizations, or most recipients choose to use the aid at a religious school. As we said in Mueller, "[s]uch an approach would scarcely provide the certainty that this field stands in need of, nor can we perceive principled standards by which such statistical evidence might be evaluated." 463 U. S., at 401. 659 This point is aptly illustrated here. The 96% figure upon which respondents and JUSTICE SOUTER rely discounts entirely (1) the more than 1,900 Cleveland children enrolled in alternative community schools, (2) the more than 13,000 children enrolled in alternative magnet schools, and (3) the more than 1,400 children enrolled in traditional public schools with tutorial assistance. See supra, at 647-648. Including some or all of these children in the denominator of children enrolled in nontraditional schools during the 19992000 school year drops the percentage enrolled in religious schools from 96% to under 20%. See also J. Greene, The Racial, Economic, and Religious Context of Parental Choice in Cleveland 11, Table 4 (Oct. 8, 1999), App. 217a (reporting that only 16.5% of nontraditional schoolchildren in Cleveland choose religious schools). The 96% figure also represents but a snapshot of one particular school year. In the 19971998 school year, by contrast, only 78% of scholarship recipients attended religious schools. See App. to Pet. for Cert. in No. 00-1751, p. 5a. The difference was attributable to two private nonreligious schools that had accepted 15% of all scholarship students electing instead to register as community schools, in light of larger per-pupil funding for community schools and the uncertain future of the scholarship program generated by this litigation. See App. 59a-62a, 209a, 223a-227a.5 Many of the students enrolled in these schools 5 The fluctuations seen in the Cleveland program are hardly atypical. Experience in Milwaukee, which since 1991 has operated an educational choice program similar to the Ohio program, demonstrates that the mix of participating schools fluctuates significantly from year to year based on a number of factors, one of which is the uncertainty caused by persistent litigation. See App. 218a, 229a-236a; Brieffor State of Wisconsin as Amicus Curiae 10-13 (hereinafter Brieffor Wisconsin) (citing Wisconsin Dept. of Public Instruction, Milwaukee Parental Choice Program Facts and Figures for 2001-2002). Since the Wisconsin Supreme Court declared the Milwaukee program constitutional in 1998, Jackson v. Benson, 218 Wis. 2d 835, 578 N. W. 2d 602, several nonreligious private schools have entered the Milwaukee market, and now represent 32% of all participating 660 as scholarship students remained enrolled as community school students, id., at 145a-146a, thus demonstrating the arbitrariness of counting one type of school but not the other to assess primary effect, e. g., Ohio Rev. Code Ann. § 3314.11 (Anderson 1999) (establishing a single "office of school options" to "provide services that facilitate the management of the community schools program and the pilot project scholarship program"). In spite of repeated questioning from the Court at oral argument, respondents offered no convincing justification for their approach, which relies entirely on such arbitrary classifications. Tr. of Oral Arg. 52-60.6 schools. Brief for Wisconsin 11-12. Similarly, the number of program students attending nonreligious private schools increased from 2,048 to 3,582; these students now represent 33% of all program students. Id., at 12-13. There are currently 34 nonreligious private schools participating in the Milwaukee program, a nearly five-fold increase from the 7 nonreligious schools that participated when the program began in 1990. See App. 218a; Brief for Wisconsin 12. And the total number of students enrolled in nonreligious schools has grown from 337 when the program began to 3,582 in the most recent school year. See App. 218a, 234a-236a; Brief for Wisconsin 12-13. These numbers further demonstrate the wisdom of our refusal in Mueller v. Allen, 463 U. S., at 401, to make the constitutionality of such a program depend on "annual reports reciting the extent to which various classes of private citizens claimed benefits under the law." 6 JUSTICE SOUTER and JUSTICE STEVENS claim that community schools and magnet schools are separate and distinct from program schools, simply because the program itself does not include community and magnet school options. Post, at 698-701 (SOUTER, J., dissenting); post, at 685 (STEVENS, J., dissenting). But none of the dissenting opinions explain how there is any perceptible difference between scholarship schools, community schools, or magnet schools from the perspective of Cleveland parents looking to choose the best educational option for their school-age children. Parents who choose a program school in fact receive from the State precisely what parents who choose a community or magnet school receivethe opportunity to send their children largely at state expense to schools they prefer to their local public school. See, e. g., App. 147a, 168a-169a; App. in Nos. 00-3055, etc. (CA6), pp. 1635-1645 and 1657-1673 (Cleveland parents who enroll their children in schools other than local public schools typically explore all state-funded options before choosing an alternative school). 661 Respondents finally claim that we should look to Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756 (1973), to decide these cases. We disagree for two reasons. First, the program in Nyquist was quite different from the program challenged here. Nyquist involved a New York program that gave a package of benefits exclusively to private schools and the parents of private school enrollees. Although the program was enacted for ostensibly secular purposes, id., at 773-774, we found that its "function" was "unmistakably to provide desired financial support for nonpublic, sectarian institutions," id., at 783 (emphasis added). Its genesis, we said, was that private religious schools faced "increasingly grave fiscal problems." Id., at 795. The program thus provided direct money grants to religious schools. Id., at 762-764. It provided tax benefits "unrelated to the amount of money actually expended by any parent on tuition," ensuring a windfall to parents of children in religious schools. Id., at 790. It similarly provided tuition reimbursements designed explicitly to "offe[r] ... an incentive to parents to send their children to sectarian schools." Id., at 786. Indeed, the program flatly prohibited the participation of any public school, or parent of any public school enrollee. Id., at 763-765. Ohio's program shares none of these features. Second, were there any doubt that the program challenged in Nyquist is far removed from the program challenged here, we expressly reserved judgment with respect to "a case involving some form of public assistance (e. g., scholarships) made available generally without regard to the sectariannonsectarian, or public-nonpublic nature of the institution benefited." Id., at 782-783, n. 38. That, of course, is the very question now before us, and it has since been answered, first in Mueller, 463 U. S., at 398-399 ("[A] program ... that neutrally provides state assistance to a broad spectrum of citizens is not readily subject to challenge under the Establishment Clause" (citing Nyquist, supra, at 782-783, n. 38)), 662 then in Witters, 474 U. S., at 487 ("Washington's program is 'made available generally without regard to the sectariannonsectarian, or public-nonpublic nature of the institution benefited'" (quoting Nyquist, supra, at 782-783, n. 38)), and again in Zobrest, 509 U. S., at 12-13 ("[T]he function of the [program] is hardly 'to provide desired financial support for nonpublic, sectarian institutions'" (quoting Nyquist, supra, at 782-783, n. 38)). To the extent the scope of Nyquist has remained an open question in light of these later decisions, we now hold that Nyquist does not govern neutral educational assistance programs that, like the program here, offer aid directly to a broad class of individual recipients defined without regard to religion.7 In sum, the Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice. In keeping with an unbroken line of 7 JUSTICE BREYER would raise the invisible specters of "divisiveness" and "religious strife" to find the program unconstitutional. Post, at 719, 725-728 (dissenting opinion). It is unclear exactly what sort of principle JUSTICE BREYER has in mind, considering that the program has ignited no "divisiveness" or "strife" other than this litigation. Nor is it clear where JUSTICE BREYER would locate this presumed authority to deprive Cleveland residents of a program that they have chosen but that we subjectively find "divisive." We quite rightly have rejected the claim that some speculative potential for divisiveness bears on the constitutionality of educational aid programs. Mitchell v. Helms, 530 U. S., at 825 (plurality opinion) ("The dissent resurrects the concern for political divisiveness that once occupied the Court but that post-Aguilar cases have rightly disregarded") (citing cases); id., at 825-826 (" 'It is curious indeed to base our interpretation of the Constitution on speculation as to the likelihood of a phenomenon which the parties may create merely by prosecuting a lawsuit'" (quoting Aguilar v. Felton, 473 U. S. 402 , 429 (1985) (O'CONNOR, J., dissenting))). 663 decisions rejecting challenges to similar programs, we hold that the program does not offend the Establishment Clause. The judgment of the Court of Appeals is reversed. It is so ordered. JUSTICE O'CONNOR, concurring. The Court holds that Ohio's Pilot Project Scholarship Program, Ohio Rev. Code Ann. §§ 3313.974-3313.979 (Anderson 1999 and Supp. 2000) (voucher program), survives respondents' Establishment Clause challenge. While I join the Court's opinion, I write separately for two reasons. First, although the Court takes an important step, I do not believe that today's decision, when considered in light of other longstanding government programs that impact religious organizations and our prior Establishment Clause jurisprudence, marks a dramatic break from the past. Second, given the emphasis the Court places on verifying that parents of voucher students in religious schools have exercised "true private choice," I think it is worth elaborating on the Court's conclusion that this inquiry should consider all reasonable educational alternatives to religious schools that are available to parents. To do otherwise is to ignore how the educational system in Cleveland actually functions. I These cases are different from prior indirect aid cases in part because a significant portion of the funds appropriated for the voucher program reach religious schools without restrictions on the use of these funds. The share of public resources that reach religious schools is not, however, as significant as respondents suggest. See, e. g., Brief for Respondents Simmons-Harris et al. 1-2. Data from the 1999-2000 school year indicate that 82 percent of schools participating in the voucher program were religious and that 96 percent of participating students enrolled in religious 664 schools, see App. in Nos. 00-3055, etc. (CA6), p. 1679 (46 of 56 private schools in the program are religiously affiliated; 3,637 of 3,765 voucher students attend religious private schools), but these data are incomplete. These statistics do not take into account all of the reasonable educational choices that may be available to students in Cleveland public schools. When one considers the option to attend community schools, the percentage of students enrolled in religious schools falls to 62.1 percent. If magnet schools are included in the mix, this percentage falls to 16.5 percent. See J. Greene, The Racial, Economic, and Religious Context of Parental Choice in Cleveland 11, Table 4 (Oct. 8, 1999), App. 217a (reporting 2,087 students in community schools and 16,184 students in magnet schools). Even these numbers do not paint a complete picture. The Cleveland program provides voucher applicants from lowincome families with up to $2,250 in tuition assistance and provides the remaining applicants with up to $1,875 in tuition assistance. §§ 3313.976(A)(8), 3313.978(A) and (C)(l). In contrast, the State provides community schools $4,518 per pupil and magnet schools, on average, $7,097 per pupil. Affidavit of Caroline M. Hoxby ~~ 4b, 4c, App. 56a. Even if one assumes that all voucher students came from low-income families and that each voucher student used up the entire $2,250 voucher, at most $8.2 million of public funds flowed to religious schools under the voucher program in 1999-2000. Although just over one-half as many students attended community schools as religious private schools on the state fisc, the State spent over $1 million more-$9.4 million-on students in community schools than on students in religious private schools because per-pupil aid to community schools is more than double the per-pupil aid to private schools under the voucher program. Moreover, the amount spent on religious private schools is minor compared to the $114.8 million the State spent on students in the Cleveland magnet schools. 665 Although $8.2 million is no small sum, it pales in comparison to the amount of funds that federal, state, and local governments already provide religious institutions. Religious organizations may qualify for exemptions from the federal corporate income tax, see 26 U. S. C. § 501(c)(3); the corporate income tax in many States, see, e. g., Cal. Rev. & Tax. Code Ann. § 23701d (West 1992); and property taxes in all 50 States, see Turner, Property Tax Exemptions for Nonprofits, 12 Probate & Property 25 (Sept.lOct. 1998); and clergy qualify for a federal tax break on income used for housing expenses, 26 U. S. C. § 1402(a)(8). In addition, the Federal Government provides individuals, corporations, trusts, and estates a tax deduction for charitable contributions to qualified religious groups. See §§ 170, 642(c). Finally, the Federal Government and certain state governments provide tax credits for educational expenses, many of which are spent on education at religious schools. See, e. g., § 25A (Hope tax credit); Minn. Stat. § 290.0674 (Supp. 2001). Most of these tax policies are well established, see, e. g., Mueller v. Allen, 463 U. S. 388 (1983) (upholding Minnesota tax deduction for educational expenses); Walz v. Tax Comm'n of City of New York, 397 U. S. 664 (1970) (upholding an exemption for religious organizations from New York property tax), yet confer a significant relative benefit on religious institutions. The state property tax exemptions for religious institutions alone amount to very large sums annually. For example, available data suggest that Colorado's exemption lowers that State's tax revenues by more than $40 million annually, see Rabey, Exemptions a Matter of Faith: No Proof Required of Tax-Free Churches, Colorado Springs Gazette Telegraph, Oct. 26, 1992, p. B1; Colorado Debates Church, Nonprofit Tax-Exempt Status, Philadelphia Enquirer, Oct. 4, 1996, p. 8; Maryland's exemption lowers revenues by more than $60 million, see Maryland Dept. of Assessment and Taxation, 2001 SDAT Annual Report (Apr. 25, 2002), http://www.dat.state.md.us/sdatweb/stats/ 666 01acrpt.html (Internet sources available in Clerk of Court's case file); Wisconsin's exemption lowers revenues by approximately $122 million, see Wisconsin Dept. of Revenue, Division of Research and Analysis, Summary of Tax Exemption Devices 2001, Property Tax (Apr. 25, 2002), http://www.dor. state.wi.us/ra/sumOOpro.html ($5.688 billion in exempt religious property; statewide average property tax rate of $21.46 per $1,000 of property); and Louisiana's exemption, looking just at the city of New Orleans, lowers revenues by over $36 million, see Bureau of Governmental Research, Property Tax Exemptions and Assessment Administration in Orleans Parish: Summary and Recommendations 2 (Dec. 1999) ($22.6 million for houses of worship and $14.1 million for religious schools). As for the Federal Government, the tax deduction for charitable contributions reduces federal tax revenues by nearly $25 billion annually, see U. S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States 344 (2000) (hereinafter Statistical Abstract), and it is reported that over 60 percent of household charitable contributions go to religious charities, id., at 397. Even the relatively minor exemptions lower federal tax receipts by substantial amounts. The parsonage exemption, for example, lowers revenues by around $500 million. See Diaz, Ramstad Prepares Bill to Retain Tax Break for Clergy's Housing, Star Tribune (Minneapolis-St. Paul), Mar. 30,2002, p.4A. These tax exemptions, which have "much the same effect as [cash grants] ... of the amount of tax [avoided]," Regan v. Taxation With Representation of Wash., 461 U. S. 540 , 544 (1983); see also Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 , 859-860, esp. n. 4 (1995) (THOMAS, J., concurring), are just part of the picture. Federal dollars also reach religiously affiliated organizations through public health programs such as Medicare, 42 U. S. C. §§ 13951395ggg, and Medicaid, § 1396 et seq., through educational programs such as the Pell Grant program, 20 U. S. C. § 1070a, and the G. 1. Bill of Rights, 38 U. S. C. §§ 3451, 3698; and 667 through childcare programs such as the Child Care and Development Block Grant Program (CCDBG), 42 U. S. C. § 9858 (1994 ed., Supp. V). Medicare and Medicaid provide federal funds to pay for the healthcare of the elderly and the poor, respectively, see 1 B. Furrow, T. Greaney, S. Johnson, T. Jost, & R. Schwartz, Health Law 545-546 (2d ed. 2000); 2 id., at 2; the Pell Grant program and the G. 1. Bill subsidize higher education of low-income individuals and veterans, respectively, see Mulleneaux, The Failure to Provide Adequate Higher Education Tax Incentives for Lower-Income Individuals, 14 Akron Tax J. 27, 31 (1999); and the CCDBG program finances child care for low-income parents, see Pitegoff, Child Care Policy and the Welfare Reform Act, 6 J. Affordable Housing & Community Dev. L. 113, 121-122 (1997). These programs are well-established parts of our social welfare system, see, e. g., Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756 , 782-783, n. 38 (1973), and can be quite substantial, see Statistical Abstract 92 (Table 120) ($211.4 billion spent on Medicare and nearly $176.9 billion on Medicaid in 1998), id., at 135 (Table 208) ($9.1 billion in financial aid provided by the Department of Education and $280.5 million by the Department of Defense in 1999); Bush On Welfare: Tougher Work Rules, More State Control, Congress Daily, Feb. 26, 2002, p. 8 ($4.8 billion for the CCDBG program in 2001). A significant portion of the funds appropriated for these programs reach religiously affiliated institutions, typically without restrictions on its subsequent use. For example, it has been reported that religious hospitals, which account for 18 percent of all hospital beds nationwide, rely on Medicare funds for 36 percent of their revenue. MergerWatch, New Study Details Public Funding of Religious Hospitals (Jan. 2002), http://www.mergerwatch.org/inthenews/ publicfunding.html. Moreover, taking into account both Medicare and Medicaid, religious hospitals received nearly $45 billion from the federal fisc in 1998. Ibid. Federal aid 668 to religious schools is also substantial. Although data for all States are not available, data from Minnesota, for example, suggest that a substantial share of Pell Grant and other federal funds for college tuition reach religious schools. Roughly one-third or $27.1 million of the federal tuition dollars spent on students at schools in Minnesota were used at private 4-year colleges. Minnesota Higher Education Services Office, Financial Aid Awarded, Fiscal Year 1999: Grants, Loans, and Student Earning from Institution Jobs (Jan. 24, 2001). The vast majority of these funds-$23.5 millionflowed to religiously affiliated institutions. Ibid. Against this background, the support that the Cleveland voucher program provides religious institutions is neither substantial nor atypical of existing government programs. While this observation is not intended to justify the Cleveland voucher program under the Establishment Clause, see post, at 709-710, n. 19 (SOUTER, J., dissenting), it places in broader perspective alarmist claims about implications of the Cleveland program and the Court's decision in these cases. See post, at 685-686 (STEVENS, J., dissenting); post, at 715-716 (SOUTER, J., dissenting); post, p. 717 (BREYER, J., dissenting). II Nor does today's decision signal a major departure from this Court's prior Establishment Clause jurisprudence. A central tool in our analysis of cases in this area has been the Lemon test. As originally formulated, a statute passed this test only if it had "a secular legislative purpose," if its "principal or primary effect" was one that "neither advance[d] nor inhibit[ed] religion," and if it did "not foster an excessive government entanglement with religion." Lemon v. Kurtz man, 403 U. S. 602 , 612-613 (1971) (internal quotation marks omitted). In Agostini v. Felton, 521 U. S. 203 , 218, 232-233 (1997), we folded the entanglement inquiry into the primary effect inquiry. This made sense because both inquiries rely on the same evidence, see ibid., and the degree of entangle- 669 ment has implications for whether a statute advances or inhibits religion, see Lynch v. Donnelly, 465 U. S. 668 , 688 (1984) (O'CONNOR, J., concurring). The test today is basically the same as that set forth in School Dist. of Abington Township v. Schempp, 374 U. S. 203 , 222 (1963) (citing Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947); McGowan The Court's opinion in these cases focuses on a narrow question related to the Lemon test: how to apply the primary effects prong in indirect aid cases? Specifically, it clarifies the basic inquiry when trying to determine whether a program that distributes aid to beneficiaries, rather than directly to service providers, has the primary effect of advancing or inhibiting religion, Lemon v. Kurtzman, supra, at 613-614, or, as I have put it, of "endors[ing] or disapprov[ing] ... religion," Lynch v. Donnelly, supra, at 691-692 (concurring opinion); see also Wallace v. Jaffree, 472 U. S. 38 , 69-70 (1985) (O'CONNOR, J., concurring in judgment). See also ante, at 652. Courts are instructed to consider two factors: first, whether the program administers aid in a neutral fashion, without differentiation based on the religious status of beneficiaries or providers of services; second, and more importantly, whether beneficiaries of indirect aid have a genuine choice among religious and nonreligious organizations when determining the organization to which they will direct that aid. If the answer to either query is "no," the program should be struck down under the Establishment Clause. See ante, at 652-653. JUSTICE SOUTER portrays this inquiry as a departure from Everson. See post, at 687-688 (dissenting opinion). A fair reading of the holding in that case suggests quite the opposite. Justice Black's opinion for the Court held that the "[First] Amendment requires the state to be a neutral in its relations with groups of religious believers and nonbelievers; it does not require the state to be their adversary." Everson, supra, at 18; see also Schempp, supra, at 218, 222. 670 How else could the Court have upheld a state program to provide students transportation to public and religious schools alike? What the Court clarifies in these cases is that the Establishment Clause also requires that state aid flowing to religious organizations through the hands of beneficiaries must do so only at the direction of those beneficiaries. Such a refinement of the Lemon test surely does not betray Everson. III There is little question in my mind that the Cleveland voucher program is neutral as between religious schools and nonreligious schools. See ante, at 653-654. JUSTICE SOUTER rejects the Court's notion of neutrality, proposing that the neutrality of a program should be gauged not by the opportunities it presents but rather by its effects. In particular, a "neutrality test ... [should] focus on a category of aid that may be directed to religious as well as secular schools, and ask whether the scheme favors a religious direction." Post, at 697 (dissenting opinion). JUSTICE SOUTER doubts that the Cleveland program is neutral under this view. He surmises that the cap on tuition that voucher schools may charge low-income students encourages these students to attend religious rather than nonreligious private voucher schools. See post, at 704-705. But JUSTICE SOUTER'S notion of neutrality is inconsistent with that in our case law. As we put it in Agostini, government aid must be "made available to both religious and secular beneficiaries on a nondiscriminatory basis." 521 U. S., at 231. I do not agree that the nonreligious schools have failed to provide Cleveland parents reasonable alternatives to religious schools in the voucher program. For nonreligious schools to qualify as genuine options for parents, they need not be superior to religious schools in every respect. They need only be adequate substitutes for religious schools in the eyes of parents. The District Court record demonstrates that nonreligious schools were able to compete effectively 671 with Catholic and other religious schools in the Cleveland voucher program. See ante, at 656-657, n. 4. The best evidence of this is that many parents with vouchers selected nonreligious private schools over religious alternatives and an even larger number of parents send their children to community and magnet schools rather than seeking vouchers at all. Supra, at 663-664. Moreover, there is no record evidence that any voucher-eligible student was turned away from a nonreligious private school in the voucher program, let alone a community or magnet school. See 234 F.3d 945 , 969 (CA6 2000) (Ryan, J., concurring in part and dissenting in part); Affidavit of David L. Brennan ~ 8, App. 147a. To support his hunch about the effect of the cap on tuition under the voucher program, JUSTICE SOUTER cites national data to suggest that, on average, Catholic schools have a cost advantage over other types of schools. See post, at 705-706, n. 15 (dissenting opinion). Even if national statistics were relevant for evaluating the Cleveland program, JUSTICE SOUTER ignores evidence which suggests that, at a national level, nonreligious private schools may target a market for a different, if not a higher, quality of education. For example, nonreligious private schools are smaller, see U. S. Dept. of Ed., National Center for Education Statistics, Private School Universe Survey, 1997-1998 (Oct. 1999) (Table 60) (87 and 269 students per private nonreligious and Catholic elementary school, respectively); have smaller class sizes, see ibid. (9.4 and 18.8 students per teacher at private nonreligious and Catholic elementary schools, respectively); have more highly educated teachers, see U. S. Dept. of Ed., National Center for Education Statistics, Private Schools in the United States: A Statistical Profile, 1993-1994 (NCES 97-459, July 1997) (Table 3.4) (37.9 percent of nonreligious private school teachers but only 29.9 percent of Catholic school teachers have Master's degrees); and have principals with longer job tenure than Catholic schools, see ibid. (Table 3.7) (average ten- 672 ure of principals at private nonreligious and Catholic schools is 8.2 and 4.7 years, respectively). Additionally, JUSTICE SOUTER'S theory that the Cleveland voucher program's cap on the tuition encourages low-income students to attend religious schools ignores that these students receive nearly double the amount of tuition assistance under the community schools program than under the voucher program and that none of the community schools is religious. See ante, at 647. In my view the more significant finding in these cases is that Cleveland parents who use vouchers to send their children to religious private schools do so as a result of true private choice. The Court rejects, correctly, the notion that the high percentage of voucher recipients who enroll in religious private schools necessarily demonstrates that parents do not actually have the option to send their children to nonreligious schools. Ante, at 656-660. Likewise, the mere fact that some parents enrolled their children in religious schools associated with a different faith than their own, see post, at 704 (SOUTER, J., dissenting), says little about whether these parents had reasonable nonreligious options. Indeed, no voucher student has been known to be turned away from a nonreligious private school participating in the voucher program. Supra this page. This is impressive given evidence in the record that the present litigation has discouraged the entry of some nonreligious private schools into the voucher program. Declaration of David P. Zanotti ~~ 5, 10, App. 225a, 227a. Finally, as demonstrated above, the Cleveland program does not establish financial incentives to undertake a religious education. I find the Court's answer to the question whether parents of students eligible for vouchers have a genuine choice between religious and nonreligious schools persuasive. In looking at the voucher program, all the choices available to potential beneficiaries of the government program should be considered. In these cases, parents who were eligible to 673 apply for a voucher also had the option, at a minimum, to send their children to community schools. Yet the Court of Appeals chose not to look at community schools, let alone magnet schools, when evaluating the Cleveland voucher program. See 234 F. 3d, at 958. That decision was incorrect. Focusing in these cases only on the program challenged by respondents ignores how the educational system in Cleveland actually functions. The record indicates that, in 1999, two nonreligious private schools that had previously served 15 percent of the students in the voucher program were prompted to convert to community schools because parents were concerned about the litigation surrounding the program, and because a new community schools program provided more per-pupil financial aid. Many of the students that enrolled in the two schools under the voucher program transferred to the community schools program and continued to attend these schools. See Affidavit of David L. Brennan ~~ 3, 10, App. 145a, 147a; Declaration of David P. Zanotti ~~ 4-10, id., at 225a-227a. This incident provides strong evidence that both parents and nonreligious schools view the voucher program and the community schools program as reasonable alternatives. Considering all the educational options available to parents whose children are eligible for vouchers, including community and magnet schools, the Court finds that parents in the Cleveland schools have an array of nonreligious options. Ante, at 655. Not surprisingly, respondents present no evidence that any students who were candidates for a voucher were denied slots in a community school or a magnet school. Indeed, the record suggests the opposite with respect to community schools. See Affidavit of David L. Brennan ~ 8, App.147a. JUSTICE SOUTER nonetheless claims that, of the 10 community schools operating in Cleveland during the 1999-2000 school year, 4 were unavailable to students with vouchers and 4 others reported poor test scores. See post, at 702- 674 703, n. 10 (dissenting opinion). But that analysis unreasonably limits the choices available to Cleveland parents. It is undisputed that Cleveland's 24 magnet schools are reasonable alternatives to voucher schools. See post, at 701702, n. 9 (SOUTER, J., dissenting); http://www.cmsdnet.net/ administration/EducationaIServices/magnet.htm (June 20, 2002). And of the four community schools JUSTICE SOUTER claims are unavailable to voucher students, he is correct only about one (Life Skills Center of Cleveland). Affidavit of Steven M. Puckett ~ 12, App. 162a. JUSTICE SOUTER rejects the three other community schools (Horizon Science Academy, Cleveland Alternative Learning, and International Preparatory School) because they did not offer primary school classes, were targeted toward poor students or students with disciplinary or academic problems, or were not in operation for a year. See post, at 702-703, n. 10. But a community school need not offer primary school classes to be an alternative to religious middle schools, and catering to impoverished or otherwise challenged students may make a school more attractive to certain inner-city parents. Moreover, the one community school that was closed in 19992000 was merely looking for a new location and was operational in other years. See Affidavit of Steven M. Puckett ~ 12, App. 162a; Ohio Dept. of Ed., Office of School Options, Community Schools, Ohio's Community School Directory (June 22, 2002), http://www.ode.state.oh.us/community_ schools/community _schooLdirectory/default.asp. Two more community schools were scheduled to open after the 19992000 school year. See Affidavit of Steven M. Puckett ~ 13, App.163a. Of the six community schools that JUSTICE SOUTER admits as alternatives to the voucher program in 1999-2000, he notes that four (the Broadway, Cathedral, Chapelside, and Lincoln Park campuses of the Hope Academy) reported lower test scores than public schools during the school year after the District Court's grant of summary judgment to re- 675 spondents, according to report cards prepared by the Ohio Department of Education. See post, at 702-703, n. 10 (dissenting opinion). (One, Old Brooklyn Montessori School, performed better than public schools. Ibid.; see also Ohio Dept. of Ed., 2001 Community School Report Card, Old Brooklyn Montessori School 5 (community school scored higher than public schools in four of five subjects in 19992000).) These report cards underestimate the value of the four Hope Academy schools. Before they entered the community school program, two of them participated in the voucher program. Although they received far less state funding in that capacity, they had among the highest rates of parental satisfaction of all voucher schools, religious or nonreligious. See P. Peterson, W. Howell, & J. Greene, An Evaluation of the Cleveland Voucher Program after Two Years 6, Table 4 (June 1999) (hereinafter Peterson). This is particularly impressive given that a Harvard University study found that the Hope Academy schools attracted the "poorest and most educationally disadvantaged students." J. Greene, W. Howell, P. Peterson, Lessons from the Cleveland Scholarship Program 22, 24 (Oct. 15, 1997). Moreover, JUSTICE SOUTER'S evaluation of the Hope Academy schools assumes that the only relevant measure of school quality is academic performance. It is reasonable to suppose, however, that parents in the inner city also choose schools that provide discipline and a safe environment for their children. On these dimensions some of the schools that JUSTICE SOUTER derides have performed quite ably. See Peterson, Table 7. Ultimately, JUSTICE SOUTER relies on very narrow data to draw rather broad conclusions. One year of poor test scores at four community schools targeted at the most challenged students from the inner city says little about the value of those schools, let alone the quality of the 6 other community schools and 24 magnet schools in Cleveland. JUSTICE SOUTER'S use of statistics confirms the Court's wisdom in refus- 676 ing to consider them when assessing the Cleveland program's constitutionality. See ante, at 658. What appears to motivate JUSTICE SOUTER'S analysis is a desire for a limiting principle to rule out certain nonreligious schools as alternatives to religious schools in the voucher program. See post, at 700,701-702, n. 9 (dissenting opinion). But the goal of the Court's Establishment Clause jurisprudence is to determine whether, after the Cleveland voucher program was enacted, parents were free to direct state educational aid in either a nonreligious or religious direction. See ante, at 655-656. That inquiry requires an evaluation of all reasonable educational options Ohio provides the Cleveland school system, regardless of whether they are formally made available in the same section of the Ohio Code as the voucher program. Based on the reasoning in the Court's opinion, which is consistent with the realities of the Cleveland educational system, I am persuaded that the Cleveland voucher program affords parents of eligible children genuine nonreligious options and is consistent with the Establishment Clause. JUSTICE THOMAS, concurring. Frederick Douglass once said that "[e]ducation ... means emancipation. It means light and liberty. It means the uplifting of the soul of man into the glorious light of truth, the light by which men can only be made free." 1 Today many of our inner-city public schools deny emancipation to urban minority students. Despite this Court's observation nearly 50 years ago in Brown v. Board of Education, 347 U. S. 483 , 493 (1954), that "it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education," urban children have been forced into a system that continually fails them. These cases present an 1 The Blessings of Liberty and Education: An Address Delivered in Manassas, Virginia, on 3 September 1894, in 5 The Frederick Douglass Papers 623 (J. Blassingame & J. McKivigan eds. 1992) (hereinafter Douglass Papers). 677 example of such failures. Besieged by escalating financial problems and declining academic achievement, the Cleveland City School District was in the midst of an academic emergency when Ohio enacted its scholarship program. The dissents and respondents wish to invoke the Establishment Clause of the First Amendment, as incorporated through the Fourteenth, to constrain a State's neutral efforts to provide greater educational opportunity for underprivileged minority students. Today's decision properly upholds the program as constitutional, and I join it in full. I This Court has often considered whether efforts to provide children with the best educational resources conflict with constitutional limitations. Attempts to provide aid to religious schools or to allow some degree of religious involvement in public schools have generated significant controversy and litigation as States try to navigate the line between the secular and the religious in education. See generally Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty., 333 U. S. 203 , 237-238 (1948) (Jackson, J., concurring) (noting that the Constitution does not tell judges "where the secular ends and the sectarian begins in education"). We have recently decided several cases challenging federal aid programs that include religious schools. See, e. g., Mitchell v. Helms, 530 U. S. 793 (2000); Agostini v. Felton, 521 U. S. 203 (1997). To determine whether a federal program survives scrutiny under the Establishment Clause, we have considered whether it has a secular purpose and whether it has the primary effect of advancing or inhibiting religion. See Mitchell, supra, at 807-808. I agree with the Court that Ohio's program easily passes muster under our stringent test, but, as a matter of first principles, I question whether this test should be applied to the States. 678 The Establishment Clause of the First Amendment states that "Congress shall make no law respecting an establishment of religion." On its face, this provision places no limit on the States with regard to religion. The Establishment Clause originally protected States, and by extension their citizens, from the imposition of an established religion by the Federal Government. 2 Whether and how this Clause should constrain state action under the Fourteenth Amendment is a more difficult question. The Fourteenth Amendment fundamentally restructured the relationship between individuals and the States and ensured that States would not deprive citizens of liberty without due process of law. It guarantees citizenship to all individuals born or naturalized in the United States and provides that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." As Justice Harlan noted, the Fourteenth Amendment "added greatly to the dignity and glory of American citizenship, and to the security of personal liberty." Plessy v. Ferguson, 163 U. S. 537 , 555 (1896) (dissenting opinion). When rights are incorporated against the States through the Fourteenth Amendment they should advance, not constrain, individual liberty. Consequently, in the context of the Establishment Clause, it may well be that state action should be evaluated on different terms than similar action by the Federal Government. "States, while bound to observe strict neutrality, should be freer to experiment with involvement [in religion]-on a neu- 2 See, e. g., School Dist. of Abington Township v. Schempp, 374 U. S. 203 , 309-310 (1963) (Stewart, J., dissenting) ("[T]he Establishment Clause was primarily an attempt to insure that Congress not only would be powerless to establish a national church, but would also be unable to interfere with existing state establishments"); see also Wallace v. Jaffree, 472 U. S. 38 , 113 (1985) (REHNQUIST, J., dissenting). 679 tral basis-than the Federal Government." Walz v. Tax Comm'n of City of New York, 397 U. S. 664 , 699 (1970) (Harlan, J., concurring). Thus, while the Federal Government may "make no law respecting an establishment of religion," the States may pass laws that include or touch on religious matters so long as these laws do not impede free exercise rights or any other individual religious liberty interest. By considering the particular religious liberty right alleged to be invaded by a State, federal courts can strike a proper balance between the demands of the Fourteenth Amendment on the one hand and the federalism prerogatives of States on the other.3 Whatever the textual and historical merits of incorporating the Establishment Clause, I can accept that the Fourteenth Amendment protects religious liberty rights.4 But I 3 Several Justices have suggested that rights incorporated through the Fourteenth Amendment apply in a different manner to the States than they do to the Federal Government. For instance, Justice Jackson stated, "[t]he inappropriateness of a single standard for restricting State and N ation is indicated by the disparity between their functions and duties in relation to those freedoms." Beauharnais v. Illinois, 343 U. S. 250 , 294 (1952) (dissenting opinion). Justice Harlan noted: "The Constitution differentiates between those areas of human conduct subject to the regulation of the States and those subject to the powers of the Federal Government. The substantive powers of the two governments, in many instances, are distinct. And in every case where we are called upon to balance the interest in free expression against other interests, it seems to me important that we should keep in the forefront the question of whether those other interests are state or federal." Roth v. United States, 354 U. S. 476, 503-504 (1957) (dissenting opinion). See also Gitlow v. New York, 268 U. S. 652 , 672 (1925) (Holmes, J., dissenting). 4 In particular, these rights inhere in the Free Exercise Clause, which unlike the Establishment Clause protects individual liberties of religious worship. "That the central value embodied in the First Amendmentand, more particularly, in the guarantee of 'liberty' contained in the Fourteenth-is the safeguarding of an individual's right to free exercise of his religion has been consistently recognized." Schempp, supra, at 312 (Stewart, J., dissenting). See also Amar, The Bill of Rights as a Constitution, 100 Yale L. J. 1131, 1159 (1991) ("[T]he free exercise clause was paradigmatically about citizen rights, not state rights; it thus invites incor- 680 cannot accept its use to oppose neutral programs of school choice through the incorporation of the Establishment Clause. There would be a tragic irony in converting the Fourteenth Amendment's guarantee of individual liberty into a prohibition on the exercise of educational choice. II The wisdom of allowing States greater latitude in dealing with matters of religion and education can be easily appreciated in this context. Respondents advocate using the Fourteenth Amendment to handcuff the State's ability to experiment with education. But without education one can hardly exercise the civic, political, and personal freedoms conferred by the Fourteenth Amendment. Faced with a severe educational crisis, the State of Ohio enacted wide-ranging educational reform that allows voluntary participation of private and religious schools in educating poor urban children otherwise condemned to failing public schools. The program does not force any individual to submit to religious indoctrination or education. It simply gives parents a greater choice as to where and in what manner to educate their children.5 This is a choice that those with greater means have routinely exercised. poration. Indeed, this clause was specially concerned with the plight of minority religions, and thus meshes especially well with the minorityrights thrust of the Fourteenth Amendment"); Lietzau, Rediscovering the Establishment Clause: Federalism and the Rollback of Incorporation, 39 DePaul L. Rev. 1191, 1206-1207 (1990). 5 This Court has held that parents have the fundamental liberty to choose how and in what manner to educate their children. "The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations." Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925). But see Troxel v. Granville, 530 U. S. 57 , 80 (2000) (THOMAS, J., concurring in judgment). 681 Cleveland parents now have a variety of educational choices. There are traditional public schools, magnet schools, and privately run community schools, in addition to the scholarship program. Currently, 46 of the 56 private schools participating in the scholarship program are church affiliated (35 are Catholic), and 96 percent of students in the program attend religious schools. See App. 281a-286a; 234 F.3d 945 , 949 (CA6 2000). Thus, were the Court to disallow the inclusion of religious schools, Cleveland children could use their scholarships at only 10 private schools. In addition to expanding the reach of the scholarship program, the inclusion of religious schools makes sense given Ohio's purpose of increasing educational performance and opportunities. Religious schools, like other private schools, achieve far better educational results than their public counterparts. For example, the students at Cleveland's Catholic schools score significantly higher on Ohio proficiency tests than students at Cleveland public schools. Of Cleveland eighth graders taking the 1999 Ohio proficiency test, 95 percent in Catholic schools passed the reading test, whereas only 57 percent in public schools passed. And 75 percent of Catholic school students passed the math proficiency test, compared to only 22 percent of public school students. See Brief for Petitioners in No. 00-1777, p. 10. But the success of religious and private schools is in the end beside the point, because the State has a constitutional right to experiment with a variety of different programs to promote educational opportunity. That Ohio's program includes successful schools simply indicates that such reform can in fact provide improved education to underprivileged urban children. Although one of the purposes of public schools was to promote democracy and a more egalitarian culture,6 failing urban public schools disproportionately affect minority children most in need of educational opportunity. At the time 6 See, e. g., N. Edwards, School in the American Social Order: The Dynamics of American Education 360-362 (1947). 682 of Reconstruction, blacks considered public education "a matter of personal liberation and a necessary function of a free society." J. Anderson, Education of Blacks in the South, 1860-1935, p. 18 (1988). Today, however, the promise of public school education has failed poor inner-city blacks. While in theory providing education to everyone, the quality of public schools varies significantly across districts. Just as blacks supported public education during Reconstruction, many blacks and other minorities now support school choice programs because they provide the greatest educational opportunities for their children in struggling communities.7 Opponents of the program raise formalistic concerns about the Establishment Clause but ignore the core purposes of the Fourteenth Amendment. While the romanticized ideal of universal public education resonates with the cognoscenti who oppose vouchers, poor urban families just want the best education for their children, who will certainly need it to function in our high-tech and advanced society. As Thomas Sowell noted 30 years ago: "Most black people have faced too many grim, concrete problems to be romantics. They want and need certain tangible results, which can be achieved only by developing certain specific abilities." Black Education: Myths and Tragedies 228 (1972). The same is true today. An individual's life prospects increase dramatically with each successfully completed phase of education. For instance, a black high 7Minority and low-income parents express the greatest support for parental choice and are most interested in placing their children in private schools. "[T]he appeal of private schools is especially strong among parents who are low in income, minority, and live in low-performing districts: precisely the parents who are the most disadvantaged under the current system." T. Moe, Schools, Vouchers, and the American Public 164 (2001). Nearly three-fourths of all public school parents with an annual income less than $20,000 support vouchers, compared to 57 percent of public school parents with an annual income of over $60,000. See id., at 214 (Table 7-3). In addition, 75 percent of black public school parents support vouchers, as do 71 percent of Hispanic public school parents. Ibid. 683 school dropout earns just over $13,500, but with a high school degree the average income is almost $21,000. Blacks with a bachelor's degree have an average annual income of about $37,500, and $75,500 with a professional degree. See U. S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States 140 (2001) (Table 218). Staying in school and earning a degree generates real and tangible financial benefits, whereas failure to obtain even a high school degree essentially relegates students to a life of poverty and, all too often, of crime.8 The failure to provide education to poor urban children perpetuates a vicious cycle of poverty, dependence, criminality, and alienation that continues for the remainder of their lives. If society cannot end racial discrimination, at least it can arm minorities with the education to defend themselves from some of discrimination's effects. *** Ten States have enacted some form of publicly funded private school choice as one means of raising the quality of education provided to underprivileged urban children.9 These programs address the root of the problem with failing urban public schools that disproportionately affect minority students. Society's other solution to these educational failures is often to provide racial preferences in higher education. Such preferences, however, run afoul of the Fourteenth Amendment's prohibition against distinctions based on race. See Plessy, 163 U. S., at 555 (Harlan, J., dissenting). By contrast, school choice programs that involve religious schools 8 In 1997, approximately 68 percent of prisoners in state correctional institutions did not have a high school degree. See U. S. Dept. of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics2000, p. 519 (Table 6.38). 9 These programs include tax credits for such schooling. In addition, 37 States have some type of charter school law. See School Choice 2001: What's Happening in the States xxv (R. Moffitt, J. Garrett, & J. Smith eds. 2001) (Table 1). 684 appear unconstitutional only to those who would twist the Fourteenth Amendment against itself by expansively incorporating the Establishment Clause. Converting the Fourteenth Amendment from a guarantee of opportunity to an obstacle against education reform distorts our constitutional values and disserves those in the greatest need. As Frederick Douglass poignantly noted, "no greater benefit can be bestowed upon a long benighted people, than giving to them, as we are here earnestly this day endeavoring to do, the means of an education." 10 JUSTICE STEVENS, dissenting. Is a law that authorizes the use of public funds to pay for the indoctrination of thousands of grammar school children in particular religious faiths a "law respecting an establishment of religion" within the meaning of the First Amendment? In answering that question, I think we should ignore three factual matters that are discussed at length by my colleagues. First, the severe educational crisis that confronted the Cleveland City School District when Ohio enacted its voucher program is not a matter that should affect our appraisal of its constitutionality. In the 1999-2000 school year, that program provided relief to less than five percent of the students enrolled in the district's schools. The solution to the disastrous conditions that prevented over 90 percent of the student body from meeting basic proficiency standards obviously required massive improvements unrelated to the voucher program.1 Of course, the emergency may have 10 Douglass Papers 623. 1 Ohio is currently undergoing a major overhaul of its public school financing pursuant to an order of the Ohio Supreme Court in DeRolph v. State, 93 Ohio St. 3d 309, 754 N. E. 2d 1184 (2001). The Court ought, at least, to allow that reform effort and the district's experimentation with alternative public schools to take effect before relying on Cleveland's educational crisis as a reason for state financed religious education. 685 given some families a powerful motivation to leave the public school system and accept religious indoctrination that they would otherwise have avoided, but that is not a valid reason for upholding the program. Second, the wide range of choices that have been made available to students within the public school system has no bearing on the question whether the State may pay the tuition for students who wish to reject public education entirely and attend private schools that will provide them with a sectarian education. The fact that the vast majority of the voucher recipients who have entirely rejected public education receive religious indoctrination at state expense does, however, support the claim that the law is one "respecting an establishment of religion." The State may choose to divide up its public schools into a dozen different options and label them magnet schools, community schools, or whatever else it decides to call them, but the State is still required to provide a public education and it is the State's decision to fund private school education over and above its traditional obligation that is at issue in these cases.2 Third, the voluntary character of the private choice to prefer a parochial education over an education in the public school system seems to me quite irrelevant to the question whether the government's choice to pay for religious indoctrination is constitutionally permissible. Today, however, the Court seems to have decided that the mere fact that a family that cannot afford a private education wants its children educated in a parochial school is a sufficient justification for this use of public funds. For the reasons stated by JUSTICE SOUTER and JUSTICE BREYER, I am convinced that the Court's decision is profoundly misguided. Admittedly, in reaching that conclusion 2 The Court suggests that an education at one of the district's community or magnet schools is provided "largely at state expense." Ante, at 660, n. 6. But a public education at either of these schools is provided entirely at state expense-as the State is required to do. 686 I have been influenced by my understanding of the impact of religious strife on the decisions of our forbears to migrate to this continent, and on the decisions of neighbors in the Balkans, Northern Ireland, and the Middle East to mistrust one another. Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundation of our democracy. I respectfully dissent. JUSTICE SOUTER, with whom JUSTICE STEVENS, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting. The Court's majority holds that the Establishment Clause is no bar to Ohio's payment of tuition at private religious elementary and middle schools under a scheme that systematically provides tax money to support the schools' religious missions. The occasion for the legislation thus upheld is the condition of public education in the city of Cleveland. The record indicates that the schools are failing to serve their objective, and the vouchers in issue here are said to be needed to provide adequate alternatives to them. If there were an excuse for giving short shrift to the Establishment Clause, it would probably apply here. But there is no excuse. Constitutional limitations are placed on government to preserve constitutional values in hard cases, like these. "[C]onstitutionallines have to be drawn, and on one side of every one of them is an otherwise sympathetic case that provokes impatience with the Constitution and with the line. But constitutional lines are the price of constitutional government." Agostini v. Felton, 521 U. S. 203 , 254 (1997) (SOUTER, J., dissenting). I therefore respectfully dissent. The applicability of the Establishment Clause 1 to public funding of benefits to religious schools was settled in Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947), which inau- 1 "Congress shall make no law respecting an establishment of religion," 687 gurated the modern era of establishment doctrine. The Court stated the principle in words from which there was no dissent: "No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion." Id., at 16. The Court has never in so many words repudiated this statement, let alone, in so many words, overruled Everson. Today, however, the majority holds that the Establishment Clause is not offended by Ohio's Pilot Project Scholarship Program, under which students may be eligible to receive as much as $2,250 in the form of tuition vouchers transferable to religious schools. In the city of Cleveland the overwhelming proportion of large appropriations for voucher money must be spent on religious schools if it is to be spent at all, and will be spent in amounts that cover almost all of tuition. The money will thus pay for eligible students' instruction not only in secular subjects but in religion as well, in schools that can fairly be characterized as founded to teach religious doctrine and to imbue teaching in all subjects with a religious dimension.2 Public tax money will pay at a systemic level for teaching the covenant with Israel and Mosaic law in Jewish schools, the primacy of the Apostle Peter and the Papacy in Catholic schools, the truth of reformed Christianity in Protestant schools, and the revelation to the Prophet in Muslim schools, to speak only of major religious groupings in the Republic. 2 See, e. g., App. 319a (Saint Jerome School Parent and Student Handbook 1999-2000, p. 1) ("FAITH must dominate the entire educational process so that the child can make decisions according to Catholic values and choose to lead a Christian life"); id., at 347a (Westside Baptist Christian School Parent-Student Handbook, p. 7) ("Christ is the basis of all learning. All subjects will be taught from the Biblical perspective that all truth is God's truth"). 688 How can a Court consistently leave Everson on the books and approve the Ohio vouchers? The answer is that it cannot. It is only by ignoring Everson that the majority can claim to rest on traditional law in its invocation of neutral aid provisions and private choice to sanction the Ohio law. It is, moreover, only by ignoring the meaning of neutrality and private choice themselves that the majority can even pretend to rest to day's decision on those criteria. I The majority's statements of Establishment Clause doctrine cannot be appreciated without some historical perspective on the Court's announced limitations on government aid to religious education, and its repeated repudiation of limits previously set. My object here is not to give any nuanced exposition of the cases, which I tried to classify in some detail in an earlier opinion, see Mitchell v. Helms, 530 U. S. 793 , 873-899 (2000) (dissenting opinion), but to set out the broad doctrinal stages covered in the modern era, and to show that doctrinal bankruptcy has been reached today. Viewed with the necessary generality, the cases can be categorized in three groups. In the period from 1947 to 1968, the basic principle of no aid to religion through school benefits was unquestioned. Thereafter for some 15 years, the Court termed its efforts as attempts to draw a line against aid that would be divertible to support the religious, as distinct from the secular, activity of an institutional beneficiary. Then, starting in 1983, concern with divertibility was gradually lost in favor of approving aid in amounts unlikely to afford substantial benefits to religious schools, when offered evenhandedly without regard to a recipient's religious character, and when channeled to a religious institution only by the genuinely free choice of some private individual. Now, the three stages are succeeded by a fourth, in which the substantial character of government aid is held to have no constitutional significance, and the espoused criteria 689 of neutrality in offering aid, and private choice in directing it, are shown to be nothing but examples of verbal formalism. A Everson v. Board of Ed. of Ewing inaugurated the modern development of Establishment Clause doctrine at the behest of a taxpayer challenging state provision of "tax-raised funds to pay the bus fares of parochial school pupils" on regular city buses as part of a general scheme to reimburse the public-transportation costs of children attending both public and private nonprofit schools. 330 U. S., at 17. Although the Court split, no Justice disagreed with the basic doctrinal principle already quoted, that "[n]o tax in any amount ... can be levied to support any religious activities or institutions, ... whatever form they may adopt to teach ... religion." Id., at 16. Nor did any Member of the Court deny the tension between the New Jersey program and the aims of the Establishment Clause. The majority upheld the state law on the strength of rights of religious-school students under the Free Exercise Clause, id., at 17-18, which was thought to entitle them to free public transportation when offered as a "general government servic[e]" to all schoolchildren, id., at 17. Despite the indirect benefit to religious education, the transportation was simply treated like "ordinary police and fire protection, connections for sewage disposal, public highways and sidewalks," id., at 17-18, and, most significantly, "state-paid policemen, detailed to protect children going to and from church schools from the very real hazards of traffic," id., at 17. The dissenters, however, found the benefit to religion too pronounced to survive the general principle of no establishment, no aid, and they described it as running counter to every objective served by the establishment ban: New Jersey's use of tax-raised funds forced a taxpayer to "contribut[e] to the propagation of opinions which he disbelieves in so far as ... religions differ," id., at 45 (internal quotation marks omitted); it exposed religious 690 liberty to the threat of dependence on state money, id., at 53; and it had already sparked political conflicts with opponents of public funding, id., at 54.3 The difficulty of drawing a line that preserved the basic principle of no aid was no less obvious some 20 years later in Board of Ed. of Central School Dist. No.1 v. Allen, 392 U. S. 236 (1968), which upheld a New York law authorizing local school boards to lend textbooks in secular subjects to children attending religious schools, a result not self-evident from Everson's "general government services" rationale. The Court relied instead on the theory that the in-kind aid could only be used for secular educational purposes, 392 U. S., at 243, and found it relevant that "no funds or books are furnished [directly] to parochial schools, and the financial benefit is to parents and children, not to schools," id., at 243244.4 Justice Black, who wrote Everson, led the dissenters. Textbooks, even when "'secular,' realistically will in some way inevitably tend to propagate the religious views of the favored sect," 392 U. S., at 252, he wrote, and Justice Douglas raised other objections underlying the establishment ban, id., at 254-266. Religious schools would request those books most in keeping with their faiths, and public boards would have final approval power: "If the board of education supinely submits by approving and supplying the sectarian or sectarian-oriented textbooks, the struggle to keep church 3 See Everson, 330 U. S., at 54, n. 47 (noting that similar programs had been struck down in six States, upheld in eight, and amicus curiae briefs filed by "three religious sects, one labor union, the American Civil Liberties Union, and the states of Illinois, Indiana, Louisiana, Massachusetts, Michigan and New York"). 4 The Court noted that "the record contains no evidence that any of the private schools ... previously provided textbooks for their students," and "[t]here is some evidence that at least some of the schools did not." Allen, 392 U. S., at 244, n. 6. This was a significant distinction: if the parochial schools provided secular textbooks to their students, then the State's provision of the same in their stead might have freed up church resources for allocation to other uses, including, potentially, religious indoctrination. 691 and state separate has been lost. If the board resists, then the battle line between church and state will have been drawn .... " Id., at 256 (Douglas, J., dissenting). The scheme was sure to fuel strife among religions as well: "we can rest assured that a contest will be on to provide those books for religious schools which the dominant religious group concludes best reflect the theocentric or other philosophy of the particular church." Id., at 265. Transcending even the sharp disagreement, however, was "the consistency in the way the Justices went about deciding the case .... N either side rested on any facile application of the 'test' or any simplistic reliance on the generality or evenhandedness of the state law. Disagreement concentrated on the true intent inferrable behind the law, the feasibility of distinguishing in fact between religious and secular teaching in church schools, and the reality or sham of lending books to pupils instead of supplying books to schools .... [T]he stress was on the practical significance of the actual benefits received by the schools." Mitchell, 530 U. S., at 876 (SouTER, J., dissenting). B Allen recognized the reality that "religious schools pursue two goals, religious instruction and secular education," 392 U. S., at 245; if state aid could be restricted to serve the second, it might be permissible under the Establishment Clause. But in the retrenchment that followed, the Court saw that the two educational functions were so intertwined in religious primary and secondary schools that aid to secular education could not readily be segregated, and the intrusive monitoring required to enforce the line itself raised Establishment Clause concerns about the entanglement of church and state. See Lemon v. Kurtzman, 403 U. S. 602 , 620 (1971) (striking down program supplementing salaries for teachers of secular subjects in private schools). To avoid 692 the entanglement, the Court's focus in the post-Allen cases was on the principle of divertibility, on discerning when ostensibly secular government aid to religious schools was susceptible to religious uses. The greater the risk of diversion to religion (and the monitoring necessary to avoid it), the less legitimate the aid scheme was under the no-aid principle. On the one hand, the Court tried to be practical, and when the aid recipients were not so "pervasively sectarian" that their secular and religious functions were inextricably intertwined, the Court generally upheld aid earmarked for secular use. See, e. g., Roemer v. Board of Public Works of Md., 426 U. S. 736 (1976); Hunt v. McNair, 413 U. S. 734 (1973); Tilton v. Richardson, 403 U. S. 672 (1971). But otherwise the principle of nondivertibility was enforced strictly, with its violation being presumed in most cases, even when state aid seemed secular on its face. Compare, e. g., Levitt v. Committee for Public Ed. & Religious Liberty, 413 U. S. 472 , 480 (1973) (striking down state program reimbursing private schools' administrative costs for teacher-prepared tests in compulsory secular subjects), with Wolman v. Walter, 433 U. S. 229 , 255 (1977) (upholding similar program using standardized tests); and Meek v. Pittenger, 421 U. S. 349 , 369-372 (1975) (no public funding for staff and materials for "auxiliary services" like guidance counseling and speech and hearing services), with Wolman, supra, at 244 (permitting state aid for diagnostic speech, hearing, and psychological testing). The fact that the Court's suspicion of divertibility reflected a concern with the substance of the no-aid principle is apparent in its rejection of stratagems invented to dodge it. In Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756 (1973), for example, the Court struck down a New York program of tuition grants for poor parents and tax deductions for more affluent ones who sent their children to private schools. The Nyquist Court dismissed warranties of a "statistical guarantee," that the scheme provided at most 15% of the total cost of an education at a religious school, 693 id., at 787-788, which could presumably be matched to a secular 15% of a child's education at the school. And it rejected the idea that the path of state aid to religious schools might be dispositive: "far from providing a per se immunity from examination of the substance of the State's program, the fact that aid is disbursed to parents rather than to the schools is only one among many factors to be considered." Id., at 781. The point was that "the effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions." Id., at 783.5 Nyquist thus held that aid to parents through tax deductions was no different from forbidden direct aid to religious schools for religious uses. The focus remained on what the public money bought when it reached the end point of its disbursement. c Like all criteria requiring judicial assessment of risk, divertibility is an invitation to argument, but the object of the arguments provoked has always been a realistic assessment of facts aimed at respecting the principle of no aid. In Mueller v. Allen, 463 U. S. 388 (1983), however, that object began to fade, for Mueller started down the road from realism to formalism. 5 The Court similarly rejected a path argument in Wolman v. Walter, 433 U. S. 229 (1977), overruled by Mitchell v. Helms, 530 U. S. 793 (2000), where the State sought to distinguish Meek v. Pittenger, 421 U. S. 349 (1975), overruled by Mitchell, supra, based on the fact that, in Meek, the State had lent educational materials to individuals rather than to schools. "Despite the technical change in legal bailee," the Court explained, "the program in substance is the same as before," and "it would exalt form over substance if this distinction were found to justify a result different from that in Meek." Wolman, supra, at 250. Conversely, the Court upheld a law reimbursing private schools for state-mandated testing, dismissing a proffered distinction based on the indirect path of aid in an earlier case as "a formalistic dichotomy that bears ... little relationship either to common sense or to the realities of school finance." Committee for Public Ed. and Religious Liberty v. Regan, 444 U. S. 646 ,658 (1980). 694 The aid in Mueller was in substance indistinguishable from that in Nyquist, see 463 U. S., at 396-397, n. 6, and both were substantively difficult to distinguish from aid directly to religious schools, id., at 399. But the Court upheld the Minnesota tax deductions in Mueller, emphasizing their neutral availability for religious and secular educational expenses and the role of private choice in taking them. Id., at 397398. The Court relied on the same two principles in Witters v. Washington Dept. of Servs.for Blind, 474 U. S. 481 (1986), approving one student's use of a vocational training subsidy for the blind at a religious college, characterizing it as aid to individuals from which religious schools could derive no "large" benefit: "the full benefits of the program [are not] limited, in large part or in whole, to students at sectarian institutions." Id., at 488. School Dist. of Grand Rapids v. Ball, 473 U. S. 373 , 395396, and n. 13 (1985), overruled in part by Agostini v. Felton, 521 U. S. 203 (1997), clarified that the notions of evenhandedness neutrality and private choice in Mueller did not apply to cases involving direct aid to religious schools, which were still subject to the divertibility test. But in Agostini, where the substance of the aid was identical to that in Ball, public employees teaching remedial secular classes in private schools, the Court rejected the 30-year-old presumption of divertibility, and instead found it sufficient that the aid "supplement[ed]" but did not "supplant" existing educational services, 521 U. S., at 210, 230. The Court, contrary to Ball, viewed the aid as aid "directly to the eligible students ... no matter where they choose to attend school." 521 U. S., at 229. In the 12 years between Ball and Agostini, the Court decided not only Witters, but two other cases emphasizing the form of neutrality and private choice over the substance of aid to religious uses, but always in circumstances where any aid to religion was isolated and insubstantial. Zobrest v. Catalina Foothills School Dist., 509 U. S. 1 (1993), like Wit- 695 ters, involved one student's choice to spend funds from a general public program at a religious school (to pay for a signlanguage interpreter). As in Witters, the Court reasoned that "[d]isabled children, not sectarian schools, [were] the primary beneficiaries ... ; to the extent sectarian schools benefit at all ... , they are only incidental beneficiaries." 509 U. S., at 12. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995), like Zobrest and Witters, involved an individual and insubstantial use of neutrally available public funds for a religious purpose (to print an evangelical magazine). To be sure, the aid in Agostini was systemic and arguably substantial, but, as I have said, the majority there chose to view it as a bare "supplement." 521 U. S., at 229. And this was how the controlling opinion described the systemic aid in our most recent case, Mitchell v. Helms, 530 U. S. 793 (2000), as aid going merely to a "portion" of the religious schools' budgets, id., at 860 (O'CONNOR, J., concurring in judgment). The plurality in that case did not feel so uncomfortable about jettisoning substance entirely in favor of form, finding it sufficient that the aid was neutral and that there was virtual private choice, since any aid "first passes through the hands (literally or figuratively) of numerous private citizens who are free to direct the aid elsewhere." Id., at 816. But that was only the plurality view. Hence it seems fair to say that it was not until today that substantiality of aid has clearly been rejected as irrelevant by a majority of this Court, just as it has not been until today that a majority, not a plurality, has held purely formal criteria to suffice for scrutinizing aid that ends up in the coffers of religious schools. Today's cases are notable for their stark illustration of the inadequacy of the majority's chosen formal analysis. II Although it has taken half a century since Everson to reach the majority's twin standards of neutrality and 696 free choice, the facts show that, in the majority's hands, even these criteria cannot convincingly legitimize the Ohio scheme. A Consider first the criterion of neutrality. As recently as two Terms ago, a majority of the Court recognized that neutrality conceived of as evenhandedness toward aid recipients had never been treated as alone sufficient to satisfy the Establishment Clause, Mitchell, 530 U. S., at 838-839 (O'CONNOR, J., concurring in judgment); id., at 884 (SOUTER, J., dissenting). But at least in its limited significance, formal neutrality seemed to serve some purpose. Today, however, the majority employs the neutrality criterion in a way that renders it impossible to understand. Neutrality in this sense refers, of course, to evenhandedness in setting eligibility as between potential religious and secular recipients of public money. Id., at 809-810 (plurality opinion); id., at 878-884 (SOUTER, J., dissenting) (three senses of "neutrality").6 Thus, for example, the aid scheme in Witters provided an eligible recipient with a scholarship to be used at any institution within a practically unlimited universe of schools, 474 U. S., at 488; it did not tend to provide more or less aid depending on which one the scholarship recipient chose, and there was no indication that the maximum scholarship amount would be insufficient at secular 6 JUSTICE O'CONNOR apparently no longer distinguishes between this notion of evenhandedness neutrality and the free-exercise neutrality in Everson. Compare ante, at 669 (concurring opinion), with Mitchell, 530 U. S., at 839 (opinion concurring in judgment) ("Even if we at one time used the term 'neutrality' in a descriptive sense to refer to those aid programs characterized by the requisite equipoise between support of religion and antagonism to religion, JUSTICE SOUTER'S discussion convincingly demonstrates that the evolution in the meaning of the term in our jurisprudence is cause to hesitate before equating the neutrality of recent decisions with the neutrality of old"). 697 schools. Neither did any condition of Zobrest's interpreter's subsidy favor religious education. See 509 U. S., at 10. In order to apply the neutrality test, then, it makes sense to focus on a category of aid that may be directed to religious as well as secular schools, and ask whether the scheme favors a religious direction. Here, one would ask whether the voucher provisions, allowing for as much as $2,250 toward private school tuition (or a grant to a public school in an adjacent district), were written in a way that skewed the scheme toward benefiting religious schools. This, however, is not what the majority asks. The majority looks not to the provisions for tuition vouchers, Ohio Rev. Code Ann. § 3313.976 (West Supp. 2002), but to every provision for educational opportunity: "The program permits the participation of all schools within the district, [as well as public schools in adjacent districts], religious or nonreligious." Ante, at 653 (emphasis in original). The majority then finds confirmation that "participation of all schools" satisfies neutrality by noting that the better part of total state educational expenditure goes to public schools, ante, at 654, thus showing there is no favor of religion. The illogic is patent. If regular, public schools (which can get no voucher payments) "participate" in a voucher scheme with schools that can, and public expenditure is still predominantly on public schools, then the majority's reasoning would find neutrality in a scheme of vouchers available for private tuition in districts with no secular private schools at all. "Neutrality" as the majority employs the term is, literally, verbal and nothing more. This, indeed, is the only way the majority can gloss over the very nonneutral feature of the total scheme covering "all schools": public tutors may receive from the State no more than $324 per child to support extra tutoring (that is, the State's 90% of a total amount of $360), App. 166a, whereas the tuition voucher schools (which 698 turn out to be mostly religious) can receive up to $2,250, id., at 56a.7 Why the majority does not simply accept the fact that the challenge here is to the more generous voucher scheme and judge its neutrality in relation to religious use of voucher money seems very odd. It seems odd, that is, until one recognizes that comparable schools for applying the criterion of neutrality are also the comparable schools for applying the other majority criterion, whether the immediate recipients of voucher aid have a genuinely free choice of religious and secular schools to receive the voucher money. And in applying this second criterion, the consideration of "all schools" is ostensibly helpful to the majority position. B The majority addresses the issue of choice the same way it addresses neutrality, by asking whether recipients or potential recipients of voucher aid have a choice of public schools among secular alternatives to religious schools. Again, however, the majority asks the wrong question and misapplies the criterion. The majority has confused choice in spending scholarships with choice from the entire menu of 7 The majority's argument that public school students within the program "direct almost twice as much state funding to their chosen school as do program students who receive a scholarship and attend a private school," ante, at 654, n. 3, was decisively rejected in Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756 , 782-783, n. 38 (1973): "We do not agree with the suggestion ... that tuition grants are an analogous endeavor to provide comparable benefits to all parents of schoolchildren whether enrolled in public or nonpublic schools .... The grants to parents of private school children are given in addition to the right that they have to send their children to public schools 'totally at state expense.' And in any event, the argument proves too much, for it would also provide a basis for approving through tuition grants the complete subsidization of all religious schools on the ground that such action is necessary if the State is fully to equalize the position of parents who elect such schoolsa result wholly at variance with the Establishment Clause." 699 possible educational placements, most of them open to anyone willing to attend a public school. I say "confused" because the majority's new use of the choice criterion, which it frames negatively as "whether Ohio is coercing parents into sending their children to religious schools," ante, at 655-656, ignores the reason for having a private choice enquiry in the first place. Cases since Mueller have found private choice relevant under a rule that aid to religious schools can be permissible so long as it first passes through the hands of students or parents.8 The majority's view that all educational choices are comparable for purposes of choice thus ignores the whole point of the choice test: it is a criterion for deciding whether indirect aid to a religious school is legitimate because it passes through private hands that can spend or use the aid in a secular school. The question is whether the private hand is genuinely free to send the money in either a secular direction or a religious one. The majority now has transformed this question about private choice in channeling aid into a question about selecting from examples of state spending (on education) including direct spending on magnet and community public schools that goes through no private hands and could never reach a religious school under any circumstance. When the choice test is transformed from where to spend the money to where to go to school, it is cut loose from its very purpose. 8 In some earlier cases, "private choice" was sensibly understood to go beyond the mere formalism of path, to ensure that aid was neither systemic nor predestined to go to religious uses. Witters, for example, had a virtually unlimited choice among professional training schools, only a few of which were religious; and Zobrest was simply one recipient who chose to use a government-funded interpreter at a religious school over a secular school, either of which was open to him. But recent decisions seem to have stripped away any substantive bite, as "private choice" apparently means only that government aid follows individuals to religious schools. See, e. g., Agostini v. Felton, 521 U. S. 203 , 229 (1997) (state aid for remedial instruction at a religious school goes "directly to the eligible students ... no matter where they choose to attend school"). 700 Defining choice as choice in spending the money or channeling the aid is, moreover, necessary if the choice criterion is to function as a limiting principle at all. If "choice" is present whenever there is any educational alternative to the religious school to which vouchers can be endorsed, then there will always be a choice and the voucher can always be constitutional, even in a system in which there is not a single private secular school as an alternative to the religious school. See supra, at 697 (noting the same result under the majority's formulation of the neutrality criterion). And because it is unlikely that any participating private religious school will enroll more pupils than the generally available public system, it will be easy to generate numbers suggesting that aid to religion is not the significant intent or effect of the voucher scheme. That is, in fact, just the kind of rhetorical argument that the majority accepts in these cases. In addition to secular private schools (129 students), the majority considers public schools with tuition assistance (roughly 1,400 students), magnet schools (13,000 students), and community schools (1,900 students), and concludes that fewer than 20% of pupils receive state vouchers to attend religious schools. Ante, at 659. (In fact, the numbers would seem even more favorable to the majority's argument if enrollment in traditional public schools without tutoring were considered, an alternative the majority thinks relevant to the private choice enquiry, ante, at 655.) JUSTICE O'CONNOR focuses on how much money is spent on each educational option and notes that at most $8.2 million is spent on vouchers for students attending religious schools, ante, at 664 (concurring opinion), which is only 6% of the State's expenditure if one includes separate funding for Cleveland's community ($9.4 million) and magnet ($114.8 million) public schools. The variations show how results may shift when a judge can pick and choose the alternatives to use in the comparisons, and they also show what dependably comfortable results the choice crite- 701 rion will yield if the identification of relevant choices is wide open. If the choice of relevant alternatives is an open one, proponents of voucher aid will always win, because they will always be able to find a "choice" somewhere that will show the bulk of public spending to be secular. The choice enquiry will be diluted to the point that it can screen out nothing, and the result will always be determined by selecting the alternatives to be treated as choices. Confining the relevant choices to spending choices, on the other hand, is not vulnerable to comparable criticism. Although leaving the selection of alternatives for choice wide open, as the majority would, virtually guarantees the availability of a "choice" that will satisfy the criterion, limiting the choices to spending choices will not guarantee a negative result in every case. There may, after all, be cases in which a voucher recipient will have a real choice, with enough secular private school desks in relation to the number of religious ones, and a voucher amount high enough to meet secular private school tuition levels. See infra, at 704-707. But, even to the extent that choice-to-spend does tend to limit the number of religious funding options that pass muster, the choice criterion has to be understood this way in order, as I have said, for it to function as a limiting principle.9 Otherwise 9 The need for a limit is one answer to JUSTICE O'CONNOR, who argues at length that community schools should factor in the "private choice" calculus. Ante, at 672-673 (concurring opinion). To be fair, community schools do exhibit some features of private schools: they are autonomously managed without any interference from the school district or State and two have prior histories as private schools. It may be, then, that community schools might arguably count as choices because they are not like other public schools run by the State or municipality, but in substance merely private schools with state funding outside the voucher program. But once any public school is deemed a relevant object of choice, there is no stopping this progression. For example, both the majority and JUSTICE O'CONNOR characterize public magnet schools as an independent category of genuine educational options, simply because they are "nontraditional" public schools. But they do not share the "private school" features of community schools, and the only thing that distinguishes them 702 there is surely no point in requiring the choice to be a true or real or genuine one.10 from "traditional" public schools is their thematic focus, which in some cases appears to be nothing more than creative marketing. See, e. g., Cleveland Municipal School District, Magnet and Thematic Programs/ Schools (including, as magnet schools, "[f]undamental [e]ducation [c]enters," which employ "[t]raditional classrooms and teaching methods with an emphasis on basic skills"; and "[a]ccelerated [l]earning" schools, which rely on "[i]nstructional strategies [that] provide opportunities for students to build on individual strengths, interests and talents"). 10 And how should we decide which "choices" are "genuine" if the range of relevant choices is theoretically wide open? The showcase educational options that the majority and JUSTICE O'CONNOR trumpet are Cleveland's 10 community schools, but they are hardly genuine choices. Two do not even enroll students in kindergarten through third grade, App. 162a, and thus parents contemplating participation in the voucher program cannot select those schools. See Ohio Rev. Code Ann. § 3313.975(C)(1) (West Supp. 2002) ("[N]o new students may receive scholarships unless they are enrolled in grade kindergarten, one, two, or three"). One school was not "in operation" as of 1999, and in any event targeted students below the federal poverty line, App. 162a, not all voucher-eligible students, see n. 21, infra. Another school was a special population school for students with "numerous suspensions, behavioral problems and who are a grade level below their peers," App. 162a, which, as JUSTICE O'CONNOR points out, may be "more attractive to certain inner-city parents," ante, at 674, but is probably not an attractive "choice" for most parents. Of the six remaining schools, the most recent statistics on fourth-grade student performance (unavailable for one school) indicate: three scored well below the Cleveland average in each of five tested subjects on state proficiency examinations, one scored above in one subject, and only one community school, Old Brooklyn Montessori School, was even an arguable competitor, scoring slightly better than traditional public schools in three subjects, and somewhat below in two. See Ohio Dept. of Ed., 2002 Community School Report Card, Hope Academy, Lincoln Park, p. 5; id., Hope Academy, Cathedral Campus, at 5; id., Hope Academy, Chapelside Campus, at 5; id., Hope Academy, Broadway Campus, at 5; id., Old Brooklyn Montessori School, at 5; 2002 District Report Card, Cleveland Municipal School District, p. 1. These statistics are consistent with 1999 test results, which were only available for three of the schools. Brief for Ohio School Boards Association et al. as Amici Curiae 26-28 (for example, 34.3% of students 703 It is not, of course, that I think even a genuine choice criterion is up to the task of the Establishment Clause when substantial state funds go to religious teaching; the discussion in Part III, infra, shows that it is not. The point is simply that if the majority wishes to claim that choice is a criterion, it must define choice in a way that can function as a criterion with a practical capacity to screen something out. If, contrary to the majority, we ask the right question about genuine choice to use the vouchers, the answer shows that something is influencing choices in a way that aims the money in a religious direction: of 56 private schools in the district participating in the voucher program (only 53 of which accepted voucher students in 1999-2000), 46 of them are religious; 96.6% of all voucher recipients go to religious schools, only 3.4% to nonreligious ones. See App. 281a286a. Unfortunately for the majority position, there is no explanation for this that suggests the religious direction results simply from free choices by parents. One answer to these statistics, for example, which would be consistent with the genuine choice claimed to be operating, might be that 96.6% of families choosing to avail themselves of vouchers choose to educate their children in schools of their own religion. This would not, in my view, render the scheme constitutional, but it would speak to the majority's choice criterion. in the Cleveland City School District were proficient in math, as compared with 3.3% in Hope Chapelside and 0% in Hope Cathedral). I think that objective academic excellence should be the benchmark in comparing schools under the majority's test; JUSTICE O'CONNOR prefers comparing educational options on the basis of subjective "parental satisfaction," ante, at 675, and I am sure there are other plausible ways to evaluate "genuine choices." Until now, our cases have never talked about the quality of educational options by whatever standard, but now that every educational option is a relevant "choice," this is what the "genuine and independent private choice" enquiry, ante, at 652 (opinion of the Court), would seem to require if it is to have any meaning at all. But if that is what genuine choice means, what does this enquiry have to do with the Establishment Clause? 704 Evidence shows, however, that almost two out of three families using vouchers to send their children to religious schools did not embrace the religion of those schools. App. to Pet. for Cert. in No. 00-1777, p. 147aY The families made it clear they had not chosen the schools because they wished their children to be proselytized in a religion not their own, or in any religion, but because of educational opportunity.12 Even so, the fact that some 2,270 students chose to apply their vouchers to schools of other religions, App. 281a-286a, might be consistent with true choice if the students "chose" their religious schools over a wide array of private nonreligious options, or if it could be shown generally that Ohio's program had no effect on educational choices and thus no impermissible effect of advancing religious education. But both possibilities are contrary to fact. First, even if all existing nonreligious private schools in Cleveland were willing to accept large numbers of voucher students, only a few more than the 129 currently enrolled in such schools would be able to attend, as the total enrollment at all nonreligious private schools in Cleveland for kindergarten through eighth grade is only 510 children, see Brief for California Alliance for Public Schools as Amicus Curiae 15, and there is no indication that these schools have many open seats.13 Second, the 11 For example, 40% of families who sent their children to private schools for the first time under the voucher program were Baptist, App. 118a, but only one school, enrolling 44 voucher students, is Baptist, id., at 284a. 12 When parents were surveyed as to their motives for enrolling their children in the voucher program, 96.4% cited a better education than available in the public schools, and 95% said their children's safety. Id., at 69a-70a. When asked specifically in one study to identify the most important factor in selecting among participating private schools, 60% of parents mentioned academic quality, teacher quality, or the substance of what is taught (presumably secular); only 15% mentioned the religious affiliation of the school as even a consideration. Id., at 119a. 13JU8TICE O'CONNOR points out that "there is no record evidence that any voucher-eligible student was turned away from a nonreligious private school in the voucher program." Ante, at 671. But there is equally no 705 $2,500 cap that the program places on tuition for participating low-income pupils has the effect of curtailing the participation of nonreligious schools: "nonreligious schools with higher tuition (about $4,000) stated that they could afford to accommodate just a few voucher students." 14 By comparison, the average tuition at participating Catholic schools in Cleveland in 1999-2000 was $1,592, almost $1,000 below the cap.15 evidence to support her assertion that "many parents with vouchers selected nonreligious private schools over religious alternatives," ibid., and in fact the evidence is to the contrary, as only 129 students used vouchers at private nonreligious schools. 14 General Accounting Office Report No. 01-914, School Vouchers: Publicly Funded Programs in Cleveland and Milwaukee 25 (Aug. 2001) (GAO Report). Of the 10 nonreligious private schools that "participate" in the Cleveland voucher program, 3 currently enroll no voucher students. And of the remaining seven schools, one enrolls over half of the 129 students that attend these nonreligious schools, while only two others enroll more than 8 voucher students. App. 281a-286a. Such schools can charge full tuition to students whose families do not qualify as "low income," but unless the number of vouchers are drastically increased, it is unlikely that these students will constitute a large fraction of voucher recipients, as the program gives preference in the allocation of vouchers to low-income children. See Ohio Rev. Code Ann. § 3313.978(A) (West Supp. 2002). 15GAO Report 25. A 1993-1994 national study reported a similar average tuition for Catholic elementary schools ($1,572), but higher tuition for other religious schools ($2,213), and nonreligious schools ($3,773). U. S. Dept. of Ed., Office of Educational Research and Improvement, National Center for Education Statistics, Private Schools in the United States: A Statistical Profile, 1993-94 (NCES 1997-459 June 1997) (Table 1.5). The figures are explained in part by the lower teaching expenses of the religious schools and general support by the parishes that run them. Catholic schools, for example, received 24.1% of their revenue from parish subsidies in the 2000-2001 school year. National Catholic Educational Association, Balance Sheet for Catholic Elementary Schools: 2001 Income and Expenses 25 (2001). Catholic schools also often rely on priests or members of religious communities to serve as principals, 32% of 550 reporting schools in one study, id., at 21; at the elementary school level, the average salary of religious sisters serving as principals in 2000-2001 was $28,876, as compared to lay principals, who received on average $45,154, 706 Of course, the obvious fix would be to increase the value of vouchers so that existing nonreligious private and nonCatholic religious schools would be able to enroll more voucher students, and to provide incentives for educators to create new such schools given that few presently exist. Private choice, if as robust as that available to the seminarian in Witters, would then be "true private choice" under the majority's criterion. But it is simply unrealistic to presume that parents of elementary and middle school students in Cleveland will have a range of secular and religious choices even arguably comparable to the statewide program for vocational and higher education in Witters. And to get to that hypothetical point would require that such massive financial support be made available to religion as to disserve every objective of the Establishment Clause even more than the present scheme does. See Part III-B, infra. 16 and public school principals who reported an average salary of $72,587. Ibid. JUSTICE O'CONNOR argues that nonreligious private schools can compete with Catholic and other religious schools below the $2,500 tuition cap. See ante, at 670-671. The record does not support this assertion, as only three secular private schools in Cleveland enroll more than eight voucher students. See n. 14, supra. Nor is it true, as she suggests, that our national statistics are spurious because secular schools cater to a different market from Catholic or other religious schools: while there is a spectrum of nonreligious private schools, there is likely a commensurate range of low-end and high-end religious schools. My point is that at each level, the religious schools have a comparative cost advantage due to church subsidies, donations of the faithful, and the like. The majority says that nonreligious private schools in Cleveland derive similar benefits from "third-party contributions," ante, at 656, n. 4, but the one affidavit in the record that backs up this assertion with data concerns a private school for "emotionally disabled and developmentally delayed children" that received 11 % of its budget from the United Way organization, App. 194a-195a, a large proportion to be sure, but not even half of the 24.1 % of budget that Catholic schools on average receive in parish subsidies alone, see supra this note. 16 The majority notes that I argue both that the Ohio program is unconstitutional because the voucher amount is too low to create real private choice and that any greater expenditure would be unconstitutional as 707 There is, in any case, no way to interpret the 96.6% of current voucher money going to religious schools as reflecting a free and genuine choice by the families that apply for vouchers. The 96.6% reflects, instead, the fact that too few nonreligious school desks are available and few but religious schools can afford to accept more than a handful of voucher students. And contrary to the majority's assertion, ante, at 654, public schools in adjacent districts hardly have a financial incentive to participate in the Ohio voucher program, and none has.17 For the overwhelming number of children in the voucher scheme, the only alternative to the public schools is religious. And it is entirely irrelevant that the State did not deliberately design the network of private schools for the sake of channeling money into religious institutions. The criterion is one of genuinely free choice on the part of the private individuals who choose, and a Hobson's choice is not a choice, whatever the reason for being Hobsonian. III I do not dissent merely because the majority has misapplied its own law, for even if I assumed arguendo that the well. Ante, at 656-657, n. 4. The majority is dead right about this, and there is no inconsistency here: any voucher program that satisfied the majority's requirement of "true private choice" would be even more egregiously unconstitutional than the current scheme due to the substantial amount of aid to religious teaching that would be required. 17 As the Court points out, ante, at 645-646, n. 1, an out-of-district public school that participates will receive a $2,250 voucher for each Cleveland student on top of its normal state funding. The basic state funding, though, is a drop in the bucket as compared to the cost of educating that student, as much of the cost (at least in relatively affluent areas with presumptively better academic standards) is paid by local income and property taxes. See Brief for Ohio School Boards Association et al. as Amici Curiae 19-21. The only adjacent district in which the voucher amount is close enough to cover the local contribution is East Cleveland City (local contribution, $2,019, see Ohio Dept. of Ed., 2002 Community School Report Card, East Cleveland City School District, p. 2), but its public-school system hardly provides an attractive alternative for Cleveland parents, as it too has been classified by Ohio as an "academic emergency" district. See ibid. 708 majority's formal criteria were satisfied on the facts, today's conclusion would be profoundly at odds with the Constitution. Proof of this is clear on two levels. The first is circumstantial, in the now discarded symptom of violation, the substantial dimension of the aid. The second is direct, in the defiance of every objective supposed to be served by the bar against establishment. A The scale of the aid to religious schools approved today is unprecedented, both in the number of dollars and in the proportion of systemic school expenditure supported. Each measure has received attention in previous cases. On one hand, the sheer quantity of aid, when delivered to a class of religious primary and secondary schools, was suspect on the theory that the greater the aid, the greater its proportion to a religious school's existing expenditures, and the greater the likelihood that public money was supporting religious as well as secular instruction. As we said in Meek, "it would simply ignore reality to attempt to separate secular educational functions from the predominantly religious role" as the object of aid that comes in "substantial amounts." 421 U. S., at 365. Cf. Nyquist, 413 U. S., at 787-788 (rejecting argument that tuition assistance covered only 15% of education costs, presumably secular, at religious schools). Conversely, the more "attenuated [the] financial benefit ... that eventually flows to parochial schools," the more the Court has been willing to find a form of state aid permissible. Mueller, 463 U. S., at 400.18 18 The majority relies on Mueller, Agostini, and Mitchell to dispute the relevance of the large number of students that use vouchers to attend religious schools, ante, at 658, but the reliance is inapt because each of those cases involved insubstantial benefits to the religious schools, regardless of the number of students that benefited. See, e. g., Mueller, 463 U. S., at 391 ($112 in tax benefit to the highest bracket taxpayer, see Brief for Respondents Becker et al. in Mueller v. Allen, O. T. 1982, No. 82-195, p. 5); Agostini, 521 U. S., at 210 (aid "must 'supplement, and in no case supplant' "); Mitchell, 530 U. S., at 866 (O'CONNOR, J., concurring in judgment) ("de minimis"). See also supra, at 694-695. 709 On the other hand, the Court has found the gross amount unhelpful for Establishment Clause analysis when the aid afforded a benefit solely to one individual, however substantial as to him, but only an incidental benefit to the religious school at which the individual chose to spend the State's money. See Witters, 474 U. S., at 488; cf. Zobrest, 509 U. S., at 12. When neither the design nor the implementation of an aid scheme channels a series of individual students' subsidies toward religious recipients, the relevant beneficiaries for establishment purposes, the Establishment Clause is unlikely to be implicated. The majority's reliance on the observations of five Members of the Court in Witters as to the irrelevance of substantiality of aid in that case, see ante, at 651, is therefore beside the point in the matter before us, which involves considerable sums of public funds systematically distributed through thousands of students attending religious elementary and middle schools in the city of Cleveland. 19 19 No less irrelevant, and lacking even arguable support in our cases, is JUSTICE O'CONNOR'S argument that the $8.2 million in tax-raised funds distributed under the Ohio program to religious schools is permissible under the Establishment Clause because it "pales in comparison to the amount of funds that federal, state, and local governments already provide religious institutions," ante, at 665. Our cases have consistently held that state benefits at some level can go to religious institutions when the recipients are not pervasively sectarian, see, e. g., Tilton v. Richardson, 403 U. S. 672 (1971) (aid to church-related colleges and universities); Bradfield v. Roberts, 175 U. S. 291 (1899) (religious hospitals); when the benefit comes in the form of tax exemption or deduction, see, e. g., Walz v. Tax Comm'n of City of New York, 397 U. S. 664 (1970) (property-tax exemptions); Mueller v. Allen, 463 U. S. 388 (1983) (tax deductions for educational expenses); or when the aid can plausibly be said to go to individual university students, see, e. g., Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481 (1986) (state scholarship programs for higher education, and by extension federal programs such as the G. I. Bill). The fact that those cases often allow for large amounts of aid says nothing about direct aid to pervasively sectarian schools for religious teaching. This "greater justifies the lesser" argument not only ignores the aforementioned cases, it would completely swallow up our aid-to-school cases from Everson onward: if $8.2 million in vouchers is acceptable, for example, 710 The Cleveland voucher program has cost Ohio taxpayers $33 million since its implementation in 1996 ($28 million in voucher payments, $5 million in administrative costs), and its cost was expected to exceed $8 million in the 2001-2002 school year. People for the American Way Foundation, Five Years and Counting: A Closer Look at the Cleveland Voucher Program 1-2 (Sept. 25, 2001) (hereinafter Cleveland Voucher Program) (cited in Brief for National School Boards Association et al. as Amici Curiae 9). These tax-raised funds are on top of the textbooks, reading and math tutors, laboratory equipment, and the like that Ohio provides to private schools, worth roughly $600 per child. Cleveland Voucher Program 2.20 The gross amounts of public money contributed are symptomatic of the scope of what the taxpayers' money buys for a broad class of religious-school students. In paying for practically the full amount of tuition for thousands of qualifying students,21 cf. Nyquist, supra, at 781-783 (state aid amounting to 50% of tuition was unconstitutional), the scholarships purchase everything that tuition purchases, be it instruction in math or indoctrination in faith. The conse- why is there any requirement against greater than de minimis diversion to religious uses? See Mitchell, supra, at 866 (O'CONNOR, J., concurring in judgment). 20 The amount of federal aid that may go to religious education after today's decision is startling: according to one estimate, the cost of a national voucher program would be $73 billion, 25% more than the current national public-education budget. People for the American Way Foundation, Community Voice or Captive of the Right? 10 (Dec. 2001). 21 Most, if not all, participating students come from families with incomes below 200% of the poverty line (at least 60% are below the poverty line, App. in Nos. 00-3055, etc. (CA6), p. 1679), and are therefore eligible for vouchers covering 90% of tuition, Ohio Rev. Code Ann. § 3313.978(A) (West Supp. 2002); they may make up the 10% shortfall by "in-kind contributions or services," which the recipient school "shall permit," § 3313.976(A)(8). Any higher income students in the program receive vouchers paying 75% of tuition costs. § 3313.978(A). 711 quences of "substantial" aid hypothesized in Meek are realized here: the majority makes no pretense that substantial amounts of tax money are not systematically underwriting religious practice and indoctrination. B It is virtually superfluous to point out that every objective underlying the prohibition of religious establishment is betrayed by this scheme, but something has to be said about the enormity of the violation. I anticipated these objectives earlier, supra, at 689-690, in discussing Everson, which cataloged them, the first being respect for freedom of conscience. Jefferson described it as the idea that no one "shall be compelled to ... support any religious worship, place, or ministry whatsoever," A Bill for Establishing Religious Freedom, in 5 The Founders' Constitution 84 (P. Kurland & R. Lerner eds. 1987), even a "teacher of his own religious persuasion," ibid., and Madison thought it violated by any "'authority which can force a citizen to contribute three pence ... of his property for the support of any ... establishment.' " Memorial and Remonstrance ~ 3, reprinted in Everson, 330 U. S., at 65-66. "Any tax to establish religion is antithetical to the command that the minds of men always be wholly free," Mitchell, 530 U. S., at 871 (SOUTER, J., dissenting) (internal quotation marks and citations omitted).22 Madison's objection to three pence has simply been lost in the majority's formalism. As for the second objective, to save religion from its own corruption, Madison wrote of the" 'experience ... that eccle- 22 As a historical matter, the protection of liberty of conscience may well have been the central objective served by the Establishment Clause. See Feldman, Intellectual Origins of the Establishment Clause, 77 N. Y. U. L. Rev. 346, 398 (May 2002) ("In the time between the proposal of the Constitution and of the Bill of Rights, the predominant, not to say exclusive, argument against established churches was that they had the potential to violate liberty of conscience"). 712 siastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation.'" Memorial and Remonstrance ~ 7, reprinted in Everson, 330 U. S., at 67. In Madison's time, the manifestations were "pride and indolence in the Clergy; ignorance and servility in the laity[,] in both, superstition, bigotry and persecution," ibid.; in the 21st century, the risk is one of "corrosive secularism" to religious schools, Ball, 473 U. S., at 385, and the specific threat is to the primacy of the schools' mission to educate the children of the faithful according to the unaltered precepts of their faith. Even "[t]he favored religion may be compromised as political figures reshape the religion's beliefs for their own purposes; it may be reformed as government largesse brings government regulation." Lee v. Weisman, 505 U. S. 577 , 608 (1992) (Blackmun, J., concurring). The risk is already being realized. In Ohio, for example, a condition of receiving government money under the program is that participating religious schools may not "discriminate on the basis of ... religion," Ohio Rev. Code Ann. § 3313.976(A)(4) (West Supp. 2002), which means the school may not give admission preferences to children who are members of the patron faith; children of a parish are generally consigned to the same admission lotteries as nonbelievers, §§ 3313.977(A)(1)(c)-(d). This indeed was the exact object of a 1999 amendment repealing the portion of a predecessor statute that had allowed an admission preference for "[c]hildren ... whose parents are affiliated with any organization that provides financial support to the school, at the discretion of the school." § 3313.977(A)(1)(d) (West 1999). Nor is the State's religious antidiscrimination restriction limited to student admission policies: by its terms, a participating religious school may well be forbidden to choose a member of its own clergy to serve as teacher or principal over a layperson of a different religion claiming 713 equal qualification for the job.23 Cf. National Catholic Educational Association, Balance Sheet for Catholic Elementary Schools: 2001 Income and Expenses 25 (2001) ("31% of [reporting Catholic elementary and middle] schools had at least one full-time teacher who was a religious sister"). Indeed, § 3313.976(A)(6) (West Supp. 2002), could be understood (or subsequently broadened) to prohibit religions from teaching traditionally legitimate articles of faith as to the error, sinfulness, or ignorance of others,24 if they want government money for their schools. 23 And the courts will, of course, be drawn into disputes about whether a religious school's employment practices violated the Ohio statute. In part precisely to avoid this sort of involvement, some Courts of Appeals have held that religious groups enjoy a First Amendment exemption for clergy from state and federal laws prohibiting discrimination on the basis of race or ethnic origin. See, e. g., Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164 , 1170 (CA41985) ("The application of Title VII to employment decisions of this nature would result in an intolerably close relationship between church and state both on a substantive and procedural level"); EEOC v. Catholic Univ. of America, 83 F.3d 455 , 470 (CADC 1996); Young v. Northern Ill. Conference of United Methodist Church, 21 F.3d 184 , 187 (CA7 1994). This approach would seem to be blocked in Ohio by the same antidiscrimination provision, which also covers "race ... or ethnic background." Ohio Rev. Code Ann. § 3313.976(A)(4) (West Supp. 2002). 24 See, e. g., Christian New Testament (2 Corinthians 6:14) (King James Version) ("Be ye not unequally yoked together with unbelievers: for what fellowship hath righteousness with unrighteousness? and what communion hath light with darkness?"); The Book of Mormon (2 Nephi 9:24) ("And if they will not repent and believe in his name, and be baptized in his name, and endure to the end, they must be damned; for the Lord God, the Holy One of Israel, has spoken it"); Pentateuch (Deut. 29:19) (The New Jewish Publication Society Translation) (for one who converts to another faith, "[t]he LORD will never forgive him; rather will the LORD'S anger and passion rage against that man, till every sanction recorded in this book comes down upon him, and the LORD blots out his name from under heaven"); 714 For perspective on this foot-in-the-door of religious regulation, it is well to remember that the money has barely begun to flow. Prior examples of aid, whether grants through individuals or in-kind assistance, were never significant enough to alter the basic fiscal structure of religious schools; state aid was welcome, but not indispensable. See, e. g., Mitchell, 530 U. S., at 802 (federal funds could only supplement funds from nonfederal sources); Agostini, 521 U. S., at 210 (federally funded services could" 'supplement, and in no case supplant, the level of services'" already provided). But given the figures already involved here, there is no question that religious schools in Ohio are on the way to becoming bigger businesses with budgets enhanced to fit their new stream of tax-raised income. See, e. g., People for the American Way Foundation, A Painful Price 5, 9, 11 (Feb. 14,2002) (of 91 schools participating in the Milwaukee program, 75 received voucher payments in excess of tuition, 61 of those were religious and averaged $185,000 worth of overpayment per school, justified in part to "raise low salaries"). The administrators of those same schools are also no doubt following the politics of a move in the Ohio State Senate to raise the current maximum value of a school voucher from $2,250 to the base amount of current state spending on each public school student ($4,814 for the 2001 fiscal year). See Bloedel, Bill Analysis of S. B. No. 89, 124th Ohio Gen. Assembly, regular session 2001-2002 (Ohio Legislative Service Commission). Ohio, in fact, is merely replicating the experience in Wisconsin, where a similar increase in the value of educational vouchers in Milwaukee has induced the creation of some 23 new private schools, Public Policy Forum, Research Brief, vol. 90, no. 1, p. 3 (Jan. 23, 2002), some of which, we may safely surmise, are religious. New schools have presumably The Koran 334 (The Cow Ch. 2:1) (N. Dawood transl. 4th rev. ed. 1974) ("As for the unbelievers, whether you forewarn them or not, they will not have faith. Allah has set a seal upon their hearts and ears; their sight is dimmed and a grievous punishment awaits them"). 715 pegged their financial prospects to the government from the start, and the odds are that increases in government aid will bring the threshold voucher amount closer to the tuition at even more expensive religious schools. When government aid goes up, so does reliance on it; the only thing likely to go down is independence. If Justice Douglas in Allen was concerned with state agencies, influenced by powerful religious groups, choosing the textbooks that parochial schools would use, 392 U. S., at 265 (dissenting opinion), how much more is there reason to wonder when dependence will become great enough to give the State of Ohio an effective veto over basic decisions on the content of curriculums? A day will come when religious schools will learn what political leverage can do, just as Ohio's politicians are now getting a lesson in the leverage exercised by religion. Increased voucher spending is not, however, the sole portent of growing regulation of religious practice in the school, for state mandates to moderate religious teaching may well be the most obvious response to the third concern behind the ban on establishment, its inextricable link with social conflict. See Mitchell, supra, at 872 (SOUTER, J., dissenting); Everson, 330 U. S., at 8-11. As appropriations for religious subsidy rise, competition for the money will tap sectarian religion's capacity for discord. "Public money devoted to payment of religious costs, educational or other, brings the quest for more. It brings too the struggle of sect against sect for the larger share or for any. Here one by numbers alone will benefit most, there another." Id., at 53. (Rutledge, J., dissenting). JUSTICE BREYER has addressed this issue in his own dissenting opinion, which I join, and here it is enough to say that the intensity of the expectable friction can be gauged by realizing that the scramble for money will energize not only contending sectarians, but taxpayers who take their liberty of conscience seriously. Religious teaching at taxpayer 716 expense simply cannot be cordoned from taxpayer politics, and every major religion currently espouses social positions that provoke intense opposition. Not all taxpaying Protestant citizens, for example, will be content to underwrite the teaching of the Roman Catholic Church condemning the death penalty.25 Nor will all of America's Muslims acquiesce in paying for the endorsement of the religious Zionism taught in many religious Jewish schools, which combines "a nationalistic sentiment" in support of Israel with a "deeply religious" element.26 Nor will every secular taxpayer be content to support Muslim views on differential treatment of the sexes,27 or, for that matter, to fund the espousal of a wife's obligation of obedience to her husband, presumably taught in any schools adopting the articles of faith of the Southern Baptist Convention.28 Views like these, and innumerable others, have been safe in the sectarian pulpits and classrooms of this Nation not only because the Free Exercise Clause protects them directly, but because the ban on supporting religious establishment has protected free exercise, by keeping it relatively private. With the arrival of vouchers in religious schools, that privacy will go, and along with it will go confidence that religious disagreement will stay moderate. *** If the divisiveness permitted by today's majority is to be avoided in the short term, it will be avoided only by action 25 See R. Martino, Abolition of the Death Penalty (Nov. 2, 1999) ("The position of the Holy See, therefore, is that authorities, even for the most serious crimes, should limit themselves to non-lethal means of punishment") (citing John Paul II, Evangelium Vitae, n. 56). 26 H. Donin, To Be a Jew 15 (1972). 27 See R. Martin, Islamic Studies 224 (2d ed. 1996) (interpreting the Koran to mean that "[m]en are responsible to earn a living and provide for their families; women bear children and run the household"). 28 See The Baptist Faith and Message, Art. XVIII, available at www. sbc.net/bfm/bfm2000.asp#Xviii (available in Clerk of Court's case file) ("A wife is to submit herself graciously to the servant leadership of her husband even as the church willingly submits to the headship of Christ"). 717 of the political branches at the state and national levels. Legislatures not driven to desperation by the problems of public education may be able to see the threat in vouchers negotiable in sectarian schools. Perhaps even cities with problems like Cleveland's will perceive the danger, now that they know a federal court will not save them from it. My own course as a judge on the Court cannot, however, simply be to hope that the political branches will save us from the consequences of the majority's decision. Everson's statement is still the touchstone of sound law, even though the reality is that in the matter of educational aid the Establishment Clause has largely been read away. True, the majority has not approved vouchers for religious schools alone, or aid earmarked for religious instruction. But no scheme so clumsy will ever get before us, and in the cases that we may see, like these, the Establishment Clause is largely silenced. I do not have the option to leave it silent, and I hope that a future Court will reconsider to day's dramatic departure from basic Establishment Clause principle. JUSTICE BREYER, with whom JUSTICE STEVENS and JUSTICE SOUTER join, dissenting. I join JUSTICE SOUTER'S opinion, and I agree substantially with JUSTICE STEVENS. I write separately, however, to emphasize the risk that publicly financed voucher programs pose in terms of religiously based social conflict. I do so because I believe that the Establishment Clause concern for protecting the Nation's social fabric from religious conflict poses an overriding obstacle to the implementation of this well-intentioned school voucher program. And by explaining the nature of the concern, I hope to demonstrate why, in my view, "parental choice" cannot significantly alleviate the constitutional problem. See Part IV, infra. I The First Amendment begins with a prohibition, that "Congress shall make no law respecting an establishment of 718 religion," and a guarantee, that the government shall not prohibit "the free exercise thereof." These Clauses embody an understanding, reached in the 17th century after decades of religious war, that liberty and social stability demand a religious tolerance that respects the religious views of all citizens, permits those citizens to "worship God in their own way," and allows all families to "teach their children and to form their characters" as they wish. C. Radcliffe, The Law & Its Compass 71 (1960). The Clauses reflect the Framers' vision of an American Nation free of the religious strife that had long plagued the nations of Europe. See, e. g., Freund, Public Aid to Parochial Schools, 82 Harv. L. Rev. 1680, 1692 (1969) (religious strife was "one of the principal evils that the first amendment sought to forestall"); B. Kosmin & S. Lachman, One Nation Under God: Religion in Contemporary American Society 24 (1993) (First Amendment designed in "part to prevent the religious wars of Europe from entering the United States"). Whatever the Framers might have thought about particular 18th-century school funding practices, they undeniably intended an interpretation of the Religion Clauses that would implement this basic First Amendment objective. In part for this reason, the Court's 20th-century Establishment Clause cases-both those limiting the practice of religion in public schools and those limiting the public funding of private religious education-focused directly upon social conflict, potentially created when government becomes involved in religious education. In Engel v. Vitale, 370 U. S. 421 (1962), the Court held that the Establishment Clause forbids prayer in public elementary and secondary schools. It did so in part because it recognized the "anguish, hardship and bitter strife that could come when zealous religious groups struggl[e] with one another to obtain the Government's stamp of approval .... " Id., at 429. And it added: "The history of governmentally established religion, both in England and in this country, showed that when- 719 ever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs." Id., at 431. See also Lee v. Weisman, 505 U. S. 577 , 588 (1992) (striking down school-sanctioned prayer at high school graduation ceremony because "potential for divisiveness" has "particular relevance" in school environment); School Dist. of Abington Township v. Schempp, 374 U. S. 203 , 307 (1963) (Goldberg, J., concurring) (Bible-reading program violated Establishment Clause in part because it gave rise "to those very divisive influences and inhibitions of freedom" that come with government efforts to impose religious influence on "young impressionable [school] children"). In Lemon v. Kurtzman, 403 U. S. 602 (1971), the Court held that the Establishment Clause forbids state funding, through salary supplements, of religious school teachers. It did so in part because of the "threat" that this funding would create religious "divisiveness" that would harm "the normal political process." Id., at 622. The Court explained: "[P]olitical debate and division ... are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which [the First Amendment's religious clauses were] ... intended to protect." Ibid. And in Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756 , 794 (1973), the Court struck down a state statute that, much like voucher programs, provided aid for parents whose children attended religious schools, explaining that the "assistance of the sort here involved carries grave potential for ... continuing political strife over aid to religion." When it decided these 20th-century Establishment Clause cases, the Court did not deny that an earlier American soci- 720 ety might have found a less clear-cut church/state separation compatible with social tranquility. Indeed, historians point out that during the early years of the Republic, American schools-including the first public schools-were Protestant in character. Their students recited Protestant prayers, read the King James version of the Bible, and learned Protestant religious ideals. See, e. g., D. Tyack, Onward Christian Soldiers: Religion in the American Common School, in History and Education 217-226 (P. Nash ed. 1970). Those practices may have wrongly discriminated against members of minority religions, but given the small number of such individuals, the teaching of Protestant religions in schools did not threaten serious social conflict. See Kosmin & Lachman, supra, at 45 (Catholics constituted less than 2% of American church-affiliated population at time of founding). The 20th-century Court was fully aware, however, that immigration and growth had changed American society dramatically since its early years. By 1850, 1.6 million Catholics lived in America, and by 1900 that number rose to 12 million. Jeffries & Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279, 299-300 (Nov. 2001). There were similar percentage increases in the Jewish population. Kosmin & Lachman, supra, at 45-46. Not surprisingly, with this increase in numbers, members of nonProtestant religions, particularly Catholics, began to resist the Protestant domination of the public schools. Scholars report that by the mid-19th century religious conflict over matters such as Bible reading "grew intense," as Catholics resisted and Protestants fought back to preserve their domination. Jeffries & Ryan, supra, at 300. "Dreading Catholic domination," native Protestants "terrorized Catholics." P. Hamburger, Separation of Church and State 219 (2002). In some States "Catholic students suffered beatings or expulsions for refusing to read from the Protestant Bible, and crowds ... rioted over whether Catholic children could be 721 released from the classroom during Bible reading." Jeffries & Ryan, 100 Mich. L. Rev., at 300. The 20th-century Court was also aware that political efforts to right the wrong of discrimination against religious minorities in primary education had failed; in fact they had exacerbated religious conflict. Catholics sought equal government support for the education of their children in the form of aid for private Catholic schools. But the "Protestant position" on this matter, scholars report, "was that public schools must be 'nonsectarian' (which was usually understood to allow Bible reading and other Protestant observances) and public money must not support 'sectarian' schools (which in practical terms meant Catholic)." Id., at 301. And this sentiment played a significant role in creating a movement that sought to amend several state constitutions (often successfully), and to amend the United States Constitution (unsuccessfully) to make certain that government would not help pay for "sectarian" (i. e., Catholic) schooling for children. Id., at 301-305. See also Hamburger, supra, at 287. These historical circumstances suggest that the Court, applying the Establishment Clause through the Fourteenth Amendment to 20th-century American society, faced an interpretive dilemma that was in part practical. The Court appreciated the religious diversity of contemporary American society. See Schempp, supra, at 240 (Brennan, J., concurring). It realized that the status quo favored some religions at the expense of others. And it understood the Establishment Clause to prohibit (among other things) any such favoritism. Yet how did the Clause achieve that objective? Did it simply require the government to give each religion an equal chance to introduce religion into the primary schools-a kind of "equal opportunity" approach to the interpretation of the Establishment Clause? Or, did that Clause avoid government favoritism of some religions by insisting upon "separation" -that the government achieve 722 equal treatment by removing itself from the business of providing religious education for children? This interpretive choice arose in respect both to religious activities in public schools and government aid to private education. In both areas the Court concluded that the Establishment Clause required "separation," in part because an "equal opportunity" approach was not workable. With respect to religious activities in the public schools, how could the Clause require public primary and secondary school teachers, when reading prayers or the Bible, only to treat all religions alike? In many places there were too many religions, too diverse a set of religious practices, too many whose spiritual beliefs denied the virtue of formal religious training. This diversity made it difficult, if not impossible, to devise meaningful forms of "equal treatment" by providing an "equal opportunity" for all to introduce their own religious practices into the public schools. With respect to government aid to private education, did not history show that efforts to obtain equivalent funding for the private education of children whose parents did not hold popular religious beliefs only exacerbated religious strife? As Justice Rutledge recognized: "Public money devoted to payment of religious costs, educational or other, brings the quest for more. It brings too the struggle of sect against sect for the larger share or for any. Here one [religious sect] by numbers [of adherents] alone will benefit most, there another. This is precisely the history of societies which have had an established religion and dissident groups." Everson v. Board of Ed. of Ewing, 330 U. S. 1 ,53-54 (1947) (dissenting opinion). The upshot is the development of constitutional doctrine that reads the Establishment Clause as avoiding religious strife, not by providing every religion with an equal opportunity (say, to secure state funding or to pray in the public 723 schools), but by drawing fairly clear lines of separation between church and state-at least where the heartland of religious belief, such as primary religious education, is at issue. II The principle underlying these cases-avoiding religiously based social conflict-remains of great concern. As religiously diverse as America had become when the Court decided its major 20th-century Establishment Clause cases, we are exponentially more diverse today. America boasts more than 55 different religious groups and subgroups with a significant number of members. Graduate Center of the City University of New York, B. Kosmin, E. Mayer, & A. Keysar, American Religious Identification Survey 12-13 (2001). Major religions include, among others, Protestants, Catholics, Jews, Muslims, Buddhists, Hindus, and Sikhs. Ibid. And several of these major religions contain different subsidiary sects with different religious beliefs. See Lester, Oh, Gods!, The Atlantic Monthly 37 (Feb. 2002). Newer Christian immigrant groups are "expressing their Christianity in languages, customs, and independent churches that are barely recognizable, and often controversial, for Europeanancestry Catholics and Protestants." H. Ebaugh & J. Chafetz, Religion and the New Immigrants: Continuities and Adaptations in Immigrant Congregations 4 (abridged student ed. 2002). Under these modern-day circumstances, how is the "equal opportunity" principle to work-without risking the "struggle of sect against sect" against which Justice Rutledge warned? School voucher programs finance the religious education of the young. And, if widely adopted, they may well provide billions of dollars that will do so. Why will different religions not become concerned about, and seek to influence, the criteria used to channel this money to religious schools? Why will they not want to examine the implementation of the programs that provide this money-to determine, for ex- 724 ample, whether implementation has biased a program toward or against particular sects, or whether recipient religious schools are adequately fulfilling a program's criteria? If so, just how is the State to resolve the resulting controversies without provoking legitimate fears of the kinds of religious favoritism that, in so religiously diverse a Nation, threaten social dissension? Consider the voucher program here at issue. That program insists that the religious school accept students of all religions. Does that criterion treat fairly groups whose religion forbids them to do so? The program also insists that no participating school "advocate or foster unlawful behavior or teach hatred of any person or group on the basis of race, ethnicity, national origin, or religion." Ohio Rev. Code Ann. § 3313.976(A)(6) (West Supp. 2002). And it requires the State to "revoke the registration of any school if, after a hearing, the superintendent determines that the school is in violation" of the program's rules. § 3313.976(B). As one amicus argues, "it is difficult to imagine a more divisive activity" than the appointment of state officials as referees to determine whether a particular religious doctrine "teaches hatred or advocates lawlessness." Brief for National Committee for Public Education and Religious Liberty as Ami cus Curiae 23. How are state officials to adjudicate claims that one religion or another is advocating, for example, civil disobedience in response to unjust laws, the use of illegal drugs in a religious ceremony, or resort to force to call attention to what it views as an immoral social practice? What kind of public hearing will there be in response to claims that one religion or another is continuing to teach a view of history that casts members of other religions in the worst possible light? How will the public react to government funding for schools that take controversial religious positions on topics that are of current popular interest-say, the conflict in the Middle East or the war on terrorism? Yet any major funding program 725 for primary religious education will require criteria. And the selection of those criteria, as well as their application, inevitably pose problems that are divisive. Efforts to respond to these problems not only will seriously entangle church and state, see Lemon, 403 U. S., at 622, but also will promote division among religious groups, as one group or another fears (often legitimately) that it will receive unfair treatment at the hands of the government. I recognize that other nations, for example Great Britain and France, have in the past reconciled religious school funding and religious freedom without creating serious strife. Yet British and French societies are religiously more homogeneous-and it bears noting that recent waves of immigration have begun to create problems of social division there as well. See, e. g., The Muslims of France, 75 Foreign Affairs 78 (1996) (describing increased religious strife in France, as exemplified by expulsion of teenage girls from school for wearing traditional Muslim scarves); Ahmed, Extreme Prejudice; Muslims in Britain, The Times of London, May 2, 1992, p. 10 (describing religious strife in connection with increased Muslim immigration in Great Britain). In a society as religiously diverse as ours, the Court has recognized that we must rely on the Religion Clauses of the First Amendment to protect against religious strife, particularly when what is at issue is an area as central to religious belief as the shaping, through primary education, of the next generation's minds and spirits. See, e. g., Webster, On the Education of Youth in America (1790), in Essays on Education in the Early Republic 43, 53, 59 (F. Rudolph ed. 1965) ("[E]ducation of youth" is "of more consequence than making laws and preaching the gospel, because it lays the foundation on which both law and gospel rest for success"); Pope Paul VI, Declaration on Christian Education (1965) ("[T]he Catholic school can be such an aid to the fulfillment of the mission of the People of God and to the fostering of dialogue between 726 the Church and mankind, to the benefit of both, it retains even in our present circumstances the utmost importance"). III I concede that the Establishment Clause currently permits States to channel various forms of assistance to religious schools, for example, transportation costs for students, computers, and secular texts. See Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947); Mitchell v. Helms, 530 U. S. 793 (2000). States now certify the nonsectarian educational content of religious school education. See, e. g., New Life Baptist Church Academy v. East Longmeadow, 885 F.2d 940 (CA1 1989). Yet the consequence has not been great turmoil. But see, e. g., May, Charter School's Religious Tone; Operation of South Bay Academy Raises Church-State Questions, San Francisco Chronicle, Dec. 17, 2001, p. A1 (describing increased government supervision of charter schools after complaints that students were "studying Islam in class and praying with their teachers," and Muslim educators complaining of" 'post-Sept. 11 anti-Muslim sentiment' "). School voucher programs differ, however, in both kind and degree from aid programs upheld in the past. They differ in kind because they direct financing to a core function of the church: the teaching of religious truths to young children. For that reason the constitutional demand for "separation" is of particular constitutional concern. See, e. g., Weisman, 505 U. S., at 592 ("heightened concerns" in context of primary education); Edwards v. Aguillard, 482 U. S. 578 , 583584 (1987) ("Court has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools"). Private schools that participate in Ohio's program, for example, recognize the importance of primary religious education, for they pronounce that their goals are to "communicate the gospel," "provide opportunities to ... experience a faith community," "provide ... for growth in prayer," and "pro- 727 vide instruction in religious truths and values." App. 408a, 487a. History suggests, not that such private school teaching of religion is undesirable, but that government funding of this kind of religious endeavor is far more contentious than providing funding for secular textbooks, computers, vocational training, or even funding for adults who wish to obtain a college education at a religious university. See supra, at 720-722. Contrary to JUSTICE O'CONNOR'S opinion, ante, at 665-666 (concurring opinion), history also shows that government involvement in religious primary education is far more divisive than state property tax exemptions for religious institutions or tax deductions for charitable contributions, both of which come far closer to exemplifying the neutrality that distinguishes, for example, fire protection on the one hand from direct monetary assistance on the other. Federal aid to religiously based hospitals, ante, at 666 (O'CONNOR, J., concurring), is even further removed from education, which lies at the heartland of religious belief. Vouchers also differ in degree. The aid programs recently upheld by the Court involved limited amounts of aid to religion. But the majority's analysis here appears to permit a considerable shift of taxpayer dollars from public secular schools to private religious schools. That fact, combined with the use to which these dollars will be put, exacerbates the conflict problem. State aid that takes the form of peripheral secular items, with prohibitions against diversion of funds to religious teaching, holds significantly less potential for social division. In this respect as well, the secular aid upheld in Mitchell differs dramatically from the present case. Although it was conceivable that minor amounts of money could have, contrary to the statute, found their way to the religious activities of the recipients, see 530 U. S., at 864 (O'CONNOR, J., concurring in judgment), that case is at worst the camel's nose, while the litigation before us is the camel itself. 728 IV I do not believe that the "parental choice" aspect of the voucher program sufficiently offsets the concerns I have mentioned. Parental choice cannot help the taxpayer who does not want to finance the religious education of children. It will not always help the parent who may see little real choice between inadequate nonsectarian public education and adequate education at a school whose religious teachings are contrary to his own. It will not satisfy religious minorities unable to participate because they are too few in number to support the creation of their own private schools. It will not satisfy groups whose religious beliefs preclude them from participating in a government-sponsored program, and who may well feel ignored as government funds primarily support the education of children in the doctrines of the dominant religions. And it does little to ameliorate the entanglement problems or the related problems of social division that Part II, supra, describes. Consequently, the fact that the parent may choose which school can cash the government's voucher check does not alleviate the Establishment Clause concerns associated with voucher programs. V The Court, in effect, turns the clock back. It adopts, under the name of "neutrality," an interpretation of the Establishment Clause that this Court rejected more than half a century ago. In its view, the parental choice that offers each religious group a kind of equal opportunity to secure government funding overcomes the Establishment Clause concern for social concord. An earlier Court found that "equal opportunity" principle insufficient; it read the Clause as insisting upon greater separation of church and state, at least in respect to primary education. See Nyquist, 413 U. S., at 783. In a society composed of many different religious creeds, I fear that this present departure from the Court's earlier understanding risks creating a form of reli- 729 giously based conflict potentially harmful to the Nation's social fabric. Because I believe the Establishment Clause was written in part to avoid this kind of conflict, and for reasons set forth by JUSTICE SOUTER and JUSTICE STEVENS, I respectfully dissent.

The Supreme Court ruled that Ohio's Pilot Project Scholarship Program, which provides tuition aid for students in failing public schools to attend participating public or private schools of their choice, does not violate the Establishment Clause of the First Amendment. The Court found that the program was enacted with the secular purpose of providing educational assistance to poor children in failing school systems and does not have the primary effect of advancing or inhibiting religion. The Court also noted that the program is neutral towards religion and provides parents with a wide range of options for their children's education.

Religion

City of Boerne v. Flores

https://supreme.justia.com/cases/federal/us/521/507/

OCTOBER TERM, 1996 Syllabus CITY OF BOERNE v. FLORES, ARCHBISHOP OF SAN ANTONIO, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 95-2074. Argued February 19, 1997-Decided June 25,1997 Respondent, the Catholic Archbishop of San Antonio, applied for a building permit to enlarge a church in Boerne, Texas. When local zoning authorities denied the permit, relying on an ordinance governing historic preservation in a district which, they argued, included the church, the Archbishop brought this suit challenging the permit denial under, inter alia, the Religious Freedom Restoration Act of 1993 (RFRA). The District Court concluded that by enacting RFRA Congress exceeded the scope of its enforcement power under § 5 of the Fourteenth Amendment. The court certified its order for interlocutory appeal, and the Fifth Circuit reversed, finding RFRA to be constitutional. Held: RFRA exceeds Congress' power. pp. 512-536. (a) Congress enacted RFRA in direct response to Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 , in which the Court upheld against a free exercise challenge a state law of general applicability criminalizing peyote use, as applied to deny unemployment benefits to Native American Church members who lost their jobs because of such use. In so ruling, the Court declined to apply the balancing test of Sherbert v. Verner, 374 U. S. 398 , which asks whether the law at issue substantially burdens a religious practice and, if so, whether the burden is justified by a compelling government interest. RFRA prohibits "[g]overnment" from "substantially burden[ing]" a person's exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden "(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that ... interest." 42 U. S. C. § 2000bb-1. RFRA's mandate applies to any branch of Federal or State Government, to all officials, and to other persons acting under color of law. § 2000bb-2(1). Its universal coverage includes "all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after [RFRA's enactment]." § 2000bb-3(a). Pp. 512-516. (b) In imposing RFRA's requirements on the States, Congress relied on the Fourteenth Amendment, which, inter alia, guarantees that no State shall make or enforce any law depriving any person of "life, lib- 508 Syllabus erty, or property, without due process of law," or denying any person the "equal protection of the laws," § 1, and empowers Congress "to enforce" those guarantees by "appropriate legislation," § 5. Respondent Archbishop and the United States contend that RFRA is permissible enforcement legislation under § 5. Although Congress certainly can enact legislation enforcing the constitutional right to the free exercise of religion, see, e. g., Cantwell v. Connecticut, 310 U. S. 296 , 303, its § 5 power "to enforce" is only preventive or "remedial," South Carolina v. Katzenbach, 383 U. S. 301 , 326. The Amendment's design and § 5's text are inconsistent with any suggestion that Congress has the power to decree the substance of the Amendment's restrictions on the States. Legislation which alters the Free Exercise Clause's meaning cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. While the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law is not easy to discern, and Congress must have wide latitude in determining where it lies, the distinction exists and must be observed. There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Lacking such a connection, legislation may become substantive in operation and effect. The need to distinguish between remedy and substance is supported by the Fourteenth Amendment's history and this Court's case law, see, e. g., Civil Rights Cases, 109 U. S. 3 , 13-14, 15; Oregon v. Mitchell, 400 U. S. 112 , 209, 296. The Amendment's design has proved significant also in maintaining the traditional separation of powers between Congress and the Judiciary, depriving Congress of any power to interpret and elaborate on its meaning by conferring self-executing substantive rights against the States, cf. id., at 325, and thereby leaving the interpretive power with the Judiciary. Pp. 516-529. (c) RFRA is not a proper exercise of Congress' § 5 enforcement power because it contradicts vital principles necessary to maintain separation of powers and the federal-state balance. An instructive comparison may be drawn between RFRA and the Voting Rights Act of 1965, provisions of which were upheld in Katzenbach, supra, and subsequent voting rights cases. In contrast to the record of widespread and persisting racial discrimination which confronted Congress and the Judiciary in those cases, RFRA's legislative record lacks examples of any instances of generally applicable laws passed because of religious bigotry in the past 40 years. Rather, the emphasis of the RFRA hearings was on laws like the one at issue that place incidental burdens on religion. It is difficult to maintain that such laws are based on animus or hostility to the burdened religious practices or that they indicate some widespread 509 pattern of religious discrimination in this country. RFRA's most serious shortcoming, however, lies in the fact that it is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. It appears, instead, to attempt a substantive change in constitutional protections, proscribing state conduct that the Fourteenth Amendment itself does not prohibit. Its sweeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter. Its restrictions apply to every government agency and official, § 2000bb2(1), and to all statutory or other law, whether adopted before or after its enactment, § 2000bb-3(a). It has no termination date or termination mechanism. Any law is subject to challenge at any time by any individual who claims a substantial burden on his or her free exercise of religion. Such a claim will often be difficult to contest. See Smith, supra, at 887. Requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law. 494 U. S., at 888. Furthermore, the least restrictive means requirement was not used in the pre-Smith jurisprudence RFRA purported to codify. All told, RFRA is a considerable congressional intrusion into the States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens, and is not designed to identify and counteract state laws likely to be unconstitutional because of their treatment of religion. Pp. 529-536. 73 F.3d 1352 , reversed. KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, THOMAS, and GINSBURG, JJ., joined, and in which SCALIA, J., joined as to all but Part III-A-l. STEVENS, J., filed a concurring opinion, post, p. 536. SCALIA, J., filed an opinion concurring in part, in which STEVENS, J., joined, post, p. 537. O'CONNOR, J., filed a dissenting opinion, in which BREYER, J., joined except as to the first paragraph of Part I, post, p. 544. SOUTER, J., post, p. 565, and BREYER, J., post, p. 566, filed dissenting opinions. Marci A. Hamilton argued the cause for petitioner. With her on the briefs were Lowell F. Denton and Gordon L. Hollon. Jeffrey S. Sutton, State Solicitor of Ohio, argued the cause for the State of Ohio et al. as amici curiae urging reversal. With him on the brief were Betty D. Montgomery, Attor- 510 Counsel ney General of Ohio, Robert C. Maier and Todd Marti, Assistant Attorneys General, and the Attorneys General for their respective jurisdictions as follows: Malaetasi M. Togafau of American Samoa, Grant Woods of Arizona, Gale A. Norton of Colorado, M. Jane Brady of Delaware, Robert Butterworth of Florida, Calvin Holloway, Sr., of Guam, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, Mike Moore of Mississippi, Frankie Sue Del Papa of Nevada, Jeffrey R. Howard of New Hampshire, Michael F. Easley of North Carolina, W A. Drew Edmondson of Oklahoma, Thomas W Corbett, Jr., of Pennsylvania, and Julio A. Brady of the Virgin Islands. Douglas Laycock argued the cause for respondent Flores. With him on the brief were Thomas Drought and Patricia J. Schofield. Acting Solicitor General Dellinger argued the cause for the United States. With him on the brief were Assistant Attorney General Hunger, Deputy Solicitor General Waxman, Patricia A. Millett, and Michael Jay Singer.* *Briefs of amici curiae urging reversal were filed for the Commonwealth of Virginia by James S. Gilmore II, Attorney General, David E. Anderson, Chief Deputy Attorney General, William Henry Hurd, Deputy Attorney General, and Lee E. Goodman; for the Clarendon Foundation by Ronald D. Maines and Jay S. Bybee; for the National Right to Work Legal Defense Foundation, Inc., by Bruce N. Cameron; and for the San Antonio Conservation Society et al. by Robert A. Long, Jr., and Ivan K. Fong. Briefs of amici curiae urging affirmance were filed for the State of Maryland et al. by J. Joseph Curran, Jr., Attorney General of Maryland, Jack Schwartz and Steven M. Sullivan, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Richard Blumenthal of Connecticut, Scott Harshbarger of Massachusetts, and Dennis C. Vacco of New York; for members of the Virginia House of Delegates et al. by Mitchell A. Karlan; for Senator Orrin G. Hatch et al. by Carter G. Phillips and Gene C. Schaerr; for Senator Edward M. Kennedy et al. by Clifford M. Sloan; for the American Bar Association by N. Lee Cooper, Stuart H. Newberger, and Joseph N. Onek; for the American Center for Law and Justice by Jay Alan Sekulow, James M. Henderson, Sr., Walter M. Weber, Keith A. Fournier, and John G. Stepanovich; for the Beckett Fund for Religious Liberty by Kevin J. Hasson; for the Church of Jesus 511 JUSTICE KENNEDY delivered the opinion of the Court.* A decision by local zoning authorities to deny a church a building permit was challenged under the Religious Freedom Restoration Act of 1993 (RFRA or Act), 107 Stat. 1488, 42 U. S. C. § 2000bb et seq. The case calls into question the authority of Congress to enact RFRA. We conclude the statute exceeds Congress' power. I Situated on a hill in the city of Boerne, Texas, some 28 miles northwest of San Antonio, is St. Peter Catholic Church. Built in 1923, the church's structure replicates the mission Christ of Latter-day Saints by W Cole Durham, Jr., James A. Serritella, James C. Geoly, Kevin R. Gustafson, and Von G. Keetch; for the Coalition for the Free Exercise of Religion by Marc D. Stern, Oliver S. Thomas, J. Brent Walker, Melissa Rogers, Steven T. McFarland, Samuel Rabinove, Richard Foltin, David Zwiebel, Steven R. Shapiro, Steven K. Green, and Jack F. Trope; for the Defenders of Property Rights et al. by Nancie G. Marzulla; for the Minnesota Family Council et al. by Jordan W Lorence; for the NAACP Legal Defense and Educational Fund, Inc., by Elaine R. Jones, Theodore M. Shaw, and Norman J. Chachkin; for the National Committee for Amish Religious Freedom by William Bentley Ball and Richard E. Connell; for the National Jewish Commission on Law and Public Affairs by Nathan Lewin, Mathew S. Nosanchuk, and Dennis Rapps; for the National Trust for Historic Preservation in the United States by John H. Beisner and Elizabeth S. Merritt; for the Prison Fellowship Ministries et al. by Michael Joseph Woodruff, Scott J. Ward, J. Matthew Szymanski, Stephen M. Clarke, and Isaac M. Jaroslawicz; and for the United States Catholic Conference et al. by Michael W McConnell, Mark E. Chopko, and Jeffrey Hunter Moon. Briefs of amici curiae were filed for the State of Texas by Dan Morales, Attorney General, Jorge Vega, First Assistant Attorney General, and Samuel W Goodhope and Javier Aguilar, Special Assistant Attorneys General; for the Center for the Community Interest by Gilbert R. Serota; for Children's Healthcare is a Legal Duty, Inc., et al. by Robert J. Bruno; for the Knights of Columbus by Thomas D. Yannucci and Carl A. Anderson; for the Rutherford Institute by John W Whitehead, James A. Hayes, Jr., and Brian L. Day; and by Thurston Greene, pro se. *JU8TICE SCALIA joins all but Part III-A-1 of this opinion. 512 style of the region's earlier history. The church seats about 230 worshippers, a number too small for its growing parish. Some 40 to 60 parishioners cannot be accommodated at some Sunday masses. In order to meet the needs of the congregation the Archbishop of San Antonio gave permission to the parish to plan alterations to enlarge the building. A few months later, the Boerne City Council passed an ordinance authorizing the city's Historic Landmark Commission to prepare a preservation plan with proposed historic landmarks and districts. Under the ordinance, the commission must preapprove construction affecting historic landmarks or buildings in a historic district. Soon afterwards, the Archbishop applied for a building permit so construction to enlarge the church could proceed. City authorities, relying on the ordinance and the designation of a historic district (which, they argued, included the church), denied the application. The Archbishop brought this suit challenging the permit denial in the United States District Court for the Western District of Texas. 877 The complaint contained various claims, but to this point the litigation has centered on RFRA and the question of its constitutionality. The Archbishop relied upon RFRA as one basis for relief from the refusal to issue the permit. The District Court concluded that by enacting RFRA Congress exceeded the scope of its enforcement power under § 5 of the Fourteenth Amendment. The court certified its order for interlocutory appeal and the Fifth Circuit reversed, finding RFRA to be constitutional. 73 F.3d 1352 (1996). We granted certiorari, 519 U. S. 926 (1996), and now reverse. II Congress enacted RFRA in direct response to the Court's decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990). There we considered a Free Exercise Clause claim brought by members of the 513 Native American Church who were denied unemployment benefits when they lost their jobs because they had used peyote. Their practice was to ingest peyote for sacramental purposes, and they challenged an Oregon statute of general applicability which made use of the drug criminal. In evaluating the claim, we declined to apply the balancing test set forth in Sherbert v. Verner, 374 U. S. 398 (1963), under which we would have asked whether Oregon's prohibition substantially burdened a religious practice and, if it did, whether the burden was justified by a compelling government interest. We stated: "[G]overnment's ability to enforce generally applicable prohibitions of socially harmful conduct ... cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development. To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is 'compelling' ... contradicts both constitutional tradition and common sense." 494 U. S., at 885 (internal quotation marks and citations omitted). The application of the Sherbert test, the Smith decision explained, would have produced an anomaly in the law, a constitutional right to ignore neutral laws of general applicability. The anomaly would have been accentuated, the Court reasoned, by the difficulty of determining whether a particular practice was central to an individual's religion. We explained, moreover, that it "is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds." 494 U. S., at 887 (internal quotation marks and citation omitted). The only instances where a neutral, generally applicable law had failed to pass constitutional muster, the Smith Court 514 noted, were cases in which other constitutional protections were at stake. Id., at 881-882. In Wisconsin v. Yoder, 406 U. S. 205 (1972), for example, we invalidated Wisconsin's mandatory school-attendance law as applied to Amish parents who refused on religious grounds to send their children to school. That case implicated not only the right to the free exercise of religion but also the right of parents to control their children's education. The Smith decision acknowledged the Court had employed the Sherbert test in considering free exercise challenges to state unemployment compensation rules on three occasions where the balance had tipped in favor of the individual. See Sherbert, supra; Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 (1981); Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136 (1987). Those cases, the Court explained, stand for "the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of religious hardship without compelling reason." 494 U. S., at 884 (internal quotation marks omitted). By contrast, where a general prohibition, such as Oregon's, is at issue, "the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the test inapplicable to [free exercise] challenges." Id., at 885. Smith held that neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest. Four Members of the Court disagreed. They argued the law placed a substantial burden on the Native American Church members so that it could be upheld only if the law served a compelling state interest and was narrowly tailored to achieve that end. Id., at 894. JUSTICE O'CONNOR concluded Oregon had satisfied the test, while Justice Blackmun, joined by Justice Brennan and Justice Marshall, could see no compelling interest justifying the law's application to the members. 515 These points of constitutional interpretation were debated by Members of Congress in hearings and floor debates. Many criticized the Court's reasoning, and this disagreement resulted in the passage of RFRA. Congress announced: "(1) [T]he framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution; "(2) laws 'neutral' toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise; "(3) governments should not substantially burden religious exercise without compelling justification; "(4) in Employment Division v. Smith, 494 U. S. 872 (1990), the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and "(5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests." 42 U. S. C. § 2000bb(a). The Act's stated purposes are: "(1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U. S. 398 (1963) and Wisconsin v. Yoder, 406 U. S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and "(2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government." § 2000bb(b). RFRA prohibits "[g]overnment" from "substantially burden[ing]" a person's exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden "(1) is in furtherance of 516 a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." § 2000bb-1. The Act's mandate applies to any "branch, department, agency, instrumentality, and official (or other person acting under color oflaw) of the United States," as well as to any "State, or ... subdivision of a State." § 2000bb-2(1). The Act's universal coverage is confirmed in § 2000bb-3(a), under which RFRA "applies to all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after [RFRA's enactment]." In accordance with RFRA's usage of the term, we shall use "state law" to include local and municipal ordinances. III A Under our Constitution, the Federal Government is one of enumerated powers. McCulloch v. Maryland, 4 Wheat. 316, 405 (1819); see also The Federalist No. 45, p. 292 (C. Rossiter ed. 1961) (J. Madison). The judicial authority to determine the constitutionality of laws, in cases and controversies, is based on the premise that the "powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written." Marbury v. Madison, 1 Cranch 137, 176 (1803). Congress relied on its Fourteenth Amendment enforcement power in enacting the most far-reaching and substantial of RFRA's provisions, those which impose its requirements on the States. See Religious Freedom Restoration Act of 1993, S. Rep. No. 103-111, pp. 13-14 (1993) (Senate Report); H. R. Rep. No. 103-88, p. 9 (1993) (House Report). The Fourteenth Amendment provides, in relevant part: "Section 1. ... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due proc- 517 ess of law; nor deny to any person within its jurisdiction the equal protection of the laws. "Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." The parties disagree over whether RFRA is a proper exercise of Congress' § 5 power "to enforce" by "appropriate legislation" the constitutional guarantee that no State shall deprive any person of "life, liberty, or property, without due process of law," nor deny any person "equal protection of the laws." In defense of the Act, respondent the Archbishop contends, with support from the United States, that RFRA is permissible enforcement legislation. Congress, it is said, is only protecting by legislation one of the liberties guaranteed by the Fourteenth Amendment's Due Process Clause, the free exercise of religion, beyond what is necessary under Smith. It is said the congressional decision to dispense with proof of deliberate or overt discrimination and instead concentrate on a law's effects accords with the settled understanding that § 5 includes the power to enact legislation designed to prevent, as well as remedy, constitutional violations. It is further contended that Congress' § 5 power is not limited to remedial or preventive legislation. All must acknowledge that § 5 is "a positive grant of legislative power" to Congress, Katzenbach v. Morgan, 384 U. S. 641 , 651 (1966). In Ex parte Virginia, 100 U. S. 339 , 345346 (1880), we explained the scope of Congress' § 5 power in the following broad terms: "Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not 518 prohibited, is brought within the domain of congressional power." Legislation which deters or remedies constitutional violations can fall within the sweep of Congress' enforcement power even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into "legislative spheres of autonomy previously reserved to the States." Fitzpatrick v. Bitzer, 427 U. S. 445 , 455 (1976). For example, the Court upheld a suspension of literacy tests and similar voting requirements under Congress' parallel power to enforce the provisions of the Fifteenth Amendment, see U. S. Const., Amdt. 15, § 2, as a measure to combat racial discrimination in voting, South Carolina v. Katzenbach, 383 U. S. 301 , 308 (1966), despite the facial constitutionality of the tests under Lassiter v. Northampton County Bd. of Elections, 360 U. S. 45 (1959). We have also concluded that other measures protecting voting rights are within Congress' power to enforce the Fourteenth and Fifteenth Amendments, despite the burdens those measures placed on the States. South Carolina v. Katzenbach, supra (upholding several provisions of the Voting Rights Act of 1965); Katzenbach v. Morgan, supra (upholding ban on literacy tests that prohibited certain people schooled in Puerto Rico from voting); Oregon v. Mitchell, 400 U. S. 112 (1970) (upholding 5-year nationwide ban on literacy tests and similar voting requirements for registering to vote); City of Rome v. United States, 446 U. S. 156 , 161 (1980) (upholding 7-year extension of the Voting Rights Act's requirement that certain jurisdictions preclear any change to a "'standard, practice, or procedure with respect to voting' "); see also James Everard's Breweries v. Day, 265 U. S. 545 (1924) (upholding ban on medical prescription of intoxicating malt liquors as appropriate to enforce Eighteenth Amendment ban on manufacture, sale, or transportation of intoxicating liquors for beverage purposes). It is also true, however, that "[a]s broad as the congressional enforcement power is, it is not unlimited." Oregon v. 519 Mitchell, supra, at 128 (opinion of Black, J.). In assessing the breadth of § 5's enforcement power, we begin with its text. Congress has been given the power "to enforce" the "provisions of this article." We agree with respondent, of course, that Congress can enact legislation under § 5 enforcing the constitutional right to the free exercise of religion. The "provisions of this article," to which § 5 refers, include the Due Process Clause of the Fourteenth Amendment. Congress' power to enforce the Free Exercise Clause follows from our holding in Cantwell v. Connecticut, 310 U. S. 296 , 303 (1940), that the "fundamental concept of liberty embodied in [the Fourteenth Amendment's Due Process Clause] embraces the liberties guaranteed by the First Amendment." See also United States v. Price, 383 U. S. 787 , 789 (1966) (there is "no doubt of the power of Congress to enforce by appropriate criminal sanction every right guaranteed by the Due Process Clause of the Fourteenth Amendment" (internal quotation marks and citation omitted)). Congress' power under § 5, however, extends only to "enforc[ing]" the provisions of the Fourteenth Amendment. The Court has described this power as "remedial," South Carolina v. Katzenbach, supra, at 326. The design of the Amendment and the text of § 5 are inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment's restrictions on the States. Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. It has been given the power "to enforce," not the power to determine what constitutes a constitutional violation. Were it not so, what Congress would be enforcing would no longer be, in any meaningful sense, the "provisions of [the Fourteenth Amendment]." While the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law is not easy to discern, and 520 Congress must have wide latitude in determining where it lies, the distinction exists and must be observed. There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Lacking such a connection, legislation may become substantive in operation and effect. History and our case law support drawing the distinction, one apparent from the text of the Amendment. 1 The Fourteenth Amendment's history confirms the remedial, rather than substantive, nature of the Enforcement Clause. The Joint Committee on Reconstruction of the 39th Congress began drafting what would become the Fourteenth Amendment in January 1866. The objections to the Committee's first draft of the Amendment, and the rejection of the draft, have a direct bearing on the central issue of defining Congress' enforcement power. In February, Republican Representative John Bingham of Ohio reported the following draft Amendment to the House of Representatives on behalf of the Joint Committee: "The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property." Congo Globe, 39th Cong., 1st Sess., 1034 (1866). The proposal encountered immediate opposition, which continued through three days of debate. Members of Congress from across the political spectrum criticized the Amendment, and the criticisms had a common theme: The proposed Amendment gave Congress too much legislative power at the expense of the existing constitutional structure. E. g., id., at 1063-1065 (statement of Rep. Hale); id., at 1082 521 (statement of Sen. Stewart); id., at 1095 (statement of Rep. Hotchkiss); id., at App. 133-135 (statement of Rep. Rogers). Democrats and conservative Republicans argued that the proposed Amendment would give Congress a power to intrude into traditional areas of state responsibility, a power inconsistent with the federal design central to the Constitution. Typifying these views, Republican Representative Robert Hale of New York labeled the Amendment "an utter departure from every principle ever dreamed of by the men who framed our Constitution," id., at 1063, and warned that under it "all State legislation, in its codes of civil and criminal jurisprudence and procedure ... may be overridden, may be repealed or abolished, and the law of Congress established instead." Ibid. Senator William Stewart of Nevada likewise stated the Amendment would permit "Congress to legislate fully upon all subjects affecting life, liberty, and property," such that "there would not be much left for the State Legislatures," and would thereby "work an entire change in our form of government." Id., at 1082; accord, id., at 1087 (statement of Rep. Davis); id., at App. 133 (statement of Rep. Rogers). Some radicals, like their brethren "unwilling that Congress shall have any such power ... to establish uniform laws throughout the United States upon ... the protection of life, liberty, and property," id., at 1095 (statement of Rep. Hotchkiss), also objected that giving Congress primary responsibility for enforcing legal equality would place power in the hands of changing congressional majorities, ibid. See generally Bickel, The Original Understanding and the Segregation Decision, 69 Harv. L. Rev. 1, 57 (1955); Graham, Our "Declaratory" Fourteenth Amendment, 7 Stan. L. Rev. 3, 21 (1954). As a result of these objections having been expressed from so many different quarters, the House voted to table the proposal until April. See, e. g., B. Kendrick, Journal of the Joint Committee of Fifteen on Reconstruction 215, 217 (1914); Congo Globe, 42d Cong., 1st Sess., App. 115 (1871) (statement 522 of Rep. Farnsworth). The congressional action was seen as marking the defeat of the proposal. See The Nation, Mar. 8, 1866, p. 291 ("The postponement of the amendment ... is conclusive against the passage of [it]"); New York Times, Mar. 1, 1866, p. 4 ("It is doubtful if this ever comes before the House again ... "); see also Congo Globe, 42d Cong., 1st Sess., at App. 115 (statement of Rep. Farnsworth) (The Amendment was "given its quietus by a postponement for two months, where it slept the sleep that knows no waking"). The measure was defeated "chiefly because many members of the legal profession s[aw] in [it] ... a dangerous centralization of power," The Nation, supra, at 291, and "many leading Republicans of thee] House [of Representatives] would not consent to so radical a change in the Constitution," Congo Globe, 42d Cong., 1st Sess., at App. 151 (statement of Rep. Garfield). The Amendment in its early form was not again considered. Instead, the Joint Committee began drafting a new article of Amendment, which it reported to Congress on April 30, 1866. Section 1 of the new draft Amendment imposed selfexecuting limits on the States. Section 5 prescribed that "[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article." See Congo Globe, 39th Cong., 1st Sess., at 2286. Under the revised Amendment, Congress' power was no longer plenary but remedial. Congress was granted the power to make the substantive constitutional prohibitions against the States effective. Representative Bingham said the new draft would give Congress "the power ... to protect by national law the privileges and immunities of all the citizens of the Republic ... whenever the same shall be abridged or denied by the unconstitutional acts of any State." Id., at 2542. Representative Stevens described the new draft Amendment as "allow[ing] Congress to correct the unjust legislation of the States." Id., at 2459. See also id., at 2768 (statement of Sen. Howard) (§ 5 "enables Congress, in case the States shall enact 523 laws in conflict with the principles of the amendment, to correct that legislation by a formal congressional enactment"). See generally H. Brannon, The Rights and Privileges Guaranteed by the Fourteenth Amendment to the Constitution of the United States 387 (1901) (Congress' "powers are only prohibitive, corrective, vetoing, aimed only at undue process of law"); id., at 420, 452-455 (same); T. Cooley, Constitutional Limitations 294, n. 1 (2d ed. 1871) ("This amendment of the Constitution does not concentrate power in the general government for any purpose of police government within the States; its object is to preclude legislation by any State which shall 'abridge the privileges or immunities of citizens of the United States' "). The revised Amendment proposal did not raise the concerns expressed earlier regarding broad congressional power to prescribe uniform national laws with respect to life, liberty, and property. See, e. g., Congo Globe, 42d Cong., 1st Sess., at App. 151 (statement of Rep. Garfield) ("The [Fourteenth Amendment] limited but did not oust the jurisdiction of the State[s]"). After revisions not relevant here, the new measure passed both Houses and was ratified in July 1868 as the Fourteenth Amendment. The significance of the defeat of the Bingham proposal was apparent even then. During the debates over the Ku Klux Klan Act only a few years after the Amendment's ratification, Representative James Garfield argued there were limits on Congress' enforcement power, saying "unless we ignore both the history and the language of these clauses we cannot, by any reasonable interpretation, give to [§ 5] ... the force and effect of the rejected [Bingham] clause." Ibid.; see also id., at App. 115-116 (statement of Rep. Farnsworth). Scholars of successive generations have agreed with this assessment. See H. Flack, The Adoption of the Fourteenth Amendment 64 (1908); Bickel, The Voting Rights Cases, 1966 The design of the Fourteenth Amendment has proved significant also in maintaining the traditional separation of pow- 524 ers between Congress and the Judiciary. The first eight Amendments to the Constitution set forth self-executing prohibitions on governmental action, and this Court has had primary authority to interpret those prohibitions. The Bingham draft, some thought, departed from that tradition by vesting in Congress primary power to interpret and elaborate on the meaning of the new Amendment through legislation. Under it, "Congress, and not the courts, was to judge whether or not any of the privileges or immunities were not secured to citizens in the several States." Flack, supra, at 64. While this separation-of-powers aspect did not occasion the widespread resistance which was caused by the proposal's threat to the federal balance, it nonetheless attracted the attention of various Members. See Congo Globe, 39th Cong., 1st Sess., at 1064 (statement of Rep. Hale) (noting that Bill of Rights, unlike the Bingham proposal, "provide[s] safeguards to be enforced by the courts, and not to be exercised by the Legislature"); id., at App. 133 (statement of Rep. Rogers) (prior to Bingham proposal it "was left entirely for the courts ... to enforce the privileges and immunities of the citizens"). As enacted, the Fourteenth Amendment confers substantive rights against the States which, like the provisions of the Bill of Rights, are self-executing. Cf. South Carolina v. Katzenbach, 383 U. S., at 325 (discussing Fifteenth Amendment). The power to interpret the Constitution in a case or controversy remains in the Judiciary. 2 The remedial and preventive nature of Congress' enforcement power, and the limitation inherent in the power, were confirmed in our earliest cases on the Fourteenth Amendment. In the Civil Rights Cases, 109 U. S. 3 (1883), the Court invalidated sections of the Civil Rights Act of 1875 which prescribed criminal penalties for denying to any person "the full enjoyment of" public accommodations and conveyances, on the grounds that it exceeded Congress' power 525 by seeking to regulate private conduct. The Enforcement Clause, the Court said, did not authorize Congress to pass "general legislation upon the rights of the citizen, but corrective legislation, that is, such as may be necessary and proper for counteracting such laws as the States may adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing .... " Id., at 13-14. The power to "legislate generally upon" life, liberty, and property, as opposed to the "power to provide modes of redress" against offensive state action, was "repugnant" to the Constitution. Id., at 15. See also United States v. Reese, 92 U. S. 214 , 218 (1876); United States v. Harris, 106 U. S. 629 , 639 (1883); James v. Bowman, 190 U. S. 127 , 139 (1903). Although the specific holdings of these early cases might have been superseded or modified, see, e. g., Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241 (1964); United States v. Guest, 383 U. S. 745 (1966), their treatment of Congress' §5 power as corrective or preventive, not definitional, has not been questioned. Recent cases have continued to revolve around the question whether § 5 legislation can be considered remedial. In South Carolina v. Katzenbach, supra, we emphasized that "[t]he constitutional propriety of [legislation adopted under the Enforcement Clause] must be judged with reference to the historical experience ... it reflects." 383 U. S., at 308. There we upheld various provisions of the Voting Rights Act of 1965, finding them to be "remedies aimed at areas where voting discrimination has been most flagrant," id., at 315, and necessary to "banish the blight of racial discrimination in voting, which has infected the electoral process in parts of our country for nearly a century," id., at 308. We noted evidence in the record reflecting the subsisting and pervasive discriminatory-and therefore unconstitutional-use of literacy tests. Id., at 333-334. The Act's new remedies, which used the administrative resources of the Federal Government, included the suspension of both literacy tests and, 526 pending federal review, all new voting regulations in covered jurisdictions, as well as the assignment of federal examiners to list qualified applicants enabling those listed to vote. The new, unprecedented remedies were deemed necessary given the ineffectiveness of the existing voting rights laws, see id., at 313-315, and the slow, costly character of case-by-case litigation, id., at 328. After South Carolina v. Katzenbach, the Court continued to acknowledge the necessity of using strong remedial and preventive measures to respond to the widespread and persisting deprivation of constitutional rights resulting from this country's history of racial discrimination. See Oregon v. Mitchell, 400 U. S., at 132 ("In enacting the literacy test ban ... Congress had before it a long history of the discriminatory use of literacy tests to disfranchise voters on account of their race") (opinion of Black, J.); id., at 147 (Literacy tests "have been used at times as a discriminatory weapon against some minorities, not only Negroes but Americans of Mexican ancestry, and American Indians") (opinion of Douglas, J.); id., at 216 ("Congress could have determined that racial prejudice is prevalent throughout the Nation, and that literacy tests unduly lend themselves to discriminatory application, either conscious or unconscious") (opinion of Harlan, J.); id., at 235 ("[T]here is no question but that Congress could legitimately have concluded that the use of literacy tests anywhere within the United States has the inevitable effect of denying the vote to members of racial minorities whose inability to pass such tests is the direct consequence of previous governmental discrimination in education") (opinion of Brennan, J.); id., at 284 ("[N]ationwide [suspension of literacy tests] may be reasonably thought appropriate when Congress acts against an evil such as racial discrimination which in varying degrees manifests itself in every part of the country") (opinion of Stewart, J.); City of Rome, 446 U. S., at 182 ("Congress' considered determination that at least another 7 years of statutory remedies were necessary to counter the 527 perpetuation of 95 years of pervasive voting discrimination is both unsurprising and unassailable"); Morgan, 384 U. S., at 656 (Congress had a factual basis to conclude that New York's literacy requirement "constituted an invidious discrimination in violation of the Equal Protection Clause"). 3 Any suggestion that Congress has a substantive, nonremedial power under the Fourteenth Amendment is not supported by our case law. In Oregon v. Mitchell, supra, at 112, a majority of the Court concluded Congress had exceeded its enforcement powers by enacting legislation lowering the minimum age of voters from 21 to 18 in state and local elections. The five Members of the Court who reached this conclusion explained that the legislation intruded into an area reserved by the Constitution to the States. See 400 U. S., at 125 (concluding that the legislation was unconstitutional because the Constitution "reserves to the States the power to set voter qualifications in state and local elections") (opinion of Black, J.); id., at 154 (explaining that the "Fourteenth Amendment was never intended to restrict the authority of the States to allocate their political power as they see fit") (opinion of Harlan, J.); id., at 294 (concluding that States, not Congress, have the power "to establish a qualification for voting based on age") (opinion of Stewart, J., joined by Burger, C. J., and Blackmun, J.). Four of these five were explicit in rejecting the position that § 5 endowed Congress with the power to establish the meaning of constitutional provisions. See id., at 209 (opinion of Harlan, J.); id., at 296 (opinion of Stewart, J.). Justice Black's rejection of this position might be inferred from his disagreement with Congress' interpretation of the Equal Protection Clause. See id., at 125. There is language in our opinion in Katzenbach v. Morgan, 384 U. S. 641 (1966), which could be interpreted as acknowledging a power in Congress to enact legislation that expands 528 the rights contained in § 1 of the Fourteenth Amendment. This is not a necessary interpretation, however, or even the best one. In Morgan, the Court considered the constitutionality of §4(e) of the Voting Rights Act of 1965, which provided that no person who had successfully completed the sixth primary grade in a public school in, or a private school accredited by, the Commonwealth of Puerto Rico in which the language of instruction was other than English could be denied the right to vote because of an inability to read or write English. New York's Constitution, on the other hand, required voters to be able to read and write English. The Court provided two related rationales for its conclusion that § 4(e) could "be viewed as a measure to secure for the Puerto Rican community residing in New York nondiscriminatory treatment by government." Id., at 652. Under the first rationale, Congress could prohibit New York from denying the right to vote to large segments of its Puerto Rican community, in order to give Puerto Ricans "enhanced political power" that would be "helpful in gaining nondiscriminatory treatment in public services for the entire Puerto Rican community." Ibid. Section 4(e) thus could be justified as a remedial measure to deal with "discrimination in governmental services." Id., at 653. The second rationale, an alternative holding, did not address discrimination in the provision of public services but "discrimination in establishing voter qualifications." Id., at 654. The Court perceived a factual basis on which Congress could have concluded that New York's literacy requirement "constituted an invidious discrimination in violation of the Equal Protection Clause." Id., at 656. Both rationales for upholding §4(e) rested on unconstitutional discrimination by New York and Congress' reasonable attempt to combat it. As Justice Stewart explained in Oregon v. Mitchell, supra, at 296, interpreting Morgan to give Congress the power to interpret the Constitution "would require an enormous extension of that decision's rationale." 529 If Congress could define its own powers by altering the Fourteenth Amendment's meaning, no longer would the Constitution be "superior paramount law, unchangeable by ordinary means." It would be "on a level with ordinary legislative acts, and, like other acts, ... alterable when the legislature shall please to alter it." Marbury v. Madison, 1 Cranch, at 177. Under this approach, it is difficult to conceive of a principle that would limit congressional power. See Van Alstyne, The Failure of the Religious Freedom Restoration Act under Section 5 of the Fourteenth Amendment, 46 Duke L. J. 291, 292-303 (1996). Shifting legislative majorities could change the Constitution and effectively circumvent the difficult and detailed amendment process contained in Article V. We now turn to consider whether RFRA can be considered enforcement legislation under § 5 of the Fourteenth Amendment. B Respondent contends that RFRA is a proper exercise of Congress' remedial or preventive power. The Act, it is said, is a reasonable means of protecting the free exercise of religion as defined by Smith. It prevents and remedies laws which are enacted with the unconstitutional object of targeting religious beliefs and practices. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 , 533 (1993) ("[A] law targeting religious beliefs as such is never permissible"). To avoid the difficulty of proving such violations, it is said, Congress can simply invalidate any law which imposes a substantial burden on a religious practice unless it is justified by a compelling interest and is the least restrictive means of accomplishing that interest. If Congress can prohibit laws with discriminatory effects in order to prevent racial discrimination in violation of the Equal Protection Clause, see Fullilove v. Klutznick, 448 U. S. 448 , 477 (1980) (plurality opinion); City of Rome, 446 U. S., at 177, then it can do the same, respondent argues, to promote religious liberty. 530 While preventive rules are sometimes appropriate remedial measures, there must be a congruence between the means used and the ends to be achieved. The appropriateness of remedial measures must be considered in light of the evil presented. See South Carolina v. Katzenbach, 383 U. S., at 308. Strong measures appropriate to address one harm may be an unwarranted response to another, lesser one. Id., at 334. A comparison between RFRA and the Voting Rights Act is instructive. In contrast to the record which confronted Congress and the Judiciary in the voting rights cases, RFRA's legislative record lacks examples of modern instances of generally applicable laws passed because of religious bigotry. The history of persecution in this country detailed in the hearings mentions no episodes occurring in the past 40 years. See, e. g., Religious Freedom Restoration Act of 1991, Hearings on H. R. 2797 before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 102d Cong., 2d Sess., 331-334 (1993) (statement of Douglas Laycock) (House Hearings); The Religious Freedom Restoration Act, Hearing on S. 2969 before the Senate Committee on the Judiciary, 102d Cong., 2d Sess., 30-31 (1993) (statement of DaHin H. Oaks) (Senate Hearing); id., at 68-76 (statement of Douglas Laycock); Religious Freedom Restoration Act of 1990, Hearing on H. R. 5377 before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 101st Cong., 2d Sess., 49 (1991) (statement of John H. Buchanan, Jr.) (1990 House Hearing). The absence of more recent episodes stems from the fact that, as one witness testified, "deliberate persecution is not the usual problem in this country." House Hearings 334 (statement of Douglas Laycock). See also House Report 2 ("[L]aws directly targeting religious practices have become increasingly rare"). Rather, the emphasis of the hearings was on laws of general applicability which place incidental burdens on religion. Much of the discussion cen- 531 tered upon anecdotal evidence of autopsies performed on Jewish individuals and Hmong immigrants in violation of their religious beliefs, see, e. g., House Hearings 81 (statement of Nadine Strossen); id., at 107-110 (statement of William Yang); id., at 118 (statement of Rep. Stephen J. Solarz); id., at 336 (statement of Douglas Laycock); Senate Hearing 5-6, 14-26 (statement of William Yang); id., at 27-28 (statement of Hmong-Lao Unity Assn., Inc.); id., at 50 (statement of Baptist Joint Committee); see also Senate Report 8; House Report 5-6, and n. 14, and on zoning regulations and historic preservation laws (like the one at issue here), which, as an incident of their normal operation, have adverse effects on churches and synagogues. See, e. g., House Hearings 17, 57 (statement of Robert P. Dugan, Jr.); id., at 81 (statement of Nadine Strossen); id., at 122-123 (statement of Rep. Stephen J. Solarz); id., at 157 (statement of Edward M. Gaffney, Jr.); id., at 327 (statement of Douglas Laycock); Senate Hearing 143-144 (statement of Forest D. Montgomery); 1990 House Hearing 39 (statement of Robert P. Dugan, Jr.); see also Senate Report 8; House Report 5-6, and n. 14. It is difficult to maintain that they are examples of legislation enacted or enforced due to animus or hostility to the burdened religious practices or that they indicate some widespread pattern of religious discrimination in this country. Congress' concern was with the incidental burdens imposed, not the object or purpose of the legislation. See House Report 2; Senate Report 4-5; House Hearings 64 (statement of Nadine Strossen); id., at 117-118 (statement of Rep. Stephen J. Solarz); 1990 House Hearing 14 (statement of Rep. Stephen J. Solarz). This lack of support in the legislative record, however, is not RFRA's most serious shortcoming. Judicial deference, in most cases, is based not on the state of the legislative record Congress compiles but "on due regard for the decision of the body constitutionally appointed to decide." Oregon v. Mitchell, 400 U. S., at 207 (opinion of Harlan, J.). As a gen- 532 eral matter, it is for Congress to determine the method by which it will reach a decision. Regardless of the state of the legislative record, RFRA cannot be considered remedial, preventive legislation, if those terms are to have any meaning. RFRA is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. It appears, instead, to attempt a substantive change in constitutional protections. Preventive measures prohibiting certain types of laws may be appropriate when there is reason to believe that many of the laws affected by the congressional enactment have a significant likelihood of being unconstitutional. See City of Rome, 446 U. S., at 177 (since "jurisdictions with a demonstrable history of intentional racial discrimination ... create the risk of purposeful discrimination," Congress could "prohibit changes that have a discriminatory impact" in those jurisdictions). Remedial legislation under § 5 "should be adapted to the mischief and wrong which the [Fourteenth] [A]mendment was intended to provide against." Civil Rights Cases, 109 U. S., at 13. RFRA is not so confined. Sweeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter. RFRA's restrictions apply to every agency and official of the Federal, State, and local Governments. 42 U. S. C. § 2000bb-2(1). RFRA applies to all federal and state law, statutory or otherwise, whether adopted before or after its enactment. § 2000bb-3(a). RFRA has no termination date or termination mechanism. Any law is subject to challenge at any time by any individual who alleges a substantial burden on his or her free exercise of religion. The reach and scope of RFRA distinguish it from other measures passed under Congress' enforcement power, even in the area of voting rights. In South Carolina v. Katzen bach, the challenged provisions were confined to those re- 533 gions of the country where voting discrimination had been most flagrant, see 383 U. S., at 315, and affected a discrete class of state laws, i. e., state voting laws. Furthermore, to ensure that the reach of the Voting Rights Act was limited to those cases in which constitutional violations were most likely (in order to reduce the possibility of overbreadth), the coverage under the Act would terminate "at the behest of States and political subdivisions in which the danger of substantial voting discrimination has not materialized during the preceding five years." Id., at 331. The provisions restricting and banning literacy tests, upheld in Katzenbach v. Morgan, 384 U. S. 641 (1966), and Oregon v. Mitchell, supra, attacked a particular type of voting qualification, one with a long history as a "notorious means to deny and abridge voting rights on racial grounds." South Carolina v. Katzenbach, 383 U. S., at 355 (Black, J., concurring and dissenting). In City of Rome, supra, the Court rejected a challenge to the constitutionality of a Voting Rights Act provision which required certain jurisdictions to submit changes in electoral practices to the Department of Justice for preimplementation review. The requirement was placed only on jurisdictions with a history of intentional racial discrimination in voting. Id., at 177. Like the provisions at issue in South Carolina v. Katzenbach, this provision permitted a covered jurisdiction to avoid preclearance requirements under certain conditions and, moreover, lapsed in seven years. This is not to say, of course, that § 5 legislation requires termination dates, geographic restrictions, or egregious predicates. Where, however, a congressional enactment pervasively prohibits constitutional state action in an effort to remedy or to prevent unconstitutional state action, limitations of this kind tend to ensure Congress' means are proportionate to ends legitimate under § 5. The stringent test RFRA demands of state laws reflects a lack of proportionality or congruence between the means adopted and the legitimate end to be achieved. If an objector can show a substantial burden on his free exercise, the 534 State must demonstrate a compelling governmental interest and show that the law is the least restrictive means of furthering its interest. Claims that a law substantially burdens someone's exercise of religion will often be difficult to contest. See Smith, 494 U. S., at 887 ("What principle of law or logic can be brought to bear to contradict a believer's assertion that a particular act is 'central' to his personal faith?"); id., at 907 ("The distinction between questions of centrality and questions of sincerity and burden is admittedly fine ... ") (O'CONNOR, J., concurring in judgment). Requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law. If " 'compelling interest' really means what it says ... , many laws will not meet the test .... [The test] would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind." Id., at 888. Laws valid under Smith would fall under RFRA without regard to whether they had the object of stifling or punishing free exercise. We make these observations not to reargue the position of the majority in Smith but to illustrate the substantive alteration of its holding attempted by RFRA. Even assuming RFRA would be interpreted in effect to mandate some lesser test, say, one equivalent to intermediate scrutiny, the statute nevertheless would require searching judicial scrutiny of state law with the attendant likelihood of invalidation. This is a considerable congressional intrusion into the States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens. The substantial costs RFRA exacts, both in practical terms of imposing a heavy litigation burden on the States and in terms of curtailing their traditional general regulatory power, far exceed any pattern or practice of unconstitutional conduct under the Free Exercise Clause as interpreted in Smith. Simply put, RFRA is not designed to identify and counteract state laws likely to be unconstitutional because of 535 their treatment of religion. In most cases, the state laws to which RFRA applies are not ones which will have been motivated by religious bigotry. If a state law disproportionately burdened a particular class of religious observers, this circumstance might be evidence of an impermissible legislative motive. Cf. Washington v. Davis, 426 U. S. 229 , 241 (1976). RFRA's substantial-burden test, however, is not even a discriminatory-effects or disparate-impact test. It is a reality of the modern regulatory state that numerous state laws, such as the zoning regulations at issue here, impose a substantial burden on a large class of individuals. When the exercise of religion has been burdened in an incidental way by a law of general application, it does not follow that the persons affected have been burdened any more than other citizens, let alone burdened because of their religious beliefs. In addition, the Act imposes in every case a least restrictive means requirement-a requirement that was not used in the pre-Smith jurisprudence RFRA purported to codify-which also indicates that the legislation is broader than is appropriate if the goal is to prevent and remedy constitutional violations. When Congress acts within its sphere of power and responsibilities, it has not just the right but the duty to make its own informed judgment on the meaning and force of the Constitution. This has been clear from the early days of the Republic. In 1789, when a Member of the House of Representatives objected to a debate on the constitutionality of legislation based on the theory that "it would be officious" to consider the constitutionality of a measure that did not affect the House, James Madison explained that "it is incontrovertibly of as much importance to this branch of the Government as to any other, that the constitution should be preserved entire. It is our duty." 1 Annals of Congress 500 (1789). Were it otherwise, we would not afford Congress the presumption of validity its enactments now enjoy. Our national experience teaches that the Constitution is preserved best when each part of the Government respects 536 both the Constitution and the proper actions and determinations of the other branches. When the Court has interpreted the Constitution, it has acted within the province of the Judicial Branch, which embraces the duty to say what the law is. Marbury v. Madison, 1 Cranch, at 177. When the political branches of the Government act against the background of a judicial interpretation of the Constitution already issued, it must be understood that in later cases and controversies the Court will treat its precedents with the respect due them under settled principles, including stare decisis, and contrary expectations must be disappointed. RFRA was designed to control cases and controversies, such as the one before us; but as the provisions of the federal statute here invoked are beyond congressional authority, it is this Court's precedent, not RFRA, which must control. *** It is for Congress in the first instance to "determin[e] whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment," and its conclusions are entitled to much deference. Katzenbach v. Morgan, 384 U. S., at 651. Congress' discretion is not unlimited, however, and the courts retain the power, as they have since Marbury v. Madison, to determine if Congress has exceeded its authority under the Constitution. Broad as the power of Congress is under the Enforcement Clause of the Fourteenth Amendment, RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance. The judgment of the Court of Appeals sustaining the Act's constitutionality is reversed. It is so ordered. JUSTICE STEVENS, concurring. In my opinion, the Religious Freedom Restoration Act of 1993 (RFRA) is a "law respecting an establishment of religion" that violates the First Amendment to the Constitution. 537 If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure. Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment. Wallace v. Jaffree, 472 U. S. 38 , 52-55 (1985). JUSTICE SCALIA, with whom JUSTICE STEVENS joins, concurring in part. I write to respond briefly to the claim of JUSTICE O'CONNOR'S dissent (hereinafter the dissent) that historical materials support a result contrary to the one reached in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990). See post, p. 544 (dissenting opinion). We held in Smith that the Constitution's Free Exercise Clause "does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'" 494 U. S., at 879 (quoting United States v. Lee, 455 U. S. 252 , 263, n. 3 (1982) (STEVENS, J., concurring in judgment)). The material that the dissent claims is at odds with Smith either has little to say about the issue or is in fact more consistent with Smith than with the dissent's interpretation of the Free Exercise Clause. The dissent's extravagant claim that the historical record shows Smith to have been wrong should be compared with the assessment of the most prominent scholarly critic of Smith, who, after an extensive review of the historical record, was willing to venture no more than that "constitu- 538 SCALIA, J., concurring in part tionally compelled exemptions [from generally applicable laws regulating conduct] were within the contemplation of the framers and ratifiers as a possible interpretation of the free exercise clause." McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1415 (1990) (emphasis added); see also Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. Law Rev. 915 (1992) (arguing that historical evidence supports Smith's interpretation of free exercise). The dissent first claims that Smith's interpretation of the Free Exercise Clause departs from the understanding reflected in various statutory and constitutional protections of religion enacted by Colonies, States, and Territories in the period leading up to the ratification of the Bill of Rights. Post, at 550-557. But the protections afforded by those enactments are in fact more consistent with Smith's interpretation of free exercise than with the dissent's understanding of it. The Free Exercise Clause, the dissent claims, "is best understood as an affirmative guarantee of the right to participate in religious practices and conduct without impermissible governmental interference, even when such conduct conflicts with a neutral, generally applicable law"; thus, even neutral laws of general application may be invalid if they burden religiously motivated conduct. Post, at 546. However, the early "free exercise" enactments cited by the dissent protect only against action that is taken "for" or "in respect of" religion, post, at 551-553 (Maryland Act Concerning Religion of 1649, Rhode Island Charter of 1663, and New Hampshire Constitution); or action taken "on account of" religion, post, at 553-554 (Maryland Declaration of Rights of 1776 and Northwest Ordinance of 1787); or "discriminat[ory]" action, post, at 553 (New York Constitution); or, finally (and unhelpfully for purposes of interpreting "free exercise" in the Federal Constitution), action that interferes with the "free exercise" of religion, post, at 551, 554 (Maryland Act 539 Concerning Religion of 1649 and Georgia Constitution). It is eminently arguable that application of neutral, generally applicable laws of the sort the dissent refers to-such as zoning laws, post, at 547-would not constitute action taken "for," "in respect of," or "on account of" one's religion, or "discriminatory" action. Assuming, however, that the affirmative protection of religion accorded by the early "free exercise" enactments sweeps as broadly as the dissent's theory would require, those enactments do not support the dissent's view, since they contain "provisos" that significantly qualify the affirmative protection they grant. According to the dissent, the "provisos" support its view because they would have been "superfluous" if "the Court was correct in Smith that generally applicable laws are enforceable regardless of religious conscience." Post, at 554-555. I disagree. In fact, the most plausible reading of the "free exercise" enactments (if their affirmative provisions are read broadly, as the dissent's view requires) is a virtual restatement of Smith: Religious exercise shall be permitted so long as it does not violate general laws governing conduct. The "provisos" in the enactments negate a license to act in a manner "unfaithfull to the Lord Proprietary" (Maryland Act Concerning Religion of 1649), or "behav[e]" in other than a "peaceabl[e] and quie[t]" manner (Rhode Island Charter of 1663), or "disturb the public peace" (New Hampshire Constitution), or interfere with the "peace [and] safety ofth[e] State" (New York, Maryland, and Georgia Constitutions), or "demea[n]" oneself in other than a "peaceable and orderly manner" (Northwest Ordinance of 1787). See post, at 551-554. At the time these provisos were enacted, keeping "peace" and "order" seems to have meant, precisely, obeying the laws. "[E]very breach of a law is against the peace." Queen v. Lane, 6 Mod. 128,87 Eng. Rep. 884,885 (Q. B. 1704). Even as late as 1828, when Noah Webster published his American Dictionary of the English Language, he gave as one of the meanings of "peace": "8. Public 540 SCALIA, J., concurring in part tranquility; that quiet, order and security which is guaranteed by the laws; as, to keep the peace; to break the peace." 2 An American Dictionary of the English Language 31 (1828).1 This limitation upon the scope of religious exercise would have been in accord with the background political philosophy of the age (associated most prominently with John Locke), which regarded freedom as the right "to do only what was not lawfully prohibited," West, The Case Against a Right to Religion-Based Exemptions, 4 Notre Dame J. L., Ethics & Pub. Pol'y 591, 624 (1990). "Thus, the disturb-thepeace caveats apparently permitted government to deny religious freedom, not merely in the event of violence or force, but, more generally, upon the occurrence of illegal actions." Hamburger, supra, at 918-919.2 And while, under this interpretation, these early "free exercise" enactments support the Court's judgment in Smith, I see no sensible interpretation that could cause them to support what I understand to be the position of JUSTICE O'CONNOR, or any of Smith's other critics. No one in that camp, to my knowledge, contends that their favored "compelling state interest" test conforms to any possible interpretation of "breach of peace and order"-i. e., that only violence or force, or any other category of action (more limited than "violation of law") which can possibly be conveyed by the phrase "peace and order," justifies state prohibition of religiously motivated conduct. 1 The word "licentious," used in several of the early enactments, likewise meant "[e]xceeding the limits of law." 2 An American Dictionary of the English Language 6 (1828). 2 The same explanation applies, of course, to George Mason's initial draft of Virginia's religious liberty clause, see post, at 555. When it said "unless, under colour of religion, any man disturb the peace ... of society," it probably meant "unless under color of religion any man break the law." Thus, it is not the case that" both Mason's and [James] Madison's formulations envisioned that, when there was a conflict [between religious exercise and generally applicable laws], a person's interest in freely practicing his religion was to be balanced against state interests," post, at 556-at least insofar as regulation of conduct was concerned. 541 Apart from the early "free exercise" enactments of Colonies, States, and Territories, the dissent calls attention to those bodies', and the Continental Congress's, legislative accommodation of religious practices prior to ratification of the Bill of Rights. Post, at 557-560. This accommodation-which took place both before and after enactment of the state constitutional protections of religious liberty-suggests (according to the dissent) that "the drafters and ratifiers of the First Amendment ... assumed courts would apply the Free Exercise Clause similarly." Post, at 560. But that legislatures sometimes (though not always) 3 found it "appropriate," post, at 559, to accommodate religious practices does not establish that accommodation was understood to be constitutionally mandated by the Free Exercise Clause. As we explained in Smith, "to say that a nondiscriminatory religious-practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required." 494 U. S., at 890. "Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process." Ibid. The dissent's final source of claimed historical support consists of statements of certain of the Framers in the context of debates about proposed legislative enactments or debates over general principles (not in connection with the drafting of State or Federal Constitutions). Those statements are subject to the same objection as was the evidence about legislative accommodation: There is no reason to think they were meant to describe what was constitutionally required (and judicially enforceable), as opposed to what was thought to be legislatively or even morally desirable. Thus, for example, the pamphlet written by James Madison opposing Virginia's proposed general assessment for support of reli- 3 The dissent mentions, for example, that only 7 of the 13 Colonies had exempted Quakers from military service by the mid-1700's; and that "vir tually all" of the States had enacted oath exemptions by 1789. Post, at 558 (emphasis added). 542 SCALIA, J., concurring in part gion, post, at 560-561, does not argue that the assessment would violate the "free exercise" provision in the Virginia Declaration of Rights, although that provision had been enacted into law only eight years earlier, post, at 556; rather the pamphlet argues that the assessment wrongly placed civil society ahead of personal religious belief and, thus, should not be approved by the legislators, post, at 560-561. Likewise, the letter from George Washington to the Quakers, post, at 562, by its own terms refers to Washington's "wish and desire" that religion be accommodated, not his belief that existing constitutional provisions required accommodation. These and other examples offered by the dissent reflect the speakers' views of the "proper" relationship between government and religion, post, at 563, but not their views (at least insofar as the content or context of the material suggests) of the constitutionally required relationship. The one exception is the statement by Thomas Jefferson that he considered "the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises," post, at 562 (internal quotation marks omitted); but it is quite clear that Jefferson did not in fact espouse the broad principle of affirmative accommodation advocated by the dissent, see McConnell, 103 Harv. L. Rev., at 1449-1452. It seems to me that the most telling point made by the dissent is to be found, not in what it says, but in what it fails to say. Had the understanding in the period surrounding the ratification of the Bill of Rights been that the various forms of accommodation discussed by the dissent were constitutionally required (either by State Constitutions or by the Federal Constitution), it would be surprising not to find a single state or federal case refusing to enforce a generally applicable statute because of its failure to make accommodation. Yet the dissent cites none-and to my knowledge, and to the knowledge of the academic defenders of the dissent's position, see, e. g., id., at 1504, 1506-1511 (discussing early 543 cases), none exists. The closest one can come in the period prior to 1850 is the decision of a New York City municipal court in 1813, holding that the New York Constitution of 1777, quoted post, at 553, required acknowledgment of a priest-penitent privilege, to protect a Catholic priest from being compelled to testify as to the contents of a confession. People v. Phillips, Court of General Sessions, City of New York (June 14, 1813), excerpted in Privileged Communications to Clergymen, 1 Cath. Law. 199 (1955). Even this lone case is weak authority, not only because it comes from a minor court,4 but also because it did not involve a statute, and the same result might possibly have been achieved (without invoking constitutional entitlement) by the court's simply modifying the common-law rules of evidence to recognize such a privilege. On the other side of the ledger, moreover, there are two cases, from the Supreme Court of Pennsylvania, flatly rejecting the dissent's view. In Simon's Executors v. Gratz, 2 Pen. & W. 412 (Pa. 1831), the court held that a litigant was not entitled to a continuance of trial on the ground that appearing on his Sabbath would violate his religious principles. And in Stansbury v. Marks, 2 Dall. 213 (Pa. 1793), decided just two years after the ratification of the Bill of Rights, the court imposed a fine on a witness who "refused to be sworn, because it was his Sabbath." 5 I have limited this response to the new items of "historical evidence" brought forward by today's dissent. (The dis- 4 The Court of General Sessions was a mayor's court, and the ruling in Phillips was made by DeWitt Clinton, the last mayor to preside over that court, which was subsequently reconstituted as the Court of Common Pleas. Clinton had never been a jurist, and indeed had never practiced law. Some years before Phillips, he was instrumental in removing the political disabilities of Catholics in New York. See 4 Dictionary of American Biography 221-222, 224 (1943). 5 Indeed, the author of Simon's Executors could well have written Smith: "[C]onsiderations of policy address themselves with propriety to the legislature, and not to a magistrate whose course is prescribed not by discretion, but rules already established." 2 Pen. & W., at 417. 544 sent's claim that "[b]efore Smith, our free exercise cases were generally in keeping" with the dissent's view, post, at 546, is adequately answered in Smith itself.) The historical evidence marshalled by the dissent cannot fairly be said to demonstrate the correctness of Smith; but it is more supportive of that conclusion than destructive of it. And, to return to a point I made earlier, that evidence is not compatible with any theory I am familiar with that has been proposed as an alternative to Smith. The dissent's approach has, of course, great popular attraction. Who can possibly be against the abstract proposition that government should not, even in its general, nondiscriminatory laws, place unreasonable burdens upon religious practice? Unfortunately, however, that abstract proposition must ultimately be reduced to concrete cases. The issue presented by Smith is, quite simply, whether the people, through their elected representatives, or rather this Court, shall control the outcome of those concrete cases. For example, shall it be the determination of this Court, or rather of the people, whether (as the dissent apparently believes, post, at 547) church construction will be exempt from zoning laws? The historical evidence put forward by the dissent does nothing to undermine the conclusion we reached in Smith: It shall be the people. JUSTICE O'CONNOR, with whom JUSTICE BREYER joins except as to the first paragraph of Part I, dissenting. I dissent from the Court's disposition of this case. I agree with the Court that the issue before us is whether the Religious Freedom Restoration Act of 1993 (RFRA) is a proper exercise of Congress' power to enforce § 5 of the Fourteenth Amendment. But as a yardstick for measuring the constitutionality of RFRA, the Court uses its holding in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), the decision that prompted Congress to enact RFRA as a means of more rigorously enforcing the Free Exercise Clause. I remain of the view that Smith was 545 wrongly decided, and I would use this case to reexamine the Court's holding there. Therefore, I would direct the parties to brief the question whether Smith represents the correct understanding of the Free Exercise Clause and set the case for reargument. If the Court were to correct the misinterpretation of the Free Exercise Clause set forth in Smith, it would simultaneously put our First Amendment jurisprudence back on course and allay the legitimate concerns of a majority in Congress who believed that Smith improperly restricted religious liberty. We would then be in a position to review RFRA in light of a proper interpretation of the Free Exercise Clause. I I agree with much of the reasoning set forth in Part II I-A of the Court's opinion. Indeed, if I agreed with the Court's standard in Smith, I would join the opinion. As the Court's careful and thorough historical analysis shows, Congress lacks the "power to decree the substance of the Fourteenth Amendment's restrictions on the States." Ante, at 519 (emphasis added). Rather, its power under § 5 of the Fourteenth Amendment extends only to enforcing the Amendment's provisions. In short, Congress lacks the ability independently to define or expand the scope of constitutional rights by statute. Accordingly, whether Congress has exceeded its § 5 powers turns on whether there is a "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Ante, at 520. This recognition does not, of course, in any way diminish Congress' obligation to draw its own conclusions regarding the Constitution's meaning. Congress, no less than this Court, is called upon to consider the requirements of the Constitution and to act in accordance with its dictates. But when it enacts legislation in furtherance of its delegated powers, Congress must make its judgments consistent with this Court's exposition of the Constitution and with the lim- 546 its placed on its legislative authority by provisions such as the Fourteenth Amendment. The Court's analysis of whether RFRA is a constitutional exercise of Congress' § 5 power, set forth in Part III-B of its opinion, is premised on the assumption that Smith correctly interprets the Free Exercise Clause. This is an assumption that I do not accept. I continue to believe that Smith adopted an improper standard for deciding free exercise claims. In Smith, five Members of this Court-without briefing or argument on the issue-interpreted the Free Exercise Clause to permit the government to prohibit, without justification, conduct mandated by an individual's religious beliefs, so long as the prohibition is generally applicable. Contrary to the Court's holding in that case, however, the Free Exercise Clause is not simply an antidiscrimination principle that protects only against those laws that single out religious practice for unfavorable treatment. See Smith, supra, at 892-903 (O'CONNOR, J., concurring in judgment). Rather, the Clause is best understood as an affirmative guarantee of the right to participate in religious practices and conduct without impermissible governmental interference, even when such conduct conflicts with a neutral, generally applicable law. Before Smith, our free exercise cases were generally in keeping with this idea: where a law substantially burdened religiously motivated conductregardless whether it was specifically targeted at religion or applied generally-we required government to justify that law with a compelling state interest and to use means narrowly tailored to achieve that interest. See 494 U. S., at 894 (citing Hernandez v. Commissioner, 490 U. S. 680 , 699 (1989); Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136 , 141 (1987); United States v. Lee, 455 U. S. 252 , 257-258 (1982); McDaniel v. Paty, 435 U. S. 618 , 626-629 (1978); Wisconsin v. Yoder, 406 U. S. 205 , 215 (1972); Gillette v. United States, 401 U. S. 437 , 462 (1971); Sherbert v. Verner, 374 U. S. 398 ,403 (1963)). 547 The Court's rejection of this principle in Smith is supported neither by precedent nor, as discussed below, by history. The decision has harmed religious liberty. For example, a Federal District Court, in reliance on Smith, ruled that the Free Exercise Clause was not implicated where Hmong natives objected on religious grounds to their son's autopsy, conducted pursuant to a generally applicable state law. Yang v. Sturner, 750 F. Supp. 558, 559 (RI 1990). The Court of Appeals for the Eighth Circuit held that application of a city's zoning laws to prevent a church from conducting services in an area zoned for commercial uses raised no free exercise concerns, even though the city permitted secular notfor-profit organizations in that area. Cornerstone Bible Church v. Hastings, 948 F.2d 464 (1991); see also Rector of St. Bartholomew's Church v. New York, 914 F.2d 348 , 355 (CA2 1990) (no free exercise claim where city's application of facially neutral landmark designation law "drastically restricted the Church's ability to raise revenue to carry out its various charitable and ministerial programs"), cert. denied, 499 U. S. 905 (1991); State v. Hershberger, 462 N. W. 2d 393 (Minn. 1990) (Free Exercise Clause provided no basis for exempting an Amish farmer from displaying a bright orange triangle on his buggy, to which the farmer objected on religious grounds, even though the evidence showed that some other material would have served the State's purpose equally well). These cases demonstrate that lower courts applying Smith no longer find necessary a searching judicial inquiry into the possibility of reasonably accommodating religious practice. Stare decisis concerns should not prevent us from revisiting our holding in Smith. "'[S]tare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.'" Adarand Constructors, Inc. v. Peria, 515 U. S. 548 200, 231 (1995) (quoting Helvering v. Hallock, 309 U. S. 106 , 119 (1940)). This principle is particularly true in constitutional cases, where-as this case so plainly illustrates-"correction through legislative action is practically impossible." Seminole Tribe of Fla. v. Florida, 517 U. S. 44 , 63 (1996) (internal quotation marks and citation omitted). I believe that, in light of both our precedent and our Nation's tradition of religious liberty, Smith is demonstrably wrong. Moreover, it is a recent decision. As such, it has not engendered the kind of reliance on its continued application that would militate against overruling it. Cf. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 , 855-856 (1992). Accordingly, I believe that we should reexamine our holding in Smith, and do so in this very case. In its place, I would return to a rule that requires government to justify any substantial burden on religiously motivated conduct by a compelling state interest and to impose that burden only by means narrowly tailored to achieve that interest. II I shall not restate what has been said in other opinions, which have demonstrated that Smith is gravely at odds with our earlier free exercise precedents. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 , 570-571 (1993) (SOUTER, J., concurring in part and concurring in judgment) (stating that it is "difficult to escape the conclusion that, whatever Smith's virtues, they do not include a comfortable fit with settled law"); Smith, 494 U. S., at 894-901 (O'CONNOR, J., concurring in judgment); see also McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109, 1120-1127 (1990). Rather, I examine here the early American tradition of religious free exercise to gain insight into the original understanding of the Free Exercise Clause-an inquiry the Court in Smith did not undertake. We have previously recognized the importance of interpreting the Religion Clauses in light of their history. Lynch v. Donnelly, 465 U. S. 668 , 673 (1984) ("The Court's 549 interpretation of the Establishment Clause has comported with what history reveals was the contemporaneous understanding of its guarantees"); School Dist. of Abington Township v. Schempp, 374 U. S. 203 , 212-214 (1963). The historical evidence casts doubt on the Court's current interpretation of the Free Exercise Clause. The record instead reveals that its drafters and ratifiers more likely viewed the Free Exercise Clause as a guarantee that government may not unnecessarily hinder believers from freely practicing their religion, a position consistent with our pre Smith jurisprudence. A The original Constitution, drafted in 1787 and ratified by the States in 1788, had no provisions safeguarding individual liberties, such as freedom of speech or religion. Federalists, the chief supporters of the new Constitution, took the view that amending the Constitution to explicitly protect individual freedoms was superfluous, since the rights that the amendments would protect were already completely secure. See, e. g., 1 Annals of Congress 440, 443-444, 448-459 (Gales and Seaton ed. 1834) (remarks of James Madison, June 8, 1789). Moreover, they feared that guaranteeing certain civil liberties might backfire, since the express mention of some freedoms might imply that others were not protected. According to Alexander Hamilton, a Bill of Rights would even be dangerous, in that by specifying "various exceptions to powers" not granted, it "would afford a colorable pretext to claim more than were granted." The Federalist No. 84, p. 513 (C. Rossiter ed. 1961). Anti-Federalists, however, insisted on more definite guarantees. Apprehensive that the newly established Federal Government would overwhelm the rights of States and individuals, they wanted explicit assurances that the Federal Government had no power in matters of personal liberty. T. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment 194 (1986). Additionally, Baptists and other Protestant dissenters feared for their religious liberty under 550 the new Federal Government and called for an amendment guaranteeing religious freedom. Id., at 198. In the end, legislators acceded to these demands. By December 1791, the Bill of Rights had been added to the Constitution. With respect to religious liberty, the First Amendment provided: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U. S. Const., Amdt. 1. Neither the First Congress nor the ratifying state legislatures debated the question of religious freedom in much detail, nor did they directly consider the scope of the First Amendment's free exercise protection. It would be disingenuous to say that the Framers neglected to define precisely the scope of the Free Exercise Clause because the words "free exercise" had a precise meaning. L. Levy, Essays on American Constitutional History 173 (1972). As is the case for a number of the terms used in the Bill of Rights, it is not exactly clear what the Framers thought the phrase signified. Ibid. ("[I]t is astonishing to discover that the debate on a Bill of Rights was conducted on a level of abstraction so vague as to convey the impression that Americans of 1787-1788 had only the most nebulous conception of the meanings of the particular rights they sought to insure"). But a variety of sources supplement the legislative history and shed light on the original understanding of the Free Exercise Clause. These materials suggest that-contrary to Smit~the Framers did not intend simply to prevent the government from adopting laws that discriminated against religion. Although the Framers may not have asked precisely the questions about religious liberty that we do today, the historical record indicates that they believed that the Constitution affirmatively protects religious free exercise and that it limits the government's ability to intrude on religious practice. B The principle of religious "free exercise" and the notion that religious liberty deserved legal protection were by no 551 means new concepts in 1791, when the Bill of Rights was ratified. To the contrary, these principles were first articulated in this country in the Colonies of Maryland, Rhode Island, Pennsylvania, Delaware, and Carolina, in the mid1600's. These Colonies, though established as sanctuaries for particular groups of religious dissenters, extended freedom of religion to groups-although often limited to Christian groups-beyond their own. Thus, they encountered early on the conflicts that may arise in a society made up of a plurality of faiths. The term "free exercise" appeared in an American legal document as early as 1648, when Lord Baltimore extracted from the new Protestant Governor of Maryland and his councilors a promise not to disturb Christians, particularly Roman Catholics, in the "free exercise" of their religion. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1425 (1990) (hereinafter Origins of Free Exercise). Soon after, in 1649, the Maryland Assembly enacted the first free exercise clause by passing the Act Concerning Religion: "[N]oe person ... professing to beleive in Jesus Christ, shall from henceforth bee any waies troubled, Molested or discountenanced for or in respect of his or her religion nor in the free exercise thereof ... nor any way [be] compelled to the beleife or exercise of any other Religion against his or her consent, soe as they be not unfaithfull to the Lord Proprietary, or molest or conspire against the civill Governemt." Act Concerning Religion of 1649, reprinted in 5 The Founders' Constitution 49,50 (P. Kurland & R. Lerner eds. 1987) (hereinafter Founders' Constitution). Rhode Island's Charter of 1663 used the analogous term "liberty of conscience." It protected residents from being in any ways "molested, punished, disquieted, or called in question, for any differences in opinione, in matters of religion, and doe not actually disturb the civil peace of our sayd colony." The Charter further provided that residents may "freely, and fully have and enjoy his and their own judgments, and conscience in matters of religious 552 concernments ... ; they behaving themselves peaceably and quietly and not using this liberty to licentiousness and profaneness; nor to the civil injury, or outward disturbance of others." Charter of Rhode Island and Providence Plantations, 1663, in 8 W. Swindler, Sources and Documents of United States Constitutions 363 (1979) (hereinafter Swindler). Various agreements between prospective settlers and the proprietors of Carolina, New York, and New Jersey similarly guaranteed religious freedom, using language that paralleled that of the Rhode Island Charter of 1663. See New York Act Declaring Rights & Priviledges (1691); Concession and Agreement of the Lords Proprietors of the Province of New Caesarea, or New-Jersey (1664); Laws of West NewJersey, Art. X (1681); Fundamental Constitutions for East New-Jersey, Art. XVI (1683); First Charter of Carolina, Art. XVIII (1663). N. Cogan, The Complete Bill of Rights 23-27 (Galley 1997). These documents suggest that, early in our country's history, several Colonies acknowledged that freedom to pursue one's chosen religious beliefs was an essential liberty. Moreover, these Colonies appeared to recognize that government should interfere in religious matters only when necessary to protect the civil peace or to prevent "licentiousness." In other words, when religious beliefs conflicted with civil law, religion prevailed unless important state interests militated otherwise. Such notions parallel the ideas expressed in our pre-Smith cases-that government may not hinder believers from freely exercising their religion, unless necessary to further a significant state interest. C The principles expounded in these early charters reemerged over a century later in state constitutions that were adopted in the flurry of constitution drafting that followed the American Revolution. By 1789, every State but Connecticut had incorporated some version of a free exercise 553 clause into its constitution. Origins of Free Exercise 1455. These state provisions, which were typically longer and more detailed than the Federal Free Exercise Clause, are perhaps the best evidence of the original understanding of the Constitution's protection of religious liberty. After all, it is reasonable to think that the States that ratified the First Amendment assumed that the meaning of the federal free exercise provision corresponded to that of their existing state clauses. The precise language of these state precursors to the Free Exercise Clause varied, but most guaranteed free exercise of religion or liberty of conscience, limited by particular, defined state interests. For example, the New York Constitution of 1777 provided: "[T]he free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed, within this State, to all mankind: Provided, That the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State." N. Y. Const., Art. XXXVIII, in 7 Swindler 178 (emphasis added). Similarly, the New Hampshire Constitution of 1784 declared: "Every individual has a natural and unalienable right to worship GOD according to the dictates of his own conscience, and reason; and no subject shall be hurt, molested, or restrained in his person, liberty or estate for worshipping GOD, in the manner and season most agreeable to the dictates of his own conscience, ... provided he doth not disturb the public peace, or disturb others, in their religious worship." N. H. Const., Art. I, § 5, in 6 Swindler 345 (emphasis added). The Maryland Declaration of Rights of 1776 read: "[N]o person ought by any law to be molested in his person or estate on account of his religious persuasion 554 or profession, or for his religious practice; unless, under colour of religion, any man shall disturb the good order, peace or safety of the State, or shall infringe the laws of morality, or injure others, in their natural, civil, or religious rights." Md. Const., Declaration of Rights, Art. XXXIII in 4 Swindler 374 (emphasis added). The religious liberty clause of the Georgia Constitution of 1777 stated: "All persons whatever shall have the free exercise of their religion; provided it be not repugnant to the peace and safety of the State." Ga. Const., Art. LVI, in 2 Swindler 449 (emphasis added). In addition to these state provisions, the Northwest Ordinance of 1787-which was enacted contemporaneously with the drafting of the Constitution and reenacted by the First Congress-established a bill of rights for a territory that included what is now Ohio, Indiana, Michigan, Wisconsin, and part of Minnesota. Article I of the Ordinance declared: "No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory." Northwest Territory Ordinance of 1787, Art. I, 1 Stat. 52 (emphasis added). The language used in these state constitutional provisions and the Northwest Ordinance strongly suggests that, around the time of the drafting of the Bill of Rights, it was generally accepted that the right to "free exercise" required, where possible, accommodation of religious practice. If not-and if the Court was correct in Smith that generally applicable laws are enforceable regardless of religious consciencethere would have been no need for these documents to specify, as the New York Constitution did, that rights of conscience should not be "construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of [the] State." Such a proviso would have been su- 555 perfiuous. Instead, these documents make sense only if the right to free exercise was viewed as generally superior to ordinary legislation, to be overridden only when necessary to secure important government purposes. The Virginia Legislature may have debated the issue most fully. In May 1776, the Virginia Constitutional Convention wrote a constitution containing a Declaration of Rights with a clause on religious liberty. The initial drafter of the clause, George Mason, proposed the following: "That religion, or the duty which we owe to our CREATOR, and the manner of discharging it, can be (directed) only by reason and conviction, not by force or violence; and therefore, that all men should enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience, unpunished and unrestrained by the magistrate, unless, under colour of religion, any man disturb the peace, the happiness, or safety of society. And that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other." Committee Draft of the Virginia Declaration of Rights, 1 Papers of George Mason 284285 (R. Rutland ed. 1970) (emphasis added). Mason's proposal did not go far enough for a 26-year-old James Madison, who had recently completed his studies at the Presbyterian College of Princeton. He objected first to Mason's use of the term "toleration," contending that the word implied that the right to practice one's religion was a governmental favor, rather than an inalienable liberty. Second, Madison thought Mason's proposal countenanced too much state interference in religious matters, since the "exercise of religion" would have yielded whenever it was deemed inimical to "the peace, happiness, or safety of society." Madison suggested the provision read instead: " 'That religion, or the duty we owe our Creator, and the manner of discharging it, being under the direction 556 of reason and conviction only, not of violence or compulsion, all men are equally entitled to the full and free exercise of it, according to the dictates of conscience; and therefore that no man or class of men ought on account of religion to be invested with peculiar emoluments or privileges, nor subjected to any penalties or disabilities, unless under color of religion the preservation of equal liberty, and the existence of the State be manifestly endangered.'" G. Hunt, James Madison and Religious Liberty, in 1 Annual Report of the American Historical Association, H. R. Doc. No. 702, 57th Cong., 1st Sess., 163, 166-167 (1901) (emphasis added). Thus, Madison wished to shift Mason's language of "toleration" to the language of rights. See S. Cobb, The Rise of Religious Liberty in America 492 (1902) (reprint 1970) (noting that Madison objected to the word "toleration" as belonging to "a system where was an established Church, and where a certain liberty of worship was granted, not of right, but of grace"). Additionally, under Madison's proposal, the State could interfere in a believer's religious exercise only if the State would otherwise "be manifestly endangered." In the end, neither Mason's nor Madison's language regarding the extent to which state interests could limit religious exercise made it into the Virginia Constitution's religious liberty clause. Like the Federal Free Exercise Clause, the Virginia religious liberty clause was simply silent on the subject, providing only that "all men are equally entitled to the free exercise of religion, according to the dictates of conscience." Virginia Declaration of Rights, Art. XVI (1776), in 10 Swindler 50. For our purposes, however, it is telling that both Mason's and Madison's formulations envisioned that, when there was a conflict, a person's interest in freely practicing his religion was to be balanced against state interests. Although Madison endorsed a more limited state interest exception than did Mason, the debate would have been irrelevant if either had thought the right to free exercise did not 557 include a right to be exempt from certain generally applicable laws. Presumably, the Virginia Legislature intended the scope of its free exercise provision to strike some middle ground between Mason's narrower and Madison's broader notions of the right to religious freedom. D The practice of the Colonies and early States bears out the conclusion that, at the time the Bill of Rights was ratified, it was accepted that government should, when possible, accommodate religious practice. Unsurprisingly, of course, even in the American Colonies inhabited by people of religious persuasions, religious conscience and civil law rarely conflicted. Most 17th and 18th century Americans belonged to denominations of Protestant Christianity whose religious practices were generally harmonious with colonial law. Curry, The First Freedoms, at 219 ("The vast majority of Americans assumed that theirs was a Christian, i. e. Protestant, country, and they automatically expected that government would uphold the commonly agreed on Protestant ethos and morality"). Moreover, governments then were far smaller and less intrusive than they are today, which made conflict between civil law and religion unusual. Nevertheless, tension between religious conscience and generally applicable laws, though rare, was not unknown in preconstitutional America. Most commonly, such conflicts arose from oath requirements, military conscription, and religious assessments. Origins of Free Exercise 1466. The ways in which these conflicts were resolved suggest that Americans in the Colonies and early States thought that, if an individual's religious scruples prevented him from complying with a generally applicable law, the government should, if possible, excuse the person from the law's coverage. For example, Quakers and certain other Protestant sects refused on Biblical grounds to subscribe to oaths or "swear" allegiance to civil authority. A. Adams & C. Em- 558 merich, A Nation Dedicated to Religious Liberty: The Constitutional Heritage of the Religion Clauses 14 (1990) (hereinafter Adams & Emmerich). Without accommodation, their beliefs would have prevented them from participating in civic activities involving oaths, including testifying in court. Colonial governments created alternatives to the oath requirement for these individuals. In early decisions, for example, the Carolina proprietors applied the religious liberty provision of the Carolina Charter of 1665 to permit Quakers to enter pledges in a book. Curry, The First Freedoms, at 56. Similarly, in 1691, New York enacted a law allowing Quakers to testify by affirmation, and in 1734, it permitted Quakers to qualify to vote by affirmation. Id., at 64. By 1789, virtually all of the States had enacted oath exemptions. See Adams & Emmerich 62. Early conflicts between religious beliefs and generally applicable laws also occurred because of military conscription requirements. Quakers and Mennonites, as well as a few smaller denominations, refused on religious grounds to carry arms. Members of these denominations asserted that liberty of conscience should exempt them from military conscription. Obviously, excusing such objectors from military service had a high public cost, given the importance of the military to the defense of society. Nevertheless, Rhode Island, North Carolina, and Maryland exempted Quakers from military service in the late 1600's. New York, Massachusetts, Virginia, and New Hampshire followed suit in the mid-1700's. Origins of Free Exercise 1468. The Continental Congress likewise granted exemption from conscription: "As there are some people, who, from religious principles, cannot bear arms in any case, this Congress intend no violence to their consciences, but earnestly recommend it to them, to contribute liberally in this time of universal calamity, to the relief of their distressed brethren in the several colonies, and to do all other services to their oppressed Country, which they can consist- 559 ently with their religious principles." Resolution of July 18, 1775, reprinted in 2 Journals of the Continental Congress, 1774-1789, pp. 187, 189 Cw. Ford ed. 1905). Again, this practice of excusing religious pacifists from military service demonstrates that, long before the First Amendment was ratified, legislative accommodations were a common response to conflicts between religious practice and civil obligation. Notably, the Continental Congress exempted objectors from conscription to avoid "violence to their consciences," explicitly recognizing that civil laws must sometimes give way to freedom of conscience. Origins of Free Exercise 1468. States and Colonies with established churches encountered a further religious accommodation problem. Typically, these governments required citizens to pay tithes to support either the government-established church or the church to which the tithepayer belonged. But Baptists and Quakers, as well as others, opposed all governmentcompelled tithes on religious grounds. Id., at 1469. Massachusetts, Connecticut, New Hampshire, and Virginia responded by exempting such objectors from religious assessments. Ibid. There are additional examples of early conflicts between civil laws and religious practice that were similarly settled through accommodation of religious exercise. Both North Carolina and Maryland excused Quakers from the requirement of removing their hats in court; Rhode Island exempted Jews from the requirements of the state marriage laws; and Georgia allowed groups of European immigrants to organize whole towns according to their own faith. Id., at 1471. To be sure, legislatures, not courts, granted these early accommodations. But these were the days before there was a Constitution to protect civil liberties-judicial review did not yet exist. These legislatures apparently believed that the appropriate response to conflicts between civil law and religious scruples was, where possible, accommodation of re- 560 ligious conduct. It is reasonable to presume that the drafters and ratifiers of the First Amendment-many of whom served in state legislatures-assumed courts would apply the Free Exercise Clause similarly, so that religious liberty was safeguarded. E The writings of the early leaders who helped to shape our Nation provide a final source of insight into the original understanding of the Free Exercise Clause. The thoughts of James Madison-one of the principal architects of the Bill of Rights-as revealed by the controversy surrounding Virginia's General Assessment Bill of 1784, are particularly illuminating. Virginia's debate over religious issues did not end with its adoption of a constitutional free exercise provision. Although Virginia had disestablished the Church of England in 1776, it left open the question whether religion might be supported on a nonpreferential basis by a so-called "general assessment." Levy, Essays on American Constitutional History, at 200. In the years between 1776 and 1784, the issue how to support religion in Virginia-either by general assessment or voluntarily-was widely debated. Curry, The First Freedoms, at 136. By 1784, supporters of a general assessment, led by Patrick Henry, had gained a slight majority in the Virginia Assembly. M. Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment 23 (1978); Levy, supra, at 200. They introduced "A Bill Establishing a Provision for the Teachers of the Christian Religion," which proposed that citizens be taxed in order to support the Christian denomination of their choice, with those taxes not designated for any specific denomination to go to a public fund to aid seminaries. Levy, supra, at 200-201; Curry, supra, at 140141; Malbin, supra, at 23. Madison viewed religious assessment as a dangerous infringement of religious liberty and led the opposition to the bill. He took the case against religious assessment to the people of Virginia in his now-famous "Me- 561 morial and Remonstrance Against Religious Assessments." Levy, supra, at 201. This pamphlet led thousands of Virginians to oppose the bill and to submit petitions expressing their views to the legislature. Malbin, supra, at 24. The bill eventually died in committee, and Virginia instead enacted a Bill for Establishing Religious Freedom, which Thomas Jefferson had drafted in 1779. Malbin, supra, at 24. The "Memorial and Remonstrance" begins with the recognition that "[t]he Religion ... of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate." 2 Writings of James Madison 184 (G. Hunt ed. 1901). By its very nature, Madison wrote, the right to free exercise is "unalienable," both because a person's opinion "cannot follow the dictates of other[s]," and because it entails "a duty towards the Creator." Ibid. Madison continued: "This duty [owed the Creator] is precedent both in order of time and degree of obligation, to the claims of Civil Society .... [E]very man who becomes a member of any particular Civil Society, [must] do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance." Id., at 184-185. To Madison, then, duties to God were superior to duties to civil authorities-the ultimate loyalty was owed to God above all. Madison did not say that duties to the Creator are precedent only to those laws specifically directed at religion, nor did he strive simply to prevent deliberate acts of persecution or discrimination. The idea that civil obligations are subordinate to religious duty is consonant with the notion that government must accommodate, where possible, those religious practices that conflict with civil law. 562 Other early leaders expressed similar views regarding religious liberty. Thomas Jefferson, the drafter of Virginia's Bill for Establishing Religious Freedom, wrote in that document that civil government could interfere in religious exercise only "when principles break out into overt acts against peace and good order." In 1808, he indicated that he considered "'the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises.'" 11 The Writings of Thomas Jefferson 428-429 (A. Lipscomb ed. 1904) (quoted in Office of Legal Policy, U. S. Dept. of Justice, Report to the Attorney General, Religious Liberty under the Free Exercise Clause 7 (1986)). Moreover, Jefferson believed that "'[e]very religious society has a right to determine for itself the time of these exercises, and the objects proper for them, according to their own particular tenets; and this right can never be safer than in their own hands, where the Constitution has deposited it.'" Ibid. George Washington expressly stated that he believed that government should do its utmost to accommodate religious scruples, writing in a letter to a group of Quakers: "[I]n my opinion the conscientious scruples of all men should be treated with great delicacy and tenderness; and it is my wish and desire, that the laws may always be as extensively accommodated to them, as a due regard to the protection and essential interests of the nation may justify and permit." Letter from George Washington to the Religious Society Called Quakers (Oct. 1789), in George Washington on Religious Liberty and Mutual Understanding 11 (E. Humphrey ed. 1932). Oliver Ellsworth, a Framer of the First Amendment and later Chief Justice of the United States, expressed the similar view that government could interfere in religious matters only when necessary "to prohibit and punish gross immorali- 563 ties and impieties; because the open practice of these is of evil example and detriment." Oliver Ellsworth, Landholder, No.7 (Dec. 17, 1787), reprinted in 4 Founders' Constitution 640. Isaac Backus, a Baptist minister who was a delegate to the Massachusetts ratifying convention of 1788, declared that" 'every person has an unalienable right to act in all religious affairs according to the full persuasion of his own mind, where others are not injured thereby.'" Backus, A Declaration of Rights, of the Inhabitants of the State of Massachusetts-Bay, in Isaac Backus on Church, State, and Calvinism 487 (W. McLoughlin ed. 1968). These are but a few examples of various perspectives regarding the proper relationship between church and government that existed during the time the First Amendment was drafted and ratified. Obviously, since these thinkers approached the issue of religious freedom somewhat differently, see Adams & Emmerich 21-31, it is not possible to distill their thoughts into one tidy formula. Nevertheless, a few general principles may be discerned. Foremost, these early leaders accorded religious exercise a special constitutional status. The right to free exercise was a substantive guarantee of individual liberty, no less important than the right to free speech or the right to just compensation for the taking of property. See P. Kauper, Religion and the Constitution 17 (1964) ("[O]ur whole constitutional history ... supports the conclusion that religious liberty is an independent liberty, that its recognition may either require or permit preferential treatment on religious grounds in some instances ... "). As Madison put it in the concluding argument of his "Memorial and Remonstrance": "'[T]he equal right of every citizen to the free exercise of his Religion according to the dictates of [his] conscience' is held by the same tenure with all our other rights .... [I]t is equally the gift of nature; ... it cannot be less dear to us; ... it is enumerated with equal solem- 564 nity, or rather studied emphasis." 2 Writings of James Madison, at 190. Second, all agreed that government interference in religious practice was not to be lightly countenanced. Adams & Emmerich 31. Finally, all shared the conviction that" 'true religion and good morals are the only solid foundation of public liberty and happiness.'" Curry, The First Freedoms, at 219 (quoting Continental Congress); see Adams & Emmerich 72 ("The Founders ... acknowledged that the republic rested largely on moral principles derived from religion"). To give meaning to these ideas-particularly in a society characterized by religious pluralism and pervasive regulation-there will be times when the Constitution requires government to accommodate the needs of those citizens whose religious practices conflict with generally applicable law. III The Religion Clauses of the Constitution represent a profound commitment to religious liberty. Our Nation's Founders conceived of a Republic receptive to voluntary religious expression, not of a secular society in which religious expression is tolerated only when it does not conflict with a generally applicable law. As the historical sources discussed above show, the Free Exercise Clause is properly understood as an affirmative guarantee of the right to participate in religious activities without impermissible governmental interference, even where a believer's conduct is in tension with a law of general application. Certainly, it is in no way anomalous to accord heightened protection to a right identified in the text of the First Amendment. For example, it has long been the Court's position that freedom of speech-a right enumerated only a few words after the right to free exercise-has special constitutional status. Given the centrality of freedom of speech and religion to the American concept of personal liberty, it is altogether reasonable to conclude 565 that both should be treated with the highest degree of respect. Although it may provide a bright line, the rule the Court declared in Smith does not faithfully serve the purpose of the Constitution. Accordingly, I believe that it is essential for the Court to reconsider its holding in Smith-and to do so in this very case. I would therefore direct the parties to brief this issue and set the case for reargument. I respectfully dissent from the Court's disposition of this case. JUSTICE SOUTER, dissenting. To decide whether the Fourteenth Amendment gives Congress sufficient power to enact the Religious Freedom Restoration Act of 1993, the Court measures the legislation against the free-exercise standard of Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990). For the reasons stated in my opinion in Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 , 564-577 (1993) (opinion concurring in part and concurring in judgment), I have serious doubts about the precedential value of the Smith rule and its entitlement to adherence. These doubts are intensified today by the historical arguments going to the original understanding of the Free Exercise Clause presented in JUSTICE O'CONNOR'S dissent, ante, at 548-564, which raises very substantial issues about the soundness of the Smith rule. See also ante, p. 537 (JUSTICE SCALIA, concurring in part) (addressing historical arguments). But without briefing and argument on the merits of that rule (which this Court has never had in any case, including Smith itself, see Lukumi, 508 U. S., at 571-572), I am not now prepared to join JUSTICE O'CONNOR in rejecting it or the majority in assuming it to be correct. In order to provide full adversarial consideration, this case should be set down for reargument permitting plenary reexamination of the issue. Since the Court declines to follow that course, our free-exercise 566 law remains marked by an "intolerable tension," id., at 574, and the constitutionality of the Act of Congress to enforce the free-exercise right cannot now be soundly decided. I would therefore dismiss the writ of certiorari as improvidently granted, and I accordingly dissent from the Court's disposition of this case. JUSTICE BREYER, dissenting. I agree with JUSTICE O'CONNOR that the Court should direct the parties to brief the question whether Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), was correctly decided, and set this case for reargument. I do not, however, find it necessary to consider the question whether, assuming Smith is correct, § 5 of the Fourteenth Amendment would authorize Congress to enact the legislation before us. Thus, while I agree with some of the views expressed in the first paragraph of Part I of JUSTICE O'CONNOR'S dissent, I do not necessarily agree with all of them. I therefore join JUSTICE O'CONNOR'S dissent, with the exception of the first paragraph of Part 1.

The City of Boerne, Texas, denied a permit to the Catholic Archbishop of San Antonio to expand a church, citing a local ordinance on historic preservation. The Archbishop challenged the permit denial under the Religious Freedom Restoration Act of 1993 (RFRA), which prohibits the government from substantially burdening a person's exercise of religion. The Supreme Court held that Congress exceeded its power in enacting RFRA, as it imposed RFRA's requirements on the states and relied on the Fourteenth Amendment. The Court found that RFRA was not "appropriate legislation" under Section 5 of the Fourteenth Amendment, which empowers Congress to enforce the Amendment's guarantees. The Court's ruling upheld the previous ruling in Employment Div., Dept. of Human Resources of Ore. v. Smith, which stated that the Free Exercise Clause of the First Amendment does not prohibit a state from enforcing a neutral, generally applicable law that incidentally burdens religious practices.

Religion

Rosenberger v. Rector and Visitors of the University of Virginia

https://supreme.justia.com/cases/federal/us/515/819/

OCTOBER TERM, 1994 Syllabus ROSENBERGER ET AL. v. RECTOR AND VISITORS OF UNIVERSITY OF VIRGINIA ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 94-329. Argued March 1, 1995-Decided June 29,1995 Respondent University of Virginia, a state instrumentality, authorizes payments from its Student Activities Fund (SAF) to outside contractors for the printing costs of a variety of publications issued by student groups called "Contracted Independent Organizations" (CIO's). The SAF receives its money from mandatory student fees and is designed to support a broad range of extracurricular student activities related to the University's educational purpose. CIO's must include in their dealings with third parties and in all written materials a disclaimer stating that they are independent of the University and that the University is not responsible for them. The University withheld authorization for payments to a printer on behalf of petitioners' CIO, Wide Awake Productions (WAP), solely because its student newspaper, Wide Awake: A Christian Perspective at the University of Virginia, "primarily promotes or manifests a particular belie[f] in or about a deity or an ultimate reality," as prohibited by the University's SAF Guidelines. Petitioners filed this suit under 42 U. S. C. § 1983, alleging, inter alia, that the refusal to authorize payment violated their First Amendment right to freedom of speech. After the District Court granted summary judgment for the University, the Fourth Circuit affirmed, holding that the University's invocation of viewpoint discrimination to deny third-party payment violated the Speech Clause, but concluding that the discrimination was justified by the necessity of complying with the Establishment Clause. Held: 1. The Guideline invoked to deny SAF support, both in its terms and in its application to these petitioners, is a denial of their right of free speech. Pp. 828-837. (a) The Guideline violates the principles governing speech in limited public forums, which apply to the SAF under, e. g., Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S. 37 , 46-47. In determining whether a State is acting within its power to preserve the limits it has set for such a forum so that the exclusion of a class of speech there is legitimate, see, e. g., id., at 49, this Court has observed a distinction between, on the one hand, content discrimination-i. e., discrimination 820 Syllabus against speech because of its subject matter-which may be permissible if it preserves the limited forum's purposes, and, on the other hand, viewpoint discrimination-i. e., discrimination because of the speaker's specific motivating ideology, opinion, or perspective-which is presumed impermissible when directed against speech otherwise within the forum's limitations, see id., at 46. The most recent and most apposite case in this area is Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 , 393, in which the Court held that permitting school property to be used for the presentation of all views on an issue except those dealing with it from a religious standpoint constitutes prohibited viewpoint discrimination. Here, as in that case, the State's actions are properly interpreted as unconstitutional viewpoint discrimination rather than permissible line-drawing based on content: By the very terms of the SAF prohibition, the University does not exclude religion as a subject matter, but selects for disfavored treatment those student journalistic efforts with religious editorial viewpoints. Pp. 828-832. (b) The University's attempt to escape the consequences of Lamb's Chapel by urging that this case involves the provision of funds rather than access to facilities is unavailing. Although it may regulate the content of expression when it is the speaker or when it enlists private entities to convey its own message, Rust v. Sullivan, 500 U. S. 173 ; Widmar v. Vincent, 454 U. S. 263 , 276, the University may not discriminate based on the viewpoint of private persons whose speech it subsidizes, Regan v. Taxation with Representation of Wash., 461 U. S. 540 , 548. Its argument that the scarcity of public money may justify otherwise impermissible viewpoint discrimination among private speakers is simply wrong. Pp. 832-835. (c) Vital First Amendment speech principles are at stake here. The Guideline at issue has a vast potential reach: The term "promotes" as used there would comprehend any writing advocating a philosophic position that rests upon a belief (or nonbelief) in a deity or ultimate reality, while the term "manifests" would bring within the prohibition any writing resting upon a premise presupposing the existence (or nonexistence) of a deity or ultimate reality. It is difficult to name renowned thinkers whose writings would be accepted, save perhaps for articles disclaiming all connection to their ultimate philosophy. pp.835-837. 2. The violation following from the University's denial of SAF support to petitioners is not excused by the necessity of complying with the Establishment Clause. Pp. 837-846. (a) The governmental program at issue is neutral toward religion. Such neutrality is a significant factor in upholding programs in the face of Establishment Clause attack, and the guarantee of neutrality is not 821 offended where, as here, the government follows neutral criteria and evenhanded policies to extend benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse, Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U. S. 687 , 704. There is no suggestion that the University created its program to advance religion or aid a religious cause. The SAF's purpose is to open a forum for speech and to support various student enterprises, including the publication of newspapers, in recognition of the diversity and creativity of student life. The SAF Guidelines have a separate classification for, and do not make third-party payments on behalf of, "religious organizations," and WAP did not seek a subsidy because of its Christian editorial viewpoint; it sought funding under the Guidelines as a "student ... communications ... grou[p]." Neutrality is also apparent in the fact that the University has taken pains to disassociate itself from the private speech involved in this case. The program's neutrality distinguishes the student fees here from a tax levied for the direct support of a church or group of churches, which would violate the Establishment Clause. Pp. 837-842. (b) This case is not controlled by the principle that special Establishment Clause dangers exist where the government makes direct money payments to sectarian institutions, see, e. g., Roemer v. Board of Public Works of Md., 426 U. S. 736 , 747, since it is undisputed that no public funds flow directly into WAP's coffers under the program at issue. A public university does not violate the Establishment Clause when it grants access to its facilities on a religion-neutral basis to a wide spectrum of student groups, even if some of those groups would use the facilities for devotional exercises. See e. g., Widmar, 454 U. S., at 269. This is so even where the upkeep, maintenance, and repair of those facilities are paid out of a student activities fund to which students are required to contribute. Id., at 265. There is no difference in logic or principle, and certainly no difference of constitutional significance, between using such funds to operate a facility to which students have access, and paying a third-party contractor to operate the facility on its behalf. That is all that is involved here: The University provides printing services to a broad spectrum of student newspapers. Were the contrary view to become law, the University could only avoid a constitutional violation by scrutinizing the content of student speech, lest it contain too great a religious message. Such censorship would be far more inconsistent with the Establishment Clause's dictates than would governmental provision of secular printing services on a religion-blind basis. Pp. 842-846. 18 F.3d 269 , reversed. 822 KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, and THOMAS, JJ., joined. O'CONNOR, J., post, p. 846, and THOMAS, J., post, p. 852, filed concurring opinions. SouTER, J., filed a dissenting opinion, in which STEVENS, GINSBURG, and BREYER, JJ., joined, post, p. 863. Michael W McConnell argued the cause for petitioners. With him on the briefs was Michael P. McDonald. John C. Jeffries, Jr., argued the cause for respondents. With him on the brief was James J. Mingle.* JUSTICE KENNEDY delivered the opinion of the Court. The University of Virginia, an instrumentality of the Commonwealth for which it is named and thus bound by the First and Fourteenth Amendments, authorizes the payment of outside contractors for the printing costs of a variety of student publications. It withheld any authorization for payments on behalf of petitioners for the sole reason that their student *Briefs of amici curiae urging reversal were filed for the Commonwealth of Virginia by James S. Gilmore III, Attorney General, David E. Anderson, Chief Deputy Attorney General, William Henry Hurd, Deputy Attorney General, and Alison Paige Landry, Assistant Attorney General; for the American Center for Law and Justice by Jay Alan Sekulow, James Matthew Henderson, Sr., and Keith A. Fournier; for the Catholic League for Religious and Civil Rights by Edward M. Gaffney, Jr.; for the Christian Legal Society et al. by Douglas Laycock, Steven T. McFarland, and Samuel B. Casey; and for the Intercollegiate Studies Institute by Robert M. Rader and Donn C. Meindertsma. Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Marjorie Heins, Steven R. Shapiro, and Stephen B. Pershing; for Americans United for Separation of Church and State et al. by Steven K. Green, Samuel Rabinove, Jeffrey P. Sinensky, and Steven M. Freeman; for the Baptist Joint Committee on Public Mfairs et al. by J. Brent Walker, Oliver S. Thomas, Elliot M. Mincberg, Melissa Rogers, David Saperstein, and Lois C. Waldman; for the Council on Religious Freedom by Lee Boothby, Walter E. Carson, Robert W Nixon, and Rolland Truman; for the National School Boards Association by Gwendolyn H. Gregory, August W Steinhilber, and Thomas A. Shannon; for the Pacific Legal Foundation by Anthony T. Caso and Deborah J. La Fetra; and for the Student Press Law Center by S. Mark Goodman. 823 paper "primarily promotes or manifests a particular belie[f] in or about a deity or an ultimate reality." That the paper did promote or manifest views within the defined exclusion seems plain enough. The challenge is to the University's regulation and its denial of authorization, the case raising issues under the Speech and Establishment Clauses of the First Amendment. I The public corporation we refer to as the "University" is denominated by state law as "the Rector and Visitors of the University of Virginia," Va. Code Ann. § 23-69 (1993), and it is responsible for governing the school, see §§ 23-69 to 23-80. Founded by Thomas Jefferson in 1819, and ranked by him, together with the authorship of the Declaration of Independence and of the Virginia Act for Religious Freedom, Va. Code Ann. §57-1 (1950), as one of his proudest achievements, the University is among the Nation's oldest and most respected seats of higher learning. It has more than 11,000 undergraduate students, and 6,000 graduate and professional students. An understanding of the case requires a somewhat detailed description of the program the University created to support extracurricular student activities on its campus. Before a student group is eligible to submit bills from its outside contractors for payment by the fund described below, it must become a "Contracted Independent Organization" (CIO). CIO status is available to any group the majority of whose members are students, whose managing officers are full-time students, and that complies with certain procedural requirements. App. to Pet. for Cert. 2a. A CIO must file its constitution with the University; must pledge not to discriminate in its membership; and must include in dealings with third parties and in all written materials a disclaimer, stating that the CIO is independent of the University and that the University is not responsible for the CIO. App. 27-28. CIO's enjoy access to University facilities, including meeting rooms and computer terminals. Id., at 30. 824 A standard agreement signed between each CIO and the University provides that the benefits and opportunities afforded to CIO's "should not be misinterpreted as meaning that those organizations are part of or controlled by the University, that the University is responsible for the organizations' contracts or other acts or omissions, or that the University approves of the organizations' goals or activities." Id., at 26. All CIO's may exist and operate at the University, but some are also entitled to apply for funds from the Student Activities Fund (SAF). Established and governed by University Guidelines, the purpose of the SAF is to support a broad range of extracurricular student activities that "are related to the educational purpose of the University." App. to Pet. for Cert. 61a. The SAF is based on the University's "recogni[tion] that the availability of a wide range of opportunities" for its students "tends to enhance the University environment." App. 26. The Guidelines require that it be administered "in a manner consistent with the educational purpose of the University as well as with state and federal law." App. to Pet. for Cert. 61a. The SAF receives its money from a mandatory fee of $14 per semester assessed to each full-time student. The Student Council, elected by the students, has the initial authority to disburse the funds, but its actions are subject to review by a faculty body chaired by a designee of the Vice President for Student Affairs. Cf. id., at 63a-64a. Some, but not all, CIO's may submit disbursement requests to the SAF. The Guidelines recognize 11 categories of student groups that may seek payment to third-party contractors because they "are related to the educational purpose of the University of Virginia." Id., at 61a-62a. One of these is "student news, information, opinion, entertainment, or academic communications media groups." Id., at 61a. The Guidelines also specify, however, that the costs of certain activities of CIO's that are otherwise eligible for funding 825 will not be reimbursed by the SAF. The student activities that are excluded from SAF support are religious activities, philanthropic contributions and activities, political activities, activities that would jeopardize the University's tax-exempt status, those which involve payment of honoraria or similar fees, or social entertainment or related expenses. Id., at 62a-63a. The prohibition on "political activities" is defined so that it is limited to electioneering and lobbying. The Guidelines provide that "[t]hese restrictions on funding political activities are not intended to preclude funding of any otherwise eligible student organization which ... espouses particular positions or ideological viewpoints, including those that may be unpopular or are not generally accepted." Id., at 65a-66a. A "religious activity," by contrast, is defined as any activity that "primarily promotes or manifests a particular belie[f] in or about a deity or an ultimate reality." Id., at 66a. The Guidelines prescribe these criteria for determining the amounts of third-party disbursements that will be allowed on behalf of each eligible student organization: the size of the group, its financial self-sufficiency, and the Universitywide benefit of its activities. If an organization seeks SAF support, it must submit its bills to the Student Council, which pays the organization's creditors upon determining that the expenses are appropriate. No direct payments are made to the student groups. During the 1990-1991 academic year, 343 student groups qualified as CIa's. One hundred thirty-five of them applied for support from the SAF, and 118 received funding. Fifteen of the groups were funded as "student news, information, opinion, entertainment, or academic communications media groups." Petitioners' organization, Wide Awake Productions (WAP), qualified as a CIa. Formed by petitioner Ronald Rosenberger and other undergraduates in 1990, W AP was established "[t]o publish a magazine of philosophical and religious expression," "[t]o facilitate discussion which fosters an at- 826 mosphere of sensitivity to and tolerance of Christian viewpoints," and "[t]o provide a unifying focus for Christians of multicultural backgrounds." App. 67. WAP publishes Wide Awake: A Christian Perspective at the University of Virginia. The paper's Christian viewpoint was evident from the first issue, in which its editors wrote that the journal "offers a Christian perspective on both personal and community issues, especially those relevant to college students at the University of Virginia." App. 45. The editors committed the paper to a two-fold mission: "to challenge Christians to live, in word and deed, according to the faith they proclaim and to encourage students to consider what a personal relationship with Jesus Christ means." Ibid. The first issue had articles about racism, crisis pregnancy, stress, prayer, C. S. Lewis' ideas about evil and free will, and reviews of religious music. In the next two issues, Wide Awake featured stories about homosexuality, Christian missionary work, and eating disorders, as well as music reviews and interviews with University professors. Each page of Wide Awake, and the end of each article or review, is marked by a cross. The advertisements carried in Wide Awake also reveal the Christian perspective of the journal. For the most part, the advertisers are churches, centers for Christian study, or Christian bookstores. By June 1992, W AP had distributed about 5,000 copies of Wide Awake to University students, free of charge. WAP had acquired CIO status soon after it was organized. This is an important consideration in this case, for had it been a "religious organization," WAP would not have been accorded CIO status. As defined by the Guidelines, a "[r]eligious [o]rganization" is "an organization whose purpose is to practice a devotion to an acknowledged ultimate reality or deity." App. to Pet. for Cert. 66a. At no stage in this controversy has the University contended that WAP is such an organization. 827 A few months after being given CIO status, WAP requested the SAF to pay its printer $5,862 for the costs of printing its newspaper. The Appropriations Committee of the Student Council denied W AP's request on the ground that Wide Awake was a "religious activity" within the meaning of the Guidelines, i. e., that the newspaper "promote[d] or manifest[ed] a particular belie[f] in or about a deity or an ultimate reality." Ibid. It made its determination after examining the first issue. App. 54. W AP appealed the denial to the full Student Council, contending that W AP met all the applicable Guidelines and that denial of SAF support on the basis of the magazine's religious perspective violated the Constitution. The appeal was denied without further comment, and W AP appealed to the next level, the Student Activities Committee. In a letter signed by the Dean of Students, the committee sustained the denial of funding. App.55. Having no further recourse within the University structure, W AP, Wide Awake, and three of its editors and members filed suit in the United States District Court for the Western District of Virginia, challenging the SAF's action as violative of Rev. Stat. § 1979, 42 U. S. C. § 1983. They alleged that refusal to authorize payment of the printing costs of the publication, solely on the basis of its religious editorial viewpoint, violated their rights to freedom of speech and press, to the free exercise of religion, and to equal protection of the law. They relied also upon Article I of the Virginia Constitution and the Virginia Act for Religious Freedom, Va. Code Ann. §§57-1, 57-2 (1986 and Supp. 1994), but did not pursue those theories on appeal. The suit sought damages for the costs of printing the paper, injunctive and declaratory relief, and attorney's fees. On cross-motions for summary judgment, the District Court ruled for the University, holding that denial of SAF support was not an impermissible content or viewpoint dis- 828 crimination against petitioners' speech, and that the University's Establishment Clause concern over its "religious activities" was a sufficient justification for denying payment to third-party contractors. The court did not issue a definitive ruling on whether reimbursement, had it been made here, would or would not have violated the Establishment Clause. 795 F. Supp. 175, 181-182 (WD Va. 1992). The United States Court of Appeals for the Fourth Circuit, in disagreement with the District Court, held that the Guidelines did discriminate on the basis of content. It ruled that, while the State need not underwrite speech, there was a presumptive violation of the Speech Clause when viewpoint discrimination was invoked to deny third-party payment otherwise available to CIa's. 18 F.3d 269 , 279-281 (1994). The Court of Appeals affirmed the judgment of the District Court nonetheless, concluding that the discrimination by the University was justified by the "compelling interest in maintaining strict separation of church and state." Id., at 281. We granted certiorari. 513 U. S. 959 (1994). II It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. Police Dept. of Chicago v. Mosley, 408 U. S. 92 , 96 (1972). Other principles follow from this precept. In the realm of private speech or expression, government regulation may not favor one speaker over another. Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789,804 (1984). Discrimination against speech because of its message is presumed to be unconstitutional. See Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 , 641-643 (1994). These rules informed our determination that the government offends the First Amendment when it imposes financial burdens on certain speakers based on the content of their expression. Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105 , 829 115 (1991). When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. See R. A. v: v. St. Paul, 505 U. S. 377 , 391 (1992). Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction. See Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S. 37 , 46 (1983). These principles provide the framework forbidding the State to exercise viewpoint discrimination, even when the limited public forum is one of its own creation. In a case involving a school district's provision of school facilities for private uses, we declared that "[t]here is no question that the District, like the private owner of property, may legally preserve the property under its control for the use to which it is dedicated." Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 , 390 (1993). The necessities of confining a forum to the limited and legitimate purposes for which it was created may justify the State in reserving it for certain groups or for the discussion of certain topics. See, e. g., Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788 ,806 (1985); Perry Ed. Assn., supra, at 49. Once it has opened a limited forum, however, the State must respect the lawful boundaries it has itself set. The State may not exclude speech where its distinction is not "reasonable in light of the purpose served by the forum," Cornelius, supra, at 804-806; see also Perry Ed. Assn., supra, at 46, 49, nor may it discriminate against speech on the basis of its viewpoint, Lamb's Chapel, supra, at 392-393; see also Perry Ed. Assn., supra, at 46; R. A. V:, supra, at 386-388, 391-393; cf. Texas v. Johnson, 491 U. S. 397 , 414-415 (1989). Thus, in determining whether the State is acting to preserve the limits of the forum it has created so that the exclusion of a class of speech is legitimate, we have observed a distinction be- 830 tween, on the one hand, content discrimination, which may be permissible if it preserves the purposes of that limited forum, and, on the other hand, viewpoint discrimination, which is presumed impermissible when directed against speech otherwise within the forum's limitations. See Perry Ed. Assn., supra, at 46. The SAF is a forum more in a metaphysical than in a spatial or geographic sense, but the same principles are applicable. See, e. g., Perry Ed. Assn., supra, at 46-47 (forum analysis of a school mail system); Cornelius, supra, at 801 (forum analysis of charitable contribution program). The most recent and most apposite case is our decision in Lamb's Chapel, supra. There, a school district had opened school facilities for use after school hours by community groups for a wide variety of social, civic, and recreational purposes. The district, however, had enacted a formal policy against opening facilities to groups for religious purposes. Invoking its policy, the district rejected a request from a group desiring to show a film series addressing various child-rearing questions from a "Christian perspective." There was no indication in the record in Lamb's Chapel that the request to use the school facilities was "denied, for any reason other than the fact that the presentation would have been from a religious perspective." 508 U. S., at 393-394. Our conclusion was unanimous: "[I]t discriminates on the basis of viewpoint to permit school property to be used for the presentation of all views about family issues and child rearing except those dealing with the subject matter from a religious standpoint." Id., at 393. The University does acknowledge (as it must in light of our precedents) that "ideologically driven attempts to suppress a particular point of view are presumptively unconstitutional in funding, as in other contexts," but insists that this case does not present that issue because the Guidelines draw lines based on content, not viewpoint. Brief for Respondents 17, n. 10. As we have noted, discrimination against one set of 831 views or ideas is but a subset or particular instance of the more general phenomenon of content discrimination. See, e. g., R. A. V:, supra, at 391. And, it must be acknowledged, the distinction is not a precise one. It is, in a sense, something of an understatement to speak of religious thought and discussion as just a viewpoint, as distinct from a comprehensive body of thought. The nature of our origins and destiny and their dependence upon the existence of a divine being have been subjects of philosophic inquiry throughout human history. We conclude, nonetheless, that here, as in Lamb's Chapel, viewpoint discrimination is the proper way to interpret the University's objections to Wide Awake. By the very terms of the SAF prohibition, the University does not exclude religion as a subject matter but selects for disfavored treatment those student journalistic efforts with religious editorial viewpoints. Religion may be a vast area of inquiry, but it also provides, as it did here, a specific premise, a perspective, a standpoint from which a variety of subjects may be discussed and considered. The prohibited perspective, not the general subject matter, resulted in the refusal to make third-party payments, for the subjects discussed were otherwise within the approved category of publications. The dissent's assertion that no viewpoint discrimination occurs because the Guidelines discriminate against an entire class of viewpoints reflects an insupportable assumption that all debate is bipolar and that antireligious speech is the only response to religious speech. Our understanding of the complex and multifaceted nature of public discourse has not embraced such a contrived description of the marketplace of ideas. If the topic of debate is, for example, racism, then exclusion of several views on that problem is just as offensive to the First Amendment as exclusion of only one. It is as objectionable to exclude both a theistic and an atheistic perspective on the debate as it is to exclude one, the other, or yet another political, economic, or social viewpoint. The dissent's declaration that debate is not skewed so long as multi- 832 pIe voices are silenced is simply wrong; the debate is skewed in multiple ways. The University's denial of WAP's request for third-party payments in the present case is based upon viewpoint discrimination not unlike the discrimination the school district relied upon in Lamb's Chapel and that we found invalid. The church group in Lamb's Chapel would have been qualified as a social or civic organization, save for its religious purposes. Furthermore, just as the school district in Lamb's Chapel pointed to nothing but the religious views of the group as the rationale for excluding its message, so in this case the University justifies its denial of SAF participation to W AP on the ground that the contents of Wide Awake reveal an avowed religious perspective. See supra, at 827. It bears only passing mention that the dissent's attempt to distinguish Lamb's Chapel is entirely without support in the law. Relying on the transcript of oral argument, the dissent seems to argue that we found viewpoint discrimination in that case because the government excluded Christian, but not atheistic, viewpoints from being expressed in the forum there. Post, at 897-898, and n. 13. The Court relied on no such distinction in holding that discriminating against religious speech was discriminating on the basis of viewpoint. There is no indication in the opinion of the Court (which, unlike an advocate's statements at oral argument, is the law) that exclusion or inclusion of other religious or antireligious voices from that forum had any bearing on its decision. The University tries to escape the consequences of our holding in Lamb's Chapel by urging that this case involves the provision of funds rather than access to facilities. The University begins with the unremarkable proposition that the State must have substantial discretion in determining how to allocate scarce resources to accomplish its educational mission. Citing our decisions in Rust v. Sullivan, 500 U. S. 173 (1991), Regan v. Taxation with Representation of Wash., 461 U. S. 540 (1983), and Widmar v. Vincent, 454 U. S. 263 833 (1981), the University argues that content-based funding decisions are both inevitable and lawful. Were the reasoning of Lamb's Chapel to apply to funding decisions as well as to those involving access to facilities, it is urged, its holding "would become a judicial juggernaut, constitutionalizing the ubiquitous content-based decisions that schools, colleges, and other government entities routinely make in the allocation of public funds." Brief for Respondents 16. To this end the University relies on our assurance in Widmar v. Vincent, supra. There, in the course of striking down a public university's exclusion of religious groups from use of school facilities made available to all other student groups, we stated: "Nor do we question the right of the University to make academic judgments as to how best to allocate scarce resources." 454 U. S., at 276. The quoted language in Widmar was but a proper recognition of the principle that when the State is the speaker, it may make content-based choices. When the University determines the content of the education it provides, it is the University speaking, and we have permitted the government to regulate the content of what is or is not expressed when it is the speaker or when it enlists private entities to convey its own message. In the same vein, in Rust v. Sullivan, supra, we upheld the government's prohibition on abortion-related advice applicable to recipients of federal funds for family planning counseling. There, the government did not create a program to encourage private speech but instead used private speakers to transmit specific information pertaining to its own program. We recognized that when the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes. 500 U. S., at 194. When the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee. See id., at 196-200. 834 It does not follow, however, and we did not suggest in Widmar, that viewpoint-based restrictions are proper when the University does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers. A holding that the University may not discriminate based on the viewpoint of private persons whose speech it facilitates does not restrict the University's own speech, which is controlled by different principles. See, e. g., Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226 , 250 (1990); Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260 , 270-272 (1988). For that reason, the University's reliance on Regan v. Taxation with Representation of Wash., supra, is inapposite as well. Regan involved a challenge to Congress' choice to grant tax deductions for contributions made to veterans' groups engaged in lobbying, while denying that favorable status to other charities which pursued lobbying efforts. Although acknowledging that the Government is not required to subsidize the exercise of fundamental rights, see 461 U. S., at 545-546, we reaffirmed the requirement of viewpoint neutrality in the Government's provision of financial benefits by observing that "[t]he case would be different if Congress were to discriminate invidiously in its subsidies in such a way as to 'ai[m] at the suppression of dangerous ideas,'" see id., at 548 (quoting Cammarano v. United States, 358 U. S. 498 , 513 (1959), in turn quoting Speiser v. Randall, 357 U. S. 513 , 519 (1958)). Regan relied on a distinction based on preferential treatment of certain speakers-veterans' organizations-and not a distinction based on the content or messages of those groups' speech. 461 U. S., at 548; cf. Perry Ed. Assn., 460 U. S., at 49. The University's regulation now before us, however, has a speech-based restriction as its sole rationale and operative principle. The distinction between the University's own favored message and the private speech of students is evident in the case before us. The University itself has taken steps to ensure 835 the distinction in the agreement each CIO must sign. See supra, at 824. The University declares that the student groups eligible for SAF support are not the University's agents, are not subject to its control, and are not its responsibility. Having offered to pay the third-party contractors on behalf of private speakers who convey their own messages, the University may not silence the expression of selected viewpoints. The University urges that, from a constitutional standpoint, funding of speech differs from provision of access to facilities because money is scarce and physical facilities are not. Beyond the fact that in any given case this proposition might not be true as an empirical matter, the underlying premise that the University could discriminate based on viewpoint if demand for space exceeded its availability is wrong as well. The government cannot justify viewpoint discrimination among private speakers on the economic fact of scarcity. Had the meeting rooms in Lamb's Chapel been scarce, had the demand been greater than the supply, our decision would have been no different. It would have been incumbent on the State, of course, to ration or allocate the scarce resources on some acceptable neutral principle; but nothing in our decision indicated that scarcity would give the State the right to exercise viewpoint discrimination that is otherwise impermissible. Vital First Amendment speech principles are at stake here. The first danger to liberty lies in granting the State the power to examine publications to determine whether or not they are based on some ultimate idea and, if so, for the State to classify them. The second, and corollary, danger is to speech from the chilling of individual thought and expression. That danger is especially real in the University setting, where the State acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition. See Healy v. James, 408 U. S. 169, 180-181 (1972); Keyishian v. Board of Regents of 836 Univ. of State of N. Y., 385 U. S. 589 , 603 (1967); Sweezy v. New Hampshire, 354 U. S. 234 , 250 (1957). In ancient Athens, and, as Europe entered into a new period of intellectual awakening, in places like Bologna, Oxford, and Paris, universities began as voluntary and spontaneous assemblages or concourses for students to speak and to write and to learn. See generally R. Palmer & J. Colton, A History of the Modern World 39 (7th ed. 1992). The quality and creative power of student intellectual life to this day remains a vital measure of a school's influence and attainment. For the University, by regulation, to cast disapproval on particular viewpoints of its students risks the suppression of free speech and creative inquiry in one of the vital centers for the Nation's intellectual life, its college and university campuses. The Guideline invoked by the University to deny thirdparty contractor payments on behalf of W AP effects a sweeping restriction on student thought and student inquiry in the context of University sponsored publications. The prohibition on funding on behalf of publications that "primarily promot[e] or manifes[t] a particular belie[f] in or about a deity or an ultimate reality," in its ordinary and commonsense meaning, has a vast potential reach. The term "promotes" as used here would comprehend any writing advocating a philosophic position that rests upon a belief in a deity or ultimate reality. See Webster's Third New International Dictionary 1815 (1961) (defining "promote" as "to contribute to the growth, enlargement, or prosperity of: further, encourage"). And the term "manifests" would bring within the scope of the prohibition any writing that is explicable as resting upon a premise that presupposes the existence of a deity or ultimate reality. See id., at 1375 (defining "manifest" as "to show plainly: make palpably evident or certain by showing or displaying"). Were the prohibition applied with much vigor at all, it would bar funding of essays by hypothetical student contributors named Plato, Spinoza, and Descartes. And if the regulation covers, as the University 837 says it does, see Tr. of Oral Arg. 18-19, those student journalistic efforts that primarily manifest or promote a belief that there is no deity and no ultimate reality, then undergraduates named Karl Marx, Bertrand Russell, and JeanPaul Sartre would likewise have some of their major essays excluded from student publications. If any manifestation of beliefs in first principles disqualifies the writing, as seems to be the case, it is indeed difficult to name renowned thinkers whose writings would be accepted, save perhaps for articles disclaiming all connection to their ultimate philosophy. Plato could contrive perhaps to submit an acceptable essay on making pasta or peanut butter cookies, provided he did not point out their (necessary) imperfections. Based on the principles we have discussed, we hold that the regulation invoked to deny SAF support, both in its terms and in its application to these petitioners, is a denial of their right of free speech guaranteed by the First Amendment. It remains to be considered whether the violation following from the University's action is excused by the necessity of complying with the Constitution's prohibition against state establishment of religion. We turn to that question. III Before its brief on the merits in this Court, the University had argued at all stages of the litigation that inclusion of W AP's contractors in SAF funding authorization would violate the Establishment Clause. Indeed, that is the ground on which the University prevailed in the Court of Appeals. We granted certiorari on this question: "Whether the Establishment Clause compels a state university to exclude an otherwise eligible student publication from participation in the student activities fund, solely on the basis of its religious viewpoint, where such exclusion would violate the Speech and Press Clauses if the viewpoint of the publication were nonreligious." Pet. for Cert. i. The University now seems to have abandoned this position, contending that "[t]he fun- 838 damental objection to petitioners' argument is not that it implicates the Establishment Clause but that it would defeat the ability of public education at all levels to control the use of public funds." Brief for Respondents 29; see id., at 27-29, and n. 17; Tr. of Oral Arg. 14. That the University itself no longer presses the Establishment Clause claim is some indication that it lacks force; but as the Court of Appeals rested its judgment on the point and our dissenting colleagues would find it determinative, it must be addressed. The Court of Appeals ruled that withholding SAF support from Wide Awake contravened the Speech Clause of the First Amendment, but proceeded to hold that the University's action was justified by the necessity of avoiding a violation of the Establishment Clause, an interest it found compelling. 18 F. 3d, at 281. Recognizing that this Court has regularly "sanctioned awards of direct nonmonetary benefits to religious groups where government has created open fora to which all similarly situated organizations are invited," id., at 286 (citing Widmar, 454 U. S., at 277), the Fourth Circuit asserted that direct monetary subsidization of religious organizations and projects is "a beast of an entirely different color," 18 F. 3d, at 286. The court declared that the Establishment Clause would not permit the use of public funds to support" 'a specifically religious activity in an otherwise substantially secular setting.'" Id., at 285 (quoting Hunt v. McNair, 413 U. S. 734 , 743 (1973) (emphasis deleted)). It reasoned that because Wide Awake is "a journal pervasively devoted to the discussion and advancement of an avowedly Christian theological and personal philosophy," the University's provision of SAF funds for its publication would "send an unmistakably clear signal that the University of Virginia supports Christian values and wishes to promote the wide promulgation of such values." 18 F. 3d, at 286. If there is to be assurance that the Establishment Clause retains its force in guarding against those governmental actions it was intended to prohibit, we must in each case in- 839 quire first into the purpose and object of the governmental action in question and then into the practical details of the program's operation. Before turning to these matters, however, we can set forth certain general principles that must bear upon our determination. A central lesson of our decisions is that a significant factor in upholding governmental programs in the face of Establishment Clause attack is their neutrality towards religion. We have decided a series of cases addressing the receipt of government benefits where religion or religious views are implicated in some degree. The first case in our modern Establishment Clause jurisprudence was Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947). There we cautioned that in enforcing the prohibition against laws respecting establishment of religion, we must "be sure that we do not inadvertently prohibit [the government] from extending its general state law benefits to all its citizens without regard to their religious belief." Id., at 16. We have held that the guarantee of neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse. See Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U. S. 687 , 704 (1994) (SOUTER, J.) ("[T]he principle is well grounded in our case law [and] we have frequently relied explicitly on the general availability of any benefit provided religious groups or individuals in turning aside Establishment Clause challenges"); Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481 , 487-488 (1986); Mueller v. Allen, 463 U. S. 388 , 398-399 (1983); Widmar, supra, at 274275. More than once have we rejected the position that the Establishment Clause even justifies, much less requires, a refusal to extend free speech rights to religious speakers who participate in broad-reaching government programs neutral in design. See Lamb's Chapel, 508 U. S., at 393-394; Mergens, 496 U. S., at 248,252; Widmar, supra, at 274-275. 840 The governmental program here is neutral toward religion. There is no suggestion that the University created it to advance religion or adopted some ingenious device with the purpose of aiding a religious cause. The object of the SAF is to open a forum for speech and to support various student enterprises, including the publication of newspapers, in recognition of the diversity and creativity of student life. The University's SAF Guidelines have a separate classification for, and do not make third-party payments on behalf of, "religious organizations," which are those "whose purpose is to practice a devotion to an acknowledged ultimate reality or deity." Pet. for Cert. 66a. The category of support here is for "student news, information, opinion, entertainment, or academic communications media groups," of which Wide Awake was 1 of 15 in the 1990 school year. W AP did not seek a subsidy because of its Christian editorial viewpoint; it sought funding as a student journal, which it was. The neutrality of the program distinguishes the student fees from a tax levied for the direct support of a church or group of churches. A tax of that sort, of course, would run contrary to Establishment Clause concerns dating from the earliest days of the Republic. The apprehensions of our predecessors involved the levying of taxes upon the public for the sole and exclusive purpose of establishing and supporting specific sects. The exaction here, by contrast, is a student activity fee designed to reflect the reality that student life in its many dimensions includes the necessity of wide-ranging speech and inquiry and that student expression is an integral part of the University's educational mission. The fee is mandatory, and we do not have before us the question whether an objecting student has the First Amendment right to demand a pro rata return to the extent the fee is expended for speech to which he or she does not subscribe. See Keller v. State Bar of Gal., 496 U. S. 1 , 15-16 (1990); Abood v. Detroit Bd. of Ed., 431 U. S. 209 , 235-236 (1977). We must treat it, then, as an exaction upon the students. 841 But the $14 paid each semester by the students is not a general tax designed to raise revenue for the University. See United States v. Butler, 297 U. S. 1 , 61 (1936) ("A tax, in the general understanding of the term, and as used in the Constitution, signifies an exaction for the support of the Government"); see also Head Money Cases, 112 U. S. 580 , 595596 (1884). The SAF cannot be used for unlimited purposes, much less the illegitimate purpose of supporting one religion. Much like the arrangement in Widmar, the money goes to a special fund from which any group of students with CIO status can draw for purposes consistent with the University's educational mission; and to the extent the student is interested in speech, withdrawal is permitted to cover the whole spectrum of speech, whether it manifests a religious view, an antireligious view, or neither. Our decision, then, cannot be read as addressing an expenditure from a general tax fund. Here, the disbursements from the fund go to private contractors for the cost of printing that which is protected under the Speech Clause of the First Amendment. This is a far cry from a general public assessment designed and effected to provide financial support for a church. Government neutrality is apparent in the State's overall scheme in a further meaningful respect. The program respects the critical difference "between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." Mergens, supra, at 250 (opinion of O'CONNOR, J.). In this case, "the government has not fostered or encouraged" any mistaken impression that the student newspapers speak for the University. Capitol Square Review and Advisory Bd. v. Pinette, ante, at 766. The University has taken pains to disassociate itself from the private speech involved in this case. The Court of Appeals' apparent concern that Wide Awake's religious orientation would be attributed to the University is not a plausible fear, and there is no real likelihood that the 842 speech in question is being either endorsed or coerced by the State, see Lee v. Weisman, 505 U. S. 577 , 587 (1992); Witters, supra, at 489 (citing Lynch v. Donnelly, 465 U. S. 668 , 688 (1984) (O'CONNOR, J., concurring)); see also Witters, supra, at 493 (O'CONNOR, J., concurring in part and concurring in judgment) (citing Lynch, supra, at 690 (O'CONNOR, J., concurring)) . The Court of Appeals (and the dissent) are correct to extract from our decisions the principle that we have recognized special Establishment Clause dangers where the government makes direct money payments to sectarian institutions, citing Roemer v. Board of Public Works of Md., 426 U. S. 736 , 747 (1976); Bowen v. Kendrick, 487 U. S. 589 , 614-615 (1988); Hunt v. McNair, 413 U. S., at 742; Tilton v. Richardson, 403 U. S. 672 , 679-680 (1971); Board of Ed. of Central School Dist. No.1 v. Allen, 392 U. S. 236 (1968). The error is not in identifying the principle, but in believing that it controls this case. Even assuming that W AP is no different from a church and that its speech is the same as the religious exercises conducted in Widmar (two points much in doubt), the Court of Appeals decided a case that was, in essence, not before it, and the dissent would have us do the same. We do not confront a case where, even under a neutral program that includes nonsectarian recipients, the government is making direct money payments to an institution or group that is engaged in religious activity. Neither the Court of Appeals nor the dissent, we believe, takes sufficient cognizance of the undisputed fact that no public funds flow directly to W AP's coffers. It does not violate the Establishment Clause for a public university to grant access to its facilities on a religionneutral basis to a wide spectrum of student groups, including groups that use meeting rooms for sectarian activities, accompanied by some devotional exercises. See Widmar, 454 U. S., at 269; Mergens, 496 U. S., at 252. This is so even where the upkeep, maintenance, and repair of the facilities 843 attributed to those uses are paid from a student activities fund to which students are required to contribute. Widmar, supra, at 265. The government usually acts by spending money. Even the provision of a meeting room, as in Mergens and Widmar, involved governmental expenditure, if only in the form of electricity and heating or cooling costs. The error made by the Court of Appeals, as well as by the dissent, lies in focusing on the money that is undoubtedly expended by the government, rather than on the nature of the benefit received by the recipient. If the expenditure of governmental funds is prohibited whenever those funds pay for a service that is, pursuant to a religion-neutral program, used by a group for sectarian purposes, then Widmar, Mergens, and Lamb's Chapel would have to be overruled. Given our holdings in these cases, it follows that a public university may maintain its own computer facility and give student groups access to that facility, including the use of the printers, on a religion neutral, say first-come-first-served, basis. If a religious student organization obtained access on that religion-neutral basis and used a computer to compose or a printer or copy machine to print speech with a religious content or viewpoint, the State's action in providing the group with access would no more violate the Establishment Clause than would giving those groups access to an assembly hall. See Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993); Widmar, supra; Mergens, supra. There is no difference in logic or principle, and no difference of constitutional significance, between a school using its funds to operate a facility to which students have access, and a school paying a third-party contractor to operate the facility on its behalf. The latter occurs here. The University provides printing services to a broad spectrum of student newspapers qualified as CIO's by reason of their officers and membership. Any benefit to religion is incidental to the government's provision of secular services for secular 844 purposes on a religion-neutral basis. Printing is a routine, secular, and recurring attribute of student life. By paying outside printers, the University in fact attains a further degree of separation from the student publication, for it avoids the duties of supervision, escapes the costs of upkeep, repair, and replacement attributable to student use, and has a clear record of costs. As a result, and as in Widmar, the University can charge the SAF, and not the taxpayers as a whole, for the discrete activity in question. It would be formalistic for us to say that the University must forfeit these advantages and provide the services itself in order to comply with the Establishment Clause. It is, of course, true that if the State pays a church's bills it is subsidizing it, and we must guard against this abuse. That is not a danger here, based on the considerations we have advanced and for the additional reason that the student publication is not a religious institution, at least in the usual sense of that term as used in our case law, and it is not a religious organization as used in the University's own regulations. It is instead a publication involved in a pure forum for the expression of ideas, ideas that would be both incomplete and chilled were the Constitution to be interpreted to require that state officials and courts scan the publication to ferret out views that principally manifest a belief in a divine being. Were the dissent's view to become law, it would require the University, in order to avoid a constitutional violation, to scrutinize the content of student speech, lest the expression in question-speech otherwise protected by the Constitution-contain too great a religious content. The dissent, in fact, anticipates such censorship as "crucial" in distinguishing between "works characterized by the evangelism of Wide Awake and writing that merely happens to express views that a given religion might approve." Post, at 896. That eventuality raises the specter of governmental censorship, to ensure that all student writings and publications meet some baseline standard of secular orthodoxy. To impose that 845 standard on student speech at a university is to imperil the very sources of free speech and expression. As we recognized in Widmar, official censorship would be far more inconsistent with the Establishment Clause's dictates than would governmental provision of secular printing services on a religion-blind basis. "[T]he dissent fails to establish that the distinction [between 'religious' speech and speech 'about' religion] has intelligible content. There is no indication when 'singing hymns, reading scripture, and teaching biblical principles' cease to be 'singing, teaching, and reading'-all apparently forms of 'speech,' despite their religious subject matter-and become unprotected 'worship.' ... "[E]ven if the distinction drew an arguably principled line, it is highly doubtful that it would lie within the judicial competence to administer. Merely to draw the distinction would require the university-and ultimately the courts-to inquire into the significance of words and practices to different religious faiths, and in varying circumstances by the same faith. Such inquiries would tend inevitably to entangle the State with religion in a manner forbidden by our cases. E. g., Walz v. Tax Comm'n of City of New York, 397 U. S. 664 (1970)." 454 U. S., at 269-270, n. 6 (citations omitted). *** To obey the Establishment Clause, it was not necessary for the University to deny eligibility to student publications because of their viewpoint. The neutrality commanded of the State by the separate Clauses of the First Amendment was compromised by the University's course of action. The viewpoint discrimination inherent in the University's regulation required public officials to scan and interpret student publications to discern their underlying philosophic assumptions respecting religious theory and belief. That course of action was a denial of the right of free speech and would risk 846 fostering a pervasive bias or hostility to religion, which could undermine the very neutrality the Establishment Clause requires. There is no Establishment Clause violation in the University's honoring its duties under the Free Speech Clause. The judgment of the Court of Appeals must be, and is, reversed. It is so ordered. JUSTICE O'CONNOR, concurring. "We have time and again held that the government generally may not treat people differently based on the God or gods they worship, or do not worship." Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U. S. 687 , 714 (1994) (O'CONNOR, J., concurring in part and concurring in judgment). This insistence on government neutrality toward religion explains why we have held that schools may not discriminate against religious groups by denying them equal access to facilities that the schools make available to all. See Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993); Widmar v. Vincent, 454 U. S. 263 (1981). Withholding access would leave an impermissible perception that religious activities are disfavored: "[T]he message is one of neutrality rather than endorsement; if a State refused to let religious groups use facilities open to others, then it would demonstrate not neutrality but hostility toward religion." Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226 , 248 (1990) (plurality opinion). "The Religion Clauses prohibit the government from favoring religion, but they provide no warrant for discriminating against religion." Kiryas Joel, supra, at 717 (O'CONNOR, J.). Neutrality, in both form and effect, is one hallmark of the Establishment Clause. As JUSTICE SOUTER demonstrates, however, post, at 868872 (dissenting opinion), there exists another axiom in the history and precedent of the Establishment Clause. "Public 847 funds may not be used to endorse the religious message." Bowen v. Kendrick, 487 U. S. 589 , 642 (1988) (Blackmun, J., dissenting); see also id., at 622 (O'CONNOR, J., concurring). Our cases have permitted some government funding of secular functions performed by sectarian organizations. See, e. g., id., at 617 (funding for sex education); Roemer v. Board of Public Works of Md., 426 U. S. 736 , 741 (1976) (cash grant to colleges not to be used for "sectarian purposes"); Bradfield v. Roberts, 175 U. S. 291 , 299-300 (1899) (funding of health care for indigent patients). These decisions, however, provide no precedent for the use of public funds to finance religious activities. This case lies at the intersection of the principle of government neutrality and the prohibition on state funding of religious activities. It is clear that the University has established a generally applicable program to encourage the free exchange of ideas by its students, an expressive marketplace that includes some 15 student publications with predictably divergent viewpoints. It is equally clear that petitioners' viewpoint is religious and that publication of Wide Awake is a religious activity, under both the University's regulation and a fair reading of our precedents. Not to finance Wide Awake, according to petitioners, violates the principle of neutrality by sending a message of hostility toward religion. To finance Wide Awake, argues the University, violates the prohibition on direct state funding of religious activities. When two bedrock principles so conflict, understandably neither can provide the definitive answer. Reliance on categorical platitudes is unavailing. Resolution instead depends on the hard task of judging-sifting through the details and determining whether the challenged program offends the Establishment Clause. Such judgment requires courts to draw lines, sometimes quite fine, based on the particular facts of each case. See Lee v. Weisman, 505 U. S. 577 , 598 (1992) ("Our jurisprudence in this area is of necessity one of line-drawing"). As Justice Holmes observed in a different 848 context: "Neither are we troubled by the question where to draw the line. That is the question in pretty much everything worth arguing in the law. Day and night, youth and age are only types." Irwin v. Gavit, 268 U. S. 161 , 168 (1925) (citation omitted). In Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481 (1986), for example, we unanimously held that the State may, through a generally applicable financial aid program, pay a blind student's tuition at a sectarian theological institution. The Court so held, however, only after emphasizing that "vocational assistance provided under the Washington program is paid directly to the student, who transmits it to the educational institution of his or her choice." Id., at 487. The benefit to religion under the program, therefore, is akin to a public servant contributing her government paycheck to the church. Ibid. We thus resolved the conflict between the neutrality principle and the funding prohibition, not by permitting one to trump the other, but by relying on the elements of choice peculiar to the facts of that case: "The aid to religion at issue here is the result of petitioner's private choice. No reasonable observer is likely to draw from the facts before us an inference that the State itself is endorsing a religious practice or belief." Id., at 493 (O'CONNOR, J., concurring in part and concurring in judgment). See also Zobrest v. Catalina Foothills School Dist., 509 U. S. 1 , 10-11 (1993). The need for careful judgment and fine distinctions presents itself even in extreme cases. Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947), provided perhaps the strongest exposition of the no-funding principle: "No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion." Id., at 16. Yet the Court approved the use of public funds, in a general program, to reimburse parents for their children's bus fares to attend Catholic schools. Id., at 17-18. 849 Although some would cynically dismiss the Court's disposition as inconsistent with its protestations, see id., at 19 (Jackson, J., dissenting) ("[T]he most fitting precedent is that of Julia who, according to Byron's reports, 'whispering "I will ne'er consent,"-consented"'), the decision reflected the need to rely on careful judgment-not simple categories-when two principles, of equal historical and jurisprudential pedigree, come into unavoidable conflict. So it is in this case. The nature of the dispute does not admit of categorical answers, nor should any be inferred from the Court's decision today, see ante, at 838-839. Instead, certain considerations specific to the program at issue lead me to conclude that by providing the same assistance to Wide Awake that it does to other publications, the University would not be endorsing the magazine's religious perspective. First, the student organizations, at the University's insistence, remain strictly independent of the University. The University's agreement with the Contracted Independent Organizations (CIO)-i. e., student groups-provides: "The University is a Virginia public corporation and the CIO is not part of that corporation, but rather exists and operates independently of the University .... "The parties understand and agree that this Agreement is the only source of any control the University may have over the CIO or its activities .... " App.27. And the agreement requires that student organizations include in every letter, contract, publication, or other written materials the following disclaimer: "Although this organization has members who are University of Virginia students (faculty) (employees), the organization is independent of the corporation which is the University and which is not responsible for the organization's contracts, acts or omissions." Id., at 28. 850 Any reader of Wide Awake would be on notice of the publication's independence from the University. Cf. Widmar v. Vincent, 454 U. S., at 274, n. 14. Second, financial assistance is distributed in a manner that ensures its use only for permissible purposes. A student organization seeking assistance must submit disbursement requests; if approved, the funds are paid directly to the third-party vendor and do not pass through the organization's coffers. This safeguard accompanying the University's financial assistance, when provided to a publication with a religious viewpoint such as Wide Awake, ensures that the funds are used only to further the University's purpose in maintaining a free and robust marketplace of ideas, from whatever perspective. This feature also makes this case analogous to a school providing equal access to a generally available printing press (or other physical facilities), ante, at 843, and unlike a block grant to religious organizations. Third, assistance is provided to the religious publication in a context that makes improbable any perception of government endorsement of the religious message. Wide Awake does not exist in a vacuum. It competes with 15 other magazines and newspapers for advertising and readership. The widely divergent viewpoints of these many purveyors of opinion, all supported on an equal basis by the University, significantly diminishes the danger that the message of anyone publication is perceived as endorsed by the University. Besides the general news publications, for example, the University has provided support to The Yellow Journal, a humor magazine that has targeted Christianity as a subject of satire, and AI-Salam, a publication to "promote a better understanding of Islam to the University Community," App. 92. Given this wide array of nonreligious, antireligious and competing religious viewpoints in the forum supported by the University, any perception that the University endorses one particular viewpoint would be illogical. This is not the harder case where religious speech threatens 851 to dominate the forum. Cf. Capitol Square Review and Advisory Bd. v. Pinette, ante, at 777 (O'CONNOR, J., concurring in part and concurring in judgment); Mergens, 496 U. S., at 275. Finally, although the question is not presented here, I note the possibility that the student fee is susceptible to a Free Speech Clause challenge by an objecting student that she should not be compelled to pay for speech with which she disagrees. See, e. g., Keller v. State Bar of Cal., 496 U. S. 1 , 15 (1990); Abood v. Detroit Bd. of Ed., 431 U. S. 209 , 236 (1977). There currently exists a split in the lower courts as to whether such a challenge would be successful. Compare Hays County Guardian v. Supple, 969 F.2d 111 , 123 (CA5 1992), cert. denied, 506 U. S. 1087 (1993); Kania v. Fordham, 702 F.2d 475 , 480 (CA4 1983); Good v. Associated Students of Univ. of Wash., 86 Wash. 2d 94, 105-106, 542 P. 2d 762, 769 (1975) (en bane), with Smith v. Regents of Univ. of Cal., 4 Cal. 4th 843, 863-864, 844 P. 2d 500, 513-514, cert. denied, 510 U. S. 863 (1993). While the Court does not resolve the question here, see ante, at 840, the existence of such an optout possibility not available to citizens generally, see Abood, supra, at 259, n. 13 (Powell, J., concurring in judgment), provides a potential basis for distinguishing proceeds of the student fees in this case from proceeds of the general assessments in support of religion that lie at the core of the prohibition against religious funding, see ante, at 840-841; post, at 852-855 (THOMAS, J., concurring); post, at 868-872 (SOUTER, J., dissenting), and from government funds generally. Unlike moneys dispensed from state or federal treasuries, the Student Activities Fund is collected from students who themselves administer the fund and select qualifying recipients only from among those who originally paid the fee. The government neither pays into nor draws from this common pool, and a fee of this sort appears conducive to granting individual students proportional refunds. The Student Activities Fund, then, represents not government resources, 852 THOMAS, J., concurring whether derived from tax revenue, sales of assets, or otherwise, but a fund that simply belongs to the students. The Court's decision today therefore neither trumpets the supremacy of the neutrality principle nor signals the demise of the funding prohibition in Establishment Clause jurisprudence. As I observed last Term, "[e]xperience proves that the Establishment Clause, like the Free Speech Clause, cannot easily be reduced to a single test." Kiryas Joel, 512 U. S., at 720 (opinion concurring in part and concurring in judgment). When bedrock principles collide, they test the limits of categorical obstinacy and expose the flaws and dangers of a Grand Unified Theory that may turn out to be neither grand nor unified. The Court today does only what courts must do in many Establishment Clause cases-focus on specific features of a particular government action to ensure that it does not violate the Constitution. By withholding from Wide Awake assistance that the University provides generally to all other student publications, the University has discriminated on the basis of the magazine's religious viewpoint in violation of the Free Speech Clause. And particular features of the University's program-such as the explicit disclaimer, the disbursement of funds directly to third-party vendors, the vigorous nature of the forum at issue, and the possibility for objecting students to opt outconvince me that providing such assistance in this case would not carry the danger of impermissible use of public funds to endorse Wide Awake's religious message. Subject to these comments, I join the opinion of the Court. JUSTICE THOMAS, concurring. I agree with the Court's opinion and join it in full, but I write separately to express my disagreement with the historical analysis put forward by the dissent. Although the dissent starts down the right path in consulting the original meaning of the Establishment Clause, its misleading application of history yields a principle that is inconsistent with our Nation's long tradition of allowing religious adher- 853 ents to participate on equal terms in neutral government programs. Even assuming that the Virginia debate on the so-called "Assessment Controversy" was indicative of the principles embodied in the Establishment Clause, this incident hardly compels the dissent's conclusion that government must actively discriminate against religion. The dissent's historical discussion glosses over the fundamental characteristic of the Virginia assessment bill that sparked the controversy: The assessment was to be imposed for the support of clergy in the performance of their function of teaching religion. Thus, the "Bill Establishing a Provision for Teachers of the Christian Religion" provided for the collection of a specific tax, the proceeds of which were to be appropriated "by the Vestries, Elders, or Directors of each religious society ... to a provision for a Minister or Teacher of the Gospel of their denomination, or the providing places of divine worship, and to none other use whatsoever." See Everson v. Board of Ed. of Ewing, 330 U. S. 1 , 74 (1947) (appendix to dissent of Rutledge, J.).l 1 The dissent suggests that the assessment bill would have created a "generally available subsidy program" comparable to respondents' Student Activities Fund (SAF). See post, at 869, n. 1. The dissent's characterization of the bill, however, is squarely at odds with the bill's clear purpose and effect to provide "for the support of Christian teachers." Everson, 330 U. S., at 72. Moreover, the section of the bill cited by the dissent, see post, at 869, n. 1, simply indicated that funds would be "disposed of under the direction of the General Assembly, for the encouragement of seminaries of learning within the Counties whence such sums shall arise," Everson, supra, at 74. This provision disposing of undesignated funds hardly transformed the "Bill Establishing a Provision for Teachers of the Christian Religion" into a truly neutral program that would benefit religious adherents as part of a large class of beneficiaries defined without reference to religion. Indeed, the only appropriation of money made by the bill would have been to promote "the general diffusion of Christian knowledge," 330 U. S., at 72; any possible appropriation for "seminaries of learning" depended entirely on future legislative action. Even assuming that future legislators would adhere to the bill's directive in appropriating the undesignated tax revenues, nothing in the bill 854 THOMAS, J., concurring James Madison's Memorial and Remonstrance Against Religious Assessments (hereinafter Madison's Remonstrance) must be understood in this context. Contrary to the dissent's suggestion, Madison's objection to the assessment bill did not rest on the premise that religious entities may never participate on equal terms in neutral government programs. Nor did Madison embrace the argument that forms the linchpin of the dissent: that monetary subsidies are constitutionally different from other neutral benefits programs. Instead, Madison's comments are more consistent with the neutrality principle that the dissent inexplicably discards. According to Madison, the Virginia assessment was flawed because it "violate[d] that equality which ought to be the basis of every law." Madison's Remonstrance' 4, reprinted in Everson, supra, at 66 (appendix to dissent of Rutledge, J.). The assessment violated the "equality" principle not be- would prevent use of those funds solely for sectarian educational institutions. To the contrary, most schools at the time of the founding were affiliated with some religious organization, see C. Antieau, A. Downey, & E. Roberts, Freedom From Federal Establishment, Formation and Early History of the First Amendment Religion Clauses 163 (1964), and in fact there was no system of public education in Virginia until several decades after the assessment bill was proposed, see A. Morrison, The Beginnings of Public Education in Virginia, 1776-1860, p. 9 (1917); see also A. Johnson, The Legal Status of Church-State Relationships in the United States 4 (1982) ("In Virginia the parish institutions transported from England were the earliest educational agencies. Although much of the teaching took place in the home and with the aid of tutors, every minister had a school, and it was the duty of the vestry to see that all the poor children were taught to read and write") (footnote omitted). Further, the clearly religious tenor of the Virginia assessment would seem to point toward appropriation of residual funds to sectarian "seminaries of learning." Finally, although modern historians have focused on the opt-out provision, the dissent provides no indication that Madison viewed the Virginia assessment as an evenhanded program; in fact, several of the objections expressed in Madison's Memorial and Remonstrance Against Religious Assessments, reprinted in Everson, supra, at 63, focus clearly on the bill's violation of the principle of "equality," or evenhandedness. See infra this page and 855-857. 855 cause it allowed religious groups to participate in a generally available government program, but because the bill singled out religious entities for special benefits. See ibid. (arguing that the assessment violated the equality principle "by subjecting some to peculiar burdens" and "by granting to others peculiar exemptions"). Legal commentators have disagreed about the historical lesson to take from the Assessment Controversy. For some, the experience in Virginia is consistent with the view that the Framers saw the Establishment Clause simply as a prohibition on governmental preferences for some religious faiths over others. See R. Cord, Separation of Church and State: Historical Fact and Current Fiction 20-23 (1982); Smith, Getting Off on the Wrong Foot and Back on Again: A Reexamination of the History of the Framing of the Religion Clauses of the First Amendment and a Critique of the Reyn olds and Everson Decisions, 20 Wake Forest L. Rev. 569, 590-591 (1984). Other commentators have rejected this view, concluding that the Establishment Clause forbids not only government preferences for some religious sects over others, but also government preferences for religion over irreligion. See, e. g., Laycock, "Nonpreferential" Aid to Religion: A False Claim About Original Intent, 27 Wm. & Mary L. Rev. 875 (1986). I find much to commend the former view. Madison's focus on the preferential nature of the assessment was not restricted to the fourth paragraph of the Remonstrance discussed above. The funding provided by the Virginia assessment was to be extended only to Christian sects, and the Remonstrance seized on this defect: "Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects." Madison's Remonstrance , 3, reprinted in Everson, supra, at 65. 856 THOMAS, J., concurring In addition to the third and fourth paragraphs of the Remonstrance, "Madison's seventh, ninth, eleventh, and twelfth arguments all speak, in some way, to the same intolerance, bigotry, unenlightenment, and persecution that had generally resulted from previous exclusive religious establishments." Cord, supra, at 21. The conclusion that Madison saw the principle of nonestablishment as barring governmental preferences for particular religious faiths seems especially clear in light of statements he made in the more relevant context of the House debates on the First Amendment. See Wallace v. Jaffree, 472 U. S. 38 , 98 (1985) (REHNQUIST, J., dissenting) (Madison's views "as reflected by actions on the floor of the House in 1789, [indicate] that he saw the [First] Amendment as designed to prohibit the establishment of a national religion, and perhaps to prevent discrimination among sects," but not "as requiring neutrality on the part of government between religion and irreligion"). Moreover, even if more extreme notions of the separation of church and state can be attributed to Madison, many of them clearly stem from "arguments reflecting the concepts of natural law, natural rights, and the social contract between government and a civil society," Cord, supra, at 22, rather than the principle of nonestablishment in the Constitution. In any event, the views of one man do not establish the original understanding of the First Amendment. But resolution of this debate is not necessary to decide this case. Under any understanding of the Assessment Controversy, the history cited by the dissent cannot support the conclusion that the Establishment Clause "categorically condemn[s] state programs directly aiding religious activity" when that aid is part of a neutral program available to a wide array of beneficiaries. Post, at 875. Even if Madison believed that the principle of nonestablishment of religion precluded government financial support for religion per se (in the sense of government benefits specifically targeting religion), there is no indication that at the time of the fram- 857 ing he took the dissent's extreme view that the government must discriminate against religious adherents by excluding them from more generally available financial subsidies.2 In fact, Madison's own early legislative proposals cut against the dissent's suggestion. In 1776, when Virginia's Revolutionary Convention was drafting its Declaration of Rights, Madison prepared an amendment that would have disestablished the Anglican Church. This amendment (which went too far for the Convention and was not adopted) is not nearly as sweeping as the dissent's version of disestablishment; Madison merely wanted the Convention to declare that "no man or class of men ought, on account of religion[,] to be invested with peculiar emoluments or privileges .... " Madison's Amendments to the Declaration of Rights (May 29-June 12, 1776), in 1 Papers of James Madison 174 (W. Hutchinson & W. Rachal eds. 1962) (emphasis added). Likewise, Madison's Remonstrance stressed that "just government" is "best supported by protecting every citizen in the enjoyment of his Religion with the same equal hand which protects his person and his property; by neither invading the equal rights of any Sect, nor suffering any Sect to invade those of another." Madison's Remonstrance' 8, reprinted in Everson, 330 U. S., at 68; cf. Terrett v. Taylor, 9 Cranch 43, 49 (1815) (holding that the Virginia Constitution did not prevent the government from "aiding ... the votaries of 2 To the contrary, Madison's Remonstrance decried the fact that the assessment bill would require civil society to take "cognizance" of religion. Madison's Remonstrance , 1, reprinted in Everson v. Board of Ed. of Ewing, 330 U. S. 1 ,64 (1947). Respondents' exclusion of religious activities from SAF funding creates this very problem. It requires University officials to classify publications as "religious activities," and to discriminate against the publications that fall into that category. Such a policy also contravenes the principles expressed in Madison's Remonstrance by encouraging religious adherents to cleanse their speech of religious overtones, thus "degrad[ing] from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority." Madison's Remonstrance' 9, reprinted in Everson, supra, at 69. 858 THOMAS, J., concurring every sect to perform their own religious duties," or from "establishing funds for the support of ministers, for public charities, for the endowment of churches, or for the sepulture of the dead"). Stripped of its flawed historical premise, the dissent's argument is reduced to the claim that our Establishment Clause jurisprudence permits neutrality in the context of access to government facilities but requires discrimination in access to government funds. The dissent purports to locate the prohibition against "direct public funding" at the "heart" of the Establishment Clause, see post, at 878, but this conclusion fails to confront historical examples of funding that date back to the time of the founding. To take but one famous example, both Houses of the First Congress elected chaplains, see S. Jour., 1st Cong., 1st Sess., 10 (1820 ed.); H. R. Jour., 1st Cong., 1st Sess., 26 (1826 ed.), and that Congress enacted legislation providing for an annual salary of $500 to be paid out of the Treasury, see Act of Sept. 22, 1789, ch. 17, § 4, 1 Stat. 70, 71. Madison himself was a member of the committee that recommended the chaplain system in the House. See H. R. Jour., at 11-12; 1 Annals of Congo 891 (1789); Cord, Separation of Church and State: Historical Fact and Current Fiction, at 25. This same system of "direct public funding" of congressional chaplains has "continued without interruption ever since that early session of Congress." Marsh v. Chambers, 463 U. S. 783 , 788 (1983).3 3 A number of other, less familiar examples of what amount to direct funding appear in early Acts of Congress. See, e. g., Act of Feb. 20, 1833, ch. 42, 4 Stat. 618-619 (authorizing the State of Ohio to sell "all or any part of the lands heretofore reserved and appropriated by Congress for the support of religion within the Ohio Company's ... purchases ... and to invest the money arising from the sale thereof, in some productive fund; the proceeds of which shall be for ever annually applied ... for the support of religion within the several townships for which said lands were originally reserved and set apart, and for no other use or purpose whatso- 859 The historical evidence of government support for religious entities through property tax exemptions is also overwhelming. As the dissent concedes, property tax exemptions for religious bodies "have been in place for over 200 years without disruption to the interests represented by the Establishment Clause." Post, at 881, n. 7 (citing Walz v. Tax Comm'n of City of New York, 397 U. S. 664 , 676-680 (1970)).4 In my view, the dissent's acceptance of this tradition puts to rest the notion that the Establishment Clause bars monetary aid to religious groups even when the aid is equally available to other groups. A tax exemption in many cases is economically and functionally indistinguishable from a direct monetary subsidy.5 In one instance, the government relieves reli- ever"); Act of Mar. 2, 1833, ch. 86, §§ 1, 3, 6 Stat. 538 (granting to Georgetown College-a Jesuit institution-"lots in the city of Washington, to the amount, in value, of twenty-five thousand dollars," and directing the College to sell the lots and invest the proceeds, thereafter using the dividends to establish and endow such professorships as it saw fit); see also Wallace v. Jaffree, 472 U. S. 38 , 103 (1985) (REHNQUIST, J., dissenting) ("As the United States moved from the 18th into the 19th century, Congress appropriated time and again public moneys in support of sectarian Indian education carried on by religious organizations"). 4 The Virginia experience during the period of the Assessment Controversy itself is inconsistent with the rigid "no-aid" principle embraced by the dissent. Since at least 1777, the Virginia Legislature authorized tax exemptions for property belonging to the "commonwealth, or to any county, town, college, houses for divine worship, or seminary of learning." Act of Jan. 23, 1800, ch. 2, § 1,1800 Va. Acts. And even Thomas Jefferson, respondents' founder and a champion of disestablishment in Virginia, advocated the use of public funds in Virginia for a department of theology in conjunction with other professional schools. See S. Padover, The Complete Jefferson 1067 (1943); see also id., at 958 (noting that Jefferson advocated giving "to the sectarian schools of divinity the full benefit [of] the public provisions made for instruction in the other branches of science"). 5 In the tax literature, this identity is called a "tax expenditure," a concept "based upon recognition of the fact that a government can appropriate money to a particular person or group by using a special, narrowly directed tax deduction or exclusion, instead of by using its ordinary direct 860 THOMAS, J., concurring gious entities (along with others) of a generally applicable tax; in the other, it relieves religious entities (along with others) of some or all of the burden of that tax by returning it in the form of a cash subsidy. Whether the benefit is provided at the front or back end of the taxation process, the financial aid to religious groups is undeniable. The analysis under the Establishment Clause must also be the same: "Few concepts are more deeply embedded in the fabric of our na- spending mechanisms. For example, a government with a general income tax, wanting to add $7,000 to the spendable income of a preacher whose top tax rate is 30%, has two ways of subsidizing him. The government can send the preacher a check for $10,000 and tax him on all of his income, or it can authorize him to reduce his taxable income by $23,333.33 [resulting in a tax saving of $7,000]. If the direct payment were itself taxable and did not alter his tax bracket, the preacher would receive the same benefit from the tax deduction as he would from the direct payment." Wolfman, Tax Expenditures: From Idea to Ideology, 99 Harv. L. Rev. 491, 491-492 (1985). In fact, Congress has provided a similar "tax expenditure" in § 107 of the Internal Revenue Code by granting a "'minister of the gospel''' an unlimited exclusion for the rental value of any home furnished as part of his payor for the rental allowance paid to him. See id., at 492, n. 6. Although Professor Bittker is certainly a leading scholar in the tax field, the dissent's reliance on Bittker, see post, at 881, n. 7, is misplaced in this context. See Adler, The Internal Revenue Code, The Constitution, and the Courts: The Use of Tax Expenditure Analysis in Judicial Decision Making, 28 Wake Forest L. Rev. 855, 862, n. 30 (1993): "Early criticism of the tax expenditure concept focused on the difficulty of drawing a dividing line between what is or is not a special provision. Professor Boris Bittker, for example, argued that since no tax is all inclusive, exemptions from any tax could not be described as the equivalent of subsidies. Boris 1. Bittker, Churches, Taxes and the Constitution, 78 Yale L. J. 1285 (1969). This wholesale rejection of tax expenditure analysis was short-lived and attracted few supporters. Rather, the large body of literature about tax expenditures accepts the basic concept that special exemptions from tax function as subsidies. The current debate focuses on whether particular items are correctly identified as tax expenditures and whether incentive provisions are more efficient when structured as tax expenditures rather than direct spending programs. See generally [numerous authorities]." 861 tional life, beginning with pre-Revolutionary colonial times, than for the government to exercise at the very least this kind of benevolent neutrality toward churches and religious exercise .... " Walz, supra, at 676-677. Consistent application of the dissent's "no-aid" principle would require that" 'a church could not be protected by the police and fire departments, or have its public sidewalk kept in repair.'" Zobrest v. Catalina Foothills School Dist., 509 U. S. 1, 8 (1993) (quoting Widmar v. Vincent, 454 U. S. 263 , 274-275 (1981)). The dissent admits that "evenhandedness may become important to ensuring that religious interests are not inhibited." Post, at 879, n. 5. Surely the dissent must concede, however, that the same result should obtain whether the government provides the populace with fire protection by reimbursing the costs of smoke detectors and overhead sprinkler systems or by establishing a public fire department. If churches may benefit on equal terms with other groups in the latter program-that is, if a public fire department may extinguish fires at churches-then they may also benefit on equal terms in the former program. Though our Establishment Clause jurisprudence is in hopeless disarray, this case provides an opportunity to reaffirm one basic principle that has enjoyed an uncharacteristic degree of consensus: The Clause does not compel the exclusion of religious groups from government benefits programs that are generally available to a broad class of participants. See Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993); Zobrest, supra; Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226 (1990); Texas Monthly, Inc. v. Bullock, 489 U. S. 1 (1989); Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481 (1986); Mueller v. Allen, 463 U. S. 388 (1983); Widmar, supra. Under the dissent's view, however, the University of Virginia may provide neutral access to the University's own printing press, but it may not provide the same service when the press is owned by a third party. Not sur- 862 THOMAS, J., concurring prisingly, the dissent offers no logical justification for this conclusion, and none is evident in the text or original meaning of the First Amendment. If the Establishment Clause is offended when religious adherents benefit from neutral programs such as the University of Virginia's Student Activities Fund, it must also be offended when they receive the same benefits in the form of in-kind subsidies. The constitutional demands of the Establishment Clause may be judged against either a baseline of "neutrality" or a baseline of "no aid to religion," but the appropriate baseline surely cannot depend on the fortuitous circumstances surrounding the form of aid. The contrary rule would lead to absurd results that would jettison centuries of practice respecting the right of religious adherents to participate on neutral terms in a wide variety of governmentfunded programs. Our Nation's tradition of allowing religious adherents to participate in evenhanded government programs is hardly limited to the class of "essential public benefits" identified by the dissent. See post, at 879, n. 5. A broader tradition can be traced at least as far back as the First Congress, which ratified the Northwest Ordinance of 1787. See Act of Aug. 7, 1789, ch. 8, 1 Stat. 50. Article III of that famous enactment of the Confederation Congress had provided: "Religion, morality, and knowledge ... being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." Id., at 52, n. (a). Congress subsequently set aside federal lands in the Northwest Territory and other territories for the use of schools. See, e. g., Act of Mar. 3, 1803, ch. 21, § 1, 2 Stat. 225-226; Act of Mar. 26, 1804, ch. 35, § 5, 2 Stat. 279; Act of Feb. 15, 1811, ch. 14, § 10, 2 Stat. 621; Act of Apr. 18, 1818, ch. 67, § 6, 3 Stat. 430; Act of Apr. 20, 1818, ch. 126, § 2, 3 Stat. 467. Many of the schools that enjoyed the benefits of these land grants undoubtedly were church-affiliated sectarian institutions as there was no requirement that the schools be "public." See 863 C. Antieau, A. Downey, & E. Roberts, Freedom From Federal Establishment, Formation and Early History of the First Amendment Religion Clauses 163 (1964). Nevertheless, early Congresses found no problem with the provision of such neutral benefits. See also id., at 174 (noting that "almost universally[,] Americans from 1789 to 1825 accepted and practiced governmental aid to religion and religiously oriented educational institutions"). Numerous other government benefits traditionally have been available to religious adherents on neutral terms. Several examples may be found in the work of early Congresses, including copyright protection for "the author and authors of any map, chart, book or books," Act of May 31, 1790, ch. 15, § 1, 1 Stat. 124, and a privilege allowing "every printer of newspapers [to] send one paper to each and every other printer of newspapers within the United States, free of postage," Act of Feb. 20, 1792, ch. 7, § 21, 1 Stat. 238. Neither of these laws made any exclusion for the numerous authors or printers who manifested a belief in or about a deity. Thus, history provides an answer for the constitutional question posed by this case, but it is not the one given by the dissent. The dissent identifies no evidence that the Framers intended to disable religious entities from participating on neutral terms in evenhanded government programs. The evidence that does exist points in the opposite direction and provides ample support for today's decision. JUSTICE SOUTER, with whom JUSTICE STEVENS, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting. The Court today, for the first time, approves direct funding of core religious activities by an arm of the State. It does so, however, only after erroneous treatment of some familiar principles of law implementing the First Amendment's Establishment and Speech Clauses, and by viewing the very funds in question as beyond the reach of the Establishment Clause's funding restrictions as such. Because there is no 864 SOUTER, J., dissenting warrant for distinguishing among public funding sources for purposes of applying the First Amendment's prohibition of religious establishment, I would hold that the University's refusal to support petitioners' religious activities is compelled by the Establishment Clause. I would therefore affirm. I The central question in this case is whether a grant from the Student Activities Fund to pay Wide Awake's printing expenses would violate the Establishment Clause. Although the Court does not dwell on the details of Wide Awake's message, it recognizes something sufficiently religious in the publication to demand Establishment Clause scrutiny. Although the Court places great stress on the eligibility of secular as well as religious activities for grants from the Student Activities Fund, it recognizes that such evenhanded availability is not by itself enough to satisfy constitutional requirements for any aid scheme that results in a benefit to religion. Ante, at 839; see also ante, at 846-848 (O'CONNOR, J., concurring). Something more is necessary to justify any religious aid. Some Members of the Court, at least, may think the funding permissible on a view that it is indirect, since the money goes to Wide Awake's printer, not through Wide Awake's own checking account. The Court's principal reliance, however, is on an argument that providing religion with economically valuable services is permissible on the theory that services are economically indistinguishable from religious access to governmental speech forums, which sometimes is permissible. But this reasoning would commit the Court to approving direct religious aid beyond anything justifiable for the sake of access to speaking forums. The Court implicitly recognizes this in its further attempt to circumvent the clear bar to direct governmental aid to religion. Different Members of the Court seek to avoid this bar in different ways. The opinion of the Court makes the novel assumption that only direct aid financed with tax 865 revenue is barred, and draws the erroneous conclusion that the involuntary Student Activities Fee is not a tax. I do not read JUSTICE O'CONNOR'S opinion as sharing that assumption; she places this Student Activities Fund in a category of student funding enterprises from which religious activities in public universities may benefit, so long as there is no consequent endorsement of religion. The resulting decision is in unmistakable tension with the accepted law that the Court continues to avow. A The Court's difficulties will be all the more clear after a closer look at Wide Awake than the majority opinion affords. The character of the magazine is candidly disclosed on the opening page of the first issue, where the editor-in-chief announces Wide Awake's mission in a letter to the readership signed, "Love in Christ": it is "to challenge Christians to live, in word and deed, according to the faith they proclaim and to encourage students to consider what a personal relationship with Jesus Christ means." App. 45. The masthead of every issue bears St. Paul's exhortation, that "[t]he hour has come for you to awake from your slumber, because our salvation is nearer now than when we first believed. Romans 13:11." Each issue of Wide Awake contained in the record makes good on the editor's promise and echoes the Apostle's call to accept salvation: "The only way to salvation through Him is by confessing and repenting of sin. It is the Christian's duty to make sinners aware of their need for salvation. Thus, Christians must confront and condemn sin, or else they fail in their duty of love." Mourad & Prince, A Love/Hate Relationship, Nov.lDec. 1990, p. 3. "When you get to the final gate, the Lord will be handing out boarding passes, and He will examine your ticket. If, in your lifetime, you did not request a seat 866 SOUTER, J., dissenting on His Friendly Skies Flyer by trusting Him and asking Him to be your pilot, then you will not be on His list of reserved seats (and the Lord will know you not). You will not be able to buy a ticket then; no amount of money or desire will do the trick. You will be met by your chosen pilot and flown straight to Hell on an express jet (without air conditioning or toilets, of course)." Ace, The Plane Truth, ibid. "'Go into all the world and preach the good news to all creation.' (Mark 16:15) The Great Commission is the prime-directive for our lives as Christians .... " Liu, Christianity and the Five-legged Stool, Sept.lOct. 1991, p.3. "The Spirit provides access to an intimate relationship with the Lord of the Universe, awakens our minds to comprehend spiritual truth and empowers us to serve as effective ambassadors for the Lord Jesus in our earthly lives." Buterbaugh, A Spiritual Advantage, Mar.lApr. 1991, p. 21. There is no need to quote further from articles of like tenor, but one could examine such other examples as religious poetry, see Macpherson, I Have Started Searching for Angels, Nov.lDec. 1990, p. 18; religious textual analysis and commentary, see Buterbaugh, Colossians 1:1-14: Abundant Life, id., at 20; Buterbaugh, John 14-16: A Spiritual Advantage, Mar.lApr., pp. 20-21; and instruction on religious practice, see Early, Thanksgiving and Prayer, Nov.lDec. 1990, p. 21 (providing readers with suggested prayers and posing contemplative questions about biblical texts); Early, Hope and Spirit, Mar.lApr. 1991, p. 21 (similar). Even featured essays on facially secular topics become platforms from which to call readers to fulfill the tenets of Christianity in their lives. Although a piece on racism has some general discussion on the subject, it proceeds beyond even the analysis and interpretation of biblical texts to con- 867 clude with the counsel to take action because that is the Christian thing to do: "God calls us to take the risks of voluntarily stepping out of our comfort zones and to take joy in the whole richness of our inheritance in the body of Christ. We must take the love we receive from God and share it with all peoples of the world. "Racism is a disease of the heart, soul, and mind, and only when it is extirpated from the individual consciousness and replaced with the love and peace of God will true personal and communal healing begin." Liu, Rosenberger, Mourad, and Prince, "Eracing" Mistakes, Nov.lDec. 1990, p. 14. The same progression occurs in an article on eating disorders, which begins with descriptions of anorexia and bulimia and ends with this religious message: "As thinking people who profess a belief in God, we must grasp firmly the truth, the reality of who we are because of Christ. Christ is the Bread of Life (John 6:35). Through Him, we are full. He alone can provide the ultimate source of spiritual fulfillment which permeates the emotional, psychological, and physical dimensions of our lives." Ferguson & Lassiter, From Calorie to Calvary, Sept.lOct. 1991, p. 14. This writing is no merely descriptive examination of religious doctrine or even of ideal Christian practice in confronting life's social and personal problems. Nor is it merely the expression of editorial opinion that incidentally coincides with Christian ethics and reflects a Christian view of human obligation. It is straightforward exhortation to enter into a relationship with God as revealed in Jesus Christ, and to satisfy a series of moral obligations derived from the teachings of Jesus Christ. These are not the words of "student news, information, opinion, entertainment, or academic communicatio[n] ... " (in the language of the University's funding 868 SOUTER, J., dissenting criterion, App. to Pet. for Cert. 61a), but the words of "challenge [to] Christians to live, in word and deed, according to the faith they proclaim and ... to consider what a personal relationship with Jesus Christ means" (in the language of Wide Awake's founder, App. 45). The subject is not the discourse of the scholar's study or the seminar room, but of the evangelist's mission station and the pulpit. It is nothing other than the preaching of the word, which (along with the sacraments) is what most branches of Christianity offer those called to the religious life. D sing public funds for the direct subsidization of preaching the word is categorically forbidden under the Establishment Clause, and if the Clause was meant to accomplish nothing else, it was meant to bar this use of public money. Evidence on the subject antedates even the Bill of Rights itself, as may be seen in the writings of Madison, whose authority on questions about the meaning of the Establishment Clause is well settled, e. g., Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756 , 770, n. 28 (1973); Everson v. Board of Ed. of Ewing, 330 U. S. 1 , 13 (1947). Four years before the First Congress proposed the First Amendment, Madison gave his opinion on the legitimacy of using public funds for religious purposes, in the Memorial and Remonstrance Against Religious Assessments, which played the central role in ensuring the defeat of the Virginia tax assessment bill in 1786 and framed the debate upon which the Religion Clauses stand: "Who does not see that ... the same authority which can force a citizen to contribute three pence only of his property for the support of anyone establishment, may force him to conform to any other establishment in all cases whatsoever?" James Madison, Memorial and Remonstrance Against Religious Assessments' 3 (hereinafter Madison's Remonstrance), reprinted in Everson, supra, at 65-66 (appendix to dissent of Rutledge, J.). 869 Madison wrote against a background in which nearly every Colony had exacted a tax for church support, Everson, supra, at 10, n. 8, the practice having become "so commonplace as to shock the freedom-loving colonials into a feeling of abhorrence," 330 U. S., at 11 (footnote omitted). Madison's Remonstrance captured the colonists' "conviction that individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions, or to interfere with the beliefs of any religious individual or group." Ibid. 1 Their sentiment, as expressed by Madison in Virginia, IJUSTICE THOMAS suggests that Madison would have approved of the assessment bill if only it had satisfied the principle of evenhandedness. Nowhere in the Remonstrance, however, did Madison advance the view that Virginia should be able to provide financial support for religion as part of a generally available subsidy program. Indeed, while JUSTICE THOMAS claims that the "funding provided by the Virginia assessment was to be extended only to Christian sects," ante, at 855, it is clear that the bill was more general in scope than this. While the bill, which is reprinted in Everson v. Board of Ed. of Ewing, 330 U. S. 1 ,72-74 (1947), provided that each taxpayer could designate a religious society to which he wanted his levy paid, id., at 73, it would also have allowed a taxpayer to refuse to appropriate his levy to any religious society, in which case the legislature was to use these unappropriated sums to fund "seminaries of learning." Id., at 74 (contrary to JUSTICE THOMAS'S unsupported assertion, this portion of the bill was no less obligatory than any other). While some of these seminaries undoubtedly would have been religious in character, others would not have been, as a seminary was generally understood at the time to be "any school, academy, college or university, in which young persons are instructed in the several branches of learning which may qualify them for their future employments." N. Webster, An American Dictionary of the English Language (1st ed. 1828); see also 14 The Oxford English Dictionary 956 (2d ed. 1989). Not surprisingly, then, scholars have generally agreed that the bill would have provided funding for nonreligious schools. See, e. g., Laycock, "Nonpreferential" Aid to Religion: A False Claim About Original Intent, 27 Wm. & Mary L. Rev. 875, 897, and n. 108 (1986) ("Any taxpayer could refuse to designate a church, with undesignated church taxes going to a fund for schools .... The bill used the phrase 'seminaries of learning,' which almost certainly meant schools generally and not just schools for the training of ministers"); T. Buckley, 870 SOUTER, J., dissenting led not only to the defeat of Virginia's tax assessment bill, but also directly to passage of the Virginia Bill for Establishing Religious Freedom, written by Thomas Jefferson. That Church and State in Revolutionary Virginia, 1776-1787, p. 133 (1977) ("The assessment had been carefully drafted to permit those who preferred to support education rather than religion to do so"); T. Curry, The First Freedoms 141 (1986) ("[T]hose taxes not designated for any specific denomination [were] allocated to education"). It is beside the point that "there was no system of public education in Virginia until several decades after the assessment bill was proposed," ante, at 854, n. 1 (THOMAS, J., concurring); because the bill was never passed, the funds that it would have made available for secular, public schools never materialized. The fact that the bill, if passed, would have funded secular as well as religious instruction did nothing to soften Madison's opposition to it. Nor is it fair to argue that Madison opposed the bill only because it treated religious groups unequally. Ante, at 854-855 (THOMAS, J., concurring). In various paragraphs of the Remonstrance, Madison did complain about the bill's peculiar burdens and exemptions, Everson, supra, at 66, but to identify this factor as the sole point of Madison's opposition to the bill is unfaithful to the Remonstrance's text. Madison strongly inveighed against the proposed aid for religion for a host of reasons (the Remonstrance numbers 15 paragraphs, each containing at least one point in opposition), and crucial here is the fact that many of those reasons would have applied whether or not the state aid was being distributed equally among sects, and whether or not the aid was going to those sects in the context of an evenhanded government program. See, e. g., Madison's Remonstrance, reprinted in Everson, 330 U. S., at 64, , 1 ("[I]n matters of Religion, no man's right is abridged by the institution of Civil Society, and ... Religion is wholly exempt from its cognizance"); id., at 67, , 6 (arguing that state support of religion "is a contradiction to the Christian Religion itself; for every page of it disavows a dependence on the powers of this world"); ibid., , 7 ("[E]xperience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation"). Madison's objections were supplemented by numerous other petitions in opposition to the bill that likewise do not suggest that the lack of evenhandedness was its dispositive flaw. L. Levy, The Establishment Clause: Religion and the First Amendment 63-67 (2d ed. 1994). For example, the petition that received the largest number of signatories was motivated by the view that religion should only be supported voluntarily. Id., at 63-64. Indeed, Madison's Remonstrance did not argue for a bill distributing aid to all sects and religions on an equal basis, and the 871 bill's preamble declared that "to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical," Jefferson, A Bill for Establishing Religious Freedom, reprinted in 5 The Founder's Constitution 84 (P. Kurland & R. Lerner eds. 1987), and its text provided "[t]hat no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever ... ," id., at 85. See generally Everson, 330 U. S., at 13. We have "previously recognized that the provisions of the First Amendment, in the drafting and adoption of which Madison and Jefferson played such leading roles, had the same objective and were intended to provide the same protection against governmental intrusion on religious liberty as the Virginia statute." Ibid.; see also Laycock, "Nonpreferential" Aid to Religion: A False Claim About Original Intent, 27 Wm. & Mary L. Rev. 875, 921, 923 (1986) ("[I]f the debates of the 1780's support any proposition, it is that the Framers opposed government financial support for religion .... They did not substitute small taxes for large taxes; three pence was as bad as any larger sum. The principle was what mattered. With respect to money, religion was to be wholly voluntary. Churches either would support outgrowth of the Remonstrance and the defeat of the Virginia assessment was not such a bill; rather, it was the Virginia Bill for Establishing Religious Freedom, which, as discussed in the text, proscribed the use of tax dollars for religious purposes. In attempting to recast Madison's opposition as having principally been targeted against "governmental preferences for particular religious faiths," ante, at 856 (emphasis in original), JUSTICE THOMAS wishes to wage a battle that was lost long ago, for "this Court has rejected unequivocally the contention that the Establishment Clause forbids only governmental preference of one religion over another," School Dist. of Abington Township v. Schempp, 374 U. S. 203 ,216 (1963); see also Texas Monthly, Inc. v. Bullock, 489 U. S. 1 , 17 (1989) (plurality opinion); id., at 28 (Blackmun, J., concurring in judgment); Wallace v. Jaffree, 472 U. S. 38 , 52-53 (1985); Torcaso v. Watkins, 367 U. S. 488 , 495 (1961); Engel v. Vitale, 370 U. S. 421, 430 (1962); Everson, supra, at 15; see generally Lee v. Weisman, 505 U. S. 577 , 609-616 (1992) (SOUTER, J., concurring). 872 SOUTER, J., dissenting themselves or they would not, but the government would neither help nor interfere") (footnote omitted); T. Curry, The First Freedoms 217 (1986) (At the time of the framing of the Bill of Rights, "[t]he belief that government assistance to religion, especially in the form of taxes, violated religious liberty had a long history"); J. Choper, Securing Religious Liberty 16 (1995) ("There is broad consensus that a central threat to the religious freedom of individuals and groupsindeed, in the judgment of many the most serious infringement upon religious liberty-is posed by forcing them to pay taxes in support of a religious establishment or religious activities") (footnotes omitted; internal quotation marks omitted).2 2JUSTICE THOMAS attempts to cast doubt on this accepted version of Establishment Clause history by reference to historical facts that are largely inapposite. Ante, at 857-858, 862-863 (concurring opinion). As I have said elsewhere, individual Acts of Congress, especially when they are few and far between, scarcely serve as an authoritative guide to the meaning of the Religion Clauses, for "like other politicians, [members of the early Congresses] could raise constitutional ideals one day and turn their backs on them the next. [For example,] ... [t]en years after proposing the First Amendment, Congress passed the Alien and Sedition Acts, measures patently unconstitutional by modern standards. If the early Congress's political actions were determinative, and not merely relevant, evidence of constitutional meaning, we would have to gut our current First Amendment doctrine to make room for political censorship." Lee v. Weis man, supra, at 626 (concurring opinion). The legislation cited by JUSTICE THOMAS, including the Northwest Ordinance, is no more dispositive than the Alien and Sedition Acts in interpreting the First Amendment. Even less persuasive, then, are citations to constitutionally untested Acts dating from the mid-19th century, for without some rather innovative argument, they cannot be offered as providing an authoritative gloss on the Framers' intent. JUSTICE THOMAS'S references to Madison's actions as a legislator also provide little support for his cause. JUSTICE THOMAS seeks to draw a significant lesson out of the fact that, in seeking to disestablish the Anglican Church in Virginia in 1776, Madison did not inveigh against state funding of religious activities. Ante, at 857 (concurring opinion). That was 873 The principle against direct funding with public money is patently violated by the contested use of today's student activity fee.3 Like today's taxes generally, the fee is Madison's threepence. The University exercises the power of the State to compel a student to pay it, see Jefferson's Preamble, supra, and the use of any part of it for the direct support of religious activity thus strikes at what we have repeatedly not the task at hand, however. Madison was acting with the specific goal of eliminating the special privileges enjoyed by Virginia Anglicans, and he made no effort to layout the broader views of church and state that came to bear in his drafting of the First Amendment some 13 years later. That Madison did not speak in more expansive terms than necessary in 1776 was hardly surprising for, as it was, his proposal was defeated by the Virginia Convention as having gone too far. Ibid. Similarly, the invocation of Madison's tenure on the congressional committee that approved funding for legislative chaplains provides no support for more general principles that run counter to settled Establishment Clause jurisprudence. As I have previously pointed out, Madison, upon retirement, "insisted that 'it was not with my approbation, that the deviation from [the immunity of religion from civil jurisdiction] took place in Congs., when they appointed Chaplains, to be paid from the N atl. Treasury.' " Lee, 505 U. S., at 625, n. 6, quoting Letter from J. Madison to E. Livingston (July 10, 1822), in 5 The Founders' Constitution 105 (P. Kurland & R. Lerner eds. (1987)). And when we turned our attention to deciding whether funding of legislative chaplains posed an establishment problem, we did not address the practice as one instance of a larger class of permissible government funding of religious activities. Instead, Marsh v. Chambers, 463 U. S. 783 , 791 (1983), explicitly relied on the singular, 200-year pedigree of legislative chaplains, noting that "[t]his unique history" justified carving out an exception for the specific practice in question. Given that the decision upholding this practice was expressly limited to its facts, then, it would stand the Establishment Clause on its head to extract from it a broad rule permitting the funding of religious activities. 3 In the District Court, the parties agreed to the following facts: "The University of Virginia has charged at all times relevant herein and currently charges each full-time student a compulsory student activity fee of $14.00 per semester. There is no procedural or other mechanism by which a student may decline to pay the fee." App. 37; see also id., at 9, 21. 874 SOUTER, J., dissenting held to be the heart of the prohibition on establishment. Everson, 330 U. S., at 15-16 ("The 'establishment of religion' clause ... means at least this .... No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion"); see School Dist. of Grand Rapids v. Ball, 473 U. S. 373 , 385 (1985) ("Although Establishment Clause jurisprudence is characterized by few absolutes, the Clause does absolutely prohibit government-financed or government-sponsored indoctrination into the beliefs of a particular religious faith"); Committee for Public Ed. v. Nyquist, 413 U. S., at 780 ("In the absence of an effective means of guaranteeing that the state aid derived from public funds will be used exclusively for secular, neutral, and nonideological purposes, it is clear from our cases that direct aid in whatever form is invalid"); id., at 772 ("Primary among those evils" against which the Establishment Clause guards "have been sponsorship, financial support, and active involvement of the sovereign in religious activity") (citations and internal quotation marks omitted); see also Lee v. Weisman, 505 U. S. 577 , 640 (1992) (SCALIA, J., dissenting) ("The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty") (emphasis deleted); cf. Flast v. Cohen, 392 U. S. 83 , 103-104 (1968) (holding that taxpayers have an adequate stake in the outcome of Establishment Clause litigation to satisfy Article III standing requirements, after stating that "[o]ur history vividly illustrates that one of the specific evils feared by those who drafted the Establishment Clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general"). The Court, accordingly, has never before upheld direct state funding of the sort of proselytizing published in Wide 875 Awake and, in fact, has categorically condemned state programs directly aiding religious activity, School Dist. v. Ball, supra, at 395 (striking programs providing secular instruction to nonpublic school students on nonpublic school premises because they are "indistinguishable from the provision of a direct cash subsidy to the religious school that is most clearly prohibited under the Establishment Clause"); Wolman v. Walter, 433 U. S. 229 , 254 (1977) (striking field trip aid program because it constituted "an impermissible direct aid to sectarian education"); Meek v. Pittenger, 421 U. S. 349 , 365 (1975) (striking material and equipment loan program to nonpublic schools because of the inability to "channe[l] aid to the secular without providing direct aid to the sectarian"); Committee for Public Ed. v. Nyquist, supra, at 774 (striking aid to nonpublic schools for maintenance and repair of facilities because "[n]o attempt is made to restrict payments to those expenditures related to the upkeep of facilities used exclusively for secular purposes"); Levitt v. Committee for Public Ed. & Religious Liberty, 413 U. S. 472 , 480 (1973) (striking aid to nonpublic schools for state-mandated tests because the State had failed to "assure that the statesupported activity is not being used for religious indoctrination"); Tilton v. Richardson, 403 U. S. 672 , 683 (1971) (plurality opinion) (striking as insufficient a 20-year limit on prohibition for religious use in federal construction program for university facilities because unrestricted use even after 20 years "is in effect a contribution of some value to a religious body"); id., at 689 (Douglas, J., joined by Black, and Marshall, JJ., concurring in part and dissenting in part). Even when the Court has upheld aid to an institution performing both secular and sectarian functions, it has always made a searching enquiry to ensure that the institution kept the secular activities separate from its sectarian ones, with any direct aid flowing only to the former and never the latter. Bowen v. Kendrick, 487 U. S. 589 , 614-615 (1988) (upholding 876 SOUTER, J., dissenting grant program for services related to premarital adolescent sexual relations on ground that funds cannot be "used by the grantees in such a way as to advance religion"); Roemer v. Board of Public Works of Md., 426 U. S. 736 , 746-748, 755, 759-761 (1976) (plurality opinion) (upholding general aid program restricting uses of funds to secular activities only); Hunt v. McNair, 413 U. S. 734 , 742-745 (1973) (upholding general revenue bond program excluding from participation facilities used for religious purposes); Tilton v. Richardson, supra, at 679-682 (plurality opinion) (upholding general aid program for construction of academic facilities as "[t]here is no evidence that religion seeps into the use of any of these facilities"); see Board of Ed. of Central School Dist. No.1 v. Allen, 392 U. S. 236 , 244-248 (1968) (upholding textbook loan program limited to secular books requested by individual students for secular educational purposes). Reasonable minds may differ over whether the Court reached the correct result in each of these cases, but their common principle has never been questioned or repudiated. "Although Establishment Clause jurisprudence is characterized by few absolutes, the Clause does absolutely prohibit government-financed ... indoctrination into the beliefs of a particular religious faith." School Dist. v. Ball, 473 U. S., at 385. B Why does the Court not apply this clear law to these clear facts and conclude, as I do, that the funding scheme here is a clear constitutional violation? The answer must be in part that the Court fails to confront the evidence set out in the preceding section. Throughout its opinion, the Court refers uninformatively to Wide Awake's "Christian viewpoint," ante, at 826, or its "religious perspective," ante, at 832, and in distinguishing funding of Wide Awake from the funding of a church, the Court maintains that "[Wide Awake] is not a religious institution, at least in the usual sense," ante, at 877 844; 4 see also ante, at 826. The Court does not quote the magazine's adoption of Saint Paul's exhortation to awaken to the nearness of salvation, or any of its articles enjoining readers to accept Jesus Christ, or the religious verses, or the religious textual analyses, or the suggested prayers. And so it is easy for the Court to lose sight of what the University students and the Court of Appeals found so obvious, and to blanch the patently and frankly evangelistic character of the magazine by unrevealing allusions to religious points of view. Nevertheless, even without the encumbrance of detail from Wide Awake's actual pages, the Court finds something sufficiently religious about the magazine to require examination under the Establishment Clause, and one may therefore ask why the unequivocal prohibition on direct funding does not lead the Court to conclude that funding would be unconstitutional. The answer is that the Court focuses on a subsidiary body of law, which it correctly states but ultimately misapplies. That subsidiary body of law accounts for the Court's substantial attention to the fact that the University's funding scheme is "neutral," in the formal sense that it makes funds available on an evenhanded basis to secular and sectarian applicants alike. Ante, at 839-842. While this is indeed true and relevant under our cases, it does not alone satisfy the requirements of the Establishment Clause, as the Court recognizes when it says that evenhandedness is only a "significant factor" in certain Establishment Clause analysis, not a dispositive one. Ante, at 839; see ante, at 840-841; see also ante, at 846-848 (O'CONNOR, J., concurring); ante, at 846 ("Neutrality, in both form and effect, is one hallmark of the Establishment Clause"); Capitol Square Review and Advisory Bd. v. Pinette, ante, at 777 (O'CONNOR, J., concur- 4 To the extent the Court perceives some distinction between the printing and dissemination of evangelism and proselytization, and core religious activity "in [its] usual sense," ante, at 844, this distinction goes entirely unexplained in the Court's opinion. 878 SOUTER, J., dissenting ring in part and concurring in judgment) ("[T]he Establishment Clause forbids a State to hide behind the application of formally neutral criteria and remain studiously oblivious to the effects of its actions .... [N]ot all state policies are permissible under the Religion Clauses simply because they are neutral in form"). This recognition reflects the Court's appreciation of two general rules: that whenever affirmative government aid ultimately benefits religion, the Establishment Clause requires some justification beyond evenhandedness on the government's part; and that direct public funding of core sectarian activities, even if accomplished pursuant to an evenhanded program, would be entirely inconsistent with the Establishment Clause and would strike at the very heart of the Clause's protection. See ante, at 842 ("We do not confront a case where, even under a neutral program that includes nonsectarian recipients, the government is making direct money payments to an institution or group that is engaged in religious activity"); ante, at 840-841, 844; see also ante, at 847 (O'CONNOR, J., concurring) ("[Our] decisions ... provide no precedent for the use of public funds to finance religious activities"). In order to understand how the Court thus begins with sound rules but ends with an unsound result, it is necessary to explore those rules in greater detail than the Court does. As the foregoing quotations from the Court's opinion indicate, the relationship between the prohibition on direct aid and the requirement of evenhandedness when affirmative government aid does result in some benefit to religion reflects the relationship between basic rule and marginal criterion. At the heart of the Establishment Clause stands the prohibition against direct public funding, but that prohibition does not answer the questions that occur at the margins of the Clause's application. Is any government activity that provides any incidental benefit to religion likewise unconstitutional? Would it be wrong to put out fires in burning churches, wrong to pay the bus fares of students on the way 879 to parochial schools, wrong to allow a grantee of special education funds to spend them at a religious college? These are the questions that call for drawing lines, and it is in drawing them that evenhandedness becomes important. However the Court may in the past have phrased its line-drawing test, the question whether such benefits are provided on an evenhanded basis has been relevant, for the question addresses one aspect of the issue whether a law is truly neutral with respect to religion (that is, whether the law either "advance[s] [or] inhibit[s] religion," County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573 , 592 (1989)). In Widmar v. Vincent, 454 U. S. 263 , 274 (1981), for example, we noted that "[t]he provision of benefits to [a] broad ... spectrum of [religious and nonreligious] groups is an important index of secular effect." See also Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U. S. 687 , 702-705 (1994). In the doubtful cases (those not involving direct public funding), where there is initially room for argument about a law's effect, evenhandedness serves to weed out those laws that impermissibly advance religion by channelling aid to it exclusively. Evenhandedness is therefore a prerequisite to further enquiry into the constitutionality of a doubtfullaw,5 but evenhandedness goes no further. I t does not guarantee success under Establishment Clause scrutiny. Three cases permitting indirect aid to religion, Mueller v. Allen, 463 U. S. 388 (1983), Witters v. Washington Dept. of Servs.for Blind, 474 U. S. 481 (1986), and Zobrest v. Catalina Foothills School Dist., 509 U. S. 1 (1993), are among the latest of those to illustrate this relevance of evenhandedness when advancement is not so obvious as to be patently uncon- 5 In a narrow band of cases at the polar extreme from direct funding cases, those involving essential public benefits commonly associated with living in an organized society (like police and fire protection, for example), evenhandedness may become important to ensuring that religious interests are not inhibited. 880 SOUTER, J., dissenting stitutional. Each case involved a program in which benefits given to individuals on a religion-neutral basis ultimately were used by the individuals, in one way or another, to support religious institutions.6 In each, the fact that aid was distributed generally and on a neutral basis was a necessary condition for upholding the program at issue. Witters, supra, at 487-488; Mueller, supra, at 397-399; Zobrest, supra, at 10-11. But the significance of evenhandedness stopped there. We did not, in any of these cases, hold that satisfying the condition was sufficient, or dispositive. Even more importantly, we never held that evenhandedness might be sufficient to render direct aid to religion constitutional. Quite the contrary. Critical to our decisions in these cases was the fact that the aid was indirect; it reached religious institutions "only as a result of the genuinely independent and private choices of aid recipients," Witters, supra, at 487; see also Mueller, supra, at 399-400; Zobrest, supra, at 10-13. In noting and relying on this particular feature of each of the programs at issue, we in fact reaffirmed the core prohibition on direct funding of religious activities. See Zobrest, supra, at 12-13; Witters, supra, at 487; see also Mueller, supra, at 399-400. Thus, our holdings in these cases were little more than extensions of the unremarkable proposition that "a State may issue a paycheck to one of its employees, who may then donate all or part of that paycheck to a religious institution, all without constitutional barrier .... " Witters, supra, at 486-487. Such "attenuated financial benefit[s], ultimately controlled by the private choices of indi- 6 In Zobrest, a deaf student sought to have an interpreter, provided under a state Act aiding individuals with disabilities, accompany him to a Roman Catholic high school. In Witters, a blind student sought to use aid, provided under a state program for assistance to handicapped persons, to attend a private Christian college. In Mueller, parents sought to take a tax deduction, available for parents of both public and nonpublic schoolchildren, for certain expenses incurred in connection with providing education for their children in private religious schools. 881 vidual[s]," we have found, are simply not within the contemplation of the Establishment Clause's broad prohibition. Mueller, supra, at 400; see also Witters, supra, at 493 (opinion of O'CONNOR, J.).7 7 Walz v. Tax Comm'n of City of New York, 397 U. S. 664 (1970), is yet another example of a case in which the Court treated the general availability of a government benefit as a significant condition defining compliance with the Establishment Clause, but did not deem that condition sufficient. In upholding state property tax exemptions given to religious organizations in Walz, we noted that the law at issue was applicable to "a broad class of property owned by nonprofit [and] quasi-public corporations," id., at 673, but did not rest on that factor alone. Critical to our decision was the central principle that direct funding of religious activities is prohibited under the Establishment Clause. "It is sufficient to note that for the men who wrote the Religion Clauses of the First Amendment the 'establishment' of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity." Id., at 668. We emphasized that the tax exemptions did not involve the expenditure of government funds in support of religious activities. "The grant of a tax exemption is not sponsorship since the government does not transfer part of its revenue to churches but simply abstains from demanding that the church support the state." Id., at 675. Moreover, we noted that in the property taxation context, "exemption[s] creat[e] only a minimal and remote involvement between church and state and far less than taxation of churches," and in operation "ten[d] to complement and reinforce the desired separation insulating" church and state, id., at 676; and that religious property tax exemptions have been in place for over 200 years without disruption to the interests represented by the Establishment Clause, id., at 676-680. JUSTICE THOMAS'S assertion, that "[a] tax exemption in many cases is economically and functionally indistinguishable from a direct monetary subsidy," ante, at 859 (concurring opinion) (footnote omitted), assumes that the "natural" or "correct" tax base is so self-evident that any provision excusing a person or institution from taxes to which others are subjected must be a departure from the natural tax base rather than part of the definition of the tax base itself. The equivalence (asserted by JUSTICE THOMAS, ibid.) between a direct money subsidy and the tax liability avoided by an institution (because it is part of the class of institutions that defines the relevant tax base by its exclusion) was tested and dispatched long ago by Professor Bittker in Churches, Taxes and the Constitution, 78 Yale L. J. 1285 (1969). JUSTICE THOMAS'S suggestion that my "reliance 882 SOUTER, J., dissenting Evenhandedness as one element of a permissibly attenuated benefit is, of course, a far cry from evenhandedness as a sufficient condition of constitutionality for direct financial support of religious proselytization, and our cases have unsurprisingly repudiated any such attempt to cut the Establishment Clause down to a mere prohibition against unequal direct aid. See, e. g., Tilton v. Richardson, 403 U. S., at 682684 (striking portion of general aid program providing grants for construction of college and university facilities to the extent program made possible the use of funds for sectarian activities); 8 Wolman v. Walter, 433 U. S., at 252-255 (striking funding of field trips for nonpublic school students, such as are "provided to public school students in the district," because of unacceptable danger that state funds would be used to foster religion). And nowhere has the Court's adherence to the preeminence of the no-direct-funding principle over the principle of evenhandedness been as clear as in Bowen v. Kendrick, 487 U. S. 589 (1988). Bowen involved consideration of the Adolescent Family Life Act (AFLA), a federal grant program providing funds to institutions for counseling and educational services related to adolescent sexuality and pregnancy. At the time of the litigation, 141 grants had been awarded under the AFLA to on Bittker ... is misplaced in this context," ante, at 860, n. 5, is not on point. Even granting that JUSTICE THOMAS'S assertion of equivalence is reasonable, he cannot and does not deny the fact that the Court in Walz explicitly distinguished tax exemptions from direct money subsidies, 397 U. S., at 675, and rested its decision on that distinction. If JUSTICE THOMAS'S assertion of equivalence should prevail then the Walz Court necessarily was wrong about a distinction critical to its holding. JUSTICE THOMAS can hardly use Walz coherently for support after removing the basis on which it relies. 8 Although the main opinion in Tilton was a plurality, the entire Court was unanimous on this point. See 403 U. S., at 682-684 (plurality opinion); id., at 692 (Douglas, J., joined by Black and Marshall, JJ., concurring in part and dissenting in part); Lemon v. Kurtzman, 403 U. S. 602 , 659-661 (1971) (opinion of Brennan, J.); id., at 665, n. 1 (opinion of White, J.). 883 a broad array of both secular and religiously affiliated institutions. Id., at 597. In an Establishment Clause challenge to the Act brought by taxpayers and other interested parties, the District Court resolved the case on a pretrial motion for summary judgment, holding the AFLA program unconstitutional both on its face and also insofar as religious institutions were involved in receiving grants under the Act. When this Court reversed on the issue of facial constitutionality under the Establishment Clause, id., at 602-618, we said that there was "no intimation in the statute that at some point, or for some grantees, religious uses are permitted." Id., at 614. On the contrary, after looking at the legislative history and applicable regulations, we found safeguards adequate to ensure that grants would not be "used by ... grantees in such a way as to advance religion." Id., at 615. With respect to the claim that the program was unconstitutional as applied, we remanded the case to the District Court "for consideration of the evidence presented by appellees insofar as it sheds light on the manner in which the statute is presently being administered." Id., at 621. Specifically, we told the District Court, on remand, to "consider ... whether in particular cases AFLA aid has been used to fund 'specifically religious activit[ies] in an otherwise substantially secular setting.''' Ibid., quoting Hunt v. McNair, 413 U. S., at 743. In giving additional guidance to the District Court, we suggested that application of the Act would be unconstitutional if it turned out that aid recipients were using materials "that have an explicitly religious content or are designed to inculcate the views of a particular religious faith." Bowen, 487 U. S., at 621. At no point in our opinion did we suggest that the breadth of potential recipients, or distribution on an evenhanded basis, could have justified the use of federal funds for religious activities, a position that would have made no sense after we had pegged the Act's facial constitutionality to our conclusion that advancement of religion was not inevitable. JUSTICE O'CONNOR'S separate 884 SOUTER, J., dissenting opinion in the case underscored just this point: "I fully agree ... that '[p]ublic funds may not be used to endorse the religious message.' [487 U. S.,] at 642 [(Blackmun, J., dissenting)] .... [A]ny use of public funds to promote religious doctrines violates the Establishment Clause." Id., at 622-623 (concurring opinion) (emphasis in original). Bowen was no sport; its pedigree was the line of Everson v. Board of Ed., 330 U. S., at 16-18, Board of Ed. v. Allen, 392 U. S., at 243-249, Tilton v. Richardson, supra, at 678 682, Hunt v. McNair, supra, at 742-745, and Roemer v. Board of Public Works of Md., 426 U. S., at 759-761. Each of these cases involved a general aid program that provided benefits to a broad array of secular and sectarian institutions on an evenhanded basis, but in none of them was that fact dispositive. The plurality opinion in Roemer made this point exactly: "The Court has taken the view that a secular purpose and a facial neutrality may not be enough, if in fact the State is lending direct support to a religious activity. The State may not, for example, pay for what is actually a religious education, even though it purports to be paying for a secular one, and even though it makes its aid available to secular and religious institutions alike." 426 U. S., at 747 (opinion of Blackmun, J.). Instead, the central enquiry in each of these general aid cases, as in Bowen, was whether secular activities could be separated from the sectarian ones sufficiently to ensure that aid would flow to the secular alone. Witters, Mueller, and Zobrest expressly preserve the standard thus exhibited so often. Each of these cases explicitly distinguished the indirect aid in issue from contrasting examples in the line of cases striking down direct aid, and each thereby expressly preserved the core constitutional principle that direct aid to religion is impermissible. See Zobrest, 509 U. S., at 11-13 (distinguishing Meek v. Pittenger, 421 U. S. 349 (1975), and School Dist. v. Ball, 473 U. S. 373 (1985), and noting that" '[t]he State may not grant aid to a 885 religious school, whether cash or in kind, where the effect of the aid is "that of a direct subsidy to the religious school"''') (quoting Witters, 474 U. S., at 487); see also ibid.; Mueller, 463 U. S., at 399. It appears that the University perfectly understood the primacy of the no-direct- funding rule over the evenhandedness principle when it drew the line short of funding "an[y] activity which primarily promotes or manifests a particular belief(s) in or about a deity or an ultimate reality." 9 App. to Pet. for Cert. 66a. 9 Congress apparently also reads our cases as the University did, for it routinely excludes religious activities from general funding programs. See, e. g., 20 U. S. C. § 1062(b) (federal grant program for institutions of higher education; "[n]o grant may be made under this chapter for any educational program, activity, or service related to sectarian instruction or religious worship, or provided by a school or department of divinity"); 20 U. S. C. § 1069c (certain grants to higher education institutions "may not be used ... for a school or department of divinity or any religious worship or sectarian activity ... "); 20 u. S. C. § 1132c-3(c) (1988 ed., Supp. V) (federal assistance for renovation of certain academic facilities; "[n]o loan may be made under this part for any educational program, activity or service related to sectarian instruction or religious worship or provided by a school or department of divinity or to an institution in which a substantial portion of its functions is subsumed in a religious mission"); 20 U. S. C. § 1132i(c) (grant program for educational facilities; "no project assisted with funds under this subchapter shall ever be used for religious worship or a sectarian activity or for a school or department of divinity"); 20 U. S. C. § 1213d ("No grant may be made under this chapter for any educational program, activity, or service related to sectarian instruction or religious worship, or provided by a school or department of divinity"); 25 U. S. C. § 3306(a) (1988 ed., Supp. V) (funding for Indian higher education programs; "[n]one of the funds made available under this subchapter may be used for study at any school or department of divinity or for any religious worship or sectarian activity"); 29 U. S. C. § 776(g) (grants for projects and activities for rehabilitation of handicapped persons; "[n]o funds provided under this subchapter may be used to assist in the construction of any facility which is or will be used for religious worship or any sectarian activity"); 42 U. S. C. § 3027(a)(14)(A)(iv) (1988 ed. and Supp. V) (requiring States seeking federal aid for construction of centers for the elderly to submit plans providing assurances that "the facilit[ies] will not be used and [are] not intended to be used for sectarian instruction or as ... place[s] for religious worship"); 42 U. S. C. § 5001(a)(2) (1988 ed., 886 SOUTER, J., dissenting C Since conformity with the marginal or limiting principle of evenhandedness is insufficient of itself to demonstrate the constitutionality of providing a government benefit that reaches religion, the Court must identify some further element in the funding scheme that does demonstrate its permissibility. For one reason or another, the Court's chosen element appears to be the fact that under the University's Guidelines, funds are sent to the printer chosen by Wide Awake, rather than to Wide Awake itself. Ante, at 842-844. 1 If the Court's suggestion is that this feature of the funding program brings this case into line with Witters, Mueller, and Zobrest (discussed supra, at 879-881), the Court has misread those cases, which turned on the fact that the choice to benefit religion was made by a nonreligious third party standing between the government and a religious institution. See Witters, supra, at 487; see also Mueller, supra, at 399-400; Zobrest, supra, at 8-13. Here there is no thirdparty standing between the government and the ultimate religious beneficiary to break the circuit by its independent discretion to put state money to religious use. The printer, of course, has no option to take the money and use it to print a secular journal instead of Wide Awake. It only gets the money because of its contract to print a message of religious evangelism at the direction of Wide Awake, and it will receive payment only for doing precisely that. The formalism of distinguishing between payment to Wide Awake so it can pay an approved bill and payment of the approved bill itself cannot be the basis of a decision of constitutional law. If Supp. V) (federal grants to support volunteer projects for the elderly, but not including "projects involving the construction, operation, or maintenance of so much of any facility used or to be used for sectarian instruction or as a place for religious worship"); 42 U. S. C. § 9858k(a) (1988 ed., Supp. V) (no child care and development block grants "shall be expended for any sectarian purpose or activity, including sectarian worship or instruction"). 887 this indeed were a critical distinction, the Constitution would permit a State to pay all the bills of any religious institution; 10 in fact, despite the Court's purported adherence to the no-direct-funding principle, the State could simply hand out credit cards to religious institutions and honor the monthly statements (so long as someone could devise an evenhanded umbrella to cover the whole scheme). Witters and the other cases cannot be distinguished out of existence this way. 2 It is more probable, however, that the Court's reference to the printer goes to a different attempt to justify the payment. On this purported justification, the payment to the printer is significant only as the last step in an argument resting on the assumption that a public university may give a religious group the use of any of its equipment or facilities so long as secular groups are likewise eligible. The Court starts with the cases of Widmar v. Vincent, 454 U. S. 263 (1981), Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226 (1990), and Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993), in which religious groups were held to be entitled to access for speaking in government buildings open generally for that purpose. The Court reasons that the availability of a forum has economic value (the government built and maintained the building, while the speakers saved the rent for a hall); and that economically there is no difference be- 10 The Court acknowledges that "if the State pays a church's bills it is subsidizing it," and concedes that "we must guard against this abuse." Ante, at 844. These concerns are not present here, the Court contends, because Wide Awake "is not a religious institution, at least in the usual sense of that term as used in our case law." Ibid. The Court's concession suggests that its distinction between paying a religious institution and paying a religious institution's bills is not really significant. But if the Court is relying on its characterization of Wide Awake as not a religious institution, "at least in the usual sense," the Court could presumably stop right there. 888 SOUTER, J., dissenting tween the University's provision of the value of the room and the value, say, of the University's printing equipment; and that therefore the University must be able to provide the use of the latter. Since it may do that, the argument goes, it would be unduly formalistic to draw the line at paying for an outside printer, who simply does what the magazine's publishers could have done with the University's own printing equipment. Ante, at 843-844. The argument is as unsound as it is simple, and the first of its troubles emerges from an examination of the cases relied upon to support it. The common factual thread running through Widmar, Mergens, and Lamb's Chapel is that a governmental institution created a limited forum for the use of students in a school or college, or for the public at large, but sought to exclude speakers with religious messages. See generally Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S. 37 ,45-46 (1983) (forum analysis). In each case the restriction was struck down either as an impermissible attempt to regulate the content of speech in an open forum (as in Widmar and Mergens) or to suppress a particular religious viewpoint (as in Lamb's Chapel, see infra, at 897-898). In each case, to be sure, the religious speaker's use of the room passed muster as an incident of a plan to facilitate speech generally for a secular purpose, entailing neither secular entanglement with religion nor risk that the religious speech would be taken to be the speech of the government or that the government's endorsement of a religious message would be inferred. But each case drew ultimately on unexceptionable Speech Clause doctrine treating the evangelist, the Salvation Army, the millennialist, or the Hare Krishna like any other speaker in a public forum. It was the preservation of free speech on the model of the street corner that supplied the justification going beyond the requirement of evenhandedness. The Court's claim of support from these forum-access cases is ruled out by the very scope of their holdings. While 889 they do indeed allow a limited benefit to religious speakers, they rest on the recognition that all speakers are entitled to use the street corner (even though the State paves the roads and provides police protection to everyone on the street) and on the analogy between the public street corner and open classroom space. Thus, the Court found it significant that the classroom speakers would engage in traditional speech activities in these forums, too, even though the rooms (like street corners) require some incidental state spending to maintain them. The analogy breaks down entirely, however, if the cases are read more broadly than the Court wrote them, to cover more than forums for literal speaking. There is no traditional street corner printing provided by the government on equal terms to all comers, and the forum cases cannot be lifted to a higher plane of generalization without admitting that new economic benefits are being extended directly to religion in clear violation of the principle barring direct aid. The argument from economic equivalence thus breaks down on recognizing that the direct state aid it would support is not mitigated by the street corner analogy in the service of free speech. Absent that, the rule against direct aid stands as a bar to printing services as well as printers. 3 It must, indeed, be a recognition of just this point that leads the Court to take a third tack, not in coming up with yet a third attempt at justification within the rules of existing case law, but in recasting the scope of the Establishment Clause in ways that make further affirmative justification unnecessary. JUSTICE O'CONNOR makes a comprehensive analysis of the manner in which the activity fee is assessed and distributed. She concludes that the funding differs so sharply from religious funding out of governmental treasuries generally that it falls outside Establishment Clause's purview in the absence of a message of religious endorsement (which she finds not to be present). Ante, at 849-852 (con- 890 SOUTER, J., dissenting curring opinion). The opinion of the Court concludes more expansively that the activity fee is not a tax, and then proceeds to find the aid permissible on the legal assumption that the bar against direct aid applies only to aid derived from tax revenue. I have already indicated why it is fanciful to treat the fee as anything but a tax, supra, at 873-874, and n. 3; see also ante, at 840 (noting mandatory nature of the fee), and will not repeat the point again. The novelty of the assumption that the direct aid bar only extends to aid derived from taxation, however, requires some response. Although it was a taxation scheme that moved Madison to write in the first instance, the Court has never held that government resources obtained without taxation could be used for direct religious support, and our cases on direct government aid have frequently spoken in terms in no way limited to tax revenues. E. g., School Dist. v. Ball, 473 U. S., at 385 ("Although Establishment Clause jurisprudence is characterized by few absolutes, the Clause does absolutely prohibit government-financed or government-sponsored indoctrination into the beliefs of a particular religious faith"); Nyquist, 413 U. S., at 780 ("In the absence of an effective means of guaranteeing that the state aid derived from public funds will be used exclusively for secular, neutral, and nonideological purposes, it is clear from our cases that direct aid in whatever form is invalid"); id., at 772 ("Primary among those evils" against which the Establishment Clause guards "have been sponsorship, financial support, and active involvement of the sovereign in religious activity") (citations and internal quotation marks omitted); see also T. Curry, The First Freedoms 217 (1986) (At the time of the framing of the Bill of Rights, "[t]he belief that government assistance to religion, especially in the form of taxes, violated religious liberty had a long history"). Allowing nontax funds to be spent on religion would, in fact, fly in the face of clear principle. Leaving entirely aside the question whether public nontax revenues could ever be used to finance religion without violating the endorsement 891 test, see County of Allegheny v. American Civil Liberties Union, 492 U. S., at 593-594, any such use of them would ignore one of the dual objectives of the Establishment Clause, which was meant not only to protect individuals and their republics from the destructive consequences of mixing government and religion, but to protect religion from a corrupting dependence on support from the Government. Engel v. Vitale, 370 U. S. 421 , 431 (1962) (the Establishment Clause's "first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion"); Everson, 330 U. S., at 53 (Rutledge, J., dissenting) ("The great condition of religious liberty is that it be maintained free from sustenance, as also from other interferences, by the state. For when it comes to rest upon that secular foundation it vanishes with the resting") (citing Madison's Remonstrance "7, 8, reprinted in Everson, supra, at 63-72 (appendix to dissent of Rutledge, J.)); School Dist. of Abington Township v. Schempp, 374 U. S. 203 , 259 (1963) (Brennan, J., concurring) ("It is not only the nonbeliever who fears the injection of sectarian doctrines and controversies into the civil polity, but in as high degree it is the devout believer who fears the secularization of a creed which becomes too deeply involved with and dependent upon the government") (footnote omitted); Jefferson, A Bill for Establishing Religious Freedom, reprinted in 5 The Founder's Constitution, at 84-85. Since the corrupting effect of government support does not turn on whether the Government's own money comes from taxation or gift or the sale of public lands, the Establishment Clause could hardly relax its vigilance simply because tax revenue was not implicated. Accordingly, in the absence of a forthright disavowal, one can only assume that the Court does not mean to eliminate one half of the Establishment Clause's justification. D Nothing in the Court's opinion would lead me to end this enquiry into the application of the Establishment Clause any 892 SOUTER, J., dissenting differently from the way I began it. The Court is ordering an instrumentality of the State to support religious evangelism with direct funding. This is a flat violation of the Establishment Clause. II Given the dispositive effect of the Establishment Clause's bar to funding the magazine, there should be no need to decide whether in the absence of this bar the University would violate the Free Speech Clause by limiting funding as it has done. Widmar, 454 U. S., at 271 (university's compliance with its Establishment Clause obligations can be a compelling interest justifying speech restriction). But the Court's speech analysis may have independent application, and its flaws should not pass unremarked. The Court acknowledges, ante, at 832, the necessity for a university to make judgments based on the content of what may be said or taught when it decides, in the absence of unlimited amounts of money or other resources, how to honor its educational responsibilities. Widmar, supra, at 276; cf. Perry, 460 U. S., at 49 (subject matter and speaker identity distinctions "are inherent and inescapable in the process of limiting a nonpublic forum to activities compatible with the intended purpose of the property"). Nor does the Court generally question that in allocating public funds a state university enjoys spacious discretion. Cf. Rust v. Sullivan, 500 U. S. 173, 194 (1991) ("[W]hen the government appropriates public funds to establish a program it is entitled to define the limits of that program"); Regan v. Taxation with Representation of Wash., 461 U. S. 540 (1983) (upholding government subsidization decision partial to one class of speaker)Y Ac- 11 The Court draws a distinction between a State's use of public funds to advance its own speech and the State's funding of private speech, suggesting that authority to make content-related choices is at its most powerful when the State undertakes the former. Ante, at 833-835. I would not argue otherwise, see Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260 , 270-273 (1988), but I do suggest that this case reveals the difficulties that can be encountered in drawing this distinction. There is a communi- 893 cordingly, the Court recognizes that the relevant enquiry in this case is not merely whether the University bases its funding decisions on the subject matter of student speech; if there is an infirmity in the basis for the University's funding decision, it must be that the University is impermissibly distinguishing among competing viewpoints, ante, at 829-830, citing, inter alia, Perry, supra, at 46; see also Lamb's Chapel, 508 U. S., at 392-393 (subject-matter distinctions permissible in controlling access to limited public forum if reasonable and viewpoint neutral); Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788 , 806 (1985) (similar); Regan, supra, at 548.12 The issue whether a distinction is based on viewpoint does not turn simply on whether a government regulation happens to be applied to a speaker who seeks to advance a particular viewpoint; the issue, of course, turns on whether the burden on speech is explained by reference to viewpoint. See Cornelius, supra, at 806 ("[T]he government violates the First Amendment when it denies access to a speaker solely cative element inherent in the very act of funding itself, cf. Buckley v. Valeo, 424 U. S. 1 ,15-19 (1976) (per curiam), and although it is the student speakers who choose which particular messages to advance in the forum created by the University, the initial act of defining the boundaries of the forum is a decision attributable to the University, not the students. In any event, even assuming that private and state speech always may be separated by clean lines and that this case involves only the former, I believe the distinction is irrelevant here because, as is discussed infra, this case does not involve viewpoint discrimination. 12 I do not decide that all viewpoint discrimination in a public university's funding determinations would violate the Free Speech Clause. If, however, the determinations are made on the basis of a reasonable subject-matter distinction, but not on a viewpoint distinction, there is no violation. In a limited-access forum, a speech restriction must be "'reasonable in light of the purpose served by the forum'" as well as viewpoint neutral. E. g., Lamb's Chapel, 508 U. S., at 392-393, quoting Cornelius, 473 U. S., at 806. Because petitioners have not challenged the University's Guideline as unreasonable, I express no opinion on that or on the question whether the reasonableness criterion applies in speech funding cases in the same manner that it applies in limited-access forum cases. 894 SOUTER, J., dissenting to suppress the point of view he espouses on an otherwise includible subject"). As when deciding whether a speech restriction is content based or content neutral, "[t]he government's purpose is the controlling consideration." Ward v. Rock Against Racism, 491 U. S. 781 , 791 (1989); see also ibid. (content neutrality turns on, inter alia, whether a speech restriction is "justified without reference to the content of the regulated speech") (internal quotation marks and citations omitted) (emphasis deleted). So, for example, a city that enforces its excessive noise ordinance by pulling the plug on a rock band using a forbidden amplification system is not guilty of viewpoint discrimination simply because the band wishes to use that equipment to espouse antiracist views. Accord, Rock Against Racism, supra. Nor does a municipality's decision to prohibit political advertising on bus placards amount to viewpoint discrimination when in the course of applying this policy it denies space to a person who wishes to speak in favor of a particular political candidate. Accord, Lehman v. Shaker Heights, 418 U. S. 298 , 304 (1974) (plurality opinion). Accordingly, the prohibition on viewpoint discrimination serves that important purpose of the Free Speech Clause, which is to bar the government from skewing public debate. Other things being equal, viewpoint discrimination occurs when government allows one message while prohibiting the messages of those who can reasonably be expected to respond. See First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 , 785-786 (1978) ("Especially where ... the legislature's suppression of speech suggests an attempt to give one side of a debatable public question an advantage in expressing its views to the people, the First Amendment is plainly offended") (footnote omitted); Madison Joint School Dist. No. 8 v. Wisconsin Employment Relations Comm'n, 429 U. S. 167 ,175-176 (1976) ("To permit one side of a debatable public question to have a monopoly in expressing its views ... is the antithesis of constitutional guarantees") (footnote omitted); 895 United States v. Kokinda, 497 U. S. 720 , 736 (1990) (viewpoint discrimination involves an "inten[t] to discourage one viewpoint and advance another") (plurality opinion) (citations and internal quotation marks omitted). It is precisely this element of taking sides in a public debate that identifies viewpoint discrimination and makes it the most pernicious of all distinctions based on content. Thus, if government assists those espousing one point of view, neutrality requires it to assist those espousing opposing points of view, as well. There is no viewpoint discrimination in the University's application of its Guidelines to deny funding to Wide Awake. Under those Guidelines, a "religious activit[y]," which is not eligible for funding, App. to Pet. for Cert. 62a, is "an activity which primarily promotes or manifests a particular belief(s) in or about a deity or an ultimate reality," id., at 66a. It is clear that this is the basis on which Wide Awake Productions was denied funding. Letter from Student Council to Ronald W. Rosenberger, App. 54 ("In reviewing the request by Wide Awake Productions, the Appropriations Committee determined your organization's request could not be funded as it is a religious activity"). The discussion of Wide Awake's content, supra, at 865-868, shows beyond any question that it "primarily promotes or manifests a particular belief(s) in or about a deity ... ," in the very specific sense that its manifest function is to call students to repentance, to commitment to Jesus Christ, and to particular moral action because of its Christian character. If the Guidelines were written or applied so as to limit only such Christian advocacy and no other evangelical efforts that might compete with it, the discrimination would be based on viewpoint. But that is not what the regulation authorizes; it applies to Muslim and Jewish and Buddhist advocacy as well as to Christian. And since it limits funding to activities promoting or manifesting a particular belief not only "in" but "about" a deity or ultimate reality, it applies to agnostics and atheists as well as it does to deists and theists 896 SOUTER, J., dissenting (as the University maintained at oral argument, Tr. of Oral Arg. 18-19, and as the Court recognizes, see ante, at 836837). The Guidelines, and their application to Wide Awake, thus do not skew debate by funding one position but not its competitors. As understood by their application to Wide Awake, they simply deny funding for hortatory speech that "primarily promotes or manifests" any view on the merits of religion; they deny funding for the entire subject matter of religious apologetics. The Court, of course, reads the Guidelines differently, but while I believe the Court is wrong in construing their breadth, the important point is that even on the Court's own construction the Guidelines impose no viewpoint discrimination. In attempting to demonstrate the potentially chilling effect such funding restrictions might have on learning in our Nation's universities, the Court describes the Guidelines as "a sweeping restriction on student thought and student inquiry," disentitling a vast array of topics to funding. Ante, at 836. As the Court reads the Guidelines to exclude "any writing that is explicable as resting upon a premise which presupposes the existence of a deity or ultimate reality," ibid., as well as "those student journalistic efforts which primarily manifest or promote a belief that there is no deity and no ultimate reality," the Court concludes that the major works of writers from Descartes to Sartre would be barred from the funding forum, ante, at 837. The Court goes so far as to suggest that the Guidelines, properly interpreted, tolerate nothing much more than essays on "making pasta or peanut butter cookies." Ibid. Now, the regulation is not so categorically broad as the Court protests. The Court reads the word "primarily" ("primarily promotes or manifests a particular belief(s) in or about a deity or an ultimate reality") right out of the Guidelines, whereas it is obviously crucial in distinguishing between works characterized by the evangelism of Wide Awake and writing that merely happens to express views that a given religion might approve, or simply descriptive 897 writing informing a reader about the position of a given religion. But, as I said, that is not the important point. Even if the Court were indeed correct about the funding restriction's categorical breadth, the stringency of the restriction would most certainly not work any impermissible viewpoint discrimination under any prior understanding of that species of content discrimination. If a university wished to fund no speech beyond the subjects of pasta and cookie preparation, it surely would not be discriminating on the basis of someone's viewpoint, at least absent some controversial claim that pasta and cookies did not exist. The upshot would be an instructional universe without higher education, but not a universe where one viewpoint was enriched above its competitors. The Guidelines are thus substantially different from the access restriction considered in Lamb's Chapel, the case upon which the Court heavily relies in finding a viewpoint distinction here, ante, at 830-832. Lamb's Chapel addressed a school board's regulation prohibiting the afterhours use of school premises "by any group for religious purposes," even though the forum otherwise was open for a variety of social, civic, and recreational purposes. 508 U. S., at 387 (citation and internal quotation marks omitted). "Religious" was understood to refer to the viewpoint of a believer, and the regulation did not purport to deny access to any speaker wishing to express a nonreligious or expressly antireligious point of view on any subject, see ibid. ("The issue in this case is whether ... it violates the Free Speech Clause of the First Amendment ... to deny a church access to school premises to exhibit for public viewing and for assertedly religious purposes, a film series dealing with family and child-rearing issues"); id., at 394, citing May v. EvansvilleVanderburgh School Corp., 787 F.2d 1105 , 1114 (CA7 1986).13 13 See also Tr. of Oral Arg. in Lamb's Chapel v. Center Moriches Union Free School Dist., O. T. 1992, No. 91-2024, where counsel for the school district charged with enforcing the restriction unequivocally admitted that anyone with an atheistic or antireligious message would be permitted to 898 SOUTER, J., dissenting With this understanding, it was unremarkable that in Lamb's Chapel we unanimously determined that the access restriction, as applied to a speaker wishing to discuss family values from a Christian perspective, impermissibly distinguished between speakers on the basis of viewpoint. See Lamb's Chapel, supra, at 393-394 (considering as-applied challenge only). Equally obvious is the distinction between that case and this one, where the regulation is being applied, not to deny funding for those who discuss issues in general from a religious viewpoint, but to those engaged in promoting or opposing religious conversion and religious observances as such. If this amounts to viewpoint discrimination, the Court has all but eviscerated the line between viewpoint and content. To put the point another way, the Court's decision equating a categorical exclusion of both sides of the religious debate with viewpoint discrimination suggests the Court has concluded that primarily religious and antireligious speech, grouped together, always provides an opposing (and not merely a related) viewpoint to any speech about any secular topic. Thus, the Court's reasoning requires a university that funds private publications about any primarily nonreli- use school property under the rules of the forum. Id., at 47,57-58. The complete exchange during the oral argument in Lamb's Chapel went as follows: "QUESTION: But do I understand your statement you made earlier that supposing you had a communist group that wanted to address the subject of family values and they thought there was a value in not having children waste their time going to Sunday school or church and therefore they had a point of view that was definitely antireligious, they would be permitted, under your policy, to discuss family values in that context? "[COUNSEL]: Yes. Yes, Your Honor, that's correct. "QUESTION: Counsel, in your earlier discussions with [the Court] you indicated that communists would be able to give their perspective on family. I-I assume from that that atheists would be able to give theirs under your rules. "[COUNSEL]: Yes, Your Honor." 899 gious topic also to fund publications primarily espousing adherence to or rejection of religion. But a university's decision to fund a magazine about racism, and not to fund publications aimed at urging repentance before God does not skew the debate either about racism or the desirability of religious conversion. The Court's contrary holding amounts to a significant reformulation of our viewpoint discrimination precedents and will significantly expand access to limitedaccess forums. See Greer v. Spock, 424 U. S. 828 (1976) (upholding regulation prohibiting political speeches on military base); Cornelius, 473 U. S., at 812 (exclusion from fundraising drive of political activity or advocacy groups is facially viewpoint neutral despite inclusion of charitable, health, and welfare agencies); Perry, 460 U. S., at 49-50, and n. 9 (ability of teachers' bargaining representative to use internal school mail system does not require that access be provided to "any other citizen's group or community organization with a message for school personnel"); Lehman, 418 U. S., at 304 (plurality opinion) (exclusion of political messages from forum permissible despite ability of nonpolitical speakers to use the forum). III Since I cannot see the future I cannot tell whether today's decision portends much more than making a shambles out of student activity fees in public colleges. Still, myapprehension is whetted by Chief Justice Burger's warning in Lemon v. Kurtzman, 403 U. S. 602 , 624 (1971): "in constitutional adjudication some steps, which when taken were thought to approach 'the verge,' have become the platform for yet further steps. A certain momentum develops in constitutional theory and it can be a 'downhill thrust' easily set in motion but difficult to retard or stop." I respectfully dissent.

The University of Virginia denied funding to a student newspaper, Wide Awake, because its content primarily promoted a particular belief about a deity, which was prohibited by the university's guidelines for its Student Activities Fund (SAF). The Supreme Court held that this denial violated the students' right to free speech, as it constituted viewpoint discrimination, treating speech differently due to the speaker's ideology or perspective. The Court distinguished between content discrimination, which may be permissible in a limited public forum, and viewpoint discrimination, which is presumed impermissible. The University's justification for the denial, to comply with the Establishment Clause, was not sufficient to override the students' free speech rights.

Religion

Locke v. Davey

https://supreme.justia.com/cases/federal/us/540/712/

OPINION OF THE COURT LOCKE V. DAVEY 540 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-1315 GARY LOCKE, GOVERNOR OF WASHINGTON, et al., PETITIONERS v. JOSHUA DAVEY on writ of certiorari to the united states court of appeals for the ninth circuit [February 25, 2004]    Chief Justice Rehnquist delivered the opinion of the Court.    The State of Washington established the Promise Scholarship Program to assist academically gifted students with postsecondary education expenses. In accordance with the State Constitution, students may not use the scholarship at an institution where they are pursuing a degree in devotional theology. We hold that such an exclusion from an otherwise inclusive aid program does not violate the Free Exercise Clause of the First Amendment.    The Washington State Legislature found that “[s]tudents who work hard … and successfully complete high school with high academic marks may not have the financial ability to attend college because they cannot obtain financial aid or the financial aid is insufficient.” Wash. Rev. Code §28B.119.005 (Supp. 2004). In 1999, to assist these high-achieving students, the legislature created the Promise Scholarship Program, which provides a scholarship, renewable for one year, to eligible students for postsecondary education expenses. Students may spend their funds on any education-related expense, including room and board. The scholarships are funded through the State’s general fund, and their amount varies each year depending on the annual appropriation, which is evenly prorated among the eligible students. Wash. Admin. Code §250–80–050(2) (2003). The scholarship was worth $1,125 for academic year 1999–2000 and $1,542 for 2000–2001.    To be eligible for the scholarship, a student must meet academic, income, and enrollment requirements. A student must graduate from a Washington public or private high school and either graduate in the top 15% of his graduating class, or attain on the first attempt a cumulative score of 1,200 or better on the Scholastic Assessment Test I or a score of 27 or better on the American College Test. §§250–80–020(12)(a)—(d). The student’s family income must be less than 135% of the State’s median. §250–80–020(12)(e). Finally, the student must enroll “at least half time in an eligible postsecondary institution in the state of Washington,” and may not pursue a degree in theology at that institution while receiving the scholarship. §§250–80–020(12)(f)—(g); see also Wash. Rev. Code §28B.10.814 (1997) (“No aid shall be awarded to any student who is pursuing a degree in theology”). Private institutions, including those religiously affiliated, qualify as “eligible postsecondary institution[s]” if they are accredited by a nationally recognized accrediting body. See Wash. Admin. Code §250–80–020(13). A “degree in theology” is not defined in the statute, but, as both parties concede, the statute simply codifies the State’s constitutional prohibition on providing funds to students to pursue degrees that are “devotional in nature or designed to induce religious faith.” Brief for Petitioners 6; Brief for Respondent 8; see also Wash. Const., Art. I, §11.    A student who applies for the scholarship and meets the academic and income requirements is notified that he is eligible for the scholarship if he meets the enrollment requirements. E.g. , App. 95. Once the student enrolls at an eligible institution, the institution must certify that the student is enrolled at least half time and that the student is not pursuing a degree in devotional theology. The institution, rather than the State, determines whether the student’s major is devotional. Id ., at 126, 131. If the student meets the enrollment requirements, the scholarship funds are sent to the institution for distribution to the student to pay for tuition or other educational expenses. See Wash. Admin. Code §250–80–060.    Respondent, Joshua Davey, was awarded a Promise Scholarship, and chose to attend Northwest College. Northwest is a private, Christian college affiliated with the Assemblies of God denomination, and is an eligible institution under the Promise Scholarship Program. Davey had “planned for many years to attend a Bible college and to prepare [himself] through that college training for a lifetime of ministry, specifically as a church pastor.” App. 40. To that end, when he enrolled in Northwest College, he decided to pursue a double major in pastoral ministries and business management/administration. Id. , at 43. There is no dispute that the pastoral ministries degree is devotional and therefore excluded under the Promise Scholarship Program.    At the beginning of the 1999–2000 academic year, Davey met with Northwest’s director of financial aid. He learned for the first time at this meeting that he could not use his scholarship to pursue a devotional theology degree. He was informed that to receive the funds appropriated for his use, he must certify in writing that he was not pursuing such a degree at Northwest.[ Footnote 1 ] He refused to sign the form and did not receive any scholarship funds.    Davey then brought an action under 42 U. S. C. §1983 against various state officials (hereinafter State) in the District Court for the Western District of Washington to enjoin the State from refusing to award the scholarship solely because a student is pursuing a devotional theology degree, and for damages. He argued the denial of his scholarship based on his decision to pursue a theology degree violated, inter alia , the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment, as incorporated by the Fourteenth Amendment, and the Equal Protection Clause of the Fourteenth Amendment. After the District Court denied Davey’s request for a preliminary injunction, the parties filed cross-motions for summary judgment. The District Court rejected Davey’s constitutional claims and granted summary judgment in favor of the State.    A divided panel of the United States Court of Appeals for the Ninth Circuit reversed. 299 F. 3d 748 (2002). The court concluded that the State had singled out religion for unfavorable treatment and thus under our decision in Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993), the State’s exclusion of theology majors must be narrowly tailored to achieve a compelling state interest. 299 F. 3d, at 757–758. Finding that the State’s own antiestablishment concerns were not compelling, the court declared Washington’s Promise Scholarship Program unconstitutional. Id. , at 760. We granted certiorari, 538 U. S. 1031 (2003), and now reverse.    The Religion Clauses of the First Amendment provide: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These two Clauses, the Establishment Clause and the Free Exercise Clause, are frequently in tension. See Norwood v. Harrison, 413 U. S. 455 , 469 (1973) (citing Tilton v. Richardson, 403 U. S. 672 , 677 (1971)). Yet we have long said that “there is room for play in the joints” between them. Walz v. Tax Comm’n of City of New York, 397 U. S. 664 , 669 (1970). In other words, there are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause.    This case involves that “play in the joints” described above. Under our Establishment Clause precedent, the link between government funds and religious training is broken by the independent and private choice of recipients. See Zelman v. Simmons-Harris, 536 U. S. 639 , 652 (2002); Zobrest v. Catalina Foothills School Dist., 509 U. S. 1 , 13–14 (1993); Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481 , 487 (1986); Mueller v. Allen, 463 U. S. 388 , 399–400 (1983). As such, there is no doubt that the State could, consistent with the Federal Constitution, permit Promise Scholars to pursue a degree in devotional theology, see Witters , supra , at 489, and the State does not contend otherwise. The question before us, however, is whether Washington, pursuant to its own constitution,[ Footnote 2 ] which has been authoritatively interpreted as prohibiting even indirectly funding religious instruction that will prepare students for the ministry, see Witters v. State Comm’n for the Blind , 112 Wash. 2d 363, 369–370, 771 P. 2d 1119, 1122 (1989); cf. Witters v. State Comm’n for the Blind , 102 Wash. 2d 624, 629, 689 P. 2d 53, 56 (1984) (“It is not the role of the State to pay for the religious education of future ministers”), rev’d, 474 U. S. 481 , supra , can deny them such funding without violating the Free Exercise Clause.    Davey urges us to answer that question in the negative. He contends that under the rule we enunciated in Church of Lukumi Babalu Aye, Inc. v. Hialeah, supra, the program is presumptively unconstitutional because it is not facially neutral with respect to religion.[ Footnote 3 ] We reject his claim of presumptive unconstitutionality, however; to do otherwise would extend the Lukumi line of cases well beyond not only their facts but their reasoning. In Lukumi , the city of Hialeah made it a crime to engage in certain kinds of animal slaughter. We found that the law sought to suppress ritualistic animal sacrifices of the Santeria religion. 508 U. S., at 535. In the present case, the State’s disfavor of religion (if it can be called that) is of a far milder kind. It imposes neither criminal nor civil sanctions on any type of religious service or rite. It does not deny to ministers the right to participate in the political affairs of the community. See McDaniel v. Paty , 435 U. S. 618 (1978). And it does not require students to choose between their religious beliefs and receiving a government benefit.[ Footnote 4 ] See ibid.; Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U. S. 136 (1987); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 (1981); Sherbert v. Verner , 374 U. S. 398 (1963). The State has merely chosen not to fund a distinct category of instruction.    Justice Scalia argues, however, that generally available benefits are part of the “baseline against which burdens on religion are measured.” Post , at 2 (dissenting opinion). Because the Promise Scholarship Program funds training for all secular professions, Justice Scalia contends the State must also fund training for religious professions. See ibid . But training for religious professions and training for secular professions are not fungible. Training someone to lead a congregation is an essentially religious endeavor. Indeed, majoring in devotional theology is akin to a religious calling as well as an academic pursuit. See Calvary Bible Presbyterian Church v. Board of Regents , 72 Wash. 2d 912, 919, 436 P. 2d 189, 193 (1967) (holding public funds may not be expended for “that category of instruction that resembles worship and manifests a devotion to religion and religious principles in thought, feeling, belief, and conduct”); App. 40 (Davey stating his “religious beliefs [were] the only reason for [him] to seek a college degree”). And the subject of religion is one in which both the United States and state constitutions embody distinct views—in favor of free exercise, but opposed to establishment—that find no counterpart with respect to other callings or professions. That a State would deal differently with religious education for the ministry than with education for other callings is a product of these views, not evidence of hostility toward religion.    Even though the differently worded Washington Constitution draws a more stringent line than that drawn by the United States Constitution, the interest it seeks to further is scarcely novel. In fact, we can think of few areas in which a State’s antiestablishment interests come more into play.[ Footnote 5 ] Since the founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders, which was one of the hallmarks of an “established” religion.[ Footnote 6 ] See R. Butts, The American Tradition in Religion and Education 15–17, 19–20, 26–37 (1950); F. Lambert, The Founding Fathers and the Place of Religion in America 188 (2003) (“In defending their religious liberty against overreaching clergy, Americans in all regions found that Radical Whig ideas best framed their argument that state-supported clergy undermined liberty of conscience and should be opposed”); see also J. Madison, Memorial and Remonstrance Against Religious Assessments, reprinted in Everson v. Board of Ed. of Ewing, 330 U. S. 1 , 65, 68 (1947) (appendix to dissent of Rutledge, J.) (noting the dangers to civil liberties from supporting clergy with public funds).    Most States that sought to avoid an establishment of religion around the time of the founding placed in their constitutions formal prohibitions against using tax funds to support the ministry. E.g. , Ga. Const., Art. IV, §5 (1789), reprinted in 2 Federal and State Constitutions, Colonial Charters and Other Organic Laws 789 (F. Thorpe ed. 1909) (reprinted 1993) (“All persons shall have the free exercise of religion, without being obliged to contribute to the support of any religious profession but their own”); Pa. Const., Art. II (1776) in 5 id., at 3082 (“[N]o man ought or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any ministry, contrary to, or against, his own free will and consent”); N. J. Const., Art. XVIII (1776), in id., at 2597 (similar); Del. Const., Art. I, §1 (1792), in 1 id., at 568 (similar); Ky. Const., Art. XII, §3 (1792), in 3 id., at 1274 (similar); Vt. Const., Ch. I, Art. 3 (1793), in 6 id., at 3762 (similar); Tenn. Const., Art. XI, §3 (1796), in id., at 3422 (similar); Ohio Const., Art. VIII, §3 (1802), in 5 id., at 2910 (similar). The plain text of these constitutional provisions prohibited any tax dollars from supporting the clergy. We have found nothing to indicate, as Justice Scalia contends, post , at 3, that these provisions would not have applied so long as the State equally supported other professions or if the amount at stake was de minimis . That early state constitutions saw no problem in explicitly excluding only the ministry from receiving state dollars reinforces our conclusion that religious instruction is of a different ilk. [ Footnote 7 ]    Far from evincing the hostility toward religion which was manifest in Lukumi , we believe that the entirety of the Promise Scholarship Program goes a long way toward including religion in its benefits.[ Footnote 8 ] The program permits students to attend pervasively religious schools, so long as they are accredited. As Northwest advertises, its “concept of education is distinctly Christian in the evangelical sense.” App. 168. It prepares all of its students, “through instruction, through modeling, [and] through [its] classes, to use … the Bible as their guide, as the truth,” no matter their chosen profession. Id. , at 169. And under the Promise Scholarship Program’s current guidelines, students are still eligible to take devotional theology courses.[ Footnote 9 ] Davey notes all students at Northwest are required to take at least four devotional courses, “Exploring the Bible,” “Principles of Spiritual Development,” “Evangelism in the Christian Life,” and “Christian Doctrine,” Brief for Respondent 11, n. 5; see also App. 151, and some students may have additional religious requirements as part of their majors. Brief for Respondent 11, n. 5; see also App. 150–151.    In short, we find neither in the history or text of Article I, §11 of the Washington Constitution, nor in the operation of the Promise Scholarship Program, anything that suggests animus towards religion.[ Footnote 10 ] Given the historic and substantial state interest at issue, we therefore cannot conclude that the denial of funding for vocational religious instruction alone is inherently constitutionally suspect.    Without a presumption of unconstitutionality, Davey’s claim must fail. The State’s interest in not funding the pursuit of devotional degrees is substantial and the exclusion of such funding places a relatively minor burden on Promise Scholars. If any room exists between the two Religion Clauses, it must be here. We need not venture further into this difficult area in order to uphold the Promise Scholarship Program as currently operated by the State of Washington.    The judgment of the Court of Appeals is therefore Reversed. Footnote 1 The State does not require students to certify anything or sign any forms. App. 86, 89. Footnote 2 The relevant provision of the Washington Constitution, Art. I, §11, states:    “Religious Freedom. Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state. No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment.” Footnote 3 Davey, relying on Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U. S. 819 (1995), contends that the Promise Scholarship Program is an unconstitutional viewpoint restriction on speech. But the Promise Scholarship Program is not a forum for speech. The purpose of the Promise Scholarship Program is to assist students from low- and middle-income families with the cost of postsecondary education, not to “ ‘encourage a diversity of views from private speakers.’ ” United States v. American Library Assn., Inc., 539 U. S. 194 , 206 (2003) (plurality opinion) (quoting Rosenberger , supra , at 834). Our cases dealing with speech forums are simply inapplicable. See American Library Assn. , supra; Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788 , 805 (1985).    Davey also argues that the Equal Protection Clause protects against discrimination on the basis of religion. Because we hold, infra , at ___, that the program is not a violation of the Free Exercise Clause, however, we apply rational-basis scrutiny to his equal protection claims. Johnson v. Robison, 415 U. S. 361 , 375, n. 14 (1974); see also McDaniel v. Paty, 435 U. S. 618 (1978) (reviewing religious discrimination claim under the Free Exercise Clause). For the reasons stated herein, the program passes such review. Footnote 4 Promise Scholars may still use their scholarship to pursue a secular degree at a different institution from where they are studying devotional theology. Footnote 5 Justice Scalia notes that the State’s “philosophical preference” to protect individual conscience is potentially without limit, see post , at 5; however, the only interest at issue here is the State’s interest in not funding the religious training of clergy. Nothing in our opinion suggests that the State may justify any interest that its “philosophical preference” commands. Footnote 6 Perhaps the most famous example of public backlash is the defeat of “A Bill Establishing A Provision for Teachers of the Christian Religion” in the Virginia Legislature. The bill sought to assess a tax for “Christian teachers,” reprinted in Everson v. Board of Ed. of Ewing, 330 U. S. 1 , 74 (1947) (supplemental appendix to dissent of Rutledge, J.); see also Rosenberger, supra, at 853 (Thomas, J., concurring) (purpose of the bill was to support “clergy in the performance of their function of teaching religion”), and was rejected after a public outcry. In its stead, the “Virginia Bill for Religious Liberty,” which was originally written by Thomas Jefferson, was enacted. This bill guaranteed “that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever.” A Bill for Establishing Religious Freedom, reprinted in 2 Papers of Thomas Jefferson 546 (J. Boyd ed. 1950). Footnote 7 The amici contend that Washington’s Constitution was born of religious bigotry because it contains a so-called “Blaine Amendment,” which has been linked with anti-Catholicism. See Brief for United States as Amicus Curiae 23, n. 5; Brief for Becket Fund for Religious Liberty et al. as Amici Curiae ; see also Mitchell v. Helms, 530 U. S. 793 , 828 (2000) (plurality opinion). As the State notes and Davey does not dispute, however, the provision in question is not a Blaine Amendment. Tr. of Oral Arg. 5; see Reply Brief for Petitioners 6–7. The enabling Act of 1889, which authorized the drafting of the Washington Constitution, required the state constitution to include a provision “for the establishment and maintenance of systems of public schools, which shall be … free from sectarian control.” Act of Feb. 22, 1889, ch. 180, §4, ¶ ;Fourth, 25 Stat. 676. This provision was included in Article IX, §4, of the Washington Constitution (“All schools maintained and supported wholly or in part by the public funds shall be forever free from sectarian control or influence”), and is not at issue in this case. Neither Davey nor amici have established a credible connection between the Blaine Amendment and Article I, §11, the relevant constitutional provision. Accordingly, the Blaine Amendment’s history is simply not before us. Footnote 8 Washington has also been solicitous in ensuring that its constitution is not hostile towards religion, see State ex rel. Gallwey v. Grimm , 146 Wash. 2d 445, 470, 48 P. 3d 274, 286 (2002) (“[I]t was never the intention that our constitution should be construed in any manner indicating any hostility toward religion.” (citation omitted)), and at least in some respects, its constitution provides greater protection of religious liberties than the Free Exercise Clause, see First Covenant Church of Seattle v. Seattle , 120 Wash. 2d 203, 223–229, 840 P. 2d 174, 186–188 (1992) (rejecting standard in Employment Div., Dept. of Human Resources of Ore. v Smith, 494 U. S. 872 (1990), in favor of more protective rule); Munns v. Martin , 131 Wash. 2d 192, 201, 930 P. 2d 318, 322 (1997) (holding a city ordinance that imposed controls on demolition of historic structures inapplicable to the Catholic Church’s plan to demolish an old school building and build a new pastoral center because the facilities are intimately associated with the church’s religious mission). We have found nothing in Washington’s overall approach that indicates it “single[s] out” anyone “for special burdens on the basis of … religious callings” as Justice Scalia contends, post , at 6. Footnote 9 The State notes that it is an open question as to whether the Washington Constitution prohibits nontheology majors from taking devotional theology courses. At this point, however, the Program guidelines only exclude students who are pursuing a theology degree. Wash. Admin. Code §250–80–020(12)(g) (2003). Footnote 10 Although we have sometimes characterized the Establishment Clause as prohibiting the State from “disproving of a particular religion or religion in general,” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 , 532 (1993) (citing cases), for the reasons noted supra , the State has not impermissibly done so here. SCALIA, J., DISSENTING LOCKE V. DAVEY 540 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-1315 GARY LOCKE, GOVERNOR OF WASHINGTON, et al., PETITIONERS v. JOSHUA DAVEY on writ of certiorari to the united states court of appeals for the ninth circuit [February 25, 2004]    Justice Scalia, with whom Justice Thomas joins, dissenting.    In Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993), the majority opinion held that “[a] law burdening religious practice that is not neutral … must undergo the most rigorous of scrutiny,” id. , at 546, and that “the minimum requirement of neutrality is that a law not discriminate on its face,” id. , at 533. The concurrence of two Justices stated that “[w]hen a law discriminates against religion as such, … it automatically will fail strict scrutiny.” Id. , at 579 (Blackmun, J., joined by O’Connor, J., concurring in judgment). And the concurrence of a third Justice endorsed the “noncontroversial principle” that “formal neutrality” is a “necessary conditio[n] for free-exercise constitutionality.” Id. , at 563 (Souter, J., concurring in part and concurring in judgment). These opinions are irreconcilable with today’s decision, which sustains a public benefits program that facially discriminates against religion. I    We articulated the principle that governs this case more than 50 years ago in Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947): “New Jersey cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.” Id. , at 16 (emphasis deleted). When the State makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured; and when the State withholds that benefit from some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax.    That is precisely what the State of Washington has done here. It has created a generally available public benefit, whose receipt is conditioned only on academic performance, income, and attendance at an accredited school. It has then carved out a solitary course of study for exclusion: theology. Wash. Rev. Code §28B.119.010(8) (Supp. 2004); Wash. Admin. Code §250–80–020(12)(g) (2003). No field of study but religion is singled out for disfavor in this fashion. Davey is not asking for a special benefit to which others are not entitled. Cf. Lyng v. Northwest Indian Cemetery Protective Assn., 485 U. S. 439 , 453 (1988). He seeks only equal treatment—the right to direct his scholarship to his chosen course of study, a right every other Promise Scholar enjoys.    The Court’s reference to historical “popular uprisings against procuring taxpayer funds to support church leaders,” ante , at 8, is therefore quite misplaced. That history involved not the inclusion of religious ministers in public benefits programs like the one at issue here, but laws that singled them out for financial aid. For example, the Virginia bill at which Madison’s Remonstrance was directed provided: “[F]or the support of Christian teachers … [a] sum payable for tax on the property within this Commonwealth, is hereby assessed … .” A Bill Establishing a Provision for Teachers of the Christian Religion (1784), reprinted in Everson , supra , at 72. Laws supporting the clergy in other States operated in a similar fashion. See S. Cobb, The Rise of Religious Liberty in America 131, 169, 270, 295, 304, 386 (1902). One can concede the Framers’ hostility to funding the clergy specifically , but that says nothing about whether the clergy had to be excluded from benefits the State made available to all. No one would seriously contend, for example, that the Framers would have barred ministers from using public roads on their way to church.[ Footnote 1 ]    The Court does not dispute that the Free Exercise Clause places some constraints on public benefits programs, but finds none here, based on a principle of “ ‘play in the joints.’ ” Ante , at 4. I use the term “principle” loosely, for that is not so much a legal principle as a refusal to apply any principle when faced with competing constitutional directives. There is nothing anomalous about constitutional commands that abut. A municipality hiring public contractors may not discriminate against blacks or in favor of them; it cannot discriminate a little bit each way and then plead “play in the joints” when haled into court. If the Religion Clauses demand neutrality, we must enforce them, in hard cases as well as easy ones.    Even if “play in the joints” were a valid legal principle, surely it would apply only when it was a close call whether complying with one of the Religion Clauses would violate the other. But that is not the case here. It is not just that “the State could, consistent with the Federal Constitution, permit Promise Scholars to pursue a degree in devotional theology.” Ante , at 5. The establishment question would not even be close , as is evident from the fact that this Court’s decision in Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481 (1986), was unanimous. Perhaps some formally neutral public benefits programs are so gerrymandered and devoid of plausible secular purpose that they might raise specters of state aid to religion, but an evenhanded Promise Scholarship Program is not among them.    In any case, the State already has all the play in the joints it needs. There are any number of ways it could respect both its unusually sensitive concern for the conscience of its taxpayers and the Federal Free Exercise Clause. It could make the scholarships redeemable only at public universities (where it sets the curriculum), or only for select courses of study. Either option would replace a program that facially discriminates against religion with one that just happens not to subsidize it. The State could also simply abandon the scholarship program altogether. If that seems a dear price to pay for freedom of conscience, it is only because the State has defined that freedom so broadly that it would be offended by a program with such an incidental, indirect religious effect.    What is the nature of the State’s asserted interest here? It cannot be protecting the pocketbooks of its citizens; given the tiny fraction of Promise Scholars who would pursue theology degrees, the amount of any citizen’s tax bill at stake is de minimis . It cannot be preventing mistaken appearance of endorsement; where a State merely declines to penalize students for selecting a religious major, “[n]o reasonable observer is likely to draw … an inference that the State itself is endorsing a religious practice or belief.” Id. , at 493 (O’Connor, J., concurring in part and concurring in judgment). Nor can Washington’s exclusion be defended as a means of assuring that the State will neither favor nor disfavor Davey in his religious calling. Davey will throughout his life contribute to the public fisc through sales taxes on personal purchases, property taxes on his home, and so on; and nothing in the Court’s opinion turns on whether Davey winds up a net winner or loser in the State’s tax-and-spend scheme.    No, the interest to which the Court defers is not fear of a conceivable Establishment Clause violation, budget constraints, avoidance of endorsement, or substantive neutrality—none of these. It is a pure philosophical preference: the State’s opinion that it would violate taxpayers’ freedom of conscience not to discriminate against candidates for the ministry. This sort of protection of “freedom of conscience” has no logical limit and can justify the singling out of religion for exclusion from public programs in virtually any context. The Court never says whether it deems this interest compelling (the opinion is devoid of any mention of standard of review) but, self-evidently, it is not.[ Footnote 2 ] II    The Court makes no serious attempt to defend the program’s neutrality, and instead identifies two features thought to render its discrimination less offensive. The first is the lightness of Davey’s burden. The Court offers no authority for approving facial discrimination against religion simply because its material consequences are not severe. I might understand such a test if we were still in the business of reviewing facially neutral laws that merely happen to burden some individual’s religious exercise, but we are not. See Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 , 885 (1990). Discrimination on the face of a statute is something else. The indignity of being singled out for special burdens on the basis of one’s religious calling is so profound that the concrete harm produced can never be dismissed as insubstantial. The Court has not required proof of “substantial” concrete harm with other forms of discrimination, see, e.g. , Brown v. Board of Education, 347 U. S. 483 , 493–495 (1954); cf. Craig v. Boren, 429 U. S. 190 (1976), and it should not do so here.    Even if there were some threshold quantum-of-harm requirement, surely Davey has satisfied it. The First Amendment, after all, guarantees free exercise of religion, and when the State exacts a financial penalty of almost $3,000 for religious exercise—whether by tax or by forfeiture of an otherwise available benefit—religious practice is anything but free. The Court’s only response is that “Promise Scholars may still use their scholarship to pursue a secular degree at a different institution from where they are studying devotional theology.” Ante , at 7, n. 4. But part of what makes a Promise Scholarship attractive is that the recipient can apply it to his preferred course of study at his preferred accredited institution. That is part of the “benefit” the State confers. The Court distinguishes our precedents only by swapping the benefit to which Davey was actually entitled (a scholarship for his chosen course of study) with another, less valuable one (a scholarship for any course of study but his chosen one). On such reasoning, any facially discriminatory benefits program can be redeemed simply by redefining what it guarantees.    The other reason the Court thinks this particular facial discrimination less offensive is that the scholarship program was not motivated by animus toward religion. The Court does not explain why the legislature’s motive matters, and I fail to see why it should. If a State deprives a citizen of trial by jury or passes an ex post facto law, we do not pause to investigate whether it was actually trying to accomplish the evil the Constitution prohibits. It is sufficient that the citizen’s rights have been infringed. “[It does not] matter that a legislature consists entirely of the purehearted, if the law it enacts in fact singles out a religious practice for special burdens.” Lukumi , 508 U. S., at 559 (Scalia, J., concurring in part and concurring in judgment).    The Court has not approached other forms of discrimination this way. When we declared racial segregation unconstitutional, we did not ask whether the State had originally adopted the regime, not out of “animus” against blacks, but because of a well-meaning but misguided belief that the races would be better off apart. It was sufficient to note the current effect of segregation on racial minorities. See Brown , supra , at 493–495. Similarly, the Court does not excuse statutes that facially discriminate against women just because they are the vestigial product of a well-intentioned view of women’s appropriate social role. See, e.g. , United States v. Virginia, 518 U. S. 515 , 549–551 (1996); Adkins v. Children’s Hospital of D. C., 261 U. S. 525 , 552–553 (1923). We do sometimes look to legislative intent to smoke out more subtle instances of discrimination, but we do so as a supplement to the core guarantee of facially equal treatment, not as a replacement for it. See Hunt v. Cromartie, 526 U. S. 541 , 546 (1999).    There is no need to rely on analogies, however, because we have rejected the Court’s methodology in this very context. In McDaniel v. Paty, 435 U. S. 618 (1978), we considered a Tennessee statute that disqualified clergy from participation in the state constitutional convention. That statute, like the one here, was based upon a state constitutional provision—a clause in the 1796 Tennessee Constitution that disqualified clergy from sitting in the legislature. Id. , at 621, and n. 1 (plurality opinion). The State defended the statute as an attempt to be faithful to its constitutional separation of church and state, and we accepted that claimed benevolent purpose as bona fide. See id. , at 628. Nonetheless, because it did not justify facial discrimination against religion, we invalidated the restriction. Id. , at 629.[ Footnote 3 ]    It may be that Washington’s original purpose in excluding the clergy from public benefits was benign, and the same might be true of its purpose in maintaining the exclusion today. But those singled out for disfavor can be forgiven for suspecting more invidious forces at work. Let there be no doubt: This case is about discrimination against a religious minority. Most citizens of this country identify themselves as professing some religious belief, but the State’s policy poses no obstacle to practitioners of only a tepid, civic version of faith. Those the statutory exclusion actually affects—those whose belief in their religion is so strong that they dedicate their study and their lives to its ministry—are a far narrower set. One need not delve too far into modern popular culture to perceive a trendy disdain for deep religious conviction. In an era when the Court is so quick to come to the aid of other disfavored groups, see, e.g. , Romer v. Evans, 517 U. S. 620 , 635 (1996), its indifference in this case, which involves a form of discrimination to which the Constitution actually speaks, is exceptional. * * *    Today’s holding is limited to training the clergy, but its logic is readily extendible, and there are plenty of directions to go. What next? Will we deny priests and nuns their prescription-drug benefits on the ground that taxpayers’ freedom of conscience forbids medicating the clergy at public expense? This may seem fanciful, but recall that France has proposed banning religious attire from schools, invoking interests in secularism no less benign than those the Court embraces today. See Sciolino, Chirac Backs Law To Keep Signs of Faith Out of School, N. Y. Times, Dec. 18, 2003, p. A17. When the public’s freedom of conscience is invoked to justify denial of equal treatment, benevolent motives shade into indifference and ultimately into repression. Having accepted the justification in this case, the Court is less well equipped to fend it off in the future. I respectfully dissent. Footnote 1 Equally misplaced is the Court’s reliance on founding-era state constitutional provisions that prohibited the use of tax funds to support the ministry. Ante , at 9–10. There is no doubt what these provisions were directed against: measures of the sort discussed earlier in text, singling out the clergy for public support. See supra , at 2–3. The Court offers no historical support for the proposition that they were meant to exclude clergymen from general benefits available to all citizens. In choosing to interpret them in that fashion, the Court needlessly gives them a meaning that not only is contrary to our Religion Clause jurisprudence, but has no logical stopping-point short of the absurd. No State with such a constitutional provision has, so far as I know, ever prohibited the hiring of public employees who use their salary to conduct ministries, or excluded ministers from generally available disability or unemployment benefits. Since the Court cannot identify any instance in which these provisions were applied in such a discriminatory fashion, its appeal to their “plain text,” ante , at 9, adds nothing whatever to the “plain text” of Washington’s own Constitution. Footnote 2 The Court argues that those pursuing theology majors are not comparable to other Promise Scholars because “training for religious professions and training for secular professions are not fungible.” Ante , at 7. That may well be, but all it proves is that the State has a rational basis for treating religion differently. If that is all the Court requires, its holding is contrary not only to precedent, see supra , at 1, but to common sense. If religious discrimination required only a rational basis, the Free Exercise Clause would impose no constraints other than those the Constitution already imposes on all government action. The question is not whether theology majors are different, but whether the differences are substantial enough to justify a discriminatory financial penalty that the State inflicts on no other major. Plainly they are not.    Equally unpersuasive is the Court’s argument that the State may discriminate against theology majors in distributing public benefits because the Establishment Clause and its state counterparts are themselves discriminatory. See ante , at 7–8, 9–10. The Court’s premise is true at some level of abstraction—the Establishment Clause discriminates against religion by singling it out as the one thing a State may not establish. All this proves is that a State has a compelling interest in not committing actual Establishment Clause violations. Cf. Widmar v. Vincent, 454 U. S. 263 , 271 (1981). We have never inferred from this principle that a State has a constitutionally sufficient interest in discriminating against religion in whatever other context it pleases, so long as it claims some connection, however attenuated, to establishment concerns. Footnote 3 McDaniel had no opinion for the Court, but nothing in the separate opinions suggests disagreement over the issues relevant here. Cf. 435 U. S., at 636, n. 9 (Brennan, J., concurring in judgment) (noting dispute over statute’s purpose but deeming it irrelevant). 540 U. S. ____ (2004) LOCKE V. DAVEY 540 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-1315 GARY LOCKE, GOVERNOR OF WASHINGTON, et al., PETITIONERS v. JOSHUA DAVEY on writ of certiorari to the united states court of appeals for the ninth circuit [February 25, 2004]    Justice Thomas, dissenting.    Because the parties agree that a “degree in theology” means a degree that is “devotional in nature or designed to induce religious faith,” Brief for Petitioners 6; Brief for Respondent 8, I assume that this is so for purposes of deciding this case. With this understanding, I join Justice Scalia’s dissenting opinion. I write separately to note that, in my view, the study of theology does not necessarily implicate religious devotion or faith. The contested statute denies Promise Scholarships to students who pursue “a degree in theology.” See Wash. Admin. Code §250–80–020(12)(g) (2003) (defining an “ ‘eligible student,’ ” in part, as one who “[i]s not pursuing a degree in theology”); Wash. Rev. Code Ann. §28B.10.814 (West 1997) (“No aid shall be awarded to any student who is pursuing a degree in theology”). But the statute itself does not define “theology.” And the usual definition of the term “theology” is not limited to devotional studies. “Theology” is defined as “[t]he study of the nature of God and religious truth” and the “rational inquiry into religious questions.” American Heritage Dictionary 1794 (4th ed. 2000). See also Webster’s Ninth New Collegiate Dictionary 1223 (1991) (“the study of religious faith, practice, and experience” and “the study of God and his relation to the world”). These definitions include the study of theology from a secular perspective as well as from a religious one.    Assuming that the State denies Promise Scholarships only to students who pursue a degree in devotional theology, I believe that Justice Scalia’s application of our precedents is correct. Because neither party contests the validity of these precedents, I join Justice Scalia’s dissent.

The Supreme Court held that Washington state's exclusion of students pursuing a degree in devotional theology from its Promise Scholarship Program does not violate the Free Exercise Clause of the First Amendment. The Court found that the state has a compelling interest in not funding religious instruction and that the exclusion was narrowly tailored to achieve that interest.

Religion

McCreary County v. ACLU of Kentucky

https://supreme.justia.com/cases/federal/us/545/844/

OPINION OF THE COURT MCCREARY COUNTY V. AMERICAN CIVIL LIBERTIESUNION OF KY. 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-1693 McCREARY COUNTY, KENTUCKY, et al., PETI- TIONERS v. AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY et al. on writ of certiorari to the united states court of appeals for the sixth circuit [June 27, 2005]    Justice Souter delivered the opinion of the Court.    Executives of two counties posted a version of the Ten Commandments on the walls of their courthouses. After suits were filed charging violations of the Establishment Clause, the legislative body of each county adopted a resolution calling for a more extensive exhibit meant to show that the Commandments are Kentucky’s “precedent legal code,” Def. Exh. 1 in Memorandum in Support of Defendants’ Motion to Dismiss in Civ. A. No. 99–507, p. 1 (ED Ky.) (hereinafter Def. Exh. 1). The result in each instance was a modified display of the Commandments surrounded by texts containing religious references as their sole common element. After changing counsel, the counties revised the exhibits again by eliminating some documents, expanding the text set out in another, and adding some new ones. The issues are whether a determination of the counties’ purpose is a sound basis for ruling on the Establishment Clause complaints, and whether evaluation of the counties’ claim of secular purpose for the ultimate displays may take their evolution into account. We hold that the counties’ manifest objective may be dispositive of the constitutional enquiry, and that the development of the presentation should be considered when determining its purpose. I In the summer of 1999, petitioners McCreary County and Pulaski County, Kentucky (hereinafter Counties), put up in their respective courthouses large, gold-framed copies of an abridged text of the King James version of the Ten Commandments, including a citation to the Book of Exodus.[ Footnote 1 ] In McCreary County, the placement of the Commandments responded to an order of the county legislative body requiring “the display [to] be posted in ‘a very high traffic area’ of the courthouse.” 96 F. Supp. 2d 679, 684 (ED Ky. 2000). In Pulaski County, amidst reported controversy over the propriety of the display, the Commandments were hung in a ceremony presided over by the county Judge-Executive, who called them “good rules to live by” and who recounted the story of an astronaut who became convinced “there must be a divine God” after viewing the Earth from the moon. Dodson, Commonwealth Journal, Jul. 25, 1999, p. A1, col. 2, in Memorandum in Support of Plaintiffs’ Motion for Preliminary Injunction in Civ. A. No. 99–509 (ED Ky.) (internal quotation marks omitted). The Judge-Executive was accompanied by the pastor of his church, who called the Commandments “a creed of ethics” and told the press after the ceremony that displaying the Commandments was “one of the greatest things the judge could have done to close out the millennium.” Id., at A2, col. 3 (internal quotation marks omitted). In both counties, this was the version of the Commandments posted: “Thou shalt have no other gods before me. “Thou shalt not make unto thee any graven images. “Thou shalt not take the name of the Lord thy God in vain. “Remember the sabbath day, to keep it holy. “Honor thy father and thy mother. “Thou shalt not kill. “Thou shalt not commit adultery. “Thou shalt not steal. “Thou shalt not bear false witness. “Thou shalt not covet. “Exodus 20:3–17.”[ Footnote 2 ]    Def. Exh. 9 in Memorandum in Support of Defendants’ Motion to Dismiss in Civ. A. No. 99–507 (ED Ky.) (hereinafter Def. Exh. 9). In each county, the hallway display was “readily visible to … county citizens who use the courthouse to conduct their civic business, to obtain or renew driver’s licenses and permits, to register cars, to pay local taxes, and to register to vote.” 96 F. Supp. 2d., at 684; American Civil Liberties Union of Kentucky v. Pulaski County, Kentucky, 96 F. Supp. 2d 691, 695 (ED Ky. 2000). In November 1999, respondents American Civil Liberties Union of Kentucky et al. sued the Counties in Federal District Court under Rev. Stat. §1979, 42 U. S. C. §1983, and sought a preliminary injunction against maintaining the displays, which the ACLU charged were violations of the prohibition of religious establishment included in the First Amendment of the Constitution.[ Footnote 3 ] Within a month, and before the District Court had responded to the request for injunction, the legislative body of each County authorized a second, expanded display, by nearly identical resolutions reciting that the Ten Commandments are “the precedent legal code upon which the civil and criminal codes of … Kentucky are founded,” and stating several grounds for taking that position: that “the Ten Commandments are codified in Kentucky’s civil and criminal laws”; that the Kentucky House of Representatives had in 1993 “voted unanimously … to adjourn … ‘in remembrance and honor of Jesus Christ, the Prince of Ethics’ ”; that the “County Judge and … magistrates agree with the arguments set out by Judge [Roy] Moore” in defense of his “display [of] the Ten Commandments in his courtroom”; and that the “Founding Father[s] [had an] explicit understanding of the duty of elected officials to publicly acknowledge God as the source of America’s strength and direction.” Def. Exh. 1, at 1–3, 6. As directed by the resolutions, the Counties expanded the displays of the Ten Commandments in their locations, presumably along with copies of the resolution, which instructed that it, too, be posted, id., at 9. In addition to the first display’s large framed copy of the edited King James version of the Commandments,[ Footnote 4 ] the second included eight other documents in smaller frames, each either having a religious theme or excerpted to highlight a religious element. The documents were the “endowed by their Creator” passage from the Declaration of Independence; the Preamble to the Constitution of Kentucky; the national motto, “In God We Trust”; a page from the Congressional Record of February 2, 1983, proclaiming the Year of the Bible and including a statement of the Ten Commandments; a proclamation by President Abraham Lincoln designating April 30, 1863, a National Day of Prayer and Humiliation; an excerpt from President Lincoln’s “Reply to Loyal Colored People of Baltimore upon Presentation of a Bible,” reading that “[t]he Bible is the best gift God has ever given to man”; a proclamation by President Reagan marking 1983 the Year of the Bible; and the Mayflower Compact. 96 F. Supp. 2d, at 684; 96 F. Supp. 2d, at 695–696. After argument, the District Court entered a preliminary injunction on May 5, 2000, ordering that the “display … be removed from [each] County Courthouse IMMEDIATELY” and that no county official “erect or cause to be erected similar displays.” 96 F. Supp. 2d, at 691; 96 F. Supp. 2d, at 702–703. The court’s analysis of the situation followed the three-part formulation first stated in Lemon v. Kurtzman, 403 U. S. 602 (1971). As to governmental purpose, it concluded that the original display “lack[ed] any secular purpose” because the Commandments “are a distinctly religious document, believed by many Christians and Jews to be the direct and revealed word of God.” 96 F. Supp. 2d, at 686; 96 F. Supp. 2d, at 698. Although the Counties had maintained that the original display was meant to be educational, “[t]he narrow scope of the display—a single religious text unaccompanied by any interpretation explaining its role as a foundational document—can hardly be said to present meaningfully the story of this country’s religious traditions.” 96 F. Supp. 2d, at 686–687; 96 F. Supp. 2d, at 698. The court found that the second version also “clearly lack[ed] a secular purpose” because the “Count[ies] narrowly tailored [their] selection of foundational documents to incorporate only those with specific references to Christianity.”[ Footnote 5 ] 96 F. Supp. 2d, at 687; 96 F. Supp. 2d, at 699. The Counties filed a notice of appeal from the preliminary injunction but voluntarily dismissed it after hiring new lawyers. They then installed another display in each courthouse, the third within a year. No new resolution authorized this one, nor did the Counties repeal the resolutions that preceded the second. The posting consists of nine framed documents of equal size, one of them setting out the Ten Commandments explicitly identified as the “King James Version” at Exodus 20:3–17, 145 F. Supp. 2d 845, 847 (ED Ky. 2001) and quoted at greater length than before: “Thou shalt have no other gods before me. “Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water underneath the earth: Thou shalt not bow down thyself to them, nor serve them: for I the LORD thy God am a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourth generation of them that hate me. “Thou shalt not take the name of the LORD thy God in vain: for the LORD will not hold him guiltless that taketh his name in vain. “Remember the sabbath day, to keep it holy. “Honour thy father and thy mother: that thy days may be long upon the land which the LORD thy God giveth thee. “Thou shalt not kill. “Thou shalt not commit adultery. “Thou shalt not steal. “Thou shalt not bear false witness against thy neighbour. “Thou shalt not covet thy neighbour’s house, thou shalt not covet th[y] neighbor’s wife, nor his manservant, nor his maidservant, nor his ox, nor his ass, nor anything that is th[y] neighbour’s.” App. to Pet. for Cert. 189a. Assembled with the Commandments are framed copies of the Magna Carta, the Declaration of Independence, the Bill of Rights, the lyrics of the Star Spangled Banner, the Mayflower Compact, the National Motto, the Preamble to the Kentucky Constitution, and a picture of Lady Justice. The collection is entitled “The Foundations of American Law and Government Display” and each document comes with a statement about its historical and legal significance. The comment on the Ten Commandments reads: “The Ten Commandments have profoundly influenced the formation of Western legal thought and the formation of our country. That influence is clearly seen in the Declaration of Independence, which declared that ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.’ The Ten Commandments provide the moral background of the Declaration of Independence and the foundation of our legal tradition.” Id., at 180a. The ACLU moved to supplement the preliminary injunction to enjoin the Counties’ third display,[ Footnote 6 ] and the Counties responded with several explanations for the new version, including desires “to demonstrate that the Ten Commandments were part of the foundation of American Law and Government” and “to educate the citizens of the county regarding some of the documents that played a significant role in the foundation of our system of law and government.” 145 F. Supp. 2d, at 848 (internal quotation marks omitted). The court, however, took the objective of proclaiming the Commandments’ foundational value as “a religious, rather than secular, purpose” under Stone v. Graham, 449 U. S. 39 (1980) (per curiam), 145 F. Supp. 2d, at 849, and found that the assertion that the Counties’ broader educational goals are secular “crumble[s] … upon an examination of the history of this litigation,” Ibid. In light of the Counties’ decision to post the Commandments by themselves in the first instance, contrary to Stone , and later to “accentuat[e]” the religious objective by surrounding the Commandments with “specific references to Christianity,” the District Court understood the Counties’ “clear” purpose as being to post the Commandments, not to educate.[ Footnote 7 ] 145 F. Supp. 2d, at 849–850 (internal quotation marks omitted). As requested, the trial court supplemented the injunction, and a divided panel of the Court of Appeals for the Sixth Circuit affirmed. The Circuit majority stressed that under Stone , displaying the Commandments bespeaks a religious object unless they are integrated with other material so as to carry “a secular message,” 354 F. 3d 438, 449 (2003). The majority judges saw no integration here because of a “lack of a demonstrated analytical or historical connection [between the Commandments and] the other documents.” Id., at 451. They noted in particular that the Counties offered no support for their claim that the Ten Commandments “provide[d] the moral backdrop” to the Declaration of Independence or otherwise “profoundly influenced” it. Ibid. (Internal quotation marks omitted). The majority found that the Counties’ purpose was religious, not educational, given the nature of the Commandments as “an active symbol of religion [stating] ‘the religious duties of believers,’ ” Id., at 455. The judges in the majority understood the identical displays to emphasize “a single religious influence, with no mention of any other religious or secular influences,” id., at 454, and they took the very history of the litigation as evidence of the Counties’ religious objective, id., at 457. Judge Ryan dissented on the basis of wide recognition that religion, and the Ten Commandments in particular, have played a foundational part in the evolution of American law and government; he saw no reason to gainsay the Counties’ claim of secular purposes. Id., at 472–473. The dissent denied that the prior displays should have any bearing on the constitutionality of the current one: a “history of unconstitutional displays can[not] be used as a sword to strike down an otherwise constitutional display.”[ Footnote 8 ] Id., at 478. We granted certiorari, 543 U. S. ___ (2004), and now affirm. II Twenty-five years ago in a case prompted by posting the Ten Commandments in Kentucky’s public schools, this Court recognized that the Commandments “are undeniably a sacred text in the Jewish and Christian faiths” and held that their display in public classrooms violated the First Amendment’s bar against establishment of religion. Stone, 449 U. S., at 41. Stone found a predominantly religious purpose in the government’s posting of the Commandments, given their prominence as “ ‘an instrument of religion,’ ” id., at 41, n. 3 (quoting School Dist. of Abington Township v. Schempp, 374 U. S. 203 , 224 (1963)). The Counties ask for a different approach here by arguing that official purpose is unknowable and the search for it inherently vain. In the alternative, the Counties would avoid the District Court’s conclusion by having us limit the scope of the purpose enquiry so severely that any trivial rationalization would suffice, under a standard oblivious to the history of religious government action like the progression of exhibits in this case. A Ever since Lemon v. Kurtzman summarized the three familiar considerations for evaluating Establishment Clause claims, looking to whether government action has “a secular legislative purpose” has been a common, albeit seldom dispositive, element of our cases. 403 U. S., at 612. Though we have found government action motivated by an illegitimate purpose only four times since Lemon ,[ Footnote 9 ] and “the secular purpose requirement alone may rarely be determinative … , it nevertheless serves an important function.”[ Footnote 10 ] Wallace v. Jaffree, 472 U. S. 38 , 75 (1985) (O’Connor, J., concurring in judgment). The touchstone for our analysis is the principle that the “First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.” Epperson v. Arkansas, 393 U. S. 97 , 104 (1968); Everson v. Board of Ed. of Ewing, 330 U. S. 1 , 15–16 (1947); Wallace v. Jaffree, supra , at 53. When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality, there being no neutrality when the government’s ostensible object is to take sides. Corporation of Presiding Bishop of Church of Jesus Christ of Latter&nbhyph;day Saints v. Amos, 483 U. S. 327 , 335 (1987) (“ Lemon ’s ‘purpose’ requirement aims at preventing [government] from abandoning neutrality and acting with the intent of promoting a particular point of view in religious matters”). Manifesting a purpose to favor one faith over another, or adherence to religion generally, clashes with the “understanding, reached … after decades of religious war, that liberty and social stability demand a religious tolerance that respects the religious views of all citizens … .” Zelman v. Simmons-Harris, 536 U. S. 639 , 718 (2002) (Breyer, J., dissenting). By showing a purpose to favor religion, the government “sends the … message to … nonadherents ‘that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members… .’ ” Santa Fe Independent School Dist. v. Doe, 530 U. S. 290 , 309–310 (2000) (quoting Lynch v. Donnelly, 465 U. S. 668 , 688 (1984) (O’Connor, J., concurring)). Indeed, the purpose apparent from government action can have an impact more significant than the result expressly decreed: when the government maintains Sunday closing laws, it advances religion only minimally because many working people would take the day as one of rest regardless, but if the government justified its decision with a stated desire for all Americans to honor Christ, the divisive thrust of the official action would be inescapable. This is the teaching of McGowan v. Maryland, 366 U. S. 420 (1961), which upheld Sunday closing statutes on practical, secular grounds after finding that the government had forsaken the religious purposes behind centuries-old predecessor laws. Id., at 449–451. B Despite the intuitive importance of official purpose to the realization of Establishment Clause values, the Counties ask us to abandon Lemon ’s purpose test, or at least to truncate any enquiry into purpose here. Their first argument is that the very consideration of purpose is deceptive: according to them, true “purpose” is unknowable, and its search merely an excuse for courts to act selectively and unpredictably in picking out evidence of subjective intent. The assertions are as seismic as they are unconvincing. Examination of purpose is a staple of statutory interpretation that makes up the daily fare of every appellate court in the country, e.g., General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581 , 600 (2004) (interpreting statute in light of its “text, structure, purpose, and history”), and governmental purpose is a key element of a good deal of constitutional doctrine, e.g. , Washington v. Davis, 426 U. S. 229 (1976) (discriminatory purpose required for Equal Protection violation); Hunt v. Washington State Apple Advertising Comm’n, 432 U. S. 333 , 352–353 (1977) (discriminatory purpose relevant to dormant Commerce Clause claim); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993) (discriminatory purpose raises level of scrutiny required by free exercise claim). With enquiries into purpose this common, if they were nothing but hunts for mares’ nests deflecting attention from bare judicial will, the whole notion of purpose in law would have dropped into disrepute long ago. But scrutinizing purpose does make practical sense, as in Establishment Clause analysis, where an understanding of official objective emerges from readily discoverable fact, without any judicial psychoanalysis of a drafter’s heart of hearts. Wallace v. Jaffree, supra, at 74 (O’Connor, J., concurring in judgment). The eyes that look to purpose belong to an “ ‘objective observer,’ ” one who takes account of the traditional external signs that show up in the “ ‘text, legislative history, and implementation of the statute,’ ” or comparable official act. Santa Fe Independent School Dist. v. Doe, supra, at 308 (quoting Wallace v. Jaffree , 472 U. S., at 73) (O’Connor, J., concurring in judgment)); see also Edwards v. Aguillard, 482 U. S. 578 , 594–595 (1987) (enquiry looks to “plain meaning of the statute’s words, enlightened by their context and the contemporaneous legislative history [and] the historical context of the statute, … and the specific sequence of events leading to [its] passage”). There is, then, nothing hinting at an unpredictable or disingenuous exercise when a court enquires into purpose after a claim is raised under the Establishment Clause. The cases with findings of a predominantly religious purpose point to the straightforward nature of the test. In Wallace , for example, we inferred purpose from a change of wording from an earlier statute to a later one, each dealing with prayer in schools. 472 U. S., at 58–60. And in Edwards , we relied on a statute’s text and the detailed public comments of its sponsor, when we sought the purpose of a state law requiring creationism to be taught alongside evolution. 482 U. S., at 586–588. In other cases, the government action itself bespoke the purpose, as in Abington , where the object of required Bible study in public schools was patently religious, 374 U. S., at 223–224; in Stone , the Court held that the “[p]osting of religious texts on the wall serve[d] no … educational function,” and found that if “the posted copies of the Ten Commandments [were] to have any effect at all, it [would] be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments.” 449 U. S., at 42. In each case, the government’s action was held unconstitutional only because openly available data supported a commonsense conclusion that a religious objective permeated the government’s action. Nor is there any indication that the enquiry is rigged in practice to finding a religious purpose dominant every time a case is filed. In the past, the test has not been fatal very often, presumably because government does not generally act unconstitutionally, with the predominant purpose of advancing religion. That said, one consequence of the corollary that Establishment Clause analysis does not look to the veiled psyche of government officers could be that in some of the cases in which establishment complaints failed, savvy officials had disguised their religious intent so cleverly that the objective observer just missed it. But that is no reason for great constitutional concern. If someone in the government hides religious motive so well that the “ ‘objective observer, acquainted with the text, legislative history, and implementation of the statute,’ ” Santa Fe Independent School Dist. v. Doe, 530 U. S., at 308 (quoting Wallace , supra , at 73) (O’Connor, J., concurring in judgment)), cannot see it, then without something more the government does not make a divisive announcement that in itself amounts to taking religious sides. A secret motive stirs up no strife and does nothing to make outsiders of nonadherents, and it suffices to wait and see whether such government action turns out to have (as it may even be likely to have) the illegitimate effect of advancing religion. C After declining the invitation to abandon concern with purpose wholesale, we also have to avoid the Counties’ alternative tack of trivializing the enquiry into it. The Counties would read the cases as if the purpose enquiry were so naive that any transparent claim to secularity would satisfy it, and they would cut context out of the enquiry, to the point of ignoring history, no matter what bearing it actually had on the significance of current circumstances. There is no precedent for the Counties’ arguments, or reason supporting them. 1 Lemon said that government action must have “a secular … purpose,” 403 U. S., at 612, and after a host of cases it is fair to add that although a legislature’s stated reasons will generally get deference, the secular purpose required has to be genuine, not a sham, and not merely secondary to a religious objective. See, e.g., Santa Fe Independent School Dist. v. Doe, supra, at 308 (“When a governmental entity professes a secular purpose for an arguably religious policy, the government’s characterization is, of course, entitled to some deference. But it is nonetheless the duty of the courts to ‘distinguis[h] a sham secular purpose from a sincere one’ ”); Edwards, 482 U. S., at 586–587 (“While the Court is normally deferential to a State’s articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham”); id., at 590, 594 (referring to enquiry as one into “preeminent” or “primary” purpose); Stone, supra , at 41 (looking to the “pre-eminent purpose” of government action). Even the Counties’ own cited authority confirms that we have not made the purpose test a pushover for any secular claim. True, Wallace said government action is tainted by its object “if it is entirely motivated by a purpose to advance religion,” 472 U. S., at 56, a remark that suggests, in isolation, a fairly complaisant attitude. But in that very case the Court declined to credit Alabama’s stated secular rationale of “accommodation” for legislation authorizing a period of silence in school for meditation or voluntary prayer, given the implausibility of that explanation in light of another statute already accommodating children wishing to pray. Id., at 57, n. 45 (internal quotation marks omitted). And it would be just as much a mistake to infer that a timid standard underlies the statement in Lynch v. Donnelly that the purpose enquiry looks to whether government “activity was motivated wholly by religious considerations,” 465 U. S., at 680; for two cases cited for that proposition had examined and rejected claims of secular purposes that turned out to be implausible or inadequate:[ Footnote 11 ] Stone, 449 U. S., at 41; Abington, 374 U. S., at 223–224.[ Footnote 12 ] See also Bowen v. Kendrick, 487 U. S. 589 , 602 (1988) (using the “motivated wholly by an impermissible purpose” language, but citing Lynch and Stone ). As we said, the Court often does accept governmental statements of purpose, in keeping with the respect owed in the first instance to such official claims. But in those unusual cases where the claim was an apparent sham, or the secular purpose secondary, the unsurprising results have been findings of no adequate secular object, as against a predominantly religious one.[ Footnote 13 ] 2 The Counties’ second proffered limitation can be dispatched quickly. They argue that purpose in a case like this one should be inferred, if at all, only from the latest news about the last in a series of governmental actions, however close they may all be in time and subject. But the world is not made brand new every morning, and the Counties are simply asking us to ignore perfectly probative evidence; they want an absentminded objective observer, not one presumed to be familiar with the history of the government’s actions and competent to learn what history has to show, Santa Fe Independent School Dist. v. Doe, 530 U. S., at 308 (objective observer is familiar with “ ‘implementation of’ ” government action) (quoting Wallace , supra , at 73) (O’Connor, J., concurring in judgment)); Edwards, supra, at 595 (enquiry looks to “the historical context of the statute … and the specific sequence of events leading to [its] passage”); Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753 , 780 (1995) (O’Connor, J., concurring in part and concurring in judgment) (“[T]he reasonable observer in the endorsement inquiry must be deemed aware of the history and context of the community and forum in which the religious display appears”). The Counties’ position just bucks common sense: reasonable observers have reasonable memories, and our precedents sensibly forbid an observer “to turn a blind eye to the context in which [the] policy arose.”[ Footnote 14 ] Santa Fe Independent School Dist. v. Doe, supra , at 315. III This case comes to us on appeal from a preliminary injunction. We accordingly review the District Court’s legal rulings de novo , and its ultimate conclusion for abuse of discretion.[ Footnote 15 ] Ashcroft v. American Civil Liberties Union, 542 U. S. 656 (2004). We take Stone as the initial legal benchmark, our only case dealing with the constitutionality of displaying the Commandments. Stone recognized that the Commandments are an “instrument of religion” and that, at least on the facts before it, the display of their text could presumptively be understood as meant to advance religion: although state law specifically required their posting in public school classrooms, their isolated exhibition did not leave room even for an argument that secular education explained their being there. 449 U. S., at 41, n. 3 (internal quotation marks omitted). But Stone did not purport to decide the constitutionality of every possible way the Commandments might be set out by the government, and under the Establishment Clause detail is key. County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573 , 595 (1989) (opinion of Blackmun, J.) (“[T]he question is what viewers may fairly understand to be the purpose of the display. That inquiry, of necessity, turns upon the context in which the contested object appears”) (internal quotation marks and citation omitted). Hence, we look to the record of evidence showing the progression leading up to the third display of the Commandments. A The display rejected in Stone had two obvious similarities to the first one in the sequence here: both set out a text of the Commandments as distinct from any traditionally symbolic representation, and each stood alone, not part of an arguably secular display. Stone stressed the significance of integrating the Commandments into a secular scheme to forestall the broadcast of an otherwise clearly religious message, supra , at 42, and for good reason, the Commandments being a central point of reference in the religious and moral history of Jews and Christians. They proclaim the existence of a monotheistic god (no other gods). They regulate details of religious obligation (no graven images, no sabbath breaking, no vain oath swearing). And they unmistakably rest even the universally accepted prohibitions (as against murder, theft, and the like) on the sanction of the divinity proclaimed at the beginning of the text. Displaying that text is thus different from a symbolic depiction, like tablets with 10 roman numerals, which could be seen as alluding to a general notion of law, not a sectarian conception of faith. Where the text is set out, the insistence of the religious message is hard to avoid in the absence of a context plausibly suggesting a message going beyond an excuse to promote the religious point of view. The display in Stone had no context that might have indicated an object beyond the religious character of the text, and the Counties’ solo exhibit here did nothing more to counter the sectarian implication than the postings at issue in Stone .[ Footnote 16 ] See also County of Allegheny, supra , at 598 (“Here, unlike in Lynch [v. Donnelly ], nothing in the context of the display detracts from the crčche’s religious message”). Actually, the posting by the Counties lacked even the Stone display’s implausible disclaimer that the Commandments were set out to show their effect on the civil law.[ Footnote 17 ] What is more, at the ceremony for posting the framed Commandments in Pulaski County, the county executive was accompanied by his pastor, who testified to the certainty of the existence of God. The reasonable observer could only think that the Counties meant to emphasize and celebrate the Commandments’ religious message. This is not to deny that the Commandments have had influence on civil or secular law; a major text of a majority religion is bound to be felt. The point is simply that the original text viewed in its entirety is an unmistakably religious statement dealing with religious obligations and with morality subject to religious sanction. When the government initiates an effort to place this statement alone in public view, a religious object is unmistakable. B Once the Counties were sued, they modified the exhibits and invited additional insight into their purpose in a display that hung for about six months. This new one was the product of forthright and nearly identical Pulaski and McCreary County resolutions listing a series of American historical documents with theistic and Christian references, which were to be posted in order to furnish a setting for displaying the Ten Commandments and any “other Kentucky and American historical documen[t]” without raising concern about “any Christian or religious references” in them. Def. Exh. 1, at 1. As mentioned, the resolutions expressed support for an Alabama judge who posted the Commandments in his courtroom, and cited the fact the Kentucky Legislature once adjourned a session in honor of “Jesus Christ, Prince of Ethics.” Id., at 2–3. In this second display, unlike the first, the Commandments were not hung in isolation, merely leaving the Counties’ purpose to emerge from the pervasively religious text of the Commandments themselves. Instead, the second version was required to include the statement of the government’s purpose expressly set out in the county resolutions, and underscored it by juxtaposing the Commandments to other documents with highlighted references to God as their sole common element. The display’s unstinting focus was on religious passages, showing that the Counties were posting the Commandments precisely because of their sectarian content. That demonstration of the government’s objective was enhanced by serial religious references and the accompanying resolution’s claim about the embodiment of ethics in Christ. Together, the display and resolution presented an indisputable, and undisputed, showing of an impermissible purpose. Today, the Counties make no attempt to defend their undeniable objective, but instead hopefully describe version two as “dead and buried.” Reply Brief for Petitioners 15. Their refusal to defend the second display is understandable, but the reasonable observer could not forget it. C 1 After the Counties changed lawyers, they mounted a third display, without a new resolution or repeal of the old one. The result was the “Foundations of American Law and Government” exhibit, which placed the Commandments in the company of other documents the Counties thought especially significant in the historical foundation of American government . In trying to persuade the District Court to lift the preliminary injunction, the Counties cited several new purposes for the third version, including a desire “to educate the citizens of the county regarding some of the documents that played a significant role in the foundation of our system of law and government.”[ Footnote 18 ] 145 F. Supp. 2d, at 848 (internal quotation marks omitted). The Counties’ claims did not, however, persuade the court, intimately familiar with the details of this litigation, or the Court of Appeals, neither of which found a legitimizing secular purpose in this third version of the display. “ ‘When both courts [that have already passed on the case] are unable to discern an arguably valid secular purpose, this Court normally should hesitate to find one.’ ” Edwards, 482 U. S., at 594, n. 15 (quoting Wallace, 472 U. S., at 66 (Powell, J., concurring)). The conclusions of the two courts preceding us in this case are well warranted. These new statements of purpose were presented only as a litigating position, there being no further authorizing action by the Counties’ governing boards. And although repeal of the earlier county authorizations would not have erased them from the record of evidence bearing on current purpose,[ Footnote 19 ] the extraordinary resolutions for the second display passed just months earlier were not repealed or otherwise repudiated.[ Footnote 20 ] Indeed, the sectarian spirit of the common resolution found enhanced expression in the third display, which quoted more of the purely religious language of the Commandments than the first two displays had done; for additions, see App. to Pet. for Cert. 189a (“I the LORD thy God am a jealous God”) (text of Second Commandment in third display); (“the LORD will not hold him guiltless that taketh his name in vain”) (from text of Third Commandment); and (“that thy days may be long upon the land which the LORD thy God giveth thee”) (text of Fifth Commandment). No reasonable observer could swallow the claim that the Counties had cast off the objective so unmistakable in the earlier displays. Nor did the selection of posted material suggest a clear theme that might prevail over evidence of the continuing religious object. In a collection of documents said to be “foundational” to American government, it is at least odd to include a patriotic anthem, but to omit the Fourteenth Amendment, the most significant structural provision adopted since the original Framing. And it is no less baffling to leave out the original Constitution of 1787 while quoting the 1215 Magna Carta even to the point of its declaration that “fish-weirs shall be removed from the Thames.” App. to Pet. for Cert. 205a, ¶33. If an observer found these choices and omissions perplexing in isolation, he would be puzzled for a different reason when he read the Declaration of Independence seeking confirmation for the Counties’ posted explanation that the “Ten Commandments’ … influence is clearly seen in the Declaration,” id., at 180a; in fact the observer would find that the Commandments are sanctioned as divine imperatives, while the Declaration of Independence holds that the authority of government to enforce the law derives “from the consent of the governed,” id., at 190a.[ Footnote 21 ] If the observer had not thrown up his hands, he would probably suspect that the Counties were simply reaching for any way to keep a religious document on the walls of courthouses constitutionally required to embody religious neutrality.[ Footnote 22 ] 2 In holding the preliminary injunction adequately supported by evidence that the Counties’ purpose had not changed at the third stage, we do not decide that the Counties’ past actions forever taint any effort on their part to deal with the subject matter. We hold only that purpose needs to be taken seriously under the Establishment Clause and needs to be understood in light of context; an implausible claim that governmental purpose has changed should not carry the day in a court of law any more than in a head with common sense. It is enough to say here that district courts are fully capable of adjusting preliminary relief to take account of genuine changes in constitutionally significant conditions. See Ashcroft v. American Civil Liberties Union, 542 U. S. 656 (2004). Nor do we have occasion here to hold that a sacred text can never be integrated constitutionally into a governmental display on the subject of law, or American history. We do not forget, and in this litigation have frequently been reminded, that our own courtroom frieze was deliberately designed in the exercise of governmental authority so as to include the figure of Moses holding tablets exhibiting a portion of the Hebrew text of the later, secularly phrased Commandments; in the company of 17 other lawgivers, most of them secular figures, there is no risk that Moses would strike an observer as evidence that the National Government was violating neutrality in religion.[ Footnote 23 ] IV The importance of neutrality as an interpretive guide is no less true now than it was when the Court broached the principle in Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947), and a word needs to be said about the different view taken in today’s dissent. We all agree, of course, on the need for some interpretative help. The First Amendment contains no textual definition of “establishment,” and the term is certainly not self-defining. No one contends that the prohibition of establishment stops at a designation of a national (or with Fourteenth Amendment incorporation, Cantwell v. Connecticut, 310 U. S. 296 , 303 (1940), a state) church, but nothing in the text says just how much more it covers. There is no simple answer, for more than one reason. The prohibition on establishment covers a variety of issues from prayer in widely varying government settings, to financial aid for religious individuals and institutions, to comment on religious questions. In these varied settings, issues of about interpreting inexact Establishment Clause language, like difficult interpretative issues generally, arise from the tension of competing values, each constitutionally respectable, but none open to realization to the logical limit. The First Amendment has not one but two clauses tied to “religion,” the second forbidding any prohibition on the “the free exercise thereof,” and sometimes, the two clauses compete: spending government money on the clergy looks like establishing religion, but if the government cannot pay for military chaplains a good many soldiers and sailors would be kept from the opportunity to exercise their chosen religions. See Cutter v. Wilkinson , 544 U. S. ___, ___ (2005) (slip. op., at 8–9). At other times, limits on governmental action that might make sense as a way to avoid establishment could arguably limit freedom of speech when the speaking is done under government auspices. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995). The dissent, then, is wrong to read cases like Walz v. Tax Comm’n of City of New York, 397 U. S. 664 (1970), as a rejection of neutrality on its own terms, post , at 7–8, for trade-offs are inevitable, and an elegant interpretative rule to draw the line in all the multifarious situations is not be had. Given the variety of interpretative problems, the principle of neutrality has provided a good sense of direction: the government may not favor one religion over another, or religion over irreligion, religious choice being the prerogative of individuals under the Free Exercise Clause. The principle has been helpful simply because it responds to one of the major concerns that prompted adoption of the Religion Clauses. The Framers and the citizens of their time intended not only to protect the integrity of individual conscience in religious matters, Wallace v. Jaffree, 472 U. S., at 52–54, and n. 38, but to guard against the civic divisiveness that follows when the Government weighs in on one side of religious debate; nothing does a better job of roiling society, a point that needed no explanation to the descendants of English Puritans and Cavaliers (or Massachusetts Puritans and Baptists). E.g. , Everson , supra , at 8 (“A large proportion of the early settlers of this country came here from Europe to escape [religious persecution]”). A sense of the past thus points to governmental neutrality as an objective of the Establishment Clause, and a sensible standard for applying it. To be sure, given its generality as a principle, an appeal to neutrality alone cannot possibly lay every issue to rest, or tell us what issues on the margins are substantial enough for constitutional significance, a point that has been clear from the Founding era to modern times. E.g. , Letter from J. Madison to R. Adams (1832), in 5 The Founders’ Constitution at 107 (P. Kurland & R. Lerner eds. 1987) (“[In calling for separation] I must admit moreover that it may not be easy, in every possible case, to trace the line of separation between the rights of religion and the Civil authority with such distinctness as to avoid collisions & doubts on unessential points”); Sherbert v. Verner , 374 U. S. 398 , 422 (1963) (Harlan, J., dissenting) (“The constitutional obligation of ‘neutrality’ … is not so narrow a channel that the slightest deviation from an absolutely straight course leads to condemnation”). But invoking neutrality is a prudent way of keeping sight of something the Framers of the First Amendment thought important. The dissent, however, puts forward a limitation on the application of the neutrality principle, with citations to historical evidence said to show that the Framers understood the ban on establishment of religion as sufficiently narrow to allow the government to espouse submission to the divine will. The dissent identifies God as the God of monotheism, all of whose three principal strains (Jewish, Christian, and Muslim) acknowledge the religious importance of the Ten Commandments. Post , at 9–10. On the dissent’s view, it apparently follows that even rigorous espousal of a common element of this common monotheism, is consistent with the establishment ban. But the dissent’s argument for the original understanding is flawed from the outset by its failure to consider the full range of evidence showing what the Framers believed. The dissent is certainly correct in putting forward evidence that some of the Framers thought some endorsement of religion was compatible with the establishment ban; the dissent quotes the first President as stating that “national morality [cannot] prevail in exclusion of religious principle,” for example, post , at 3, and it cites his first Thanksgiving proclamation giving thanks to God, post , at 2 (internal quotation marks omitted). Surely if expressions like these from Washington and his contemporaries were all we had to go on, there would be a good case that the neutrality principle has the effect of broadening the ban on establishment beyond the Framers’ understanding of it (although there would, of course, still be the question of whether the historical case could overcome some 60 years of precedent taking neutrality as its guiding principle).[ Footnote 24 ] But the fact is that we do have more to go on, for there is also evidence supporting the proposition that the Framers intended the Establishment Clause to require governmental neutrality in matters of religion, including neutrality in statements acknowledging religion. The very language of the Establishment Clause represented a significant departure from early drafts that merely prohibited a single national religion, and, the final language instead “extended [the] prohibition to state support for ‘religion’ in general.” See Lee v. Weisman, 505 U. S. 577 , 614–615 (1992) (Souter, J., concurring) (tracing development of language). The historical record, moreover, is complicated beyond the dissent’s account by the writings and practices of figures no less influential than Thomas Jefferson and James Madison. Jefferson, for example, refused to issue Thanksgiving Proclamations because he believed that they violated the Constitution. See Letter to S. Miller (Jan. 23, 1808), in 5 The Founders’ Constitution at 98. And Madison, whom the dissent claims as supporting its thesis, post , at 4, criticized Virginia’s general assessment tax not just because it required people to donate “three pence” to religion, but because “it is itself a signal of persecution. It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority.” 505 U. S., at 622 (internal quotation marks omitted); see also Letter from J. Madison to E. Livingston (July 10, 1822), in 5 The Founders’ Constitution, at 106 (“[R]eligion & Govt. will both exist in greater purity, the less they are mixed together”); Letter from J. Madison to J. Adams (Sept. 1833) in Religion and Politics in the Early Republic 120 (D. Dresibach ed. 1996) (stating that with respect to religion and government the “tendency to a usurpation on one side, or the other, or to a corrupting coalition or alliance between them, will be best guarded against by an entire abstinence of the Government from interference”); Van Orden v. Perry , 545 U. S. ___ (2005) (Stevens, J., dissenting) (slip op., at 19-20).[ Footnote 25 ] The fair inference is that there was no common understanding about the limits of the establishment prohibition, and the dissent’s conclusion that its narrower view was the original understanding, post , at 2–3, stretches the evidence beyond tensile capacity. What the evidence does show is a group of statesmen, like others before and after them, who proposed a guarantee with contours not wholly worked out, leaving the Establishment Clause with edges still to be determined. And none the worse for that. Indeterminate edges are the kind to have in a constitution meant to endure, and to meet “exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.” McCulloch v. Maryland, 4 Wheat. 316, 415 (1819). While the dissent fails to show a consistent original understanding from which to argue that the neutrality principle should be rejected, it does manage to deliver a surprise. As mentioned, the dissent says that the deity the Framers had in mind was the God of monotheism, with the consequence that government may espouse a tenet of traditional monotheism. This is truly a remarkable view. Other members of the Court have dissented on the ground that the Establishment Clause bars nothing more than governmental preference for one religion over another, e.g., Wallace v. Jaffree, 472 U. S., at 98–99 (Rehnquist, J., dissenting), but at least religion has previously been treated inclusively. Today’s dissent, however, apparently means that government should be free to approve the core beliefs of a favored religion over the tenets of others, a view that should trouble anyone who prizes religious liberty. Certainly history cannot justify it; on the contrary, history shows that the religion of concern to the Framers was not that of the monotheistic faiths generally, but Christianity in particular, a fact that no member of this Court takes as a premise for construing the Religion Clauses. Justice Story probably reflected the thinking of the framing generation when he wrote in his Commentaries that the purpose of the Clause was “not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects.” R. Cord, Separation of Church and State: Historical Fact and Current Fiction 13 (1988) (emphasis omitted). The Framers would, therefore, almost certainly object to the dissent’s unstated reasoning that because Christianity was a monotheistic “religion,” monotheism with Mosaic antecedents should be a touchstone of establishment interpretation.[ Footnote 26 ] Even on originalist critiques of existing precedent there is, it seems, no escape from interpretative consequences that would surprise the Framers. Thus, it appears to be common ground in the interpretation of a Constitution “intended to endure for ages to come,” McCulloch v. Maryland, supra , at 415, that applications unanticipated by the Framers are inevitable. Historical evidence thus supports no solid argument for changing course (whatever force the argument might have when directed at the existing precedent), whereas public discourse at the present time certainly raises no doubt about the value of the interpretative approach invoked for 60 years now. We are centuries away from the St. Bartholomew’s Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable. This is no time to deny the prudence of understanding the Establishment Clause to require the Government to stay neutral on religious belief, which is reserved for the conscience of the individual. V Given the ample support for the District Court’s finding of a predominantly religious purpose behind the Counties’ third display, we affirm the Sixth Circuit in upholding the preliminary injunction. It is so ordered. Footnote 1 We do not consider here a display of the Ten Commandments in schoolrooms in Harlan County, Kentucky, that was litigated in consolidated proceedings in the District Court and Court of Appeals. That display is the subject of a separate petition to this Court. Footnote 2 This text comes from a record exhibit showing the Pulaski County Commandments that were part of the County’s first and second displays. The District Court found that the displays in each County were functionally identical. 96 F. Supp. 2d 679, 682, n. 2 (ED Ky. 2000); 96 F. Supp. 2d 691, 693, n. 2 (ED Ky. 2000). Footnote 3 The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof … .” This prohibition of establishment applies to “the States and their political subdivisions” through the Fourteenth Amendment. Santa Fe Independent School Dist. v. Doe, 530 U. S. 290 , 301 (2000) Footnote 4 The District Court noted that there was some confusion as to whether the Ten Commandments hung independently in the second display, or were incorporated into the copy of the page from the Congressional Record declaring 1983 “the Year of the Bible.” 96 F. Supp. 2d, at 684, and n. 4; 96 F. Supp. 2d, at 695–696, and n. 4. The exhibits in the record depict the Commandments hanging as a separate item, Def. Exh. 9, and that is more consistent with the Counties’ description of the second display in this Court. “[After erecting the first display] Petitioners posted additional donated documents… . This display consisted of the Ten Commandments along with other historical documents.” Brief for Petitioners 2. Like the District Court, we find our analysis applies equally to either format. Footnote 5 The court also found that the display had the effect of endorsing religion: “Removed from their historical context and placed with other documents with which the only common link is religion, the documents have the undeniable effect of endorsing religion.” 96 F. Supp. 2d, at 688; 96 F. Supp. 2d, at 699–700. Footnote 6 Before the District Court issued the modified injunction, the Counties removed the label of “King James Version” and the citation to Exodus. 145 F. Supp. 2d 845, 847 (ED Ky. 2001). Footnote 7 The Court also found that the effect of the third display was to endorse religion because the “reasonable observer will see one religious code placed alongside eight political or patriotic documents, and will understand that the counties promote that one religious code as being on a par with our nation’s most cherished secular symbols and documents” and because the “reasonable observer [would know] something of the controversy surrounding these displays, which has focused on only one of the nine framed documents: the Ten Commandments.” Id. , at 851, 852. Footnote 8 The Sixth Circuit did not decide whether the display had the impermissible effect of advancing religion because one judge, having found the display motivated by a religious purpose, did not reach that issue. 354 F. 3d, at 462 (Gibbons, J., concurring). The other judge in the majority concluded that a reasonable observer would find that the display had the effect of endorsing religion given the lack of analytical connection between the Commandments and the other documents in the display, the courthouse location of the display, and the history of the displays. Id., at 458–459. The dissent found no effect of endorsement because it concluded that a reasonable observer would only see that the County had merely acknowledged the foundational role of the Ten Commandments rather than endorsed their religious content. Id., at 479–480. Footnote 9 Stone v. Graham , 449 U. S. 39 , 41 (1980) (per curiam); Wallace v. Jaffree , 472 U. S. 38 , 56–61 (1985); Edwards v. Aguillard , 482 U. S. 578 , 586–593 (1987); Santa Fe Independent School District v. Doe , 530 U. S., at 308–309. Footnote 10 At least since Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947), it has been clear that Establishment Clause doctrine lacks the comfort of categorical absolutes. In special instances we have found good reason to hold governmental action legitimate even where its manifest purpose was presumably religious. See, e.g. , Marsh v. Chambers, 463 U. S. 783 (1983) (upholding legislative prayer despite its religious nature). No such reasons present themselves here. Footnote 11 Moreover, Justice O’Connor provided the fifth vote for the Lynch majority and her concurrence emphasized the point made implicitly in the majority opinion that a secular purpose must be serious to be sufficient. 465 U. S., at 691 (The purpose inquiry “is not satisfied … by the mere existence of some secular purpose, however dominated by religious purposes”). Footnote 12 Stone found the sacred character of the Ten Commandments preeminent despite an avowed secular purpose to show their “adoption as the fundamental legal code of Western Civilization and the Common Law … .” 449 U. S., at 39–40, n. 1 (internal quotation marks omitted). And the Abington Court was unconvinced that music education or the teaching of literature were actual secular objects behind laws requiring public school teachers to lead recitations from the Lord’s Prayer and readings from the Bible. 374 U. S., at 273. Footnote 13 The dissent nonetheless maintains that the purpose test is satisfied so long as any secular purpose for the government action is apparent. Post , at 18–19 (opinion of Scalia, J.). Leaving aside the fact that this position is inconsistent with the language of the cases just discussed, it would leave the purpose test with no real bite, given the ease of finding some secular purpose for almost any government action. While heightened deference to legislatures is appropriate for the review of economic legislation, an approach that credits any valid purpose, no matter how trivial, has not been the way the Court has approached government action that implicates establishment. Footnote 14 One consequence of taking account of the purpose underlying past actions is that the same government action may be constitutional if taken in the first instance and unconstitutional if it has a sectarian heritage. This presents no incongruity, however, because purpose matters. Just as Holmes’s dog could tell the difference between being kicked and being stumbled over, it will matter to objective observers whether posting the Commandments follows on the heels of displays motivated by sectarianism, or whether it lacks a history demonstrating that purpose. The dissent, apparently not giving the reasonable observer as much credit as Holmes’s dog, contends that in practice it will be “absur[d]” to rely upon differences in purpose in assessing government action. Post , at 24. As an initial matter, it will be the rare case in which one of two identical displays violates the purpose prong. In general, like displays tend to show like objectives and will be treated accordingly. But where one display has a history manifesting sectarian purpose that the other lacks, it is appropriate that they be treated differently, for the one display will be properly understood as demonstrating a preference for one group of religious believers as against another. See supra , at 11–12. While posting the Commandments may not have the effect of causing greater adherence to them, an ostensible indication of a purpose to promote a particular faith certainly will have the effect of causing viewers to understand the government is taking sides. Footnote 15 We note that the only factor in the preliminary injunction analysis that is at issue here is the likelihood of the ACLU’s success on the merits. Footnote 16 Although the Counties point out that the courthouses contained other displays besides the Ten Commandments, there is no suggestion that the Commandments display was integrated to form a secular display. Footnote 17 In Stone , the Commandments were accompanied by a small disclaimer: “The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.” 449 U. S., at 39–40, n. 1 (internal quotation marks omitted). Footnote 18 The Counties’ other purposes were: “to erect a display containing the Ten Commandments that is constitutional; … to demonstrate that the Ten Commandments were part of the foundation of American Law and Government; … [to include the Ten Commandments] as part of the display for their significance in providing ‘the moral background of the Declaration of Independence and the foundation of our legal tradition.’ ” 145 F. Supp. 2d, at 848 (some internal quotation marks omitted). Footnote 19 Following argument in this case, in which the resolutions were discussed, the McCreary and Pulaski County Boards did repeal the resolutions, acts of obviously minimal significance in the evolution of the evidence. Footnote 20 The Counties argue that the objective observer would not continue to believe that the resolution was in effect after the third display went up because the resolution authorized only the second display. But the resolution on its face is not limited to any particular display. On the contrary, it encourages the creation of a display with the Ten Commandments that also includes such documents as “the National anthem … the National Motto … the preamble to the Kentucky Constitution[,] the Declaration of Independence [and] the Mayflower Compact … without censorship because of any Christian or religious references.” Def. Exh. 1, at 1. The third display contains all of these documents, suggesting that it fell within the resolutions as well. The record does not indicate whether the resolutions were posted with the third display. Footnote 21 The Counties have now backed away from their broad assertion that the Commandments provide “the” moral background of the Declaration of Independence, and now merely claim that many of the Commandments “regarding murder, property, theft, coveting, marriage, rest from labor and honoring parents are compatible with the rights to life, liberty and happiness.” Brief for Petitioners 10, n. 7. Footnote 22 The Counties grasp at McGowan v. Maryland, 366 U. S. 420 (1961), but it bears little resemblance to this case. As noted supra, at 12–13, McGowan held that religious purposes behind centuries-old predecessors of Maryland’s Sunday laws were not dispositive of the purposes of modern Sunday laws, where the legislature had removed much of the religious reference in the laws and stated secular and pragmatic justifications for them. 366 U. S., at 446–452. But a conclusion that centuries-old purposes may no longer be operative says nothing about the relevance of recent evidence of purpose, and this case is far more like Santa Fe, with its evolution of a school football game prayer policy over the course of a single lawsuit. Like that case, “[t]his [one] comes to us as the latest step in developing litigation brought as a challenge to institutional practices that unquestionably violated the Establishment Clause.” 530 U. S., at 315. (describing the evolution of the school district’s football prayer policy). Thus, as in Santa Fe, it makes sense to examine the Counties’ latest action “in light of [their] history of” unconstitutional practices. Id., at 309. Footnote 23 The dissent notes that another depiction of Moses and the Commandments adorns this Court’s east pediment. Post , at 23. But as with the courtroom frieze, Moses is found in the company of other figures, not only great but secular. Footnote 24 The dissent also maintains that our precedents show that a solo display of the Commandments is a mere acknowledgement of religion “on par with the inclusion of a crčche or a menorah” in a holiday display, or an official’s speech or prayer, post , at 22. Whether or not our views would differ about the significance of those practices if we were considering them as original matters, they manifest no objective of subjecting individual lives to religious influence comparable to the apparent and openly acknowledged purpose behind posting the Commandments. Crčches placed with holiday symbols and prayers by legislators do not insistently call for religious action on the part of citizens; the history of posting the Commandments expressed a purpose to urge citizens to act in prescribed ways as a personal response to divine authority. Footnote 25 The dissent cites material suggesting that separationists like Jefferson and Madison were not absolutely consistent in abstaining from official religious acknowledgment. Post , at 4. But, a record of inconsistent historical practice is too weak a lever to upset decades of precedent adhering to the neutrality principle. And it is worth noting that Jefferson thought his actions were consistent with non-endorsement of religion and Madison regretted any backsliding he may have done. Lee v. Weisman, 505 U. S. 577 , 622–25 (1992) (Souter, J., concurring). “Homer nodded.” Id., at 624, n. 5 (corrected in erratum at 535 U. S., at II). Footnote 26 There might, indeed, even have been some reservations about monotheism as the paradigm example. It is worth noting that the canonical biography of George Washington, the dissent’s primary exemplar of the monotheistic tradition, calls him a deist. J. Flexner, George Washington: Anguish and Farewell (1793–1799) 490 (1972) (“Washington’s religious belief was that of the enlightenment: deism”). It would have been odd for the First Congress to propose an Amendment with Religion Clauses that took no account of the President’s religion. As with other historical matters pertinent here, however, there are conflicting conclusions. R. Brookhiser, Founding Father: Rediscovering George Washington 146 (1996) (“Washington’s God was no watchmaker”). History writ small does not give clear and certain answers to questions about the limits of “religion” or “establishment.” O'CONNOR, J., CONCURRING MCCREARY COUNTY V. AMERICAN CIVIL LIBERTIESUNION OF KY. 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-1693 McCREARY COUNTY, KENTUCKY, et al., PETI- TIONERS v. AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY et al. on writ of certiorari to the united states court of appeals for the sixth circuit [June 27, 2005]    Justice O’Connor, concurring. I join in the Court’s opinion. The First Amendment expresses our Nation’s fundamental commitment to religious liberty by means of two provisions—one protecting the free exercise of religion, the other barring establishment of religion. They were written by the descendents of people who had come to this land precisely so that they could practice their religion freely. Together with the other First Amendment guarantees—of free speech, a free press, and the rights to assemble and petition—the Religion Clauses were designed to safeguard the freedom of conscience and belief that those immigrants had sought. They embody an idea that was once considered radical: Free people are entitled to free and diverse thoughts, which government ought neither to constrain nor to direct. Reasonable minds can disagree about how to apply the Religion Clauses in a given case. But the goal of the Clauses is clear: to carry out the Founders’ plan of preserving religious liberty to the fullest extent possible in a pluralistic society. By enforcing the Clauses, we have kept religion a matter for the individual conscience, not for the prosecutor or bureaucrat. At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish. The well-known statement that “[w]e are a religious people,” Zorach v. Clauson, 343 U. S. 306 , 313 (1952), has proved true. Americans attend their places of worship more often than do citizens of other developed nations, R. Fowler, A. Hertzke, & L. Olson, Religion and Politics in America 28–29 (2d ed. 1999), and describe religion as playing an especially important role in their lives, Pew Global Attitudes Project, Among Wealthy Nations U. S. Stands Alone in its Embrace of Religion (Dec. 19, 2002). Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly? Our guiding principle has been James Madison’s—that “[t]he Religion … of every man must be left to the conviction and conscience of every man.” Memorial and Remonstrance Against Religious Assessments, 2 Writings of James Madison 183, 184 (G. Hunt ed. 1901) (hereinafter Memorial). To that end, we have held that the guarantees of religious freedom protect citizens from religious incursions by the States as well as by the Federal Government. Everson v. Board of Ed. of Ewing, 330 U. S. 1 , 16 (1947); Cantwell v. Connecticut, 310 U. S. 296 (1940). Government may not coerce a person into worshiping against her will, nor prohibit her from worshiping according to it. It may not prefer one religion over another or promote religion over nonbelief. Everson , supra, at 15–16. It may not entangle itself with religion. Walz v. Tax Comm’n of City of New York, 397 U. S. 664 , 674 (1970). And government may not, by “endorsing religion or a religious practice,” “mak[e] adherence to religion relevant to a person’s standing in the political community.” Wallace v. Jaffree, 472 U. S. 38 , 69 (1985) (O’Connor, J., concurring in judgment). When we enforce these restrictions, we do so for the same reason that guided the Framers—respect for religion’s special role in society. Our Founders conceived of a Republic receptive to voluntary religious expression, and provided for the possibility of judicial intervention when government action threatens or impedes such expression. Voluntary religious belief and expression may be as threatened when government takes the mantle of religion upon itself as when government directly interferes with private religious practices. When the government associates one set of religious beliefs with the state and identifies nonadherents as outsiders, it encroaches upon the individual’s decision about whether and how to worship. In the marketplace of ideas, the government has vast resources and special status. Government religious expression therefore risks crowding out private observance and distorting the natural interplay between competing beliefs. Allowing government to be a potential mouthpiece for competing religious ideas risks the sort of division that might easily spill over into suppression of rival beliefs. Tying secular and religious authority together poses risks to both. Given the history of this particular display of the Ten Commandments, the Court correctly finds an Establishment Clause violation. See ante, at 19–25. The purpose behind the counties’ display is relevant because it conveys an unmistakable message of endorsement to the reasonable observer. See Lynch v. Donnelly, 465 U. S. 668 , 690 (1984) (O’Connor, J., concurring). It is true that many Americans find the Commandments in accord with their personal beliefs. But we do not count heads before enforcing the First Amendment. See West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 , 638 (1943) (“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts”). Nor can we accept the theory that Americans who do not accept the Commandments’ validity are outside the First Amendment’s protections. There is no list of approved and disapproved beliefs appended to the First Amendment—and the Amendment’s broad terms (“free exercise,” “establishment,” “religion”) do not admit of such a cramped reading. It is true that the Framers lived at a time when our national religious diversity was neither as robust nor as well recognized as it is now. They may not have foreseen the variety of religions for which this Nation would eventually provide a home. They surely could not have predicted new religions, some of them born in this country. But they did know that line-drawing between religions is an enterprise that, once begun, has no logical stopping point. They worried that “the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects.” Memorial 186. The Religion Clauses, as a result, protect adherents of all religions, as well as those who believe in no religion at all. *** We owe our First Amendment to a generation with a profound commitment to religion and a profound commitment to religious liberty—visionaries who held their faith “with enough confidence to believe that what should be rendered to God does not need to be decided and collected by Caesar.” Zorach, supra, at 324–325 (Jackson, J., dissenting). In my opinion, the display at issue was an establishment of religion in violation of our Constitution. For the reasons given above, I join in the Court’s opinion. SCALIA, J., DISSENTING MCCREARY COUNTY V. AMERICAN CIVIL LIBERTIESUNION OF KY. 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-1693 McCREARY COUNTY, KENTUCKY, et al., PETI- TIONERS v. AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY et al. on writ of certiorari to the united states court of appeals for the sixth circuit [June 27, 2005]    Justice Scalia, with whom The Chief Justice and Justice Thomas join, and with whom Justice Kennedy joins as to Parts II and III, dissenting.    I would uphold McCreary County and Pulaski County, Kentucky’s (hereinafter Counties) displays of the Ten Commandments. I shall discuss first, why the Court’s oft repeated assertion that the government cannot favor religious practice is false; second, why today’s opinion extends the scope of that falsehood even beyond prior cases; and third, why even on the basis of the Court’s false assumptions the judgment here is wrong. I A    On September 11, 2001 I was attending in Rome, Italy an international conference of judges and lawyers, principally from Europe and the United States. That night and the next morning virtually all of the participants watched, in their hotel rooms, the address to the Nation by the President of the United States concerning the murderous attacks upon the Twin Towers and the Pentagon, in which thousands of Americans had been killed. The address ended, as Presidential addresses often do, with the prayer “God bless America.” The next afternoon I was approached by one of the judges from a European country, who, after extending his profound condolences for my country’s loss, sadly observed “How I wish that the Head of State of my country, at a similar time of national tragedy and distress, could conclude his address ‘God bless ______.’ It is of course absolutely forbidden.”    That is one model of the relationship between church and state—a model spread across Europe by the armies of Napoleon, and reflected in the Constitution of France, which begins “France is [a] . . . secular . . . Republic.” France Const., Art. 1, in 7 Constitutions of the Countries of the World, p. 1 (G. Flanz ed. 2000). Religion is to be strictly excluded from the public forum. This is not, and never was, the model adopted by America. George Washington added to the form of Presidential oath prescribed by Art. II, §1, cl. 8, of the Constitution, the concluding words “so help me God.” See Blomquist, The Presidential Oath, the American National Interest and a Call for Presiprudence, 73 UMKC L. Rev. 1, 34 (2004). The Supreme Court under John Marshall opened its sessions with the prayer, “God save the United States and this Honorable Court.” 1 C. Warren, The Supreme Court in United States History 469 (rev. ed. 1926). The First Congress instituted the practice of beginning its legislative sessions with a prayer. Marsh v. Chambers , 463 U. S. 783 , 787 (1983). The same week that Congress submitted the Establishment Clause as part of the Bill of Rights for ratification by the States, it enacted legislation providing for paid chaplains in the House and Senate. Id. , at 788. The day after the First Amendment was proposed, the same Congress that had proposed it requested the President to proclaim “ a day of public thanksgiving and prayer, to be observed, by acknowledging, with grateful hearts, the many and signal favours of Almighty God.” See H. R. Jour., 1st Cong., 1st Sess. 123 (1826 ed.); see also Sen. Jour., 1st Sess., 88 (1820 ed.). President Washington offered the first Thanksgiving Proclamation shortly thereafter, devoting November 26, 1789 on behalf of the American people “ ‘to the service of that great and glorious Being who is the beneficent author of all the good that is, that was, or that will be,’ ” Van Orden v. Perry , ante , at 7–8 (plurality opinion) (quoting President Washington’s first Thanksgiving Proclamation), thus beginning a tradition of offering gratitude to God that continues today. See Wallace v. Jaffree , 472 U. S. 38 , 100–103 (1985) (Rehnquist, J., dissenting).[ Footnote 1 ] The same Congress also reenacted the Northwest Territory Ordinance of 1787, 1 Stat. 50, Article III of which provided: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Id. , at 52, n. (a) . And of course the First Amendment itself accords religion (and no other manner of belief) special constitutional protection.    These actions of our First President and Congress and the Marshall Court were not idiosyncratic; they reflected the beliefs of the period. Those who wrote the Constitution believed that morality was essential to the well-being of society and that encouragement of religion was the best way to foster morality. The “fact that the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself.” School Dist. of Abington Township v. Schempp, 374 U. S. 203 , 213 (1963). See Underkuffler-Freund, The Separation of the Religious and the Secular: A Foundational Challenge to First-Amendment Theory, 36 Wm. & Mary L. Rev. 837, 896–918 (1995). President Washington opened his Presidency with a prayer, see Inaugural Addresses of the Presidents of the United States 1, 2 (1989), and reminded his fellow citizens at the conclusion of it that “reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle.” Farewell Address (1796), reprinted in 35 Writings of George Washington 229 (J. Fitzpatrick ed. 1940). President John Adams wrote to the Massachusetts Militia, “we have no government armed with power capable of contending with human passions unbridled by morality and religion. … Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” Letter (Oct. 11, 1798), reprinted in 9 Works of John Adams 229 (C. Adams ed. 1971). Thomas Jefferson concluded his second inaugural address by inviting his audience to pray: “I shall need, too, the favor of that Being in whose hands we are, who led our fathers, as Israel of old, from their native land and planted them in a country flowing with all the necessaries and comforts of life; who has covered our infancy with His providence and our riper years with His wisdom and power and to whose goodness I ask you to join in supplications with me that He will so enlighten the minds of your servants, guide their councils, and prosper their measures that whatsoever they do shall result in your good, and shall secure to you the peace, friendship, and approbation of all nations.” Inaugural Addresses of the Presidents of the United States, at 18, 22–23. James Madison, in his first inaugural address, likewise placed his confidence “in the guardianship and guidance of that Almighty Being whose power regulates the destiny of nations, whose blessings have been so conspicuously dispensed to this rising Republic, and to whom we are bound to address our devout gratitude for the past, as well as our fervent supplications and best hopes for the future.” Id. , at 25, 28.    Nor have the views of our people on this matter significantly changed. Presidents continue to conclude the Presidential oath with the words “so help me God.” Our legislatures, state and national, continue to open their sessions with prayer led by official chaplains. The sessions of this Court continue to open with the prayer “God save the United States and this Honorable Court.” Invocation of the Almighty by our public figures, at all levels of government, remains commonplace. Our coinage bears the motto “IN GOD WE TRUST.” And our Pledge of Allegiance contains the acknowledgment that we are a Nation “under God.” As one of our Supreme Court opinions rightly observed, “We are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, 343 U. S. 306 , 313 (1952), repeated with approval in Lynch v. Donnelly , 465 U. S. 668 , 675 (1984); Marsh , 463 U. S., at 792; Abington Township, supra , at 213.    With all of this reality (and much more) staring it in the face, how can the Court possibly assert that “ ‘the First Amendment mandates governmental neutrality between … religion and nonreligion,’ ” ante , at 11, and that “[m]anifesting a purpose to favor . . . adherence to religion generally,” ante , at 12, is unconstitutional? Who says so? Surely not the words of the Constitution. Surely not the history and traditions that reflect our society’s constant understanding of those words. Surely not even the current sense of our society, recently reflected in an Act of Congress adopted unanimously by the Senate and with only 5 nays in the House of Representatives, see 148 Cong. Rec. S6226 (2002); id. , at H7186, criticizing a Court of Appeals opinion that had held “under God” in the Pledge of Allegiance unconstitutional. See Act of Nov. 13, 2002, §§1(9), 2(a), 3(a), 116 Stat. 2057, 2058, 2060–2061 (reaffirming the Pledge of Allegiance and the National Motto (“In God We Trust”) and stating that the Pledge of Allegiance is “clearly consistent with the text and intent of the Constitution”). Nothing stands behind the Court’s assertion that governmental affirmation of the society’s belief in God is unconstitutional except the Court’s own say-so, citing as support only the unsubstantiated say-so of earlier Courts going back no farther than the mid-20th century. See ante , at 11, citing Corporation of Presiding Bishop of Church of Jesus Christ of Latter&nbhyph;day Saints v. Amos, 483 U. S. 327 , 335 (1987), in turn citing Lemon v. Kurtzman , 403 U. S. 602 , 612 (1971), in turn citing Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236 , 243 (1968), in turn quoting Abington Township, supra , at 222, in turn citing Everson v. Board of Ed. of Ewing, 330 U. S. 1 , 15 (1947).[ Footnote 2 ] And it is, moreover, a thoroughly discredited say-so. It is discredited, to begin with, because a majority of the Justices on the current Court (including at least one Member of today’s majority) have, in separate opinions, repudiated the brain-spun “ Lemon test” that embodies the supposed principle of neutrality between religion and irreligion. See Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 , 398–399 (1993) (Scalia, J., concurring in judgment) (collecting criticism of Lemon ); Van Orden , ante , at 1, 6 (Thomas, J., concurring); Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U. S. 687 , 720 (1994) (O’Connor, J., concurring in part and concurring in judgment); County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573 , 655–656, 672–673 (1989) (Kennedy, J., concurring in judgment in part and dissenting in part); Wallace , 472 U. S., at 112 (Rehnquist, J., dissenting); see also Committee for Public Ed. and Religious Liberty v. Regan, 444 U. S. 646 , 671 (1980) (Stevens, J., dissenting) (disparaging “the sisyphean task of trying to patch together the ‘blurred, indistinct, and variable barrier’ described in Lemon ”). And it is discredited because the Court has not had the courage (or the foolhardiness) to apply the neutrality principle consistently.    What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle. That is what prevents judges from ruling now this way, now that—thumbs up or thumbs down—as their personal preferences dictate. Today’s opinion forthrightly (or actually, somewhat less than forthrightly) admits that it does not rest upon consistently applied principle. In a revealing footnote, ante, at 11, n. 10, the Court acknowledges that the “Establishment Clause doctrine” it purports to be applying “lacks the comfort of categorical absolutes.” What the Court means by this lovely euphemism is that sometimes the Court chooses to decide cases on the principle that government cannot favor religion, and sometimes it does not. The footnote goes on to say that “[i]n special instances we have found good reason” to dispense with the principle, but “[n]o such reasons present themselves here.” Ibid. It does not identify all of those “special instances,” much less identify the “good reason” for their existence.    I have cataloged elsewhere the variety of circumstances in which this Court—even after its embrace of Lemon ’s stated prohibition of such behavior—has approved government action “undertaken with the specific intention of improving the position of religion,” Edwards v. Aguillard, 482 U. S. 578 , 616 (1987) (Scalia, J., dissenting). See id. , 616–618. Suffice it to say here that when the government relieves churches from the obligation to pay property taxes, when it allows students to absent themselves from public school to take religious classes, and when it exempts religious organizations from generally applicable prohibitions of religious discrimination, it surely means to bestow a benefit on religious practice—but we have approved it. See Amos, supra , at 338 (exemption from federal prohibition of religious discrimination by employers); Walz v. Tax Comm’n of City of New York, 397 U. S. 664 , 673 (1970) (property tax exemption for church property); Zorach, 343 U. S., at 308, 315 (law permitting students to leave public school for the purpose of receiving religious education). Indeed, we have even approved (post- Lemon ) government-led prayer to God. In Marsh v. Chambers , supra , the Court upheld the Nebraska State Legislature’s practice of paying a chaplain to lead it in prayer at the opening of legislative sessions. The Court explained that “[t]o invoke Divine guidance on a public body entrusted with making the laws is not . . . an ‘establishment’ of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country.” 463 U. S., at 792. (Why, one wonders, is not respect for the Ten Commandments a tolerable acknowledgment of beliefs widely held among the people of this country?)    The only “good reason” for ignoring the neutrality principle set forth in any of these cases was the antiquity of the practice at issue. See Marsh , supra , at 786–792, 794; Walz , supra , at 676–680. That would be a good reason for finding the neutrality principle a mistaken interpretation of the Constitution, but it is hardly a good reason for letting an unconstitutional practice continue. We did not hide behind that reason in Reynolds v. Sims , 377 U. S. 533 (1964), which found unconstitutional bicameral state legislatures of a sort that had existed since the beginning of the Republic. And almost monthly, it seems, the Court has not shrunk from invalidating aspects of criminal procedure and penology of similar vintage. See, e.g. , Deck v. Missouri , 544 U. S. ___, ___ (2005) (slip op., at 10–11) (invalidating practice of shackling defendants absent “special circumstances”); id. , at ___ (slip op., at 7–11) (Thomas, J., dissenting); Roper v. Simmons , 543 U. S. ___, ___ (2005) (slip op., at 14) (invalidating practice of executing under-18-year-old offenders); id. , at ___ (slip op., at 2, n. 1) (Scalia, J., dissenting). What, then, could be the genuine “good reason” for occasionally ignoring the neutrality principle? I suggest it is the instinct for self-preservation, and the recognition that the Court, which “has no influence over either the sword or the purse,” The Federalist No. 78, p. 412 (J. Pole ed. 2005), cannot go too far down the road of an enforced neutrality that contradicts both historical fact and current practice without losing all that sustains it: the willingness of the people to accept its interpretation of the Constitution as definitive, in preference to the contrary interpretation of the democratically elected branches.    Besides appealing to the demonstrably false principle that the government cannot favor religion over irreligion, today’s opinion suggests that the posting of the Ten Commandments violates the principle that the government cannot favor one religion over another. See ante , at 19; see also Van Orden , ante , at 11–13 (Stevens, J., dissenting). That is indeed a valid principle where public aid or assistance to religion is concerned, see Zelman v. Simmons-Harris, 536 U. S. 639 , 652 (2002), or where the free exercise of religion is at issue, Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 , 532–533 (1993); id. , at 557–558 (Scalia, J., concurring in part and concurring in judgment), but it necessarily applies in a more limited sense to public acknowledgment of the Creator. If religion in the public forum had to be entirely nondenominational, there could be no religion in the public forum at all. One cannot say the word “God,” or “the Almighty,” one cannot offer public supplication or thanksgiving, without contradicting the beliefs of some people that there are many gods, or that God or the gods pay no attention to human affairs. With respect to public acknowledgment of religious belief, it is entirely clear from our Nation’s historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists. The Thanksgiving Proclamation issued by George Washington at the instance of the First Congress was scrupulously nondenominational—but it was monotheistic. [ Footnote 3 ] In Marsh v. Chambers, supra, we said that the fact the particular prayers offered in the Nebraska Legislature were “in the Judeo-Christian tradition,” id. , at 793, posed no additional problem, because “there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief,” id. , at 794–795. Historical practices thus demonstrate that there is a distance between the acknowledgment of a single Creator and the establishment of a religion. The former is, as Marsh v. Chambers put it, “a tolerable acknowledgment of beliefs widely held among the people of this country.” Id. , at 792. The three most popular religions in the United States, Christianity, Judaism, and Islam—which combined account for 97.7% of all believers—are monotheistic. See U. S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States: 2004–2005, p. 55 (124th ed. 2004) (Table No. 67). All of them, moreover (Islam included), believe that the Ten Commandments were given by God to Moses, and are divine prescriptions for a virtuous life. See 13 Encyclopedia of Religion 9074 (2d ed. 2005); The Qur’an 104 (M. Haleem trans. 2004). Publicly honoring the Ten Commandments is thus indistinguishable, insofar as discriminating against other religions is concerned, from publicly honoring God. Both practices are recognized across such a broad and diverse range of the population—from Christians to Muslims—that they cannot be reasonably understood as a government endorsement of a particular religious viewpoint.[ Footnote 4 ] B A few remarks are necessary in response to the criticism of this dissent by the Court, as well as Justice Stevens’ criticism in the related case of Van Orden v. Perry , ante , p. 1. Justice Stevens ’ writing is largely devoted to an attack upon a straw man. “[R]eliance on early religious proclamations and statements made by the Founders is … problematic,” he says, “because those views were not espoused at the Constitutional Convention in 1787 nor enshrined in the Constitution’s text.” Van Orden , ante , at 18–19 (dissenting opinion) (footnote omitted). But I have not relied upon (as he and the Court in this case do) mere “proclamations and statements” of the Founders. I have relied primarily upon official acts and official proclamations of the United States or of the component branches of its Government, including the First Congress’s beginning of the tradition of legislative prayer to God, its appointment of congressional chaplains, its legislative proposal of a Thanksgiving Proclamation, and its reenactment of the Northwest Territory Ordinance; our first President’s issuance of a Thanksgiving Proclamation; and invocation of God at the opening of sessions of the Supreme Court. The only mere “proclamations and statements” of the Founders I have relied upon were statements of Founders who occupied federal office, and spoke in at least a quasi-official capacity—Washington’s prayer at the opening of his Presidency and his Farewell Address, President John Adams’ letter to the Massachusetts Militia, and Jefferson’s and Madison’s inaugural addresses. The Court and Justice Stevens, by contrast, appeal to no official or even quasi-official action in support of their view of the Establishment Clause—only James Madison’s Memorial and Remonstrance Against Religious Assessments, written before the federal Constitution had even been proposed, two letters written by Madison long after he was President, and the quasi-official inaction of Thomas Jefferson in refusing to issue a Thanksgiving Proclamation. See ante , at 30–31; Van Orden , ante , at 19 (Stevens, J., dissenting). The Madison Memorial and Remonstrance, dealing as it does with enforced contribution to religion rather than public acknowledgment of God, is irrelevant; one of the letters is utterly ambiguous as to the point at issue here, and should not be read to contradict Madison’s statements in his first inaugural address, quoted earlier; even the other letter does not disapprove public acknowledgment of God, unless one posits (what Madison’s own actions as President would contradict) that reference to God contradicts “the equality of all religious sects.” See Letter from James Madison to Edward Livingston (July 10, 1822), in 5 The Founders’ Constitution 105–106 (P. Kurland & R. Lerner eds. 1987). And as to Jefferson: the notoriously self-contradicting Jefferson did not choose to have his nonauthorship of a Thanksgiving Proclamation inscribed on his tombstone. What he did have inscribed was his authorship of the Virginia Statute for Religious Freedom, a governmental act which begins “Whereas Almighty God hath created the mind free . . . .” Va. Code Ann. §57–1 (Lexis 2003). It is no answer for Justice Stevens to say that the understanding that these official and quasi-official actions reflect was not “enshrined in the Constitution’s text.” Van Orden , ante , at 18 (dissenting opinion). The Establishment Clause, upon which Justice Stevens would rely, was enshrined in the Constitution’s text, and these official actions show what it meant. There were doubtless some who thought it should have a broader meaning, but those views were plainly rejected. Justice Stevens says that reliance on these actions is “bound to paint a misleading picture,” Van Orden , ante , at 19, but it is hard to see why. What is more probative of the meaning of the Establishment Clause than the actions of the very Congress that proposed it, and of the first President charged with observing it? Justice Stevens also appeals to the undoubted fact that some in the founding generation thought that the Religion Clauses of the First Amendment should have a narrower meaning, protecting only the Christian religion or perhaps only Protestantism. See Van Orden , ante , at 20–22. I am at a loss to see how this helps his case, except by providing a cloud of obfuscating smoke. (Since most thought the Clause permitted government invocation of monotheism, and some others thought it permitted government invocation of Christianity, he proposes that it be construed not to permit any government invocation of religion at all.) At any rate, those narrower views of the Establishment Clause were as clearly rejected as the more expansive ones. Washington’s First Thanksgiving Proclamation is merely an example. All of the actions of Washington and the First Congress upon which I have relied, virtually all Thanksgiving Proclamations throughout our history,[ Footnote 5 ] and all the other examples of our Government’s favoring religion that I have cited, have invoked God, but not Jesus Christ.[ Footnote 6 ] Rather than relying upon Justice Stevens’ assurance that “[t]he original understanding of the type of ‘religion’ that qualified for constitutional protection under the First amendment certainly did not include . . . followers of Judaism and Islam,” Van Orden , ante , at 22; see also ante , at 32–33, I would prefer to take the word of George Washington, who, in his famous Letter to the Hebrew Congregation of Newport, Rhode Island, wrote that, “All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights.” 6 The Papers of George Washington, Presidential Series 285 (D. Twohig et al. eds. 1996). The letter concluded, by the way, with an invocation of the one God: “May the father of all mercies scatter light and not darkness in our paths, and make us all in our several vocations useful here, and in his own due time and way everlastingly happy.” Ibid . Justice Stevens says that if one is serious about following the original understanding of the Establishment Clause, he must repudiate its incorporation into the Fourteenth Amendment, and hold that it does not apply against the States. See Van Orden , ante , at 24–26 (dissenting opinion). This is more smoke. Justice Stevens did not feel that way last Term, when he joined an opinion insisting upon the original meaning of the Confrontation Clause, but nonetheless applying it against the State of Washington. See Crawford v. Washington, 541 U. S. 36 (2004). The notion that incorporation empties the incorporated provisions of their original meaning has no support in either reason or precedent. Justice Stevens argues that original meaning should not be the touchstone anyway, but that we should rather “expoun[d] the meaning of constitutional provisions with one eye towards our Nation’s history and the other fixed on its democratic aspirations.” Van Orden , ante , at 27–28 (dissenting opinion). This is not the place to debate the merits of the “living Constitution,” though I must observe that Justice Stevens’ quotation from McCulloch v. Maryland, 4 Wheat. 316, 407 (1819), refutes rather than supports that approach.[ Footnote 7 ]    Even assuming, however, that the meaning of the Constitution ought to change according to “democratic aspirations,” why are those aspirations to be found in Justices’ notions of what the Establishment Clause ought to mean, rather than in the democratically adopted dispositions of our current society? As I have observed above, numerous provisions of our laws and numerous continuing practices of our people demonstrate that the government’s invocation of God (and hence the government’s invocation of the Ten Commandments) is unobjectionable—including a statute enacted by Congress almost unanimously less than three years ago, stating that “under God” in the Pledge of Allegiance is constitutional, see 116 Stat., at 2058. To ignore all this is not to give effect to “democratic aspirations” but to frustrate them. Finally, I must respond to Justice Stevens’ assertion that I would “marginaliz[e] the belief systems of more than 7 million Americans” who adhere to religions that are not monotheistic. Van Orden , ante , at 13–14, n. 18 (dissenting opinion). Surely that is a gross exaggeration. The beliefs of those citizens are entirely protected by the Free Exercise Clause, and by those aspects of the Establishment Clause that do not relate to government acknowledgment of the Creator. Invocation of God despite their beliefs is permitted not because nonmonotheistic religions cease to be religions recognized by the religion clauses of the First Amendment, but because governmental invocation of God is not an establishment. Justice Stevens fails to recognize that in the context of public acknowledgments of God there are legitimate competing interests: On the one hand, the interest of that minority in not feeling “excluded”; but on the other, the interest of the overwhelming majority of religious believers in being able to give God thanks and supplication as a people, and with respect to our national endeavors. Our national tradition has resolved that conflict in favor of the majority.[ Footnote 8 ] It is not for this Court to change a disposition that accounts, many Americans think, for the phenomenon remarked upon in a quotation attributed to various authors, including Bismarck, but which I prefer to associate with Charles de Gaulle: “God watches over little children, drunkards, and the United States of America.” II As bad as the Lemon test is, it is worse for the fact that, since its inception, its seemingly simple mandates have been manipulated to fit whatever result the Court aimed to achieve. Today’s opinion is no different. In two respects it modifies Lemon to ratchet up the Court’s hostility to religion. First, the Court justifies inquiry into legislative purpose, not as an end itself, but as a means to ascertain the appearance of the government action to an “ ‘objective observer.’ ” Ante , at 13. Because in the Court’s view the true danger to be guarded against is that the objective observer would feel like an “outside[r]” or “not [a] full membe[r] of the political community,” its inquiry focuses not on the actual purpose of government action, but the “purpose apparent from government action.” Ante , at 12 . Under this approach, even if a government could show that its actual purpose was not to advance religion, it would presumably violate the Constitution as long as the Court’s objective observer would think otherwise. See Capitol Square Review and Advisory Bd. v. Pinette , 515 U.S. 753, 776–777 (1995) (O’Connor, J., concurring in part and concurring in judgment) (stating that “when the reasonable observer would view a government practice as endorsing religion, . . . it is our duty to hold the practice invalid,” even if the law at issue was neutral and the benefit conferred on the religious entity was incidental). I have remarked before that it is an odd jurisprudence that bases the unconstitutionality of a government practice that does not actually advance religion on the hopes of the government that it would do so. See Edwards , 482 U. S., at 639. But that oddity pales in comparison to the one invited by today’s analysis: the legitimacy of a government action with a wholly secular effect would turn on the misperception of an imaginary observer that the government officials behind the action had the intent to advance religion. Second, the Court replaces Lemon ’s requirement that the government have “ a secular . . . purpose,” 403 U. S., at 612 (emphasis added), with the heightened requirement that the secular purpose “predominate” over any purpose to advance religion. Ante , at 15–17. The Court treats this extension as a natural outgrowth of the longstanding requirement that the government’s secular purpose not be a sham, but simple logic shows the two to be unrelated. If the government’s proffered secular purpose is not genuine, then the government has no secular purpose at all. The new demand that secular purpose predominate contradicts Lemon ’s more limited requirement, and finds no support in our cases. In all but one of the five cases in which this Court has invalidated a government practice on the basis of its purpose to benefit religion, it has first declared that the statute was motivated entirely by the desire to advance religion. See Santa Fe Independent School Dist. v. Doe, 530 U. S. 290 , 308–309 (2000) (dismissing the school district’s proffered secular purposes as shams); Wallace , 472 U. S., at 56 (finding “ no secular purpose”) (emphasis added); Stone v. Graham , 449 U. S. 39 , 41 (1980) (per curiam) (finding that “Kentucky’s statute requiring the posting of the Ten Commandments in public school rooms has no secular legislative purpose ”) (emphasis added); Epperson v. Arkansas , 393 U. S. 97 , 107–109 (1968). In Edwards , supra , the Court did say that the state action was invalid because its “primary” or “preeminent” purpose was to advance a particular religious belief, 482 U. S., at 590, 593, 594, but that statement was unnecessary to the result, since the Court rejected the State’s only proffered secular purpose as a sham. See id. , at 589. I have urged that Lemon ’s purpose prong be abandoned, because (as I have discussed in Part I) even an exclusive purpose to foster or assist religious practice is not necessarily invalidating. But today’s extension makes things even worse. By shifting the focus of Lemon ’s purpose prong from the search for a genuine, secular motivation to the hunt for a predominantly religious purpose, the Court converts what has in the past been a fairly limited inquiry into a rigorous review of the full record.[ Footnote 9 ] Those responsible for the adoption of the Religion Clauses would surely regard it as a bitter irony that the religious values they designed those Clauses to protect have now become so distasteful to this Court that if they constitute anything more than a subordinate motive for government action they will invalidate it. III Even accepting the Court’s Lemon -based premises, the displays at issue here were constitutional. A To any person who happened to walk down the hallway of the McCreary or Pulaski County Courthouse during the roughly nine months when the Foundations Displays were exhibited, the displays must have seemed unremarkable—if indeed they were noticed at all. The walls of both courthouses were already lined with historical documents and other assorted portraits; each Foundations Display was exhibited in the same format as these other displays and nothing in the record suggests that either County took steps to give it greater prominence. Entitled “The Foundations of American Law and Government Display,” each display consisted of nine equally sized documents: the original version of the Magna Carta, the Declaration of Independence, the Bill of Rights, the Star Spangled Banner, the Mayflower Compact of 1620, a picture of Lady Justice, the National Motto of the United States (“In God We Trust”), the Preamble to the Kentucky Constitution, and the Ten Commandments. The displays did not emphasize any of the nine documents in any way: The frame holding the Ten Commandments was of the same size and had the same appearance as that which held each of the other documents. See 354 F. 3d 438, 443 (CA6 2003). Posted with the documents was a plaque, identifying the display, and explaining that it “contains documents that played a significant role in the foundation of our system of law and government.” Ibid . The explanation related to the Ten Commandments was third in the list of nine and did not serve to distinguish it from the other documents. It stated: “The Ten Commandments have profoundly influenced the formation of Western legal thought and the formation of our country. That influence is clearly seen in the Declaration of Independence, which declared that, ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.’ The Ten Commandments provide the moral background of the Declaration of Independence and the foundation of our legal tradition.” Ibid . B On its face, the Foundations Displays manifested the purely secular purpose that the Counties asserted before the District Court: “to display documents that played a significant role in the foundation of our system of law and government.” Affidavit of Judge Jimmie Green in Support of Defendants’ Opposition to Plaintiffs’ Motion for Contempt or, in the Alternative, for Supplemental Preliminary Injunction in Civ. A. No. 99–507 (ED Ky.), p. 2. That the Displays included the Ten Commandments did not transform their apparent secular purpose into one of impermissible advocacy for Judeo-Christian beliefs. Even an isolated display of the Decalogue conveys, at worst, “an equivocal message, perhaps of respect for Judaism, for religion in general, or for law.” Allegheny County , 492 U. S., at 652 (Stevens, J., concurring in part and dissenting in part). But when the Ten Commandments appear alongside other documents of secular significance in a display devoted to the foundations of American law and government, the context communicates that the Ten Commandments are included, not to teach their binding nature as a religious text, but to show their unique contribution to the development of the legal system. See id ., at 652–653. This is doubly true when the display is introduced by a document that informs passersby that it “contains documents that played a significant role in the foundation of our system of law and government.” The same result follows if the Ten Commandments display is viewed in light of the government practices that this Court has countenanced in the past. The acknowledgment of the contribution that religion in general, and the Ten Commandments in particular, have made to our Nation’s legal and governmental heritage is surely no more of a step towards establishment of religion than was the practice of legislative prayer we approved in Marsh v. Chambers, 463 U. S. 783 (1983), and it seems to be on par with the inclusion of a crčche or a menorah in a “Holiday” display that incorporates other secular symbols, see Lynch , supra , at 679–680; Allegheny County , supra , at 621. The parallels between this case and Marsh and Lynch are sufficiently compelling that they ought to decide this case, even under the Court’s misguided Establishment Clause jurisprudence.[ Footnote 10 ] Acknowledgment of the contribution that religion has made to our Nation’s legal and governmental heritage partakes of a centuries-old tradition. Members of this Court have themselves often detailed the degree to which religious belief pervaded the National Government during the founding era. See Lynch , supra , at 674–678; Marsh , supra , at 786–788; Lee v. Weisman , 505 U. S. 577 , 633–636 (1992) (Scalia, J., dissenting); Wallace , 472 U. S. at 100–106 (Rehnquist, J., dissenting); Engel v. Vitale , 370 U. S. 421 , 446–450, and n. 3 (1962) (Stewart, J., dissenting). Display of the Ten Commandments is well within the mainstream of this practice of acknowledgment. Federal, State, and local governments across the Nation have engaged in such display.[ Footnote 11 ] The Supreme Court Building itself includes depictions of Moses with the Ten Commandments in the Courtroom and on the east pediment of the building, and symbols of the Ten Commandments “adorn the metal gates lining the north and south sides of the Courtroom as well as the doors leading into the Courtroom.” Van Orden , ante , at 9 (plurality opinion). Similar depictions of the Decalogue appear on public buildings and monuments throughout our Nation’s Capital. Ibid . The frequency of these displays testifies to the popular understanding that the Ten Commandments are a foundation of the rule of law, and a symbol of the role that religion played, and continues to play, in our system of government. Perhaps in recognition of the centrality of the Ten Commandments as a widely recognized symbol of religion in public life, the Court is at pains to dispel the impression that its decision will require governments across the country to sandblast the Ten Commandments from the public square. See ante , at 26. The constitutional problem, the Court says, is with the Counties’ purpose in erecting the Foundations Displays, not the displays themselves. The Court adds in a footnote: “One consequence of taking account of the purpose underlying past actions is that the same government action may be constitutional if taken in the first instance and unconstitutional if it has a sectarian heritage.” Ante , at 18, n. 14. This inconsistency may be explicable in theory, but I suspect that the “objective observer” with whom the Court is so concerned will recognize its absurdity in practice. By virtue of details familiar only to the parties to litigation and their lawyers, McCreary and Pulaski Counties, Kentucky, and Rutherford County, Tennessee, have been ordered to remove the same display that appears in courthouses from Mercer County, Kentucky to Elkhart County, Indiana. Compare American Civil Liberties Union of Tenn. v. Rutherford County , 209 F. Supp. 2d 799, 808–809 (MD Tenn. 2002) (holding Foundations Display to be unconstitutional based on prior actions of county commission) with Books v. Elkhart County , 401 F. 3d 857, 869 (CA7 2005) (sustaining Foundations Display as “secular . . . in its purpose and effect”); American Civil Liberties Union of Ky. v. Mercer County , 219 F. Supp. 2d 777, 787–789 (ED Ky. 2002) (rejecting Establishment Clause challenge to an identical Foundations Display and distinguishing McCreary County on the ground that the County’s purpose had not been “tainted with any prior history”). Displays erected in silence (and under the direction of good legal advice) are permissible, while those hung after discussion and debate are deemed unconstitutional. Reduction of the Establishment Clause to such minutiae trivializes the Clause’s protection against religious establishment; indeed, it may inflame religious passions by making the passing comments of every government official the subject of endless litigation. C In any event, the Court’s conclusion that the Counties exhibited the Foundations Displays with the purpose of promoting religion is doubtful. In the Court’s view, the impermissible motive was apparent from the initial displays of the Ten Commandments all by themselves: When that occurs, the Court says, “a religious object is unmistakable.” Ante , at 21. Surely that cannot be. If, as discussed above, the Commandments have a proper place in our civic history, even placing them by themselves can be civically motivated—especially when they are placed, not in a school (as they were in the Stone case upon which the Court places such reliance), but in a courthouse. Cf. Van Orden , ante , at 4 (Breyer, J., concurring in judgment) (“The circumstances surrounding the display’s placement on the capital grounds, and its physical setting suggest that the State itself intended the … nonreligious aspects of the tablets’ message to predominate”). And the fact that at the posting of the exhibit a clergyman was present is unremarkable (clergymen taking particular pride in the role of the Ten Commandments in our civic history); and even more unremarkable the fact that the clergyman “testified to the certainty of the existence of God,” ante, at 21. The Court has in the past prohibited government actions that “proselytize or advance any one, or . . . disparage any other, faith or belief,” see Marsh , 463 U. S., at 794–795, or that apply some level of coercion (though I and others have disagreed about the form that coercion must take), see, e.g. , Lee v. Weisman , 505 U. S., at 592 (prayer at high-school graduation invalid because of “subtle coercive pressure”); id. , at 642 (Scalia, J., dissenting). The passive display of the Ten Commandments, even standing alone, does not begin to do either. What Justice Kennedy said of the crčche in Allegheny County is equally true of the Counties’ original Ten Commandments displays: “No one was compelled to observe or participate in any religious ceremony or activity. [T]he count[ies] [did not] contribut[e] significant amounts of tax money to serve the cause of one religious faith. [The Ten Commandments] are purely passive symbols of [the religious foundation for many of our laws and governmental institutions]. Passersby who disagree with the message conveyed by th[e] displays are free to ignore them, or even to turn their backs, just as they are free to do when they disagree with any other form of government speech.” 492 U. S., at 664 (opinion concurring in judgment in part and dissenting in part). Nor is it the case that a solo display of the Ten Commandments advances any one faith. They are assuredly a religious symbol, but they are not so closely associated with a single religious belief that their display can reasonably be understood as preferring one religious sect over another. The Ten Commandments are recognized by Judaism, Christianity, and Islam alike as divinely given. See 13 Encyclopedia of Religion 9074 (2d ed. 2005).[ Footnote 12 ] The Court also points to the Counties’ second displays, which featured a number of statements in historical documents reflecting a religious influence, and the resolutions that accompanied their erection, as evidence of an impermissible religious purpose.[ Footnote 13 ] In the Court’s view, “[t]he [second] display’s unstinting focus . . . on religious passages, show[s] that the Counties were posting the Commandments precisely because of their sectarian content.” Ante , at 22. No, all it necessarily shows is that the exhibit was meant to focus upon the historic role of religious belief in our national life—which is entirely permissible. And the same can be said of the resolution. To forbid any government focus upon this aspect of our history is to display what Justice Goldberg called “untutored devotion to the concept of neutrality,” Abington Township, 374 U. S., at 306 (concurring opinion), that would commit the Court (and the Nation) to a revisionist agenda of secularization. Turning at last to the displays actually at issue in this case, the Court faults the Counties for not repealing the resolution expressing what the Court believes to be an impermissible intent. Under these circumstances, the Court says, “no reasonable observer could swallow the claim that the Counties had cast off the objective so unmistakable in the earlier displays.” Ante , at 24. Even were I to accept all that the Court has said before, I would not agree with that assessment. To begin with, of course, it is unlikely that a reasonable observer would even have been aware of the resolutions, so there would be nothing to “cast off.” The Court implies that the Counties may have been able to remedy the “taint” from the old resolutions by enacting a new one. See ante , at 23–24. But that action would have been wholly unnecessary in light of the explanation that the Counties included with the displays themselves : A plaque next to the documents informed all who passed by that each display “contains documents that played a significant role in the foundation of our system of law and government.” Additionally, there was no reason for the Counties to repeal or repudiate the resolutions adopted with the hanging of the second displays, since they related only to the second displays . After complying with the District Court’s order to remove the second displays “immediately,” and erecting new displays that in content and by express assertion reflected a different purpose from that identified in the resolutions, the Counties had no reason to believe that their previous resolutions would be deemed to be the basis for their actions.[ Footnote 14 ] After the Counties discovered that the sentiments expressed in the resolutions could be attributed to their most recent displays (in oral argument before this Court), they repudiated them immediately. In sum: The first displays did not necessarily evidence an intent to further religious practice; nor did the second displays, or the resolutions authorizing them; and there is in any event no basis for attributing whatever intent motivated the first and second displays to the third. Given the presumption of regularity that always accompanies our review of official action, see supra , at 18–19 n. 9, the Court has identified no evidence of a purpose to advance religion in a way that is inconsistent with our cases. The Court may well be correct in identifying the third displays as the fruit of a desire to display the Ten Commandments, ante , at 24, but neither our cases nor our history support its assertion that such a desire renders the fruit poisonous. *** For the foregoing reasons, I would reverse the judgment of the Court of Appeals. Footnote 1 See, e.g. , President’s Thanksgiving Day 2004 Proclamation (Nov. 23, 2004), available at http://www.whitehouse.gov/news/releases/2004/11/ 20041123-4.html (all internet materials as visited June 24, 2005 and available in Clerk of Court’s case file). Footnote 2 The fountainhead of this jurisprudence, Everson v. Board of Ed. of Ewing , based its dictum that “[n]either a state nor the Federal Government . . . can pass laws which . . . aid all religions,” 330 U. S., at 15, on a review of historical evidence that focused on the debate leading up to the passage of the Virginia Bill for Religious Liberty, see id. , at 11–13. A prominent commentator of the time remarked (after a thorough review of the evidence himself) that it appeared the Court had been “sold . . . a bill of goods.” Corwin, The Supreme Court as National School Board, 14 Law & Contemp. Prob. 3, 16 (1949). Footnote 3 The Court thinks it “surpris[ing]” and “truly remarkable” to believe that “the deity the Framers had in mind” (presumably in all the instances of invocation of the deity I have cited) “was the God of monotheism.” Ante, at 32. This reaction would be more comprehensible if the Court could suggest what other God (in the singular, and with a capital G) there is , other than “the God of monotheism." This is not necessarily the Christian God (though if it were, one would expect Christ regularly to be invoked, which He is not); but it is inescapably the God of monotheism. Footnote 4 This is not to say that a display of the Ten Commandments could never constitute an impermissible endorsement of a particular religious view. The Establishment Clause would prohibit, for example, governmental endorsement of a particular version of the Decalogue as authoritative. Here the display of the Ten Commandments alongside eight secular documents, and the plaque’s explanation for their inclusion, make clear that they were not posted to take sides in a theological dispute. Footnote 5 The two exceptions are the March 23, 1798 proclamation of John Adams, which asks God “freely to remit all our offenses” “through the Redeemer of the World,” http://www.pilgrimhall.org/ThanxProc1789.htm, and the November 17, 1972 proclamation of Richard Nixon, which stated, “From Moses at the Red Sea to Jesus preparing to feed the multitudes, the Scriptures summon us to words and deeds of gratitude, even before divine blessings are fully perceived,” Presidential Proclamation No. 4170, 37 Fed. Reg. 24647 (1972). Footnote 6 Justice Stevens finds that Presidential inaugural and farewell speeches (which are the only speeches upon which I have relied) do not violate the Establishment Clause only because everyone knows that they express the personal religious views of the speaker, and not government policy. See Van Orden , ante, at 17–18 (dissenting opinion). This is a peculiar stance for one who has voted that a student-led invocation at a high school football game and a rabbi-led invocation at a high school graduation did constitute the sort of governmental endorsement of religion that the Establishment Clause forbids. See Santa Fe Independent School Dist. v. Doe, 530 U. S. 290 (2000); Lee v. Weisman, 505 U. S. 577 (1992). Footnote 7 See Scalia, Originalism: The Lesser Evil, 57 Cincinnati L. Rev. 852–853 (1989). Footnote 8 Nothing so clearly demonstrates the utter inconsistency of our Establishment Clause jurisprudence as Justice O’Connor’s stirring concurrence in the present case. “[W]e do not,” she says, “count heads before enforcing the First Amendment.” Ante , at 4. But Justice O’Connor joined the opinion of the Court in Marsh v. Chambers , 463 U. S. 783 (1983) which held legislative prayer to be “a tolerable acknowledgment of beliefs widely held among the people of this country.” Id. , at 792. Footnote 9 The Court’s reflexive skepticism of the government’s asserted secular purposes is flatly inconsistent with the deferential approach taken by our previous Establishment Clause cases. We have repeated many times that, where a court undertakes the sensitive task of reviewing a government’s asserted purpose, it must take the government at its word absent compelling evidence to the contrary. See, e.g. , Edwards v. Aguillard, 482 U. S. 578 , 586 (stating that “the Court is . . . deferential to a State’s articulation of a secular purpose,” unless that purpose is insincere or a sham); Mueller v. Allen, 463 U. S. 388 , 394–395 (1983) (ascribing the Court’s disinclination to invalidate government practices under Lemon ’s purpose prong to its “reluctance to attribute unconstitutional motives to the States, particularly when a plausible secular purpose for the State’s program may be discerned from the face of the statute”); see also Wallace v. Jaffree , 472 U. S. 38 , 74 (O’Connor, J., concurring in judgment) (“the inquiry into the purpose of the legislature . . . should be deferential and limited”). Footnote 10 The Court’s only response is that the inclusion of the Ten Commandments in a display about the foundations of American law reflects “a purpose to call on citizens to act in prescribed ways as a personal response to divine authority,” in a way that legislative prayer and the inclusion of a crčche in a Holiday display do not. See ante , at 30, n. 24. That might be true if the Commandments were displayed by themselves in a church, or even in someone’s home. It seems to me patently untrue—given the Decalogue’s “undeniable historical meaning” as a symbol of the religious foundations of law, see Van Orden , ante , at 11 (plurality opinion)—when they are posted in a courthouse display of historical documents. The observer would no more think himself “called upon to act” in conformance with the Commandments than he would think himself called upon to think and act like William Bradford because of the courthouse posting of the Mayflower Compact—especially when he is told that the exhibit consists of documents that contributed to American law and government. Footnote 11 The significant number of cases involving Ten Commandments displays in the last two years suggests the breadth of their appearance. See, e.g. , Books v. Elkhart County , 401 F. 3d 857, 858–859 (CA7 2005) (Ten Commandments included in a display identical to the Foundations display); Mercier v. Fraternal Order of Eagles , 395 F. 3d 693, 696 (CA7 2005) (Ten Commandments monument in city park since 1965); Modrovich v. Allegheny County , 385 F. 3d 397, 399 (CA3 2004) (Ten Commandments plaque, donated in 1918, on wall of Allegheny County Courthouse); Freethought Soc. of Greater Philadelphia v. Chester County , 334 F. 3d 247, 249 (CA3 2003) (Ten Commandment plaque, donated in 1920, on wall of Chester County Courthouse); King v. Richmond County , 331 F. 3d 1271, 1273–1274 (CA11 2003) (Ten Commandments depicted in county seal since 1872). Footnote 12 Because there are interpretational differences between faiths and within faiths concerning the meaning and perhaps even the text of the Commandments, Justice Stevens maintains that any display of the text of the Ten Commandments is impermissible because it “invariably places the [government] at the center of a serious sectarian dispute.” Van Orden , ante , at 13 (dissenting opinion). I think not. The sectarian dispute regarding text, if serious, is not widely known. I doubt that most religious adherents are even aware that there are competing versions with doctrinal consequences (I certainly was not). In any event, the context of the display here could not conceivably cause the viewer to believe that the government was taking sides in a doctrinal controversy. Footnote 13 Posted less than a month after respondents filed suit, the second displays included an excerpt from the Declaration of Independence, the Preamble to the Kentucky Constitution, a page from the Congressional Record declaring 1983 to be the Year of the Bible and the proclamation of President Reagan stating the same, a proclamation of President Lincoln designating April 30, 1863 as a National Day of Prayer and Humiliation, an excerpt from Lincoln’s “Reply to Loyal Colored People of Baltimore upon Presentation of a Bible” stating that “[t]he Bible is the best gift God has ever given to man,” and the Mayflower Compact. 96 F. Supp. 2d 679, 684 (ED Ky., 2000). The Counties erected the displays in accordance with a resolution passed by their legislative bodies, authorizing the County-Judge Executives “to read or post the Ten Commandments as the precedent legal code upon which the civil and criminal codes of the Commonwealth of Kentucky are founded,” and to display alongside the Ten Commandments copies of the documents listed above “without censorship because of any Christian or religious references in these writings, documents, and historical records.” Def. Exh. 1 in Memorandum in Support of Defendants’ Motion to Dismiss in Civ. A. No. 99–507, p. 1 (ED Ky.) (hereinafter Def. Exh. 1). Footnote 14 Contrary to the Court’s suggestion, see ante , at 24, n. 20, it is clear that the resolutions were closely tied to the second displays, but not to the third. Each of the documents included in the second displays was authorized by the resolutions, and those displays, consistent with the resolutions’ direction to “post the Ten Commandments as the precedent legal code upon which the civil and criminal codes of the Commonwealth of Kentucky are founded,” Def. Exh. 1, consisted of a large copy of the Ten Commandments alongside much smaller framed copies of other historical, religious documents. The third displays, in contrast, included documents not mentioned in the resolutions (the Magna Carta and a picture of Lady Justice) and did not include documents authorized by the resolutions (correspondence and proclamations of Abraham Lincoln and the Resolution of Congress declaring 1983 to be the Year of the Bible). The resolutions also provided that they were to be posted beside the displays that they authorized. Def. Exh. 1, at 9. Yet respondents have never suggested the resolutions were posted next to the third displays, and the record before the Court indicates that they were not. The photos included in the Appendix show that the third displays included 10 frames—the nine historical documents and the prefatory statement explaining the relevance of each of the documents. See App. to Pet. for Cert. 177a (McCreary County), 178a (Pulaski County).

Here is a summary of the case: **Background:** - Two Kentucky counties, McCreary and Pulaski, displayed the Ten Commandments in their courthouses. - The displays were challenged as violations of the Establishment Clause, which prohibits the government from establishing an official religion or favoring one religion over others. **Issue:** - The issue was whether the counties' purpose in posting the displays was religious or secular and whether the evolution of the displays could be considered in determining their purpose. **Holding:** - The Supreme Court held that the counties' objective in posting the displays was dispositive in determining whether they violated the Establishment Clause. - The Court also ruled that the evolution of the displays could be considered in evaluating their purpose. **Outcome:** - The Court found that the counties' displays, which included religious documents and resolutions, suggested an improper purpose of endorsing religion. - The displays were ruled unconstitutional, and the counties were ordered to remove them.

Religion

Gonzales v. O Centro Espírita Beneficente União do Vegetal

https://supreme.justia.com/cases/federal/us/546/418/

OPINION OF THE COURT GONZALES V. O CENTRO ESPIRITA BENEFICENTEUNIAO DO VEGETAL 546 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 04-1084 ALBERTO R. GONZALES, ATTORNEY GENERAL, et al., PETITIONERS v. O CENTRO ESPIRITA BENEFICENTE UNIAO DO VEGETAL et al. on writ of certiorari to the united states court of appeals for the tenth circuit [February 21, 2006]    Chief Justice Roberts delivered the opinion of the Court.    A religious sect with origins in the Amazon Rainforest receives communion by drinking a sacramental tea, brewed from plants unique to the region, that contains a hallucinogen regulated under the Controlled Substances Act by the Federal Government. The Government concedes that this practice is a sincere exercise of religion, but nonetheless sought to prohibit the small American branch of the sect from engaging in the practice, on the ground that the Controlled Substances Act bars all use of the hallucinogen. The sect sued to block enforcement against it of the ban on the sacramental tea, and moved for a preliminary injunction.    It relied on the Religious Freedom Restoration Act of 1993, which prohibits the Federal Government from substantially burdening a person’s exercise of religion, unless the Government “demonstrates that application of the burden to the person” represents the least restrictive means of advancing a compelling interest. 42 U. S. C. §2000bb–1(b). The District Court granted the preliminary injunction, and the Court of Appeals affirmed. We granted the Government’s petition for certiorari. Before this Court, the Government’s central submission is that it has a compelling interest in the uniform application of the Controlled Substances Act, such that no exception to the ban on use of the hallucinogen can be made to accommodate the sect’s sincere religious practice. We conclude that the Government has not carried the burden expressly placed on it by Congress in the Religious Freedom Restoration Act, and affirm the grant of the preliminary injunction. I    In Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), this Court held that the Free Exercise Clause of the First Amendment does not prohibit governments from burdening religious practices through generally applicable laws. In Smith , we rejected a challenge to an Oregon statute that denied unemployment benefits to drug users, including Native Americans engaged in the sacramental use of peyote. Id., at 890. In so doing, we rejected the interpretation of the Free Exercise Clause announced in Sherbert v. Verner , 374 U. S. 398 (1963), and, in accord with earlier cases, see Smith , 494 U. S., at 879–880, 884–885, held that the Constitution does not require judges to engage in a case-by-case assessment of the religious burdens imposed by facially constitutional laws. Id., at 883–890.    Congress responded by enacting the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, as amended, 42 U. S. C. §2000bb et seq. , which adopts a statutory rule comparable to the constitutional rule rejected in Smith . Under RFRA, the Federal Government may not, as a statutory matter, substantially burden a person’s exercise of religion, “even if the burden results from a rule of general applicability.” §2000bb–1(a). The only exception recognized by the statute requires the Government to satisfy the compelling interest test—to “demonstrat[e] that application of the burden to the person—(1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” §2000bb–1(b). A person whose religious practices are burdened in violation of RFRA “may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief.” §2000bb–1(c).[ Footnote 1 ]    The Controlled Substances Act, 84 Stat. 1242, as amended, 21 U. S. C. §801 et seq . (2000 ed. and Supp. I), regulates the importation, manufacture, distribution, and use of psychotropic substances. The Act classifies substances into five schedules based on their potential for abuse, the extent to which they have an accepted medical use, and their safety. See §812(b) (2000 ed.). Substances listed in Schedule I of the Act are subject to the most comprehensive restrictions, including an outright ban on all importation and use, except pursuant to strictly regulated research projects. See §§823, 960(a)(1). The Act authorizes the imposition of a criminal sentence for simple possession of Schedule I substances, see §844(a), and mandates the imposition of a criminal sentence for possession “with intent to manufacture, distribute, or dispense” such substances, see §§841(a), (b).    O Centro Espírita Beneficente Uniăo do Vegetal (UDV) is a Christian Spiritist sect based in Brazil, with an American branch of approximately 130 individuals. Central to the UDV’s faith is receiving communion through hoasca (pronounced “wass-ca”), a sacramental tea made from two plants unique to the Amazon region. One of the plants, psychotria viridis , contains dimethyltryptamine (DMT), a hallucinogen whose effects are enhanced by alkaloids from the other plant, banisteriopsis caapi . DMT, as well as “any material, compound, mixture, or preparation, which contains any quantity of [DMT],” is listed in Schedule I of the Controlled Substances Act. §812(c), Schedule I(c).    In 1999, United States Customs inspectors intercepted a shipment to the American UDV containing three drums of hoasca . A subsequent investigation revealed that the UDV had received 14 prior shipments of hoasca . The inspectors seized the intercepted shipment and threatened the UDV with prosecution.    The UDV filed suit against the Attorney General and other federal law enforcement officials, seeking declaratory and injunctive relief. The complaint alleged, inter alia, that applying the Controlled Substances Act to the UDV’s sacramental use of hoasca violates RFRA. Prior to trial, the UDV moved for a preliminary injunction, so that it could continue to practice its faith pending trial on the merits.    At a hearing on the preliminary injunction, the Government conceded that the challenged application of the Controlled Substances Act would substantially burden a sincere exercise of religion by the UDV. See O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft , 282 F. Supp. 2d 1236, 1252 (NM 2002). The Government argued, however, that this burden did not violate RFRA, because applying the Controlled Substances Act in this case was the least restrictive means of advancing three compelling governmental interests: protecting the health and safety of UDV members, preventing the diversion of hoasca from the church to recreational users, and complying with the 1971 United Nations Convention on Psychotropic Substances, a treaty signed by the United States and implemented by the Act. Feb. 21, 1971, [1979–1980], 32 U. S. T. 543, T. I. A. S. No. 9725. See 282 F. Supp. 2d, at 1252–1253.    The District Court heard evidence from both parties on the health risks of hoasca and the potential for diversion from the church. The Government presented evidence to the effect that use of hoasca , or DMT more generally, can cause psychotic reactions, cardiac irregularities, and adverse drug interactions. The UDV countered by citing studies documenting the safety of its sacramental use of hoasca and presenting evidence that minimized the likelihood of the health risks raised by the Government. With respect to diversion, the Government pointed to a general rise in the illicit use of hallucinogens, and cited interest in the illegal use of DMT and hoasca in particular; the UDV emphasized the thinness of any market for hoasca , the relatively small amounts of the substance imported by the church, and the absence of any diversion problem in the past.    The District Court concluded that the evidence on health risks was “in equipoise,” and similarly that the evidence on diversion was “virtually balanced.” Id., at 1262, 1266. In the face of such an even showing, the court reasoned that the Government had failed to demonstrate a compelling interest justifying what it acknowledged was a substantial burden on the UDV’s sincere religious exercise. Id., at 1255. The court also rejected the asserted interest in complying with the 1971 Convention on Psychotropic Substances, holding that the Convention does not apply to hoasca . Id., at 1266–1269.    The court entered a preliminary injunction prohibiting the Government from enforcing the Controlled Substances Act with respect to the UDV’s importation and use of hoasca . The injunction requires the church to import the tea pursuant to federal permits, to restrict control over the tea to persons of church authority, and to warn particularly susceptible UDV members of the dangers of hoasca . See Preliminary Injunction ¶¶2, 5–12, 32–33, App. F to App. to Pet. for Cert. 249a, 250a–252a, 258a–259a. The injunction also provides that “if [the Government] believe[s] that evidence exists that hoasca has negatively affected the health of UDV members,” or “that a shipment of hoasca contain[s] particularly dangerous levels of DMT, [the Government] may apply to the Court for an expedited determination of whether the evidence warrants suspension or revocation of [the UDV’s authority to use hoasca ].” Id. , at 257a, ¶29.    The Government appealed the preliminary injunction and a panel of the Court of Appeals for the Tenth Circuit affirmed, O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 342 F. 3d 1170 (2003), as did a majority of the Circuit sitting en banc, 389 F. 3d 973 (2004). We granted certiorari. 544 U. S. 973 (2005). II    Although its briefs contain some discussion of the potential for harm and diversion from the UDV’s use of hoasca , the Government does not challenge the District Court’s factual findings or its conclusion that the evidence submitted on these issues was evenly balanced. Instead, the Government maintains that such evidentiary equipoise is an insufficient basis for issuing a preliminary injunction against enforcement of the Controlled Substances Act. We review the District Court’s legal rulings de novo and its ultimate decision to issue the preliminary injunction for abuse of discretion. See McCreary County v. American Civil Liberties Union , 545 U. S. ___ , ___ (2005) (slip op., at 19).    The Government begins by invoking the well-established principle that the party seeking pretrial relief bears the burden of demonstrating a likelihood of success on the merits. See, e.g., Mazurek v. Armstrong, 520 U. S. 968 , 972 (1997) (per curiam); Doran v. Salem Inn, Inc., 422 U. S. 922 , 931 (1975). The Government argues that the District Court lost sight of this principle in issuing the injunction based on a mere tie in the evidentiary record.    A majority of the en banc Court of Appeals rejected this argument, and so do we. Before the District Court, the Government conceded the UDV’s prima facie case under RFRA. See 282 F. Supp. 2d, at 1252 (application of the Controlled Substances Act would (1) substantially burden (2) a sincere (3) religious exercise). The evidence the District Court found to be in equipoise related to two of the compelling interests asserted by the Government, which formed part of the Government’s affirmative defense. See 42 U. S. C. §2000bb–1(b) (“Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—(1) is in furtherance of a compelling government interest …” (emphasis added)); §2000bb–2(3) (“[T]he term ‘demonstrates’ means meets the burdens of going forward with the evidence and of persuasion”). Accordingly, the UDV effectively demonstrated that its sincere exercise of religion was substantially burdened, and the Government failed to demonstrate that the application of the burden to the UDV would, more likely than not, be justified by the asserted compelling interests. See 389 F. 3d, at 1009 (Seymour, J., concurring in part and dissenting in part) (“[T]he balance is between actual irreparable harm to [the] plaintiff and potential harm to the government which does not even rise to the level of a preponderance of the evidence”).    The Government argues that, although it would bear the burden of demonstrating a compelling interest as part of its affirmative defense at trial on the merits, the UDV should have borne the burden of disproving the asserted compelling interests at the hearing on the preliminary injunction. This argument is foreclosed by our recent decision in Ashcroft v. American Civil Liberties Union, 542 U. S. 656 (2004). In Ashcroft , we affirmed the grant of a preliminary injunction in a case where the Government had failed to show a likelihood of success under the compelling interest test. We reasoned that “[a]s the Government bears the burden of proof on the ultimate question of [the challenged Act’s] constitutionality, respondents [the movants] must be deemed likely to prevail unless the Government has shown that respondents’ proposed less restrictive alternatives are less effective than [enforcing the Act].” Id., at 666. That logic extends to this case; here the Government failed on the first prong of the compelling interest test, and did not reach the least restrictive means prong, but that can make no difference. The point remains that the burdens at the preliminary injunction stage track the burdens at trial.    The Government attempts to limit the rule announced in Ashcroft to content-based restrictions on speech, but the distinction is unavailing. The fact that Ashcroft involved such a restriction was the reason the Government had the burden of proof at trial under the First Amendment, see id., at 665, but in no way affected the Court’s assessment of the consequences of having that burden for purposes of the preliminary injunction. Here the burden is placed squarely on the Government by RFRA rather than the First Amendment, see 42 U. S. C. §§2000bb–1(b), 2000bb–2(3), but the consequences are the same. Congress’ express decision to legislate the compelling interest test indicates that RFRA challenges should be adjudicated in the same manner as constitutionally mandated applications of the test, including at the preliminary injunction stage. III    The Government’s second line of argument rests on the Controlled Substances Act itself. The Government contends that the Act’s description of Schedule I substances as having “a high potential for abuse,” “no currently accepted medical use in treatment in the United States,” and “a lack of accepted safety for use … under medical supervision,” 21 U. S. C. §812(b)(1), by itself precludes any consideration of individualized exceptions such as that sought by the UDV. The Government goes on to argue that the regulatory regime established by the Act—a “closed” system that prohibits all use of controlled substances except as authorized by the Act itself, see Gonzales v. Raich, 545 U. S. ___, ___ (2005) (slip op., at 10)—“cannot function with its necessary rigor and comprehensiveness if subjected to judicial exemptions.” Brief for Petitioners 18. According to the Government, there would be no way to cabin religious exceptions once recognized, and “the public will misread” such exceptions as signaling that the substance at issue is not harmful after all. Id., at 23. Under the Government’s view, there is no need to assess the particulars of the UDV’s use or weigh the impact of an exemption for that specific use, because the Controlled Substances Act serves a compelling purpose and simply admits of no exceptions. A    RFRA, and the strict scrutiny test it adopted, contemplate an inquiry more focused than the Government’s categorical approach. RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law “to the person”—the particular claimant whose sincere exercise of religion is being substantially burdened. 42 U. S. C. §2000bb–1(b). RFRA expressly adopted the compelling interest test “as set forth in Sherbert v. Verner , 374 U. S. 398 (1963) and Wisconsin v. Yoder, 406 U. S. 205 (1972).” 42 U. S. C. §2000bb(b)(1). In each of those cases, this Court looked beyond broadly formulated interests justifying the general applicability of government mandates and scrutinized the asserted harm of granting specific exemptions to particular religious claimants. In Yoder, for example, we permitted an exemption for Amish children from a compulsory school attendance law. We recognized that the State had a “paramount” interest in education, but held that “despite its admitted validity in the generality of cases, we must searchingly examine the interests that the State seeks to promote … and the impediment to those objectives that would flow from recognizing the claimed Amish exemption .” 406 U. S., at 213, 221 (emphasis added). The Court explained that the State needed “to show with more particularity how its admittedly strong interest … would be adversely affected by granting an exemption to the Amish .” Id., at 236 (emphasis added).    In Sherbert, the Court upheld a particular claim to a religious exemption from a state law denying unemployment benefits to those who would not work on Saturdays, but explained that it was not announcing a constitutional right to unemployment benefits for “ all persons whose religious convictions are the cause of their unemployment.” 374 U. S., at 410 (emphasis added). The Court distinguished the case “in which an employee’s religious convictions serve to make him a nonproductive member of society.” Ibid.; see also Smith, 494 U. S., at 899 (O’Connor, J., concurring in judgment) (strict scrutiny “at least requires a case-by-case determination of the question, sensitive to the facts of each particular claim”). Outside the Free Exercise area as well, the Court has noted that “[c]ontext matters” in applying the compelling interest test, Grutter v. Bollinger, 539 U. S. 306 , 327 (2003), and has emphasized that “strict scrutiny does take ‘relevant differences’ into account—indeed, that is its fundamental purpose,” Adarand Constructors, Inc. v. Peńa, 515 U. S. 200 , 228 (1995). B    Under the more focused inquiry required by RFRA and the compelling interest test, the Government’s mere invocation of the general characteristics of Schedule I substances, as set forth in the Controlled Substances Act, cannot carry the day. It is true, of course, that Schedule I substances such as DMT are exceptionally dangerous. See, e.g., Touby v. United States, 500 U. S. 160 , 162 (1991). Nevertheless, there is no indication that Congress, in classifying DMT, considered the harms posed by the particular use at issue here—the circumscribed, sacramental use of hoasca by the UDV. The question of the harms from the sacramental use of hoasca by the UDV was litigated below. Before the District Court found that the Government had not carried its burden of showing a compelling interest in preventing such harms, the court noted that it could not “ignore that the legislative branch of the government elected to place materials containing DMT on Schedule I of the [Act], reflecting findings that substances containing DMT have ‘a high potential for abuse,’ and ‘no currently accepted medical use in treatment in the United States,’ and that ‘[t]here is a lack of accepted safety for use of [DMT] under medical supervision.’ ” 282 F. Supp. 2d, at 1254. But Congress’ determination that DMT should be listed under Schedule I simply does not provide a categorical answer that relieves the Government of the obligation to shoulder its burden under RFRA.    This conclusion is reinforced by the Controlled Substances Act itself. The Act contains a provision authorizing the Attorney General to “waive the requirement for registration of certain manufacturers, distributors, or dispensers if he finds it consistent with the public health and safety.” 21 U. S. C. §822(d). The fact that the Act itself contemplates that exempting certain people from its requirements would be “consistent with the public health and safety” indicates that congressional findings with respect to Schedule I substances should not carry the determinative weight, for RFRA purposes, that the Government would ascribe to them.    And in fact an exception has been made to the Schedule I ban for religious use. For the past 35 years, there has been a regulatory exemption for use of peyote—a Schedule I substance—by the Native American Church. See 21 CFR §1307.31 (2005). In 1994, Congress extended that exemption to all members of every recognized Indian Tribe. See 42 U. S. C. §1996a(b)(1). Everything the Government says about the DMT in hoasca —that, as a Schedule I substance, Congress has determined that it “has a high potential for abuse,” “has no currently accepted medical use,” and has “a lack of accepted safety for use … under medical supervision,” 21 U. S. C. §812(b)(1)—applies in equal measure to the mescaline in peyote, yet both the Executive and Congress itself have decreed an exception from the Controlled Substances Act for Native American religious use of peyote. If such use is permitted in the face of the congressional findings in §812(b)(1) for hundreds of thousands of Native Americans practicing their faith, it is difficult to see how those same findings alone can preclude any consideration of a similar exception for the 130 or so American members of the UDV who want to practice theirs. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 , 547 (1993) (“It is established in our strict scrutiny jurisprudence that ‘a law cannot be regarded as protecting an interest ‘of the highest order’ … when it leaves appreciable damage to that supposedly vital interest unprohibited’ ” (quoting Florida Star v. B. J. F., 491 U. S. 524 , 541–542 (1989) (Scalia, J., concurring in part and concurring in judgment))).    The Government responds that there is a “unique relationship” between the United States and the Tribes, Brief for Petitioners 27; see Morton v. Mancari, 417 U. S. 535 (1974), but never explains what about that “unique” relationship justifies overriding the same congressional findings on which the Government relies in resisting any exception for the UDV’s religious use of hoasca. In other words, if any Schedule I substance is in fact always highly dangerous in any amount no matter how used, what about the unique relationship with the Tribes justifies allowing their use of peyote? Nothing about the unique political status of the Tribes makes their members immune from the health risks the Government asserts accompany any use of a Schedule I substance, nor insulates the Schedule I substance the Tribes use in religious exercise from the alleged risk of diversion.    The Government argues that the existence of a congressional exemption for peyote does not indicate that the Controlled Substances Act is amenable to judicially crafted exceptions. RFRA, however, plainly contemplates that courts would recognize exceptions—that is how the law works. See 42 U. S. C. §2000bb–1(c) (“A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government”). Congress’ role in the peyote exemption—and the Executive’s, see 21 CFR §1307.31 (2005)—confirms that the findings in the Controlled Substances Act do not preclude exceptions altogether; RFRA makes clear that it is the obligation of the courts to consider whether exceptions are required under the test set forth by Congress. C    The well-established peyote exception also fatally undermines the Government’s broader contention that the Controlled Substances Act establishes a closed regulatory system that admits of no exceptions under RFRA. The Government argues that the effectiveness of the Controlled Substances Act will be “necessarily … undercut” if the Act is not uniformly applied, without regard to burdens on religious exercise. Brief for Petitioners 18. The peyote exception, however, has been in place since the outset of the Controlled Substances Act, and there is no evidence that it has “undercut” the Government’s ability to enforce the ban on peyote use by non-Indians.    The Government points to some pre- Smith cases relying on a need for uniformity in rejecting claims for religious exemptions under the Free Exercise Clause, see Brief for Petitioners 16, but those cases strike us as quite different from the present one. Those cases did not embrace the notion that a general interest in uniformity justified a substantial burden on religious exercise; they instead scrutinized the asserted need and explained why the denied exemptions could not be accommodated. In United States v. Lee, 455 U. S. 252 (1982), for example, the Court rejected a claimed exception to the obligation to pay Social Security taxes, noting that “mandatory participation is indispensable to the fiscal vitality of the social security system” and that the “tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief.” Id., at 258, 260. See also Hernandez v. Commissioner, 490 U. S. 680 , 700 (1989) (same). In Braunfeld v. Brown, 366 U. S. 599 (1961) (plurality opinion), the Court denied a claimed exception to Sunday closing laws, in part because allowing such exceptions “might well provide [the claimants] with an economic advantage over their competitors who must remain closed on that day.” Id., at 608–609. The whole point of a “uniform day of rest for all workers” would have been defeated by exceptions. See Sherbert , 374 U. S., at 408 (discussing Braunfeld ). These cases show that the Government can demonstrate a compelling interest in uniform application of a particular program by offering evidence that granting the requested religious accommodations would seriously compromise its ability to administer the program.    Here the Government’s argument for uniformity is different; it rests not so much on the particular statutory program at issue as on slippery-slope concerns that could be invoked in response to any RFRA claim for an exception to a generally applicable law. The Government’s argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions. But RFRA operates by mandating consideration, under the compelling interest test, of exceptions to “rule[s] of general applicability.” 42 U. S. C. §2000bb–1(a). Congress determined that the legislated test “is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” §200bb(a)(5). This determination finds support in our cases; in Sherbert , for example, we rejected a slippery-slope argument similar to the one offered in this case, dismissing as “no more than a possibility” the State’s speculation “that the filing of fraudulent claims by unscrupulous claimants feigning religious objections to Saturday work” would drain the unemployment benefits fund. 374 U. S., at 407.    We reaffirmed just last Term the feasibility of case-by-case consideration of religious exemptions to generally applicable rules. In Cutter v. Wilkinson , 544 U. S. ___ (2005), we held that the Religious Land Use and Institutionalized Persons Act of 2000, which allows federal and state prisoners to seek religious accommodations pursuant to the same standard as set forth in RFRA, does not violate the Establishment Clause. We had “no cause to believe” that the compelling interest test “would not be applied in an appropriately balanced way” to specific claims for exemptions as they arose. Id., at ___ (slip op., at 12). Nothing in our opinion suggested that courts were not up to the task.    We do not doubt that there may be instances in which a need for uniformity precludes the recognition of exceptions to generally applicable laws under RFRA. But it would have been surprising to find that this was such a case, given the longstanding exemption from the Controlled Substances Act for religious use of peyote, and the fact that the very reason Congress enacted RFRA was to respond to a decision denying a claimed right to sacramental use of a controlled substance. See 42 U. S. C. §2000bb(a)(4). And in fact the Government has not offered evidence demonstrating that granting the UDV an exemption would cause the kind of administrative harm recognized as a compelling interest in Lee , Hernandez , and Braunfeld . The Government failed to convince the District Court at the preliminary injunction hearing that health or diversion concerns provide a compelling interest in banning the UDV’s sacramental use of hoasca . It cannot compensate for that failure now with the bold argument that there can be no RFRA exceptions at all to the Controlled Substances Act. See Tr. of Oral Arg. 17 (Deputy Solicitor General statement that exception could not be made even for “rigorously policed” use of “one drop” of substance “once a year”). IV    Before the District Court, the Government also asserted an interest in compliance with the 1971 United Nations Convention on Psychotropic Substances, Feb. 21, 1971, [1979–1980], 32 U. S. T. 543, T. I. A. S. No. 9725. The Convention, signed by the United States and implemented by the Controlled Substances Act, calls on signatories to prohibit the use of hallucinogens, including DMT. The Government argues that it has a compelling interest in meeting its international obligations by complying with the Convention.    The District Court rejected this interest because it found that the Convention does not cover hoasca . The court relied on the official commentary to the Convention, which notes that “Schedule I [of the Convention] does not list … natural hallucinogenic materials,” and that “[p]lants as such are not, and it is submitted are also not likely to be, listed in Schedule I, but only some products obtained from plants.” U. N. Commentary on the Convention on Psychotropic Substances 387, 385 (1976). The court reasoned that hoasca , like the plants from which the tea is made, is sufficiently distinct from DMT itself to fall outside the treaty. See 282 F. Supp. 2d, at 1266–1269.    We do not agree. The Convention provides that “a preparation is subject to the same measures of control as the psychotropic substance which it contains,” and defines “preparation” as “any solution or mixture, in whatever physical state, containing one or more psychotropic substances.” See 32 U. S. T., at 546, Art. 1(f)(i); id., at 551, Art. 3. Hoasca is a “solution or mixture” containing DMT; the fact that it is made by the simple process of brewing plants in water, as opposed to some more advanced method, does not change that. To the extent the commentary suggests plants themselves are not covered by the Convention, that is of no moment—the UDV seeks to import and use a tea brewed from plants, not the plants themselves, and the tea plainly qualifies as a “preparation” under the Convention.    The fact that hoasca is covered by the Convention, however, does not automatically mean that the Government has demonstrated a compelling interest in applying the Controlled Substances Act, which implements the Convention, to the UDV’s sacramental use of the tea. At the present stage, it suffices to observe that the Government did not even submit evidence addressing the international consequences of granting an exemption for the UDV. The Government simply submitted two affidavits by State Department officials attesting to the general importance of honoring international obligations and of maintaining the leadership position of the United States in the international war on drugs. See Declaration of Gary T. Sheridan (Jan. 24, 2001), App. G to App. to Pet. for Cert. 261a; Declaration of Robert E. Dalton (Jan. 24, 2001), App. H, id., at 265a. We do not doubt the validity of these interests, any more than we doubt the general interest in promoting public health and safety by enforcing the Controlled Substances Act, but under RFRA invocation of such general interests, standing alone, is not enough.[ Footnote 2 ] *  *  *    The Government repeatedly invokes Congress’ findings and purposes underlying the Controlled Substances Act, but Congress had a reason for enacting RFRA, too. Congress recognized that “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise,” and legislated “the compelling interest test” as the means for the courts to “strik[e] sensible balances between religious liberty and competing prior governmental interests.” 42 U. S. C. §§2000bb(a)(2), (5).    We have no cause to pretend that the task assigned by Congress to the courts under RFRA is an easy one. Indeed, the very sort of difficulties highlighted by the Government here were cited by this Court in deciding that the approach later mandated by Congress under RFRA was not required as a matter of constitutional law under the Free Exercise Clause. See Smith, 494 U. S., at 885–890. But Congress has determined that courts should strike sensible balances, pursuant to a compelling interest test that requires the Government to address the particular practice at issue. Applying that test, we conclude that the courts below did not err in determining that the Government failed to demonstrate, at the preliminary injunction stage, a compelling interest in barring the UDV’s sacramental use of hoasca .    The judgment of the United States Court of Appeals for the Tenth Circuit is affirmed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.    Justice Alito took no part in the consideration or decision of this case. Footnote 1 As originally enacted, RFRA applied to States as well as the Federal Government. In City of Boerne v. Flores, 521 U. S. 507 (1997), we held the application to States to be beyond Congress’ legislative authority under §5 of the 14th Amendment. Footnote 2 In light of the foregoing, we do not reach the UDV’s argument that Art. 22, ¶5, of the Convention should be read to accommodate exceptions under domestic laws such as RFRA.

In *Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal*, the Supreme Court ruled that the government failed to demonstrate a compelling interest in prohibiting a religious sect from using a hallucinogenic tea as a sacrament, as protected by the Religious Freedom Restoration Act (RFRA). The Court affirmed the grant of a preliminary injunction, allowing the sect to continue its religious practice.

Religion

Van Orden v. Perry

https://supreme.justia.com/cases/federal/us/545/677/

OPINION OF REHNQUIST, C. J. VAN ORDEN V. PERRY 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-1500 THOMAS VAN ORDEN, PETITIONER v. RICK PERRY, in his official capacity as GOVERNOR OF TEXAS and CHAIRMAN, STATE PRESERVATION BOARD, et al. on writ of certiorari to the united states court of appeals for the fifth circuit [June 27, 2005]    Chief Justice Rehnquist announced the judgment of the Court and delivered an opinion, in which Justice Scalia, Justice Kennedy, and Justice Thomas join.    The question here is whether the Establishment Clause of the First Amendment allows the display of a monument inscribed with the Ten Commandments on the Texas State Capitol grounds. We hold that it does.    The 22 acres surrounding the Texas State Capitol contain 17 monuments and 21 historical markers commemorating the “people, ideals, and events that compose Texan identity.” Tex. H. Con. Res. 38, 77th Leg. (2001).[ Footnote 1 ] The monolith challenged here stands 6-feet high and 3-feet wide. It is located to the north of the Capitol building, between the Capitol and the Supreme Court building. Its primary content is the text of the Ten Commandments. An eagle grasping the American flag, an eye inside of a pyramid, and two small tablets with what appears to be an ancient script are carved above the text of the Ten Commandments. Below the text are two Stars of David and the superimposed Greek letters Chi and Rho, which represent Christ. The bottom of the monument bears the inscription “PRESENTED TO THE PEOPLE AND YOUTH OF TEXAS BY THE FRATERNAL ORDER OF EAGLES OF TEXAS 1961.” App. to Pet. for Cert. 21.    The legislative record surrounding the State’s acceptance of the monument from the Eagles—a national social, civic, and patriotic organization—is limited to legislative journal entries. After the monument was accepted, the State selected a site for the monument based on the recommendation of the state organization responsible for maintaining the Capitol grounds. The Eagles paid the cost of erecting the monument, the dedication of which was presided over by two state legislators.    Petitioner Thomas Van Orden is a native Texan and a resident of Austin. At one time he was a licensed lawyer, having graduated from Southern Methodist Law School. Van Orden testified that, since 1995, he has encountered the Ten Commandments monument during his frequent visits to the Capitol grounds. His visits are typically for the purpose of using the law library in the Supreme Court building, which is located just northwest of the Capitol building.    Forty years after the monument’s erection and six years after Van Orden began to encounter the monument frequently, he sued numerous state officials in their official capacities under Rev. Stat. §1979, 42 U. S. C. §1983, seeking both a declaration that the monument’s placement violates the Establishment Clause and an injunction requiring its removal. After a bench trial, the District Court held that the monument did not contravene the Establishment Clause. It found that the State had a valid secular purpose in recognizing and commending the Eagles for their efforts to reduce juvenile delinquency. The District Court also determined that a reasonable observer, mindful of the history, purpose, and context, would not conclude that this passive monument conveyed the message that the State was seeking to endorse religion. The Court of Appeals affirmed the District Court’s holdings with respect to the monument’s purpose and effect. 351 F. 3d 173 (CA5 2003). We granted certiorari, 543 U. S. ___ (2004), and now affirm.    Our cases, Januslike, point in two directions in applying the Establishment Clause. One face looks toward the strong role played by religion and religious traditions throughout our Nation’s history. As we observed in School Dist. of Abington Township v. Schempp, 374 U. S. 203 (1963):    “It is true that religion has been closely identified with our history and government… . The fact that the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself… . It can be truly said, therefore, that today, as in the beginning, our national life reflects a religious people who, in the words of Madison, are ‘earnestly praying, as … in duty bound, that the Supreme Lawgiver of the Universe … guide them into every measure which may be worthy of his [blessing … .]’ ” Id. , at 212–213.[ Footnote 2 ] The other face looks toward the principle that governmental intervention in religious matters can itself endanger religious freedom.    This case, like all Establishment Clause challenges, presents us with the difficulty of respecting both faces. Our institutions presuppose a Supreme Being, yet these institutions must not press religious observances upon their citizens. One face looks to the past in acknowledgment of our Nation’s heritage, while the other looks to the present in demanding a separation between church and state. Reconciling these two faces requires that we neither abdicate our responsibility to maintain a division between church and state nor evince a hostility to religion by disabling the government from in some ways recognizing our religious heritage: “When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups… . [W]e find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence.” Zorach v. Clauson, 343 U. S. 306 , 313–314 (1952). See also Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 , 845–846 (1995) (warning against the “risk [of] fostering a pervasive bias or hostility to religion, which could undermine the very neutrality the Establishment Clause requires”).[ Footnote 3 ]    These two faces are evident in representative cases both upholding[ Footnote 4 ] and invalidating[ Footnote 5 ] laws under the Establishment Clause. Over the last 25 years, we have sometimes pointed to Lemon v. Kurtzman , 403 U. S. 602 (1971), as providing the governing test in Establishment Clause challenges.[ Footnote 6 ] Compare Wallace v. Jaffree, 472 U. S. 38 (1985) (applying Lemon ), with Marsh v. Chambers, 463 U. S. 783 (1983) (not applying Lemon ). Yet, just two years after Lemon was decided, we noted that the factors identified in Lemon serve as “no more than helpful signposts.” Hunt v. McNair, 413 U. S. 734 , 741 (1973). Many of our recent cases simply have not applied the Lemon test. See, e.g. , Zelman v. Simmons-Harris, 536 U. S. 639 (2002); Good News Club v. Milford Central School, 533 U. S. 98 (2001). Others have applied it only after concluding that the challenged practice was invalid under a different Establishment Clause test.    Whatever may be the fate of the Lemon test in the larger scheme of Establishment Clause jurisprudence, we think it not useful in dealing with the sort of passive monument that Texas has erected on its Capitol grounds. Instead, our analysis is driven both by the nature of the monument and by our Nation’s history.    As we explained in Lynch v. Donnelly, 465 U. S. 668 (1984): “There is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789.” Id., at 674. For example, both Houses passed resolutions in 1789 asking President George Washington to issue a Thanksgiving Day Proclamation to “recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging, with grateful hearts, the many and signal favors of Almighty God.” 1 Annals of Cong. 90, 914. President Washington’s proclamation directly attributed to the Supreme Being the foundations and successes of our young Nation:    “Now, therefore, I do recommend and assign Thursday, the 26th day of November next, to be devoted by the people of these States to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be; that we may then all unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people of this country previous to their becoming a nation; for the signal and manifold mercies and the favorable interpositions of His providence in the course and conclusion of the late war; for the great degree of tranquillity, union, and plenty which we have since enjoyed; for the peaceable and rational manner in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national one now lately instituted; for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge; and, in general, for all the great and various favors which He has been pleased to confer upon us.” 1 J. Richardson, Messages and Papers of the Presidents, 1789–1897, p. 64 (1899).    Recognition of the role of God in our Nation’s heritage has also been reflected in our decisions. We have acknowledged, for example, that “religion has been closely identified with our history and government,” School Dist. of Abington Township v. Schempp, 374 U. S., at 212, and that “[t]he history of man is inseparable from the history of religion,” Engel v. Vitale, 370 U. S. 421 , 434 (1962).[ Footnote 7 ] This recognition has led us to hold that the Establishment Clause permits a state legislature to open its daily sessions with a prayer by a chaplain paid by the State. Marsh v. Chambers , 463 U. S., at 792.[ Footnote 8 ] Such a practice, we thought, was “deeply embedded in the history and tradition of this country.” Id. , at 786. As we observed there, “it would be incongruous to interpret [the Establishment Clause] as imposing more stringent First Amendment limits on the states than the draftsmen imposed on the Federal Government.” Id. , at 790–791. With similar reasoning, we have upheld laws, which originated from one of the Ten Commandments, that prohibited the sale of merchandise on Sunday. McGowan v. Maryland, 366 U. S. 420 , 431–440 (1961); see id ., at 470–488 (separate opinion of Frankfurter, J.).    In this case we are faced with a display of the Ten Commandments on government property outside the Texas State Capitol. Such acknowledgments of the role played by the Ten Commandments in our Nation’s heritage are common throughout America. We need only look within our own Courtroom. Since 1935, Moses has stood, holding two tablets that reveal portions of the Ten Commandments written in Hebrew, among other lawgivers in the south frieze. Representations of the Ten Commandments adorn the metal gates lining the north and south sides of the Courtroom as well as the doors leading into the Courtroom. Moses also sits on the exterior east facade of the building holding the Ten Commandments tablets.    Similar acknowledgments can be seen throughout a visitor’s tour of our Nation’s Capital. For example, a large statue of Moses holding the Ten Commandments, alongside a statue of the Apostle Paul, has overlooked the rotunda of the Library of Congress’ Jefferson Building since 1897. And the Jefferson Building’s Great Reading Room contains a sculpture of a woman beside the Ten Commandments with a quote above her from the Old Testament (Micah 6:8). A medallion with two tablets depicting the Ten Commandments decorates the floor of the National Archives. Inside the Department of Justice, a statue entitled “The Spirit of Law” has two tablets representing the Ten Commandments lying at its feet. In front of the Ronald Reagan Building is another sculpture that includes a depiction of the Ten Commandments. So too a 24-foot-tall sculpture, depicting, among other things, the Ten Commandments and a cross, stands outside the federal courthouse that houses both the Court of Appeals and the District Court for the District of Columbia. Moses is also prominently featured in the Chamber of the United States House of Representatives.[ Footnote 9 ]    Our opinions, like our building, have recognized the role the Decalogue plays in America’s heritage. See, e.g. , McGowan v. Maryland, 366 U. S., at 442; id. , at 462 (separate opinion of Frankfurter, J.).[ Footnote 10 ] The Executive and Legislative Branches have also acknowledged the historical role of the Ten Commandments. See, e.g. , Public Papers of the Presidents, Harry S. Truman, 1950, p. 157 (1965); S. Con. Res. 13, 105th Cong., 1st Sess. (1997); H. Con. Res. 31, 105th Cong., 1st Sess. (1997). These displays and recognitions of the Ten Commandments bespeak the rich American tradition of religious acknowledgments.    Of course, the Ten Commandments are religious—they were so viewed at their inception and so remain. The monument, therefore, has religious significance. According to Judeo-Christian belief, the Ten Commandments were given to Moses by God on Mt. Sinai. But Moses was a lawgiver as well as a religious leader. And the Ten Commandments have an undeniable historical meaning, as the foregoing examples demonstrate. Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause. See Lynch v. Donnelly , 465 U. S., at 680, 687; Marsh v. Chambers, 463 U. S., at 792; McGowan v. Maryland , supra , at 437–440; Walz v. Tax Comm’n of City of New York, 397 U. S. 664 , 676–678 (1970).    There are, of course, limits to the display of religious messages or symbols. For example, we held unconstitutional a Kentucky statute requiring the posting of the Ten Commandments in every public schoolroom. Stone v. Graham, 449 U. S. 39 (1980) (per curiam) . In the classroom context, we found that the Kentucky statute had an improper and plainly religious purpose. Id. , at 41. As evidenced by Stone ’s almost exclusive reliance upon two of our school prayer cases, id. , at 41–42 (citing School Dist. of Abington Township v. Schempp, 374 U. S. 203 (1963), and Engel v. Vitale, 370 U. S. 421 (1962)), it stands as an example of the fact that we have “been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools,” Edwards v. Aguillard, 482 U. S. 578 , 583–584 (1987). Compare Lee v. Weisman, 505 U. S. 577 , 596–597 (1992) (holding unconstitutional a prayer at a secondary school graduation), with Marsh v. Chambers, supra (upholding a prayer in the state legislature). Indeed, Edwards v. Aguillard recognized that Stone —along with Schempp and Engel —was a consequence of the “particular concerns that arise in the context of public elementary and secondary schools.” 482 U. S., at 584–585. Neither Stone itself nor subsequent opinions have indicated that Stone ’s holding would extend to a legislative chamber, see Marsh v. Chambers, supra , or to capitol grounds.[ Footnote 11 ]    The placement of the Ten Commandments monument on the Texas State Capitol grounds is a far more passive use of those texts than was the case in Stone, where the text confronted elementary school students every day. Indeed, Van Orden, the petitioner here, apparently walked by the monument for a number of years before bringing this lawsuit. The monument is therefore also quite different from the prayers involved in Schempp and Lee v. Weisman . Texas has treated her Capitol grounds monuments as representing the several strands in the State’s political and legal history. The inclusion of the Ten Commandments monument in this group has a dual significance, partaking of both religion and government. We cannot say that Texas’ display of this monument violates the Establishment Clause of the First Amendment.    The judgment of the Court of Appeals is affirmed. It is so ordered. Footnote 1 The monuments are: Heroes of the Alamo, Hood’s Brigade, Confederate Soldiers, Volunteer Fireman, Terry’s Texas Rangers, Texas Cowboy, Spanish-American War, Texas National Guard, Ten Commandments, Tribute to Texas School Children, Texas Pioneer Woman, The Boy Scouts’ Statue of Liberty Replica, Pearl Harbor Veterans, Korean War Veterans, Soldiers of World War I, Disabled Veterans, and Texas Peace Officers. Footnote 2 See also Engel v. Vitale, 370 U. S. 421 , 434 (1962) (“The history of man is inseparable from the history of religion”); Zorach v. Clauson, 343 U. S. 306 , 313 (1952) (“We are a religious people whose institutions presuppose a Supreme Being”). Footnote 3 Despite Justice Stevens’ recitation of occasional language to the contrary, post , at 4–5, and n. 7 (dissenting opinion), we have not, and do not, adhere to the principle that the Establishment Clause bars any and all governmental preference for religion over irreligion. See, e.g. , Cutter v. Wilkinson , 544 U. S. __ (2005); Corporation of Presiding Bishop of Church of Jesus Christ of Latter&nbhyph;day Saints v. Amos, 483 U. S. 327 (1987); Lynch v. Donnelly , 465 U. S. 668 (1984); Marsh v. Chambers, 463 U. S. 783 (1983); Walz v. Tax Comm’n of City of New York, 397 U. S. 664 (1970). Even the dissenters do not claim that the First Amendment’s Religion Clauses forbid all governmental acknowledgments, preferences, or accommodations of religion. See post , at 6 (opinion of Stevens, J.) (recognizing that the Establishment Clause permits some “recognition” or “acknowledgment” of religion); post , at 5, and n. 4 (opinion of Souter, J.) (discussing a number of permissible displays with religious content). Footnote 4 Zelman v. Simmons-Harris , 536 U. S. 639 (2002) (upholding school voucher program); Good News Club v. Milford Central School, 533 U. S. 98 (2001) (holding that allowing religious school groups to use school facilities does not violate the Establishment Clause); Agostini v. Felton , 521 U. S. 203 (1997) (approving a program that provided public employees to teach remedial classes at religious and other private schools), overruling Aguilar v. Felton , 473 U. S. 402 (1985) (barring public school teachers from going to parochial schools to provide remedial education to disadvantaged children), and School Dist. of Grand Rapids v. Ball, 473 U. S. 373 (1985) (striking down a program that provided classes to religious school students at public expense in classrooms leased from religious schools); Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U. S. 819 (1995) (holding that the Establishment Clause does not bar disbursement of funds from student activity fees to religious organizations); Zobrest v. Catalina Foothills School Dist. , 509 U. S. 1 (1993) (allowing a public school district to provide a sign-language interpreter to a deaf student at a Catholic high school as part of a federal program for the disabled); Lynch v. Donnelly, supra (upholding a Christmas display including a crčche); Marsh v. Chambers, supra (upholding legislative prayer); Mueller v. Allen , 463 U. S. 388 (1983) (upholding tax deduction for certain expenses incurred in sending one’s child to a religious school). Footnote 5 Santa Fe Independent School Dist. v. Doe , 530 U. S. 290 (2000) (holding unconstitutional student-initiated and student-led prayer at school football games); Board of Ed. of Kiryas Joel Village School Dist. v. Grumet , 512 U. S. 687 (1994) (invalidating a state law that created a new school district for a single religious community); Lee v. Weisman , 505 U. S. 577 (1992) (prohibiting officially sponsored graduation prayers); County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573 (1989) (holding the display of a crčche in a courthouse unconstitutional but allowing the display of a menorah outside a county building); Texas Monthly, Inc. v. Bullock , 489 U. S. 1 (1989) (plurality opinion) (invalidating a sales tax exemption for all religious periodicals); Edwards v. Aguillard , 482 U. S. 578 (1987) (invalidating a law mandating the teaching of creationism if evolution was taught); Estate of Thornton v. Caldor, Inc. , 472 U. S. 703 (1985) (invalidating state law that gave employees an absolute right not to work on their Sabbath); Wallace v. Jaffree , 472 U. S. 38 (1985) (invalidating law mandating a daily minute of silence for meditation or voluntary prayer). Footnote 6 Lemon sets out a three-prong test: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’ ” 403 U. S., at 612–613 (citation omitted). Footnote 7 See also Elk Grove Unified School Dist. v. Newdow , 542 U. S. 1 , 26 (2004) (Rehnquist, C. J., concurring in judgment) (“Examples of patriotic invocations of God and official acknowledgments of religion’s role in our Nation’s history abound”); id. , at 35–36 (O’Connor, J., concurring in judgment) (“It is unsurprising that a Nation founded by religious refugees and dedicated to religious freedom should find references to divinity in its symbols, songs, mottoes, and oaths”); Lynch v. Donnelly, 465 U. S., at 675 (“Our history is replete with official references to the value and invocation of Divine guidance”). Footnote 8 Indeed, we rejected the claim that an Establishment Clause violation was presented because the prayers had once been offered in the Judeo-Christian tradition: In Marsh , the prayers were often explicitly Christian, but the chaplain removed all references to Christ the year after the suit was filed. 463 U. S., at 793–794, and n. 14. Footnote 9 Other examples of monuments and buildings reflecting the prominent role of religion abound. For example, the Washington, Jefferson, and Lincoln Memorials all contain explicit invocations of God’s importance. The apex of the Washington Monument is inscribed “Laus Deo,” which is translated to mean “Praise be to God,” and multiple memorial stones in the monument contain Biblical citations. The Jefferson Memorial is engraved with three quotes from Jefferson that make God a central theme. Inscribed on the wall of the Lincoln Memorial are two of Lincoln’s most famous speeches, the Gettysburg Address and his Second Inaugural Address. Both inscriptions include those speeches’ extensive acknowledgments of God. The first federal monument, which was accepted by the United States in honor of sailors who died in Tripoli, noted the dates of the fallen sailors as “the year of our Lord, 1804, and in the 28 year of the independence of the United States.” Footnote 10 See also Edwards v. Aguillard, 482 U. S., at 593–594; Lynch v. Donnelly, 465 U. S., at 677–678; id. , at 691 (O’Connor, J., concurring); County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S., at 652–653 (Stevens, J., concurring in part and dissenting in part); Stone v. Graham, 449 U. S. 39 , 45 (1980) (Rehnquist, J., dissenting). Footnote 11 Nor does anything suggest that Stone would extend to displays of the Ten Commandments that lack a “plainly religious,” “pre-eminent purpose,” id., at 41. See Edwards v. Aguillard, supra , at 593–594 (“ [Stone] did not mean that no use could ever be made of the Ten Commandments, or that the Ten Commandments played an exclusively religious role in the history of Western Civilization”). Indeed, we need not decide in this case the extent to which a primarily religious purpose would affect our analysis because it is clear from the record that there is no evidence of such a purpose in this case. 545 U. S. ____ (2005) 545 U. S. ____ (2005) 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-1500 THOMAS VAN ORDEN, PETITIONER v. RICK PERRY, in his official capacity as GOVERNOR OF TEXAS and CHAIRMAN, STATE PRESERVATION BOARD, et al. on writ of certiorari to the united states court of appeals for the fifth circuit [June 27, 2005]    Justice Scalia, concurring.    I join the opinion of The Chief Justice because I think it accurately reflects our current Establishment Clause jurisprudence—or at least the Establishment Clause jurisprudence we currently apply some of the time. I would prefer to reach the same result by adopting an Establishment Clause jurisprudence that is in accord with our Nation’s past and present practices, and that can be consistently applied—the central relevant feature of which is that there is nothing unconstitutional in a State’s favoring religion generally, honoring God through public prayer and acknowledgment, or, in a nonproselytizing manner, venerating the Ten Commandments. See McCreary County v. American Civil Liberties Union of Ky. , post , at 1–11 (Scalia, J., dissenting). THOMAS, J., CONCURRING VAN ORDEN V. PERRY 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-1500 THOMAS VAN ORDEN, PETITIONER v. RICK PERRY, in his official capacity as GOVERNOR OF TEXAS and CHAIRMAN, STATE PRESERVATION BOARD, et al. on writ of certiorari to the united states court of appeals for the fifth circuit [June 27, 2005]    Justice Thomas, concurring.    The Court holds that the Ten Commandments monument found on the Texas State Capitol grounds does not violate the Establishment Clause. Rather than trying to suggest meaninglessness where there is meaning, The Chief Justice rightly recognizes that the monument has “religious significance.” Ante , at 10. He properly recognizes the role of religion in this Nation’s history and the permissibility of government displays acknowledging that history. Ante , at 6–8. For those reasons, I join The Chief Justice’s opinion in full.    This case would be easy if the Court were willing to abandon the inconsistent guideposts it has adopted for addressing Establishment Clause challenges,* and return to the original meaning of the Clause. I have previously suggested that the Clause’s text and history “resis[t] incorporation” against the States. See Elk Grove Unified School Dist. v. Newdow , 542 U. S. 1 , 46, (2004) (opinion concurring in judgment); see also Zelman v. Simmons-Harris , 536 U. S. 639 , 677–680, and n. 3 (2002) (opinion concurring). If the Establishment Clause does not restrain the States, then it has no application here, where only state action is at issue.    Even if the Clause is incorporated, or if the Free Exercise Clause limits the power of States to establish religions, see Cutter v. Wilkinson, 544 U. S. ___ , ___, n. 3 (2005) (slip op., at 3, n. 3) (Thomas, J., concurring), our task would be far simpler if we returned to the original meaning of the word “establishment” than it is under the various approaches this Court now uses. The Framers understood an establishment “necessarily [to] involve actual legal coercion.” Newdow , supra , at 52 (Thomas, J., concurring in judgment); Lee v. Weisman, 505 U. S. 577 , 640 (1992) (Scalia, J., dissenting) (“The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty ”). “In other words, establishment at the founding involved, for example, mandatory observance or mandatory payment of taxes supporting ministers.” Cutter, supra, at ___ (slip op., at 4) (Thomas, J., concurring). And “government practices that have nothing to do with creating or maintaining … coercive state establishments” simply do not “implicate the possible liberty interest of being free from coercive state establishments.” Newdow , supra , at 53 (Thomas, J., concurring in judgment).    There is no question that, based on the original meaning of the Establishment Clause, the Ten Commandments display at issue here is constitutional. In no sense does Texas compel petitioner Van Orden to do anything. The only injury to him is that he takes offense at seeing the monument as he passes it on his way to the Texas Supreme Court Library. He need not stop to read it or even to look at it, let alone to express support for it or adopt the Commandments as guides for his life. The mere presence of the monument along his path involves no coercion and thus does not violate the Establishment Clause.    Returning to the original meaning would do more than simplify our task. It also would avoid the pitfalls present in the Court’s current approach to such challenges. This Court’s precedent elevates the trivial to the proverbial “federal case,” by making benign signs and postings subject to challenge. Yet even as it does so, the Court’s precedent attempts to avoid declaring all religious symbols and words of longstanding tradition unconstitutional, by counterfactually declaring them of little religious significance. Even when the Court’s cases recognize that such symbols have religious meaning, they adopt an unhappy compromise that fails fully to account for either the adherent’s or the nonadherent’s beliefs, and provides no principled way to choose between them. Even worse, the incoherence of the Court’s decisions in this area renders the Establishment Clause impenetrable and incapable of consistent application. All told, this Court’s jurisprudence leaves courts, governments, and believers and nonbelievers alike confused—an observation that is hardly new. See Newdow , supra , at 45, n. 1 (Thomas, J., concurring in judgment) (collecting cases).    First, this Court’s precedent permits even the slightest public recognition of religion to constitute an establishment of religion. For example, individuals frequenting a county courthouse have successfully challenged as an Establishment Clause violation a sign at the courthouse alerting the public that the building was closed for Good Friday and containing a 4-inch high crucifix. Granzeier v. Middleton , 955 F. Supp. 741, 743, and n. 2, 746–747 (ED Ky. 1997), aff’d on other grounds, 173 F. 3d 568, 576 (CA6 1999). Similarly, a park ranger has claimed that a cross erected to honor World War I veterans on a rock in the Mojave Desert Preserve violated the Establishment Clause, and won. See Buono v. Norton , 212 F. Supp. 2d 1202, 1204–1205, 1215–1217 (CD Cal. 2002). If a cross in the middle of a desert establishes a religion, then no religious observance is safe from challenge. Still other suits have charged that city seals containing religious symbols violate the Establishment Clause. See, e.g. , Robinson v. Edmond , 68 F. 3d 1226 (CA10 1995); Murray v. Austin , 947 F. 2d 147 (CA5 1991); Friedman v. Board of Cty. Comm’rs of Bernalillo Cty. , 781 F. 2d 777 (CA10 1985) (en banc). In every instance, the litigants are mere “[p]assersby … free to ignore [such symbols or signs], or even to turn their backs, just as they are free to do when they disagree with any other form of government speech.” County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573 , 664 (1989) (Kennedy, J., concurring in part and dissenting in part).    Second, in a seeming attempt to balance out its willingness to consider almost any acknowledgment of religion an establishment, in other cases Members of this Court have concluded that the term or symbol at issue has no religious meaning by virtue of its ubiquity or rote ceremonial invocation. See, e.g. , id. , at 630–631 (O’Connor, J., concurring); Lynch v. Donnelly, 465 U. S. 668 , 716–717 (1984) (Brennan, J., dissenting). But words such as “God” have religious significance. For example, just last Term this Court had before it a challenge to the recitation of the Pledge of Allegiance, which includes the phrase “one Nation under God.” The declaration that our country is “ ‘one Nation under God’ ” necessarily “entail[s] an affirmation that God exists.” Newdow , supra , at 48 (Thomas, J., concurring in judgment). This phrase is thus anathema to those who reject God’s existence and a validation of His existence to those who accept it. Telling either nonbelievers or believers that the words “under God” have no meaning contradicts what they know to be true. Moreover, repetition does not deprive religious words or symbols of their traditional meaning. Words like “God” are not vulgarities for which the shock value diminishes with each successive utterance.    Even when this Court’s precedents recognize the religious meaning of symbols or words, that recognition fails to respect fully religious belief or disbelief. This Court looks for the meaning to an observer of indeterminate religious affiliation who knows all the facts and circumstances surrounding a challenged display. See, e.g. , Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753 , 780 (1995) (O’Connor, J., concurring) (presuming that a reasonable observer is “aware of the history and context of the community and forum in which the religious display appears”). In looking to the view of this unusually informed observer, this Court inquires whether the sign or display “sends the ancillary message to … nonadherents ‘that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.’ ” Santa Fe Independent School Dist. v. Doe, 530 U. S. 290 , 309–310 (2000) (quoting Lynch, supra , at 688 (O’Connor, J., concurring)).    This analysis is not fully satisfying to either nonadherents or adherents. For the nonadherent, who may well be more sensitive than the hypothetical “reasonable observer,” or who may not know all the facts, this test fails to capture completely the honest and deeply felt offense he takes from the government conduct. For the adherent, this analysis takes no account of the message sent by removal of the sign or display, which may well appear to him to be an act hostile to his religious faith. The Court’s foray into religious meaning either gives insufficient weight to the views of nonadherents and adherents alike, or it provides no principled way to choose between those views. In sum, this Court’s effort to assess religious meaning is fraught with futility.    Finally, the very “flexibility” of this Court’s Establishment Clause precedent leaves it incapable of consistent application. See Edwards v. Aguillard , 482 U. S. 578 , 640 (1987) (Scalia, J., dissenting) (criticizing the Lemon test’s “flexibility” as “the absence of any principled rationale” (internal quotation marks omitted)). The inconsistency between the decisions the Court reaches today in this case and in McCreary County v. American Civil Liberties Union of Ky. , post , p. —, only compounds the confusion.    The unintelligibility of this Court’s precedent raises the further concern that, either in appearance or in fact, adjudication of Establishment Clause challenges turns on judicial predilections. See, e.g. , Harris v. Zion, Lake Cty., Ill. , 927 F. 2d 1401, 1425 (CA7 1991) (Easterbrook, J., dissenting) (“Line drawing in this area will be erratic and heavily influenced by the personal views of the judges”); post , at 3 (Breyer, J., concurring in judgment) (“I see no test-related substitute for the exercise of legal judgment”). The outcome of constitutional cases ought to rest on firmer grounds than the personal preferences of judges.    Much, if not all, of this would be avoided if the Court would return to the views of the Framers and adopt coercion as the touchstone for our Establishment Clause inquiry. Every acknowledgment of religion would not give rise to an Establishment Clause claim. Courts would not act as theological commissions, judging the meaning of religious matters. Most important, our precedent would be capable of consistent and coherent application. While the Court correctly rejects the challenge to the Ten Commandments monument on the Texas Capitol grounds, a more fundamental rethinking of our Establishment Clause jurisprudence remains in order. * See, e.g. , County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573 , 592–594 (1989) (employing endorsement test); Lemon v. Kurtzman , 403 U. S. 602 , 612–613 (1971) (setting forth three-pronged test); Marsh v. Chambers, 463 U. S. 783 , 790–792 (1983) (upholding legislative prayer due to its “unique history”); see also Lynch v. Donnelly , 465 U. S. 668 , 679–681 (1984) (“[W]e have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area”). BREYER, J., CONCURRING IN JUDGMENT VAN ORDEN V. PERRY 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-1500 THOMAS VAN ORDEN, PETITIONER v. RICK PERRY, in his official capacity as GOVERNOR OF TEXAS and CHAIRMAN, STATE PRESERVATION BOARD, et al. on writ of certiorari to the united states court of appeals for the fifth circuit [June 27, 2005]    Justice Breyer, concurring in the judgment.    In School Dist. of Abington Township v. Schempp, 374 U. S. 203 (1963), Justice Goldberg, joined by Justice Harlan, wrote, in respect to the First Amendment’s Religion Clauses, that there is “no simple and clear measure which by precise application can readily and invariably demark the permissible from the impermissible.” Id. , at 306 (concurring opinion). One must refer instead to the basic purposes of those Clauses. They seek to “assure the fullest possible scope of religious liberty and tolerance for all.” Id. , at 305. They seek to avoid that divisiveness based upon religion that promotes social conflict, sapping the strength of government and religion alike. Zelman v. Simmons-Harris, 536 U. S. 639 , 717–729 (2002) (Breyer, J., dissenting). They seek to maintain that “separation of church and state” that has long been critical to the “peaceful dominion that religion exercises in [this] country,” where the “spirit of religion” and the “spirit of freedom” are productively “united,” “reign[ing] together” but in separate spheres “on the same soil.” A. de Tocqueville, Democracy in America 282–283 (1835) (H. Mansfield & D. Winthrop transls. and eds. 2000). They seek to further the basic principles set forth today by Justice O’Connor in her concurring opinion in McCreary County v. American Civil Liberties Union of Ky. , post, at 1.    The Court has made clear, as Justices Goldberg and Harlan noted, that the realization of these goals means that government must “neither engage in nor compel religious practices,” that it must “effect no favoritism among sects or between religion and nonreligion,” and that it must “work deterrence of no religious belief.” Schempp, supra , at 305 (concurring opinion); see also Lee v. Weisman, 505 U. S. 577 , 587 (1992); Everson v. Board of Ed. of Ewing, 330 U. S. 1 , 15–16 (1947). The government must avoid excessive interference with, or promotion of, religion. See generally County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573 , 593–594 (1989); Zelman , supra , at 723–725 (Breyer, J., dissenting). But the Establishment Clause does not compel the government to purge from the public sphere all that in any way partakes of the religious. See, e.g. , Marsh v. Chambers, 463 U. S. 783 (1983). Such absolutism is not only inconsistent with our national traditions, see, e.g. , Lemon v. Kurtzman, 403 U. S. 602 , 614 (1971); Lynch v. Donnelly , 465 U. S. 668 , 672–678 (1984), but would also tend to promote the kind of social conflict the Establishment Clause seeks to avoid.    Thus, as Justices Goldberg and Harlan pointed out, the Court has found no single mechanical formula that can accurately draw the constitutional line in every case. See Schempp , 374 U. S., at 306 (concurring opinion). Where the Establishment Clause is at issue, tests designed to measure “neutrality” alone are insufficient, both because it is sometimes difficult to determine when a legal rule is “neutral,” and because “untutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious.” Ibid. Neither can this Court’s other tests readily explain the Establishment Clause’s tolerance, for example, of the prayers that open legislative meetings, see Marsh, supra; certain references to, and invocations of, the Deity in the public words of public officials; the public references to God on coins, decrees, and buildings; or the attention paid to the religious objectives of certain holidays, including Thanksgiving. See, e.g. , Lemon, supra , at 612–613 (setting forth what has come to be known as the “ Lemon test”); Lynch , supra , at 687 (O’Connor, J., concurring) (setting forth the “endorsement test”); Capitol Square Review and Advisory Bd. v. Pinette , 515 U. S. 753 , 800, n. 5 (1995) (Stevens, J., dissenting) (agreeing that an “endorsement test” should apply but criticizing its “reasonable observer” standard); Santa Fe Independent School Dist. v. Doe , 530 U. S. 290 , 319 (2000) (Rehnquist, C. J., dissenting) (noting Lemon ’s “checkered career in the decisional law of this Court”); County of Allegheny, supra , at 655–656 (Kennedy, J., joined by Rehnquist, C. J., and White and Scalia, JJ., concurring in judgment in part and dissenting in part) (criticizing the Lemon test).    If the relation between government and religion is one of separation, but not of mutual hostility and suspicion, one will inevitably find difficult borderline cases. And in such cases, I see no test-related substitute for the exercise of legal judgment. See Schempp, supra , at 305 (Goldberg, J., concurring); cf. Zelman, supra , at 726–728 (Breyer, J., dissenting) (need for similar exercise of judgment where quantitative considerations matter). That judgment is not a personal judgment. Rather, as in all constitutional cases, it must reflect and remain faithful to the underlying purposes of the Clauses, and it must take account of context and consequences measured in light of those purposes. While the Court’s prior tests provide useful guideposts—and might well lead to the same result the Court reaches today, see, e.g. , Lemon , supra, at 612–613; Capitol Square, supra , at 773–783 (O’Connor, J., concurring in part and concurring in judgment)—no exact formula can dictate a resolution to such fact-intensive cases. The case before us is a borderline case. It concerns a large granite monument bearing the text of the Ten Commandments located on the grounds of the Texas State Capitol. On the one hand, the Commandments’ text undeniably has a religious message, invoking, indeed emphasizing, the Diety. On the other hand, focusing on the text of the Commandments alone cannot conclusively resolve this case. Rather, to determine the message that the text here conveys, we must examine how the text is used . And that inquiry requires us to consider the context of the display. In certain contexts, a display of the tablets of the Ten Commandments can convey not simply a religious message but also a secular moral message (about proper standards of social conduct). And in certain contexts, a display of the tablets can also convey a historical message (about a historic relation between those standards and the law)—a fact that helps to explain the display of those tablets in dozens of courthouses throughout the Nation, including the Supreme Court of the United States. See generally App. to Brief for United States as Amicus Curiae 1a–7a. Here the tablets have been used as part of a display that communicates not simply a religious message, but a secular message as well. The circumstances surrounding the display’s placement on the capitol grounds and its physical setting suggest that the State itself intended the latter, nonreligious aspects of the tablets’ message to predominate. And the monument’s 40-year history on the Texas state grounds indicates that that has been its effect. The group that donated the monument, the Fraternal Order of Eagles, a private civic (and primarily secular) organization, while interested in the religious aspect of the Ten Commandments, sought to highlight the Commandments’ role in shaping civic morality as part of that organization’s efforts to combat juvenile delinquency. See 1961 Tex. Gen. Laws 1995. The Eagles’ consultation with a committee composed of members of several faiths in order to find a nonsectarian text underscores the group’s ethics-based motives. See Brief for Respondents 5–6, and n. 9. The tablets, as displayed on the monument, prominently acknowledge that the Eagles donated the display, a factor which, though not sufficient, thereby further distances the State itself from the religious aspect of the Commandments’ message. The physical setting of the monument, moreover, suggests little or nothing of the sacred. See Appendix A, infra. The monument sits in a large park containing 17 monuments and 21 historical markers, all designed to illustrate the “ideals” of those who settled in Texas and of those who have lived there since that time. Tex. H. Con. Res. 38, 77th Leg. (2001); see Appendix B, infra. The setting does not readily lend itself to meditation or any other religious activity. But it does provide a context of history and moral ideals. It (together with the display’s inscription about its origin) communicates to visitors that the State sought to reflect moral principles, illustrating a relation between ethics and law that the State’s citizens, historically speaking, have endorsed. That is to say, the context suggests that the State intended the display’s moral message—an illustrative message reflecting the historical “ideals” of Texans—to predominate. If these factors provide a strong, but not conclusive, indication that the Commandments’ text on this monument conveys a predominantly secular message, a further factor is determinative here. As far as I can tell, 40 years passed in which the presence of this monument, legally speaking, went unchallenged (until the single legal objection raised by petitioner). And I am not aware of any evidence suggesting that this was due to a climate of intimidation. Hence, those 40 years suggest more strongly than can any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect, primarily to promote religion over nonreligion, to “engage in” any “religious practic[e],” to “compel” any “religious practic[e],” or to “work deterrence” of any “religious belief.” Schempp, 374 U. S., at 305 (Goldberg, J., concurring). Those 40 years suggest that the public visiting the capitol grounds has considered the religious aspect of the tablets’ message as part of what is a broader moral and historical message reflective of a cultural heritage. This case, moreover, is distinguishable from instances where the Court has found Ten Commandments displays impermissible. The display is not on the grounds of a public school, where, given the impressionability of the young, government must exercise particular care in separating church and state. See, e.g. , Weisman, 505 U. S., at 592; Stone v. Graham, 449 U. S. 39 (1980) (per curiam) . This case also differs from McCreary County , where the short (and stormy) history of the courthouse Commandments’ displays demonstrates the substantially religious objectives of those who mounted them, and the effect of this readily apparent objective upon those who view them. See, post, at 21–25 (opinion of the Court). That history there indicates a governmental effort substantially to promote religion, not simply an effort primarily to reflect, historically, the secular impact of a religiously inspired document. And, in today’s world, in a Nation of so many different religious and comparable nonreligious fundamental beliefs, a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive in a way that this longstanding, pre-existing monument has not. For these reasons, I believe that the Texas display—serving a mixed but primarily nonreligious purpose, not primarily “advanc[ing]” or “inhibit[ing] religion,” and not creating an “excessive government entanglement with religion,”—might satisfy this Court’s more formal Establishment Clause tests. Lemon , 403 U. S., at 612–613 (internal quotation marks omitted); see also Capitol Square , 515 U. S., at 773–783 (O’Connor, J., concurring in part and concurring in judgment). But, as I have said, in reaching the conclusion that the Texas display falls on the permissible side of the constitutional line, I rely less upon a literal application of any particular test than upon consideration of the basic purposes of the First Amendment’s Religion Clauses themselves. This display has stood apparently uncontested for nearly two generations. That experience helps us understand that as a practical matter of degree this display is unlikely to prove divisive. And this matter of degree is, I believe, critical in a borderline case such as this one. At the same time, to reach a contrary conclusion here, based primarily upon on the religious nature of the tablets’ text would, I fear, lead the law to exhibit a hostility toward religion that has no place in our Establishment Clause traditions. Such a holding might well encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation. And it could thereby create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid. Zelman , 536 U. S., at 717–729 (Breyer, J., dissenting). Justices Goldberg and Harlan concluded in Schempp that “[t]he First Amendment does not prohibit practices which by any realistic measure create none of the dangers which it is designed to prevent and which do not so directly or substantially involve the state in religious exercise or in the favoring of religion as to have meaningful and practical impact.” 374 U. S., at 308 (concurring opinion). That kind of practice is what we have here. I recognize the danger of the slippery slope. Still, where the Establishment Clause is at issue, we must “distinguish between real threat and mere shadow.” Ibid. Here, we have only the shadow. In light of these considerations, I cannot agree with today’s plurality’s analysis. See, e.g. , ante, at 3–4, n. 3, 6–9. Nor can I agree with Justice Scalia’s dissent in McCreary County, post , at 1. I do agree with Justice O’Connor’s statement of principles in McCreary County, post , at 1, though I disagree with her evaluation of the evidence as it bears on the application of those principles to this case. I concur in the judgment of the Court. [Graphic omitted: see printed opinion.] STEVENS, J., DISSENTING VAN ORDEN V. PERRY 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-1500 THOMAS VAN ORDEN, PETITIONER v. RICK PERRY, in his official capacity as GOVERNOR OF TEXAS and CHAIRMAN, STATE PRESERVATION BOARD, et al. on writ of certiorari to the united states court of appeals for the fifth circuit [June 27, 2005]    Justice Stevens, with whom Justice Ginsburg joins, dissenting.    The sole function of the monument on the grounds of Texas’ State Capitol is to display the full text of one version of the Ten Commandments. The monument is not a work of art and does not refer to any event in the history of the State. It is significant because, and only because, it communicates the following message: “I AM the LORD thy God. “Thou shalt have no other gods before me. “Thou shalt not make to thyself any graven images. “Thou shalt not take the Name of the Lord thy God in vain. “Remember the Sabbath day, to keep it holy. “Honor thy father and thy mother, that thy days may be long upon the land which the Lord thy God giveth thee. “Thou shalt not kill. “Thou shalt not commit adultery. “Thou shalt not steal. “Thou shalt not bear false witness against thy neighbor. “Thou shalt not covet thy neighbor’s house. “Thou shalt not covet thy neighbor’s wife, nor his manservant, nor his maidservant, nor his cattle, nor anything that is thy neighbor’s.” See Appendix, infra .[ Footnote 1 ]    Viewed on its face, Texas’ display has no purported connection to God’s role in the formation of Texas or the founding of our Nation; nor does it provide the reasonable observer with any basis to guess that it was erected to honor any individual or organization. The message transmitted by Texas’ chosen display is quite plain: This State endorses the divine code of the “Judeo-Christian” God.    For those of us who learned to recite the King James version of the text long before we understood the meaning of some of its words, God’s Commandments may seem like wise counsel. The question before this Court, however, is whether it is counsel that the State of Texas may proclaim without violating the Establishment Clause of the Constitution. If any fragment of Jefferson’s metaphorical “wall of separation between church and State”[ Footnote 2 ] is to be preserved—if there remains any meaning to the “wholesome ‘neutrality’ of which this Court’s [Establishment Clause] cases speak,” School Dist. of Abington Township v. Schempp , 374 U. S. 203 , 222 (1963)—a negative answer to that question is mandatory. I    In my judgment, at the very least, the Establishment Clause has created a strong presumption against the display of religious symbols on public property. See, e.g., County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter , 492 U. S. 573 , 650 (1989) (Stevens, J., concurring in part and dissenting in part); Capitol Square Review and Advisory Bd. v. Pinette , 515 U. S. 753 , 797 (1995) (Stevens, J., dissenting). The adornment of our public spaces with displays of religious symbols and messages undoubtedly provides comfort, even inspiration, to many individuals who subscribe to particular faiths. Unfortunately, the practice also runs the risk of “offend[ing] nonmembers of the faith being advertised as well as adherents who consider the particular advertisement disrespectful.” Allegheny County , 492 U. S., at 651 (Stevens, J., concurring in part and dissenting in part).[ Footnote 3 ]    Government’s obligation to avoid divisiveness and exclusion in the religious sphere is compelled by the Establishment and Free Exercise Clauses, which together erect a wall of separation between church and state.[ Footnote 4 ] This metaphorical wall protects principles long recognized and often recited in this Court’s cases. The first and most fundamental of these principles, one that a majority of this Court today affirms, is that the Establishment Clause demands religious neutrality—government may not exercise a preference for one religious faith over another. See, e.g., McCreary County v. American Civil Liberties Union, Ky. , post , at 27–29.[ Footnote 5 ] This essential command, however, is not merely a prohibition against the government’s differentiation among religious sects. We have repeatedly reaffirmed that neither a State nor the Federal Government “can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.” Torcaso v. Watkins , 367 U. S. 488 , 495 (1961) (footnote omitted).[ Footnote 6 ] This principle is based on the straightforward notion that governmental promotion of orthodoxy is not saved by the aggregation of several orthodoxies under the State’s banner. See Abington , 374 U. S., at 222.    Acknowledgments of this broad understanding of the neutrality principle are legion in our cases.[ Footnote 7 ] Strong arguments to the contrary have been raised from time to time, perhaps the strongest in then-Justice Rehnquist’s scholarly dissent in Wallace v. Jaffree , 472 U. S. 38 , 91–114 (1985).[ Footnote 8 ] Powerful as his argument was, we squarely rejected it and thereby reaffirmed the principle that the Establishment Clause requires the same respect for the atheist as it does for the adherent of a Christian faith. As we wrote, “the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embodies the right to select any religious faith or none at all.” Id. , at 52–53.    In restating this principle, I do not discount the importance of avoiding an overly strict interpretation of the metaphor so often used to define the reach of the Establishment Clause. The plurality is correct to note that “religion and religious traditions” have played a “strong role … throughout our nation’s history.” Ante , at 3. This Court has often recognized “an unbroken history of official acknowledgment … of the role of religion in American life.” Lynch v. Donnelly , 465 U. S. 668 , 674 (1984); accord, Edwards v. Aguillard , 482 U. S. 578 , 606–608 (1987) (Powell, J., concurring). Given this history, it is unsurprising that a religious symbol may at times become an important feature of a familiar landscape or a reminder of an important event in the history of a community. The wall that separates the church from the State does not prohibit the government from acknowledging the religious beliefs and practices of the American people, nor does it require governments to hide works of art or historic memorabilia from public view just because they also have religious significance.    This case, however, is not about historic preservation or the mere recognition of religion. The issue is obfuscated rather than clarified by simplistic commentary on the various ways in which religion has played a role in American life, see ante, at 3–8 (plurality opinion), and by the recitation of the many extant governmental “acknowledgments” of the role the Ten Commandments played in our Nation’s heritage.[ Footnote 9 ] Ante , at 8–9, and n. 8. Surely, the mere compilation of religious symbols, none of which includes the full text of the Commandments and all of which are exhibited in different settings, has only marginal relevance to the question presented in this case.    The monolith displayed on Texas Capitol grounds cannot be discounted as a passive acknowledgment of religion, nor can the State’s refusal to remove it upon objection be explained as a simple desire to preserve a historic relic. This Nation’s resolute commitment to neutrality with respect to religion is flatly inconsistent with the plurality’s wholehearted validation of an official state endorsement of the message that there is one, and only one, God. II    When the Ten Commandments monument was donated to the State of Texas in 1961, it was not for the purpose of commemorating a noteworthy event in Texas history, signifying the Commandments’ influence on the development of secular law, or even denoting the religious beliefs of Texans at that time. To the contrary, the donation was only one of over a hundred largely identical monoliths, and of over a thousand paper replicas, distributed to state and local governments throughout the Nation over the course of several decades. This ambitious project was the work of the Fraternal Order of Eagles, a well-respected benevolent organization whose good works have earned the praise of several Presidents.[ Footnote 10 ]    As the story goes, the program was initiated by the late Judge E. J. Ruegemer, a Minnesota juvenile court judge and then-Chairman of the Eagles National Commission on Youth Guidance. Inspired by a juvenile offender who had never heard of the Ten Commandments, the judge approached the Minnesota Eagles with the idea of distributing paper copies of the Commandments to be posted in courthouses nationwide. The State’s Aerie undertook this project and its popularity spread. When Cecil B. DeMille, who at that time was filming the movie The Ten Commandments, heard of the judge’s endeavor, he teamed up with the Eagles to produce the type of granite monolith now displayed in front of the Texas Capitol and at courthouse squares, city halls, and public parks throughout the Nation. Granite was reportedly chosen over DeMille’s original suggestion of bronze plaques to better replicate the original Ten Commandments.[ Footnote 11 ]    The donors were motivated by a desire to “inspire the youth” and curb juvenile delinquency by providing children with a “code of conduct or standards by which to govern their actions.”[ Footnote 12 ] It is the Eagles’ belief that disseminating the message conveyed by the Ten Commandments will help to persuade young men and women to observe civilized standards of behavior, and will lead to more productive lives. Significantly, although the Eagles’ organization is nonsectarian, eligibility for membership is premised on a belief in the existence of a “Supreme Being.”[ Footnote 13 ] As described by the Eagles themselves: “ ‘in searching for a youth guidance program, [we] recognized that there can be no better, no more defined program of Youth Guidance, and adult guidance as well, than the laws handed down by God Himself to Moses more than 3000 years ago, which laws have stood unchanged through the years. They are a fundamental part of our lives, the basis of all our laws for living, the foundation of our relationship with our Creator, with our families and with our fellow men. All the concepts we live by—freedom, democracy, justice, honor—are rooted in the Ten Commandments. ..... “ ‘The erection of these monoliths is to inspire all who pause to view them, with a renewed respect for the law of God, which is our greatest strength against the forces that threaten our way of life.’ ” Anderson v. Salt Lake City Corp. , 348 F. Supp. 1170, 1172 (Utah 1972), rev’d, 475 F. 2d 29 (CA10 1973).    The desire to combat juvenile delinquency by providing guidance to youths is both admirable and unquestionably secular. But achieving that goal through biblical teachings injects a religious purpose into an otherwise secular endeavor. By spreading the word of God and converting heathens to Christianity, missionaries expect to enlighten their converts, enhance their satisfaction with life, and improve their behavior. Similarly, by disseminating the “law of God”—directing fidelity to God and proscribing murder, theft, and adultery—the Eagles hope that this divine guidance will help wayward youths conform their behavior and improve their lives. In my judgment, the significant secular by-products that are intended consequences of religious instruction—indeed, of the establishment of most religions—are not the type of “secular” purposes that justify government promulgation of sacred religious messages.    Though the State of Texas may genuinely wish to combat juvenile delinquency, and may rightly want to honor the Eagles for their efforts, it cannot effectuate these admirable purposes through an explicitly religious medium. See Bowen v. Kendrick , 487 U. S. 589 , 639–640 (1988) (Blackmun, J., dissenting) (“It should be undeniable by now that religious dogma may not be employed by government even to accomplish laudable secular purposes”). The State may admonish its citizens not to lie, cheat or steal, to honor their parents and to respect their neighbors’ property; and it may do so by printed words, in television commercials, or on granite monuments in front of its public buildings. Moreover, the State may provide its schoolchildren and adult citizens with educational materials that explain the important role that our forebears’ faith in God played in their decisions to select America as a refuge from religious persecution, to declare their independence from the British Crown, and to conceive a new Nation. See Edwards , 482 U. S., at 606–608 (Powell, J., concurring). The message at issue in this case, however, is fundamentally different from either a bland admonition to observe generally accepted rules of behavior or a general history lesson.    The reason this message stands apart is that the Decalogue is a venerable religious text.[ Footnote 14 ] As we held 25 years ago, it is beyond dispute that “[t]he Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths.” Stone v. Graham , 449 U. S. 39 , 41 (1980) (per curiam) (footnote omitted). For many followers, the Commandments represent the literal word of God as spoken to Moses and repeated to his followers after descending from Mount Sinai. The message conveyed by the Ten Commandments thus cannot be analogized to an appendage to a common article of commerce (“In God we Trust”) or an incidental part of a familiar recital (“God save the United States and this honorable Court”). Thankfully, the plurality does not attempt to minimize the religious significance of the Ten Commandments. Ante , at 10 (“Of course, the Ten Commandments are religious—they were so viewed at their inception and so remain”); ante , at 1 (Thomas, J., concurring); see also McCreary County v. American Civil Liberties Union of Ky. , post , at 19 (Scalia, J., dissenting). Attempts to secularize what is unquestionably a sacred text defy credibility and disserve people of faith.    The profoundly sacred message embodied by the text inscribed on the Texas monument is emphasized by the especially large letters that identify its author: “I AM the LORD thy God.” See Appendix, infra . It commands present worship of Him and no other deity. It directs us to be guided by His teaching in the current and future conduct of all of our affairs. It instructs us to follow a code of divine law, some of which has informed and been integrated into our secular legal code (“Thou shalt not kill”), but much of which has not (“Thou shalt not make to thyself any graven images… . Thou shalt not covet”).    Moreover, despite the Eagles’ best efforts to choose a benign nondenominational text,[ Footnote 15 ] the Ten Commandments display projects not just a religious, but an inherently sectarian message. There are many distinctive versions of the Decalogue, ascribed to by different religions and even different denominations within a particular faith; to a pious and learned observer, these differences may be of enormous religious significance.[ Footnote 16 ] See Lubet, The Ten Commandments in Alabama, 15 Constitutional Commentary 471, 474–476 (Fall 1998). In choosing to display this version of the Commandments, Texas tells the observer that the State supports this side of the doctrinal religious debate. The reasonable observer, after all, has no way of knowing that this text was the product of a compromise, or that there is a rationale of any kind for the text’s selection.[ Footnote 17 ]    The Establishment Clause, if nothing else, forbids government from “specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ.” Lee v. Weisman , 505 U. S. 577 , 641 (1992) (Scalia, J., dissenting). Given that the chosen text inscribed on the Ten Commandments monument invariably places the State at the center of a serious sectarian dispute, the display is unquestionably unconstitutional under our case law. See Larson v. Valente , 456 U. S. 228 , 244 (1982) (“The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another”).    Even if, however, the message of the monument, despite the inscribed text, fairly could be said to represent the belief system of all Judeo-Christians, it would still run afoul of the Establishment Clause by prescribing a compelled code of conduct from one God, namely a Judeo-Christian God, that is rejected by prominent polytheistic sects, such as Hinduism, as well as nontheistic religions, such as Buddhism.[ Footnote 18 ] See, e.g., Allegheny County , 492 U. S., at 615 (opinion of Blackmun, J.) (“The simultaneous endorsement of Judaism and Christianity is no less constitutionally infirm than the endorsement of Christianity alone”). And, at the very least, the text of the Ten Commandments impermissibly commands a preference for religion over irreligion. See, e.g., id. , at 590 (The Establishment Clause “guarantee[s] religious liberty and equality to the ‘infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism’ ” (quoting Wallace , 472 U. S., at 52)). Any of those bases, in my judgment, would be sufficient to conclude that the message should not be proclaimed by the State of Texas on a permanent monument at the seat of its government.    I do not doubt that some Texans, including those elected to the Texas Legislature, may believe that the statues displayed on the Texas Capitol grounds, including the Ten Commandments monument, reflect the “ideals . . . that compose Texan identity.” Tex. H. Con. Res. 38, 77th Leg. 6473 (2001). But Texas, like our entire country, is now a much more diversified community than it was when it became a part of the United States or even when the monument was erected. Today there are many Texans who do not believe in the God whose Commandments are displayed at their seat of government. Many of them worship a different god or no god at all. Some may believe that the account of the creation in the Book of Genesis is less reliable than the views of men like Darwin and Einstein. The monument is no more an expression of the views of every true Texan than was the “Live Free or Die” motto that the State of New Hampshire placed on its license plates in 1969 an accurate expression of the views of every citizen of New Hampshire. See Wooley v. Maynard, 430 U. S. 705 (1977).    Recognizing the diversity of religious and secular beliefs held by Texans and by all Americans, it seems beyond peradventure that allowing the seat of government to serve as a stage for the propagation of an unmistakably Judeo-Christian message of piety would have the tendency to make nonmonotheists and nonbelievers “feel like [outsiders] in matters of faith, and [strangers] in the political community.” Pinette , 515 U. S., at 799 (Stevens, J., dissenting). “[D]isplays of this kind inevitably have a greater tendency to emphasize sincere and deeply felt differences among individuals than to achieve an ecumenical goal.” Allegheny County , 492 U. S., at 651 (Stevens, J., concurring in part and dissenting in part).[ Footnote 19 ]    Even more than the display of a religious symbol on government property, see Pinette , 515 U. S., at 797 (Stevens, J., dissenting); Allegheny County , 492 U. S., at 650–651 (Stevens, J., concurring in part and dissenting in part), displaying this sectarian text at the state capitol should invoke a powerful presumption of invalidity. As Justice Souter’s opinion persuasively demonstrates, the physical setting in which the Texas monument is displayed—far from rebutting that presumption—actually enhances the religious content of its message. See post , at 6–8. The monument’s permanent fixture at the seat of Texas government is of immense significance. The fact that a monument: “is installed on public property implies official recognition and reinforcement of its message. That implication is especially strong when the sign stands in front of the seat of government itself. The ‘reasonable observer’ of any symbol placed unattended in front of any capitol in the world will normally assume that the sovereign—which is not only the owner of that parcel of real estate but also the lawgiver for the surrounding territory—has sponsored and facilitated its message.” Pinette , 515 U. S., at 801–802 (Stevens, J., dissenting).    Critical examination of the Decalogue’s prominent display at the seat of Texas government, rather than generic citation to the role of religion in American life, unmistakably reveals on which side of the “slippery slope,” ante , at 8 (Breyer, J., concurring in judgment), this display must fall. God, as the author of its message, the Eagles, as the donor of the monument, and the State of Texas, as its proud owner, speak with one voice for a common purpose—to encourage Texans to abide by the divine code of a “Judeo-Christian” God. If this message is permissible, then the shining principle of neutrality to which we have long adhered is nothing more than mere shadow. III    The plurality relies heavily on the fact that our Republic was founded, and has been governed since its nascence, by leaders who spoke then (and speak still) in plainly religious rhetoric. The Chief Justice cites, for instance, George Washington’s 1789 Thanksgiving Proclamation in support of the proposition that the Establishment Clause does not proscribe official recognition of God’s role in our Nation’s heritage, ante , at 7–8.[ Footnote 20 ] Further, the plurality emphatically endorses the seemingly timeless recognition that our “institutions presuppose a Supreme Being,” ante , at 4. Many of the submissions made to this Court by the parties and amici , in accord with the plurality’s opinion, have relied on the ubiquity of references to God throughout our history.    The speeches and rhetoric characteristic of the founding era, however, do not answer the question before us. I have already explained why Texas’ display of the full text of the Ten Commandments, given the content of the actual display and the context in which it is situated, sets this case apart from the countless examples of benign government recognitions of religion. But there is another crucial difference. Our leaders, when delivering public addresses, often express their blessings simultaneously in the service of God and their constituents. Thus, when public officials deliver public speeches, we recognize that their words are not exclusively a transmission from the government because those oratories have embedded within them the inherently personal views of the speaker as an individual member of the polity.[ Footnote 21 ] The permanent placement of a textual religious display on state property is different in kind; it amalgamates otherwise discordant individual views into a collective statement of government approval. Moreover, the message never ceases to transmit itself to objecting viewers whose only choices are to accept the message or to ignore the offense by averting their gaze. Cf. Allegheny County , 492 U. S., at 664 (Kennedy, J., concurring in judgment in part and dissenting in part); ante , at 4 (Thomas, J., concurring). In this sense, although Thanksgiving Day proclamations and inaugural speeches undoubtedly seem official, in most circumstances they will not constitute the sort of governmental endorsement of religion at which the separation of church and state is aimed.[ Footnote 22 ]    The plurality’s reliance on early religious statements and proclamations made by the Founders is also problematic because those views were not espoused at the Constitutional Convention in 1787[ Footnote 23 ] nor enshrined in the Constitution’s text. Thus, the presentation of these religious statements as a unified historical narrative is bound to paint a misleading picture. It does so here. In according deference to the statements of George Washington and John Adams, The Chief Justice and Justice Scalia, see ante , at 7 (plurality opinion); McCreary County , post , at 3–4 (dissenting opinion), fail to account for the acts and publicly espoused views of other influential leaders of that time. Notably absent from their historical snapshot is the fact that Thomas Jefferson refused to issue the Thanksgiving proclamations that Washington had so readily embraced based on the argument that to do so would violate the Establishment Clause.[ Footnote 24 ] The Chief Justice and Justice Scalia disregard the substantial debates that took place regarding the constitutionality of the early proclamations and acts they cite, see, e.g., Letter from James Madison to Edward Livingston (July 10, 1822), in 5 The Founders’ Constitution 105–106 (P. Kurland & R. Lerner eds. 1987) (hereinafter Founders’ Constitution) (arguing that Congress’ appointment of Chaplains to be paid from the National Treasury was “not with my approbation” and was a “deviation” from the principle of “immunity of Religion from civil jurisdiction”),[ Footnote 25 ] and paper over the fact that Madison more than once repudiated the views attributed to him by many, stating unequivocally that with respect to government’s involvement with religion, the “ ‘tendency to a usurpation on one side, or the other, or to a corrupting coalition or alliance between them, will be best guarded against by an entire abstinence of the Government from interference, in any way whatever, beyond the necessity of preserving public order, & protecting each sect against trespasses on its legal rights by others.’ ”[ Footnote 26 ]    These seemingly nonconforming sentiments should come as no surprise. Not insignificant numbers of colonists came to this country with memories of religious persecution by monarchs on the other side of the Atlantic. See A. Stokes & L. Pfeffer, Church and State in the United States 3–23 (rev. ed. 1964). Others experienced religious intolerance at the hands of colonial Puritans, who regrettably failed to practice the tolerance that some of their contemporaries preached. Engel v. Vitale , 370 U. S. 421 , 427–429 (1962). The Chief Justice and Justice Scalia ignore the separationist impulses—in accord with the principle of “neutrality”—that these individuals brought to the debates surrounding the adoption of the Establishment Clause.[ Footnote 27 ]    Ardent separationists aside, there is another critical nuance lost in the plurality’s portrayal of history. Simply put, many of the Founders who are often cited as authoritative expositors of the Constitution’s original meaning understood the Establishment Clause to stand for a narrower proposition than the plurality, for whatever reason, is willing to accept. Namely, many of the Framers understood the word “religion” in the Establishment Clause to encompass only the various sects of Christianity.    The evidence is compelling. Prior to the Philadelphia Convention, the States had begun to protect “religious freedom” in their various constitutions. Many of those provisions, however, restricted “equal protection” and “free exercise” to Christians, and invocations of the divine were commonly understood to refer to Christ.[ Footnote 28 ] That historical background likely informed the Framers’ understanding of the First Amendment. Accordingly, one influential thinker wrote of the First Amendment that “ ‘[t]he meaning of the term “establishment” in this amendment unquestionably is, the preference and establishment given by law to one sect of Christians over every other.’ ” Jasper Adams, The Relation of Christianity to Civil Government in the United States (Feb. 13, 1833) (quoted in Dreisbach 16). That definition tracked the understanding of the text Justice Story adopted in his famous Commentaries, in which he wrote that the “real object” of the Clause was: “not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government. It thus sought to cut off the means of religious persecution, (the vice and pest of former ages,) and the power of subverting the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age.” 2 J. Story, Commentaries on the Constitution of the United States §991, p. 701 (R. Rotunda & J. Nowak eds. 1987) (hereinafter Story); see also Wallace , 472 U. S., at 52–55, and n. 36.[ Footnote 29 ] Along these lines, for nearly a century after the Founding, many accepted the idea that America was not just a religious nation, but “a Christian nation.” Church of Holy Trinity v. United States, 143 U. S. 457 , 471 (1892).[ Footnote 30 ]    The original understanding of the type of “religion” that qualified for constitutional protection under the Establishment Clause likely did not include those followers of Judaism and Islam who are among the preferred “monotheistic” religions Justice Scalia has embraced in his McCreary County opinion. See post , at 10–11 (dissenting opinion).[ Footnote 31 ] The inclusion of Jews and Muslims inside the category of constitutionally favored religions surely would have shocked Chief Justice Marshall and Justice Story. Indeed, Justice Scalia is unable to point to any persuasive historical evidence or entrenched traditions in support of his decision to give specially preferred constitutional status to all monotheistic religions. Perhaps this is because the history of the Establishment Clause’s original meaning just as strongly supports a preference for Christianity as it does a preference for monotheism. Generic references to “God” hardly constitute evidence that those who spoke the word meant to be inclusive of all monotheistic believers; nor do such references demonstrate that those who heard the word spoken understood it broadly to include all monotheistic faiths. See supra , at 21. Justice Scalia’s inclusion of Judaism and Islam is a laudable act of religious tolerance, but it is one that is unmoored from the Constitution’s history and text, and moreover one that is patently arbitrary in its inclusion of some, but exclusion of other ( e.g. , Buddhism), widely practiced non-Christian religions. See supra , at 12, 13–14, and n. 16 (noting that followers of Buddhism nearly equal the number of Americans who follow Islam). Given the original understanding of the men who championed our “Christian nation”—men who had no cause to view anti-Semitism or contempt for atheists as problems worthy of civic concern—one must ask whether Justice Scalia “has not had the courage (or the foolhardiness) to apply [his originalism] principle consistently.” McCreary County, post , at 7.    Indeed, to constrict narrowly the reach of the Establishment Clause to the views of the Founders would lead to more than this unpalatable result; it would also leave us with an unincorporated constitutional provision—in other words, one that limits only the federal establishment of “a national religion.” See Elk Grove Unified School Dist. v. Newdow , 542 U. S. 1 , 45 (2004) (Thomas, J., concurring in judgment); cf. A. Amar, The Bill of Rights 36–39 (1998). Under this view, not only could a State constitutionally adorn all of its public spaces with crucifixes or passages from the New Testament, it would also have full authority to prescribe the teachings of Martin Luther or Joseph Smith as the official state religion. Only the Federal Government would be prohibited from taking sides, (and only then as between Christian sects).    A reading of the First Amendment dependent on either of the purported original meanings expressed above would eviscerate the heart of the Establishment Clause. It would replace Jefferson’s “wall of separation” with a perverse wall of exclusion—Christians inside, non-Christians out. It would permit States to construct walls of their own choosing—Baptists inside, Mormons out; Jewish Orthodox inside, Jewish Reform out. A Clause so understood might be faithful to the expectations of some of our Founders, but it is plainly not worthy of a society whose enviable hallmark over the course of two centuries has been the continuing expansion of religious pluralism and tolerance. Cf. Abington , 374 U. S., at 214; Zelman v. Simmons-Harris , 536 U. S. 639 , 720, 723 (2002) (Breyer, J., dissenting).    Unless one is willing to renounce over 65 years of Establishment Clause jurisprudence and cross back over the incorporation bridge, see Cantwell v. Connecticut , 310 U. S. 296 , 303 (1940), appeals to the religiosity of the Framers ring hollow.[ Footnote 32 ] But even if there were a coherent way to embrace incorporation with one hand while steadfastly abiding by the Founders’ purported religious views on the other, the problem of the selective use of history remains. As the widely divergent views espoused by the leaders of our founding era plainly reveal, the historical record of the preincorporation Establishment Clause is too indeterminate to serve as an interpretive North Star.[ Footnote 33 ]    It is our duty, therefore, to interpret the First Amendment’s command that “Congress shall make no law respecting an establishment of religion” not by merely asking what those words meant to observers at the time of the founding, but instead by deriving from the Clause’s text and history the broad principles that remain valid today. As we have said in the context of statutory interpretation, legislation “often [goes] beyond the principal evil [at which the statute was aimed] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale v. Sundowner Offshore Services, Inc. , 523 U. S. 75 , 79 (1998). In similar fashion, we have construed the Equal Protection Clause of the Fourteenth Amendment to prohibit segregated schools, see Brown v. Board of Education , 349 U. S. 294 (1955), even though those who drafted that Amendment evidently thought that separate was not unequal.[ Footnote 34 ] We have held that the same Amendment prohibits discrimination against individuals on account of their gender, Frontiero v. Richardson , 411 U. S. 677 (1973), despite the fact that the contemporaries of the Amendment “doubt[ed] very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision,” Slaughter-House Cases, 16 Wall. 36, 81 (1873). And we have construed “evolving standards of decency” to make impermissible practices that were not considered “cruel and unusual” at the founding. See Roper v. Simmons , 543 U. S. ___, ___ (2005) (slip op., at 1) (Stevens, J., concurring).    To reason from the broad principles contained in the Constitution does not, as Justice Scalia suggests, require us to abandon our heritage in favor of unprincipled expressions of personal preference. The task of applying the broad principles that the Framers wrote into the text of the First Amendment is, in any event, no more a matter of personal preference than is one’s selection between two (or more) sides in a heated historical debate. We serve our constitutional mandate by expounding the meaning of constitutional provisions with one eye towards our Nation’s history and the other fixed on its democratic aspirations. See McCulloch v. Maryland, 4 Wheat. 316, 407, 415 (1819) (“[W]e must never forget, that it is a constitution we are expounding” that is intended to “endure for ages to come, and, consequently, to be adapted to the various crises of human affairs”). Constitutions, after all, “are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, ‘designed to approach immortality as nearly as human institutions can approach it.’ The future is their care and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value and be converted by precedent into impotent and lifeless formulas.” Weems v. United States , 217 U. S. 349 , 373 (1910).    The principle that guides my analysis is neutrality.[ Footnote 35 ] The basis for that principle is firmly rooted in our Nation’s history and our Constitution’s text. I recognize that the requirement that government must remain neutral between religion and irreligion would have seemed foreign to some of the Framers; so too would a requirement of neutrality between Jews and Christians. But cf. Letter from George Washington to the Hebrew Congregation in Newport, R. I. (Aug. 18, 1790), in 6 Papers of George Washington 284, 285 (D. Twohig ed. 1996). Fortunately, we are not bound by the Framers’ expectations—we are bound by the legal principles they enshrined in our Constitution. Story’s vision that States should not discriminate between Christian sects has as its foundation the principle that government must remain neutral between valid systems of belief. As religious pluralism has expanded, so has our acceptance of what constitutes valid belief systems. The evil of discriminating today against atheists, “polytheists[,] and believers in unconcerned deities,” McCreary County , post , at 10 (Scalia, J., dissenting), is in my view a direct descendent of the evil of discriminating among Christian sects. The Establishment Clause thus forbids it and, in turn, forbids Texas from displaying the Ten Commandments monument the plurality so casually affirms. IV    The Eagles may donate as many monuments as they choose to be displayed in front of Protestant churches, benevolent organizations’ meeting places, or on the front lawns of private citizens. The expurgated text of the King James version of the Ten Commandments that they have crafted is unlikely to be accepted by Catholic parishes, Jewish synagogues, or even some Protestant denominations, but the message they seek to convey is surely more compatible with church property than with property that is located on the government side of the metaphorical wall.    The judgment of the Court in this case stands for the proposition that the Constitution permits governmental displays of sacred religious texts. This makes a mockery of the constitutional ideal that government must remain neutral between religion and irreligion. If a State may endorse a particular deity’s command to “have no other gods before me,” it is difficult to conceive of any textual display that would run afoul of the Establishment Clause.    The disconnect between this Court’s approval of Texas’s monument and the constitutional prohibition against preferring religion to irreligion cannot be reduced to the exercise of plotting two adjacent locations on a slippery slope. Cf. ante , at 8 (Breyer, J., concurring in judgment). Rather, it is the difference between the shelter of a fortress and exposure to “the winds that would blow” if the wall were allowed to crumble. See TVA v. Hill, 437 U. S. 153 , 195 (1978) (internal quotation marks omitted). That wall, however imperfect, remains worth preserving.    I respectfully dissent. [Graphic omitted: see printed opinion.] Footnote 1 At the bottom of the message, the observer learns that the display was “[p]resented to the people and youth of Texas by the Fraternal Order of Eagles of Texas” in 1961. See Appendix, infra . Footnote 2 Reynolds v. United States , 98 U. S. 145 , 164 (1879); see also Everson v. Board of Ed. of Ewing , 330 U. S. 1 , 16 (1947). Footnote 3 As Senator Danforth recently reminded us, “efforts to haul references of God into the public square, into schools and courthouses, are far more apt to divide Americans than to advance faith.” Danforth, Onward, Moderate Christian Soldiers, N. Y. Times, June 17, 2005, p. A27. Footnote 4 The accuracy and utility of this metaphor have been called into question. See, e.g., Wallace v. Jaffree , 472 U. S. 38 , 106 (1985) (Rehnquist, J., dissenting); see generally P. Hamburger, Separation of Church and State (2002). Whatever one may think of the merits of the historical debate surrounding Jefferson and the “wall” metaphor, this Court at a minimum has never questioned the concept of the “separation of church and state” in our First Amendment jurisprudence. The Chief Justice’s opinion affirms that principle. Ante , at 4 (demanding a “separation between church and state”). Indeed, even the Court that famously opined that “[w]e are a religious people whose institutions presuppose a Supreme Being,” Zorach v. Clauson , 343 U. S. 306 , 313 (1952), acknowledged that “[t]here cannot be the slightest doubt that the First Amendment reflects the philosophy that Church and State should be separated,” id. , at 312. The question we face is how to give meaning to that concept of separation. Footnote 5 There is now widespread consensus on this principle. See Everson v. Board of Ed. of Ewing , 330 U. S. 1 , 15 (1947) (“Neither a state nor the Federal Government . . . can pass laws which aid one religion, aid all religions, or prefer one religion over another”); School District of Abington Township v. Schempp , 374 U. S. 203 , 226 (1963) (“In the relationship between man and religion, the State is firmly committed to a position of neutrality”); Larson v. Valente , 456 U. S. 228 , 244 (1982) (“The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another”); see also Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U. S. 687 , 748 (1994) (Scalia, J., dissenting) (“I have always believed … that the Establishment Clause prohibits the favoring of one religion over others”); but see Church of Holy Trinity v. United States, 143 U. S. 457 , 470–471 (1892). Footnote 6 In support of this proposition, the Torcaso Court quoted James Iredell, who in the course of debating the adoption of the Federal Constitution in North Carolina, stated: “ ‘it is objected that the people of America may perhaps choose representatives who have no religion at all, and that Pagans and Mahometans may be admitted into offices. But how is it possible to exclude any set of men, without taking away that principle of religious freedom which we ourselves so warmly contend for?’ ” 367 U. S., at 495, n. 10 (quoting 4 J. Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 197 (1836 ed.)). Footnote 7 See Everson , 330 U. S., at 18 (the Establishment Clause “requires the state to be … neutral in its relations with groups of religious believers and non-believers”); Abington , 374 U. S., at 216 (rejecting the proposition that the Establishment Clause “forbids only governmental preference of one religion over another”); Wallace , 472 U. S., at 52–55 (the interest in “forestalling intolerance extends beyond intolerance among Christian sects—or even intolerance among ‘religions’—to encompass intolerance of the disbeliever and the uncertain”); cf. Zorach , 343 U. S., at 325 (Jackson, J., dissenting) (“The day that this country ceases to be free for irreligion it will cease to be free for religion—except for the sect that can win political power”). Footnote 8 Justice Scalia’s dissent in the other Ten Commandments case we decide today, see McCreary County v. American Civil Liberties Union of Ky ., post , at 1–11, raises similar objections. I address these objections directly in Part III. Footnote 9 Though this Court has subscribed to the view that the Ten Commandments influenced the development of Western legal thought, it has not officially endorsed the far more specific claim that the Ten Commandments played a significant role in the development of our Nation’s foundational documents (and the subsidiary implication that it has special relevance to Texas). Although it is perhaps an overstatement to characterize this latter proposition as “idiotic,” see Tr. of Oral Arg. 34, as one Member of the plurality has done, at the very least the question is a matter of intense scholarly debate. Compare Brief for Legal Historians and Law Scholars as Amicus Curiae in McCreary County v. American Civil Liberties Union of Ky. , O. T. 2004, No. 03–1693, with Brief for American Center for Law and Justice as Amici Curiae . Whatever the historical accuracy of the proposition, the District Court categorically rejected respondent’s suggestion that the State’s actual purpose in displaying the Decalogue was to signify its influence on secular law and Texas institutions. App. to Pet. for Cert. A–32. Footnote 10 See Brief for Fraternal Order of Eagles as Amicus Curiae 2–3. The Order was formed in 1898 by six Seattle theater owners, promptly joined by actors, playwrights, and stagehands, and rapidly expanded to include a nationwide membership numbering over a million. Id. , at 2; see also Fraternal Order of Eagles v. Grand Aerie of Fraternal Order of Eagles , 148 Wash. 2d 224, 229, 59 P. 3d 655, 657 (2002) (en banc); Lahmann v. Grand Aerie of Fraternal Order of Eagles , 180 Ore. App. 420, 422, 43 P. 3d 1130, 1131 (2002). Footnote 11 See Books v. Elkhart , 235 F. 3d 292, 294–295 (CA7 2000); State v. Freedom from Religion Foundation, Inc. , 898 P. 2d 1013, 1017 (Colo. 1995) (en banc); see also U. S. Supreme Court will hear Ten Commandments Case in Early 2005, http://www.foe.com/tencommandments/ index.html (all Internet materials as visited June 24, 2005, and available in Clerk of Court’s case file). Footnote 12 Freedom from Religion Foundation , 898 P. 2d, at 1017; accord, 1961 Tex. Gen. Laws 1995 (“These plaques and monoliths have been presented by the Eagles to promote youth morality and to help stop the alarming increase in delinquency”); Brief for Fraternal Order of Eagles as Amicus Curiae 4. Footnote 13 According to its articles of incorporation, the Eagles’ purpose is to: “ ‘Unite fraternally for mutual benefit, protection, improvement, social enjoyment and association, all persons of good moral character who believe in a Supreme Being to inculcate the principles of liberty, truth, justice and equality …’ ” Fraternal Order of Eagles , 148 Wash. 2d, at 229, 59 P. 3d, at 657. See also Aerie Membership Application–Fraternal Order of Eagles http://www.foe.com/membership/applications/aerie.html (“I, being of sound body and mind, and believing in the existence of a Supreme Being …”). Footnote 14 In County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter , 492 U. S. 573 (1989) , I noted that certain displays of religious images may convey “an equivocal message, perhaps of respect for Judaism, for religion in general, or for law.” Id. , at 652 (opinion concurring in part and dissenting in part). It is rather misleading, however, to quote my comment in that case to imply that I was referring to the text of the Ten Commandments simpliciter . See McCreary County , post , at 13–14. Footnote 15 See ante , at 5 (Breyer, J., concurring in judgment). Despite the Eagles’ efforts, not all of the monuments they donated in fact conform to a “universally-accepted” text. Compare, e.g. , Appendix, infra (including the command that “Thou shalt not make to thyself any graven images”), and Adland v. Russ , 307 F. 3d 471, 475 (CA6 2002) (same), with Freedom from Religion Foundation , 898 P. 2d, at 1016 (omitting that command altogether). The distinction represents a critical divide between the Protestant and Catholic faiths. During the Reformation, Protestants destroyed images of the Virgin Mary and of Jesus Christ that were venerated in Catholic churches. Even today there is a notable difference between the imagery in different churches, a difference that may in part be attributable to differing understandings of the meaning of what is the Second Commandment in the King James Bible translation and a portion of the First Commandment in the Catholic translation. See Finkelman, The Ten Commandments on the Courthouse Lawn and Elsewhere, 73 Ford. L. Rev. 1477, 1493–1494 (2005). Footnote 16 For example, in the Jewish version of the Sixth Commandment God commands: “You shall not murder”; whereas, the King James interpretation of the same command is: “Thou shalt not kill.” Compare W. Plaut, The Torah: A Modern Commentary 534 (1981), with Appendix, infra . The difference between the two versions is not merely semantic; rather, it is but one example of a deep theological dispute. See Finkelman, supra , at 1481–1500; P. Maier, Enumerating the Decalogue; Do We Number the Ten Commandments Correctly? 16 Concordia J. 18, 18–26 (1990). Varying interpretations of this Commandment explain the actions of vegetarians who refuse to eat meat, pacifists who refuse to work for munitions makers, prison officials who refuse to administer lethal injections to death row inmates, and pharmacists who refuse to sell morning-after pills to women. See Finkelman, supra , at 1494–1496; Brief for American Jewish Congress et al. as Amici Curiae 22–23. Although the command is ambiguous, its power to motivate likeminded interpreters of its message cannot be denied. Footnote 17 Justice Scalia’s willingness to dismiss the distinct textual versions adhered to by different faiths in the name of generic “monotheism” based on mere speculation regarding their significance, McCreary County, post , at 19, is not only somewhat ironic, see A. Scalia, A Matter of Interpretation 23–25 (1997), but also serves to reinforce the concern that interjecting government into the religious sphere will offend “adherents who consider the particular advertisement disrespectful.” Allegheny County , 492 U. S., at 651 (Stevens, J., concurring in part and dissenting in part). Footnote 18 See Brief for Hindu American Foundation et al. as Amici Curiae . Though Justice Scalia disagrees that these sentiments are consistent with the Establishment Clause, he does not deny that our cases wholeheartedly adopt this expression of neutrality. Instead, he suggests that this Court simply discard what he terms the “say-so of earlier Courts,” based in part on his own “say-so” that nonmonotheists make up a statistically insignificant portion of this Nation’s religious community. McCreary County, post , at 6. Besides marginalizing the belief systems of more than 7 million Americans by deeming them unworthy of the special protections he offers monotheists under the Establishment Clause, Justice Scalia’s measure of analysis may be cause for concern even for the self-proclaimed “popular” religions of Islam and Judaism. The number of Buddhists alone is nearly equal to the number of Muslims in this country, and while those of the Islamic and Jewish faiths only account for 2.2% of all believers, Christianity accounts for 95.5%. See U. S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States: 2004–2005, p. 55 (124th ed. 2004) (Table No. 67). Footnote 19 The fact that this particular display has stood unchallenged for over forty years does not suggest otherwise. One need look no further than the deluge of cases flooding lower courts to realize the discord these displays have engendered. See, e.g. , Mercier v. Fraternal Order of Eagles , 395 F. 3d 693 (CA7 2005); ACLU Nebraska Foundation v. Plattsmouth , 358 F. 3d 1020 (CA8 2004); Adland v. Russ , 307 F. 3d 471 (CA6 2002); Summum v. Ogden , 297 F. 3d 995 (CA10 2002); Books v. Elkhart , 235 F. 3d 292 (CA7 2000); State v. Freedom From Religion Foundation, Inc., 898 P. 2d 1013 (Colo. 1995); Anderson v. Salt Lake City Corp. , 475 F. 2d 29 (CA10 1973). Footnote 20 This is, of course, a rhetorical approach not unique to the plurality’s opinion today. Appeals to such religious speeches have frequently been used in support of governmental transmission of religious messages. See, e.g., Wallace , 472 U. S., at 98–104 (Rehnquist, J., dissenting); Lee v. Weisman , 505 U. S. 577 , 633–636 (1992) (Scalia, J., dissenting); Santa Fe Independent School Dist. v. Doe , 530 U. S. 290 , 318 (2000) (Rehnquist, C. J., dissenting); cf. Lynch v. Donnelly , 465 U. S. 668 , 675–676 (1984). Footnote 21 It goes without saying that the analysis differs when a listener is coerced into listening to a prayer. See, e.g., Santa Fe Independent School Dist., 530 U. S., at 308–312. Footnote 22 With respect to the “legislative prayers” cited approvingly by The Chief Justice, ante , at 8, I reiterate my view that “the designation of a member of one religious faith to serve as the sole official chaplain of a state legislature for a period of 16 years constitutes the preference of one faith over another in violation of the Establishment Clause.” Marsh v. Chambers , 463 U. S. 783 , 823 (1983) (Stevens, J., dissenting). Thus, Justice Scalia and I are in agreement with respect to at least one point—this Court’s decision in Marsh “ignor[ed] the neutrality principle” at the heart of the Establishment Clause. McCreary County , post , at 8 (Scalia, J., dissenting). Footnote 23 See, e.g., J. Hutson, Religion and the Founding of the American Republic 75 (1998) (noting the dearth of references to God at the Philadelphia Convention and that many contemporaneous observers of the Convention complained that “the Framers had unaccountably turned their backs on the Almighty” because they “ ‘found the Constitution without any acknowledgement of God’ ”). Footnote 24 See Letter from Thomas Jefferson to Rev. S. Miller (Jan. 23, 1808), in 5 Founders’ Constitution 98; 11 Jefferson’s Writings 428–430 (1905); see also Lee , 505 U. S., at 623–625 (Souter, J., concurring) (documenting history); Lynch , 465 U. S., at 716, n. 23 (Brennan, J., dissenting) (same). Footnote 25 See also James Madison, Detached Memoranda, in 5 Founders’ Constitution 103–104. Madison’s letter to Livingston further argued that: “There has been another deviation from the strict principle in the Executive Proclamations of fasts & festivals, so far, at least, as they have spoken the language of injunction , or have lost sight of the equality of all religious sects in the eve of the Constitution… . Notwithstanding the general progress made within the last two centuries in favour of this branch of liberty, & the full establishment of it, in some parts of our Country, there remains in others a strong bias towards old error, that without some sort of alliance or coalition between [Government] & Religion neither can be duly supported. Such indeed is the tendency to such a coalition, and such its corrupting influence on both the parties, that the danger cannot be too carefully guarded [against]… . Every new & successful example therefore of a perfect separation between ecclesiastical and civil matters, is of importance. And I have no doubt that every new example, will succeed, as every past one has done, in shewing that religion & [Government] will both exist in greater purity, the less they are mixed together.” Id. , at 105–106. Footnote 26 Religion and Politics in the Early Republic 20–21 (D. Dreisbach ed. 1996) (hereinafter Dreisbach) (quoting Letter from James Madison to Jasper Adams (1833)). See also Letter from James Madison to Edward Livingston (July 10, 1822), in 5 Founders’ Constitution 106 (“We are teaching the world the great truth that [Governments] do better without Kings & Nobles than with them. The merit will be doubled by the other lesson that Religion flourishes in greater purity, without than with the aid of [Government]”). Footnote 27 The contrary evidence cited by The Chief Justice and Justice Scalia only underscores the obvious fact that leaders who have drafted and voted for a text are eminently capable of violating their own rules. The first Congress was—just as the present Congress is—capable of passing unconstitutional legislation. Thus, it is no answer to say that the Founders’ separationist impulses were “plainly rejected” simply because the first Congress enacted laws that acknowledged God. See McCreary County , post , at 13 (Scalia, J., dissenting). To adopt such an interpretive approach would misguidedly give authoritative weight to the fact that the Congress that passed the Fourteenth Amendment also enacted laws that tolerated segregation, and the fact that the Congress that passed the First Amendment also enacted laws, such as the Alien and Sedition Act, that indisputably violated our present understanding of the First Amendment. See n. 36, infra ; Lee , 505 U. S., at 626 (Souter, J., concurring). Footnote 28 See, e.g., Strang, The Meaning of “Religion” in the First Amendment, 40 Duquesne L. Rev. 181, 220–223 (2002). Footnote 29 Justice Story wrote elsewhere that “ ‘Christianity is indispensable to the true interests & solid foundations of all free governments. I distinguish … between the establishment of a particular sect, as the Religion of the State, & the Establishment of Christianity itself, without any preference of any particular form of it. I know not, indeed, how any deep sense of moral obligation or accountableness can be expected to prevail in the community without a firm persuasion of the great Christian Truths.” Letter to Jasper Adams (May 14, 1833) Dreisbach 19. Footnote 30 See 143 U. S., at 471 (“ ‘[W]e are a Christian people, and the morality of the country is deeply ingrafted upon Christianity, and not upon the doctrines or worship of … imposters’ ” (quoting People v. Ruggles , 8 Johns. 290, 295 (N. Y. Sup. Ct. 1811))); see also Vidal v. Philadelphia, 2 How. 127, 198–199 (1844). These views should not be read as those of religious zealots. Chief Justice Marshall himself penned the historical genesis of the Court’s assertion that our “ ‘institutions presuppose a Supreme Being,’ ” see Zorach , 343 U. S., at 313, writing that the “American population is entirely Christian, & with us, Christianity & Religion are identified. It would be strange, indeed, if with such a people, our institutions did not presuppose Christianity, & did not often refer to it, & exhibit relations with it.” Letter from John Marshall to Jasper Adams (May 9, 1833) (quoted in Dreisbach 18–19). Accord, Story §988, p. 700 (“[A]t the time of the adoption of the constitution, . . . the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state …” (footnote omitted)). Footnote 31 Justice Scalia’s characterization of this conclusion as nothing more than my own personal “assurance” is misleading to say the least. McCreary County , post , at 13. Reliance on our Nation’s early constitutional scholars is common in this Court’s opinions. In particular, the author of the plurality once noted that “Joseph Story, a Member of this Court from 1811 to 1845, and during much of that time a professor at the Harvard Law School, published by far the most comprehensive treatise on the United States Constitution that had then appeared.” Wallace , 472 U. S., at 104 (Rehnquist, J., dissenting). And numerous opinions of this Court, including two notable opinions authored by Justice Scalia, have seen it fit to give authoritative weight to Joseph Story’s treatise when interpreting other constitutional provisions. See, e.g., United States v. Gaudin , 515 U. S. 506 , 510–511 (1995) (Fifth Amendment); Harmelin v. Michigan , 501 U. S. 957 , 981–982 (1991) (Eighth Amendment). Footnote 32 Justice Scalia’s answer—that incorporation does not empty “the incorporated provisions of their original meaning,” McCreary County , post , at 15—ignores the fact that the Establishment Clause has its own unique history. There is no evidence, for example, that incorporation of the Confrontation Clause ran contrary to the core of the Clause’s original understanding. There is, however, some persuasive evidence to this effect regarding the Establishment Clause. See Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1 , 49 (2004) (Thomas, J., concurring in judgment) (arguing that the Clause was originally understood to be a “federalism provision” intended to prevent “Congress from interfering with state establishments”). It is this unique history, not incorporation writ large, that renders incoherent the postincorporation reliance on the Establishment Clause’s original understanding.    Justice Thomas, at least, has faced this problem head-on. See id. , at 45 (opinion concurring in judgment). But even if the decision to incorporate the Establishment Clause was misguided, it is at this point unwise to reverse course given the weight of precedent that would have to be cast aside to reach the intended result. See Cardozo, The Nature of the Judicial Process 149 (1937) (“The labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case”). Footnote 33 See Lee , 505 U. S., at 626 (Souter, J., concurring) (“[A]t best, … the Framers simply did not share a common understanding of the Establishment Clause,” and at worst, their overtly religious proclamations show “that they … could raise constitutional ideals one day and turn their backs on them the next”); Lynch v. Donnelly , 465 U. S. 668 , 716 (1984) (Brennan, J., dissenting) (same); cf. Feldman, Intellectual Origins of the Establishment Clause, 77 N. Y. U. L. Rev. 346, 404–405 (2002) (noting that, for the Framers, “the term ‘establishment’ was a contested one” and that the word “was used in both narrow and expansive ways in the debates of the time”). Footnote 34 See Hovenkamp, The Cultural Crises of the Fuller Court, 104 Yale L. J. 2309, 2337–2342 (1995) (“Equal protection had not been identified with social integration when the Fourteenth Amendment was drafted in 1866, nor when it was ratified in 1868, nor when Plessy [v. Ferguson , 163 U. S. 537 ] was decided in 1896”); see also 1 L. Tribe, American Constitutional Law §1–14, pp. 54–55, and n. 19 (3d ed. 2000) (collecting scholarship). Footnote 35 Justice Thomas contends that the Establishment Clause cannot include such a neutrality principle because the Clause reaches only the governmental coercion of individual belief or disbelief. Ante , at 4 (concurring opinion). In my view, although actual religious coercion is undoubtedly forbidden by the Establishment Clause, that cannot be the full extent of the provision’s reach. Jefferson’s “wall” metaphor and his refusal to issue Thanksgiving proclamations, see supra, at 19, would have been nonsensical if the Clause reached only direct coercion. Further, under the “coercion” view, the Establishment Clause would amount to little more than a replica of our compelled speech doctrine, see, e.g., West Virginia Bd. of Ed. v. Barnette , 319 U. S. 624 , 639 (1943), with a religious flavor. A Clause so interpreted would not prohibit explicit state endorsements of religious orthodoxies of particular sects, actions that lie at the heart of what the Clause was meant to regulate. The government could, for example, take out television advertisements lauding Catholicism as the only pure religion. Under the reasoning endorsed by Justice Thomas, those programs would not be coercive because the viewer could simply turn off the television or ignore the ad. See ante , at 3 (“[T]he mere presence of the monument … involves no coercion” because the passerby “need not stop to read it or even to look at it”).    Further, the notion that the application of a “coercion” principle would somehow lead to a more consistent jurisprudence is dubious. Enshrining coercion as the Establishment Clause touchstone fails to eliminate the difficult judgment calls regarding “the form that coercion must take.” McCreary County , post , at 25 (Scalia, J., dissenting). Coercion may seem obvious to some, while appearing nonexistent to others. Compare Santa Fe Independent School Dist. , 530 U. S., at 312, with Lee , 505 U. S., at 642 (Scalia, J., dissenting). It may be a legal requirement or an effect that is indirectly inferred from a variety of factors. See, e.g., Engel v. Vitale , 370 U. S. 421 , 431 (1962) (“When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain”). In short, “reasonable people could, and no doubt would, argue about whether coercion existed in a particular situation.” Feldman, The Intellectual Origins of the Establishment Clause, 77 N. Y. U. L. Rev. 346, 415 (2002). 545 U. S. ____ (2005) 545 U. S. ____ (2005) 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-1500 THOMAS VAN ORDEN, PETITIONER v. RICK PERRY, in his official capacity as GOVERNOR OF TEXAS and CHAIRMAN, STATE PRESERVATION BOARD, et al. on writ of certiorari to the united states court of appeals for the fifth circuit [June 27, 2005]    Justice O’Connor, dissenting.    For essentially the reasons given by Justice Souter, post, p.___ (dissenting opinion), as well as the reasons given in my concurrence in McCreary County v. American Civil Liberties Union of Ky., post, at ___, I respectfully dissent. SOUTER, J., DISSENTING VAN ORDEN V. PERRY 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-1500 THOMAS VAN ORDEN, PETITIONER v. RICK PERRY, in his official capacity as GOVERNOR OF TEXAS and CHAIRMAN, STATE PRESERVATION BOARD, et al. on writ of certiorari to the united states court of appeals for the fifth circuit [June 27, 2005]    Justice Souter, with whom Justice Stevens and Justice Ginsburg join, dissenting.    Although the First Amendment’s Religion Clauses have not been read to mandate absolute governmental neutrality toward religion, cf. Sherbert v. Verner , 374 U. S. 398 (1963), the Establishment Clause requires neutrality as a general rule, e.g. , Everson v. Board of Ed. of Ewing , 330 U. S. 1 , 18 (1947), and thus expresses Madison’s condemnation of “employ[ing] Religion as an engine of Civil policy,” Memorial and Remonstrance Against Religious Assessments, 2 Writings of James Madison 183, 187 (G. Hunt ed. 1901). A governmental display of an obviously religious text cannot be squared with neutrality, except in a setting that plausibly indicates that the statement is not placed in view with a predominant purpose on the part of government either to adopt the religious message or to urge its acceptance by others.    Until today, only one of our cases addressed the constitutionality of posting the Ten Commandments, Stone v. Graham , 449 U. S. 39 , 41–42 (1980) (per curiam) . A Kentucky statute required posting the Commandments on the walls of public school classrooms, and the Court described the State’s purpose (relevant under the tripartite test laid out in Lemon v. Kurtzman , 403 U. S. 602 (1971)) as being at odds with the obligation of religious neutrality. “The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact. The Commandments do not confine themselves to arguably secular matters, such as honoring one’s parents, killing or murder, adultery, stealing, false witness, and covetousness. Rather, the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord’s name in vain, and observing the Sabbath Day.” 449 U. S. at 41–42 (footnote and citations omitted). What these observations underscore are the simple realities that the Ten Commandments constitute a religious statement, that their message is inherently religious, and that the purpose of singling them out in a display is clearly the same.[ Footnote 1 ]    Thus, a pedestrian happening upon the monument at issue here needs no training in religious doctrine to realize that the statement of the Commandments, quoting God himself, proclaims that the will of the divine being is the source of obligation to obey the rules, including the facially secular ones. In this case, moreover, the text is presented to give particular prominence to the Commandments’ first sectarian reference, “I am the Lord thy God.” That proclamation is centered on the stone and written in slightly larger letters than the subsequent recitation. To ensure that the religious nature of the monument is clear to even the most casual passerby, the word “Lord” appears in all capital letters (as does the word “am”), so that the most eye-catching segment of the quotation is the declaration “I AM the LORD thy God.” App. to Pet. for Cert. 21. What follows, of course, are the rules against other gods, graven images, vain swearing, and Sabbath breaking. And the full text of the fifth Commandment puts forward filial respect as a condition of long life in the land “which the Lord they God giveth thee.” See ibid. These “[w]ords … make [the] … religious meaning unmistakably clear.” County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573 , 598 (1989).    To drive the religious point home, and identify the message as religious to any viewer who failed to read the text, the engraved quotation is framed by religious symbols: two tablets with what appears to be ancient script on them, two Stars of David, and the superimposed Greek letters Chi and Rho as the familiar monogram of Christ. Nothing on the monument, in fact, detracts from its religious nature,[ Footnote 2 ] see ibid. (“Here, unlike in Lynch [v. Donnelly , 465 U. S. 668 (1984)], nothing in the context of the display detracts from the crčche’s religious message”), and the plurality does not suggest otherwise. It would therefore be difficult to miss the point that the government of Texas[ Footnote 3 ] is telling everyone who sees the monument to live up to a moral code because God requires it, with both code and conception of God being rightly understood as the inheritances specifically of Jews and Christians. And it is likewise unsurprising that the District Court expressly rejected Texas’s argument that the State’s purpose in placing the monument on the capitol grounds was related to the Commandments’ role as “part of the foundation of modern secular law in Texas and elsewhere.” App. to Pet. for Cert. 32.    The monument’s presentation of the Commandments with religious text emphasized and enhanced stands in contrast to any number of perfectly constitutional depictions of them, the frieze of our own Courtroom providing a good example, where the figure of Moses stands among history’s great lawgivers. While Moses holds the tablets of the Commandments showing some Hebrew text, no one looking at the lines of figures in marble relief is likely to see a religious purpose behind the assemblage or take away a religious message from it. Only one other depiction represents a religious leader, and the historical personages are mixed with symbols of moral and intellectual abstractions like Equity and Authority. See County of Allegheny , supra , at 652 (Stevens, J., concurring in part and dissenting in part). Since Moses enjoys no especial prominence on the frieze, viewers can readily take him to be there as a lawgiver in the company of other lawgivers; and the viewers may just as naturally see the tablets of the Commandments (showing the later ones, forbidding things like killing and theft, but without the divine preface) as background from which the concept of law emerged, ultimately having a secular influence in the history of the Nation. Government may, of course, constitutionally call attention to this influence, and may post displays or erect monuments recounting this aspect of our history no less than any other, so long as there is a context and that context is historical. Hence, a display of the Commandments accompanied by an exposition of how they have influenced modern law would most likely be constitutionally unobjectionable.[ Footnote 4 ] And the Decalogue could, as Stone suggested, be integrated constitutionally into a course of study in public schools. Stone, 449 U. S. , at 42.[ Footnote 5 ] Texas seeks to take advantage of the recognition that visual symbol and written text can manifest a secular purpose in secular company, when it argues that its monument (like Moses in the frieze) is not alone and ought to be viewed as only 1 among 17 placed on the 22 acres surrounding the state capitol. Texas, indeed, says that the Capitol grounds are like a museum for a collection of exhibits, the kind of setting that several Members of the Court have said can render the exhibition of religious artifacts permissible, even though in other circumstances their display would be seen as meant to convey a religious message forbidden to the State. County of Allegheny, 492 U. S. , at 595 (opinion of Blackmun, J., joined by Stevens, J.); Lynch v. Donnelly , 465 U. S. 668 , 692 (1984) (O’Connor, J., concurring). So, for example, the Government of the United States does not violate the Establishment Clause by hanging Giotto’s Madonna on the wall of the National Gallery. But 17 monuments with no common appearance, history, or esthetic role scattered over 22 acres is not a museum, and anyone strolling around the lawn would surely take each memorial on its own terms without any dawning sense that some purpose held the miscellany together more coherently than fortuity and the edge of the grass. One monument expresses admiration for pioneer women. One pays respect to the fighters of World War II. And one quotes the God of Abraham whose command is the sanction for moral law. The themes are individual grit, patriotic courage, and God as the source of Jewish and Christian morality; there is no common denominator. In like circumstances, we rejected an argument similar to the State’s, noting in County of Allegheny that “[t]he presence of Santas or other Christmas decorations elsewhere in the . . . [c]ourthouse, and of the nearby gallery forum, fail to negate the [crčche’s] endorsement effect. . . . The record demonstrates . . . that the crčche, with its floral frame, was its own display distinct from any other decorations or exhibitions in the building.” 492 U. S., at 598–599, n. 48.[ Footnote 6 ] If the State’s museum argument does nothing to blunt the religious message and manifestly religious purpose behind it, neither does the plurality’s reliance on generalities culled from cases factually different from this one. E.g., ante, at 8 (“We have acknowledged, for example, that ‘religion has been closely identified with our history and government,’ School Dist. of Abington Township v. Schempp, 374 U. S., at 212, and that ‘[t]he history of man is inseparable from the history of religion,’ Engel v. Vitale, 370 U. S. 421 , 434 (1962)”). In fact, it is not until the end of its opinion that the plurality turns to the relevant precedent of Stone , a case actually dealing with a display of the Decalogue. When the plurality finally does confront Stone, it tries to avoid the case’s obvious applicability by limiting its holding to the classroom setting. The plurality claims to find authority for limiting Stone ’s reach this way in the opinion’s citations of two school-prayer cases, School Dist. of Abington Township v. Schempp, 374 U. S. 203 (1963), and Engel v. Vitale, 370 U. S. 421 (1962). But Stone relied on those cases for widely applicable notions, not for any concept specific to schools. The opinion quoted Schempp ’s statements that “it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment,” Schempp, supra, at 225, quoted in Stone, 449 U. S. , at 42; and that “the place of the Bible as an instrument of religion cannot be gainsaid,” Schempp, supra, at 224, quoted in Stone, supra, at 41, n. 3. And Engel was cited to support the proposition that the State was responsible for displaying the Commandments, even though their framed, printed texts were bought with private subscriptions. Stone , supra , at 42 (“[T]he mere posting of the [Commandments] under the auspices of the legislature provides the official support of the State Government that the Establishment Clause prohibits” (omission and internal quotation marks omitted)). Thus, the schoolroom was beside the point of the citations, and that is presumably why the Stone Court failed to discuss the educational setting, as other opinions had done when school was significant. E.g., Edwards v. Aguillard, 482 U. S. 578 , 584 (1987). Stone did not, for example, speak of children’s impressionability or their captivity as an audience in a school class. In fact, Stone ’s reasoning reached the classroom only in noting the lack of support for the claim that the State had brought the Commandments into schools in order to “integrat[e] [them] into the school curriculum.” 449 U. S. , at 42. Accordingly, our numerous prior discussions of Stone have never treated its holding as restricted to the classroom.[ Footnote 7 ] Nor can the plurality deflect Stone by calling the Texas monument “a far more passive use of [the Decalogue] than was the case in Stone, where the text confronted elementary school students every day.” Ante, at 12. Placing a monument on the ground is not more “passive” than hanging a sheet of paper on a wall when both contain the same text to be read by anyone who looks at it. The problem in Stone was simply that the State was putting the Commandments there to be seen, just as the monument’s inscription is there for those who walk by it. To be sure, Kentucky’s compulsory-education law meant that the schoolchildren were forced to see the display every day, whereas many see the monument by choice, and those who customarily walk the Capitol grounds can presumably avoid it if they choose. But in my judgment (and under our often inexact Establishment Clause jurisprudence, such matters often boil down to judgment, see ante , at 3–4 (Breyer, J., concurring in judgment)), this distinction should make no difference. The monument in this case sits on the grounds of the Texas State Capitol. There is something significant in the common term “statehouse” to refer to a state capitol building: it is the civic home of every one of the State’s citizens. If neutrality in religion means something, any citizen should be able to visit that civic home without having to confront religious expressions clearly meant to convey an official religious position that may be at odds with his own religion, or with rejection of religion. See County of Allegheny , 492 U. S., at 626 (O’Connor, J., concurring in part and concurring in judgment) (“I agree that the crčche displayed on the Grand Staircase of the Allegheny County Courthouse, the seat of county government, conveys a message to nonadherents of Christianity that they are not full members of the political community … . The display of religious symbols in public areas of core government buildings runs a special risk of making religion relevant, in reality or public perception, to status in the political community” (alteration and internal quotation marks omitted)). Finally, though this too is a point on which judgment will vary, I do not see a persuasive argument for constitutionality in the plurality’s observation that Van Orden’s lawsuit comes “[f]orty years after the monument’s erection . . . ,” a nte, at 2, an observation that echoes the State’s contention that one fact cutting in its favor is that “the monument stood … in Austin . . . for some forty years without generating any controversy or litigation,” Brief for Respondents 25. It is not that I think the passage of time is necessarily irrelevant in Establishment Clause analysis. We have approved framing-era practices because they must originally have been understood as constitutionally permissible, e.g. , Marsh v. Chambers , 463 U. S. 783 (1983) (legislative prayer), and we have recognized that Sunday laws have grown recognizably secular over time, McGowan v. Maryland, 366 U. S. 420 (1961). There is also an analogous argument, not yet evaluated, that ritualistic religious expression can become so numbing over time that its initial Establishment Clause violation becomes at some point too diminished for notice. But I do not understand any of these to be the State’s argument, which rather seems to be that 40 years without a challenge shows that as a factual matter the religious expression is too tepid to provoke a serious reaction and constitute a violation. Perhaps, but the writer of Exodus chapter 20 was not lukewarm, and other explanations may do better in accounting for the late resort to the courts. Suing a State over religion puts nothing in a plaintiff’s pocket and can take a great deal out, and even with volunteer litigators to supply time and energy, the risk of social ostracism can be powerfully deterrent. I doubt that a slow walk to the courthouse, even one that took 40 years, is much evidentiary help in applying the Establishment Clause. I would reverse the judgment of the Court of Appeals. Footnote 1 The clarity of the religious manifestation in Stone was unaffected by the State’s effort to obscure it: the Kentucky statute that mandated posting the Commandments in classrooms also required the addition to every posting of a notation reading, “[t]he secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.” 449 U. S., at 39–40, n. 1. In the present case, the religious purpose was evident on the part of the donating organization. When the Fraternal Order of Eagles, the group that gave the monument to the State of Texas, donated identical monuments to other jurisdictions, it was seeking to impart a religious message. See Adland v. Russ , 307 F. 3d 471, 475 (CA6 2002) (quoting the Eagles’ statement in a letter written to Kentucky when a monument was donated to that Commonwealth: “Most of today’s younger generation either have not seen the Ten Commandments or have not been taught them. In our opinion the youth of today is in dire need of learning the simple laws of God . . .”). Accordingly, it was not just the terms of the moral code, but the proclamation that the terms of the code were enjoined by God, that the Eagles put forward in the monuments they donated. Footnote 2 That the monument also surrounds the text of the Commandments with various American symbols (notably the U. S. flag and a bald eagle) only underscores the impermissibility of Texas’s actions: by juxtaposing these patriotic symbols with the Commandments and other religious signs, the monument sends the message that being American means being religious (and not just being religious but also subscribing to the Commandments, i.e., practicing a monotheistic religion). Footnote 3 There is no question that the State in its own right is broadcasting the religious message. When Texas accepted the monument from the Eagles, the state legislature, aware that the Eagles “for the past several years have placed across the country . . . parchment plaques and granite monoliths of the Ten Commandments . . . [in order] to promote youth morality and help stop the alarming increase in delinquency,” resolved “that the Fraternal Order of the Eagles of the State of Texas be commended and congratulated for its efforts and contributions in combating juvenile delinquency throughout our nation.” App. 97. The State, then, expressly approved of the Eagles’ proselytizing, which it made on its own. Footnote 4 For similar reasons, the other displays of the Commandments that the plurality mentions, ante , at 9, do not run afoul of the Establishment Clause. The statues of Moses and St. Paul in the Main Reading Room of the Library of Congress are 2 of 16 set in close proximity, statues that “represent men illustrious in the various forms of thought and activity … .” The Library of Congress: The Art and Architecture of the Thomas Jefferson Building 127 (J. Cole and H. Reeds eds. 1997). Moses and St. Paul represent religion, while the other 14 (a group that includes Beethoven, Shakespeare, Michelangelo, Columbus, and Plato) represent the nonreligious categories of philosophy, art, history, commerce, science, law, and poetry. Ibid . Similarly, the sculpture of the woman beside the Decalogue in the Main Reading Room is one of 8 such figures “represent[ing] eight characteristic features of civilized life and thought,” the same 8 features (7 of them nonreligious) that Moses, St. Paul, and the rest of the 16 statues represent. Id ., at 125. The inlay on the floor of the National Archives Building is one of four such discs, the collective theme of which is not religious. Rather, the discs “symbolize the various types of Government records that were to come into the National Archive.” Letter from Judith A. Koucky, Archivist, Records Control Section to Catherine Millard, Oct. 1, 2003 (on file with Clerk of the Court). (The four categories are war and defense, history, justice, and legislation. Each disc is paired with a winged figure; the disc containing the depiction of the Commandments, a depiction that, notably, omits the Commandments’ text, is paired with a figure representing legislation. Ibid .) As for Moses’s “prominen[t] featur[ing] in the Chamber of the United States House of Representatives,” ante , at 9 (plurality opinion), Moses is actually 1 of 23 portraits encircling the House Chamber, each approximately the same size, having no religious theme. The portraits depict “men noted in history for the part they played in the evolution of what has become American law.” Art in the United States Capitol 282; House Doc. No. 94–660 (1978). More importantly for purposes of this case, each portrait consists only of the subject’s face; the Ten Commandments appear nowhere in Moses’s portrait. Footnote 5 Similarly permissible, though obviously of a different character, are laws that can be traced back to the Commandments (even the more religious ones) but are currently supported by nonreligious considerations. See McCreary County v. American Civil Liberties Union of Ky., post , at 10 (opinion of the Court) (noting that in McGowan v. Maryland, 366 U. S. 420 (1961), the Court “upheld Sunday closing laws on practical secular grounds after finding that the government had forsaken the religious purposes motivating centuries-old predecessor laws”). Footnote 6 It is true that the Commandments monument is unlike the display of the Commandments considered in the other Ten Commandments case we decide today, McCreary County . There the Commandments were posted at the behest of the county in the first instance, whereas the State of Texas received the monument as a gift from the Eagles, which apparently conceived of the donation at the suggestion of a movie producer bent on promoting his commercial film on the Ten Commandments, Books v. Elkhart , 235 F. 3d 292, 294–295 (CA7 2000), cert. denied, 532 U. S. 1058 (2001). But this distinction fails to neutralize the apparent expression of governmental intent to promote a religious message: although the nativity scene in Allegheny County was donated by the Holy Name Society, we concluded that “[n]o viewer could reasonably think that [the scene] occupies [its] location [at the seat of county government] without the support and approval of the government.” County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573 , 599–600 (1989). Footnote 7 In any event, the fact that we have been, as the plurality says, “particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools,” ante, at 11, does not of course mean that anything goes outside the schoolhouse. As cases like County of Allegheny and Lynch v. Donnelly, 465 U. S. 668 (1984), illustrate, we have also closely scrutinized government displays of religious symbols. And for reasons discussed in the text, the Texas monument cannot survive even a relaxed level of scrutiny.

The Supreme Court ruled that the display of a monument inscribed with the Ten Commandments on the Texas State Capitol grounds does not violate the Establishment Clause of the First Amendment. The Court considered the context and history of the monument, including its acceptance by the state from a civic organization and its location among other monuments and historical markers commemorating Texan identity. The Court distinguished this case from others involving religious displays in public schools, noting that the Texas monument conveys a secular message when viewed in its historical context.

Religion

Espinoza v. Montana Department of Revenue

https://supreme.justia.com/cases/federal/us/591/18-1195/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 18–1195 _________________ KENDRA ESPINOZA, et al., PETITIONERS v. MONTANA DEPARTMENT OF REVENUE, et al. on writ of certiorari to the supreme court of montana [June 30, 2020] Chief Justice Roberts delivered the opinion of the Court. The Montana Legislature established a program to provide tuition assistance to parents who send their children to private schools. The program grants a tax credit to anyone who donates to certain organizations that in turn award scholarships to selected students attending such schools. When petitioners sought to use the scholarships at a religious school, the Montana Supreme Court struck down the program. The Court relied on the “no-aid” provision of the State Constitution, which prohibits any aid to a school controlled by a “church, sect, or denomination.” The question presented is whether the Free Exercise Clause of the United States Constitution barred that application of the no-aid provision. I A In 2015, the Montana Legislature sought “to provide parental and student choice in education” by enacting a scholarship program for students attending private schools. 2015 Mont. Laws p. 2168, §7. The program grants a tax credit of up to $150 to any taxpayer who donates to a participating “student scholarship organization.” Mont. Code Ann. §§15–30–3103(1), –3111(1) (2019). The scholarship organizations then use the donations to award scholarships to children for tuition at a private school. §§15–30–3102(7)(a), –3103(1)(c).[ 1 ] So far only one scholarship organization, Big Sky Scholarships, has participated in the program. Big Sky focuses on providing scholarships to families who face financial hardship or have children with disabilities. Scholarship organizations like Big Sky must, among other requirements, maintain an application process for awarding the scholarships; use at least 90% of all donations on scholarship awards; and comply with state reporting and monitoring requirements. §§15–30–3103(1), –3105(1), –3113(1). A family whose child is awarded a scholarship under the program may use it at any “qualified education provider”—that is, any private school that meets certain accreditation, testing, and safety requirements. See §15–30–3102(7). Virtually every private school in Montana qualifies. Upon receiving a scholarship, the family designates its school of choice, and the scholarship organization sends the scholarship funds directly to the school. §15–30–3104(1). Neither the scholarship organization nor its donors can restrict awards to particular types of schools. See §§15–30–3103(1)(b), –3111(1). The Montana Legislature allotted $3 million annually to fund the tax credits, beginning in 2016. §15–30–3111(5)(a). If the annual allotment is exhausted, it increases by 10% the following year. Ibid. The program is slated to expire in 2023. 2015 Mont. Laws p. 2186, §33. The Montana Legislature also directed that the program be administered in accordance with Article X, section 6, of the Montana Constitution, which contains a “no-aid” provision barring government aid to sectarian schools. See Mont. Code Ann. §15–30–3101. In full, that provision states: “ Aid prohibited to sectarian schools . . . . The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.” Mont. Const., Art. X, §6(1). Shortly after the scholarship program was created, the Montana Department of Revenue promulgated “Rule 1,” over the objection of the Montana Attorney General. That administrative rule prohibited families from using scholarships at religious schools. Mont. Admin. Rule §42.4.802(1)(a) (2015). It did so by changing the definition of “qualified education provider” to exclude any school “owned or controlled in whole or in part by any church, religious sect, or denomination.” Ibid. The Department explained that the Rule was needed to reconcile the scholarship program with the no-aid provision of the Montana Constitution. The Montana Attorney General disagreed. In a letter to the Department, he advised that the Montana Constitution did not require excluding religious schools from the program, and if it did, it would “very likely” violate the United States Constitution by discriminating against the schools and their students. See Complaint in No. DV–15–1152A (Dist. Ct. Flathead Cty.), Exh. 3, pp. 2, 5–6. The Attorney General is not representing the Department in this case. B This suit was brought by three mothers whose children attend Stillwater Christian School in northwestern Montana. Stillwater is a private Christian school that meets the statutory criteria for “qualified education providers.” It serves students in prekindergarten through 12th grade, and petitioners chose the school in large part because it “teaches the same Christian values that [they] teach at home.” App. to Pet. for Cert. 152; see id. , at 138, 167. The child of one petitioner has already received scholarships from Big Sky, and the other petitioners’ children are eligible for scholarships and planned to apply. While in effect, however, Rule 1 blocked petitioners from using scholarship funds for tuition at Stillwater. To overcome that obstacle, petitioners sued the Department of Revenue in Montana state court. Petitioners claimed that Rule 1 conflicted with the statute that created the scholarship program and could not be justified on the ground that it was compelled by the Montana Constitution’s no-aid provision. Petitioners further alleged that the Rule discriminated on the basis of their religious views and the religious nature of the school they had chosen for their children. The trial court enjoined Rule 1, holding that it was based on a mistake of law. The court explained that the Rule was not required by the no-aid provision, because that provision prohibits only “appropriations” that aid religious schools, “not tax credits.” Id. , at 94. The injunctive relief freed Big Sky to award scholarships to students regardless of whether they attended a religious or secular school. For the school year beginning in fall 2017, Big Sky received 59 applications and ultimately awarded 44 scholarships of $500 each. The next year, Big Sky received 90 applications and awarded 54 scholarships of $500 each. Several families, most with incomes of $30,000 or less, used the scholarships to send their children to Stillwater Christian. In December 2018, the Montana Supreme Court reversed the trial court. 393 Mont. 446, 435 P.3d 603. The Court first addressed the scholarship program unmodified by Rule 1, holding that the program aided religious schools in violation of the no-aid provision of the Montana Constitution. In the Court’s view, the no-aid provision “broadly and strictly prohibits aid to sectarian schools.” Id. , at 459, 435 P. 3d, at 609. The scholarship program provided such aid by using tax credits to “subsidize tuition payments” at private schools that are “religiously affiliated” or “controlled in whole or in part by churches.” Id. , at 464–467, 435 P. 3d, at 612–613. In that way, the scholarship program flouted the State Constitution’s “guarantee to all Montanans that their government will not use state funds to aid religious schools.” Id. , at 467, 435 P. 3d, at 614. The Montana Supreme Court went on to hold that the violation of the no-aid provision required invalidating the entire scholarship program. The Court explained that the program provided “no mechanism” for preventing aid from flowing to religious schools, and therefore the scholarship program could not “under any circumstance” be construed as consistent with the no-aid provision. Id. , at 466–468, 435 P. 3d, at 613–614. As a result, the tax credit is no longer available to support scholarships at either religious or secular private schools. The Montana Supreme Court acknowledged that “an overly-broad” application of the no-aid provision “could implicate free exercise concerns” and that “there may be a case” where “prohibiting the aid would violate the Free Exercise Clause.” Id. , at 468, 435 P. 3d, at 614. But, the Court concluded, “this is not one of those cases.” Ibid. Finally, the Court agreed with petitioners that the Department had exceeded its authority in promulgating Rule 1. The Court explained that the statute creating the scholarship program had broadly defined qualifying schools to include all private schools, including religious ones, and the Department lacked authority to “transform” that definition with an administrative rule. Id. , at 468–469, 435 P. 3d, at 614–615. Several Justices wrote separately. All agreed that Rule 1 was invalid, but they expressed differing views on whether the scholarship program was consistent with the Montana and United States Constitutions. Justice Gustafson’s concurrence argued that the program violated not only Montana’s no-aid provision but also the Federal Establishment and Free Exercise Clauses. Id. , at 475–479, 435 P. 3d, at 619–621. Justice Sandefur echoed the majority’s conclusion that applying the no-aid provision was consistent with the Free Exercise Clause, and he dismissed the “modern jurisprudence” of that Clause as “unnecessarily complicate[d]” due to “increasingly value-driven hairsplitting and overstretching.” Id. , at 482–484, 435 P. 3d, at 623–624. Two Justices dissented. Justice Rice would have held that the scholarship program was permissible under the no-aid provision. He criticized the majority for invalidating the program “ sua sponte ,” contending that no party had challenged it under the State Constitution. Id. , at 495, 435 P. 3d, at 631. Justice Baker also would have upheld the program. In her view, the no-aid provision did not bar the use of scholarships at religious schools, and free exercise concerns could arise under the Federal Constitution if it did. Id. , at 493–494, 435 P. 3d, at 630. We granted certiorari. 588 U. S. ___ (2019). II A The Religion Clauses of the First Amendment provide that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” We have recognized a “ ‘play in the joints’ between what the Establishment Clause permits and the Free Exercise Clause compels.” Trinity Lutheran Church of Columbia, Inc. v. Comer , 582 U. S. ___, ___ (2017) (slip op., at 6) (quoting Locke v. Davey , 540 U.S. 712 , 718 (2004)). Here, the parties do not dispute that the scholarship program is permissible under the Establishment Clause. Nor could they. We have repeatedly held that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs. See, e.g. , Locke , 540 U. S., at 719; Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U.S. 819 , 839 (1995). See also Trinity Lutheran , 582 U. S., at ___ (slip op., at 6) (noting the parties’ agreement that the Establishment Clause was not violated by including churches in a playground resurfacing program). Any Establishment Clause objection to the scholarship program here is particularly unavailing because the government support makes its way to religious schools only as a result of Montanans independently choosing to spend their scholarships at such schools. See Locke , 540 U. S., at 719; Zelman v. Simmons-Harris , 536 U.S. 639 , 649–653 (2002). The Montana Supreme Court, however, held as a matter of state law that even such indirect government support qualified as “aid” prohibited under the Montana Constitution. The question for this Court is whether the Free Exercise Clause precluded the Montana Supreme Court from applying Montana’s no-aid provision to bar religious schools from the scholarship program. For purposes of answering that question, we accept the Montana Supreme Court’s interpretation of state law—including its determination that the scholarship program provided impermissible “aid” within the meaning of the Montana Constitution—and we assess whether excluding religious schools and affected families from that program was consistent with the Federal Constitution.[ 2 ] The Free Exercise Clause, which applies to the States under the Fourteenth Amendment, “protects religious observers against unequal treatment” and against “laws that impose special disabilities on the basis of religious status.” Trinity Lutheran , 582 U. S., at ___, ___ (slip op., at 6, 9) (internal quotation marks and alterations omitted); see Cantwell v. Connecticut , 310 U.S. 296 , 303 (1940). Those “basic principle[s ]” have long guided this Court. Trinity Lutheran , 582 U. S., at ___–___ (slip op., at 6–9). See, e.g. , Everson v. Board of Ed. of Ewing , 330 U.S. 1 , 16 (1947) (a State “cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it , from receiving the benefits of public welfare legislation”); Lyng v. Northwest Indian Cemetery Protective Assn. , 485 U.S. 439 , 449 (1988) (the Free Exercise Clause protects against laws that “penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens”). Most recently, Trinity Lutheran distilled these and other decisions to the same effect into the “unremarkable” conclusion that disqualifying otherwise eligible recipients from a public benefit “solely because of their religious character” imposes “a penalty on the free exercise of religion that triggers the most exacting scrutiny.” 582 U. S., at ___–___ (slip op., at 9–10). In Trinity Lutheran , Missouri provided grants to help nonprofit organizations pay for playground resurfacing, but a state policy disqualified any organization “owned or controlled by a church, sect, or other religious entity.” Id. , at ___ (slip op., at 2). Because of that policy, an otherwise eligible church-owned preschool was denied a grant to resurface its playground. Missouri’s policy discriminated against the Church “simply because of what it is—a church,” and so the policy was subject to the “strictest scrutiny,” which it failed. Id. , at ___–___ (slip op., at 11–15). We acknowledged that the State had not “criminalized” the way in which the Church worshipped or “told the Church that it cannot subscribe to a certain view of the Gospel.” Id. , at ___ (slip op., at 11). But the State’s discriminatory policy was “odious to our Constitution all the same.” Id. , at ___ (slip op., at 15). Here too Montana’s no-aid provision bars religious schools from public benefits solely because of the religious character of the schools. The provision also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school. This is apparent from the plain text. The provision bars aid to any school “controlled in whole or in part by any church, sect, or denomination.” Mont. Const., Art. X, §6(1). The provision’s title—“Aid prohibited to sectarian schools”—confirms that the provision singles out schools based on their religious character. Ibid. And the Montana Supreme Court explained that the provision forbids aid to any school that is “sectarian,” “religiously affiliated,” or “controlled in whole or in part by churches.” 393 Mont., at 464–467, 435 P. 3d, at 612–613. The provision plainly excludes schools from government aid solely because of religious status. See Trinity Lutheran , 582 U. S., at ___–___ (slip op., at 9–10). The Department counters that Trinity Lutheran does not govern here because the no-aid provision applies not because of the religious character of the recipients, but because of how the funds would be used—for “religious education.” Brief for Respondents 38. In Trinity Lutheran , a majority of the Court concluded that the Missouri policy violated the Free Exercise Clause because it discriminated on the basis of religious status. A plurality declined to address discrimination with respect to “religious uses of funding or other forms of discrimination.” 582 U. S., at ___, n. 3 (slip op., at 14, n. 3). The plurality saw no need to consider such concerns because Missouri had expressly discriminated “based on religious identity,” ibid. , which was enough to invalidate the state policy without addressing how government funds were used. This case also turns expressly on religious status and not religious use. The Montana Supreme Court applied the no-aid provision solely by reference to religious status. The Court repeatedly explained that the no-aid provision bars aid to “schools controlled in whole or in part by churches,” “sectarian schools,” and “religiously-affiliated schools.” 393 Mont., at 463–467, 435 P. 3d, at 611–613. Applying this provision to the scholarship program, the Montana Supreme Court noted that most of the private schools that would benefit from the program were “religiously affiliated” and “controlled by churches,” and the Court ultimately concluded that the scholarship program ran afoul of the Montana Constitution by aiding “schools controlled by churches.” Id. , at 466–467, 435 P. 3d, at 613–614. The Montana Constitution discriminates based on religious status just like the Missouri policy in Trinity Lutheran , which excluded organizations “owned or controlled by a church, sect, or other religious entity.” 582 U. S., at ___ (slip op., at 2). The Department points to some language in the decision below indicating that the no-aid provision has the goal or effect of ensuring that government aid does not end up being used for “sectarian education” or “religious education.” 393 Mont., at 460, 466–467, 435 P. 3d, at 609, 613–614. The Department also contrasts what it characterizes as the “completely non-religious” benefit of playground resurfacing in Trinity Lutheran with the unrestricted tuition aid at issue here. Tr. of Oral Arg. 31. General school aid, the Department stresses, could be used for religious ends by some recipients, particularly schools that believe faith should “ permeate [ ]” everything they do. Brief for Respondents 39 (quoting State ex rel. Chambers v. School Dist. No. 10 , 155 Mont. 422, 438, 472 P.2d 1013 , 1021 (1970)). See also post , at 8, 13 (Breyer, J., dissenting). Regardless, those considerations were not the Montana Supreme Court’s basis for applying the no-aid provision to exclude religious schools; that hinged solely on religious status. Status-based discrimination remains status based even if one of its goals or effects is preventing religious organizations from putting aid to religious uses. Undeterred by Trinity Lutheran , the Montana Supreme Court applied the no-aid provision to hold that religious schools could not benefit from the scholarship program. 393 Mont., at 464–468, 435 P. 3d, at 612–614. So applied, the provision “impose[s] special disabilities on the basis of religious status” and “condition[s] the availability of benefits upon a recipient’s willingness to surrender [its] religiously impelled status.” Trinity Lutheran , 582 U. S., at ___–___ (slip op., at 9–10) (quoting Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U.S. 520 , 533 (1993), and McDaniel v. Paty , 435 U.S. 618 , 626 (1978) (plurality opinion) (alterations omitted)). To be eligible for government aid under the Montana Constitution, a school must divorce itself from any religious control or affiliation. Placing such a condition on benefits or privileges “inevitably deters or discourages the exercise of First Amendment rights.” Trinity Lutheran , 582 U. S., at ___ (slip op., at 11) (quoting Sherbert v. Verner , 374 U.S. 398 , 405 (1963) (alterations omitted)). The Free Exercise Clause protects against even “indirect coercion,” and a State “punishe[s] the free exercise of religion” by disqualifying the religious from government aid as Montana did here. Trinity Lutheran , 582 U. S., at ___–___ (slip op., at 10–11) (internal quotation marks omitted). Such status-based discrimination is subject to “the strictest scrutiny.” Id. , at ___ (slip op., at 11). None of this is meant to suggest that we agree with the Department, Brief for Respondents 36–40, that some lesser degree of scrutiny applies to discrimination against religious uses of government aid. See Lukumi , 508 U. S., at 546 (striking down law designed to ban religious practice involving alleged animal cruelty, explaining that a law “target[ing] religious conduct for distinctive treatment or advanc[ing] legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases”). Some Members of the Court, moreover, have questioned whether there is a meaningful distinction between discrimination based on use or conduct and that based on status. See Trinity Lutheran , 582 U. S., at ___–___ (slip op., at 1–2) (Gorsuch, J., joined by Thomas, J., concurring in part) (citing, e.g. , Lukumi , 508 U.S. 520 , and Thomas v. Review Bd. of Ind. Employment Security Div. , 450 U.S. 707 (1981)). We acknowledge the point but need not examine it here. It is enough in this case to conclude that strict scrutiny applies under Trinity Lutheran because Montana’s no-aid provision discriminates based on religious status. B Seeking to avoid Trinity Lutheran , the Department contends that this case is instead governed by Locke v. Davey , 540 U.S. 712 (2004). See also post , at 5 (Breyer, J., dissenting); post , at 9 (Sotomayor, J., dissenting). Locke also involved a scholarship program. The State of Washington provided scholarships paid out of the State’s general fund to help students pursuing postsecondary education. The scholarships could be used at accredited religious and nonreligious schools alike, but Washington prohibited students from using the scholarships to pursue devotional theology degrees, which prepared students for a calling as clergy. This prohibition prevented Davey from using his scholarship to obtain a degree that would have enabled him to become a pastor. We held that Washington had not violated the Free Exercise Clause. Locke differs from this case in two critical ways. First, Locke explained that Washington had “merely chosen not to fund a distinct category of instruction”: the “essentially religious endeavor” of training a minister “to lead a congregation.” Id. , at 721. Thus, Davey “was denied a scholarship because of what he proposed to do —use the funds to prepare for the ministry.” Trinity Lutheran , 582 U. S., at ___ (slip op., at 12). Apart from that narrow restriction, Washington’s program allowed scholarships to be used at “pervasively religious schools” that incorporated religious instruction throughout their classes. Locke , 540 U. S., at 724–725. By contrast, Montana’s Constitution does not zero in on any particular “essentially religious” course of instruction at a religious school. Rather, as we have explained, the no-aid provision bars all aid to a religious school “simply because of what it is,” putting the school to a choice between being religious or receiving government benefits. Trinity Lutheran , 582 U. S., at ___ (slip op., at 12). At the same time, the provision puts families to a choice between sending their children to a religious school or receiving such benefits. Second, Locke invoked a “historic and substantial” state interest in not funding the training of clergy, 540 U. S., at 725, explaining that “opposition to . . . funding ‘to support church leaders’ lay at the historic core of the Religion Clauses,” Trinity Lutheran , 582 U. S., at ___ (slip op., at 13) (quoting Locke , 540 U. S., at 722). As evidence of that tradition, the Court in Locke emphasized that the propriety of state-supported clergy was a central subject of founding-era debates, and that most state constitutions from that era prohibited the expenditure of tax dollars to support the clergy. See id. , at 722–723. But no comparable “historic and substantial” tradition supports Montana’s decision to disqualify religious schools from government aid. In the founding era and the early 19th century, governments provided financial support to private schools, including denominational ones. “Far from prohibiting such support, the early state constitutions and statutes actively encouraged this policy.” L. Jorgenson, The State and the Non-Public School, 1825–1925, p. 4 (1987); e.g., R. Gabel, Public Funds for Church and Private Schools 210, 217–218, 221, 241–243 (1937); C. Kaestle, Pillars of the Republic: Common Schools and American Society, 1760–1860, pp. 166–167 (1983). Local governments provided grants to private schools, including religious ones, for the education of the poor. M. McConnell, et al., Religion and the Constitution 318–319 (4th ed. 2016). Even States with bans on government-supported clergy, such as New Jersey, Pennsylvania, and Georgia, provided various forms of aid to religious schools.  See Kaestle, supra , at 166–167; Gabel, supra , at 215–218, 241–245, 372–374; cf. Locke , 540 U. S., at 723. Early federal aid (often land grants) went to religious schools. McConnell, supra , at 319. Congress provided support to denominational schools in the District of Columbia until 1848, ibid. , and Congress paid churches to run schools for American Indians through the end of the 19th century, see Quick Bear v. Leupp , 210 U.S. 50 , 78 (1908); Gabel, supra , at 521–523. After the Civil War, Congress spent large sums on education for emancipated freedmen, often by supporting denominational schools in the South through the Freedmen’s Bureau. McConnell, supra , at 323.[ 3 ] The Department argues that a tradition against state support for religious schools arose in the second half of the 19th century, as more than 30 States—including Montana—adopted no-aid provisions. See Brief for Respondents 40–42 and App. D. Such a development, of course, cannot by itself establish an early American tradition. Justice Sotomayor questions our reliance on aid provided during the same era by the Freedmen’s Bureau, post , at 10 (dissenting opinion), but we see no inconsistency in recognizing that such evidence may reinforce an early practice but cannot create one. In addition, many of the no-aid provisions belong to a more checkered tradition shared with the Blaine Amendment of the 1870s. That proposal—which Congress nearly passed—would have added to the Federal Constitution a provision similar to the state no-aid provisions, prohibiting States from aiding “sectarian” schools. See Mitchell v. Helms , 530 U.S. 793 , 828 (2000) (plurality opinion). “[I]t was an open secret that ‘sectarian’ was code for ‘Catholic.’ ” Ibid. ; see Jorgenson, supra , at 70. The Blaine Amendment was “born of bigotry” and “arose at a time of pervasive hostility to the Catholic Church and to Catholics in general”; many of its state counterparts have a similarly “shameful pedigree.” Mitchell , 530 U. S., at 828–829 (plurality opinion); see Jorgenson, supra , at 69–70, 216; Jeffries & Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279, 301–305 (2001). The no-aid provisions of the 19th century hardly evince a tradition that should inform our understanding of the Free Exercise Clause. The Department argues that several States have rejected referendums to overturn or limit their no-aid provisions, and that Montana even re-adopted its own in the 1970s, for reasons unrelated to anti-Catholic bigotry. See Brief for Respondents 20, 42. But, on the other side of the ledger, many States today—including those with no-aid provisions—provide support to religious schools through vouchers, scholarships, tax credits, and other measures. See Brief for Oklahoma et al. as Amici Curiae 29–31, 33–35; Brief for Petitioners 5. According to petitioners, 20 of 37 States with no-aid provisions allow religious options in publicly funded scholarship programs, and almost all allow religious options in tax credit programs. Reply Brief 22, n. 9. All to say, we agree with the Department that the historical record is “complex.” Brief for Respondents 41. And it is true that governments over time have taken a variety of approaches to religious schools. But it is clear that there is no “historic and substantial” tradition against aiding such schools comparable to the tradition against state-supported clergy invoked by Locke . C Two dissenters would chart new courses. Justice Sotomayor would grant the government “some room” to “single . . . out” religious entities “for exclusion,” based on what she views as “the interests embodied in the Religion Clauses.” Post, at 8, 9 (quoting Trinity Lutheran , 582 U. S., at ___, ___ (Sotomayor, J., dissenting) (slip op., at 8, 9)). Justice Breyer, building on his solo opinion in Trinity Lutheran , would adopt a “flexible, context-specific approach” that “may well vary” from case to case. Post , at 14, 16; see Trinity Lutheran , 582 U. S., at ___ (Breyer, J., concurring in judgment). As best we can tell, courts applying this approach would contemplate the particular benefit and restriction at issue and discern their relationship to religion and society, taking into account “context and consequences measured in light of [the] purposes” of the Religion Clauses. Post , at 16–17, 19 (quoting Van Orden v. Perry , 545 U.S. 677 , 700 (2005) (Breyer, J., concurring in judgment)). What is clear is that Justice Breyer would afford much freer rein to judges than our current regime, arguing that “there is ‘no test-related substitute for the exercise of legal judgment.’ ” Post , at 19 (quoting Van Orden , 545 U. S., at 700 (opinion of Breyer, J.)). The simplest response is that these dissents follow from prior separate writings, not from the Court’s decision in Trinity Lutheran or the decades of precedent on which it relied. These precedents have “repeatedly confirmed” the straightforward rule that we apply today: When otherwise eligible recipients are disqualified from a public benefit “solely because of their religious character,” we must apply strict scrutiny. Trinity Lutheran , 582 U. S., at ___–___ (slip op., at 6–10). This rule against express religious discrimination is no “doctrinal innovation.” Post , at 13 (opinion of Breyer, J.). Far from it. As Trinity Lutheran explained, the rule is “unremarkable in light of our prior decisions.” 582 U. S., at ___ (slip op., at 10). For innovation, one must look to the dissents. Their “room[y]” or “flexible” approaches to discrimination against religious organizations and observers would mark a significant departure from our free exercise precedents. The protections of the Free Exercise Clause do not depend on a “judgment-by-judgment analysis” regarding whether discrimination against religious adherents would somehow serve ill-defined interests. Cf. Medellín v. Texas , 552 U.S. 491 , 514 (2008). D Because the Montana Supreme Court applied the no-aid provision to discriminate against schools and parents based on the religious character of the school, the “strictest scrutiny” is required. Supra , at 9, 12 (quoting Trinity Lutheran , 582 U. S., at ___ (slip op., at 11)). That “stringent standard,” id., at ___ (slip op., at 14), is not “watered down but really means what it says,” Lukumi , 508 U. S., at 546 (internal quotation marks and alterations omitted). To satisfy it, government action “must advance ‘interests of the highest order’ and must be narrowly tailored in pursuit of those interests.” Ibid. (quoting McDaniel , 435 U. S., at 628). The Montana Supreme Court asserted that the no-aid provision serves Montana’s interest in separating church and State “more fiercely” than the Federal Constitution. 393 Mont., at 467, 435 P. 3d, at 614. But “that interest cannot qualify as compelling” in the face of the infringement of free exercise here. Trinity Lutheran , 582 U. S., at ___ (slip op., at 14). A State’s interest “in achieving greater separation of church and State than is already ensured under the Establishment Clause . . . is limited by the Free Exercise Clause.” Ibid. (quoting Widmar v. Vincent , 454 U.S. 263 , 276 (1981)). The Department, for its part, asserts that the no-aid provision actually promotes religious freedom. In the Department’s view, the no-aid provision protects the religious liberty of taxpayers by ensuring that their taxes are not directed to religious organizations, and it safeguards the freedom of religious organizations by keeping the government out of their operations. See Brief for Respondents 17–23. An infringement of First Amendment rights, however, cannot be justified by a State’s alternative view that the infringement advances religious liberty. Our federal system prizes state experimentation, but not “state experimentation in the suppression of free speech,” and the same goes for the free exercise of religion. Boy Scouts of America v. Dale , 530 U.S. 640 , 660 (2000). Furthermore, we do not see how the no-aid provision promotes religious freedom. As noted, this Court has repeatedly upheld government programs that spend taxpayer funds on equal aid to religious observers and organizations, particularly when the link between government and religion is attenuated by private choices. A school, concerned about government involvement with its religious activities, might reasonably decide for itself not to participate in a government program. But we doubt that the school’s liberty is enhanced by eliminating any option to participate in the first place. The Department’s argument is especially unconvincing because the infringement of religious liberty here broadly affects both religious schools and adherents. Montana’s no-aid provision imposes a categorical ban—“broadly and strictly” prohibiting “ any type of aid” to religious schools. 393 Mont., at 462–463, 435 P. 3d, at 611. This prohibition is far more sweeping than the policy in Trinity Lutheran , which barred churches from one narrow program for playground resurfacing—causing “in all likelihood” only “a few extra scraped knees.” 582 U. S., at ___ (slip op., at 15). And the prohibition before us today burdens not only religious schools but also the families whose children attend or hope to attend them. Drawing on “enduring American tradition,” we have long recognized the rights of parents to direct “the religious upbringing” of their children. Wisconsin v. Yoder , 406 U.S. 205 , 213–214, 232 (1972). Many parents exercise that right by sending their children to religious schools, a choice protected by the Constitution. See Pierce v. Society of Sisters , 268 U.S. 510 , 534–535 (1925). But the no-aid provision penalizes that decision by cutting families off from otherwise available benefits if they choose a religious private school rather than a secular one, and for no other reason. The Department also suggests that the no-aid provision advances Montana’s interests in public education. According to the Department, the no-aid provision safeguards the public school system by ensuring that government support is not diverted to private schools. See Brief for Respondents 19, 25. But, under that framing, the no-aid provision is fatally underinclusive because its “proffered objectives are not pursued with respect to analogous nonreligious conduct.” Lukumi , 508 U. S., at 546. On the Department’s view, an interest in public education is undermined by diverting government support to any private school, yet the no-aid provision bars aid only to religious ones. A law does not advance “an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.” Id. , at 547 (internal quotation marks and alterations omitted). Montana’s interest in public education cannot justify a no-aid provision that requires only religious private schools to “bear [its] weight.” Ibid. A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious. III The Department argues that, at the end of the day, there is no free exercise violation here because the Montana Supreme Court ultimately eliminated the scholarship program altogether. According to the Department, now that there is no program, religious schools and adherents cannot complain that they are excluded from any generally available benefit. Two dissenters agree. Justice Ginsburg reports that the State of Montana simply chose to “put all private school parents in the same boat” by invalidating the scholarship program, post , at 5–6, and Justice Sotomayor describes the decision below as resting on state law grounds having nothing to do with the federal Free Exercise Clause, see post , at 1, 6. The descriptions are not accurate. The Montana Legislature created the scholarship program; the Legislature never chose to end it, for policy or other reasons. The program was eliminated by a court, and not based on some innocuous principle of state law. Rather, the Montana Supreme Court invalidated the program pursuant to a state law provision that expressly discriminates on the basis of religious status. The Court applied that provision to hold that religious schools were barred from participating in the program. Then, seeing no other “mechanism” to make absolutely sure that religious schools received no aid, the court chose to invalidate the entire program. 393 Mont., at 466–468, 435 P. 3d, at 613–614. The final step in this line of reasoning eliminated the program, to the detriment of religious and non-religious schools alike. But the Court’s error of federal law occurred at the beginning. When the Court was called upon to apply a state law no-aid provision to exclude religious schools from the program, it was obligated by the Federal Constitution to reject the invitation. Had the Court recognized that this was, indeed, “one of those cases” in which application of the no-aid provision “would violate the Free Exercise Clause,” id. , at 468, 435 P. 3d, at 614, the Court would not have proceeded to find a violation of that provision. And, in the absence of such a state law violation, the Court would have had no basis for terminating the program. Because the elimination of the program flowed directly from the Montana Supreme Court’s failure to follow the dictates of federal law, it cannot be defended as a neutral policy decision, or as resting on adequate and independent state law grounds.[ 4 ] The Supremacy Clause provides that “the Judges in every State shall be bound” by the Federal Constitution, “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Art. VI, cl. 2. “[T]his Clause creates a rule of decision” directing state courts that they “must not give effect to state laws that conflict with federal law[ ].” Armstrong v. Exceptional Child Center, Inc. , 575 U.S. 320, 324 (2015). Given the conflict between the Free Exercise Clause and the application of the no-aid provision here, the Montana Supreme Court should have “disregard[ed]” the no-aid provision and decided this case “conformably to the [C]onstitution” of the United States. Marbury v. Madison , 1 Cranch 137, 178 (1803). That “ supreme law of the land” condemns discrimination against religious schools and the families whose children attend them. Id. , at 180. They are “member[s] of the community too,” and their exclusion from the scholarship program here is “odious to our Constitution” and “cannot stand.” Trinity Lutheran , 582 U. S., at ___, ___ (slip op., at 11, 15).[ 5 ] *  *  * The judgment of the Montana Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Notes 1 The Legislature provided the same tax credit to taxpayers who donate to public schools for the purpose of supporting innovative educational programs or curing technology deficiencies at such schools. See Mont. Code Ann. §15–30–3110 (2019). 2 Justice Sotomayor argues that the Montana Supreme Court “expressly declined to reach any federal issue.” Post , at 6 (dissenting opinion). Not so. As noted, supra , at 5, the Montana Supreme Court recognized that certain applications of the no-aid provision could “violate the Free Exercise Clause.” 393 Mont. 446, 468, 435 P.3d 603, 614 (2018). But the Court expressly concluded that “this is not one of those cases.” Ibid. 3 Justice Breyer sees “no meaningful difference” between concerns animating bans on support for clergy and bans on support for religious schools. Post , at 8–10. But evidently early American governments did. See supra, at 14.  Justice Breyer contests particular examples but acknowledges that some bans on clergy support did not bar certain “sponsorship” of religious schools. Post , at 10. And, central to the issue here, he certainly does not identify a consistent early tradition, of the sort invoked in Locke , against support for religious schools.  Virginia’s opposition to establishing university theology professorships and chartering theological seminaries, see ibid. , do not fit the bill. Buckley, After Disestablishment: Thomas Jefferson’s Wall of Separation in Antebellum Virginia, 61 J. So. Hist. 445, 452–453 (1995).  Justice Breyer also invokes Madison’s objections to the Virginia Assessment Bill, post , at 8–9, but Madison objected in part because the Bill provided special support to certain churches and clergy, thereby “violat[ing] equality by subjecting some to peculiar burdens.” Memorial and Remonstrance Against Religious Assessments, Art. 4, reprinted in Everson , 330 U. S., at 66 (appendix to dissenting opinion of Rutledge, J.); see V. Muñoz, God and the Founders: Madison, Washington, and Jefferson 21–22, 27 (2009). It is far from clear that the same objections extend to programs that provide equal support to all private primary and secondary schools. If anything, excluding religious schools from such programs would appear to impose the “peculiar burdens” feared by Madison. 4 Justice Sotomayor worries that, in light of our decision, the Montana Supreme Court must “order the State to recreate” a scholarship program that “no longer exists.” Post , at 6 (dissenting opinion). But it was the Montana Supreme Court that eliminated the program, in the decision below, which remains under review. Our reversal of that decision simply restores the status quo established by the Montana Legislature before the Court’s error of federal law. We do not consider any alterations the Legislature may choose to make in the future. 5 In light of this holding, we do not address petitioners’ claims that the no-aid provision, as applied, violates the Equal Protection Clause or the Establishment Clause. SUPREME COURT OF THE UNITED STATES _________________ No. 18–1195 _________________ KENDRA ESPINOZA, et al., PETITIONERS v. MONTANA DEPARTMENT OF REVENUE, et al. on writ of certiorari to the supreme court of montana [June 30, 2020] Justice Thomas, with whom Justice Gorsuch joins, concurring. The Court correctly concludes that Montana’s no-aid provision expressly discriminates against religion in violation of the Free Exercise Clause. And it properly provides relief to Montana religious schools and the petitioners who wish to use Montana’s scholarship program to send their children to such schools. I write separately to explain how this Court’s interpretation of the Establishment Clause continues to hamper free exercise rights. Until we correct course on that interpretation, individuals will continue to face needless obstacles in their attempts to vindicate their religious freedom. I A This case involves the Free Exercise Clause, not the Establishment Clause. But as in all cases involving a state actor, the modern understanding of the Establishment Clause is a “brooding omnipresence,” Southern Pacific Co. v. Jensen , 244 U.S. 205 , 222 (1917) (Holmes, J., dissenting), ever ready to be used to justify the government’s infringement on religious freedom. Under the modern, but erroneous, view of the Establishment Clause, the government must treat all religions equally and treat religion equally to nonreligion. As this Court stated in its first case applying the Establishment Clause to the States, the government cannot “pass laws which aid one religion, aid all religions, or prefer one religion over another.” Everson v. Board of Ed. of Ewing , 330 U.S. 1 , 15 (1947); see also post , at 3 (Breyer, J., dissenting). This “equality principle,” the theory goes, prohibits the government from expressing any preference for religion—or even permitting any signs of religion in the governmental realm. Thus, when a plaintiff brings a free exercise claim, the government may defend its law, as Montana did here, on the ground that the law’s restrictions are required to prevent it from “establishing” religion. This understanding of the Establishment Clause is unmoored from the original meaning of the First Amendment. As I have explained in previous cases, at the founding, the Clause served only to “protec[t] States, and by extension their citizens, from the imposition of an established religion by the Federal Government.” Zelman v. Simmons-Harris , 536 U.S. 639 , 678 (2002) (Thomas, J., concurring) (emphasis added); see also, e.g. , Town of Greece v. Galloway , 572 U.S. 565 , 604–607 (2014) (Thomas, J., concurring in part and concurring in judgment); Elk Grove Unified School Dist. v. Newdow , 542 U.S. 1 , 49–50 (2004) (Thomas, J., concurring in judgment). Under this view, the Clause resists incorporation against the States. See Town of Greece , 572 U. S., at 604 (opinion of Thomas, J.). There is mixed historical evidence concerning whether the Establishment Clause was understood as an individual right at the time of the Fourteenth Amendment’s ratification. Id. , at 607–608. Even assuming that the Clause creates a right and that such a right could be incorporated, however, it would only protect against an “establishment” of religion as understood at the founding, i.e. , “ ‘coercion of religious orthodoxy and of financial support by force of law and threat of penalty.’ ” Id. , at 608 (quoting Lee v. Weisman , 505 U.S. 577 , 640 (1992) (Scalia, J., dissenting); emphasis deleted); American Legion v. American Humanist Assn. , 588 U. S. ___, ___ (2019) (Thomas, J., concurring in judgment) (slip op., at 3); see also McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2131–2181 (2003); McConnell, Coercion: The Lost Element of Establishment, 27 Wm. & Mary L. Rev. 933, 936–939 (1986).[ 1 ] Thus, the modern view, which presumes that States must remain both completely separate from and virtually silent on matters of religion to comply with the Establishment Clause, is fundamentally incorrect. Properly understood, the Establishment Clause does not prohibit States from favoring religion. They can legislate as they wish, subject only to the limitations in the State and Federal Constitutions. See Muñoz, The Original Meaning of the Establishment Clause and the Impossibility of Its Incorporation, 8 U. Pa. J. Const. L. 585, 632 (2006). B I have previously made these points in Establishment Clause cases to show that the Clause likely has no application to the States or, if it is capable of incorporation, that the Court employs a far broader test than the Clause’s original meaning. See, e.g. , American Legion , 588 U. S., at ___ (opinion concurring in judgment) (slip op., at 1); Town of Greece , 572 U. S., at 604 (opinion concurring in part and concurring in judgment). But the Court’s wayward approach to the Establishment Clause also impacts its free exercise jurisprudence. Specifically, its overly expansive understanding of the former Clause has led to a correspondingly cramped interpretation of the latter. Under this Court’s current approach, state and local governments may rely on the Establishment Clause to justify policies that others wish to challenge as violations of the Free Exercise Clause. Once the government demonstrates that its policy is required for compliance with the Constitution, any claim that the policy infringes on free exercise cannot survive. A few examples suffice to illustrate this practice. Of most relevance to this case is Locke v. Davey , 540 U.S. 712 (2004), which Montana principally relies on to justify its discriminatory law. In Locke , the Court held that prohibiting a student from using a generally available state scholarship to pursue a degree in devotional theology did not violate the student’s free exercise rights. This was so, the Court said, in part because it furthered the State’s “antiestablishment interests” in avoiding the education of religious ministers. Id. , at 722. But no antiestablishment interests, properly understood, were at issue in Locke . The State neither coerced students to study devotional theology nor conscripted taxpayers into supporting any form of orthodoxy. Thus, as I have explained, Locke incorrectly interpreted the Establishment Clause and should not impact free exercise challenges. Trinity Lutheran Church of Columbia , Inc. v. Comer , 582 U. S. ___, ___ (2017) (Thomas, J., concurring). Yet, as Montana’s proffered justification for its law shows, governments continue to rely on Locke ’s improper understanding of “antiestablishment interests” to defend against free exercise challenges. See Brief for State of Colorado et al. as Amici Curiae 3, 10–12 (arguing that Locke justifies the 38 state constitutional provisions that are similar to Montana’s); see also Trinity Lutheran Church of Columbia , Inc. v. Pauley , 788 F.3d 779, 785 (CA8 2015), rev’d and remanded, 582 U. S. ___; Eulitt v. Maine , 386 F.3d 344 , 354 (CA1 2004); post , at 5–8 (Breyer, J., dissenting); post , at 9–10 (Sotomayor, J., dissenting). The Court has also repeatedly stated that a government has a compelling interest in avoiding an Establishment Clause violation altogether, which “may justify” abridging other First Amendment freedoms. See Good News Club v. Milford Central School , 533 U.S. 98 , 112 (2001); Lamb’s Chapel v. Center Moriches Union Free School Dist. , 508 U.S. 384 , 394 (1993); Widmar v. Vincent , 454 U.S. 263 , 271 (1981). Unsurprisingly, governmental employers have relied on these pronouncements to defeat challenges from employees who alleged violations of their First Amendment rights. See, e.g. , Berry v. Department of Social Servs. , 447 F.3d 642 , 650–651 (CA9 2006); Knight v. Connecticut Dept. of Public Health , 275 F.3d 156 , 166 (CA2 2001); Marchi v. Board of Cooperative Ed. Servs. of Albany , 173 F.3d 469 , 475 (CA2 1999). Finally, this Court’s infamous test in Lemon v. Kurtzman , 403 U.S. 602 (1971), has sometimes been understood to prohibit governmental practices that have the effect of endorsing religion. See Lynch v. Donnelly , 465 U.S. 668 , 692 (1984) (O’Connor, J., concurring). This, too, presupposes that the Establishment Clause prohibits the government from favoring religion or taking steps to promote it. But as described supra , at 2–3, the Establishment Clause does nothing of the sort. The concern with avoiding endorsement has nevertheless been used to prohibit voluntary practices that potentially implicate free exercise rights, with courts and governments going so far as to make the “remarkable” suggestion “that even while off duty, a teacher or coach cannot engage in any outward manifestation of religious faith.” Kennedy v. Bremerton School Dist. , 586 U. S. ___, ___ (2019) (slip op., at 5) (Alito, J., concurring in denial of certiorari); see Santa Fe Independent School Dist. v. Doe , 530 U.S. 290 , 308 (2000) (voluntary decision to begin football games with a prayer violated the Establishment Clause); see also Kennedy v. Bremerton School Dist. , 869 F.3d 813, 831 (CA9 2017) (M. Smith, J., concurring) (coach’s decision to lead voluntary prayer after football games); Walz v. Egg Harbor Twp. Bd. of Ed. , 342 F.3d 271 , 280 (CA3 2003) (student’s decision to distribute small gifts with religious messages to classmates). II The Court’s current understanding of the Establishment Clause actually thwarts, rather than promotes, equal treatment of religion. Under a proper understanding of the Establishment Clause, robust and lively debate about the role of religion in government is permitted, even encouraged, at the state and local level. The Court’s distorted view of the Establishment Clause, however, removes the entire subject of religion from the realm of permissible governmental activity, instead mandating strict separation. This interpretation of the Establishment Clause operates as a type of content-based restriction on the government. The Court has interpreted the Free Speech Clause to prohibit content-based restrictions because they “value some forms of speech over others,” City of Ladue v. Gilleo , 512 U.S. 43 , 60 (1994) (O’Connor, J., concurring), thus tending to “tilt public debate in a preferred direction,” Sorrell v. IMS Health Inc. , 564 U.S. 552 , 578–579 (2011). The content-based restriction imposed by this Court’s Establishment Clause jurisprudence operates no differently. It communicates a message that religion is dangerous and in need of policing, which in turn has the effect of tilting society in favor of devaluing religion. Historical evidence suggests that many advocates for this separationist view were originally motivated by hostility toward certain disfavored religions. See P. Hamburger, Separation of Church and State 391–454 (2002). And this Court’s adoption of a separationist interpretation has itself sometimes bordered on religious hostility. Justice Black, well known for his role in formulating the Court’s modern Establishment Clause jurisprudence, once described Catholic petitioners as “powerful sectarian religious propagandists” “looking toward complete domination and supremacy” of their “preferences and prejudices.” Board of Ed. of Central School Dist. No. 1 v. Allen , 392 U.S. 236 , 251 (1968) (dissenting opinion). Other Members of the Court have characterized religions as “divisive forces.” Edwards v. Aguillard , 482 U.S. 578 , 584 (1987) (internal quotation marks omitted); Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens , 496 U.S. 226 , 287 (1990) (Stevens, J., dissenting) (internal quotation marks omitted); Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71 , Champaign Cty. , 333 U.S. 203 , 231 (1948) (Frankfurter, J., concurring). And the Court once described a statute permitting employees to request accommodations to avoid work on the Sabbath as “arm[ing]” religious employees with the “absolute and unqualified right” to pursue their religion “over all other . . . interests.” Estate of Thornton v. Caldor , Inc. , 472 U.S. 703 , 709–711 (1985). The siren song of religion is apparently so strong that we once held that public school teachers cannot provide assistance at parochial schools, lest they “subtly (or overtly) conform their instruction to the environment in which they teach.” School Dist. of Grand Rapids v. Ball , 473 U.S. 373 , 388 (1985), overruled by Agostini v. Felton , 521 U.S. 203 , 235 (1997). In the Court’s view, “[t]he ‘atmosphere’ of a Catholic school ha[d] such power to influence the unsuspecting mind that it may move even public school . . . specialists to ‘conform’—though their only contact with the school is to walk down its halls.” McConnell, Religious Freedom at a Crossroads, 59 U. Chi. L. Rev. 115, 122 (1992). Although such hostility may not be overtly expressed by the Court any longer, manifestations of this “trendy disdain for deep religious conviction” assuredly live on. Locke , 540 U. S., at 733 (Scalia, J., dissenting). They are evident in the fact that, unlike other constitutional rights, the mere exposure to religion can render an “ ‘offended observer’ ” sufficiently injured to bring suit against the government, American Legion , 588 U. S., at ___ (Gorsuch, J., concurring in judgment) (slip op., at 2), even if he has not been coerced in any way to participate in a religious practice, Lee , 505 U. S., at 584; Engel v. Vitale , 370 U.S. 421 , 430 (1962).[ 2 ] We also see them in the special privilege of taxpayer standing in Establishment Clause challenges, even though such suits directly contravene Article III’s restrictions on standing. See Hein v. Freedom From Religion Foundation , Inc. , 551 U.S. 587 , 618 (2007) (Scalia, J., concurring in judgment); see also Bowen v. Kendrick , 487 U.S. 589 , 618–620 (1988); Flast v. Cohen , 392 U.S. 83 , 102–104 (1968). And they persist in the repeated denigration of those who continue to adhere to traditional moral standards, as well as laws even remotely influenced by such standards, as outmoded at best and bigoted at worst. See Masterpiece Cakeshop , Ltd. v. Colorado Civil Rights Comm’n , 584 U. S. ___, ___ (2018) (Thomas, J., concurring in part and concurring in judgment) (slip op., at 14); Obergefell v. Hodges , 576 U.S. 644, 712 (2015) (Roberts, C. J., dissenting). So long as this hostility remains, fostered by our distorted understanding of the Establishment Clause, free exercise rights will continue to suffer. *  *  * As I have recently explained, this Court has an unfortunate tendency to prefer certain constitutional rights over others. See United States v. Sineneng-Smith , ante , at 6 (Thomas, J., concurring). The Free Exercise Clause, although enshrined explicitly in the Constitution, rests on the lowest rung of the Court’s ladder of rights, and precariously so at that. Returning the Establishment Clause to its proper scope will not completely rectify the Court’s disparate treatment of constitutional rights, but it will go a long way toward allowing free exercise of religion to flourish as the Framers intended. I look forward to the day when the Court takes up this task in earnest. Notes 1 A party wishing to expand the scope of the Establishment Clause beyond its meaning at the founding carries the burden of demonstrating that this broader reading is historically sound. Town of Greece v. Galloway , 572 U.S. 565 , 607–608 (2014) (Thomas, J., concurring in part and concurring in judgment). 2 This stands in striking contrast to the Court’s view in the free speech context that “the burden normally falls upon the viewer” to avoid offense “simply by averting his eyes.” Hill v. Colorado , 530 U.S. 703 , 753, n. 3 (2000) (Scalia, J., dissenting) (quoting Erznoznik v. Jacksonville , 422 U.S. 205 , 210–211 (1975); quotation altered)). SUPREME COURT OF THE UNITED STATES _________________ No. 18–1195 _________________ KENDRA ESPINOZA, et al., PETITIONERS v. MONTANA DEPARTMENT OF REVENUE, et al. on writ of certiorari to the supreme court of montana [June 30, 2020] Justice Alito, concurring. I join the opinion of the Court in full. The basis of the decision below was a Montana constitutional provision that, according to the Montana Supreme Court, forbids parents from participating in a publicly funded scholarship program simply because they send their children to religious schools. Regardless of the motivation for this provision or its predecessor, its application here violates the Free Exercise Clause. Nevertheless, the provision’s origin is relevant under the decision we issued earlier this Term in Ramos v. Louisiana , 590 U. S. ___ (2020). The question in Ramos was whether Louisiana and Oregon laws allowing non-unanimous jury verdicts in criminal trials violated the Sixth Amendment. The Court held that they did, emphasizing that the States originally adopted those laws for racially discriminatory reasons. See id. , at ___–___ (slip op., at 1–3). The role of the Ku Klux Klan was highlighted. See ibid .; see also id. , at ___ (Sotomayor, J., concurring in part) (slip op., at 4); id. , at ___ (Kavanaugh, J., concurring in part) (slip op., at 12). I argued in dissent that this original motivation, though deplorable, had no bearing on the laws’ constitutionality because such laws can be adopted for non-discriminatory reasons, and “both States readopted their rules under different circumstances in later years.” Id. , at ___ (slip op., at 3). But I lost, and Ramos is now precedent. If the original motivation for the laws mattered there, it certainly matters here. The origin of Montana’s “no-aid” provision, Mont. Const., Art. X, §6(1) (1972), is emphasized in petitioners’ brief and in the briefs of numerous supporting amici . See Brief for Petitioners 31–45; Brief for United States as Amicus Curiae 1–2, 25; Brief for Center for Constitutional Jurisprudence as Amicus Curiae 10–12; Brief for Pioneer Institute, Inc., as Amicus Curiae 5–17; Brief for Cato Institute as Amicus Curiae 2; Brief for State of Oklahoma et al. as Amici Curiae 16; Brief for Montana Catholic School Parents et al. as Amici Curiae 21–25; Brief for Senator Steve Daines et al. as Amici Curiae 1–27 (Sen. Daines Brief ); Brief for Becket Fund for Religious Liberty as Amicus Curiae 4–20 (Becket Fund Brief ); Brief for the Rutherford Institute as Amicus Curiae 2–10; Brief for Georgia Goal Scholarship Program, Inc., as Amicus Curiae 1–5, 16–21; Brief for Liberty Justice Center et al. as Amici Curiae 16–17; Brief for Alliance for Choice in Education as Amicus Curiae 4–8; Brief for Independence Institute as Amicus Curiae 4–26 (Independence Institute Brief ); Brief for Jewish Coalition for Religious Liberty as Amicus Curiae 1–5; Brief for Rusty Bowers et al. as Amici Curiae 8–9; Brief for Center for Education Reform et al. as Amici Curiae 21–27 (CER Brief ); Brief for Montana Family Foundation as Amicus Curiae 9–13; Brief for Arizona Christian School Tuition Organization et al. as Amici Curiae 14–22; Brief for Justice and Freedom Fund et al. as Amici Curiae 22–23; Brief for 131 Current and Former State Legislators as Amici Curiae 2–10. These briefs, most of which were not filed by organizations affiliated with the Catholic Church, point out that Montana’s provision was modeled on the failed Blaine Amendment to the Constitution of the United States. Named after House Speaker James Blaine, the Congressman who introduced it in 1875, the amendment was prompted by virulent prejudice against immigrants, particularly Catholic immigrants. In effect, the amendment would have “bar[red] any aid” to Catholic and other “sectarian” schools. Mitchell v. Helms , 530 U.S. 793 , 828 (2000) (plurality opinion). As noted in a publication from the United States Commission on Civil Rights, a prominent supporter of this ban was the Ku Klux Klan.[ 1 ] The Blaine Amendment was narrowly defeated, passing in the House but falling just short of the two-thirds majority needed in the Senate to refer the amendment to the States. See 4 Cong. Rec. 5191–5192 (1876) (House vote); id. , at 5595 (28 yeas, 16 nays in the Senate). Afterwards, most States adopted provisions like Montana’s to achieve the same objective at the state level, often as a condition of entering the Union. Thirty-eight States still have these “little Blaine Amendments” today. See App. D to Brief for Respondents. This history is well-known and has been recognized in opinions of this Court. See, e.g. , Locke v. Davey , 540 U.S. 712 , 723, n. 7 (2004); Mitchell , 530 U. S., at 828–829 (plurality opinion); see also ante , at 15–16; Zelman v. Simmons- Harris , 536 U.S. 639 , 720–721 (2002) (Breyer, J., dissenting). But given respondents’ and one dissent’s efforts to downplay it in contravention of Ramos , see Brief for Respondents 16–23; post , at 4–5, n. 2 (Sotomayor, J., dissenting), it deserves a brief retelling. A wave of immigration in the mid-19th century, spurred in part by potato blights in Ireland and Germany, significantly increased this country’s Catholic population.[ 2 ] Nativist fears increased with it. An entire political party, the Know Nothings, formed in the 1850s “to decrease the political influence of immigrants and Catholics,” gaining hundreds of seats in Federal and State Government.[ 3 ] Catholics were considered by such groups not as citizens of the United States, but as “soldiers of the Church of Rome,”[ 4 ] who “would attempt to subvert representative government.”[ 5 ] Catholic education was a particular concern. As one series of newspaper articles argued, “ ‘Popery is the natural enemy of general education. . . . If it is establishing schools, it is to make them prisons of the youthful intellect of the country.’ ” C. Glenn, The Myth of the Common School 69 (1988) (Glenn) (quoting S. Morse, Foreign Conspiracy Against the Liberties of the United States (1835)). With a Catholic school breaking ground in New York City, the New York Times ran an article titled “Sectarian Education. Anti-Public School Crusade. Aggressive Attitude of the Roman Catholic Clergy—The Terrors of the Church Threatened.” N. Y. Times, Aug. 24, 1873, p. 8. The project, the article concluded, would cause “intense anxiety by all who are interested in upholding the admirable system of public school education.” Ibid . The feelings of the day are perhaps best encapsulated by this famous cartoon, published in Harper’s Weekly in 1871, which depicts Catholic priests as crocodiles slithering hungrily toward American children as a public school crumbles in the background: The resulting wave of state laws withholding public aid from “sectarian” schools cannot be understood outside this context. Indeed, there are stronger reasons for considering original motivations here than in Ramos because, unlike the neutral language of Louisiana’s and Oregon’s non- unanimity rules, Montana’s no-aid provision retains the bigoted code language used throughout state Blaine Amendments. The failed Blaine Amendment would have prohibited any public funds or lands devoted to schooling from “ever be[ing] under the control of any religious sect.” 4 Cong. Rec. 205 (1875). As originally adopted, Montana’s Constitution prohibited the state and local governments from “ever mak[ing,] directly or indirectly, any appropriation” for “any sectarian purpose” or “to aid in the support of any school . . . controlled in whole or in part by any church, sect or denomination whatever.” Mont. Const., Art. XI, §8 (1889). At the time, “it was an open secret that ‘sectarian’ was code for ‘Catholic.’ ” Mitchell , 530 U. S., at 828 (plurality opinion). Dictionaries defined a “sectarian” as a member “of a party in religion which has separated itself from the established church, or which holds tenets different from those of the prevailing denomination in a kingdom or state”—a heretic. N. Webster, An American Dictionary of the English Language (1828); see also Independence Institute Brief 9–16 (collecting several similar definitions). Newspapers throughout the country, including in Montana, used the word in similarly pejorative fashion. See id., at 17–26 (collecting several articles). The term was likewise used against Mormons and Jews.[ 6 ] Backers of the Blaine Amendment either held nativist views or capitalized on them. When Blaine introduced the amendment, The Nation reported that it was “a Constitutional amendment directed against the Catholics”—while surmising that Blaine, whose Presidential ambitions were known, sought “to use it in the campaign to catch anti- Catholic votes.”[ 7 ] The amendment had its intended galvanizing effect. “Its popularity was so great” that “even congressional Democrats,” who depended on Catholic votes, “were expected to support it,” and the congressional floor debates were rife with anti-Catholic sentiment, including “a tirade against Pope Pius IX.”[ 8 ] Montana’s no-aid provision was the result of this same prejudice. When Congress allowed Montana into the Union in 1889, it still included prominent supporters of the failed Blaine Amendment. See Sen. Daines Brief 10–13. The Act enabling Montana to become a State required “[t]hat provision shall be made for the establishment and maintenance of systems of public schools . . . free from sectarian control.” Act of Feb. 22, 1889, §4, 25Stat. 677; see also Becket Fund Brief 17–18 (quoting one Senator’s description of the Act as “ ‘completing the unfinished work of the failed Blaine Amendment’ ”). Montana thereafter adopted its constitutional rule against public funding for any school “controlled” by a “sect.” Mont. Const., Art. XI, §8 (1889). There appears to have been no doubt which schools that meant. As petitioners show, Montana’s religious schools—and its private schools in general—were predominantly Catholic, see Brief for Petitioners 42, and n. 41, and anti-Catholicism was alive in Montana too. See, e.g. , Sen. Daines Brief 1–3 (describing a riot over an anti-Catholic sign hung over a Butte saloon on Independence Day, 1894). Respondents argue that Montana’s no-aid provision merely reflects a state interest in “preserv[ing] funding for public schools,” Brief for Respondents 7, known as “common schools” during the Blaine era. Yet just as one cannot separate the Blaine Amendment from its context, “[o]ne cannot separate the founding of the American common school and the strong nativist movement.”[ 9 ] Spearheaded by Horace Mann, Secretary of the Massachusetts Board of Education from 1837 to 1848, the common-school movement did not aim to establish a system that was scrupulously neutral on matters of religion. (In a country like ours, that would have been exceedingly difficult, if not impossible.) Instead the aim was to establish a system that would inculcate a form of “least-common- denominator Protestantism.”[ 10 ] This was accomplished with daily reading from the King James Bible, a curriculum that, Mann said, let the book “speak for itself.” 4 Life and Works of Horace Mann 312 (1891) (Mann’s 12th annual report on the Massachusetts schools; emphasis deleted). Yet it was an affront to many Christians and especially Catholics, not to mention non-Christians.[ 11 ] Mann’s goal was to “Americanize” the incoming Catholic immigrants. In fact, he and other proponents of the common-school movement used language and made insinuations that today would be considered far more inflammatory. In his 10th annual report on the Massachusetts schools, Mann described the State as “parental,” assuming the responsibility of weaning children “[f ]or the support of the poor, nine-tenths of whose cost originate with foreigners or come from one prolific vice,” meaning alcohol. 4 Life and Works of Horace Mann, at 132, 134 (emphasis deleted). In other writing, he described the common-school movement as “ ‘laboring to elevate mankind into the upper and purer regions of civilization, Christianity, and the worship of the true God; all those who are obstructing the progress of this cause are impelling the race backwards into barbarism and idolatry.’ ” Glenn 171–172 (quoting an 1846 article by Mann in the Common School Journal). These “obstructers” were Catholic and other religious groups and families who objected to the common schools’ religious programming, which, as just seen, was not neutral on matters of religion. Objections met violent response. In Massachusetts and elsewhere, Catholic students were beaten and expelled for refusing to read from the King James Bible.[ 12 ] In New York, a mob destroyed the residence of Bishop John Hughes, who had argued that, if the State was going to fund religious public education, it should also support church schools. The militia needed to be called to protect St. Patrick’s Cathedral.[ 13 ] Most notorious were the Philadelphia Bible Riots. In 1844, a rumor circulated in the city’s nativist newspapers that a school director, who was Catholic, had ordered that Bible reading be stopped.[ 14 ] Months of scaremongering broke out into riots that left two of the city’s Catholic churches burned and several people dead. Only by calling out the militia and positioning a cannon in front of a Catholic church—which itself had been taking cannon fire—were the riots ultimately quelled.[ 15 ] Catholic and Jewish schools sprang up because the common schools were not neutral on matters of religion. “Faced with public schools that were culturally Protestant and with curriculum[s] and textbooks that were, consequently, rife with material that Catholics and Jews found offensive, many Catholics and Orthodox Jews created separate schools,” and those “who could afford to do so sent their children to” those schools.[ 16 ] But schools require significant funding, and when religious organizations requested state assistance, Mann and others labeled them “sectarian”—that is, people who had separated from the prevailing orthodoxy. See, e.g. , Jeffries & Ryan 298, 301. The Blaine movement quickly followed. In 1854, the Know Nothing party, in many ways a forerunner of the Ku Klux Klan,[ 17 ] took control of the legislature in Mann’s State of Massachusetts and championed one of the first constitutional bans on aid to “sectarian” schools (along with attempting to limit the franchise to native-born people). See Viteritti, Blaine’s Wake 669–670. Respondents and one dissent argue that Montana’s no-aid provision was cleansed of its bigoted past because it was readopted for non-bigoted reasons in Montana’s 1972 constitutional convention. See post , at 4–5, n. 2 (opinion of Sotomayor, J.); see also Brief for Respondents 18; Tr. of Oral Arg. 22–23. They emphasize that the convention included Catholics, just as the constitutional convention that readopted Louisiana’s purportedly racist non-unanimous jury provision included black delegates. As noted, a virtually identical argument was rejected in Ramos , even though “ ‘no mention was made of race’ ” during the Louisiana convention debates. 590 U. S., at ___ (Alito, J., dissenting) (slip op., at 3) (quoting State v. Hankton , 2012–0375, p. 19 (La. App. 4 Cir. 8/2/13), 122 So. 3d 1028, 1038). Under Ramos , it emphatically does not matter whether Montana readopted the no-aid provision for benign reasons. The provision’s “uncomfortable past” must still be “[e]xamined.” 590 U. S., at ___, n. 44 (opinion of the Court) (slip op., at 14, n. 44). And here, it is not so clear that the animus was scrubbed. Delegates at Montana’s constitutional convention in 1972 acknowledged that the no-aid provision was “a badge of bigotry,” with one Catholic delegate recalling “being let out of school in the fourth grade to erase three ‘Ks’ on the front doors of the Catholic church in Billings.”[ 18 ] Nevertheless the convention proposed, and the State adopted, a provision with the same material language, prohibiting public aid “for any sectarian purpose or to aid any . . . school . . . controlled in whole or in part by any church, sect , or denomination.” Mont. Const., Art. X, §6(1) (1972) (emphasis added). A leading definition of “sect” at the time, as during the Blaine era, was “a dissenting religious body; esp: one that is heretical in the eyes of other members within the same communion .” Webster’s Third New International Dictionary 2052 (1971) (emphasis added). Given the history above, the terms “sect” and “sectarian” are disquieting remnants. And once again, there appears to have been little doubt which schools this provision would predominantly affect. In 1970, according to the National Center for Educational Statistics, Montana had 61 religiously affiliated schools. Forty-five were Roman Catholic.[ 19 ] Not only did the convention delegates acknowledge the no-aid provision’s original anti-Catholic intent, but the Montana Supreme Court had only ever applied the provision once—to a Catholic school, and one that had “carrie[d] a sizeable portion of the total educational load” in Anaconda, Montana. State ex rel. Chambers v. School Dist. No. 10 of Deer Lodge Cty. , 155 Mont. 422, 430, 472 P.2d 1013 , 1017 (1970) ( per curiam ). The Montana Catholic Conference also voiced concerns about access to school funds, and a convention delegate proposed removing the no-aid provision’s restriction on “indirect” aid. See Convention Tr. 2010, 2027. That amendment was rejected. Thus, the no-aid provision’s terms keep it “[t]ethered” to its original “bias,” and it is not clear at all that the State “actually confront[ed]” the provision’s “tawdry past in reenacting it.” Ramos , 590 U. S., at ___ (Sotomayor, J., concurring in part) (slip op., at 4). After all, whereas the no-aid provision had originally been foisted on Montana, the State readopted it voluntarily—“sectarian” references included. Whether or not the State did so for any reason that could be called legitimate, the convention delegates recognized that the provision would “continue to mean and do whatever it does now,” Convention Tr. 2014 (statement of Delegate Loendorf ), and the discrimination in this case shows that the provision continues to have its originally intended effect. And even if Montana had done more to address its no-aid provision’s past, that would of course do nothing to resolve the bias inherent in the Blaine Amendments among the 17 States, by respondents’ count, that have not readopted or amended them since around the turn of the 20th century.[ 20 ] Today’s public schools are quite different from those envisioned by Horace Mann, but many parents of many different faiths still believe that their local schools inculcate a worldview that is antithetical to what they teach at home. Many have turned to religious schools, at considerable expense, or have undertaken the burden of homeschooling. The tax-credit program adopted by the Montana Legislature but overturned by the Montana Supreme Court provided necessary aid for parents who pay taxes to support the public schools but who disagree with the teaching there. The program helped parents of modest means do what more affluent parents can do: send their children to a school of their choice. The argument that the decision below treats everyone the same is reminiscent of Anatole France’s sardonic remark that “ ‘[t]he law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.’ ” J. Cournos, A Modern Plutarch 35 (1928). Notes 1 See U. S. Commission on Civil Rights, School Choice: The Blaine Amendments & Anti-Catholicism 36 (2007). 2 See T. Anbinder, Nativism and Slavery: The Northern Know Nothings and the Politics of the 1850s, pp. 6–8 (1992). 3 Id. , at 127–128, 135. 4 Id. , at 110 (emphasis deleted). 5 P. Hamburger, Separation of Church and State 206 (2002). 6 See Natelson, Why Nineteenth Century Bans on “Sectarian” Aid Are Facially Unconstitutional: New Evidence on Plain Meaning, 19 Federalist Soc. Rev. 98, 104 (2018). 7 Green, The Blaine Amendment Reconsidered, 36 Am. J. Legal Hist. 38, 54 (1992) (quoting article; internal quotation marks omitted). 8 DeForrest, An Overview and Evaluation of State Blaine Amendments: Origins, Scope, and First Amendment Concerns, 26 Harv. J. L. & Pub. Pol’y 551, 566, 570 (2003); see also, e.g. , Becket Fund Brief 5–11. 9 Viteritti, Blaine’s Wake: School Choice, the First Amendment, and State Constitutional Law, 21 Harv. J. L. & Pub. Pol’y 657, 667 (1998) (Viteritti, Blaine’s Wake). 10 Jeffries & Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279, 298 (2001) (Jeffries & Ryan); see also, e.g. , CER Brief 23–26. 11 See Glenn 166; Lain, God, Civic Virtue, and the American Way: Reconstructing Engel , 67 Stan. L. Rev. 479, 487–488 (2015). 12 See Jeffries & Ryan 300. 13 See Viteritti, Choosing Equality: School Choice, the Constitution, and Civil Society 151 (1999). 14 See Sekulow & Tedesco, The Story Behind Vidal v. Girard ’s Executors: Joseph Story, the Philadelphia Bible Riots, and Religious Liberty, 32 Pepperdine L. Rev. 605, 630 (2005). 15 See id. , at 633–638. 16 Brief for Union of Orthodox Jewish Congregations of America as Amicus Curiae in Trinity Lutheran Church of Columbia, Inc. v. Comer , O. T. 2016, No. 15–577, p. 15 (internal quotation marks, citation, and brackets omitted). 17 See generally Myers, Know Nothing and Ku Klux Klan, 219 North American Rev. 1 (Jan. 1924). 18 6 Montana Constitutional Convention 1971–1972, Proceedings and Transcript, p. 2012 (Mont. Legislature and Legislative Council) (Convention Tr.) (statement of Delegate Schiltz); see also, e.g. , id., at 2010 (statement of Delegate Harbaugh) (recognizing the provision as a Blaine Amendment, which “espoused the purpose of the Know-nothing Party”); id. , at 2011 (statement of Delegate Toole) (recognizing the provision as a Blaine Amendment); id. , at 2013 (statement of Chairman Graybill) (same); id. , at 2027 (statement of Delegate Campbell) (same); id. , at 2030 (statement of Delegate Champoux) (same). 19 See Nat. Center for Educational Statistics, Statistics of NonpublicElementary and Secondary Schools 1970–71, pp. 32–33 (1973) (Table 1). 20 Ala. Const., Art. XIV, §263 (1901); Ariz. Const., Art. II, §12, Art. IX, §10 (1912); Colo. Const., Art. V, §34, Art. IX, §7 (1876); Del. Const., Art. X, §3 (1897); Ind. Const., Art. I, §6 (1851); Ky. Const. §189 (1891); Miss. Const., Art. 8, §208 (1890); Nev. Const., Art. XI, §10 (1880); N. H. Const., Pt. II, Art. 83 (1877); N. M. Const., Art. XII, §3 (1911); N. D. Const., Art. VIII, §152 (1889); Ohio Const., Art. VI, §2 (1851); Okla. Const., Art. II, §5 (1907); Ore. Const., Art. I, §5 (1857); S. D. Const., Art. VIII, §16 (1889); Wis. Const., Art. I, §18, Art. X, §3 (1848); Wyo. Const., Art. I, §19, Art. VII, §8 (1889). SUPREME COURT OF THE UNITED STATES _________________ No. 18–1195 _________________ KENDRA ESPINOZA, et al., PETITIONERS v. MONTANA DEPARTMENT OF REVENUE, et al. on writ of certiorari to the supreme court of montana [June 30, 2020] Justice Gorsuch, concurring. The people of Montana, acting through their legislature, adopted a school choice program. It provided a modest tax credit to individuals and businesses who donated to nonprofit scholarship organizations. As the program began to take root, Montana had just one scholarship organization. It granted scholarships to families who were struggling financially or had children with disabilities. Recipients were free to use the scholarships at the schools of their choice. Some families chose secular schools, others religious ones. Kendra Espinoza, the lead petitioner in this case, is a single mother who works three jobs. She planned to use scholarships to help keep her daughters at an accredited religious school. That is, until the Montana Supreme Court struck down the tax credit program. Those seeking a tax credit were free to choose whether to direct their donations to the independent scholarship organization; the organization was then free to choose scholarship recipients; and, after that, parents were free to choose where to use those scholarships. But, the Montana Supreme Court held, this arrangement impermissibly allowed state funds to find their way to religious schools, in violation of a state constitutional provision. By way of remedy, the court ordered an end to the tax credit program, effectively killing Montana’s school choice experiment: Without tax credits, donations dry up, and so do the scholarships enabling school choice. Today, the Court explains how the Montana Constitution, as interpreted by the State Supreme Court, violates the First Amendment by discriminating against parents and schools based on their religious status or identity. The Court explains, too, why the State Supreme Court’s decision to eliminate the tax credit program fails to mask the discrimination. But for the Montana Constitution’s impermissible discrimination, after all, the legislature’s tax credit and scholarship program would be still operating for the benefit of Ms. Espinoza and everyone else. I agree with all the Court says on these scores and join its opinion in full. I write separately only to address an additional point. The Court characterizes the Montana Constitution as discriminating against parents and schools based on “religious status and not religious use.” Ante, at 10. No doubt, the Court proceeds as it does to underscore how the outcome of this case follows from Trinity Lutheran Church of Columbia, Inc. v. Comer , 582 U. S. ___ (2017), where the Court struck down a similar public benefits restriction that, it held, discriminated on the basis of religious status. No doubt, too, discrimination on the basis of religious status raises grave constitutional questions for the reasons the Court describes. But I was not sure about characterizing the State’s discrimination in Trinity Lutheran as focused only on religious status, and I am even less sure about characterizing the State’s discrimination here that way. See id., at ___–___ (slip op., at 1–2) (Gorsuch, J., concurring in part). In the first place, discussion of religious activity, uses, and conduct—not just status—pervades this record. The Montana Constitution forbids the use of public funds “for any sectarian purpose,” including to “aid” sectarian schools. Art. X, §6(1). Tracking this directive, the State Supreme Court reasoned that the legislature’s tax credit program could be used to “subsidiz[e] the sectarian school’s educational program” and thereby “strengthen . . . religious education.” 393 Mont. 446, 466, 467, 435 P.3d 603, 613, 614 (2018). Meanwhile, Ms. Espinoza admits that she would like to use scholarship funds to enable her daughters to be taught in school the “same Christian values” they are taught at home. App. to Pet. for Cert. 152. Finally, in its briefing before this Court, Montana has represented that its Constitution focuses on preventing the use of tax credits to subsidize religious activity. Not only is the record replete with discussion of activities, uses, and conduct, any jurisprudence grounded on a status-use distinction seems destined to yield more questions than answers. Does Montana seek to prevent religious parents and schools from participating in a public benefits program (status)? Or does the State aim to bar public benefits from being employed to support religious education (use)? Maybe it’s possible to describe what happened here as status-based discrimination. But it seems equally, and maybe more, natural to say that the State’s discrimination focused on what religious parents and schools do —teach religion. Nor are the line-drawing challenges here unique; they have arisen before and will again. See Trinity Lutheran , 582 U. S., at ___–___ (slip op., at 1–2) (opinion of Gorsuch, J.). Most importantly, though, it is not as if the First Amendment cares. The Constitution forbids laws that prohibit the free exercise of religion. That guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly. At the time of the First Amendment’s adoption, the word “exercise” meant (much as it means today) some “[l]abour of the body,” a “[u]se,” as in the “actual application of any thing,” or a “[p]ractice,” as in some “outward performance.” 1 S. Johnson, A Dictionary of the English Language (4th ed. 1773); see also ibid. (5th ed. 1784). By speaking of a right to “free exercise,” rather than a right “of conscience,” an alternative the framers considered and rejected, our Constitution “extended the broader freedom of action to all believers.” McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1490 (1989). So whether the Montana Constitution is better described as discriminating against religious status or use makes no difference: It is a violation of the right to free exercise either way, unless the State can show its law serves some compelling and narrowly tailored governmental interest, conditions absent here for reasons the Court thoroughly explains. Our cases have long recognized the importance of protecting religious actions, not just religious status. In its very first decision applying the Free Exercise Clause to the States, the Court explained that the First Amendment protects the “freedom to act” as well as the “freedom to believe.” Cantwell v. Connecticut , 310 U.S. 296 , 303 (1940). The Court then reversed a criminal conviction against Newton Cantwell and his sons, Jehovah’s Witnesses who were prosecuted not because of who they were but because of what they did—proselytize door-to-door without a license. See id. , at 300–301, 307, 311. In fact, this Court has already recognized that parents’ decisions about the education of their children—the very conduct at issue here—can constitute protected religious activity. In Wisconsin v. Yoder , 406 U.S. 205 (1972), the Court held that Amish parents could not be compelled to send their children to a public high school if doing so would conflict with the dictates of their faith. See id ., at 214–215, 220, 234–235. Even cases that seemingly focus on religious status do so with equal respect for religious actions. In McDaniel v. Paty , 435 U.S. 618 (1978) (plurality opinion), for example, a State had barred the clergy from serving in the state legislature or at the state constitutional convention. See id., at 620–622. Some have described the discrimination there as focused on religious “ ‘ status.’ ” Trinity Lutheran , 582 U. S., at ___ (slip op., at 7) (quoting McDaniel , 435 U. S., at 627) (emphasis deleted). But no one can question that conduct lurked just beneath the surface. After all, the State identified clergy based on their “conduct and activity,” and the plurality opinion concluded that the State’s prohibition was based on “status, acts, and conduct.” 435 U. S., at 627; see also id., at 630–633 (Brennan, J., concurring in judgment); Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U.S. 520 (1993). Consistently, too, we have recognized the First Amendment’s protection for religious conduct in public benefits cases. When the government chooses to offer scholarships, unemployment benefits, or other affirmative assistance to its citizens, those benefits necessarily affect the “baseline against which burdens on religion are measured.” Locke v. Davey , 540 U.S. 712 , 726 (2004) (Scalia, J., dissenting) (citing Everson v. Board of Ed. of Ewing , 330 U.S. 1 , 16 (1947)). So, as we have long explained, the government “penalize[s] religious activity” whenever it denies to religious persons an “equal share of the rights, benefits, and privileges enjoyed by other citizens.” Lyng v. Northwest Indian Cemetery Protective Assn. , 485 U.S. 439 , 449 (1988). What benefits the government decides to give, whether meager or munificent, it must give without discrimination against religious conduct. Our cases illustrate the point. In Sherbert v. Verner , 374 U.S. 398 (1963), for example, a State denied unemployment benefits to Adell Sherbert not because she was a Seventh Day Adventist but because she had put her faith into practice by refusing to labor on the day she believed God had set aside for rest. See id. , at 399–401. Recognizing her right to exercise her religion freely, the Court held that Ms. Sherbert was entitled to benefits. See id. , at 410. Similarly, in Thomas v. Review Bd. of Ind. Employment Security Div. , 450 U.S. 707 (1981), the Court held that Eddie Thomas had the right to resign from his job and still collect an unemployment check after he decided he could not assemble military tank turrets consistent with the teachings of his faith. See id ., at 709–712, 720. In terms that speak equally to our case, the Court explained that the government tests the Free Exercise Clause whenever it “conditions receipt of an important benefit upon conduct proscribed by a religious faith, or . . . denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Id. , at 717–718. The First Amendment protects religious uses and actions for good reason. What point is it to tell a person that he is free to be Muslim but he may be subject to discrimination for doing what his religion commands, attending Friday prayers, living his daily life in harmony with the teaching of his faith, and educating his children in its ways? What does it mean to tell an Orthodox Jew that she may have her religion but may be targeted for observing her religious calendar? Often, governments lack effective ways to control what lies in a person’s heart or mind. But they can bring to bear enormous power over what people say and do. The right to be religious without the right to do religious things would hardly amount to a right at all. If the government could intrude so much in matters of faith, too, winners and losers would soon emerge. Those apathetic about religion or passive in its practice would suffer little in a world where only inward belief or status is protected. But what about those with a deep faith that requires them to do things passing legislative majorities might find unseemly or uncouth—like knocking on doors to spread their beliefs, refusing to build tank turrets during wartime, or teaching their children at home? “[T]hose who take their religion seriously, who think that their religion should affect the whole of their lives,” and those whose religious beliefs and practices are least popular, would face the greatest disabilities. Mitchell v. Helms , 530 U.S. 793 , 827–828 (2000) (plurality opinion). A right meant to protect minorities instead could become a cudgel to ensure conformity. It doesn’t take a long or searching look through history or around the world to see how this can go. In the century before our Nation’s founding, Oliver Cromwell promised to Catholics in Ireland: “ ‘As to freedom of conscience, I meddle with no man’s conscience; but if you mean by that, liberty to celebrate the Mass, I would have you understand that in no place where the power of the Parliament of England prevails shall that be permitted.’ ” McDaniel , 435 U. S., at 631, n. 2 (opinion of Brennan, J.) (quoting S. Hook, Paradoxes of Freedom 23 (1962)); see also 1 T. Carlyle, Oliver Cromwell’s Letters and Speeches 395 (1845) (recording Cromwell’s October 19, 1649, letter to the Governor of Ross). Even today, in fiefdoms small and large, people of faith are made to choose between receiving the protection of the State and living lives true to their religious convictions. Of course, in public benefits cases like the one before us the stakes are not so dramatic. Individuals are forced only to choose between forgoing state aid or pursuing some aspect of their faith. The government does not put a gun to the head, only a thumb on the scale. But, as so many of our cases explain, the Free Exercise Clause doesn’t easily tolerate either; any discrimination against religious exercise must meet the demands of strict scrutiny. In this way, the Clause seeks to ensure that religion remains “a matter of voluntary choice by individuals and their associations, [where] each sect ‘ flourish[es] according to the zeal of its adherents and the appeal of its dogma,’ ” influenced by neither where the government points its gun nor where it places its thumb. McDaniel , 435 U. S., at 640 (opinion of Brennan J.) (quoting Zorach v. Clauson , 343 U.S. 306 , 313 (1952)). Montana’s Supreme Court disregarded these foundational principles. Effectively, the court told the state legislature and parents of Montana like Ms. Espinoza: You can have school choice, but if anyone dares to choose to send a child to an accredited religious school, the program will be shuttered. That condition on a public benefit discriminates against the free exercise of religion. Calling it discrimination on the basis of religious status or religious activity makes no difference: It is unconstitutional all the same. SUPREME COURT OF THE UNITED STATES _________________ No. 18–1195 _________________ KENDRA ESPINOZA, et al., PETITIONERS v. MONTANA DEPARTMENT OF REVENUE, et al. on writ of certiorari to the supreme court of montana [June 30, 2020] Justice Breyer, with whom Justice Kagan joins as to Part I, dissenting. The First Amendment’s Free Exercise Clause guarantees the right to practice one’s religion. At the same time, its Establishment Clause forbids government support for religion. Taken together, the Religion Clauses have helped our Nation avoid religiously based discord while securing liberty for those of all faiths. This Court has long recognized that an overly rigid application of the Clauses could bring their mandates into conflict and defeat their basic purpose. See, e.g. , Walz v. Tax Comm’n of City of New York , 397 U.S. 664 , 668–669 (1970). And this potential conflict is nowhere more apparent than in cases involving state aid that serves religious purposes or institutions. In such cases, the Court has said, there must be constitutional room, or “ ‘play in the joints,’ ” between “what the Establishment Clause permits and the Free Exercise Clause compels.” Trinity Lutheran Church of Columbia , Inc. v. Comer , 582 U. S. ___, ___ (2017) (slip op., at 6) (quoting Locke v. Davey , 540 U.S. 712 , 718 (2004)). Whether a particular state program falls within that space depends upon the nature of the aid at issue, considered in light of the Clauses’ objectives. The majority barely acknowledges the play-in-the-joints doctrine here. It holds that the Free Exercise Clause forbids a State to draw any distinction between secular and religious uses of government aid to private schools that is not required by the Establishment Clause. The majority’s approach and its conclusion in this case, I fear, risk the kind of entanglement and conflict that the Religion Clauses are intended to prevent. I consequently dissent. I In 2015, Montana’s Legislature enacted a statute giving a $150 tax credit to any person who contributes at least that amount to an organization that provides scholarships for students who attend non-public schools. See Mont. Code Ann. §15–30–3111 (2019). The overwhelming majority of these schools are religious. (In 2018, 94% of the scholarships awarded helped to pay religious-school tuition. 393 Mont. 446, 466, 478–479, and n. 6, 435 P.3d 603, 613, 621, and n. 6; App to Pet. for Cert. 123, 125.) The Montana Supreme Court held that this program violated a state constitutional provision that forbids the legislature to make “any direct or indirect appropriation or payment” for “any sectarian purpose or to aid any church, school, academy . . . controlled in whole or in part by any church, sect, or denomination.” Mont. Const., Art. X, §6. Petitioners are the parents of students who attend one of Montana’s Christian private schools. They believe that the tenets of their faith require them to send their children to a religious school. And they claim that, by preventing them from using state-supported scholarships at those schools, the Montana Supreme Court’s interpretation of Montana’s Constitution violates their First Amendment right to free exercise. I shall assume, for purposes of this opinion, that petitioners’ free exercise claim survived the Montana Supreme Court’s wholesale invalidation of the tax credit program. Cf. ante , at 2 (Ginsburg, J., dissenting); post , at 2–3 (Sotomayor, J., dissenting). A We all recognize that the First Amendment prohibits discrimination against religion. At the same time, our history and federal constitutional precedent reflect a deep concern that state funding for religious teaching, by stirring fears of preference or in other ways, might fuel religious discord and division and thereby threaten religious freedom itself. See, e.g. , Committee for Public Ed. & Religious Liberty v. Nyquist , 413 U.S. 756 , 794–796 (1973). The Court has consequently made it clear that the Constitution commits the government to a “position of neutrality” in respect to religion. School Dist. of Abington Township v. Schempp , 374 U.S. 203 , 226 (1963). The inherent tension between the Establishment and Free Exercise Clauses means, however, that the “course of constitutional neutrality in this area cannot be an absolutely straight line.” Walz , 397 U. S., at 669. Indeed, “rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited.” Ibid. That, in significant part, is why the Court has held that “there is room for play in the joints” between the Clauses’ express prohibitions that is “productive of a benevolent neutrality,” allowing “religious exercise to exist without sponsorship and without interference.” Ibid. It has held that there “are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause.” Locke , 540 U. S., at 719; see Cutter v. Wilkinson , 544 U.S. 709 , 719 (2005). And that “play in the joints” should, in my view, play a determinative role here. It may be that, under our precedents, the Establishment Clause does not forbid Montana to subsidize the education of petitioners’ children. But, the question here is whether the Free Exercise Clause requires it to do so. The majority believes that the answer to that question is “yes.” It writes that “once a State decides” to support nonpublic education, “it cannot disqualify some private schools solely because they are religious.” Ante , at 20. I shall explain why I disagree. B As the majority acknowledges, two cases are particularly relevant: Trinity Lutheran Church of Columbia , Inc. v. Comer , 582 U. S. ___, and Locke v. Davey , 540 U.S. 712 . In Trinity Lutheran , we considered whether Missouri could exclude a church-owned preschool from applying for a grant to renovate its playground. The Court assumed that the Establishment Clause permitted the State to make grants of this kind to church-affiliated schools. See 582 U. S., at ___ (slip op., at 6). But, the Court added, this did not “answer the question” because there is “ ‘play in the joints’ between what the Establishment Clause permits and the Free Exercise Clause compels.” Ibid . The Court therefore went on to consider the burdens that Missouri’s law imposed upon the church’s right to free exercise. By excluding schools with ties to churches, the Court wrote, the State’s law put the church “to a choice: It may participate in an otherwise available benefit program or remain a religious institution.” Id. , at ___ (slip op., at 10). That kind of “ ‘indirect coercion,’ ” the Court explained, “imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny.” Id. , at ___, ___ (slip op., at 10, 11). Finding that a State’s “policy preference for skating as far as possible from religious establishment concerns” could not satisfy that standard, the Court held that the Free Exercise Clause required Missouri to include church-affiliated schools as candidates for playground renovation grants. Id. , at ___ (slip op., at 14). We confronted a different kind of aid program, and came to a different conclusion, in Locke . There, we reviewed a Washington law that offered taxpayer-funded scholarships to college students on the express condition that they not pursue degrees that were “ ‘devotional in nature or designed to induce religious belief.’ ” 540 U. S., at 716; see id. , at 719, n. 2 (quoting Wash. Const., Art. II, §11). Again, the Court assumed that the Establishment Clause permitted the State to support students seeking such degrees. 540 U. S., at 719. But the Court concluded that the Free Exercise Clause did not require it to do so. The Court observed that the State’s decision not to fund devotional degrees did not penalize religious exercise or require anyone to choose between their faith and a “government benefit.” Id. , at 721. Rather, the State had “merely chosen not to fund a distinct category of instruction” that was “essentially religious.” Ibid. Although Washington’s Constitution drew “a more stringent line than that drawn by the United States Constitution,” the Court found that the State’s position was consistent with the widely shared view, dating to the founding of the Republic, that taxpayer-supported religious indoctrination poses a threat to individual liberty. Id. , at 722. Given this “historic and substantial state interest,” the Court concluded, it would be inappropriate to subject Washington’s law to a “presumption of unconstitutionality.” Id. , at 725. And, without such a presumption, the claim that the exclusion of devotional studies violated the Free Exercise Clause “must fail,” for “[i]f any room exists between the two Religion Clauses, it must be here.” Ibid. ; see id. , at 721, n. 3. C The majority finds that the school-playground case, Trinity Lutheran , and not the religious-studies case, Locke , controls here. I disagree. In my view, the program at issue here is strikingly similar to the program we upheld in Locke and importantly different from the program we found unconstitutional in Trinity Lutheran . Like the State of Washington in Locke , Montana has chosen not to fund (at a distance) “an essentially religious endeavor”—an education designed to “ ‘induce religious faith.’ ” Locke , 540 U. S., at 716, 721. That kind of program simply cannot be likened to Missouri’s decision to exclude a church school from applying for a grant to resurface its playground. The Court in Locke recognized that the study of devotional theology can be “akin to a religious calling as well as an academic pursuit.” Id. , at 721. Indeed, “the shaping, through primary education, of the next generation’s minds and spirits” may be as critical as training for the ministry, which itself, after all, is but one of the activities necessary to help assure a religion’s survival. Zelman v. Simmons-Harris , 536 U.S. 639 , 725 (2002) (Breyer, J., dissenting). That is why many faith leaders emphasize the central role of schools in their religious missions. See, e.g. , Southern Baptist Convention, Resolution on the Importance of Christ-Centered Education (2014) (underscoring the power of Christian schools to “win students to salvation through evangelism, make disciples, and foster spiritual development”); The Holy See, John Paul II, Catechesi Tradendae ¶69 (Oct. 16, 1979) (explaining that “the underlying reason for” the Catholic school “is precisely the quality of the religious instruction integrated into the education of the pupils”). It is why at least some teachers at religious schools see their work as a form of ministry. See, e.g. , Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC , 565 U.S. 171 , 192 (2012). And petitioners have testified that it is a “major reason” why they chose religious schools for their children. App. to Pet. for Cert. 152 (the school teaches “the same Christian values that I teach at home”). Nothing in the Constitution discourages this type of instruction. To the contrary, the Free Exercise Clause draws upon a history that places great value upon the freedom of parents to teach their children the tenets of their faith. Cf. Wisconsin v. Yoder , 406 U.S. 205 , 213–214 (1972). The leading figures of America’s Enlightenment followed in the footsteps of those who, after the English civil wars, came to believe “with a passionate conviction that they were entitled to worship God in their own way and to teach their children and to form their characters in the way that seemed to them calculated to impress the stamp of the God-fearing man.” C. Radcliffe, The Law & Its Compass 71 (1960). But the bitter lesson of religious conflict also inspired the Establishment Clause and the state-law bans on compelled support the Court cited in Locke . Cf., e.g. , J. Madison, Memorial and Remonstrance Against Religious Assessments, reprinted in Everson v. Board of Ed. of Ewing , 330 U.S. 1 , 69 (1947) (appendix to dissent of Rutledge, J.) (recalling the “[t]orrents of blood” shed in efforts to establish state religion). What, then, is the difference between Locke and the present case? And what is it that leads the majority to conclude that funding the study of religion is more like paying to fix up a playground ( Trinity Lutheran ) than paying for a degree in theology ( Locke )? The majority’s principal argument appears to be that, as in Trinity Lutheran , Montana has excluded religious schools from its program “solely because of the religious character of the schools.” Ante , at 9. The majority seeks to contrast this status -based discrimination with the program at issue in Locke , which it says denied scholarships to divinity students based on the religious use to which they put the funds— i.e. , training for the ministry, as opposed to secular professions. See ante , at 11 (citing Trinity Lutheran , 582 U. S., at ___–___ (slip op., at 9–10)). It is true that Montana’s no-aid provision broadly bars state aid to schools based on their religious affiliation. But this case does not involve a claim of status-based discrimination. The schools do not apply or compete for scholarships, they are not parties to this litigation, and no one here purports to represent their interests. We are instead faced with a suit by parents who assert that their free exercise rights are violated by the application of the no-aid provision to prevent them from using taxpayer-supported scholarships to attend the schools of their choosing. In other words, the problem, as in Locke , is what petitioners “ ‘propos[e] to do —use the funds to’ ” obtain a religious education. Ante , 13 (quoting Trinity Lutheran , 582 U. S., at ___ (slip op., at 12)). Even if the schools’ status were relevant, I do not see what bearing the majority’s distinction could have here. There is no dispute that religious schools seek generally to inspire religious faith and values in their students. How else could petitioners claim that barring them from using state aid to attend these schools violates their free exercise rights? Thus, the question in this case—unlike in Trinity Lutheran —boils down to what the schools would do with state support. And the upshot is that here, as in Locke , we confront a State’s decision not to fund the inculcation of religious truths. The majority next contends that there is no “ ‘historic and substantial’ tradition against aiding” religious schools “comparable to the tradition against state-supported clergy invoked by Locke .” Ante , at 16. But the majority ignores the reasons for the founding era bans that we relied upon in Locke . “Perhaps the most famous example,” Locke , 540 U. S., at 722, n. 6, is the 1786 defeat of a Virginia bill (often called the Assessment Bill) that would have levied a tax in support of “learned teachers” of “the Christian Religion.” A Bill Establishing a Provision for Teachers of the Christian Religion, reprinted in Everson , 330 U. S., at 72 (supplemental appendix to dissent of Rutledge, J.). In his Memorial and Remonstrance against that proposal, James Madison argued that compelling state sponsorship of religion in this way was “a signal of persecution” that “degrades from the equal rank of citizens all those whose opinions in religion do not bend to those of the Legislative authority.” Id. , at 68–69. Even among those who might benefit from such a tax, Madison warned, the bill threatened to “destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced among its several sects.” Id. , at 69. The opposition galvanized by Madison’s Remonstrance not only scuttled the Assessment Bill; it spurred Virginia’s Assembly to enact a very different law, the Bill for Religious Liberty drafted by Thomas Jefferson. See Brant, Madison: On the Separation of Church and State, 8 Wm. & Mary Q. 3, 11 (1951); Drakeman, Religion and the Republic: James Madison and the First Amendment, 25 J. Church & St. 427, 436 (1983); Everson , 330 U. S., at 12. Like the Remonstrance, Jefferson’s bill emphasized the risk to religious liberty that state-supported religious indoctrination threatened. “[T]o compel a man to furnish contributions of money for the propagation of opinions which he disbelieves,” the preamble declared, “is sinful and tyrannical.” A Bill for Establishing Religious Freedom (1779), in 2 The Papers of Thomas Jefferson 545 (J. Boyd ed. 1950). The statute accordingly provided “that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever.” Id. , at 546. Similar proscriptions were included in the early constitutions of many States. See Locke , 540 U. S., at 723 (collecting examples). I see no meaningful difference between the concerns that Madison and Jefferson raised and the concerns inevitably raised by taxpayer support for scholarships to religious schools. In both instances state funds are sought for those who would “instruc[t] such citizens, as from their circumstances and want of education, cannot otherwise attain such knowledge” in the tenets of religious faith. A Bill Establishing a Provision for Teachers of the Christian Religion, reprinted in Everson , 330 U. S., at 72. In both cases, that would compel taxpayers “to support the propagation of opinions” on matters of religion with which they may disagree, by teachers whom they have not chosen. A Bill for Establishing Religious Freedom, supra , at 545. And, in both cases, the allocation of state aid to such purposes threatens to “destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced among its several sects.” Memorial and Remonstrance, reprinted in Everson , 330 U. S., at 69. The majority argues that at least some early American governments saw no contradiction between bans on compelled support for clergy and taxpayer support for religious schools or universities. See ante , at 14, n. 3. That some States appear not to have read their prohibitions on compelled support to bar this kind of sponsorship, however, does not require us to blind ourselves to the obvious contradiction between the reasons for prohibiting compelled support and the effect of taxpayer funding for religious education. Madison and Jefferson saw it clearly. They opposed including theological professorships in their plans for the public University of Virginia and the Commonwealth hesitated even to grant charters to religiously affiliated schools. See Buckley, After Disestablishment: Thomas Jefferson’s Wall of Separation in Antebellum Virginia, 61 J. So. Hist. 445, 453 (1995); Brant, supra, at 19–20. As for the majority’s examples, it suffices to say that the record is not so simple. In Georgia, the Governor advocated for school funding legislation in terms that mirrored the language of Virginia’s Assessment Bill. See R. Gabel, Public Funds for Church and Private Schools 241–242 (1937). And the general levies the majority cites from Pennsylvania and New Jersey were not adopted until after the founding. See id., at 215–216; see C. Kaestle, Pillars of the Republic: Common Schools and American Society, 1780–1860, pp. 166–167 (1983). That is not to deny that the history of state support for denominational schools is “ ‘complex.’ ” Ante , at 16. But founding era attitudes toward compelled support of clergy were no less complex. Many prominent members of the founding generation, including George Washington, Patrick Henry, and John Marshall, supported Virginia’s Assessment Bill. See Dreisbach, George Mason’s Pursuit of Religious Liberty in Revolutionary Virginia, 108 Va. Mag. Hist. & Biography 5, 31 (2000). Some who supported this kind of government aid thought it posed no threat to freedom of conscience; others denied that provisions for aid to religion amounted to an “establishment” at all. See id., at 34–35; D. Drakeman, Church, State, and Original Intent 224–225 (2010). Indeed, at least one historian has persuasively argued that it is next to impossible to attribute to the Founders any uniform understanding as to what constitutes, in the Constitution’s phrase, “an Establishment of religion.” Id. , at 216–229, 260–262. This diversity of opinion made no difference in Locke and it makes no difference here. For our purposes it is enough to say that, among those who gave shape to the young Republic were people, including Madison and Jefferson, who perceived a grave threat to individual liberty and communal harmony in tax support for the teaching of religious truths. These “historic and substantial” concerns have consistently guided the Court’s application of the Religion Clauses since. Locke , 540 U. S., at 725; see, e.g. , Nyquist , 413 U. S., at 794–798; Walz , 397 U. S., at 695 (Harlan, J., concurring); Schempp , 374 U. S., at 307 (Goldberg, J., joined by Harlan, J., concurring). The Court’s special attention to these views should come as no surprise, for the risks the Founders saw have only become more apparent over time. In the years since the Civil War, the number of religions practiced in our country has grown to scores. And that has made it more difficult to avoid suspicions of favoritism—or worse—when government becomes entangled with religion. Nor can I see how it could make a difference that the Establishment Clause might permit the State to subsidize religious education through a program like Montana’s. The tax benefit here inures to donors, who choose to support a particular scholarship organization. That organization, in turn, awards scholarships to students for the qualifying school of their choice. The majority points to cases in which we have upheld programs where, as here, state funds make their way to religious schools by means of private choices. Ante , at 7 (citing Zelman , 536 U. S., at 649–653). As the Court acknowledged in Trinity Lutheran , however, that does not answer the question whether providing such aid is required . 582 U. S., at ___ (slip op., at 6). Neither does it address related concerns that I have previously described. Private choice cannot help the taxpayer who does not want to finance the propagation of religious beliefs, whether his own or someone else’s. It will not help religious minorities too few in number to support a school that teaches their beliefs. And it will not satisfy those whose religious beliefs preclude them from participating in a government-sponsored program. Some or many of the persons who fit these descriptions may well feel ignored—or worse—when public funds are channeled to religious schools. See Zelman , 536 U. S., at 728 (Breyer, J., dissenting). These feelings may, in turn, sow religiously inspired political conflict and division—a risk that is considerably greater where States are required to include religious schools in programs like the one before us here. And it is greater still where, as here, those programs benefit only a handful of a State’s many religious denominations. See ibid .; Big Sky Scholarships, Schools (2019), www.bigskyscholarships.org/schools. Indeed, the records of Montana’s constitutional convention show that these concerns were among the reasons that a religiously diverse group of delegates, including faith leaders of different denominations, supported the no-aid provision. See Brief for Respondents 18–23; Brief for Montana Constitutional Convention Delegates as Amici Curiae 19–21, 22, 24–25 (noting support for the provision from a Congregationalist minister, the Roman Catholic priest responsible for Catholic schools in the Diocese of Great Falls, a Methodist pastor, a Presbyterian minister, and the Montana Catholic Conference, among others). In an effort to downplay this risk and further distinguish this case from Locke , the majority contends that “Montana’s Constitution does not zero in on any particular ‘essentially religious’ course of instruction.” Ante , at 13 (quoting Locke , 540 U. S., at 721). But this is not a facial challenge to the no-aid provision. See Reply Brief 8. As applied, the provision affects only a scholarship program that, in effect, uses taxpayer funds to help pay for student tuition at religious schools. We have long recognized that unrestricted cash payments of this kind raise special establishment concerns. Cf. Mitchell v. Helms , 530 U.S. 793 , 818–819 (2000) (plurality opinion); see id. , at 848–849 (O’Connor, J., concurring in judgment). And for good reason: The subsidy petitioners demand would go to pay for, among other things, the salaries of teachers and administrators who have been found in at least some instances to so “personify [the] beliefs” of the churches that employ them that they are quite literally “ministers” within the meaning of the First Amendment. Hosanna-Tabor , 565 U. S., at 188. If, for 250 years, we have drawn a line at forcing taxpayers to pay the salaries of those who teach their faith from the pulpit, I do not see how we can today require Montana to adopt a different view respecting those who teach it in the classroom. II In reaching its conclusion that the Free Exercise Clause requires Montana to allow petitioners to use taxpayer- supported scholarships to pay for their children’s religious education, the majority makes several doctrinal innovations that, in my view, are misguided and threaten adverse consequences. Although the majority refers in passing to the “play in the joints” between that which the Establishment Clause forbids and that which the Free Exercise Clause requires, its holding leaves that doctrine a shadow of its former self. See, e.g. , Cutter , 544 U. S., at 719; Walz , 397 U. S., at 669. Having concluded that there is no obstacle to subsidizing a religious education under our Establishment Clause precedents, the majority says little more about Montana’s antiestablishment interests or the reasoning that underlies them. It does not engage with the State’s concern that its funds not be used to support religious teaching. Instead, the Court holds that it need not consider how Montana’s funds would be used because, in its view, all distinctions on the basis of religion—whether in respect to playground grants or devotional teaching—are similarly and presumptively unconstitutional. See ante , at 10. Setting aside the problems with the majority’s characterization of this case, supra , at 7–8, I think the majority is wrong to replace the flexible, context-specific approach of our precedents with a test of “strict” or “rigorous” scrutiny. And it is wrong to imply that courts should use that same heightened scrutiny whenever a government benefit is at issue. See ante , at 9, 11–12. Experience has taught us that “we can only dimly perceive the boundaries of permissible government activity in this sensitive area of constitutional adjudication.” Tilton v. Richardson , 403 U.S. 672 , 678 (1971) (plurality opinion); see also Schempp , 374 U. S., at 306 (opinion of Goldberg, J., joined by Harlan, J.) (there is “no simple and clear measure which by precise application can readily and invariably demark the permissible from the impermissible”); Walz , 397 U. S., at 669 (“[R]igidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited”). If the Court has found it possible to walk what we have called the “ ‘tight rope’ ” between the two Religion Clauses, it is only by “preserving doctrinal flexibility and recognizing the need for a sensible and realistic application” of those provisions. Yoder , 406 U. S., at 221. The Court proceeded in just this way in Locke . It considered the same precedents the majority today cites in support of its presumption of unconstitutionality. But it found that applying the presumption set forth in those cases to Washington’s decision not to fund devotional degrees would “extend” them “well beyond not only their facts but their reasoning.” 540 U. S., at 720. In my view, that analysis applies equally to this case. Montana’s law does not punish religious exercise. Cf. Locke , 540 U. S., at 720 (citing Church of Lukumi Babalu Aye , Inc. v. Hialeah , 508 U.S. 520 , 535 (1993)); see ante , at 11. It does not deny anyone, because of their faith, the right to participate in political affairs of the community. Cf. Locke , 540 U. S., at 720–721 (citing McDaniel v. Paty , 435 U.S. 618 , 626 (1978)); see ante , at 11–12. And it does not require students to choose between their religious beliefs and receiving secular government aid such as unemployment benefits. Cf. Locke , 540 U. S., at 720 (citing Sherbert v. Verner , 374 U.S. 398 , 403–404 (1963)); see ante , at 11–12. The State has simply chosen not to fund programs that, in significant part, typically involve the teaching and practice of religious devotion. And “a legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict scrutiny.” Regan v. Taxation With Representation of Wash. , 461 U.S. 540 , 549 (1983); see also Lyng v. Automobile Workers , 485 U.S. 360 , 368 (1988). I disagree, then, with what I see as the majority’s doctrinal omission, its misplaced application of a legal presumption, and its suggestion that this presumption is appropriate in many, if not all, cases involving government benefits. As I see the matter, our differences run deeper than a simple disagreement about the application of prior case law. The Court’s reliance in our prior cases on the notion of “play in the joints,” our hesitation to apply presumptions of unconstitutionality, and our tendency to confine benefit- related holdings to the context in which they arose all reflect a recognition that great care is needed if we are to realize the Religion Clauses’ basic purpose “to promote and assure the fullest scope of religious liberty and religious tolerance for all and to nurture the conditions which secure the best hope of attainment of that end.” Schempp , 374 U. S., at 305 (opinion of Goldberg, J., joined by Harlan, J.); see Van Orden v. Perry , 545 U.S. 677 , 698 (2005) (Breyer, J., concurring in judgment). For one thing, government benefits come in many shapes and sizes. The appropriate way to approach a State’s benefit-related decision may well vary depending upon the relation between the Religion Clauses and the specific benefit and restriction at issue. For another, disagreements that concern religion and its relation to a particular benefit may prove unusually difficult to resolve. They may involve small but important details of a particular benefit program. Does one detail affect one religion negatively and another positively? What about a religion that objects to the particular way in which the government seeks to enforce mandatory (say, qualification-related) provisions of a particular benefit program? See, e.g. , New Life Baptist Church Academy v. East Longmeadow , 885 F.2d 940 (CA1 1989) (Breyer, J., for the court). Or the religious group that for religious reasons cannot accept government support? See Brief for Respondents 20–21 (noting, inter alia , Seventh-day Adventists’ support for Montana’s no-aid provision on this ground). And what happens when qualification requirements mean that government money flows to one religion rather than another? Courts are ill equipped to deal with such conflicts. Yet, in a Nation with scores of different religions, many such disagreements are possible. And I have only scratched the surface. The majority claims that giving weight to these considerations would be a departure from our precedent and give courts too much discretion to interpret the Religion Clauses. See ante , at 16–18. But we have long understood that the “application” of the First Amendment’s mandate of neutrality “requires interpretation of a delicate sort.” Schempp , 374 U. S., at 226. “Each value judgment under the Religion Clauses,” we have explained, must “turn on whether particular acts in question are intended to establish or interfere with religious beliefs and practices or have the effect of doing so.” Walz , 397 U. S., at 669. Nor does the majority’s approach avoid judicial entanglement in difficult and sensitive questions. To the contrary, as I have just explained, it burdens courts with the still more complex task of untangling disputes between religious organizations and state governments, instead of giving deference to state legislators’ choices to avoid such issues altogether. At the same time, it puts States in a legislative dilemma, caught between the demands of the Free Exercise and Establishment Clauses, without “breathing room” to help ameliorate the problem. I agree with the majority that it is preferable in some areas of the law to develop generally applicable tests. The problem, as our precedents show, is that the interaction of the Establishment and Free Exercise Clauses makes it particularly difficult to design a test that vindicates the Clauses’ competing interests in all—or even most—cases. That is why, far from embracing mechanical formulas, our precedents repeatedly and frankly acknowledge the need for precisely the kind of “ ‘judgment-by-judgment analysis’ ” the majority rejects. Ante , at 17; see, e.g. , Walz , 397 U. S., at 669. “The standards” of our prior decisions, we have said, “should rather be viewed as guidelines with which to identify instances in which the objectives of the Religion Clauses have been impaired.” Tilton , 403 U. S., at 678 (plurality opinion); accord, Nyquist , 413 U. S., at 773, n. 31. The Court’s occasional efforts to declare rules in spite of this experience have failed to produce either coherence or consensus in our First Amendment jurisprudence. See Van Orden , 545 U. S., at 697 (Breyer, J., concurring in judgment) (listing examples). The persistence of such disagreements bears out what I have said—namely, that rigid, bright-line rules like the one the Court adopts today too often work against the underlying purposes of the Religion Clauses. And a test that fails to advance the Clauses’ purposes is, in my view, far worse than no test at all. Consider some of the practical problems that may arise from the Court’s holding. The States have taken advantage of the “play in the joints” between the Religion Clauses to craft programs of public aid to education that address their local needs. Many provide assistance to families with students in nonpublic schools, ranging from scholarships to tax credits and deductions that reimburse tuition expenses. See Dept. of Ed., A Duncan et al., Education Options in the States 3–6 (2009). Although most state constitutions today have no-aid provisions like Montana’s, those provisions are only one part of a broader system of local regulation. See App. D to Brief for Respondents. Some States have concluded that their no-aid provisions do not bar scholarships to students at religious schools, while others without such clauses have nevertheless chosen not to fund religious education. See Brief for State of Colorado et al. as Amici Curiae 6–7; Brief for State of Maine as Amicus Curiae 10–15. Today’s decision upends those arrangements without stopping to ask whether they might actually further the objectives of the Religion Clauses in some or even many cases. And what are the limits of the Court’s holding? The majority asserts that States “need not subsidize private education.” Ante , at 20. But it does not explain why that is so. If making scholarships available to only secular nonpublic schools exerts “coercive” pressure on parents whose faith impels them to enroll their children in religious schools, then how is a State’s decision to fund only secular public schools any less coercive? Under the majority’s reasoning, the parents in both cases are put to a choice between their beliefs and a taxpayer-sponsored education. Accepting the majority’s distinction between public and nonpublic schools does little to address the uncertainty that its holding introduces. What about charter schools? States vary widely in how they permit charter schools to be structured, funded, and controlled. See Mead, Devilish Details: Exploring Features of Charter School Statutes That Blur the Public/Private Distinction, 40 Harv. J. Legis. 349, 353–357, 367–368 (2003). How would the majority’s rule distinguish between those States in which support for charter schools is akin to public school funding and those in which it triggers a constitutional obligation to fund private religious schools? The majority’s rule provides no guidance, even as it sharply limits the ability of courts and legislatures to balance the potentially competing interests that underlie the Free Exercise and Antiestablishment Clauses. *  *  * It is not easy to discern “the boundaries of the neutral area between” the two Religion Clauses “within which the legislature may legitimately act.” Tilton , 403 U. S., at 677 (plurality opinion). And it is more difficult still in cases, such as this one, where the Constitution’s policy in favor of free exercise, on one hand, and against state sponsorship, on the other, are in conflict. In such cases, I believe there is “no test-related substitute for the exercise of legal judgment.” Van Orden , 545 U. S., at 700 (opinion of Breyer, J.). That judgment “must reflect and remain faithful to the underlying purposes of the Clauses, and it must take account of context and consequences measured in light of those purposes.” Ibid. Here, those purposes, along with the examples set by our decisions in Locke and Trinity Lutheran , lead me to believe that Montana’s differential treatment of religious schools is constitutional. “If any room exists between the two Religion Clauses, it must be here.” Locke , 540 U. S., at 725. For these reasons, I respectfully dissent from the Court’s contrary conclusion. SUPREME COURT OF THE UNITED STATES _________________ No. 18–1195 _________________ KENDRA ESPINOZA, et al., PETITIONERS v. MONTANA DEPARTMENT OF REVENUE, et al. on writ of certiorari to the supreme court of montana [June 30, 2020] Justice Ginsburg, with whom Justice Kagan joins, dissenting. The Montana Legislature enacted a scholarship program to fund tuition for students attending private secondary schools. See Mont. Code Ann. §15–30–3111 (2019). In the decision below, the Montana Supreme Court struck down that program in its entirety. The program, the state court ruled, conflicted with the State Constitution’s no-aid provision, which forbids government appropriations to religious schools. Mont. Const., Art. X, §6(1). Parents who sought to use the program’s scholarships to fund their children’s religious education challenged the state court’s ruling. They argue in this Court that the Montana court’s application of the no-aid provision violated the Free Exercise Clause of the Federal Constitution. Importantly, the parents, petitioners here, disclaim any challenge to the no-aid provision on its face. They instead argue—and this Court’s majority accepts—that the provision is unconstitutional as applied because the First Amendment prohibits discrimination in tuition-benefit programs based on a school’s religious status. Because the state court’s decision does not so discriminate, I would reject petitioners’ free exercise claim. The First Amendment prohibits the government from “mak[ing a] law . . . prohibiting the free exercise” of religion. U. S. Const., Amdt. 1. This Court’s decisions have recognized that a burden on religious exercise may occur both when a State proscribes religiously motivated activity and when a law pressures an adherent to abandon her religious faith or practice. Sherbert v. Verner , 374 U.S. 398 , 406 (1963); Hobbie v. Unemployment Appeals Comm’n of Fla. , 480 U.S. 136 , 140–141 (1987). The Free Exercise Clause thus protects against “indirect coercion or penalties on the free exercise of religion.” Lyng v. Northwest Indian Cemetery Protective Assn. , 485 U.S. 439 , 450 (1988). Invoking that principle in Trinity Lutheran Church of Columbia, Inc. v. Comer , 582 U. S. ___ (2017), the Court observed that disqualifying an entity from a public benefit “solely because of [the entity’s] religious character” can impose “a penalty on the free exercise of religion.” Id. , at ___–___ (slip op., at 9–10). The Court then concluded that a Missouri law making churches ineligible for a government playground-refurbishing grant impermissibly burdened the church’s religious exercise by “put[ting it] to the choice between being a church and receiving a government benefit.” Id. , at ___ (slip op., at 13). Petitioners argue that the Montana Supreme Court’s decision fails when measured against Trinity Lutheran . I do not see how. Past decisions in this area have entailed differential treatment occasioning a burden on a plaintiff ’s religious exercise. Lyng , 485 U. S., at 450–451; Trinity Lutheran , 582 U. S., at ___ (slip op., at 11). This case is missing that essential component. Recall that the Montana court remedied the state constitutional violation by striking the scholarship program in its entirety. Under that decree, secular and sectarian schools alike are ineligible for benefits, so the decision cannot be said to entail differential treatment based on petitioners’ religion. Put somewhat differently, petitioners argue that the Free Exercise Clause requires a State to treat institutions and people neutrally when doling out a benefit—and neutrally is how Montana treats them in the wake of the state court’s decision. Accordingly, the Montana Supreme Court’s decision does not place a burden on petitioners’ religious exercise. Petitioners may still send their children to a religious school. And the Montana Supreme Court’s decision does not pressure them to do otherwise. Unlike the law in Trinity Lutheran , the decision below puts petitioners to no “choice”: Neither giving up their faith, nor declining to send their children to sectarian schools, would affect their entitlement to scholarship funding. 582 U. S., at ___ (slip op., at 10). There simply are no scholarship funds to be had. True, petitioners expected to be eligible for scholarships under the legislature’s program, and to use those scholarships at a religious school. And true, the Montana court’s decision disappointed those expectations along with those of parents who send their children to secular private schools. But, as Justice Sotomayor observes, see post, at 3 (dissenting opinion), this Court has consistently refused to treat neutral government action as unconstitutional solely because it fails to benefit religious exercise. See Sherbert , 374 U. S., at 412 (Douglas, J., concurring) (“[T]he Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.”). These considerations should be fatal to petitioners’ free exercise claim, yet the Court does not confront them. Instead, the Court decides a question that, in my view, this case does not present: “[W]hether excluding religious schools and affected families from [the scholarship] program was consistent with the Federal Constitution.” Ante , at 7 (majority opinion). The Court goes on to hold that the Montana Supreme Court’s application of the no-aid provision violates the Free Exercise Clause because it “ ‘condition[s] the availability of benefits upon a recipient’s willingness to surrender [its] religiously impelled status.’ ” Ante , at 11 (quoting Trinity Lutheran , 582 U. S., at ___–___ (slip op., at 9–10); alterations in original). As I see it, the decision below—which maintained neutrality between sectarian and nonsectarian private schools—did no such thing. Finding the “beginning” of the Montana Supreme Court’s decision erroneous, this Court regards the state court’s ultimate judgment as irrelevant. Ante, at 20–22. In the Court’s recounting, the Montana court first held that religious schools must be excluded from the scholarship program—necessarily determining that the Free Exercise Clause permitted that result—and only subsequently struck the entire program as a way of carrying out its holding. See ante, at 21 (“When the [Montana Supreme] Court was called upon to apply a state law no-aid provision to exclude religious schools from the program, it was obligated by the Federal Constitution to reject the invitation.”). But the initial step described by this Court is imaginary. The Montana court determined that the scholarship program violated the no-aid provision because it resulted in aid to religious schools. Declining to rewrite the statute to exclude those schools, the state court struck the program in full. 393 Mont. 446, 463–468, 435 P.3d 603, 612–614 (2018). In doing so, the court never made religious schools ineligible for an otherwise available benefit, and it never decided that the Free Exercise Clause would allow that outcome.[ 1 ] Thus, contrary to this Court’s assertion, see ante, at 21, the no-aid provision did not require the Montana Supreme Court to “exclude” religious schools from the scholarship program. The provision mandated only that the state treasury not be used to fund religious schooling. As this case demonstrates, that mandate does not necessarily require differential treatment. The no-aid provision can be implemented in two ways. A State may distinguish within a benefit program between secular and sectarian schools, or it may decline to fund all private schools. The Court agrees that the First Amendment permits the latter course. See ante, at 20. Because that is the path the Montana Supreme Court took in this case, there was no reason for this Court to address the alternative. By urging that it is impossible to apply the no-aid provision in harmony with the Free Exercise Clause, the Court seems to treat the no-aid provision itself as unconstitutional. See ante, at 21. Petitioners, however, disavowed a facial First Amendment challenge, and the state courts were never asked to address the constitutionality of the no-aid provision divorced from its application to a specific government benefit. See, e.g ., Reply Brief 8, 20, 21–22. This Court therefore had no call to reach that issue. See Adams v. Robertson , 520 U.S. 83 , 90 (1997) ( per curiam ) (“ ‘[I]t would be unseemly in our dual system of government’ to disturb the finality of state judgments on a federal ground that the state court did not have occasion to consider.” (quoting Webb v. Webb , 451 U.S. 493 , 500 (1981))). The only question properly raised is whether application of the no-aid provision to bar all state-sponsored private-school funding violates the Free Exercise Clause. For the reasons stated, supra, at 2–3, it does not. Nearing the end of its opinion, the Court writes: “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” Ante , at 20. Because Montana’s Supreme Court did not make such a decision—its judgment put all private school parents in the same boat—this Court had no occasion to address the matter.[ 2 ] On that sole ground, and reaching no other issue, I dissent from the Court’s judgment. Notes 1 In its opinion, Montana’s highest court stated without explanation that this case is not one in which application of the no-aid provision violates the Free Exercise Clause. 393 Mont., at 468, 435 P. 3d, at 614. When the court made that statement, it had already invalidated the entire scholarship program. Ibid. Accordingly, the court’s statement cannot be understood to have approved of excluding religious schools from an otherwise available scholarship. Instead, the statement is most fairly read to convey that the Free Exercise Clause allows a State to decline to fund any private schools, an outcome that avoids state aid to religious schools. 2 The Montana Supreme Court’s decision leaves parents where they would be had the State never enacted a scholarship program. In that event, no one would argue that Montana was obliged to provide such a program solely for parents who send their children to religious schools. But cf. ante, at 13 (Alito, J., concurring) (inapt reference to Anatole France’s remark). SUPREME COURT OF THE UNITED STATES _________________ No. 18–1195 _________________ KENDRA ESPINOZA, et al., PETITIONERS v. MONTANA DEPARTMENT OF REVENUE, et al. on writ of certiorari to the supreme court of montana [June 30, 2020] Justice Sotomayor, dissenting. The majority holds that a Montana scholarship program unlawfully discriminated against religious schools by excluding them from a tax benefit. The threshold problem, however, is that such tax benefits no longer exist for anyone in the State. The Montana Supreme Court invalidated the program on state-law grounds, thereby foreclosing the as-applied challenge petitioners raise here. Indeed, nothing required the state court to uphold the program or the state legislature to maintain it. The Court nevertheless reframes the case and appears to ask whether a longstanding Montana constitutional provision is facially invalid under the Free Exercise Clause, even though petitioners disavowed bringing such a claim. But by resolving a constitutional question not presented, the Court fails to heed Article III principles older than the Religion Clause it expounds. Coleman v. Thompson , 501 U.S. 722 , 730 (1991) (forbidding “resolution of a federal question” that “cannot affect” a state-court judgment). Not only is the Court wrong to decide this case at all, it decides it wrongly. In Trinity Lutheran Church of Columbia, Inc. v. Comer , 582 U. S. ___ (2017), this Court held, “for the first time, that the Constitution requires the government to provide public funds directly to a church.” Id. , at ___ (Sotomayor, J., dissenting) (slip op., at 1). Here, the Court invokes that precedent to require a State to subsidize religious schools if it enacts an education tax credit. Because this decision further “slights both our precedents and our history” and “weakens this country’s longstanding commitment to a separation of church and state beneficial to both,” ibid. , I respectfully dissent. I A The Montana Supreme Court invalidated a state tax-credit program because it was inconsistent with the Montana Constitution’s “no-aid provision,” Art. X, §6(1), which forbids government appropriations for sectarian purposes, including funding religious schools. 393 Mont. 446, 467–468, 435 P.3d 603, 614 (2018). In so doing, the court expressly declined to resolve federal constitutional issues. “Having concluded the Tax Credit Program violates” the no-aid provision, the court held, “it is not necessary to consider federal precedent interpreting the First Amendment’s less-restrictive Establishment Clause.” Ibid. So too the court declined to ground its holding on the Free Exercise Clause. Ibid. The court also remedied the only potential harm of discriminatory treatment by striking down the program altogether. After the state court’s decision, neither secular nor sectarian schools receive the program’s tax benefits. Petitioners’ free exercise claim is not cognizable. The Free Exercise Clause, the Court has said, protects against “indirect coercion or penalties on the free exercise of religion.” Lyng v. Northwest Indian Cemetery Protective Assn. , 485 U.S. 439 , 450 (1988). Accordingly, this Court’s cases have required not only differential treatment, cf. ante , at 11–12, but also a resulting burden on religious exercise, Lyng , 485 U. S., at 450–451. Neither differential treatment nor coercion exists here because the Montana Supreme Court invalidated the tax-credit program entirely. 393 Mont., at 467–468, 435 P. 3d, at 614. Because no secondary school (secular or sectarian) is eligible for benefits, the state court’s ruling neither treats petitioners differently based on religion nor burdens their religious exercise. See ante , at 2–6 (Ginsburg, J., dissenting). Petitioners remain free to send their children to the religious school of their choosing and to exercise their faith. To be sure, petitioners may want to apply for scholarships and would prefer that Montana subsidize their children’s religious education. But this Court had never before held unconstitutional government action that merely failed to benefit religious exercise. “The crucial word in the constitutional text is ‘prohibit’: ‘For the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.’ ” Lyng , 485 U. S., at 451 (quoting Sherbert v. Verner , 374 U.S. 398 , 412 (1963) (Douglas, J., concurring)). Put another way, the Constitution does not compel Montana to create or maintain a tax subsidy. Notably, petitioners did not allege that the no-aid provision itself caused their harm or that invalidating the entire tax-credit scheme would create independent constitutional concerns. Even now, petitioners disclaim a facial challenge to the no-aid provision. Reply Brief 8, 20–22. Petitioners thus have no cognizable as-applied claim arising from the disparate treatment of religion, because there is no longer a program to which Montana’s no-aid provision can apply. Nor is it enough that petitioners might wish that Montana’s no-aid provision were no longer good law. Petitioners identify no disparate treatment traceable to the state constitutional provision that they challenge because the tax-credit program no longer operates. See Simon v. Eastern Ky. Welfare Rights Organization , 426 U.S. 26 , 41–42, 44–46 (1976).[ 1 ] Short of ordering Montana to create a religious subsidy that Montana law does not permit, there is nothing for this Court to do.[ 2 ] B As another dissenting opinion observes, see ante, at 3 (opinion of Ginsburg, J.), the Court sidesteps these obstacles by asking a question that this case does not raise and that the Montana Supreme Court did not answer: whether by excluding “religious schools and affected families from [a scholarship] program,” Montana’s no-aid provision was “consistent with the Federal Constitution,” ante , at 7 (majority opinion). In so doing, the Court appears to transform petitioners’ as-applied challenge into a facial one. Ante , at 10; see also ante , at 1 (Thomas, J., concurring). This approach lacks support in our case law. The Court typically declines to read state-court decisions as impliedly resolving federal questions, especially ones not raised by the parties. See, e.g. , Adams v. Robertson , 520 U.S. 83 , 88–89 (1997) ( per curiam ). Indeed, to honor principles of comity, this Court generally dismisses writs of certiorari from a State’s highest court where, as is true here of the Court’s bespoke inquiry, “the sole federal question” the Court seeks to decide was not “raised, preserved, or passed upon in the state courts below.” Cardinale v. Louisiana , 394 U.S. 437 , 438 (1969); see also Webb v. Webb , 451 U.S. 493 , 499 (1981). That rule respects not only federalism, but also the separation of powers. Article III confines this Court’s authority to adjudicating actual “[c]ases” or “[c]ontroversies.” See also Allen v. Wright , 468 U.S. 737 , 750 (1984) (case-or-controversy requirement reflects “the idea of separation of powers on which the Federal Government is founded”). Federal courts thus lack power “to decide questions that cannot affect the rights of litigants in the case before them” and may resolve only “real and substantial controvers[ies] admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” Lewis v. Continental Bank Corp. , 494 U.S. 472 , 477 (1990) (alteration in original; internal quotation marks omitted). Consonant with that limitation, the Court has declined to “ ‘ “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” ’ ” Washington State Grange v. Washington State Republican Party , 552 U.S. 442 , 450 (2008) (quoting Ashwander v. TVA , 297 U.S. 288 , 347 (1936) (Brandeis, J., concurring)). By answering an apparent hypothetical question, today’s Court subverts these longstanding practices. True, on occasion this Court has resolved federal constitutional questions when it was unclear whether the state-court judgment rested on an adequate and independent state-law ground. See, e.g. , Michigan v. Long , 463 U.S. 1032 , 1043 (1983). But that is not this case. Recall that the Montana Supreme Court remedied a state constitutional violation by invalidating a state program on state-law grounds, having expressly declined to reach any federal issue. See 393 Mont., at 467–468, 435 P. 3d, at 614; see also ante , at 4–5 (Ginsburg, J., dissenting). These principles exist to prevent this Court from issuing advisory opinions, sowing confusion, and muddying the law. This is case in point. Having held that petitioners may not be “exclu[ded] from the scholarship program” that no longer exists, the Court remands to the Montana Supreme Court for “further proceedings not inconsistent with this opinion.” Ante , at 22. But it is hard to tell what this Court wishes the state court to do. There is no program from which petitioners are currently “exclu[ded],” so must the Montana Supreme Court order the State to recreate one? Has this Court just announced its authority to require a state court to order a state legislature to fund religious exercise, overruling centuries of contrary precedent and historical practice? See Cutter v. Wilkinson , 544 U.S. 709 (2005); Locke v. Davey , 540 U.S. 712 (2004); see also Trinity Lutheran , 582 U. S., at ___–___, and nn. 7–11 (Sotomayor, J., dissenting) (slip op., at 12–20, and nn. 7–11) (describing States’ religious disestablishment movements near the founding and cataloging state constitutional provisions declining to aid religious ministry). Indeed, it appears that the Court has declared that once Montana created a tax subsidy, it forfeited the right to eliminate it if doing so would harm religion. This is a remarkable result, all the more so because the Court strains to reach it. The Court views its decision as “simply restor[ing] the status quo established by the Montana Legislature.” Ante at 22, n. 4. But it overlooks how that status quo allowed the State Supreme Court to cure any disparate treatment of religion while still giving effect to a state constitutional provision ratified by the citizens of Montana. Today’s decision replaces a remedy chosen by representatives of Montanans and designed to honor the will of the electorate with one that the Court prefers instead. In sum, the decision below neither upheld a program that “disqualif[ies] some private schools solely because they are religious,” ante , at 20, nor otherwise decided the case on federal grounds. The Court’s opinion thus turns on a counterfactual hypothetical it is powerless (and unwise) to decide. II Even on its own terms, the Court’s answer to its hypothetical question is incorrect. The Court relies principally on Trinity Lutheran , which found that disqualifying an entity from a public benefit “solely because of [the entity’s] religious character” could impose “a penalty on the free exercise of religion.” 582 U. S., at ___–___ (slip op., at 9–10). Trinity Lutheran held that ineligibility for a government benefit impermissibly burdened a church’s religious exercise by “put[ting it] to the choice between being a church and receiving a government benefit.” Id. , at ___ (slip op., at 13). Invoking that precedent, the Court concludes that Montana must subsidize religious education if it also subsidizes nonreligious education.[ 3 ] The Court’s analysis of Montana’s defunct tax program reprises the error in Trinity Lutheran . Contra the Court’s current approach, our free exercise precedents had long granted the government “some room to recognize the unique status of religious entities and to single them out on that basis for exclusion from otherwise generally applicable laws.” Id. , at ___ (Sotomayor, J., dissenting) (slip op., at 9). Until Trinity Lutheran , the right to exercise one’s religion did not include a right to have the State pay for that religious practice. See School Dist. of Abington Township v. Schempp , 374 U.S. 203 , 226 (1963). That is because a contrary rule risks reading the Establishment Clause out of the Constitution. Although the Establishment Clause “permit[s] some government funding of secular functions performed by sectarian organizations,” the Court’s decisions “provide[d] no precedent for the use of public funds to finance religious activities.” Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U.S. 819 , 847 (1995) (O’Connor, J., concurring). After all, the government must avoid “an unlawful fostering of religion.” Cutter , 544 U. S., at 714 (internal quotation marks omitted). Thus, to determine the constitutionality of government action that draws lines based on religion, our precedents “carefully considered whether the interests embodied in the Religion Clauses justify that line.” Trinity Lutheran , 582 U. S., at ___ (Sotomayor, J., dissenting) (slip op., at 8). The relevant question had always been not whether a State singles out religious entities, but why it did so. Here, a State may refuse to extend certain aid programs to religious entities when doing so avoids “historic and substantial” antiestablishment concerns. Locke , 540 U. S., at 725. Properly understood, this case is no different from Locke because petitioners seek to procure what the plaintiffs in Locke could not: taxpayer funds to support religious schooling.[ 4 ] Indeed, one of the concurrences lauds petitioners’ spiritual pursuit, acknowledging that they seek state funds for manifestly religious purposes like “teach[ing] religion” so that petitioners may “outwardly and publicly” live out their religious tenets. Ante , at 3 (opinion of Gorsuch, J.). But those deeply religious goals confirm why Montana may properly decline to subsidize religious education. Involvement in such spiritual matters implicates both the Establishment Clause, see Cutter , 544 U. S., at 714, and the free exercise rights of taxpayers, “denying them the chance to decide for themselves whether and how to fund religion,” Trinity Lutheran , 582 U. S., at ___ (Sotomayor, J., dissenting) (slip op., at 17). Previously, this Court recognized that a “prophylactic rule against the use of public funds” for “religious activities” appropriately balanced the Religion Clauses’ differing but equally weighty interests. Ibid. The Court maintains that this case differs from Locke because no pertinent “ ‘historic and substantial’ ” tradition supports Montana’s decision. Ante , at 14. But the Court’s historical analysis is incomplete at best. For one thing, the Court discounts anything beyond the 1850s as failing to “establish an early American tradition,” ante , at 15, while itself relying on examples from around that time, ante , at 14. For another, although the States may have had “rich diversity of experience” at the founding, “the story relevant here is one of consistency.” Trinity Lutheran , 582 U. S., at ___ (Sotomayor, J., dissenting) (slip op., at 11); see also id. , at ___–___ (slip op., at 12–20) (chronicling state histories). The common thread was that “those who lived under the laws and practices that formed religious establishments made a considered decision that civil government should not fund ministers and their houses of worship.” Id. , at ___ (slip op., at 16). And as the Court’s recent precedent holds, at least some teachers in religiously affiliated schools are ministers who inculcate the faith. See Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC , 565 U.S. 171 , 178, 196 (2012); see also ante , at 3 (Gorsuch, J., concurring); ante , at 6, 13 (Breyer, J., dissenting). The Court further suggests that by abstaining from funding religious activity, the State is “ ‘suppress[ing]’ ” and “penaliz[ing]” religious activity. Ante , at 19–20. But a State’s decision not to fund religious activity does not “disfavor religion; rather, it represents a valid choice to remain secular in the face of serious establishment and free exercise concerns.” Trinity Lutheran , 582 U. S., at ___ (Sotomayor, J., dissenting) (slip op., at 24). That is, a “legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right.” Regan v. Taxation With Representation of Wash. , 461 U.S. 540 , 549 (1983). Finally, it is no answer to say that this case involves “discrimination.” Ante , at 11–12. A “decision to treat entities differently based on distinctions that the Religion Clauses make relevant does not amount to discrimination.” Trinity Lutheran , 582 U. S., at ___ (Sotomayor, J., dissenting) (slip op., at 22). So too here. *  *  * Today’s ruling is perverse. Without any need or power to do so, the Court appears to require a State to reinstate a tax-credit program that the Constitution did not demand in the first place. We once recognized that “[w]hile the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs.” Schempp , 374 U. S., at 226 (emphasis deleted). Today’s Court, by contrast, rejects the Religion Clauses’ balanced values in favor of a new theory of free exercise, and it does so only by setting aside well-established judicial constraints. I respectfully dissent. Notes 1 To revive their as-applied challenge, petitioners rely on Griffin v. School Bd. of Prince Edward Cty. , 377 U.S. 218 (1964), for the proposition that eliminating a public benefit does not always remedy discrimination. See Reply Brief 5. But Griffin is inapposite. There, a Virginia county closed its public schools and so-called “private schools” were set up in their place to avoid a court desegregation order. See 377 U. S., at 223. These so-called private schools “were open to whites only and . . . were in fact run by a practical partnership between State and county, designed to preserve segregated education.” Palmer v. Thompson , 403 U.S. 217 , 221–222 (1971). That is nothing like what the Montana Supreme Court’s remedy achieved here. Nor have petitioners said otherwise; there is no allegation that Montana confers clandestine tax credits solely to secular schools. 2 Petitioners here have not asserted a free exercise claim on a theory that they were victims of religious animus, either. Cf. Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U.S. 520 , 533 (1993). Instead, one concurrence seeks to make the argument for them while attempting to compare the state constitutional provision here with a nonunanimous jury rule rooted in racial animus. Ante , at 1 (opinion of Alito, J.) (citing the dissent in Ramos v. Louisiana , 590 U. S. ___ (2020)). But those questions are not before the Court. In any case, the concurrence’s arguments are as misguided as they are misplaced. Citing the Court’s opinion in Ramos , the concurrence maintains that a law’s “ ‘uncomfortable past’ must still be ‘[e]xamined.’ ” Ante , at 10 (opinion of Alito, J.). But as previously explained: “Where a law otherwise is untethered to [discriminatory] bias—and perhaps also where a legislature actually confronts a law’s tawdry past in reenacting it—the new law may well be free of discriminatory taint.” Ramos , 590 U. S., at ___ (Sotomayor, J., concurring in part) (slip op., at 4). That could not “be said of the laws at issue” in Ramos . Ibid. It can be here. See Part II, infra . The concurrence overlooks the starkly different histories of these state laws. Also missing from the concurrence (and the amicus briefs it repeats) is the stubborn fact that the constitutional provision at issue here was adopted in 1972 at a convention where it was met with overwhelming support by religious leaders (Catholic and non-Catholic), even those who examined the history of prior no-aid provisions. See Brief for Respondents 16–27; 6 Montana Constitutional Convention 1971–1972 Proceedings and Transcript, pp. 2012–2013, 2016–2017 (Mont. Legislature and Legislative Council); see also ante , at 12–13 (Breyer, J., dissenting); Brief for Public Funds Public Schools as Amicus Curiae 5–11; Brief for Montana Constitutional Convention Delegates as Amici Curiae 19–25. These supporters argued that it would be wrong to put taxpayer dollars to religious purposes and that it would invite unwelcome entanglement between church and state.  See, e.g. , U. S. Const., Amdt. 1; Brief for Respondents 20. 3 Petitioners’ as-applied challenge fails under Trinity Lutheran for the reasons stated above: The Montana Supreme Court’s remedy does not put petitioners to any “choice” at all. Rather, petitioners are free to send their children to any secondary school they wish while practicing their religious beliefs, and no one receives a tax credit for their school choice. 4 Locke confirms that a facial challenge to no-aid provisions must fail. But cf. ante , at 13–14 (majority opinion). In Locke , this Court upheld the application of a materially similar no-aid provision in Washington State, concluding that the Free Exercise Clause permitted Washington to forbid state-scholarship funds for students pursuing devotional theology degrees. 540 U. S., at 721.

The Supreme Court ruled that a Montana scholarship program that provided tuition assistance to parents sending their children to private schools did not violate the Free Exercise Clause of the US Constitution, even though the state's constitution prohibited any aid to schools controlled by a religious organization. The Court found that the tax-credit system did not compel individuals to support religious activity and that the state's decision to bar religious schools from the program was consistent with the historical understanding of church-state relations.

Religion

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC

https://supreme.justia.com/cases/federal/us/565/171/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 10–553 _________________ HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH AND SCHOOL, PETITIONER v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION et al. on writ of certiorari to the united states court of appeals for the sixth circuit [January 11, 2012]      Chief Justice Roberts delivered the opinion of the Court.      Certain employment discrimination laws authorize employees who have been wrongfully terminated to sue their employers for reinstatement and damages. The question presented is whether the Establishment and Free Exercise Clauses of the First Amendment bar such an action when the employer is a religious group and the employee is one of the group’s ministers. I A      Petitioner Hosanna-Tabor Evangelical Lutheran Church and School is a member congregation of the Lutheran Church–Missouri Synod, the second largest Lutheran denomination in America. Hosanna-Tabor operated a small school in Redford, Michigan, offering a “Christ-centered education” to students in kindergarten through eighth grade. 582 F. Supp. 2d 881, 884 (ED Mich. 2008) (internal quotation marks omitted).      The Synod classifies teachers into two categories: “called” and “lay.” “Called” teachers are regarded as having been called to their vocation by God through a congregation. To be eligible to receive a call from a congregation, a teacher must satisfy certain academic requirements. One way of doing so is by completing a “colloquy” program at a Lutheran college or university. The program requires candidates to take eight courses of theological study, obtain the endorsement of their local Synod district, and pass an oral examination by a faculty committee. A teacher who meets these requirements may be called by a congregation. Once called, a teacher receives the formal title “Minister of Religion, Commissioned.” App. 42, 48. A commissioned minister serves for an open-ended term; at Hosanna-Tabor, a call could be rescinded only for cause and by a supermajority vote of the congregation.      “Lay” or “contract” teachers, by contrast, are not required to be trained by the Synod or even to be Lutheran. At Hosanna-Tabor, they were appointed by the school board, without a vote of the congregation, to one-year renewable terms. Although teachers at the school generally performed the same duties regardless of whether they were lay or called, lay teachers were hired only when called teachers were unavailable.      Respondent Cheryl Perich was first employed by Hosanna-Tabor as a lay teacher in 1999. After Perich com-pleted her colloquy later that school year, Hosanna-Tabor asked her to become a called teacher. Perich accepted the call and received a “diploma of vocation” designating her a commissioned minister. Id., at 42.      Perich taught kindergarten during her first four years at Hosanna-Tabor and fourth grade during the 2003–2004 school year. She taught math, language arts, social studies, science, gym, art, and music. She also taught a religion class four days a week, led the students in prayer and devotional exercises each day, and attended a weekly school-wide chapel service. Perich led the chapel service herself about twice a year.      Perich became ill in June 2004 with what was eventually diagnosed as narcolepsy. Symptoms included sudden and deep sleeps from which she could not be roused. Because of her illness, Perich began the 2004–2005 school year on disability leave. On January 27, 2005, however, Perich notified the school principal, Stacey Hoeft, that she would be able to report to work the following month. Hoeft responded that the school had already contracted with a lay teacher to fill Perich’s position for the remainder of the school year. Hoeft also expressed concern that Perich was not yet ready to return to the classroom.      On January 30, Hosanna-Tabor held a meeting of its congregation at which school administrators stated that Perich was unlikely to be physically capable of returning to work that school year or the next. The congregation voted to offer Perich a “peaceful release” from her call, whereby the congregation would pay a portion of her health insurance premiums in exchange for her resignation as a called teacher. Id., at 178, 186. Perich refused to resign and produced a note from her doctor stating that she would be able to return to work on February 22. The school board urged Perich to reconsider, informing her that the school no longer had a position for her, but Perich stood by her decision not to resign.      On the morning of February 22—the first day she was medically cleared to return to work—Perich presented herself at the school. Hoeft asked her to leave but she would not do so until she obtained written documentation that she had reported to work. Later that afternoon, Hoeft called Perich at home and told her that she would likely be fired. Perich responded that she had spoken with an attorney and intended to assert her legal rights.      Following a school board meeting that evening, board chairman Scott Salo sent Perich a letter stating that Hosanna-Tabor was reviewing the process for rescinding her call in light of her “regrettable” actions. Id., at 229. Salo subsequently followed up with a letter advising Perich that the congregation would consider whether to rescind her call at its next meeting. As grounds for ter-mination, the letter cited Perich’s “insubordination and disruptive behavior” on February 22, as well as the damage she had done to her “working relationship” with the school by “threatening to take legal action.” Id., at 55. The congregation voted to rescind Perich’s call on April 10, and Hosanna-Tabor sent her a letter of termination the next day. B      Perich filed a charge with the Equal Employment Opportunity Commission, alleging that her employment had been terminated in violation of the Americans with Dis-abilities Act, 104Stat. 327, 42 U. S. C. §12101 et seq. (1990). The ADA prohibits an employer from discriminating against a qualified individual on the basis of disability. §12112(a). It also prohibits an employer from retaliating “against any individual because such individual has opposed any act or practice made unlawful by [the ADA] or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [the ADA].” §12203(a). [ 1 ]      The EEOC brought suit against Hosanna-Tabor, alleging that Perich had been fired in retaliation for threat-ening to file an ADA lawsuit. Perich intervened in the litigation, claiming unlawful retaliation under both the ADA and the Michigan Persons with Disabilities Civil Rights Act, Mich. Comp. Laws §37.1602(a) (1979). The EEOC and Perich sought Perich’s reinstatement to her former position (or frontpay in lieu thereof), along with backpay, compensatory and punitive damages, attorney’s fees, and other injunctive relief.      Hosanna-Tabor moved for summary judgment. Invoking what is known as the “ministerial exception,” the Church argued that the suit was barred by the First Amendment because the claims at issue concerned the employment relationship between a religious institution and one of its ministers. According to the Church, Perich was a minister, and she had been fired for a religious reason—namely, that her threat to sue the Church vio-lated the Synod’s belief that Christians should resolve their disputes internally.      The District Court agreed that the suit was barred by the ministerial exception and granted summary judgment in Hosanna-Tabor’s favor. The court explained that “Hosanna-Tabor treated Perich like a minister and held her out to the world as such long before this litigation began,” and that the “facts surrounding Perich’s employment in a religious school with a sectarian mission” supported the Church’s characterization. 582 F. Supp. 2d, at 891–892. In light of that determination, the court concluded that it could “inquire no further into her claims of retaliation.” Id., at 892.      The Court of Appeals for the Sixth Circuit vacated and remanded, directing the District Court to proceed to the merits of Perich’s retaliation claims. The Court of Appeals recognized the existence of a ministerial exception barring certain employment discrimination claims against religious institutions—an exception “rooted in the First Amendment’s guarantees of religious freedom.” 597 F. 3d 769, 777 (2010). The court concluded, however, that Perich did not qualify as a “minister” under the exception, noting in particular that her duties as a called teacher were identical to her duties as a lay teacher. Id., at 778–781. Judge White concurred. She viewed the question whether Perich qualified as a minister to be closer than did the majority, but agreed that the “fact that the duties of the contract teachers are the same as the duties of the called teachers is telling.” Id., at 782, 784.      We granted certiorari. 563 U. S. ___ (2011). II      The First Amendment provides, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” We have said that these two Clauses “often exert conflicting pressures,” Cutter v. Wilkinson, 544 U. S. 709, 719 (2005) , and that there can be “internal tension . . . between the Establishment Clause and the Free Exercise Clause,” Tilton v. Richardson, 403 U. S. 672, 677 (1971) (plurality opinion). Not so here. Both Religion Clauses bar the government from interfering with the decision of a religious group to fire one of its ministers. A      Controversy between church and state over religious offices is hardly new. In 1215, the issue was addressed in the very first clause of Magna Carta. There, King John agreed that “the English church shall be free, and shall have its rights undiminished and its liberties unimpaired.” The King in particular accepted the “freedom of elections,” a right “thought to be of the greatest necessity and importance to the English church.” J. Holt, Magna Carta App. IV, p. 317, cl. 1 (1965).      That freedom in many cases may have been more the-oretical than real. See, e.g., W. Warren, Henry II 312 (1973) (recounting the writ sent by Henry II to the electors of a bishopric in Winchester, stating: “I order you to hold a free election, but forbid you to elect anyone but Richard my clerk”). In any event, it did not survive the reign of Henry VIII, even in theory. The Act of Supremacy of 1534, 26 Hen. 8, ch. 1, made the English monarch the supreme head of the Church, and the Act in Restraint of Annates, 25 Hen. 8, ch. 20, passed that same year, gave him the authority to appoint the Church’s high officials. See G. Elton, The Tudor Constitution: Documents and Commentary 331–332 (1960). Various Acts of Uniformity, enacted subsequently, tightened further the government’s grip on the exercise of religion. See, e.g., Act of Uniformity, 1559, 1 Eliz., ch. 2; Act of Uniformity, 1549, 2 & 3 Edw. 6, ch. 1. The Uniformity Act of 1662, for instance, limited service as a minister to those who formally assented to prescribed tenets and pledged to follow the mode of worship set forth in the Book of Common Prayer. Any minister who refused to make that pledge was “deprived of all his Spiritual Promotions.” Act of Uniformity, 1662, 14 Car. 2, ch. 4.      Seeking to escape the control of the national church, the Puritans fled to New England, where they hoped to elect their own ministers and establish their own modes of worship. See T. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment 3 (1986); McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1422 (1990). William Penn, the Quaker proprietor of what would eventually become Pennsylvania and Delaware, also sought independence from the Church of England. The charter creating the province of Pennsylvania contained no clause establishing a religion. See S. Cobb, The Rise of Religious Liberty in America 440–441 (1970).      Colonists in the South, in contrast, brought the Church of England with them. But even they sometimes chafed at the control exercised by the Crown and its representatives over religious offices. In Virginia, for example, the law vested the governor with the power to induct ministers presented to him by parish vestries, 2 Hening’s Statutes at Large 46 (1642), but the vestries often refused to make such presentations and instead chose ministers on their own. See H. Eckenrode, Separation of Church and State in Virginia 13–19 (1910). Controversies over the selection of ministers also arose in other Colonies with Anglican establishments, including North Carolina. See C. Antieau, A. Downey, & E. Roberts, Freedom from Federal Establishment: Formation and Early History of the First Amendment Religion Clauses 10–11 (1964). There, the royal governor insisted that the right of presentation lay with the Bishop of London, but the colonial assembly enacted laws placing that right in the vestries. Authorities in England intervened, repealing those laws as inconsistent with the rights of the Crown. See id., at 11; Weeks, Church and State in North Carolina, Johns Hopkins U. Studies in Hist. & Pol. Sci., 11th Ser., Nos. 5–6, pp. 29–36 (1893).      It was against this background that the First Amendment was adopted. Familiar with life under the established Church of England, the founding generation sought to foreclose the possibility of a national church. See 1 Annals of Cong. 730–731 (1789) (noting that the Establishment Clause addressed the fear that “one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform” (remarks of J. Madison)). By forbidding the “establishment of religion” and guaranteeing the “free exercise thereof,” the Religion Clauses ensured that the new Federal Government—unlike the English Crown—would have no role in filling ecclesiastical offices. The Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.      This understanding of the Religion Clauses was reflected in two events involving James Madison, “ ‘the leading architect of the religion clauses of the First Amendment.’ ” Arizona Christian School Tuition Organization v. Winn, 563 U. S. ___, ___ (2011) (slip op., at 13) (quoting Flast v. Cohen, 392 U. S. 83, 103 (1968) ). The first occurred in 1806, when John Carroll, the first Catholic bishop in the United States, solicited the Executive’s opinion on who should be appointed to direct the affairs of the Catholic Church in the territory newly acquired by the Louisiana Purchase. After consulting with President Jefferson, then-Secretary of State Madison responded that the selection of church “functionaries” was an “entirely ecclesiastical” matter left to the Church’s own judgment. Letter from James Madison to Bishop Carroll (Nov. 20, 1806), reprinted in 20 Records of the American Catholic Historical Society 63 (1909). The “scrupulous policy of the Constitution in guarding against a political interference with religious affairs,” Madison explained, prevented the Government from rendering an opinion on the “selection of ecclesiastical individuals.” Id., at 63–64.      The second episode occurred in 1811, when Madison was President. Congress had passed a bill incorporating the Protestant Episcopal Church in the town of Alexandria in what was then the District of Columbia. Madison vetoed the bill, on the ground that it “exceeds the rightful authority to which Governments are limited, by the essential distinction between civil and religious functions, and violates, in particular, the article of the Constitution of the United States, which declares, that ‘Congress shall make no law respecting a religious establishment.’ ” 22 Annals of Cong. 982–983 (1811). Madison explained: “The bill enacts into, and establishes by law, sundry rules and proceedings relative purely to the organi-zation and polity of the church incorporated, and comprehending even the election and removal of the Minister of the same; so that no change could be made therein by the particular society, or by the general church of which it is a member, and whose authority it recognises.” Id., at 983 (emphasis added). B      Given this understanding of the Religion Clauses—and the absence of government employment regulation generally—it was some time before questions about government interference with a church’s ability to select its own ministers came before the courts. This Court touched upon the issue indirectly, however, in the context of disputes over church property. Our decisions in that area confirm that it is impermissible for the government to contradict a church’s determination of who can act as its ministers.      In Watson v. Jones, 13 Wall. 679 (1872), the Court considered a dispute between antislavery and proslavery factions over who controlled the property of the Walnut Street Presbyterian Church in Louisville, Kentucky. The General Assembly of the Presbyterian Church had recognized the antislavery faction, and this Court—applying not the Constitution but a “broad and sound view of the relations of church and state under our system of laws”—declined to question that determination. Id., at 727. We explained that “whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of [the] church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them.” Ibid. As we would put it later, our opinion in Watson “radiates . . . a spirit of freedom for religious organizations, an independence from secular control or manipulation—in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U. S. 94, 116 (1952) .      Confronting the issue under the Constitution for the first time in Kedroff, the Court recognized that the “[f ]reedom to select the clergy, where no improper methods of choice are proven,” is “part of the free exercise of religion” protected by the First Amendment against government interference. Ibid. At issue in Kedroff was the right to use a Russian Orthodox cathedral in New York City. The Russian Orthodox churches in North America had split from the Supreme Church Authority in Moscow, out of concern that the Authority had become a tool of the Soviet Government. The North American churches claimed that the right to use the cathedral belonged to an archbishop elected by them; the Supreme Church Authority claimed that it belonged instead to an archbishop appointed by the patriarch in Moscow. New York’s highest court ruled in favor of the North American churches, based on a state law requiring every Russian Orthodox church in New York to recognize the determination of the governing body of the North American churches as authoritative. Id., at 96–97, 99, n. 3, 107, n. 10.      This Court reversed, concluding that the New York law violated the First Amendment. Id., at 107. We explained that the controversy over the right to use the cathedral was “strictly a matter of ecclesiastical government, the power of the Supreme Church Authority of the Russian Orthodox Church to appoint the ruling hierarch of the archdiocese of North America.” Id., at 115. By “pass[ing] the control of matters strictly ecclesiastical from one church authority to another,” the New York law intruded the “power of the state into the forbidden area of reli- gious freedom contrary to the principles of the First Amend-ment.” Id., at 119. Accordingly, we declared the law unconstitutional because it “directly prohibit[ed] the free exercise of an ecclesiastical right, the Church’s choice of its hierarchy.” Ibid.      This Court reaffirmed these First Amendment principles in Serbian Eastern Orthodox Diocese for United States and Canada v. Milivojevich, 426 U. S. 696 (1976) , a case involving a dispute over control of the American-Canadian Diocese of the Serbian Orthodox Church, including its property and assets. The Church had removed Dionisije Milivojevich as bishop of the American-Canadian Diocese because of his defiance of the church hierarchy. Following his removal, Dionisije brought a civil action in state court challenging the Church’s decision, and the Illinois Supreme Court “purported in effect to reinstate Dionisije as Diocesan Bishop,” on the ground that the proceedings resulting in his removal failed to comply with church laws and regulations. Id., at 708.      Reversing that judgment, this Court explained that the First Amendment “permit[s] hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters.” Id., at 724. When ecclesiastical tribunals decide such disputes, we further explained, “the Constitution requires that civil courts accept their decisions as binding upon them.” Id., at 725. We thus held that by inquiring into whether the Church had followed its own procedures, the State Supreme Court had “unconstitutionally undertaken the resolution of quintessentially religious controversies whose resolution the First Amendment commits exclusively to the highest ecclesiastical tribunals” of the Church. Id., at 720. C      Until today, we have not had occasion to consider whether this freedom of a religious organization to select its ministers is implicated by a suit alleging discrimination in employment. The Courts of Appeals, in contrast, have had extensive experience with this issue. Since the passage of Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e et seq., and other employment discrimination laws, the Courts of Appeals have uniformly recognized the existence of a “ministerial exception,” grounded in the First Amendment, that precludes application of such legislation to claims concerning the employment relationship between a religious institution and its ministers. [ 2 ]      We agree that there is such a ministerial exception. The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.      The EEOC and Perich acknowledge that employment discrimination laws would be unconstitutional as applied to religious groups in certain circumstances. They grant, for example, that it would violate the First Amendment for courts to apply such laws to compel the ordination of women by the Catholic Church or by an Orthodox Jewish seminary. Brief for Federal Respondent 31; Brief for Respondent Perich 35–36. According to the EEOC and Perich, religious organizations could successfully defend against employment discrimination claims in those circum-stances by invoking the constitutional right to freedom of association—a right “implicit” in the First Amendment. Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984) . The EEOC and Perich thus see no need—and no basis—for a special rule for ministers grounded in the Religion Clauses themselves.      We find this position untenable. The right to freedom of association is a right enjoyed by religious and secular groups alike. It follows under the EEOC’s and Perich’s view that the First Amendment analysis should be the same, whether the association in question is the Lutheran Church, a labor union, or a social club. See Perich Brief 31; Tr. of Oral Arg. 28. That result is hard to square with the text of the First Amendment itself, which gives spe-cial solicitude to the rights of religious organizations. We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.      The EEOC and Perich also contend that our decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990) , precludes recognition of a ministerial exception. In Smith, two members of the Native American Church were denied state unemployment benefits after it was determined that they had been fired from their jobs for ingesting peyote, a crime under Oregon law. We held that this did not violate the Free Exercise Clause, even though the peyote had been ingested for sacramental purposes, because the “right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Id., at 879 (internal quotation marks omitted).      It is true that the ADA’s prohibition on retaliation, like Oregon’s prohibition on peyote use, is a valid and neutral law of general applicability. But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. See id., at 877 (distinguishing the government’s regulation of “physical acts” from its “lend[ing] its power to one or the other side in controversies over religious authority or dogma”). The contention that Smith forecloses recognition of a ministerial exception rooted in the Religion Clauses has no merit. III      Having concluded that there is a ministerial exception grounded in the Religion Clauses of the First Amendment, we consider whether the exception applies in this case. We hold that it does.      Every Court of Appeals to have considered the question has concluded that the ministerial exception is not limited to the head of a religious congregation, and we agree. We are reluctant, however, to adopt a rigid formula for deciding when an employee qualifies as a minister. It is enough for us to conclude, in this our first case involving the ministerial exception, that the exception covers Perich, given all the circumstances of her employment.      To begin with, Hosanna-Tabor held Perich out as a minister, with a role distinct from that of most of its members. When Hosanna-Tabor extended her a call, it issued her a “diploma of vocation” according her the title “Minister of Religion, Commissioned.” App. 42. She was tasked with performing that office “according to the Word of God and the confessional standards of the Evangelical Lutheran Church as drawn from the Sacred Scriptures.” Ibid. The congregation prayed that God “bless [her] ministrations to the glory of His holy name, [and] the building of His church.” Id., at 43. In a supplement to the diploma, the congregation undertook to periodically review Perich’s “skills of ministry” and “ministerial responsibilities,” and to provide for her “continuing education as a professional person in the ministry of the Gospel.” Id., at 49.      Perich’s title as a minister reflected a significant degree of religious training followed by a formal process of commissioning. To be eligible to become a commissioned minister, Perich had to complete eight college-level courses in subjects including biblical interpretation, church doctrine, and the ministry of the Lutheran teacher. She also had to obtain the endorsement of her local Synod district by submitting a petition that contained her academic transcripts, letters of recommendation, personal statement, and written answers to various ministry-related questions. Finally, she had to pass an oral examination by a faculty committee at a Lutheran college. It took Perich six years to fulfill these requirements. And when she eventually did, she was commissioned as a minister only upon election by the congregation, which recognized God’s call to her to teach. At that point, her call could be rescinded only upon a supermajority vote of the congregation—a protection designed to allow her to “preach the Word of God boldly.” Brief for Lutheran Church-Missouri Synod as Amicus Curiae 15.      Perich held herself out as a minister of the Church by accepting the formal call to religious service, according to its terms. She did so in other ways as well. For example, she claimed a special housing allowance on her taxes that was available only to employees earning their compensation “ ‘in the exercise of the ministry.’ ” App. 220 (“If you are not conducting activities ‘in the exercise of the ministry,’ you cannot take advantage of the parsonage or housing allowance exclusion” (quoting Lutheran Church-Missouri Synod Brochure on Whether the IRS Considers Employees as a Minister (2007)). In a form she submitted to the Synod following her termination, Perich again indicated that she regarded herself as a minister at Hosanna-Tabor, stating: “I feel that God is leading me to serve in the teaching ministry . . . . I am anxious to be in the teaching ministry again soon.” App. 53.      Perich’s job duties reflected a role in conveying the Church’s message and carrying out its mission. Hosanna-Tabor expressly charged her with “lead[ing] others toward Christian maturity” and “teach[ing] faithfully the Word of God, the Sacred Scriptures, in its truth and purity and as set forth in all the symbolical books of the Evangelical Lutheran Church.” Id., at 48. In fulfilling these responsibilities, Perich taught her students religion four days a week, and led them in prayer three times a day. Once a week, she took her students to a school-wide chapel service, and—about twice a year—she took her turn leading it, choosing the liturgy, selecting the hymns, and delivering a short message based on verses from the Bible. During her last year of teaching, Perich also led her fourth graders in a brief devotional exercise each morning. As a source of religious instruction, Perich performed an important role in transmitting the Lutheran faith to the next generation.      In light of these considerations—the formal title given Perich by the Church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the Church—we conclude that Perich was a minister covered by the ministerial exception.      In reaching a contrary conclusion, the Court of Appeals committed three errors. First, the Sixth Circuit failed to see any relevance in the fact that Perich was a commissioned minister. Although such a title, by itself, does not automatically ensure coverage, the fact that an employee has been ordained or commissioned as a minister is surely relevant, as is the fact that significant religious training and a recognized religious mission underlie the description of the employee’s position. It was wrong for the Court of Appeals—and Perich, who has adopted the court’s view, see Perich Brief 45—to say that an employee’s title does not matter.      Second, the Sixth Circuit gave too much weight to the fact that lay teachers at the school performed the same religious duties as Perich. We express no view on whether someone with Perich’s duties would be covered by the ministerial exception in the absence of the other considerations we have discussed. But though relevant, it cannot be dispositive that others not formally recognized as ministers by the church perform the same functions—particularly when, as here, they did so only because commissioned ministers were unavailable.      Third, the Sixth Circuit placed too much emphasis on Perich’s performance of secular duties. It is true that her religious duties consumed only 45 minutes of each workday, and that the rest of her day was devoted to teaching secular subjects. The EEOC regards that as conclusive, contending that any ministerial exception “should be limited to those employees who perform exclusively religious functions.” Brief for Federal Respondent 51. We cannot accept that view. Indeed, we are unsure whether any such employees exist. The heads of congregations themselves often have a mix of duties, including secular ones such as helping to manage the congregation’s finances, supervising purely secular personnel, and overseeing the upkeep of facilities.      Although the Sixth Circuit did not adopt the extreme position pressed here by the EEOC, it did regard the relative amount of time Perich spent performing religious functions as largely determinative. The issue before us, however, is not one that can be resolved by a stopwatch. The amount of time an employee spends on particular activities is relevant in assessing that employee’s status, but that factor cannot be considered in isolation, without regard to the nature of the religious functions performed and the other considerations discussed above.      Because Perich was a minister within the meaning of the exception, the First Amendment requires dismissal of this employment discrimination suit against her religious employer. The EEOC and Perich originally sought an order reinstating Perich to her former position as a called teacher. By requiring the Church to accept a minister it did not want, such an order would have plainly violated the Church’s freedom under the Religion Clauses to select its own ministers.      Perich no longer seeks reinstatement, having abandoned that relief before this Court. See Perich Brief 58. But that is immaterial. Perich continues to seek frontpay in lieu of reinstatement, backpay, compensatory and punitive damages, and attorney’s fees. An award of such relief would operate as a penalty on the Church for terminating an unwanted minister, and would be no less prohibited by the First Amendment than an order overturning the termination. Such relief would depend on a determination that Hosanna-Tabor was wrong to have relieved Perich of her position, and it is precisely such a ruling that is barred by the ministerial exception. [ 3 ]      The EEOC and Perich suggest that Hosanna-Tabor’s asserted religious reason for firing Perich—that she violated the Synod’s commitment to internal dispute resolution—was pretextual. That suggestion misses the point of the ministerial exception. The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful—a matter “strictly ecclesiastical,” Kedroff, 344 U. S., at 119—is the church’s alone. [ 4 ] IV      The EEOC and Perich foresee a parade of horribles that will follow our recognition of a ministerial exception to employment discrimination suits. According to the EEOC and Perich, such an exception could protect religious organizations from liability for retaliating against employees for reporting criminal misconduct or for testifying before a grand jury or in a criminal trial. What is more, the EEOC contends, the logic of the exception would confer on religious employers “unfettered discretion” to violate employment laws by, for example, hiring children or aliens not authorized to work in the United States. Brief for Federal Respondent 29.      Hosanna-Tabor responds that the ministerial exception would not in any way bar criminal prosecutions for in-terfering with law enforcement investigations or other proceedings. Nor, according to the Church, would the exception bar government enforcement of general laws restricting eligibility for employment, because the exception applies only to suits by or on behalf of ministers themselves. Hosanna-Tabor also notes that the ministe-rial exception has been around in the lower courts for 40 years, see McClure v. Salvation Army, 460 F. 2d 553, 558 (CA5 1972), and has not given rise to the dire consequences predicted by the EEOC and Perich.      The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise. *  *  *      The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.      The judgment of the Court of Appeals for the Sixth Circuit is reversed. It is so ordered. Notes 1 The ADA itself provides religious entities with two defenses to claims of discrimination that arise under subchapter I of the Act. The first provides that “[t]his subchapter shall not prohibit a religious corporation, association, educational institution, or society from giving preference in employment to individuals of a particular religion to perform work connected with the carrying on by such [entity] of its activities.” §12113(d)(1) (2006 ed., Supp. III). The second provides that “[u]nder this subchapter, a religious organization may require that all applicants and employees conform to the religious tenets of such organization.” §12113(d)(2). The ADA’s prohibition against retaliation, §12203(a), appears in a different subchapter—subchapter IV. The EEOC and Perich contend, and Hosanna-Tabor does not dispute, that these defenses therefore do not apply to retaliation claims. 2 See Natal v. Christian and Missionary Alliance, 878 F. 2d 1575, 1578 (CA1 1989); Rweyemamu v. Cote, 520 F. 3d 198, 204–209 (CA2 2008); Petruska v. Gannon Univ., 462 F. 3d 294, 303–307 (CA3 2006); EEOC v. Roman Catholic Diocese, 213 F. 3d 795, 800–801 (CA4 2000); Combs v. Central Tex. Annual Conference, 173 F. 3d 343, 345–350 (CA5 1999); Hollins v. Methodist Healthcare, Inc., 474 F. 3d 223, 225–227 (CA6 2007); Schleicher v. Salvation Army, 518 F. 3d 472, 475 (CA7 2008); Scharon v. St. Luke’s Episcopal Presbyterian Hospitals, 929 F. 2d 360, 362–363 (CA8 1991); Werft v. Desert Southwest Annual Conference, 377 F. 3d 1099, 1100–1104 (CA9 2004); Bryce v. Episcopal Church, 289 F. 3d 648, 655–657 (CA10 2002); Gellington v. Christian Methodist Episcopal Church, Inc., 203 F. 3d 1299, 1301–1304 (CA11 2000); EEOC v. Catholic Univ., 83 F. 3d 455, 460–463 (CADC 1996). 3 Perich does not dispute that if the ministerial exception bars her retaliation claim under the ADA, it also bars her retaliation claim under Michigan law. 4 A conflict has arisen in the Courts of Appeals over whether the ministerial exception is a jurisdictional bar or a defense on the merits. Compare Hollins, 474 F. 3d, at 225 (treating the exception as jurisdictional); and Tomic v. Catholic Diocese of Peoria, 442 F. 3d 1036, 1038–1039 (CA7 2006) (same), with Petruska, 462 F. 3d, at 302 (treating the exception as an affirmative defense); Bryce, 289 F. 3d, at 654 (same); Bollard v. California Province of Soc. of Jesus, 196 F. 3d 940, 951 (CA9 1999) (same); and Natal, 878 F. 2d, at 1576 (same). We conclude that the exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar. That is because the issue presented by the exception is “whether the allegations the plaintiff makes entitle him to relief,” not whether the court has “power to hear [the] case.” Morrison v. National Australia Bank Ltd., 561 U. S. ___, ___ (2010) (slip op., at 4–5) (internal quotation marks omitted). District courts have power to consider ADA claims in cases of this sort, and to decide whether the claim can proceed or is instead barred by the ministerial exception. SUPREME COURT OF THE UNITED STATES _________________ No. 10–553 _________________ HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH AND SCHOOL, PETITIONER v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION et al. on writ of certiorari to the united states court of appeals for the sixth circuit [January 11, 2012]      Justice Alito, with whom Justice Kagan joins, concurring.      I join the Court’s opinion, but I write separately to clarify my understanding of the significance of formal ordination and designation as a “minister” in determining whether an “employee” [ 1 ] of a religious group falls within the so-called “ministerial” exception. The term “minister” is commonly used by many Protestant denominations to refer to members of their clergy, but the term is rarely if ever used in this way by Catholics, Jews, Muslims, Hindus, or Buddhists. [ 2 ] In addition, the concept of ordination as understood by most Christian churches and by Judaism has no clear counterpart in some Christian denominations and some other religions. Because virtually every religion in the world is represented in the population of the United States, it would be a mistake if the term “minister” or the concept of ordination were viewed as central to the important issue of religious autonomy that is presented in cases like this one. Instead, courts should focus on the function performed by persons who work for religious bodies.      The First Amendment protects the freedom of religious groups to engage in certain key religious activities, including the conducting of worship services and other religious ceremonies and rituals, as well as the critical process of communicating the faith. Accordingly, religious groups must be free to choose the personnel who are essential to the performance of these functions.      The “ministerial” exception should be tailored to this purpose. It should apply to any “employee” who leads a religious organization, conducts worship services or im-portant religious ceremonies or rituals, or serves as a messenger or teacher of its faith. If a religious group believes that the ability of such an employee to perform these key functions has been compromised, then the constitutional guarantee of religious freedom protects the group’s right to remove the employee from his or her position. I      Throughout our Nation’s history, religious bodies have been the preeminent example of private associations that have “act[ed] as critical buffers between the individual and the power of the State.” Roberts v. United States Jaycees, 468 U. S. 609, 619 (1984) . In a case like the one now before us—where the goal of the civil law in question, the elimination of discrimination against persons with disabilities, is so worthy—it is easy to forget that the autonomy of religious groups, both here in the United States and abroad, has often served as a shield against oppressive civil laws. To safeguard this crucial autonomy, we have long recognized that the Religion Clauses protect a private sphere within which religious bodies are free to govern themselves in accordance with their own beliefs. The Constitution guarantees religious bodies “independence from secular control or manipulation—in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U. S. 94, 116 (1952) .      Religious autonomy means that religious authorities must be free to determine who is qualified to serve in positions of substantial religious importance. Different religions will have different views on exactly what qualifies as an important religious position, but it is nonetheless possible to identify a general category of “employees” whose functions are essential to the independence of practically all religious groups. These include those who serve in positions of leadership, those who perform important functions in worship services and in the performance of religious ceremonies and rituals, and those who are entrusted with teaching and conveying the tenets of the faith to the next generation.      Applying the protection of the First Amendment to roles of religious leadership, worship, ritual, and expression focuses on the objective functions that are important for the autonomy of any religious group, regardless of its beliefs. As we have recognized in a similar context, “[f]orcing a group to accept certain members may impair [its ability] to express those views, and only those views, that it intends to express.” Boy Scouts of America v. Dale, 530 U. S. 640, 648 (2000) . That principle applies with special force with respect to religious groups, whose very existence is dedicated to the collective expression and propagation of shared religious ideals. See Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 882 (1990) (noting that the constitutional interest in freedom of association may be “reinforced by Free Exercise Clause concerns”). As the Court notes, the First Amendment “gives special solicitude to the rights of religious organizations,” ante, at 14, but our expressive-association cases are nevertheless useful in pointing out what those essential rights are. Religious groups are the archetype of associations formed for expressive purposes, and their fundamental rights surely include the freedom to choose who is qualified to serve as a voice for their faith.      When it comes to the expression and inculcation of religious doctrine, there can be no doubt that the messenger matters. Religious teachings cover the gamut from moral conduct to metaphysical truth, and both the content and credibility of a religion’s message depend vitally on the character and conduct of its teachers. A religion cannot depend on someone to be an effective advocate for its religious vision if that person’s conduct fails to live up to the religious precepts that he or she espouses. For this reason, a religious body’s right to self-governance must include the ability to select, and to be selective about, those who will serve as the very “embodiment of its message” and “its voice to the faithful.” Petruska v. Gannon Univ., 462 F. 3d 294, 306 (CA3 2006). A religious body’s control over such “employees” is an essential component of its freedom to speak in its own voice, both to its own members and to the outside world.      The connection between church governance and the free dissemination of religious doctrine has deep roots in our legal tradition: “The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed.” Watson v. Jones, 13 Wall. 679, 728–729 (1872).      The “ministerial” exception gives concrete protection to the free “expression and dissemination of any religious doctrine.” The Constitution leaves it to the collective conscience of each religious group to determine for itself who is qualified to serve as a teacher or messenger of its faith. II A      The Court’s opinion today holds that the “ministerial” exception applies to Cheryl Perich (hereinafter respondent), who is regarded by the Lutheran Church—Missouri Synod as a commissioned minister. But while a ministe-rial title is undoubtedly relevant in applying the First Amendment rule at issue, such a title is neither necessary nor sufficient. As previously noted, most faiths do not employ the term “minister,” and some eschew the concept of formal ordination. [ 3 ] And at the opposite end of the spectrum, some faiths consider the ministry to consist of all or a very large percentage of their members. [ 4 ] Perhaps this explains why, although every circuit to consider the issue has recognized the “ministerial” exception, no circuit has made ordination status or formal title determinative of the exception’s applicability.      The Fourth Circuit was the first to use the term “ministerial exception,” but in doing so it took pains to clarify that the label was a mere shorthand. See Rayburn v. General Conference of Seventh-day Adventists, 772 F. 2d 1164, 1168 (1985) (noting that the exception’s applicability “does not depend upon ordination but upon the function of the position”). The Fourth Circuit traced the exception back to McClure v. Salvation Army, 460 F. 2d 553 (CA5 1972), which invoked the Religion Clauses to bar a Title VII sex-discrimination suit brought by a woman who was described by the court as a Salvation Army “minister,” id., at 554, although her actual title was “officer.” See McClure v. Salvation Army, 323 F. Supp. 1100, 1101 (ND Ga. 1971). A decade after McClure, the Fifth Circuit made clear that formal ordination was not necessary for the “ministerial” exception to apply. The court held that the members of the faculty at a Baptist seminary were covered by the exception because of their religious function in conveying church doctrine, even though some of them were not ordained ministers. See EEOC v. Southwestern Baptist Theological Seminary, 651 F. 2d 277 (1981).      The functional consensus has held up over time, with the D. C. Circuit recognizing that “[t]he ministerial exception has not been limited to members of the clergy.” EEOC v. Catholic Univ., 83 F. 3d 455, 461 (1996). The court in that case rejected a Title VII suit brought by a Catholic nun who claimed that the Catholic University of America had denied her tenure for a canon-law teaching position because of her gender. The court noted that “members of the Canon Law Faculty perform the vital function of instructing those who will in turn interpret, implement, and teach the law governing the Roman Catholic Church and the administration of its sacraments. Although Sister McDonough is not a priest, she is a member of a religious order who sought a tenured professorship in a field that is of fundamental importance to the spiritual mission of her Church.” Id., at 464. See also Natal v. Christian and Missionary Alliance, 878 F. 2d 1575, 1578 (CA1 1989) (stating that “a religious organization’s fate is inextricably bound up with those whom it entrusts with the responsibilities of preaching its word and ministering to its adherents,” and noting “the difficulties inherent in separating the message from the messenger”).      The Ninth Circuit too has taken a functional approach, just recently reaffirming that “the ministerial exception encompasses more than a church’s ordained ministers.” Alcazar v. Corp. of Catholic Archbishop of Seattle, 627 F. 3d 1288, 1291 (2010) (en banc); see also Elvig v. Calvin Presbyterian Church, 375 F. 3d 951, 958 (2004). The Court’s opinion today should not be read to upset this consensus. B      The ministerial exception applies to respondent because, as the Court notes, she played a substantial role in “conveying the Church’s message and carrying out its mission.” Ante, at 17. She taught religion to her students four days a week and took them to chapel on the fifth day. She led them in daily devotional exercises, and led them in prayer three times a day. She also alternated with the other teachers in planning and leading worship services at the school chapel, choosing liturgies, hymns, and read-ings, and composing and delivering a message based on Scripture.      It makes no difference that respondent also taught secular subjects. While a purely secular teacher would not qualify for the “ministerial” exception, the constitutional protection of religious teachers is not somehow diminished when they take on secular functions in addition to their religious ones. What matters is that respondent played an important role as an instrument of her church’s religious message and as a leader of its worship activities. Because of these important religious functions, Hosanna-Tabor had the right to decide for itself whether respondent was religiously qualified to remain in her office.      Hosanna-Tabor discharged respondent because she threatened to file suit against the church in a civil court. This threat contravened the Lutheran doctrine that disputes among Christians should be resolved internally without resort to the civil court system and all the legal wrangling it entails. [ 5 ] In Hosanna-Tabor’s view, respondent’s disregard for this doctrine compromised her religious function, disqualifying her from serving effectively as a voice for the church’s faith. Respondent does not dispute that the Lutheran Church subscribes to a doctrine of internal dispute resolution, but she argues that this was a mere pretext for her firing, which was really done for nonreligious reasons.      For civil courts to engage in the pretext inquiry that respondent and the Solicitor General urge us to sanction would dangerously undermine the religious autonomy that lower court case law has now protected for nearly four decades. In order to probe the real reason for respondent’s firing, a civil court—and perhaps a jury—would be required to make a judgment about church doctrine. The credibility of Hosanna-Tabor’s asserted reason for terminating respondent’s employment could not be assessed without taking into account both the importance that the Lutheran Church attaches to the doctrine of internal dispute resolution and the degree to which that tenet compromised respondent’s religious function. If it could be shown that this belief is an obscure and minor part of Lutheran doctrine, it would be much more plausible for respondent to argue that this doctrine was not the real reason for her firing. If, on the other hand, the doctrine is a central and universally known tenet of Lutheranism, then the church’s asserted reason for her discharge would seem much more likely to be nonpretextual. But whatever the truth of the matter might be, the mere adjudication of such questions would pose grave problems for religious autonomy: It would require calling witnesses to testify about the importance and priority of the religious doctrine in question, with a civil factfinder sitting in ultimate judgment of what the accused church really believes, and how important that belief is to the church’s overall mission.      At oral argument, both respondent and the United States acknowledged that a pretext inquiry would sometimes be prohibited by principles of religious autonomy, and both conceded that a Roman Catholic priest who is dismissed for getting married could not sue the church and claim that his dismissal was actually based on a ground forbidden by the federal antidiscrimination laws. See Tr. of Oral Arg. 38–39, 50. But there is no principled basis for proscribing a pretext inquiry in such a case while permitting it in a case like the one now before us. The Roman Catholic Church’s insistence on clerical celibacy may be much better known than the Lutheran Church’s doctrine of internal dispute resolution, but popular familiarity with a religious doctrine cannot be the determinative factor.      What matters in the present case is that Hosanna-Tabor believes that the religious function that respondent performed made it essential that she abide by the doctrine of internal dispute resolution; and the civil courts are in no position to second-guess that assessment. This conclusion rests not on respondent’s ordination status or her formal title, but rather on her functional status as the type of employee that a church must be free to appoint or dismiss in order to exercise the religious liberty that the First Amendment guarantees. Notes 1 It is unconventional to refer to many persons who clearly fall with-in the “ministerial” exception, such as Protestant ministers, Catholic priests, and Jewish rabbis, as “employees,” but I use the term in the sense in which it is used in the antidiscrimination laws that are often implicated in cases involving the exception. See, e.g., (Title VII); §12111(4) (ADA); (ADEA); §206(e) (Equal Pay Act and Fair Labor Standards Act). 2 See 9 Oxford English Dictionary 818 (2d ed. 1989) (def. 4(b)) (noting the term “minister” used in various phrases “applied as general designations for a person officially charged with spiritual functions in the Christian Church”); 9 Encyclopedia of Religion 6044–6045 (2d ed. 2005). See also, e.g., 9 New Catholic Encyclopedia 870 (1967). 3 In Islam, for example, “every Muslim can perform the religious rites, so there is no class or profession of ordained clergy. Yet there are religious leaders who are recognized for their learning and their ability to lead communities of Muslims in prayer, study, and living according to the teaching of the Qur’an and Muslim law.” 10 Encyclopedia of Religion 6858 (2d ed. 2005). 4 For instance, Jehovah’s Witnesses consider all baptized disciples to be ministers. See The Watchtower, Who Are God’s Ministers Today? Nov. 15, 2000, p. 16 (“According to the Bible, all Jehovah’s worshippers—heavenly and earthly—are ministers”). 5 See The Lutheran Church—Missouri Synod, Commission on Theol-ogy and Church Relations, 1 Corinthians 6:1–11: An Exegetical Study, p. 10 (Apr. 1991) (stating that instead of suing each other, Christians should seek “an amicable settlement of differences by means of a decision by fellow Christians”). See also 1 Corinthians 6:1–7 (“If any of you has a dispute with another, dare he take it before the ungodly for judgment instead of before the saints?”). SUPREME COURT OF THE UNITED STATES _________________ No. 10–553 _________________ HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH AND SCHOOL, PETITIONER v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION et al. on writ of certiorari to the united states court of appeals for the sixth circuit [January 11, 2012] Justice Thomas, concurring. I join the Court’s opinion. I write separately to note that, in my view, the Religion Clauses require civil courts to apply the ministerial exception and to defer to a religious organization’s good-faith understanding of who qualifies as its minister. As the Court explains, the Religion Clauses guarantee religious organizations autonomy in matters of internal governance, including the selection of those who will minister the faith. A religious organi-zation’s right to choose its ministers would be hollow, however, if secular courts could second-guess the organiza-tion’s sincere determination that a given employee is a “minister” under the organization’s theological tenets. Our country’s religious landscape includes organizations with different leadership structures and doctrines that influence their conceptions of ministerial status. The question whether an employee is a minister is itself religious in nature, and the answer will vary widely. Judicial attempts to fashion a civil definition of “minister” through a bright-line test or multi-factor analysis risk disadvantaging those religious groups whose beliefs, practices, and membership are outside of the “mainstream” or unpalatable to some. Moreover, uncertainty about whether its ministerial designation will be rejected, and a corresponding fear of liability, may cause a religious group to conform its beliefs and practices regarding “ministers” to the prevailing secular understanding. See Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos , 483 U.S. 327 , 336 (1987) (“[I]t is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its activities a secular court will consider religious. The line is hardly a bright one, and an organization might understandably be concerned that a judge would not understand its religious tenets and sense of mission. Fear of potential liability might affect the way an organization carried out what it understood to be its religious mission” (footnote omitted)). These are certainly dangers that the First Amendment was designed to guard against. The Court thoroughly sets forth the facts that lead to its conclusion that Cheryl Perich was one of Hosanna-Tabor’s ministers, and I agree that these facts amply demonstrate Perich’s ministerial role. But the evidence demonstrates that Hosanna-Tabor sincerely considered Perich a minister. That would be sufficient for me to conclude that Per-ich’s suit is properly barred by the ministerial exception.

The Supreme Court ruled that employment discrimination laws cannot be applied to teachers at religious schools if they are considered ministers of their faith. Hosanna-Tabor Evangelical Lutheran Church and School argued that Cheryl Perich, a teacher at their school, was a minister and therefore exempt from employment discrimination laws when they fired her. The Court agreed, citing the Establishment and Free Exercise Clauses of the First Amendment, and noting that religious organizations have autonomy in matters of internal governance, including the selection and dismissal of their ministers.

Religion

Town of Greece v. Galloway

https://supreme.justia.com/cases/federal/us/572/565/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 12–696 _________________ TOWN OF GREECE, NEW YORK, PETITIONER v.SUSAN GALLOWAY et al. on writ of certiorari to the united states court of appeals for the second circuit [May 5, 2014]      Justice Kennedy delivered the opinion of the Court, except as to Part II–B.[ 1 ]*      The Court must decide whether the town of Greece, New York, imposes an impermissible establishment of religion by opening its monthly board meetings with a prayer. It must be concluded, consistent with the Court’s opinion in Marsh v. Chambers, 463 U. S. 783 (1983) , that no violation of the Constitution has been shown. I      Greece, a town with a population of 94,000, is in upstate New York. For some years, it began its monthly town board meetings with a moment of silence. In 1999, the newly elected town supervisor, John Auberger, decided to replicate the prayer practice he had found meaningful while serving in the county legislature. Following the roll call and recitation of the Pledge of Allegiance, Auberger would invite a local clergyman to the front of the room to deliver an invocation. After the prayer, Auberger would thank the minister for serving as the board’s “chaplain for the month” and present him with a commemorative plaque. The prayer was intended to place town board members in a solemn and deliberative frame of mind, invoke divine guidance in town affairs, and follow a tradition practiced by Congress and dozens of state legislatures. App. 22a–25a.      The town followed an informal method for selecting prayer givers, all of whom were unpaid volunteers. A town employee would call the congregations listed in a local directory until she found a minister available for that month’s meeting. The town eventually compiled a list of willing “board chaplains” who had accepted invitations and agreed to return in the future. The town at no point excluded or denied an opportunity to a would-be prayer giver. Its leaders maintained that a minister or layperson of any persuasion, including an atheist, could give the invocation. But nearly all of the congregations in town were Christian; and from 1999 to 2007, all of the participating ministers were too.      Greece neither reviewed the prayers in advance of the meetings nor provided guidance as to their tone or content, in the belief that exercising any degree of control over the prayers would infringe both the free exercise and speech rights of the ministers. Id., at 22a. The town instead left the guest clergy free to compose their own devotions. The resulting prayers often sounded both civic and religious themes. Typical were invocations that asked the divinity to abide at the meeting and bestow blessings on the community: “Lord we ask you to send your spirit of servanthood upon all of us gathered here this evening to do your work for the benefit of all in our community. We ask you to bless our elected and appointed officials so they may deliberate with wisdom and act with courage. Bless the members of our community who come here to speak before the board so they may state their cause with honesty and humility. . . . Lord we ask you to bless us all, that everything we do here tonight will move you to welcome us one day into your kingdom as good and faithful servants. We ask this in the name of our brother Jesus. Amen.” Id., at 45a. Some of the ministers spoke in a distinctly Christian idiom; and a minority invoked religious holidays, scripture, or doctrine, as in the following prayer: “Lord, God of all creation, we give you thanks and praise for your presence and action in the world. We look with anticipation to the celebration of Holy Week and Easter. It is in the solemn events of next week that we find the very heart and center of our Christian faith. We acknowledge the saving sacrifice ofJesus Christ on the cross. We draw strength, vitality, and confidence from his resurrection at Easter. . . . We pray for peace in the world, an end to terrorism, violence, conflict, and war. We pray for stability, democracy, and good government in those countries in which our armed forces are now serving, especially in Iraq and Afghanistan. . . . Praise and glory be yours, O Lord, now and forever more. Amen.” Id., at 88a–89a.      Respondents Susan Galloway and Linda Stephens attended town board meetings to speak about issues of local concern, and they objected that the prayers violated their religious or philosophical views. At one meeting, Galloway admonished board members that she foundthe prayers “offensive,” “intolerable,” and an affront to a “diverse community.” Complaint in No. 08–cv–6088 (WDNY), ¶66. After respondents complained that Christian themes pervaded the prayers, to the exclusion of citizens who did not share those beliefs, the town invited a Jewish layman and the chairman of the local Baha’i temple to deliver prayers. A Wiccan priestess who had read press reports about the prayer controversy requested, and was granted, an opportunity to give the invocation.      Galloway and Stephens brought suit in the United States District Court for the Western District of New York. They alleged that the town violated the First Amendment’s Establishment Clause by preferring Christians over other prayer givers and by sponsoring sectarian prayers, such as those given “in Jesus’ name.” 732 F. Supp. 2d 195, 203 (2010). They did not seek an end to the prayer practice, but rather requested an injunction that would limit the town to “inclusive and ecumenical” prayers that referred only to a “generic God” and would not associate the government with any one faith or belief. Id., at 210, 241.      The District Court on summary judgment upheld the prayer practice as consistent with the First Amendment. It found no impermissible preference for Christianity, noting that the town had opened the prayer program to all creeds and excluded none. Although most of the prayer givers were Christian, this fact reflected only the predominantly Christian identity of the town’s congregations, rather than an official policy or practice of discriminating against minority faiths. The District Court found no authority for the proposition that the First Amendment required Greece to invite clergy from congregations beyond its borders in order to achieve a minimum level of religious diversity.      The District Court also rejected the theory that legislative prayer must be nonsectarian. The court began its inquiry with the opinion in Marsh v. Chambers, 463 U. S. 783 , which permitted prayer in state legislatures by a chaplain paid from the public purse, so long as the prayer opportunity was not “exploited to proselytize or advance any one, or to disparage any other, faith or belief,” id., at 794–795. With respect to the prayer in Greece, the District Court concluded that references to Jesus, and the occasional request that the audience stand for the prayer, did not amount to impermissible proselytizing. It located in Marsh no additional requirement that the prayers be purged of sectarian content. In this regard the court quoted recent invocations offered in the U. S. House of Representatives “in the name of our Lord Jesus Christ,” e.g., 156 Cong Rec. H5205 (June 30, 2010), and situated prayer in this context as part a long tradition. Finally, the trial court noted this Court’s statement in County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 603 (1989) , that the prayers in Marsh did not offend the Establishment Clause “because the particular chaplain had ‘removed all references to Christ.’ ” But the District Court did not read that statement to mandate that legislative prayer be nonsectarian, at least in circumstances where the town permitted clergy from a variety of faiths to give invocations. By welcoming many viewpoints, the District Court concluded, the town would be unlikely to give the impression that it was affiliating itself with any one religion.      The Court of Appeals for the Second Circuit reversed. 681 F. 3d 20, 34 (2012). It held that some aspects of the prayer program, viewed in their totality by a reasonable observer, conveyed the message that Greece was endorsing Christianity. The town’s failure to promote the prayer opportunity to the public, or to invite ministers from congregations outside the town limits, all but “ensured a Christian viewpoint.” Id., at 30–31. Although the court found no inherent problem in the sectarian content of the prayers, it concluded that the “steady drumbeat” of Christian prayer, unbroken by invocations from other faith traditions, tended to affiliate the town with Christianity. Id., at 32. Finally, the court found it relevant that guest clergy sometimes spoke on behalf of all present at the meeting, as by saying “let us pray,” or by asking audience members to stand and bow their heads: “The invitation . . . to participate in the prayer . . . placed audience members who are nonreligious or adherents of non-Christian religion in the awkward position of either participating in prayers invoking beliefs they did not share or appearing to show disrespect for the invocation.” Ibid. That board members bowed their heads or made the sign of the cross further conveyed the message that the town endorsed Christianity. The Court of Appeals emphasized that it was the “interaction of the facts present in this case,” rather than any single element, that rendered the prayer unconstitutional. Id., at 33.      Having granted certiorari to decide whether the town’s prayer practice violates the Establishment Clause, 569 U. S. ___ (2013), the Court now reverses the judgment of the Court of Appeals. II      In Marsh v. Chambers, 463 U. S. 783 , the Court found no First Amendment violation in the Nebraska Legislature’s practice of opening its sessions with a prayer delivered by a chaplain paid from state funds. The decision concluded that legislative prayer, while religious in nature, has long been understood as compatible with the Establishment Clause. As practiced by Congress since the framing of the Constitution, legislative prayer lends grav-ity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful soci-ety. See Lynch v. Donnelly, 465 U. S. 668, 693 (1984) (O’Connor, J., concurring); cf. A. Adams & C. Emmerich, A Nation Dedicated to Religious Liberty 83 (1990). The Court has considered this symbolic expression to be a “tolerable acknowledgement of beliefs widely held,” Marsh, 463 U. S., at 792, rather than a first, treacherous step towards establishment of a state church.      Marsh is sometimes described as “carving out an exception” to the Court’s Establishment Clause jurisprudence, because it sustained legislative prayer without subjecting the practice to “any of the formal ‘tests’ that have traditionally structured” this inquiry. Id., at 796, 813 (Brennan, J., dissenting). The Court in Marsh found those tests unnecessary because history supported the conclusion that legislative invocations are compatible with the Establishment Clause. The First Congress made it an early item of business to appoint and pay official chaplains, and both the House and Senate have maintained the office virtually uninterrupted since that time. See id., at 787–789, and n. 10; N. Feldman, Divided by God 109 (2005). But see Marsh, supra, at 791–792, and n. 12 (noting dissenting views among the Framers); Madison, “Detached Memoranda”, 3 Wm. & Mary Quarterly 534, 558–559 (1946) (hereinafter Madison’s Detached Memoranda). When Marsh was decided, in 1983, legislative prayer had persisted in the Nebraska Legislature for more than a cen-tury, and the majority of the other States also had the same, consistent practice. 463 U. S., at 788–790, and n. 11. Although no information has been cited by the parties to indicate how many local legislative bodies open their meetings with prayer, this practice too has historical precedent. See Reports of Proceedings of the City Council of Boston for the Year Commencing Jan. 1, 1909, and Ending Feb. 5, 1910, pp. 1–2 (1910) (Rev. Arthur Little) (“And now we desire to invoke Thy presence, Thy blessing, and Thy guidance upon those who are gathered here this morning . . .”). “In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with a prayer has become part of the fabric of our society.” Marsh, supra, at 792.      Yet Marsh must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation. The case teaches instead that the Establishment Clause must be interpreted “by reference to historical practices and understandings.” County of Allegheny, 492 U. S., at 670 (Kennedy, J., concurring in judgment in part and dissenting in part). That the First Congress provided for the appointment of chaplains only days after approving language for the First Amendment demonstrates that the Framers considered legislative prayer a benign acknowledgment of religion’s role in society. D. Currie, The Constitution in Congress: The Federalist Period 1789–1801, pp. 12–13 (1997). In the 1850’s, the judiciary committees in both the House and Senate reevaluated the practice of official chaplaincies after receiving petitions to abolish the office. The committees concluded that the office posed no threat of an establishment because lawmakers were not compelled to attend the daily prayer, S. Rep. No. 376, 32d Cong., 2d Sess., 2 (1853); no faith was excluded by law, nor any favored, id., at 3; and the cost of the chaplain’s salary imposed a vanishingly small burden on taxpayers, H. Rep. No. 124, 33d Cong., 1st Sess., 6 (1854). Marsh stands for the proposition that it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted. Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change. County of Allegheny, supra, at 670 (opinion of Kennedy, J.); see also School Dist. of Abington Township v. Schempp, 374 U. S. 203, 294 (1963) (Brennan, J., concurring) (“[T]he line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers”). A test that would sweep away what has so long been settled would create new controversy and begin anew the very divisions along religious lines that the Establishment Clause seeks to prevent. See Van Orden v. Perry, 545 U. S. 677 –704 (2005) (Breyer, J., concurring in judgment).      The Court’s inquiry, then, must be to determine whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures. Respondents assert that the town’s prayer exercise falls outside that tradition and transgresses the Establishment Clause for two independent but mutually reinforcing reasons. First, they argue that Marsh did not approve prayers containing sectarian language or themes, such as the prayers offered in Greece that referred to the “death, resurrection, and ascension of the Savior Jesus Christ,” App. 129a, and the “saving sacrifice of Jesus Christ on the cross,” id., at 88a. Second, they argue that the setting and conduct of the town board meetings create social pressures that force nonadherents to remain in the room or even feign participation in order to avoid offending the representatives who sponsor the prayer and will vote on matters citizens bring before the board. The sectarian content of the prayers compounds the subtle coercive pressures, they argue, because the nonbeliever who might tolerate ecumenical prayer is forced to do the same for prayer that might be inimical to his or her beliefs. A      Respondents maintain that prayer must be nonsectarian, or not identifiable with any one religion; and they faultthe town for permitting guest chaplains to deliver prayers that “use overtly Christian terms” or “invoke specifics of Christian theology.” Brief for Respondents 20. A prayer is fitting for the public sphere, in their view, only if it contains the ‘ “most general, nonsectarian reference to God,’ ” id., at 33 (quoting M. Meyerson, Endowed by Our Creator: The Birth of Religious Freedom in America 11–12 (2012)), and eschews mention of doctrines associated with any one faith, Brief for Respondents 32–33. They argue that prayer which contemplates “the workings of the Holy Spirit, the events of Pentecost, and the belief that God ‘has raisedup the Lord Jesus’ and ‘will raise us, in our turn, and put us by His side’ ” would be impermissible, as would any prayer that reflects dogma particular to a single faith tradition. Id., at 34 (quoting App. 89a and citing id., at 56a, 123a, 134a).      An insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer outlined in the Court’s cases. The Court found the prayers in Marsh consistent with the First Amendment not because they espoused only a ge-neric theism but because our history and tradition have shown that prayer in this limited context could “coexis[t] with the principles of disestablishment and religious freedom.” 463 U. S., at 786. The Congress that drafted the First Amendment would have been accustomed to invocations containing explicitly religious themes of the sort respondents find objectionable. One of the Senate’s first chaplains, the Rev. William White, gave prayers in a series that included the Lord’s Prayer, the Collect forAsh Wednesday, prayers for peace and grace, a general thanksgiving, St. Chrysostom’s Prayer, and a prayer seeking “the grace of our Lord Jesus Christ, &c.” Letter from W. White to H. Jones (Dec. 29, 1830), in B. Wilson, Memoir of the Life of the Right Reverend William White, D. D., Bishop of the Protestant Episcopal Church in the State of Pennsylvania 322 (1839); see also New Hampshire Patriot & State Gazette, Dec. 15, 1823, p. 1 (describing a Senate prayer addressing the “Throne of Grace”); Cong. Globe, 37th Cong., 1st Sess., 2 (1861) (reciting the Lord’s Prayer). The decidedly Christian nature of these prayers must not be dismissed as the relic of a time when our Nation was less pluralistic than it is today. Congress continues to permit its appointed and visiting chaplains to express themselves in a religious idiom. It acknowledges our growing diversity not by proscribing sectarian content but by welcoming ministers of many creeds. See, e.g., 160 Cong. Rec. S1329 (Mar. 6, 2014) (Dalai Lama) (“I am a Buddhist monk—a simple Buddhist monk—so we pray to Buddha and all other Gods”); 159 Cong. Rec. H7006 (Nov. 13, 2013) (Rabbi Joshua Gruenberg) (“Our God and God of our ancestors, Everlasting Spirit of the Universe . . .”); 159 Cong. Rec. H3024 (June 4, 2013) (Satguru Bodhinatha Veylanswami) (“Hindu scripture declares, without equivocation, that the highest of high ideals is to never know-ingly harm anyone”); 158 Cong. Rec. H5633 (Aug. 2, 2012) (Imam Nayyar Imam) (“The final prophet of God, Muhammad, peace be upon him, stated: ‘The leaders of a people are a representation of their deeds’ ”).      The contention that legislative prayer must be generic or nonsectarian derives from dictum in County of Allegheny, 492 U. S. 573 , that was disputed when written and has been repudiated by later cases. There the Court held that a crèche placed on the steps of a county courthouse to celebrate the Christmas season violated the Establishment Clause because it had “the effect of endorsing a patently Christian message.” Id., at 601. Four dissenting Justices disputed that endorsement could be the proper test, as it likely would condemn a host of traditional practices that recognize the role religion plays in our society, among them legislative prayer and the “forthrightly religious” Thanksgiving proclamations issued by nearly every President since Washington. Id., at 670–671. The Court sought to counter this criticism by recasting Marsh to permit only prayer that contained no overtly Christian references: “However history may affect the constitutionality of nonsectarian references to religion by the government, history cannot legitimate practices that demonstrate the government’s allegiance to a particular sect or creed . . . . The legislative prayers involved in Marsh did not violate this principle because the particular chaplain had ‘removed all references to Christ.’ ” Id., at 603 (quoting Marsh, supra, at 793, n. 14; footnote omitted).      This proposition is irreconcilable with the facts of Marsh and with its holding and reasoning. Marsh nowhere suggested that the constitutionality of legislative prayer turns on the neutrality of its content. The opinion noted that Nebraska’s chaplain, the Rev. Robert E. Palmer, modu-lated the “explicitly Christian” nature of his prayer and “removed all references to Christ” after a Jewish law-maker complained. 463 U. S., at 793, n. 14. With this foot-note, the Court did no more than observe the practical demands placed on a minister who holds a permanent, appointed position in a legislature and chooses to write his or her prayers to appeal to more members, or at least to give less offense to those who object. See Mallory, “An Officer of the House Which Chooses Him, and Nothing More”: How Should Marsh v. Chambers Apply to Rotating Chaplains?, 73 U. Chi. L. Rev. 1421, 1445 (2006). Marsh did not suggest that Nebraska’s prayer practice would have failed had the chaplain not acceded to the legislator’s request. Nor did the Court imply the rule that prayer violates the Establishment Clause any time it is given in the name of a figure deified by only one faith or creed. See Van Orden, 545 U. S., at 688, n. 8 (recognizing that the prayers in Marsh were “often explicitly Christian” and rejecting the view that this gave rise to an establishment violation). To the contrary, the Court instructed that the “content of the prayer is not of concern to judges,” provided “there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.” 463 U. S., at 794–795.      To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing or approving prayers in advance nor criticizing their content after the fact. Cf. Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. ___, ___ (2012) (slip op., at 13–14). Our Government is prohibited from prescribing prayers to be recited in our public institutions in order to promote a preferred system of belief or code of moral behavior. Engel v. Vitale, 370 U. S. 421, 430 (1962) . It would be but a few steps removed from that prohibition for legislatures to require chaplains to redact the religious content from their message in order to make it acceptable for the public sphere. Government may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy. See Lee v. Weisman, 505 U. S. 577, 590 (1992) (“The suggestion that government may establish an official or civic religion as a means of avoiding the establishment of a religion with more specific creeds strikes us as a contradiction that cannot be ac-cepted”); Schempp, 374 U. S., at 306 (Goldberg, J., concurring) (arguing that “untutored devotion to the concept of neutrality” must not lead to “a brooding and pervasive devotion to the secular”).      Respondents argue, in effect, that legislative prayer may be addressed only to a generic God. The law and the Court could not draw this line for each specific prayer or seek to require ministers to set aside their nuanced and deeply personal beliefs for vague and artificial ones. There is doubt, in any event, that consensus might be reached as to what qualifies as generic or nonsectarian. Honorifics like “Lord of Lords” or “King of Kings” might strike a Christian audience as ecumenical, yet these titles may have no place in the vocabulary of other faith tradi-tions. The difficulty, indeed the futility, of sifting sectarian from nonsectarian speech is illustrated by a letter thata lawyer for the respondents sent the town in the early stages of this litigation. The letter opined that references to “Father, God, Lord God, and the Almighty” would be acceptable in public prayer, but that references to “Jesus Christ, the Holy Spirit, and the Holy Trinity” would not. App. 21a. Perhaps the writer believed the former grouping would be acceptable to monotheists. Yet even seemingly general references to God or the Father might alienate nonbelievers or polytheists. McCreary County v. American Civil Liberties Union of Ky., 545 U. S. 844, 893 (2005) (Scalia, J., dissenting). Because it is unlikely that prayer will be inclusive beyond dispute, it would be unwise to adopt what respondents think is the next-best option: permitting those religious words, and only those words, that are acceptable to the majority, even if they will exclude some. Torcaso v. Watkins, 367 U. S. 488, 495 (1961) . The First Amendment is not a majority rule, and government may not seek to define permissible categories of religious speech. Once it invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian.      In rejecting the suggestion that legislative prayer must be nonsectarian, the Court does not imply that no constraints remain on its content. The relevant constraint derives from its place at the opening of legislative sessions, where it is meant to lend gravity to the occasion and reflect values long part of the Nation’s heritage. Prayer that is solemn and respectful in tone, that invites lawmakers to reflect upon shared ideals and common ends before they embark on the fractious business of governing, serves that legitimate function. If the course and practice over time shows that the invocations denigrate nonbeliev-ers or religious minorities, threaten damnation, or preach conversion, many present may consider the prayer to fall short of the desire to elevate the purpose of the occasion and to unite lawmakers in their common effort. That circumstance would present a different case than the one presently before the Court.      The tradition reflected in Marsh permits chaplains to ask their own God for blessings of peace, justice, and freedom that find appreciation among people of all faiths. That a prayer is given in the name of Jesus, Allah, or Jehovah, or that it makes passing reference to religious doctrines, does not remove it from that tradition. These religious themes provide particular means to universal ends. Prayer that reflects beliefs specific to only some creeds can still serve to solemnize the occasion, so long as the practice over time is not “exploited to proselytize or advance any one, or to disparage any other, faith or belief.” Marsh, 463 U. S., at 794–795.      It is thus possible to discern in the prayers offered to Congress a commonality of theme and tone. While these prayers vary in their degree of religiosity, they often seek peace for the Nation, wisdom for its lawmakers, and justice for its people, values that count as universal and that are embodied not only in religious traditions, but in our founding documents and laws. The first prayer delivered to the Continental Congress by the Rev. Jacob Duché on Sept. 7, 1774, provides an example:      “Be Thou present O God of Wisdom and direct the counsel of this Honorable Assembly; enable them to settle all things on the best and surest foundations; that the scene of blood may be speedily closed; that Order, Harmony, and Peace be effectually restored, and the Truth and Justice, Religion and Piety, prevail and flourish among the people.      “Preserve the health of their bodies, and the vigor of their minds, shower down on them, and the millions they here represent, such temporal Blessings as Thou seest expedient for them in this world, and crown them with everlasting Glory in the world to come. All this we ask in the name and through the merits ofJesus Christ, Thy Son and our Saviour, Amen.” W. Federer, America’s God and Country 137 (2000).      From the earliest days of the Nation, these invocations have been addressed to assemblies comprising many different creeds. These ceremonial prayers strive for the idea that people of many faiths may be united in a community of tolerance and devotion. Even those who dis-agree as to religious doctrine may find common ground in the desire to show respect for the divine in all aspects of their lives and being. Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith. See Letter from John Adams to Abigail Adams (Sept. 16, 1774), in C. Adams, Familiar Letters of John Adams and His Wife Abigail Adams, During the Revolution 37–38 (1876).      The prayers delivered in the town of Greece do not fall outside the tradition this Court has recognized. A number of the prayers did invoke the name of Jesus, the Heavenly Father, or the Holy Spirit, but they also invoked universal themes, as by celebrating the changing of the seasons or calling for a “spirit of cooperation” among town leaders. App. 31a, 38a. Among numerous examples of such prayer in the record is the invocation given by the Rev. Richard Barbour at the September 2006 board meeting: “Gracious God, you have richly blessed our nationand this community. Help us to remember your generosity and give thanks for your goodness. Bless the elected leaders of the Greece Town Board as they conduct the business of our town this evening. Give them wisdom, courage, discernment and a single-minded desire to serve the common good. We ask your blessing on all public servants, and especially on our police force, firefighters, and emergency medical personnel. . . . Respectful of every religious tradition, I offer this prayer in the name of God’s only son Jesus Christ, the Lord, Amen.” Id., at 98a–99a.      Respondents point to other invocations that disparaged those who did not accept the town’s prayer practice. One guest minister characterized objectors as a “minority” who are “ignorant of the history of our country,” id., at 108a, while another lamented that other towns did not have “God-fearing” leaders, id., at 79a. Although these two remarks strayed from the rationale set out in Marsh, they do not despoil a practice that on the whole reflects and embraces our tradition. Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a prayer will not likely establish a constitutional violation. Marsh, indeed, requires an inquiry into the prayer opportunity as a whole, rather than into the contents of a single prayer. 463 U. S., at 794–795.      Finally, the Court disagrees with the view taken by the Court of Appeals that the town of Greece contravened the Establishment Clause by inviting a predominantly Christian set of ministers to lead the prayer. The town made reasonable efforts to identify all of the congregations located within its borders and represented that it would welcome a prayer by any minister or layman who wished to give one. That nearly all of the congregations in town turned out to be Christian does not reflect an aversion or bias on the part of town leaders against minority faiths. So long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing. The quest to promote “a ‘diversity’ of religious views” would require the town “to make wholly inappropriate judgments about the number of religions [it] should sponsor and the relative frequency with which it should sponsor each,” Lee, 505 U. S., at 617 (Souter, J., concurring), a form of government entanglement with religion that is far more troublesome than the current approach. B      Respondents further seek to distinguish the town’s prayer practice from the tradition upheld in Marsh on the ground that it coerces participation by nonadherents. They and some amici contend that prayer conducted in the intimate setting of a town board meeting differs in fundamental ways from the invocations delivered in Congress and state legislatures, where the public remains segregated from legislative activity and may not address the body except by occasional invitation. Citizens attend town meetings, on the other hand, to accept awards; speak on matters of local importance; and petition the board for action that may affect their economic interests, such as the granting of permits, business licenses, and zoning variances. Respondents argue that the public may feel subtle pressure to participate in prayers that violate their beliefs in order to please the board members from whom they are about to seek a favorable ruling. In their view the fact that board members in small towns know many of their constituents by name only increases the pressure to conform.      It is an elemental First Amendment principle that government may not coerce its citizens “to support or participate in any religion or its exercise.” County of Allegheny, 492 U. S., at 659 (Kennedy, J., concurring in judgment in part and dissenting in part); see also Van Orden, 545 U. S., at 683 (plurality opinion) (recognizing that our “institutions must not press religious observances upon their citizens”). On the record in this case the Court is not persuaded that the town of Greece, through the act of offering a brief, solemn, and respectful prayer to open its monthly meetings, compelled its citizens to engage in a religious observance. The inquiry remains a fact-sensitive one that considers both the setting in which the prayer arises and the audience to whom it is directed.      The prayer opportunity in this case must be evaluated against the backdrop of historical practice. As a practice that has long endured, legislative prayer has become part of our heritage and tradition, part of our expressive idiom, similar to the Pledge of Allegiance, inaugural prayer, or the recitation of “God save the United States and this honorable Court” at the opening of this Court’s sessions. See Lynch, 465 U. S., at 693 (O’Connor, J., concurring). It is presumed that the reasonable observer is acquainted with this tradition and understands that its purposes are to lend gravity to public proceedings and to acknowledge the place religion holds in the lives of many private citizens, not to afford government an opportunity to proselytize or force truant constituents into the pews. See Salazar v. Buono, 559 U. S. 700 –721 (2010) (plurality opinion); Santa Fe Independent School Dist. v. Doe, 530 U. S. 290, 308 (2000) . That many appreciate these acknowledgments of the divine in our public institutions does not suggest that those who disagree are compelled to join the expression or approve its content. West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943) .      The principal audience for these invocations is not, indeed, the public but lawmakers themselves, who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing. The District Court in Marsh described the prayer exercise as “an internal act” directed at the Nebraska Legislature’s “own members,” Chambers v. Marsh, 504 F. Supp. 585, 588 (Neb. 1980), rather than an effort to promote religious observance among the public. See also Lee, 505 U. S., at 630, n. 8 (Souter, J., concurring) (describing Marsh as a case “in which government officials invoke[d] spiritual inspiration entirely for their own benefit”); Atheists of Fla., Inc. v. Lakeland, 713 F. 3d 577, 583 (CA11 2013) (quoting a city resolution providing for prayer “for the benefit and blessing of” elected leaders); Madison’s Detached Memoranda 558 (characterizing prayer in Congress as “religious worship for national representatives”); Brief for U. S. Senator Marco Rubio et al. as Amici Curiae 30–33; Brief for 12 Members of Congress as Amici Curiae 6. To be sure, many members of the public find these prayers meaningful and wish to join them. But their purpose is largely to accommodate the spiritual needs of lawmakers and connect them to a tradition dating to the time of the Framers. For members of town boards and commissions, who often serve part-time and as volunteers, ceremonial prayer may also reflect the values they hold as private citizens. The prayer is an opportunity for them to show who and what they are without denying the right to dissent by those who disagree.      The analysis would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity. No such thing occurred in the town of Greece. Although board members themselves stood, bowed their heads, or made the sign of the cross during the prayer, they at no point solicited similar gestures by the public. Respondents point to several occasions where audience members were asked to rise for the prayer. These requests, however, came not from town leaders but from the guest ministers, who presumably are accustomed to directing their congregations in this way and might have done so thinking the action was inclusive, not coercive. See App. 69a (“Would you bow your heads with me as we invite the Lord’s presence here tonight?”); id., at 93a (“Let us join our hearts and minds together in prayer”); id., at 102a (“Would you join me in a moment of prayer?”); id., at 110a (“Those who are willing may join me now in prayer”). Respondents suggest that constituents might feel pressure to join the prayers to avoid irritating the officials who would be ruling on their petitions, but this argument has no evidentiary support. Nothing in the record indicates that town leaders allocated benefits and burdens based on participation in the prayer, or that citizens were received differently depending on whether they joined the invocation or quietly declined. In no instance did town leaders signal disfavor toward nonparticipants or suggest that their stature in the community was in any way diminished. A practice that classified citizens based on their religious views would violate the Constitution, but that is not the case before this Court.      In their declarations in the trial court, respondents stated that the prayers gave them offense and made them feel excluded and disrespected. Offense, however, does not equate to coercion. Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum, especially where, as here, any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions. See Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 44 (2004) (O’Connor, J., concurring) (“The compulsion of which Justice Jackson was concerned . . . was of the direct sort—the Constitution does not guarantee citizens a rightentirely to avoid ideas with which they disagree”). If circum-stances arise in which the pattern and practice of ceremonial, legislative prayer is alleged to be a means to coerce or intimidate others, the objection can be addressed in the regular course. But the showing has not been made here, where the prayers neither chastised dissenters nor attempted lengthy disquisition on religious dogma. Courts remain free to review the pattern of prayers over time to determine whether they comport with the tradition of solemn, respectful prayer approved in Marsh, or whether coercion is a real and substantial likelihood. But in the general course legislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate. See County of Allegheny, 492 U. S., at 670 (Kennedy, J., concurring in judgment in part and dissenting in part).      This case can be distinguished from the conclusions and holding of Lee v. Weisman, 505 U. S. 577 . There the Court found that, in the context of a graduation where school authorities maintained close supervision over the conduct of the students and the substance of the ceremony, a religious invocation was coercive as to an objecting student. Id., at 592–594; see also Santa Fe Independent School Dist., 530 U. S., at 312. Four Justices dissented in Lee, but the circumstances the Court confronted there are not present in this case and do not control its outcome. Nothing in the record suggests that members of the public are dissuaded from leaving the meeting room during the prayer, arriving late, or even, as happened here, making a later protest. In this case, as in Marsh, board members and constituents are “free to enter and leave with little comment and for any number of reasons.” Lee, supra, at 597. Should nonbelievers choose to exit the room during a prayer they find distasteful, their absence will not stand out as disrespectful or even noteworthy. And should they remain, their quiet acquiescence will not, in light of our traditions, be interpreted as an agreement with the words or ideas expressed. Neither choice represents an unconstitutional imposition as to mature adults, who “presumably” are “not readily susceptible to religious indoctrination or peer pressure.” Marsh, 463 U. S., at 792 (internal quotation marks and citations omitted).      In the town of Greece, the prayer is delivered during the ceremonial portion of the town’s meeting. Board members are not engaged in policymaking at this time, but in more general functions, such as swearing in new police officers, inducting high school athletes into the town hall of fame, and presenting proclamations to volunteers, civic groups, and senior citizens. It is a moment for town leaders to recognize the achievements of their constituents and the aspects of community life that are worth celebrating. By inviting ministers to serve as chaplain for the month, and welcoming them to the front of the room alongside civic leaders, the town is acknowledging the central place that religion, and religious institutions, hold in the lives of those present. Indeed, some congregations are not simply spiritual homes for town residents but also the provider of social services for citizens regardless of their beliefs. See App. 31a (thanking a pastor for his “community involvement”); id., at 44a (thanking a deacon “for the job that you have done on behalf of our community”). The inclusion of a brief, ceremonial prayer as part of a larger exercise in civic recognition suggests that its purpose and effect are to acknowledge religious leaders and the institutions they represent rather than to exclude or coerce nonbelievers.      Ceremonial prayer is but a recognition that, since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government to alter or define and that willing participation in civic affairs can be consistent with a brief acknowledgment of their belief in a higher power, always with due respect for those who adhere to other beliefs. The prayer in this case has a permissible ceremonial purpose. It is not an unconstitutional establishment of religion. *  *  *      The town of Greece does not violate the First Amendment by opening its meetings with prayer that comports with our tradition and does not coerce participation by nonadherents. The judgment of the U. S. Court of Appeals for the Second Circuit is reversed. It is so ordered. Notes 1 *  and join this opinion in full. and join this opinion except as to Part II–B. SUPREME COURT OF THE UNITED STATES _________________ No. 12–696 _________________ TOWN OF GREECE, NEW YORK, PETITIONER v.SUSAN GALLOWAY et al. on writ of certiorari to the united states court of appeals for the second circuit [May 5, 2014]      Justice Alito, with whom Justice Scalia joins,concurring.      I write separately to respond to the principal dissent, which really consists of two very different but intertwined opinions. One is quite narrow; the other is sweeping. I will address both. I      First, however, since the principal dissent accuses the Court of being blind to the facts of this case, post, at 20 (opinion of Kagan, J.), I recount facts that I find particularly salient.      The town of Greece is a municipality in upstate New York that borders the city of Rochester. The town decided to emulate a practice long established in Congress and state legislatures by having a brief prayer before sessions of the town board. The task of lining up clergy members willing to provide such a prayer was given to the town’s office of constituent services. 732 F. Supp. 2d 195, 197–198 (WDNY 2010). For the first four years of the practice, a clerical employee in the office would randomly call religious organizations listed in the Greece “Community Guide,” a local directory published by the Greece Chamber of Commerce, until she was able to find somebody willing to give the invocation. Id., at 198. This employee eventu-ally began keeping a list of individuals who had agreed to give the invocation, and when a second clerical employee took over the task of finding prayer-givers, the first employee gave that list to the second. Id., at 198, 199. The second employee then randomly called organizations on that list—and possibly others in the Community Guide—until she found someone who agreed to provide the prayer. Id., at 199.      Apparently, all the houses of worship listed in the local Community Guide were Christian churches. Id., at 198–200, 203. That is unsurprising given the small number of non-Christians in the area. Although statistics for the town of Greece alone do not seem to be available, statistics have been compiled for Monroe County, which includes both the town of Greece and the city of Rochester. According to these statistics, of the county residents who have a religious affiliation, about 3% are Jewish, and for other non-Christian faiths, the percentages are smaller.[ 1 ] There are no synagogues within the borders of the town of Greece, id., at 203, but there are several not far away across the Rochester border. Presumably, Jewish residents of the town worship at one or more of those synagogues, but because these synagogues fall outside the town’s borders, they were not listed in the town’s local directory, and the responsible town employee did not include them on her list. Ibid. Nor did she include any other non-Christian house of worship. Id., at 198–200.[ 2 ]      As a result of this procedure, for some time all the prayers at the beginning of town board meetings were offered by Christian clergy, and many of these prayers were distinctively Christian. But respondents do not claim that the list was attributable to religious bias or favoritism, and the Court of Appeals acknowledged that the town had “no religious animus.” 681 F. 3d 20, 32 (CA2 2012).      For some time, the town’s practice does not appear to have elicited any criticism, but when complaints were received, the town made it clear that it would permit any interested residents, including nonbelievers, to provide an invocation, and the town has never refused a request to offer an invocation. Id., at 23, 25; 732 F. Supp. 2d, at 197. The most recent list in the record of persons available to provide an invocation includes representatives of many non-Christian faiths. App. in No. 10–3635 (CA2), pp. A1053–A1055 (hereinafter CA2 App.).      Meetings of the Greece Town Board appear to have been similar to most other town council meetings across the country. The prayer took place at the beginning of the meetings. The board then conducted what might be termed the “legislative” portion of its agenda, during which residents were permitted to address the board. After this portion of the meeting, a separate stage of the meetings was devoted to such matters as formal requests for variances. See Brief for Respondents 5–6; CA2 App. A929–A930; e.g., CA2 App. A1058, A1060.      No prayer occurred before this second part of the proceedings, and therefore I do not understand this case to involve the constitutionality of a prayer prior to what may be characterized as an adjudicatory proceeding. The prayer preceded only the portion of the town board meeting that I view as essentially legislative. While it is true that the matters considered by the board during this initial part of the meeting might involve very specific questions, such as the installation of a traffic light or stop sign at a particular intersection, that does not transform the nature of this part of the meeting. II      I turn now to the narrow aspect of the principal dissent, and what we find here is that the principal dissent’s objection, in the end, is really quite niggling. According to the principal dissent, the town could have avoided any constitutional problem in either of two ways. A      First, the principal dissent writes, “[i]f the Town Board had let its chaplains know that they should speak in nonsectarian terms, common to diverse religious groups, then no one would have valid grounds for complaint.” Post, at 18–19. “Priests and ministers, rabbis and imams,” the principal dissent continues, “give such invocations all the time” without any great difficulty. Post, at 19.      Both Houses of Congress now advise guest chaplains that they should keep in mind that they are addressing members from a variety of faith traditions, and as a matter of policy, this advice has much to recommend it. But any argument that nonsectarian prayer is constitutionally required runs headlong into a long history of contrary congressional practice. From the beginning, as the Court notes, many Christian prayers were offered in the House and Senate, see ante, at 7, and when rabbis and other non-Christian clergy have served as guest chaplains, their prayers have often been couched in terms particular to their faith traditions.[ 3 ]      Not only is there no historical support for the proposition that only generic prayer is allowed, but as our country has become more diverse, composing a prayer that is acceptable to all members of the community who hold religious beliefs has become harder and harder. It was one thing to compose a prayer that is acceptable to both Christians and Jews; it is much harder to compose a prayer that is also acceptable to followers of Eastern religions that are now well represented in this country. Many local clergy may find the project daunting, if not impossible, and some may feel that they cannot in good faith deliver such a vague prayer.      In addition, if a town attempts to go beyond simply recommending that a guest chaplain deliver a prayer that is broadly acceptable to all members of a particular community (and the groups represented in different communities will vary), the town will inevitably encounter sensitive problems. Must a town screen and, if necessary, edit prayers before they are given? If prescreening is not required, must the town review prayers after they are delivered in order to determine if they were sufficiently generic? And if a guest chaplain crosses the line, what must the town do? Must the chaplain be corrected on the spot? Must the town strike this chaplain (and perhaps his or her house of worship) from the approved list? B      If a town wants to avoid the problems associated with this first option, the principal dissent argues, it has another choice: It may “invit[e] clergy of many faiths.” Post, at 19. “When one month a clergy member refers to Jesus, and the next to Allah or Jehovah,” the principal dissent explains, “the government does not identify itself with one religion or align itself with that faith’s citizens, and the effect of even sectarian prayer is transformed.” Ibid.      If, as the principal dissent appears to concede, such a rotating system would obviate any constitutional problems, then despite all its high rhetoric, the principal dissent’s quarrel with the town of Greece really boils down to this: The town’s clerical employees did a bad job in compiling the list of potential guest chaplains. For that is really the only difference between what the town did and what the principal dissent is willing to accept. The Greece clerical employee drew up her list using the town directory instead of a directory covering the entire greater Rochester area. If the task of putting together the list had been handled in a more sophisticated way, the employee in charge would have realized that the town’s Jewish residents attended synagogues on the Rochester side of the border and would have added one or more synagogues to the list. But the mistake was at worst careless, and it was not done with a discriminatory intent. (I would view this case very differently if the omission of these synagogues were intentional.)      The informal, imprecise way in which the town lined up guest chaplains is typical of the way in which many things are done in small and medium-sized units of local government. In such places, the members of the governing body almost always have day jobs that occupy much of their time. The town almost never has a legal office and instead relies for legal advice on a local attorney whose practice is likely to center on such things as land-use regulation, contracts, and torts. When a municipality like the town of Greece seeks in good faith to emulate the congressional practice on which our holding in Marsh v. Chambers, 463 U. S. 783 (1983), was largely based, that municipality should not be held to have violated the Constitution sim-ply because its method of recruiting guest chaplains lacks the demographic exactitude that might be regarded as optimal.      The effect of requiring such exactitude would be to pressure towns to forswear altogether the practice of having a prayer before meetings of the town council. Many local officials, puzzled by our often puzzling Establishment Clause jurisprudence and terrified of the legal fees that may result from a lawsuit claiming a constitutional violation, already think that the safest course is to ensure that local government is a religion-free zone. Indeed, the Court of Appeals’ opinion in this case advised towns that constitutional difficulties “may well prompt municipalities to pause and think carefully before adopting legislative prayer.” 681 F. 3d, at 34. But if, as precedent and historic practice make clear (and the principal dissent concedes), prayer before a legislative session is not inherently inconsistent with the First Amendment, then a unit of local government should not be held to have violated the First Amendment simply because its procedure for lining up guest chaplains does not comply in all respects with what might be termed a “best practices” standard. III      While the principal dissent, in the end, would demand no more than a small modification in the procedure that the town of Greece initially followed, much of the rhetoric in that opinion sweeps more broadly. Indeed, the logical thrust of many of its arguments is that prayer is never permissible prior to meetings of local government legislative bodies. At Greece Town Board meetings, the principal dissent pointedly notes, ordinary citizens (and even children!) are often present. Post, at 10–11. The guest chaplains stand in front of the room facing the public. “[T]he setting is intimate,” and ordinary citizens are permitted to speak and to ask the board to address problems that have a direct effect on their lives. Post, at 11. The meetings are “occasions for ordinary citizens to engage with and petition their government, often on highly individualized matters.” Post, at 9. Before a session of this sort, the principal dissent argues, any prayer that is not acceptable to all in attendance is out of bounds.      The features of Greece meetings that the principal dissent highlights are by no means unusual.[ 4 ] It is common for residents to attend such meetings, either to speak on matters on the agenda or to request that the town address other issues that are important to them. Nor is there anything unusual about the occasional attendance of students, and when a prayer is given at the beginning of such a meeting, I expect that the chaplain generally stands at the front of the room and faces the public. To do otherwise would probably be seen by many as rude. Fi-nally, although the principal dissent, post, at 13, attaches importance to the fact that guest chaplains in the town of Greece often began with the words “Let us pray,” that is also commonplace and for many clergy, I suspect, almost reflexive.[ 5 ] In short, I see nothing out of the ordinary about any of the features that the principal dissent notes. Therefore, if prayer is not allowed at meetings with those characteristics, local government legislative bodies, unlike their national and state counterparts, cannot begin their meetings with a prayer. I see no sound basis for drawing such a distinction. IV      The principal dissent claims to accept the Court’s decision in Marsh v. Chambers, which upheld the constitutionality of the Nebraska Legislature’s practice of prayer at the beginning of legislative sessions, but the principal dissent’s acceptance of Marsh appears to be predicated on the view that the prayer at issue in that case was little more than a formality to which the legislators paid scant attention. The principal dissent describes this scene: A session of the state legislature begins with or without most members present; a strictly nonsectarian prayer is recited while some legislators remain seated; and few members of the public are exposed to the experience. Post, at 8–9. This sort of perfunctory and hidden-away prayer, the principal dissent implies, is all that Marsh and the First Amendment can tolerate.      It is questionable whether the principal dissent accurately describes the Nebraska practice at issue in Marsh,[ 6 ] but what is important is not so much what happened in Nebraska in the years prior to Marsh, but what happened before congressional sessions during the period leading up to the adoption of the First Amendment. By that time, prayer before legislative sessions already had an impressive pedigree, and it is important to recall that history and the events that led to the adoption of the practice.      The principal dissent paints a picture of “morning in Nebraska” circa 1983, see post, at 9, but it is more instructive to consider “morning in Philadelphia,” September 1774. The First Continental Congress convened in Philadelphia, and the need for the 13 colonies to unite was imperative. But “[m]any things set colony apart from colony,” and prominent among these sources of division was religion.[ 7 ] “Purely as a practical matter,” however, the project of bringing the colonies together required that these divisions be overcome.[ 8 ]      Samuel Adams sought to bridge these differences by prodding a fellow Massachusetts delegate to move to open the session with a prayer.[ 9 ] As John Adams later recounted, this motion was opposed on the ground that the dele-gates were “so divided in religious sentiments, some Episcopalians, some Quakers, some Anabaptists, somePresbyterians, and some Congregationalists, that [they] could not join in the same act of worship.”[ 10 ] In response, Samuel Adams proclaimed that “he was no bigot, and could hear a prayer from a gentleman of piety and virtue, who was at the same time a friend to his country.”[ 11 ] Putting aside his personal prejudices,[ 12 ] he moved to invite a local Anglican minister, Jacob Duché, to lead the first prayer.[ 13 ]      The following morning, Duché appeared in full “pontifi-cals” and delivered both the Anglican prayers for the day and an extemporaneous prayer.[ 14 ] For many of the delegates—members of religious groups that had come to America to escape persecution in Britain—listening to a distinctively Anglican prayer by a minister of the Church of England represented an act of notable ecumenism. But Duché’s prayer met with wide approval—John Adams wrote that it “filled the bosom of every man” in attendance[ 15 ]—and the practice was continued. This first congressional prayer was emphatically Christian, and it was neither an empty formality nor strictly nondenominational.[ 16 ] But one of its purposes, and presumably one of itseffects, was not to divide, but to unite.      It is no wonder, then, that the practice of beginning congressional sessions with a prayer was continued after the Revolution ended and the new Constitution was adopted. One of the first actions taken by the new Congress when it convened in 1789 was to appoint chaplains for both Houses. The first Senate chaplain, an Episcopa-lian, was appointed on April 25, 1789, and the first House chaplain, a Presbyterian, was appointed on May 1.[ 17 ] Three days later, Madison announced that he planned to introduce proposed constitutional amendments to protect individual rights; on June 8, 1789, those amendments were introduced; and on September 26, 1789, the amendments were approved to be sent to the States for ratification.[ 18 ] In the years since the adoption of the First Amendment, the practice of prayer before sessions of the House and Senate has continued, and opening prayers from a great variety of faith traditions have been offered.      This Court has often noted that actions taken by the First Congress are presumptively consistent with the Bill of Rights, see, e.g., Harmelin v. Michigan, 501 U. S. 957, 980 (1991) , Carroll v. United States, 267 U. S. 132 –152 (1925), and this principle has special force when it comes to the interpretation of the Establishment Clause. This Court has always purported to base its Establishment Clause decisions on the original meaning of that provision. Thus, in Marsh, when the Court was called upon to decide whether prayer prior to sessions of a state legislature was consistent with the Establishment Clause, we relied heavily on the history of prayer before sessions of Congress and held that a state legislature may follow a similar practice. See 463 U. S., at 786–792.      There can be little doubt that the decision in Marsh reflected the original understanding of the First Amendment. It is virtually inconceivable that the First Congress, having appointed chaplains whose responsibilities prominently included the delivery of prayers at the beginning of each daily session, thought that this practice was inconsistent with the Establishment Clause. And since this practice was well established and undoubtedly well known, it seems equally clear that the state legislatures that ratified the First Amendment had the same understanding. In the case before us, the Court of Appeals appeared to base its decision on one of the Establishment Clause “tests” set out in the opinions of this Court, see 681 F. 3d, at 26, 30, but if there is any inconsistency between any of those tests and the historic practice of legislative prayer, the inconsistency calls into question the validity of the test, not the historic practice. V      This brings me to my final point. I am troubled by the message that some readers may take from the principal dissent’s rhetoric and its highly imaginative hypotheticals. For example, the principal dissent conjures up the image of a litigant awaiting trial who is asked by the presiding judge to rise for a Christian prayer, of an official at a polling place who conveys the expectation that citizens wishing to vote make the sign of the cross before casting their ballots, and of an immigrant seeking naturalization who is asked to bow her head and recite a Christianprayer. Although I do not suggest that the implication is intentional, I am concerned that at least some readers will take these hypotheticals as a warning that this is where today’s decision leads—to a country in which religious minorities are denied the equal benefits of citizenship.      Nothing could be further from the truth. All that the Court does today is to allow a town to follow a practice that we have previously held is permissible for Congress and state legislatures. In seeming to suggest otherwise, the principal dissent goes far astray. Notes 1 See Assn. of Statisticians of Am. Religious Bodies, C. Grammich et al., 2010 U. S. Religion Census: Religious Congregations & Membership Study 400–401 (2012). 2 It appears that there is one non-Christian house of worship, a Buddhist temple, within the town’s borders, but it was not listed in the town directory. 732 F. Supp. 2d, at 203. Although located within the town’s borders, the temple has a Rochester mailing address. And while the respondents “each lived in the Town more than thirty years, neither was personally familiar with any mosques, synagogues, temples, or other non-Christian places of worship within the Town.” ., at 197. 3 For example, when a rabbi first delivered a prayer at a session of the House of Representatives in 1860, he appeared “in full rabbinic dress, ‘piously bedecked in a white tallit and a large velvet skullcap,’ ” and his prayer “invoked several uniquely Jewish themes and repeated the Biblical priestly blessing in Hebrew.” See Brief for Nathan Lewin as 9.Many other rabbis have given distinctively Jewish prayers, ., at 10, and n. 3, and distinctively Islamic, Buddhist, and Hindu prayers have also been delivered, see , at 10–11. 4 See, ., prayer practice of Saginaw City Council in Michigan, described in Letter from Freedom from Religion Foundation to City Manager, Saginaw City Council (Jan. 31, 2014), online at http://media.mlive.com / saginawnews_impact  / other  / Saginaw % 20prayer%20at%20meetings%20letter.pdf (all Internet materials as visited May 2, 2014, and available in Clerk of Court’s case file); prayer practice of Cobb County commissions in Georgia, described in v. 410 F. Supp. 2d 1324 (ND Ga. 2006). 5 For example, at the most recent Presidential inauguration, a minister faced the assembly of onlookers on the National Mall and began with those very words. 159 Cong. Rec. S183, S186 (Jan. 22, 2013). 6 See generally Brief for Robert E. Palmer as (Ne-braska Legislature chaplain at issue in ); , , at 11 (describing his prayers as routinely referring “to Christ, the Bible, [and] holy days”). See also v. , 504 F. Supp. 585, 590, n. 12 (Neb. 1980) (“A rule of the Nebraska Legislature requires that ‘every member shall be present within the Legislative Chamber during the meetings of the Legislature . . . unless excused . . . .’ Unless the excuse for nonattendance is deemed sufficient by the legislature, the ‘presence of any member may be compelled, if necessary, by sending the Sergeant at Arms’ ” (alterations in original)). 7 G. Wills, Inventing America: Jefferson’s Declaration of Independence 46 (1978). 8 N. Cousins, In God We Trust: The Religious Beliefs and Ideas of the American Founding Fathers 4–5, 13 (1958). 9 M. Puls, Samuel Adams: Father of the American Revolution 160 (2006). 10 Letter to Abigail Adams (Sept. 16, 1774), in C. Adams, Familiar Letters of John Adams and His Wife Abigail Adams, During the Revolution 37 (1876). 11 12 See G. Wills, , at 46; J. Miller, Sam Adams 85, 87 (1936); I. Stoll, Samuel Adams: A Life 7, 134–135 (2008). 13 C. Adams, , at 37. 14 15 ; see W. Wells, 2 The Life and Public Services of SamuelAdams 222–223 (1865); J. Miller, at 320; E. Burnett, The Continental Congress 40 (1941); M. Puls, , at 161. 16 First Prayer of the Continental Congress, 1774, online at http://chaplain.house.gov/archive/continental.html. 17 1 Annals of Cong. 24–25 (1789); R. Cord, Separation of Church and State: Historical Fact and Current Fiction 23 (1982). 18 1 Annals of Cong. 247, 424; R. Labunski, James Madison and the Struggle for the Bill of Rights 240–241 (2006). SUPREME COURT OF THE UNITED STATES _________________ No. 12–696 _________________ TOWN OF GREECE, NEW YORK, PETITIONER v.SUSAN GALLOWAY et al. on writ of certiorari to the united states court of appeals for the second circuit [May 5, 2014]      Justice Thomas, with whom Justice Scalia joins asto Part II, concurring in part and concurring in thejudgment.      Except for Part II–B, I join the opinion of the Court, which faithfully applies Marsh v. Chambers, 463 U. S. 783 (1983) . I write separately to reiterate my view that the Establishment Clause is “best understood as a federalism provision,” Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 50 (2004) (Thomas, J., concurring in judgment), and to state my understanding of the proper “coercion” analysis. I      The Establishment Clause provides that “Congress shall make no law respecting an establishment of religion.” U. S. Const., Amdt. 1. As I have explained before, the text and history of the Clause “resis[t] incorporation” against the States. Newdow, supra, at 45–46; see also Van Orden v. Perry, 545 U. S. 677 –693 (2005) (Thomas, J., concurring); Zelman v. Simmons-Harris, 536 U. S. 639 –680 (2002) (same). If the Establishment Clause is not incorporated, then it has no application here, where only municipal action is at issue.      As an initial matter, the Clause probably prohibits Congress from establishing a national religion. Cf. D. Drakeman, Church, State, and Original Intent 260–262 (2010). The text of the Clause also suggests that Congress “could not interfere with state establishments, notwithstanding any argument that could be made based on Congress’ power under the Necessary and Proper Clause.” Newdow, supra, at 50 (opinion of Thomas, J.). The language of the First Amendment (“Congress shall make no law”) “precisely tracked and inverted the exact wording” of the Necessary and Proper Clause (“Congress shall have power . . . to make all laws which shall be necessary and proper . . . ”), which was the subject of fierce criticism by Anti-Federalists at the time of ratification. A. Amar, The Bill of Rights 39 (1998) (hereinafter Amar); see also Natelson, The Framing and Adoption of the Necessary and Proper Clause, in The Origins of the Necessary and Proper Clause 84, 94–96 (G. Lawson, G. Miller, R. Natelson,& G. Seidman eds. 2010) (summarizing Anti-Federalist claims that the Necessary and Proper Clause would aggrandize the powers of the Federal Government). That choice of language—“Congress shall make no law”—effectively denied Congress any power to regulate state establishments.      Construing the Establishment Clause as a federalism provision accords with the variety of church-state arrangements that existed at the Founding. At least six States had established churches in 1789. Amar 32–33. New England States like Massachusetts, Connecticut, and New Hampshire maintained local-rule establishments whereby the majority in each town could select the minister and religious denomination (usually Congregationalism, or “Puritanism”). McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2110 (2003); see also L. Levy, The Establishment Clause: Religion and the First Amendment 29–51 (1994) (hereinafter Levy). In the South, Maryland, South Carolina, and Georgia eliminated their exclusive Anglican establishments following the American Revolution and adopted general establishments, which permitted taxation in support of all Christian churches (or, as in South Carolina, all Protestant churches). See Levy 52–58; Amar 32–33. Virginia, by contrast, had recently abolished its official state establishment and ended direct government funding of clergy after a legislative battle led by James Madison. See T. Buckley, Church and State in Revolutionary Virginia, 1776–1787, pp. 155–164 (1977). Other States—principally Rhode Island, Pennsylvania, and Delaware, which were founded by religious dissenters—had no history of formal establishments at all, although they still maintained religious tests for office. See McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1425–1426, 1430 (1990).      The import of this history is that the relationship between church and state in the fledgling Republic was far from settled at the time of ratification. See Muñoz, The Original Meaning of the Establishment Clause and the Impossibility of Its Incorporation, 8 U. Pa. J. Constitutional L. 585, 605 (2006). Although the remaining state establishments were ultimately dismantled—Massachusetts, the last State to disestablish, would do so in 1833, see Levy 42—that outcome was far from assured when the Bill of Rights was ratified in 1791. That lack of consensus suggests that the First Amendment was simply agnostic on the subject of state establishments; the decision to establish or disestablish religion was reserved to the States. Amar 41.      The Federalist logic of the original Establishment Clause poses a special barrier to its mechanical incorporation against the States through the Fourteenth Amendment. See id., at 33. Unlike the Free Exercise Clause, which “plainly protects individuals against congressional interference with the right to exercise their religion,” the Establishment Clause “does not purport to protect individual rights.” Newdow, 542 U. S., at 50 (opinion of Thomas, J.). Instead, the States are the particular beneficiaries of the Clause. Incorporation therefore gives rise to a paradoxical result: Applying the Clause against the States eliminates their right to establish a religion free from federal interference, thereby “prohibit[ing] exactly what the Establishment Clause protected.” Id., at 51; see Amar 33–34.      Put differently, the structural reasons that counsel against incorporating the Tenth Amendment also apply to the Establishment Clause. Id., at 34. To my knowledge, no court has ever suggested that the Tenth Amendment, which “reserve[s] to the States” powers not delegated to the Federal Government, could or should be applied against the States. To incorporate that limitation would be to divest the States of all powers not specifically delegated to them, thereby inverting the original import of the Amendment. Incorporating the Establishment Clause has precisely the same effect.      The most cogent argument in favor of incorporation may be that, by the time of Reconstruction, the framers of the Fourteenth Amendment had come to reinterpret the Establishment Clause (notwithstanding its Federalist origins) as expressing an individual right. On this question, historical evidence from the 1860’s is mixed. Congressmen who catalogued the personal rights protected by the First Amendment commonly referred to speech, press, petition, and assembly, but not to a personal right of nonestablishment; instead, they spoke only of “ ‘free exercise’ ” or “ ‘freedom of conscience.’ ” Amar 253, and 385, n. 91 (collecting sources). There may be reason to think these lists were abbreviated, and silence on the issue is not dispositive. See Lash, The Second Adoption of the Establishment Clause: The Rise of the Nonestablishment Principle, 27 Ariz. St. L. J. 1085, 1141–1145 (1995); but cf. S. Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom 50–52 (1995). Given the textual and logical difficulties posed by incorporation, however, there is no warrant for transforming the meaning of the Establishment Clause without a firm historical foundation. See Newdow, supra, at 51 (opinion of Thomas, J.). The burden of persuasion therefore rests with those who claim that the Clause assumed a different meaning upon adoption of the Fourteenth Amendment.[ 1 ] II      Even if the Establishment Clause were properly incorporated against the States, the municipal prayers at issue in this case bear no resemblance to the coercive state establishments that existed at the founding. “The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty.” Lee v. Weisman, 505 U. S. 577, 640 (1992) (Scalia, J., dissent-ing); see also Perry, 545 U. S., at 693–694 (Thomas, J., concurring); Cutter v. Wilkinson, 544 U. S. 709, 729 (2005) (Thomas, J., concurring); Newdow, supra, at 52 (opinion of Thomas, J.). In a typical case, attendance at the established church was mandatory, and taxes were levied to generate church revenue. McConnell, Establishment and Disestablishment, at 2144–2146, 2152–2159. Dissenting ministers were barred from preaching, and political participation was limited to members of the established church. Id., at 2161–2168, 2176–2180.      This is not to say that the state establishments in existence when the Bill of Rights was ratified were uniform. As previously noted, establishments in the South were typically governed through the state legislature or State Constitution, while establishments in New England were administered at the municipal level. See supra, at 2–3. Notwithstanding these variations, both state and local forms of establishment involved “actual legal coercion,” Newdow, supra, at 52 (opinion of Thomas, J.): They exercised government power in order to exact financial support of the church, compel religious observance, or control religious doctrine.      None of these founding-era state establishments remained at the time of Reconstruction. But even assuming that the framers of the Fourteenth Amendment reconceived the nature of the Establishment Clause as a constraint on the States, nothing in the history of the intervening period suggests a fundamental transformation in their understanding of what constituted an establishment. At a minimum, there is no support for the proposition that the framers of the Fourteenth Amendment embraced wholly modern notions that the Establishment Clause is violated whenever the “reasonable observer” feels “subtle pressure,” ante, at 18, 19, or perceives governmental “endors[ement],” ante, at 5–6. For example, of the 37 States in existence when the Fourteenth Amendment was rati-fied, 27 State Constitutions “contained an explicit reference to God in their preambles.” Calabresi & Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?, 87 Tex. L. Rev. 7, 12, 37 (2008). In addition to the preamble references, 30 State Constitutions contained other references to the divine, using such phrases as “ ‘Almighty God,’ ” “ ‘[O]ur Creator,’ ” and “ ‘Sovereign Ruler of the Universe.’ ” Id., at 37, 38, 39, n. 104. Moreover, the state constitutional provisions that prohibited religious “comp[ulsion]” made clear that the relevant sort of compulsion was legal in nature, of the same type that had characterized founding-era establishments.[ 2 ] These provisions strongly suggest that, whatever nonestablishment principles existed in 1868, they included no concern for the finer sensibilities of the “reasonable observer.”      Thus, to the extent coercion is relevant to the Establishment Clause analysis, it is actual legal coercion that counts—not the “subtle coercive pressures” allegedly felt by respondents in this case, ante, at 9. The majority properly concludes that “[o]ffense . . . does not equate to coercion,” since “[a]dults often encounter speech they find disagreeable[,] and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum.” Ante, at 21. I would simply add, in light of the foregoing history of the Establishment Clause, that “[p]eer pressure, unpleasant as it may be, is not coercion” either. Newdow, 542 U. S., at 49 (opinion of Thomas, J.). Notes 1 This Court has never squarely addressed these barriers to the incorporation of the Establishment Clause. When the issue was first presented in v. , , the Court casually asserted that “the [has been] interpreted to make the prohibitions of the First applicable to state action abridging religious freedom. There is every reason to give the same application and broad interpretation to the ‘establishment of religion’ clause.” , at 15 (footnote omitted). The cases the Court cited in support of that proposition involved the Free Exercise Clause—which had been incorporated seven years earlier, in v. , —not the Establishment Clause. 330 U. S., at 15, n. 22 (collecting cases). Thus, in the space of a single paragraph and a nonresponsive string citation, the Court glibly effected a sea change in constitutional law. The Court’s inattention to these doctrinal questions might be explained, although not excused, by the rise of popular conceptions about “separation of church and state” as an “American” constitutional right. See generally P. Hamburger, Separation of Church and State 454–463 (2002); see also at 391–454 (discussing the role of nativist sentiment in the campaign for “separation” as an American ideal). 2 See, , Del. Const., Art. I, §1 (1831) (“[N]o man shall, or ought to be compelled to attend any religious worship, to contribute to the erection or support of any place of worship, or to the maintenance of any ministry, against his own free will and consent”); Me. Const., Art. I, §3 (1820) (“[N]o one shall be hurt, molested or restrained in his person, liberty or estate, for worshiping God in the manner and season most agreeable to the dictates of his own conscience”); Mo. Const., Art. I, §10 (1865) (“[N]o person can be compelled to erect, support, or attend any place of worship, or maintain any minister of the Gospel or teacher of religion”); R. I. Const., Art. I, §3 (1842) (“[N]o man shall be compelled to frequent or to support any religious worship, place, or ministry what-ever, except in fulfillment of his own voluntary contract”); Vt. Const., Ch. I, §3 (1777) (“[N]o man ought, or of right can be compelled to attend any religious worship, or erect, or support any place of worship, or maintain any minister, contrary to the dictates of his conscience”). SUPREME COURT OF THE UNITED STATES _________________ No. 12–696 _________________ TOWN OF GREECE, NEW YORK, PETITIONER v.SUSAN GALLOWAY et al. on writ of certiorari to the united states court of appeals for the second circuit [May 5, 2014]      Justice Breyer, dissenting.      As we all recognize, this is a “fact-sensitive” case. Ante, at 19 (opinion of Kennedy, J.); see also post, at 20 (Kagan, J., dissenting); 681 F. 3d 20, 34 (CA2 2012) (explaining that the Court of Appeals’ holding follows from the “totality of the circumstances”). The Court of Appeals did not believe that the Constitution forbids legislative prayers that incorporate content associated with a particular denomination. Id., at 28. Rather, the court’s holding took that content into account simply because it indicated that the town had not followed a sufficiently inclusive “prayer-giver selection process.” Id., at 30. It also took into account related “actions (and inactions) of prayer-givers and town officials.” Ibid. Those actions and inactions included (1) a selection process that led to the selection of “clergy almost exclusively from places of worship located within the town’s borders,” despite the likelihood that significant numbers of town residents were members of congregations that gather just outside those borders; (2) a failure to “infor[m] members of the general public that volunteers” would be acceptable prayer givers; and (3) a failure to “infor[m] prayer-givers that invocations were not to be exploited as an effort to convert others to the partic-ular faith of the invocational speaker, nor to disparageany faith or belief different than that of the invoca-tional speaker.” Id., at 31–32 (internal quotation marks omitted).      The Court of Appeals further emphasized what it was not holding. It did not hold that “the town may not open its public meetings with a prayer,” or that “any prayers offered in this context must be blandly ‘nonsectarian.’ ” Id., at 33. In essence, the Court of Appeals merely held that the town must do more than it had previously done to try to make its prayer practices inclusive of other faiths. And it did not prescribe a single constitutionally required method for doing so.      In my view, the Court of Appeals’ conclusion and its reasoning are convincing. Justice Kagan’s dissent is consistent with that view, and I join it. I also here emphasize several factors that I believe underlie the conclusion that, on the particular facts of this case, the town’s prayer practice violated the Establishment Clause.      First, Greece is a predominantly Christian town, but it is not exclusively so. A map of the town’s houses of worship introduced in the District Court shows many Christian churches within the town’s limits. It also shows a Buddhist temple within the town and several Jewish synagogues just outside its borders, in the adjacent city of Rochester, New York. Id., at 24. Yet during the more than 120 monthly meetings at which prayers were delivered during the record period (from 1999 to 2010), only four prayers were delivered by non-Christians. And all of these occurred in 2008, shortly after the plaintiffs began complaining about the town’s Christian prayer practice and nearly a decade after that practice had commenced. See post, at 14, 21.      To be precise: During 2008, two prayers were delivered by a Jewish layman, one by the chairman of a Baha’i congregation, and one by a Wiccan priestess. The Jewish and Wiccan prayer givers were invited only after they reached out to the town to inquire about giving an invoca-tion. The town apparently invited the Baha’i chairman on its own initiative. The inclusivity of the 2008 meetings, which contrasts starkly with the exclusively single-denomination prayers every year before and after, is commendable. But the Court of Appeals reasonably de-cided not to give controlling weight to that inclusivity, for it arose only in response to the complaints that presaged this litigation, and it did not continue into the following years.      Second,      the town made no significant effort to inform the area’s non-Christian houses of worship about the possibility of delivering an opening prayer. See post, at 21. Beginning in 1999, when it instituted its practice of opening its monthly board meetings with prayer, Greece selected prayer givers as follows: Initially, the town’s employees invited clergy from each religious organization listed in a “Community Guide” published by the Greece Chamber of Commerce. After that, the town kept a list of clergy who had accepted invitations and reinvited those clergy to give prayers at future meetings. From time to time, the town supplemented this list in response to requests from citizens and to new additions to the Community Guide and a town newspaper called the Greece Post.      The plaintiffs do not argue that the town intentionally discriminated against non-Christians when choosing whom to invite, 681 F. 3d, at 26, and the town claims, plausibly, that it would have allowed anyone who asked to give an invocation to do so. Rather, the evident reasons why the town consistently chose Christian prayer givers are that the Buddhist and Jewish temples mentioned above were not listed in the Community Guide or the Greece Post and that the town limited its list of clergy almost exclusively to representatives of houses of worship situated within Greece’s town limits (again, the Buddhist temple on the map was within those limits, but the synagogues were just outside them). Id., at 24, 31.      Third, in this context, the fact that nearly all of the prayers given reflected a single denomination takes on significance. That significance would have been the same had all the prayers been Jewish, or Hindu, or Buddhist, or of any other denomination. The significance is that, in a context where religious minorities exist and where more could easily have been done to include their participation, the town chose to do nothing. It could, for example, have posted its policy of permitting anyone to give an invocation on its website, greeceny.gov, which provides dates and times of upcoming town board meetings along with minutes of prior meetings. It could have announced inclusive policies at the beginning of its board meetings, just before introducing the month’s prayer giver. It could have provided information to those houses of worship of all faiths that lie just outside its borders and include citizens of Greece among their members. Given that the town could easily have made these or similar efforts but chose not to, the fact that all of the prayers (aside from the 2008 outliers) were given by adherents of a single religion reflects a lack of effort to include others. And that is what I take to be a major point of Justice Kagan’s related discussion. See post, at 2–4, 9, 14–15, 21–23.      Fourth, the fact that the board meeting audience included citizens with business to conduct also contributes to the importance of making more of an effort to include members of other denominations. It does not, however, automatically change the nature of the meeting from one where an opening prayer is permissible under the Establishment Clause to one where it is not. Cf. post, at 8–14, 16–17, 20.      Fifth, it is not normally government’s place to rewrite, to parse, or to critique the language of particular prayers. And it is always possible that members of one religious group will find that prayers of other groups (or perhaps even a moment of silence) are not compatible with their faith. Despite this risk, the Constitution does not forbid opening prayers. But neither does the Constitution forbid efforts to explain to those who give the prayers the nature of the occasion and the audience.      The U. S. House of Representatives, for example, provides its guest chaplains with the following guidelines, which are designed to encourage the sorts of prayer that are consistent with the purpose of an invocation for a government body in a religiously pluralistic Nation: “The guest chaplain should keep in mind that the House of Representatives is comprised of Members of many different faith traditions. “The length of the prayer should not exceed 150 words. “The prayer must be free from personal political views or partisan politics, from sectarian controversies, and from any intimations pertaining to foreign or domestic policy.” App. to Brief for Respondents 2a. The town made no effort to promote a similarly inclusive prayer practice here. See post, at 21–22.      As both the Court and Justice Kagan point out, we are a Nation of many religions. Ante, at 10–11; post, at 1–2, 18. And the Constitution’s Religion Clauses seek to “protec[t] the Nation’s social fabric from religious conflict.” Zelman v. Simmons-Harris, 536 U. S. 639, 717 (2002) (Breyer, J., dissenting). The question in this case is whether the prayer practice of the town of Greece, by doing too little to reflect the religious diversity of its citizens, did too much, even if unintentionally, to promote the “political division along religious lines” that “was one of the principal evils against which the First Amendment was intended to protect.” Lemon v. Kurtzman, 403 U. S. 602, 622 (1971) .      In seeking an answer to that fact-sensitive question, “I see no test-related substitute for the exercise of legal judgment.” Van Orden v. Perry, 545 U. S. 677, 700 (2005) (Breyer, J., concurring in judgment). Having applied my legal judgment to the relevant facts, I conclude, like Justice Kagan, that the town of Greece failed to make reasonable efforts to include prayer givers of minority faiths, with the result that, although it is a community of several faiths, its prayer givers were almost exclusively persons of a single faith. Under these circumstances, I would affirm the judgment of the Court of Appeals that Greece’s prayer practice violated the Establishment Clause.      I dissent from the Court’s decision to the contrary. SUPREME COURT OF THE UNITED STATES _________________ No. 12–696 _________________ TOWN OF GREECE, NEW YORK, PETITIONER v.SUSAN GALLOWAY et al. on writ of certiorari to the united states court of appeals for the second circuit [May 5, 2014]      Justice Kagan, with whom Justice Ginsburg, Jus-tice Breyer, and Justice Sotomayor join, dissenting.      For centuries now, people have come to this country from every corner of the world to share in the blessing of religious freedom. Our Constitution promises that they may worship in their own way, without fear of penalty or danger, and that in itself is a momentous offering. Yet our Constitution makes a commitment still more remarkable—that however those individuals worship, they will countas full and equal American citizens. A Christian, a Jew,a Muslim (and so forth)—each stands in the same re-lationship with her country, with her state and localcommunities, and with every level and body of government. So that when each person performs the duties or seeks the benefits of citizenship, she does so not as an adherent to one or another religion, but simply as an American.      I respectfully dissent from the Court’s opinion because I think the Town of Greece’s prayer practices violate that norm of religious equality—the breathtakingly generous constitutional idea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian. I do not contend that principle translates here into a bright separationist line. To the contrary, I agree with the Court’s decision in Marsh v. Chambers, 463 U. S. 783 (1983) , upholding the Nebraska Legislature’s tra-dition of beginning each session with a chaplain’s prayer. And I believe that pluralism and inclusion in a town hall can satisfy the constitutional requirement of neutrality; such a forum need not become a religion-free zone. But still, the Town of Greece should lose this case. The practice at issue here differs from the one sustained in Marsh because Greece’s town meetings involve participation by ordinary citizens, and the invocations given—directly to those citizens—were predominantly sectarian in content. Still more, Greece’s Board did nothing to recognize religious diversity: In arranging for clergy members to open each meeting, the Town never sought (except briefly when this suit was filed) to involve, accommodate, or in any way reach out to adherents of non-Christian religions. So month in and month out for over a decade, prayers steeped in only one faith, addressed toward members of the public, commenced meetings to discuss local affairs and distribute government benefits. In my view, that practice does not square with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government. I      To begin to see what has gone wrong in the Town of Greece, consider several hypothetical scenarios in which sectarian prayer—taken straight from this case’s record—infuses governmental activities. None involves, as this case does, a proceeding that could be characterized as a legislative session, but they are useful to elaborate some general principles. In each instance, assume (as was true in Greece) that the invocation is given pursuant to government policy and is representative of the prayers generally offered in the designated setting: You are a party in a case going to trial; let’s say you have filed suit against the government for violating one of your legal rights. The judge bangs his gavel to call the court to order, asks a minister to come to the front of the room, and instructs the 10 or so individuals present to rise for an opening prayer. The clergyman faces those in attendance and says: “Lord, God of all creation, . . . . We acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength . . . from his resurrection at Easter. Jesus Christ, who took away the sins of the world, destroyed our death, through his dying and in his rising, he has restored our life. Blessed are you, who has raised up the Lord Jesus, you who will raise us, in our turn, and put us by His side. . . . Amen.” App. 88a–89a. The judge then asks your lawyer to begin the trial. It’s election day, and you head over to your local polling place to vote. As you and others wait to give your names and receive your ballots, an election official asks everyone there to join him in prayer. He says: “We pray this [day] for the guidance of the Holy Spirit as [we vote] . . . . Let’s just say the Our Father together. ‘Our Father, who art in Heaven, hallowed be thy name; thy King-dom come, thy will be done, on earth as it is in Heaven. . . .’ ” Id., at 56a. And after he concludes, he makes the sign of the cross, and appears to wait expectantly for you and the other prospective voters to do so too. You are an immigrant attending a naturalization ceremony to finally become a citizen. The presiding official tells you and your fellow applicants that before administering the oath of allegiance, he would like a minister to pray for you and with you. The pastor steps to the front of the room, asks everyone to bow their heads, and recites: “[F]ather, son, and Holy Spirit—it is with a due sense of reverence and awe that we come before you [today] seeking your blessing . . . . You are . . . a wise God, oh Lord, . . . as evidenced even in the plan of redemption that is fulfilled in Jesus Christ. We ask that you would give freely and abundantly wisdom to one and to all. . . in the name of the Lord and Savior Jesus Christ, who lives with you and the Holy Spirit, one God for ever and ever. Amen.” Id., at 99a–100a. I would hold that the government officials responsible for the above practices—that is, for prayer repeatedly invoking a single religion’s beliefs in these settings—crossed a constitutional line. I have every confidence the Court would agree. See ante, at 13 (Alito, J., concurring). And even Greece’s attorney conceded that something like the first hypothetical (he was not asked about the others) would violate the First Amendment. See Tr. of Oral Arg. 3–4. Why?      The reason, of course, has nothing to do with Christian-ity as such. This opinion is full of Christian prayers, be-cause those were the only invocations offered in the Town of Greece. But if my hypotheticals involved the prayer of some other religion, the outcome would be exactly the same. Suppose, for example, that government officials in a predominantly Jewish community asked a rabbi to begin all public functions with a chanting of the Sh’ma and V’ahavta. (“Hear O Israel! The Lord our God, the Lord is One. . . . Bind [these words] as a sign upon your hand; let them be a symbol before your eyes; inscribe them on the doorposts of your house, and on your gates.”) Or assume officials in a mostly Muslim town requested a muezzin to commence such functions, over and over again, with a recitation of the Adhan. (“God is greatest, God is greatest. I bear witness that there is no deity but God. I bear witness that Muhammed is the Messenger of God.”) In any instance, the question would be why such government-sponsored prayer of a single religion goes beyond the constitutional pale.      One glaring problem is that the government in all these hypotheticals has aligned itself with, and placed its imprimatur on, a particular religious creed. “The clearest command of the Establishment Clause,” this Court has held, “is that one religious denomination cannot be offi-cially preferred over another.” Larson v. Valente, 456 U. S. 228, 244 (1982) . Justices have often differed about a further issue: whether and how the Clause applies to governmental policies favoring religion (of all kinds) over non-religion. Compare, e.g., McCreary County v. American Civil Liberties Union of Ky., 545 U. S. 844, 860 (2005) (“[T]he First Amendment mandates governmental neutrality between . . . religion and nonreligion”), with, e.g., id., at 885 (Scalia, J., dissenting) (“[T]he Court’s oft repeated assertion that the government cannot favor religious practice [generally] is false”). But no one has disagreed with this much: “[O]ur constitutional tradition, from the Declaration of Independence and the first inaugural address of Washington . . . down to the present day, has . . . ruled out of order government-sponsored endorsement of religion . . . where the endorsement is sectarian, in the sense of specifying details upon which men and women who believe in a benevolent, omnipotent Creatorand Ruler of the world are known to differ (for example, the divinity of Christ).” Lee v. Weisman, 505 U. S. 577, 641 (1992) (Scalia, J., dissenting). See also County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573 (1989) (“Whatever else the Establishment Clause may mean[,] . . . [it] means at the very least that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions)”).[ 1 ] By authorizing and overseeing prayersassociated with a single religion—to the exclusion of all others—the government officials in my hypotheticalcases (whether federal, state, or local does not matter) have violated that foundational principle. They have em-barked on a course of religious favoritism anathema to the First Amendment.      And making matters still worse: They have done so in a place where individuals come to interact with, and partici-pate in, the institutions and processes of their government. A person goes to court, to the polls, to a naturalization ceremony—and a government official or his hand-picked minister asks her, as the first order of officialbusiness, to stand and pray with others in a way conflicting with her own religious beliefs. Perhaps she feels suffi-cient pressure to go along—to rise, bow her head, and join in whatever others are saying: After all, she wants,very badly, what the judge or poll worker or immigration official has to offer. Or perhaps she is made of stronger mettle, and she opts not to participate in what she does not believe—indeed, what would, for her, be something like blasphemy. She then must make known her dissent from the common religious view, and place herself apart from other citizens, as well as from the officials responsible for the invocations. And so a civic function of some kind brings religious differences to the fore: That public proceeding becomes (whether intentionally or not) an instrument for dividing her from adherents to the community’s majority religion, and for altering the very nature of her relationship with her government.      That is not the country we are, because that is not what our Constitution permits. Here, when a citizen stands before her government, whether to perform a service or request a benefit, her religious beliefs do not enter into the picture. See Thomas Jefferson, Virginia Act for Establishing Religious Freedom (Oct. 31, 1785), in 5 The Founders’ Constitution 85 (P. Kurland & R. Lerner eds. 1987) (“[O]pinion[s] in matters of religion . . . shall in no wise diminish, enlarge, or affect [our] civil capacities”). The government she faces favors no particular religion, either by word or by deed. And that government, in its various processes and proceedings, imposes no religious tests on its citizens, sorts none of them by faith, and permits no exclusion based on belief. When a person goes to court, a polling place, or an immigration proceeding—I could go on: to a zoning agency, a parole board hearing, or the DMV—government officials do not engage in sectarian worship, nor do they ask her to do likewise. They all participate in the business of government not as Christians, Jews, Muslims (and more), but only as Americans—none of them different from any other for that civic purpose. Why not, then, at a town meeting? II      In both Greece’s and the majority’s view, everything I have discussed is irrelevant here because this case involves “the tradition of legislative prayer outlined” in Marsh v. Chambers, 463 U. S. 783 . Ante, at 10. And before I dispute the Town and Court, I want to give them their due: They are right that, under Marsh, legislative prayer has a distinctive constitutional warrant by virtue of tradition. As the Court today describes, a long history, stretching back to the first session of Congress (when chaplains began to give prayers in both Chambers), “ha[s] shown that prayer in this limited context could ‘coexis[t] with the principles of disestablishment and religious freedom.’ ” Ante, at 10 (quoting Marsh, 463 U. S., at 786). Relying on that “unbroken” national tradition, Marsh upheld (I think correctly) the Nebraska Legislature’s practice of opening each day with a chaplain’s prayer as “a tolerable acknowledgment of beliefs widely held among the people of this country.” Id., at 792. And so I agree with the majority that the issue here is “whether the prayer practice in the Town of Greece fits within the tradition long followed in Congress and the state legislatures.” Ante, at 9.      Where I depart from the majority is in my reply to that question. The town hall here is a kind of hybrid. Greece’s Board indeed has legislative functions, as Congress and state assemblies do—and that means some opening prayers are allowed there. But much as in my hypotheticals, the Board’s meetings are also occasions for ordinary citizens to engage with and petition their government, often on highly individualized matters. That feature calls for Board members to exercise special care to ensure that the prayers offered are inclusive—that they respect each and every member of the community as an equal citizen.[ 2 ] But the Board, and the clergy members it selected, made no such effort. Instead, the prayers given in Greece, addressed directly to the Town’s citizenry, were more sectarian, and less inclusive, than anything this Court sustained in Marsh. For those reasons, the prayer in Greece departs from the legislative tradition that the majority takes as its benchmark. A      Start by comparing two pictures, drawn precisely from reality. The first is of Nebraska’s (unicameral) Legislature, as this Court and the state senators themselves described it. The second is of town council meetings in Greece, as revealed in this case’s record.      It is morning in Nebraska, and senators are beginning to gather in the State’s legislative chamber: It is the beginning of the official workday, although senators may not yet need to be on the floor. See Chambers v. Marsh, 504 F. Supp. 585, 590, and n. 12 (D. Neb. 1980); Lee, 505 U. S., at 597. The chaplain rises to give the daily invocation. That prayer, as the senators emphasized when their case came to this Court, is “directed only at the legislative membership, not at the public at large.” Brief for Petitioners in Marsh 30. Any members of the public who happen to be in attendance—not very many at this early hour—watch only from the upstairs visitors’ gallery. See App. 72 in Marsh (senator’s testimony that “as a practical matter the public usually is not there” during the prayer).      The longtime chaplain says something like the following (the excerpt is from his own amicus brief supporting Greece in this case): “O God, who has given all persons talents and varying capacities, Thou dost only require of us that we utilize Thy gifts to a maximum. In this Legislature to which Thou has entrusted special abilities and opportunities, may each recognize his stewardship for the people of the State.” Brief for Robert E. Palmer 9. The chaplain is a Presbyterian minister, and “some of his earlier prayers” explicitly invoked Christian beliefs, but he “removed all references to Christ” after a single legislator complained. Marsh, 463 U. S., at 793, n. 14; Brief for Petitioners in Marsh 12. The chaplain also previously invited other clergy members to give the invocation, including local rabbis. See ibid.      Now change the channel: It is evening in Greece, New York, and the Supervisor of the Town Board calls its monthly public meeting to order. Those meetings (so says the Board itself) are “the most important part of Town government.” See Town of Greece, Town Board, online at http://greeceny.gov/planning/townboard (as visited May 2, 2014 and available in Clerk of Court’s case file). They serve assorted functions, almost all actively involving members of the public. The Board may swear in new Town employees and hand out awards for civic accomplishments; it always provides an opportunity (called a Public Forum) for citizens to address local issues and ask for improved services or new policies (for example, better accommodations for the disabled or actions to ameliorate traffic congestion, see Pl. Exhs. 718, 755, in No. 6:08–cv–6088 (WDNY)); and it usually hears debate on individ-ual applications from residents and local businesses to obtain special land-use permits, zoning variances, or other licenses.      The Town Supervisor, Town Clerk, Chief of Police, and four Board members sit at the front of the meeting room on a raised dais. But the setting is intimate: There are likely to be only 10 or so citizens in attendance. A few may be children or teenagers, present to receive an award or fulfill a high school civics requirement.      As the first order of business, the Town Supervisor introduces a local Christian clergy member—denominated the chaplain of the month—to lead the assembled persons in prayer. The pastor steps up to a lectern (emblazoned with the Town’s seal) at the front of the dais, and with his back to the Town officials, he faces the citizens present. He asks them all to stand and to “pray as we begin this evening’s town meeting.” App. 134a. (He does not suggest that anyone should feel free not to participate.) And he says: “The beauties of spring . . . are an expressive symbol of the new life of the risen Christ. The Holy Spirit was sent to the apostles at Pentecost so that they would be courageous witnesses of the Good News to different regions of the Mediterranean world and beyond. The Holy Spirit continues to be the inspiration and the source of strength and virtue, which we all need in the world of today. And so . . . [w]e pray this evening for the guidance of the Holy Spirit as the Greece Town Board meets.” Ibid. After the pastor concludes, Town officials behind him make the sign of the cross, as do some members of the audience, and everyone says “Amen.” See 681 F. 3d 20, 24 (CA2 2012). The Supervisor then announces the start of the Public Forum, and a citizen stands up to complain about the Town’s contract with a cable company. See App. in No. 10–3635 (CA2), p. A574. B      Let’s count the ways in which these pictures diverge. First, the governmental proceedings at which the prayers occur differ significantly in nature and purpose. The Nebraska Legislature’s floor sessions—like those of the U. S. Congress and other state assemblies—are of, by, and for elected lawmakers. Members of the public take no part in those proceedings; any few who attend are spectators only, watching from a high-up visitors’ gallery. (In that respect, note that neither the Nebraska Legislature nor the Congress calls for prayer when citizens themselves participate in a hearing—say, by giving testimony relevant to a bill or nomination.) Greece’s town meetings, by contrast, revolve around ordinary members of the community. Each and every aspect of those sessions provides opportunities for Town residents to interact with public officials. And the most important parts enable those citizens to petition their government. In the Public Forum, they urge (or oppose) changes in the Board’s policies and priorities; and then, in what are essentially adjudicatory hearings, they request the Board to grant (or deny) applications for various permits, licenses, and zoning variances. So the meetings, both by design and in operation, allow citizens to actively participate in the Town’s governance—sharing concerns, airing grievances, andboth shaping the community’s policies and seeking their benefits.      Second (and following from what I just said), the prayers in these two settings have different audiences. In the Nebraska Legislature, the chaplain spoke to, and only to, the elected representatives. Nebraska’s senators were adamant on that point in briefing Marsh, and the facts fully supported them: As the senators stated, “[t]he activ-ity is a matter of internal daily procedure directed only at the legislative membership, not at [members of] the public.” Brief for Petitioners in Marsh 30; see Reply Brief for Petitioners in Marsh 8 (“The [prayer] practice involves no function or power of government vis-à-vis the Nebraska citizenry, but merely concerns an internal decision of the Nebraska Legislature as to the daily procedure by which it conducts its own affairs”). The same is true in the U. S. Congress and, I suspect, in every other state legislature. See Brief for Members of Congress as Amici Curiae 6 (“Consistent with the fact that attending citizens are mere passive observers, prayers in the House are delivered for the Representatives themselves, not those citizens”). As several Justices later noted (and the majority today agrees, see ante, at 19–20),[ 3 ] Marsh involved “government officials invok[ing] spiritual inspiration entirely for their own benefit without directing any religious message at the citizens they lead.” Lee, 505 U. S., at 630, n. 8 (Souter, J., concurring).      The very opposite is true in Greece: Contrary to the majority’s characterization, see ante, at 19–20, the prayers there are directed squarely at the citizens. Remember that the chaplain of the month stands with his back to the Town Board; his real audience is the group he is facing—the 10 or so members of the public, perhaps including children. See supra, at 10. And he typically addresses those people, as even the majority observes, as though he is “directing [his] congregation.” Ante, at 21. He almost always begins with some version of “Let us all pray together.” See, e.g., App. 75a, 93a, 106a, 109a. Often, he calls on everyone to stand and bow their heads, and he may ask them to recite a common prayer with him. See, e.g., id., at 28a, 42a, 43a, 56a, 77a. He refers, constantly, to a collective “we”—to “our” savior, for example, to the presence of the Holy Spirit in “our” lives, or to “our brother the Lord Jesus Christ.” See, e.g., id., at 32a, 45a, 47a, 69a, 71a. In essence, the chaplain leads, as the first part of a town meeting, a highly intimate (albeit relatively brief) prayer service, with the public serving as his congregation.      And third, the prayers themselves differ in their content and character. Marsh characterized the prayers in the Nebraska Legislature as “in the Judeo-Christian tradition,” and stated, as a relevant (even if not dispositive) part of its analysis, that the chaplain had removed all explicitly Christian references at a senator’s request. 463 U. S., at 793, n. 14. And as the majority acknowledges, see ante, at 12, Marsh hinged on the view that “that the prayer opportunity ha[d] [not] been exploited to proselytize or advance any one . . . faith or belief”; had it been otherwise, the Court would have reached a different decision. 463 U. S., at 794–795.      But no one can fairly read the prayers from Greece’s Town meetings as anything other than explicitly Christian—constantly and exclusively so. From the time Greece established its prayer practice in 1999 until litigation loomed nine years later, all of its monthly chaplains were Christian clergy. And after a brief spell surrounding the filing of this suit (when a Jewish layman, a Wiccan priestess, and a Baha’i minister appeared at meetings), the Town resumed its practice of inviting only clergy from neighboring Protestant and Catholic churches. See App. 129a–143a. About two-thirds of the prayers given over this decade or so invoked “Jesus,” “Christ,” “Your Son,” or “the Holy Spirit”; in the 18 months before the record closed, 85% included those references. See generally id., at 27a–143a. Many prayers contained elaborations of Christian doctrine or recitations of scripture. See, e.g., id., at 129a (“And in the life and death, resurrection and ascension of the Savior Jesus Christ, the full extent of your kindness shown to the unworthy is forever demonstrated”); id., at 94a (“For unto us a child is born; unto us a son is given. And the government shall be upon his shoulder . . .”). And the prayers usually close with phrases like “in the name of Jesus Christ” or “in the name of Your son.” See, e.g., id., at 55a, 65a, 73a, 85a.      Still more, the prayers betray no understanding that the American community is today, as it long has been, a rich mosaic of religious faiths. See Braunfeld v. Brown, 366 U. S. 599, 606 (1961) (plurality opinion) (recognizing even half a century ago that “we are a cosmopolitan nation made up of people of almost every conceivable religious preference”). The monthly chaplains appear almost always to assume that everyone in the room is Christian (and of a kind who has no objection to government-sponsored worship[ 4 ]). The Town itself has never urged its chaplains to reach out to members of other faiths, or even to recall that they might be present. And accordingly, few chaplains have made any effort to be inclusive; none has thought even to assure attending members of the public that they need not participate in the prayer session. Indeed, as the majority forthrightly recognizes, see ante, at 17, when the plaintiffs here began to voice concern over prayers that excluded some Town residents, one pastor pointedly thanked the Board “[o]n behalf of all God-fearing people” for holding fast, and another declared the objectors “in the minority and . . . ignorant of the history of our country.” App. 137a, 108a. C      Those three differences, taken together, remove this case from the protective ambit of Marsh and the history on which it relied. To recap: Marsh upheld prayer addressed to legislators alone, in a proceeding in which citizens had no role—and even then, only when it did not “proselytize or advance” any single religion. 463 U. S., at 794. It was that legislative prayer practice (not every prayer in a body exercising any legislative function) that the Court found constitutional given its “unambiguous and unbroken history.” Id., at 792. But that approved practice, as I have shown, is not Greece’s. None of the history Marsh cited—and none the majority details today—supports calling on citizens to pray, in a manner consonant with only a single religion’s beliefs, at a participatory public proceeding, having both legislative and adjudicative components. Or to use the majority’s phrase, no “history shows that th[is] specific practice is permitted.” Ante, at 8. And so, contra the majority, Greece’s prayers cannot simply ride on the constitutional coattails of the legislative tradition Marsh described. The Board’s practice must, in its own particulars, meet constitutional requirements.      And the guideposts for addressing that inquiry include the principles of religious neutrality I discussed earlier. See supra, at 4–8. The government (whether federal, state, or local) may not favor, or align itself with, any particular creed. And that is nowhere more true than when officials and citizens come face to face in their shared institutions of governance. In performing civic functions and seeking civic benefits, each person of this nation must experience a government that belongs to one and all, irrespective of belief. And for its part, each government must ensure that its participatory processes will not classify those citizens by faith, or make relevant their religious differences.      To decide how Greece fares on that score, think again about how its prayer practice works, meeting after meeting. The case, I think, has a fair bit in common with my earlier hypotheticals. See supra, at 2–4, 7. Let’s say that a Muslim citizen of Greece goes before the Board to share her views on policy or request some permit. Maybe she wants the Board to put up a traffic light at a dangerous intersection; or maybe she needs a zoning variance to build an addition on her home. But just before she gets to say her piece, a minister deputized by the Town asks her to pray “in the name of God’s only son Jesus Christ.” App. 99a. She must think—it is hardly paranoia, but only the truth—that Christian worship has become entwined with local governance. And now she faces a choice—to pray alongside the majority as one of that group or somehow to register her deeply felt difference. She is a strong person, but that is no easy call—especially given that the room is small and her every action (or inaction) will be noticed. She does not wish to be rude to her neighbors, nor does she wish to aggravate the Board members whom she will soon be trying to persuade. And yet she does not want to acknowledge Christ’s divinity, any more than many of her neighbors would want to deny that tenet. So assume she declines to participate with the others in the first act of the meeting—or even, as the majority proposes, that she stands up and leaves the room altogether, see ante, at 21. At the least, she becomes a different kind of citizen, one who will not join in the religious practice that the Town Board has chosen as reflecting its own and the community’s most cherished beliefs. And she thus stands at a remove, based solely on religion, from her fellow citizens and her elected representatives.      Everything about that situation, I think, infringes the First Amendment. (And of course, as I noted earlier, it would do so no less if the Town’s clergy always used the liturgy of some other religion. See supra, at 4–5.) That the Town Board selects, month after month and year after year, prayergivers who will reliably speak in the voice of Christianity, and so places itself behind a single creed. That in offering those sectarian prayers, the Board’s chosen clergy members repeatedly call on individuals, prior to participating in local governance, to join in a form of worship that may be at odds with their own beliefs. That the clergy thus put some residents to the unenviable choice of either pretending to pray like the majority or declining to join its communal activity, at the very moment of petitioning their elected leaders. That the practice thus divides the citizenry, creating one class that shares the Board’s own evident religious beliefs and another (far smaller) class that does not. And that the practice also alters a dissenting citizen’s relationship with her government, making her religious difference salient when she seeks only to engage her elected representatives as would any other citizen.      None of this means that Greece’s town hall must be religion- or prayer-free. “[W]e are a religious people,” Marsh observed, 463 U. S., at 792, and prayer draws some warrant from tradition in a town hall, as well as in Congress or a state legislature, see supra, at 8–9. What the circumstances here demand is the recognition that we are a pluralistic people too. When citizens of all faiths cometo speak to each other and their elected representativesin a legislative session, the government must take espe-cial care to ensure that the prayers they hear will seekto include, rather than serve to divide. No more isrequired—but that much is crucial—to treat every citizen, of whatever religion, as an equal participant in hergovernment.      And contrary to the majority’s (and Justice Alito’s) view, see ante, at 13–14; ante, at 4–7, that is not difficult to do. If the Town Board had let its chaplains know that they should speak in nonsectarian terms, common to diverse religious groups, then no one would have valid grounds for complaint. See Joyner v. Forsyth County, 653 F. 3d 341, 347 (CA4 2011) (Wilkinson, J.) (Such prayers show that “those of different creeds are in the end kindred spirits, united by a respect paid higher providence and by a belief in the importance of religious faith”). Priests and ministers, rabbis and imams give such invocations all the time; there is no great mystery to the project. (And providing that guidance would hardly have caused the Board to run afoul of the idea that “[t]he First Amendment is not a majority rule,” as the Court (headspinningly) suggests, ante, at 14; what does that is the Board’s refusal to reach out to members of minority religious groups.) Or if the Board preferred, it might have invited clergy of many faiths to serve as chaplains, as the majority notes that Congress does. See ante, at 10–11. When one month a clergy member refers to Jesus, and the next to Allah or Jehovah—as the majority hopefully though counterfactually suggests happened here, see ante, at 10–11, 15—the government does not identify itself with one religion or align itself with that faith’s citizens, and the effect of even sectarian prayer is transformed. So Greece had multiple ways of incorporating prayer into its town meetings—reflecting all the ways that prayer (as most of us know from daily life) can forge common bonds, rather than divide. See also ante, at 4 (Breyer, J., dissenting).      But Greece could not do what it did: infuse a participatory government body with one (and only one) faith, so that month in and month out, the citizens appearing before it become partly defined by their creed—as those who share, and those who do not, the community’s major-ity religious belief. In this country, when citizens go before the government, they go not as Christians or Muslims or Jews (or what have you), but just as Americans (or here, as Grecians). That is what it means to be an equal citizen, irrespective of religion. And that is what the Town of Greece precluded by so identifying itself with a single faith. III      How, then, does the majority go so far astray, allowing the Town of Greece to turn its assemblies for citizens into a forum for Christian prayer? The answer does not lie in first principles: I have no doubt that every member of this Court believes as firmly as I that our institutions of government belong equally to all, regardless of faith. Rather, the error reflects two kinds of blindness. First, the major-ity misapprehends the facts of this case, as distinct from those characterizing traditional legislative prayer. And second, the majority misjudges the essential meaning of the religious worship in Greece’s town hall, along with its capacity to exclude and divide.      The facts here matter to the constitutional issue; in-deed, the majority itself acknowledges that the requisite inquiry—a “fact-sensitive” one—turns on “the setting in which the prayer arises and the audience to whom it is directed.” Ante, at 19. But then the majority glides right over those considerations—at least as they relate to the Town of Greece. When the majority analyzes the “setting” and “audience” for prayer, it focuses almost exclusively on Congress and the Nebraska Legislature, see ante, at 6–8, 10–11, 15–16, 19–20; it does not stop to analyze how far those factors differ in Greece’s meetings. The majority thus gives short shrift to the gap—more like, the chasm—between a legislative floor session involving only elected officials and a town hall revolving around ordinary citizens. And similarly the majority neglects to consider how the prayers in Greece are mostly addressed to members of the public, rather than (as in the forums it discusses) to the lawmakers. “The District Court in Marsh,” the majority expounds, “described the prayer exercise as ‘an internal act’ directed at the Nebraska Legislature’s ‘own members.’ ” Ante, at 19 (quoting Chambers v. Marsh, 504 F. Supp., at 588); see ante, at 20 (similarly noting that Nebraska senators “invoke[d] spiritual inspiration entirely for their own benefit” and that prayer in Congress is “religious worship for national representatives” only). Well, yes, so it is in Lincoln, and on Capitol Hill. But not in Greece, where as I have described, the chaplain faces the Town’s residents—with the Board watching from on high—and calls on them to pray together. See supra, at 10, 12.      And of course—as the majority sidesteps as well—to pray in the name of Jesus Christ. In addressing the sectarian content of these prayers, the majority again changes the subject, preferring to explain what happens in other government bodies. The majority notes, for example, that Congress “welcom[es] ministers of many creeds,” who commonly speak of “values that count as universal,” ante, at 11, 15; and in that context, the majority opines, the fact “[t]hat a prayer is given in the name of Jesus, Allah, or Jehovah . . . does not remove it from” Marsh’s protection, see ante, at 15. But that case is not this one, as I have shown, because in Greece only Christian clergy members speak, and then mostly in the voice of their own religion; no Allah or Jehovah ever is mentioned. See supra, at 13–14. So all the majority can point to in the Town’s practice is that the Board “maintains a policy of nondiscrimination,” and “represent[s] that it would welcome a prayer by any minister or layman who wishe[s] to give one.” Ante, at 17–18. But that representation has never been publicized; nor has the Board (except for a few months surrounding this suit’s filing) offered the chaplain’s role to any non-Christian clergy or layman, in either Greece or its environs; nor has the Board ever provided its chaplains with guidance about reaching out to members of other faiths, as most state legislatures and Congress do. See 732 F. Supp. 2d 195, 197–203 (WDNY 2010); National Conference of State Legislatures, Inside the Legislative Process: Prayer Practices 5–145, 5–146 (2002); ante, at 5 (Breyer, J., dissenting). The majority thus errs in assimilatingthe Board’s prayer practice to that of Congress or the Ne-braska Legislature. Unlike those models, the Board is determinedly—and relentlessly—noninclusive.[ 5 ]      And the month in, month out sectarianism the Board chose for its meetings belies the majority’s refrain that the prayers in Greece were “ceremonial” in nature. Ante, at 16, 19, 21, 23. Ceremonial references to the divine surely abound: The majority is right that “the Pledge of Allegiance, inaugural prayer, or the recitation of ‘God save the United States and this honorable Court’ ” each fits the bill. Ante, at 19. But prayers evoking “the saving sacrifice of Jesus Christ on the cross,” “the plan of redemption that is fulfilled in Jesus Christ,” “the life and death, resurrection and ascension of the Savior Jesus Christ,” the workings of the Holy Spirit, the events of Pentecost, and the belief that God “has raised up the Lord Jesus” and “will raise us, in our turn, and put us by His side”? See App. 56a, 88a–89a, 99a, 123a, 129a, 134a. No. These are statements of profound belief and deep meaning, subscribed to by many, denied by some. They “speak of the depths of [one’s] life, of the source of [one’s] being, of [one’s] ultimate concern, of what [one] take[s] seriously without any reservation.” P. Tillich, The Shaking of the Foundations 57 (1948). If they (and the central tenets of other religions) ever become mere ceremony, this country will be a fundamentally different—and, I think, poorer—place to live.      But just for that reason, the not-so-implicit message of the majority’s opinion—“What’s the big deal, anyway?”—is mistaken. The content of Greece’s prayers is a big deal, to Christians and non-Christians alike. A person’s response to the doctrine, language, and imagery contained in those invocations reveals a core aspect of identity—who that person is and how she faces the world. And the responses of different individuals, in Greece and across this country, of course vary. Contrary to the majority’s apparent view, such sectarian prayers are not “part of our expressive idiom” or “part of our heritage and tradition,” assuming the word “our” refers to all Americans. Ante, at 19. They express beliefs that are fundamental to some, foreign to others—and because that is so they carry the ever-present potential to both exclude and divide. The majority, I think, assesses too lightly the significance of these religious differences, and so fears too little the “religiously based divisiveness that the Establishment Clause seeks to avoid.” Van Orden v. Perry, 545 U. S. 677, 704 (2005) (Breyer, J., concurring in judgment). I would treat more seriously the multiplicity of Americans’ religious commitments, along with the challenge they can pose to theproject—the distinctively American project—of creating one from the many, and governing all as united. IV      In 1790, George Washington traveled to Newport, Rhode Island, a longtime bastion of religious liberty and the home of the first community of American Jews. Among the citizens he met there was Moses Seixas, one of that congregation’s lay officials. The ensuing exchange between the two conveys, as well as anything I know, the promise this country makes to members of every religion.      Seixas wrote first, welcoming Washington to Newport. He spoke of “a deep sense of gratitude” for the new American Government—“a Government, which to bigotry gives no sanction, to persecution no assistance—but generously affording to All liberty of conscience, and immunities of Citizenship: deeming every one, of whatever Nation, tongue, or language, equal parts of the great governmental Machine.” Address from Newport Hebrew Congregation (Aug. 17, 1790), in 6 PGW 286, n. 1 (M. Mastromarino ed. 1996). The first phrase there is the more poetic: a government that to “bigotry gives no sanction, to persecution no assistance.” But the second is actually the more startling and transformative: a government that, beyond not aiding persecution, grants “immunities of citizenship” to the Christian and the Jew alike, and makes them “equal parts” of the whole country.      Washington responded the very next day. Like any successful politician, he appreciated a great line when he saw one—and knew to borrow it too. And so he repeated, word for word, Seixas’s phrase about neither sanctioning bigotry nor assisting persecution. But he no less embraced the point Seixas had made about equality of citizenship. “It is now no more,” Washington said, “that toleration is spoken of, as if it was by the indulgence of one class of people” to another, lesser one. For “[a]ll possess alike . . . immunities of citizenship.” Letter to Newport Hebrew Congregation (Aug. 18, 1790), in 6 PGW 285. That is America’s promise in the First Amendment: full and equal membership in the polity for members of every religious group, assuming only that they, like anyone “who live[s] under [the Government’s] protection[,] should demean themselves as good citizens.” Ibid.      For me, that remarkable guarantee means at least this much: When the citizens of this country approach their government, they do so only as Americans, not as mem-bers of one faith or another. And that means that evenin a partly legislative body, they should not confrontgovernment-sponsored worship that divides them along religious lines. I believe, for all the reasons I have given, that the Town of Greece betrayed that promise. I therefore respectfully dissent from the Court’s decision. Notes 1 That principle meant as much to the founders as it does today. The demand for neutrality among religions is not a product of 21st century “political correctness,” but of the 18th century view—rendered no less wise by time—that, in George Washington’s words, “[r]eligious controversies are always productive of more acrimony and irreconciliable hatreds than those which spring from any other cause.” Letter to Edward Newenham (June 22, 1792), in 10 Papers of George Washington: Presidential Series493 (R. Haggard & M. Mastromarino eds. 2002) (hereinafter PGW). In an age when almost no one in this country was not a Christian of one kind or another, Washington consistently declined to use language or imagery associated only with that religion. See Brief for Paul Finkelman et al. as 15–19 (noting, for example, that in revising his first inaugural address, Washington deleted the phrase “the blessed Religion revealed in the word of God” because it was understood to denote only Christianity). Thomas Jefferson, who followed the same practice throughout his life, explained that he omitted any reference to Jesus Christ in Virginia’s Bill for Establishing Religious Freedom (a precursor to the Establishment Clause) in order “to comprehend, within the mantle of [the law’s] protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and infidel of every denomination.” 1Writings of Thomas Jefferson 62 (P. Ford ed. 1892). And James Madison, who again used only nonsectarian language in his writings and addresses, warned that religious proclamations might, “if not strictly guarded,” express only “the creed of the majority and a single sect.” Madison’s “Detached Memoranda,” 3 Wm. & Mary Quarterly 534, 561 (1946). 2 Because questions this point, it bears repeating. I do not remotely contend that “prayer is not allowed” at participatory meetings of “local government legislative bodies”; nor is that the “logical thrust” of any argument I make. , at 7–8. Rather, what I say throughout this opinion is that in this citizen-centered venue, government officials must take steps to ensure—as none of Greece’s Board members ever did—that opening prayers are inclusive of different faiths, rather than always identified with a single religion. 3 For ease of reference and to avoid confusion, I refer to ’s opinion as “the majority.” But the language I cite that appears in Part II–B of that opinion is, in fact, only attributable to a plurality of the Court. 4 Leaders of several Baptist and other Christian congregations have explained to the Court that “many Christians believe . . . that their freedom of conscience is violated when they are pressured to participate in government prayer, because such acts of worship should only be performed voluntarily.” Brief for Baptist Joint Committee for Religious Liberty et al. as 18. 5 similarly falters in attempting to excuse the Town Board’s constant sectarianism. His concurring opiniontakes great pains to show that the problem arose from a sort of bureaucratic glitch: The Town’s clerks, he writes, merely “did a bad job in compiling the list” of chaplains. at 6; see , at 1–3. Now I suppose one question that account raises is why in over a decade, no member of the Board noticed that the clerk’s list was producing prayers of only one kind. But put that aside. Honest oversight or not, the problem remains: Every month for more than a decade, the Board aligned itself, through its prayer practices, with a single religion. That the concurring opinion thinks my objection to that is “really quite niggling,” , at 4, says all there is to say about the difference between our respective views.

The town of Greece, New York, started its town board meetings with a prayer, which was ruled unconstitutional by the Second Circuit Court. The Supreme Court, however, overturned this decision, citing the First Amendment and the fact that the town did not exclude any religions from delivering the invocation.

Religion

Trinity Lutheran Church of Columbia, Inc. v. Comer

https://supreme.justia.com/cases/federal/us/582/15-577/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 15–577 _________________ TRINITY LUTHERAN CHURCH OF COLUMBIA, INC., PETITIONER v. CAROL S. COMER, DIRECTOR, MISSOURI DEPARTMENT OF NATURALRESOURCES on writ of certiorari to the united states court of appeals for the eighth circuit [June 26, 2017] Chief Justice Roberts delivered the opinion of the Court, except as to footnote 3. The Missouri Department of Natural Resources offers state grants to help public and private schools, nonprofit daycare centers, and other nonprofit entities purchase rubber playground surfaces made from recycled tires. Trinity Lutheran Church applied for such a grant for its preschool and daycare center and would have received one, but for the fact that Trinity Lutheran is a church. The Department had a policy of categorically disqualifying churches and other religious organizations from receiving grants under its playground resurfacing program. The question presented is whether the Department’s policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment. I A The Trinity Lutheran Church Child Learning Center is a preschool and daycare center open throughout the year to serve working families in Boone County, Missouri, and the surrounding area. Established as a nonprofit organization in 1980, the Center merged with Trinity Lutheran Church in 1985 and operates under its auspices on church property. The Center admits students of any religion, and enrollment stands at about 90 children ranging from age two to five. The Center includes a playground that is equipped with the basic playground essentials: slides, swings, jungle gyms, monkey bars, and sandboxes. Almost the entire surface beneath and surrounding the play equipment is coarse pea gravel. Youngsters, of course, often fall on the playground or tumble from the equipment. And when they do, the gravel can be unforgiving. In 2012, the Center sought to replace a large portion of the pea gravel with a pour-in-place rubber surface by participating in Missouri’s Scrap Tire Program. Run by the State’s Department of Natural Resources to reduce the number of used tires destined for landfills and dump sites, the program offers reimbursement grants to qualifying nonprofit organizations that purchase playground surfaces made from recycled tires. It is funded through a fee imposed on the sale of new tires in the State. Due to limited resources, the Department cannot offer grants to all applicants and so awards them on a competitive basis to those scoring highest based on several criteria, such as the poverty level of the population in the surrounding area and the applicant’s plan to promote recycling. When the Center applied, the Department had a strict and express policy of denying grants to any applicant owned or controlled by a church, sect, or other religious entity. That policy, in the Department’s view, was compelled by Article I, Section 7 of the Missouri Constitution, which provides: “That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.” In its application, the Center disclosed its status as a ministry of Trinity Lutheran Church and specified that the Center’s mission was “to provide a safe, clean, and attractive school facility in conjunction with an educational program structured to allow a child to grow spiritually, physically, socially, and cognitively.” App. to Pet. for Cert. 131a. After describing the playground and the safety hazards posed by its current surface, the Center detailed the anticipated benefits of the proposed project: increasing access to the playground for all children, including those with disabilities, by providing a surface compliant with the Americans with Disabilities Act of 1990; providing a safe, long-lasting, and resilient surface under the play areas; and improving Missouri’s environment by putting recycled tires to positive use. The Center also noted that the benefits of a new surface would extend beyond its students to the local community, whose children often use the playground during non-school hours. The Center ranked fifth among the 44 applicants in the 2012 Scrap Tire Program. But despite its high score, the Center was deemed categorically ineligible to receive a grant. In a letter rejecting the Center’s application, the program director explained that, under Article I, Section 7 of the Missouri Constitution, the Department could not provide financial assistance directly to a church. The Department ultimately awarded 14 grants as part of the 2012 program. Because the Center was operated by Trinity Lutheran Church, it did not receive a grant. B Trinity Lutheran sued the Director of the Department in Federal District Court. The Church alleged that the Department’s failure to approve the Center’s application, pursuant to its policy of denying grants to religiously affiliated applicants, violates the Free Exercise Clause of the First Amendment. Trinity Lutheran sought declara-tory and injunctive relief prohibiting the Department from discriminating against the Church on that basis in future grant applications. The District Court granted the Department’s motion to dismiss. The Free Exercise Clause, the District Court stated, prohibits the government from outlawing or restricting the exercise of a religious practice; it generally does not prohibit withholding an affirmative benefit on account of religion. The District Court likened the Department’s denial of the scrap tire grant to the situation this Court encountered in Locke v. Davey , 540 U. S. 712 (2004) . In that case, we upheld against a free exercise challenge the State of Washington’s decision not to fund degrees in devotional theology as part of a state scholarship program. Finding the present case “nearly indistinguishable from Locke ,” the District Court held that the Free Exercise Clause did not require the State to make funds available under the Scrap Tire Program to religious institutions like Trinity Lutheran. Trinity Lutheran Church of Columbia, Inc. v. Pauley , 976 F. Supp. 2d 1137, 1151 (WD Mo. 2013). The Court of Appeals for the Eighth Circuit affirmed. The court recognized that it was “rather clear” that Missouri could award a scrap tire grant to Trinity Lutheran without running afoul of the Establishment Clause of the United States Constitution. Trinity Lutheran Church of Columbia, Inc. v. Pauley , 788 F. 3d 779, 784 (2015). But, the Court of Appeals explained, that did not mean the Free Exercise Clause compelled the State to disregard the antiestablishment principle reflected in its own Constitution. Viewing a monetary grant to a religious institution as a “ ‘hallmark[ ] of an established religion,’ ” the court concluded that the State could rely on an applicant’s religious status to deny its application. Id. , at 785 (quoting Locke , 540 U. S., at 722; some internal quotation marks omitted). Judge Gruender dissented. He distinguished Locke on the ground that it concerned the narrow issue of funding for the religious training of clergy, and “did not leave states with unfettered discretion to exclude the religious from generally available public benefits.” 788 F. 3d, at 791 (opinion concurring in part and dissenting in part). Rehearing en banc was denied by an equally divided court. We granted certiorari sub nom. Trinity Lutheran Church of Columbia, Inc. v. Pauley , 577 U. S. ___ (2016), and now reverse.[ 1 ] II The First Amendment provides, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The parties agree that the Establishment Clause of that Amendment does not prevent Missouri from including Trinity Lutheran in the Scrap Tire Program. That does not, however, answer the question under the Free Exercise Clause, because we have recognized that there is “play in the joints” between what the Establishment Clause permits and the Free Exercise Clause compels. Locke , 540 U. S., at 718 (internal quotation marks omitted). The Free Exercise Clause “protect[s] religious observers against unequal treatment” and subjects to the strictest scrutiny laws that target the religious for “special disabilities” based on their “religious status.” Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U. S. 520, 533, 542 (1993) (internal quotation marks omitted). Applying that basic principle, this Court has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest “of the highest order.” McDaniel v. Paty , 435 U. S. 618, 628 (1978) (plurality opinion) (quoting Wisconsin v. Yoder , 406 U. S. 205, 215 (1972) ). In Everson v. Board of Education of Ewing , 330 U. S. 1 (1947) , for example, we upheld against an Establishment Clause challenge a New Jersey law enabling a local school district to reimburse parents for the public transportation costs of sending their children to public and private schools, including parochial schools. In the course of ruling that the Establishment Clause allowed New Jersey to extend that public benefit to all its citizens regardless of their religious belief, we explained that a State “cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it , from receiving the benefits of public welfare legislation.” Id. , at 16. Three decades later, in McDaniel v. Paty , the Court struck down under the Free Exercise Clause a Tennessee statute disqualifying ministers from serving as delegates to the State’s constitutional convention. Writing for the plurality, Chief Justice Burger acknowledged that Tennessee had disqualified ministers from serving as legislators since the adoption of its first Constitution in 1796, and that a number of early States had also disqualified ministers from legislative office. This historical tradition, however, did not change the fact that the statute discriminated against McDaniel by denying him a benefit solely because of his “ status as a ‘minister.’ ” 435 U. S., at 627. McDaniel could not seek to participate in the convention while also maintaining his role as a minister; to pursue the one, he would have to give up the other. In this way, said Chief Justice Burger, the Tennessee law “effectively penalizes the free exercise of [McDaniel’s] constitutional liberties.” Id. , at 626 (quoting Sherbert v. Verner , 374 U. S. 398, 406 (1963) ; internal quotation marks omitted). Joined by Justice Marshall in concurrence, Justice Brennan added that “because the challenged provision requires [McDaniel] to purchase his right to engage in the ministry by sacrificing his candidacy it impairs the free exercise of his religion.” McDaniel , 435 U. S., at 634. In recent years, when this Court has rejected free exercise challenges, the laws in question have been neutral and generally applicable without regard to religion. We have been careful to distinguish such laws from those that single out the religious for disfavored treatment. For example, in Lyng v. Northwest Indian Cemetery Protective Association , 485 U. S. 439 (1988) , we held that the Free Exercise Clause did not prohibit the Government from timber harvesting or road construction on a particular tract of federal land, even though the Government’s action would obstruct the religious practice of several Native American Tribes that held certain sites on the tract to be sacred. Accepting that “[t]he building of a road or the harvesting of timber . . . would interfere significantly with private persons’ ability to pursue spiritual fulfillment according to their own religious beliefs,” we nonetheless found no free exercise violation, because the affected individuals were not being “coerced by the Government’s action into violating their religious beliefs.” Id., at 449. The Court specifically noted, however, that the Government action did not “penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens.” Ibid. In Employment Division, Department of Human Resources of Oregon v. Smith , 494 U. S. 872 (1990) , we rejected a free exercise claim brought by two members of a Native American church denied unemployment benefits because they had violated Oregon’s drug laws by ingesting peyote for sacramental purposes. Along the same lines as our decision in Lyng , we held that the Free Exercise Clause did not entitle the church members to a special dispensation from the general criminal laws on account of their religion. At the same time, we again made clear that the Free Exercise Clause did guard against the government’s imposition of “special disabilities on the basis of religious views or religious status.” 494 U. S., at 877 (citing McDaniel , 435 U. S. 618 ).[ 2 ] Finally, in Church of Lukumi Babalu Aye, Inc. v. Hia-leah , we struck down three facially neutral city ordinances that outlawed certain forms of animal slaughter. Members of the Santeria religion challenged the ordinances under the Free Exercise Clause, alleging that despite their facial neutrality, the ordinances had a discriminatory purpose easy to ferret out: prohibiting sacrificial rituals integral to Santeria but distasteful to local residents. We agreed. Before explaining why the challenged ordinances were not, in fact, neutral or generally applicable, the Court recounted the fundamentals of our free exercise jurisprudence. A law, we said, may not discriminate against “some or all religious beliefs.” 508 U. S., at 532. Nor may a law regulate or outlaw conduct because it is religiously motivated. And, citing McDaniel and Smith , we restated the now-familiar refrain: The Free Exercise Clause protects against laws that “ ‘impose[ ] special dis-abilities on the basis of . . . religious status.’ ” 508 U. S., at 533 (quoting Smith , 494 U. S., at 877); see also Mitchell v. Helms , 530 U. S. 793, 828 (2000) (plurality opinion) (noting “our decisions that have prohibited governments from discriminating in the distribution of public benefits based upon religious status or sincerity” (citing Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U. S. 819 (1995) ; Lamb’s Chapel v. Center Moriches Union Free School Dist. , 508 U. S. 384 (1993) ; Widmar v. Vincent , 454 U. S. 263 (1981) )). III A The Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character. If the cases just described make one thing clear, it is that such a policy imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny. Lukumi , 508 U. S., at 546. This conclusion is unremarkable in light of our prior decisions. Like the disqualification statute in McDaniel , the Department’s policy puts Trinity Lutheran to a choice: It may participate in an otherwise available benefit program or remain a religious institution. Of course, Trinity Lu-theran is free to continue operating as a church, just as McDaniel was free to continue being a minister. But that freedom comes at the cost of automatic and absolute exclusion from the benefits of a public program for which the Center is otherwise fully qualified. And when the State conditions a benefit in this way, McDaniel says plainly that the State has punished the free exercise of religion: “To condition the availability of benefits . . . upon [a recipient’s] willingness to . . . surrender[ ] his religiously impelled [status] effectively penalizes the free exercise of his constitutional liberties.” 435 U. S., at 626 (plurality opinion) (alterations omitted). The Department contends that merely declining to extend funds to Trinity Lutheran does not prohibit the Church from engaging in any religious conduct or otherwise exercising its religious rights. In this sense, says the Department, its policy is unlike the ordinances struck down in Lukumi , which outlawed rituals central to Santeria. Here the Department has simply declined to allocate to Trinity Lutheran a subsidy the State had no obligation to provide in the first place. That decision does not meaningfully burden the Church’s free exercise rights. And absent any such burden, the argument continues, the Department is free to heed the State’s antiestablishment objection to providing funds directly to a church. Brief for Respondent 7–12, 14–16. It is true the Department has not criminalized the way Trinity Lutheran worships or told the Church that it cannot subscribe to a certain view of the Gospel. But, as the Department itself acknowledges, the Free Exercise Clause protects against “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.” Lyng , 485 U. S., at 450. As the Court put it more than 50 years ago, “[i]t is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege.” Sherbert , 374 U. S., at 404; see also McDaniel , 435 U. S., at 633 (Brennan, J., concurring in judgment) (The “proposition—that the law does not interfere with free exercise because it does not directly prohibit religious activity, but merely conditions eligibility for office on its abandonment—is . . . squarely rejected by precedent”). Trinity Lutheran is not claiming any entitlement to a subsidy. It instead asserts a right to participate in a government benefit program without having to disavow its religious character. The “imposition of such a condition upon even a gratuitous benefit inevitably deter[s] or discourage[s] the exercise of First Amendment rights.” Sherbert , 374 U. S., at 405. The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the Church—solely because it is a church—to compete with secular organizations for a grant. Cf. Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville , 508 U. S. 656, 666 (1993) (“[T]he ‘injury in fact’ is the inability to compete on an equal footing in the bidding process, not the loss of a contract”). Trinity Lutheran is a member of the community too, and the State’s decision to exclude it for purposes of this public program must withstand the strictest scrutiny. B The Department attempts to get out from under the weight of our precedents by arguing that the free exercise question in this case is instead controlled by our decision in Locke v. Davey . It is not. In Locke , the State of Washington created a scholarship program to assist high-achieving students with the costs of postsecondary education. The scholarships were paid out of the State’s general fund, and eligibility was based on criteria such as an applicant’s score on college admission tests and family income. While scholarship recipients were free to use the money at accredited religious and non-religious schools alike, they were not permitted to use the funds to pursue a devotional theology degree—one “devotional in nature or designed to induce religious faith.” 540 U. S., at 716 (internal quotation marks omitted). Davey was selected for a scholarship but was denied the funds when he refused to certify that he would not use them toward a devotional degree. He sued, arguing that the State’s refusal to allow its scholarship money to go toward such degrees violated his free exercise rights. This Court disagreed. It began by explaining what was not at issue. Washington’s selective funding program was not comparable to the free exercise violations found in the “ Lukumi line of cases,” including those striking down laws requiring individuals to “choose between their religious beliefs and receiving a government benefit.” Id. , at 720–721. At the outset, then, the Court made clear that Locke was not like the case now before us. Washington’s restriction on the use of its scholarship funds was different. According to the Court, the State had “merely chosen not to fund a distinct category of instruction.” Id. , at 721. Davey was not denied a scholarship because of who he was ; he was denied a scholarship because of what he proposed to do —use the funds to prepare for the ministry. Here there is no question that Trinity Lutheran was denied a grant simply because of what it is—a church. The Court in Locke also stated that Washington’s choice was in keeping with the State’s antiestablishment interest in not using taxpayer funds to pay for the training of clergy; in fact, the Court could “think of few areas in which a State’s antiestablishment interests come more into play.” Id., at 722. The claimant in Locke sought funding for an “essentially religious endeavor . . . akin to a religious calling as well as an academic pursuit,” and opposition to such funding “to support church leaders” lay at the historic core of the Religion Clauses. Id. , at 721–722. Here nothing of the sort can be said about a program to use recycled tires to resurface playgrounds. Relying on Locke , the Department nonetheless emphasizes Missouri’s similar constitutional tradition of not furnishing taxpayer money directly to churches. Brief for Respondent 15–16. But Locke took account of Washington’s antiestablishment interest only after determining, as noted, that the scholarship program did not “require students to choose between their religious beliefs and receiving a government benefit.” 540 U. S., at 720–721 (citing McDaniel , 435 U. S. 618 ). As the Court put it, Washington’s scholarship program went “a long way toward including religion in its benefits.” Locke , 540 U. S., at 724. Students in the program were free to use their scholarships at “pervasively religious schools.” Ibid . Davey could use his scholarship to pursue a secular degree at one institution while studying devotional theology at another. Id., at 721, n. 4. He could also use his scholarship money to attend a religious college and take devotional theology courses there. Id., at 725. The only thing he could not do was use the scholarship to pursue a degree in that subject. In this case, there is no dispute that Trinity Lutheran is put to the choice between being a church and receiving a government benefit. The rule is simple: No churches need apply.[ 3 ] C The State in this case expressly requires Trinity Lutheran to renounce its religious character in order to participate in an otherwise generally available public benefit program, for which it is fully qualified. Our cases make clear that such a condition imposes a penalty on the free exercise of religion that must be subjected to the “most rigorous” scrutiny. Lukumi , 508 U. S., at 546.[ 4 ] Under that stringent standard, only a state interest “of the highest order” can justify the Department’s discriminatory policy. McDaniel , 435 U. S., at 628 (internal quotation marks omitted). Yet the Department offers nothing more than Missouri’s policy preference for skating as far as possible from religious establishment concerns. Brief for Respondent 15–16. In the face of the clear infringement on free exercise before us, that interest cannot qual-ify as compelling. As we said when considering Missouri’s same policy preference on a prior occasion, “the state interest asserted here—in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution—is limited by the Free Exercise Clause.” Widmar , 454 U. S., at 276. The State has pursued its preferred policy to the point of expressly denying a qualified religious entity a public benefit solely because of its religious character. Under our precedents, that goes too far. The Department’s policy violates the Free Exercise Clause.[ 5 ] *  *  * Nearly 200 years ago, a legislator urged the Maryland Assembly to adopt a bill that would end the State’s disqualification of Jews from public office: “If, on account of my religious faith, I am subjected to disqualifications, from which others are free, . . . I cannot but consider myself a persecuted man. . . . An odious exclusion from any of the benefits common to the rest of my fellow-citizens, is a persecution, differing only in degree, but of a nature equally unjustifiable with that, whose instruments are chains and torture.” Speech by H. M. Brackenridge, Dec. Sess. 1818, in H. Brackenridge, W. Worthington, & J. Tyson, Speeches in the House of Delegates of Maryland, 64 (1829). The Missouri Department of Natural Resources has not subjected anyone to chains or torture on account of religion. And the result of the State’s policy is nothing so dramatic as the denial of political office. The consequence is, in all likelihood, a few extra scraped knees. But the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand. The judgment of the United States Court of Appeals for the Eighth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 In April 2017, the Governor of Missouri announced that he had directed the Department to begin allowing religious organizations to compete for and receive Department grants on the same terms as secular organizations. That announcement does not moot this case. We have said that such voluntary cessation of a challenged practice does not moot a case unless “subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc ., 528 U. S. 167, 189 (2000) (internal quotation marks omitted). The Department has not carried the “heavy burden” of making “absolutely clear” that it could not revert to its policy of excluding religious organizations. Ibid. The parties agree. See Letter from James R. Layton, Counsel for Respondent, to Scott S. Harris, Clerk of Court (Apr. 18, 2017) (adopting the position of the Missouri Attorney General’s Office that “there is no clearly effective barrier that would prevent the [Department] from reinstating [its] policy in the future”); Letter from David A. Cortman, Counsel for Petitioner, to Scott S. Harris, Clerk of Court (Apr. 18, 2017) (“[T]he policy change does nothing to remedy the source of the [Department’s] original policy—the Missouri Supreme Court’s interpretation of Article 1, §7 of the Missouri Constitution”). 2 This is not to say that any application of a valid and neutral law of general applicability is necessarily constitutional under the Free Exercise Clause. Recently, in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC , 565 U. S. 171 (2012) , this Court held that the Religion Clauses required a ministerial exception to the neutral prohibition on employment retaliation contained in the Americans with Disabilities Act. Distinguishing Smith , we explained that while that case concerned government regulation of physical acts, “[t]he present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.” 565 U. S. , at 190. 3 This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination. 4 We have held that “a law targeting religious beliefs as such is never permissible.” Lukumi, 508 U. S., at 533; see also McDaniel v. Paty , 435 U. S. 618, 626 (1978) (plurality opinion). We do not need to decide whether the condition Missouri imposes in this case falls within the scope of that rule, because it cannot survive strict scrutiny in any event. 5 Based on this holding, we need not reach the Church’s claim that the policy also violates the Equal Protection Clause. SUPREME COURT OF THE UNITED STATES _________________ No. 15–577 _________________ TRINITY LUTHERAN CHURCH OF COLUMBIA, INC., PETITIONER v. CAROL S. COMER, DIRECTOR, MISSOURI DEPARTMENT OF NATURALRESOURCES on writ of certiorari to the united states court of appeals for the eighth circuit [June 26, 2017] Justice Thomas, with whom Justice Gorsuch joins, concurring in part. The Court today reaffirms that “denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified,” if at all, “only by a state interest ‘of the highest order.’ ” Ante , at 6. The Free Exercise Clause, which generally prohibits laws that facially discriminate against religion, compels this conclusion. See Locke v. Davey , 540 U. S. 712 –727 (2004) (Scalia, J., dissenting). Despite this prohibition, the Court in Locke permitted a State to “disfavor . . . religion” by imposing what it deemed a “relatively minor” burden on religious exercise to advance the State’s antiestablishment “interest in not funding the religious training of clergy.” Id. , at 720, 722, n. 5, 725. The Court justified this law based on its view that there is “ ‘play in the joints’ ” between the Free Exercise Clause and the Establishment Clause—that is, that “there are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause.” Id. , at 719. Accordingly, Locke did not subject the law at issue to any form of heightened scrutiny. But it also did not suggest that discrimination against religion outside the limited context of support for ministerial training would be similarly exempt from exacting review. This Court’s endorsement in Locke of even a “mil[d] kind,” id. , at 720, of discrimination against religion remains troubling. See generally id. , at 726–734 (Scalia, J., dissenting). But because the Court today appropriately construes Locke narrowly, see Part III–B, ante , and because no party has asked us to reconsider it, I join nearly all of the Court’s opinion. I do not, however, join footnote 3, for the reasons expressed by Justice Gorsuch, post , p. 1 (opinion concurring in part). SUPREME COURT OF THE UNITED STATES _________________ No. 15–577 _________________ TRINITY LUTHERAN CHURCH OF COLUMBIA, INC., PETITIONER v. CAROL S. COMER, DIRECTOR, MISSOURI DEPARTMENT OF NATURALRESOURCES on writ of certiorari to the united states court of appeals for the eighth circuit [June 26, 2017] Justice Gorsuch, with whom Justice Thomas joins, concurring in part. Missouri’s law bars Trinity Lutheran from participating in a public benefits program only because it is a church. I agree this violates the First Amendment and I am pleased to join nearly all of the Court’s opinion. I offer only two modest qualifications. First, the Court leaves open the possibility a useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use. See ante , at 12. Respectfully, I harbor doubts about the stability of such a line. Does a religious man say grace before dinner? Or does a man begin his meal in a religious manner? Is it a religious group that built the playground? Or did a group build the playground so it might be used to advance a religious mission? The distinction blurs in much the same way the line between acts and omissions can blur when stared at too long, leaving us to ask (for example) whether the man who drowns by awaiting the incoming tide does so by act (coming upon the sea) or omission (allowing the sea to come upon him). See Cruzan v. Director, Mo. Dept. of Health , 497 U. S. 261, 296 (1990) (Scalia, J., dissenting). Often enough the same facts can be described both ways. Neither do I see why the First Amendment’s Free Exercise Clause should care. After all, that Clause guarantees the free exercise of religion, not just the right to inward belief (or status). Employment Div., Dept. of Human Resources of Ore. v. Smith , 494 U. S. 872, 877 (1990) . And this Court has long explained that government may not “devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices.” Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U. S. 520, 547 (1993) . Generally the government may not force people to choose between participation in a public program and their right to free exercise of religion. See Thomas v. Review Bd. of Indiana Employment Security Div. , 450 U. S. 707, 716 (1981) ; Everson v. Board of Ed. of Ewing , 330 U. S. 1, 16 (1947) . I don’t see why it should matter whether we describe that benefit, say, as closed to Lutherans (status) or closed to people who do Lutheran things (use). It is free exercise either way. For these reasons, reliance on the status-use distinction does not suffice for me to distinguish Locke v. Davey , 540 U. S. 712 (2004) . See ante , at 12. In that case, this Court upheld a funding restriction barring a student from using a scholarship to pursue a degree in devotional theology. But can it really matter whether the restriction in Locke was phrased in terms of use instead of status (for was it a student who wanted a vocational degree in religion? or was it a religious student who wanted the necessary education for his chosen vocation?). If that case can be correct and distinguished, it seems it might be only because of the opinion’s claim of a long tradition against the use of public funds for training of the clergy, a tradition the Court correctly explains has no analogue here. Ante , at 13. Second and for similar reasons, I am unable to join the footnoted observation, ante , at 14, n. 3, that “[t]his case involves express discrimination based on religious identity with respect to playground resurfacing.” Of course the footnote is entirely correct, but I worry that some might mistakenly read it to suggest that only “playground resurfacing” cases, or only those with some association with children’s safety or health, or perhaps some other social good we find sufficiently worthy, are governed by the legal rules recounted in and faithfully applied by the Court’s opinion. Such a reading would be unreasonable for our cases are “governed by general principles, rather than ad hoc improvisations.” Elk Grove Unified School Dist. v. Newdow , 542 U. S. 1, 25 (2004) (Rehnquist, C. J., concurring in judgment). And the general principles here do not permit discrimination against religious exercise—whether on the playground or anywhere else. SUPREME COURT OF THE UNITED STATES _________________ No. 15–577 _________________ TRINITY LUTHERAN CHURCH OF COLUMBIA, INC., PETITIONER v. CAROL S. COMER, DIRECTOR, MISSOURI DEPARTMENT OF NATURALRESOURCES on writ of certiorari to the united states court of appeals for the eighth circuit [June 26, 2017] Justice Breyer, concurring in the judgment. I agree with much of what the Court says and with its result. But I find relevant, and would emphasize, the particular nature of the “public benefit” here at issue. Cf. ante, at 11 (“Trinity Lutheran . . . asserts a right to participate in a government benefit program”); ante , at 12 (referring to precedent “striking down laws requiring individuals to choose between their religious beliefs and receiving a government benefit” (internal quotation marks omitted)); ante , at 10 (referring to Trinity Lutheran’s “automatic and absolute exclusion from the benefits of a public program”); ante , at 9–10 (the State’s policy disqualifies “otherwise eligible recipients . . . from a public benefit solely because of their religious character”); ante , at 6–7 (quoting the statement in Everson v. Board of Ed. of Ewing , 330 U. S. 1, 16 (1947) , that the State “cannot exclude” individuals “ because of their faith ” from “receiving the benefits of public welfare legislation”). The Court stated in Everson that “cutting off church schools from” such “general government services as ordinary police and fire protection . . . is obviously not the purpose of the First Amendment.” 330 U. S. , at 17–18. Here, the State would cut Trinity Lutheran off from participation in a general program designed to secure or to improve the health and safety of children. I see no significant difference. The fact that the program at issue ultimately funds only a limited number of projects cannot itself justify a religious distinction. Nor is there any administrative or other reason to treat church schools differently. The sole reason advanced that explains the difference is faith. And it is that last-mentioned fact that calls the Free Exercise Clause into play. We need not go further. Public benefits come in many shapes and sizes. I would leave the application of the Free Exercise Clause to other kinds of public benefits for another day. SUPREME COURT OF THE UNITED STATES _________________ No. 15–577 _________________ TRINITY LUTHERAN CHURCH OF COLUMBIA, INC., PETITIONER v. CAROL S. COMER, DIRECTOR, MISSOURI DEPARTMENT OF NATURALRESOURCES on writ of certiorari to the united states court of appeals for the eighth circuit [June 26, 2017] Justice Sotomayor, with whom Justice Ginsburg joins, dissenting. To hear the Court tell it, this is a simple case about recycling tires to resurface a playground. The stakes are higher. This case is about nothing less than the relationship between religious institutions and the civil government—that is, between church and state. The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church. Its decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both. I Founded in 1922, Trinity Lutheran Church (Church) “operates . . . for the express purpose of carrying out the commission of . . . Jesus Christ as directed to His church on earth.” Our Story, http://www.trinity-lcms.org/story (all internet materials as last visited June 22, 2017). The Church uses “preaching, teaching, worship, witness, service, and fellowship according to the Word of God” tocarry out its mission “to ‘make disciples.’ ” Mission, http://www.trinity-lcms.org/mission (quoting Matthew 28:18–20). The Church’s religious beliefs include its desire to “associat[e] with the [Trinity Church Child] Learning Center.” App. to Pet. for Cert. 101a. Located on Church property, the Learning Center provides daycare and preschool for about “90 children ages two to kindergarten.” Id., at 100a. The Learning Center serves as “a ministry of the Church and incorporates daily religion and developmentally appropriate activities into . . . [its] program.” Id., at 101a. In this way, “[t]hrough the Learning Center, the Church teaches a Christian world view to children of members of the Church, as well as children of non-member residents” of the area. Ibid. These activities represent the Church’s “sincere religious belief . . . to use [the Learning Center] to teach the Gospel to children of its members, as well to bring the Gospel message to non-members.” Ibid. The Learning Center’s facilities include a playground, the unlikely source of this dispute. The Church provides the playground and other “safe, clean, and attractive” facilities “in conjunction with an education program structured to allow a child to grow spiritually, physically, socially, and cognitively.” Ibid. This case began in 2012 when the Church applied for funding to upgrade the playground’s pea gravel and grass surface through Missouri’s Scrap Tire Program, which provides grants for the purchase and installation of recycled tire material to resurface playgrounds. The Church sought $20,000 for a $30,580 project to modernize the playground, part of its effort to gain state accreditation for the Learning Center as an early childhood education program. Missouri denied the Church funding based on Article I, §7, of its State Constitution, which prohibits the use of public funds “in aid of any church, sect, or denomination of religion.” II Properly understood then, this is a case about whether Missouri can decline to fund improvements to the facilities the Church uses to practice and spread its religious views. This Court has repeatedly warned that funding of exactly this kind—payments from the government to a house of worship—would cross the line drawn by the Establishment Clause. See, e.g., Walz v. Tax Comm’n of City of New York , 397 U. S. 664, 675 (1970) ; Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U. S. 819, 844 (1995) ; Mitchell v. Helms , 530 U. S. 793 –844 (2000) (O’Connor, J., concurring in judgment). So it is surprising that the Court mentions the Establishment Clause only to note the parties’ agreement that it “does not prevent Missouri from including Trinity Lutheran in the Scrap Tire Program.” Ante, at 6. Constitutional questions are decided by this Court, not the parties’ concessions. The Establishment Clause does not allow Missouri to grant the Church’s funding request because the Church uses the Learning Center, including its playground, in conjunction with its religious mission. The Court’s silence on this front signals either its misunderstanding of the facts of this case or a startling departure from our precedents. A The government may not directly fund religious exercise. See Everson v. Board of Ed. of Ewing , 330 U. S. 1, 16 (1947) ; Mitchell , 530 U. S., at 840 (O’Connor, J., concurring in judgment) (“[O]ur decisions provide no precedent for the use of public funds to finance religious activities” (internal quotation marks omitted)). Put in doctrinal terms, such funding violates the Establishment Clause because it impermissibly “advanc[es] . . . religion.”[ 1 ] Agostini v. Felton , 521 U. S. 203 –223 (1997). Nowhere is this rule more clearly implicated than when funds flow directly from the public treasury to a house of worship.[ 2 ] A house of worship exists to foster and further religious exercise. There, a group of people, bound by common religious beliefs, comes together “to shape its own faith and mission.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC , 565 U. S. 171, 188 (2012) . Within its walls, worshippers gather to practice and reaffirm their faith. And from its base, the faithful reach out to those not yet convinced of the group’s beliefs. When a government funds a house of worship, it underwrites this religious exercise. Tilton v. Richardson , 403 U. S. 672 (1971) , held as much. The federal program at issue provided construction grants to colleges and universities but prohibited grantees from using the funds to construct facilities “ ‘used for sectarian instruction or as a place for religious worship’ ” or “ ‘used primarily in connection with any part of the program of a school or department of divinity.’ ” Id., at 675 (plurality opinion) (quoting 20 U. S. C. §751(a)(2) (1964 ed., Supp. V)). It allowed the Federal Government to recover the grant’s value if a grantee violated this prohibition within twenty years of the grant. See 403 U. S., at 675 . The Court unanimously agreed that this time limit on recovery violated the Establishment Clause. “[T]he original federal grant w[ould] in part have the effect of advancing religion,” a plurality explained, if a grantee “converted [a facility] into a chapel or otherwise used [it] to promote religious interests” after twenty years. Id., at 683; see also id. , at 692 (Douglas, J., concurring in part and dissenting in part); Lemon v. Kurtzman , 403 U. S. 602 –661 (1971) (Brennan, J., concurring); id. , at 665, n. 1 (opinion of White, J.). Accordingly, the Court severed the twenty-year limit, ensuring that program funds would be put to secular use and thereby bringing the program in line with the Establishment Clause. See Tilton , 403 U. S., at 683 (plurality opinion). This case is no different. The Church seeks state funds to improve the Learning Center’s facilities, which, by the Church’s own avowed description, are used to assist the spiritual growth of the children of its members and to spread the Church’s faith to the children of nonmembers. The Church’s playground surface—like a Sunday School room’s walls or the sanctuary’s pews—are integrated with and integral to its religious mission. The conclusion that the funding the Church seeks would impermissibly advance religion is inescapable. True, this Court has found some direct government funding of religious institutions to be consistent with the Establishment Clause. But the funding in those cases came with assurances that public funds would not be used for religious activity, despite the religious nature of the institution. See, e.g., Rosenberger , 515 U. S., at 875–876 (Souter, J., dissenting) (chronicling cases). The Church has not and cannot provide such assurances here.[ 3 ] See Committee for Public Ed. & Religious Liberty v. Nyquist , 413 U. S. 756, 774 (1973) (“No attempt is made to restrict payments to those expenditures related to the upkeep of facilities used exclusively for secular purposes, nor do we think it possible within the context of these religion-oriented institutions to impose such restrictions”). The Church has a religious mission, one that it pursues through the Learning Center. The playground surface cannot be confined to secular use any more than lumber used to frame the Church’s walls, glass stained and used to form its windows, or nails used to build its altar. B The Court may simply disagree with this account of the facts and think that the Church does not put its playground to religious use. If so, its mistake is limited to this case. But if it agrees that the State’s funding would further religious activity and sees no Establishment Clause problem, then it must be implicitly applying a rule other than the one agreed to in our precedents. When the Court last addressed direct funding of religious institutions, in Mitchell , it adhered to the rule that the Establishment Clause prohibits the direct funding of religious activities. At issue was a federal program that helped state and local agencies lend educational materials to public and private schools, including religious schools. See 530 U. S., at 801–803 (plurality opinion). The controlling concurrence assured itself that the program would not lead to the public funding of religious activity. It pointed out that the program allocated secular aid, that it did so “on the basis of neutral, secular criteria,” that the aid would not “supplant non-[program] funds,” that “no . . . funds ever reach the coffers of religious schools,” that “evidence of actual diversion is de minimis ,” and that the program had “adequate safeguards” to police violations. Id., at 867 (O’Connor, J., concurring in judgment). Those factors, it concluded, were “sufficient to find that the program . . . [did] not have the impermissible effect of advancing religion.” Ibid. A plurality would have instead upheld the program based only on the secular nature of the aid and the program’s “neutrality” as to the religious or secular nature of the recipient. See id., at 809–814. The controlling concurrence rejected that approach. It viewed the plurality’s test—“secular content aid . . . distributed on the basis of wholly neutral criteria”—as constitutionally insufficient. Id. , at 839. This test, explained the concurrence, ignored whether the public funds subsidize religion, the touchstone of establishment jurisprudence. See id., at 844 (noting that the plurality’s logic would allow funding of “religious organizations (including churches)” where “the participating religious organizations (including churches) . . . use that aid to support religious indoctrination”). Today’s opinion suggests the Court has made the leap the Mitchell plurality could not. For if it agrees that the funding here will finance religious activities, then only a rule that considers that fact irrelevant could support a conclusion of constitutionality. The problems of the “secular and neutral” approach have been aired before. See, e.g., id. , at 900–902 (Souter, J., dissenting). It has no basis in the history to which the Court has repeatedly turned to inform its understanding of the Establishment Clause. It permits direct subsidies for religious indoctrination, with all the attendant concerns that led to the Establishment Clause. And it favors certain religious groups, those with a belief system that allows them to compete for public dollars and those well-organized and well-funded enough to do so successfully.[ 4 ] Such a break with precedent would mark a radical mistake. The Establishment Clause protects both religion and government from the dangers that result when the two become entwined, “ not by providing every religion with an equal opportunity (say, to secure state funding or to pray in the public schools), but by drawing fairly clear lines of separation between church and state—at least where the heartland of religious belief, such as primary religious [worship], is at issue.” Zelman v. Simmons-Harris , 536 U. S. 639 –723 (2002) (Breyer, J., dissenting). III Even assuming the absence of an Establishment Clause violation and proceeding on the Court’s preferred front—the Free Exercise Clause—the Court errs. It claims that the government may not draw lines based on an entity’s religious “status.” But we have repeatedly said that it can. When confronted with government action that draws such a line, we have carefully considered whether the interests embodied in the Religion Clauses justify that line. The question here is thus whether those interests support the line drawn in Missouri’s Article I, §7, separating the State’s treasury from those of houses of worship. They unquestionably do. A The Establishment Clause prohibits laws “respecting an establishment of religion” and the Free Exercise Clause prohibits laws “prohibiting the free exercise thereof.” U. S. Const., Amdt. 1. “[I]f expanded to a logical extreme,” these prohibitions “would tend to clash with the other.” Walz , 397 U. S., at 668–669. Even in the absence of a violation of one of the Religion Clauses, the interaction of government and religion can raise concerns that sound in both Clauses. For that reason, the government may sometimes act to accommodate those concerns, even when not required to do so by the Free Exercise Clause, without violating the Establishment Clause. And the government may sometimes act to accommodate those concerns, even when not required to do so by the Establishment Clause, without violating the Free Exercise Clause. “[T]here is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.” Id. , at 669. This space between the two Clauses gives government some room to recognize the unique status of religious entities and to single them out on that basis for exclusion from otherwise generally applicable laws. Invoking this principle, this Court has held that the government may sometimes relieve religious entities from the requirements of government programs. A State need not, for example, require nonprofit houses of worship to pay property taxes. It may instead “spar[e] the exercise of religion from the burden of property taxation levied on private profit institutions” and spare the government “the direct confrontations and conflicts that follow in the train of those legal processes” associated with taxation. See id. , at 673–674. Nor must a State require nonprofit religious entities to abstain from making employment decisions on the basis of religion. It may instead avoid imposing on these institutions a “[f]ear of potential liability [that] might affect the way” it “carried out what it understood to be its religious mission” and on the government the sensitive task of policing compliance. Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos , 483 U. S. 327, 336 (1987) ; see also id., at 343 (Brennan, J., concurring in judgment). But the government may not invoke the space between the Religion Clauses in a manner that “devolve[s] into an unlawful fostering of religion.” Cutter v. Wilkinson , 544 U. S. 709, 714 (2005) (internal quotation marks omitted). Invoking this same principle, this Court has held that the government may sometimes close off certain government aid programs to religious entities. The State need not, for example, fund the training of a religious group’s leaders, those “who will preach their beliefs, teach their faith, and carry out their mission,” Hosanna-Tabor , 565 U. S., at 196. It may instead avoid the historic “antiestablishment interests” raised by the use of “taxpayer funds to support church leaders.” Locke v. Davey , 540 U. S. 712, 722 (2004) . When reviewing a law that, like this one, singles out religious entities for exclusion from its reach, we thus have not myopically focused on the fact that a law singles out religious entities, but on the reasons that it does so. B Missouri has decided that the unique status of houses of worship requires a special rule when it comes to public funds. Its Constitution reflects that choice and provides: “That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.” Art. I, §7. Missouri’s decision, which has deep roots in our Nation’s history, reflects a reasonable and constitutional judgment. 1 This Court has consistently looked to history for guidance when applying the Constitution’s Religion Clauses. Those Clauses guard against a return to the past, and so that past properly informs their meaning. See, e.g., Everson , 330 U. S., at 14–15; Torcaso v. Watkins , 367 U. S. 488, 492 (1961) . This case is no different. This Nation’s early experience with, and eventual rejection of, established religion—shorthand for “sponsorship, financial support, and active involvement of the sovereign in religious activity,” Walz , 397 U. S., at 668—defies easy summary. No two States’ experiences were the same. In some a religious establishment never took hold. See T. Curry, The First Freedoms 19, 72–74, 76–77, 159–160 (1986) (Curry). In others establishment varied in terms of the sect (or sects) supported, the nature and extent of that support, and the uniformity of that support across the State. Where establishment did take hold, it lost its grip at different times and at different speeds. See T. Cobb, The Rise of Religious Liberty in America 510–511 (1970 ed.) (Cobb). Despite this rich diversity of experience, the story relevant here is one of consistency. The use of public funds to support core religious institutions can safely be described as a hallmark of the States’ early experiences with religious establishment. Every state establishment saw laws passed to raise public funds and direct them toward houses of worship and ministers. And as the States all dises-tablished, one by one, they all undid those laws.[ 5 ] Those who fought to end the public funding of religion based their opposition on a powerful set of arguments, all stemming from the basic premise that the practice harmed both civil government and religion. The civil government, they maintained, could claim no authority over religious belief. For them, support for religion compelled by the State marked an overstep of authority that would only lead to more. Equally troubling, it risked divisiveness by giving religions reason to compete for the State’s beneficence. Faith, they believed, was a personal matter, entirely between an individual and his god. Religion was best served when sects reached out on the basis of their tenets alone, unsullied by outside forces, allowing adherents to come to their faith voluntarily. Over and over, these arguments gained acceptance and led to the end of state laws exacting payment for the support of religion. Take Virginia. After the Revolution, Virginia debated and rejected a general religious assessment. The proposed bill would have allowed taxpayers to direct payments to a Christian church of their choice to support a minister, exempted “Quakers and Menonists,” and sent undirected assessments to the public treasury for “seminaries of learning.” A Bill Establishing a Provision for Teachers of the Christian Religion, reprinted in Everson , 330 U. S., at 74 (supplemental appendix to dissent of Rutledge, J.). In opposing this proposal, James Madison authored his famous Memorial and Remonstrance, in which he condemned the bill as hostile to religious freedom. Memorial and Remonstrance Against Religious Assessments (1785), in 5 The Founders’ Constitution 82–84 (P. Kurland & R. Lerner eds. 1987). Believing it “proper to take alarm,” despite the bill’s limits, he protested “that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment.” Id., at 82 . Religion had “flourished, not only without the support of human laws, but in spite of every opposition from them.” Id. , at 83 . Compelled support for religion, he argued, would only weaken believers’ “confidence in its innate excellence,” strengthen others’ “suspicion that its friends are too conscious of its fallacies to trust in its own merits,” and harm the “purity and efficacy” of the supported religion. Ibid. He ended by deeming the bill incompatible with Virginia’s guarantee of “ ‘free exercise of . . . Religion according to the dictates of conscience.’ ” Id., at 84 . Madison contributed one influential voice to a larger chorus of petitions opposed to the bill. Others included “the religious bodies of Baptists, Presbyterians, and Quakers.” T. Buckley, Church and State in Revolutionary Virginia 1776–1787, p. 148 (1977). Their petitions raised similar points. See id., at 137–140, 148–149. Like Madison, many viewed the bill as a step toward a dangerous church-state relationship. See id., at 151. These voices against the bill won out, and Virginia soon prohibited religious assessments. See Virginia Act for Establishing Religious Freedom (Oct. 31, 1785), in 5 The Founders’ Constitution 84–85. This same debate played out in nearby Maryland, with the same result. In 1784, an assessment bill was proposed that would have allowed taxpayers to direct payments to ministers (of sufficiently large churches) or to the poor. Non-Christians were exempt. See Curry 155. Controversy over the bill “eclipse[d] in volume of writing and bitter-ness of invective every other political dispute since the debate over the question of independence.” J. Rainbolt, The Struggle To Define “Religious Liberty” in Maryland, 1776–85, 17 J. Church & State 443, 449 (1975). Critics of the bill raised the same themes as those in Virginia: that religion “needs not the power of rules to establish, but only to protect it”; that financial support of religion leads toward an establishment; and that laws for such support are “oppressive.” Curry 156, 157 (internal quotation marks omitted); see also Copy of Petition [to General Assembly], Maryland Gazette, Mar. 25, 1785, pp. 1, 2, col.1 (“[W]hy should such as do not desire or make conscience of it, be forced by law”). When the legislature next met, most representatives “had been elected by anti-assessment voters,” and the bill failed. Curry 157. In 1810, Maryland revoked the authority to levy religious assessments. See Md. Const., Amdt. XIII (1776), in 3 Federal and State Constitutions 1705 (F. Thorpe ed. 1909) (Thorpe). In New England, which took longer to reach this conclusion, Vermont went first. Its religious assessment laws were accommodating. A person who was not a member of his town’s church was, upon securing a certificate to that effect, exempt. See L. Levy, The Establishment Clause 50 (1994) (Levy). Even so, the laws were viewed by many as violating Vermont’s constitutional prohibition against involuntary support of religion and guarantee of freedom of conscience. See, e.g. , Address of Council of Censors to the People of Vermont 5–8 (1800) (“[R]eligion is a concern personally and exclusively operative between the individual and his God”); Address of Council of Censors [Vermont] 3–7 (Dec. 1806) (the laws’ “evils” included “violence done to the feelings of men” and “their property,” “animosities,” and “the dangerous lengths of which it is a foundation for us to go, in both civil and religious usurpation”). In 1807, Vermont “repealed all laws concerning taxation for religion.” Levy 51. The rest of New England heard the same arguments and reached the same conclusion. John Leland’s sustained criticism of religious assessments over 20 years helped end the practice in Connecticut. See, e.g., Esbeck, Dissent and Disestablishment: The Church-State Settlement in the Early American Republic, 2004 B. Y. U. L. Rev. 1385, 1498, 1501–1511. The reasons he offered in urging opposition to the State’s laws will by now be familiar. Religion “is a matter between God and individuals,” which does not need, and would only be harmed by, government support. J. Leland, The Rights of Conscience Inalienable (1791), in The Sacred Rights of Conscience 337–339 (D. Dreisbach & M. Hall eds. 2009). “[T]ruth gains honor; and men more firmly believe it,” when religion is subjected to the “cool investigation and fair argument” that freedom of conscience produces. Id., at 340. Religious assessments violated that freedom, he argued. See id., at 342 (“If these people bind nobody but themselves, who is injured by their religious opinions? But if they bind an individual besides themselves, the bond is fraudulent and ought to be declared illegal”). Connecticut ended religious assessments first by statute in 1817, then by its State Constitution of 1818. See Cobb 513. In New Hampshire, a steady campaign against religious assessments led to a bill that was subjected to “the scru-tiny of the people.” C. Kinney, Church & State: The Strug-gle for Separation in New Hampshire, 1630–1900, p. 101 (1955) (Kinney). It was nicknamed “Dr. Whipple’s Act” after its strongest advocate in the State House. Orford Union Congregational Soc. v. West Congregational Soc. of Orford , 55 N. H. 463, 468–469, n. (1875). He defended the bill as a means “to take religion out of politics, to eliminate state support, to insure opportunity to worship with true freedom of conscience, [and] to put all sects and denominations of Christians upon a level.” Kinney 103. The bill became law and provided “that no person shall be compelled to join or support, or be classed with, or associated to any congregation, church or religious society without his express consent first had and obtained.” Act [of July 1, 1819] Regulating Towns and Choice of Town Officers §3, in 1 Laws of the State of New Hampshire Enacted Since June 1, 1815, p. 45 (1824). Massachusetts held on the longest of all the States, finally ending religious assessments in 1833. See Cobb 515.[ 6 ] The course of this history shows that those who lived under the laws and practices that formed religious establishments made a considered decision that civil government should not fund ministers and their houses of worship. To us, their debates may seem abstract and this history remote. That is only because we live in a society that has long benefited from decisions made in response to these now centuries-old arguments, a society that those not so fortunate fought hard to build. 2 In Locke , this Court expressed an understanding of, and respect for, this history. Locke involved a provision of the State of Washington’s Constitution that, like Missouri’s nearly identical Article I, §7, barred the use of public funds for houses of worship or ministers. Consistent with this denial of funds to ministers, the State’s college scholarship program did not allow funds to be used for devotional theology degrees. When asked whether this violated the would-be minister’s free exercise rights, the Court invoked the play in the joints principle and answered no. The Establishment Clause did not require the prohibition because “the link between government funds and religious training [was] broken by the independent and private choice of [scholarship] recipients.” 540 U. S., at 719; see also supra , n. 2. Nonetheless, the denial did not violate the Free Exercise Clause because a “historic and substantial state interest” supported the constitutional provision. 540 U. S., at 725. The Court could “think of few areas in which a State’s antiestablishment interests come more into play” than the “procuring [of] taxpayer funds to support church leaders.” Id., at 722. The same is true of this case, about directing taxpayer funds to houses of worship, see supra , at 2. Like the use of public dollars for ministers at issue in Locke , turning over public funds to houses of worship implicates serious antiestablishment and free exercise interests. The history just discussed fully supports this conclusion. As states disestablished, they repealed laws allowing taxation to support religion because the practice threatened other forms of government support for, involved some government control over, and weakened supporters’ control of religion. Common sense also supports this conclusion. Recall that a state may not fund religious activities without violating the Establishment Clause. See Part II–A, supra . A state can reasonably use status as a “house of worship” as a stand-in for “religious activities.” Inside a house of worship, dividing the religious from the secular would require intrusive line-drawing by government, and monitoring those lines would entangle government with the house of worship’s activities. And so while not every activity a house of worship undertakes will be inseparably linked to religious activity, “the likelihood that many are makes a categorical rule a suitable means to avoid chilling the exercise of religion.” Amos , 483 U. S., at 345 (Brennan, J., concurring in judgment). Finally, and of course, such funding implicates the free exercise rights of taxpayers by denying them the chance to decide for themselves whether and how to fund religion. If there is any “ ‘room for play in the joints’ between” the Religion Clauses, it is here. Locke , 540 U. S., at 718 (quoting Walz , 397 U. S., at 669). As was true in Locke , a prophylactic rule against the use of public funds for houses of worship is a permissible accommodation of these weighty interests. The rule has a historical pedigree identical to that of the provision in Locke . Almost all of the States that ratified the Religion Clauses operated under this rule. See 540 U. S., at 723. Seven had placed this rule in their State Constitutions.[ 7 ] Three enforced it by statute or in practice.[ 8 ] Only one had not yet embraced the rule.[ 9 ] Today, thirty-eight States have a counterpart to Missouri’s Article I, §7.[ 10 ] The provisions, as a general matter, date back to or before these States’ original Constitutions.[ 11 ] That so many States have for so long drawn a line that prohibits public funding for houses of worship, based on principles rooted in this Nation’s understanding of how best to foster religious liberty, supports the conclusion that public funding of houses of worship “is of a different ilk.” Locke , 540 U. S., at 723. And as in Locke , Missouri’s Article I, §7, is closely tied to the state interests it protects. See Locke , 540 U. S., at 724 (describing the program at issue as “go[ing] a long way toward including religion in its benefits”). A straightforward reading of Article I, §7, prohibits funding only for “any church, sect, or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such.” The Missouri courts have not read the State’s Constitution to reach more broadly, to prohibit funding for other religiously affiliated institutions, or more broadly still, to prohibit the funding of religious believers. See, e.g., Saint Louis Univ. v. Masonic Temple Assn. of St. Louis , 220 S. W. 3d 721, 726 (Mo. 2007) (“The university is not a religious institution simply because it is affiliated with the Jesuits or the Roman Catholic Church”). The Scrap Tire Program at issue here proves the point. Missouri will fund a religious organization not “owned or controlled by a church,” if its “mission and activities are secular (separate from religion, not spiritual in) nature” and the funds “will be used for secular (separate from religion; not spiritual) purposes rather than for sectarian (denominational, devoted to a sect) purposes.” App. to Brief for Petitioner 3a; see also Tr. of Oral Arg. 33–35. Article I, §7, thus stops Missouri only from funding specific entities, ones that set and enforce religious doctrine for their adherents. These are the entities that most acutely raise the establishment and free exercise concerns that arise when public funds flow to religion. Missouri has recognized the simple truth that, even absent an Establishment Clause violation, the transfer of public funds to houses of worship raises concerns that sit exactly between the Religion Clauses. To avoid those concerns, and only those concerns, it has prohibited such funding. In doing so, it made the same choice made by the earliest States centuries ago and many other States in the years since. The Constitution permits this choice. 3 In the Court’s view, none of this matters. It focuses on one aspect of Missouri’s Article I, §7, to the exclusion of all else: that it denies funding to a house of worship, here the Church, “simply because of what it [i]s—a church.” Ante, at 12. The Court describes this as a constitutionally impermissible line based on religious “status” that requires strict scrutiny. Its rule is out of step with our precedents in this area, and wrong on its own terms. The Constitution creates specific rules that control how the government may interact with religious entities. And so of course a government may act based on a religious entity’s “status” as such. It is that very status that implicates the interests protected by the Religion Clauses. Sometimes a religious entity’s unique status requires the government to act. See Hosanna-Tabor , 565 U. S., at 188–190. Other times, it merely permits the government to act. See Part III–A, supra . In all cases, the dispositive issue is not whether religious “status” matters—it does, or the Religion Clauses would not be at issue—but whether the government must, or may, act on that basis. Start where the Court stays silent. Its opinion does not acknowledge that our precedents have expressly approved of a government’s choice to draw lines based on an entity’s religious status. See Amos , 483 U. S., at 339; Walz , 397 U. S., at 680; Locke , 540 U. S., at 721. Those cases did not deploy strict scrutiny to create a presumption of unconstitutionality, as the Court does today. Instead, they asked whether the government had offered a strong enough reason to justify drawing a line based on that status. See Amos , 483 U. S., at 339 (“[W]e see no justification for applying strict scrutiny”); Walz , 397 U. S., at 679 (rejecting criticisms of a case-by-case approach as giving “too little weight to the fact that it is an essential part of adjudication to draw distinctions, including fine ones, in the process of interpreting the Constitution”); Locke , 540 U. S., at 725 (balancing the State’s interests against the aspiring minister’s). The Court takes two steps to avoid these precedents. First, it recasts Locke as a case about a restriction that prohibited the would-be minister from “us[ing] the funds to prepare for the ministry.” Ante, at 12. A faithful reading of Locke gives it a broader reach. Locke stands for the reasonable proposition that the government may, but need not, choose not to fund certain religious entities (there, ministers) where doing so raises “historic and substantial” establishment and free exercise concerns. 540 U. S., at 725. Second, it suggests that this case is different because it involves “discrimination” in the form of the denial of access to a possible benefit. Ante, at 11. But in this area of law, a decision to treat entities differently based on distinctions that the Religion Clauses make relevant does not amount to discrimination.[ 12 ] To understand why, keep in mind that “the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all.” Wallace v. Jaffree , 472 U. S. 38 –53 (1985). If the denial of a benefit others may receive is discrimination that violates the Free Exercise Clause, then the accommodations of religious entities we have approved would violate the free exercise rights of nonreligious entities. We have, with good reason, rejected that idea, see, e.g., Amos , 483 U. S., at 338–339, and instead focused on whether the government has provided a good enough reason, based in the values the Religion Clauses protect, for its decision.[ 13 ] The Court offers no real reason for rejecting the balancing approach in our precedents in favor of strict scrutiny, beyond its references to discrimination. The Court’s desire to avoid what it views as discrimination is understand-able. But in this context, the description is particularly inappropriate. A State’s decision not to fund houses of worship does not disfavor religion; rather, it represents a valid choice to remain secular in the face of serious establishment and free exercise concerns. That does not make the State “atheistic or antireligious.” County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter , 492 U. S. 573, 610 (1989) . It means only that the State has “establishe[d] neither atheism nor religion as its official creed.” Ibid. The Court’s conclusion “that the only alternative to governmental support of religion is governmental hostility to it represents a giant step backward in our Religion Clause jurisprudence.” Id. , at 652, n. 11 (Stevens, J., concurring in part and dissenting in part). At bottom, the Court creates the following rule today: The government may draw lines on the basis of religious status to grant a benefit to religious persons or entities but it may not draw lines on that basis when doing so would further the interests the Religion Clauses protect in other ways. Nothing supports this lopsided outcome. Not the Religion Clauses, as they protect establishment and free exercise interests in the same constitutional breath, neither privileged over the other. Not precedent, since we have repeatedly explained that the Clauses protect not religion but “the individual’s freedom of conscience,” Jaffree , 472 U. S., at 50—that which allows him to choose religion, reject it, or remain undecided. And not reason, because as this case shows, the same interests served by lifting government-imposed burdens on certain religious entities may sometimes be equally served by denying government-provided benefits to certain religious entities. Cf. Walz , 397 U. S., at 674 (entanglement); Amos , 483 U. S., at 336 (influence on religious activities). Justice Breyer’s concurrence offers a narrower rule that would limit the effects of today’s decision, but that rule does not resolve this case. Justice Breyer, like the Court, thinks that “denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest of the highest order,” ante, at 6 (majority opinion) (internal quotation marks omitted). See ante, at 1–2 (Breyer, J., concurring in judgment). Few would disagree with a literal interpretation of this statement. To fence out religious persons or entities from a truly gener-ally available public benefit—one provided to all, no questions asked, such as police or fire protections—would violate the Free Exercise Clause. Accord, Rosenberger , 515 U. S., at 879, n. 5 (Souter, J., dissenting). This explains why Missouri does not apply its constitutional provision in that manner. See Tr. of Oral Arg. 35–36. Nor has it done so here. The Scrap Tire Program offers not a generally available benefit but a selective benefit for a few recipients each year. In this context, the comparison to truly generally available benefits is inapt. Cf. Everson , 330 U. S., at 61, n. 56 (Rutledge, J., dissenting) (The Religion Clauses “forbi[d] support, not protection from interference or destruction”). On top of all of this, the Court’s application of its new rule here is mistaken. In concluding that Missouri’s Article I, §7, cannot withstand strict scrutiny, the Court describes Missouri’s interest as a mere “policy preference for skating as far as possible from religious establishment concerns.” Ante, at 14. The constitutional provisions of thirty-nine States—all but invalidated today—the weighty interests they protect, and the history they draw on deserve more than this judicial brush aside.[ 14 ] Today’s decision discounts centuries of history and jeopardizes the government’s ability to remain secular. Just three years ago, this Court claimed to understand that, in this area of law, to “sweep away what has so long been settled would create new controversy and begin anew the very divisions along religious lines that the Establishment Clause seeks to prevent.” Town of Greece v. Galloway , 572 U. S. ___, ___ (2014) (slip op., at 8). It makes clear today that this principle applies only when preference suits. IV The Religion Clauses of the First Amendment contain a promise from our government and a backstop that disables our government from breaking it. The Free Exercise Clause extends the promise. We each retain our inalien-able right to “the free exercise” of religion, to choose for ourselves whether to believe and how to worship. And the Establishment Clause erects the backstop. Government cannot, through the enactment of a “law respecting an establishment of religion,” start us down the path to the past, when this right was routinely abridged. The Court today dismantles a core protection for religious freedom provided in these Clauses. It holds not just that a government may support houses of worship with taxpayer funds, but that—at least in this case and perhaps in others, see ante at 14, n. 3—it must do so when-ever it decides to create a funding program. History shows that the Religion Clauses separate the public treasury from religious coffers as one measure to secure the kind of freedom of conscience that benefits both religion and government. If this separation means anything, it means that the government cannot, or at the very least need not, tax its citizens and turn that money over to houses of worship. The Court today blinds itself to the outcome this history requires and leads us instead to a place where separation of church and state is a constitutional slogan, not a constitutional commitment. I dissent. Notes 1 Government aid that has the “purpose” or “effect of advancing or inhibiting religion” violates the Establishment Clause. Agostini v. Felton , 521 U. S. 203 –223 (1997) (internal quotation marks omitted). Whether government aid has such an effect turns on whether it “result[s] in governmental indoctrination,” “define[s] its recipients by reference to religion,” or “create[s] an excessive entanglement” between the government and religion. Id., at 234; see also id., at 235 (same considerations speak to whether the aid can “reasonably be viewed as an endorsement of religion”). 2 Because Missouri decides which Scrap Tire Program applicants receive state funding, this case does not implicate a line of decisions about indirect aid programs in which aid reaches religious institutions “only as a result of the genuine and independent choices of private individuals.” Zelman v. Simmons-Harris , 536 U. S. 639, 649 (2002) . 3 The Scrap Tire Program requires an applicant to certify, among other things, that its mission and activities are secular and that it will put program funds to only a secular use. App. to Pet. for Cert. 127a–130a. From the record, it is unclear whether the Church provided any part of this certification. Id. , at 127a–130a. In any case, the Church has not offered any such assurances to this Court. 4 This case highlights the weaknesses of the rule. The Scrap Tire Program ranks more highly those applicants who agree to generate media exposure for Missouri and its program and who receive the endorsement of local solid waste management entities. That is, it prefers applicants who agree to advertise that the government has funded it and who seek out the approval of government agencies. To ignore this result is to ignore the type of state entanglement with, and endorsement of, religion the Establishment Clause guards against. 5 This Court did not hold that the Religion Clauses applied, through the Fourteenth Amendment, to the States until the 1940’s. See Cantwell v. Connecticut , 310 U. S. 296 (1940) (Free Exercise Clause); Everson v. Board of Ed. of Ewing , 330 U. S. 1 (1947) (Establishment Clause). When the States dismantled their religious establishments, as all had by the 1830’s, they did so on their own accord, in response to the lessons taught by their experiences with religious establishments. 6 To this, some might point out that the Scrap Tire Program at issue here does not impose an assessment specifically for religious entities but rather directs funds raised through a general taxation scheme to the Church. That distinction makes no difference. The debates over religious assessment laws focused not on the means of those laws but on their ends: the turning over of public funds to religious entities. See, e.g., Locke v. Davey , 540 U. S. 712, 723 (2004) . 7 See N. J. Const., Art. XVIII (1776), in 5 Thorpe 2597 (“[N]or shall any person, within this Colony, ever be obliged to pay tithes, taxes, or any other rates, for the purpose of building or repairing any other church or churches, place or places of worship, or for the maintenance of any minister or ministry, contrary to what he believes to be right, or has deliberately or voluntarily engaged himself to perform”); N. C. Const., Art. XXXIV (1776), in id. , at 2793 (“[N]either shall any person, on any pretence whatsoever, . . . be obliged to pay, for the purchase of any glebe, or the building of any house of worship, or for the maintenance of any minister or ministry, contrary to what he believes right, or has voluntarily and personally engaged to perform”); Pa. Const., Art. IX, §3 (1790), in id. , at 3100 (“[N]o man can of right be compelled to attend, erect, or support any place of worship, or to maintain any ministry, against his consent”); S. C. Const., Art. XXXVIII (1778), in 6 id ., at 3257 (“No person shall, by law, be obliged to pay towards the maintenance and support of a religious worship that he does not freely join in, or has not voluntarily engaged to support”); Vt. Const., ch. 1, Art. III (1786), in id. , at 3752 (“[N]o man ought, or of right can be compelled to attend any religious worship, or erect, or support any place of worship, or maintain any minister, contrary to the dictates of his conscience”). 8 See Virginia, Act for Establishing Religious Freedom, in 5 The Founders’ Constitution 85 (P. Kurland & R. Lerner eds. 1987); Curry 211–212 (Rhode Island never publicly funded houses of worship); Esbeck, Dissent and Disestablishment: The Church-State Settlement in the Early American Republic, 2004 B. Y. U. L. Rev. 1385, 1489–1490 (Maryland never invoked its constitutional authorization of religious assessments). 9 See N. H. Const., pt. 1, Arts. I, VI (1784), in 4 Thorpe 2453, 2454. 10 See Ala. Const., Art. I, §3; Ariz. Const., Art. II, §12, Art. IX, §10; Ark. Const., Art. II, §24; Cal. Const., Art. XVI, §5; Colo. Const., Art. II, §4, Art. IX, §7; Conn. Const., Art. Seventh; Del. Const., Art. I, §1; Fla. Const., Art. I, §3; Ga. Const., Art. I, §2, para. VII; Idaho Const., Art. IX, §5; Ill. Const., Art. I, §3, Art. X, §3; Ind. Const., Art. 1, §§4, 6; Iowa Const., Art. 1, §3; Ky. Const. §5; Md. Const., Decl. of Rights Art. 36; Mass. Const. Amdt., Art. XVIII, §2; Mich. Const., Art. I, §4; Minn. Const., Art. I, §16; Mo. Const., Art. I, §§6, 7, Art. IX, §8; Mont. Const., Art. X, §6; Neb. Const., Art. I, §4; N. H. Const., pt. 2, Art. 83; N. J. Const., Art. I, §3; N. M. Const., Art. II, §11; Ohio Const., Art. I, §7; Okla. Const., Art. II, §5; Ore. Const., Art. I, §5; Pa. Const., Art. I, §3, Art. III, §29; R. I. Const., Art. I, §3; S. D. Const., Art. VI, §3; Tenn. Const., Art. I, §3; Tex. Const., Art. I, §§6, 7; Utah Const., Art. I, §4; Vt. Const., ch. I, Art. 3; Va. Const., Art. I, §16, Art. IV, §16; Wash. Const., Art. I, §11; W. Va. Const., Art. III, §15; Wis. Const., Art. I, §18; Wyo. Const., Art. I, §19, Art. III, §36. 11 See Ala. Const., Art. I, §3 (1819), in 1 Thorpe 97; Ariz. Const., Art. II, §12, Art. IX, §10 (1912); Ark. Const., Art. II, §3 (1836), in 1 Thorpe 269; Cal. Const., Art. IX, §8 (1879), in id. , at 432; Colo. Const., Art. II, §4, Art. V, §34 (1876), in id ., at 474, 485; Conn. Const., Art. First, §4, Art. Seventh, §1 (1818), in id., at 537, 544–545; Del. Const., Art. I, §1 (1792); Fla. Const., Decl. of Rights §6 (1885), in 2 Thorpe 733; Ga. Const., Art. I, §1, para. XIV (1877), in id., at 843; Idaho Const., Art. I, §4, Art. IX, §5 (1889), in id., at 919, 936–937; Ill. Const., Art. VIII, §3 (1818) and (1870), in id., at 981, 1035; Ind. Const., Art. 1, §3 (1816), Art. 1, §6 (1851), in id. , at 1056, 1074; Iowa Const., Art. 1, §3 (1846), in id., at 1123; Ky. Const., Art. XIII, §5 (1850), in 3 id. , at 1312; Md. Const., Decl. of Rights Art. 36 (1867), in id., at 1782; Mass. Const. Amdt., Art. XVIII (1855), in id., at 1918, 1922; Mass. Const. Amdt., Art. XVIII (1974); Mich. Const., Art. 1, §4 (1835), Art. IV, §40 (1850), in 4 Thorpe 1031, 1050; Minn. Const., Art. I, §16 (1857), in id. , at 1092; Enabling Act for Mo., §4 (1820), Mo. Const., Art. I, §10 (1865), Art. II, §7 (1875), in id., at 2146–2147, 2192, 2230; Mont. Const., Art. XI, §8 (1889), in id., at 2323; Neb. Const., Art. I, §16 (1866), in id., at 2350; N. H. Const., pt. 2, Art. 83 (1877); N. J. Const., Art. XVIII (1776), in 5 Thorpe 2597; N. M. Const., Art. II, §11 (1911); Ohio Const., Art. VIII, §3 (1802), in 5 Thorpe 2910; Okla. Const., Art. II, §5 (1907), in H. Snyder, The Constitution of Oklahoma 21 (1908); Ore. Const., Art. I, §5 (1857), in 5 Thorpe 2098; Pa. Const., Art. IX, §3 (1790), Art. III, §18 (1873), in id. , at 3100, 3120; R. I. Const., Art. I, §3 (1842), in 6 id. , at 3222–3223; S. D. Const., Art. VI, §3 (1889), in id. , at 3370; Tenn. Const., Art. XI, §3 (1796), in id., at 3422; Tex. Const., Art. I, §4 (1845), Art. I, §7 (1876), in id., at 3547–3548, 3622; Utah Const., Art. I, §4 (1895), in id., at 3702; Vt. Const., ch. I, Art. III (1777), in id., at 3740; Va. Const., Art. III, §11 (1830), Art. IV, §67 (1902), in 7 id. , at 3824, 3917; Wash. Const., Art. I, §11 (1889), in id. , at 3874; W. Va. Const., Art. II, §9 (1861–1863), in id ., at 4015; Wis. Const., Art. I, §18 (1848), in id., at 4078–4079; Wyo. Const., Art. I, §19, Art. III, §36 (1889), in id., at 4119, 4124. 12 This explains, perhaps, the Court’s reference to an Equal Protection Clause precedent, rather than a Free Exercise Clause precedent, for this point. See ante, at 11 (citing Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville , 508 U. S. 656 (1993) ). 13 No surprise then that, despite the Court’s protests to the contrary, no case has applied its rigid rule. McDaniel v. Paty , 435 U. S. 618 (1978) , on which the Court relies most heavily, mentioned “status” only to distinguish laws that deprived a person “of a civil right solely because of their religious beliefs.” Id., at 626–627 (plurality opinion). In Torcaso v. Watkins , 367 U. S. 488 (1961) , the Court invalidated a law that barred persons who refused to state their belief in God from public office without “evaluat[ing] the interests assertedly justifying it.” McDaniel , 435 U. S., at 626 (plurality opinion). That approach did not control in McDaniel , which involved a state constitutional provision that barred ministers from serving as legislators, because “ministerial status” was defined “in terms of conduct and activity,” not “belief.” Id., at 627. The Court thus asked whether the “anti-establishment interests” the State offered were strong enough to justify the denial of a constitutional right—to serve in public office—and concluded that they were not. Id. , at 627–629. Other references to “status” in our cases simply recount McDaniel . See, e.g., Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U. S. 520, 533 (1993) ; Employment Div., Dept. of Human Resources of Ore. v. Smith , 494 U. S. 872, 877 (1990) . 14 In the end, the soundness of today’s decision may matter less than what it might enable tomorrow. The principle it establishes can be manipulated to call for a similar fate for lines drawn on the basis of religious use. See ante , at 1–3 (Gorsuch, J., concurring in part); see also ante , at 1–2 (Thomas, J., concurring in part) (going further and suggesting that lines drawn on the basis of religious status amount to per se unconstitutional discrimination on the basis of religious belief ). It is enough for today to explain why the Court’s decision is wrong. The error of the concurrences’ hoped-for decisions can be left for tomorrow. See, for now, School Dist. of Abington Township v. Schempp , 374 U. S. 203, 226 (1963) (“While the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone , it has never meant that a majority could use the machinery of the State to practice its beliefs”).

The Missouri Department of Natural Resources offers grants to help schools and daycare centers purchase rubber playground surfaces made from recycled tires. Trinity Lutheran Church, which operates a preschool and daycare center, applied for such a grant but was denied due to a policy that disqualifies churches and religious organizations from receiving these grants. The Supreme Court ruled that the Department's policy violated Trinity Lutheran Church's rights under the Free Exercise Clause of the First Amendment, which protects religious freedom. The Court held that the policy discriminated against the church based on its religious status and denied it a generally available public benefit.

Religion

Burwell v. Hobby Lobby Stores, Inc.

https://supreme.justia.com/cases/federal/us/573/682/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ Nos. 13–354 and 13–356 _________________ SYLVIA BURWELL, SECRETARY OF HEALTHAND HUMAN SERVICES, et al., PETITIONERS 13–354      v. HOBBY LOBBY STORES, INC., et al. on writ of certiorari to the united states courtof appeals for the tenth circuit and CONESTOGA WOOD SPECIALTIES CORPORATIONet al., PETITIONERS 13–356      v. SYLVIA BURWELL, SECRETARY OF HEALTHAND HUMAN SERVICES, et al. on writ of certiorari to the united states courtof appeals for the third circuit [June 30, 2014]      Justice Alito delivered the opinion of the Court.      We must decide in these cases whether the Religious Freedom Restoration Act of 1993 (RFRA), 107Stat. 1488, 42 U. S. C. §2000bb et seq., permits the United States Department of Health and Human Services (HHS) to demand that three closely held corporations provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners. We hold that the regulations that impose this obligation violate RFRA, which prohibits the Federal Government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest.      In holding that the HHS mandate is unlawful, we reject HHS’s argument that the owners of the companies for-feited all RFRA protection when they decided to organize their businesses as corporations rather than sole proprietorships or general partnerships. The plain terms of RFRA make it perfectly clear that Congress did not discriminate in this way against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs.      Since RFRA applies in these cases, we must decide whether the challenged HHS regulations substantially burden the exercise of religion, and we hold that they do. The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price—as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount to a substantial burden, it is hard to see what would.      Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained, it must also constitute the least restrictive means of serving that interest, and the mandate plainly fails that test. There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, to all FDA-approved contraceptives.      In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious nonprofit corporations still have access to insurance coverage without cost sharing for all FDA-approved contracep-tives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.      Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases is unlawful.      As this description of our reasoning shows, our holding is very specific. We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can “opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.” Post, at 1 (opinion of Ginsburg, J.). Nor do we hold, as the dissent implies, that such corporations have free rein to take steps that impose “disadvantages . . . on others” or that require “the general public [to] pick up the tab.” Post, at 1–2. And we certainly do not hold or suggest that “RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on . . . thousands of women employed by Hobby Lobby.” Post, at 2.[ 1 ] The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing. I A      Congress enacted RFRA in 1993 in order to provide very broad protection for religious liberty. RFRA’s enactment came three years after this Court’s decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990) , which largely repudiated the method of analyzing free-exercise claims that had been used in cases like Sherbert v. Verner, 374 U. S. 398 (1963), and Wisconsin v. Yoder, 406 U. S. 205 (1972) . In determining whether challenged government actions violated the Free Exercise Clause of the First Amendment, those decisions used a balancing test that took into account whether the challenged action imposed a substantial burden on the practice of religion, and if it did, whether it was needed to serve a compelling government interest. Applying this test, the Court held in Sherbert that an employee who was fired for refusing to work on her Sabbath could not be denied unemployment benefits. 374 U. S., at 408–409. And in Yoder, the Court held that Amish children could not be required to comply with a state law demanding that they remain in school until the age of 16 even though their religion required them to focus on uniquely Amish values and beliefs during their formative adolescent years. 406 U. S., at 210–211, 234–236.      In Smith, however, the Court rejected “the balancing test set forth in Sherbert.” 494 U. S., at 883. Smith concerned two members of the Native American Church who were fired for ingesting peyote for sacramental purposes. When they sought unemployment benefits, the State of Oregon rejected their claims on the ground that consumption of peyote was a crime, but the Oregon Supreme Court, applying the Sherbert test, held that the denial of benefits violated the Free Exercise Clause. 494 U. S., at 875.      This Court then reversed, observing that use of the Sherbert test whenever a person objected on religious grounds to the enforcement of a generally applicable law “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” 494 U. S., at 888. The Court therefore held that, under the First Amendment, “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.” City of Boerne v. Flores, 521 U. S. 507, 514 (1997).      Congress responded to Smith by enacting RFRA. “[L]aws [that are] ‘neutral’ toward religion,” Congress found, “may burden religious exercise as surely as laws intended to interfere with religious exercise.” 42 U. S. C. §2000bb(a)(2); see also §2000bb(a)(4). In order to ensure broad protection for religious liberty, RFRA provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” §2000bb–1(a).[ 2 ] If the Government substantially burdens a person’s exercise of religion, under the Act that person is entitled to an exemption from the rule unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” §2000bb–1(b).[ 3 ]      As enacted in 1993, RFRA applied to both the Federal Government and the States, but the constitutional authority invoked for regulating federal and state agencies differed. As applied to a federal agency, RFRA is based on the enumerated power that supports the particular agency’s work,[ 4 ] but in attempting to regulate the States and their subdivisions, Congress relied on its power under Section 5 of the Fourteenth Amendment to enforce the First Amendment. 521 U. S., at 516–517. In City of Boerne, however, we held that Congress had overstepped its Section 5 authority because “[t]he stringent test RFRA demands” “far exceed[ed] any pattern or practice of unconstitutional conduct under the Free Exercise Clause as interpreted in Smith.” Id., at 533–534. See also id., at 532.      Following our decision in City of Boerne, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114Stat. 803, 42 U. S. C. §2000cc et seq. That statute, enacted under Congress’s Commerce and Spending Clause powers, imposes the same general test as RFRA but on a more limited category of governmental actions. See Cutter v. Wilkinson, 544 U. S. 709 –716 (2005). And, what is most relevant for present purposes, RLUIPA amended RFRA’s definition of the “exercise of religion.” See §2000bb–2(4) (importing RLUIPA definition). Before RLUIPA, RFRA’s definition made reference to the First Amendment. See §2000bb–2(4) (1994 ed.) (defining “exercise of religion” as “the exercise of religion under the First Amendment”). In RLUIPA, in an obvious effort to effect a complete separation from First Amendment case law, Congress deleted the reference to the First Amendment and defined the “exercise of religion” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” §2000cc–5(7)(A). And Congress mandated that this concept “be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” §2000cc–3(g).[ 5 ] B      At issue in these cases are HHS regulations promul-gated under the Patient Protection and Affordable Care Act of 2010 (ACA), 124Stat. 119. ACA generally requires employers with 50 or more full-time employees to offer“a group health plan or group health insurance coverage” that provides “minimum essential coverage.” 26 U. S. C. §5000A(f)(2); §§4980H(a), (c)(2). Any covered employer that does not provide such coverage must pay a substantial price. Specifically, if a covered employer provides group health insurance but its plan fails to comply with ACA’s group-health-plan requirements, the employer may be required to pay $100 per day for each affected “individual.” §§4980D(a)–(b). And if the employer decides to stop providing health insurance altogether and at least one full-time employee enrolls in a health plan and qualifies for a subsidy on one of the government-run ACA exchanges, the employer must pay $2,000 per year for each of its full-time employees. §§4980H(a), (c)(1).      Unless an exception applies, ACA requires an employer’s group health plan or group-health-insurance coverage to furnish “preventive care and screenings” for women without “any cost sharing requirements.” 42 U. S. C. §300gg–13(a)(4). Congress itself, however, did not specify what types of preventive care must be covered. Instead, Congress authorized the Health Resources and Services Administration (HRSA), a component of HHS, to make that important and sensitive decision. Ibid. The HRSA in turn consulted the Institute of Medicine, a nonprofit group of volunteer advisers, in determining which preventive services to require. See 77 Fed. Reg. 8725–8726 (2012).      In August 2011, based on the Institute’s recommendations, the HRSA promulgated the Women’s Preventive Services Guidelines. See id., at 8725–8726, and n. 1; online at http://hrsa.gov/womensguidelines (all Internet materials as visited June 26, 2014, and available in Clerk of Court’s case file). The Guidelines provide that nonexempt employers are generally required to provide “coverage, without cost sharing” for “[a]ll Food and Drug Ad-ministration [(FDA)] approved contraceptive methods, sterilization procedures, and patient education and counseling.” 77 Fed. Reg. 8725 (internal quotation marks omitted). Although many of the required, FDA-approved methods of contraception work by preventing the fertilization of an egg, four of those methods (those specifically at issue in these cases) may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus. See Brief for HHS in No. 13–354, pp. 9–10, n. 4;[ 6 ] FDA, Birth Control: Medicines to Help You.[ 7 ]      HHS also authorized the HRSA to establish exemptions from the contraceptive mandate for “religious employers.” 45 CFR §147.131(a). That category encompasses “churches, their integrated auxiliaries, and conventions or associ-ations of churches,” as well as “the exclusively religious activities of any religious order.” See ibid (citing 26 U. S. C. §§6033(a)(3)(A)(i), (iii)). In its Guidelines,HRSA exempted these organizations from the requirement to cover contraceptive services. See http://hrsa.gov/womensguidelines.      In addition, HHS has effectively exempted certain religious nonprofit organizations, described under HHS regulations as “eligible organizations,” from the contraceptive mandate. See 45 CFR §147.131(b); 78 Fed. Reg. 39874 (2013). An “eligible organization” means a nonprofit organization that “holds itself out as a religious organi-zation” and “opposes providing coverage for some or all of any contraceptive services required to be covered . . . on account of religious objections.” 45 CFR §147.131(b). To qualify for this accommodation, an employer must certify that it is such an organization.  §147.131(b)(4). When a group-health-insurance issuer receives notice that one of its clients has invoked this provision, the issuer must then exclude contraceptive coverage from the employer’s plan and provide separate payments for contraceptive services for plan participants without imposing any cost-sharing requirements on the eligible organization, its insurance plan, or its employee beneficiaries. §147.131(c).[ 8 ] Al-though this procedure requires the issuer to bear the cost of these services, HHS has determined that this obligation will not impose any net expense on issuers because its cost will be less than or equal to the cost savings resulting from the services. 78 Fed. Reg. 39877.[ 9 ]      In addition to these exemptions for religious organizations, ACA exempts a great many employers from most of its coverage requirements. Employers providing “grandfathered health plans”—those that existed prior to March 23, 2010, and that have not made specified changes after that date—need not comply with many of the Act’s requirements, including the contraceptive mandate. 42 U. S. C. §§18011(a), (e). And employers with fewer than 50 employees are not required to provide health insurance at all. 26 U. S. C. §4980H(c)(2).      All told, the contraceptive mandate “presently does not apply to tens of millions of people.” 723 F. 3d 1114, 1143 (CA10 2013). This is attributable, in large part, to grandfathered health plans: Over one-third of the 149 million nonelderly people in America with employer-sponsored health plans were enrolled in grandfathered plans in 2013. Brief for HHS in No. 13–354, at 53; Kaiser Family Foundation & Health Research & Educational Trust, Employer Health Benefits, 2013 Annual Survey 43, 221.[ 10 ] The count for employees working for firms that do not have to provide insurance at all because they employ fewer than 50 employees is 34 million workers. See The Whitehouse, Health Reform for Small Businesses: The Affordable Care Act Increases Choice and Saving Money for Small Businesses 1.[ 11 ] II A      Norman and Elizabeth Hahn and their three sons are devout members of the Mennonite Church, a Christian denomination. The Mennonite Church opposes abortion and believes that “[t]he fetus in its earliest stages . . . shares humanity with those who conceived it.”[ 12 ]      Fifty years ago, Norman Hahn started a wood-working business in his garage, and since then, this company, Conestoga Wood Specialties, has grown and now has 950 employees. Conestoga is organized under Pennsylvania law as a for-profit corporation. The Hahns exercise sole ownership of the closely held business; they control its board of directors and hold all of its voting shares. One of the Hahn sons serves as the president and CEO.      The Hahns believe that they are required to run their business “in accordance with their religious beliefs and moral principles.” 917 F. Supp. 2d 394, 402 (ED Pa. 2013). To that end, the company’s mission, as they see it, is to “operate in a professional environment founded upon the highest ethical, moral, and Christian principles.” Ibid. (internal quotation marks omitted). The company’s “Vision and Values Statements” affirms that Conestoga endeavors to “ensur[e] a reasonable profit in [a] manner that reflects [the Hahns’] Christian heritage.” App. in No. 13–356, p. 94 (complaint).      As explained in Conestoga’s board-adopted “Statement on the Sanctity of Human Life,” the Hahns believe that “human life begins at conception.” 724 F. 3d 377, 382, and n. 5 (CA3 2013) (internal quotation marks omitted). It is therefore “against [their] moral conviction to be involved in the termination of human life” after conception, which they believe is a “sin against God to which they are held accountable.” Ibid. (internal quotation marks omitted). The Hahns have accordingly excluded from the group-health-insurance plan they offer to their employees certain contraceptive methods that they consider to be abortifacients. Id., at 382.      The Hahns and Conestoga sued HHS and other federal officials and agencies under RFRA and the Free Exercise Clause of the First Amendment, seeking to enjoin application of ACA’s contraceptive mandate insofar as it requires them to provide health-insurance coverage for four FDA-approved contraceptives that may operate after the fertilization of an egg.[ 13 ] These include two forms of emergency contraception commonly called “morning after” pills and two types of intrauterine devices.[ 14 ]      In opposing the requirement to provide coverage for the contraceptives to which they object, the Hahns argued that “it is immoral and sinful for [them] to intentionally participate in, pay for, facilitate, or otherwise support these drugs.” Ibid. The District Court denied a preliminary injunction, see 917 F. Supp. 2d, at 419, and the Third Circuit affirmed in a divided opinion, holding that “for-profit, secular corporations cannot engage in religious exercise” within the meaning of RFRA or the First Amendment. 724 F. 3d, at 381. The Third Circuit also rejected the claims brought by the Hahns themselves because it concluded that the HHS “[m]andate does not impose any requirements on the Hahns” in their personal capacity. Id., at 389. B      David and Barbara Green and their three children are Christians who own and operate two family businesses. Forty-five years ago, David Green started an arts-and-crafts store that has grown into a nationwide chain called Hobby Lobby. There are now 500 Hobby Lobby stores, and the company has more than 13,000 employees. 723 F. 3d, at 1122. Hobby Lobby is organized as a for-profit corporation under Oklahoma law.      One of David’s sons started an affiliated business, Mardel, which operates 35 Christian bookstores and employs close to 400 people. Ibid. Mardel is also organized as a for-profit corporation under Oklahoma law.      Though these two businesses have expanded over the years, they remain closely held, and David, Barbara, and their children retain exclusive control of both companies. Ibid. David serves as the CEO of Hobby Lobby, and his three children serve as the president, vice president, and vice CEO. See Brief for Respondents in No. 13–354, p. 8.[ 15 ]      Hobby Lobby’s statement of purpose commits the Greens to “[h]onoring the Lord in all [they] do by operating the company in a manner consistent with Biblical principles.” App. in No. 13–354, pp. 134–135 (complaint). Each family member has signed a pledge to run the businesses in accordance with the family’s religious beliefs and to use the family assets to support Christian ministries. 723 F. 3d, at 1122. In accordance with those commitments, Hobby Lobby and Mardel stores close on Sundays, even though the Greens calculate that they lose millions in sales annually by doing so. Id., at 1122; App. in No. 13–354, at 136–137. The businesses refuse to engage in profitable transactions that facilitate or promote alcohol use; they contribute profits to Christian missionaries and ministries; and they buy hundreds of full-page newspaper ads inviting people to “know Jesus as Lord and Savior.” Ibid. (internal quotation marks omitted).      Like the Hahns, the Greens believe that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point. 723 F. 3d, at 1122. They specifically object to the same four contraceptive methods as the Hahns and, like the Hahns, they have no objection to the other 16 FDA-approved methods of birth control. Id., at 1125. Although their group-health-insurance plan predates the enactment of ACA, it is not a grandfathered plan because Hobby Lobby elected not to retain grandfathered status before the contraceptive mandate was proposed. Id., at 1124.      The Greens, Hobby Lobby, and Mardel sued HHS and other federal agencies and officials to challenge the contraceptive mandate under RFRA and the Free Exercise Clause.[ 16 ] The District Court denied a preliminary injunction, see 870 F. Supp. 2d 1278 (WD Okla. 2012), and the plaintiffs appealed, moving for initial en banc consideration. The Tenth Circuit granted that motion and reversed in a divided opinion. Contrary to the conclusion of the Third Circuit, the Tenth Circuit held that the Greens’ two for-profit businesses are “persons” within the meaning of RFRA and therefore may bring suit under that law.      The court then held that the corporations had established a likelihood of success on their RFRA claim. 723 F. 3d, at 1140–1147. The court concluded that the contraceptive mandate substantially burdened the exercise of religion by requiring the companies to choose between “compromis[ing] their religious beliefs” and paying a heavy fee—either “close to $475 million more in taxes every year” if they simply refused to provide coverage for the contraceptives at issue, or “roughly $26 million” annually if they “drop[ped] health-insurance benefits for all employees.” Id., at 1141.      The court next held that HHS had failed to demonstrate a compelling interest in enforcing the mandate against the Greens’ businesses and, in the alternative, that HHS had failed to prove that enforcement of the mandate was the “least restrictive means” of furthering the Government’s asserted interests. Id., at 1143–1144 (emphasis deleted; internal quotation marks omitted). After concluding that the companies had “demonstrated irreparable harm,” the court reversed and remanded for the District Court to consider the remaining factors of the preliminary-injunction test. Id., at 1147.[ 17 ]      We granted certiorari. 571 U. S. ___ (2013). III A      RFRA prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U. S. C. §§2000bb–1(a), (b) (emphasis added). The first question that we must address is whether this provision applies to regulations that govern the activities of for-profit corporations like Hobby Lobby, Conestoga, and Mardel.      HHS contends that neither these companies nor their owners can even be heard under RFRA. According to HHS, the companies cannot sue because they seek to make a profit for their owners, and the owners cannotbe heard because the regulations, at least as a formal mat-ter, apply only to the companies and not to the ownersas individuals. HHS’s argument would have dramatic consequences.      Consider this Court’s decision in Braunfeld v. Brown, 366 U. S. 599 (1961) (plurality opinion). In that case, five Orthodox Jewish merchants who ran small retail businesses in Philadelphia challenged a Pennsylvania Sunday closing law as a violation of the Free Exercise Clause. Because of their faith, these merchants closed their shops on Saturday, and they argued that requiring them to remain shut on Sunday threatened them with financial ruin. The Court entertained their claim (although it ruled against them on the merits), and if a similar claim were raised today under RFRA against a jurisdiction still subject to the Act (for example, the District of Columbia, see 42 U. S. C. §2000bb–2(2)), the merchants would be entitled to be heard. According to HHS, however, if these merchants chose to incorporate their businesses—with-out in any way changing the size or nature of their businesses—they would forfeit all RFRA (and free-exercise) rights. HHS would put these merchants to a difficult choice: either give up the right to seek judicial protection of their religious liberty or forgo the benefits, available to their competitors, of operating as corporations.      As we have seen, RFRA was designed to provide very broad protection for religious liberty. By enacting RFRA, Congress went far beyond what this Court has held is constitutionally required.[ 18 ] Is there any reason to think that the Congress that enacted such sweeping protection put small-business owners to the choice that HHS suggests? An examination of RFRA’s text, to which we turn in the next part of this opinion, reveals that Congress did no such thing.      As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statu-tory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.      In holding that Conestoga, as a “secular, for-profit corporation,” lacks RFRA protection, the Third Circuit wrote as follows: “General business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors.” 724 F. 3d, at 385 (emphasis added). All of this is true—but quite beside the point. Corporations, “separate and apart from” the human beings who own, run, and are employed by them, cannot do anything at all. B 1      As we noted above, RFRA applies to “a person’s” exercise of religion, 42 U. S. C. §§2000bb–1(a), (b), and RFRA itself does not define the term “person.” We therefore look to the Dictionary Act, which we must consult “[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise.” 1 U. S. C. §1.      Under the Dictionary Act, “the wor[d] ‘person’ . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” Ibid.; see FCC v. AT&T Inc., 562 U. S. ___, ___ (2011) (slip op., at 6) (“We have no doubt that ‘person,’ in a legal setting, often refers to artificial entities. The Dictionary Act makes that clear”). Thus, unless there is something about the RFRA context that “indicates otherwise,” the Dictionary Act provides a quick, clear, and affirmative answer to the question whether the companies involved in these cases may be heard.      We see nothing in RFRA that suggests a congressional intent to depart from the Dictionary Act definition, and HHS makes little effort to argue otherwise. We have entertained RFRA and free-exercise claims brought by nonprofit corporations, see Gonzales v. O Centro Espírita Beneficiente União do Vegetal, 546 U. S. 418 (2006) (RFRA); Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. ___ (2012) (Free Exercise); Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993) (Free Exercise), and HHS concedes that a nonprofit corporation can be a “person” within the meaning of RFRA. See Brief for HHS in No. 13–354, at 17; Reply Brief in No. 13–354, at 7–8.[ 19 ]      This concession effectively dispatches any argument that the term “person” as used in RFRA does not reach the closely held corporations involved in these cases. No known understanding of the term “person” includes some but not all corporations. The term “person” sometimes encompasses artificial persons (as the Dictionary Act instructs), and it sometimes is limited to natural persons. But no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.[ 20 ] Cf. Clark v. Martinez, 543 U. S. 371, 378 (2005) (“To give th[e] same words a different meaning for each category would be to invent a statute rather than interpret one”). 2      The principal argument advanced by HHS and the principal dissent regarding RFRA protection for Hobby Lobby, Conestoga, and Mardel focuses not on the statutory term “person,” but on the phrase “exercise of religion.” According to HHS and the dissent, these corporations are not protected by RFRA because they cannot exercise religion. Neither HHS nor the dissent, however, provides any persuasive explanation for this conclusion.      Is it because of the corporate form? The corporate form alone cannot provide the explanation because, as we have pointed out, HHS concedes that nonprofit corporations can be protected by RFRA. The dissent suggests that nonprofit corporations are special because furthering their reli-gious “autonomy . . . often furthers individual religious freedom as well.” Post, at 15 (quoting Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 342 (1987) (Brennan, J., concurring in judgment)). But this principle appliesequally to for-profit corporations: Furthering their re-ligious freedom also “furthers individual religious freedom.” In these cases, for example, allowing Hobby Lobby, Con-estoga, and Mardel to assert RFRA claims protects the religious liberty of the Greens and the Hahns.[ 21 ]      If the corporate form is not enough, what about the profit-making objective? In Braunfeld, 366 U. S. 599 , we entertained the free-exercise claims of individuals who were attempting to make a profit as retail merchants, and the Court never even hinted that this objective precluded their claims. As the Court explained in a later case, the “exercise of religion” involves “not only belief and profession but the performance of (or abstention from) physical acts” that are “engaged in for religious reasons.” Smith, 494 U. S., at 877. Business practices that are compelled or limited by the tenets of a religious doctrine fall comfortably within that definition. Thus, a law that “operates so as to make the practice of . . . religious beliefs more expensive” in the context of business activities imposes a burden on the exercise of religion. Braunfeld, supra, at 605; see United States v. Lee, 455 U. S. 252, 257 (1982) (recognizing that “compulsory participation in the social security system interferes with [Amish employers’] free exercise rights”).      If, as Braunfeld recognized, a sole proprietorship that seeks to make a profit may assert a free-exercise claim,[ 22 ] why can’t Hobby Lobby, Conestoga, and Mardel do the same?      Some lower court judges have suggested that RFRA does not protect for-profit corporations because the purpose of such corporations is simply to make money.[ 23 ] This argument flies in the face of modern corporate law. “Each American jurisdiction today either expressly or by implication authorizes corporations to be formed under its general corporation act for any lawful purpose or business.” 1 J. Cox & T. Hazen, Treatise of the Law of Corporations §4:1, p. 224 (3d ed. 2010) (emphasis added); see 1A W. Fletcher, Cyclopedia of the Law of Corporations §102 (rev. ed. 2010). While it is certainly true that a central objective of for-profit corporations is to make money, modern corporate law does not require for-profit corporations to pursue profit at the expense of everything else, and many do not do so. For-profit corporations, with ownership approval, support a wide variety of charitable causes, and it is not at all uncommon for such corporations to further humanitarian and other altruistic objectives. Many examples come readily to mind. So long as its owners agree, a for-profit corporation may take costly pollution-control and energy-conservation measures that go beyond what the law requires. A for-profit corporation that operates facilities in other countries may exceed the requirements of local law regarding working conditions and benefits. If for-profit corporations may pursue such worthy objectives, there is no apparent reason why they may not further religious objectives as well.      HHS would draw a sharp line between nonprofit corporations (which, HHS concedes, are protected by RFRA) and for-profit corporations (which HHS would leave unprotected), but the actual picture is less clear-cut. Not all corporations that decline to organize as nonprofits do so in order to maximize profit. For example, organizations with religious and charitable aims might organize as for-profit corporations because of the potential advantages of that corporate form, such as the freedom to participate in lobbying for legislation or campaigning for political candidates who promote their religious or charitable goals.[ 24 ] In fact, recognizing the inherent compatibility between establishing a for-profit corporation and pursuing nonprofit goals, States have increasingly adopted laws formally recognizing hybrid corporate forms. Over half of the States, for instance, now recognize the “benefit corporation,” a dual-purpose entity that seeks to achieve both a benefit for the public and a profit for its owners.[ 25 ]      In any event, the objectives that may properly be pursued by the companies in these cases are governed by the laws of the States in which they were incorporated—Pennsylvania and Oklahoma—and the laws of those States permit for-profit corporations to pursue “any lawful purpose” or “act,” including the pursuit of profit in conformity with the owners’ religious principles. 15 Pa. Cons. Stat. §1301 (2001) (“Corporations may be incorporated under this subpart for any lawful purpose or purposes”); Okla. Stat., Tit. 18, §§1002, 1005 (West 2012) (“[E]very corporation, whether profit or not for profit” may “be incorporated or organized . . . to conduct or promote any lawful business or purposes”); see also §1006(A)(3); Brief for State of Oklahoma as Amicus Curiae in No. 13–354. 3      HHS and the principal dissent make one additional argument in an effort to show that a for-profit corporation cannot engage in the “exercise of religion” within the meaning of RFRA: HHS argues that RFRA did no more than codify this Court’s pre-Smith Free Exercise Clause precedents, and because none of those cases squarely held that a for-profit corporation has free-exercise rights, RFRA does not confer such protection. This argument has many flaws.      First, nothing in the text of RFRA as originally enacted suggested that the statutory phrase “exercise of religion under the First Amendment” was meant to be tied to this Court’s pre-Smith interpretation of that Amendment. When first enacted, RFRA defined the “exercise of religion” to mean “the exercise of religion under the First Amendment”—not the exercise of religion as recognized only by then-existing Supreme Court precedents. 42 U. S. C. §2000bb–2(4) (1994 ed.). When Congress wants to link the meaning of a statutory provision to a body of this Court’s case law, it knows how to do so. See, e.g., Antiterrorism and Effective Death Penalty Act of 1996, 28 U. S. C. §2254(d)(1) (authorizing habeas relief from a state-court decision that “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”).      Second, if the original text of RFRA was not clear enough on this point—and we think it was—the amendment of RFRA through RLUIPA surely dispels any doubt. That amendment deleted the prior reference to the First Amendment, see 42 U. S. C. §2000bb–2(4) (2000 ed.) (incorporating §2000cc–5), and neither HHS nor the principal dissent can explain why Congress did this if it wanted to tie RFRA coverage tightly to the specific holdings of our pre-Smith free-exercise cases. Moreover, as discussed, the amendment went further, providing that the exercise of religion “shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” §2000cc–3(g). It is simply not possible to read these provisions as restricting the concept of the “exercise of religion” to those practices specifically addressed in our pre-Smith decisions.      Third, the one pre-Smith case involving the free-exercise rights of a for-profit corporation suggests, if anything, that for-profit corporations possess such rights. In Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U. S. 617 (1961) , the Massachusetts Sunday closing law was challenged by a kosher market that was organized as a for-profit corporation, by customers of the market, and by a rabbi. The Commonwealth argued that the corporation lacked “standing” to assert a free-exercise claim,[ 26 ] but not one member of the Court expressed agreement with that argument. The plurality opinion for four Justices rejected the First Amendment claim on the merits based on the reasoning in Braunfeld, and reserved decision on the question whether the corporation had “standing” to raise the claim. See 366 U. S., at 631. The three dissenters, Justices Douglas, Brennan, and Stewart, found the law unconstitutional as applied to the corporation and the other challengers and thus implicitly recognized their right to assert a free-exercise claim. See id., at 642 (Brennan, J., joined by Stewart, J., dissenting); McGowan v. Maryland, 366 U. S. 420 –579 (1961) (Douglas, J., dissenting as to related cases including Gallagher). Fi-nally, Justice Frankfurter’s opinion, which was joined by Justice Harlan, upheld the Massachusetts law on the merits but did not question or reserve decision on the issue of the right of the corporation or any of the other challengers to be heard. See McGowan, 366 U. S., at 521–522. It is quite a stretch to argue that RFRA, a law enacted to provide very broad protection for religious liberty,left for-profit corporations unprotected simply because in Gallagher—the only pre-Smith case in which the issue was raised—a majority of the Justices did not find it necessary to decide whether the kosher market’s corporate status barred it from raising a free-exercise claim.      Finally, the results would be absurd if RFRA merely restored this Court’s pre-Smith decisions in ossified form and did not allow a plaintiff to raise a RFRA claim unless that plaintiff fell within a category of plaintiffs one of whom had brought a free-exercise claim that this Court entertained in the years before Smith. For example, we are not aware of any pre-Smith case in which this Court entertained a free-exercise claim brought by a resident noncitizen. Are such persons also beyond RFRA’s protective reach simply because the Court never addressed their rights before Smith?      Presumably in recognition of the weakness of this argument, both HHS and the principal dissent fall back on the broader contention that the Nation lacks a tradition of exempting for-profit corporations from generally applicable laws. By contrast, HHS contends, statutes like Title VII, 42 U. S. C. §2000e–19(A), expressly exempt churches and other nonprofit religious institutions but not for-profit corporations. See Brief for HHS in No. 13–356, p. 26. In making this argument, however, HHS did not call to our attention the fact that some federal statutes do exempt categories of entities that include for-profit corporations from laws that would otherwise require these entities to engage in activities to which they object on grounds of conscience. See, e.g., 42 U. S. C. §300a–7(b)(2); §238n(a).[ 27 ] If Title VII and similar laws show anything, it isthat Congress speaks with specificity when it intends a religious accommodation not to extend to for-profitcorporations. 4      Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit corporations because it is difficult as a practical matter to ascertain the sincere “beliefs” of a corporation. HHS goes so far as to raise the specter of “divisive, polarizing proxy battles over the religious identity of large, publicly traded corporations such as IBM or General Electric.” Brief for HHS in No. 13–356, at 30.      These cases, however, do not involve publicly traded corporations, and it seems unlikely that the sort of corporate giants to which HHS refers will often assert RFRA claims. HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occurring. For example, the idea that unrelated shareholders—including institutional investors with their own set of stakeholders—would agree to run a corporation under the same religious beliefs seems improbable. In any event, we have no occasion in these cases to consider RFRA’s applicability to such companies. The companies in the cases before us are closely held corporations, each owned and controlled by members of a single family, and no one has disputed the sincerity of their religious beliefs.[ 28 ]      HHS has also provided no evidence that the purported problem of determining the sincerity of an asserted religious belief moved Congress to exclude for-profit corporations from RFRA’s protection. On the contrary, the scope of RLUIPA shows that Congress was confident of the ability of the federal courts to weed out insincere claims. RLUIPA applies to “institutionalized persons,” a category that consists primarily of prisoners, and by the time of RLUIPA’s enactment, the propensity of some prisoners to assert claims of dubious sincerity was well documented.[ 29 ] Nevertheless, after our decision in City of Boerne, Congress enacted RLUIPA to preserve the right of prisoners to raise religious liberty claims. If Congress thought that the federal courts were up to the job of dealing with insincere prisoner claims, there is no reason to believe that Congress limited RFRA’s reach out of concern for the seem-ingly less difficult task of doing the same in corporate cases. And if, as HHS seems to concede, Congress wanted RFRA to apply to nonprofit corporations, see, Reply Brief in No. 13–354, at 7–8, what reason is there to think that Congress believed that spotting insincere claims wouldbe tougher in cases involving for-profits?      HHS and the principal dissent express concern about the possibility of disputes among the owners of corporations, but that is not a problem that arises because of RFRA or that is unique to this context. The owners of closely held corporations may—and sometimes do—disagree about the conduct of business. 1 Treatise of the Law of Corporations §14:11. And even if RFRA did not exist, the owners of a company might well have a dispute relating to religion. For example, some might want a company’s stores to remain open on the Sabbath in order to make more money, and others might want the stores to close for religious reasons. State corporate law provides a ready means for resolving any conflicts by, for example, dictating how a corporation can establish its governing structure. See, e.g., ibid; id., §3:2; Del. Code Ann., Tit. 8, §351 (2011) (providing that certificate of incorporation may provide how “the business of the corporation shall be managed”). Courts will turn to that structure and the underlying state law in resolving disputes.      For all these reasons, we hold that a federal regulation’s restriction on the activities of a for-profit closely held corporation must comply with RFRA.[ 30 ] IV      Because RFRA applies in these cases, we must next ask whether the HHS contraceptive mandate “substantially burden[s]” the exercise of religion. 42 U. S. C. §2000bb–1(a). We have little trouble concluding that it does. A      As we have noted, the Hahns and Greens have a sincere religious belief that life begins at conception. They therefore object on religious grounds to providing health insurance that covers methods of birth control that, as HHS acknowledges, see Brief for HHS in No. 13–354, at 9, n. 4, may result in the destruction of an embryo. By requiring the Hahns and Greens and their companies to arrange for such coverage, the HHS mandate demands that they engage in conduct that seriously violates their religious beliefs.      If the Hahns and Greens and their companies do not yield to this demand, the economic consequences will be severe. If the companies continue to offer group health plans that do not cover the contraceptives at issue, they will be taxed $100 per day for each affected individual. 26 U. S. C. §4980D. For Hobby Lobby, the bill could amount to $1.3 million per day or about $475 million per year; for Conestoga, the assessment could be $90,000 per day or $33 million per year; and for Mardel, it could be $40,000 per day or about $15 million per year. These sums are surely substantial.      It is true that the plaintiffs could avoid these assessments by dropping insurance coverage altogether and thus forcing their employees to obtain health insurance on one of the exchanges established under ACA. But if at least one of their full-time employees were to qualify for a subsidy on one of the government-run exchanges, this course would also entail substantial economic consequences. The companies could face penalties of $2,000 per employee each year. §4980H. These penalties would amount to roughly $26 million for Hobby Lobby, $1.8 million for Conestoga, and $800,000 for Mardel. B      Although these totals are high, amici supporting HHS have suggested that the $2,000 per-employee penalty is actually less than the average cost of providing health insurance, see Brief for Religious Organizations 22, and therefore, they claim, the companies could readily eliminate any substantial burden by forcing their employees to obtain insurance in the government exchanges. We do not generally entertain arguments that were not raised below and are not advanced in this Court by any party, see United Parcel Service, Inc. v. Mitchell, 451 U. S. 56 , n. 2 (1981); Bell v. Wolfish, 441 U. S. 520 , n. 13 (1979); Knetsch v. United States, 364 U. S. 361, 370 (1960) , and there are strong reasons to adhere to that practice in these cases. HHS, which presumably could have compiled the relevant statistics, has never made this argument—not in its voluminous briefing or at oral argument in this Court nor, to our knowledge, in any of the numerous cases in which the issue now before us has been litigated around the country. As things now stand, we do not even know what the Government’s position might be with respect to these amici’s intensely empirical argument.[ 31 ] For this same reason, the plaintiffs have never had an opportunity to respond to this novel claim that—contrary to their longstanding practice and that of most large employers—they would be better off discarding their employer insurance plans altogether.      Even if we were to reach this argument, we would find it unpersuasive. As an initial matter, it entirely ignores the fact that the Hahns and Greens and their companies have religious reasons for providing health-insurance coverage for their employees. Before the advent of ACA, they were not legally compelled to provide insurance, but they nevertheless did so—in part, no doubt, for conventional business reasons, but also in part because their religious beliefs govern their relations with their employees. See App. to Pet. for Cert. in No. 13–356, p. 11g; App. in No. 13–354, at 139.      Putting aside the religious dimension of the decision to provide insurance, moreover, it is far from clear that the net cost to the companies of providing insurance is more than the cost of dropping their insurance plans and paying the ACA penalty. Health insurance is a benefit that employees value. If the companies simply eliminated that benefit and forced employees to purchase their own insurance on the exchanges, without offering additional compensation, it is predictable that the companies would face a competitive disadvantage in retaining and attracting skilled workers. See App. in No. 13–354, at 153.      The companies could attempt to make up for the elimination of a group health plan by increasing wages, but this would be costly. Group health insurance is generally less expensive than comparable individual coverage, so the amount of the salary increase needed to fully compensate for the termination of insurance coverage may well exceed the cost to the companies of providing the insurance. In addition, any salary increase would have to take into account the fact that employees must pay income taxes on wages but not on the value of employer-provided health insurance. 26 U. S. C. §106(a). Likewise, employers can deduct the cost of providing health insurance, see §162(a)(1), but apparently cannot deduct the amount of the penalty that they must pay if insurance is not pro-vided; that difference also must be taken into account. Given these economic incentives, it is far from clear that it would be financially advantageous for an employer to drop coverage and pay the penalty.[ 32 ]      In sum, we refuse to sustain the challenged regulations on the ground—never maintained by the Government—that dropping insurance coverage eliminates the substantial burden that the HHS mandate imposes. We doubt that the Congress that enacted RFRA—or, for that matter, ACA—would have believed it a tolerable result to put family-run businesses to the choice of violating their sincerely held religious beliefs or making all of their employees lose their existing healthcare plans. C      In taking the position that the HHS mandate does not impose a substantial burden on the exercise of religion, HHS’s main argument (echoed by the principal dissent) is basically that the connection between what the objecting parties must do (provide health-insurance coverage for four methods of contraception that may operate after the fertilization of an egg) and the end that they find to be morally wrong (destruction of an embryo) is simply too attenuated. Brief for HHS in 13–354, pp. 31–34; post, at 22–23. HHS and the dissent note that providing the coverage would not itself result in the destruction of an embryo; that would occur only if an employee chose to take advantage of the coverage and to use one of the four methods at issue.[ 33 ] Ibid.      This argument dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs) and instead addresses a very different question that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable). The Hahns and Greens believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage. This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.[ 34 ] Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS and the principal dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step. See, e.g., Smith, 494 U. S., at 887 (“Repeatedly and in many different contexts, we have warned that courts must not presume to determine . . . the plausibility of a religious claim”); Hernandez v. Commissioner, 490 U. S. 680, 699 (1989) ; Presbyterian Church in U. S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U. S. 440, 450 (1969) .      Moreover, in Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 (1981) , we considered and rejected an argument that is nearly identical to the one now urged by HHS and the dissent. In Thomas, a Jehovah’s Witness was initially employed making sheet steel for a variety of industrial uses, but he was later transferred to a job making turrets for tanks. Id., at 710. Because he objected on religious grounds to participating in the manufacture of weapons, he lost his job and sought unemployment compensation. Ruling against the em-ployee, the state court had difficulty with the line thatthe employee drew between work that he found to be con-sistent with his religious beliefs (helping to manufacture steel that was used in making weapons) and work that he found morally objectionable (helping to make the weapons themselves). This Court, however, held that “it is not for us to say that the line he drew was an unreasonable one.” Id., at 715.[ 35 ]      Similarly, in these cases, the Hahns and Greens and their companies sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our “narrow function . . . in this context is to determine” whether the line drawn reflects “an honest conviction,” id., at 716, and there is no dispute that it does.      HHS nevertheless compares these cases to decisions in which we rejected the argument that the use of general tax revenue to subsidize the secular activities of religious institutions violated the Free Exercise Clause. See Tilton v. Richardson, 403 U. S. 672, 689 (1971) (plurality); Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236 –249 (1968). But in those cases, while the subsidies were clearly contrary to the challengers’ views on a secular issue, namely, proper church-state relations, the challengers never articulated a religious objection to the subsidies. As we put it in Tilton, they were “unable to identify any coercion directed at the practice or exercise of their religious beliefs.” 403 U. S., at 689 (plurality opinion); see Allen, supra, at 249 (“[A]ppellants have not contended that the New York law in any way coerces them as individuals in the practice of their religion”). Here, in contrast, the plaintiffs do assert that funding the specific contraceptive methods at issue violates their religious beliefs, and HHS does not question their sincerity. Because the contraceptive mandate forces them to pay an enormous sum of money—as much as $475 million per year in the case of Hobby Lobby—if they insist on providing insurance coverage in accordance with their religious beliefs, the mandate clearly imposes a substantial burden on those beliefs. V      Since the HHS contraceptive mandate imposes a substantial burden on the exercise of religion, we must move on and decide whether HHS has shown that the mandate both “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U. S. C. §2000bb–1(b). A      HHS asserts that the contraceptive mandate serves a variety of important interests, but many of these are couched in very broad terms, such as promoting “public health” and “gender equality.” Brief for HHS in No. 13–354, at 46, 49. RFRA, however, contemplates a “more focused” inquiry: It “requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” O’Centro, 546 U. S., at 430–431 (quoting §2000bb–1(b)). This requires us to “loo[k] beyond broadly formulated interests” and to “scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants”—in other words, to look to the marginal interest in enforcing the contraceptive mandate in these cases. O Centro, supra, at 431.      In addition to asserting these very broadly framed interests, HHS maintains that the mandate serves a compelling interest in ensuring that all women have access to all FDA-approved contraceptives without cost sharing. See Brief for HHS in No. 13–354, at 14–15, 49; see Brief for HHS in No. 13–356, at 10, 48. Under our cases, women (and men) have a constitutional right to obtain contraceptives, see Griswold v. Connecticut, 381 U. S. 479 –486 (1965), and HHS tells us that “[s]tudies have demonstrated that even moderate copayments for preventive services can deter patients from receiving those services.” Brief for HHS in No. 13–354, at 50 (internal quotation marks omitted).      The objecting parties contend that HHS has not shown that the mandate serves a compelling government interest, and it is arguable that there are features of ACA that support that view. As we have noted, many employees—those covered by grandfathered plans and those who work for employers with fewer than 50 employees—may have no contraceptive coverage without cost sharing at all.      HHS responds that many legal requirements have exceptions and the existence of exceptions does not in itself indicate that the principal interest served by a law is not compelling. Even a compelling interest may be outweighed in some circumstances by another even weightier consideration. In these cases, however, the interest served by one of the biggest exceptions, the exception for grandfathered plans, is simply the interest of employers in avoiding the inconvenience of amending an existing plan. Grandfathered plans are required “to comply with a subset of the Affordable Care Act’s health reform provisions” that provide what HHS has described as “particularly significant protections.” 75 Fed. Reg. 34540 (2010). But the contraceptive mandate is expressly excluded from this subset. Ibid.      We find it unnecessary to adjudicate this issue. We will assume that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA, and we will proceed to consider the final prong of the RFRA test, i.e., whether HHS has shown that the contraceptive mandate is “the least restrictive means of furthering that compelling governmental interest.” §2000bb–1(b)(2). B      The least-restrictive-means standard is exceptionally demanding, see City of Boerne, 521 U. S., at 532, and it is not satisfied here. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties in these cases. See §§2000bb–1(a), (b) (requiring the Government to “demonstrat[e] that application of [a substantial] burden to the person . . . is the least restrictive means of furthering [a] compelling governmental interest” (emphasis added)).      The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. This would certainly be less restrictive of the plaintiffs’ religious liberty, and HHS has not shown, see §2000bb–1(b)(2), that this is not a viable alternative. HHS has not provided any estimate of the average cost per employee of providing access tothese contraceptives, two of which, according to the FDA, are designed primarily for emergency use. See Birth Control: Medicines to Help You, online at http://www.fda.gov/forconsumers/byaudience/forwomen/freepublications/ucm313215.htm. Nor has HHS provided any statistics regarding the number of employees who might be affected because they work for corporations like Hobby Lobby, Conestoga, and Mardel. Nor has HHS told us that it is unable to provide such statistics. It seems likely, however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA. According to one of the Congressional Budget Office’s most recent forecasts, ACA’s insurance-coverage provisions will cost the Federal Government more than $1.3 trillion through the next decade. See CBO, Updated Estimates of the Effects of the Insurance Coverage Provisions of the Affordable Care Act, April 2014, p. 2.[ 36 ] If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS’s argument that it cannot be required under RFRA to pay anything in order to achieve this important goal.      HHS contends that RFRA does not permit us to take this option into account because “RFRA cannot be used to require creation of entirely new programs.” Brief for HHS in 13–354, at 15.[ 37 ] But we see nothing in RFRA that supports this argument, and drawing the line between the “creation of an entirely new program” and the modification of an existing program (which RFRA surely allows) would be fraught with problems. We do not doubt that cost may be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs. Cf. §2000cc–3(c) (RLUIPA: “[T]his chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.”). HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law.      In the end, however, we need not rely on the option of a new, government-funded program in order to conclude that the HHS regulations fail the least-restrictive-means test. HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs. As we explained above, HHS has already established an accommodation for nonprofit organizations with religious objections. See supra, at 9–10, and nn. 8–9. Under that accommodation, the organization can self-certify that it opposes providing coverage for particular contraceptive services. See 45 CFR §§147.131(b)(4), (c)(1); 26 CFR §§54.9815–2713A(a)(4), (b). If the organization makes such a certification, the organization’s insurance issuer or third-party administrator must “[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan” and “[p]rovide separate payments for any contraceptive services required to be covered” without imposing “any cost-sharing requirements . . . on the eligible organization, the group health plan, or plan participants or beneficiaries.” 45 CFR §147.131(c)(2); 26 CFR §54.9815–2713A(c)(2).[ 38 ]      We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims.[ 39 ] At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.[ 40 ]      The principal dissent identifies no reason why this accommodation would fail to protect the asserted needs of women as effectively as the contraceptive mandate, and there is none.[ 41 ]  Under the accommodation, the plaintiffs’ female employees would continue to receive contraceptive coverage without cost sharing for all FDA-approved contraceptives, and they would continue to “face minimal logistical and administrative obstacles,” post, at 28 (internal quotation marks omitted), because their employers’ insurers would be responsible for providing information and coverage, see, e.g., 45 CFR §§147.131(c)–(d); cf. 26 CFR §§54.9815–2713A(b), (d). Ironically, it is the dissent’s approach that would “[i]mped[e] women’s receipt of benefits by ‘requiring them to take steps to learn about, and to sign up for, a new government funded and administered health benefit,’ ” post, at 28, because the dissent would effectively compel religious employers to drop health-insurance coverage altogether, leaving their employees to find individual plans on government-run exchanges or elsewhere. This is indeed “scarcely what Congress contemplated.” Ibid. C      HHS and the principal dissent argue that a ruling in favor of the objecting parties in these cases will lead to a flood of religious objections regarding a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions, but HHS has made no effort to substantiate this prediction.[ 42 ] HHS points to no evidence that insurance plans in existence prior to the enactment of ACA excluded coverage for such items. Nor has HHS provided evidence that any significant number of employers sought exemption, on religious grounds, from any of ACA’s coverage requirements other than the contraceptive mandate.      It is HHS’s apparent belief that no insurance-coverage mandate would violate RFRA—no matter how significantly it impinges on the religious liberties of employers—that would lead to intolerable consequences. Under HHS’s view, RFRA would permit the Government to require all employers to provide coverage for any medical procedure allowed by law in the jurisdiction in question—for instance, third-trimester abortions or assisted suicide. The owners of many closely held corporations could not in good conscience provide such coverage, and thus HHS would effectively exclude these people from full participation in the economic life of the Nation. RFRA was enacted to prevent such an outcome.      In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.      The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. See post, at 32–33. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.      HHS also raises for the first time in this Court the argument that applying the contraceptive mandate to for-profit employers with sincere religious objections is essential to the comprehensive health-insurance scheme that ACA establishes. HHS analogizes the contraceptive mandate to the requirement to pay Social Security taxes, which we upheld in Lee despite the religious objection of an employer, but these cases are quite different. Our holding in Lee turned primarily on the special problems associated with a national system of taxation. We noted that “[t]he obligation to pay the social security tax initially is not fundamentally different from the obligation to pay income taxes.” 455 U. S., at 260. Based on that premise, we explained that it was untenable to allow individuals to seek exemptions from taxes based on religious objections to particular Government expenditures: “If, for example, a religious adherent believes war is a sin, and if a certain percentage of the federal budget can be identified as devoted to war-related activities, such individuals would have a similarly valid claim to be exempt from paying that percentage of the income tax.” Ibid. We observed that “[t]he tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief.” Ibid.; see O Centro, 546 U. S., at 435.      Lee was a free-exercise, not a RFRA, case, but if the issue in Lee were analyzed under the RFRA framework, the fundamental point would be that there simply is no less restrictive alternative to the categorical requirement to pay taxes. Because of the enormous variety of government expenditures funded by tax dollars, allowing tax-payers to withhold a portion of their tax obligations on religious grounds would lead to chaos. Recognizingexemptions from the contraceptive mandate is very different. ACA does not create a large national pool of tax revenue for use in purchasing healthcare coverage. Rather, individual employers like the plaintiffs purchase insurance for their own employees. And contrary to the principal dissent’s characterization, the employers’ contributions do not necessarily funnel into “undifferentiated funds.” Post, at 23. The accommodation established by HHS requires issuers to have a mechanism by which to “segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services.” 45 CFR §147.131(c)(2)(ii). Recognizing a religious accommodation under RFRA for particular coverage requirements, therefore, does not threaten the viability of ACA’s comprehensive scheme in the way that recognizing religious objections to particular expenditures from general tax revenues would.[ 43 ]      In its final pages, the principal dissent reveals that its fundamental objection to the claims of the plaintiffs is an objection to RFRA itself. The dissent worries about forcing the federal courts to apply RFRA to a host of claims made by litigants seeking a religious exemption from generally applicable laws, and the dissent expresses a desire to keep the courts out of this business. See post, at 32–35. In making this plea, the dissent reiterates a point made forcefully by the Court in Smith. 494 U. S., at 888–889 (applying the Sherbert test to all free-exercise claims “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind”). But Congress, in enacting RFRA, took the position that “the compelling interest test as set forth in prior Federal court rulings is a workable test forstriking sensible balances between religious liberty and competing prior governmental interests.” 42 U. S. C. §2000bb(a)(5). The wisdom of Congress’s judgment on this matter is not our concern. Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful. *  *  *      The contraceptive mandate, as applied to closely held corporations, violates RFRA. Our decision on that statutory question makes it unnecessary to reach the First Amendment claim raised by Conestoga and the Hahns.      The judgment of the Tenth Circuit in No. 13–354 is affirmed; the judgment of the Third Circuit in No. 13–356 is reversed, and that case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 See also , at 8 (“The exemption sought by Hobby Lobby and Conestoga . . . would deny [their employees] access to contraceptive coverage that the ACA would otherwise secure”) 2 The Act defines “government” to include any “department” or“agency” of the United States. §2000bb–2(1). 3 In v. , 521 U. S., 507 (1997), we wrote that RFRA’s “least restrictive means requirement was not used in the pre-jurisprudence RFRA purported to codify.” , at 509. On this understanding of our pre- cases, RFRA did more than merely restore the balancing test used in the line of cases; it provided even broader protection for religious liberty than was available under those decisions. 4 See, , v., 441 F. 3d 96, 108 (CA2 2006); v., 290 F. 3d 1210, 1220 (CA9 2002). 5 The principal dissent appears to contend that this rule of construction should apply only when defining the “exercise of religion” in an RLUIPA case, but not in a RFRA case. See , at 11, n. 10. That argument is plainly wrong. Under this rule of construction, the phrase “exercise of religion,” as it appears in RLUIPA, must be interpreted broadly, and RFRA states that the same phrase, as used in RFRA, means “religious exercis[e] as defined in [RLUIPA].” –2(4). It necessarily follows that the “exercise of religion” under RFRA must be given the same broad meaning that applies under RLUIPA. 6 We will use “Brief for HHS” to refer to the Brief for Petitioners in No. 13–354 and the Brief for Respondents in No. 13–356. The federal parties are the Departments of HHS, Treasury, and Labor, and the Secretaries of those Departments. 7 Online at http://www.fda.gov/forconsumers/byaudience/forwomen/freepublications/ucm313215.htm. The owners of the companies involved in these cases and others who believe that life begins at conception regard these four methods as causing abortions, but federal regulations, which define pregnancy as beginning at implantation, see, ., 62 Fed. Reg. 8611 (1997); 45 CFR §46.202(f) (2013), do not so classify them. 8 In the case of self-insured religious organizations entitled to the accommodation, the third-party administrator of the organization must “provide or arrange payments for contraceptive services” for the organization’s employees without imposing any cost-sharing requirements on the eligible organization, its insurance plan, or its employee beneficiaries. 78 Fed. Reg. 39893 (to be codified in 26 CFR §54.9815–2713A(b)(2)). The regulations establish a mechanism for these third-party administrators to be compensated for their expenses by obtaining a reduction in the fee paid by insurers to participate in the federally facilitated exchanges. See 78 Fed. Reg. 39893 (to be codified in 26 CFR §54.9815–2713A (b)(3)). HHS believes that these fee reductions will not materially affect funding of the exchanges because “payments for contraceptive services will represent only a small portion of total [exchange] user fees.” 78 Fed. Reg. 39882. 9 In a separate challenge to this framework for religious nonprofit organizations, the Court recently ordered that, pending appeal, the eligible organizations be permitted to opt out of the contraceptive mandate by providing written notification of their objections to the Secretary of HHS, rather than to their insurance issuers or third-party administrators. See v. , 571 U. S. ___ (2014). 10 While the Government predicts that this number will decline over time, the total number of Americans working for employers to whom the contraceptive mandate does not apply is still substantial, and there is no legal requirement that grandfathered plans ever be phased out. 11 Online at http : / / www . whitehouse . gov / files / documents / health _reform_for_small_businesses.pdf. 12 Mennonite Church USA, Statement on Abortion, online athttp://www.mennoniteusa.org /resource-center/resources /statements -and-resolutions/statement-on-abortion/. 13 The Hahns and Conestoga also claimed that the contraceptive mandate violates the and the Administrative Procedure Act, , but those claims are not before us. 14 See, , WebMD Health News, New Morning-After Pill Ella Wins FDA Approval, online at http://www.webmd.com/sex/birth-control/news/20100813/new-morning-after-pill-ella-wins-fda-approval. 15 The Greens operate Hobby Lobby and Mardel through a management trust, of which each member of the family serves as trustee. 723 F. 3d 1114, 1122 (CA10 2013). The family provided that the trust would also be governed according to their religious principles. 16 They also raised a claim under the Administrative Procedure Act, . 17 Given its RFRA ruling, the court declined to address the plaintiffs’ free-exercise claim or the question whether the Greens could bring RFRA claims as individual owners of Hobby Lobby and Mardel. Four judges, however, concluded that the Greens could do so, see 723 F. 3d, at 1156 (Gorsuch, J., concurring); , at 1184 (Matheson, J., concurring in part and dissenting in part), and three of those judges would have granted plaintiffs a preliminary injunction, see , at 1156 (Gorsuch, J., concurring). 18 As discussed, n. 3, , in we stated that RFRA, by imposing a least-restrictive-means test, went beyond what was required by our pre-decisions. Although the author of the principal dissent joined the Court’s opinion in , she now claims that the statement was incorrect. , at 12. For present purposes, it is unnecessary to adjudicate this dispute. Even if RFRA simply restored the status quo ante, there is no reason to believe, as HHS and the dissent seem to suggest, that the law was meant to be limited to situations that fall squarely within the holdings of pre- cases. See , at 25–28. 19 Cf. Brief for Federal Petitioners in , O. T. 2004, No. 04–1084, p. II (stating that the organizational respondent was “a New Mexico Corporation”); Brief for Federal Respondent in , O. T. 2011, No. 10–553, p. 3 (stating that the petitioner was an “ecclesiastical corporation”). 20 Not only does the Government concede that the term “persons” in RFRA includes nonprofit corporations, it goes further and appears to concede that the term might also encompass other artificial entities, namely, general partnerships and unincorporated associations. See Brief for HHS in No. 13–354, at 28, 40. 21 Although the principal dissent seems to think that Justice Brennan’s statement in provides a ground for holding that for-profit corporations may not assert free-exercise claims, that was not Justice Brennan’s view. See v., (dissenting opinion); , at 26–27. 22 It is revealing that the principal dissent cannot even bring itself to acknowledge that was correct in entertaining the merchants’ claims. See at 19 (dismissing the relevance of in part because “[t]he free exercise claim asserted there was promptly rejected on the merits”). 23 See, ., 724 F. 3d, at 385 (“We do not see how a for-profit, ‘artificial being,’ . . . that was created to make money” could exercise religion); v., 708 F. 3d 850, 857 (CA7 2013) (Rovner, J. dissenting) (“So far as it appears, the mission of Grote Industries, like that of any other for-profit, secular business, is to make money in the commercial sphere”); v., 730 F. 3d 618, 626 (CA7 2013) (“Congress did not intend to include corporations primarily organized for secular, profit-seeking purposes as ‘persons’ under RFRA”); see also 723 F. 3d, at 1171–1172 (Briscoe, C. J., dissenting) (“[T]he specific purpose for which [a corporation] is created matters greatly to how it will be categorized and treated under the law” and “it is undisputed that Hobby Lobby and Mardel are for-profit corporations focused on selling merchandise to consumers”). 24 See, , M. Sanders, Joint Ventures Involving Tax-Exempt Organizations 555 (4th ed. 2013) (describing Google.org, which “advance[s] its charitable goals” while operating as a for-profit corporation to be able to “invest in for-profit endeavors, lobby for policies that support its philanthropic goals, and tap Google’s innovative technology and workforce” (internal quotation marks and alterations omitted)); cf. 26 CFR §1.501(c)(3)–1(c)(3). 25 See Benefit Corp Information Center, online at http://www.benefitcorp.net/state-by-state-legislative-status; , Va. Code Ann. §§13.1–787, 13.1–626, 13.1–782 (Lexis 2011) (“A benefit corporation shall have as one of its purposes the purpose of creating a general public benefit,” and “may identify one or more specific public benefits that it is the purpose of the benefit corporation to create. . . . This purpose is in addition to [the purpose of engaging in any lawful business].” “ ‘Specific public benefit’ means a benefit that serves one or more public welfare, religious, charitable, scientific, literary, or educational purposes, or other purpose or benefit beyond the strict interest of the shareholders of the benefit corporation . . . .”); S. C. Code Ann. §§33–38–300 (2012 Cum. Supp.), 33–3–101 (2006), 33–38–130 (2012 Cum. Supp.) (similar). 26 See Brief for Appellants in , O. T. 1960 No. 11, pp. 16, 28–31 (arguing that corporation “has no ‘religious belief’ or ‘religious liberty,’ and had no standing in court to assert that its free exercise of religion was impaired”). 27 The principal dissent points out that “the exemption codified in §238n(a) was not enacted until three years after RFRA’s passage.” , at 16, n. 15. The dissent takes this to mean that RFRA did not, in fact, “ope[n] all statutory schemes to religion-based challenges by for-profit corporations” because if it had “there would be no need for a statute-specific, post-RFRA exemption of this sort.” . 28 To qualify for RFRA’s protection, an asserted belief must be “sincere”; a corporation’s pretextual assertion of a religious belief in order to obtain an exemption for financial reasons would fail. Cf., ., v. , 608 F. 3d 717, 718–719 (CA10 2010). 29 See, , v. , 90 F. 3d 293, 296 (CA8 1996); v., 525 F. Supp. 81, 83–84 (ED Mo. 1981);v. , 1996 WL 5320, *5 (CA9, Jan. 5, 1996);v., 549 N. W. 2d 819–820 (Iowa 1996). 30 The principal dissent attaches significance to the fact that the “Senate voted down [a] so-called ‘conscience amendment,’ which would have enabled any employer or insurance provider to deny coverage based on its asserted religious beliefs or moral convictions.” , at 6. The dissent would evidently glean from that vote an intent by the Senate to prohibit for-profit corporate employers from refusing to offer contraceptive coverage for religious reasons, regardless of whether the contraceptive mandate could pass muster under RFRA’s standards. But that is not the only plausible inference from the failed amendment—or even the most likely. For one thing, the text of the amendment was “written so broadly that it would allow any employer to deny any health service to any American for virtually any reason—.” 158 Cong. Rec. S1165 (Mar. 1, 2012) (emphasis added). Moreover, the amendment would have authorized a blanket exemption for religious or moral objectors; it would not have subjected religious-based objections to the judicial scrutiny called for by RFRA, in which a court must consider not only the burden of a requirement on religious adherents, but also the government’s interest and how narrowly tailored the requirement is. It is thus perfectly reasonable to believe that the amendment was voted down because it extended more broadly than the pre-existing protections of RFRA. And in any event, even if a rejected amendment to a bill could be relevant in other contexts, it surely cannot be relevant here, because any “Federal statutory law adopted after November 16, 1993 is subject to [RFRA] unless such law such application by reference to [RFRA].” –3(b) (emphasis added). It is not plausible to find such an explicit reference in the meager legislative history on which the dissent relies. 31 Indeed, one of HHS’s stated reasons for establishing the religious accommodation was to “encourag[e] eligible organizations to to offer health coverage.” 78 Fed. Reg. 39882 (2013) (emphasis added). 32 Attempting to compensate for dropped insurance by raising wages would also present administrative difficulties. In order to provide full compensation for employees, the companies would have to calculate the value to employees of the convenience of retaining their employer-provided coverage and thus being spared the task of attempting to find and sign up for a comparable plan on an exchange. And because some but not all of the companies’ employees may qualify for subsidies on an exchange, it would be nearly impossible to calculate a salary increase that would accurately restore the status quo ante for all employees. 33 This argument is not easy to square with the position taken by HHS in providing exemptions from the contraceptive mandate for religious employers, such as churches, that have the very same religious objections as the Hahns and Greens and their companies. The connection between what these religious employers would be required to do if not exempted (provide insurance coverage for particular contraceptives) and the ultimate event that they find morally wrong (destruction of an embryo) is exactly the same. Nevertheless, as discussed, HHS and the Labor and Treasury Departments authorized the exemption from the contraceptive mandate of group health plans of certain religious employers, and later expanded the exemption to include certain nonprofit organizations with religious objections to contraceptive coverage. 78 Fed. Reg. 39871. When this was done, the Government made clear that its objective was to “protec[t]” these religious objectors “from having to contract, arrange, pay, or refer for such coverage.” . Those exemptions would be hard to understand if the plaintiffs’ objections here were not substantial. 34 See, ., Oderberg, The Ethics of Co-operation in Wrongdoing, in Modern Moral Philosophy 203–228 (A. O’Hear ed. 2004); T. Higgins, Man as Man: The Science and Art of Ethics 353, 355 (1949) (“The general principles governing cooperation” in wrongdoing—., “physical activity (or its omission) by which a person assists in the evil act of another who is the principal agent”—“present troublesome difficulties in application”); 1 H. Davis, Moral and Pastoral Theology 341 (1935) (Cooperation occurs “when A helps B to accomplish an external act by an act that is not sinful, and without approving of what B does”). 35 The principal dissent makes no effort to reconcile its view about the substantial-burden requirement with our decision in . 36 Online at http://cbo.gov/publication/45231. 37 In a related argument, HHS appears to maintain that a plaintiff cannot prevail on a RFRA claim that seeks an exemption from a legal obligation requiring the plaintiff to confer benefits on third parties. Nothing in the text of RFRA or its basic purposes supports giving the Government an entirely free hand to impose burdens on religious exercise so long as those burdens confer a benefit on other individuals. It is certainly true that in applying RFRA “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” v., (applying RLUIPA). That consideration will often inform the analysis of the Government’s compelling interest and the availability of a less restrictive means of advancing that interest. But it could not reasonably be maintained that any burden on religious exercise, no matter how onerous and no matter how readily the government interest could be achieved through alternative means, is permissible under RFRA so long as the relevant legal obligation requires the religious adherent to confer a benefit on third parties. Otherwise, for example, the Government could decide that all supermarkets must sell alcohol for the convenience of customers (and thereby exclude Muslims with religious objections from owning supermarkets), or it could decide that all restaurants must remain open on Saturdays to give employees an opportunity to earn tips (and thereby exclude Jews with religious objections from owning restaurants). By framing any Government regulation as benefiting a third party, the Government could turn all regulations into entitlements to which nobody could object on religious grounds, rendering RFRA meaningless. In any event, our decision in these cases need not result in any detrimental effect on any third party. As we explain, see , at 43–44, the Government can readily arrange for other methods of providing contraceptives, without cost sharing, to employees who are unable to obtain them under their health-insurance plans due to their employers’ religious objections. 38 HHS has concluded that insurers that insure eligible employers opting out of the contraceptive mandate and that are required to pay for contraceptive coverage under the accommodation will not experience an increase in costs because the “costs of providing contraceptive coverage are balanced by cost savings from lower pregnancy-related costs and from improvements in women’s health.” 78 Fed. Reg. 39877. With respect to self-insured plans, the regulations establish a mechanism for the eligible employers’ third-party administrators to obtain a compensating reduction in the fee paid by insurers to participate in the federally facilitated exchanges. HHS believes that this system will not have a material effect on the funding of the exchanges because the “payments for contraceptive services will represent only a small portion of total [federally facilitated exchange] user fees.” at 39882; see 26 CFR §54.9815–2713A(b)(3). 39 See n. 9, . 40 The principal dissent faults us for being “noncommital” in refusing to decide a case that is not before us here. , at 30.The less re-strictive approach we describe accommodates the religious beliefs as-serted in these cases, and that is the only question we are permittedto address. 41 In the principal dissent’s view, the Government has not had a fair opportunity to address this accommodation, , at 30. n. 27, but the Government itself apparently believes that when it “provides an exception to a general rule for secular reasons (or for only certain religious reasons), [it] must explain why extending a comparable exception to a specific plaintiff for religious reasons would undermine its compelling interests.” Brief for the United States as in v., No. 13–6827, p. 10, now pending before the Court. 42 Cf. 42 U. S. C. §1396s (Federal “program for distribution of pediatric vaccines” for some uninsured and underinsured children). 43 HHS highlights certain statements in the opinion in that it regards as supporting its position in these cases. In particular, HHS notes the statement that “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” 455 U. S., at 261. was a free exercise, not a RFRA, case, and the statement to which HHS points, if taken at face value, is squarely inconsistent with the plain meaning of RFRA. Under RFRA, when followers of a particular religion choose to enter into commercial activity, the Government does not have a free hand in imposing obligations that substantially burden their exercise of religion. Rather, the Government can impose such a burden only if the strict RFRA test is met. SUPREME COURT OF THE UNITED STATES _________________ Nos. 13–354 and 13–356 _________________ SYLVIA BURWELL, SECRETARY OF HEALTHAND HUMAN SERVICES, et al., PETITIONERS 13–354      v. HOBBY LOBBY STORES, INC., et al. on writ of certiorari to the united states courtof appeals for the tenth circuit and CONESTOGA WOOD SPECIALTIES CORPORATIONet al., PETITIONERS 13–356      v. SYLVIA BURWELL, SECRETARY OF HEALTHAND HUMAN SERVICES, et al. on writ of certiorari to the united states courtof appeals for the third circuit [June 30, 2014]      Justice Kennedy, concurring.      It seems to me appropriate, in joining the Court’s opinion, to add these few remarks. At the outset it should be said that the Court’s opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent. The Court and the dissent disagree on the proper interpretation of the Religious Freedom and Restoration Act of 1993 (RFRA), but do agree on the purpose of that statute. 42 U. S. C. §2000bb et seq. It is to ensure that interests in religious freedom are protected. Ante, at 5–6; post, at 8–9 (Ginsburg, J., dissenting).      In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts. Free exercise in this sense implicates more than just freedom of belief. See Cantwell v. Connecticut, 310 U. S. 296, 303 (1940) . It means, too, the rightto express those beliefs and to establish one’s religious(or nonreligious) self-definition in the political, civic, and economic life of our larger community. But in a complex society and an era of pervasive governmental regulation, defining the proper realm for free exercise can be difficult. In these cases the plaintiffs deem it necessary to exercise their religious beliefs within the context of their own closely held, for-profit corporations. They claim protection under RFRA, the federal statute discussed with care and in detail in the Court’s opinion.      As the Court notes, under our precedents, RFRA imposes a “ ‘stringent test.’ ” Ante, at 6 (quoting City of Boerne v. Flores, 521 U. S. 507, 533 (1997) ). The Government must demonstrate that the application of a substantial burden to a person’s exercise of religion “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” §2000bb–1(b).      As to RFRA’s first requirement, the Department of Health and Human Services (HHS) makes the case that the mandate serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees, coverage that is significantly more costly than for a male employee. Ante, at 39; see, e.g., Brief for HHS in No. 13–354, pp. 14–15. There are many medical conditions for which pregnancy is contraindicated. See, e.g., id., at 47. It is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees. Ante, at 40.      But the Government has not made the second showing required by RFRA, that the means it uses to regulate is the least restrictive way to further its interest. As the Court’s opinion explains, the record in these casesshows that there is an existing, recognized, workable, and already-implemented framework to provide coverage. That framework is one that HHS has itself devised, that the plaintiffs have not criticized with a specific objection that has been considered in detail by the courts in this litigation, and that is less restrictive than the means challenged by the plaintiffs in these cases. Ante, at 9–10, and n. 9, 43–44.      The means the Government chose is the imposition of a direct mandate on the employers in these cases. Ante, at 8–9. But in other instances the Government has allowed the same contraception coverage in issue here to be provided to employees of nonprofit religious organizations, as an accommodation to the religious objections of those entities. See ante, at 9–10, and n. 9, 43–44. The accommodation works by requiring insurance companies to cover, without cost sharing, contraception coverage for female employees who wish it. That accommodation equally furthers the Government’s interest but does not impinge on the plaintiffs’ religious beliefs. See ante, at 44.      On this record and as explained by the Court, the Government has not met its burden of showing that it cannot accommodate the plaintiffs’ similar religious objections under this established framework. RFRA is inconsis-tent with the insistence of an agency such as HHS on distinguishing between different religious believers—bur-dening one while accommodating the other—when itmay treat both equally by offering both of them the same accommodation.      The parties who were the plaintiffs in the District Courts argue that the Government could pay for the methods that are found objectionable. Brief for Respondents in No. 13–354, p. 58. In discussing this alternative, the Court does not address whether the proper response to a legitimate claim for freedom in the health care arena is for the Government to create an additional program. Ante, at 41–43. The Court properly does not resolve whether one freedom should be protected by creating incentives for additional government constraints. In these cases, it is the Court’s understanding that an accommodation may be made to the employers without imposition of a whole new program or burden on the Government. As the Court makes clear, this is not a case where it can be established that it is difficult to accommodate the government’s interest, and in fact the mechanism for doing so is already in place. Ante, at 43–44.      “[T]he American community is today, as it long has been, a rich mosaic of religious faiths.” Town of Greece v. Galloway, 572 U. S. ___, ___ (2014) (Kagan, J., dissenting) (slip op., at 15). Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion. Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling. In these cases the means to reconcile those two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstances closely parallel to those presented here. RFRA requires the Government to use this less restrictive means. As the Court explains, this existing model, designed precisely for this problem, might well suffice to distinguish the instant cases from many others in which it is more difficult and expensive to accommodate a governmental program to countless religious claims based on an alleged statutory right of free exercise. Ante, at 45–46.      For these reasons and others put forth by the Court, I join its opinion. SUPREME COURT OF THE UNITED STATES _________________ Nos. 13–354 and 13–356 _________________ SYLVIA BURWELL, SECRETARY OF HEALTHAND HUMAN SERVICES, et al., PETITIONERS 13–354      v. HOBBY LOBBY STORES, INC., et al. on writ of certiorari to the united states courtof appeals for the tenth circuit and CONESTOGA WOOD SPECIALTIES CORPORATIONet al., PETITIONERS 13–356      v. SYLVIA BURWELL, SECRETARY OF HEALTHAND HUMAN SERVICES, et al. on writ of certiorari to the united states courtof appeals for the third circuit [June 30, 2014]      Justice Ginsburg, with whom Justice Sotomayor joins, and with whom Justice Breyer and Justice Kagan join as to all but Part III–C–1, dissenting.      In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. See ante, at 16–49. Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based opt-outs impose on others, hold no sway, the Court decides, at least when there is a “less restrictive alternative.” And such an alternative, the Court suggests, there always will be whenever, in lieu of tolling an enterprise claiming a religion-based exemption, the government, i.e., the general public, can pick up the tab. See ante, at 41–43.[ 1 ]      The Court does not pretend that the First Amendment’s Free Exercise Clause demands religion-based accommodations so extreme, for our decisions leave no doubt on that score. See infra, at 6–8. Instead, the Court holds that Congress, in the Religious Freedom Restoration Act of 1993 (RFRA), 42 U. S. C. §2000bb et seq., dictated the extraordinary religion-based exemptions today’s decision endorses. In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent. I      “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 856 (1992) . Congress acted on that understanding when, as part of a nationwide insurance program intended to be comprehensive, it called for coverage of preventive care responsive to women’s needs. Carrying out Congress’ direction, the Department of Health and Human Services (HHS), in consultation with public health experts, promulgated regulations requiring group health plans to cover all forms of contraception approved by the Food and Drug Administration (FDA). The genesis of this coverage should enlighten the Court’s resolution of these cases. A      The Affordable Care Act (ACA), in its initial form, specified three categories of preventive care that health plans must cover at no added cost to the plan participant or beneficiary.[ 2 ] Particular services were to be recommended by the U. S. Preventive Services Task Force, an independent panel of experts. The scheme had a large gap, how-ever; it left out preventive services that “many women’s health advocates and medical professionals believe are critically important.” 155 Cong. Rec. 28841 (2009) (statement of Sen. Boxer). To correct this oversight, Senator Barbara Mikulski introduced the Women’s Health Amendment, which added to the ACA’s minimum coverage requirements a new category of preventive services specific to women’s health.      Women paid significantly more than men for preventive care, the amendment’s proponents noted; in fact, cost barriers operated to block many women from obtaining needed care at all. See, e.g., id., at 29070 (statement of Sen. Feinstein) (“Women of childbearing age spend 68 percent more in out-of-pocket health care costs than men.”); id., at 29302 (statement of Sen. Mikulski) (“copayments are [often] so high that [women] avoid getting [preventive and screening services] in the first place”). And increased access to contraceptive services, the sponsors comprehended, would yield important public health gains. See, e.g., id., at 29768 (statement of Sen. Durbin) (“This bill will expand health insurance coverage to the vast majority of [the 17 million women of reproductive age in the United States who are uninsured] . . . . This expanded access will reduce unintended pregnancies.”).      As altered by the Women’s Health Amendment’s passage, the ACA requires new insurance plans to include coverage without cost sharing of “such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [(HRSA)],” a unit of HHS. 42 U. S. C. §300gg–13(a)(4). Thus charged, the HRSA developed recommendations in consultation with the Institute of Medicine (IOM). See 77 Fed. Reg. 8725–8726 (2012).[ 3 ] The IOM convened a group of independent experts, including “specialists in disease prevention [and] women’s health”; those experts prepared a report evaluating the efficacy of a number of preventive services. IOM, Clinical Prevention Services for Women: Closing the Gaps 2 (2011) (hereinafter IOM Report). Consistent with the findings of “[n]umerous health professional associations” and other organizations, the IOM experts determined that preventive coverage should include the “full range” of FDA-approved contraceptive methods. Id., at 10. See also id., at 102–110.      In making that recommendation, the IOM’s report expressed concerns similar to those voiced by congres-sional proponents of the Women’s Health Amendment. The report noted the disproportionate burden women carried for comprehensive health services and the adverse health consequences of excluding contraception from preventive care available to employees without cost sharing. See, e.g., id., at 19 (“[W]omen are consistently more likely than men to report a wide range of cost-related barriers to receiving . . . medical tests and treatments and to filling prescriptions for themselves and their families.”); id., at 103–104, 107 (pregnancy may be contraindicated forwomen with certain medical conditions, for example, some congenital heart diseases, pulmonary hypertension, and Marfan syndrome, and contraceptives may be used to reduce risk of endometrial cancer, among other serious medical conditions); id., at 103 (women with unintended pregnancies are more likely to experience depression and anxiety, and their children face “increased odds of preterm birth and low birth weight”).      In line with the IOM’s suggestions, the HRSA adopted guidelines recommending coverage of “[a]ll [FDA-]approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.”[ 4 ] Thereafter, HHS, the Department of Labor, and the Department of Treasury promulgated regulations requiring group health plans to include coverage of the contraceptive services recommended in the HRSA guidelines, subject to certain exceptions, described infra, at 25–27.[ 5 ] This opinion refers to these regulations as the contraceptive coverage requirement. B      While the Women’s Health Amendment succeeded, a countermove proved unavailing. The Senate voted down the so-called “conscience amendment,” which would have enabled any employer or insurance provider to deny coverage based on its asserted “religious beliefs or moral convictions.” 158 Cong. Rec. S539 (Feb. 9, 2012); see id., at S1162–S1173 (Mar. 1, 2012) (debate and vote).[ 6 ] That amendment, Senator Mikulski observed, would have “pu[t] the personal opinion of employers and insurers over the practice of medicine.” Id., at S1127 (Feb. 29, 2012). Rejecting the “conscience amendment,” Congress left health care decisions—including the choice among contraceptive methods—in the hands of women, with the aid of their health care providers. II      Any First Amendment Free Exercise Clause claim Hobby Lobby or Conestoga[ 7 ] might assert is foreclosed by this Court’s decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990) . In Smith, two members of the Native American Church were dismissed from their jobs and denied unemployment benefits because they ingested peyote at, and as an essential element of, a religious ceremony. Oregon law forbade the consumption of peyote, and this Court, relying on that prohibition, rejected the employees’ claim that the denial of unemployment benefits violated their free exercise rights. The First Amendment is not offended, Smith held, when “prohibiting the exercise of religion . . . is not the object of [governmental regulation] but merely the incidental effect of a generally applicable and otherwise valid provision.” Id., at 878; see id., at 878–879 (“an individ-ual’s religious beliefs [do not] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate”). The ACA’s contraceptive coverage requirement applies generally, it is “otherwise valid,” it trains on women’s well being, not on the exerciseof religion, and any effect it has on such exercise isincidental.      Even if Smith did not control, the Free Exercise Clause would not require the exemption Hobby Lobby and Conestoga seek. Accommodations to religious beliefs or observances, the Court has clarified, must not significantly impinge on the interests of third parties.[ 8 ]      The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations’ employees and covered dependents. It would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure. See Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal. 4th 527, 565, 85 P. 3d 67, 93 (2004) (“We are unaware of any decision in which . . . [the U. S. Supreme Court] has exempted a religious objector from the operation of a neutral, generally applicable law despite the recognition that the requested exemption would detrimentally affect the rights of third parties.”). In sum, with respect to free exercise claims no less than free speech claims, “ ‘[y]our right to swing your arms ends just where the other man’s nose begins.’ ” Chafee, Freedom of Speech in War Time, 32 Harv. L. Rev. 932, 957 (1919). III A      Lacking a tenable claim under the Free Exercise Clause, Hobby Lobby and Conestoga rely on RFRA, a statute instructing that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government shows that application of the burden is “the least restrictive means” to further a “compelling governmental interest.” 42 U. S. C. §2000bb–1(a), (b)(2). In RFRA, Congress “adopt[ed] a statutory rule comparable to the constitutional rule rejected in Smith.” Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U. S. 418, 424 (2006) .      RFRA’s purpose is specific and written into the statute itself. The Act was crafted to “restore the compelling interest test as set forth in Sherbert v. Verner, 374 U. S. 398 (1963) and Wisconsin v. Yoder, 406 U. S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened.” §2000bb(b)(1).[ 9 ] See also §2000bb(a)(5) (“[T]he compelling interest test as set forth in prior Federal court rulings isa workable test for striking sensible balances between religious liberty and competing prior governmental in-terests.”); ante, at 48 (agreeing that the pre-Smith compelling interest test is “workable” and “strike[s] sensible balances”).      The legislative history is correspondingly emphatic on RFRA’s aim. See, e.g., S. Rep. No. 103–111, p. 12 (1993) (hereinafter Senate Report) (RFRA’s purpose was “only to overturn the Supreme Court’s decision in Smith,” not to “unsettle other areas of the law.”); 139 Cong. Rec. 26178 (1993) (statement of Sen. Kennedy) (RFRA was “designed to restore the compelling interest test for deciding free exercise claims.”). In line with this restorative purpose, Congress expected courts considering RFRA claims to “look to free exercise cases decided prior to Smith for guidance.” Senate Report 8. See also H. R. Rep. No. 103–88, pp. 6–7 (1993) (hereinafter House Report) (same). In short, the Act reinstates the law as it was prior to Smith, without “creat[ing] . . . new rights for any religious practice or for any potential litigant.” 139 Cong. Rec. 26178 (statement of Sen. Kennedy). Given the Act’s moderate purpose, it is hardly surprising that RFRA’s enactment in 1993 provoked little controversy. See Brief for Senator Murray et al. as Amici Curiae 8 (hereinafter Senators Brief ) (RFRA was approved by a 97-to-3 vote in the Senate and a voice vote in the House of Representatives). B      Despite these authoritative indications, the Court sees RFRA as a bold initiative departing from, rather than restoring, pre-Smith jurisprudence. See ante, at 6, n. 3, 7, 17, 25–27. To support its conception of RFRA as a measure detached from this Court’s decisions, one that sets a new course, the Court points first to the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U. S. C. §2000cc et seq., which altered RFRA’s definition of the term “exercise of religion.” RFRA, as originally enacted, defined that term to mean “the exercise of religion under the First Amendment to the Constitution.” §2000bb–2(4) (1994 ed.). See ante, at 6–7. As amended by RLUIPA, RFRA’s definition now includes “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” §2000bb–2(4) (2012 ed.) (cross-referencing §2000cc–5). That definitional change, according to the Court, reflects “an obvious effort to effect a complete separation from First Amendment case law.” Ante, at 7.      The Court’s reading is not plausible. RLUIPA’s alteration clarifies that courts should not question the centrality of a particular religious exercise. But the amendment in no way suggests that Congress meant to expand the class of entities qualified to mount religious accommodation claims, nor does it relieve courts of the obligation to inquire whether a government action substantially burdens a religious exercise. See Rasul v. Myers, 563 F. 3d 527, 535 (CADC 2009) (Brown, J., concurring) (“There is no doubt that RLUIPA’s drafters, in changing the definition of ‘exercise of religion,’ wanted to broaden the scope of the kinds of practices protected by RFRA, not increase the universe of individuals protected by RFRA.”); H. R. Rep. No. 106–219, p. 30 (1999). See also Gilardi v. United States Dept. of Health and Human Servs., 733 F. 3d 1208, 1211 (CADC 2013) (RFRA, as amended, “provides us with no helpful definition of ‘exercise of religion.’ ”); Henderson v. Kennedy, 265 F. 3d 1072, 1073 (CADC 2001) (“The [RLUIPA] amendments did not alter RFRA’s basic prohibition that the ‘[g]overnment shall not substantially burden a person’s exercise of religion.’ ”).[ 10 ]      Next, the Court highlights RFRA’s requirement that the government, if its action substantially burdens a person’s religious observance, must demonstrate that it chose the least restrictive means for furthering a compelling interest. “[B]y imposing a least-restrictive-means test,” the Court suggests, RFRA “went beyond what was required by our pre-Smith decisions.” Ante, at 17, n. 18 (citing City of Boerne v. Flores, 521 U. S. 507 (1997) ). See also ante, at 6, n. 3. But as RFRA’s statements of purpose and legislative history make clear, Congress intended only to restore, not to scrap or alter, the balancing test as this Court had applied it pre-Smith. See supra, at 8–9. See also Senate Report 9 (RFRA’s “compelling interest test generally should not be construed more stringently or more leniently than it was prior to Smith.”); House Report 7 (same).      The Congress that passed RFRA correctly read this Court’s pre-Smith case law as including within the “compelling interest test” a “least restrictive means” requirement. See, e.g., Senate Report 5 (“Where [a substantial] burden is placed upon the free exercise of religion, the Court ruled [in Sherbert], the Government must demonstrate that it is the least restrictive means to achieve a compelling governmental interest.”). And the view that the pre-Smith test included a “least restrictive means” requirement had been aired in testimony before the Senate Judiciary Committee by experts on religious freedom. See, e.g., Hearing on S. 2969 before the Senate Committee on the Judiciary, 102d Cong., 2d Sess., 78–79 (1993) (statement of Prof. Douglas Laycock).      Our decision in City of Boerne, it is true, states that the least restrictive means requirement “was not used in the pre-Smith jurisprudence RFRA purported to codify.” See ante, at 6, n. 3, 17, n. 18. As just indicated, however, that statement does not accurately convey the Court’s pre-Smith jurisprudence. See Sherbert, 374 U. S., at 407 (“[I]t would plainly be incumbent upon the [government] to demonstrate that no alternative forms of regulation would combat [the problem] without infringing First Amendment rights.”); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707, 718 (1981) (“The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest.”). See also Berg, The New Attacks on Religious Freedom Legislation and Why They Are Wrong, 21 Cardozo L. Rev. 415, 424 (1999) (“In Boerne, the Court erroneously said that the least restrictive means test ‘was not used in the pre-Smith jurisprudence.’ ”).[ 11 ] C      With RFRA’s restorative purpose in mind, I turn to the Act’s application to the instant lawsuits. That task, in view of the positions taken by the Court, requires consideration of several questions, each potentially dispositive of Hobby Lobby’s and Conestoga’s claims: Do for-profit corporations rank among “person[s]” who “exercise . . . religion”? Assuming that they do, does the contraceptive coverage requirement “substantially burden” their religious exercise? If so, is the requirement “in furtherance of a compelling government interest”? And last, does the requirement represent the least restrictive means for furthering that interest?      Misguided by its errant premise that RFRA moved beyond the pre-Smith case law, the Court falters at each step of its analysis. 1      RFRA’s compelling interest test, as noted, see supra, at 8, applies to government actions that “substantially burden a person’s exercise of religion.” 42 U. S. C. §2000bb–1(a) (emphasis added). This reference, the Court submits, incorporates the definition of “person” found in the Dictionary Act, 1 U. S. C. §1, which extends to “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” See ante, at 19–20. The Dictionary Act’s definition, however, controls only where “context” does not “indicat[e] otherwise.” §1. Here, context does so indicate. RFRA speaks of “a person’s exercise of religion.” 42 U. S. C. §2000bb–1(a) (emphasis added). See also §§2000bb–2(4), 2000cc–5(7)(a).[ 12 ] Whether a corporation qualifies as a “person” capable of exercis-ing religion is an inquiry one cannot answer without reference to the “full body” of pre-Smith “free-exercise caselaw.” Gilardi, 733 F. 3d, at 1212. There is in that case law no support for the notion that free exercise rights pertain to for-profit corporations.      Until this litigation, no decision of this Court recognized a for-profit corporation’s qualification for a religious exemption from a generally applicable law, whether under the Free Exercise Clause or RFRA.[ 13 ] The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities. As Chief Justice Marshall observed nearly two centuries ago, a corporation is “an artificial being, invisible, intangible, and existing only in contemplation of law.” Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819). Corporations, Justice Stevens more recently reminded, “have no consciences, no beliefs, no feelings, no thoughts, no desires.” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 466 (2010) (opinion concurring in part and dissenting in part).      The First Amendment’s free exercise protections, the Court has indeed recognized, shelter churches and other nonprofit religion-based organizations.[ 14 ] “For many individuals, religious activity derives meaning in large measure from participation in a larger religious community,” and “furtherance of the autonomy of religious organizations often furthers individual religious freedom as well.” Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 342 (1987) (Brennan, J., concurring in judgment). The Court’s “special solicitude to the rights of religious organizations,” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. ___, ___ (2012) (slip op., at 14), how-ever, is just that. No such solicitude is traditional for com-mercial organizations.[ 15 ] Indeed, until today, religious exemptions had never been extended to any entity operating in “the commercial, profit-making world.” Amos, 483 U. S., at 337.[ 16 ]      The reason why is hardly obscure. Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the work force of for-profit corporations. See 42 U. S. C. §§2000e(b), 2000e–1(a), 2000e–2(a); cf. Trans World Airlines, Inc. v. Hardison, 432 U. S. 63 –81 (1977) (Title VII requires reasonable accommodation of an employee’s religious exercise, but such accommodation must not come “at the expense of other[ employees]”). The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention.[ 17 ] One can only wonder why the Court shuts this key difference from sight.      Reading RFRA, as the Court does, to require extension of religion-based exemptions to for-profit corporations surely is not grounded in the pre-Smith precedent Congress sought to preserve. Had Congress intended RFRA to initiate a change so huge, a clarion statement to that effect likely would have been made in the legislation. See Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001) (Congress does not “hide elephants in mouseholes”). The text of RFRA makes no such statement and the legislative history does not so much as mention for-profit corporations. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F. 3d 1114, 1169 (CA10 2013) (Briscoe, C. J., concurring in part and dissenting in part) (legislative record lacks “any suggestion that Congress foresaw, let alone intended that, RFRA would cover for-profit corporations”). See also Senators Brief 10–13 (none of thecases cited in House or Senate Judiciary Committeereports accompanying RFRA, or mentioned during floor speeches, recognized the free exercise rights of for-profit corporations).      The Court notes that for-profit corporations may support charitable causes and use their funds for religious ends, and therefore questions the distinction between such corporations and religious nonprofit organizations. See ante, at 20–25. See also ante, at 3 (Kennedy, J., concurring) (criticizing the Government for “distinguishing between different religious believers—burdening one while accommodating the other—when it may treat both equally by offering both of them the same accommodation”).[ 18 ] Again, the Court forgets that religious organizations exist to serve a community of believers. For-profit corporations do not fit that bill. Moreover, history is not on the Court’s side. Recognition of the discrete characters of “ecclesiastical and lay” corporations dates back to Blackstone, see 1 W. Blackstone, Commentaries on the Laws of England 458 (1765), and was reiterated by this Court centuries before the enactment of the Internal Revenue Code. See Terrett v. Taylor, 9 Cranch 43, 49 (1815) (describing religious corporations); Trustees of Dartmouth College, 4 Wheat., at 645 (discussing “eleemosynary” corporations, including those “created for the promotion of religion”). To reiterate, “for-profit corporations are different from religious non-profits in that they use labor to make a profit, rather than to perpetuate [the] religious value[s] [shared by a community of believers].” Gilardi, 733 F. 3d, at 1242 (Edwards, J., concurring in part and dissenting in part) (emphasis deleted).      Citing Braunfeld v. Brown, 366 U. S. 599 (1961) , the Court questions why, if “a sole proprietorship that seeks to make a profit may assert a free-exercise claim, [Hobby Lobby and Conestoga] can’t . . . do the same?” Ante, at 22 (footnote omitted). See also ante, at 16–17. But even accepting, arguendo, the premise that unincorporated business enterprises may gain religious accommodations under the Free Exercise Clause, the Court’s conclusion is unsound. In a sole proprietorship, the business and its owner are one and the same. By incorporating a business, however, an individual separates herself from the entity and escapes personal responsibility for the entity’s obligations. One might ask why the separation should hold only when it serves the interest of those who control the corporation. In any event, Braunfeld is hardly impressive authority for the entitlement Hobby Lobby and Conestoga seek. The free exercise claim asserted there was promptly rejected on the merits.      The Court’s determination that RFRA extends to for-profit corporations is bound to have untoward effects. Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private.[ 19 ] Little doubt that RFRA claims will proliferate, for the Court’s expansive notion of corporate personhood—combined with its other errorsin construing RFRA—invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith. 2      Even if Hobby Lobby and Conestoga were deemed RFRA “person[s],” to gain an exemption, they must demonstrate that the contraceptive coverage requirement “substan-tially burden[s] [their] exercise of religion.” 42 U. S. C. §2000bb–1(a). Congress no doubt meant the modifier “substantially” to carry weight. In the original draft of RFRA, the word “burden” appeared unmodified. The word “substantially” was inserted pursuant to a clarifying amendment offered by Senators Kennedy and Hatch. See 139 Cong. Rec. 26180. In proposing the amendment, Senator Kennedy stated that RFRA, in accord with the Court’s pre-Smith case law, “does not require the Government to justify every action that has some effect on religious exercise.” Ibid.      The Court barely pauses to inquire whether any burden imposed by the contraceptive coverage requirement is substantial. Instead, it rests on the Greens’ and Hahns’ “belie[f ] that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage.” Ante, at 36.[ 20 ] I agree with the Court that the Green and Hahn families’ religious convictions regarding contraception are sincerely held. See Thomas, 450 U. S., at 715 (courts are not to question where an individual “dr[aws] the line” in defining which practices run afoul of her religious beliefs). See also 42 U. S. C. §§2000bb–1(a), 2000bb–2(4), 2000cc–5(7)(A).[ 21 ] But those beliefs, however deeply held, do not suffice to sustain a RFRA claim. RFRA, properly understood, distinguishes between “factual allegations that [plaintiffs’] beliefs are sincere and of a religious nature,” which a court must accept as true, and the “legal conclusion . . . that [plaintiffs’] religious exercise is substantially burdened,” an inquiry the court must undertake. Kaemmerling v. Lappin, 553 F. 3d 669, 679 (CADC 2008).      That distinction is a facet of the pre-Smith jurisprudence RFRA incorporates. Bowen v. Roy, 476 U. S. 693 (1986) , is instructive. There, the Court rejected a free exercise challenge to the Government’s use of a Native American child’s Social Security number for purposes of administering benefit programs. Without questioning the sincerity of the father’s religious belief that “use of [his daughter’s Social Security] number may harm [her] spirit,” the Court concluded that the Government’s internaluses of that number “place[d] [no] restriction on what [the father] may believe or what he may do.” Id., at 699. Recognizing that the father’s “religious views may not accept” the position that the challenged uses concerned only the Government’s internal affairs, the Court explained that “for the adjudication of a constitutional claim, the Constitution, rather than an individual’s religion, must supply the frame of reference.” Id., at 700–701, n. 6. See also Hernandez v. Commissioner, 490 U. S. 680, 699 (1989) (distinguishing between, on the one hand, “question[s] [of] the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds,” and, on the other, “whether the alleged burden imposed [by the challenged government action] is a substantial one”). Inattentive to this guidance, today’s decision elides entirely the distinction between the sincerity of a challenger’s religious belief and the substantiality of the burden placed on the challenger.      Undertaking the inquiry that the Court forgoes, I would conclude that the connection between the families’ religious objections and the contraceptive coverage requirement is too attenuated to rank as substantial. The requirement carries no command that Hobby Lobby or Conestoga purchase or provide the contraceptives they find objectionable. Instead, it calls on the companies covered by the requirement to direct money into undifferentiated funds that finance a wide variety of benefits under comprehensive health plans. Those plans, in order to comply with the ACA, see supra, at 3–6, must offer contraceptive coverage without cost sharing, just as they must cover an array of other preventive services.      Importantly, the decisions whether to claim benefits under the plans are made not by Hobby Lobby or Cones-toga, but by the covered employees and dependents, in consultation with their health care providers. Should an employee of Hobby Lobby or Conestoga share the religious beliefs of the Greens and Hahns, she is of course under no compulsion to use the contraceptives in question. But “[n]o individual decision by an employee and her physician—be it to use contraception, treat an infection, or have a hip replaced—is in any meaningful sense [her employer’s] decision or action.” Grote v. Sebelius, 708 F. 3d 850, 865 (CA7 2013) (Rovner, J., dissenting). It is doubtful that Congress, when it specified that burdens must be “substantia[l],” had in mind a linkage thus interrupted by independent decisionmakers (the woman and her health counselor) standing between the challenged government action and the religious exercise claimed to be infringed. Any decision to use contraceptives made by a woman covered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the Government, it will be the wo-man’s autonomous choice, informed by the physician she consults. 3      Even if one were to conclude that Hobby Lobby and Conestoga meet the substantial burden requirement, the Government has shown that the contraceptive coverage for which the ACA provides furthers compelling interests in public health and women’s well being. Those interests are concrete, specific, and demonstrated by a wealth of empirical evidence. To recapitulate, the mandated contraception coverage enables women to avoid the health problems unintended pregnancies may visit on them and their children. See IOM Report 102–107. The coverage helps safeguard the health of women for whom pregnancy may be hazardous, even life threatening. See Brief for American College of Obstetricians and Gynecologists et al. as Amici Curiae 14–15. And the mandate secures benefits wholly unrelated to pregnancy, preventing certain cancers, menstrual disorders, and pelvic pain. Brief for Ovarian Cancer National Alliance et al. as Amici Curiae 4, 6–7, 15–16; 78 Fed. Reg. 39872 (2013); IOM Report 107.      That Hobby Lobby and Conestoga resist coverage for only 4 of the 20 FDA-approved contraceptives does not lessen these compelling interests. Notably, the corporations exclude intrauterine devices (IUDs), devices significantly more effective, and significantly more expensive than other contraceptive methods. See id., at 105.[ 22 ] Moreover, the Court’s reasoning appears to permit commercial enterprises like Hobby Lobby and Conestoga to exclude from their group health plans all forms of contraceptives. See Tr. of Oral Arg. 38–39 (counsel for Hobby Lobby acknowledged that his “argument . . . would apply just as well if the employer said ‘no contraceptives’ ” (internal quotation marks added)).      Perhaps the gravity of the interests at stake has led the Court to assume, for purposes of its RFRA analysis, that the compelling interest criterion is met in these cases. See ante, at 40.[ 23 ] It bears note in this regard that the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage, Brief for Guttmacher Institute et al. as Amici Curiae 16; that almost one-third of women would change their contraceptive method if costs were not a factor, Frost & Darroch, Factors Associated With Contraceptive Choice and Inconsistent Method Use, United States, 2004, 40 Perspectives on Sexual & Reproductive Health 94, 98 (2008); and that only one-fourth of women who request an IUD actually have one inserted after finding out how expensive it would be, Gariepy, Simon, Patel, Creinin, & Schwarz, The Impact of Out-of-Pocket Expense on IUD Utilization Among Women With Private Insurance, 84 Contraception e39, e40 (2011). See also Eisenberg, supra, at S60 (recent study found that women who face out-of-pocket IUD costs in excess of $50 were “11-times less likely to obtain an IUD than women who had to pay less than $50”); Postlethwaite, Trussell, Zoolakis, Shabear, & Petitti, A Comparison of Contraceptive Procurement Pre- and Post-Benefit Change, 76 Contraception 360, 361–362 (2007) (when one health system eliminated patient cost sharing for IUDs, use of this form of contraception more than doubled).      Stepping back from its assumption that compelling interests support the contraceptive coverage requirement, the Court notes that small employers and grandfathered plans are not subject to the requirement. If there is a compelling interest in contraceptive coverage, the Court suggests, Congress would not have created these exclusions. See ante, at 39–40.      Federal statutes often include exemptions for small employers, and such provisions have never been held to undermine the interests served by these statutes. See, e.g., Family and Medical Leave Act of 1993, 29 U. S. C. §2611(4)(A)(i) (applicable to employers with 50 or more employees); Age Discrimination in Employment Act of 1967, 29 U. S. C. §630(b) (originally exempting employers with fewer than 50 employees, 81Stat. 605, the statute now governs employers with 20 or more employees); Americans With Disabilities Act, 42 U. S. C. §12111(5)(A) (applicable to employers with 15 or more employees); Title VII, 42 U. S. C. §2000e(b) (originally exempting employers with fewer than 25 employees, see Arbaugh v. Y & H Corp., 546 U. S. 500 , n. 2 (2006), the statute now governs employers with 15 or more employees).      The ACA’s grandfathering provision, 42 U. S. C. §18011, allows a phasing-in period for compliance with a number of the Act’s requirements (not just the contraceptive coverage or other preventive services provisions). Once specified changes are made, grandfathered status ceases. See 45 CFR §147.140(g). Hobby Lobby’s own situation is illustrative. By the time this litigation commenced, Hobby Lobby did not have grandfathered status. Asked why by the District Court, Hobby Lobby’s counsel explained that the “grandfathering requirements mean that you can’t make a whole menu of changes to your plan that involve things like the amount of co-pays, the amount of co-insurance, deductibles, that sort of thing.” App. in No. 13–354, pp. 39–40. Counsel acknowledged that, “just because of economic realities, our plan has to shift over time. I mean, insurance plans, as everyone knows, shif[t] over time.” Id., at 40.[ 24 ] The percentage of employees in grandfathered plans is steadily declining, having dropped from 56% in 2011 to 48% in 2012 to 36% in 2013. Kaiser Family Foundation & Health Research & Educ. Trust, Employer Benefits 2013 Annual Survey 7, 196. In short, far from ranking as a categorical exemption, the grandfathering provision is “temporary, intended to be a means for gradually transitioning employers into mandatory coverage.” Gilardi, 733 F. 3d, at 1241 (Edwards, J., concurring in part and dissenting in part).      The Court ultimately acknowledges a critical point: RFRA’s application “must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” Ante, at 42, n. 37 (quoting Cutter v. Wilkinson, 544 U. S. 709, 720 (2005) ; emphasis added). No tradition, and no prior decision under RFRA, allows a religion-based exemption when the accommodation would be harmful to others—here, the very persons the contraceptive coverage requirement was designed to protect. Cf. supra, at 7–8; Prince v. Massachusetts, 321 U. S. 158, 177 (1944) (Jackson, J., dissenting) (“[The] limitations which of necessity bound religious freedom . . . begin to operate whenever activities begin to affect or collide with liberties of others or of the public.”). 4      After assuming the existence of compelling government interests, the Court holds that the contraceptive coverage requirement fails to satisfy RFRA’s least restrictive means test. But the Government has shown that there is no less restrictive, equally effective means that would both (1) satisfy the challengers’ religious objections to providing insurance coverage for certain contraceptives (which they believe cause abortions); and (2) carry out the objective of the ACA’s contraceptive coverage requirement, to ensure that women employees receive, at no cost to them, the preventive care needed to safeguard their health and well being. A “least restrictive means” cannot require employees to relinquish benefits accorded them by federal law in order to ensure that their commercial employers can adhere unreservedly to their religious tenets. See supra, at 7–8, 27.[ 25 ]      Then let the government pay (rather than the employees who do not share their employer’s faith), the Court suggests. “The most straightforward [alternative],” the Court asserts, “would be for the Government to assume the cost of providing . . . contraceptives . . . to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.” Ante, at 41. The ACA, however, requires coverage of preventive services through the existing employer-based system of health insurance “so that [employees] face minimal logistical and administrative obstacles.” 78 Fed. Reg. 39888. Impeding women’s receipt of benefits “by requiring them to take steps to learn about, and to sign up for, a new [government funded and administered] health benefit” was scarcely what Congress contemplated. Ibid. More-over, Title X of the Public Health Service Act, 42 U. S. C. §300 et seq., “is the nation’s only dedicated source of federal funding for safety net family planning services.” Brieffor National Health Law Program et al. as Amici Curiae 23. “Safety net programs like Title X are not designed to absorb the unmet needs of . . . insured individuals.” Id., at 24. Note, too, that Congress declined to write into law the preferential treatment Hobby Lobby and Conestoga describe as a less restrictive alternative. See supra, at 6.      And where is the stopping point to the “let the government pay” alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, see Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U. S. 290, 303 (1985) , or according women equal pay for substantially similar work, see Dole v. Shenandoah Baptist Church, 899 F. 2d 1389, 1392 (CA4 1990)? Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer hasa religion-based objection?[ 26 ] Because the Court cannot easily answer that question, it proposes something else: Extension to commercial enterprises of the accommodation already afforded to nonprofit religion-based organizations. See ante, at 3–4, 9–10, 43–45. “At a minimum,” according to the Court, such an approach would not “impinge on [Hobby Lobby’s and Conestoga’s] religious belief.” Ante, at 44. I have already discussed the “special solicitude” generally accorded nonprofit religion-based organizations that exist to serve a community of believers, solicitude never before accorded to commercial enterprises comprising employees of diverse faiths. See supra, at 14–17.      Ultimately, the Court hedges on its proposal to align for-profit enterprises with nonprofit religion-based organizations. “We do not decide today whether [the] approach [the opinion advances] complies with RFRA for purposes of all religious claims.” Ante, at 44. Counsel for Hobby Lobby was similarly noncommittal. Asked at oral argument whether the Court-proposed alternative was acceptable,[ 27 ] counsel responded: “We haven’t been offered that accommodation, so we haven’t had to decide what kind of objection, if any, we would make to that.” Tr. of Oral Arg. 86–87.      Conestoga suggests that, if its employees had to acquire and pay for the contraceptives (to which the corporation objects) on their own, a tax credit would qualify as a less restrictive alternative. See Brief for Petitioners in No. 13–356, p. 64. A tax credit, of course, is one variety of “let the government pay.” In addition to departing from the existing employer-based system of health insurance, Conestoga’s alternative would require a woman to reach into her own pocket in the first instance, and it would do nothing for the woman too poor to be aided by a tax credit.      In sum, in view of what Congress sought to accomplish, i.e., comprehensive preventive care for women furnished through employer-based health plans, none of the proffered alternatives would satisfactorily serve the compelling interests to which Congress responded. IV      Among the pathmarking pre-Smith decisions RFRA preserved is United States v. Lee, 455 U. S. 252 (1982) . Lee, a sole proprietor engaged in farming and carpentry, was a member of the Old Order Amish. He sincerely believed that withholding Social Security taxes from his employees or paying the employer’s share of such taxes would violate the Amish faith. This Court held that, although the obligations imposed by the Social Security system conflicted with Lee’s religious beliefs, the burden was not unconstitutional. Id., at 260–261. See also id., at 258 (recognizing the important governmental interest in providing a “nationwide . . . comprehensive insurance system with a variety of benefits available to all participants, with costs shared by employers and employees”).[ 28 ] The Government urges that Lee should control the challenges brought by Hobby Lobby and Conestoga. See Brief for Respondents in No. 13–356, p. 18. In contrast, today’s Court dismisses Lee as a tax case. See ante, at 46–47. Indeed, it was a tax case and the Court in Lee homed in on “[t]he difficulty in attempting to accommodate religious beliefs in the area of taxation.” 455 U. S., at 259.      But the Lee Court made two key points one cannot confine to tax cases. “When followers of a particular sect enter into commercial activity as a matter of choice,” the Court observed, “the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on statutory schemes which are binding on others in that activity.” Id., at 261. The statutory scheme of employer-based comprehensive health coverage involved in these cases is surely binding on others engaged in the same trade or business as the corporate challengers here, Hobby Lobby and Conestoga. Further, the Court recognized in Lee that allowing a religion-based exemption to a commercial employer would “operat[e] to impose the employer’s religious faith on the employees.” Ibid.[ 29 ] No doubt the Greens and Hahns and all who share their beliefs may decline to acquire for themselves the contraceptives in question. But that choice may not be imposed on employees who hold other beliefs. Working for Hobby Lobby or Conestoga, in other words, should not deprive employees of the preventive care available to workers at the shop next door,[ 30 ] at least in the absence of directions from the Legislature or Administration to do so.      Why should decisions of this order be made by Congress or the regulatory authority, and not this Court? Hobby Lobby and Conestoga surely do not stand alone as commercial enterprises seeking exemptions from generally applicable laws on the basis of their religious beliefs. See, e.g., Newman v. Piggie Park Enterprises, Inc., 256 F. Supp. 941, 945 (SC 1966) (owner of restaurant chain refused to serve black patrons based on his religious beliefs opposing racial integration), aff’d in relevant part and rev’d in part on other grounds, 377 F. 2d 433 (CA4 1967), aff’d and modified on other grounds, 390 U. S. 400 (1968) ; In re Minnesota ex rel. McClure, 370 N. W. 2d 844, 847 (Minn. 1985) (born-again Christians who owned closely held, for-profit health clubs believed that the Bible proscribed hiring or retaining an “individua[l] living with but not married to a person of the opposite sex,” “a young, single woman working without her father’s consent or a married woman working without her husband’s consent,” and any person “antagonistic to the Bible,” including “fornicators and homosexuals” (internal quotation marks omitted)), appeal dismissed, 478 U. S. 1015 (1986) ; Elane Photography, LLC v. Willock, 2013–NMSC–040, ___ N. M. ___, 309 P. 3d 53 (for-profit photography business owned by a husband and wife refused to photograph a lesbian couple’s commitment ceremony based on the religious beliefs of the company’s owners), cert. denied, 572 U. S. ___ (2014). Would RFRA require exemptions in cases of this ilk? And if not, how does the Court divine which religious beliefs are worthy of accommodation, and which are not? Isn’t the Court disarmed from making such a judgment given its recognition that “courts must not presume to determine . . . the plausibility of a religious claim”? Ante, at 37.      Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)?[ 31 ] According to counsel for Hobby Lobby, “each one of these cases . . . would have to be evaluated on its own . . . apply[ing] the compelling interest-least restrictive alternative test.” Tr. of Oral Arg. 6. Not much help there for the lower courts bound by today’s decision.      The Court, however, sees nothing to worry about. Today’s cases, the Court concludes, are “concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.” Ante, at 46. But the Court has assumed, for RFRA purposes, that the interest in women’s health and well being is compelling and has come up with no means adequate to serve that interest, the one motivating Congress to adopt the Women’s Health Amendment.      There is an overriding interest, I believe, in keeping the courts “out of the business of evaluating the relative merits of differing religious claims,” Lee, 455 U. S., at 263, n. 2 (Stevens, J., concurring in judgment), or the sincerity with which an asserted religious belief is held. Indeed, approving some religious claims while deeming others unworthy of accommodation could be “perceived as favoring one religion over another,” the very “risk the Establishment Clause was designed to preclude.” Ibid. The Court, I fear, has ventured into a minefield, cf. Spencer v. World Vision, Inc., 633 F. 3d 723, 730 (CA9 2010) (O’Scannlain, J., concurring), by its immoderate reading of RFRA. I would confine religious exemptions under that Act to organizations formed “for a religious purpose,” “engage[d] primarily in carrying out that religious purpose,” and not “engaged . . . substantially in the exchange of goods or services for money beyond nominal amounts.” See id., at 748 (Kleinfeld, J., concurring). *  *  *      For the reasons stated, I would reverse the judgment of the Court of Appeals for the Tenth Circuit and affirm the judgment of the Court of Appeals for the Third Circuit. Notes 1 The Court insists it has held none of these things, for another less restrictive alternative is at hand: extending an existing accommodation, currently limited to religious nonprofit organizations, to encompass commercial enterprises. See at 3–4. With that accommodation extended, the Court asserts, “women would still be entitled to all [Food and Drug Administration]-approved contraceptives without cost sharing.” at 4. In the end, however, the Court is not so sure. In stark contrast to the Court’s initial emphasis on this accommodation, it ultimately declines to decide whether the highlighted accommodation is even lawful. See at 44 (“We do not decide today whether an approach of this type complies with RFRA . . . .”). 2 See –13(a)(1)–(3) (group health plans must provide coverage, without cost sharing, for (1) certain “evidence-based items or services” recommended by the U. S. Preventive Services Task Force; (2) immunizations recommended by an advisory committee of the Centers for Disease Control and Prevention; and (3) “with respect to infants, children, and adolescents, evidence-informed preventive care and screenings provided for in the comprehensive guidelines supported by the Health Resources and Services Administration”). 3 The IOM is an arm of the National Academy of Sciences, an organization Congress established “for the explicit purpose of furnishing advice to the Government.” v. , , n. 11 (1989) (internal quotation marks omitted). 4 HRSA, HHS, Women’s Preventive Services Guidelines, available at http://www.hrsa.gov/womensguidelines/ (all Internet materials as visited June 27, 2014, and available in Clerk of Court’s case file), reprinted in App. to Brief for Petitioners in No. 13–354, pp. 43–44a. See also 77 Fed. Reg. 8725–8726 (2012). 5 45 CFR §147.130(a)(1)(iv) (2013) (HHS); 29 CFR §2590.715–2713(a)(1)(iv) (2013) (Labor); 26 CFR §54.9815–2713(a)(1)(iv) (2013) (Treasury). 6 Separating moral convictions from religious beliefs would be of questionable legitimacy. See v. , –358 (1970) (Harlan, J., concurring in result). 7 As the Court explains, see at 11–16, these cases arise from two separate lawsuits, one filed by Hobby Lobby, its affiliated business (Mardel), and the family that operates these businesses (the Greens); the other filed by Conestoga and the family that owns and controls that business (the Hahns). Unless otherwise specified, this opinion refers to the respective groups of plaintiffs as Hobby Lobby and Conestoga. 8 See v. , (“This case, of course, is not one in which any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred.”); v. , (invalidating state statute requiring employers to accommodate an employee’s Sabbath observance where that statute failed to take into account the burden such an accommodation would impose on the employer or other employees). Notably, in construing the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), the Court has cautioned that “adequate account” must be taken of “the burdens a requested accommodation may impose on nonbeneficiaries.” v. , ; see at 722 (“an accommodation must be measured so that it does not override other significant interests”). A balanced approach is all the more in order when the Free Exercise Clause itself is at stake, not a statute designed to promote accommodation to religious beliefs and practices. 9 Under and , the Court “requir[ed] the government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest.” v. , (O’Connor, J., concurring injudgment). 10 RLUIPA, the Court notes, includes a provision directing that “[t]his chapter [, RLUIPA] shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of [the Act] and the Constitution.” –3(g); see at 6–7, 26. RFRA incorporates RLUIPA’s definition of “exercise of religion,” as RLUIPA does, but contains no omnibus rule of construction governing the statute in its entirety. 11 The Court points out that I joined the majority opinion in and did not then question the statement that “least restrictive means . . . was not used [pre-].” at 17, n. 18. Concerning that observation, I remind my colleagues of Justice Jackson’s sage comment: “I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.” v. , –640 (1948) (dissenting opinion). 12 As earlier explained, see at 10–11, RLUIPA’s amendment of the definition of “exercise of religion” does not bear the weight the Court places on it. Moreover, it is passing strange to attribute to RLUIPA any purpose to cover entities other than “religious assembl[ies] or institution[s].” . But cf. at 26. That law applies to land-use regulation. §2000cc(a)(1). To permit commercial enterprises to challenge zoning and other land-use regulations under RLUIPA would “dramatically expand the statute’s reach” and deeply intrude on local prerogatives, contrary to Congress’ intent. Brief for National League of Cities et al. as 26. 13 The Court regards v., , as “suggest[ing] . . . that for-profit corporations possess [free-exercise] rights.” at 26–27. See also at 21, n. 21. The suggestion is barely there. True, one of the five challengers to the Sunday closing law assailed in was a corporation owned by four Orthodox Jews. The other challengers were human individuals, not artificial, law-created entities, so there was no need to determine whether the corporation could institute the litigation. Accordingly, the plurality stated it could pretermit the question “whether appellees ha[d] standing” because v. , , which upheld a similar closing law, was fatal to their claim on the merits. 366 U. S., at 631. 14 See, v. , 565 U. S. ___ (2012); v. , ; v. , ; v. , . 15 Typically, Congress has accorded to organizations religious in character religion-based exemptions from statutes of general application. –1(a) (Title VII exemption from prohibition against employment discrimination based on religion for “a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on . . . of its activities”); (parallel exemption in Americans With Disabilities Act of 1990). It can scarcely be maintained that RFRA enlarges these exemptions to allow Hobby Lobby and Conestoga to hire only persons who share the religious beliefs of the Greens or Hahns. Nor does the Court suggest otherwise. Cf. at 28. 16 That is not to say that a category of plaintiffs, such as resident aliens, may bring RFRA claims only if this Court expressly “addressed their [free-exercise] rights before .” at 27. Continuing with the Court’s example, resident aliens, unlike corporations, are flesh-and-blood individuals who plainly count as persons sheltered by the , see v. , (citing v. , ), and , RFRA. 17 I part ways with on the context relevant here. He sees it as the employers’ “exercise [of] their religious beliefs within the context of their own closely held, for-profit corporations.” at 2 (concurring opinion). See also at 45–46 (opinion of the Court) (similarly concentrating on religious faith of employers without reference to the different beliefs and liberty interests of employees). I see as the relevant context the employers’ asserted right to exercise religion within a nationwide program designed to protect against health hazards employees who do not subscribe to their employers’ religious beliefs. 18 According to the Court, the Government “concedes” that “nonprofit corporation[s]” are protected by RFRA. at 19. See also at 20, 24, 30. That is not an accurate description of the Government’s position, which encompasses only “churches,” “ institutions,” and “ non-profits.” Brief for Respondents in No. 13–356, p. 28 (emphasis added). See also Reply Brief in No. 13–354, p. 8 (“RFRA incorporates the longstanding and common-sense distinction between religious organizations, which sometimes have been accorded accommodations under generally applicable laws in recognition of their accepted religious character, and for-profit corporations organized to do business in the commercial world.”). 19 The Court does not even begin to explain how one might go about ascertaining the religious scruples of a corporation where shares are sold to the public. No need to speculate on that, the Court says, for “it seems unlikely” that large corporations “will often assert RFRA claims.” at 29. Perhaps so, but as Hobby Lobby’s case demonstrates, such claims are indeed pursued by large corporations, employing thousands of persons of different faiths, whose ownership is not diffuse. “Closely held” is not synonymous with “small.” Hobby Lobby is hardly the only enterprise of sizable scale that is family owned or closely held. For example, the family-owned candy giant Mars, Inc., takes in $33 billion in revenues and has some 72,000 employees, and closely held Cargill, Inc., takes in more than $136 billion in reve-nues and employs some 140,000 persons. See Forbes, America’s Largest Private Companies 2013, available at http://www.forbes.com/largest-private-companies/. 20 The Court dismisses the argument, advanced by some , that the $2,000-per-employee tax charged to certain employers that fail to provide health insurance is less than the average cost of offering health insurance, noting that the Government has not provided the statistics that could support such an argument. See at 32–34. The Court overlooks, however, that it is not the Government’s obligation to prove that an asserted burden is substantial. Instead, it is incumbent upon plaintiffs to demonstrate, in support of a RFRA claim, the substantial-ity of the alleged burden. 21 The Court levels a criticism that is as wrongheaded as can be. In no way does the dissent “tell the plaintiffs that their beliefs are flawed.” at 37. Right or wrong in this domain is a judgment no Member of this Court, or any civil court, is authorized or equipped to make. What the Court must decide is not “the plausibility of a religious claim,” at 37 (internal quotation marks omitted), but whether accommodating that claim risks depriving others of rights accorded them by the laws of the United States. See at 7–8; , at 27. 22 IUDs, which are among the most reliable forms of contraception, generally cost women more than $1,000 when the expenses of the office visit and insertion procedure are taken into account. See Eisenberg, McNicholas, & Peipert, Cost as a Barrier to Long-Acting Reversible Contraceptive (LARC) Use in Adolescents, 52 J. Adolescent Health S59, S60 (2013). See also Winner et al., Effectiveness of Long-Acting Reversible Contraception, 366 New Eng. J. Medicine 1998, 1999 (2012). 23 Although the Court’s opinion makes this assumption grudgingly, see at 39–40, one Member of the majority recognizes, without reservation, that “the [contraceptive coverage] mandate serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees.” at 2 (opinion of , J.). 24 Hobby Lobby’s National Religious Broadcasters similarly states that, “[g]iven the nature of employers’ needs to meet changing economic and staffing circumstances, and to adjust insurance coverage accordingly, the actual benefit of the ‘grandfather’ exclusion is and transitory at best.” Brief for National Religious Broadcasters as in No. 13–354, p. 28. 25 As the Court made clear in , the government’s license to grant religion-based exemptions from generally applicable laws is constrained by the Establishment Clause. 544 U. S., at 720–722. “[W]e are a cosmopolitan nation made up of people of almost every conceivable religious preference,” , 366 U. S., at 606, a “rich mosaic of religious faiths,” v. , 572 U. S. ___, ___ (2014) (, J., dissenting) (slip op., at 15). Consequently, one person’s right to free exercise must be kept in harmony with the rights of her fellow citizens, and “some religious practices [must] yield to the common good.” v. , . 26 Cf. v. , (in context of Speech Clause challenge to a content-based speech restriction, courts must determine “whether the challenged regulation is the least restrictive means among , effective alternatives” (emphasis added)). 27 On brief, Hobby Lobby and Conestoga barely addressed the extension solution, which would bracket commercial enterprises with nonprofit religion-based organizations for religious accommodations purposes. The hesitation is understandable, for challenges to the adequacy of the accommodation accorded religious nonprofit organizations are currently . See, v. , ___ F. Supp. 2d ___, 2013 WL 6839900 (Colo., Dec. 27, 2013), injunction pending appeal granted, 571 U. S. ___ (2014). At another point in today’s decision, the Court refuses to consider an argument neither “raised below [nor] advanced in this Court by any party,” giving Hobby Lobby and Conestoga “[no] opportunity to respond to [that] novel claim.” at 33. Yet the Court is content to decide this case (and this case only) on the ground that HHS could make an accommodation never suggested in the parties’ presentations. RFRA cannot sensibly be read to “requir[e] the government to . . . refute each and every conceivable alternative regulation,” v. , 638 F. 3d 1274, 1289 (CA10 2011), especially where the alternative on which the Court seizes was not pressed by any challenger. 28 As a sole proprietor, Lee was subject to personal liability for violating the law of general application he opposed. His claim to a religion-based exemption would have been even thinner had he conducted his business as a corporation, thus avoiding personal liability. 29 Congress amended the Social Security Act in response to . The amended statute permits Amish sole proprietors and partnerships (but not Amish-owned corporations) to obtain an exemption from the obligation to pay Social Security taxes only for employees who are co-religionists and who likewise seek an exemption and agree to give up their Social Security benefits. See , (b)(1). Thus, employers with sincere religious beliefs have no right to a religion-based exemption that would deprive employees of Social Security benefits without the employee’s consent—an exemption analogous to the one Hobby Lobby and Conestoga seek here. 30 Cf. v. , (disallowing religion-based exemption that “would undoubtedly give [the commercial enterprise seeking the exemption] and similar organizations an advantage over their competitors”). 31 Religious objections to immunization programs are not hypothetical. See v. , ___ F. Supp. 2d ___, 2014 WL 2547584 (EDNY, June 5, 2014) (dismissing free exercise challenges to New York’s vaccination practices); Liberty Counsel, Compulsory Vaccinations Threaten Religious Freedom (2007), available at http://www.lc.org/media/9980/attachments/memo_vaccination.pdf. SUPREME COURT OF THE UNITED STATES _________________ Nos. 13–354 and 13–356 _________________ SYLVIA BURWELL, SECRETARY OF HEALTHAND HUMAN SERVICES, et al., PETITIONERS 13–354      v. HOBBY LOBBY STORES, INC., et al. on writ of certiorari to the united states courtof appeals for the tenth circuit and CONESTOGA WOOD SPECIALTIES CORPORATIONet al., PETITIONERS 13–356      v. SYLVIA BURWELL, SECRETARY OF HEALTHAND HUMAN SERVICES, et al. on writ of certiorari to the united states courtof appeals for the third circuit [June 30, 2014]      Justice Breyer and Justice Kagan, dissenting.      We agree with Justice Ginsburg that the plaintiffs’ challenge to the contraceptive coverage requirement fails on the merits. We need not and do not decide whether either for-profit corporations or their owners may bring claims under the Religious Freedom Restoration Act of 1993. Accordingly, we join all but Part III–C–1 of Justice Ginsburg’s dissenting opinion.

The Religious Freedom Restoration Act (RFRA) prohibits the government from substantially burdening a person's exercise of religion unless it is the least restrictive means of serving a compelling government interest. In these cases, the Supreme Court held that the Department of Health and Human Services' (HHS) mandate requiring closely held corporations to provide health insurance coverage for contraception violated RFRA. The Court rejected HHS's argument that RFRA protection was forfeited when the companies were organized as corporations rather than sole proprietorships or general partnerships. The Court found that the HHS mandate substantially burdened the exercise of religion and that the government had not shown that the mandate was the least restrictive means of achieving its interest. Justices Breyer and Kagan dissented, agreeing with Justice Ginsburg that the challenge to the mandate failed on the merits but not deciding whether for-profit corporations or their owners could bring claims under RFRA.

Religion

American Legion v. American Humanist Ass'n

https://supreme.justia.com/cases/federal/us/588/17-1717/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ Nos. 17–1717 and 18–18 _________________ THE AMERICAN LEGION, et al., PETITIONERS 17–1717 v. AMERICAN HUMANIST ASSOCIATION, et al.; and MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, PETITIONER 18–18 v. AMERICAN HUMANIST ASSOCIATION, et al. on writs of certiorari to the united states court of appeals for the fourth circuit [June 20, 2019] Justice Alito announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–B, II–C, III, and IV, and an opinion with respect to Parts II–A and II–D, in which The Chief Justice, Justice Breyer, and Justice Kavanaugh join. Since 1925, the Bladensburg Peace Cross (Cross) has stood as a tribute to 49 area soldiers who gave their lives in the First World War. Eighty-nine years after the dedication of the Cross, respondents filed this lawsuit, claiming that they are offended by the sight of the memorial on public land and that its presence there and the expenditure of public funds to maintain it violate the Establishment Clause of the First Amendment. To remedy this violation, they asked a federal court to order the relocation or demolition of the Cross or at least the removal of its arms. The Court of Appeals for the Fourth Circuit agreed that the memorial is unconstitutional and remanded for a determination of the proper remedy. We now reverse. Although the cross has long been a preeminent Christian symbol, its use in the Bladensburg memorial has a special significance. After the First World War, the picture of row after row of plain white crosses marking the overseas graves of soldiers who had lost their lives in that horrible conflict was emblazoned on the minds of Americans at home, and the adoption of the cross as the Bladensburg memorial must be viewed in that historical context. For nearly a century, the Bladensburg Cross has expressed the community’s grief at the loss of the young men who perished, its thanks for their sacrifice, and its dedication to the ideals for which they fought. It has become a prominent community landmark, and its removal or radical alteration at this date would be seen by many not as a neutral act but as the manifestation of “a hostility toward religion that has no place in our Establishment Clause traditions.” Van Orden v. Perry , 545 U.S. 677 , 704 (2005) (Breyer, J., concurring in judgment). And con- trary to respondents’ intimations, there is no evidence of discriminatory intent in the selection of the design of the memorial or the decision of a Maryland commission to maintain it. The Religion Clauses of the Constitution aim to foster a society in which people of all beliefs can live together harmoniously, and the presence of the Bladensburg Cross on the land where it has stood for so many years is fully consistent with that aim. I A The cross came into widespread use as a symbol of Christianity by the fourth century,[ 1 ] and it retains that meaning today. But there are many contexts in which the symbol has also taken on a secular meaning. Indeed, there are instances in which its message is now almost entirely secular. A cross appears as part of many registered trademarks held by businesses and secular organizations, including Blue Cross Blue Shield, the Bayer Group, and some Johnson & Johnson products.[ 2 ] Many of these marks relate to health care, and it is likely that the association of the cross with healing had a religious origin. But the current use of these marks is indisputably secular. The familiar symbol of the Red Cross—a red cross on a white background—shows how the meaning of a symbol that was originally religious can be transformed. The International Committee of the Red Cross (ICRC) selected that symbol in 1863 because it was thought to call to mind the flag of Switzerland, a country widely known for its neutrality.[ 3 ] The Swiss flag consists of a white cross on a red background. In an effort to invoke the message associated with that flag, the ICRC copied its design with the colors inverted. Thus, the ICRC selected this symbol for an essentially secular reason, and the current secular message of the symbol is shown by its use today in nations with only tiny Christian populations.[ 4 ] But the cross was originally chosen for the Swiss flag for religious reasons.[ 5 ] So an image that began as an expression of faith was transformed. The image used in the Bladensburg memorial—a plain Latin cross[ 6 ]—also took on new meaning after World War I. “During and immediately after the war, the army marked soldiers’ graves with temporary wooden crosses or Stars of David”—a departure from the prior practice of marking graves in American military cemeteries with uniform rectangular slabs. G. Piehler, Remembering War the American Way 101 (1995); App. 1146. The vast majority of these grave markers consisted of crosses,[ 7 ] and thus when Americans saw photographs of these cemeteries, what struck them were rows and rows of plain white crosses. As a result, the image of a simple white cross “developed into a ‘central symbol’ ” of the conflict. Ibid . Contemporary literature, poetry, and art reflected this powerful imagery. See Brief for Veterans of Foreign Wars of the United States et al. as Amici Curiae 10–16. Perhaps most famously, John McCrae’s poem, In Flanders Fields, began with these memorable lines: “In Flanders fields the poppies blow Between the crosses, row on row.” In Flanders Fields and Other Poems 3 (G. P. Putnam’s Sons ed. 1919). The poem was enormously popular. See P. Fussell, The Great War and Modern Memory 248–249 (1975). A 1921 New York Times article quoted a description of McCrae’s composition as “ ‘the poem of the army’ ” and “ ‘of all those who understand the meaning of the great conflict.’ ”[ 8 ] The image of “the crosses, row on row,” stuck in people’s minds, and even today for those who view World War I cemeteries in Europe, the image is arresting.[ 9 ] After the 1918 armistice, the War Department announced plans to replace the wooden crosses and Stars of David with uniform marble slabs like those previously used in American military cemeteries. App. 1146. But the public outcry against that proposal was swift and fierce. Many organizations, including the American War Mothers, a nonsectarian group founded in 1917, urged the Department to retain the design of the temporary markers. Id. , at 1146–1147. When the American Battle Monuments Commission took over the project of designing the headstones, it responded to this public sentiment by opting to replace the wooden crosses and Stars of David with marble versions of those symbols. Id. , at 1144. A Member of Congress likewise introduced a resolution noting that “these wooden symbols have, during and since the World War, been regarded as emblematic of the great sacrifices which that war entailed, have been so treated by poets and artists and have become peculiarly and inseparably associated in the thought of surviving relatives and comrades and of the Nation with these World War graves.” H. Res. 15, 68th Cong., 1 (1924), App. 1163–1164. This national debate and its outcome confirmed the cross’s widespread resonance as a symbol of sacrifice in the war. B Recognition of the cross’s symbolism extended to local communities across the country. In late 1918, residents of Prince George’s County, Maryland, formed a committee for the purpose of erecting a memorial for the county’s fallen soldiers. App. 988–989, 1014. Among the committee’s members were the mothers of 10 deceased soldiers. Id., at 989. The committee decided that the memorial should be a cross and hired sculptor and architect John Joseph Earley to design it. Although we do not know precisely why the committee chose the cross, it is unsurprising that the committee—and many others commemorating World War I[ 10 ]—adopted a symbol so widely associated with that wrenching event. After selecting the design, the committee turned to the task of financing the project. The committee held fundraising events in the community and invited donations, no matter the size, with a form that read: “We, the citizens of Maryland, trusting in God, the Supreme Ruler of the Universe, Pledge Faith in our Brothers who gave their all in the World War to make [the] World Safe for Democracy. Their Mortal Bodies have turned to dust, but their spirit Lives to guide us through Life in the way of Godliness, Justice and Liberty. “With our Motto, ‘One God, One Country, and One Flag’ We contribute to this Memorial Cross Commemorating the Memory of those who have not Died in Vain.” Id ., at. 1251. Many of those who responded were local residents who gave small amounts: Donations of 25 cents to 1 dollar were the most common. Id. , at 1014. Local businesses and political leaders assisted in this effort. Id., at 1014, 1243. In writing to thank United States Senator John Walter Smith for his donation, committee treasurer Mrs. Martin Redman explained that “[t]he chief reason I feel as deeply in this matter [is that], my son, [Wm.] F. Redman, lost his life in France and because of that I feel that our memorial cross is, in a way, his grave stone.” Id. , at 1244. The Cross was to stand at the terminus of another World War I memorial—the National Defense Highway, which connects Washington to Annapolis. The community gathered for a joint groundbreaking ceremony for both memorials on September 28, 1919; the mother of the first Prince George’s County resident killed in France broke ground for the Cross. Id. , at 910. By 1922, however, the committee had run out of funds, and progress on the Cross had stalled. The local post of the American Legion took over the project, and the monument was finished in 1925. The completed monument is a 32-foot tall Latin cross that sits on a large pedestal. The American Legion’s emblem is displayed at its center, and the words “Valor,” “Endurance,” “Courage,” and “Devotion” are inscribed at its base, one on each of the four faces. The pedestal also features a 9- by 2.5-foot bronze plaque explaining that the monument is “Dedicated to the heroes of Prince George’s County, Maryland who lost their lives in the Great War for the liberty of the world.” Id ., at 915 (capitalization omitted). The plaque lists the names of 49 local men, both Black and White, who died in the war. It identifies the dates of American involvement, and quotes President Woodrow Wilson’s request for a declaration of war: “The right is more precious than peace. We shall fight for the things we have always carried nearest our hearts. To such a task we dedicate our lives.” Ibid . At the dedication ceremony, a local Catholic priest offered an invocation. Id., at 217–218. United States Representative Stephen W. Gambrill delivered the keynote address, honoring the “ ‘men of Prince George’s County’ ” who “ ‘fought for the sacred right of all to live in peace and security.’ ” Id ., at 1372. He encouraged the commu- nity to look to the “ ‘token of this cross, symbolic of Calvary,’ ” to “ ‘keep fresh the memory of our boys who died for a righteous cause.’ ” Ibid. The ceremony closed with a benediction offered by a Baptist pastor. Since its dedication, the Cross has served as the site of patriotic events honoring veterans, including gatherings on Veterans Day, Memorial Day, and Independence Day. Like the dedication itself, these events have typically included an invocation, a keynote speaker, and a benediction. Id. , at 182, 319–323. Over the years, memorials honoring the veterans of other conflicts have been added to the surrounding area, which is now known as Veterans Memorial Park. These include a World War II Honor Scroll; a Pearl Harbor memorial; a Korea-Vietnam veterans memorial; a September 11 garden; a War of 1812 memorial; and two recently added 38-foot-tall markers depicting British and American soldiers in the Battle of Bladensburg. Id. , at 891–903, 1530. Because the Cross is located on a traffic island with limited space, the closest of these other monuments is about 200 feet away in a park across the road. Id. , at 36, 44. As the area around the Cross developed, the monument came to be at the center of a busy intersection. In 1961, the Maryland-National Capital Park and Planning Commission (Commission) acquired the Cross and the land on which it sits in order to preserve the monument and address traffic-safety concerns.[ 11 ] Id. , at 420–421, 1384–1387. The American Legion reserved the right to continue using the memorial to host a variety of ceremonies, including events in memory of departed veterans. Id. , at 1387. Over the next five decades, the Commission spent approximately $117,000 to maintain and preserve the monument. In 2008, it budgeted an additional $100,000 for renovations and repairs to the Cross.[ 12 ] C In 2012, nearly 90 years after the Cross was dedicated and more than 50 years after the Commission acquired it, the American Humanist Association (AHA) lodged a complaint with the Commission. The complaint alleged that the Cross’s presence on public land and the Commission’s maintenance of the memorial violate the Establishment Clause of the First Amendment. Id., at 1443–1451. The AHA, along with three residents of Washington, D. C., and Maryland, also sued the Commission in the District Court for the District of Maryland, making the same claim. The AHA sought declaratory and injunctive relief requiring “removal or demolition of the Cross, or removal of the arms from the Cross to form a non-religious slab or obelisk.” 874 F.3d 195, 202, n. 7 (CA4 2017) (internal quotation marks omitted). The American Legion intervened to defend the Cross. The District Court granted summary judgment for the Commission and the American Legion. The Cross, the District Court held, satisfies both the three-pronged test announced in Lemon v. Kurtzman, 403 U.S. 602 (1971) , and the analysis applied by Justice Breyer in upholding the Ten Commandments monument at issue in Van Orden v. Perry , 545 U.S. 677 . Under the Lemon test, a court must ask whether a challenged government action (1) has a secular purpose; (2) has a “principal or primary effect” that “neither advances nor inhibits religion”; and (3) does not foster “an excessive government entanglement with religion,” 403 U. S., at 612–613 (internal quotation marks omitted). Applying that test, the District Court determined that the Commission had secular purposes for acquiring and maintaining the Cross—namely, to commemorate World War I and to ensure traffic safety. The court also found that a reasonable observer aware of the Cross’s history, setting, and secular elements “would not view the Monument as having the effect of impermissibly endorsing religion.” 147 F. Supp. 3d 373, 387 (Md. 2015). Nor, according to the court, did the Commission’s maintenance of the memorial create the kind of “continued and repeated government involvement with religion” that would constitute an excessive entanglement. Ibid. (internal quotation marks and emphasis omitted). Finally, in light of the factors that informed its analysis of Lemon ’s “effects” prong, the court concluded that the Cross is constitutional under Justice Breyer’s approach in Van Orden. 147 F. Supp. 3d, at 388–390. A divided panel of the Court of Appeals for the Fourth Circuit reversed. The majority relied primarily on the Lemon test but also took cognizance of Justice Breyer’s Van Orden concurrence. While recognizing that the Commission acted for a secular purpose, the court held that the Bladensburg Cross failed Lemon ’s “effects” prong because a reasonable observer would view the Commission’s ownership and maintenance of the monument as an endorsement of Christianity. The court emphasized the cross’s “inherent religious meaning” as the “ ‘preeminent symbol of Christianity.’ ” 874 F. 3d, at 206–207. Although conceding that the monument had several “secular elements,” the court asserted that they were “overshadow[ed]” by the Cross’s size and Christian connection—especially because the Cross’s location and condition would make it difficult for “passers-by” to “read” or otherwise “examine” the plaque and American Legion emblem. Id., at 209–210. The court rejected as “too simplistic” an argument dppefending the Cross’s constitutionality on the basis of its 90-year history, suggesting that “[p]erhaps the longer a violation persists, the greater the affront to those offended.” Id., at 208. In the alternative, the court concluded, the Commission had become excessively entangled with religion by keeping a display that “aggrandizes the Latin cross” and by spending more than de minimis public funds to maintain it. Id., at 211–212. Chief Judge Gregory dissented in relevant part, contending that the majority misapplied the “effects” test by failing to give adequate consideration to the Cross’s “physical setting, history, and usage.” Id., at 218 (opinion concurring in part and dissenting in part). He also disputed the majority’s excessive-entanglement analysis, noting that the Commission’s maintenance of the Cross was not the kind of “comprehensive, discriminating, and continuing state surveillance” of religion that Lemon was con-cerned to rule out. 874 F. 3d, at 221 (internal quotation marks omitted). The Fourth Circuit denied rehearing en banc over dissents by Chief Judge Gregory, Judge Wilkinson, and Judge Niemeyer. 891 F.3d 117 (2018). The Commission and the American Legion each petitioned for certiorari. We granted the petitions and consolidated them for argument. 586 U. S. ___ (2016). II A The Establishment Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion.” While the concept of a formally established church is straightforward, pinning down the meaning of a “law respecting an establishment of religion” has proved to be a vexing problem. Prior to the Court’s decision in Everson v. Board of Ed. of Ewing, 330 U.S. 1 (1947), the Establishment Clause was applied only to the Federal Government, and few cases involving this provision came before the Court. After Everson recognized the incorporation of the Clause, however, the Court faced a steady stream of difficult and controversial Establishment Clause issues, ranging from Bible reading and prayer in the public schools, Engel v. Vitale , 370 U.S. 421 (1962); School Dist. of Abington Township v. Schempp , 374 U.S. 203 (1963), to Sunday closing laws, McGowan v. Maryland , 366 U.S. 420 (1961), to state subsidies for church-related schools or the parents of students attending those schools, Board of Ed. of Central School Dist. No. 1 v. Allen , 392 U.S. 236 (1968); Everson, supra. After grappling with such cases for more than 20 years, Lemon ambitiously attempted to distill from the Court’s existing case law a test that would bring order and predictability to Establishment Clause decisionmaking. That test, as noted, called on courts to examine the purposes and effects of a challenged government action, as well as any entanglement with religion that it might entail. Lemon , 403 U. S., at 612–613. The Court later elaborated that the “effect[s]” of a challenged action should be assessed by asking whether a “reasonable observer” would conclude that the action constituted an “endorsement” of religion. County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter , 492 U.S. 573 , 592 (1989); id., at 630 (O’Connor, J., concurring in part and concurring in judgment). If the Lemon Court thought that its test would provide a framework for all future Establishment Clause decisions, its expectation has not been met. In many cases, this Court has either expressly declined to apply the test or has simply ignored it. See Zobrest v. Catalina Foothills School Dist. , 509 U.S. 1 (1993); Board of Ed. of Kiryas Joel Village School Dist. v. Grumet , 512 U.S. 687 (1994); Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U.S. 819 (1995); Capitol Square Review and Advisory Bd. v. Pinette , 515 U.S. 753 (1995); Good News Club v. Milford Central School , 533 U.S. 98 (2001); Zelman v. Simmons-Harris , 536 U.S. 639 (2002); Cutter v. Wilkinson , 544 U.S. 709 (2005); Van Orden , 545 U.S. 677 ; Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC , 565 U.S. 171 (2012); Town of Greece v. Galloway , 572 U.S. 565 (2014); Trump v. Hawaii , 585 U. S. ___ (2018). This pattern is a testament to the Lemon test’s shortcomings. As Establishment Clause cases involving a great array of laws and practices came to the Court, it became more and more apparent that the Lemon test could not resolve them. It could not “explain the Establishment Clause’s tolerance, for example, of the prayers that open legislative meetings, . . . certain references to, and invocations of, the Deity in the public words of public officials; the public references to God on coins, decrees, and buildings; or the attention paid to the religious objectives of certain holidays, including Thanksgiving.” Van Orden , supra , at 699 (opinion of Breyer, J.). The test has been harshly criticized by Members of this Court,[ 13 ] lamented by lower court judges,[ 14 ] and questioned by a diverse roster of scholars.[ 15 ] For at least four reasons, the Lemon test presents particularly daunting problems in cases, including the one now before us, that involve the use, for ceremonial, celebratory, or commemorative purposes, of words or symbols with religious associations.[ 16 ] Together, these considera- tions counsel against efforts to evaluate such cases under Lemon and toward application of a presumption of constitutionality for longstanding monuments, symbols, and practices. B First , these cases often concern monuments, symbols, or practices that were first established long ago, and in such cases, identifying their original purpose or purposes may be especially difficult. In Salazar v. Buono , 559 U.S. 700 (2010), for example, we dealt with a cross that a small group of World War I veterans had put up at a remote spot in the Mojave Desert more than seven decades earlier. The record contained virtually no direct evidence regarding the specific motivations of these men. We knew that they had selected a plain white cross, and there was some evidence that the man who looked after the monument for many years—“a miner who had served as a medic and had thus presumably witnessed the carnage of the war firsthand”—was said not to have been “particularly religious.” Id ., at 724 (Alito, J., concurring in part and concurring in judgment). Without better evidence about the purpose of the monument, different Justices drew different inferences. The plurality thought that this particular cross was meant “to commemorate American servicemen who had died in World War I” and was not intended “to promote a Christian message.” Id., at 715. The dissent, by contrast, “presume[d]” that the cross’s purpose “was a Christian one, at least in part, for the simple reason that those who erected the cross chose to commemorate American veterans in an explicitly Christian manner.” Id., at 752 (opinion of Stevens, J.). The truth is that 70 years after the fact, there was no way to be certain about the motivations of the men who were responsible for the creation of the monument. And this is often the case with old monuments, symbols, and practices. Yet it would be inappropriate for courts to compel their removal or termination based on supposition. Second , as time goes by, the purposes associated with an established monument, symbol, or practice often multiply. Take the example of Ten Commandments monuments, the subject we addressed in Van Orden, 545 U.S. 677 , and McCreary County v. American Civil Liberties Union of Ky. , 545 U.S. 844 (2005). For believing Jews and Christians, the Ten Commandments are the word of God handed down to Moses on Mount Sinai, but the image of the Ten Commandments has also been used to convey other meanings. They have historical significance as one of the foundations of our legal system, and for largely that reason, they are depicted in the marble frieze in our courtroom and in other prominent public buildings in our Nation’s capital. See Van Orden , supra , at 688–690. In Van Orden and McCreary , no Member of the Court thought that these depictions are unconstitutional. 545 U. S., at 688–690; id. , at 701 (opinion of Breyer, J.); id., at 740 (Souter, J., dissenting). Just as depictions of the Ten Commandments in these public buildings were intended to serve secular purposes, the litigation in Van Orden and McCreary showed that secular motivations played a part in the proliferation of Ten Commandments monuments in the 1950s. In 1946, Minnesota Judge E. J. Ruegemer proposed that the Ten Commandments be widely disseminated as a way of combating juvenile delinquency.[ 17 ] With this prompting, the Fraternal Order of the Eagles began distributing paper copies of the Ten Commandments to churches, school groups, courts, and government offices. The Eagles, “while interested in the religious aspect of the Ten Commandments, sought to highlight the Commandments’ role in shaping civic morality.” Van Orden , supra , at 701 (opinion of Breyer, J.). At the same time, Cecil B. DeMille was filming The Ten Commandments.[ 18 ] He learned of Judge Ruegemer’s campaign, and the two collaborated, deciding that the Commandments should be carved on stone tablets and that DeMille would make arrangements with the Eagles to help pay for them, thus simultaneously promoting his film and public awareness of the Decalogue. Not only did DeMille and Judge Ruegemer have different purposes, but the motivations of those who accepted the monuments and those responsible for maintaining them may also have differed. As we noted in Pleasant Grove City v. Summum , 555 U.S. 460 , 476 (2009), “the thoughts or sentiments expressed by a government entity that accepts and displays [a monument] may be quite different from those of either its creator or its donor.” The existence of multiple purposes is not exclusive to longstanding monuments, symbols, or practices, but this phenomenon is more likely to occur in such cases. Even if the original purpose of a monument was infused with religion, the passage of time may obscure that sentiment. As our society becomes more and more religiously diverse, a community may preserve such monuments, symbols, and practices for the sake of their historical significance or their place in a common cultural heritage. Cf. Schempp , 374 U. S., at 264–265 (Brennan, J., concurring) (“[The] government may originally have decreed a Sunday day of rest for the impermissible purpose of supporting religion but abandoned that purpose and retained the laws for the permissible purpose of furthering overwhelmingly secular ends”). Third, just as the purpose for maintaining a monument, symbol, or practice may evolve, “[t]he ‘message’ conveyed . . . may change over time.” Summum , 555 U. S., at 477. Consider, for example, the message of the Statue of Lib- erty, which began as a monument to the solidarity and friendship between France and the United States and only decades later came to be seen “as a beacon welcoming immigrants to a land of freedom.” Ibid. With sufficient time, religiously expressive monuments, symbols, and practices can become embedded features of a community’s landscape and identity. The community may come to value them without necessarily embracing their religious roots. The recent tragic fire at Notre Dame in Paris provides a striking example. Although the French Republic rigorously enforces a secular public square,[ 19 ] the cathedral remains a symbol of national importance to the religious and nonreligious alike. Notre Dame is fundamentally a place of worship and retains great religious importance, but its meaning has broadened. For many, it is inextricably linked with the very idea of Paris and France.[ 20 ] Speaking to the nation shortly after the fire, President Macron said that Notre Dame “ ‘is our history, our literature, our imagination. The place where we survived epidemics, wars, liberation. It has been the epicenter of our lives.’ ”[ 21 ] In the same way, consider the many cities and towns across the United States that bear religious names. Religion undoubtedly motivated those who named Bethlehem, Pennsylvania; Las Cruces, New Mexico; Providence, Rhode Island; Corpus Christi, Texas; Nephi, Utah, and the countless other places in our country with names that are rooted in religion. Yet few would argue that this history requires that these names be erased from the map. Or take a motto like Arizona’s, “ Ditat Deus ” (“God enriches”), which was adopted in 1864,[ 22 ] or a flag like Maryland’s, which has included two crosses since 1904.[ 23 ] Familiarity itself can become a reason for preservation. Fourth , when time’s passage imbues a religiously expressive monument, symbol, or practice with this kind of familiarity and historical significance, removing it may no longer appear neutral, especially to the local community for which it has taken on particular meaning. A government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion. Militantly secular regimes have carried out such projects in the past,[ 24 ] and for those with a knowledge of history, the image of monuments being taken down will be evocative, disturbing, and divisive. Cf. Van Orden , 545 U. S., at 704 (opinion of Breyer, J.) (“[D]isputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation . . . could thereby create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid”). These four considerations show that retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones. The passage of time gives rise to a strong presumption of constitutionality. C The role of the cross in World War I memorials is il- lustrative of each of the four preceding considerations. Immediately following the war, “[c]ommunities across America built memorials to commemorate those who had served the nation in the struggle to make the world safe for democracy.” G. Piehler, The American Memory of War, App. 1124. Although not all of these communities included a cross in their memorials, the cross had become a symbol closely linked to the war. “[T]he First World War witnessed a dramatic change in . . . the symbols used to commemorate th[e] service” of the fallen soldiers. Id. , at 1123. In the wake of the war, the United States adopted the cross as part of its military honors, establishing the Distinguished Service Cross and the Navy Cross in 1918 and 1919, respectively. See id. , at 147–148. And as already noted, the fallen soldiers’ final resting places abroad were marked by white crosses or Stars of David. The solemn image of endless rows of white crosses became inextricably linked with and symbolic of the ultimate price paid by 116,000 soldiers. And this relationship between the cross and the war undoubtedly influenced the design of the many war memorials that sprang up across the Nation. This is not to say that the cross’s association with the war was the sole or dominant motivation for the inclusion of the symbol in every World War I memorial that features it. But today, it is all but impossible to tell whether that was so. The passage of time means that testimony from those actually involved in the decisionmaking process is generally unavailable, and attempting to uncover their motivations invites rampant speculation. And no matter what the original purposes for the erection of a monument, a community may wish to preserve it for very different reasons, such as the historic preservation and traffic-safety concerns the Commission has pressed here. In addition, the passage of time may have altered the area surrounding a monument in ways that change its meaning and provide new reasons for its preservation. Such changes are relevant here, since the Bladensburg Cross now sits at a busy traffic intersection, and numerous additional monuments are located nearby. Even the AHA recognizes that there are instances in which a war memorial in the form of a cross is unobjectionable. The AHA is not offended by the sight of the Argonne Cross or the Canadian Cross of Sacrifice, both Latin crosses commemorating World War I that rest on public grounds in Arlington National Cemetery. The difference, according to the AHA, is that their location in a cemetery gives them a closer association with individual gravestones and interred soldiers. See Brief for Respondents 96; Tr. of Oral Arg. 52. But a memorial’s placement in a cemetery is not necessary to create such a connection. The parents and other relatives of many of the war dead lacked the means to travel to Europe to visit their graves, and the bodies of approximately 4,400 American soldiers were either never found or never identified.[ 25 ] Thus, for many grieving relatives and friends, memorials took the place of gravestones. Recall that the mother of one of the young men memorialized by the Bladensburg Cross thought of the memorial as, “in a way, his grave stone.” App. 1244. Whether in a cemetery or a city park, a World War I cross remains a memorial to the fallen. Similar reasoning applies to other memorials and monuments honoring important figures in our Nation’s his- tory. When faith was important to the person whose life is commemorated, it is natural to include a symbolic reference to faith in the design of the memorial. For example, many memorials for Dr. Martin Luther King, Jr., make reference to his faith. Take the Martin Luther King, Jr. Civil Rights Memorial Park in Seattle, which contains a sculpture in three segments representing “both the Christian Trinity and the union of the family.”[ 26 ] In Atlanta, the Ebenezer Baptist Church sits on the grounds of the Martin Luther King, Jr. National Historical Park. National Statuary Hall in the Capitol honors a variety of religious figures: for example, Mother Joseph Pariseau kneeling in prayer; Po’Pay, a Pueblo religious leader with symbols of the Pueblo religion; Brigham Young, president of the Church of Jesus Christ of Latter-day Saints; and Father Eusebio Kino with a crucifix around his neck and his hand raised in blessing.[ 27 ] These monuments honor men and women who have played an important role in the history of our country, and where religious symbols are included in the monuments, their presence acknowledges the centrality of faith to those whose lives are commemorated. Finally, as World War I monuments have endured through the years and become a familiar part of the physical and cultural landscape, requiring their removal would not be viewed by many as a neutral act. And an alteration like the one entertained by the Fourth Circuit—amputating the arms of the Cross, see 874 F. 3d, at 202, n. 7—would be seen by many as profoundly disrespectful. One member of the majority below viewed this objection as inconsistent with the claim that the Bladensburg Cross serves secular purposes, see 891 F. 3d, at 121 (Wynn, J., concurring in denial of en banc), but this argument misunderstands the complexity of monuments. A monument may express many purposes and convey many different messages, both secular and religious. Cf. Van Orden , 545 U. S., at 690 (plurality opinion) (describing simultaneous religious and secular meaning of the Ten Commandments display). Thus , a campaign to obliterate items with religious associations may evidence hostility to religion even if those religious associations are no longer in the forefront. For example, few would say that the State of California is attempting to convey a religious message by retaining the names given to many of the State’s cities by their original Spanish settlers—San Diego, Los Angeles, Santa Barbara, San Jose, San Francisco, etc. But it would be something else entirely if the State undertook to change all those names. Much the same is true about monuments to soldiers who sacrificed their lives for this country more than a century ago. D While the Lemon Court ambitiously attempted to find a grand unified theory of the Establishment Clause, in later cases, we have taken a more modest approach that focuses on the particular issue at hand and looks to history for guidance. Our cases involving prayer before a legislative session are an example. In Marsh v. Chambers , 463 U.S. 783 (1983), the Court upheld the Nebraska Legislature’s practice of beginning each session with a prayer by an official chaplain, and in so holding, the Court conspicuously ignored Lemon and did not respond to Justice Brennan’s argument in dissent that the legislature’s practice could not satisfy the Lemon test. Id ., at 797–801. Instead, the Court found it highly persuasive that Congress for more than 200 years had opened its sessions with a prayer and that many state legislatures had followed suit. Id ., at 787–788. We took a similar approach more recently in Town of Greece , 572 U. S., at 577. We reached these results even though it was clear, as stressed by the Marsh dissent, that prayer is by definition religious. See Marsh , supra , at 797–798 (opinion of Brennan, J.). As the Court put it in Town of Greece : “ Marsh must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation.” 572 U. S., at 576. “The case teaches instead that the Establishment Clause must be interpreted ‘by reference to historical practices and understandings’ ” and that the decision of the First Congress to “provid[e] for the appointment of chaplains only days after approving language for the First Amendment demonstrates that the Framers considered legislative prayer a benign acknowledgment of religion’s role in society.” Ibid. The prevalence of this philosophy at the time of the founding is reflected in other prominent actions taken by the First Congress. It requested—and President Washington proclaimed—a national day of prayer, see 1 J. Richardson, Messages and Papers of the Presidents, 1789–1897, p. 64 (1897) (President Washington’s Thanksgiving Proclamation), and it reenacted the Northwest Territory Ordinance, which provided that “[r]eligion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged,” 1Stat. 52, n. ( a ). President Washington echoed this sentiment in his Farewell Address, calling religion and morality “indispensable supports” to “political prosperity.” Farewell Address (1796), in 35 The Writings of George Washington 229 (J. Fitzpatrick ed. 1940). See also P. Hamburger, Separation of Church and State 66 (2002). The First Congress looked to these “supports” when it chose to begin its sessions with a prayer. This practice was designed to solemnize congressional meetings, unifying those in attendance as they pursued a common goal of good governance. To achieve that purpose, legislative prayer needed to be inclusive rather than divisive, and that required a determined effort even in a society that was much more religiously homogeneous than ours today. Although the United States at the time was overwhelmingly Christian and Protestant,[ 28 ] there was considerable friction between Protestant denominations. See M. Noll, America’s God: From Jonathan Edwards to Abraham Lincoln 228 (2002). Thus, when an Episcopal clergyman was nominated as chaplain, some Congregationalist Members of Congress objected due to the “ ‘diversity of religious sentiments represented in Congress.’ ” D. Davis, Religion and the Continental Congress 74 (2000). Nevertheless, Samuel Adams, a staunch Congregationalist, spoke in favor of the motion: “ ‘I am no bigot. I can hear a prayer from a man of piety and virtue, who is at the same time a friend of his country.’ ” Ibid. Others agreed and the chaplain was appointed. Over time, the members of the clergy invited to offer prayers at the opening of a session grew more and more diverse. For example, an 1856 study of Senate and House Chaplains since 1789 tallied 22 Methodists, 20 Presbyterians, 19 Episcopalians, 13 Baptists, 4 Congregationalists, 2 Roman Catholics, and 3 that were characterized as “miscellaneous.”[ 29 ] Four years later, Rabbi Morris Raphall became the first rabbi to open Congress.[ 30 ] Since then, Congress has welcomed guest chaplains from a variety of faiths, including Islam, Hinduism, Buddhism, and Native American religions.[ 31 ] In Town of Greece, which concerned prayer before a town council meeting, there was disagreement about the inclusiveness of the town’s practice. Compare 572 U. S., at 585 (opinion of the Court) (“The town made reasonable efforts to identify all of the congregations located within its borders and represented that it would welcome a prayer by any minister or layman who wished to give one”), with id ., at 616 (Kagan, J., dissenting) (“Greece’s Board did nothing to recognize religious diversity”). But there was no disagreement that the Establishment Clause permits a nondiscriminatory practice of prayer at the beginning of a town council session. See ibid. (“I believe that pluralism and inclusion [in legislative prayer] in a town hall can satisfy the constitutional requirement of neutrality”). Of course, the specific practice challenged in Town of Greece lacked the very direct connection, via the First Congress, to the thinking of those who were responsible for framing the First Amendment. But what mattered was that the town’s practice “fi[t] within the tradition long followed in Congress and the state legislatures.” Id., at 577 (opinion of the Court). The practice begun by the First Congress stands out as an example of respect and tolerance for differing views, an honest endeavor to achieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans. Where categories of monuments, symbols, and practices with a longstand- ing history follow in that tradition, they are likewise constitutional. III Applying these principles, we conclude that the Bladensburg Cross does not violate the Establishment Clause. As we have explained, the Bladensburg Cross carries special significance in commemorating World War I. Due in large part to the image of the simple wooden crosses that originally marked the graves of American soldiers killed in the war, the cross became a symbol of their sacrifice, and the design of the Bladensburg Cross must be understood in light of that background. That the cross originated as a Christian symbol and retains that meaning in many contexts does not change the fact that the symbol took on an added secular meaning when used in World War I memorials. Not only did the Bladensburg Cross begin with this meaning, but with the passage of time, it has acquired historical importance. It reminds the people of Bladensburg and surrounding areas of the deeds of their predecessors and of the sacrifices they made in a war fought in the name of democracy. As long as it is retained in its original place and form, it speaks as well of the community that erected the monument nearly a century ago and has maintained it ever since. The memorial represents what the relatives, friends, and neighbors of the fallen soldiers felt at the time and how they chose to express their sentiments. And the monument has acquired additional layers of historical meaning in subsequent years. The Cross now stands among memorials to veterans of later wars. It has become part of the community. The monument would not serve that role if its design had deliberately disrespected area soldiers who perished in World War I. More than 3,500 Jewish soldiers gave their lives for the United States in that conflict,[ 32 ] and some have wondered whether the names of any Jewish soldiers from the area were deliberately left off the list on the memorial or whether the names of any Jewish soldiers were included on the Cross against the wishes of their families. There is no evidence that either thing was done, and we do know that one of the local American Legion leaders responsible for the Cross’s construction was a Jewish veteran. See App. 65, 205, 990. The AHA’s brief strains to connect the Bladensburg Cross and even the American Legion with anti-Semitism and the Ku Klux Klan, see Brief for Respondents 5–7, but the AHA’s disparaging intimations have no evidentiary support. And when the events surrounding the erection of the Cross are viewed in historical context, a very different picture may perhaps be discerned. The monument was dedicated on July 12, 1925, during a period when the country was experiencing heightened racial and religious animosity. Membership in the Ku Klux Klan, which preached hatred of Blacks, Catholics, and Jews, was at its height.[ 33 ] On August 8, 1925, just two weeks after the dedication of the Bladensburg Cross and less than 10 miles away, some 30,000 robed Klansmen marched down Pennsylvania Avenue in the Nation’s Capital. But the Bladensburg Cross memorial included the names of both Black and White soldiers who had given their lives in the war; and despite the fact that Catholics and Baptists at that time were not exactly in the habit of participating together in ecumenical services, the ceremony dedicating the Cross began with an invocation by a Catholic priest and ended with a benediction by a Baptist pastor. App. 1559–1569, 1373. We can never know for certain what was in the minds of those responsible for the memorial, but in light of what we know about this ceremony, we can perhaps make out a picture of a community that, at least for the moment, was united by grief and patriotism and rose above the divisions of the day. Finally, it is surely relevant that the monument commemorates the death of particular individuals. It is natural and appropriate for those seeking to honor the deceased to invoke the symbols that signify what death meant for those who are memorialized. In some circumstances, the exclusion of any such recognition would make a memorial incomplete. This well explains why Holocaust memorials invariably include Stars of David or other symbols of Judaism.[ 34 ] It explains why a new memorial to Native American veterans in Washington, D. C., will portray a steel circle to represent “ ‘the hole in the sky where the creator lives.’ ”[ 35 ] And this is why the memorial for soldiers from the Bladensburg community features the cross—the same symbol that marks the graves of so many of their comrades near the battlefields where they fell. IV The cross is undoubtedly a Christian symbol, but that fact should not blind us to everything else that the Bladensburg Cross has come to represent. For some, that monument is a symbolic resting place for ancestors who never returned home. For others, it is a place for the community to gather and honor all veterans and their sacrifices for our Nation. For others still, it is a historical landmark. For many of these people, destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment. For all these reasons, the Cross does not offend the Constitution. *  *  * We reverse the judgment of the Court of Appeals for the Fourth Circuit and remand the cases for further proceedings. It is so ordered. Notes 1 B. Longenecker, The Cross Before Constantine: The Early Life of a Christian Symbol 2 (2015). 2 See Blue Cross, Blue Shield, https://www.bcbs.com; The Bayer Group, The Bayer Cross—Logo and Landmark, https://www.bayer.com/en/logo-history.aspx; Band-Aid Brand Adhesive Bandages, Johnson & Johnson All Purpose First Aid Kit, https://www.band-aid.com/products/first-aid-kits/all-purpose (all Internet materials as last visited June 18, 2019). 3 International Committee of the Red Cross, The History of the Emblems, https://www.icrc.org/en/doc/resources/documents/misc/emblem-history.htm. 4 For example, the Indian and Japanese affiliates of the ICRC and Red Crescent Societies use the symbol of the cross. See Indian Red Cross Society, https://www.indianredcross.org/ircs/index.php ; Japanese Red Cross Society, http://www.jrc.or.jp/english /. 5 See “Flag of Switzerland,” Britannica Academic, https://academic.eb.com/levels/collegiate/article/flag-of-Switzerland/93966. 6 The Latin form of the cross “has a longer upright than crossbar. The intersection of the two is usually such that the upper and the two horizontal arms are all of about equal length, but the lower arm is conspicuously longer.” G. Ferguson, Signs & Symbols in Christian Art 294 (1954). See also Webster’s Third New International Dictionary 1276 (1981) (“latin cross, n.”: “a figure of a cross having a long upright shaft and a shorter crossbar traversing it above the middle”). 7 Of the roughly 116,000 casualties the United States suffered in World War I, some 3,500 were Jewish soldiers. J. Fredman & L. Falk, Jews in American Wars 100 (5th ed. 1954). In the congressional hearings involving the appropriate grave markers for those buried abroad, one Representative stated that approximately 1,600 of these Jewish soldiers were buried in overseas graves marked by Stars of David. See Hearings before the Committee on Military Affairs, 68th Cong., 1st Sess., 3 (1924). That would constitute about 5.2% of the 30,973 graves in American World War I cemeteries abroad. See American Battle Monuments Commission (ABMC), World War I Burials and Memorializations, https://www.abmc.gov/node/1273. 8 “In Flanders Fields,” N. Y. Times, Dec. 18, 1921, p. 96. 9 See ABMC, Cemeteries and Memorials, https://www.abmc.gov/cemeteries-memorials. 10 Other World War I memorials that incorporate the cross include the Argonne Cross and the Canadian Cross of Sacrifice in Arlington National Cemetery; the Wayside Cross in Towson, Maryland; the Wayside Cross in New Canaan, Connecticut; the Troop K Georgia Cavalry War Memorial Front in Augusta, Georgia; the Chestnut Hill and Mt. Airy World War Memorial in Philadelphia, Pennsylvania; and the Great War for Democracy Memorial in Waterbury, Connecticut. 11 There is some ambiguity as to whether the American Legion ever owned the land on which the Cross rests. When the Legion took over the Cross, the town of Bladensburg passed a resolution “assign[ing] and grant[ing] to the said Snyder-Farmer Post #3, American Legion, that parcel of ground upon which the cross now stands and that part necessary to complete . . . the park around said cross, to the perpetual care of the Snyder-Farmer Post #3 as long as it is in existence, and should the said Post go out of existence the plot to revert to the Town of Bladensburg, together with the cross and its surroundings.” App. 65. In 1935, a statute authorized the State Roads Commission of Maryland to “investigate the ownership and possessory rights” of the tract surrounding the Cross and to “acquire the same by purchase or condemnation.” Id. , at 421. It appears that in 1957, a court determined that it was necessary for the State to condemn the property. Id. , at 1377–1379. The State Roads Commission thereafter conveyed the property to the Commission in 1960. Id. , at 1380, 1382. To resolve any ambiguities, in 1961, the local American Legion post “transfer[ed] and assign[ed] to [the Commission] all its right, title and interest in and to the Peace Cross, also originally known as the Memorial Cross, and the tract upon which it is located.” Id. , at 1387. At least by 1961, then, both the land and the Cross were publicly owned. 12 Of the budgeted $100,000, the Commission had spent only $5,000 as of 2015. The Commission put off additional spending and repairs in light of this lawsuit. Id., at 823. 13 See, e.g. , Utah Highway Patrol Assn. v. American Atheists, Inc. , 565 U.S. 994, 995 (2011) (Thomas, J., dissenting from denial of certiorari); County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter , 492 U.S. 573 , 655–656 (1989) (Kennedy, J., concurring in judgment in part and dissenting in part); Lamb’s Chapel v. Center Moriches Union Free School Dist. , 508 U.S. 384 , 398–399 (1993) (Scalia, J., concurring in judgment); Wallace v. Jaffree , 472 U.S. 38 , 112 (1985) (Rehnquist, J., dissenting). 14 See, e.g., Green v. Haskell Cty. Bd. of Comm’rs , 574 F.3d 1235, n. 1 (CA10 2009) (Kelly, J., dissenting from denial of rehearing en banc) (discussing the “judicial morass resulting from the Supreme Court’s opinions”); Cooper v. United States Postal Service , 577 F.3d 479, 494 (CA2 2009) (“ Lemon is difficult to apply and not a particularly useful test”); Roark v. South Iron R–1 School Dist. , 573 F.3d 556, 563 (CA8 2009) (“[T]he Lemon test has had a ‘checkered career’ ”); Skoros v. New York , 437 F.3d 1 , 15 (CA2 2006) (government officials “confront a ‘jurisprudence of minutiae’ that leaves them to rely on ‘little more than intuition and a tape measure’ to ensure the constitutionality of public holiday displays” (quoting County of Allegheny , supra , at 674–675 (opinion of Kennedy, J.)); Felix v. Bloomfield , 841 F.3d 848, 864 (CA10 2016) (court “cannot speculate what precise actions a government must take” to comply with the Establishment Clause); Separation of Church and State Comm. v. Eugene , 93 F.3d 617 , 627 (CA9 1996) (O’Scannlain, J., concurring in result) (The standards announced by this Court “are not always clear, consistent or coherent”). 15 See McConnell, Religious Freedom at a Crossroads, 59 U. Chi. L. Rev. 115, 118–120 (1992) (describing doctrinal “chaos” Lemon created, allowing the Court to “reach almost any result in almost any case”); Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 Colum. L. Rev. 1373, 1380–1388 (1981) (criticizing the “unstructured expansiveness of the entanglement notion” and the potential that certain constructions of the effects prong may result in “the establishment clause threaten[ing] to swallow the free exercise clause”); Smith, Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutral-ity and the “No Endorsement” Test, 86 Mich. L. Rev. 266, 269 (1987) (criticizing both the Lemon test and the endorsement gloss); Tushnet, Reflections on the Role of Purpose in the Jurisprudence of the Religion Clauses, 27 Wm. & Mary L. Rev. 997, 1004 (1986) (describing cases involving “ ‘deeply ingrained practices’ ” as “not readily susceptible to analysis under the ordinary Lemon approach”); Choper, The Endorsement Test: Its Status and Desirability, 18 J. L. & Politics 499 (2002) (criticizing both Lemon and the endorsement gloss); Paulsen, Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication, 61 Notre Dame L. Rev. 311, 315 (1986) (criticizing the Court’s reading of the Establishment Clause as “producing a schizophrenic pattern of decisions”); Marshall, “We Know It When We See It”: The Supreme Court and Establishment, 59 S. Cal. L. Rev. 495, 526 (1986) (explaining that the purpose prong of Lemon , “[t]aken to its logical conclusion . . . suggests that laws which respect free exercise rights . . . are unconstitutional”). 16 While we do not attempt to provide an authoritative taxonomy of the dozens of Establishment Clause cases that the Court has decided since Everson v . Board of Ed. of Ewing, 330 U.S. 1 (1947), most can be divided into six rough categories: (1) religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies, e.g. , Lynch v. Donnelly , 465 U.S. 668 (1984); Van Orden v. Perry , 545 U.S. 677 (2005); (2) religious accommodations and exemptions from gener-ally applicable laws, e.g. , Cutter v . Wilkinson , 544 U.S. 709 (2005); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos , 483 U.S. 327 (1987); (3) subsidies and tax exemptions, e.g. , Walz v. Tax Comm’n of City of New York , 397 U.S. 664 (1970); Zelman v. Simmons-Harris , 536 U.S. 639 (2002); (4) religious expression in public schools, e.g. , School Dist. of Abington Township v. Schempp , 374 U.S. 203 (1963); Lee v. Weisman , 505 U.S. 577 (1992); (5) regulation of private religious speech, e.g. , Capitol Square Review and Advisory Bd . v. Pinette , 515 U.S. 753 (1995); and (6) state interference with internal church affairs, e.g., Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC , 565 U.S. 171 (2012). A final, miscellaneous category, including cases involving such issues as Sunday closing laws, see McGowan , v. Maryland , 366 U.S. 420 (1961), and church involvement in governmental decisionmaking, see Larkin v. Grendel’s Den, Inc ., 459 U.S. 116 (1982); Board of Ed. of Kiryas Joel Village School Dist . v. Grumet , 512 U.S. 687 (1994), might be added. We deal here with an issue that falls into the first category. 17 See Bravin, When Moses’ Laws Run Afoul of the U. S.’s, Get Me Cecil B. deMille—Ten Commandment Memorial Has Novel Defense in Suit, Wall Street Journal, Apr. 18, 2001, p. A1. 18 See D. Davis, The Oxford Handbook of Church and State in the United States 284 (2010). 19 See French Constitution, Art. 1 (proclaiming that France is a “secular . . . Republic”). 20 See Erlanger, What the Notre-Dame Fire Reveals About the Soul of France, N. Y. Times, Apr. 16, 2019. 21 Hinnant, Petrequin, & Ganley, Fire Ravages Soaring Notre Dame Cathedral, Paris Left Aghast, AP News, Apr. 16, 2019. 22 See B. Shearer & B. Shearer, State Names, Seals, Flags, and Symbols: A Historical Guide 17–18 (3d ed. 2002). See also id., at 18 (Connecticut motto: “ Qui Tanstulit Sustinet ” (“He Who Transplanted Still Sustains”), dating back to the colonial era and adapted from the Book of Psalms 79:3); ibid. (Florida motto: “In God We Trust,” adopted in 1868); id., at 20 (Maryland motto: “ Scuto Bonae Volantatis Tuae Coronasti Nos ” (“With Favor Wilt Thou Compass Us as with a Shield”), which appeared on the seal adopted in 1876 and comes from Psalms 5:12); id., at 21–22 (Ohio motto: “With God, All Things Are Possible,” adopted in 1959 and taken from Matthew 19:26); id., at 22 (South Dakota motto: “Under God the People Rule,” adopted in 1885); id., at 23 (American Samoa motto: “ Samoa—Muamua le Atua ” (“Samoa—Let God Be First”), adopted in 1975). 23 The current flag was known and used since at least October 1880, and was officially adopted by the General Assembly in 1904. See History of the Maryland Flag, https://sos.maryland.gov/Pages/Services/Flag-History.aspx. 24 For example, the French Revolution sought to “dechristianize” the nation and thus removed “plate[s], statues and other fittings from places of worship,” destroyed “crosses, bells, shrines and other, ‘external signs of worship,’ ” and altered “personal and place names which had any ecclesiastical connotations to more suitably Revolutionary ones.” Tallett, Dechristianizing France: The Year II and the Revolutionary Experience, in Religion, Society and Politics in France Since 1789, pp. 1–2 (F. Tallett & N. Atkin eds. 1991). 25 See App. 141, 936; M. Sledge, Soldier Dead 67 (2005). 26 Local Memorials Honoring Dr. King, https://www.kingcounty.gov/elected/executive/equity-social-justice/mlk/local-memorials.aspx. 27 The National Statuary Hall Collection, https://www.aoc.gov/the-national-statuary-hall-collection. 28 W. Hutchison, Religious Pluralism in America 20–21 (2003). 29 A. Stokes, 3 Church and State in the United States 130 (1950). 30 Korn, Rabbis, Prayers, and Legislatures, 23 Hebrew Union College Annual, No. 2, pp. 95, 96 (1950). 31 See Lund, The Congressional Chaplaincies, 17 Wm. & Mary Bill of Rights J. 1171, 1204–1205 (2009). See also 160 Cong. Rec. 3853 (2014) (prayer by the Dalai Lama). 32 J. Fredman & L. Falk, Jews in American Wars 100–101 (5th ed. 1954). 33 Fryer & Levitt, Hatred and Profits: Under the Hood of the Ku Klux Klan, 127 Q. J. Econ. 1883 (2012). 34 For example, the South Carolina Holocaust Memorial depicts a large Star of David “ ‘in sacred memory of the six million,’ ”see https://www.onecolumbiasc.com/public-art/south-carolina-holocaust-memorial/, and the Philadelphia Monument to Six Million Jewish Martyrs depicts a burning bush, Torah scrolls, and a blazing men-orah, see https://www.associationforpublicart.org/artwork/monument-to-six-million-jewish-martyrs/. 35 Hedgpeth, “A Very Deep Kind of Patriotism”: Memorial to Honor Native American Veterans Is Coming to the Mall, Washington Post , Mar. 31, 2019. SUPREME COURT OF THE UNITED STATES _________________ Nos. 17–1717 and 18–18 _________________ THE AMERICAN LEGION, et al., PETITIONERS 17–1717 v. AMERICAN HUMANIST ASSOCIATION, et al.; and MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, PETITIONER 18–18 v. AMERICAN HUMANIST ASSOCIATION, et al. on writs of certiorari to the united states court of appeals for the fourth circuit [June 20, 2019] Justice Breyer, with whom Justice Kagan joins, concurring. I have long maintained that there is no single formula for resolving Establishment Clause challenges. See Van Orden v. Perry , 545 U.S. 677 , 698 (2005) (opinion concurring in judgment). The Court must instead consider each case in light of the basic purposes that the Religion Clauses were meant to serve: assuring religious liberty and tolerance for all, avoiding religiously based social conflict, and maintaining that separation of church and state that allows each to flourish in its “separate spher[e].” Ibid. ; see also Zelman v. Simmons-Harris , 536 U.S. 639 , 717−723 (2002) (Breyer, J., dissenting). I agree with the Court that allowing the State of Maryland to display and maintain the Peace Cross poses no threat to those ends. The Court’s opinion eloquently explains why that is so: The Latin cross is uniquely associated with the fallen soldiers of World War I; the organizers of the Peace Cross acted with the undeniably secular motive of commemorating local soldiers; no evidence suggests that they sought to disparage or exclude any religious group; the secular values inscribed on the Cross and its place among other memorials strengthen its message of patriotism and commemoration; and, finally, the Cross has stood on the same land for 94 years, generating no controversy in the community until this lawsuit was filed. Nothing in the record suggests that the lack of public outcry “was due to a climate of intimidation.” Van Orden , 545 U. S., at 702 (Breyer, J., concurring in judgment). In light of all these circumstances, the Peace Cross cannot reasonably be understood as “a government effort to favor a particular religious sect” or to “promote religion over nonreligion.” Ibid. And, as the Court explains, ordering its removal or alteration at this late date would signal “a hostility toward religion that has no place in our Establishment Clause traditions.” Id., at 704. The case would be different, in my view, if there were evidence that the organizers had “deliberately disrespected” members of minority faiths or if the Cross had been erected only recently, rather than in the aftermath of World War I. See ante, at 29; see also Van Orden , 545 U. S., at 703 (opinion of Breyer, J.) (explaining that, in light of the greater religious diversity today, “a more contemporary state effort” to put up a religious display is “likely to prove divisive in a way that [a] longstanding, pre-existing monument [would] not”). But those are not the circumstances presented to us here, and I see no reason to order this cross torn down simply because other crosses would raise constitutional concerns. Nor do I understand the Court’s opinion today to adopt a “history and tradition test” that would permit any newly constructed religious memorial on public land. See post, at 1, 4 (Kavanaugh, J., concurring); cf. post, at 8−9 (Gorsuch, J., concurring in judgment). The Court appropriately “looks to history for guidance,” ante, at 25 (plurality opinion), but it upholds the constitutionality of the Peace Cross only after considering its particular historical context and its long-held place in the community, see ante, at 28−30 (majority opinion). A newer memorial, erected under different circumstances, would not necessarily be permissible under this approach. Cf. ante, at 21. As I have previously explained, “where the Establishment Clause is at issue,” the Court must “ ‘distinguish between real threat and mere shadow.’ ” Van Orden , 545 U. S., at 704 (opinion concurring in judgment) (quoting School Dist. of Abington Township v. Schempp , 374 U.S. 203 , 308 (1963) (Goldberg, J., concurring)). In light of all the circumstances here, I agree with the Court that the Peace Cross poses no real threat to the values that the Establishment Clause serves. SUPREME COURT OF THE UNITED STATES _________________ Nos. 17–1717 and 18–18 _________________ THE AMERICAN LEGION, et al., PETITIONERS 17–1717 v. AMERICAN HUMANIST ASSOCIATION, et al.; and MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, PETITIONER 18–18 v. AMERICAN HUMANIST ASSOCIATION, et al. on writs of certiorari to the united states court of appeals for the fourth circuit [June 20, 2019] Justice Kavanaugh, concurring. I join the Court’s eloquent and persuasive opinion in full. I write separately to emphasize two points. I Consistent with the Court’s case law, the Court today applies a history and tradition test in examining and upholding the constitutionality of the Bladensburg Cross. See Marsh v. Chambers , 463 U.S. 783 , 787–792, 795 (1983); Van Orden v. Perry , 545 U.S. 677 , 686–690 (2005) (plurality opinion); Town of Greece v. Galloway , 572 U.S. 565, 575–578 (2014). As this case again demonstrates, this Court no longer applies the old test articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971). The Lemon test examined, among other things, whether the challenged government action had a primary effect of advancing or endorsing religion. If Lemon guided this Court’s understanding of the Establishment Clause, then many of the Court’s Establishment Clause cases over the last 48 years would have been decided differently, as I will explain. The opinion identifies five relevant categories of Establishment Clause cases: (1) religious symbols on government property and religious speech at government events; (2) religious accommodations and exemptions from generally applicable laws; (3) government benefits and tax exemptions for religious organizations; (4) religious expression in public schools; and (5) regulation of private religious speech in public forums. See ante , at 15, n. 16. The Lemon test does not explain the Court’s decisions in any of those five categories. In the first category of cases, the Court has relied on history and tradition and upheld various religious symbols on government property and religious speech at government events. See, e.g ., Marsh , 463 U. S., at 787–792, 795; Van Orden , 545 U. S., at 686–690 (plurality opinion); Town of Greece , 572 U. S., at 575–578. The Court does so again today. Lemon does not account for the results in these cases. In the second category of cases, this Court has allowed legislative accommodations for religious activity and upheld legislatively granted religious exemptions from generally applicable laws. See, e.g ., Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos , 483 U.S. 327 (1987); Cutter v. Wilkinson , 544 U.S. 709 (2005). But accommodations and exemptions “by definition” have the effect of advancing or endorsing religion to some extent. Amos , 483 U. S., at 347 (O’Connor, J., concurring in judgment) (quotation altered). Lemon , fairly applied, does not justify those decisions. In the third category of cases, the Court likewise has upheld government benefits and tax exemptions that go to religious organizations, even though those policies have the effect of advancing or endorsing religion. See, e.g ., Walz v. Tax Comm’n of City of New York , 397 U.S. 664 (1970); Mueller v. Allen , 463 U.S. 388 (1983); Mitchell v. Helms , 530 U.S. 793 (2000) (plurality opinion); Zelman v. Simmons-Harris , 536 U.S. 639 (2002); Trinity Lutheran Church of Columbia, Inc . v. Comer , 582 U. S. ___ (2017). Those outcomes are not easily reconciled with Lemon . In the fourth category of cases, the Court has proscribed government-sponsored prayer in public schools. The Court has done so not because of Lemon , but because the Court concluded that government-sponsored prayer in public schools posed a risk of coercion of students. The Court’s most prominent modern case on that subject, Lee v. Weisman , 505 U.S. 577 (1992), did not rely on Lemon . In short, Lemon was not necessary to the Court’s decisions holding government-sponsored school prayers unconstitutional. In the fifth category, the Court has allowed private religious speech in public forums on an equal basis with secular speech. See, e.g ., Lamb’s Chapel v. Center Moriches Union Free School Dist ., 508 U.S. 384 (1993); Capitol Square Review and Advisory Bd . v. Pinette , 515 U.S. 753 (1995); Rosenberger v. Rector and Visitors of Univ. of Va ., 515 U.S. 819 (1995); Good News Club v. Milford Central School , 533 U.S. 98 (2001). That practice does not violate the Establishment Clause, the Court has ruled. Lemon does not explain those cases. Today, the Court declines to apply Lemon in a case in the religious symbols and religious speech category, just as the Court declined to apply Lemon in Town of Greece v. Galloway , Van Orden v. Perry , and Marsh v. Chambers . The Court’s decision in this case again makes clear that the Lemon test does not apply to Establishment Clause cases in that category. And the Court’s decisions over the span of several decades demonstrate that the Lemon test is not good law and does not apply to Establishment Clause cases in any of the five categories. On the contrary, each category of Establishment Clause cases has its own principles based on history, tradition, and precedent. And the cases together lead to an overarching set of principles: If the challenged government practice is not coercive and if it (i) is rooted in history and tradition; or (ii) treats religious people, organizations, speech, or activity equally to comparable secular people, organizations, speech, or activity; or (iii) represents a permissible legislative accommodation or exemption from a generally applicable law, then there ordinarily is no Establishment Clause violation.[ 1 ]* The practice of displaying religious memorials, particularly religious war memorials, on public land is not coercive and is rooted in history and tradition. The Bladensburg Cross does not violate the Establishment Clause. Cf. Town of Greece , 572 U.S. 565. II The Bladensburg Cross commemorates soldiers who gave their lives for America in World War I. I agree with the Court that the Bladensburg Cross is constitutional. At the same time, I have deep respect for the plaintiffs’ sincere objections to seeing the cross on public land. I have great respect for the Jewish war veterans who in an amicus brief say that the cross on public land sends a message of exclusion. I recognize their sense of distress and alienation. Moreover, I fully understand the deeply religious nature of the cross. It would demean both believers and nonbelievers to say that the cross is not religious, or not all that religious. A case like this is difficult because it represents a clash of genuine and important interests. Applying our precedents, we uphold the constitutionality of the cross. In doing so, it is appropriate to also restate this bedrock constitutional principle: All citizens are equally American, no matter what religion they are, or if they have no religion at all. The conclusion that the cross does not violate the Establishment Clause does not necessarily mean that those who object to it have no other recourse. The Court’s ruling allows the State to maintain the cross on public land. The Court’s ruling does not require the State to maintain the cross on public land. The Maryland Legislature could enact new laws requiring removal of the cross or transfer of the land. The Maryland Governor or other state or local executive officers may have authority to do so under current Maryland law. And if not, the legislature could enact new laws to authorize such executive action. The Maryland Constitution, as interpreted by the Maryland Court of Appeals, may speak to this question. And if not, the people of Maryland can amend the State Constitution. Those alternative avenues of relief illustrate a fundamental feature of our constitutional structure: This Court is not the only guardian of individual rights in America. This Court fiercely protects the individual rights secured by the U. S. Constitution. See, e.g ., West Virginia Bd. of Ed . v. Barnette , 319 U.S. 624 (1943); Wisconsin v. Yoder , 406 U.S. 205 (1972). But the Constitution sets a floor for the protection of individual rights. The constitutional floor is sturdy and often high, but it is a floor. Other federal, state, and local government entities generally possess authority to safeguard individual rights above and beyond the rights secured by the U. S. Constitution. See generally J. Sutton, 51 Imperfect Solutions (2018); Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977). Notes 1 *That is not to say that challenged government actions outside that safe harbor are unconstitutional. Any such cases must be analyzed under the relevant Establishment Clause principles and precedents. SUPREME COURT OF THE UNITED STATES _________________ Nos. 17–1717 and 18–18 _________________ THE AMERICAN LEGION, et al., PETITIONERS 17–1717 v. AMERICAN HUMANIST ASSOCIATION, et al.; and MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, PETITIONER 18–18 v. AMERICAN HUMANIST ASSOCIATION, et al. on writs of certiorari to the united states court of appeals for the fourth circuit [June 20, 2019] Justice Kagan, concurring in part. I fully agree with the Court’s reasons for allowing the Bladensburg Peace Cross to remain as it is, and so join Parts I, II–B, II–C, III, and IV of its opinion, as well as Justice Breyer’s concurrence. Although I agree that rigid application of the Lemon test does not solve every Establishment Clause problem, I think that test’s focus on purposes and effects is crucial in evaluating government action in this sphere—as this very suit shows. I therefore do not join Part II–A. I do not join Part II–D out of perhaps an excess of caution. Although I too “look[ ] to history for guidance,” ante, at 25 (plurality opinion), I prefer at least for now to do so case-by-case, rather than to sign on to any broader statements about history’s role in Establishment Clause analysis. But I find much to admire in this section of the opinion—particularly, its emphasis on whether longstanding monuments, symbols, and practices reflect “respect and tolerance for differing views, an honest endeavor to achieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans.” Ante, at 28. Here, as elsewhere, the opinion shows sensitivity to and respect for this Nation’s pluralism, and the values of neutrality and inclusion that the First Amendment demands. SUPREME COURT OF THE UNITED STATES _________________ Nos. 17–1717 and 18–18 _________________ THE AMERICAN LEGION, et al., PETITIONERS 17–1717 v. AMERICAN HUMANIST ASSOCIATION, et al.; and MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, PETITIONER 18–18 v. AMERICAN HUMANIST ASSOCIATION, et al. on writs of certiorari to the united states court of appeals for the fourth circuit [June 20, 2019] Justice Gorsuch, with whom Justice Thomas joins, concurring in the judgment. The American Humanist Association wants a federal court to order the destruction of a 94 year-old war memorial because its members are offended. Today, the Court explains that the plaintiffs are not entitled to demand the destruction of longstanding monuments, and I find much of its opinion compelling. In my judgment, however, it follows from the Court’s analysis that suits like this one should be dismissed for lack of standing. Accordingly, while I concur in the judgment to reverse and remand the court of appeals’ decision, I would do so with additional instructions to dismiss the case. * The Association claims that its members “regularly” come into “unwelcome direct contact” with a World War I memorial cross in Bladensburg, Maryland “while driving in the area.” 874 F.3d 195, 203 (CA4 2017). And this, the Association suggests, is enough to allow it to insist on a federal judicial decree ordering the memorial’s removal. Maybe, the Association concedes, others who are less offended lack standing to sue. Maybe others still who are equally affected but who come into contact with the memorial too infrequently lack standing as well. See Tr. of Oral Arg. 48–49. But, the Association assures us, its members are offended enough—and with sufficient frequency—that they may sue. This “offended observer” theory of standing has no basis in law. Federal courts may decide only those cases and controversies that the Constitution and Congress have authorized them to hear. And to establish standing to sue consistent with the Constitution, a plaintiff must show: (1) injury-in-fact, (2) causation, and (3) redressability. The injury-in-fact test requires a plaintiff to prove “an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife , 504 U.S. 555 , 560 (1992) (internal quotation marks omitted). Unsurprisingly, this Court has already rejected the notion that offense alone qualifies as a “concrete and particularized” injury sufficient to confer standing. We could hardly have been clearer: “The presence of a dis- agreement, however sharp and acrimonious it may be, is insufficient by itself to meet Art. III’s requirements.” Diamond v. Charles , 476 U.S. 54 , 62 (1986). Imagine if a bystander disturbed by a police stop tried to sue under the Fourth Amendment. Suppose an advocacy organization whose members were distressed by a State’s decision to deny someone else a civil jury trial sought to complain under the Seventh Amendment. Or envision a religious group upset about the application of the death penalty trying to sue to stop it. Does anyone doubt those cases would be rapidly dispatched for lack of standing? Cf. Whitmore v. Arkansas , 495 U.S. 149 , 151 (1990) (holding that a third party does not have “standing to challenge the validity of a death sentence imposed on a capital defendant who has elected to forgo his right of appeal”). It’s not hard to see why this Court has refused suits like these. If individuals and groups could invoke the author- ity of a federal court to forbid what they dislike for no more reason than they dislike it, we would risk exceeding the judiciary’s limited constitutional mandate and infringing on powers committed to other branches of government. Courts would start to look more like legislatures, responding to social pressures rather than remedying concrete harms, in the process supplanting the right of the people and their elected representatives to govern themselves. See, e.g. , Clapper v. Amnesty Int’l USA , 568 U.S. 398 , 408 (2013) (“The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches”); Warth v. Seldin , 422 U.S. 490 , 500 (1975) (without standing requirements “courts would be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions”); Hein v. Freedom From Religion Foundation, Inc. , 551 U.S. 587 , 635–636 (2007) (Scalia, J., concurring in judgment) (“ ‘To permit a complainant who has no concrete injury to require a court to rule on important constitutional issues in the abstract would create the potential for abuse of the judicial process, distort the role of the Judiciary in its relationship to the Executive and the Legislature and open the Judiciary to an arguable charge of providing “government by injunction” ’ ”). Proceeding on these principles, this Court has held offense alone insufficient to convey standing in analogous—and arguably more sympathetic—circumstances. Take Allen v. Wright , 468 U.S. 737 (1984), where the parents of African-American schoolchildren sued to compel the Internal Revenue Service to deny tax-exempt status to schools that discriminated on the basis of race. The parents claimed that their children suffered a “stigmatic injury, or denigration” when the government supported racially discriminatory institutions. Id. , at 754. But this Court refused to entertain the case, reasoning that standing extends “only to those persons who are personally denied equal treatment by the challenged discriminatory conduct.” Id. , at 755 (internal quotation marks omitted). Now put the teachings there alongside the Association’s standing theory here and you get this utterly unjustifiable result: An African-American offended by a Confederate flag atop a state capitol would lack standing to sue under the Equal Protection Clause, but an atheist who is offended by the cross on the same flag could sue under the Es- tablishment Clause. Who really thinks that could be the law? See Brief for Becket Fund for Religious Liberty as Amicus Curiae 34–35. Consider, as well, the Free Exercise Clause. In Harris v. McRae , 448 U.S. 297 (1980), this Court denied standing to a religious group that raised a free exercise challenge to federal restrictions on abortion funding because “the plaintiffs had ‘not contended that the [statute in question] in any way coerce[d] them as individuals in the practice of their religion.’ ” Id. , at 321, n. 24. Instead, the Court has held, a free exercise plaintiff generally must “show that his good-faith religious beliefs are hampered before he acquires standing to attack a statute under the Free-Exercise Clause.” Braunfeld v. Brown , 366 U.S. 599 , 615 (1961) (Brennan, J., concurring and dissenting). And if standing doctrine has such bite under the Free Exercise Clause, it’s difficult to see how it could be as toothless as plaintiffs suppose under the neighboring Establishment Clause. In fact, this Court has already expressly rejected “offended observer” standing under the Establishment Clause itself. In Valley Forge Christian College v. Americans United for Separation of Church and State , Inc. , 454 U.S. 464 (1982), the plaintiffs objected to a transfer of property from the federal government to a religious college, an action they had learned about through a news release. This Court had little trouble concluding that the plaintiffs lacked standing to challenge the transfer, explaining that “the psychological consequence presumably produced by observation of conduct with which one dis- agrees” is not an injury-in-fact “sufficient to confer standing under Art. III.” Id. , at 485. To be sure, this Court has sometimes resolved Establishment Clause challenges to religious displays on the merits without first addressing standing. But as this Court has held, its own failure to consider standing cannot be mistaken as an endorsement of it: “[D]rive-by jurisdictional rulings of this sort” carry “no precedential effect.” Steel Co. v. Citizens for Better Environment , 523 U.S. 83 , 91 (1998). Offended observer standing is deeply inconsistent, too, with many other longstanding principles and precedents. For example, this Court has consistently ruled that “ ‘generalized grievances’ about the conduct of Government” are insufficient to confer standing to sue. Schlesinger v. Reservists Comm. to Stop the War , 418 U.S. 208 , 217 (1974). But if offended observers could bring suit, this rule would be rendered meaningless: Who, after all, would have trouble recasting a generalized grievance about governmental action into an “I-take-offense” argument for standing? Similarly, this Court has long “adhered to the rule that a party ‘generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.’ ” Kowalski v. Tesmer , 543 U.S. 125 , 129 (2004). We depart from this rule only where the party seeking to invoke the judicial power “has a ‘close’ relationship with the person who possesses the right” and “there is a ‘hindrance’ to the possessor’s ability to protect his own interests.” Id. , at 130. Applying these principles in Kowalski , this Court held that attorneys lacked standing to assert the rights of indigent defendants. Id. , at 127. And in Whitmore , we rejected a third party’s effort to appeal another person’s death sentence. 495 U. S., at 151. But if offended observers could sue, the attorneys in Kowalski might have sim- ply claimed they were “offended” by Michigan’s procedure for appointing appellate counsel, and the third party in Whitmore could have just said he was offended (as he surely was) by the impending execution. None of this Court’s limits on third-party standing would really matter. * Offended observer standing cannot be squared with this Court’s longstanding teachings about the limits of Article III. Not even today’s dissent seriously attempts to defend it. So at this point you might wonder: How did the lower courts in this case indulge the plaintiffs’ “offended observer” theory of standing? And why have other lower courts done similarly in other cases? The truth is, the fault lies here. Lower courts invented offended observer standing for Establishment Clause cases in the 1970s in response to this Court’s decision in Lemon v. Kurtzman , 403 U.S. 602 (1971). Lemon held that whether governmental action violates the Establishment Clause depends on its (1) purpose, (2) effect, and (3) potential to “ ‘excessive[ly] . . . entangl[e]’ ” church and state, id. , at 613, a standard this Court came to understand as prohibiting the government from doing anything that a “ ‘reasonable observer’ ” might perceive as “endorsing” religion, County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter , 492 U.S. 573 , 620–621 (1989) (opinion of Blackmun, J.); id. , at 631 (O’Connor, J., concurring in part and concurring in judgment). And lower courts reasoned that, if the Establishment Clause forbids anything a reasonable observer would view as an endorsement of religion, then such an observer must be able to sue. Moore v. Bryant , 853 F.3d 245, 250 (CA5 2017). Here alone, lower courts concluded, though never with this Court’s approval, an observer’s offense must “suffice to make an Establishment Clause claim justiciable.” Suhre v. Haywood Cty. , 131 F.3d 1083 , 1086 (CA4 1997). As today’s plurality rightly indicates in Part II–A, however, Lemon was a misadventure. It sought a “grand unified theory” of the Establishment Clause but left us only a mess. See ante , at 24 (plurality opinion). How much “purpose” to promote religion is too much (are Sunday closing laws that bear multiple purposes, religious and secular, problematic)? How much “effect” of advancing religion is tolerable (are even incidental effects disallowed)? What does the “entanglement” test add to these inquiries? Even beyond all that, how “reasonable” must our “reasonable observer” be, and what exactly qualifies as impermissible “endorsement” of religion in a country where “In God We Trust” appears on the coinage, the eye of God appears in its Great Seal, and we celebrate Thanksgiving as a national holiday (“to Whom are thanks being given”)? Harris v . Zion , 927 F.2d 1401, 1423 (CA7 1991) (Easterbrook, J., dissenting). Nearly half a century after Lemon and, the truth is, no one has any idea about the answers to these questions. As the plurality documents, our “doctrine [is] in such chaos” that lower courts have been “free to reach almost any result in almost any case.” McConnell, Religious Participation in Public Programs: Religious Freedom at a Crossroads, 59 U. Chi. L. Rev. 115, 119 (1992). Scores of judges have pleaded with us to retire Lemon , scholars of all stripes have criticized the doctrine, and a majority of this Court has long done the same. Ante , at 14–15 (plurality opinion). Today, not a single Member of the Court even tries to defend Lemon against these criticisms—and they don’t because they can’t. As Justice Kennedy explained, Lemon is “flawed in its fundamentals,” has proved “unworkable in practice,” and is “inconsistent with our history and our precedents.” County of Allegheny , 492 U. S., at 655, 669 (opinion concurring in judgment in part and dissenting in part). In place of Lemon , Part II–D of the plurality opinion relies on a more modest, historically sensitive approach, recognizing that “the Establishment Clause must be interpreted by reference to historical practices and understandings.” Ante , at 25 (quoting Town of Greece v. Galloway , 572 U.S. 565, 576 (2014) (internal quotation marks omitted); see also ante , at 1–4 (Kavanaugh, J., concurring). So, by way of example, the plurality explains that a state legislature may permissibly begin each session with a prayer by an official chaplain because “Congress for more than 200 years had opened its sessions with a prayer and . . . many state legislatures had followed suit.” Ante , at 25 (discussing Marsh v. Chambers , 463 U.S. 783 (1983), and Town of Greece , 572 U. S. 565). The constitutionality of a practice doesn’t depend on some artificial and indeterminate three-part test; what matters, the plurality reminds us, is whether the challenged practice fits “ ‘within the tradition’ ” of this country. Ante , at 27 (citing Town of Greece , 572 U. S., at 577). I agree with all this and don’t doubt that the monument before us is constitutional in light of the nation’s traditions. But then the plurality continues on to suggest that “longstanding monuments, symbols, and practices” are “presumpt[ively]” constitutional. Ante , at 16. And about that, it’s hard not to wonder: How old must a monument, symbol, or practice be to qualify for this new presumption? It seems 94 years is enough, but what about the Star of David monument erected in South Carolina in 2001 to commemorate victims of the Holocaust, or the cross that marines in California placed in 2004 to honor their comrades who fell during the War on Terror? And where exactly in the Constitution does this presumption come from? The plurality does not say, nor does it even explain what work its presumption does. To the contrary, the plurality proceeds to analyze the “presumptively” constitutional memorial in this case for its consistency with “ ‘historical practices and understandings’ ” under Marsh and Town of Greece —exactly the same approach that the plurality, quoting Town of Greece , recognizes “ ‘must be’ ” used whenever we interpret the Establishment Clause. Ante , at 25; see also ante , at 2–4 (Kavanaugh, J., concurring). Though the plurality does not say so in as many words, the message for our lower court colleagues seems unmistakable: Whether a monument, symbol, or practice is old or new, apply Town of Greece , not Lemon . Indeed, some of our colleagues recognize this implication and blanch at its prospect. See ante , at 2–3 (Breyer, J., concurring); ante , at 1–2 (Kagan, J., concurring in part) (declining to join Parts II–A & II–D); post , at 2, n. 2 (Ginsburg, J., dissenting). But if that’s the real message of the plurality’s opinion, it seems to me exactly right—because what matters when it comes to assessing a monument, symbol, or practice isn’t its age but its compliance with ageless principles. The Constitution’s meaning is fixed, not some good-for-this-day-only coupon, and a practice consistent with our nation’s traditions is just as permissible whether undertaken today or 94 years ago. * With Lemon now shelved, little excuse will remain for the anomaly of offended observer standing, and the gaping hole it tore in standing doctrine in the courts of appeals should now begin to close. Nor does this development mean colorable Establishment Clause violations will lack for proper plaintiffs. By way of example only, a public school student compelled to recite a prayer will still have standing to sue. See School Dist. of Abington Township v . Schempp , 374 U.S. 203 , 224, n. 9 (1963). So will persons denied public office because of their religious affiliations or lack of them. And so will those who are denied government benefits because they do not practice a favored religion or any at all. Texas Monthly, Inc. v . Bullock , 489 U.S. 1 , 7–8 (1989) (plurality opinion). On top of all that, States remain free to supply other forms of relief consistent with their own laws and constitutions. Abandoning offended observer standing will mean only a return to the usual demands of Article III, requiring a real controversy with real impact on real persons to make a federal case out of it. Along the way, this will bring with it the welcome side effect of rescuing the federal judiciary from the sordid business of having to pass aesthetic judgment, one by one, on every public display in this country for its perceived capacity to give offense. It’s a business that has consumed volumes of the federal reports, invited erratic results, frustrated generations of judges, and fomented “the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid.” Van Orden v. Perry , 545 U.S. 677 , 704 (2005) (Breyer, J., concurring in judgment). Courts applying Lemon ’s test have upheld Ten Commandment displays and demanded their removal; they have allowed memorial crosses and insisted that they be razed; they have permitted Christmas displays and pulled the plug on them; and they have pondered seemingly endlessly the inclusion of “In God We Trust” on currency or similar language in our Pledge of Allegiance. No one can predict the rulings—but one thing is certain: Between the challenged practices and the judicial decisions, just about everyone will wind up offended. Nor have we yet come close to exhausting the potential sources of offense and federal litigation Lemon invited, for what about the display of the Ten Commandments on the frieze in our own courtroom or on the doors leading into it? Or the statues of Moses and the Apostle Paul next door in the Library of Congress? Or the depictions of the Ten Commandments found in the Justice Department and the National Archives? Or the crosses that can be found in the U. S. Capitol building? And all that just takes us mere steps from where we sit. In light of today’s decision, we should be done with this business, and our lower court colleagues may dispose of cases like these on a motion to dismiss rather than enmeshing themselves for years in intractable disputes sure to generate more heat than light. * In a large and diverse country, offense can be easily found. Really, most every governmental action probably offends somebody . No doubt, too, that offense can be sincere, sometimes well taken, even wise. But recourse for disagreement and offense does not lie in federal litigation. Instead, in a society that holds among its most cherished ambitions mutual respect, tolerance, self-rule, and democratic responsibility, an “offended viewer” may “avert his eyes,” Erznoznik v. Jacksonville , 422 U.S. 205 , 212 (1975), or pursue a political solution. Today’s decision represents a welcome step toward restoring this Court’s recognition of these truths, and I respectfully concur in the judgment. SUPREME COURT OF THE UNITED STATES _________________ Nos. 17–1717 and 18–18 _________________ THE AMERICAN LEGION, et al., PETITIONERS 17–1717 v. AMERICAN HUMANIST ASSOCIATION, et al.; and MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, PETITIONER 18–18 v. AMERICAN HUMANIST ASSOCIATION, et al. on writs of certiorari to the united states court of appeals for the fourth circuit [June 20, 2019] Justice Thomas, concurring in the judgment. The Establishment Clause states that “Congress shall make no law respecting an establishment of religion.” U. S. Const., Amdt. 1. The text and history of this Clause suggest that it should not be incorporated against the States. Even if the Clause expresses an individual right enforceable against the States, it is limited by its text to “law[s]” enacted by a legislature, so it is unclear whether the Bladensburg Cross would implicate any incorporated right. And even if it did, this religious display does not involve the type of actual legal coercion that was a hallmark of historical establishments of religion. Therefore, the Cross is clearly constitutional. I As I have explained elsewhere, the Establishment Clause resists incorporation against the States. Town of Greece v. Galloway , 572 U.S. 565, 604–607 (2014) (opinion concurring in part and concurring in judgment); Elk Grove Unified School Dist. v. Newdow , 542 U.S. 1 , 49–51 (2004) (opinion concurring in judgment); Van Orden v. Perry , 545 U.S. 677 , 692–693 (2005) (concurring opinion); Zelman v. Simmons-Harris , 536 U.S. 639 , 677–680 (2002) (same). In Everson v. Board of Ed. of Ewing , 330 U.S. 1 , 15 (1947), the Court “casually” incorporated the Clause with a declaration that because the Free Exercise Clause had been incorporated, “ ‘[t]here is every reason to give the same application and broad interpretation to the “establishment of religion” clause.’ ” Town of Greece , 572 U. S. , at 607, n. 1 (opinion of Thomas, J.). The Court apparently did not consider that an incorporated Establishment Clause would prohibit exactly what the text of the Clause seeks to protect: state establishments of religion. See id. , at 605–606. The Court’s “inattention” to the significant question of incorporation “might be explained, although not excused, by the rise of popular conceptions about ‘separation of church and state’ as an ‘American’ constitutional right.” Id., at 608, n. 1; see P. Hamburger, Separation of Church and State 454–463 (2002); see also id. , at 391–454 (tracing the role of nativist sentiment in the rise of “the modern myth of separation” as an American ideal). But an ahistorical generalization is no substitute for careful constitutional analysis. We should consider whether any longstanding right of citizenship restrains the States in the establishment context. See generally McDonald v. Chicago , 561 U.S. 742 , 805–858, and n. 20 (2010) (Thomas, J., concurring in part and concurring in judgment). Further confounding the incorporation question is the fact that the First Amendment by its terms applies only to “law[s]” enacted by “Congress.” Obviously, a memorial is not a law. And respondents have not identified any speci- fic law they challenge as unconstitutional, either on its face or as applied. Thus, respondents could prevail on their establishment claim only if the prohibition embodied in the Establishment Clause was understood to be an individual right of citizenship that applied to more than just “law[s]” “ma[de]” by “Congress.”[ 1 ] II Even if the Clause applied to state and local governments in some fashion, “[t]he mere presence of the monument along [respondents’] path involves no coercion and thus does not violate the Establishment Clause.” Van Orden , 545 U. S., at 694 (opinion of Thomas, J.). The sine qua non of an establishment of religion is “ ‘actual legal coercion.’ ” Id., at 693. At the founding, “[t]he coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty.” Lee v. Weisman , 505 U.S. 577 , 640 (1992) (Scalia, J., dissenting) (emphasis deleted). “In a typical case, attendance at the established church was mandatory, and taxes were levied to generate church revenue. Dissenting ministers were barred from preaching, and political participation was limited to members of the established church.” Town of Greece , supra , at 608 (opinion of Thomas, J.) (citation omitted). In an action claiming an unconstitutional establishment of religion, the plaintiff must demonstrate that he was actually coerced by government conduct that shares the characteristics of an establishment as understood at the founding.[ 2 ] Here, respondents briefly suggest that the government’s spending their tax dollars on maintaining the Bladensburg Cross represents coercion, but they have not demonstrated that maintaining a religious display on public property shares any of the historical characteristics of an establishment of religion. The local commission has not attempted to control religious doctrine or personnel, compel religious observance, single out a particular religious denomination for exclusive state subsidization, or punish dissenting worship. Instead, the commission has done something that the founding generation, as well as the generation that ratified the Fourteenth Amendment, would have found commonplace: displaying a religious symbol on government property. See Brief for Becket Fund for Religious Liberty as Amicus Curiae 14–22. Lacking any characteristics of “the coercive state establishments that existed at the founding,” Town of Greece , 572 U. S., at 608 (opinion of Thomas, J.), the Bladensburg Cross is constitutional. The Bladensburg Cross is constitutional even though the cross has religious significance as a central symbol of Christianity. Respondents’ primary contention is that this characteristic of the Cross makes it “sectarian”—a word used in respondents’ brief more than 40 times. Putting aside the fact that Christianity is not a “sect,” religious displays or speech need not be limited to that which a “judge considers to be nonsectarian.” Id ., at 582 (majority opinion). As the Court has explained, “[a]n insistence on nonsectarian” religious speech is inconsistent with our Nation’s history and traditions. Id., at 578–580; see id., at 595 (Alito, J., concurring). Moreover, requiring that religious expressions be nonsectarian would force the courts “to act as supervisors and censors of religious speech.” Id., at 581 (majority opinion). Any such effort would find courts “trolling through . . . religious beliefs” to decide what speech is sufficiently generic. Mitchell v. Helms , 530 U.S. 793 , 828 (2000) (plurality opinion). And government bodies trying to comply with the inevitably arbitrary decisions of the courts would face similarly intractable questions. See Town of Greece , supra, at 596 (opinion of Alito, J.).[ 3 ] III As to the long-discredited test set forth in Lemon v. Kurtzman , 403 U.S. 602 , 612–613 (1971), and reiterated in County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter , 492 U.S. 573 , 592–594 (1989), the plurality rightly rejects its relevance to claims, like this one, involving “religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies.” Ante, at 15–16, and n. 16. I agree with that aspect of its opinion. I would take the logical next step and overrule the Lemon test in all contexts. First, that test has no basis in the original meaning of the Constitution. Second, “since its inception,” it has “been manipu- lated to fit whatever result the Court aimed to achieve.” McCreary County v. American Civil Liberties Union of Ky. , 545 U.S. 844 , 900 (2005) (Scalia, J., dissenting); see Lamb’s Chapel v. Center Moriches Union Free School Dist. , 508 U.S. 384 , 398–399 (1993) (Scalia, J., concurring in judgment). Third, it continues to cause enormous confusion in the States and the lower courts. See generally Utah Highway Patrol Assn . v. American Atheists, Inc. , 565 U.S. 994 (2011) (Thomas, J., dissenting from denial of certiorari). In recent decades, the Court has tellingly refused to apply Lemon in the very cases where it purports to be most useful. See Utah Highway , supra , at 997–998 (collecting cases); ante, at 13 (plurality opinion) (same). The obvious explanation is that Lemon does not provide a sound basis for judging Establishment Clause claims. However, the court below “s[aw] fit to apply Lemon .” 874 F.3d 195, 205 (CA4 2017). It is our job to say what the law is, and because the Lemon test is not good law, we ought to say so. *  *  * Regrettably, I cannot join the Court’s opinion because it does not adequately clarify the appropriate standard for Establishment Clause cases. Therefore, I concur only in the judgment. Notes 1 In my view, the original meaning of the phrase “Congress shall make no law” is a question worth exploring. Compare G. Lawson & G. Seidman, The Constitution of Empire 42 (2004) (arguing that the First Amendment “applies only to Congress”), with Shrum v. Coweta , 449 F.3d 1132 , 1140–1143 (CA10 2006) (McConnell, J.) (arguing that it is not so limited). 2 Of course, cases involving state or local action are not strictly speaking Establishment Clause cases, but instead Fourteenth Amendment cases about a privilege or immunity of citizenship. It is conceivable that the salient characteristics of an establishment changed by the time of the Fourteenth Amendment, see Town of Greece v. Galloway , 572 U.S. 565, 607, 609–610 (2014) (Thomas, J., concurring in part and concurring in judgment), but respondents have presented no evidence suggesting so. 3 Another reason to avoid a constitutional test that turns on the “sectarian” nature of religious speech is that the Court has suggested “formally dispens[ing]” with this factor in related contexts. Mitchell , 530 U. S., at 826 (plurality opinion). Among other reasons, the “sectarian” test “has a shameful pedigree” that originated during the 1870s when Congress considered the Blaine Amendment, “which would have amended the Constitution to bar any aid to sectarian institutions.” Id., at 828. “Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that ‘sectarian’ was code for ‘Catholic.’ ” Ibid. This anti-Catholic hostility may well have played a role in the Court’s later decisions. Everson v. Board of Ed . of Ewing , 330 U.S. 1 (1947), for example, was written by Justice Black, who would later accuse Catholics who advocated for textbook loans to religious schools of being “powerful sectarian religious propagandists . . . looking toward complete domination and supremacy of their particular brand of religion.” Board of Ed. of Central School Dist. No. 1 v. Allen , 392 U.S. 236 , 251 (1968) (Black, J., dissenting). Even by the time of Lemon v. Kurtzman , 403 U.S. 602 (1971), some Justices were still “influenced by residual anti-Catholicism and by a deep suspicion of Catholic schools.” Laycock, The Underlying Unity of Separation and Neutrality, 46 Emory L. J. 43, 58 (1997). Indeed, the Court’s opinion in Lemon “relied on what it considered to be inherent risks in religious schools despite the absence of a record in Lemon itself and despite contrary fact-finding by the district court in the companion case.” Laycock, supra, at 58 (footnote omitted); see generally W. Ball, Mere Creatures of the State?, 35–40 (1994). And in his concurring opinion, Justice Douglas (joined by Justice Black) repeatedly quoted an anti-Catholic book, including for the proposition that, in Catholic parochial schools, “ ‘[t]he whole education of the child is filled with propaganda.’ ” 403 U. S., at 635, n. 20 (quoting L. Boettner, Roman Catholicism 360 (1962)); see 403 U. S., at 636 (similar). The tract said that Hitler, Mussolini, and Stalin learned the “secret[s] of [their] success” in indoctrination from the Catholic Church, and that “an undue proportion of the gangsters, racketeers, thieves, and juvenile delinquents who roam our big city streets come . . . from the [Catholic] parochial schools,” where children are taught by “brain-washed,” “ ‘ignorant European peasants.’ ” Boettner, supra, at 363, 370–372. SUPREME COURT OF THE UNITED STATES _________________ Nos. 17–1717 and 18–18 _________________ THE AMERICAN LEGION, et al., PETITIONERS 17–1717 v. AMERICAN HUMANIST ASSOCIATION, et al.; and MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, PETITIONER 18–18 v. AMERICAN HUMANIST ASSOCIATION, et al. on writs of certiorari to the united states court of appeals for the fourth circuit [June 20, 2019] Justice Ginsburg, with whom Justice Sotomayor joins, dissenting. An immense Latin cross stands on a traffic island at the center of a busy three-way intersection in Bladensburg, Maryland.[ 1 ] “[M]onumental, clear, and bold” by day, App. 914, the cross looms even larger illuminated against the night-time sky. Known as the Peace Cross, the monument was erected by private citizens in 1925 to honor local soldiers who lost their lives in World War I. “[T]he town’s most prominent symbol” was rededicated in 1985 and is now said to honor “the sacrifices made [in] all wars,” id., at 868 (internal quotation marks omitted), by “all veterans,” id., at 195. Both the Peace Cross and the traffic island are owned and maintained by the Maryland-National Capital Park and Planning Commission (Commission), an agency of the State of Maryland. Decades ago, this Court recognized that the Establishment Clause of the First Amendment to the Constitution demands governmental neutrality among religious faiths, and between religion and nonreligion. See Everson v. Board of Ed. of Ewing , 330 U.S. 1 , 15 (1947). Numerous times since, the Court has reaffirmed the Constitution’s commitment to neutrality. Today the Court erodes that neutrality commitment, diminishing precedent designed to preserve individual liberty and civic harmony in favor of a “presumption of constitutionality for longstanding monuments, symbols, and practices.” Ante, at 16 (plurality opinion).[ 2 ] The Latin cross is the foremost symbol of the Christian faith, embodying the “central theological claim of Christianity: that the son of God died on the cross, that he rose from the dead, and that his death and resurrection offer the possibility of eternal life.” Brief for Baptist Joint Committee for Religious Liberty et al. as Amici Curiae 7 (Brief for Amici Christian and Jewish Organizations). Precisely because the cross symbolizes these sectarian beliefs, it is a common marker for the graves of Christian soldiers. For the same reason, using the cross as a war memorial does not transform it into a secular symbol, as the Courts of Appeals have uniformly recognized. See infra , at 10–11, n. 10. Just as a Star of David is not suit- able to honor Christians who died serving their country, so a cross is not suitable to honor those of other faiths who died defending their nation. Soldiers of all faiths “are united by their love of country, but they are not united by the cross.” Brief for Jewish War Veterans of the United States of America, Inc., as Amicus Curiae 3 (Brief for Amicus Jewish War Veterans). By maintaining the Peace Cross on a public highway, the Commission elevates Christianity over other faiths, and religion over nonreligion. Memorializing the service of American soldiers is an “admirable and unquestionably secular” objective. Van Orden v. Perry , 545 U.S. 677 , 715 (2005) (Stevens, J., dissenting). But the Commission does not serve that objective by displaying a symbol that bears “a starkly sectarian message.” Salazar v. Buono , 559 U.S. 700 , 736 (2010) (Stevens, J., dissenting). I A The First Amendment commands that the government “shall make no law” either “respecting an establishment of religion” or “prohibiting the free exercise thereof.” See Everson , 330 U. S., at 15. Adoption of these complementary provisions followed centuries of “turmoil, civil strife, and persecutio[n], generated in large part by established sects determined to maintain their absolute political and religious supremacy.” Id , at 8–9. Mindful of that history, the fledgling Republic ratified the Establishment Clause, in the words of Thomas Jefferson, to “buil[d] a wall of separation between church and state.” Draft Reply to the Danbury Baptist Association, in 36 Papers of Thomas Jefferson 254, 255 (B. Oberg ed. 2009) (footnote omitted). This barrier “protect[s] the integrity of individual conscience in religious matters.” McCreary County v. American Civil Liberties Union of Ky. , 545 U.S. 844 , 876 (2005). It guards against the “anguish, hardship and bitter strife,” Engel v. Vitale , 370 U.S. 421 , 429 (1962), that can occur when “the government weighs in on one side of religious debate,” McCreary County , 545 U. S., at 876. And while the “union of government and religion tends to destroy government and to degrade religion,” separating the two preserves the legitimacy of each. Engel , 370 U. S., at 431. The Establishment Clause essentially instructs: “[T]he government may not favor one religion over another, or religion over irreligion.” McCreary County , 545 U. S., at 875. For, as James Madison observed, the government is not “a competent Judge of Religious Truth.” Memorial and Remonstrance Against Religious Assessments, 8 Papers of James Madison 295, 301 (R. Rutland, W. Rachal, B. Ripel, & F. Teute eds. 1973) (Memorial and Remonstrance). When the government places its “power, prestige [or] financial support . . . behind a particular religious belief,” Engel , 370 U. S., at 431, the government’s imprimatur “mak[es] adherence to [that] religion relevant . . . to a person’s standing in the political community,” County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter , 492 U.S. 573 , 594 (1989) (internal quotation marks omitted). Correspondingly, “the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.” Engel , 370 U. S., at 431. And by demanding neutrality between religious faith and the absence thereof, the Establishment Clause shores up an individual’s “right to select any religious faith or none at all.” Wallace v. Jaffree , 472 U.S. 38 , 53 (1985). B In cases challenging the government’s display of a religious symbol, the Court has tested fidelity to the principle of neutrality by asking whether the display has the “effect of ‘endorsing’ religion.” County of Allegheny , 492 U. S., at 592. The display fails this requirement if it objectively “convey[s] a message that religion or a particular religious belief is favored or preferred.” Id., at 593 (internal quotation marks omitted; emphasis deleted).[ 3 ] To make that determination, a court must consider “the pertinent facts and circumstances surrounding the symbol and its placement.” Buono , 559 U. S., at 721 (plurality opinion); id., at 750–751 (Stevens, J., dissenting) (quoting plurality opinion).[ 4 ] As I see it, when a cross is displayed on public property, the government may be presumed to endorse its religious content. The venue is surely associated with the State; the symbol and its meaning are just as surely associated exclusively with Christianity. “It certainly is not common for property owners to open up their property [to] monuments that convey a message with which they do not wish to be associated.” Pleasant Grove City v. Summum , 555 U.S. 460 , 471 (2009). To non-Christians, nearly 30% of the population of the United States, Pew Research Center, America’s Changing Religious Landscape 4 (2015), the State’s choice to display the cross on public buildings or spaces conveys a message of exclusion: It tells them they “are outsiders, not full members of the political commu- nity,” County of Allegheny , 492 U. S., at 625 (O’Connor, J., concurring in part and concurring in judgment) (internal quotation marks omitted). Cf. Van Orden , 545 U. S., at 708 (Stevens, J., dissenting) (“The adornment of our public spaces with displays of religious symbols” risks “ ‘offend[ing] nonmembers of the faith being advertised as well as adherents who consider the particular advertisement disrespectful.’ ” (quoting County of Allegheny , 492 U. S., at 651 (Stevens, J., concurring in part and dissenting in part))).[ 5 ] A presumption of endorsement, of course, may be overcome. See Buono , 559 U. S., at 718 (plurality opinion) (“The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm.”). A display does not run afoul of the neutrality principle if its “setting . . . plausibly indicates” that the government has not sought “either to adopt [a] religious message or to urge its acceptance by others.” Van Orden , 545 U. S., at 737 (Souter, J., dissenting). The “typical museum setting,” for example, “though not neutralizing the religious content of a religious painting, negates any message of endorsement of that content.” Lynch v. Donnelly , 465 U.S. 668 , 692 (1984) (O’Connor, J., concurring). Similarly, when a public school history teacher discusses the Protestant Reformation, the setting makes clear that the teacher’s purpose is to educate, not to proselytize. The Peace Cross, however, is not of that genre. II A “For nearly two millennia,” the Latin cross has been the “defining symbol” of Christianity, R. Jensen, The Cross: History, Art, and Controversy ix (2017), evoking the foundational claims of that faith. Christianity teaches that Jesus Christ was “a divine Savior” who “illuminate[d] a path toward salvation and redemption.” Lynch , 465 U. S., at 708 (Brennan, J., dissenting). Central to the religion are the beliefs that “the son of God,” Jesus Christ, “died on the cross,” that “he rose from the dead,” and that “his death and resurrection offer the possibility of eternal life.” Brief for Amici Christian and Jewish Organizations 7.[ 6 ] “From its earliest times,” Christianity was known as “ religio crucis —the religion of the cross.” R. Viladesau, The Beauty of the Cross: The Passion of Christ in Theol- ogy and the Arts, From the Catacombs to the Eve of the Renaissance 7 (2006). Christians wear crosses, not as an ecumenical symbol, but to proclaim their adherence to Christianity. An exclusively Christian symbol, the Latin cross is not emblematic of any other faith. Buono , 559 U. S., at 747 (Stevens, J., dissenting); Viladesau, supra, at 7 (“[T]he cross and its meaning . . . set Christianity apart from other world religions.”).[ 7 ] The principal symbol of Christianity around the world should not loom over public thoroughfares, suggesting official recognition of that religion’s paramountcy. B The Commission urges in defense of its monument that the Latin cross “is not merely a reaffirmation of Christian beliefs”; rather, “when used in the context of a war memorial,” the cross becomes “a universal symbol of the sacrifices of those who fought and died.” Brief for Petitioner Maryland-National Capital Park and Planning Commission 34–35 (Brief for Planning Commission) (internal quotation marks omitted). See also Brief for United States as Amicus Curiae 25 (The Latin cross is “a Christian symbol . . . [b]ut it is also ‘a symbol often used to honor and respect [soldiers’] heroic acts.’ ” (quoting Buono , 559 U. S., at 721 (plurality opinion); some internal quotation marks omitted)). The Commission’s “[a]ttempts to secularize what is unquestionably a sacred [symbol] defy credibility and disserve people of faith.” Van Orden , 545 U. S., at 717 (Stevens, J., dissenting). See, e.g., Brief for Amici Christian and Jewish Organizations 7 (“For Christians who think seriously about the events and message that the cross represents, [the Commission’s] claims are deeply offensive.”). The asserted commemorative meaning of the cross rests on—and is inseparable from—its Christian meaning: “the crucifixion of Jesus Christ and the redeeming benefits of his passion and death,” specifically, “the salvation of man.” American Civil Liberties Union of Illinois v. St. Charles , 794 F.2d 265, 273 (CA7 1986) (internal quotation marks omitted). Because of its sacred meaning, the Latin cross has been used to mark Christian deaths since at least the fourth century. See Jensen, supra, at 68–69. The cross on a grave “says that a Christian is buried here,” Brief for Amici Christian and Jewish Organizations 8, and “commemorates [that person’s death] by evoking a conception of salvation and eternal life reserved for Christians,” Brief for Amicus Jewish War Veterans 7. As a commemorative symbol, the Latin cross simply “makes no sense apart from the crucifixion, the resurrection, and Christianity’s promise of eternal life.” Brief for Amici Christian and Jewish Organizations 8.[ 8 ] The cross affirms that, thanks to the soldier’s embrace of Christianity, he will be rewarded with eternal life. Id., at 8–9 . “To say that the cross honors the Christian war dead does not identify a secular meaning of the cross; it merely identifies a common application of the religious meaning.” Id., at 8. Scarcely “a universal symbol of sacrifice,” the cross is “the symbol of one particular sacrifice.” Buono , 559 U. S., at 748, n. 8 (Stevens, J., dissenting).[ 9 ] Every Court of Appeals to confront the question has held that “[m]aking a . . . Latin cross a war memorial does not make the cross secular,” it “makes the war memorial sectarian.” Id., at 747.[ 10 ] See also Separation of Church and State Comm. v. Eugene , 93 F.3d 617 , 626 (CA9 1996) (O’Scannlain, J., concurring in result) (“[T]he City’s use of a cross to memorialize the war dead may lead observers to believe that the City has chosen to honor only Christian veterans.”). The Peace Cross is no exception. That was evident from the start. At the dedication ceremony, the keynote speaker analogized the sacrifice of the honored soldiers to that of Jesus Christ, calling the Peace Cross “symbolic of Calvary,” App. 449, where Jesus was crucified. Local reporters variously described the monument as “[a] mammoth cross, a likeness of the Cross of Calvary, as described in the Bible,” id., at 428; “a monster [C]alvary cross,” id., at 431; and “a huge sacrifice cross,” id., at 439. The character of the monument has not changed with the passage of time. C The Commission nonetheless urges that the Latin cross is a “well-established” secular symbol commemorating, in particular, “military valor and sacrifice [in] World War I.” Brief for Planning Commission 21. Calling up images of United States cemeteries overseas showing row upon row of cross-shaped gravemarkers, id., at 4–8; see ante , at 4–5, 21–22; Brief for United States as Amicus Curiae 26, the Commission overlooks this reality: The cross was never perceived as an appropriate headstone or memorial for Jewish soldiers and others who did not adhere to Christianity. 1 A page of history is worth retelling. On November 11, 1918, the Great War ended. Bereaved families of American soldiers killed in the war sought to locate the bodies of their loved ones, and then to decide what to do with their remains. Once a soldier’s body was identified, families could choose to have the remains repatriated to the United States or buried overseas in one of several American military cemeteries, yet to be established. Eventually, the remains of 46,000 soldiers were repatriated, and those of 30,000 soldiers were laid to rest in Europe. American Battle Monuments Commission, Annual Report to the President of the United States Fiscal Year 1925, p. 5 (1926) (ABMC Report). While overseas cemeteries were under development, the graves of American soldiers in Europe were identified by one of two temporary wooden markers painted white. Christian soldiers were buried beneath the cross; the graves of Jewish soldiers were marked by the Star of David. See L. Budreau, Bodies of War: World War I and the Politics of Commemoration in America, 1919–1933, p. 120 (2010). The remains of soldiers who were neither Christian nor Jewish could be repatriated to the United States for burial under an appropriate headstone.[ 11 ] When the War Department began preparing designs for permanent headstones in 1919, “no topic managed to stir more controversy than the use of religious symbolism.” Id., at 121–122. Everyone involved in the dispute, how- ever, saw the Latin cross as a Christian symbol, not as a universal or secular one. To achieve uniformity, the War Department initially recommended replacing the temporary sectarian markers with plain marble slabs resembling “those designed for the national cemeteries in the United States.” Van Duyne, Erection of Permanent Headstones in the American Military Cemeteries in Europe, The Quartermaster Review (1930) (Quartermaster Report). The War Department’s recommendation angered prominent civil organizations, including the American Legion and the Gold Star associations: the United States, they urged, ought to retain both the cross and Star of David. See ibid. ; Budreau, supra , at 123. In supporting sectarian markers, these groups were joined by the American Battle Monuments Commission (ABMC), a newly created independent agency charged with supervising the establishment of overseas cemeteries. ABMC Report 57. Congress weighed in by directing the War Department to erect headstones “of such design and material as may be agreed upon by the Secretary of War and the American Battle Monuments Commission.” Ibid. (internal quotation marks omitted). In 1924, the War Department approved the ABMC’s “designs for a Cross and Star of David.” Quartermaster Report; ABMC Report 57.[ 12 ] Throughout the headstone debate, no one doubted that the Latin cross and the Star of David were sectarian gravemarkers, and therefore appropriate only for soldiers who adhered to those faiths. A committee convened by the War Department composed of representatives from “seven prominent war-time organizations” as well as “religious bodies, Protestant, Jewish, [and] Catholic” agreed “unanimous[ly] . . . that marble crosses be placed on the graves of all Christian American dead buried abroad, and that the graves of the Jewish American dead be marked by the six-pointed star.” Durable Markers in the Form of Crosses for Graves of American Soldiers in Europe, Hearings before the Committee on Military Affairs of the House of Representatives, 68th Cong., 1st Sess., 24 (1924) (emphasis added). The Executive Director of the Jewish Welfare Board stated that “if any religious symbol is erected over the graves, then Judaism should have its symbol over the graves of its dead.” Id., at 19. Others expressing views described the Latin cross as the appropriate symbol to “mar[k] the graves of the Christian heroes of the American forces.” Id., at 24 (emphasis added). As stated by the National Catholic War Council, “the sentiment and desires of all Americans, Christians and Jews alike, are one”: “They who served us in life should be honored, as they would have wished, in death.” Ibid. [ 13 ] Far more crosses than Stars of David, as one would expect, line the grounds of American cemeteries overseas, for Jews composed only 3% of the United States population in 1917. J. Fredman & L. Falk, Jews in American Wars 100 (5th ed. 1954). Jews accounted for nearly 6% of U. S. forces in World War I (in numbers, 250,000), and 3,500 Jewish soldiers died in that war. Ibid. Even in Flanders Field, with its “ ‘crosses, row on row,’ ” ante, at 5 (quoting J. McCrae, In Flanders Fields, In Flanders Fields and Other Poems 3 (G. P. Putnam’s Sons ed. 1919)), “Stars of David mark the graves of [eight American soldiers] of Jewish faith,” American Battle Monuments Commission, Flanders Field American Cemetery and Memorial Visitor Booklet 11.[ 14 ] 2 Reiterating its argument that the Latin cross is a “universal symbol” of World War I sacrifice, the Commission states that “40 World War I monuments . . . built in the United States . . . bear the shape of a cross.” Brief for Planning Commission 8 (citing App. 1130). This figure includes memorials that merely “incorporat[e]” a cross. App. 1130.[ 15 ] Moreover, the 40 monuments compose only 4% of the “948 outdoor sculptures commemorating the First World War.” Ibid. The Court lists just seven freestanding cross memorials, ante, at 6, n. 10, less than 1% of the total number of monuments to World War I in the United States, see App. 1130. Cross memorials, in short, are outliers. The overwhelming majority of World War I memorials contain no Latin cross. In fact, the “most popular and enduring memorial of the [post-World War I] decade” was “[t]he mass-produced Spirit of the American Doughboy statue.” Budreau, Bodies of War, at 139. That statue, depicting a U. S. infantryman, “met with widespread approval throughout American communities.” Ibid. Indeed, the first memorial to World War I erected in Prince George’s County “depict[s] a doughboy.” App. 110–111. The Peace Cross, as Plaintiffs’ expert historian observed, was an “aberration . . . even in the era [in which] it was built and dedicated.” Id., at 123. Like cities and towns across the country, the United States military comprehended the importance of “pay[ing] equal respect to all members of the Armed Forces who perished in the service of our country,” Buono , 559 U. S., at 759 (Stevens, J., dissenting), and therefore avoided incorporating the Latin cross into memorials. The construction of the Tomb of the Unknown Soldier is illustrative. When a proposal to place a cross on the Tomb was advanced, the Jewish Welfare Board objected; no cross appears on the Tomb. See App. 167. In sum, “[t]here is simply ‘no evidence . . . that the cross has been widely embraced by’—or even applied to—‘non-Christians as a secular symbol of death’ or of sacrifice in military service” in World War I or otherwise. Trunk v. San Diego , 629 F.3d 1099, 1116 (CA9 2011). D Holding the Commission’s display of the Peace Cross unconstitutional would not, as the Commission fears, “inevitably require the destruction of other cross-shaped memorials throughout the country.” Brief for Planning Commission 52. When a religious symbol appears in a public cemetery—on a headstone, or as the headstone itself, or perhaps integrated into a larger memorial—the setting counters the inference that the government seeks “either to adopt the religious message or to urge its acceptance by others.” Van Orden , 545 U. S., at 737 (Souter, J., dissenting). In a cemetery, the “privately selected re- ligious symbols on individual graves are best understood as the private speech of each veteran.” Laycock, Government-Sponsored Religious Displays: Transparent Rational- izations and Expedient Post-Modernism, 61 Case W. Res. L. Rev. 1211, 1242 (2011). See also Summum , 555 U. S., at 487 (Souter, J., concurring in judgment) (“[T]here are circumstances in which government maintenance of monuments does not look like government speech at all. Sectarian identifications on markers in Arlington Cemetery come to mind.”). Such displays are “linked to, and sho[w] respect for, the individual honoree’s faith and beliefs.” Buono , 559 U. S., at 749, n. 8 (Stevens, J., dissenting). They do not suggest governmental endorsement of those faith and beliefs.[ 16 ] Recognizing that a Latin cross does not belong on a public highway or building does not mean the monument must be “torn down.” Ante, at 2 (Breyer, J., concurring); ante, at 1 (Gorsuch, J., concurring in judgment).[ 17 ] “[L]ike the determination of the violation itself,” the “proper remedy . . . is necessarily context specific.” Buono , 559 U. S., at 755, n. 11 (Stevens, J., dissenting). In some instances, the violation may be cured by relocating the monument to private land or by transferring ownership of the land and monument to a private party. *  *  * In 1790, President Washington visited Newport, Rhode Island, “a longtime bastion of religious liberty and the home of one of the first communities of American Jews.” Town of Greece v. Galloway , 572 U.S. 565, 636 (2014) (Kagan, J., dissenting). In a letter thanking the congregation for its warm welcome, Washington praised “[t]he citizens of the United States of America” for “giv[ing] to mankind . . . a policy worthy of imitation”: “All possess alike liberty of conscience and immunities of citizenship.” Letter to Newport Hebrew Congregation (Aug. 18, 1790), in 6 Papers of George Washington 284, 285 (D. Twohig ed. 1996). As Washington and his contemporaries were aware, “some of them from bitter personal experience,” Engel , 370 U. S., at 429, religion is “too personal, too sacred, too holy, to permit its ‘unhallowed perversion’ by a civil magistrate,” id., at 432 (quoting Memorial and Remonstrance). The Establishment Clause, which preserves the integrity of both church and state, guarantees that “however . . . individuals worship, they will count as full and equal American citizens.” Town of Greece , 572 U. S., at 615 (Kagan, J., dissenting). “If the aim of the Establishment Clause is genuinely to uncouple government from church,” the Clause does “not permit . . . a display of th[e] character” of Bladensburg’s Peace Cross. Capitol Square Review and Advisory Bd. v. Pinette , 515 U.S. 753 , 817 (1995) (Ginsburg, J., dissenting). APPENDIX The Bladensburg Peace Cross. App. 887. Map showing the location of the Peace Cross. App. 1533. The World War II Memorial in Veterans Memorial Park. App. 891. Plaque of the World War II Memorial. App. 891. The Korea-Vietnam Veterans Memorial in Veterans Memorial Park. App. 894. Headstones in the Henri-Chappelle American Cemetery and Memorial in Belgium. American Battle Monuments Commission, Henri-Chappelle American Cemetery and Memorial 16 (1986). Notes 1 A photograph of the monument and a map showing its location are reproduced in the Appendix, infra , at 19. 2 Some of my colleagues suggest that the Court’s new presumption extends to all governmental displays and practices, regardless of their age. See ante, at 3 (Kavanaugh, J., concurring); ante, at 6 (Thomas, J., concurring in judgment); ante, at 9 (Gorsuch, J., concurring in judgment). But see ante, at 2 (Breyer, J., joined by Kagan, J., concurring) (“ ‘[A] more contemporary state effort’ to put up a religious display is ‘likely to prove divisive in a way that [a] longstanding, pre-existing monument [would] not.’ ”). I read the Court’s opinion to mean what it says: “[R]etaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones,” ante, at 21, and, consequently, only “longstanding monuments, symbols, and practices” enjoy “a presumption of constitutionality,” id., at 16 (plurality opinion). 3 Justice Gorsuch’s “no standing” opinion is startling in view of the many religious-display cases this Court has resolved on the merits. E.g., McCreary County , 545 U.S. 844 ; Van Orden , 545 U.S. 677 ; Stone v. Graham , 449 U.S. 39 (1980) ( per curiam ). And, if Justice Gorsuch is right, three Members of the Court were out of line when they recognized that “[t]he [Establishment] Clause forbids a city to permit the permanent erection of a large Latin cross on the roof of city hall,” Buono , 559 U. S., at 715 (opinion of Kennedy, J., joined by Roberts, C.J., and Alito, J.) (quoting County of Allegheny , 492 U. S., at 661 (second alteration in original), for no one, according to Justice Gorsuch, should be heard to complain about such a thing. But see Brief for Law Professors as Amici Curiae (explaining why offended observer standing is necessary and proper). 4 This inquiry has been described by some Members of the Court as the “reasonable observer” standard. See, e.g. , Capitol Square Review and Advisory Bd . v. Pinette , 515 U.S. 753 , 806 (1995) (Stevens, J., dissenting); County of Allegheny , 492 U. S., at 630–631 (O’Connor, J., concurring in part and concurring in judgment). 5 See also Jews and Christians Discussion Group in the Central Committee of German Catholics, A Convent and Cross in Auschwitz, in The Continuing Agony: From the Carmelite Convent to the Crosses at Auschwitz 231–232 (A. Berger, H. Cargas, & S. Nowak eds. 2004) (“We Christians must appreciate [that] [t]hroughout history many non-Christians, especially Jews, have experienced the Cross as a symbol of persecution, through the Crusades, the Inquisition and the compulsory baptisms.”). 6 Under “one widespread reading of Christian scriptures,” non-Christians are barred from eternal life and, instead, are condemned to hell. Brief for Amici Christian and Jewish Organizations 2. On this reading, the Latin cross symbolizes both the promise of salvation and the threat of damnation by “divid[ing] the world between the saved and the damned.” Id., at 12. 7 Christianity comprises numerous denominations. The term is here used to distinguish Christian sects from religions that do not embrace the defining tenets of Christianity. 8 The Court sets out familiar uses of the Greek cross, including the Red Cross and the Navy Cross, ante, at 3, 22, and maintains that, today, they carry no religious message. But because the Latin cross has never shed its Christian character, its commemorative meaning is exclusive to Christians. The Court recognizes as much in suggesting that the Peace Cross features the Latin cross for the same reason “why Holocaust memorials invariably include Stars of David”: those sectarian “symbols . . . signify what death meant for those who are memorialized.” Ante , at 30. 9 Christian soldiers have drawn parallels between their experiences in war and Jesus’s suffering and sacrifice. See, e.g. , C. Dawson, Living Bayonets: A Record of the Last Push 19–20 (1919) (upon finding a crucifix strewn among rubble, a soldier serving in World War I wrote home that Jesus Christ “seem[ed] so like ourselves in His lonely and unhallowed suffering”). This comparison has been portrayed by artists, see, e.g. , 7 Encyclopedia of Religion 4348 (2d ed. 2005) (painter George Rouault’s 1926 Miserere series “compares Christ’s suffering with twentieth-century experiences of human sufferings in war”), and documented by historians, see, e.g. , R. Schweitzer, The Cross and the Trenches: Religious Faith and Doubt Among British and American Great War Soldiers 28–29 (2003) (given the horrors of trench warfare, “[t]he parallels that soldiers saw between their suffering and Christ’s make their identification with Jesus both understandable and revealing”); Lemay, Politics in the Art of War: The American War Cemeteries, 38 Int’l J. Mil. History & Historiography 223, 225 (2018) (“[T]he [cross] grave markers assert the absolute valour and Christ-like heroism of the American dead . . . .”). 10 See 874 F.3d 195, 207 (CA4 2017) (case below) (“Even in the memorial context, a Latin cross serves not . . . as a generic symbol of death, but rather a Christian symbol of the death of Jesus Christ.”); American Atheists, Inc. v. Davenport , 637 F.3d 1095, 1122 (CA10 2010) (“[A] memorial cross is not a generic symbol of death; it is a Christian symbol of death that signifies or memorializes the death of a Christian .”); Trunk v. San Diego , 629 F.3d 1099, 1102 (CA9 2011) (“Resurrection of this Cross as a war memorial does not transform it into a secular monument.”); Separation of Church and State Comm. v. Eugene , 93 F.3d 617 , 619 (CA9 1996) ( per curiam ) (“[T]he City urges that the cross is no longer a religious symbol but a war memorial. This argument . . . fails to withstand Establishment Clause analysis.”); Gonzales v. North Twp. of Lake Cty. , 4 F.3d 1412 , 1418 (CA7 1993) (“[W]e are masters of the obvious, and we know that . . . the Latin cross . . . is ‘[the] unmistakable symbol of Christianity as practiced in this country today.’ ” (quoting Harris v. Zion , 927 F.2d 1401, 1403 (CA7 1991)). See also Jewish War Veterans of the United States v. United States , 695 F. Supp. 3 , 11 (DC 1988) (“[D]efendants are unable to cite a single federal case where a cross such as the one at issue here has survived Establishment Clause scrutiny.”). The Courts of Appeals have similarly concluded that the Latin cross remains a Christian symbol when used for other purposes. See, e.g. , Robinson v. Edmond , 68 F.3d 1226 , 1232 (CA10 1995) (city seal depicting the cross) (“The religious significance and meaning of the Latin or Christian cross are unmistakable.”); Carpenter v. City and County of San Francisco , 93 F.3d 627 , 630 (CA9 1996) (103-foot cross in public park) (“The Latin cross . . . [‘]represents with relative clarity and simplicity the Christian message of the crucifixion and resurrection of Jesus Christ, a doctrine at the heart of Christianity.’ ”); American Civil Liberties Union of Ill. v. St. Charles , 794 F.2d 265, 272–273 (CA7 1986) (35-foot cross displayed atop a fire house during the Christmas season) (“The cross . . . is ‘the principal symbol of the Christian religion, recalling the crucifixion of Jesus Christ and the redeeming benefits of his passion and death.’ ”); Friedman v. Board of Cty. Comm’rs of Bernalillo Cty. , 781 F.2d 777, 782 (CA10 1985) (county seal depicting Latin cross) (“[T]he seal . . . conveys a strong impression to the average observer that Christianity is being endorsed.”). 11 For unidentified soldiers buried overseas, the American Battle Monuments Commission (ABMC) used the cross and the Star of David markers “in ‘proportion of known Jewish dead to know[n] Christians.’ ” App. 164. The ABMC later decided that “all unidentified graves would be marked with a [c]ross.” Id., at 164, n. 21 . This change was prompted by “fear [that] a Star of David would be placed over an [u]nknown Christian,” not by the belief that the cross had become a universal symbol. Ibid. 12 A photograph depicting the two headstones is reproduced in the Appendix, infra , at 21. 13 As noted, supra, at 12, the bodies of soldiers who were neither Christian nor Jewish could be repatriated to the United States and buried in a national cemetery (with a slab headstone), Quartermaster Report, or in a private cemetery (with a headstone of the family’s choosing). 14 Available at https://www.abmc.gov/sites/default/files/publications/ FlandersField_Booklet.pdf (all Internet materials as last visited June 18, 2019). For the respective numbers of cross and Star of David headstones, see ABMC, Flanders Field American Cemetery and Memorial Brochure 2, available at https://www.abmc.gov/sites/default/files/publications/Flanders%20Field_Brochure_Mar2018.pdf. 15 No other monument in Bladensburg’s Veterans Memorial Park displays the Latin cross. For examples of monuments in the Park, see the Appendix, infra , at 20–21. 16 As to the Argonne Cross Memorial and the Canadian Cross of Sacrifice in Arlington National Cemetery, visitors to the cemetery “expec[t] to view religious symbols, whether on individual headstones or as standalone monuments.” Brief for Amicus Jewish War Veterans 17. 17 The Court asserts that the Court of Appeals “entertained” the possibility of “amputating the arms of the cross.” Ante, at 24. The appeals court, however, merely reported Plaintiffs’ “desired injunctive relief,” namely, “removal or demolition of the Cross, or removal of the arms from the Cross ‘to form a non-religious slab or obelisk.’ ” 874 F. 3d, at 202, n. 7. See also id., at 212, n. 19 (noting that the parties remained “free to explore alternative arrangements that would not offend the Constitution”).

The Bladensburg Peace Cross, a memorial honoring 49 soldiers who died in World War I, was challenged as a violation of the Establishment Clause due to its presence on public land and use of public funds for maintenance. The Supreme Court ruled that the memorial is constitutional, considering the historical context of the cross as a symbol of the war graves and the community's expression of grief, gratitude, and dedication to ideals. The ruling considered the potential hostility towards religion and the significant cost and effort required to modify or remove the longstanding memorial.

Religion

Fulton v. Philadelphia

https://supreme.justia.com/cases/federal/us/593/19-123/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 19–123 _________________ SHARONELL FULTON, et al., PETITIONERS v. CITY OF PHILADELPHIA, PENNSYLVANIA, et al. on writ of certiorari to the united states court of appeals for the third circuit [June 17, 2021] Chief Justice Roberts delivered the opinion of the Court. Catholic Social Services is a foster care agency in Philadelphia. The City stopped referring children to CSS upon discovering that the agency would not certify same-sex couples to be foster parents due to its religious beliefs about marriage. The City will renew its foster care contract with CSS only if the agency agrees to certify same-sex couples. The question presented is whether the actions of Philadelphia violate the First Amendment. I The Catholic Church has served the needy children of Philadelphia for over two centuries. In 1798, a priest in the City organized an association to care for orphans whose parents had died in a yellow fever epidemic. H. Folks, The Care of Destitute, Neglected, and Delinquent Children 10 (1902). During the 19th century, nuns ran asylums for orphaned and destitute youth. T. Hacsi, Second Home: Orphan Asylums and Poor Families in America 24 (1997). When criticism of asylums mounted in the Progressive Era, see id. , at 37–40, the Church established the Catholic Children’s Bureau to place children in foster homes. Petitioner CSS continues that mission today. The Philadelphia foster care system depends on cooperation between the City and private foster agencies like CSS. When children cannot remain in their homes, the City’s Department of Human Services assumes custody of them. The Department enters standard annual contracts with private foster agencies to place some of those children with foster families. The placement process begins with review of prospective foster families. Pennsylvania law gives the authority to certify foster families to state-licensed foster agencies like CSS. 55 Pa. Code §3700.61 (2020). Before certifying a family, an agency must conduct a home study during which it considers statutory criteria including the family’s “ability to provide care, nurturing and supervision to children,” “[e]xisting family relationships,” and ability “to work in partnership” with a foster agency. §3700.64. The agency must decide whether to “approve, disapprove or provisionally approve the foster family.” §3700.69. When the Department seeks to place a child with a foster family, it sends its contracted agencies a request, known as a referral. The agencies report whether any of their certified families are available, and the Department places the child with what it regards as the most suitable family. The agency continues to support the family throughout the placement. The religious views of CSS inform its work in this system. CSS believes that “marriage is a sacred bond between a man and a woman.” App. 171. Because the agency understands the certification of prospective foster families to be an endorsement of their relationships, it will not certify unmarried couples—regardless of their sexual orientation—or same-sex married couples. CSS does not object to certifying gay or lesbian individuals as single foster parents or to placing gay and lesbian children. No same-sex couple has ever sought certification from CSS. If one did, CSS would direct the couple to one of the more than 20 other agencies in the City, all of which currently certify same-sex couples. For over 50 years, CSS successfully contracted with the City to provide foster care services while holding to these beliefs. But things changed in 2018. After receiving a complaint about a different agency, a newspaper ran a story in which a spokesman for the Archdiocese of Philadelphia stated that CSS would not be able to consider prospective foster parents in same-sex marriages. The City Council called for an investigation, saying that the City had “laws in place to protect its people from discrimination that occurs under the guise of religious freedom.” App. to Pet. for Cert. 147a. The Philadelphia Commission on Human Relations launched an inquiry. And the Commissioner of the Department of Human Services held a meeting with the leadership of CSS. She remarked that “things have changed since 100 years ago,” and “it would be great if we followed the teachings of Pope Francis, the voice of the Catholic Church.” App. 366. Immediately after the meeting, the Department informed CSS that it would no longer refer children to the agency. The City later explained that the refusal of CSS to certify same-sex couples violated a non-discrimination provision in its contract with the City as well as the non-discrimination requirements of the citywide Fair Practices Ordinance. The City stated that it would not enter a full foster care contract with CSS in the future unless the agency agreed to certify same-sex couples. CSS and three foster parents affiliated with the agency filed suit against the City, the Department, and the Commission. The Support Center for Child Advocates and Philadelphia Family Pride intervened as defendants. As relevant here, CSS alleged that the referral freeze violated the Free Exercise and Free Speech Clauses of the First Amendment. CSS sought a temporary restraining order and preliminary injunction directing the Department to continue referring children to CSS without requiring the agency to certify same-sex couples. The District Court denied preliminary relief. It concluded that the contractual non-discrimination requirement and the Fair Practices Ordinance were neutral and generally applicable under Employment Division, Department of Human Resources of Oregon v. Smith , 494 U.S. 872 (1990), and that the free exercise claim was therefore unlikely to succeed. 320 F. Supp. 3d 661, 680–690 (ED Pa. 2018). The court also determined that the free speech claims were unlikely to succeed because CSS performed certifications as part of a government program. Id. , at 695–700. The Court of Appeals for the Third Circuit affirmed. Because the contract between the parties had expired, the court focused on whether the City could insist on the inclusion of new language forbidding discrimination on the basis of sexual orientation as a condition of contract renewal. 922 F.3d 140, 153 (2019). The court concluded that the proposed contractual terms were a neutral and generally applicable policy under Smith . 922 F. 3d, at 152–159. The court rejected the agency’s free speech claims on the same grounds as the District Court. Id. , at 160–162. CSS and the foster parents sought review. They challenged the Third Circuit’s determination that the City’s actions were permissible under Smith and also asked this Court to reconsider that precedent. We granted certiorari. 589 U. S. ___ (2020). II A The Free Exercise Clause of the First Amendment, applicable to the States under the Fourteenth Amendment, provides that “Congress shall make no law . . . prohibiting the free exercise” of religion. As an initial matter, it is plain that the City’s actions have burdened CSS’s religious exercise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs. The City disagrees. In its view, certification reflects only that foster parents satisfy the statutory criteria, not that the agency endorses their relationships. But CSS believes that certification is tantamount to endorsement. And “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” Thomas v. Review Bd. of Ind. Employment Security Div. , 450 U.S. 707 , 714 (1981). Our task is to decide whether the burden the City has placed on the religious exercise of CSS is constitutionally permissible. Smith held that laws incidentally burdening religion are ordinarily not subject to strict scrutiny under the Free Exercise Clause so long as they are neutral and generally applicable. 494 U. S., at 878–882. CSS urges us to overrule Smith , and the concurrences in the judgment argue in favor of doing so, see post , p. 1 (opinion of Alito, J.); post , p. 1 (opinion of Gorsuch, J.). But we need not revisit that decision here. This case falls outside Smith because the City has burdened the religious exercise of CSS through policies that do not meet the requirement of being neutral and generally applicable. See Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U.S. 520 , 531–532 (1993). Government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature. See Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n , 584 U. S. ___, ___–___ (2018) (slip op., at 16–17); Lukumi , 508 U. S., at 533. CSS points to evidence in the record that it believes demonstrates that the City has transgressed this neutrality standard, but we find it more straightforward to resolve this case under the rubric of general applicability. A law is not generally applicable if it “invite[s]” the government to consider the particular reasons for a person’s conduct by providing “ ‘a mechanism for individualized exemptions.’ ” Smith , 494 U. S., at 884 (quoting Bowen v. Roy , 476 U.S. 693 , 708 (1986) (opinion of Burger, C. J., joined by Powell and Rehnquist, JJ.)). For example, in Sherbert v. Verner , 374 U.S. 398 (1963), a Seventh-day Adventist was fired because she would not work on Saturdays. Unable to find a job that would allow her to keep the Sabbath as her faith required, she applied for unemployment benefits. Id. , at 399–400. The State denied her application under a law prohibiting eligibility to claimants who had “failed, without good cause . . . to accept available suitable work.” Id. , at 401 (internal quotation marks omitted). We held that the denial infringed her free exercise rights and could be justified only by a compelling interest. Id. , at 406. Smith later explained that the unemployment benefits law in Sherbert was not generally applicable because the “good cause” standard permitted the government to grant exemptions based on the circumstances underlying each application. See 494 U. S., at 884 (citing Roy , 476 U. S., at 708; Sherbert , 374 U. S., at 401, n. 4). Smith went on to hold that “where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.” 494 U. S., at 884 (quoting Roy , 476 U. S., at 708); see also Lukumi , 508 U. S., at 537 (same). A law also lacks general applicability if it prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way. See id. , at 542–546. In Church of Lukumi Babalu Aye, Inc. v. Hialeah , for instance, the City of Hialeah adopted several ordinances prohibiting animal sacrifice, a practice of the Santeria faith. Id. , at 524–528. The City claimed that the ordinances were necessary in part to protect public health, which was “threatened by the disposal of animal carcasses in open public places.” Id. , at 544. But the ordinances did not regulate hunters’ disposal of their kills or improper garbage disposal by restaurants, both of which posed a similar hazard. Id. , at 544–545. The Court concluded that this and other forms of underinclusiveness meant that the ordinances were not generally applicable. Id. , at 545–546. B The City initially argued that CSS’s practice violated section 3.21 of its standard foster care contract. We conclude, however, that this provision is not generally applicable as required by Smith . The current version of section 3.21 specifies in pertinent part: “ Rejection of Referral . Provider shall not reject a child or family including, but not limited to, . . . prospective foster or adoptive parents, for Services based upon . . . their . . . sexual orientation . . . unless an exception is granted by the Commissioner or the Commissioner’s designee, in his/her sole discretion.” Supp. App. to Brief for City Respondents 16–17. This provision requires an agency to provide “Services,” defined as “the work to be performed under this Contract,” App. 560, to prospective foster parents regardless of their sexual orientation. Like the good cause provision in Sherbert , section 3.21 incorporates a system of individual exemptions, made available in this case at the “sole discretion” of the Commissioner. The City has made clear that the Commissioner “has no intention of granting an exception” to CSS. App. to Pet. for Cert. 168a. But the City “may not refuse to extend that [exemption] system to cases of ‘religious hardship’ without compelling reason.” Smith , 494 U. S., at 884 (quoting Roy , 476 U. S., at 708). The City and intervenor-respondents resist this conclusion on several grounds. They first argue that governments should enjoy greater leeway under the Free Exercise Clause when setting rules for contractors than when regulating the general public. The government, they observe, commands heightened powers when managing its internal operations. See NASA v. Nelson , 562 U.S. 134 , 150 (2011); Engquist v. Oregon Dept. of Agriculture , 553 U.S. 591 , 598–600 (2008). And when individuals enter into government employment or contracts, they accept certain restrictions on their freedom as part of the deal. See Garcetti v. Ceballos , 547 U.S. 410 , 418–420 (2006); Board of Comm’rs, Wabaunsee Cty. v. Umbehr , 518 U.S. 668 , 677–678 (1996). Given this context, the City and intervenor-respondents contend, the government should have a freer hand when dealing with contractors like CSS. These considerations cannot save the City here. As Philadelphia rightly acknowledges, “principles of neutrality and general applicability still constrain the government in its capacity as manager.” Brief for City Respondents 11–12. We have never suggested that the government may discriminate against religion when acting in its managerial role. And Smith itself drew support for the neutral and generally applicable standard from cases involving internal government affairs. See 494 U. S., at 883–885, and n. 2 (citing Lyng v. Northwest Indian Cemetery Protective Assn. , 485 U.S. 439 (1988); Roy , 476 U. S. 693). The City and intervenor-respondents accordingly ask only that courts apply a more deferential approach in determining whether a policy is neutral and generally applicable in the contracting context. We find no need to resolve that narrow issue in this case. No matter the level of deference we extend to the City, the inclusion of a formal system of entirely discretionary exceptions in section 3.21 renders the contractual non-discrimination requirement not generally applicable. Perhaps all this explains why the City now contends that section 3.21 does not apply to CSS’s refusal to certify same-sex couples after all. Contrast App. to Pet. for Cert. 167a–168a with Brief for City Respondents 35–36. Instead, the City says that section 3.21 addresses only “an agency’s right to refuse ‘referrals’ to place a child with a certified foster family.” Brief for City Respondents 36. We think the City had it right the first time. Although the section is titled “Rejection of Referral,” the text sweeps more broadly, forbidding the rejection of “prospective foster . . . parents” for “Services,” without limitation. Supp. App. to Brief for City Respondents 16. The City maintains that certification is one of the services foster agencies are hired to perform, so its attempt to backtrack on the reach of section 3.21 is unavailing. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 222 (2012) (“[A] title or heading should never be allowed to override the plain words of a text.”). Moreover, the City adopted the current version of section 3.21 shortly after declaring that it would make CSS’s obligation to certify same-sex couples “explicit” in future contracts, App. to Pet. for Cert. 170a, confirming our understanding of the text of the provision. The City and intervenor-respondents add that, notwithstanding the system of exceptions in section 3.21, a separate provision in the contract independently prohibits discrimination in the certification of foster parents. That provision, section 15.1, bars discrimination on the basis of sexual orientation, and it does not on its face allow for exceptions. See Supp. App. to Brief for City Respondents 31. But state law makes clear that “one part of a contract cannot be so interpreted as to annul another part.” Shehadi v. Northeastern Nat. Bank of Pa. , 474 Pa. 232, 236, 378 A.2d 304 , 306 (1977); see Commonwealth ex rel. Kane v. UPMC , 634 Pa. 97, 135, 129 A.3d 441, 464 (2015). Applying that “fundamental” rule here, Shehadi , 474 Pa., at 236, 378 A. 2d, at 306, an exception from section 3.21 also must govern the prohibition in section 15.1, lest the City’s reservation of the authority to grant such an exception be a nullity. As a result, the contract as a whole contains no generally applicable non-discrimination requirement. Finally, the City and intervenor-respondents contend that the availability of exceptions under section 3.21 is irrelevant because the Commissioner has never granted one. That misapprehends the issue. The creation of a formal mechanism for granting exceptions renders a policy not generally applicable, regardless whether any exceptions have been given, because it “invite[s]” the government to decide which reasons for not complying with the policy are worthy of solicitude, Smith , 494 U. S., at 884—here, at the Commissioner’s “sole discretion.” The concurrence objects that no party raised these arguments in this Court. Post , at 6 (opinion of Gorsuch, J.). But CSS, supported by the United States, contended that the City’s “made-for-CSS Section 3.21 permits discretionary ‘exception[s]’ from the requirement ‘not [to] reject a child or family’ based upon ‘their . . . sexual orientation,’ ” which “alone triggers strict scrutiny.” Reply Brief 5 (quoting Supp. App. to Brief for City Respondents 16; some alterations in original); see also Brief for Petitioners 26–27 (section 3.21 triggers strict scrutiny); Brief for United States as Amicus Curiae 21–22 (same). The concurrence favors the City’s reading of section 3.21, see post , at 5–6, but we find CSS’s position more persuasive. C In addition to relying on the contract, the City argues that CSS’s refusal to certify same-sex couples constitutes an “Unlawful Public Accommodations Practice[ ]” in violation of the Fair Practices Ordinance. That ordinance forbids “deny[ing] or interfer[ing] with the public accommodations opportunities of an individual or otherwise discriminat[ing] based on his or her race, ethnicity, color, sex, sexual orientation, . . . disability, marital status, familial status,” or several other protected categories. Phila. Code §9–1106(1) (2016). The City contends that foster care agencies are public accommodations and therefore forbidden from discriminating on the basis of sexual orientation when certifying foster parents. CSS counters that “foster care has never been treated as a ‘public accommodation’ in Philadelphia.” Brief for Petitioners 13. In any event, CSS adds, the ordinance cannot qualify as generally applicable because the City allows exceptions to it for secular reasons despite denying one for CSS’s religious exercise. But that constitutional issue arises only if the ordinance applies to CSS in the first place. We conclude that it does not because foster care agencies do not act as public accommodations in performing certifications. The ordinance defines a public accommodation in relevant part as “[a]ny place, provider or public conveyance, whether licensed or not, which solicits or accepts the patronage or trade of the public or whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public.” §9–1102(1)(w). Certification is not “made available to the public” in the usual sense of the words. To make a service “available” means to make it “accessible, obtainable.” Merriam-Webster’s Collegiate Dictionary 84 (11th ed. 2005); see also 1 Oxford English Dictionary 812 (2d ed. 1989) (“capable of being made use of, at one’s disposal, within one’s reach”). Related state law illustrates the same point. A Pennsylvania antidiscrimination statute similarly defines a public accommodation as an accommodation that is “open to, accepts or solicits the patronage of the general public.” Pa. Stat. Ann., Tit. 43, §954( l ) (Purdon Cum. Supp. 2009). It fleshes out that definition with examples like hotels, restaurants, drug stores, swimming pools, barbershops, and public conveyances. Ibid. The “common theme” is that a public accommodation must “provide a benefit to the general public allowing individual members of the general public to avail themselves of that benefit if they so desire.” Blizzard v. Floyd , 149 Pa. Commw. 503, 506, 613 A.2d 619 , 621 (1992). Certification as a foster parent, by contrast, is not readily accessible to the public. It involves a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus. The process takes three to six months. Applicants must pass background checks and a medical exam. Foster agencies are required to conduct an intensive home study during which they evaluate, among other things, applicants’ “mental and emotional adjustment,” “community ties with family, friends, and neighbors,” and “[e]xisting family relationships, attitudes and expectations regarding the applicant’s own children and parent/child relationships.” 55 Pa. Code §3700.64. Such inquiries would raise eyebrows at the local bus station. And agencies understandably approach this sensitive process from different angles. As the City itself explains to prospective foster parents, “[e]ach agency has slightly different requirements, specialties, and training programs.” App. to Pet. for Cert. 197a. All of this confirms that the one-size-fits-all public accommodations model is a poor match for the foster care system. The City asks us to adhere to the District Court’s contrary determination that CSS qualifies as a public accommodation under the ordinance. The concurrence adopts the City’s argument, seeing no incongruity in deeming a private religious foster agency a public accommodation. See post , at 3 (opinion of Gorsuch, J.). We respectfully disagree with the view of the City and the concurrence. Although “we ordinarily defer to lower court constructions of state statutes, we do not invariably do so.” Frisby v. Schultz , 487 U.S. 474 , 483 (1988) (citation omitted). Deference would be inappropriate here. The District Court did not take into account the uniquely selective nature of the certification process, which must inform the applicability of the ordinance. We agree with CSS’s position, which it has maintained from the beginning of this dispute, that its “foster services do not constitute a ‘public accommodation’ under the City’s Fair Practices Ordinance, and therefore it is not bound by that ordinance.” App. to Pet. for Cert. 159a. We therefore have no need to assess whether the ordinance is generally applicable. III The contractual non-discrimination requirement imposes a burden on CSS’s religious exercise and does not qualify as generally applicable. The concurrence protests that the “Court granted certiorari to decide whether to overrule [ Smith ],” and chides the Court for seeking to “sidestep the question.” Post , at 1 (opinion of Gorsuch, J.). But the Court also granted review to decide whether Philadelphia’s actions were permissible under our precedents. See Pet. for Cert. i. CSS has demonstrated that the City’s actions are subject to “the most rigorous of scrutiny” under those precedents. Lukumi , 508 U. S., at 546. Because the City’s actions are therefore examined under the strictest scrutiny regardless of Smith , we have no occasion to reconsider that decision here. A government policy can survive strict scrutiny only if it advances “interests of the highest order” and is narrowly tailored to achieve those interests. Lukumi , 508 U. S., at 546 (internal quotation marks omitted). Put another way, so long as the government can achieve its interests in a manner that does not burden religion, it must do so. The City asserts that its non-discrimination policies serve three compelling interests: maximizing the number of foster parents, protecting the City from liability, and ensuring equal treatment of prospective foster parents and foster children. The City states these objectives at a high level of generality, but the First Amendment demands a more precise analysis. See Gonzales v. O Centro Espírita Beneficente União do Vegetal , 546 U.S. 418 , 430–432 (2006) (discussing the compelling interest test applied in Sherbert and Wisconsin v. Yoder , 406 U.S. 205 (1972)). Rather than rely on “broadly formulated interests,” courts must “scrutinize[ ] the asserted harm of granting specific exemptions to particular religious claimants.” O Centro , 546 U. S., at 431. The question, then, is not whether the City has a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception to CSS. Once properly narrowed, the City’s asserted interests are insufficient. Maximizing the number of foster families and minimizing liability are important goals, but the City fails to show that granting CSS an exception will put those goals at risk. If anything, including CSS in the program seems likely to increase, not reduce, the number of available foster parents. As for liability, the City offers only speculation that it might be sued over CSS’s certification practices. Such speculation is insufficient to satisfy strict scrutiny, see Brown v. Entertainment Merchants Assn. , 564 U.S. 786 , 799–800 (2011), particularly because the authority to certify foster families is delegated to agencies by the State, not the City, see 55 Pa. Code §3700.61. That leaves the interest of the City in the equal treatment of prospective foster parents and foster children. We do not doubt that this interest is a weighty one, for “[o]ur society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.” Masterpiece Cakeshop , 584 U. S., at ___ (slip op., at 9). On the facts of this case, however, this interest cannot justify denying CSS an exception for its religious exercise. The creation of a system of exceptions under the contract undermines the City’s contention that its non-discrimination policies can brook no departures. See Lukumi , 508 U. S., at 546–547. The City offers no compelling reason why it has a particular interest in denying an exception to CSS while making them available to others. *  *  * As Philadelphia acknowledges, CSS has “long been a point of light in the City’s foster-care system.” Brief for City Respondents 1. CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else. The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment. In view of our conclusion that the actions of the City violate the Free Exercise Clause, we need not consider whether they also violate the Free Speech Clause. The judgment of the United States Court of Appeals for the Third Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. SUPREME COURT OF THE UNITED STATES _________________ No. 19–123 _________________ SHARONELL FULTON, et al., PETITIONERS v. CITY OF PHILADELPHIA, PENNSYLVANIA, et al. on writ of certiorari to the united states court of appeals for the third circuit [June 17, 2021] Justice Barrett, with whom Justice Kavanaugh joins, and with whom Justice Breyer joins as to all but the first paragraph, concurring. In Employment Div., Dept. of Human Resources of Ore. v. Smith , 494 U.S. 872 (1990), this Court held that a neutral and generally applicable law typically does not violate the Free Exercise Clause—no matter how severely that law burdens religious exercise. Petitioners, their amici , scholars, and Justices of this Court have made serious arguments that Smith ought to be overruled. While history looms large in this debate, I find the historical record more silent than supportive on the question whether the founding generation understood the First Amendment to require religious exemptions from generally applicable laws in at least some circumstances. In my view, the textual and structural arguments against Smith are more compelling. As a matter of text and structure, it is difficult to see why the Free Exercise Clause—lone among the First Amendment freedoms—offers nothing more than protection from discrimination. Yet what should replace Smith ? The prevailing assumption seems to be that strict scrutiny would apply whenever a neutral and generally applicable law burdens religious exercise. But I am skeptical about swapping Smith ’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime, particularly when this Court’s resolution of conflicts between generally applicable laws and other First Amendment rights—like speech and assembly—has been much more nuanced. There would be a number of issues to work through if Smith were overruled. To name a few: Should entities like Catholic Social Services—which is an arm of the Catholic Church—be treated differently than individuals? Cf. Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC , 565 U.S. 171 (2012). Should there be a distinction between indirect and direct burdens on religious exercise? Cf. Braunfeld v. Brown , 366 U.S. 599 , 606–607 (1961) (plurality opinion). What forms of scrutiny should apply? Compare Sherbert v. Verner , 374 U.S. 398 , 403 (1963) (assessing whether government’s interest is “ ‘compelling’ ”), with Gillette v. United States , 401 U.S. 437 , 462 (1971) (assessing whether government’s interest is “substantial”). And if the answer is strict scrutiny, would pre- Smith cases rejecting free exercise challenges to garden-variety laws come out the same way? See Smith , 494 U. S., at 888–889. We need not wrestle with these questions in this case, though, because the same standard applies regardless whether Smith stays or goes. A longstanding tenet of our free exercise jurisprudence—one that both pre-dates and survives Smith —is that a law burdening religious exercise must satisfy strict scrutiny if it gives government officials discretion to grant individualized exemptions. See id., at 884 (law not generally applicable “where the State has in place a system of individual exemptions” (citing Sherbert , 374 U. S., at 401, n. 4)); see also Cantwell v. Connecticut , 310 U.S. 296 , 303–307 (1940) (subjecting statute to heightened scrutiny because exemptions lay in discretion of government official). As the Court’s opinion today explains, the government contract at issue provides for individualized exemptions from its nondiscrimination rule, thus triggering strict scrutiny. And all nine Justices agree that the City cannot satisfy strict scrutiny. I therefore see no reason to decide in this case whether Smith should be overruled, much less what should replace it. I join the Court’s opinion in full. SUPREME COURT OF THE UNITED STATES _________________ No. 19–123 _________________ SHARONELL FULTON, et al., PETITIONERS v. CITY OF PHILADELPHIA, PENNSYLVANIA, et al. on writ of certiorari to the united states court of appeals for the third circuit [June 17, 2021] Justice Alito, with whom Justice Thomas and Justice Gorsuch join, concurring in the judgment. This case presents an important constitutional question that urgently calls out for review: whether this Court’s governing interpretation of a bedrock constitutional right, the right to the free exercise of religion, is fundamentally wrong and should be corrected. In Employment Div., Dept. of Human Resources of Ore. v. Smith , 494 U.S. 872 (1990), the Court abruptly pushed aside nearly 40 years of precedent and held that the First Amendment’s Free Exercise Clause tolerates any rule that categorically prohibits or commands specified conduct so long as it does not target religious practice. Even if a rule serves no important purpose and has a devastating effect on religious freedom, the Constitution, according to Smith , provides no protection. This severe holding is ripe for reexamination. I There is no question that Smith ’s interpretation can have startling consequences. Here are a few examples. Suppose that the Volstead Act, which implemented the Prohibition Amendment, had not contained an exception for sacramental wine. See Pub. L. 66, §3, 41Stat. 308–309. The Act would have been consistent with Smith even though it would have prevented the celebration of a Catholic Mass anywhere in the United States.[ 1 ] Or suppose that a State, following the example of several European countries, made it unlawful to slaughter an animal that had not first been rendered unconscious.[ 2 ] That law would be fine under Smith even though it would outlaw kosher and halal slaughter.[ 3 ] Or suppose that a jurisdiction in this country, following the recommendations of medical associations in Europe, banned the circumcision of infants.[ 4 ] A San Francisco ballot initiative in 2010 proposed just that.[ 5 ] A categorical ban would be allowed by Smith even though it would prohibit an ancient and important Jewish and Muslim practice.[ 6 ] Or suppose that this Court or some other court enforced a rigid rule prohibiting attorneys from wearing any form of head covering in court. The rule would satisfy Smith even though it would prevent Orthodox Jewish men, Sikh men, and many Muslim women from appearing. Many other examples could be added. We may hope that legislators and others with rule- making authority will not go as far as Smith allows, but the present case shows that the dangers posed by Smith are not hypothetical. The city of Philadelphia (City) has issued an ultimatum to an arm of the Catholic Church: Either engage in conduct that the Church views as contrary to the traditional Christian understanding of marriage or abandon a mission that dates back to the earliest days of the Church—providing for the care of orphaned and abandoned children. Many people believe they have a religious obligation to assist such children. Jews and Christians regard this as a scriptural command,[ 7 ] and it is a mission that the Catholic Church has undertaken since ancient times. One of the first known orphanages is said to have been founded by St. Basil the Great in the fourth century,[ 8 ] and for centuries, the care of orphaned and abandoned children was carried out by religious orders.[ 9 ] In the New World, religious groups continued to take the lead. The first known orphanage in what is now the United States was founded by an order of Catholic nuns in New Orleans around 1729.[ 10 ] In the 1730s, the first two orphanages in what became the United States at the founding were established in Georgia by Lutherans and by Rev. George Whitefield, a leader in the “First Great Awakening.”[ 11 ] In the late 18th and early 19th centuries, Protestants and Catholics established orphanages in major cities. One of the first orphanages in Philadelphia was founded by a Catholic priest in 1798.[ 12 ] The Jewish Society for the Relief of Orphans and Children of Indigent Parents began its work in Charleston in 1801.[ 13 ] During the latter part of the 19th century and continuing into the 20th century, the care of children was shifted from orphanages to foster families,[ 14 ] but for many years, state and local government participation in this field was quite limited. As one of Philadelphia’s amici puts it, “[i]nto the early twentieth century, the care of orphaned and abandoned children in the United States remained largely in the hands of private charitable and religious organizations.”[ 15 ] In later years, an influx of federal money[ 16 ] spurred States and local governments to take a more active role, and today many governments administer what is essentially a licensing system. As is typical in other jurisdictions, no private charitable group may recruit, vet, or support foster parents in Philadelphia without the City’s approval. Whether with or without government participation, Catholic foster care agencies in Philadelphia and other cities have a long record of finding homes for children whose parents are unable or unwilling to care for them. Over the years, they have helped thousands of foster children and parents, and they take special pride in finding homes for children who are hard to place, including older children and those with special needs.[ 17 ] Recently, however, the City has barred Catholic Social Services (CSS) from continuing this work. Because the Catholic Church continues to believe that marriage is a bond between one man and one woman, CSS will not vet same-sex couples. As far as the record reflects, no same-sex couple has ever approached CSS, but if that were to occur, CSS would simply refer the couple to another agency that is happy to provide that service—and there are at least 27 such agencies in Philadelphia. App. 171; App. to Pet. for Cert. 137a; see also id., at 286a. Thus, not only is there no evidence that CSS’s policy has ever interfered in the slightest with the efforts of a same-sex couple to care for a foster child, there is no reason to fear that it would ever have that effect. None of that mattered to Philadelphia. When a newspaper publicized CSS’s policy, the City barred CSS from continuing its foster care work. Remarkably, the City took this step even though it threatens the welfare of children awaiting placement in foster homes. There is an acute shortage of foster parents, both in Philadelphia and in the country at large.[ 18 ] By ousting CSS, the City eliminated one of its major sources of foster homes. And that’s not all. The City went so far as to prohibit the placement of any children in homes that CSS had previously vetted and approved. Exemplary foster parents like petitioners Sharonell Fulton and Toni Lynn Simms-Busch are blocked from providing loving homes for children they were eager to help.[ 19 ] The City apparently prefers to risk leaving children without foster parents than to allow CSS to follow its religiously dictated policy, which threatens no tangible harm. CSS broadly implies that the fundamental objective of City officials is to force the Philadelphia Archdiocese to change its position on marriage. Among other things, they point to statements by a City official deriding the Archdiocese’s position as out of step with Pope Francis’s teaching and 21st century moral views.[ 20 ] But whether or not this is the City’s real objective, there can be no doubt that Philadelphia’s ultimatum restricts CSS’s ability to do what it believes the Catholic faith requires. Philadelphia argues that its stance is allowed by Smith because, it claims, a City policy categorically prohibits foster care agencies from discriminating against same-sex couples. Bound by Smith , the lower courts accepted this argument, 320 F. Supp. 3d 661, 682–684 (ED Pa. 2018), 922 F.3d 140, 156–159 (CA3 2019), and we then granted certiorari, 589 U. S. ___ (2020). One of the questions that we accepted for review is “[w]hether Employment Division v. Smith should be revisited.” We should confront that question. Regrettably, the Court declines to do so. Instead, it reverses based on what appears to be a superfluous (and likely to be short-lived) feature of the City’s standard annual contract with foster care agencies. Smith ’s holding about categorical rules does not apply if a rule permits individualized exemptions, 494 U. S., at 884, and the majority seizes on the presence in the City’s standard contract of language giving a City official the power to grant exemptions. Ante , at 7. The City tells us that it has never granted such an exemption and has no intention of handing one to CSS, Brief for City Respondents 36; App. to Pet. for Cert. 168a, but the majority reverses the decision below because the contract supposedly confers that never-used power. Ante , at 10, 15. This decision might as well be written on the dissolving paper sold in magic shops. The City has been adamant about pressuring CSS to give in, and if the City wants to get around today’s decision, it can simply eliminate the never-used exemption power.[ 21 ] If it does that, then, voilà, today’s decision will vanish—and the parties will be back where they started. The City will claim that it is protected by Smith ; CSS will argue that Smith should be overruled; the lower courts, bound by Smith , will reject that argument; and CSS will file a new petition in this Court challenging Smith . What is the point of going around in this circle? Not only is the Court’s decision unlikely to resolve the present dispute, it provides no guidance regarding similar controversies in other jurisdictions. From 2006 to 2011, Catholic Charities in Boston, San Francisco, Washington, D. C., and Illinois ceased providing adoption or foster care services after the city or state government insisted that they serve same-sex couples. Although the precise legal grounds for these actions are not always clear, it appears that they were based on laws or regulations generally prohibiting discrimination on the basis of sexual orientation.[ 22 ] And some jurisdictions have adopted anti-discrimination rules that expressly target adoption services.[ 23 ] Today’s decision will be of no help in other cases involving the exclusion of faith-based foster care and adoption agencies unless by some chance the relevant laws contain the same glitch as the Philadelphia contractual provision on which the majority’s decision hangs. The decision will be even less significant in all the other important religious liberty cases that are bubbling up. We should reconsider Smith without further delay. The correct interpretation of the Free Exercise Clause is a question of great importance, and Smith ’s interpretation is hard to defend. It can’t be squared with the ordinary meaning of the text of the Free Exercise Clause or with the prevalent understanding of the scope of the free-exercise right at the time of the First Amendment’s adoption. It swept aside decades of established precedent, and it has not aged well. Its interpretation has been undermined by subsequent scholarship on the original meaning of the Free Exercise Clause. Contrary to what many initially expected, Smith has not provided a clear-cut rule that is easy to apply, and experience has disproved the Smith majority’s fear that retention of the Court’s prior free-exercise jurisprudence would lead to “anarchy.” 494 U. S., at 888. When Smith reinterpreted the Free Exercise Clause, four Justices—Brennan, Marshall, Blackmun, and O’Connor—registered strong disagreement. Id., at 891, 892 (O’Connor, J., joined in part by Brennan, Marshall, and Blackmun, JJ., concurring in judgment); id., at 907–908 (Blackmun, J., joined by Brennan and Marshall, JJ., dissenting). After joining the Court, Justice Souter called for Smith to be reexamined. Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U.S. 520 , 559 (1993) (opinion concurring in part and concurring in judgment). So have five sitting Justices. Kennedy v. Bremerton School Dist. , 586 U. S. ___, ___–___ (2019) (Alito, J., joined by Thomas, Gorsuch, and Kavanaugh, JJ., concurring in denial of certiorari) (slip op., at 5–6); City of Boerne v. Flores , 521 U.S. 507 , 566 (1997) (Breyer, J., dissenting). So have some of the country’s most distinguished scholars of the Religion Clauses. See, e.g., McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109 (1990) (McConnell, Free Exercise Revisionism); Laycock, The Supreme Court’s Assault on Free Exercise, and the Amicus Brief That Was Never Filed, 8 J. L. & Religion 99 (1990). On two separate occasions, Congress, with virtual unanimity, expressed the view that Smith ’s interpretation is contrary to our society’s deep-rooted commitment to religious liberty. In enacting the Religious Freedom Restoration Act of 1993, 107Stat. 1488 (codified at 42 U. S. C. §2000bb et seq. ), and the Religious Land Use and Institutionalized Persons Act of 2000, 114Stat. 803 (codified at 42 U. S. C. §2000cc et seq. ), Congress tried to restore the constitutional rule in place before Smith was handed down. Those laws, however, do not apply to most state action, and they leave huge gaps. It is high time for us to take a fresh look at what the Free Exercise Clause demands. II A To fully appreciate what the Court did in Smith , it is necessary to recall the substantial body of precedent that it displaced. Our seminal decision on the question of religious exemptions from generally applicable laws was Sherbert v. Verner , 374 U.S. 398 (1963), which had been in place for nearly four decades when Smith was decided. In that earlier case, Adell Sherbert, a Seventh-day Adventist, was fired because she refused to work on Saturday, her Sabbath Day. 374 U. S. , at 399. Unable to find other employment that did not require Saturday work, she applied for unemployment compensation but was rejected because state law disqualified claimants who “ failed, without good cause . . . to accept available suitable work when offered. ” Id ., at 399–401, and n. 3 (internal quotation marks omitted). The State Supreme Court held that this denial of benefits did not violate Sherbert’s free-exercise right, but this Court reversed. In an opinion authored by Justice Brennan, the Court began by surveying the Court’s few prior cases involving claims for religious exemptions from generally applicable laws. Id., at 402–403. In those decisions, the Court had not articulated a clear standard for resolving such conflicts, but as the Sherbert opinion accurately recounted, where claims for religious exemptions had been rejected, “[t]he conduct or actions [in question] invariably posed some substantial threat to public safety, peace or order.” Id ., at 403. (As will be shown below, this description of the earlier decisions corresponds closely with the understanding of the scope of the free-exercise right at the time of the First Amendment’s adoption. See infra , at 29–36.) After noting these earlier decisions, the Court turned to the case at hand and concluded that the denial of benefits imposed a substantial burden on Sherbert’s free exercise of religion. 374 U. S., at 404. It “force[d] her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.” Ibid . As a result, the Court reasoned, the decision below could be sustained only if it was “justified by a ‘compelling state interest.’ ” Id ., at 403, 406. The State argued that its law was needed to prevent “the filing of fraudulent claims by unscrupulous claimants feigning religious objections,” but Justice Brennan’s opinion found this justification insufficient because the State failed to show that “no alternative forms of regulation would combat such abuses without infringing First Amendment rights.” Id ., at 407. The test distilled from Sherbert —that a law that imposes a substantial burden on the exercise of religion must be narrowly tailored to serve a compelling interest—was the governing rule for the next 37 years. Applying that test, the Court sometimes vindicated free-exercise claims. In Wisconsin v. Yoder , 406 U.S. 205 , 234 (1972), for example, the Court held that a state law requiring all students to remain in school until the age of 16 violated the free-exercise rights of Amish parents whose religion required that children leave school after the eighth grade. The Court acknowledged the State’s “admittedly strong interest in compulsory education” but concluded that the State had failed to “show with . . . particularity how [that interest] would be adversely affected by granting an exemption to the Amish.” Id ., at 236. And in holding that the Amish were entitled to a special exemption, the Court expressly rejected the interpretation of the Free Exercise Clause that was later embraced in Smith . Indeed, the Yoder Court stated this point again and again: “[T]here are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability ”; “[a] regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion”; insisting that Amish children abide by the compulsory attendance requirement was unconstitutional even though it “applie[d] uniformly to all citizens of the State and d[id] not, on its face, discriminate against religions or a particular religion, [and was] motivated by legitimate secular concerns.” Id ., at 220 (emphasis added). Other decisions also accepted free-exercise claims under the Sherbert test. In Thomas v. Review Bd. of Ind. Employment Security Div. , 450 U.S. 707 , 710, 720 (1981), the Court concluded that a State could not withhold unemployment benefits from a Jehovah’s Witness who quit his job because he refused to do work that he viewed as contributing to the production of military weapons. In so holding, the Court reiterated that “ ‘[a] regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion.’ ” Id ., at 717 (quoting Yoder , 406 U. S., at 220). Subsequently, in Hobbie v. Unemployment Appeals Comm’n of Fla ., 480 U.S. 136 , 141 (1987), the Court found that a state rule that was “ ‘neutral and uniform in its application’ ” nevertheless violated the Free Exercise Clause under the Sherbert test. A similar violation was found in Frazee v. Illinois Dept. of Employment Security , 489 U.S. 829 (1989). Other cases applied Sherbert but found no violation. In United States v. Lee , 455 U.S. 252 , 258 (1982), the Court held that mandatory contributions to Social Security were constitutional because they were “indispensable to the fiscal vitality of the social security system.” In Gillette v. United States , 401 U.S. 437 , 462 (1971), denying conscientious-objector status to men whose opposition to war was limited to one particular conflict was held to be “strictly justified by substantial governmental interests.” In still other cases, the Court found Sherbert inapplicable either because the challenged law did not implicate the conduct of the individual seeking an exemption, see Bowen v. Roy , 476 U.S. 693 , 700 (1986); Lyng v. Northwest Indian Cemetery Protective Assn ., 485 U.S. 439 , 450–451 (1988), or because the case arose in a context where the government exercised broader authority over assertions of individual rights, see O’Lone v. Estate of Shabazz , 482 U.S. 342 , 353 (1987) (prison); Goldman v. Weinberger , 475 U.S. 503 , 506 (1986) (military). None of these decisions questioned the validity of Sherbert ’s interpretation of the free-exercise right. B This is where our case law stood when Smith reached the Court. The underlying situation in Smith was very similar to that in Sherbert . Just as Adell Sherbert had been denied unemployment benefits due to conduct mandated by her religion (refraining from work on Saturday), Alfred Smith and Galen Black were denied unemployment benefits because of a religious practice (ingesting peyote as part of a worship service of the Native American Church). 494 U. S., at 874. Applying the Sherbert test, the Oregon Supreme Court held that this denial of benefits violated Smith’s and Black’s free-exercise rights, and this Court granted review.[ 24 ] The State defended the denial of benefits under the Sherbert framework. It argued that it had a compelling interest in combating the use of dangerous drugs and that accommodating their use for religious purposes would upset its enforcement scheme. Brief for Petitioners in Employment Div., Dept. of Human Resources v. Smith , No. 88–1213, O. T. 1988, pp. 5–7, 12, 16. The State never suggested that Sherbert should be overruled. See Brief for Petitioners in No. 88–1213, at 11. Instead, the crux of its disagreement with Smith and Black and the State Supreme Court was whether its interest in preventing drug use could be served by a more narrowly tailored rule that made an exception for religious use by members of the Native American Church. The question divided the four Justices who objected to the Smith majority’s rationale. Compare 494 U. S., at 905–907 (O’Connor J., concurring in judgment), with id., at 909–919 (Blackmun, J., joined by Brennan and Marshall, JJ., dissenting). And the Smith majority wanted no part of that question. Instead, without briefing or argument on whether Sherbert should be cast aside, the Court adopted what it seems to have thought was a clear-cut test that would be easy to apply: A “generally applicable and otherwise valid” rule does not violate the Free Exercise Clause “if prohibiting the exercise of religion . . . is not [its] object . . . but merely the incidental effect of ” its operation. 494 U. S., at 878. Other than cases involving rules that target religious conduct, the Sherbert test was held to apply to only two narrow categories of cases: (1) those involving the award of unemployment benefits or other schemes allowing individualized exemptions and (2) so-called “hybrid rights” cases. See 494 U. S., at 881–884.[ 25 ] To clear the way for this new regime, the majority was willing to take liberties. Paying little attention to the terms of the Free Exercise Clause, it was satisfied that its interpretation represented a “permissible” reading of the text, Smith , 494 U. S., at 878, and it did not even stop to explain why that was so. The majority made no effort to ascertain the original understanding of the free-exercise right, and it limited past precedents on grounds never previously suggested. Sherbert , Thomas , and Hobbie were placed in a special category because they concerned the award of unemployment compensation, Smith , 494 U. S., at 883, and Yoder was distinguished on the ground that it involved both a free-exercise claim and a parental-rights claim, Smith, 494 U. S., at 881. Not only did these distinctions lack support in prior case law, the issue in Smith itself could easily be viewed as falling into both of these special categories. After all, it involved claims for unemployment benefits, and members of the Native American Church who ingest peyote as part of a religious ceremony are surely engaging in expressive conduct that falls within the scope of the Free Speech Clause. See, e.g. , Texas v. Johnson , 491 U.S. 397 , 404 (1989). None of these obstacles stopped the Smith majority from adopting its new rule and displacing decades of precedent. The majority feared that continued adherence to that case law would “cour[t] anarchy” because it “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” 494 U. S., at 888. The majority recognized that its new interpretation would place small religious groups at a “relative disadvantage,” but the majority found that preferable to the problems it envisioned if the Sherbert test had been retained . 494 U. S., at 890. Four Justices emphatically disagreed with Smith ’s reinterpretation of the Free Exercise Clause. Justice O’Connor wrote that this new reading “dramatically depart[ed] from well-settled First Amendment jurisprudence” and was “incompatible with our Nation’s fundamental commitment to individual religious liberty.” 494 U. S., at 891 (opinion concurring in judgment). Justices Brennan, Marshall, and Blackmun protested that the majority had “mischaracteriz[ed]” and “discard[ed]” the Court’s free-exercise jurisprudence on its way to “perfunctorily dismiss[ing]” the “settled and inviolate principle” that state laws burdening religious freedom may stand only if “justified by a compelling interest that cannot be served by less restrictive means.” Id., at 907–908 (Blackmun, J., joined by Brennan and Marshall, JJ., dissenting). Smith ’s impact was quickly felt, and Congress was inundated with reports of the decision’s consequences.[ 26 ] In response, it attempted to restore the Sherbert test. In the House, then-Representative Charles Schumer introduced a bill that made a version of that test applicable to all actions taken by the Federal Government or the States. H. R. 1308, 103d Cong., 1st Sess. (1993). This bill, which eventually became the Religious Freedom Restoration Act (RFRA), passed in the House without dissent, was approved in the Senate by a vote of 97 to 3, and was enthusiastically signed into law by President Clinton. 139 Cong. Rec. 27239–27341 (1993) (House voice vote); id ., at 26416 (Senate vote); Remarks on Signing the Religious Freedom Restoration Act of 1993, 29 Weekly Comp. of Pres. Doc. 2377 (1993). And when this Court later held in City of Boerne , 521 U.S. 507 , that Congress lacked the power under the 14th Amendment to impose these rules on the States, Congress responded by enacting the Religious Land Use and Institutionalized Persons Act (RLUIPA) under its spending power and its power to regulate interstate commerce. See 114Stat. 803. Introduced in the Senate by Sen. Orrin Hatch and cosponsored by Sen. Edward Kennedy, RLUIPA imposed the same rules as RFRA on land use and prison regulations. S. 2869, 106th Cong., 2d Sess. (2000); 42 U. S. C. §2000cc et seq ; 146 Cong. Rec. 16698 (2000). RLUIPA passed both Houses of Congress without a single negative vote and, like RFRA, was signed by President Clinton. Id ., at 16703, 16623; Statement on Signing the Religious Land Use and Institutionalized Persons Act of 2000, 36 Weekly Comp. of Pres. Doc. 2168 (2000). RFRA and RLUIPA have restored part of the protection that Smith withdrew, but they are both limited in scope and can be weakened or repealed by Congress at any time. They are no substitute for a proper interpretation of the Free Exercise Clause. III A That project must begin with the constitutional text. In Martin v. Hunter’s Lessee , 1 Wheat. 304, 338–339 (1816), Justice Story laid down the guiding principle: “If the text be clear and distinct, no restriction upon its plain and obvious import ought to be admitted, unless the inference be irresistible.” And even though we now have a thick body of precedent regarding the meaning of most provisions of the Constitution, our opinions continue to respect the primacy of the Constitution’s text. See, e.g ., Chiafalo v. Washington , 591 U. S. ___, ___–___ (2020) (slip op., at 9–13) (starting with the text of Art. II, §1, before considering historical practice); Knick v. Township of Scott , 588 U. S. ___, ___ (2019) (slip op., at 6) (beginning analysis with the text of the Takings Clause); Gamble v. United States , 587 U. S. ___, ___–___ (2019) (slip op., at 3–4) (starting with the text of the Fifth Amendment before turning to history and precedent); City of Boerne , 521 U. S., at 519 (“In assessing the breadth of §5’s enforcement power, we begin with its text”). Smith, however, paid shockingly little attention to the text of the Free Exercise Clause. Instead of examining what readers would have understood its words to mean when adopted, the opinion merely asked whether it was “permissible” to read the text to have the meaning that the majority favored. 494 U. S., at 878. This strange treatment of the constitutional text cannot be justified—and is especially surprising since it clashes so sharply with the way in which Smith ’s author, Justice Scalia, generally treated the text of the Constitution (and, indeed, with his entire theory of legal interpretation). As he put it, “What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text.” A. Scalia, A Matter of Interpretation 38 (1997). See also NLRB v. Noel Canning , 573 U.S. 513 , 575–583 (2014) (Scalia, J., concurring in judgment); Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection , 560 U.S. 702 , 722 (2010) (plurality opinion of Scalia, J.); Maryland v. Craig , 497 U.S. 836 , 860–861 (1990) (Scalia, J., dissenting). Justice Scalia’s opinion for the Court in District of Columbia v. Heller , 554 U.S. 570 (2008), is a prime example of his usual approach, and it is a model of what a reexamination of the Free Exercise Clause should entail. In Heller , after observing that the “Constitution was written to be understood by the voters,” Justice Scalia’s opinion begins by presuming that the “words and phrases” of the Second Amendment carry “their normal and ordinary . . . meaning.” Id ., at 576 (internal quotation marks omitted). The opinion then undertakes a careful examination of all the Amendment’s key terms. It does not simply ask whether its interpretation of the text is “permissible.” Smith , 494 U. S., at 878. B Following the sound approach that the Court took in Heller , we should begin by considering the “normal and ordinary” meaning of the text of the Free Exercise Clause: “Congress shall make no law . . . prohibiting the free exercise [of religion].” Most of these terms and phrases—“Congress,”[ 27 ] “shall make,” “no law,”[ 28 ] and “religion”[ 29 ]—do not require discussion for present purposes, and we can therefore focus on what remains: the term “prohibiting” and the phrase “the free exercise of religion.” Those words had essentially the same meaning in 1791 as they do today. “To prohibit” meant either “[t]o forbid” or “to hinder.” 2 S. Johnson, A Dictionary of the English Language (1755) (Johnson (1755)).[ 30 ] The term “exercise” had both a broad primary definition (“[p]ractice” or “outward performance”) and a narrower secondary one (an “[a]ct of divine worship whether publick or private”). 1 id .[ 31 ] (The Court long ago declined to give the First Amendment’s reference to “exercise” this narrow reading. See, e.g ., Cantwell v. Connecticut, 310 U.S. 296 , 303–304 (1940).) And “free,” in the sense relevant here, meant “unrestrained.” 1 Johnson (1755).[ 32 ] If we put these definitions together, the ordinary meaning of “prohibiting the free exercise of religion” was (and still is) forbidding or hindering unrestrained religious practices or worship. That straightforward understanding is a far cry from the interpretation adopted in Smith . It certainly does not suggest a distinction between laws that are generally applicable and laws that are targeted. As interpreted in Smith , the Clause is essentially an anti-discrimination provision: It means that the Federal Government and the States cannot restrict conduct that constitutes a religious practice for some people unless it imposes the same restriction on everyone else who engages in the same conduct. Smith made no real attempt to square that equal-treatment interpretation with the ordinary meaning of the Free Exercise Clause’s language, and it is hard to see how that could be done. The key point for present purposes is that the text of the Free Exercise Clause gives a specific group of people (those who wish to engage in the “exercise of religion”) the right to do so without hindrance. The language of the Clause does not tie this right to the treatment of persons not in this group. The oddity of Smith ’s interpretation can be illustrated by considering what the same sort of interpretation would mean if applied to other provisions of the Bill of Rights. Take the Sixth Amendment, which gives a specified group of people (the “accused” in criminal cases) a particular right (the right to the “Assistance of Counsel for [their] defence”). Suppose that Congress or a state legislature adopted a law banning counsel in all litigation , civil and criminal. Would anyone doubt that this law would violate the Sixth Amendment rights of criminal defendants? Or consider the Seventh Amendment, which gives a specified group of people (parties in most civil “Suits at common law”) “the right of trial by jury.” Would there be any question that a law abolishing juries in all civil cases would violate the rights of parties in cases that fall within the Seventh Amendment’s scope? Other examples involving language similar to that in the Free Exercise Clause are easy to imagine. Suppose that the amount of time generally allotted to complete a state bar exam is 12 hours but that applicants with disabilities secure a consent decree allowing them an extra hour. Suppose that the State later adopts a rule requiring all applicants to complete the exam in 11 hours. Would anyone argue that this was consistent with the decree? Suppose that classic car enthusiasts secure the passage of a state constitutional amendment exempting cars of a certain age from annual safety inspections, but the legislature later enacts a law requiring such inspections for all vehicles regardless of age. Can there be any doubt that this would violate the state constitution? It is not necessary to belabor this point further. What all these examples show is that Smith ’s interpretation conflicts with the ordinary meaning of the First Amendment’s terms. C Is there any way to bring about a reconciliation? The short answer is “no.” Survey all the briefs filed in support of respondents (they total more than 40) and three decades of law review articles, and what will you find? Philadelphia’s brief refers in passing to one possible argument—and the source it cites is a law review article by one of Smith ’s leading academic critics, Professor Michael W. McConnell. See Brief for City Respondents 49 (citing McConnell, Free Exercise Revisionism 1115). Trying to see if there was any way to make Smith fit with the constitutional text, Professor McConnell came up with this argument—but then rejected it. McConnell , Free Exercise Revisionism 1115–1116. The argument goes as follows: Even if a law prohibits conduct that constitutes an essential religious practice, it cannot be said to “prohibit” the free exercise of religion unless that was the lawmakers’ specific object. This is a hair-splitting interpretation. It certainly does not represent the “normal and ordinary” meaning of the Free Exercise Clause’s terms. See Heller , 554 U. S., at 576. Consider how it would play out if applied to some of the hypothetical laws discussed at the beginning of this opinion. A law categorically banning all wine would not “prohibit” the celebration of a Catholic Mass? A law categorically forbidding the slaughter of a conscious animal would not “prohibit” kosher and halal slaughterhouses? A rule categorically banning any head covering in a courtroom would not “prohibit” appearances by orthodox Jewish men, Sikh men, and Muslim women who wear hijabs? It is no wonder that Smith ’s many defenders have almost uniformly foregone this argument. D Not only is it difficult to square Smith ’s interpretation with the terms of the Free Exercise Clause, the absence of any language referring to equal treatment is striking. If equal treatment was the objective, why didn’t Congress say that? And since it would have been simple to cast the Free Exercise Clause in equal-treatment terms, why would the state legislators who voted for ratification have read the Clause that way? It is not as if there were no models that could have been used. Other constitutional provisions contain non-discrimination language. For example, Art. I, §9, cl. 6, provides that “[n]o Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another.” Under Art. IV, §2, cl. 1, “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Article V provides that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” Language mandating equal treatment of one sort or another also appeared in the religious liberty provisions of colonial charters and state constitutions.[ 33 ] But Congress eschewed those models. The contrast between these readily available anti-discrimination models and the language that appears in the First Amendment speaks volumes. IV A While we presume that the words of the Constitution carry their ordinary and normal meaning, we cannot disregard the possibility that some of the terms in the Free Exercise Clause had a special meaning that was well understood at the time. Heller , again, provides a helpful example. Heller did not hold that the right to keep and bear arms means that everyone has the right to keep and bear every type of weaponry in all places and at all times. Instead, it held that the Second Amendment protects a known right that was understood to have defined dimensions. 554 U. S., at 626–628. Following Heller ’s lead, we must ask whether the Free Exercise Clause protects a right that was known at the time of adoption to have defined dimensions. But in doing so, we must keep in mind that there is a presumption that the words of the Constitution are to be interpreted in accordance with their “normal and ordinary” sense. Id. , at 576 (internal quotation marks omitted). Anyone advocating a different reading must overcome that presumption. B 1 What was the free-exercise right understood to mean when the Bill of Rights was ratified? And in particular, was it clearly understood that the right simply required equal treatment for religious and secular conduct? When Smith was decided, scholars had not devoted much attention to the original meaning of the Free Exercise Clause, and the parties’ briefs ignored this issue, as did the opinion of the Court. Since then, however, the historical record has been plumbed in detail,[ 34 ] and we are now in a good position to examine how the free-exercise right was understood when the First Amendment was adopted. By that date, the right to religious liberty already had a long, rich, and complex history in this country. What appears to be the first “free exercise” provision was adopted in 1649. Prompted by Lord Baltimore,[ 35 ] the Maryland Assembly enacted a provision protecting the right of all Christians to engage in “the free exercise” of religion.[ 36 ] Rhode Island’s 1663 Charter extended the right to all. See Charter of Rhode Island and Providence Plantations (1663), in Cogan 34. Early colonial charters and agreements in Carolina, Delaware, New Jersey, New York, and Pennsylvania also recognized the right to free exercise,[ 37 ] and by 1789, every State except Connecticut had a constitutional provision protecting religious liberty. McConnell, Origins 1455. In fact, the Free Exercise Clause had more analogs in State Constitutions than any other individual right. See Calabresi, Agudo, & Dore, State Bills of Rights in 1787 and 1791: What Individual Rights Are Really Deeply Rooted in American History and Tradition? 85 S. Cal. L. Rev. 1451, 1463–1464, 1472–1473 (2012). In all of those State Constitutions, freedom of religion enjoyed broad protection, and the right “was universally said to be an unalienable right.” McConnell, Origins 1456.[ 38 ] 2 What was this right understood to protect? In seeking to discern that meaning, it is easy to get lost in the voluminous discussion of religious liberty that occurred during the long period from the first British settlements to the adoption of the Bill of Rights. Many different political figures, religious leaders, and others spoke and wrote about religious liberty and the relationship between the authority of civil governments and religious bodies. The works of a variety of thinkers were influential, and views on religious liberty were informed by religion, philosophy, historical experience, particular controversies and issues, and in no small measure by the practical task of uniting the Nation. The picture is complex. For present purposes, we can narrow our focus and concentrate on the circumstances that relate most directly to the adoption of the Free Exercise Clause. As has often been recounted, critical state ratifying conventions approved the Constitution on the understanding that it would be amended to provide express protection for certain fundamental rights,[ 39 ] and the right to religious liberty was unquestionably one of those rights. As noted, it was expressly protected in 12 of the 13 State Constitutions, and these state constitutional provisions provide the best evidence of the scope of the right embodied in the First Amendment. When we look at these provisions, we see one predominant model. This model extends broad protection for religious liberty but expressly provides that the right does not protect conduct that would endanger “the public peace” or “safety.” This model had deep roots in early colonial charters. It appeared in the Rhode Island Charter of 1663,[ 40 ] the Second Charter of Carolina in 1665,[ 41 ] and the New York Act Declaring Rights & Priviledges in 1691.[ 42 ] By the founding, more than half of the State Constitutions contained free-exercise provisions subject to a “peace and safety” carveout or something similar. The Georgia Constitution is a good example. It provided that “[a]ll persons whatever shall have the free exercise of their religion; provided it be not repugnant to the peace and safety of the State.” Ga. Const., Art. LVI (1777), in Cogan 16 (emphasis added). The founding era Constitutions of Delaware, Maryland, Massachusetts, New Hampshire, New York, Rhode Island, and South Carolina all contained broad protections for religious exercise, subject to limited peace-and-safety carveouts.[ 43 ] The predominance of this model is highlighted by its use in the laws governing the Northwest Territory. In the Northwest Ordinance of 1787, the Continental Congress provided that “[n]o person, demeaning himself in a peaceable and orderly manner , shall ever be molested on account of his mode of worship, or religious sentiments, in the said territory.” Art. I (emphasis added). After the ratification of the Constitution, the First Congress used similar language in the Northwest Ordinance of 1789. See Act of Aug. 7, 1789, 1Stat. 52 (reaffirming Art. I of Northwest Ordinance of 1787). Since the First Congress also framed and approved the Bill of Rights, we have often said that its apparent understanding of the scope of those rights is entitled to great respect. See, e.g., Town of Greece v. Galloway , 572 U.S. 565 , 575–578 (2014); Harmelin v. Michigan , 501 U.S. 957 , 980 (1991) (opinion of Scalia, J.); Marsh v. Chambers , 463 U.S. 783 , 786–792 (1983); Carroll v. United States , 267 U.S. 132 , 150–151 (1925). 3 The model favored by Congress and the state legislatures—providing broad protection for the free exercise of religion except where public “peace” or “safety” would be endangered—is antithetical to Smith. If, as Smith held, the free-exercise right does not require any religious exemptions from generally applicable laws, it is not easy to imagine situations in which a public-peace-or-safety carveout would be necessary. Legislatures enact generally applicable laws to protect public peace and safety. If those laws are thought to be sufficient to address a particular type of conduct when engaged in for a secular purpose, why wouldn’t they also be sufficient to address the same type of conduct when carried out for a religious reason? Smith ’s defenders have no good answer. Their chief response is that the free-exercise provisions that included these carveouts were tantamount to the Smith rule because any conduct that is generally prohibited or generally required can be regarded as necessary to protect public peace or safety. See City of Boerne , 521 U. S., at 539 (Scalia, J., concurring in part) (“At the time these provisos were enacted, keeping ‘peace’ and ‘order’ seems to have meant, precisely, obeying the laws”). This argument gives “public peace and safety” an unnaturally broad interpretation. Samuel Johnson’s 1755 dictionary defined “peace” as: “1. Respite from war. . . . 2. Quiet from suits or disturbances. . . . 3. Rest from any commotion. 4. Stil[l]ness from riots or tumults. . . . 5. Reconciliation of differences. . . . 6. A state not hostile. . . . 7. Rest; quiet; content; freedom from terrour; heavenly rest. . . .” 2 Johnson.[ 44 ] In ordinary usage, the term “safety” was understood to mean: “1. Freedom from danger. . . . 2. Exemption from hurt. 3. Preservation from hurt. . . .” Ibid .[ 45 ] When “peace” and “safety” are understood in this way, it cannot be said that every violation of every law imperils public “peace” or “safety.” In 1791 (and today), violations of many laws do not threaten “war,” “disturbances,” “commotion,” “riots,” “terrour,” “danger,” or “hurt.” Blackstone catalogs numerous violations that do not threaten any such harms, including “cursing”;[ 46 ] refusing to pay assessments for “the repairs of sea banks and sea walls” and the “cleansing of rivers, public streams, ditches and other conduits”;[ 47 ] “retaining a man’s hired servant before his time is expired”;[ 48 ] an attorney’s failure to show up for a trial;[ 49 ] the unauthorized “solemniz[ing of a] marriage in any other place besides a church, or public chapel wherein banns have been usually published”;[ 50 ] “transporting and seducing our artists to settle abroad”;[ 51 ] engaging in the conduct of “a common scold”;[ 52 ] and “exercis[ing] a trade in any town, without having previously served as an apprentice for seven years.”[ 53 ] In contrast to these violations, Blackstone lists “offences against the public peace.” 4 Commentaries on the Laws of England 142–153 (1769). Those include: riotous assembling of 12 persons or more; unlawful hunting; anonymous threats and demands; destruction of public floodgates, locks, or sluices on a navigable river; public fighting; riots or unlawful assemblies; “tumultuous” petitioning; forcible entry or detainer; riding or “going armed” with dangerous or unusual weapons; spreading false news to “make discord between the king and nobility, or concerning any great man of the realm”; spreading “false and pretended” prophecies to disturb the peace; provoking breaches of the peace; and libel “to provoke . . . wrath, or expose [an individual] to public hatred, contempt, and ridicule.” Ibid. (emphasis deleted); see also McConnell, Freedom from Persecution 835–836. These offenses might inform what constitutes actual or threatened breaches of public peace or safety in the ordinary sense of those terms.[ 54 ] But the ordinary meaning of offenses that threaten public peace or safety must be stretched beyond the breaking point to encompass all violations of any law.[ 55 ] C That the free-exercise right included the right to certain religious exemptions is strongly supported by the practice of the Colonies and States. When there were important clashes between generally applicable laws and the religious practices of particular groups, colonial and state legislatures were willing to grant exemptions—even when the generally applicable laws served critical state interests. Oath exemptions are illustrative. Oath requirements were considered “indispensable” to civil society because they were thought to ensure that individuals gave truthful testimony and fulfilled commitments. McConnell, Origins 1467. Quakers and members of some other religious groups refused to take oaths, ibid. , and therefore a categorical oath requirement would have resulted in the complete exclusion of these Americans from important civic activities, such as testifying in court and voting, see ibid. Tellingly, that is not what happened. In the 1600s, Carolina allowed Quakers to enter a pledge rather than swearing an oath. Ibid. In 1691, New York permitted Quakers to give testimony after giving an affirmation. Ibid. Massachusetts did the same in 1743. Id., at 1467–1468. In 1734, New York also allowed Quakers to qualify to vote by making an affirmation, and in 1740, Georgia granted an exemption to Jews, allowing them to omit the phrase “ ‘on the faith of a Christian’ ” from the State’s naturalization oath. Id., at 1467. By 1789, almost all States had passed oath exemptions. Id. , at 1468. Some early State Constitutions and declarations of rights formally provided oath exemptions for religious objectors. For instance, the Maryland Declaration of Rights of 1776 declared that Quakers, Mennonites, and members of some other religious groups “ought to be allowed to make their solemn affirmation” instead of an oath. §36, in Cogan 18. Similarly, the Massachusetts Constitution of 1780 permitted Quakers holding certain government positions to decline to take the prescribed oath of office, allowing affirmations instead. Pt. II, ch. VI, Art. I, in id., at 22. The Federal Constitution likewise permits federal and state officials to make either an “Oath or Affirmation, to support this Constitution.” Art. VI, cl. 3 (emphasis added); see also Art. I, §3, cl. 6; Art. II, §1, cl. 8. Military conscription provides an even more revealing example. In the Colonies and later in the States, able-bodied men of a certain age were required to serve in the militia, see Heller , 554 U. S., at 595–596, but Quakers, Mennonites, and members of some other religious groups objected to militia service on religious grounds, see McConnell, Origins 1468. The militia was regarded as essential to the security of the State and the preservation of freedom, see Heller , 554 U. S., at 597–598, but colonial governments nevertheless granted religious exemptions, see McConnell, Origins 1468. Rhode Island, Maryland, North Carolina, and New Hampshire did so in the founding era. Ibid. In 1755, New York permitted a conscientious objector to obtain an exemption if he paid a fee or sent a substitute. Ibid. Massachusetts adopted a similar law two years later, and Virginia followed suit in 1776. Ibid. , and n. 297. The Continental Congress also granted exemptions to religious objectors because conscription would do “violence to their consciences.” Resolution of July 18, 1775, in 2 Journals of the Continental Congress, 1774–1789, p. 189 (W. Ford ed. 1905) (quoted in McConnell, Origins 1469, and n. 299). This decision is especially revealing because during that time the Continental Army was periodically in desperate need of soldiers,[ 56 ] the very survival of the new Nation often seemed in danger,[ 57 ] and the Members of Congress faced bleak personal prospects if the war was lost.[ 58 ] Yet despite these stakes, exemptions were granted. Colonies with established churches also permitted non-members to decline to pay special taxes dedicated to the support of ministers of the established church. McConnell, Origins 1469. Massachusetts and Connecticut exempted Baptists and Quakers in 1727. Ibid. Virginia provided exemptions to Huguenots in 1700, German Lutherans in 1730, and dissenters from the Church of England in 1776. Ibid. ; see also S. Cobb, The Rise of Religious Liberty in America 98, 492 (1902). Beginning in 1692, New Hampshire exempted those who could prove they were “ ‘conscientiously’ ” of a “ ‘different persuasion,’ ” regularly attended their own religious services, and contributed financially to their faith. McConnell , Origins 1469 . Various other religious exemptions were also provided. North Carolina and Maryland granted exemptions from the requirement that individuals remove their hats in court, a gesture that Quakers viewed as an impermissible showing of respect to a secular authority. Id. , at 1471–1472. And Rhode Island exempted Jews from some marriage laws. Id. , at 1471. In an effort to dismiss the significance of these legislative exemptions, it has been argued that they show only what the Constitution permits, not what it requires. City of Boerne , 521 U. S., at 541 (opinion of Scalia, J.). But legislatures provided those accommodations before the concept of judicial review took hold, and their actions are therefore strong evidence of the founding era’s understanding of the free-exercise right. See McConnell , Free Exercise Revisionism 1119. Cf. Heller , 554 U. S., at 600–603 (looking to state constitutions that preceded the adoption of the Second Amendment). D Defenders of Smith have advanced historical arguments of their own, but they are unconvincing, and in any event, plainly insufficient to overcome the ordinary meaning of the constitutional text. 1 One prominent argument points to language in some founding-era charters and constitutions prohibiting laws or government actions that were taken “for” or “on account” of religion. See City of Boerne , 521 U. S., at 538–539 (opinion of Scalia, J.). That phrasing, it is argued, reaches only measures that target religion, not neutral and generally applicable laws. This argument has many flaws. No such language appears in the Free Exercise Clause, and in any event, the argument rests on a crabbed reading of the words “for” or “on account of ” religion. As Professor McConnell has explained, “[i]f a member of the Native American Church is arrested for ingesting peyote during a religious ceremony, then he surely is molested ‘for’ or ‘on account of ’ his religious practice—even though the law under which he is arrested is neutral and generally applicable.” Freedom From Persecution 834. This argument also ignores the full text of many of the provisions on which it relies. Id., at 833–834. While some protect against government actions taken “for” or “on account of ” religion, they do not stop there. Instead, they go on to provide broader protection for religious liberty. See, e.g., Maryland Act Concerning Religion (1649), in Cogan 17 (guaranteeing residents not be “troubled . . . in the free exercise [of religion]”); New York Constitution (1777), in id. , at 26 (guaranteeing “the free Exercise and Enjoyment of religious Profession and Worship”). 2 Another argument advanced by Smith ’s defenders relies on the paucity of early cases “refusing to enforce a generally applicable statute because of its failure to make accommodation,” City of Boerne , 521 U. S., at 542 (opinion of Scalia, J.). If exemptions were thought to be constitutionally required, they contend, we would see many such cases. There might be something to this argument if there were a great many cases denying exemptions and few granting them, but the fact is that diligent research has found only a handful of cases going either way. Commentators have discussed the dearth of cases, and as they note, there are many possible explanations.[ 59 ] Early 19th century legislation imposed only limited restrictions on private conduct, and this minimized the chances of conflict between generally applicable laws and religious practices. The principal conflicts that arose—involving oaths, conscription, and taxes to support an established church—were largely resolved by state constitutional provisions and laws granting exemptions. And the religious demographics of the time decreased the likelihood of conflicts. The population was overwhelmingly Christian and Protestant, the major Protestant denominations made up the great bulk of the religious adherents,[ 60 ] and other than with respect to the issue of taxes to support an established church, it is hard to think of conflicts between the practices of the members of these denominations and generally applicable laws that a state legislature might have enacted. Members of minority religions are most likely to encounter such conflicts, and the largest minority group, the Quakers, who totaled about 10% of religious adherents,[ 61 ] had received exemptions for the practices that conflicted with generally applicable laws. As will later be shown, see infra , at 46–50, the small number of religious-exemption cases that occurred during the early 19th century involved members of what were then tiny religious groups—such as Catholics, Jews, and Covenanters.[ 62 ] Given the size of these groups, one would not expect a large number of cases. And where cases arose, the courts’ decisions may not have always been reported. Barclay, The Historical Origins of Judicial Religious Exemptions, 96 Notre Dame L. Rev. 55, 70 (2020). 3 When the body of potentially relevant cases is examined, they provide little support for Smith ’s interpretation of the free-exercise right. Not only are these decisions few in number, but they reached mixed results. In addition, some are unreasoned; some provide ambiguous explanations; and many of the cases denying exemptions were based on grounds that do not support Smith. The most influential early case granting an exemption was People v. Philips , 1 W. L. J. 109, 112–113 (Gen. Sess., N. Y. 1813), where the court held that a Catholic priest could not be compelled to testify about a confession. The priest’s refusal, the court reasoned, was protected by the state constitutional right to the free exercise of religion and did not fall within the exception for “acts of licentiousness” and “practices inconsistent with the peace or safety of th[e] State.”[ 63 ] This, of course, is exactly the understanding of the free-exercise right that is seen in the founding era State Constitutions. Although Philips was not officially reported, knowledge of the decision appears to have spread widely. Four years later, another New York court implicitly reaffirmed the principle Philips recognized but found the decision inapplicable because the Protestant minister who was called to testify did not feel a religious obligation to refuse. See Smith ’ s Case , 2 N. Y. City-Hall Recorder 77, 80, and n. (1817); McConnell, Origins 1505–1506; Walsh 40–41. In 1827, a South Carolina court relied on Philips as support for its decision to grant an exemption from a state law relied on to bar the testimony of a witness who denied a belief in punishment after death for testifying falsely, and the State’s newly constituted high court approved that opinion. Farnandis v. Henderson , 1 Carolina L. J. 202, 213, 214 (1827).[ 64 ] In Commonwealth v. Cronin , 2 Va. Cir. 488, 498, 500, 505 (1855), a Virginia court followed Philips and held that a priest’s free-exercise right required an exemption from the general common law rule compelling a witness to “disclose all he may know” when giving testimony. On the other side of the ledger, the most prominent opponent of exemptions was John Bannister Gibson of the Pennsylvania Supreme Court. Today, Gibson is best known for his dissent in Eakin v . Raub , 12 Serg. & Rawle 330, 355–356 (1825), which challenged John Marshall’s argument for judicial review in Marbury v . Madison , 1 Cranch 137 (1803). See McConnell, Origins 1507. Three years after Eakin , Gibson’s dissent in Commonwealth v. Lesher , 17 Serg. & Rawle 155 (Pa. 1828), advanced a related argument against decisions granting religious exemptions. Gibson agreed that the state constitutional provision protecting religious liberty conferred the right to do or forbear from doing any act “not prejudicial to the public weal,” but he argued that judges had no authority to override legislative judgments about what the public weal required. Id., at 160–161 (emphasis deleted). Three years later, he made a similar argument in dicta in Philips’s Executors v. Gratz , 2 Pen. & W. 412, 412–413 (Pa. 1831), where a Jewish plaintiff had taken a non-suit (agreed to a dismissal) in a civil case scheduled for trial on a Saturday. Gibson’s opinion for the Court set aside the non-suit on other grounds but rejected the plaintiff ’s religious objection to trial on Saturday. Id., at 416–417. He proclaimed that a citizen’s obligation to the State must always take precedence over any religious obligation, and he expressly registered disagreement with the New York court’s decision in Philips . Id., at 417. In South Carolina, an exemption claim was denied in State v. Willson , 13 S. C. L. 393, 394–397 (1823), where the court refused to exempt a member of the Covenanters religious movement from jury service. Because Covenanters opposed the Constitution on religious grounds, they refused to engage in activities, such as jury service and voting, that required an oath to support the Constitution or otherwise enlisted their participation in the Nation’s scheme of government.[ 65 ] It is possible to read the opinion in Willson as embodying something like the Smith rule—or as concluding that granting the exemption would have opened the floodgates and undermined public peace and safety. See 13 S. C. L., at 395 (“who could distinguish . . . between the pious asseveration of a holy man and that of an accomplished villain”). But if Willson is read as rejecting religious exemptions, South Carolina’s reconstituted high court reversed that position in Farnandis .[ 66 ] Other cases denying exemptions are even less helpful to Smith ’s defenders. Three decisions rejected challenges to Sunday closing laws by merchants who celebrated Saturday as the Sabbath, but at least two of these were based on the court’s conclusion that the asserted religious belief was unfounded. See City Council of Charleston v. Benjamin , 33 S. C. L. 508, 529 (1846) (“There is . . . no violation of the Hebrew’s religion, in requiring him to cease from labor on another day than his Sabbath, if he be left free to observe the latter according to his religion” (emphasis deleted)); Commonwealth v. Wolf , 3 Serg. & Rawle 47, 50, 51 (Pa. 1817) (“[T]he Jewish Talmud . . . asserts no such doctrine” and the objection was made “out of mere caprice”). That reasoning is contrary to a principle that Smith reaffirmed: “Repeatedly and in many different contexts, we have warned that courts must not presume to determine . . . the plausibility of a religious claim.” 494 U. S., at 887. A third Sunday closing law decision appears to rest at least in part on a similar ground. See Specht v. Commonwealth , 8 Pa. 312 (1848). The court observed that the merchant’s conscience rights might have been violated if his religion actually required him to work on Sunday, but the court concluded that the commandment to keep holy the Sabbath had never been understood to impose “an imperative obligation to fill up each day of the other six with some worldly employment.” Id ., at 326. Other cases cited as denying exemptions were decided on nebulous grounds. In Stansbury v . Marks , 2 Dall. 213 (Pa. 1793), a decision of the Pennsylvania Supreme Court, the case report in its entirety states: “In this cause (which was tried on Saturday, the 5th of April) the defendant offered Jonas Phillips, a Jew, as a witness; but he refused to be sworn, because it was his Sabbath. The Court, therefore, fined him £10; but the defendant, afterwards, waving the benefit of his testimony, he was discharged from the fine.” (Emphasis deleted.) What can be deduced from this cryptic summary? Was the issue mooted when the defendant waived the benefit of Phillips’s testimony? Who can tell? In Commonwealth v. Drake , 15 Mass. 161 (1818), the Supreme Judicial Court of Massachusetts summarily affirmed the conviction of a criminal defendant who was convicted after the trial court admitted the testimony of his fellow church members before whom he had confessed. The State argued that the defendant had voluntarily confessed, that his confession was not required by any “ecclesiastical rule,” and that he had confessed “not to the church” but “to his friends and neighbours.” Id. , at 162. Because the court provided no explanation of its decision, this case sheds no light on the understanding of the free-exercise right. All told, this mixed bag of antebellum decisions does little to support Smith , and extending the search past the Civil War does not advance Smith ’s cause. One of the objectives of the Fourteenth Amendment, it has been argued, was to protect the religious liberty of African-Americans in the South, where a combination of laws that did not facially target religious practice had been used to suppress religious exercise by slaves. See generally Lash, The Second Adoption of the Free Exercise Clause: Religious Exemptions Under the Fourteenth Amendment, 88 Nw. U. L. Rev. 1106 (1994). 4 Some have claimed that the drafting history of the Bill of Rights supports Smith . See Brief for First Amendment Scholars as Amici Curiae 10–11; Muñoz, Original Meaning 1085. But as Professor Philip Hamburger, one of Smith ’s most prominent academic defenders, has concluded, “[w]hat any of this [history] implies about the meaning of the Free Exercise Clause is speculative.” Religious Exemption 928. Here is the relevant history. The House debated a provision, originally proposed by Madison, that protected the right to bear arms but included language stating that “no person, religiously scrupulous, shall be compelled to bear arms.” 1 Annals of Cong. 749, 766 (1789); see also Muñoz, Original Meaning 1112. Some Members spoke in favor of the proposal,[ 67 ] others opposed it,[ 68 ] and in the end, after adding the words “in person” at the end of the clause, the House adopted it.[ 69 ] The Senate, however, rejected the proposal (for reasons not provided on the public record), id ., at 1116, and the House acceded to the deletion. Those who claim that this episode supports Smith argue that the House would not have found it necessary to include this proviso in the Second Amendment if it had thought that the Free Exercise Clause already protected conscientious objectors from conscription, Muñoz, Original Meaning 1120, but that conclusion is unfounded. Those who favored Madison’s language might have thought it necessary, not because the free-exercise right never required religious exemptions but because they feared that exemption from military service would be held to fall into the free-exercise right’s carveout for conduct that threatens public safety.[ 70 ] And of course, it could be argued that the willingness of the House to constitutionalize this exemption despite its potential effect on national security shows the depth of the Members’ commitment to the concept of religious exemptions. As for the Senate’s rejection of the proviso, we have often warned against drawing inferences from Congress’s failure to adopt a legislative proposal. See Schneidewind v. ANR Pipeline Co. , 485 U.S. 293 , 306 (1988) (“This Court generally is reluctant to draw inferences from Congress’ failure to act”); Brecht v. Abrahamson , 507 U.S. 619 , 632–633 (1993) (collecting cases). And in this instance, there are many possible explanations for what happened in the Senate. The rejection of the proviso could have been due to a general objection to religious exemptions, but it could also have been based on any of the following grounds: opposition to this particular exemption, the belief that conscientious objectors were already protected by the Free Exercise Clause, a belief that military service fell within the public safety carveout, or the view that Congress should be able to decide whether to grant or withhold such exemptions based on its assessment of what national security required at particular times. *  *  * In sum, based on the text of the Free Exercise Clause and evidence about the original understanding of the free-exercise right, the case for Smith fails to overcome the more natural reading of the text. Indeed, the case against Smith is very convincing. V That conclusion cannot end our analysis. “We will not overturn a past decision unless there are strong grounds for doing so,” Janus v. State, County, and Municipal Employees, 585 U. S. ___, ___ (2018) (slip op., at 34), but at the same time, stare decisis is “not an inexorable command.” Ibid. (internal quotation marks omitted). It “is at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions.” Agostini v. Felton , 521 U.S. 203 , 235 (1997). And it applies with “perhaps least force of all to decisions that wrongly denied First Amendment rights.” Janus , 585 U. S., at ___ (slip op., at 34); see also Federal Election Comm’n v. Wisconsin Right to Life, Inc. , 551 U.S. 449 , 500 (2007) (Scalia, J., concurring in part and concurring in judgment) (“This Court has not hesitated to overrule decisions offensive to the First Amendment (a fixed star in our constitutional constellation, if there is one)” (internal quotation marks omitted)); Citizens United v. Federal Election Comm’n , 558 U.S. 310 , 365 (2010) (overruling Austin v. Michigan Chamber of Commerce , 494 U.S. 652 (1990)); West Virginia Bd. of Ed. v. Barnette , 319 U.S. 624 , 642 (1943) (overruling Minersville School Dist. v . Gobitis , 310 U.S. 586 (1940)). In assessing whether to overrule a past decision that appears to be incorrect, we have considered a variety of factors, and four of those weigh strongly against Smith : its reasoning; its consistency with other decisions; the workability of the rule that it established; and developments since the decision was handed down. See Janus , 585 U. S., at ___–___ (slip op., at 34–35). No relevant factor, including reliance, weighs in Smith ’s favor. A Smith’s reasoning . As explained in detail above, Smith is a methodological outlier. It ignored the “normal and ordinary” meaning of the constitutional text, see Heller , 554 U. S., at 576, and it made no real effort to explore the understanding of the free-exercise right at the time of the First Amendment’s adoption. And the Court adopted its reading of the Free Exercise Clause with no briefing on the issue from the parties or amici . Laycock, 8 J. L. & Religion, at 101. Then there is Smith ’s treatment of precedent. It looked for precedential support in strange places, and the many precedents that stood in its way received remarkably rough treatment. Looking for a case that had endorsed its no-exemptions view, Smith turned to Gobitis , 310 U. S., at 586, a decision that Justice Scalia himself later acknowledged was “erroneous,” Wisconsin Right to Life , Inc ., 551 U. S., at 500–501 (opinion concurring in part). William Gobitas,[ 71 ] a 10-year-old fifth grader, and his 12-year-old sister Lillian refused to salute the flag during the Pledge of Allegiance because, along with other Jehovah’s Witnesses, they thought the salute constituted idolatry. 310 U. S., at 591–592.[ 72 ] William’s “teacher tried to force his arm up, but William held on to his pocket and successfully resisted.”[ 73 ] The Gobitas children were expelled from school, and the family grocery was boycotted.[ 74 ] This Court upheld the children’s expulsion because, in ringing rhetoric quoted by Smith , “[c]onscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.” 310 U. S., at 594; see also Smith , 494 U. S., at 879 (quoting this passage). This declaration was overblown when issued in 1940. (As noted, many religious exemptions had been granted by legislative bodies, and the 1940 statute instituting the peacetime draft continued that tradition by exempting conscientious objectors. Selective Training and Service Act, 54Stat. 885, 889.) By 1990, when Smith was handed down, the pronouncement flew in the face of nearly 40 years of Supreme Court precedent. But even if all that is put aside, Smith ’s recourse to Gobitis was surprising because the decision was overruled just three years later when three of the Justices in the majority had second thoughts. See Barnette , 319 U.S. 642; id., at 643–644 (Black and Douglas, JJ., concurring); id., at 644–646 (Murphy, J., concurring). Turning Gobitis ’s words on their head, Barnette held that students with religious objections to saluting the flag were indeed “relieved . . . from obedience to a general [rule] not aimed at the promotion or restriction of religious beliefs.” Gobitis , 310 U. S., at 594. After reviving Gobitis’ s anti-exemption rhetoric, Smith turned to Reynolds v. United States , 98 U.S. 145 , an 1879 decision upholding the polygamy conviction of a member of the Church of Jesus Christ of Latter-day Saints. Unlike Gobitis , Reynolds at least had not been overruled,[ 75 ] but the decision was not based on anything like Smith ’s interpretation of the Free Exercise Clause. It rested primarily on the proposition that the Free Exercise Clause protects beliefs, not conduct. 98 U. S., at 166–167. The Court had repudiated that distinction a half century before Smith was decided. See Cantwell , 310 U. S., at 303–304; Murdock v. Pennsylvania , 319 U.S. 105 , 110–111, 117 (1943). And Smith itself agreed! See 494 U. S., at 877. The remaining pre- Sherbert cases cited by Smith actually cut against its interpretation. None was based on the rule that Smith adopted. Although these decisions ended up denying exemptions, they did so on other grounds. In Prince v. Massachusetts , 321 U.S. 158 (1944), where a Jehovah’s Witness who enlisted a child to distribute religious literature was convicted for violating a state child labor law, the decision was based on the Court’s assessment of the strength of the State’s interest. Id ., at 159–160, 162, 169–170; see also Yoder , 406 U. S., at 230–231 (describing the Prince Court’s rationale). In Braunfeld v. Brown , 366 U.S. 599 , 601, 609 (1961) (plurality opinion), which rejected a Jewish merchant’s challenge to Pennsylvania’s Sunday closing laws, the Court balanced the competing interests. The Court attached diminished weight to the burden imposed by the law (because it did not require work on Saturday), id., at 606,[ 76 ] and on the other side of the balance, the Court accepted the Commonwealth’s view that the public welfare was served by providing a uniform day of rest, id ., at 608–609; see Sherbert , 374 U. S., at 408–409 (discussing Braunfeld ). When Smith came to post- Sherbert cases, the picture did not improve. First, in order to place Sherbert , Hobbie , and Thomas in a special category reserved for cases involving unemployment compensation, an inventive transformation was required. None of those opinions contained a hint that they were limited in that way. And since Smith itself involved the award of unemployment compensation benefits under a scheme that allowed individualized exemptions, it is hard to see why that case did not fall into the same category. The Court tried to escape this problem by framing Alfred Smith’s and Galen Black’s free-exercise claims as requests for exemptions from the Oregon law criminalizing the possession of peyote, see 494 U. S., at 876, but neither Smith nor Black was prosecuted for that offense even though the State was well aware of what they had done. The State had the discretion to decline prosecution based on the facts of particular cases, and that is presumably what it did regarding Smith and Black. Why this was not sufficient to bring the case within Smith ’s rule about individualized exemptions is unclear. See McConnell, Free Exercise Revisionism 1124. Having pigeon-holed Sherbert , Hobbie , and Thomas as unemployment compensation decisions, Smith still faced problems. For one thing, the Court had previously applied the Sherbert test in many cases not involving unemployment compensation, including Hernandez v. Commissioner , 490 U.S. 680 (1989) (disallowance of tax deduction); Lee , 455 U.S. 252 (payment of taxes); and Gillette, 401 U.S. 437 (denial of conscientious objector status to person with religious objection to a particular war). To get these cases out of the way, Smith claimed that, because they ultimately found no free-exercise violations, they merely “ purported to apply the Sherbert test.” 494 U. S., at 883 (emphasis added). This was a curious observation. In all those cases, the Court invoked the Sherbert test but found that it did not require relief. See Hernandez , 490 U. S., at 699; Lee , 455 U. S., at 257–260; Gillette , 401 U. S., at 462 . Was the Smith Court questioning the sincerity of these earlier opinions? If not, then in what sense did those decisions merely “purport” to apply Sherbert ? Finally, having swept all these cases from the board, Smith still faced at least one big troublesome precedent: Yoder . Yoder not only applied the Sherbert test but held that the Free Exercise Clause required an exemption totally unrelated to unemployment benefits. 406 U. S., at 220–221, 236. To dispose of Yoder , Smith was forced to invent yet another special category of cases, those involving “hybrid-rights” claims. Yoder fell into this category because it implicated both the Amish parents’ free-exercise claim and a parental-rights claim stemming from Pierce v . Society of Sisters , 268 U.S. 510 (1925). See Smith , 494 U. S., at 881. And in such hybrid cases, Smith held, the Sherbert test survived. See 494 U. S., at 881–882. It is hard to see the justification for this curious doctrine. The idea seems to be that if two independently insufficient constitutional claims join forces they may merge into a single valid hybrid claim, but surely the rule cannot be that asserting two invalid claims, no matter how weak, is always enough. So perhaps the doctrine requires the assignment of a numerical score to each claim. If a passing grade is 70 and a party advances a free-speech claim that earns a grade of 40 and a free-exercise claim that merits a grade of 31, the result would be a (barely) sufficient hybrid claim. Such a scheme is obviously unworkable and has never been recognized outside of Smith . And then there is the problem that the hybrid-rights exception would largely swallow up Smith ’s general rule. A great many claims for religious exemptions can easily be understood as hybrid free-exercise/free-speech claims. Take the claim in Smith itself. To members of the Native American Church, the ingestion of peyote during a religious ceremony is a sacrament. When Smith and Black participated in this sacrament, weren’t they engaging in a form of expressive conduct? Their ingestion of peyote “communicate[d], in a rather dramatic way, [their] faith in the tenets of the Native American Church,” and the State’s prohibition of that practice “interfered with their ability to communicate this message” in violation of the Free Speech Clause. McConnell, Free Exercise Revisionism 1122. And, “if a hybrid claim is one in which a litigant would actually obtain an exemption from a formally neutral, generally applicable law under another constitutional provision, then there would have been no reason for the Court in [the so-called] hybrid cases to have mentioned the Free Exercise Clause at all.” Lukumi , 508 U. S., at 566–567 (opinion of Souter, J.); see also Laycock, 8 J. L. & Religion, at 106 (noting that Smith “reduces the free exercise clause to a cautious redundancy, relevant only to ‘hybrid’ cases”). It is telling that this Court has never once accepted a “hybrid rights” claim in the more than three decades since Smith . In addition to all these maneuvers—creating special categories for unemployment compensation cases, cases involving individualized exemptions, and hybrid-rights cases— Smith ignored the multiple occasions when the Court had directly repudiated the very rule that Smith adopted. See supra, at 13–14. Smith ’s rough treatment of prior decisions diminishes its own status as a precedent. B Consistency with other precedents . Smith is also discordant with other precedents. Smith did not overrule Sherbert or any of the other cases that built on Sherbert from 1963 to 1990, and for the reasons just discussed, Smith is tough to harmonize with those precedents. The same is true about more recent decisions. In Hosanna-Tabor Evangelical Lutheran Church and School v . EEOC , 565 U.S. 171 (2012), the Court essentially held that the First Amendment entitled a religious school to a special exemption from the requirements of the Americans with Disabilities Act of 1990 (ADA), 104Stat. 327, 42 U. S. C. §12101 et seq . When the school discharged a teacher, she claimed that she had been terminated because of disability. 565 U. S., at 178–179. Since the school considered her a “minister” and she provided religious instruction for her students, the school argued that her discharge fell within the so-called “ministerial exception” to generally applicable employment laws. Id., at 180. The Equal Employment Opportunity Commission maintained that Smith precluded recognition of this exception because “the ADA’s prohibition on retaliation, like Oregon’s prohibition on peyote use, is a valid and neutral law of general applicability.” Id. , at 190; see id. , at 189–190. We nevertheless held that the exception applied. Id., at 190.[ 77 ] Similarly, in Our Lady of Guadalupe School v. Morrissey-Berru , 591 U. S. ___, ___–___ (2020) (slip op., at 21–22), we found that other religious schools were entitled to similar exemptions from both the ADA and the Age Discrimination in Employment Act of 1967. There is also tension between Smith and our opinion in Masterpiece Cakeshop, Ltd. v . Colorado Civil Rights Comm’n, 584 U. S. ___ (2018). In that case, we observed that “[w]hen it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion.” Id ., at ___ (slip op., at 10). The clear import of this observation is that such a member of the clergy would be entitled to a religious exemption from a state law restricting the authority to perform a state-recognized marriage to individuals who are willing to officiate both opposite-sex and same-sex weddings. Other inconsistencies exist. Smith declared that “a private right to ignore generally applicable laws” would be a “constitutional anomaly,” 494 U. S., at 886, but this Court has often permitted exemptions from generally applicable laws in First Amendment cases. For instance, in Boy Scouts of America v. Dale , 530 U.S. 640 , 656 (2000), we granted the Boy Scouts an exemption from an otherwise generally applicable state public accommodations law. In Hurley v . Irish-American Gay, Lesbian and Bisexual Group of Boston , Inc ., 515 U.S. 557 , 573 (1995), parade sponsors’ speech was exempted from the requirements of a similar law. The granting of an exemption from a generally applicable law is tantamount to a holding that a law is unconstitutional as applied to a particular set of facts, see Barclay & Rienzi, Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions, 59 Boston College L. Rev. 1595, 1611 (2018) , and ca ses holding generally applicable laws unconstitutional as applied are unremarkable. “[T]he normal rule is that partial, rather than facial, invalidation is the required course, such that a statute may . . . be declared invalid to the extent that it reaches too far, but otherwise left intact.” Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320 , 329 (2006) (internal quotation marks omitted; emphasis added). Thus, in Brown v. Socialist Workers ’74 Campaign Comm. (Ohio) , 459 U.S. 87 (1982), we held that a law requiring disclosure of campaign contributions and expenditures could not be “constitutionally applied” to a minor party whose members and contributors would face “threats, harassment or reprisals.” Id. , at 101–102. Cf. NAACP v . Alabama ex rel. Patterson , 357 U.S. 449 , 466 (1958) (exempting the NAACP from a disclosure order entered to purportedly investigate compliance with a generally applicable statute). In Hustler Magazine, Inc. v. Falwell , 485 U.S. 46 , 56 (1988), and Snyder v . Phelps , 562 U.S. 443 , 459 (2011), the Court held that an established and generally applicable tort claim (the intentional infliction of emotional distress) could not constitutionally be applied to the particular expression at issue. Similarly, breach-of-the-peace laws, although generally valid, have been held to violate the Free Speech Clause under certain circumstances. See Cohen v . California , 403 U.S. 15 , 16, 26 (1971); Cantwell , 310 U. S., at 300, 311; see also Bartnicki v. Vopper , 532 U.S. 514 , 517, 535 (2001) (respondents not liable under law prohibiting disclosure of illegally intercepted communications because their speech was protected by the First Amendment); United States v. Treasury Employees , 513 U.S. 454 , 477 (1995) (respondents not subject to the honoraria ban because it would violate their First Amendment rights); United States v. Grace , 461 U.S. 171 , 175, 179, 183 (1983) (respondents engaging in expressive conduct on public sidewalks not subject to law generally regulating conduct on Supreme Court grounds). Finally, Smith ’s treatment of the free-exercise right is fundamentally at odds with how we usually think about liberties guaranteed by the Bill of Rights. As Justice Jackson famously put it, “[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials.” Barnette , 319 U. S., at 638. Smith , by contrast, held that protection of religious liberty was better left to the political process than to courts. 494 U. S., at 890. In Smith ’s view, the Nation simply could not “afford the luxury” of protecting the free exercise of religion from generally applicable laws. Id. , at 888. Under this interpretation, the free exercise of religion does not receive the judicial protection afforded to other, favored rights. C Workability . One of Smith ’s supposed virtues was ease of application, but things have not turned out that way. Instead, at least four serious problems have arisen and continue to plague courts when called upon to apply Smith . 1 “Hybrid-rights” cases . The “hybrid rights” exception, which was essential to distinguish Yoder , has baffled the lower courts. They are divided into at least three camps. See Combs v. Homer-Center School Dist. , 540 F.3d 231, 244–247 (CA3 2008) (describing Circuit split). Some courts have taken the extraordinary step of openly refusing to follow this part of Smith ’s interpretation. The Sixth Circuit was remarkably blunt: “[H]old[ing] that the legal standard under the Free Exercise Clause depends on whether a free-exercise claim is coupled with other constitutional rights . . . is completely illogical.” Kissinger v . Board of Trustees of Ohio State Univ. , 5 F.3d 177, 180 (1993). The Second and Third Circuits have taken a similar approach. See Leebaert v. Harrington , 332 F.3d 134 , 144 (CA2 2003) (“We . . . can think of no good reason for the standard of review to vary simply with the number of constitutional rights that the plaintiff asserts have been violated”); Knight v . Connecticut Dept . of Pub. Health , 275 F.3d 156 , 167 (CA2 2001); Combs , 540 F. 3d, at 247 (“Until the Supreme Court provides direction, we believe the hybrid-rights theory to be dicta”). A second camp holds that the hybrid-rights exception applies only when a free-exercise claim is joined with some other independently viable claim. See Archdiocese of Washington v. WMATA , 897 F.3d 314, 331 (CADC 2018) (A “hybrid rights claim . . . requires independently viable free speech and free exercise claims”); Gary S. v. Manchester School Dist. , 374 F.3d 15 , 19 (CA1 2004) (adopting District Court’s reasoning that “the [hybrid-rights] exception can be invoked only if the plaintiff has joined a free exercise challenge with another independently viable constitutional claim,” 241 F. Supp. 2d 111 , 121 (NH 2003)); Brown v. Hot, Sexy and Safer Productions , 68 F.3d 525 , 539 (CA1 1995). But this approach essentially makes the free-exercise claim irrelevant. See Axson-Flynn v. Johnson , 356 F.3d 1277 , 1296–1297 (CA10 2004) (“[I]t makes no sense to adopt a strict standard that essentially requires a successful companion claim because such a test would make the free exercise claim unnecessary”); see also Lukumi , 508 U. S., at 567 (opinion of Souter, J.) (making the same point). The third group requires that the non-free-exercise claim be “colorable.” See Cornerstone Christian Schools v. University Interscholastic League , 563 F.3d 127, 136, n. 8 (CA5 2009); San Jose Christian College v. Morgan Hill , 360 F.3d 1024 , 1032–1033 (CA9 2004); Axson-Flynn, 356 F. 3d, at 1295–1297. But what that means is obscure. See, e.g., id ., at 1295 (referring to “helpful” analogies such as the “ ‘likelihood of success on the merits’ standard for preliminary injunctions” or the pre-Antiterrorism and Effective Death Penalty Act standard for obtaining an evidentiary hearing, i.e. , a “ ‘colorable showing of factual innocence’ ”).[ 78 ] It is rare to encounter a holding of this Court that has so thoroughly stymied or elicited such open derision from the Courts of Appeals. 2 Rules that “target” religion . Post- Smith cases have also struggled with the task of determining whether a purportedly neutral rule “targets” religious exercise or has the restriction of religious exercise as its “object.” Lukumi , 508 U. S., at 534; Smith , 494 U. S., at 878. A threshold question is whether “targeting” calls for an objective or subjective inquiry. Must “targeting” be assessed based solely on the terms of the relevant rule or rules? Or can evidence of the rulemakers’ motivation be taken into account? If subjective motivations may be considered, does it matter whether the challenged state action is an adjudication, the promulgation of a rule, or the enactment of legislation? Should courts consider the motivations of only the officials who took the challenged action, or may they also take into account comments by superiors and others in a position of influence? And what degree of hostility to religion or a religious group is required to prove “targeting”? The genesis of this problem was Smith ’s holding that a rule is not neutral “if prohibiting the exercise of religion” is its “object.” 494 U. S., at 878. Smith did not elaborate on what that meant, and later in Lukumi , which concerned city ordinances that burdened the practice of Santeria, 508 U. S., at 525–528, Justices in the Smith majority adopted different interpretations. Justice Scalia and Chief Justice Rehnquist took the position that the “object” of a rule must be determined by its terms and that evidence of the rulemakers’ motivation should not be considered. 508 U. S., at 557–559. This interpretation had the disadvantage of allowing skillful rulemakers to target religious exercise by devising a facially neutral rule that applies to both the targeted religious conduct and a slice of secular conduct that can be burdened without eliciting unacceptable opposition from those whose interests are affected. The alternative to this approach takes courts into the difficult business of ascertaining the subjective motivations of rulemakers. In Lukumi , Justices Kennedy and Stevens took that path and relied on numerous statements by council members showing that their object was to ban the practice of Santeria within the city’s borders. Id., at 540–542. Thus, Lukumi left the meaning of a rule’s “object” up in the air. When the issue returned in Masterpiece Cakeshop , the question was only partially resolved. Holding that the Colorado Civil Rights Commission violated the free-exercise rights of a baker who refused for religious reasons to create a cake for a same-sex wedding, the Court pointed to disparaging statements made by commission members, and the Court noted that these comments, “by an adjudicatory body deciding a particular case,” “were made in a very different context” from the remarks by the council members in Lukumi . Masterpiece Cakeshop, 584 U. S., at ___ (slip op., at 14). That is as far as this Court’s decisions have gone on the question of targeting, and thus many important questions remain open. The present case highlights two—specifically, which officials’ motivations are relevant and what degree of disparagement must be shown to establish unconstitutional targeting. In Masterpiece Cakeshop , the commissioners’ statements—comparing the baker’s actions to the Holocaust and slavery and suggesting that his beliefs were just an excuse for bigotry—went too far. Id., at ___–___ (slip op., at 12–14). But what about the comments of Philadelphia officials in this case? The city council labeled CSS’s policy “discrimination that occurs under the guise of religious freedom.” App. to Pet. for Cert. 147a. The mayor had said that the Archbishop’s actions were not “Christian,” and he once called on the Pope “to kick some ass here.” Id. , at 173a, 177a–178a. In addition, the commissioner of the Department of Human Services (DHS), who serves at the mayor’s pleasure,[ 79 ] disparaged CSS’s policy as out of date and out of touch with Pope Francis’s teachings.[ 80 ] The Third Circuit found this evidence insufficient. Although the mayor conferred with the DHS commissioner both before and after her meeting with CSS representatives, the mayor’s remarks were disregarded because there was no evidence “that he played a direct role, or even a significant role, in the process.” 922 F. 3d, at 157 (emphasis added). The city council’s suggestion that CSS’s religious liberty claim was a “guise” for discrimination was found to “fal[l] into [a] grey zone,” and the commissioner’s debate with a CSS representative about up-to-date Catholic teaching, which “some might think . . . improper” “if taken out of context” was “best viewed as an effort to reach common ground with [CSS] by appealing to an authority within their shared religious tradition.” Ibid . One may agree or disagree with the Third Circuit’s characterization and evaluation of the statements of the City officials, but the court’s analysis highlights the extremely impressionistic inquiry that Smith ’s targeting requirement may entail. Confusion and disagreement about “targeting” have surfaced in other cases. Recently in Roman Catholic Diocese of Brooklyn v . Cuomo , 592 U. S. ___ (2020) ( per curiam ), there were conflicting views about comments made by the Governor of New York. On the day before he severely restricted religious services in Brooklyn, the Governor “said that if the ‘ultra-Orthodox [Jewish] community’ would not agree to enforce the rules, ‘then we’ll close the institutions down.’ ” Agudath Israel of America v. Cuomo , 980 F.3d 222, 229 (CA2 2020)  (Park, J., dissenting). A dissenting judge on the Second Circuit thought the Governor had crossed the line, ibid. , and we ultimately enjoined enforcement of the rules, Roman Catholic Diocese , 592 U. S., at ___. But two Justices who dissented found the Governor’s comments inconsequential. Id., at ___–___ (slip op., at 4–5) (opinion of Sotomayor, J., joined by Kagan, J.). In Stormans, Inc. v. Wiesman , 579 U. S. ___ (2016) (denying certiorari), there was similar disagreement. That case featured strong evidence that pro-life Christian pharmacists who refused to dispense emergency contraceptives were the object of a new rule requiring every pharmacy to dispense every Food and Drug Administration-approved drug. A primary drafter of the rule all but admitted that the rule was aimed at these pharmacists, and the Governor took unusual steps to secure adoption of the rule. Stormans, Inc. v. Selecky , 854 F. Supp. 2d 925, 937–943 (WD Wash. 2012). After a 12-day trial, the District Court found that Christian pharmacists had been targeted, id., at 966, 987, but the Ninth Circuit refused to accept that finding, Stormans, Inc. , 794 F.3d 1064, 1079 (2015). Compare Stormans, Inc. , 579 U. S., at ___–___, and n. 3 (Alito, J., joined by Roberts, C. J., and Thomas, J., dissenting from denial of certiorari) (slip op., at 8–9, and n. 3) (questioning Ninth Circuit’s finding). Decisions of the lower courts on the issue of targeting remain in disarray. Compare F. F. v. State , 66 Misc. 3d 467, 479–482, 114 N. Y. S. 3d 852, 865–867 (2019) (declining to consider individual legislators’ comments); Tenafly Eruv Assn., Inc. v. Tenafly , 309 F.3d 144 , 168, n. 30 (CA3 2002) (declining to reach issue), with Commack Self-Service Kosher Meats, Inc. v. Hooker , 680 F.3d 194, 211 (CA2 2012) (considering legislative history); St. John’s United Church of Christ v. Chicago , 502 F.3d 616, 633 (CA7 2007) (“[W]e must look at . . . the ‘historical background of the decision under challenge’ ” (quoting Lukumi , 508 U. S., at 540)); Children’s Healthcare Is a Legal Duty, Inc. v. Min De Parle , 212 F.3d 1084 , 1090 (CA8 2000) (targeting can be evidenced by legislative history). 3 The nature and scope of exemptions . There is confusion about the meaning of Smith ’s holding on exemptions from generally applicable laws. Some decisions apply this special rule if multiple secular exemptions are granted. See, e.g., Horen v. Commonwealth , 23 Va. App. 735, 743–744, 479 S.E.2d 553, 557 (1997); Rader v. Johnston , 924 F. Supp. 1540 , 1551–1553 (Neb. 1996). Others conclude that even one secular exemption is enough. See, e.g., Midrash Sephardi, Inc. v. Surfside , 366 F.3d 1214 , 1234–1235 (CA11 2004); Fraternal Order of Police Newark Lodge No. 12 v. Newark , 170 F.3d 359 , 365 (CA3 1999). And still others have applied the rule where the law, although allowing no exemptions on its face, was widely unenforced in cases involving secular conduct. See, e.g., Tenafly Eruv Assn. , 309 F. 3d, at 167–168. 4 Identifying appropriate comparators . To determine whether a law provides equal treatment for secular and religious conduct, two steps are required. First, a court must identify the secular conduct with which the religious conduct is to be compared. Second, the court must determine whether the State’s reasons for regulating the religious conduct apply with equal force to the secular conduct with which it is compared. See Lukumi , 508 U. S., at 543. In Smith , this inquiry undoubtedly seemed straightforward: The secular conduct and the religious conduct prohibited by the Oregon criminal statute were identical. But things are not always that simple. Cases involving rules designed to slow the spread of COVID–19 have driven that point home. State and local rules adopted for this purpose have typically imposed different restrictions for different categories of activities. Sometimes religious services have been placed in a category with certain secular activities, and sometimes religious services have been given a separate category of their own. To determine whether COVID–19 rules provided neutral treatment for religious and secular conduct, it has been necessary to compare the restrictions on religious services with the restrictions on secular activities that present a comparable risk of spreading the virus, and identifying the secular activities that should be used for comparison has been hotly contested. In South Bay United Pentecostal Church v . Newsom , 590 U. S. ___ (2020), where the Court refused to enjoin restrictions on religious services, The Chief Justice’s concurrence likened religious services to lectures, concerts, movies, sports events, and theatrical performances. Id., at ___ (slip op., at 2). The dissenters, on the other hand, focused on “supermarkets, restaurants, factories, and offices.” Id., at ___ (opinion of Kavanaugh, J., joined by Thomas and Gorsuch, JJ.) (slip op., at 3). In Calvary Chapel Dayton Valley v . Sisolak , 591 U. S. ___ (2020), Nevada defended a rule imposing severe limits on attendance at religious services and argued that houses of worship should be compared with “movie theaters, museums, art galleries, zoos, aquariums, trade schools, and technical schools.” Response to Emergency Application for Injunction, O. T. 2019, No. 19A1070, pp. 7, 14–15. Members of this Court who would have enjoined the Nevada rule looked to the State’s more generous rules for casinos, bowling alleys, and fitness facilities. 591 U. S., at ___–___ (Alito, J., joined by Thomas and Kavanaugh, JJ., dissenting) (slip op., at 6–7). In Roman Catholic Diocese of Brooklyn , 592 U. S. ___, Justices in the majority compared houses of worship with large retail establishments, factories, schools, liquor stores, bicycle repair shops, and pet shops, id., at ___ (slip op., at 3); id. , at ___ (Gorsuch, J., concurring) (slip op., at 2), id., at ___ (Kavanaugh, J., concurring) (slip op., at 2), while dissenters cited theaters and concert halls, id., at ___ (opinion of Sotomayor, J., joined by Kagan, J.) (slip op., at 2). In Danville Christian Academy, Inc. v . Beshear , 592 U. S. ___ (2020), the District Court enjoined enforcement of an executive order that compelled the closing of a religiously affiliated school, reasoning that the State permitted pre-schools, colleges, and universities to stay open and also allowed attendance at concerts and lectures. Danville Christian Academy, Inc. v . Beshear , ___ F. Supp. 3d ___, 2020 WL 6954650, *4 (ED Ky., Nov. 25, 2020). The Sixth Circuit reversed, concluding that the rule was neutral and generally applicable because it applied to all elementary and secondary schools, whether secular or religious. Kentucky ex rel. Danville Christian Academy, Inc. v . Beshear , 981 F.3d 505, 509 (2020). Much of Smith ’s initial appeal was likely its apparent simplicity. Smith seemed to offer a relatively simple and clear-cut rule that would be easy to apply. Experience has shown otherwise. D Subsequent developments . Developments since Smith provide additional reasons for changing course. The Smith majority thought that adherence to Sherbert would invite “anarchy,” 494 U. S., at 888, but experience has shown that this fear was not well founded. Both RFRA and RLUIPA impose essentially the same requirements as Sherbert , and we have observed that the courts are well “up to the task” of applying that test. Gonzales v. O Centro Espírita Beneficente União do Vegetal , 546 U.S. 418 , 436 (2006). See also Cutter v . Wilkinson , 544 U.S. 709 , 722 (2005) (noting “no cause to believe” the test could not be “applied in an appropriately balanced way”). Another significant development is the subsequent profusion of studies on the original meaning of the Free Exercise Clause. When Smith was decided, the available scholarship was thin, and the Court received no briefing on the subject. Since then, scholars have explored the subject in great depth.[ 81 ] *  *  * Multiple factors strongly favor overruling Smith . Are there countervailing factors? E None is apparent. Reliance is often the strongest factor favoring the retention of a challenged precedent, but no strong reliance interests are cited in any of the numerous briefs urging us to preserve Smith . Indeed, the term is rarely even mentioned. All that the City has to say on the subject is that overruling Smith would cause “substantial regulatory . . . disruption” by displacing RFRA, RLUIPA, and related state laws, Brief for City Respondents 51 (internal quotation marks omitted), but this is a baffling argument. How would overruling Smith disrupt the operation of laws that were enacted to abrogate Smith ? One of the City’s amici , the New York State Bar Association, offers a different reliance argument. It claims that some individuals, relying on Smith , have moved to jurisdictions with anti-discrimination laws that do not permit religious exemptions. Brief for New York State Bar Association as Amicus Curiae 11. The bar association does not cite any actual examples of individuals who fall into this category, and there is reason to doubt that many actually exist. For the hypothesized course of conduct to make sense, all of the following conditions would have to be met. First, it would be necessary for the individuals in question to believe that a religiously motivated party in the jurisdiction they left or avoided might engage in conduct that harmed them. Second, this conduct would have to be conduct not already protected by Smith in that it (a) did not violate a generally applicable state law, (b) that law did not allow individual exemptions, and (c) there was insufficient proof of religious targeting. Third, the feared conduct would have to fall outside the scope of RLUIPA. Fourth, the conduct, although not protected by Smith , would have to be otherwise permitted by local law, for example, through a state version of RFRA. Fifth, this fear of harm at the hands of a religiously motivated actor would have to be a but-for cause of the decision to move. Perhaps there are individuals who fall into the category that the bar association hypothesizes, but we should not allow violations of the Free Exercise Clause in perpetuity based on such speculation. Indeed, even if more substantial reliance could be shown, Smith ’s dubious standing would weigh against giving this factor too much weight. Smith has been embattled since the day it was decided, and calls for its reexamination have intensified in recent years. See Masterpiece Cakeshop, 584 U. S., at ___ (Gorsuch, J., joined by Alito, J., concurring) (slip op., at 1); Kennedy , 586 U. S., at ___–___ (Alito, J., joined by Thomas, Gorsuch, and Kavanaugh, JJ., concurring in denial of certiorari) (slip op., at 5–6); City of Boerne 521 U. S., at 566 (Breyer, J., dissenting) (“[T]he Court should direct the parties to brief the question whether [ Smith ] was correctly decided”); id. , at 565 (O’Connor, J., joined by Breyer, J., dissenting) (“[I]t is essential for the Court to reconsider its holding in Smith ”); Lukumi , 508 U. S., at 559 (Souter, J., concurring in part and concurring in judgment) (“[I]n a case presenting the issue, the Court should reexamine the rule Smith declared”). Thus, parties have long been on notice that the decision might soon be reconsidered. See Janus, 585 U. S., at ___ (slip op., at 45). *  *  * Smith was wrongly decided. As long as it remains on the books, it threatens a fundamental freedom. And while precedent should not lightly be cast aside, the Court’s error in Smith should now be corrected. VI A If Smith is overruled, what legal standard should be applied in this case? The answer that comes most readily to mind is the standard that Smith replaced: A law that imposes a substantial burden on religious exercise can be sustained only if it is narrowly tailored to serve a compelling government interest. Whether this test should be rephrased or supplemented with specific rules is a question that need not be resolved here because Philadelphia’s ouster of CSS from foster care work simply does not further any interest that can properly be protected in this case. As noted, CSS’s policy has not hindered any same-sex couples from becoming foster parents, and there is no threat that it will do so in the future. CSS’s policy has only one effect: It expresses the idea that same-sex couples should not be foster parents because only a man and a woman should marry. Many people today find this idea not only objectionable but hurtful. Nevertheless, protecting against this form of harm is not an interest that can justify the abridgment of First Amendment rights. We have covered this ground repeatedly in free speech cases. In an open, pluralistic, self-governing society, the expression of an idea cannot be suppressed simply because some find it offensive, insulting, or even wounding. See Matal v. Tam , 582 U. S. ___, ___–___ (2017) (slip op., at 1–2) (“Speech may not be banned on the ground that it expresses ideas that offend”); Hurley , 515 U. S., at 579 (“[T]he law . . . is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government”); Johnson , 491 U. S., at 414 (“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable”); FCC v. Pacifica Foundation , 438 U.S. 726 , 745 (1978) (opinion of Stevens, J.) (“[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection”); Street v. New York , 394 U.S. 576 , 592 (1969) (“[T]he public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers”); Cf. Coates v. Cincinnati , 402 U.S. 611 , 615 (1971) (“Our decisions establish that mere public intolerance or animosity cannot be the basis for abridgment of . . . constitutional freedoms”). The same fundamental principle applies to religious practices that give offense. The preservation of religious freedom depends on that principle. Many core religious beliefs are perceived as hateful by members of other religions or nonbelievers. Proclaiming that there is only one God is offensive to polytheists, and saying that there are many gods is anathema to Jews, Christians, and Muslims. Declaring that Jesus was the Son of God is offensive to Judaism and Islam, and stating that Jesus was not the Son of God is insulting to Christian belief. Expressing a belief in God is nonsense to atheists, but denying the existence of God or proclaiming that religion has been a plague is infuriating to those for whom religion is all-important. Suppressing speech—or religious practice—simply because it expresses an idea that some find hurtful is a zero-sum game. While CSS’s ideas about marriage are likely to be objectionable to same-sex couples, lumping those who hold traditional beliefs about marriage together with racial bigots is insulting to those who retain such beliefs. In Obergefell v . Hodges, 576 U.S. 644 (2015), the majority made a commitment. It refused to equate traditional beliefs about marriage, which it termed “decent and honorable,” id ., at 672, with racism, which is neither. And it promised that “religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.” Id ., at 679. An open society can keep that promise while still respecting the “dignity,” “worth,” and fundamental equality of all members of the community. Masterpiece Cakeshop , 584 U. S., at ___ (slip op., at 9). B One final argument must be addressed. Philadelphia and many of its amici contend that preservation of the City’s policy is not dependent on Smith. They argue that the City is simply asserting the right to control its own internal operations, and they analogize CSS to either a City employee or a contractor hired to perform an exclusively governmental function. This argument mischaracterizes the relationship between CSS and the City. The members of CSS’s staff are not City employees; the power asserted by the City goes far beyond a refusal to enter into a contract; and the function that CSS and other private foster care agencies have been performing for decades has not historically been an exclusively governmental function. See, e.g., Leshko v. Servis , 423 F.3d 337 , 343–344 (CA3 2005) (“No aspect of providing care to foster children in Pennsylvania has ever been the exclusive province of the government”); Rayburn v. Hogue , 241 F.3d 1341 , 1347 (CA11 2001) (acknowledging that foster care is not traditionally an exclusive state prerogative); Milburn v. Anne Arundel Cty. Dept. of Social Servs. , 871 F.2d 474, 479 (CA4 1989) (same); Malachowski v. Keene , 787 F.2d 704, 711 (CA1 1986) (same); see also Ismail v. County of Orange , 693 Fed. Appx. 507, 512 (CA9 2017) (concluding that foster parents were not state actors). On the contrary, States and cities were latecomers to this field, and even today, they typically leave most of the work to private agencies. The power that the City asserts is essentially the power to deny CSS a license to continue to perform work that it has carried out for decades and that religious groups have performed since time immemorial. Therefore, the cases that provide the basis for the City’s argument—such as Garcetti v. Ceballos , 547 U.S. 410 (2006), and Board of Comm’rs, Wabounsee Cty . v. Umbehr , 518 U.S. 668 (1996)—are far afield. A government cannot “reduce a group’s First Amendment rights by simply imposing a licensing requirement.” National Institute of Family and Life Advocates v. Becerra , 585 U. S. ___, ___ (2018) (slip op., at 14). *  *  * For all these reasons, I would overrule Smith and reverse the decision below. Philadelphia’s exclusion of CSS from foster care work violates the Free Exercise Clause, and CSS is therefore entitled to an injunction barring Philadelphia from taking such action. After receiving more than 2,500 pages of briefing and after more than a half-year of post-argument cogitation, the Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state. Those who count on this Court to stand up for the First Amendment have every right to be disappointed—as am I. Notes 1 Code of Canon Law, Canon §924 (Eng. transl. 1998). 2 See Law Library of Congress, Global Legal Research Center, Legal Restrictions on Religious Slaughter in Europe (Mar. 2018), www.loc.gov/law/help/religious-slaughter/religious-slaughter-europe.pdf. 3 Id. , at 1–2. 4 See Frisch et al., Cultural Bias in the AAP’s 2012 Technical Report and Policy Statement on Male Circumcision, 131 Pediatrics 796, 799 (2013) (representatives of pediatric medical associations in 16 European countries and Canada recommending against circumcision because the practice “has no compelling health benefits, causes postoperative pain, can have serious long-term consequences, constitutes a violation of the United Nations’ Declaration of the Rights of the Child, and conflicts with the Hippocratic oath”). 5 See Initiative Measure To Be Submitted Directly to the Voters: Genital Cutting of Male Minors (Oct. 13, 2010) (online source archived at www.supremecourt.gov); see also Jewish Community Relations Council of San Francisco v. Arntz , 2012 WL 11891474, *1 (Super. Ct. San Francisco Cty., Cal., Apr. 6, 2012) (ordering that the proposed initiative be removed from the ballot because it was preempted by California law). 6 See 4 Encyclopaedia Judaica 730 (2d ed. 2007) (“Jewish circumcision originated, according to the biblical account, with Abraham”); The Shengold Jewish Encyclopedia 62 (3d ed. 2003) (“[Circumcision] has become a basic law among Jews. In times of persecution, Jews risked their livesto fulfill the commandment”); B. Abramowitz, The Law of Israel: A Compilation of the Hayye Adam 206 (1897) (“It is a positive commandment that a father shall circumcise his son or that he shall appoint another Israelite to act as his agent therein”); 3 Encyclopedia of Religion 1798 (2d ed. 2005) (“Muslims agree that [circumcision] must occur before marriage and is required of male converts”); H. Gibb & J. Kramers, Shorter Encyclopaedia of Islam 254 (1953). 7 See Holy Bible, Deuteronomy 10:18, 16:11, 26:12–13; James 1:27. 8 See A. Crislip, From Monastery to Hospital: Christian Monasticism & the Transformation of Health Care in Late Antiquity 104, 111 (2005) (describing Basil of Caesarea’s use of his 4th century monastery as a “place for the nourishment of orphans,” who “lived in their own wing of the monastery,” “were provided with all the necessities of life[,] and were raised by the monastics acting as surrogate parents” (internal quotation marks omitted)). 9 Ransel, Orphans and Foundlings, in 3 Encyclopedia of European Social History 497, 498 (2001). 10 T. Hacsi, Second Home: Orphan Asylums and Poor Families in America 17 (1997). 11 Id. , at 17–18; F. Chapell, The Great Awakening of 1740, pp. 90–91 (1903). 12 2 Encylopedia of the New American Nation 477 (2006); Hacsi, Second Home, at 18. 13 15 Encyclopaedia Judaica 485. 14 2 Encyclopedia of Children and Childhood 639–640 (2004); Brief for Historians of Child Welfare as Amici Curiae 16–17. 15 Brief for Annie E. Casey Foundation et al. as Amici Curiae 4–5. 16 See Social Security Act, §521, 49Stat. 627, 633; Social Security ActAmendments of 1961, 75Stat. 131. 17 See United States Conference of Catholic Bishops, Discrimination Against Catholic Adoption Services (2018), https://www.usccb.org/issues-and-action/religious-liberty/upload/Discrimination-against-Catholic-adoption-services.pdf. 18 See Brief for Petitioners 11–12 (citing Wax-Thibodeaux, “We Are Just Destroying These Kids”: The Foster Children Growing Up Inside Detention Centers, Washington Post (Dec. 30, 2019), https://www.washingtonpost.com/national/we-are-just-destroying-these-kids-the-foster-children-growing-up-inside-detention-centers/2019/12/30/97f65f3a-eaa2-11e9-9c6d-436a0df4f31d_story.html (describing the placement of foster children in emergency shelters and juvenile detention centers)); Brief in Opposition for City Respondents 4 (acknowledging 5,000 children in need of care in Philadelphia); Terruso, Philly Puts Out “Urgent” Call—300 Families Needed for Fostering, Philadelphia Inquirer (Mar. 8, 2018), https://www.inquirer.com/philly/news/foster-parents-dhs-philly-child-welfare-adoptions-20180308.html; see also Haskins, Kohomban, & Rodriguez, Keeping Up With the Caseload: How To Recruit and Retain Foster Parents, The Brookings Institution (Apr. 24, 2019), https: www.brookings.edu/blog/upfront/2019/04/24/keeping-up-with-the-caseload-how-to-recruit-and-retain-foster-parents/ (explaining that “[t]he number of children in foster care ha[d] risen for the fifth consecutive year” to nearly 443,000 in 2017 and noting that “between 30 to 50 percent of foster families step down each year”); Adams, Foster Care Crisis: More Kids Are Entering, but Fewer Families Are Willing To Take Them In, NBC News (Dec. 30, 2020), https://www.nbcnews.com/news/nbcblk/foster-care-crisis-more-kids-are-entering-fewer-families-are-n1252450 (explaining how the COVID–19 pandemic has overwhelmed the United States’ foster care system); Satija, For Troubled Foster Kids in Houston, Sleeping in Offices Is “Rock Bottom,” Texas Tribune (Apr. 20, 2017), https://www.texastribune.org/2017/04/20/texas-foster-care-placement-crisis/ (describing Texas’s shortage of placement options, which resulted in children sleeping in office buildings where “no one is likely to stop them” if they decide to run away); Associated Press, Indiana Agencies Desperate To Find Foster Parents With Children Entering System at All-Time High, Fox 59 (Mar. 7, 2017), https://fox59.com/news/indiana-agencies-desperate-to-find-foster-parents-with-children-entering-system-at-all-time-high/ (noting that nearly 1,000 children in Indiana are in need of care and that, in the span of one month, the State’s largest not-for-profit child services agency was able to place 3 children out of 150 to 200in one region); Lawrence, Georgia Foster Care System in Crisis Due to Shortage of Foster Homes, ABC News Channel 9 (Feb. 15, 2017), https://newschannel9.com/news/local/georgia-foster-care-system-in-crisis-due-to-shortage-of-foster-homes (reporting on a county in Georgia with 116 children in need of care but only 14 foster families). 19 See App. to Pet. for Cert. 19a, 64a, 140a; see also App. 59 (plaintiff Cecilia Paul testifying that, at the time of the evidentiary hearing below, she had no children in her care due to the City’s policy). 20 Id., at 182, 365–366 (describing Department of Human Services commissioner’s comments to CSS that “it would be great if we followed the teachings of Pope Francis” and that “things have changed since 100 years ago”). 21 The Court’s decision also depends on its own contested interpretation of local and state law. See post , at 2–7 (Gorsuch, J., concurring in judgment). Instead of addressing whether the City’s Fair Practices Ordinance is generally applicable, the Court concludes that the ordinance does not apply to CSS because CSS’s foster care certification services do not constitute “public accommodations” under the FPO. Ante , at 11. Of course, this Court’s interpretation of state and local law is not binding on state courts. See, e.g., West v. American Telephone & Telegraph Co. , 311 U.S. 223 , 236 (1940); see also Danforth v. Minnesota , 552 U.S. 264 , 291 (2008) (Roberts, C. J., dissenting) (“State courts are the final arbiters of their own state law”). Should the Pennsylvania courts interpret the FPO differently, they would effectively abrogate the Court’s decision in this case. 22 See 102 Code Mass. Regs. 1.03(1) (1997) (prohibiting discrimination on the basis of sexual orientation as a condition of receiving the state license required to provide adoption services); San Francisco Admin. Code §12B.1(a) (2021) (requiring that all contracts with the city include a provision “obligating the contractor not to discriminate on the basis of ” sexual orientation and noting that the code section was last amended in 2000); D. C. Code §§ 2–1401.02(24), 2–1402.31 (2008) (prohibiting, on the basis of sexual orientation, the direct or indirect denial of “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodations,” defined to include “establishments dealing with goods or services of any kind”); Ill. Comp. Stat., ch. 775, §§5/1–103(O–1), (Q), 5/5–101(A), 5/5–102 (2011) (prohibiting discrimination on the basis of sexual orientation in a “place of public accommodation,” defined by a list of non-exclusive examples). 23 See, e.g., Cal. Welf. & Inst. Code Ann. §16013(a) (West 2018) (declaring that “all persons engaged in providing care and services to foster children, including . . . foster parents [and] adoptive parents . . . shall have fair and equal access to all available programs, services, benefits, and licensing processes, and shall not be subjected to discrimination . . . on the basis of . . . sexual orientation”); D. C. Munic. Regs., tit. 29, §6003.1(d) (2018) (providing that foster parents are “[t]o not be subject to discrimi-nation as provided in the D. C. Human Rights Act,” which prohibits discrimination on the basis of sexual orientation); see also 110 Code Mass. Regs. 1.09(1) (2008) (“No applicant for or recipient of Department [of Children and Families] services shall, on the ground of . . . sexual orientation . . . be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination in connection with any service, program, or activity administered or provided by the Department”). 24 This Court actually granted review twice: once, after the state court first held that the denial of benefits was unconstitutional, see Smith v. Employment Div., Dept. of Human Resources , 301 Ore. 209, 220, 721 P.2d 445 , 451 (1986), cert. granted 480 U.S. 916 (1987), and then again after the case was remanded for the state court to determine whether peyote consumption for religious use was unlawful under Oregon law, see Employment Div., Dept. of Human Resources of Ore. v. Smith , 485 U.S. 660 , 662, 673–674 (1988). When the state court held that it was and reaffirmed its prior decision, 307 Ore. 68, 72–73, 763 P.2d 146 , 147–148 (1988), the Court granted certiorari, 489 U.S. 1077 (1989). 25 Justice Barrett makes the surprising claim that “[a] longstanding tenet of our free exercise jurisprudence” that “pre-dates” Smith is “that a law burdening religious exercise must satisfy strict scrutiny if it gives government officials discretion to grant individualized exemptions.” Ante , at 2 (concurring opinion). If there really were such a “longstanding [pre- Smith ] tenet,” one would expect to find cases stating that rule, but Justice Barrett does not cite even one such case. Instead, she claims to find support by reading between the lines of what the Court said in a footnote in Sherbert , 374 U. S., at 401, n. 4, and a portion of the opinion in Cantwell v. Connecticut , 310 U.S. 296 , 303–307 (1940)). Ante , at 2. But even a close interlinear reading of those cases yields no evidence of this supposed tenet. In the Sherbert footnote, the Court responded to the dissent’s argument that South Carolina law did not recognize any exemptions from the general eligibility requirement for unemployment benefits. 374 U. S., at 419–420 (Harlan, J., dissenting). The footnote expressed skepticism about this interpretation of South Carolina law, but it did not suggest that its analysis would have been any different if the dissent’s interpretation were correct. In Cantwell , the Court addressed the constitutionality of a state statute that generally prohibited the solicitation of funds for religious purposes unless a public official found in advance that the cause was authentically religious. See 310 U. S., at 300–302. The Court held that the Free Exercise Clause prohibited the State from conditioning permission to solicit funds on an administrative finding about a religious group’s authenticity, but the Court did not suggest that a blanket ban on solicitation would have necessarily been sustained. On the contrary, it said that the State was “free to regulate the time and manner of solicitation generally, in the interest of public safety, peace, comfort or convenience.” Id ., at 307–308 (emphasis added). And the Court said not one word about “strict scrutiny,” a concept that was foreign to Supreme Court case law at that time. See Fallon, Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1284 (2007) (“Before 1960, what we would now call strict judicial scrutiny . . . did not exist”). 26 A particularly heartbreaking example was a case in which a judge felt compelled by Smith to reverse his previous decision holding the state medical examiner liable for performing the autopsy of a young Hmong man who had been killed in a car accident. The young man’s parents were tortured by the thought that the autopsy would prevent their sonfrom entering the afterlife. See Yang v. Sturner , 750 F. Supp. 558 , 560 (RI 1990); see also 139 Cong. Rec. 9681 (1993) (remarks of Rep. Edwards). Members of Congress were also informed that veterans’ cemeteries had refused to allow burial on weekends even when that was required by the deceased’s religion, id ., at 9687 (remarks of Rep. Cardin), and that churches were prohibited from conducting services in areas zoned for commercial and industrial uses, id. , at 9684 (remarks of Rep. Schumer). In just the first three years after Smith , more than 50 cases were decided against religious claimants. 139 Cong. Rec., at 9685 (remarks of Rep. Hoyer); see also id., at 9684 (remarks of Rep. Schumer) (“Smith was a devastating blow to religious freedom”). 27 Although the First Amendment refers to “Congress,” we have held that the Fourteenth Amendment—which references the entire “State,” not just a legislature—makes the rights protected by the Amendment applicable to the States. Gitlow v. New York , 268 U.S. 652 (1925); Hamilton v. Regents of Univ. of Cal. , 293 U.S. 245 (1934); Cantwell , 310 U.S. 296 ; Everson v. Board of Ed. of Ewing , 330 U.S. 1 (1947). And we have long applied that Amendment to actions taken by those responsible for enforcing the law. See, e.g., Lyng v. Northwest Indian Cemetery Protective Assn. , 485 U.S. 439 (1988) (considering First Amendment claim based on federal agency’s decision); Thomas v. Review Bd. of Ind. Employment Security Div. , 450 U.S. 707 (1981) (applying First Amendment against a state agency); Pickering v. Board of Ed. of Township High School Dist. 205 , Will Cty., 391 U.S. 563 (1968) (applying First Amendment against local board of education); see also U. S. Const., Amdt. 14, §1 (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” (emphasis added)). 28 The phrase “no law” applies to the freedom of speech and the freedom of the press, as well as the right to the free exercise of religion, and there is no reason to believe that its meaning with respect to all these rights is not the same. With respect to the freedom of speech, we have long held that “no law” does not mean that every restriction on what a person may say or write is unconstitutional. See, e.g ., Miller v. California , 413 U.S. 15 , 23 (1973); see also Federal Election Comm’n v. Wisconsin Right to Life, Inc. , 551 U.S. 449 , 482 (2007) (opinion of Roberts, C. J.); Times Film Corp. v. Chicago , 365 U.S. 43 , 47–49 (1961). Many restrictions on what a person could lawfully say or write were well established at the time of the adoption of the First Amendment and have continued to this day. Fraudulent speech, speech integral to criminal conduct, speech soliciting bribes, perjury, speech threatening physical injury, and obscenity are examples. See, e.g., Donaldson v. Read Magazine, Inc. , 333 U.S. 178 , 190–191 (1948) (fraud); Giboney v. Empire Storage & Ice Co. , 336 U.S. 490 , 498 (1949) (speech integral to criminal conduct); McCutcheon v. Federal Election Comm’n , 572 U.S. 185 , 191–192 (2014) (plurality opinion) ( quid pro quo bribes); United States v. Dunnigan , 507 U.S. 87 , 96–97 (1993) (perjury); Virginia v. Black , 538 U.S. 343 , 359 (2003) (threats); Miller , 413 U. S., at 23 (obscenity). The First Amendment has never been thought to have done away with all these rules. Alexander Meiklejohn reconciled this conclusion with the constitutional text: The First Amendment “does not forbid the abridging of speech. But, at the same time, it does forbid the abridging of the freedom of speech.” Free Speech and Its Relation to Self-Government 19 (1948) (emphasis deleted). In other words, the Free Speech Clause protects a right that was understood at the time of adoption to have certain defined limits. See Konigsberg v. State Bar of Cal. , 366 U.S. 36 , 49, and n. 10 (1961). As explained below, the same is true of the Free Exercise Clause. See infra , at 28–36. No one has ever seriously argued that the Free Exercise Clause protects every conceivable religious practice or even every conceivable form of worship, including such things as human sacrifice. 29 Whatever the outer boundaries of the term “religion” as used in the First Amendment, there can be no doubt that CSS’s contested policy represents an exercise of “religion.” 30 See also N. Bailey, Universal Etymological English Dictionary (22d ed. 1770) (Bailey) (“to forbid, to bar, to keep from”); T. Dyche & W. Pardon, A New General English Dictionary (14th ed. 1771) (Dyche & Pardon) (“to forbid, bar, hinder, or keep from any thing”); 2 Johnson (6th ed. 1785) (“1. To forbid, to interdict by authority. . . . 2. To debar; to hinder”); 2 J. Ash, The New & Complete Dictionary of the English Language (2d ed. 1795) (Ash) (“To forbid, to interdict by authority; to debar, to hinder”); 2 N. Webster, An American Dictionary of the English Language (1828) (Webster) (“1. To forbid; to interdict by authority; . . . 2. To hinder; to debar; to prevent; to preclude”); 2 J. Boag, The Imperial Lexicon of the English Language 275 (1850) (Boag) (“To forbid; to interdict by authority. To hinder; to debar; to prevent; to preclude”). 31 See also Bailey (“to practice”); Dyche & Pardon (“to practice or do a thing often; to employ one’s self frequently in the same thing”); 1 Ash (“Practise, use, employment, a task, an act of divine worship”); 2 Johnson (9th ed. 1805) (“Practice; outward performance”; “Act of divine worship, whether publick or private”); 1 Webster (“1. Use, practice; . . . 2. Practice; performance; as the exercise of religion . . . 10. Act of divine worship”); 1 Boag 503 (“Use; practice; . . . Practice; performance . . . Act of divine worship”). 32 See also Dyche & Pardon (“at liberty, that can do or refuse at his pleasure, that is under no restraint”); 1 Ash (“Having liberty,” “unrestrained,” ”exempt”); 1 Webster (“1. Being at liberty; not being under necessity or restraint, physical or moral . . . 5. Unconstrained; unrestrained; not under compulsion or control”); 1 Boag 567–568 (“Being at liberty; not being under necessity or restraint, physical or moral . . . Unconstrained; unrestrained, not under compulsion or control. Permitted; allowed; open; not appropriated. Not obstructed”). 33 See, e.g. , Del. Declaration of Rights §3 (1776), in The Complete Bill of Rights 15 (N. Cogan ed. 1997) (Cogan) (“That all persons professing the Christian religion ought forever to enjoy equal rights and privileges in this state” (emphasis added)); Md. Declaration of Rights, Art. 33 (1776), in id., at 17 (“[A]ll persons professing the christian religion are equally entitled to protection in their religious liberty” (emphasis added)); N. Y. Const., Art. XXXVIII (1777), in id ., at 26 (“[T]he free Exercise and Enjoyment of religious Profession and Worship, without Discrimination or Preference , shall forever hereafter be allowed within this State to all Mankind” (emphasis added)); S. C. Const., Art. VIII, §1 (1790), in id ., at 41 (“The free exercise and enjoyment of religious profession and worship, without discrimination or preference , shall, forever hereafter, be allowed within this state to all mankind” (emphasis added)). 34 See, e.g., McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409 (1990) (McConnell, Origins); McConnell, Free Exercise Revisionism 1109; McConnell, Freedom From Persecution or Protection of the Rights of Conscience?: A Critique of Justice Scalia’s Historical Arguments in City of Boerne v. Flores , 39 Wm. & Mary L. Rev. 819 (1998) (McConnell, Freedom From Persecution); Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. L. Rev. 915 (1992) (Hamburger, Religious Exemption); Hamburger, More Is Less, 90 Va. L. Rev. 835 (2004) (Hamburger, More Is Less); Laycock, Religious Liberty as Liberty, 7 J. Contemp. Legal Issues 313 (1996); Bradley, Beguiled: Free Exercise Exemptions and the Siren Song of Liberalism, 20 Hofstra L. Rev. 245 (1991); Campbell, Note, A New Approach to Nineteenth Century Religious Exemption Cases, 63 Stan. L. Rev. 973 (2011) (Campbell, A New Approach); Kmiec, The Original Understanding of the Free Exercise Clause and Religious Diversity, 59 UMKC L. Rev. 591 (1991); Lash, The Second Adoption of the Free Exercise Clause: Religious Exemptions Under the Fourteenth Amendment, 88 Nw. U. L. Rev. 1106 (1994); Lombardi, Nineteenth-Century Free Exercise Jurisprudence and the Challenge ofPolygamy: The Relevance of Nineteenth-Century Cases and Commentaries for Contemporary Debates About Free Exercise Exemptions, 85 Ore. L. Rev. 369 (2006) (Lombardi, Free Exercise); Muñoz, The Original Meaning of the Free Exercise Clause: The Evidence From the First Congress, 31 Harv. J. L. & Pub. Pol’y 1083 (2008) (Muñoz, Original Meaning); Nestor, Note, The Original Meaning and Significance of Early State Provisos to the Free Exercise of Religion, 42 Harv. J. L. & Pub. Pol’y 971 (2019) (Nestor); M. Nussbaum, Liberty of Conscience 120–130 (2008); Walsh, The First Free Exercise Case, 73 Geo. Wash. L. Rev. 1 (2004) (Walsh). 35 McConnell, Origins 1425 (describing Lord Baltimore’s directive to the new Protestant governor and councilors of Maryland to refrain from interfering with the “free exercise” of Christians, particularly Roman Catholics). 36 Act Concerning Religion (1649), in Cogan 17; see also McConnell, Origins 1425. 37 See Second Charter of Carolina (1665), in Cogan 27–28 (recognizing the right of persons to “freely and quietly have and enjoy . . . their Judgments and Consciences, in Matters of Religion” and declaring that “no Person . . . shall be in any way molested, punished, disquieted, or called in Question, for any Differences in Opinion, or Practice in Matters of religious Concernments, who do not actually disturb the Civil Peace”); Charter of Delaware, Art. I (1701), in id., at 15 (ensuring “[t]hat no person . . . who shall confess and acknowledge One Almighty God . . . shall be in any case molested or prejudiced, in his . . . person or estate, because of his . . . consciencious persuasion or practice, nor . . . to do or suffer anyother act or thing, contrary to their religious persuasion”); Concession and Agreement of the Lords Proprietors of the Province of New Caesarea, or New-Jersey (1664), in id ., at 23 (declaring the right of all persons to “freely and fully have and enjoy . . . their Judgments and Consciences in matters of Religion throughout the said Province” and ensuring “[t]hat no person . . . at any Time shall be any ways molested, punished, disquieted or called in question for any Difference in Opinion or Practice in matter of Religious Concernments, who do not actually disturb the civil Peace of the said Province”); Concessions and Agreements of West New-Jersey, ch. XVI (1676), in id ., at 24 (providing that “no Person . . . shall be any ways upon any pretence whatsoever, called in Question, or in the least punished or hurt, either in Person, Estate, or Priviledge, for the sake of his Opinion, Judgment, Faith or Worship towards God in Matters of Religion”); Laws of West New-Jersey, Art. X (1681), ibid. (“That Liberty of Conscience in Matters of Faith and Worship towards God, shall be granted to all People within the Province aforesaid; who shall live peacably and quietly therein”); Fundamental Constitutions for East New-Jersey, Art. XVI (1683), ibid. (“All Persons living in the Province who confess and acknowledge the one Almighty and Eternal God, and holds themselves obliged in Conscience to live peacably and quietly in a civil Society, shall in no way be molested or prejudged for their Religious Perswasions and Exercise in matters of Faith and Worship”); New York Act Declaring . . . Rights & Priviledges (1691), in id ., at 25 (“That no Person . . . shall at any time be any way molested, punished, disturbed, disquieted or called in question for any Difference in Opinion, or matter of Religious Concernment, who do not under that pretence disturb the Civil Peace of the Province”); Charter of Privileges Granted by William Penn (1701), in id ., at 31–32 (declaring that “no Person . . . who shall confess and acknowledge One almighty God . . . and profess . . . themselves obliged to live quietly under the Civil Government, shall be in any Case molested or prejudiced . . . because of . . . their consciencious [ sic ] Persuasion or Practice, nor . . . suffer any other Act or Thing, contrary to their religious Persuasion”). 38 See infra , at 34, and n. 43; N. J. Const., Art. XVIII (1776), in Cogan 25 (“That no Person shall ever within this Colony be deprived of the inestimable Privilege of worshipping Almighty God in a Manner agreeable to the Dictates of his own Conscience; nor under any Pretence whatsoever compelled to attend any Place of Worship contrary to his own Faith and Judgment”); N. C. Decl. of Rights §XIX (1776), in id., at 30 (“That all Men have a natural and unalienable Right to worship Almighty God according to the Dictates of their own Conscience”); Pa. Const., Declaration of Rights of the Inhabitants of the State of Pa., Art. II (1776), in id., at 32 (“That all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences and understanding: And that no man ought to or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any ministry, contrary to, or against, his own free will and consent: Nor can any man, who acknowledges the being of a God, be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments or peculiar mode of religious worship: And that no authority can or ought to be vested in, or assumed by any power whatever, that shall in any case interfere with, or in any manner controul, the right of conscience in the free exercise of religious worship”); Va. Declaration of Rights, Art. XVI (1776), in id., at 44 (“THAT religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practise Christian forbearance, love, and charity, towards each other”); see also Vt. Const., ch. 1, §3 (1777), in id., at 41 (“That all Men have a natural and unalienable Right to worship Almighty God according to the Dictates of their own Consciences and Understanding . . . and that no Man ought or of Right can be compelled to attend any religious Worship, or erect, or support any Place of Worship, or maintain any Minister contrary to the Dictates of his Conscience; nor can any Man who professes the Protestant Religion, be justly deprived or abridged of any civil Right, as a Citizen, on Account of his religious Sentiment, or peculiar Mode of religious Worship, and that no Authority can, or ought to be vested in, or assumed by any Power whatsoever, that shall in any Case interfere with, or in any Manner control the Rights of Conscience, in the free Exerciseof religious Worship”). 39 See McDonald v. Chicago , 561 U.S. 742 , 769 (2010); see also Creating the Bill of Rights 281, 282 (H. Veit., K. Bowling, & C. Bickford eds. 1991); 1 A. Kelly, W. Harbison, & H. Belz, The American Constitution: Its Origins and Development 110, 118 (7th ed. 1991). 40 See Charter of Rhode Island and Providence Plantations (1663), in Cogan 34 (protecting the free exercise of religion so long as residents “do not Actually disturb the Civil Peace of Our said Colony” and “Behav[e] themselves Peaceably and Quietly, And not Using This Liberty to Licentiousness and Prophaneness; nor to the Civil Injury, or outward Disturbance of others” (emphasis deleted)). 41 See Second Charter of Carolina (1665), in id., at 27–28 (guaranteeing free exercise to persons “who do not actually disturb the Civil Peace” and who “behav[e] themselves peaceably, and [do] not us[e] this Liberty to Licentiousness, nor to the Civil Injury, or outward Disturbance of others”). 42 New York Act Declaring . . . Rights & Priviledges (1691), in id., at 25 (protecting the right to free exercise for all persons “who do not under that pretence disturb the Civil Peace” and who “behav[e] themselves peaceably, quietly, modestly and Religiously, and [do] not us[e] this Liberty to Licentiousness, nor to the civil Injury or outward Disturbance of others”). 43 Del. Declaration of Rights §§2–3 (1776), in id., at 15 (“That all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences and understandings . . . . That all persons professing the Christian religion ought forever to enjoy equal rights and privileges in this state, unless, under colour of religion, anyman disturb the peace, the happiness or safety of society ” (emphasis added)); Md. Declaration of Rights, Art. 33 (1776), in id., at 17 (“That as it is the duty of every man to worship God in such manner as he thinks most acceptable to him, all persons professing the christian religion are equally entitled to protection in their religious liberty, wherefore no person ought by any law to be molested in his person or estate on account of his religious persuasion or profession, or for his religious practice, unless under colour of religion any man shall disturb the good order, peace or safety of the state, or shall infringe the laws of morality, or injure others, in their natural, civil or religious rights” (emphasis added)); Mass. Const., pt. I, Art. II (1780), in id., at 20–21 (“It is the right as well as the duty of all men in society, publickly, and at stated seasons, to worship the SUPREME BEING , the Great Creator and Preserver of the Universe. And no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping GOD in the manner and season most agreeable to the dictates of his own conscience; or for his religious profession or sentiments; provided he doth not disturb the publick peace, or obstruct others in their religious worship ” (emphasis added)); N. H. Const., pt. I, Art. V (1783), in id., at 22–23 (“Every individual has a natural and unalienable right to worship GOD according to the dictates of his own conscience, and reason; and no subject shall be hurt, molested, or restrained in his person, liberty or estate for worshipping GOD in the manner and season most agreeable to the dictates of his own conscience, . . . provided he doth not disturb the public peace, or disturb others in their religious worship ” (emphasis added)) ; N. Y. Const., Art. XXXVIII (1777), in id., at 26 (“[T]he free Exercise and Enjoyment of religious Profession and Worship, without Discrimination or Preference, shall forever hereafter be allowed within this State to all Mankind. Provided , That the Liberty of Conscience hereby granted, shall not be so construed, as to excuse Acts of Licentiousness , or justify Practices inconsistent with the Peace or Safety of this State ” (some emphasis added)); Charter of Rhode Island and Providence Plantations (1663), in id., at 34 (guaranteeing free exercise for matters that “do not Actually disturb the Civil Peace of Our said Colony ” so long as persons “[b]ehav[e] themselves Peaceably and Quietly, And [do] not Us[e] This Liberty to Licentiousness and Prophaneness; nor to the Civil Injury, or outward Disturbance of others” (some emphasis added)); S. C. Const., Art. VIII, §1 (1790), in id., at 41 (“The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall, forever hereafter, be allowed within this state to all mankind; provided that the liberty of conscience thereby declared shall not be so construed as to excuse acts of licentiousness , or justify practices inconsistent with the peace or safety of this state ” (emphasis added)) . 44 See also 2 Webster (“1. In a general sense , a state of quiet or tranquility; freedom from disturbance or agitation. . . . 2. Freedom from war with a foreign nation; public quiet. 3. Freedom from internal commotion or civil war. 4. Freedom from private quarrels, suits or disturbance. 5. Freedom from agitation or disturbance by the passions, as from fear, terror, anger, anxiety or the like; quietness of mind; tranquillity; calmness; quiet of conscience. . . . 6. Heavenly rest; the happiness of heaven. . . . 7. Harmony; concord; a state of reconciliation between parties at variance. 8. Public tranquility; that quiet, order and security which is guarauteed by the laws; as, to keep the peace ; to break the peace ”); 2 Ash (“Rest, quiet, respite from war, respite from tumult; reconciliation, an accommodation of differences”). 45 See also Bailey (“Freedom from Danger, Custody, Security”); 2 Ash (“Security from danger, freedom from hurt; custody, security from escape”); 2 Webster (“[1.] Freedom from danger or hazard . . . . 2. Exemption from hurt, injury or loss. . . . 3. Preservation from escape; close custody. . . . 4. Preservation from hurt”). 46 4 W. Blackstone, Commentaries on the Laws of England 59 (1769). 47 3 id., at 73–74 (1768). 48 Id ., at 141–142. 49 Id. , at 164. 50 4 id., at 163. 51 Id., at 160 (emphasis deleted). 52 Id., at 169 (emphasis deleted). 53 Id., at 160 (emphasis deleted). 54 Some late 18th century and early 19th century dictionaries provided special definitions of the term “peace” as used in the law, and these definitions fit the offenses on Blackstone’s list. See, e.g. , 1 Johnson (6th ed. 1785) (“That general security and quiet which the king warrants to his subjects, and of which he therefore avenges the violation; every forcible injury is a breach of the king’s peace” (emphasis deleted)); 5 G. Jacob, Law-Dictionary (1811) (“[P]articularly in law, [‘peace’] intends a quiet behaviour towards the King and his Subjects”); Bailey (defining “peace” in the “ Law Sense ” as “quiet and inoffensive Behaviour towards King and Subject”). 55 Such an interpretation would also clash with the way in which the scope of state legislative power was understood. If any violation of the law had been regarded as a breach of public peace or safety, there would have been no need for the lawmaking authority of a state legislature to extend any further, but there is no evidence that state legislative authority was understood that way. New York’s 1777 Constitution demonstrates the point. As noted above, it protected free exercise unless a person invoked that protection to “excuse Acts of Licentiousness, or justify Practices inconsistent with the Peace or Safety of this State.” Art. XXXVIII, in Cogan 26. But the New York Constitution authorized the legislature to enact laws to further broader aims, including “good government, welfare, and prosperity.” Art. XIX, in 5 Federal and State Constitutions 2633 (F. Thorpe ed. 1909). That authority obviously goes well beyond the prohibition of “Practices inconsistent with” the “Peace” and “Safety” (or “Licentiousness”). See McConnell, Freedom from Persecution 835–836. In like manner, State Constitutions and other declarations of rights commonly proclaimed that government should pursue broader goals, such as the promotion of “prosperity” and “happiness.” See Nestor, Table III: Comparing the Provisos to the Scope of Legislative Power (online source archived at www.supremecourt.gov). 56 Mayer, The Continental Army, in A Companion to the American Revolution 309 (J. Greene & J. Pole eds. 2000); R. Wright, The Continental Army 153–154, 163 (1983). 57 See The Oxford Companion to American Military History 606–608, 611 (J. Chambers ed. 1999). 58 See Declaration of Independence ¶ 31 (“[W]e mutually pledge to each other our Lives, our Fortunes and our sacred Honor”); see also P. Maier, American Scripture 152–153 (1997); Boyd, The Declaration of Independence: The Mystery of the Lost Original, 100 Pa. Mag. Hist. & Bio. 438, 445 (1976); L. Montross, The Reluctant Rebels 165 (1970); E. Burnett, The Continental Congress 196–197 (1941). Of the 56 signers of the Declaration of Independence, 9 were taken as prisoners of war; 2 had sons who died; 3 had sons who were taken captive; 9 had their homes destroyed; and 13 saw their homes occupied, confiscated, or damaged. M. Novak, On Two Wings: Humble Faith and Common Sense at the American Founding 157–158 (2002). 59 See Barclay, The Historical Origins of Judicial Religious Exemptions, 96 Notre Dame L. Rev. 55, 69–73 (2020); McConnell, Free Exercise Revisionism 1118; Campbell, A New Approach 978, 987; Lombardi, Free Exercise 385; Campbell, Religious Neutrality in the Early Republic, 24 Regent U. L. Rev. 311, 314–315, n. 20 (2012). 60 W. Newman & P. Halvorson, Atlas of American Religion 18 (2000). 61 Ibid. 62 The Covenanters originated in Scotland, where they opposed the Stuart kings’ right to rule over the Presbyterian Church. See Emery, Church and State in the Early Republic: The Covenanters’ Radical Critique, 25 J. L. & Religion 487, 488 (2009). They immigrated to the United States and, in the 1790s, organized a branch of the Reformed Presbyterian Church. Id., at 489. Members ascribe to two foundational documents—the Scottish National Covenant of 1638 and the Solemn League and Covenant of 1643—and believe in the supremacy of God over man in both civil and ecclesiastical matters. Id., at 448; see also J. McFeeters, The Covenanters in America: The Voice of Their Testimony on Present Moral Issues 57 (1892). 63 Privileged Communications to Clergymen, 1 Cath. Law. 199, 207–209 (1955). 64 See also Walsh 41; Campbell, A New Approach 992, n. 99; Lombardi, Free Exercise 408, and n. 152. 65 See McFeeters, The Covenanters in America 121–129; id., at 122 (Covenanters “must refuse upon the grounds of honor, conscience, and consistency, to be identified by oath or ballot with such a political system”); id., at 129 (Covenanters “decline to take any responsible part in the administration of civil power”); W. Gibson & A. McLeod, Reformation Principles Exhibited, by the Reformed Presbyterian Church in the United States of America 138 (1807) (“The juror voluntarily places himself upon oath, under the direction of a law which is immoral. The Reformed Presbytery declare this practice inconsistent with their Testimony, and warn Church-members against serving on juries under the direction of the constituted courts of law”). 66 See O’Neall, Early History of the Judiciary of South Carolina, p. xi, in 1 Biographical Sketches of the Bench and Bar of South Carolina (1859); Walsh 41–42 (explaining that South Carolina “dismantled” the “five-member constitutional court” that decided Willson and replaced it with a new high court—the South Carolina Court of Appeals—which concurred in the opinion in Farnandis ). 67 Hamburger, Religious Exemption 928, and n. 56 (quoting the statement of Rep. Boudinot). 68 Id., at 928, and n. 57 (quoting the statement of Rep. Benson). 69 Muñoz, Original Meaning 1115. 70 Several State Constitutions contained both Free Exercise Clause analogs and provisions protecting conscientious objectors, and this has been cited as evidence that the free-exercise analogs did not confer any right to exemptions. See id ., at 1118–1119. This argument is unpersuasive for the reasons explained above. 71 The family name was apparently misspelled in the case caption. See Sutton, Barnette, Frankfurter, and Judicial Review, 96 Marq. L. Rev. 133, 134 (2012). 72 See also N. Feldman, Scorpions 179 (2010). 73 Ibid. 74 Id., at 180. 75 This discussion does not suggest that Reynolds should be overruled. 76 “The clear implication was that a ‘direct’ interference would have been unconstitutional.” McConnell, Free Exercise Revisionism 1125. 77 Our strained attempt to square the ministerial exception with Smith highlights the tension between the two decisions. Smith held that a generally applicable law satisfies the First Amendment if “prohibiting the exercise of religion . . . is not the object of the [government action] but merely the incidental effect.” 494 U. S., at 878. But the ADA’s effect on religion in Hosanna-Tabor was “incidental” in the sense in which the term was used in Smith . The opinion in Hosanna-Tabor tried to distinguish Smith as involving only “outward physical acts” instead of “the faith and mission of the church itself.” 565 U. S., at 190. But a prohibition of peyote use surely affected “the faith and mission” of the Native American Church, which regards the ingestion of peyote as a sacrament. 78 Recently, some lower courts have proceeded under yet another approach, which analyzes whether the claims presented are sufficiently similar to those raised in the cases that this Court purported to distinguish in Smith . See Henderson v. McMurray , 987 F.3d 997, 1006–1007 (CA11 2021); see also Illinois Bible Colleges Assn. v. Anderson , 870 F.3d 631, 641 (CA7 2017). 79 App. 367–369 (Commissioner Figueora testifying that she was appointed by the mayor, reports ultimately to him, and considers herself part of his administration); Phila. Home Rule Charter, Art. IX, ch. 2, §9–200 (Removal of Appointive Officers). 80 App. 182, 365–366. Apart from the statements made by City officials, other evidence suggested that the City was targeting CSS. For instance, the City changed its justification for the closure of intake to CSS numerous times. Brief for Petitioners 12–15 (describing six different justifications). And although the City’s stated harm was that CSS’s process for certifying new families was discriminatory, it responded by prohibiting placement with all CSS families, including those already certified. The City’s response therefore appears to “proscribe more religious conduct than is necessary to achieve [its] stated ends.” Lukumi , 508 U. S., at 538. 81 See, e.g., McConnell, Origins 1409; McConnell, Free Exercise Revisionism 1109; McConnell, Freedom From Persecution 819; Hamburger, Religious Exemption 915; Hamburger, More Is Less 835; Laycock, 7 J. Contemp. Legal Issues 313; Bradley, 20 Hofstra L. Rev. 245; Campbell, A New Approach 973; Kmiec, 59 UMKC L. Rev. 591; Lash, 88 Nw. U. L. Rev. 1106; Lombardi, Free Exercise 369; Muñoz, Original Meaning 1083; Nestor 971; Nussbaum, Liberty of Conscience, at 120–130; Walsh 1. SUPREME COURT OF THE UNITED STATES _________________ No. 19–123 _________________ SHARONELL FULTON, et al., PETITIONERS v. CITY OF PHILADELPHIA, PENNSYLVANIA, et al. on writ of certiorari to the united states court of appeals for the third circuit [June 17, 2021] Justice Gorsuch, with whom Justice Thomas and Justice Alito join, concurring in the judgment. The Court granted certiorari to decide whether to overrule Employment Div., Dept. of Human Resources of Ore. v. Smith , 494 U.S. 872 (1990). As Justice Alito’s opinion demonstrates, Smith failed to respect this Court’s precedents, was mistaken as a matter of the Constitution’s original public meaning, and has proven unworkable in practice. A majority of our colleagues, however, seek to sidestep the question. They agree that the City of Philadelphia’s treatment of Catholic Social Services (CSS) violates the Free Exercise Clause. But, they say, there’s no “need” or “reason” to address the error of Smith today. Ante, at 5 (majority opinion); ante , at 2 (Barrett, J., concurring). On the surface it may seem a nice move, but dig an inch deep and problems emerge. Smith exempts “neutral” and “generally applicable” laws from First Amendment scrutiny. 494 U. S., at 878–881. The City argues that its challenged rules qualify for that exemption because they require all foster-care agencies—religious and non-religious alike—to recruit and certify same-sex couples interested in serving as foster parents. For its part, the majority assumes (without deciding) that Philadelphia’s rule is indeed “neutral” toward religion. Ante, at 5. So to avoid Smith ’s exemption and subject the City’s policy to First Amendment scrutiny, the majority must carry the burden of showing that the policy isn’t “generally applicable.” * That path turns out to be a long and lonely one. The district court held that the City’s public accommodations law (its Fair Practices Ordinance or FPO) is both generally applicable and applicable to CSS. At least initially, the majority chooses to bypass the district court’s major premise—that the FPO qualifies as “generally applicable” under Smith . It’s a curious choice given that the FPO applies only to certain defined entities that qualify as public accommodations while the “generally applicable law” in Smith was “an across-the-board criminal prohibition” enforceable against anyone. 494 U. S., at 884. But if the goal is to turn a big dispute of constitutional law into a small one, the majority’s choice to focus its attack on the district court’s minor premise—that the FPO applies to CSS as a matter of municipal law—begins to make some sense. Still, it isn’t exactly an obvious path. The Third Circuit did not address the district court’s interpretation of the FPO. And not one of the over 80 briefs before us contests it. To get to where it wishes to go, then, the majority must go it alone. So much for the adversarial process and being “a court of review, not of first view.” Brownback v. King , 592 U. S. ___, ___, n. 4 (2021) (slip op., at 5, n. 4) (internal quotation marks omitted). Trailblazing through the Philadelphia city code turns out to be no walk in the park either. As the district court observed, the City’s FPO defines “public accommodations” expansively to include “[a]ny provider” that “solicits or accepts patronage” of “the public or whose . . . services [or] facilities” are “made available to the public.” App. to Pet. for Cert. 77a (alteration omitted; emphasis deleted). And, the district court held, this definition covers CSS because (among other things) it “publicly solicits prospective foster parents” and “provides professional ‘services’ to the public.” Id., at 78a. All of which would seem to block the majority’s way. So how does it get around that problem? It changes the conversation. The majority ignores the FPO’s expansive definition of “public accommodations.” It ignores the reason the district court offered for why CSS falls within that definition. Instead, it asks us to look to a different public accommodations law—a Commonwealth of Pennsylvania public accommodations statute. See ante, at 10–11 (discussing Pa. Stat. Ann., Tit. 43, §954( l ) (Purdon Cum. Supp. 2009)). And, the majority promises, CSS fails to qualify as a public accommodation under the terms of that law. But why should we ignore the City’s law and look to the Commonwealth’s? No one knows because the majority doesn’t say. Even playing along with this statutory shell game doesn’t solve the problem. The majority highlights the fact that the state law lists various examples of public accommodations—including hotels, restaurants, and swimming pools. Ante, at 11. The majority then argues that foster agencies fail to qualify as public accommodations because, unlike these listed entities, foster agencies “involv[e] a customized and selective assessment.” Ibid. But where does that distinction come from? Not the text of the state statute, not state case law, and certainly not from the briefs. The majority just declares it—a new rule of Pennsylvania common law handed down by the United States Supreme Court. The majority’s gloss on state law isn’t just novel, it’s probably wrong. While the statute lists hotels, restaurants, and swimming pools as examples of public accommodations, it also lists over 40 other kinds of institutions—and the statute emphasizes that these examples are illustrative, not exhaustive. See §954( l ). Among its illustrations, too, the statute offers public “colleges and universities” as examples of public accommodations. Ibid. Often these institutions do engage in a “customized and selective assessment” of their clients (students) and employees (faculty). And if they can qualify as public accommodations under the state statute, it isn’t exactly clear why foster agencies cannot. What does the majority have to say about this problem? Again, silence. If anything, the majority’s next move only adds to the confusion. It denies cooking up any of these arguments on its own. It says it merely means to “agree with CSS’s position . . . that its ‘foster services do not constitute a “public accommodation” under the City’s Fair Practices Ordinance.’ ” Ante, at 13 (quoting App. to Pet. for Cert. 159a). But CSS’s cited “position”—which comes from a letter it sent to the City before litigation even began—includes nothing like the majority’s convoluted chain of reasoning involving a separate state statute. Id. , at 159a–160a. Instead, CSS’s letter contends that the organization’s services do not qualify as “public accommodations” because they are “only available to at-risk children who have been removed by the state and are in need of a loving home.” Ibid. The majority tells us with assurance that it “agree[s] with” this position, adding that it would be “incongru[ous]” to “dee[m] a private religious foster agency a public accommodation.” Ante, at 12. What to make of all this? Maybe this part of the majority opinion should be read only as reaching for something—anything—to support its curious separate-statute move. But maybe the majority means to reject the district court’s major premise after all—suggesting it would be incongruous for public accommodations laws to qualify as generally applicable under Smith because they do not apply to everyone. Or maybe the majority means to invoke a canon of constitutional avoidance: Before concluding that a public accommodations law is generally applicable under Smith , courts must ask themselves whether it would be “incongru[ous]” to apply that law to religious groups. Maybe all this ambiguity is deliberate, maybe not. The only thing certain here is that the majority’s attempt to cloak itself in CSS’s argument introduces more questions than answers. * Still that’s not the end of it. Even now, the majority’s circumnavigation of Smith remains only half complete. The City argues that, in addition to the FPO, another generally applicable nondiscrimination rule can be found in §15.1 of its contract with CSS. That provision independently instructs that foster service providers “shall not discriminate or permit discrimination against any individual on the basis of . . . sexual orientation.” Supp. App. to Brief for City Respondents 31. This provision, the City contends, amounts to a second and separate rule of general applicability exempt from First Amendment scrutiny under Smith . Once more, the majority must find some way around the problem. Its attempt to do so proceeds in three steps. First, the majority directs our attention to another provision of the contract—§3.21. See ante, at 7–9 . Entitled “Rejection of Referral,” this provision prohibits discrimination based on sexual orientation, race, religion, or other grounds “unless an exception is granted” in the government’s “sole discretion.” Supp. App. to Brief for City Respondents 16–17. Clearly, the majority says, that provision doesn’t state a generally applicable rule against discrimination because it expressly contemplates “exceptions.” Ante, at 8. But how does that help? As §3.21’s title indicates, the provision contemplates exceptions only when it comes to the referral stage of the foster process—where the government seeks to place a particular child with an available foster family. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 221 (2012) (“The title and headings are permissible indicators of meaning” (boldface deleted)). So, for example, the City has taken race into account when placing a child who “used racial slurs” to avoid placing him with parents “of that race.” Tr. of Oral Arg. 61. Meanwhile, our case has nothing to do with the referral — or placement—stage of the foster process. This case concerns the recruitment and certification stages—where foster agencies like CSS screen and enroll adults who wish to serve as foster parents. And in those stages of the foster process, §15.1 seems to prohibit discrimination absolutely. That difficulty leads the majority to its second step. It asks us to ignore §3.21’s title and its limited application to the referral stage. See ante, at 9. Instead, the majority suggests, we should reconceive §3.21 as authorizing exceptions to the City’s nondiscrimination rule at every stage of the foster process. Once we do that, the majority stresses, §3.21’s reservation of discretion is irreconcilable with §15.1’s blanket prohibition against discrimination. See ante, at 9 . This sets up the majority’s final move—where the real magic happens. Having conjured a conflict within the contract, the majority devises its own solution. It points to some state court decisions that, it says, set forth the “rule” that Pennsylvania courts shouldn’t interpret one provision in a contract “to annul” another part. Ibid. To avoid nullifying §3.21’s reservation of discretion, the majority insists, it has no choice but to rewrite §15.1. All so that— voila —§15.1 now contains its own parallel reservation of discretion. See ante, at 9 . As rewritten, the contract contains no generally applicable rule against discrimination anywhere in the foster process. From start to finish, it is a dizzying series of maneuvers. The majority changes the terms of the parties’ contract, adopting an uncharitably broad reading (really revision) of §3.21. It asks us to ignore the usual rule that a more specific contractual provision can comfortably coexist with a more general one. And it proceeds to resolve a conflict it created by rewriting §15.1. Once more, too, no party, amicus , or lower court argued for any of this. To be sure, the majority again claims otherwise—representing that it merely adopts the arguments of CSS and the United States. See ante, at 10. But here, too, the majority’s representation raises rather than resolves questions. Instead of pursuing anything like the majority’s contract arguments, CSS and the United States suggest that §3.21 “ alone triggers strict scrutiny,” Reply Brief 5 (emphasis added), because that provision authorizes the City “to grant formal exemptions from its policy ” of nondiscrimination, Brief for United States as Amicus Curiae 26 (emphasis added). On this theory, it’s irrelevant whether §3.21 or §15.1 reserve discretion to grant exemptions at all stages of the process or at only one stage. Instead, the City’s power to grant exemptions from its nondiscrimination policy anywhere “undercuts its asserted interests” and thus “trigger[s] strict scrutiny” for applying the policy everywhere . Id., at 21. Exceptions for one means strict scrutiny for all. See, e.g., Tandon v. Newsom , ante , at 1–2 ( per curiam ). All of which leaves us to wonder: Is the majority just stretching to claim some cover for its novel arguments? Or does it actually mean to adopt the theory it professes to adopt? * Given all the maneuvering, it’s hard not to wonder if the majority is so anxious to say nothing about Smith ’s fate that it is willing to say pretty much anything about municipal law and the parties’ briefs. One way or another, the majority seems determined to declare there is no “need” or “reason” to revisit Smith today. A nte, at 5 (majority opinion); ante, at 2 (Barrett, J., concurring). But tell that to CSS. Its litigation has already lasted years—and today’s (ir)resolution promises more of the same. Had we followed the path Justice Alito outlines—holding that the City’s rules cannot avoid strict scrutiny even if they qualify as neutral and generally applicable—this case would end today. Instead, the majority’s course guarantees that this litigation is only getting started. As the final arbiter of state law, the Pennsylvania Supreme Court can effectively overrule the majority’s reading of the Commonwealth’s public accommodations law. The City can revise its FPO to make even plainer still that its law does encompass foster services. Or with a flick of a pen, municipal lawyers may rewrite the City’s contract to close the §3.21 loophole. Once any of that happens, CSS will find itself back where it started. The City has made clear that it will never tolerate CSS carrying out its foster-care mission in accordance with its sincerely held religious beliefs. To the City, it makes no difference that CSS has not denied service to a single same-sex couple; that dozens of other foster agencies stand willing to serve same-sex couples; or that CSS is committed to help any inquiring same-sex couples find those other agencies. The City has expressed its determination to put CSS to a choice: Give up your sincerely held religious beliefs or give up serving foster children and families. If CSS is unwilling to provide foster-care services to same-sex couples, the City prefers that CSS provide no foster-care services at all. This litigation thus promises to slog on for years to come, consuming time and resources in court that could be better spent serving children. And throughout it all, the opacity of the majority’s professed endorsement of CSS’s arguments ensures the parties will be forced to devote resources to the unenviable task of debating what it even means . Nor will CSS bear the costs of the Court’s indecision alone. Individuals and groups across the country will pay the price—in dollars, in time, and in continued uncertainty about their religious liberties. Consider Jack Phillips, the baker whose religious beliefs prevented him from creating custom cakes to celebrate same-sex weddings. See Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n , 584 U. S. ___ (2018). After being forced to litigate all the way to the Supreme Court, we ruled for him on narrow grounds similar to those the majority invokes today. Because certain government officials responsible for deciding Mr. Phillips’s compliance with a local public accommodations law uttered statements exhibiting hostility to his religion, the Court held, those officials failed to act “neutrally” under Smith . See 584 U. S ., at ___–___ (slip op., at 16–18). But with Smith still on the books, all that victory assured Mr. Phillips was a new round of litigation—with officials now presumably more careful about admitting their motives. See Associated Press, Lakewood Baker Jack Phillips Sued for Refusing Gender Transition Cake (Mar. 22, 2021), https : / / denver . cbslocal. com / 2021 / 03 / 22 / jack - phillips - masterpiece-cakeshop-lakewood-transgender/. A nine-year odyssey thus barrels on. No doubt, too, those who cannot afford such endless litigation under Smith ’s regime have been and will continue to be forced to forfeit religious freedom that the Constitution protects. The costs of today’s indecision fall on lower courts too. As recent cases involving COVID–19 regulations highlight, judges across the country continue to struggle to understand and apply Smith ’s test even thirty years after it was announced. In the last nine months alone, this Court has had to intervene at least half a dozen times to clarify how Smith works. See, e.g., Tandon , ante, at p. 1; Roman Catholic Diocese of Brooklyn v. Cuomo , 592 U. S. ___ (2020) ( per curiam ); High Plains Harvest Church v. Polis , 592 U. S ___ (2020). To be sure, this Court began to resolve at least some of the confusion surrounding Smith ’s application in Tandon . But Tandon treated the symptoms, not the underlying ailment. We owe it to the parties, to religious believers, and to our colleagues on the lower courts to cure the problem this Court created. It’s not as if we don’t know the right answer. Smith has been criticized since the day it was decided. No fewer than ten Justices—including six sitting Justices—have questioned its fidelity to the Constitution. See ante, at 9–10 (Alito, J., concurring in judgment); ante , at 1 (Barrett, J., concurring). The Court granted certiorari in this case to resolve its fate. The parties and amici responded with over 80 thoughtful briefs addressing every angle of the problem. Justice Alito has offered a comprehensive opinion explaining why Smith should be overruled. And not a single Justice has lifted a pen to defend the decision. So what are we waiting for? We hardly need to “wrestle” today with every conceivable question that might follow from recognizing Smith was wrong. See ante, at 2 (Barrett, J., concurring). To be sure, any time this Court turns from misguided precedent back toward the Constitution’s original public meaning, challenging questions may arise across a large field of cases and controversies. But that’s no excuse for refusing to apply the original public meaning in the dispute actually before us. Rather than adhere to Smith until we settle on some “grand unified theory” of the Free Exercise Clause for all future cases until the end of time, see American Legion v. American Humanist Assn. , 588 U. S. ___, ___ (2019) (plurality opinion) (slip op., at 24), the Court should overrule it now, set us back on the correct course, and address each case as it comes. What possible benefit does the majority see in its studious indecision about Smith when the costs are so many? The particular appeal before us arises at the intersection of public accommodations laws and the First Amendment; it involves same-sex couples and the Catholic Church. Perhaps our colleagues believe today’s circuitous path will at least steer the Court around the controversial subject matter and avoid “picking a side.” But refusing to give CSS the benefit of what we know to be the correct interpretation of the Constitution is picking a side. Smith committed a constitutional error. Only we can fix it. Dodging the question today guarantees it will recur tomorrow. These cases will keep coming until the Court musters the fortitude to supply an answer. Respectfully, it should have done so today.

The Supreme Court ruled in favor of Catholic Social Services (CSS), a foster care agency that was denied a contract renewal by the City of Philadelphia due to its religious beliefs about same-sex marriage. The Court found that the City's actions violated the First Amendment's protection of religious freedom. The decision highlights the long history of the Catholic Church's involvement in foster care and the importance of cooperation between the City and private foster agencies. The Court criticized the previous decision in Employment Division v. Smith, which had allowed for laws that burden religious practices as long as they are generally applicable. The Court suggested that Smith had been wrongly decided and should be overruled, but ultimately did not overrule it in this case. The decision emphasized the need to respect religious beliefs and protect religious freedom in similar cases.

Role of Courts

Hayburn's Case

https://supreme.justia.com/cases/federal/us/2/409/

U.S. Supreme Court Hayburn's Case, 2 U.S. 2 Dall. 409 409 (1792) Hayburn's Case 2 U.S. (2 Dall.) 409 MOTION FOR MANDAMUS This was a motion for a mandamus to be directed to the Circuit Court for the District of Pennsylvania commanding the said court to proceed in a certain petition of Wm. Hayburn, who had applied to be put on the pension list of the United States as an invalid pensioner. The principal case arose upon the act of Congress passed 23 March, 1792. The Attorney General (Randolph) who made the motion for the mandamus, having premised that it was done ex officio, without an application from any particular person, but with a view to procure the execution of an act of Congress particularly interesting to a meritorious and unfortunate class of citizens, the court declared that it entertained great doubt upon his right, under such circumstances and in a case of this kind, to proceed ex officio, and directed him to state the principles on which he attempted to support the right. The Attorney General accordingly entered into an elaborate description of the powers and duties of his office. But the court being divided in opinion on that question, the motion, made ex officio, was not allowed. The Attorney General then changed the ground of his interposition, declaring it to be at the instance and on behalf of Hayburn, a party interested; and he entered into the merits of the case upon the act of Congress and the refusal of the judges to carry it into effect. The Court observed that it would hold the motion under advisement until the next term, but no decision was ever pronounced, as the legislature, at an intermediate Page 2 U. S. 410 session, provided in another way for the relief of the pensioners. * Page 2 U. S. 411 The Circuit Court for the District of Pennsylvania, consisting of Wilson, and Blair, Justices, and Peters, District Judge, made the following representation in a letter jointly addressed to the President of the United States on 18 April, 1792: "To you it officially belongs to 'take care that the laws' of the United States 'to faithfully executed.' Before you, therefore, we think it our duty to lay the sentiments which, on a late painful occasion, governed us with regard to an act passed by the legislature of the union." "The people of the United States have vested in Congress all legislative powers 'granted in the Constitution.'" "They have vested in one Supreme Court and in such inferior courts as the Congress shall establish 'the judicial power of the United States.'" "It is worthy of remark that in Congress the whole legislative power of the United States is not vested. An important part of that power was exercised by the people themselves when they 'ordained and established the Constitution.'" "This Constitution is 'the Supreme Law of the Land.' This supreme law 'all judicial officers of the United States are bound, by oath or affirmation, to support.'" "It is a principle important to freedom that in government, the judicial should be distinct from and independent of the legislative department. To this important principle the people of the United States, in forming their Constitution, have manifested the highest regard." "They have placed their judicial power not in Congress, but in 'courts.' They have ordained that the 'judges of those courts shall hold their offices during good behavior,' and that 'during their continuance in office, their salaries shall not be diminished.'" "Congress has lately passed an act to regulate, among other things, 'the claims to invalid pensions.'" "Upon due consideration, we have been unanimously of opinion that under this act, the circuit court held for the Pennsylvania District could not proceed" "1st. Because the business directed by this act is not of a judicial nature. It forms no part of the power vested by the Constitution in the courts of the United States; the circuit court must consequently have proceeded without constitutional authority." "2d. Because if, upon that business, the court had proceeded, its judgments (for its opinions are its judgments) might, under the same act, have been revised and controlled by the legislature, and by an officer in the executive department. Such revision and control we deemed radically inconsistent with the independence of that judicial power which is vested in the courts, and consequently with that important principle which is so strictly observed by the Constitution of the United States. " Page 2 U. S. 412 "These, Sir, are the reasons of our conduct. Be assured that though it became necessary, it was far from being pleasant. To be obliged to act contrary either to the obvious directions of Congress or to a constitutional principle, in our judgment equally obvious, excited feelings in us which we hope never to experience again." The Circuit Court for the District of North Carolina (consisting of Iredell Justice, and Sitgreaves, District Judge) made the following representation in a letter jointly addressed to the President of the United States on 8 June, 1792. "We, the judges now attending at the Circuit Court of the United States for the District of North Carolina, conceive it our duty to lay before you some important observations which have occurred to us in the consideration of an act of Congress lately passed, entitled" "An act to provide for the settlement of the claims of widows and orphans barred by the limitations heretofore established, and to regulate the claims to invalid pensions." "We beg leave to premise that it is as much our inclination as it is our duty to receive with all possible respect every act of the legislature, and that we never can find ourselves in a more painful situation than to be obliged to object to the execution of any, more especially to the execution of one founded on the purest principles of humanity and justice, which the act in question undoubtedly is. But however, lamentable a difference in opinion really may be, or with whatever difficulty we may have formed an opinion, we are under the indispensable necessity of acting according to the best dictates of our own judgment after duly weighing every consideration that can occur to us, which we have done on the present occasion." "The extreme importance of the case and our desire of being explicit beyond the danger of being misunderstood, will, we hope, justify us in stating our observations in a systematic manner. We therefore, Sir, submit to you the following:" "1. That the Legislative, Executive, and Judicial departments are each formed in a separate and independent manner, and that the ultimate basis of each is the Constitution only, within the limits of which each department can alone justify any act of authority." "2. That the legislature, among other important powers, unquestionably possess that of establishing courts in such a manner as to its wisdom shall appear best, limited by the terms of the Constitution only, and to whatever extent that power may be exercised, or however severe the duty it may think proper to require, the judges, when appointed in virtue of any such establishment, owe implicit and unreserved obedience to it." "3. That at the same time, such courts cannot be warranted, as we conceive, by virtue of that part of the Constitution delegating Judicial power, for the exercise of which any act of the legislature is provided, in exercising (even under the authority of another act) Page 2 U. S. 413 any power not in its nature judicial, or, if judicial, not provided for upon the terms the Constitution requires." "4. That whatever doubt may be suggested, whether the power in question is properly of a judicial nature, yet inasmuch as the decision of the court is not made final, but may be at least suspended in its operation by the Secretary at War, if he shall have cause to suspect imposition or mistake, this subjects the decision of the court to a mode of revision which we consider to be unwarranted by the Constitution, for though Congress may certainly establish, in instances not yet provided for, courts of appellate jurisdiction, yet such courts must consist of judges appointed in the manner the Constitution requires and holding their offices by no other tenure than that of their good behavior, by which tenure the office of Secretary at War is not held. And we beg leave to add with all due deference that no decision of any court of the United States can under any circumstances, in our opinion, agreeable to the Constitution, be liable to a reversion or even suspension by the legislature itself, in whom no judicial power of any kind appears to be vested but the important one relative to impeachments." "These, sir, are our reasons for being of opinion, as we are at present, that this circuit court cannot be justified in the execution of that part of the act which requires it to examine and report an opinion on the unfortunate cases of officers and soldiers disabled in the service of the United States. The part of the act requiring the court to sit five days for the purpose of receiving applications from such persons we shall deem it our duty to comply with, for whether in our opinion such purpose can or cannot be answered, it is, as we conceive, our indispensable duty to keep open any court of which we have the honor to be judges as long as Congress shall direct." "The high respect we entertain for the legislature, our feelings as men for persons whose situation requires the earliest as well as the most effectual relief, and our sincere desire to promote, whether officially or otherwise, the just and benevolent views of Congress so conspicuous on the present as well as on many other occasions have induced us to reflect whether we could be justified in acting under this act personally in the character of commissioners during the session of a court, and could we be satisfied that we had authority to do so, we would cheerfully devote such part of our time as might be necessary for the performance of the service. But we confess we have great doubts on this head. The power appears to be given to the court only, and not to the judges of it, and as the Secretary at War has not a discretion in all instances, but only in those where he has cause to suspect imposition or mistake, to withhold a person recommended by the court from being named on the pension list, it would be necessary for us to be well persuaded we possessed such an authority before we exercised a power, which might be a means of drawing money out of the public treasury as effectually as an express appropriation by law. We do not mean, however, to preclude ourselves from a very deliberate consideration whether we can be warranted in executing the purposes of the act in that manner in case an application should be made." "No application has yet been made to the court or to ourselves individually, and therefore we have had some doubts as to the propriety of giving an opinion in a case which has not yet come regularly and judicially before us. None can be more sensible than we are of the necessity of judges' being in general extremely cautious in not intimating an opinion in any case extrajudicially, because we well know how liable the best minds are, notwithstanding their utmost care, to a bias which may arise from a preconceived opinion, even unguardedly, much more deliberately, given. But in the present instance, as many unfortunate and meritorious individuals whom Congress have justly thought proper objects of immediate relief may suffer great distress even by a short delay and may be utterly ruined by a long one, we determined at all events to make our sentiments known as early as possible, considering this as a case which must be deemed an exception to the general rule upon every principle of humanity and justice; resolving however, that so far as we are concerned individually, in case an application should be made, we will most attentively hear it, and if we can be convinced this opinion is a wrong one, we shall not hesitate to act accordingly, being as far from the weakness of supposing that there is any reproach in having committed an error, to which the greatest and best men are sometimes liable, as we should be from so low a sense of duty, as to think it would not be the highest and most deserved reproach that could be bestowed on any men (much more on judges) that they were capable from any motive of persevering against conviction in apparently maintaining an opinion which they really thought to be erroneous. " Page 2 U. S. 414 RULE. THE Attorney-General having moved for information relative to the system of practice by which the attorneys and counselors of this Court shall regulate themselves and of the place in which rules in causes here depending shall be obtained, THE CHIEF JUSTICE at a subsequent day stated that: The Court considers the practice of the Courts of King's Bench and Chancery in England as affording outlines for the practice of this Court, and that it will from time to time make such alterations therein as circumstances may render necessary. * See an act passed 28 Feb., 1793. As the reasons assigned by the judges for declining to execute the first act of Congress involve a great constitutional question, it will not be thought improper to subjoin them in illustration of Hayburn's Case. The Circuit Court for the District of New York (consisting of Jay, Chief Justice, Cushing Justice, and Duane, District Judge) proceeded on 5 April, 1791, to take into consideration the act of Congress entitled "An act to provide for the settlement of the claims of widows, and orphans barred by the limitations heretofore established, and to regulate the claims to invalid pensions," and was thereupon unanimously of opinion and agreed "That by the Constitution of the United States, the government thereof is divided into three distinct and independent branches, and that it is the duty of each to abstain from and to oppose, encroachments on either." "That neither the Legislative nor the Executive branches can constitutionally assign to the Judicial any duties but such as are properly judicial and to be performed in a judicial manner." "That the duties assigned to the circuit courts by this act are not of that description, and that the act itself does not appear to contemplate them as such, inasmuch as it subjects the decisions of these courts, made pursuant to those duties, first to the consideration and suspension of the Secretary at War and then to the revision of the legislature, whereas by the Constitution, neither the Secretary at War nor any other Executive officer, nor even the legislature, is authorized to sit as a court of errors on the judicial acts or opinions of this court." "As, therefore, the business assigned to this Court by the act is not judicial nor directed to be performed judicially, the act can only be considered as appointing commissioners for the purposes mentioned in it by official instead of personal descriptions." "That the judges of this court regard themselves as being the commissioners designated by the act, and therefore as being at liberty to accept or decline that office." "That as the objects of this act are exceedingly benevolent, and do real honor to the humanity and justice of Congress, and as the judges desire to manifest, on all proper occasions and in every proper manner their high respect for the national legislature, they will execute this act in the capacity of commissioners." "That as the legislature has a right to extend the session of this court for any term which it may think proper by law to assign, the term of five days, as directed by this act, ought to be punctually observed." "That the judges of this court will, as usual, during the session thereof, adjourn the court from day to day or other short periods as circumstances may render proper, and that they will regularly, between the adjournments, proceed as commissioners to execute the business of this act in the same courtroom or chamber."

In Hayburn's Case (1792), the Supreme Court faced a motion for a mandamus directing the Circuit Court for the District of Pennsylvania to consider William Hayburn's petition to be placed on the invalid pension list. The case arose under the Act of Congress passed in 1792. The Attorney General, Randolph, made the motion ex officio, but the Court questioned his right to proceed in this manner and requested him to state the principles supporting his right. The Court was divided on the question, and the ex officio motion was not allowed. The Attorney General then changed the basis for his intervention, acting on behalf of Hayburn. The Court considered the merits of the case but did not deliver a decision, as the legislature provided relief for pensioners through other means. The case raised significant constitutional questions regarding the separation of powers between the legislative, executive, and judicial branches of the US government. The Circuit Court for the District of Pennsylvania and the Circuit Court for the District of New York both expressed concerns about the Act, stating that it assigned non-judicial duties to the courts and subjected their decisions to revision by the Executive and Legislative branches, which they viewed as unconstitutional.

Religion

Carson v. Makin

https://supreme.justia.com/cases/federal/us/596/20-1088/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 20–1088 _________________ DAVID CARSON, as parent and next friend of O. C., et al., PETITIONERS v. A. PENDER MAKIN on writ of certiorari to the united states court of appeals for the first circuit [June 21, 2022] Chief Justice Roberts delivered the opinion of the Court. Maine has enacted a program of tuition assistance for parents who live in school districts that do not operate a secondary school of their own. Under the program, parents designate the secondary school they would like their child to attend—public or private—and the school district transmits payments to that school to help defray the costs of tuition. Most private schools are eligible to receive the payments, so long as they are “nonsectarian.” The question presented is whether this restriction violates the Free Exercise Clause of the First Amendment. I A Maine’s Constitution provides that the State’s legislature shall “require . . . the several towns to make suitable provision, at their own expense, for the support and maintenance of public schools.” Me. Const., Art. VIII, pt. 1, §1. In accordance with that command, the legislature has required that every school-age child in Maine “shall be provided an opportunity to receive the benefits of a free public education,” Me. Rev. Stat. Ann., Tit. 20–A, §2(1) (2008), and that the required schools be operated by “the legislative and governing bodies of local school administrative units,” §2(2). But Maine is the most rural State in the Union, and for many school districts the realities of remote geography and low population density make those commands difficult to heed. Indeed, of Maine’s 260 school administrative units (SAUs), fewer than half operate a public secondary school of their own. App. 4, 70, 73. Maine has sought to deal with this problem in part by creating a program of tuition assistance for families that reside in such areas. Under that program, if an SAU neither operates its own public secondary school nor contracts with a particular public or private school for the education of its school-age children, the SAU must “pay the tuition . . . at the public school or the approved private school of the parent’s choice at which the student is accepted.” Me. Rev. Stat. Ann., Tit. 20–A, §5204(4) (Cum. Supp. 2021). Parents who wish to take advantage of this benefit first select the school they wish their child to attend. Ibid. If they select a private school that has been “approved” by the Maine Department of Education, the parents’ SAU “shall pay the tuition” at the chosen school up to a specified maximum rate. See §§2902, 2951, 5204(4). To be “approved” to receive these payments, a private school must meet certain basic requirements under Maine’s compulsory education law. §2951(1). The school must either be “[c]urrently accredited by a New England association of schools and colleges” or separately “approv[ed] for attendance purposes” by the Department. §§2901(2), 2902. Schools seeking approval from the Department must meet specified curricular requirements, such as using English as the language of instruction, offering a course in “Maine history, including the Constitution of Maine . . . and Maine’s cultural and ethnic heritage,” and maintaining a student-teacher ratio of not more than 30 to 1. §§2902(2), 2902(3), 4706(2), 2902(6)(C). The program imposes no geographic limitation: Parents may direct tuition payments to schools inside or outside the State, or even in foreign countries. §§2951(3), 5808. In schools that qualify for the program because they are accredited, teachers need not be certified by the State, §13003(3), and Maine’s curricular requirements do not apply, §2901(2). Single-sex schools are eligible. See Me. Rev. Stat. Ann., Tit. 5, §4553(2–A) (exempting single-sex private, but not public, schools from Maine’s antidiscrimination law). Prior to 1981, parents could also direct the tuition assistance payments to religious schools. Indeed, in the 1979–1980 school year, over 200 Maine students opted to attend such schools through the tuition assistance program. App. 72. In 1981, however, Maine imposed a new requirement that any school receiving tuition assistance payments must be “a nonsectarian school in accordance with the First Amendment of the United States Constitution.” Me. Rev. Stat. Ann., Tit. 20–A, §2951(2). That provision was enacted in response to an opinion by the Maine attorney general taking the position that public funding of private religious schools violated the Establishment Clause of the First Amendment. We subsequently held, however, that a benefit program under which private citizens “direct government aid to religious schools wholly as a result of their own genuine and independent private choice” does not offend the Establishment Clause. Zelman v. Simmons-Harris , 536 U.S. 639 , 652 (2002). Following our decision in Zelman , the Maine Legislature considered a proposed bill to repeal the “nonsectarian” requirement, but rejected it. App. 100, 108. The “nonsectarian” requirement for participation in Maine’s tuition assistance program remains in effect today. The Department has stated that, in administering this requirement, it “considers a sectarian school to be one that is associated with a particular faith or belief system and which, in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith.” 979 F.3d 21, 38 (CA1 2020). “The Department’s focus is on what the school teaches through its curriculum and related activities, and how the material is presented.” Ibid. (emphasis deleted). “[A]ffiliation or association with a church or religious institution is one potential indicator of a sectarian school,” but “it is not dispositive.” Ibid . B This case concerns two families that live in SAUs that neither maintain their own secondary schools nor contract with any nearby secondary school. App. 70, 71. Petitioners David and Amy Carson reside in Glenburn, Maine. Id. , at 74. When this litigation commenced, the Carsons’ daughter attended high school at Bangor Christian Schools (BCS), which was founded in 1970 as a ministry of Bangor Baptist Church. Id. , at 74, 80. The Carsons sent their daughter to BCS because of the school’s high academic standards and because the school’s Christian worldview aligns with their sincerely held religious beliefs. Id. , at 74. Given that BCS is a “sectarian” school that cannot qualify for tuition assistance payments under Maine’s program, id. , at 80, the Carsons paid the tuition for their daughter to attend BCS themselves, id. , at 74. Petitioners Troy and Angela Nelson live in Palermo, Maine. Id. , at 78. When this litigation commenced, the Nelsons’ daughter attended high school at Erskine Academy, a secular private school, and their son attended middle school at Temple Academy, a “sectarian” school affiliated with Centerpoint Community Church. Id. , at 78, 90, 91. The Nelsons sent their son to Temple Academy because they believed it offered him a high-quality education that aligned with their sincerely held religious beliefs. Id. , at 78. While they wished to send their daughter to Temple Academy too, they could not afford to pay the cost of the Academy’s tuition for both of their children. Id. , at 79. BCS and Temple Academy are both accredited by the New England Association of Schools and Colleges (NEASC), and the Department considers each school a “private school approved for attendance purposes” under the State’s compulsory attendance requirement. Id. , at 80, 90. Yet because neither school qualifies as “nonsectarian,” neither is eligible to receive tuition payments under Maine’s tuition assistance program. Id. , at 80, 90. Absent the “nonsectarian” requirement, the Carsons and the Nelsons would have asked their respective SAUs to pay the tuition to send their children to BCS and Temple Academy, respectively. Id. , at 79. In 2018, petitioners brought suit against the commissioner of the Maine Department of Education. Id. , at 11–12. They alleged that the “nonsectarian” requirement of Maine’s tuition assistance program violated the Free Exercise Clause and the Establishment Clause of the First Amendment, id. , at 23–27, as well as the Equal Protection Clause of the Fourteenth Amendment, id. , at 29–30. Their complaint sought declaratory and injunctive relief against enforcement of the requirement. Id. , at 31–32. The parties filed cross-motions for summary judgment on a stipulated record. 401 F. Supp. 3d 207, 208 (Me. 2019). Applying Circuit precedent that had previously upheld the “nonsectarian” requirement against challenge, see Eulitt v. Maine Dept. of Ed. , 386 F.3d 344 (CA1 2004), the District Court rejected petitioners’ constitutional claims and granted judgment to the commissioner. 401 F. Supp. 3d, at 209–212. While petitioners’ appeal to the First Circuit was pending, this Court decided Espinoza v. Montana Department of Revenue , 591 U. S. ___ (2020). Espinoza held that a provision of the Montana Constitution barring government aid to any school “controlled in whole or in part by any church, sect, or denomination,” Art. X, §6(1), violated the Free Exercise Clause by prohibiting families from using otherwise available scholarship funds at the religious schools of their choosing. The First Circuit recognized that, in light of Espinoza , its prior precedent upholding Maine’s “nonsectarian” requirement was no longer controlling. 979 F. 3d, at 32–36. But it nevertheless affirmed the District Court’s grant of judgment to the commissioner. Id., at 49. As relevant here, the First Circuit offered two grounds to distinguish Maine’s “nonsectarian” requirement from the no-aid provision at issue in Espinoza . First, the panel reasoned that, whereas Montana had barred schools from receiving funding “simply based on their religious identity—a status that in and of itself does not determine how a school would use the funds”—Maine bars BCS and Temple Academy from receiving funding “based on the religious use that they would make of it in instructing children.” 979 F. 3d , at 40. Second, the panel determined that Maine’s tuition assistance program was distinct from the scholarships at issue in Espinoza because Maine had sought to provide “a rough equivalent of the public school education that Maine may permissibly require to be secular but that is not otherwise accessible.” 979 F. 3d , at 44. Thus, “the nature of the restriction at issue and the nature of the school aid program of which it is a key part” led the panel to conclude “once again” that Maine’s “nonsectarian” requirement did not violate the Free Exercise Clause. Id., at 46. We granted certiorari. 594 U. S. ___ (2021). II A The Free Exercise Clause of the First Amendment protects against “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.” Lyng v. Northwest Indian Cemetery Protective Assn. , 485 U.S. 439 , 450 (1988). In particular, we have repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits. See Sherbert v. Verner , 374 U.S. 398 , 404 (1963) (“It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege.”); see also Everson v. Board of Ed. of Ewing , 330 U.S. 1 , 16 (1947) (a State “cannot exclude” individuals “ because of their faith, or lack of it , from receiving the benefits of public welfare legislation”). A State may not withhold unemployment benefits, for instance, on the ground that an individual lost his job for refusing to abandon the dictates of his faith. See Sherbert , 374 U. S., at 399–402 (Seventh-day Adventist who refused to work on the Sabbath); Thomas v. Review Bd. of Ind. Employment Security Div. , 450 U.S. 707 , 709, 720 (1981) (Jehovah’s Witness who refused to participate in the production of armaments). We have recently applied these principles in the context of two state efforts to withhold otherwise available public benefits from religious organizations. In Trinity Lutheran Church of Columbia, Inc. v. Comer , 582 U. S. ___ (2017), we considered a Missouri program that offered grants to qualifying nonprofit organizations that installed cushioning playground surfaces made from recycled rubber tires. The Missouri Department of Natural Resources maintained an express policy of denying such grants to any applicant owned or controlled by a church, sect, or other religious entity. The Trinity Lutheran Church Child Learning Center applied for a grant to resurface its gravel playground, but the Department denied funding on the ground that the Center was operated by the Church. We deemed it “unremarkable in light of our prior decisions” to conclude that the Free Exercise Clause did not permit Missouri to “expressly discriminate[ ] against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.” Id. , at ___–___ (slip op., at 9–10). While it was true that Trinity Lutheran remained “free to continue operating as a church,” it could enjoy that freedom only “at the cost of automatic and absolute exclusion from the benefits of a public program for which the Center [was] otherwise fully qualified.” Id., at ___ (slip op., at 10) (citing McDaniel v. Paty , 435 U.S. 618 , 626 (1978) (plurality opinion)). Such discrimination, we said, was “odious to our Constitution” and could not stand. 582 U. S. , at ___ (slip op., at 15). Two Terms ago, in Espinoza , we reached the same conclusion as to a Montana program that provided tax credits to donors who sponsored scholarships for private school tuition. The Montana Supreme Court held that the program, to the extent it included religious schools, violated a provision of the Montana Constitution that barred government aid to any school controlled in whole or in part by a church, sect, or denomination. As a result of that holding, the State terminated the scholarship program, preventing the petitioners from accessing scholarship funds they otherwise would have used to fund their children’s educations at religious schools. We again held that the Free Exercise Clause forbade the State’s action. The application of the Montana Constitution’s no-aid provision, we explained, required strict scrutiny because it “bar[red] religious schools from public benefits solely because of the religious character of the schools.” Espinoza , 591 U. S., at ___ (slip op., at 9). “A State need not subsidize private education,” we concluded, “[b]ut once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” Id., at ___ (slip op., at 20). B The “unremarkable” principles applied in Trinity Lutheran and Espinoza suffice to resolve this case. Maine offers its citizens a benefit: tuition assistance payments for any family whose school district does not provide a public secondary school. Just like the wide range of nonprofit organizations eligible to receive playground resurfacing grants in Trinity Lutheran , a wide range of private schools are eligible to receive Maine tuition assistance payments here. And like the daycare center in Trinity Lutheran , BCS and Temple Academy are disqualified from this generally available benefit “solely because of their religious character.” 582 U. S., at ___ (slip op., at 10). By “condition[ing] the availability of benefits” in that manner, Maine’s tuition assistance program—like the program in Trinity Lutheran —“effectively penalizes the free exercise” of religion. Ibid. (quoting McDaniel , 435 U. S., at 626 (plurality opinion)). Our recent decision in Espinoza applied these basic principles in the context of religious education that we consider today. There, as here, we considered a state benefit program under which public funds flowed to support tuition payments at private schools. And there, as here, that program specifically carved out private religious schools from those eligible to receive such funds. While the wording of the Montana and Maine provisions is different, their effect is the same: to “disqualify some private schools” from funding “solely because they are religious.” 591 U. S., at ___ (slip op., at 20). A law that operates in that manner, we held in Espinoza , must be subjected to “the strictest scrutiny.” Id. , at ___–___ (slip op., at 11–12). To satisfy strict scrutiny, government action “must advance ‘interests of the highest order’ and must be narrowly tailored in pursuit of those interests.” Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U.S. 520 , 546 (1993) (quoting McDaniel , 435 U. S., at 628 (plurality opinion)). “A law that targets religious conduct for distinctive treatment . . . will survive strict scrutiny only in rare cases.” 508 U. S., at 546. This is not one of them. As noted, a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause. See Zelman , 536 U. S., at 652–653. Maine’s decision to continue excluding religious schools from its tuition assistance program after Zelman thus promotes stricter separation of church and state than the Federal Constitution requires. See also post, at 4 (Breyer, J., dissenting) (States may choose “not to fund certain religious activity . . . even when the Establishment Clause does not itself prohibit the State from funding that activity”); post, at 1 (Sotomayor, J., dissenting) (same point). But as we explained in both Trinity Lutheran and Espinoza , such an “interest in separating church and state ‘more fiercely’ than the Federal Constitution . . . ‘cannot qualify as compelling’ in the face of the infringement of free exercise.” Espinoza , 591 U. S., at ___ (slip op., at 18) (quoting Trinity Lutheran , 582 U. S., at ___ (slip op., at 14)); see also Widmar v. Vincent , 454 U.S. 263 , 276 (1981) (“[T]he state interest . . . in achieving greater separation of church and State than is already ensured under the Establishment Clause . . . is limited by the Free Exercise Clause.”). Justice Breyer stresses the importance of “government neutrality” when it comes to religious matters, post , at 13, but there is nothing neutral about Maine’s program. The State pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion. A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.[ 1 ]* III The First Circuit attempted to distinguish our precedent by recharacterizing the nature of Maine’s tuition assistance program in two ways, both of which Maine echoes before this Court. First, the panel defined the benefit at issue as the “rough equivalent of [a Maine] public school education,” an education that cannot include sectarian instruction. 979 F. 3d, at 44; see also Brief for Respondent 22. Second, the panel defined the nature of the exclusion as one based not on a school’s religious “status,” as in Trinity Lutheran and Espinoza , but on religious “uses” of public funds. 979 F. 3d, at 38–40; see also Brief for Respondent 35. Neither of these formal distinctions suffices to distinguish this case from Trinity Lutheran or Espinoza , or to affect the application of the free exercise principles outlined above. A The First Circuit held that the “nonsectarian” requirement was constitutional because the benefit was properly viewed not as tuition assistance payments to be used at approved private schools, but instead as funding for the “rough equivalent of the public school education that Maine may permissibly require to be secular.” 979 F. 3d, at 44. As Maine puts it, “[t]he public benefit Maine is offering is a free public education.” Brief for Respondent 1–2. To start with, the statute does not say anything like that. It says that an SAU without a secondary school of its own “shall pay the tuition . . . at the public school or the approved private school of the parent’s choice at which the student is accepted.” Me. Rev. Stat. Ann., Tit. 20–A, §5204(4). The benefit is tuition at a public or private school, selected by the parent, with no suggestion that the “private school” must somehow provide a “public” education. This reading of the statute is confirmed by the program’s operation. The differences between private schools eligible to receive tuition assistance under Maine’s program and a Maine public school are numerous and important. To start with the most obvious, private schools are different by definition because they do not have to accept all students. Public schools generally do. Second, the free public education that Maine insists it is providing through the tuition assistance program is often not free. That “assistance” is available at private schools that charge several times the maximum benefit that Maine is willing to provide. See Stipulated Record, Exh. 2, in No. 1:18–cv–327 (Me., Mar. 12, 2019), ECF Doc. 24–2, p. 11; Brief for Respondent 32. Moreover, the curriculum taught at participating private schools need not even resemble that taught in the Maine public schools. For example, Maine public schools must abide by certain “parameters for essential instruction in English language arts; mathematics; science and technology; social studies; career and education development; visual and performing arts; health, physical education and wellness; and world languages.” §6209. But NEASC-accredited private schools are exempt from these requirements, and instead subject only to general “standards and indicators” governing the implementation of their own chosen curriculum. Brief for Respondent 32; see NEASC, Standards—20/20 Process (rev. Aug. 2021), https://cis. neasc.org/standards2020 (requiring, for instance, that “[c]urriculum planning supports the school’s core beliefs and the needs of the students,” and that the “[w]ritten curriculum aligns horizontally and vertically”). Private schools approved by the Department (rather than accredited by NEASC) are likewise exempt from many of the State’s curricular requirements, so long as fewer than 60% of their students receive tuition assistance from the State. For instance, such schools need not abide by Maine’s “comprehensive, statewide system of learning results,” including the “parameters for essential instruction” referenced above, and they need not administer the annual state assessments in English language arts, mathematics, and science. §§2951(6), 6209; see also ECF Doc. 24–2, at 9. There are other distinctions, too. Participating schools need not hire state-certified teachers. Compare Me. Rev. Stat. Ann., Tit. 20–A, §13003(1), with §13003(3). And the schools can be single-sex. See ECF Doc. 24–2, at 11. In short, it is simply not the case that these schools, to be eligible for state funds, must offer an education that is equivalent—roughly or otherwise—to that available in the Maine public schools. But the key manner in which the two educational experiences are required to be “equivalent” is that they must both be secular. Saying that Maine offers a benefit limited to private secular education is just another way of saying that Maine does not extend tuition assistance payments to parents who choose to educate their children at religious schools. But “the definition of a particular program can always be manipulated to subsume the challenged condition,” and to allow States to “recast a condition on funding” in this manner would be to see “the First Amendment . . . reduced to a simple semantic exercise.” Agency for Int’l Development v. Alliance for Open Society Int’l, Inc. , 570 U.S. 205 , 215 (2013) (quoting Legal Services Corporation v. Velazquez , 531 U.S. 533 , 547 (2001)); see also Walz v. Tax Comm’n of City of New York , 397 U.S. 664 , 696 (1970) (Harlan, J., concurring) (“The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders.”). Maine’s formulation does not answer the question in this case; it simply restates it. Indeed, were we to accept Maine’s argument, our decision in Espinoza would be rendered essentially meaningless. By Maine’s logic, Montana could have obtained the same result that we held violated the First Amendment simply by redefining its tax credit for sponsors of generally available scholarships as limited to “tuition payments for the rough equivalent of a Montana public education”—meaning a secular education. But our holding in Espinoza turned on the substance of free exercise protections, not on the presence or absence of magic words. That holding applies fully whether the prohibited discrimination is in an express provision like §2951(2) or in a party’s reconceptualization of the public benefit. Maine may provide a strictly secular education in its public schools. But BCS and Temple Academy—like numerous other recipients of Maine tuition assistance payments—are not public schools. In order to provide an education to children who live in certain parts of its far-flung State, Maine has decided not to operate schools of its own, but instead to offer tuition assistance that parents may direct to the public or private schools of their choice. Maine’s administration of that benefit is subject to the free exercise principles governing any such public benefit program—including the prohibition on denying the benefit based on a recipient’s religious exercise. The dissents are wrong to say that under our decision today Maine “ must ” fund religious education. Post, at 7 (Breyer, J., dissenting). Maine chose to allow some parents to direct state tuition payments to private schools; that decision was not “forced upon” it. Post, at 4 (Sotomayor, J., dissenting). The State retains a number of options: it could expand the reach of its public school system, increase the availability of transportation, provide some combination of tutoring, remote learning, and partial attendance, or even operate boarding schools of its own. As we held in Espinoza , a “State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” 591 U. S., at ___ (slip op., at 20). B The Court of Appeals also attempted to distinguish this case from Trinity Lutheran and Espinoza on the ground that the funding restrictions in those cases were “solely status-based religious discrimination,” while the challenged provision here “imposes a use-based restriction.” 979 F. 3d, at 35, 37–38. Justice Breyer makes the same argument. Post, at 8–9, 13–14 (dissenting opinion). In Trinity Lutheran , the Missouri Constitution banned the use of public funds in aid of “any church, sect or denomination of religion.” 582 U. S., at ___–___ (slip op., at 2–3). We noted that the case involved “express discrimination based on religious identity,” which was sufficient unto the day in deciding it, and that our opinion did “not address religious uses of funding.” Id. , at ___, n. 3 (plurality opinion) (slip op., at 14, n. 3). So too in Espinoza , the discrimination at issue was described by the Montana Supreme Court as a prohibition on aiding “schools controlled by churches,” and we analyzed the issue in terms of “religious status and not religious use.” 591 U. S., at ___ (slip op., at 10). Foreshadowing Maine’s argument here, Montana argued that its case was different from Trinity Lutheran’s because it involved not playground resurfacing, but general funds that “could be used for religious ends by some recipients, particularly schools that believe faith should ‘ permeate [ ]’ everything they do.” Id., at ___ (slip op., at 11). We explained, however, that the strict scrutiny triggered by status-based discrimination could not be avoided by arguing that “one of its goals or effects [was] preventing religious organizations from putting aid to religious uses .” Ibid. (emphasis added). And we noted that nothing in our analysis was “meant to suggest that we agree[d] with [Montana] that some lesser degree of scrutiny applies to discrimination against religious uses of government aid.” Id., at ___ (slip op., at 12). Maine’s argument, however—along with the decision below and Justice Breyer’s dissent—is premised on precisely such a distinction. See Brief for Respondent 44 (“Maine has not broadly excluded private schools simply because they are affiliated with or controlled by a religious organization. Rather, a school is excluded only if it promotes a particular faith and presents academic material through the lens of that faith.”); 979 F. 3d, at 40 (Maine provision “does not bar schools from receiving funding simply based on their religious identity” but instead “based on the religious use that they would make of it in instructing children.”); post , at 9 (Breyer, J., dissenting) (“[U]nlike the circumstances present in Trinity Lutheran and Espinoza , it is religious activity, not religious labels, that lies at the heart of this case.”). That premise, however, misreads our precedents. In Trinity Lutheran and Espinoza , we held that the Free Exercise Clause forbids discrimination on the basis of religious status. But those decisions never suggested that use-based discrimination is any less offensive to the Free Exercise Clause. This case illustrates why. “[E]ducating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.” Our Lady of Guadalupe School v. Morrissey-Berru , 591 U. S. ___, ___ (2020) (slip op., at 18); see also Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC , 565 U.S. 171 , 192 (2012). Any attempt to give effect to such a distinction by scrutinizing whether and how a religious school pursues its educational mission would also raise serious concerns about state entanglement with religion and denominational favoritism. See Our Lady , 591 U. S., at ___ (slip op., at 26); Larson v. Valente , 456 U.S. 228 , 244 (1982). Indeed, Maine concedes that the Department barely engages in any such scrutiny when enforcing the “nonsectarian” requirement. See Brief for Respondent 5 (asserting that there will be no need to probe private schools’ uses of tuition assistance funds because “schools self-identify as nonsectarian” under the program and the need for any further questioning is “extremely rare”). That suggests that any status-use distinction lacks a meaningful application not only in theory, but in practice as well. In short, the prohibition on status-based discrimination under the Free Exercise Clause is not a permission to engage in use-based discrimination. Maine and the dissents invoke Locke v. Davey , 540 U.S. 712 (2004), in support of the argument that the State may preclude parents from designating a religious school to receive tuition assistance payments. In that case, Washington had established a scholarship fund to assist academically gifted students with postsecondary education expenses. But the program excluded one particular use of the scholarship funds: the “essentially religious endeavor” of pursuing a degree designed to “train[ ] a minister to lead a congregation.” Id., at 721; Espinoza , 591 U. S., at ___ (slip op., at 13). We upheld that restriction against a free exercise challenge, reasoning that the State had “merely chosen not to fund a distinct category of instruction.” Locke, 540 U. S., at 721. Our opinions in Trinity Lutheran and Espinoza , however, have already explained why Locke can be of no help to Maine here. Both precedents emphasized, as did Locke itself, that the funding in Locke was intended to be used “to prepare for the ministry.” Trinity Lutheran , 582 U. S., at ___ (slip op., at 12); see also Espinoza , 591 U. S., at ___ (slip op., at 13); Locke , 540 U. S., at 725. Funds could be and were used for theology courses; only pursuing a “vocational religious” degree was excluded. Ibid. ; see also Trinity Lutheran , 582 U. S., at ___–___ (slip op., at 12–13) (explaining narrow reach of Locke ); Espinoza , 591 U. S., at ___–___ (slip op., at 13–14) (same). Locke ’s reasoning expressly turned on what it identified as the “historic and substantial state interest” against using “taxpayer funds to support church leaders.” 540 U. S., at 722, 725. But as we explained at length in Espinoza , “it is clear that there is no ‘historic and substantial’ tradition against aiding [private religious] schools comparable to the tradition against state-supported clergy invoked by Locke .” 591 U. S., at ___ (slip op., at 16). Locke cannot be read beyond its narrow focus on vocational religious degrees to generally authorize the State to exclude religious persons from the enjoyment of public benefits on the basis of their anticipated religious use of the benefits. *  *  * Maine’s “nonsectarian” requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 *Both dissents articulate a number of other reasons not to extend the tuition assistance program to BCS and Temple Academy, based on the schools’ particular policies and practices. Post, at 15–16 (opinion of Breyer, J.); post, at 4 (opinion of Sotomayor, J.). Maine rightly does not attempt to defend its law on such grounds, however, because the law rigidly excludes any and all sectarian schools regardless of particular characteristics. See supra, at 3. SUPREME COURT OF THE UNITED STATES _________________ No. 20–1088 _________________ DAVID CARSON, as parent and next friend of O. C., et al., PETITIONERS v. A. PENDER MAKIN on writ of certiorari to the united states court of appeals for the first circuit [June 21, 2022] Justice Breyer, with whom Justice Kagan joins, and with whom Justice Sotomayor joins except as to Part I–B, dissenting. The First Amendment begins by forbidding the government from “mak[ing] [any] law respecting an establishment of religion.” It next forbids them to make any law “prohibiting the free exercise thereof.” The Court today pays almost no attention to the words in the first Clause while giving almost exclusive attention to the words in the second. The majority also fails to recognize the “ ‘play in the joints’ ” between the two Clauses. See Trinity Lutheran Church of Columbia , Inc. v . Comer , 582 U. S. ___, ___ (2017) (slip op., at 6). That “play” gives States some degree of legislative leeway. It sometimes allows a State to further antiestablishment interests by withholding aid from religious institutions without violating the Constitution’s protections for the free exercise of religion. In my view, Maine’s nonsectarian requirement falls squarely within the scope of that constitutional leeway. I respectfully dissent. I A The First Amendment’s two Religion Clauses together provide that the government “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Each Clause, linguistically speaking, is “cast in absolute terms.” Walz v. Tax Comm’n of City of New York , 397 U.S. 664 , 668 (1970). The first Clause, the Establishment Clause, seems to bar all government “sponsorship, financial support, [or] active involvement . . . in religious activity,” while the second Clause, the Free Exercise Clause, seems to bar all “governmental restraint on religious practice.” Id. , at 668, 670. The apparently absolutist nature of these two prohibitions means that either Clause, “if expanded to a logical extreme, would tend to clash with the other.” Id. , at 668–669. Because of this, we have said, the two Clauses “are frequently in tension,” Locke v. Davey , 540 U.S. 712 , 718 (2004), and “often exert conflicting pressures” on government action, Cutter v. Wilkinson , 544 U.S. 709 , 719 (2005). On the one hand, the Free Exercise Clause “ ‘protect[s] religious observers against unequal treatment.’ ” Trinity Lutheran , 582 U. S., at ___ (slip op., at 6) (quoting Church of Lukumi Babalu Aye , Inc. v. Hialeah , 508 U.S. 520 , 542 (1993); alteration in original). We have said that, in the education context, this means that States generally cannot “ba[r] religious schools from public benefits solely because of the religious character of the schools.” Espinoza v. Montana Dept. of Revenue , 591 U. S. ___, ___ (2020) (slip op., at 9); see Trinity Lutheran , 582 U. S., at ___–___ (slip op., at 9–10). On the other hand, the Establishment Clause “commands a separation of church and state.” Cutter , 544 U. S., at 719. A State cannot act to “aid one religion, aid all religions, or prefer one religion over another.” Everson v. Board of Ed. of Ewing , 330 U.S. 1 , 15 (1947). This means that a State cannot use “its public school system to aid any or all religious faiths or sects in the dissemination of their doctrines and ideals.” Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71 , Champaign Cty. , 333 U.S. 203 , 211 (1948). Nor may a State “adopt programs or practices in its public schools . . . which ‘aid or oppose’ any religion.” Epperson v. Arkansas , 393 U.S. 97 , 106 (1968). “This prohibition,” we have cautioned, “is absolute.” Ibid. See, e.g. , McCollum , 333 U.S. 203 (no weekly religious teachings in public schools); Engel v. Vitale , 370 U.S. 421 (1962) (no prayers in public schools); School Dist. of Abington Township v. Schempp , 374 U.S. 203 (1963) (no Bible readings in public schools); Epperson , 393 U.S. 97 (no religiously tailored curriculum in public schools); Wallace v. Jaffree , 472 U.S. 38 (1985) (no period of silence for meditation or prayer in public schools); Lee v. Weisman , 505 U.S. 577 (1992) (no prayers during public school graduations); Santa Fe Independent School Dist. v. Doe , 530 U.S. 290 (2000) (no prayers during public school football games). Although the Religion Clauses are, in practice, often in tension, they nonetheless “express complementary values.” Cutter , 544 U. S., at 719. Together they attempt to chart a “course of constitutional neutrality” with respect to government and religion. Walz , 397 U. S., at 669. They were written to help create an American Nation free of the religious conflict that had long plagued European nations with “governmentally established religion[s].” Engel , 370 U. S., at 431. Through the Clauses, the Framers sought to avoid the “anguish, hardship and bitter strife” that resulted from the “union of Church and State” in those countries. Id. , at 429; see also Committee for Public Ed. & Religious Liberty v. Nyquist , 413 U.S. 756 , 795–796 (1973). The Religion Clauses thus created a compromise in the form of religious freedom. They aspired to create a “benevolent neutrality”—one which would “permit religious exercise to exist without sponsorship and without interference.” Walz , 397 U. S., at 669. “[T]he basic purpose of these provisions” was “to insure that no religion be sponsored or favored, none commanded, and none inhibited.” Ibid. This religious freedom in effect meant that people “were entitled to worship God in their own way and to teach their children” in that way. C. Radcliffe, The Law & Its Compass 71 (1960). We have historically interpreted the Religion Clauses with these basic principles in mind. See, e.g. , Nyquist , 413 U. S., at 771–772, 794–796; Walz , 397 U. S., at 668–670; Engel , 370 U. S., at 429–432. And in applying these Clauses, we have often said that “there is room for play in the joints” between them. Walz , 397 U. S., at 669; see, e.g. , Norwood v. Harrison , 413 U.S. 455 , 469 (1973); Cutter , 544 U. S., at 719; Locke , 540 U. S., at 718–719; Trinity Lutheran , 582 U. S., at ___ (slip op., at 6); Espinoza , 591 U. S., at ___ (slip op., at 6). This doctrine reflects the fact that it may be difficult to determine in any particular case whether the Free Exercise Clause requires a State to fund the activities of a religious institution, or whether the Establishment Clause prohibits the State from doing so. Rather than attempting to draw a highly reticulated and complex free-exercise/establishment line that varies based on the specific circumstances of each state-funded program, we have provided general interpretive principles that apply uniformly in all Religion Clause cases. At the same time, we have made clear that States enjoy a degree of freedom to navigate the Clauses’ competing prohibitions. See, e.g. , Cutter , 544 U. S., at 713, 719–720. This includes choosing not to fund certain religious activity where States have strong, establishment-related reasons for not doing so. See, e.g. , Locke , 540 U. S., at 719–722. And, States have freedom to make this choice even when the Establishment Clause does not itself prohibit the State from funding that activity. Id. , at 719 (“[T]here are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause”). The Court today nowhere mentions, and I fear effectively abandons, this longstanding doctrine. B I have previously discussed my views of the relationship between the Religion Clauses and how I believe these Clauses should be interpreted to advance their goal of avoiding religious strife. See, e.g. , Espinoza , 591 U. S., at ___–___ (dissenting opinion) (slip op., at 13–20); Van Orden v. Perry , 545 U.S. 677 , 698–705 (2005) (opinion concurring in judgment); Zelman v. Simmons-Harris , 536 U.S. 639 , 717–729 (2002) (dissenting opinion). Here I simply note the increased risk of religiously based social conflict when government promotes religion in its public school system. “[T]he prescription of prayer and Bible reading in the public schools, during and as part of the curricular day, involving young impressionable children whose school attendance is statutorily compelled,” can “give rise to those very divisive influences and inhibitions of freedom which both religion clauses of the First Amendment” sought to prevent. Schempp , 374 U. S., at 307 (Goldberg, J., concurring). This potential for religious strife is still with us. We are today a Nation with well over 100 different religious groups, from Free Will Baptist to African Methodist, Buddhist to Humanist. See Pew Research Center, America’s Changing Religious Landscape 21 (May 12, 2015). People in our country adhere to a vast array of beliefs, ideals, and philosophies. And with greater religious diversity comes greater risk of religiously based strife, conflict, and social division. The Religion Clauses were written in part to help avoid that disunion. As Thomas Jefferson, one of the leading drafters and proponents of those Clauses, wrote, “ ‘to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.’ ” Everson , 330 U. S., at 13. And as James Madison, another drafter and proponent, said, compelled taxpayer sponsorship of religion “is itself a signal of persecution,” which “will destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced amongst its several sects.” Id. , at 68–69 (appendix to dissenting opinion of Rutledge, J.). To interpret the Clauses with these concerns in mind may help to further their original purpose of avoiding religious-based division. I have also previously explained why I believe that a “rigid, bright-line” approach to the Religion Clauses—an approach without any leeway or “play in the joints”—will too often work against the Clauses’ underlying purposes. Espinoza , 591 U. S., at ___ (dissenting opinion) (slip op., at 18); see also Van Orden , 545 U. S., at 669–700 (opinion concurring in judgment). “[G]overnment benefits come in many shapes and sizes.” Espinoza , 591 U. S., at ___ (slip op., at 16) (dissenting opinion). Not all state-funded programs that have religious restrictions carry the same risk of creating social division and conflict. In my view, that risk can best be understood by considering the particular benefit at issue, along with the reasons for the particular religious restriction at issue. See ibid. ; Trinity Lutheran , 582 U. S., at ___ (slip op., at 1) (Breyer, J., concurring in judgment). Recognition that States enjoy a degree of constitutional leeway allows States to enact laws sensitive to local circumstances while also allowing this Court to consider those circumstances in light of the basic values underlying the Religion Clauses. In a word, to interpret the two Clauses as if they were joined at the hip will work against their basic purpose: to allow for an American society with practitioners of over 100 different religions, and those who do not practice religion at all, to live together without serious risk of religion-based social divisions. II The majority believes that the principles set forth in this Court’s earlier cases easily resolve this case. But they do not. We have previously found, as the majority points out, that “a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.” Ante , at 10 (citing Zelman , 536 U. S., at 652–653). We have thus concluded that a State may , consistent with the Establishment Clause, provide funding to religious schools through a general public funding program if the “government aid . . . reach[es] religious institutions only by way of the deliberate choices of . . . individual [aid] recipients.” Id. , at 652. But the key word is “may.” We have never previously held what the Court holds today, namely, that a State must (not may ) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education. What happens once “may” becomes “must”? Does that transformation mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools? Does it mean that school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education? What other social benefits are there the State’s provision of which means—under the majority’s interpretation of the Free Exercise Clause—that the State must pay parents for the religious equivalent of the secular benefit provided? The concept of “play in the joints” means that courts need not, and should not, answer with “must” these questions that can more appropriately be answered with “may.” The majority also asserts that “[t]he ‘unremarkable’ principles applied in Trinity Lutheran and Espinoza suffice to resolve this case.” Ante , at 9. Not so. The state-funded program at issue in Trinity Lutheran provided payment for resurfacing school playgrounds to make them safer for children. Any Establishment Clause concerns arising from providing money to religious schools for the creation of safer play yards are readily distinguishable from those raised by providing money to religious schools through the program at issue here—a tuition program designed to ensure that all children receive their constitutionally guaranteed right to a free public education. After all, cities and States normally pay for police forces, fire protection, paved streets, municipal transport, and hosts of other services that benefit churches as well as secular organizations. But paying the salary of a religious teacher as part of a public school tuition program is a different matter. In addition, schools were excluded from the playground resurfacing program at issue in Trinity Lutheran because of the mere fact that they were “owned or controlled by a church, sect, or other religious entity.” 582 U. S., at ___ (slip op., at 2). Schools were thus disqualified from receiving playground funds “solely because of their religious character,” not because of the “religious uses of [the] funding” they would receive. Id. , at ___, ___, n. 3 (slip op., at 10, 14, n. 3). Here, by contrast, a school’s “ ‘affiliation or association with a church or religious institution . . . is not dispositive’ ” of its ability to receive tuition funds. 979 F.3d 21, 38 (CA1 2020) (quoting then-commissioner of Maine’s Department of Education). Instead, Maine chooses not to fund only those schools that “ ‘promot[e] the faith or belief system with which [the schools are] associated and/or presen[t] the [academic] material taught through the lens of this faith’ ”— i.e. , schools that will use public money for religious purposes. Ibid. Maine thus excludes schools from its tuition program not because of the schools’ religious character but because the schools will use the funds to teach and promote religious ideals. For similar reasons, Espinoza does not resolve the present case. In Espinoza , Montana created “a scholarship program for students attending private schools.” 591 U. S., at ___ (slip op., at 1). But the State prohibited families from using the scholarship at any private school “ ‘owned or controlled in whole or in part by any church, religious sect, or denomination.’ ” Id. , at ___ (slip op., at 3) (quoting Mont. Admin. Rule §42.4.802(1)(a) (2015)). As in Trinity Lutheran , Montana denied funds to schools based “expressly on religious status and not religious use”; “[t]o be eligible” for scholarship funds, a school had to “divorce itself from any religious control or affiliation.” 591 U. S. at ___–___ (slip op., at 10–11). Here, again, Maine denies tuition money to schools not because of their religious affiliation, but because they will use state funds to promote religious views. These distinctions are important. The very point of the Establishment Clause is to prevent the government from sponsoring religious activity itself, thereby favoring one religion over another or favoring religion over nonreligion. See Engel , 370 U. S., at 430 (“Under [the Establishment Clause] . . . government in this country, be it state or federal, is without power to prescribe by law . . . any program of governmentally sponsored religious activity”); Walz , 397 U. S., at 668 (“[F]or the men who wrote the Religion Clauses . . . the ‘establishment’ of a religion connoted . . . [any] active involvement of the sovereign in religious activity”); Everson , 330 U. S., at 15 (States may not “pass laws which aid one religion, aid all religions, or prefer one religion over another”). State funding of religious activity risks the very social conflict based upon religion that the Religion Clauses were designed to prevent. And, unlike the circumstances present in Trinity Lutheran and Espinoza , it is religious activity, not religious labels, that lies at the heart of this case. III A I turn now to consider the Maine program at issue here. Maine’s Constitution guarantees Maine’s children a free public education by requiring that all towns provide “for the support and maintenance of public schools.” Art. VIII, pt. 1, §1; see also Me. Rev. Stat. Ann., Tit. 20–A, §2(1) (2008). Because of the State’s rural geography and dispersed population, however, over half of Maine’s school districts do not operate public secondary schools. App. 70. To fulfill its constitutional promise, Maine created a program that provides some parents in these districts with a monetary grant to help them educate their children “at the public school or the approved private school of the parent’s choice.” Me. Rev. Stat. Ann., Tit. 20–A, §5204(4) (Cum. Supp. 2021). The program’s “function is limited to authorizing the provision of tuition subsidies to the parents of children who live within school [districts] that simply do not have the resources to operate a public school system, and whose children would otherwise not be given an opportunity to receive a free public education.” Hallissey v. School Administrative Dist. No. 77 , 2000 ME 143, ¶16, 755 A.2d 1068 , 1073. Under Maine law, an “approved” private school must be “nonsectarian.” §2951(2). A school fails to meet that requirement (and is deemed “sectarian”) only if it is both (1) “ ‘associated with a particular faith or belief system’ ” and also (2) “ ‘promotes the faith or belief system with which it is associated and/or presents the [academic] material taught through the lens of this faith.’ ” 979 F. 3d, at 38 (quoting Maine’s then-education commissioner). To determine whether a school is sectarian, the “ ‘focus is on what the school teaches through its curriculum and related activities, and how the material is presented.’ ” Ibid. (emphasis deleted). “ ‘[A]ffiliation or association with a church or religious institution . . . is not dispositive’ ” of sectarian status. Ibid. The two private religious schools at issue here satisfy both of these criteria. They are affiliated with a church or religious organization. See App. 80, 91. And they also teach students to accept particular religious beliefs and to engage in particular religious practices. The first school, Bangor Christian, has “educational objectives” that include “ ‘lead[ing] each unsaved student to trust Christ as his/her personal savior and then to follow Christ as Lord of his/her life,’ ” and “ ‘develop[ing] within each student a Christian world view and Christian philosophy of life.’ ” Id ., at 84. Bangor Christian “does not believe there is any way to separate the religious instruction from the academic instruction.” Id ., at 85. Academic instruction and religious instruction are thus “completely intertwined.” Ibid. Bangor Christian teaches in its social studies class, for example, “ ‘that God has ordained evangelism.’ ” Id ., at 87. And in science class, students learn that atmospheric layers “ ‘are evidence of God’s good design.’ ” Id ., at 89. The second school, Temple Academy, similarly promotes religion through academics. Its “educational philosophy ‘is based on a thoroughly Christian and Biblical world view.’ ” Id ., at 92. The school’s “objectives” include “ ‘foster[ing] within each student an attitude of love and reverence of the Bible as the infallible, inerrant, and authoritative Word of God.’ ” Ibid. And the school’s “ ‘academic growth’ objectives” include “ ‘provid[ing] a sound academic education in which the subjec[t] areas are taught from a Christian point of view,’ ” and “ ‘help[ing] every student develop a truly Christian world view by integrating studies with the truths of Scripture.’ ” Id ., at 93. Like Bangor Christian, Temple “provides a ‘biblically-integrated education,’ which means that the Bible is used in every subject that is taught.” Id ., at 96. In mathematics classes, for example, students learn that “a creator designed the universe such that ‘one plus one is always going to be two.’ ” Ibid. The differences between this kind of education and a purely civic, public education are important. “The religious education and formation of students is the very reason for the existence of most private religious schools.” Our Lady of Guadalupe School v. Morrissey-Berru , 591 U. S. ___, ___ (2020) (slip op., at 2). “[E]ducating young people in their faith, inculcating its teachings, and training them to live their faith,” we have said, “are responsibilities that lie at the very core of the mission of a private religious school.” Id. , at ___ (slip op., at 18). Indeed, we have recognized that the “connection that religious institutions draw between their central purpose and educating the young in the faith” is so “close” that teachers employed at such schools act as “ministers” for purposes of the First Amendment. Id. , at ___, ___ (slip op., at 2, 21); see also Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC , 565 U.S. 171 (2012). By contrast, public schools, including those in Maine, seek first and foremost to provide a primarily civic education. We have said that, in doing so, they comprise “a most vital civic institution for the preservation of a democratic system of government, and . . . the primary vehicle for transmitting the values on which our society rests.” Plyler v. Doe , 457 U.S. 202 , 221 (1982) (citation and internal quotation marks omitted). To play that role effectively, public schools are religiously neutral, neither disparaging nor promoting any one particular system of religious beliefs. We accordingly have, as explained above, consistently required public school education to be free from religious affiliation or indoctrination. Cf. Edwards v. Aguillard , 482 U.S. 578 , 583–584 (1987) (“The Court has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary [public] schools”). Maine legislators who endorsed the State’s nonsectarian requirement recognized these differences between public and religious education. They did not want Maine taxpayers to finance, through a tuition program designed to ensure the provision of free public education, schools that would use state money for teaching religious practices. See, e.g. , App. 104 (Maine representative stating that “[f]rom a public policy position, we must believe that a religiously neutral classroom is the best if funded by public dollars”); id. , at 106 (Maine senator asserting that the State’s “limited [tax] dollars for schools” should be spent on those “that are non-religious and that are neutral on religion”). Underlying these views is the belief that the Establishment Clause seeks government neutrality. And the legislators thought that government payment for this kind of religious education would be antithetical to the religiously neutral education that the Establishment Clause requires in public schools. Cf. Epperson , 393 U. S., at 106; McCollum , 333 U. S., at 211. Maine’s nonsectarian requirement, they believed, furthered the State’s antiestablishment interests in not promoting religion in its public school system; the requirement prevented public funds—funds allocated to ensure that all children receive their constitutional right to a free public education—from being given to schools that would use the funds to promote religion. In the majority’s view, the fact that private individuals, not Maine itself, choose to spend the State’s money on religious education saves Maine’s program from Establishment Clause condemnation. But that fact, as I have said, simply permits Maine to route funds to religious schools. See, e.g. , Zelman , 536 U. S., at 652. It does not require Maine to spend its money in that way. That is because, as explained above, this Court has long followed a legal doctrine that gives States flexibility to navigate the tension between the two Religion Clauses. Supra , at 4. This doctrine “recognize[s] that there is ‘play in the joints’ between what the Establishment Clause permits and the Free Exercise Clause compels.” Trinity Lutheran , 582 U. S., at ___ (slip op., at 6) (quoting Locke , 540 U. S., at 718). This wiggle-room means that “[t]he course of constitutional neutrality in this area cannot be an absolutely straight line.” Walz , 397 U. S., at 669. And in walking this line of government neutrality, States must have “some space for legislative action neither compelled by the Free Exercise Clause nor prohibited by the Establishment Clause,” Cutter , 544 U. S., at 719, in which they can navigate the tension created by the Clauses and consider their own interests in light of the Clauses’ competing prohibitions. See, e.g. , Walz , 397 U. S., at 669. Nothing in our Free Exercise Clause cases compels Maine to give tuition aid to private schools that will use the funds to provide a religious education. As explained above, this Court’s decisions in Trinity Lutheran and Espinoza prohibit States from denying aid to religious schools solely because of a school’s religious status —that is, its affiliation with or control by a religious organization. Supra , at 7–9. But we have never said that the Free Exercise Clause prohibits States from withholding funds because of the religious use to which the money will be put. Cf. Trinity Lutheran , 582 U. S., at ___ (slip op., at 12). To the contrary, we upheld in Locke a State’s decision to deny public funding to a recipient “because of what he proposed to do ” with the money, when what he proposed to do was to “use the funds to prepare for the ministry.” Trinity Lutheran , 582 U. S., at ___ (slip op., at 12); see also Espinoza , 591 U. S., at ___ (slip op., at 13) (characterizing Locke similarly). Maine does not refuse to pay tuition at private schools because of religious status or affiliation. The State only denies funding to schools that will use the money to promote religious beliefs through a religiously integrated education—an education that, in Maine’s view, is not a replacement for a civic-focused public education. See 979 F. 3d, at 38. This makes Maine’s decision to withhold public funds more akin to the state decision that we upheld in Locke , and unlike the withholdings that we invalidated in Trinity Lutheran and Espinoza . The Free Exercise Clause thus does not require Maine to fund, through its tuition program, schools that will use public money to promote religion. And considering the Establishment Clause concerns underlying the program, Maine’s decision not to fund such schools falls squarely within the play in the joints between those two Clauses. Maine has promised all children within the State the right to receive a free public education. In fulfilling this promise, Maine endeavors to provide children the religiously neutral education required in public school systems. And that, in significant part, reflects the State’s antiestablishment interests in avoiding spending public money to support what is essentially religious activity. The Religion Clauses give Maine the ability, and flexibility, to make this choice. B In my view, Maine’s nonsectarian requirement is also constitutional because it supports, rather than undermines, the Religion Clauses’ goal of avoiding religious strife. Forcing Maine to fund schools that provide the sort of religiously integrated education offered by Bangor Christian and Temple Academy creates a similar potential for religious strife as that raised by promoting religion in public schools. It may appear to some that the State favors a particular religion over others, or favors religion over nonreligion. Members of minority religions, with too few adherents to establish schools, may see injustice in the fact that only those belonging to more popular religions can use state money for religious education. Taxpayers may be upset at having to finance the propagation of religious beliefs that they do not share and with which they disagree. And parents in school districts that have a public secondary school may feel indignant that only some families in the State—those families in the more rural districts without public schools—have the opportunity to give their children a Maine-funded religious education. Maine legislators who endorsed the State’s nonsectarian requirement understood this potential for social conflict. They recognized the important rights that religious schools have to create the sort of religiously inspired curriculum that Bangor Christian and Temple Academy teach. Legislators also recognized that these private schools make religiously based enrollment and hiring decisions. Bangor Christian and Temple Academy, for example, have admissions policies that allow them to deny enrollment to students based on gender, gender-identity, sexual orientation, and religion, and both schools require their teachers to be Born Again Christians. App. 82–83, 89, 93, 98. Legislators did not want Maine taxpayers to pay for these religiously based practices—practices not universally endorsed by all citizens of the State—for fear that doing so would cause a significant number of Maine citizens discomfort or displeasure. See, e.g. , id. , at 101 (Maine representative noting that “private religious schools discriminate against citizens of the State of Maine,” such as by “not hir[ing] individuals whose beliefs are not consistent with the school’s religious teachings,” and asserting that “it is fundamentally wrong for us to fund” such discrimination); id. , at 104 (Maine representative stating that “the people of Maine” should not use “public money” to advance “their religious pursuits,” and that “discrimination in religious institutions” should not be funded “with my dollar”); id. , at 107 (Maine senator expressing concern that “public funds could be used to teach intolerant religious views”). The nonsectarian requirement helped avoid this conflict—the precise kind of social conflict that the Religion Clauses themselves sought to avoid. Maine’s nonsectarian requirement also serves to avoid religious strife between the State and the religious schools. Given that Maine is funding the schools as part of its effort to ensure that all children receive the basic public education to which they are entitled, Maine has an interest in ensuring that the education provided at these schools meets certain curriculum standards. Religious schools, on the other hand, have an interest in teaching a curriculum that advances the tenets of their religion. And the schools are of course entitled to teach subjects in the way that best reflects their religious beliefs. But the State may disagree with the particular manner in which the schools have decided that these subjects should be taught. This is a situation ripe for conflict, as it forces Maine into the position of evaluating the adequacy or appropriateness of the schools’ religiously inspired curriculum. Maine does not want this role. As one legislator explained, one of the reasons for the nonsectarian requirement was that “[g]overnment officials cannot, and should not, review the religious teachings of religious schools.” Ibid. Another legislator cautioned that the State would be unable to “reconcile” the curriculum of “private religious schools who teach religion in the classroom” with Maine “standards . . . that do not include any sort of religion in them.” Id ., at 102. Nor do the schools want Maine in this role. Bangor Christian asserted that it would only consider accepting public funds if it “did not have to make any changes in how it operates.” Id ., at 90. Temple Academy similarly stated that it would only accept state money if it had “in writing that the school would not have to alter its admissions standards, hiring standards, or curriculum.” Id ., at 99. The nonsectarian requirement ensures that Maine is not pitted against private religious schools in these battles over curriculum or operations, thereby avoiding the social strife resulting from this state-versus-religion confrontation. By invalidating the nonsectarian requirement, the majority today subjects the State, the schools, and the people of Maine to social conflict of a kind that they, and the Religion Clauses, sought to prevent. I emphasize the problems that may arise out of today’s decision because they reinforce my belief that the Religion Clauses do not require Maine to pay for a religious education simply because, in some rural areas, the State will help parents pay for a secular education. After all, the Establishment Clause forbids a State from paying for the practice of religion itself. And state neutrality in respect to the teaching of the practice of religion lies at the heart of this Clause. See, e.g. , Locke , 540 U. S., at 721–722 (noting that there are “few areas in which a State’s antiestablishment interests come more into play” than state funding of ministers who will “lead [their] congregation[s]” in “religious endeavor[s]”). There is no meaningful difference between a State’s payment of the salary of a religious minister and the salary of someone who will teach the practice of religion to a person’s children. At bottom, there is almost no area “as central to religious belief as the shaping, through primary education, of the next generation’s minds and spirits.” Zelman , 536 U. S., at 725 (Breyer, J., dissenting). The Establishment Clause was intended to keep the State out of this area. *  *  * Maine wishes to provide children within the State with a secular, public education. This wish embodies, in significant part, the constitutional need to avoid spending public money to support what is essentially the teaching and practice of religion. That need is reinforced by the fact that we are today a Nation of more than 330 million people who ascribe to over 100 different religions. In that context, state neutrality with respect to religion is particularly important. The Religion Clauses give Maine the right to honor that neutrality by choosing not to fund religious schools as part of its public school tuition program. I believe the majority is wrong to hold the contrary. And with respect, I dissent. SUPREME COURT OF THE UNITED STATES _________________ No. 20–1088 _________________ DAVID CARSON, as parent and next friend of O. C., et al., PETITIONERS v. A. PENDER MAKIN on writ of certiorari to the united states court of appeals for the first circuit [June 21, 2022] Justice Sotomayor, dissenting. This Court continues to dismantle the wall of separation between church and state that the Framers fought to build. Justice Breyer explains why the Court’s analysis falters on its own terms, and I join all but Part I–B of his dissent. I write separately to add three points. First, this Court should not have started down this path five years ago. See Trinity Lutheran Church of Columbia, Inc. v. Comer , 582 U. S. ___ (2017). Before Trinity Lutheran , it was well established that “both the United States and state constitutions embody distinct views” on “the subject of religion”—“in favor of free exercise, but opposed to establishment”—“that find no counterpart” with respect to other constitutional rights. Locke v. Davey , 540 U.S. 712 , 721 (2004). Because of this tension, the Court recognized “ ‘room for play in the joints’ between” the Religion Clauses, with “some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause.” Id., at 718–719 (quoting Walz v. Tax Comm’n of City of New York , 397 U.S. 664 , 669 (1970)); see ante, at 4 (Breyer, J., dissenting). Using this flexibility, and consistent with a rich historical tradition, see Trinity Lutheran , 582 U. S., at ___–___ (Sotomayor, J., dissenting) (slip op., at 11–16), States and the Federal Government could decline to fund religious institutions. Moreover, the Court for many decades understood the Establishment Clause to prohibit government from funding religious exercise.[ 1 ] Over time, the Court eroded these principles in certain respects. See, e.g., Zelman v. Simmons-Harris , 536 U.S. 639 , 662 (2002) (allowing government funds to flow to religious schools if private individuals selected the benefiting schools; the government program was “entirely neutral with respect to religion”; and families enjoyed a “genuine choice among options public and private, secular and religious”). Nevertheless, the space between the Clauses continued to afford governments “some room to recognize the unique status of religious entities and to single them out on that basis for exclusion from otherwise generally applicable laws.” Trinity Lutheran , 582 U. S., at ___ (Sotomayor, J., dissenting) (slip op., at 9). Trinity Lutheran veered sharply away from that understanding. After assuming away an Establishment Clause violation, the Court revolutionized Free Exercise doctrine by equating a State’s decision not to fund a religious organization with presumptively unconstitutional discrimination on the basis of religious status. See id., at ___–___ (slip op., at 10–11). A plurality, however, limited the Court’s decision to “express discrimination based on religious identity” ( i.e., status), not “religious uses of funding.” Id., at ___, n. 3 (slip op., at 14, n. 3). In other words, a State was barred from withholding funding from a religious entity “solely because of its religious character,” id., at ___ (opinion of the Court) (slip op., at 14), but retained authority to do so on the basis that the funding would be put to religious uses. Two Terms ago, the Court reprised and extended Trinity Lutheran ’s error to hold that a State could not limit a private-school voucher program to secular schools. Espinoza v. Montana Dept. of Revenue , 591 U. S. ___, ___ (2020) (slip op., at 9). The Court, however, again refrained from extending Trinity Lutheran from funding restrictions based on religious status to those based on religious uses. Espinoza , 591 U. S., at ___–___ (2020) (slip op., at 9–12). As Justice Breyer explains, see ante, at 8–9, this status-use distinction readily distinguishes this case from Trinity Lutheran and Espinoza . I warned in Trinity Lutheran , however, that the Court’s analysis could “be manipulated to call for a similar fate for lines drawn on the basis of religious use.” 582 U. S., at ___, n. 14 (dissenting opinion) (slip op., at 25, n. 14). That fear has come to fruition: The Court now holds for the first time that “any status-use distinction” is immaterial in both “theory” and “practice.” Ante, at 17. It reaches that conclusion by embracing arguments from prior separate writings and ignoring decades of precedent affording governments flexibility in navigating the tension between the Religion Clauses. As a result, in just a few years, the Court has upended constitutional doctrine, shifting from a rule that permits States to decline to fund religious organizations to one that requires States in many circumstances to subsidize religious indoctrination with taxpayer dollars. Second, the consequences of the Court’s rapid transformation of the Religion Clauses must not be understated. From a doctrinal perspective, the Court’s failure to apply the play-in-the-joints principle here, see ante, at 13–14 (Breyer, J., dissenting), leaves one to wonder what, if anything, is left of it. The Court’s increasingly expansive view of the Free Exercise Clause risks swallowing the space between the Religion Clauses that once “permit[ted] religious exercise to exist without sponsorship and without interference.” Walz , 397 U. S., at 669. From a practical perspective, today’s decision directs the State of Maine (and, by extension, its taxpaying citizens) to subsidize institutions that undisputedly engage in religious instruction. See ante, at 10–11 (Breyer, J., dissenting). In addition, while purporting to protect against discrimination of one kind, the Court requires Maine to fund what many of its citizens believe to be discrimination of other kinds. See ante, at 16 (Breyer, J., dissenting) (summarizing Bangor Christian Schools’ and Temple Academy’s policies denying enrollment to students based on gender identity, sexual orientation, and religion). The upshot is that Maine must choose between giving subsidies to its residents or refraining from financing religious teaching and practices. Finally, the Court’s decision is especially perverse because the benefit at issue is the public education to which all of Maine’s children are entitled under the State Constitution. As this Court has long recognized, the Establishment Clause requires that public education be secular and neutral as to religion. See ante, at 2–3, 12 (Breyer, J., dissenting) (collecting cases). The Court avoids this framing of Maine’s benefit because, it says, “Maine has decided not to operate schools of its own, but instead to offer tuition assistance that parents may direct to the public or private schools of their choice.” Ante, at 14. In fact, any such “deci[sion],” ibid. , was forced upon Maine by “the realities of remote geography and low population density,” ante, at 2, which render it impracticable for the State to operate its own schools in many communities. The Court’s analysis does leave some options open to Maine. For example, under state law, school administrative units (SAUs) that cannot feasibly operate their own schools may contract directly with a public school in another SAU, or with an approved private school, to educate their students. See Me. Rev. Stat. Ann., Tit. 20–A, §§2701, 2702 (2008). I do not understand today’s decision to mandate that SAUs contract directly with schools that teach religion, which would go beyond Zelman ’s private-choice doctrine and blatantly violate the Establishment Clause. Nonetheless, it is irrational for this Court to hold that the Free Exercise Clause bars Maine from giving money to parents to fund the only type of education the State may provide consistent with the Establishment Clause: a religiously neutral one. Nothing in the Constitution requires today’s result. *  *  * What a difference five years makes. In 2017, I feared that the Court was “lead[ing] us . . . to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.” Trinity Lutheran , 582 U. S., at ___ (dissenting opinion) (slip op., at 27). Today, the Court leads us to a place where separation of church and state becomes a constitutional violation. If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens. With growing concern for where this Court will lead us next, I respectfully dissent. Notes 1 See, e.g., Everson v. Board of Ed. of Ewing , 330 U.S. 1 , 16 (1947) (“No tax in any amount, large or small, can be levied to support any religious activities or institutions . . . ”); Agostini v. Felton , 521 U.S. 203 , 222–223 (1997) (observing that government aid that impermissibly “advanc[ed] . . . religion” was constitutionally barred); Mitchell v. Helms , 530 U.S. 793 , 840 (2000) (O’Connor, J., concurring in judgment) (“[O]ur decisions provide no precedent for the use of public funds to finance religious activities” (internal quotation marks omitted)); see also Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U.S. 819 , 875–876 (1995) (Souter, J., dissenting) (chronicling cases).

The Supreme Court ruled that Maine's restriction of tuition assistance to non-sectarian schools violated the Free Exercise Clause of the First Amendment. Maine's program provided tuition assistance to parents in school districts without public secondary schools, but the Court held that excluding religious schools from the program was unconstitutional. Dissenting opinions argued that the ruling violated the Establishment Clause and that Maine's program was consistent with the Constitution's anti-establishment interests.

Role of Courts

Glass v. The Betsey

https://supreme.justia.com/cases/federal/us/3/6/

U.S. Supreme Court Glass v. The Betsey, 3 U.S. 3 Dall. 6 6 (1794) Glass v. The Betsey 3 U.S. (3 Dall.) 6 Syllabus Every district court of the United States possesses all the powers of a court of admiralty, whether considered as an instance or a prize court. Where a vessel had been captured on the high seas as prize by a French privateer and brought by the captors into Baltimore, and there restoration claimed by the Swedish and American owners in the district court of the United States; the District Court of Maryland has jurisdiction competent to inquire and decide whether restoration ought to be made to the claimants or either of them, in whole or in part, consistently with the laws of nations and the treaties and laws of the United States. No foreign power can of right institute or grant any courts of judicature of any kind within the jurisdiction of the United States, but such only as are warranted by and be in pursuance of treaties. Page 3 U. S. 7 Captain Pierre Arcade Johannene, the commander of a French privateer, called the Citizen Genet, having captured as prize, on the high seas, the sloop Betsey, sent the vessel into Baltimore; but upon her arrival there, the owners of the sloop and her cargo filed a libel in the District Court of Maryland claiming restitution, because the vessel belonged to subjects of the King of Sweden, a neutral power, and the cargo was owned jointly by Swedes and Americans. The captor filed a plea to the jurisdiction of the court, which, after argument, was allowed; the circuit court affirmed the decree, and thereupon the present appeal was instituted. The general question was whether under the circumstances of this case, an American court of admiralty has jurisdiction to entertain the complaint or libel of the owners and to decree restitution of the property. Page 3 U. S. 15 The Court, having kept the cause under advisement for several days, informed the counsel that besides the question of jurisdiction as to the district court, another question fairly arose upon the record, whether any foreign nation had a right, without the positive stipulations of a treaty, to establish in this country an admiralty jurisdiction for taking cognizance of prizes captured on the high seas by its subjects or citizens from its enemies. Though this question had not been agitated, the Court deemed it of great public importance to be decided, and, meaning to decide it, they declared a desire to hear it discussed. Du Ponceau, however, observed that the parties to the appeal did not conceive themselves interested in Page 3 U. S. 16 the point, and that the French minister had given no instructions for arguing it. Upon which, MR. CHIEF JUSTICE JAY proceeded to deliver the following unanimous opinion. The judges being decidedly of opinion that every district court in the United States possesses all the powers of a court of admiralty, whether considered as an instance or as a prize court, and that the plea of the aforesaid appellee, Pierre Arcade Johannene, to the jurisdiction of the District Court of Maryland, is insufficient. Therefore it is considered by the Supreme Court aforesaid, and now finally decreed and adjudged by the same that the said plea be and the same is hereby overruled and dismissed, and that the decree of the said District Court of Maryland founded thereon be and the same is hereby revoked, reversed, and annulled. And the said Supreme Court, being further clearly of opinion that the District Court of Maryland aforesaid has jurisdiction competent to inquire and to decide whether, in the present case, restitution ought to be made to the claimants, or either of them, in whole or in part (that is, whether such restitution can be made consistently with the laws of nations and the treaties and laws of the United States) therefore it is ordered and adjudged that the said District Court of Maryland do proceed to determine upon the libel of the said Alexander S. Glass and others, agreeably to law and right, the said plea to the jurisdiction of the said court notwithstanding. And the Supreme Court being further of opinion that no foreign power can of right institute or erect any court of judicature of any kind within the jurisdiction of the United States but such only as may be warranted by and be in pursuance of treaties, it is therefore Decreed and adjudged that the admiralty jurisdiction which has been exercised in the United States by the consuls of France, not being so warranted, is not of right. It is further ordered by the said Supreme Court that this cause be and it is hereby remanded to the District Court for the Maryland District for a final decision, and that the several parties to the same do each pay their own costs.

Here is a summary of the Supreme Court case Glass v. The Betsey (1794): The Supreme Court ruled that district courts in the United States have the powers of admiralty courts and can decide on prize cases. In this instance, the Court overruled the plea to the jurisdiction of the District Court of Maryland and ordered it to decide on the libel of the claimants seeking restitution of their vessel, which had been captured by a French privateer. The Court also declared that no foreign power can establish courts in the United States without being warranted by treaties. The case was remanded to the District Court for a final decision.

Religion

Kennedy v. Bremerton School District

https://supreme.justia.com/cases/federal/us/597/21-418/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 21–418 _________________ JOSEPH A. KENNEDY, PETITIONER v. BREMERTON SCHOOL DISTRICT on writ of certiorari to the united states court of appeals for the ninth circuit [June 27, 2022] Justice Gorsuch delivered the opinion of the Court. Joseph Kennedy lost his job as a high school football coach because he knelt at midfield after games to offer a quiet prayer of thanks. Mr. Kennedy prayed during a period when school employees were free to speak with a friend, call for a reservation at a restaurant, check email, or attend to other personal matters. He offered his prayers quietly while his students were otherwise occupied. Still, the Bremerton School District disciplined him anyway. It did so because it thought anything less could lead a reasonable observer to conclude (mistakenly) that it endorsed Mr. Kennedy’s religious beliefs. That reasoning was misguided. Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s. Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike. I A Joseph Kennedy began working as a football coach at Bremerton High School in 2008 after nearly two decades of service in the Marine Corps. App. 167. Like many other football players and coaches across the country, Mr. Kennedy made it a practice to give “thanks through prayer on the playing field” at the conclusion of each game. Id. , at 168, 171. In his prayers, Mr. Kennedy sought to express gratitude for “what the players had accomplished and for the opportunity to be part of their lives through the game of football.” Id. , at 168. Mr. Kennedy offered his prayers after the players and coaches had shaken hands, by taking a knee at the 50-yard line and praying “quiet[ly]” for “approximately 30 seconds.” Id. , at 168–169. Initially, Mr. Kennedy prayed on his own. See ibid. But over time, some players asked whether they could pray alongside him. 991 F.3d 1004, 1010 (CA9 2021); App. 169. Mr. Kennedy responded by saying, “ ‘This is a free country. You can do what you want.’ ” Ibid. The number of players who joined Mr. Kennedy eventually grew to include most of the team, at least after some games. Sometimes team members invited opposing players to join. Other times Mr. Kennedy still prayed alone. See ibid . Eventually, Mr. Kennedy began incorporating short motivational speeches with his prayer when others were present. See id. , at 170. Separately, the team at times engaged in pregame or postgame prayers in the locker room. It seems this practice was a “school tradition” that predated Mr. Kennedy’s tenure. Ibid . Mr. Kennedy explained that he “never told any student that it was important they participate in any religious activity.” Ibid . In particular, he “never pressured or encouraged any student to join” his postgame midfield prayers. Ibid . For over seven years, no one complained to the Bremerton School District (District) about these practices. See id. , at 63–64. It seems the District’s superintendent first learned of them only in September 2015, after an employee from another school commented positively on the school’s practices to Bremerton’s principal. See id. , at 109, 229. At that point, the District reacted quickly. On September 17, the superintendent sent Mr. Kennedy a letter. In it, the superintendent identified “two problematic practices” in which Mr. Kennedy had engaged. App. 40. First, Mr. Kennedy had provided “inspirational talk[s]” that included “overtly religious references” likely constituting “prayer” with the students “at midfield following the completion of . . . game[s].” Ibid. Second, he had led “students and coaching staff in a prayer” in the locker-room tradition that “predated [his] involvement with the program.” Id. , at 41. The District explained that it sought to establish “clear parameters” “going forward.” Ibid . It instructed Mr. Kennedy to avoid any motivational “talks with students” that “include[d] religious expression, including prayer,” and to avoid “suggest[ing], encourag[ing] (or discourag[ing]), or supervis[ing]” any prayers of students, which students remained free to “engage in.” Id. , at 44. The District also explained that any religious activity on Mr. Kennedy’s part must be “nondemonstrative ( i.e. , not outwardly discernible as religious activity)” if “students are also engaged in religious conduct” in order to “avoid the perception of endorsement.” Id. , at 45. In offering these directives, the District appealed to what it called a “direct tension between” the “Establishment Clause” and “a school employee’s [right to] free[ly] exercise” his religion. Id. , at 43. To resolve that “tension,” the District explained, an employee’s free exercise rights “must yield so far as necessary to avoid school endorsement of religious activities.” Ibid. After receiving the District’s September 17 letter, Mr. Kennedy ended the tradition, predating him, of offering locker-room prayers. Id. , at 40–41, 77, 170–172. He also ended his practice of incorporating religious references or prayer into his postgame motivational talks to his team on the field. See ibid. Mr. Kennedy further felt pressured to abandon his practice of saying his own quiet, on-field postgame prayer. See id. , at 172. Driving home after a game, however, Mr. Kennedy felt upset that he had “broken [his] commitment to God” by not offering his own prayer, so he turned his car around and returned to the field. Ibid. By that point, everyone had left the stadium, and he walked to the 50-yard line and knelt to say a brief prayer of thanks. See ibid . On October 14, through counsel, Mr. Kennedy sent a letter to school officials informing them that, because of his “sincerely-held religious beliefs,” he felt “compelled” to offer a “post-game personal prayer” of thanks at midfield. Id. , at 62–63, 172. He asked the District to allow him to continue that “private religious expression” alone. Id. , at 62. Consistent with the District’s policy, see id. , at 48, Mr. Kennedy explained that he “neither requests, encourages, nor discourages students from participating in” these prayers, id. , at 64. Mr. Kennedy emphasized that he sought only the opportunity to “wai[t] until the game is over and the players have left the field and then wal[k] to mid-field to say a short, private, personal prayer.” Id. , at 69. He “told everybody” that it would be acceptable to him to pray “when the kids went away from [him].” Id. , at 292. He later clarified that this meant he was even willing to say his “prayer while the players were walking to the locker room” or “bus,” and then catch up with his team. Id. , at 280–282; see also id. , at 59. However, Mr. Kennedy objected to the logical implication of the District’s September 17 letter, which he understood as banning him “from bowing his head” in the vicinity of students, and as requiring him to “flee the scene if students voluntarily [came] to the same area” where he was praying. Id. , at 70. After all, District policy prohibited him from “discourag[ing]” independent student decisions to pray. Id. , at 44. On October 16, shortly before the game that day, the District responded with another letter. See id. , at 76. The District acknowledged that Mr. Kennedy “ha[d] complied” with the “directives” in its September 17 letter. Id. , at 77. Yet instead of accommodating Mr. Kennedy’s request to offer a brief prayer on the field while students were busy with other activities—whether heading to the locker room, boarding the bus, or perhaps singing the school fight song—the District issued an ultimatum. It forbade Mr. Kennedy from engaging in “any overt actions” that could “appea[r] to a reasonable observer to endorse . . . prayer . . . while he is on duty as a District-paid coach.” Id. , at 81. The District did so because it judged that anything less would lead it to violate the Establishment Clause. Ibid. B After receiving this letter, Mr. Kennedy offered a brief prayer following the October 16 game. See id. , at 90. When he bowed his head at midfield after the game, “most [Bremerton] players were . . . engaged in the traditional singing of the school fight song to the audience.” Ibid . Though Mr. Kennedy was alone when he began to pray, players from the other team and members of the community joined him before he finished his prayer. See id. , at 82, 297. This event spurred media coverage of Mr. Kennedy’s dilemma and a public response from the District. The District placed robocalls to parents to inform them that public access to the field is forbidden; it posted signs and made announcements at games saying the same thing; and it had the Bremerton Police secure the field in future games. Id. , at 100–101, 354–355. Subsequently, the District superintendent explained in an October 20 email to the leader of a state association of school administrators that “the coach moved on from leading prayer with kids, to taking a silent prayer at the 50 yard line.” Id. , at 83. The official with whom the superintendent corresponded acknowledged that the “use of a silent prayer changes the equation a bit.” Ibid . On October 21, the superintendent further observed to a state official that “[t]he issue is quickly changing as it has shifted from leading prayer with student athletes, to a coaches [ sic ] right to conduct” his own prayer “on the 50 yard line.” Id. , at 88. On October 23, shortly before that evening’s game, the District wrote Mr. Kennedy again. It expressed “appreciation” for his “efforts to comply” with the District’s directives, including avoiding “on-the-job prayer with players in the . . . football program, both in the locker room prior to games as well as on the field immediately following games.” Id. , at 90. The letter also admitted that, during Mr. Kennedy’s recent October 16 postgame prayer, his students were otherwise engaged and not praying with him, and that his prayer was “fleeting.” Id. , at 90, 93. Still, the District explained that a “reasonable observer” could think government endorsement of religion had occurred when a “District employee, on the field only by virtue of his employment with the District, still on duty” engaged in “overtly religious conduct.” Id. , at 91, 93. The District thus made clear that the only option it would offer Mr. Kennedy was to allow him to pray after a game in a “private location” behind closed doors and “not observable to students or the public.” Id. , at 93–94. After the October 23 game ended, Mr. Kennedy knelt at the 50-yard line, where “no one joined him,” and bowed his head for a “brief, quiet prayer.” 991 F. 3d, at 1019; App. 173, 236–239. The superintendent informed the District’s board that this prayer “moved closer to what we want,” but nevertheless remained “unconstitutional.” Id. , at 96. After the final relevant football game on October 26, Mr. Kennedy again knelt alone to offer a brief prayer as the players engaged in postgame traditions. 443 F. Supp. 3d 1223, 1231 (WD Wash. 2020); App. to Pet. for Cert. 182. While he was praying, other adults gathered around him on the field. See 443 F. Supp. 3d, at 1231; App. 97. Later, Mr. Kennedy rejoined his players for a postgame talk, after they had finished singing the school fight song. 443 F. Supp. 3d, at 1231; App. 103. C Shortly after the October 26 game, the District placed Mr. Kennedy on paid administrative leave and prohibited him from “participat[ing], in any capacity, in . . . football program activities.” Ibid. In a letter explaining the reasons for this disciplinary action, the superintendent criticized Mr. Kennedy for engaging in “public and demonstrative religious conduct while still on duty as an assistant coach” by offering a prayer following the games on October 16, 23, and 26. Id. , at 102. The letter did not allege that Mr. Kennedy performed these prayers with students, and it acknowledged that his prayers took place while students were engaged in unrelated postgame activities. Id. , at 103. Additionally, the letter faulted Mr. Kennedy for not being willing to pray behind closed doors. Id. , at 102. In an October 28 Q&A document provided to the public, the District admitted that it possessed “no evidence that students have been directly coerced to pray with Kennedy.” Id. , at 105. The Q&A also acknowledged that Mr. Kennedy “ha[d] complied” with the District’s instruction to refrain from his “prior practices of leading players in a pre-game prayer in the locker room or leading players in a post-game prayer immediately following games.” Ibid. But the Q&A asserted that the District could not allow Mr. Kennedy to “engage in a public religious display.” Id. , at 105, 107, 110. Otherwise, the District would “violat[e] the . . . Establishment Clause” because “reasonable . . . students and attendees” might perceive the “district [as] endors[ing] . . . religion.” Id. , at 105. While Mr. Kennedy received “uniformly positive evaluations” every other year of his coaching career, after the 2015 season ended in November, the District gave him a poor performance evaluation. Kennedy v. Bremerton School Dist ., 869 F.3d 813, 820 (CA9 2017). The evaluation advised against rehiring Mr. Kennedy on the grounds that he “ ‘failed to follow district policy’ ” regarding religious expression and “ ‘failed to supervise student-athletes after games.’ ” Ibid. Mr. Kennedy did not return for the next season. Ibid. II A After these events, Mr. Kennedy sued in federal court, alleging that the District’s actions violated the First Amendment’s Free Speech and Free Exercise Clauses. App. 145, 160–164. He also moved for a preliminary injunction requiring the District to reinstate him. The District Court denied that motion, concluding that a “reasonable observer . . . would have seen him as . . . leading an orchestrated session of faith.” App. to Pet. for Cert. 303. Indeed, if the District had not suspended him, the court agreed, it might have violated the Constitution’s Establishment Clause. See id. , at 302–303. On appeal, the Ninth Circuit affirmed. Kennedy , 869 F. 3d, at 831. Following the Ninth Circuit’s ruling, Mr. Kennedy sought certiorari in this Court. The Court denied the petition. But Justice Alito, joined by three other Members of the Court, issued a statement stressing that “denial of certiorari does not signify that the Court necessarily agrees with the decision . . . below.” Kennedy v. Bremerton School Dist ., 586 U. S. ___, ___ (2019) (slip op., at 1). Justice Alito expressed concerns with the lower courts’ decisions, including the possibility that, under their reasoning, teachers might be “ordered not to engage in any ‘demonstrative’ conduct of a religious nature” within view of students, even to the point of being forbidden from “folding their hands or bowing their heads in prayer” before lunch. Id. , at ___ (slip op., at 4). B After the case returned to the District Court, the parties engaged in discovery and eventually brought cross-motions for summary judgment. At the end of that process, the District Court found that the “ ‘sole reason’ ” for the District’s decision to suspend Mr. Kennedy was its perceived “risk of constitutional liability” under the Establishment Clause for his “religious conduct” after the October 16, 23, and 26 games. 443 F. Supp. 3d, at 1231. The court found that reason persuasive too. Rejecting Mr. Kennedy’s free speech claim, the court concluded that because Mr. Kennedy “was hired precisely to occupy” an “influential role for student athletes,” any speech he uttered was offered in his capacity as a government employee and unprotected by the First Amendment. Id. , at 1237. Alternatively, even if Mr. Kennedy’s speech qualified as private speech, the District Court reasoned, the District properly suppressed it. Had it done otherwise, the District would have invited “an Establishment Clause violation.” Ibid. Turning to Mr. Kennedy’s free exercise claim, the District Court held that, even if the District’s policies restricting his religious exercise were not neutral toward religion or generally applicable, the District had a compelling interest in prohibiting his postgame prayers, because, once more, had it “allow[ed]” them it “would have violated the Establishment Clause.” Id. , at 1240. C The Ninth Circuit affirmed. It agreed with the District Court that Mr. Kennedy’s speech qualified as government rather than private speech because “his expression on the field—a location that he only had access to because of his employment—during a time when he was generally tasked with communicating with students, was speech as a government employee.” 991 F. 3d, at 1015. Like the District Court, the Ninth Circuit further reasoned that, “even if we were to assume . . . that Kennedy spoke as a private citizen,” the District had an “adequate justification” for its actions. Id. , at 1016. According to the court, “Kennedy’s on-field religious activity,” coupled with what the court called “his pugilistic efforts to generate publicity in order to gain approval of those on-field religious activities,” were enough to lead an “objective observer” to conclude that the District “endorsed Kennedy’s religious activity by not stopping the practice.” Id. , at 1017–1018. And that, the court held, would amount to a violation of the Establishment Clause. Ibid . The Court of Appeals rejected Mr. Kennedy’s free exercise claim for similar reasons. The District “concede[d]” that its policy that led to Mr. Kennedy’s suspension was not “neutral and generally applicable” and instead “restrict[ed] Kennedy’s religious conduct because the conduct [was] religious.” Id. , at 1020. Still, the court ruled, the District “had a compelling state interest to avoid violating the Establishment Clause,” and its suspension was narrowly tailored to vindicate that interest. Id. , at 1020–1021 . Later, the Ninth Circuit denied a petition to rehear the case en banc over the dissents of 11 judges. 4 F. 4th 910, 911 (2021). Among other things, the dissenters argued that the panel erred by holding that a failure to discipline Mr. Kennedy would have led the District to violate the Establishment Clause. Several dissenters noted that the panel’s analysis rested on Lemon v. Kurtzman , 403 U.S. 602 (1971), and its progeny for the proposition that the Establishment Clause is implicated whenever a hypothetical reasonable observer could conclude the government endorses religion. 4 F. 4th, at 945–947 (opinion of R. Nelson, J.). These dissenters argued that this Court has long since abandoned that “ahistorical, atextual” approach to discerning “Establishment Clause violations”; they observed that other courts around the country have followed suit by renouncing it too; and they contended that the panel should have likewise “recognized Lemon ’s demise and wisely left it dead.” Ibid ., and n. 3. We granted certiorari. 595 U. S. ___ (2022). III Now before us, Mr. Kennedy renews his argument that the District’s conduct violated both the Free Exercise and Free Speech Clauses of the First Amendment. These Clauses work in tandem. Where the Free Exercise Clause protects religious exercises, whether communicative or not, the Free Speech Clause provides overlapping protection for expressive religious activities. See, e.g. , Widmar v. Vincent , 454 U.S. 263 , 269, n. 6 (1981); Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U.S. 819 , 841 (1995). That the First Amendment doubly protects religious speech is no accident. It is a natural outgrowth of the framers’ distrust of government attempts to regulate religion and suppress dissent. See, e.g. , A Memorial and Remonstrance Against Religious Assessments, in Selected Writings of James Madison 21, 25 (R. Ketcham ed. 2006). “[I]n Anglo–American history, . . . government suppression of speech has so commonly been directed precisely at religious speech that a free-speech clause without religion would be Hamlet without the prince.” Capitol Square Review and Advisory Bd. v. Pinette , 515 U.S. 753 , 760 (1995). Under this Court’s precedents, a plaintiff bears certain burdens to demonstrate an infringement of his rights under the Free Exercise and Free Speech Clauses. If the plaintiff carries these burdens, the focus then shifts to the defendant to show that its actions were nonetheless justified and tailored consistent with the demands of our case law. See, e.g. , Fulton v. Philadelphia , 593 U. S. ___, ___–___, ___ (2021) (slip op., at 4–5, 13); Reed v. Town of Gilbert , 576 U.S. 155, 171 (2015); Garcetti v. Ceballos , 547 U.S. 410 , 418 (2006); Church of Lukumi Babalu Aye , Inc. v. Hialeah , 508 U.S. 520 , 546 (1993); Sherbert v. Verner , 374 U.S. 398 , 403 (1963). We begin by examining whether Mr. Kennedy has discharged his burdens, first under the Free Exercise Clause, then under the Free Speech Clause. A The Free Exercise Clause provides that “Congress shall make no law . . . prohibiting the free exercise” of religion. Amdt. 1. This Court has held the Clause applicable to the States under the terms of the Fourteenth Amendment. Cantwell v. Connecticut , 310 U.S. 296 , 303 (1940). The Clause protects not only the right to harbor religious beliefs inwardly and secretly. It does perhaps its most important work by protecting the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through “the performance of (or abstention from) physical acts.” Employment Div. , Dept. of Human Resources of Ore. v. Smith , 494 U.S. 872 , 877 (1990). Under this Court’s precedents, a plaintiff may carry the burden of proving a free exercise violation in various ways, including by showing that a government entity has burdened his sincere religious practice pursuant to a policy that is not “neutral” or “generally applicable.” Id. , at 879–881. Should a plaintiff make a showing like that, this Court will find a First Amendment violation unless the government can satisfy “strict scrutiny” by demonstrating its course was justified by a compelling state interest and was narrowly tailored in pursuit of that interest. Lukumi , 508 U. S., at 546.[ 1 ] That Mr. Kennedy has discharged his burdens is effectively undisputed. No one questions that he seeks to engage in a sincerely motivated religious exercise. The exercise in question involves, as Mr. Kennedy has put it, giving “thanks through prayer” briefly and by himself “on the playing field” at the conclusion of each game he coaches. App. 168, 171. Mr. Kennedy has indicated repeatedly that he is willing to “wai[t] until the game is over and the players have left the field” to “wal[k] to mid-field to say [his] short, private, personal prayer.” Id. , at 69; see also id. , at 280, 282. The contested exercise before us does not involve leading prayers with the team or before any other captive audience. Mr. Kennedy’s “religious beliefs do not require [him] to lead any prayer . . . involving students.” Id. , at 170. At the District’s request, he voluntarily discontinued the school tradition of locker-room prayers and his postgame religious talks to students. The District disciplined him only for his decision to persist in praying quietly without his players after three games in October 2015. See Parts I–B and I–C, supra . Nor does anyone question that, in forbidding Mr. Kennedy’s brief prayer, the District failed to act pursuant to a neutral and generally applicable rule. A government policy will not qualify as neutral if it is “specifically directed at . . . religious practice.” Smith , 494 U. S., at 878. A policy can fail this test if it “discriminate[s] on its face,” or if a religious exercise is otherwise its “object.” Lukumi , 508 U. S., at 533; see also Smith , 494 U. S., at 878. A government policy will fail the general applicability requirement if it “prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way,” or if it provides “a mechanism for individualized exemptions.” Fulton , 593 U. S., at ___ (slip op., at 6). Failing either the neutrality or general applicability test is sufficient to trigger strict scrutiny. See Lukumi , 508 U. S., at 546. In this case, the District’s challenged policies were neither neutral nor generally applicable. By its own admission, the District sought to restrict Mr. Kennedy’s actions at least in part because of their religious character. As it put it in its September 17 letter, the District prohibited “any overt actions on Mr. Kennedy’s part, appearing to a reasonable observer to endorse even voluntary, student-initiated prayer.” App. 81. The District further explained that it could not allow “an employee, while still on duty, to engage in religious conduct.” Id. , at 106 (emphasis added). Prohibiting a religious practice was thus the District’s unquestioned “object.” The District candidly acknowledged as much below, conceding that its policies were “not neutral” toward religion. 991 F. 3d, at 1020. The District’s challenged policies also fail the general applicability test. The District’s performance evaluation after the 2015 football season advised against rehiring Mr. Kennedy on the ground that he “failed to supervise student- athletes after games.” App. 114. But, in fact, this was a bespoke requirement specifically addressed to Mr. Kennedy’s religious exercise. The District permitted other members of the coaching staff to forgo supervising students briefly after the game to do things like visit with friends or take personal phone calls. App. 205; see also Part I–B, supra . Thus, any sort of postgame supervisory requirement was not applied in an evenhanded, across-the-board way. Again recognizing as much, the District conceded before the Ninth Circuit that its challenged directives were not “generally applicable.” 991 F. 3d, at 1020. B When it comes to Mr. Kennedy’s free speech claim, our precedents remind us that the First Amendment’s protections extend to “teachers and students,” neither of whom “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Community School Dist. , 393 U.S. 503 , 506 (1969); see also Lane v. Franks , 573 U.S. 228 , 231 (2014). Of course, none of this means the speech rights of public school employees are so boundless that they may deliver any message to anyone anytime they wish. In addition to being private citizens, teachers and coaches are also government employees paid in part to speak on the government’s behalf and convey its intended messages. To account for the complexity associated with the interplay between free speech rights and government employment, this Court’s decisions in Pickering v. Board of Ed. of Township High School Dist. 205 , Will Cty. , 391 U.S. 563 (1968), Garcetti , 547 U.S. 410 , and related cases suggest proceeding in two steps. The first step involves a threshold inquiry into the nature of the speech at issue. If a public employee speaks “pursuant to [his or her] official duties,” this Court has said the Free Speech Clause generally will not shield the individual from an employer’s control and discipline because that kind of speech is—for constitutional purposes at least—the government’s own speech. Id ., at 421. At the same time and at the other end of the spectrum, when an employee “speaks as a citizen addressing a matter of public concern,” our cases indicate that the First Amendment may be implicated and courts should proceed to a second step. Id. , at 423. At this second step, our cases suggest that courts should attempt to engage in “a delicate balancing of the competing interests surrounding the speech and its consequences.” Ibid . Among other things, courts at this second step have sometimes considered whether an employee’s speech interests are outweighed by “ ‘the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’ ” Id. , at 417 (quoting Pickering , 391 U. S., at 568). Both sides ask us to employ at least certain aspects of this Pickering – Garcetti framework to resolve Mr. Kennedy’s free speech claim. They share additional common ground too. They agree that Mr. Kennedy’s speech implicates a matter of public concern. See App. to Pet. for Cert. 183; Brief for Respondent 44. They also appear to accept, at least for argument’s sake, that Mr. Kennedy’s speech does not raise questions of academic freedom that may or may not involve “additional” First Amendment “interests” beyond those captured by this framework. Garcetti , 547 U. S., at 425; see also Keyishian v. Board of Regents of Univ. of State of N. Y. , 385 U.S. 589 , 603 (1967); Brief for Petitioner 26, n. 2. At the first step of the Pickering – Garcetti inquiry, the parties’ disagreement thus turns out to center on one question alone: Did Mr. Kennedy offer his prayers in his capacity as a private citizen, or did they amount to government speech attributable to the District? Our cases offer some helpful guidance for resolving this question. In Garcetti , the Court concluded that a prosecutor’s internal memorandum to a supervisor was made “pursuant to [his] official duties,” and thus ineligible for First Amendment protection. 547 U. S., at 421. In reaching this conclusion, the Court relied on the fact that the prosecutor’s speech “fulfill[ed] a responsibility to advise his supervisor about how best to proceed with a pending case.” Ibid. In other words, the prosecutor’s memorandum was government speech because it was speech the government “itself ha[d] commissioned or created” and speech the employee was expected to deliver in the course of carrying out his job. Id. , at 422. By contrast, in Lane a public employer sought to terminate an employee after he testified at a criminal trial about matters involving his government employment. 573 U. S., at 233. The Court held that the employee’s speech was protected by the First Amendment. Id. , at 231. In doing so, the Court held that the fact the speech touched on matters related to public employment was not enough to render it government speech. Id. , at 239–240. Instead, the Court explained, the “critical question . . . is whether the speech at issue is itself ordinarily within the scope of an employee’s duties.” Id. , at 240. It is an inquiry this Court has said should be undertaken “practical[ly],” rather than with a blinkered focus on the terms of some formal and capacious written job description. Garcetti , 547 U. S., at 424. To proceed otherwise would be to allow public employers to use “excessively broad job descriptions” to subvert the Constitution’s protections. Ibid . Applying these lessons here, it seems clear to us that Mr. Kennedy has demonstrated that his speech was private speech, not government speech. When Mr. Kennedy uttered the three prayers that resulted in his suspension, he was not engaged in speech “ordinarily within the scope” of his duties as a coach. Lane , 573 U. S., at 240. He did not speak pursuant to government policy. He was not seeking to convey a government-created message. He was not instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the District paid him to produce as a coach. See Part I–B, supra . Simply put: Mr. Kennedy’s prayers did not “ow[e their] existence” to Mr. Kennedy’s responsibilities as a public employee. Garcetti , 547 U. S., at 421. The timing and circumstances of Mr. Kennedy’s prayers confirm the point. During the postgame period when these prayers occurred, coaches were free to attend briefly to personal matters—everything from checking sports scores on their phones to greeting friends and family in the stands. App. 205; see Part I–B, supra . We find it unlikely that Mr. Kennedy was fulfilling a responsibility imposed by his employment by praying during a period in which the District has acknowledged that its coaching staff was free to engage in all manner of private speech. That Mr. Kennedy offered his prayers when students were engaged in other activities like singing the school fight song further suggests that those prayers were not delivered as an address to the team, but instead in his capacity as a private citizen. Nor is it dispositive that Mr. Kennedy’s prayers took place “within the office” environment—here, on the field of play. Garcetti , 547 U. S., at 421. Instead, what matters is whether Mr. Kennedy offered his prayers while acting within the scope of his duties as a coach. And taken together, both the substance of Mr. Kennedy’s speech and the circumstances surrounding it point to the conclusion that he did not. In reaching its contrary conclusion, the Ninth Circuit stressed that, as a coach, Mr. Kennedy served as a role model “clothed with the mantle of one who imparts knowledge and wisdom.” 991 F. 3d, at 1015. The court emphasized that Mr. Kennedy remained on duty after games. Id. , at 1016. Before us, the District presses the same arguments. See Brief for Respondent 24. And no doubt they have a point. Teachers and coaches often serve as vital role models. But this argument commits the error of positing an “excessively broad job descriptio[n]” by treating everything teachers and coaches say in the workplace as government speech subject to government control. Garcetti , 547 U. S., at 424. On this understanding, a school could fire a Muslim teacher for wearing a headscarf in the classroom or prohibit a Christian aide from praying quietly over her lunch in the cafeteria. Likewise, this argument ignores the District Court’s conclusion (and the District’s concession) that Mr. Kennedy’s actual job description left time for a private moment after the game to call home, check a text, socialize, or engage in any manner of secular activities. Others working for the District were free to engage briefly in personal speech and activity. App. 205; see Part I–B, supra . That Mr. Kennedy chose to use the same time to pray does not transform his speech into government speech. To hold differently would be to treat religious expression as second-class speech and eviscerate this Court’s repeated promise that teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker , 393 U. S., at 506. Of course, acknowledging that Mr. Kennedy’s prayers represented his own private speech does not end the matter. So far, we have recognized only that Mr. Kennedy has carried his threshold burden. Under the Pickering – Garcetti framework, a second step remains where the government may seek to prove that its interests as employer outweigh even an employee’s private speech on a matter of public concern. See Lane , 573 U. S., at 236, 242.[ 2 ] IV Whether one views the case through the lens of the Free Exercise or Free Speech Clause, at this point the burden shifts to the District. Under the Free Exercise Clause, a government entity normally must satisfy at least “strict scrutiny,” showing that its restrictions on the plaintiff ’s protected rights serve a compelling interest and are narrowly tailored to that end. See Lukumi , 508 U. S., at 533; n. 1, supra . A similar standard generally obtains under the Free Speech Clause. See Reed , 576 U. S., at 171. The District, however, asks us to apply to Mr. Kennedy’s claims the more lenient second-step Pickering – Garcetti test, or alternatively intermediate scrutiny. See Brief for Respondent 44–48. Ultimately, however, it does not matter which standard we apply. The District cannot sustain its burden under any of them.[ 3 ] A As we have seen, the District argues that its suspension of Mr. Kennedy was essential to avoid a violation of the Establishment Clause. Id. , at 35–42. On its account, Mr. Kennedy’s prayers might have been protected by the Free Exercise and Free Speech Clauses. But his rights were in “direct tension” with the competing demands of the Establishment Clause. App. 43. To resolve that clash, the District reasoned, Mr. Kennedy’s rights had to “yield.” Ibid . The Ninth Circuit pursued this same line of thinking, insisting that the District’s interest in avoiding an Establishment Clause violation “ ‘trump[ed]’ ” Mr. Kennedy’s rights to religious exercise and free speech. 991 F. 3d, at 1017; see also id. , at 1020–1021. But how could that be? It is true that this Court and others often refer to the “Establishment Clause,” the “Free Exercise Clause,” and the “Free Speech Clause” as separate units. But the three Clauses appear in the same sentence of the same Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.” Amdt. 1. A natural reading of that sentence would seem to suggest the Clauses have “complementary” purposes, not warring ones where one Clause is always sure to prevail over the others. See Everson v. Board of Ed. of Ewing , 330 U.S. 1 , 13, 15 (1947). The District arrived at a different understanding this way. It began with the premise that the Establishment Clause is offended whenever a “reasonable observer” could conclude that the government has “endorse[d]” religion. App. 81. The District then took the view that a “reasonable observer” could think it “endorsed Kennedy’s religious activity by not stopping the practice.” 991 F. 3d, at 1018; see also App. 80–81; Parts I and II, supra . On the District’s account, it did not matter whether the Free Exercise Clause protected Mr. Kennedy’s prayer. It did not matter if his expression was private speech protected by the Free Speech Clause. It did not matter that the District never actually endorsed Mr. Kennedy’s prayer, no one complained that it had, and a strong public reaction only followed after the District sought to ban Mr. Kennedy’s prayer. Because a reasonable observer could (mistakenly) infer that by allowing the prayer the District endorsed Mr. Kennedy’s message, the District felt it had to act, even if that meant suppressing otherwise protected First Amendment activities. In this way, the District effectively created its own “vise between the Establishment Clause on one side and the Free Speech and Free Exercise Clauses on the other,” placed itself in the middle, and then chose its preferred way out of its self-imposed trap. See Pinette , 515 U. S., at 768 (plurality opinion); Shurtleff v. Boston , 596 U. S. ___, ___–___ (2022) (Gorsuch, J., concurring in judgment) (slip op., at 4–5). To defend its approach, the District relied on Lemon and its progeny. See App. 43–45. In upholding the District’s actions, the Ninth Circuit followed the same course. See Part II–C, supra . And, to be sure, in Lemon this Court attempted a “grand unified theory” for assessing Establishment Clause claims. American Legion v. American Humanist Assn. , 588 U. S. ___, ___ (2019) (plurality opinion) (slip op., at 24). That approach called for an examination of a law’s purposes, effects, and potential for entanglement with religion. Lemon , 403 U. S., at 612–613. In time, the approach also came to involve estimations about whether a “reasonable observer” would consider the government’s challenged action an “endorsement” of religion. See, e.g. , County of Allegheny v. American Civil Liberties Union , Greater Pittsburgh Chapter , 492 U.S. 573 , 593 (1989); id. , at 630 (O’Connor, J., concurring in part and concurring in judgment); Shurtleff , 596 U. S., at ___ (opinion of Gorsuch, J.) (slip op., at 3). What the District and the Ninth Circuit overlooked, however, is that the “shortcomings” associated with this “ambitiou[s],” abstract, and ahistorical approach to the Establishment Clause became so “apparent” that this Court long ago abandoned Lemon and its endorsement test offshoot. American Legion , 588 U. S., at ___–___ (plurality opinion) (slip op., at 12–13); see also Town of Greece v. Galloway , 572 U.S. 565 , 575–577 (2014). The Court has explained that these tests “invited chaos” in lower courts, led to “differing results” in materially identical cases, and created a “minefield” for legislators. Pinette , 515 U. S., at 768–769, n. 3 (plurality opinion) (emphasis deleted). This Court has since made plain, too, that the Establishment Clause does not include anything like a “modified heckler’s veto, in which . . . religious activity can be proscribed” based on “ ‘perceptions’ ” or “ ‘discomfort.’ ” Good News Club v. Milford Central School , 533 U.S. 98 , 119 (2001) (emphasis deleted). An Establishment Clause violation does not automatically follow whenever a public school or other government entity “fail[s] to censor” private religious speech. Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens , 496 U.S. 226 , 250 (1990) (plurality opinion). Nor does the Clause “compel the government to purge from the public sphere” anything an objective observer could reasonably infer endorses or “partakes of the religious.” Van Orden v. Perry , 545 U.S. 677 , 699 (2005) (Breyer, J., concurring in judgment). In fact, just this Term the Court unanimously rejected a city’s attempt to censor religious speech based on Lemon and the endorsement test. See Shurtleff , 596 U. S., at ___–___ (slip op., at 1–2); id. , at ___ (Alito, J., concurring in judgment) (slip op., at 1); id ., at ___, ___–___ (opinion of Gorsuch, J.) (slip op., at 1, 4–5).[ 4 ] In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by “ ‘reference to historical practices and understandings.’ ” Town of Greece , 572 U. S., at 576; see also American Legion , 588 U. S., at ___ (plurality opinion) (slip op., at 25). “ ‘[T]he line’ ” that courts and governments “must draw between the permissible and the impermissible” has to “ ‘accor[d ] with history and faithfully reflec[t ] the understanding of the Founding Fathers.’ ” Town of Greece , 572 U. S., at 577 (quoting School Dist. of Abington Township v. Schempp , 374 U.S. 203 , 294 (1963) (Brennan, J., concurring)). An analysis focused on original meaning and history, this Court has stressed, has long represented the rule rather than some “ ‘exception’ ” within the “Court’s Establishment Clause jurisprudence.” 572 U. S., at 575; see American Legion , 588 U. S., at ___ (plurality opinion) (slip op., at 25); Torcaso v. Watkins , 367 U.S. 488 , 490 (1961) (analyzing certain historical elements of religious establishments); McGowan v. Maryland , 366 U.S. 420 , 437–440 (1961) (analyzing Sunday closing laws by looking to their “place . . . in the First Amendment’s history”); Walz v. Tax Comm’n of City of New York , 397 U.S. 664 , 680 (1970) (analyzing the “history and uninterrupted practice” of church tax exemptions). The District and the Ninth Circuit erred by failing to heed this guidance. B Perhaps sensing that the primary theory it pursued below rests on a mistaken understanding of the Establishment Clause, the District offers a backup argument in this Court. It still contends that its Establishment Clause concerns trump Mr. Kennedy’s free exercise and free speech rights. But the District now seeks to supply different reasoning for that result. Now, it says, it was justified in suppressing Mr. Kennedy’s religious activity because otherwise it would have been guilty of coercing students to pray. See Brief for Respondent 34–37. And, the District says, coercing worship amounts to an Establishment Clause violation on anyone’s account of the Clause’s original meaning. As it turns out, however, there is a pretty obvious reason why the Ninth Circuit did not adopt this theory in proceedings below: The evidence cannot sustain it. To be sure, this Court has long held that government may not, consistent with a historically sensitive understanding of the Establishment Clause, “make a religious observance compulsory.” Zorach v. Clauson , 343 U.S. 306 , 314 (1952). Government “may not coerce anyone to attend church,” ibid. , nor may it force citizens to engage in “a formal religious exercise,” Lee v. Weisman , 505 U.S. 577 , 589 (1992). No doubt, too, coercion along these lines was among the foremost hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment.[ 5 ] Members of this Court have sometimes disagreed on what exactly qualifies as impermissible coercion in light of the original meaning of the Establishment Clause. Compare Lee , 505 U. S., at 593, with id. , at 640–641 (Scalia, J., dissenting). But in this case Mr. Kennedy’s private religious exercise did not come close to crossing any line one might imagine separating protected private expression from impermissible government coercion. Begin with the District’s own contemporaneous description of the facts. In its correspondence with Mr. Kennedy, the District never raised coercion concerns. To the contrary, the District conceded in a public 2015 document that there was “no evidence that students [were] directly coerced to pray with Kennedy.” App. 105. This is consistent with Mr. Kennedy’s account too. He has repeatedly stated that he “never coerced, required, or asked any student to pray,” and that he never “told any student that it was important that they participate in any religious activity.” Id. , at 170. Consider, too, the actual requests Mr. Kennedy made. The District did not discipline Mr. Kennedy for engaging in prayer while presenting locker-room speeches to students. That tradition predated Mr. Kennedy at the school. App. 170. And he willingly ended it, as the District has acknowledged. Id. , at 77, 170 . He also willingly ended his practice of postgame religious talks with his team. Id. , at 70, 77, 170–172. The only prayer Mr. Kennedy sought to continue was the kind he had “started out doing” at the beginning of his tenure—the prayer he gave alone. Id. , at 293–294. He made clear that he could pray “while the kids were doing the fight song” and “take a knee by [him]self and give thanks and continue on.” Id. , at 294. Mr. Kennedy even considered it “acceptable” to say his “prayer while the players were walking to the locker room” or “bus,” and then catch up with his team. Id. , at 280, 282; see also id. , at 59 (proposing the team leave the field for the prayer). In short, Mr. Kennedy did not seek to direct any prayers to students or require anyone else to participate. His plan was to wait to pray until athletes were occupied, and he “told everybody” that’s what he wished “to do.” Id. , at 292. It was for three prayers of this sort alone in October 2015 that the District suspended him. See Parts I–B and I–C, supra . Naturally, Mr. Kennedy’s proposal to pray quietly by himself on the field would have meant some people would have seen his religious exercise. Those close at hand might have heard him too. But learning how to tolerate speech or prayer of all kinds is “part of learning how to live in a pluralistic society,” a trait of character essential to “a tolerant citizenry.” Lee , 505 U. S., at 590. This Court has long recognized as well that “secondary school students are mature enough . . . to understand that a school does not endorse,” let alone coerce them to participate in, “speech that it merely permits on a nondiscriminatory basis.” Mergens , 496 U. S., at 250 (plurality opinion). Of course, some will take offense to certain forms of speech or prayer they are sure to encounter in a society where those activities enjoy such robust constitutional protection. But “[o]ffense . . . does not equate to coercion.” Town of Greece , 572 U. S., at 589 (plurality opinion). The District responds that, as a coach, Mr. Kennedy “wielded enormous authority and influence over the students,” and students might have felt compelled to pray alongside him. Brief for Respondent 37. To support this argument, the District submits that, after Mr. Kennedy’s suspension, a few parents told District employees that their sons had “participated in the team prayers only because they did not wish to separate themselves from the team.” App. 356. This reply fails too. Not only does the District rely on hearsay to advance it. For all we can tell, the concerns the District says it heard from parents were occasioned by the locker-room prayers that predated Mr. Kennedy’s tenure or his postgame religious talks, all of which he discontinued at the District’s request. There is no indication in the record that anyone expressed any coercion concerns to the District about the quiet, postgame prayers that Mr. Kennedy asked to continue and that led to his suspension. Nor is there any record evidence that students felt pressured to participate in these prayers. To the contrary, and as we have seen, not a single Bremerton student joined Mr. Kennedy’s quiet prayers following the three October 2015 games for which he was disciplined. On October 16, those students who joined Mr. Kennedy were “ ‘from the opposing team,’ ” 991 F. 3d, at 1012–1013, and thus could not have “reasonably fear[ed]” that he would decrease their “playing time” or destroy their “opportunities” if they did not “participate,” Brief for Respondent 43. As for the other two relevant games, “no one joined” Mr. Kennedy on October 23. 991 F. 3d, at 1019. And only a few members of the public participated on October 26. App. 97, 314–315; see also Part I–B, supra .[ 6 ] The absence of evidence of coercion in this record leaves the District to its final redoubt. Here, the District suggests that any visible religious conduct by a teacher or coach should be deemed—without more and as a matter of law—impermissibly coercive on students. In essence, the District asks us to adopt the view that the only acceptable government role models for students are those who eschew any visible religious expression. See also post , at 16–17 (Sotomayor, J., dissenting). If the argument sounds familiar, it should. Really, it is just another way of repackaging the District’s earlier submission that government may script everything a teacher or coach says in the workplace. See Part III–B, supra . The only added twist here is the District’s suggestion not only that it may prohibit teachers from engaging in any demonstrative religious activity, but that it must do so in order to conform to the Constitution. Such a rule would be a sure sign that our Establishment Clause jurisprudence had gone off the rails. In the name of protecting religious liberty, the District would have us suppress it. Rather than respect the First Amendment’s double protection for religious expression, it would have us preference secular activity. Not only could schools fire teachers for praying quietly over their lunch, for wearing a yarmulke to school, or for offering a midday prayer during a break before practice. Under the District’s rule, a school would be required to do so. It is a rule that would defy this Court’s traditional understanding that permitting private speech is not the same thing as coercing others to participate in it. See Town of Greece , 572 U. S., at 589 (plurality opinion). It is a rule, too, that would undermine a long constitutional tradition under which learning how to tolerate diverse expressive activities has always been “part of learning how to live in a pluralistic society.” Lee , 505 U. S., at 590. We are aware of no historically sound understanding of the Establishment Clause that begins to “mak[e] it necessary for government to be hostile to religion” in this way. Zorach , 343 U. S., at 314. Our judgments on all these scores find support in this Court’s prior cases too. In Zorach , for example, challengers argued that a public school program permitting students to spend time in private religious instruction off campus was impermissibly coercive. Id. , at 308, 311–312. The Court rejected that challenge because students were not required to attend religious instruction and there was no evidence that any employee had “us[ed] their office to persuade or force students” to participate in religious activity. Id. , at 311, and n. 6. What was clear there is even more obvious here—where there is no evidence anyone sought to persuade or force students to participate, and there is no formal school program accommodating the religious activity at issue. Meanwhile, this case looks very different from those in which this Court has found prayer involving public school students to be problematically coercive. In Lee , this Court held that school officials violated the Establishment Clause by “including [a] clerical membe[r]” who publicly recited prayers “as part of [an] official school graduation ceremony” because the school had “in every practical sense compelled attendance and participation in” a “religious exercise.” 505 U. S., at 580, 598. In Santa Fe Independent School Dist. v. Doe , the Court held that a school district violated the Establishment Clause by broadcasting a prayer “over the public address system” before each football game. 530 U.S. 290 , 294 (2000). The Court observed that, while students generally were not required to attend games, attendance was required for “cheerleaders, members of the band, and, of course, the team members themselves.” Id. , at 311. None of that is true here. The prayers for which Mr. Kennedy was disciplined were not publicly broadcast or recited to a captive audience. Students were not required or expected to participate. And, in fact, none of Mr. Kennedy’s students did participate in any of the three October 2015 prayers that resulted in Mr. Kennedy’s discipline. See App. 90, 97, 173, 236–239; Parts I–B and I–C, supra .[ 7 ] C In the end, the District’s case hinges on the need to generate conflict between an individual’s rights under the Free Exercise and Free Speech Clauses and its own Establishment Clause duties—and then develop some explanation why one of these Clauses in the First Amendment should “ ‘trum[p]’ ” the other two. 991 F. 3d, at 1017; App. 43. But the project falters badly. Not only does the District fail to offer a sound reason to prefer one constitutional guarantee over another. It cannot even show that they are at odds. In truth, there is no conflict between the constitutional commands before us. There is only the “mere shadow” of a conflict, a false choice premised on a misconstruction of the Establishment Clause. Schempp , 374 U. S., at 308 (Goldberg, J., concurring). And in no world may a government entity’s concerns about phantom constitutional violations justify actual violations of an individual’s First Amendment rights. See, e.g. , Rosenberger , 515 U. S., at 845–846; Good News Club , 533 U. S., at 112–119; Lamb’s Chapel v. Center Moriches Union Free School Dist. , 508 U.S. 384 , 394–395 (1993); Widmar , 454 U. S., at 270–275.[ 8 ] V Respect for religious expressions is indispensable to life in a free and diverse Republic—whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head. Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment. And the only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination. Mr. Kennedy is entitled to summary judgment on his First Amendment claims. The judgment of the Court of Appeals is Reversed. Notes 1 A plaintiff may also prove a free exercise violation by showing that “official expressions of hostility” to religion accompany laws or policies burdening religious exercise; in cases like that we have “set aside” such policies without further inquiry. Masterpiece Cakeshop , Ltd. v. Colorado Civil Rights Comm’n , 584 U. S. ___, ___ (2018) (slip op., at 18). To resolve today’s case, however, we have no need to consult that test. Likewise, while the test we do apply today has been the subject of some criticism, see, e.g. , Fulton v. Philadelphia , 593 U. S. ___, ___ (2021) (slip op., at 5), we have no need to engage with that debate today because no party has asked us to do so. 2 Because our analysis and the parties’ concessions lead to the conclusion that Mr. Kennedy’s prayer constituted private speech on a matter of public concern, we do not decide whether the Free Exercise Clause may sometimes demand a different analysis at the first step of the Pickering – Garcetti framework. 3 It seems, too, that it is only here where our disagreement with the dissent begins in earnest. We do not understand our colleagues to contest that Mr. Kennedy has met his burdens under either the Free Exercise or Free Speech Clause, but only to suggest the District has carried its own burden “to establish that its policy prohibiting Kennedy’s public prayers was the least restrictive means of furthering a compelling state interest.” Post , at 22 (opinion of Sotomayor, J.). 4 Nor was that decision an outlier. In the last two decades, this Court has often criticized or ignored Lemon and its endorsement test variation. See, e.g. , Espinoza v. Montana Dept. of Revenue , 591 U. S. ___ (2020); American Legion v. American Humanist Assn. , 588 U. S. ___ (2019); Trump v. Hawaii , 585 U. S. ___ (2018); Trinity Lutheran Church of Columbia, Inc. v. Comer , 582 U. S. ___ (2017); Town of Greece v. Galloway , 572 U.S. 565 (2014); Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC , 565 U.S. 171 (2012); Arizona Christian School Tuition Organization v. Winn , 563 U.S. 125 (2011); Hein v. Freedom from Religion Foundation, Inc. , 551 U.S. 587 (2007); id. , at 618 (Scalia, J., concurring in judgment); Van Orden v. Perry , 545 U.S. 677 (2005); id. , at 689 (Breyer, J., concurring in judgment). A vast number of Justices have criticized those tests over an even longer period. See Shurtleff v. Boston , 596 U. S. ___, at ___–___, and nn. 9–10 (2022) (Gorsuch, J., concurring in judgment) (slip op., at 7–8, and nn. 9–10) (collecting opinions authored or joined by Roberts and Rehnquist, C. J., and Thomas, Breyer, Alito, Kavanaugh, Stevens, O’Connor, Scalia, and Kennedy, JJ.). The point has not been lost on our lower court colleagues. See, e.g. , 4 F. 4th 910, 939–941 (2021) (O’Scannlain, J., respecting denial of rehearing en banc); id. , at 945 (R. Nelson, J., dissenting from denial of rehearing en banc); id. , at 947, n. 3 (collecting lower court cases from “around the country” that “have recognized Lemon ’s demise”). 5 See, e.g. , Lee v. Weisman , 505 U.S. 577 , 640–642 (1992) (Scalia, J. dissenting); Shurtleff , 596 U. S., at ___–___ (opinion of Gorsuch, J.) (slip op., at 10–13) (discussing coercion and certain other historical hallmarks of an established religion); 1 Annals of Cong. 730–731 (1789) (Madison explaining that the First Amendment aimed to prevent one or multiple sects from “establish[ing] a religion to which they would compel others to conform”); M. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2144–2146 (2003). 6 The dissent expresses concern that looking to “histor[y] an[d] tradition” to guide Establishment Clause inquiries will not afford “school administrators” sufficient guidance. Post , at 30. But that concern supplies no excuse to adorn the Constitution with rules not supported by its terms and the traditions undergirding them. Nor, in any event, is there any question that the District understands that coercion can be a hallmark of an Establishment Clause violation. See App. 105. The District’s problem isn’t a failure to identify coercion as a crucial legal consideration; it is a lack of evidence that coercion actually occurred. 7 Even if the personal prayers Mr. Kennedy sought to offer after games are not themselves coercive, the dissent suggests that they bear an indelible taint of coercion by association with the school’s past prayer practices—some of which predated Mr. Kennedy, and all of which the District concedes he ended on request. But none of those abandoned practices formed the basis for Mr. Kennedy’s suspension, and he has not sought to claim First Amendment protection for them. See Town of Greece , 572 U. S., at 585 (other past practices do not permanently “despoil a practice” later challenged under the Establishment Clause). Nor, contrary to the dissent, does the possibility that students might choose, unprompted, to participate in Mr. Kennedy’s prayers necessarily prove them coercive. See post , at 18–20, 32–33. For one thing, the District has conceded that no coach may “discourag[e]” voluntary student prayer under its policies. Tr. of Oral Arg. 91. For another, Mr. Kennedy has repeatedly explained that he is willing to conduct his prayer without students—as he did after each of the games that formed the basis of his suspension—and after students head to the locker room or bus. See App. 280, 282, 292–294. 8 Failing under its coercion theory, the District offers still another backup argument. It contends that it had to suppress Mr. Kennedy’s protected First Amendment activity to ensure order at Bremerton football games. See also post , at 2, 8–9, 11, 34–35 (Sotomayor, J., dissenting). But the District never raised concerns along these lines in its contemporaneous correspondence with Mr. Kennedy. And unsurprisingly, neither the District Court nor the Ninth Circuit invoked this rationale to justify the District’s actions. Government “justification[s]” for interfering with First Amendment rights “must be genuine, not hypothesized or invented post hoc in response to litigation.” United States v. Virginia , 518 U.S. 515 , 533 (1996). Nor under our Constitution does protected speech or religious exercise readily give way to a “heckler’s veto.” Good News Club v. Milford Central School , 533 U.S. 98 , 119 (2001); supra , at 22–23. SUPREME COURT OF THE UNITED STATES _________________ No. 21–418 _________________ JOSEPH A. KENNEDY, PETITIONER v. BREMERTON SCHOOL DISTRICT on writ of certiorari to the united states court of appeals for the ninth circuit [June 27, 2022] Justice Thomas, concurring. I join the Court’s opinion because it correctly holds that Bremerton School District violated Joseph Kennedy’s First Amendment rights. I write separately to emphasize that the Court’s opinion does not resolve two issues related to Kennedy’s free-exercise claim. First, the Court refrains from deciding whether or how public employees’ rights under the Free Exercise Clause may or may not be different from those enjoyed by the general public. See ante, at 19, n. 2. In “striking the appropriate balance” between public employees’ constitutional rights and “the realities of the employment context,” we have often “consider[ed] whether the asserted employee right implicates the basic concerns of the relevant constitutional provision, or whether the claimed right can more readily give way to the requirements of the government as employer.” Engquist v. Oregon Dept. of Agriculture , 553 U.S. 591 , 600 (2008). In the free-speech context, for example, that inquiry has prompted us to distinguish between different kinds of speech; we have held that “the First Amendment protects public employee speech only when it falls within the core of First Amendment protection—speech on matters of public concern.” Ibid. It remains an open question, however, if a similar analysis can or should apply to free-exercise claims in light of the “history” and “tradition” of the Free Exercise Clause. Borough of Duryea v. Guarnieri , 564 U.S. 379 , 406 (2011) (Scalia, J., concurring in judgment in part and dissenting in part); see also id., at 400 (Thomas, J., concurring in judgment). Second, the Court also does not decide what burden a government employer must shoulder to justify restricting an employee’s religious expression because the District had no constitutional basis for reprimanding Kennedy under any possibly applicable standard of scrutiny. See ante, at 20. While we have many public-employee precedents addressing how the interest-balancing test set out in Pickering v. Board of Ed. of Township High School Dist. 205 , Will Cty ., 391 U.S. 563 (1968), applies under the Free Speech Clause, the Court has never before applied Pickering balancing to a claim brought under the Free Exercise Clause. A government employer’s burden therefore might differ depending on which First Amendment guarantee a public employee invokes. SUPREME COURT OF THE UNITED STATES _________________ No. 21–418 _________________ JOSEPH A. KENNEDY, PETITIONER v. BREMERTON SCHOOL DISTRICT on writ of certiorari to the united states court of appeals for the ninth circuit [June 27, 2022] Justice Alito, concurring. The expression at issue in this case is unlike that in any of our prior cases involving the free-speech rights of public employees. Petitioner’s expression occurred while at work but during a time when a brief lull in his duties apparently gave him a few free moments to engage in private activities. When he engaged in this expression, he acted in a purely private capacity. The Court does not decide what standard applies to such expression under the Free Speech Clause but holds only that retaliation for this expression cannot be justified based on any of the standards discussed. On that understanding, I join the opinion in full. SUPREME COURT OF THE UNITED STATES _________________ No. 21–418 _________________ JOSEPH A. KENNEDY, PETITIONER v. BREMERTON SCHOOL DISTRICT on writ of certiorari to the united states court of appeals for the ninth circuit [June 27, 2022] Justice Sotomayor, with whom Justice Breyer and Justice Kagan join, dissenting. This case is about whether a public school must permit a school official to kneel, bow his head, and say a prayer at the center of a school event. The Constitution does not authorize, let alone require, public schools to embrace this conduct. Since Engel v. Vitale , 370 U.S. 421 (1962), this Court consistently has recognized that school officials leading prayer is constitutionally impermissible. Official-led prayer strikes at the core of our constitutional protections for the religious liberty of students and their parents, as embodied in both the Establishment Clause and the Free Exercise Clause of the First Amendment. The Court now charts a different path, yet again paying almost exclusive attention to the Free Exercise Clause’s protection for individual religious exercise while giving short shrift to the Establishment Clause’s prohibition on state establishment of religion. See Carson v. Makin , 596 U. S. ___, ___ (2022) (Breyer, J., dissenting) (slip op., at 1). To the degree the Court portrays petitioner Joseph Kennedy’s prayers as private and quiet, it misconstrues the facts. The record reveals that Kennedy had a longstanding practice of conducting demonstrative prayers on the 50-yard line of the football field. Kennedy consistently invited others to join his prayers and for years led student athletes in prayer at the same time and location. The Court ignores this history. The Court also ignores the severe disruption to school events caused by Kennedy’s conduct, viewing it as irrelevant because the Bremerton School District (District) stated that it was suspending Kennedy to avoid it being viewed as endorsing religion. Under the Court’s analysis, presumably this would be a different case if the District had cited Kennedy’s repeated disruptions of school programming and violations of school policy regarding public access to the field as grounds for suspending him. As the District did not articulate those grounds, the Court assesses only the District’s Establishment Clause concerns. It errs by assessing them divorced from the context and history of Kennedy’s prayer practice. Today’s decision goes beyond merely misreading the record. The Court overrules Lemon v. Kurtzman , 403 U.S. 602 (1971), and calls into question decades of subsequent precedents that it deems “offshoot[s]” of that decision. Ante, at 22. In the process, the Court rejects longstanding concerns surrounding government endorsement of religion and replaces the standard for reviewing such questions with a new “history and tradition” test. In addition, while the Court reaffirms that the Establishment Clause prohibits the government from coercing participation in religious exercise, it applies a nearly toothless version of the coercion analysis, failing to acknowledge the unique pressures faced by students when participating in school-sponsored activities. This decision does a disservice to schools and the young citizens they serve, as well as to our Nation’s longstanding commitment to the separation of church and state. I respectfully dissent. I As the majority tells it, Kennedy, a coach for the District’s football program, “lost his job” for “pray[ing] quietly while his students were otherwise occupied.” Ante, at 1. The record before us, however, tells a different story. A The District serves approximately 5,057 students and employs 332 teachers and 400 nonteaching personnel in Kitsap County, Washington. The county is home to Bahá’ís, Buddhists, Hindus, Jews, Muslims, Sikhs, Zoroastrians, and many denominations of Christians, as well as numerous residents who are religiously unaffiliated. See Brief for Religious and Denominational Organizations et al. as Amici Curiae 4. The District first hired Kennedy in 2008, on a renewable annual contract, to serve as a part-time assistant coach for the varsity football team and head coach for the junior varsity team at Bremerton High School (BHS). Kennedy’s job description required him to “[a]ccompany and direct” all home and out-of-town games to which he was assigned, overseeing preparation and transportation before games, being “[r]esponsible for player behavior both on and off the field,” supervising dressing rooms, and “secur[ing] all facilities at the close of each practice.” App. 32–34, 36. His duties encompassed “supervising student activities immediately following the completion of the game” until the students were released to their parents or otherwise allowed to leave. Id., at 133. The District also set requirements for Kennedy’s interactions with players, obliging him, like all coaches, to “exhibit sportsmanlike conduct at all times,” “utilize positive motivational strategies to encourage athletic performance,” and serve as a “mentor and role model for the student athletes.” Id., at 56. In addition, Kennedy’s position made him responsible for interacting with members of the community. In this capacity, the District required Kennedy and other coaches to “maintain positive media relations,” “always approach officials with composure” with the expectation that they were “constantly being observed by others,” and “communicate effectively” with parents. Ibid. Finally, District coaches had to “[a]dhere to [District] policies and administrative regulations” more generally. Id., at 30–31. As relevant here, the District’s policy on “Religious-Related Activities and Practices” provided that “[s]chool staff shall neither encourage or discourage a student from engaging in non-disruptive oral or silent prayer or any other form of devotional activity” and that “[r]eligious services, programs or assemblies shall not be conducted in school facilities during school hours or in connection with any school sponsored or school related activity.” Id., at 26–28. B In September 2015, a coach from another school’s football team informed BHS’ principal that Kennedy had asked him and his team to join Kennedy in prayer. The other team’s coach told the principal that he thought it was “ ‘cool’ ” that the District “ ‘would allow [its] coaches to go ahead and invite other teams’ coaches and players to pray after a game.’ ” Id ., at 229. The District initiated an inquiry into whether its policy on Religious-Related Activities and Practices had been violated. It learned that, since his hiring in 2008, Kennedy had been kneeling on the 50-yard line to pray immediately after shaking hands with the opposing team. Kennedy recounted that he initially prayed alone and that he never asked any student to join him. Over time, however, a majority of the team came to join him, with the numbers varying from game to game. Kennedy’s practice evolved into postgame talks in which Kennedy would hold aloft student helmets and deliver speeches with “overtly religious references,” which Kennedy described as prayers, while the players kneeled around him. Id., at 40. The District also learned that students had prayed in the past in the locker room prior to games, before Kennedy was hired, but that Kennedy subsequently began leading those prayers too. While the District’s inquiry was pending, its athletic director attended BHS’ September 11, 2015, football game and told Kennedy that he should not be conducting prayers with players. After the game, while the athletic director watched, Kennedy led a prayer out loud, holding up a player’s helmet as the players kneeled around him. While riding the bus home with the team, Kennedy posted on Facebook that he thought he might have just been fired for praying. On September 17, the District’s superintendent sent Kennedy a letter informing him that leading prayers with students on the field and in the locker room would likely be found to violate the Establishment Clause, exposing the District to legal liability. The District acknowledged that Kennedy had “not actively encouraged, or required, participation” but emphasized that “school staff may not indirectly encourage students to engage in religious activity” or “endors[e]” religious activity; rather, the District explained, staff “must remain neutral” “while performing their job duties.” Id., at 41–43. The District instructed Kennedy that any motivational talks to students must remain secular, “so as to avoid alienation of any team member.” Id ., at 44. The District reiterated that “all District staff are free to engage in religious activity, including prayer, so long as it does not interfere with job responsibilities.” Id. , at 45. To avoid endorsing student religious exercise, the District instructed that such activity must be nondemonstrative or conducted separately from students, away from student activities. Ibid . The District expressed concern that Kennedy had continued his midfield prayer practice at two games after the District’s athletic director and the varsity team’s head coach had instructed him to stop. Id., at 40–41. Kennedy stopped participating in locker room prayers and, after a game the following day, gave a secular speech. He returned to pray in the stadium alone after his duties were over and everyone had left the stadium, to which the District had no objection. Kennedy then hired an attorney, who, on October 14, sent a letter explaining that Kennedy was “motivated by his sincerely-held religious beliefs to pray following each football game.” Id., at 63. The letter claimed that the District had required that Kennedy “flee from students if they voluntarily choose to come to a place where he is privately praying during personal time,” referring to the 50-yard line of the football field immediately following the conclusion of a game. Id., at 70. Kennedy requested that the District simply issue a “clarif[ication] that the prayer is [Kennedy’s] private speech” and that the District not “interfere” with students joining Kennedy in prayer. Id ., at 71. The letter further announced that Kennedy would resume his 50-yard-line prayer practice the next day after the October 16 homecoming game.[ 1 ] Before the homecoming game, Kennedy made multiple media appearances to publicize his plans to pray at the 50-yard line, leading to an article in the Seattle News and a local television broadcast about the upcoming homecoming game. In the wake of this media coverage, the District began receiving a large number of emails, letters, and calls, many of them threatening. The District responded to Kennedy’s letter before the game on October 16. It emphasized that Kennedy’s letter evinced “materia[l] misunderstand[ings]” of many of the facts at issue. Id., at 76. For instance, Kennedy’s letter asserted that he had not invited anyone to pray with him; the District noted that that might be true of Kennedy’s September 17 prayer specifically, but that Kennedy had acknowledged inviting others to join him on many previous occasions. The District’s September 17 letter had explained that Kennedy traditionally held up helmets from the BHS and opposing teams while players from each team kneeled around him. While Kennedy’s letter asserted that his prayers “occurr[ed] ‘on his own time,’ after his duties as a District employee had ceased,” the District pointed out that Kennedy “remain[ed] on duty” when his prayers occurred “immediately following completion of the football game, when students are still on the football field, in uniform, under the stadium lights, with the audience still in attendance, and while Mr. Kennedy is still in his District-issued and District-logoed attire.” Id ., at 78 (emphasis deleted). The District further noted that “[d]uring the time following completion of the game, until players are released to their parents or otherwise allowed to leave the event, Mr. Kennedy, like all coaches, is clearly on duty and paid to continue supervision of students.” Id ., at 79. The District stated that it had no objection to Kennedy returning to the stadium when he was off duty to pray at the 50-yard line, nor with Kennedy praying while on duty if it did not interfere with his job duties or suggest the District’s endorsement of religion. The District explained that its establishment concerns were motivated by the specific facts at issue, because engaging in prayer on the 50-yard line immediately after the game finished would appear to be an extension of Kennedy’s “prior, long-standing and well-known history of leading students in prayer” on the 50-yard line after games. Id. , at 81. The District therefore reaffirmed its prior directives to Kennedy. On October 16, after playing of the game had concluded, Kennedy shook hands with the opposing team, and as advertised, knelt to pray while most BHS players were singing the school’s fight song. He quickly was joined by coaches and players from the opposing team. Television news cameras surrounded the group.[ 2 ] Members of the public rushed the field to join Kennedy, jumping fences to access the field and knocking over student band members. After the game, the District received calls from Satanists who “ ‘intended to conduct ceremonies on the field after football games if others were allowed to.’ ” Id., at 181. To secure the field and enable subsequent games to continue safely, the District was forced to make security arrangements with the local police and to post signs near the field and place robocalls to parents reiterating that the field was not open to the public. The District sent Kennedy another letter on October 23, explaining that his conduct at the October 16 game was inconsistent with the District’s requirements for two reasons. First, it “drew [him] away from [his] work”; Kennedy had, “until recently, . . . regularly c[o]me to the locker room with the team and other coaches following the game” and had “specific responsibility for the supervision of players in the locker room following games.” Id., at 92–93. Second, his conduct raised Establishment Clause concerns, because “any reasonable observer saw a District employee, on the field only by virtue of his employment with the District, still on duty, under the bright lights of the stadium, engaged in what was clearly, given [his] prior public conduct, overtly religious conduct.” Id., at 93. Again, the District emphasized that it was happy to accommodate Kennedy’s desire to pray on the job in a way that did not interfere with his duties or risk perceptions of endorsement. Stressing that “[d]evelopment of accommodations is an interactive process,” it invited Kennedy to reach out to discuss accommodations that might be mutually satisfactory, offering proposed accommodations and inviting Kennedy to raise others. Id ., at 93–94. The District noted, however, that “further violations of [its] directives” would be grounds for discipline or termination. Id. , at 95. Kennedy did not directly respond or suggest a satisfactory accommodation. Instead, his attorneys told the media that he would accept only demonstrative prayer on the 50-yard line immediately after games. During the October 23 and October 26 games, Kennedy again prayed at the 50-yard line immediately following the game, while postgame activities were still ongoing. At the October 23 game, Kennedy kneeled on the field alone with players standing nearby. At the October 26 game, Kennedy prayed surrounded by members of the public, including state representatives who attended the game to support Kennedy. The BHS players, after singing the fight song, joined Kennedy at midfield after he stood up from praying. In an October 28 letter, the District notified Kennedy that it was placing him on paid administrative leave for violating its directives at the October 16, October 23, and October 26 games by kneeling on the field and praying immediately following the games before rejoining the players for postgame talks. The District recounted that it had offered accommodations to, and offered to engage in further discussions with, Kennedy to permit his religious exercise, and that Kennedy had failed to respond to these offers. The District stressed that it remained willing to discuss possible accommodations if Kennedy was willing. After the issues with Kennedy arose, several parents reached out to the District saying that their children had participated in Kennedy’s prayers solely to avoid separating themselves from the rest of the team. No BHS students appeared to pray on the field after Kennedy’s suspension. In Kennedy’s annual review, the head coach of the varsity team recommended Kennedy not be rehired because he “failed to follow district policy,” “demonstrated a lack of cooperation with administration,” “contributed to negative relations between parents, students, community members, coaches, and the school district,” and “failed to supervise student-athletes after games due to his interactions with media and community” members. Id., at 114. The head coach himself also resigned after 11 years in that position, expressing fears that he or his staff would be shot from the crowd or otherwise attacked because of the turmoil created by Kennedy’s media appearances. Three of five other assistant coaches did not reapply. C Kennedy then filed suit. He contended, as relevant, that the District violated his rights under the Free Speech and Free Exercise Clauses of the First Amendment. Kennedy moved for a preliminary injunction, which the District Court denied based on the circumstances surrounding Kennedy’s prayers. The court concluded that Kennedy had “chose[n] a time and event,” the October 16 homecoming game, that was “a big deal” for students, and then “used that opportunity to convey his religious views” in a manner a reasonable observer would have seen as a “public employee . . . leading an orchestrated session of faith.” App. to Pet. for Cert. 303. The Court of Appeals affirmed, again emphasizing the specific context of Kennedy’s prayers. The court rejected Kennedy’s contention that he had been “praying on the fifty-yard line ‘silently and alone.’ ” Kennedy v. Bremerton School Dist ., 869 F.3d 813, 825 (CA9 2017). The court noted that he had in fact refused “an accommodation permitting him to pray . . . after the stadium had emptied,” “indicat[ing] that it is essential that his speech be delivered in the presence of students and spectators.” Ibid . This Court denied certiorari. Following discovery, the District Court granted summary judgment to the District. The court concluded that Kennedy’s 50-yard-line prayers were not entitled to protection under the Free Speech Clause because his speech was made in his capacity as a public employee, not as a private citizen. 443 F. Supp. 3d 1223, 1237 (WD Wash. 2020). In addition, the court held that Kennedy’s prayer practice violated the Establishment Clause, reasoning that “speech from the center of the football field immediately after each game . . . conveys official sanction.” Id., at 1238. That was especially true where Kennedy, a school employee, initiated the prayer; Kennedy was “joined by students or adults to create a group of worshippers in a place the school controls access to”; and Kennedy had a long “history of engaging in religious activity with players” that would have led a familiar observer to believe that Kennedy was “continuing this tradition” with prayer at the 50-yard line. Id. , at 1238–1239. The District Court further found that players had reported “feeling compelled to join Kennedy in prayer to stay connected with the team or ensure playing time,” and that the “slow accumulation of players joining Kennedy suggests exactly the type of vulnerability to social pressure that makes the Establishment Clause vital in the high school context.” Id. , at 1239. The court rejected Kennedy’s free exercise claim, finding the District’s directive narrowly tailored to its Establishment Clause concerns and citing Kennedy’s refusal to cooperate in finding an accommodation that would be acceptable to him. Id., at 1240. The Court of Appeals affirmed, explaining that “the facts in the record utterly belie [Kennedy’s] contention that the prayer was personal and private.” 991 F.3d 1004, 1017 (CA9 2021). The court instead concluded that Kennedy’s speech constituted government speech, as he “repeatedly acknowledged that—and behaved as if—he was a mentor, motivational speaker, and role model to students specifically at the conclusion of the game.” Id. , at 1015 (emphasis deleted). In the alternative, the court concluded that Kennedy’s speech, even if in his capacity as a private citizen, was appropriately regulated by the District to avoid an Establishment Clause violation, emphasizing once more that this conclusion was tied to the specific “evolution of Kennedy’s prayer practice with students” over time. Id., at 1018. The court rejected Kennedy’s free exercise claim for the reasons stated by the District Court. Id., at 1020. The Court of Appeals denied rehearing en banc, and this Court granted certiorari. II Properly understood, this case is not about the limits on an individual’s ability to engage in private prayer at work. This case is about whether a school district is required to allow one of its employees to incorporate a public, communicative display of the employee’s personal religious beliefs into a school event, where that display is recognizable as part of a longstanding practice of the employee ministering religion to students as the public watched. A school district is not required to permit such conduct; in fact, the Establishment Clause prohibits it from doing so. A The Establishment Clause prohibits States from adopting laws “respecting an establishment of religion.” Amdt. 1; see Wallace v. Jaffree , 472 U.S. 38 , 49 (1985) (recognizing the Clause’s incorporation against the States). The First Amendment’s next Clause prohibits the government from making any law “prohibiting the free exercise thereof.” Taken together, these two Clauses (the Religion Clauses) express the view, foundational to our constitutional system, “that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State.” Lee v. Weisman , 505 U.S. 577 , 589 (1992). Instead, “preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere,” which has the “freedom to pursue that mission.” Ibid. The Establishment Clause protects this freedom by “command[ing] a separation of church and state.” Cutter v. Wilkinson , 544 U.S. 709 , 719 (2005). At its core, this means forbidding “sponsorship, financial support, and active involvement of the sovereign in religious activity.” Walz v. Tax Comm’n of City of New York , 397 U.S. 664 , 668 (1970). In the context of public schools, it means that a State cannot use “its public school system to aid any or all religious faiths or sects in the dissemination of their doctrines and ideals.” Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty. , 333 U.S. 203 , 211 (1948). Indeed, “[t]he Court has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools.” Edwards v. Aguillard , 482 U.S. 578 , 583–584 (1987). The reasons motivating this vigilance inhere in the nature of schools themselves and the young people they serve. Two are relevant here. First, government neutrality toward religion is particularly important in the public school context given the role public schools play in our society. “ ‘The public school is at once the symbol of our democracy and the most pervasive means for promoting our common destiny,’ ” meaning that “ ‘[i]n no activity of the State is it more vital to keep out divisive forces than in its schools.’ ” Id. at 584. Families “entrust public schools with the education of their children . . . on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family.” Ibid. Accordingly, the Establishment Clause “proscribes public schools from ‘conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred’ ” or otherwise endorsing religious beliefs. Lee , 505 U. S., at 604–605 (Blackmun, J., concurring) (emphasis deleted). Second, schools face a higher risk of unconstitutionally “coerc[ing] . . . support or participat[ion] in religion or its exercise” than other government entities. Id., at 587 (opinion of the Court). The State “exerts great authority and coercive power” in schools as a general matter “through mandatory attendance requirements.” Edwards , 482 U. S., at 584. Moreover, the State exercises that great authority over children, who are uniquely susceptible to “subtle coercive pressure.” Lee , 505 U. S., at 588; cf. Town of Greece v. Galloway , 572 U.S. 565 , 590 (2014) (plurality opinion) (“[M]ature adults,” unlike children, may not be “ ‘readily susceptible to religious indoctrination or peer pressure’ ”). Children are particularly vulnerable to coercion because of their “emulation of teachers as role models” and “susceptibility to peer pressure.” Edwards , 482 U. S., at 584. Accordingly, this Court has emphasized that “the State may not, consistent with the Establishment Clause, place primary and secondary school children” in the dilemma of choosing between “participating, with all that implies, or protesting” a religious exercise in a public school. Lee , 505 U. S., at 593. Given the twin Establishment Clause concerns of endorsement and coercion, it is unsurprising that the Court has consistently held integrating prayer into public school activities to be unconstitutional, including when student participation is not a formal requirement or prayer is silent. See Wallace , 472 U.S. 38 (mandatory moment of silence for prayer); School Dist. of Abington Township v. Schempp , 374 U.S. 203 (1963) (nonmandatory recitation of Bible verses and prayer); Engel , 370 U. S., at 424 (nonmandatory recitation of one-sentence prayer). The Court also has held that incorporating a nondenominational general benediction into a graduation ceremony is unconstitutional. Lee , 505 U.S. 577 . Finally, this Court has held that including prayers in student football games is unconstitutional, even when delivered by students rather than staff and even when students themselves initiated the prayer. Santa Fe Independent School Dist. v. Doe , 530 U.S. 290 (2000). B Under these precedents, the Establishment Clause violation at hand is clear. This Court has held that a “[s]tate officia[l] direct[ing] the performance of a formal religious exercise” as a part of the “ceremon[y]” of a school event “conflicts with settled rules pertaining to prayer exercises for students.” Lee , 505 U. S., at 586–587. Kennedy was on the job as a school official “on government property” when he incorporated a public, demonstrative prayer into “government-sponsored school-related events” as a regularly scheduled feature of those events. Santa Fe , 530 U. S., at 302. Kennedy’s tradition of a 50-yard line prayer thus strikes at the heart of the Establishment Clause’s concerns about endorsement. For students and community members at the game, Coach Kennedy was the face and the voice of the District during football games. The timing and location Kennedy selected for his prayers were “clothed in the traditional indicia of school sporting events.” Id., at 308. Kennedy spoke from the playing field, which was accessible only to students and school employees, not to the general public. Although the football game itself had ended, the football game events had not; Kennedy himself acknowledged that his responsibilities continued until the players went home. Kennedy’s postgame responsibilities were what placed Kennedy on the 50-yard line in the first place; that was, after all, where he met the opposing team to shake hands after the game. Permitting a school coach to lead students and others he invited onto the field in prayer at a predictable time after each game could only be viewed as a postgame tradition occurring “with the approval of the school administration.” Ibid. Kennedy’s prayer practice also implicated the coercion concerns at the center of this Court’s Establishment Clause jurisprudence. This Court has previously recognized a heightened potential for coercion where school officials are involved, as their “effort[s] to monitor prayer will be perceived by the students as inducing a participation they might otherwise reject.” Lee , 505 U. S., at 590. The reasons for fearing this pressure are self-evident. This Court has recognized that students face immense social pressure. Students look up to their teachers and coaches as role models and seek their approval. Students also depend on this approval for tangible benefits. Players recognize that gaining the coach’s approval may pay dividends small and large, from extra playing time to a stronger letter of recommendation to additional support in college athletic recruiting. In addition to these pressures to please their coaches, this Court has recognized that players face “immense social pressure” from their peers in the “extracurricular event that is American high school football.” Santa Fe , 530 U. S., at 311. The record before the Court bears this out. The District Court found, in the evidentiary record, that some students reported joining Kennedy’s prayer because they felt social pressure to follow their coach and teammates. Kennedy told the District that he began his prayers alone and that players followed each other over time until a majority of the team joined him, an evolution showing coercive pressure at work. Kennedy does not defend his longstanding practice of leading the team in prayer out loud on the field as they kneeled around him. Instead, he responds, and the Court accepts, that his highly visible and demonstrative prayer at the last three games before his suspension did not violate the Establishment Clause because these prayers were quiet and thus private. This Court’s precedents, however, do not permit isolating government actions from their context in determining whether they violate the Establishment Clause. To the contrary, this Court has repeatedly stated that Establishment Clause inquiries are fact specific and require careful consideration of the origins and practical reality of the specific practice at issue. See, e.g. , id., at 315; Lee , 505 U. S., at 597. In Santa Fe , the Court specifically addressed how to determine whether the implementation of a new policy regarding prayers at football games “insulates the continuation of such prayers from constitutional scrutiny.” 530 U. S., at 315. The Court held that “inquiry into this question not only can, but must, include an examination of the circumstances surrounding” the change in policy, the “long-established tradition” before the change, and the “ ‘unique circumstances’ ” of the school in question. Ibid. This Court’s precedent thus does not permit treating Kennedy’s “new” prayer practice as occurring on a blank slate, any more than those in the District’s school community would have experienced Kennedy’s changed practice (to the degree there was one) as erasing years of prior actions by Kennedy. Like the policy change in Santa Fe, Kennedy’s “changed” prayers at these last three games were a clear continuation of a “long-established tradition of sanctioning” school official involvement in student prayers. Ibid . Students at the three games following Kennedy’s changed practice witnessed Kennedy kneeling at the same time and place where he had led them in prayer for years. They witnessed their peers from opposing teams joining Kennedy, just as they had when Kennedy was leading joint team prayers. They witnessed members of the public and state representatives going onto the field to support Kennedy’s cause and pray with him. Kennedy did nothing to stop this unauthorized access to the field, a clear dereliction of his duties. The BHS players in fact joined the crowd around Kennedy after he stood up from praying at the last game. That BHS students did not join Kennedy in these last three specific prayers did not make those events compliant with the Establishment Clause. The coercion to do so was evident. Kennedy himself apparently anticipated that his continued prayer practice would draw student participation, requesting that the District agree that it would not “interfere” with students joining him in the future. App. 71. Finally, Kennedy stresses that he never formally required students to join him in his prayers. But existing precedents do not require coercion to be explicit, particularly when children are involved. To the contrary, this Court’s Establishment Clause jurisprudence establishes that “ ‘the government may no more use social pressure to enforce orthodoxy than it may use more direct means.’ ” Santa Fe , 530 U. S., at 312. Thus, the Court has held that the Establishment Clause “will not permit” a school “ ‘to exact religious conformity from a student as the price’ of joining her classmates at a varsity football game.” Ibid. To uphold a coach’s integration of prayer into the ceremony of a football game, in the context of an established history of the coach inviting student involvement in prayer, is to exact precisely this price from students. C As the Court explains, see ante, at 15, Kennedy did not “shed [his] constitutional rights . . . at the schoolhouse gate” while on duty as a coach. Tinker v. Des Moines Independent Community School Dist. , 393 U.S. 503 , 506 (1969). Constitutional rights, however, are not absolutes. Rights often conflict and balancing of interests is often required to protect the separate rights at issue. See Dobbs v. Jackson Women’s Health Organization , 597 U. S. ___, ___ (2022) (slip op., at 12) (Breyer, Sotomayor, and Kagan, JJ., dissenting) (noting that “the presence of countervailing interests . . . is what ma[kes]” a constitutional question “hard, and what require[s] balancing”). The particular tensions at issue in this case, between the speech interests of the government and its employees and between public institutions’ religious neutrality and private individuals’ religious exercise, are far from novel. This Court’s settled precedents offer guidance to assist courts, governments, and the public in navigating these tensions. Under these precedents, the District’s interest in avoiding an Establishment Clause violation justified both its time and place restrictions on Kennedy’s speech and his exercise of religion. First, as to Kennedy’s free speech claim, Kennedy “accept[ed] certain limitations” on his freedom of speech when he accepted government employment. Garcetti v. Ceballos , 547 U.S. 410 , 418 (2006). The Court has recognized that “[g]overnment employers, like private employers, need a significant degree of control over their employees’ words and actions” to ensure “the efficient provision of public services.” Ibid . Case law instructs balancing “the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees” to determine whose interests should prevail. Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty. , 391 U.S. 563 , 568 (1968). As the Court of Appeals below outlined, the District has a strong argument that Kennedy’s speech, formally integrated into the center of a District event, was speech in his official capacity as an employee that is not entitled to First Amendment protections at all. See Garcetti , 547 U. S., at 418; 991 F. 3d, at 1014–1016 (applying Garcetti ).[ 3 ] It is unnecessary to resolve this question, however, because, even assuming that Kennedy’s speech was in his capacity as a private citizen, the District’s responsibilities under the Establishment Clause provided “adequate justification” for restricting it. Garcetti , 547 U. S., at 418. Similarly, Kennedy’s free exercise claim must be considered in light of the fact that he is a school official and, as such, his participation in religious exercise can create Establishment Clause conflicts. Accordingly, his right to pray at any time and in any manner he wishes while exercising his professional duties is not absolute. See Lee , 505 U. S., at 587 (noting that a school official’s choice to integrate a prayer is “attributable to the State”). As the Court explains, see ante, at 13–14, the parties agree (and I therefore assume) that for the purposes of Kennedy’s claim, the burden is on the District to establish that its policy prohibiting Kennedy’s public prayers was the least restrictive means of furthering a compelling state interest. Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U.S. 520 , 546 (1993). Here, the District’s directive prohibiting Kennedy’s demonstrative speech at the 50-yard line was narrowly tailored to avoid an Establishment Clause violation. The District’s suspension of Kennedy followed a long history. The last three games proved that Kennedy did not intend to pray silently, but to thrust the District into incorporating a religious ceremony into its events, as he invited others to join his prayer and anticipated in his communications with the District that students would want to join as well. Notably, the District repeatedly sought to work with Kennedy to develop an accommodation to permit him to engage in religious exercise during or after his game-related responsibilities. Kennedy, however, ultimately refused to respond to the District’s suggestions and declined to communicate with the District, except through media appearances. Because the District’s valid Establishment Clause concerns satisfy strict scrutiny, Kennedy’s free exercise claim fails as well. III Despite the overwhelming precedents establishing that school officials leading prayer violates the Establishment Clause, the Court today holds that Kennedy’s midfield prayer practice did not violate the Establishment Clause. This decision rests on an erroneous understanding of the Religion Clauses. It also disregards the balance this Court’s cases strike among the rights conferred by the Clauses. The Court relies on an assortment of pluralities, concurrences, and dissents by Members of the current majority to effect fundamental changes in this Court’s Religion Clauses jurisprudence, all the while proclaiming that nothing has changed at all. A This case involves three Clauses of the First Amendment. As a threshold matter, the Court today proceeds from two mistaken understandings of the way the protections these Clauses embody interact. First, the Court describes the Free Exercise and Free Speech Clauses as “work[ing] in tandem” to “provid[e] overlapping protection for expressive religious activities,” leaving religious speech “doubly protect[ed].” Ante, at 11. This narrative noticeably (and improperly) sets the Establishment Clause to the side. The Court is correct that certain expressive religious activities may fall within the ambit of both the Free Speech Clause and the Free Exercise Clause, but “the First Amendment protects speech and religion by quite different mechanisms.” Lee , 505 U. S., at 591. The First Amendment protects speech “by ensuring its full expression even when the government participates.” Ibid. Its “method for protecting freedom of worship and freedom of conscience in religious matters is quite the reverse,” however, based on the understanding that “the government is not a prime participant” in “religious debate or expression,” whereas government is the “object of some of our most important speech.” Ibid. Thus, as this Court has explained, while the Free Speech Clause has “close parallels in the speech provisions of the First Amendment,” the First Amendment’s protections for religion diverge from those for speech because of the Establishment Clause, which provides a “specific prohibition on forms of state intervention in religious affairs with no precise counterpart in the speech provisions.” Ibid. Therefore, while our Constitution “counsel[s] mutual respect and tolerance,” the Constitution’s vision of how to achieve this end does in fact involve some “singl[ing] out” of religious speech by the government. Ante , at 1. This is consistent with “the lesson of history that was and is the inspiration for the Establishment Clause, the lesson that in the hands of government what might begin as a tolerant expression of religious views may end in a policy to indoctrinate and coerce.” Lee , 505 U. S., at 591–592. Second, the Court contends that the lower courts erred by introducing a false tension between the Free Exercise and Establishment Clauses. See ante, at 20–21. The Court, however, has long recognized that these two Clauses, while “express[ing] complementary values,” “often exert conflicting pressures.” Cutter , 544 U. S., at 719. See also Locke v. Davey , 540 U.S. 712 , 718 (2004) (describing the Clauses as “frequently in tension”). The “absolute terms” of the two Clauses mean that they “tend to clash” if “expanded to a logical extreme.” Walz , 397 U. S., at 668–669. The Court inaccurately implies that the courts below relied upon a rule that the Establishment Clause must always “prevail” over the Free Exercise Clause. Ante, at 20. In focusing almost exclusively on Kennedy’s free exercise claim, however, and declining to recognize the conflicting rights at issue, the Court substitutes one supposed blanket rule for another. The proper response where tension arises between the two Clauses is not to ignore it, which effectively silently elevates one party’s right above others. The proper response is to identify the tension and balance the interests based on a careful analysis of “whether [the] particular acts in question are intended to establish or interfere with religious beliefs and practices or have the effect of doing so.” Walz , 397 U. S., at 669. As discussed above, that inquiry leads to the conclusion that permitting Kennedy’s desired religious practice at the time and place of his choosing, without regard to the legitimate needs of his employer, violates the Establishment Clause in the particular context at issue here. Supra, at 16–20. B For decades, the Court has recognized that, in determining whether a school has violated the Establishment Clause, “one of the relevant questions is whether an objective observer, acquainted with the text, legislative history, and implementation of the [practice], would perceive it as a state endorsement of prayer in public schools.” Santa Fe , 530 U. S., at 308 (internal quotation marks omitted). The Court now says for the first time that endorsement simply does not matter, and completely repudiates the test established in Lemon , 403 U.S. 602 . Ante, at 22–24. Both of these moves are erroneous and, despite the Court’s assurances, novel. Start with endorsement. The Court reserves particular criticism for the longstanding understanding that government action that appears to endorse religion violates the Establishment Clause, which it describes as an “offshoot” of Lemon and paints as a “ ‘modified heckler’s veto, in which . . . religious activity can be proscribed’ ” based on “ ‘ “perceptions” ’ ” or “ ‘ “discomfort.” ’ ” Ante, at 21–22 (quoting Good News Club v. Milford Central School , 533 U.S. 98 , 119 (2001)). This is a strawman. Precedent long has recognized that endorsement concerns under the Establishment Clause, properly understood, bear no relation to a “ ‘heckler’s veto.’ ” Ante , as 22 . Good News Club itself explained the difference between the two: The endorsement inquiry considers the perspective not of just any hypothetical or uninformed observer experiencing subjective discomfort, but of “ ‘the reasonable observer’ ” who is “ ‘aware of the history and context of the community and forum in which the religious [speech takes place].’ ” 533 U. S., at 119. That is because “ ‘the endorsement inquiry is not about the perceptions of particular individuals or saving isolated nonadherents from . . . discomfort’ ” but concern “ ‘with the political community writ large.’ ” Ibid. (emphasis deleted). Given this concern for the political community, it is unsurprising that the Court has long prioritized endorsement concerns in the context of public education. See, e.g., Santa Fe , 530 U. S., at 305; Wallace , 472 U. S., at 60–61; Edwards , 482 U. S., at 578, 593; see also Lee , 505 U. S., at 618–619 (Souter, J., concurring) (explaining that many of the Court’s Establishment Clause holdings in the school context are concerned not with whether the policy in question “coerced students to participate in prayer” but with whether it “ ‘convey[ed] a message of state approval of prayer activities in the public schools’ ” (quoting Wallace , 472 U. S., at 61)).[ 4 ] No subsequent decisions in other contexts, including the cases about monuments and legislative meetings on which the Court relies, have so much as questioned the application of this core Establishment Clause concern in the context of public schools. In fact, Town of Greece v. Galloway , 572 U.S. 565 , which held a prayer during a town meeting permissible, specifically distinguished Lee because Lee considered the Establishment Clause in the context of schools. 572 U. S., at 590 (plurality opinion). Paying heed to these precedents would not “ ‘purge from the public sphere’ anything an observer could reasonably infer endorses” religion. Ante, at 22. To the contrary, the Court has recognized that “there will be instances when religious values, religious practices, and religious persons will have some interaction with the public schools and their students.” Lee, 505 U. S., at 598–599. These instances, the Court has said, are “often questions of accommodat[ing]” religious practices to the degree possible while respecting the Establishment Clause. Id. , at 599.[ 5 ] In short, the endorsement inquiry dictated by precedent is a measured, practical, and administrable one, designed to account for the competing interests present within any given community. Despite all of this authority, the Court claims that it “long ago abandoned” both the “endorsement test” and this Court’s decision in Lemon 403 U.S. 602 . Ante, at 22. The Court chiefly cites the plurality opinion in American Legion v. American Humanist Assn. , 588 U. S. ___ (2019) to support this contention. That plurality opinion, to be sure, criticized Lemon ’s effort at establishing a “grand unified theory of the Establishment Clause” as poorly suited to the broad “array” of diverse establishment claims. 588 U. S ., at ___, ___ (slip op., at 13, 24). All the Court in American Legion ultimately held, however, was that application of the Lemon test to “longstanding monuments, symbols, and practices” was ill-advised for reasons specific to those contexts. 588 U. S ., at ___ (slip op., at 16); see also id., at ___–___ (slip op., at 16–21) (discussing at some length why the Lemon test was a poor fit for those circumstances). The only categorical rejection of Lemon in American Legion appeared in separate writings. See 588 U. S. , at ___ (slip op., at 1) (Kavanaugh, J., concurring); id., at ___ (slip op., at 6) (Thomas, J., concurring in judgment); id., at ___ (slip op., at 7) (Gorsuch, J., concurring in judgment); see ante, at 23, n. 4.[ 6 ] The Court now goes much further, overruling Lemon entirely and in all contexts. It is wrong to do so. Lemon summarized “the cumulative criteria developed by the Court over many years” of experience “draw[ing] lines” as to when government engagement with religion violated the Establishment Clause. 403 U. S., at 612. Lemon properly concluded that precedent generally directed consideration of whether the government action had a “secular legislative purpose,” whether its “principal or primary effect must be one that neither advances nor inhibits religion,” and whether in practice it “foster[s] ‘an excessive government entanglement with religion.’ ” Id., at 612–613. It is true “that rigid application of the Lemon test does not solve every Establishment Clause problem,” but that does not mean that the test has no value. American Legion , 588 U. S., at ___ (slip op., at 1) (Kagan, J., concurring in part). To put it plainly, the purposes and effects of a government action matter in evaluating whether that action violates the Establishment Clause, as numerous precedents beyond Lemon instruct in the particular context of public schools. See supra, at 14–16, 18. Neither the critiques of Lemon as setting out a dispositive test for all seasons nor the fact that the Court has not referred to Lemon in all situations support this Court’s decision to dismiss that precedent entirely, particularly in the school context. C Upon overruling one “grand unified theory,” the Court introduces another: It holds that courts must interpret whether an Establishment Clause violation has occurred mainly “by ‘reference to historical practices and understandings.’ ” Ante, at 23 (quoting Town of Greece , 572 U. S., at 576 (internal quotation marks omitted)). Here again, the Court professes that nothing has changed. In fact, while the Court has long referred to historical practice as one element of the analysis in specific Establishment Clause cases, the Court has never announced this as a general test or exclusive focus. American Legion, 588 U. S. , at ___–___ (Breyer, J., concurring) (slip op., at 2–3) (noting that the Court was “appropriately ‘look[ing] to history for guidance’ ” but was not “adopt[ing] a ‘history and tradition test’ ”). The Court reserves any meaningful explanation of its history-and-tradition test for another day, content for now to disguise it as established law and move on. It should not escape notice, however, that the effects of the majority’s new rule could be profound. The problems with elevating history and tradition over purpose and precedent are well documented. See Dobbs , 597 U. S., at ___ (Breyer, Sotomayor, and Kagan, JJ., dissenting) (slip op., at 16) (explaining that the Framers “defined rights in general terms to permit future evolution in their scope and meaning”); New York State Rifle & Pistol Assn., Inc. v. Bruen , 597 U. S. ___, ___–___ (2022) (Breyer, J., dissenting) (slip op., at 24–28) (explaining the pitfalls of a “near-exclusive reliance on history” and offering examples of when this Court has “misread” history in the past); Brown v. Davenport , 596 U. S. ___, ___–___ (2022) (Kagan, J., dissenting) (slip op., at 7–8) (noting the inaccuracies risked when courts “play amateur historian”). For now, it suffices to say that the Court’s history-and-tradition test offers essentially no guidance for school administrators. If even judges and Justices, with full adversarial briefing and argument tailored to precise legal issues, regularly disagree (and err) in their amateur efforts at history, how are school administrators, faculty, and staff supposed to adapt? How will school administrators exercise their responsibilities to manage school curriculum and events when the Court appears to elevate individuals’ rights to religious exercise above all else? Today’s opinion provides little in the way of answers; the Court simply sets the stage for future legal changes that will inevitably follow the Court’s choice today to upset longstanding rules. D Finally, the Court acknowledges that the Establishment Clause prohibits the government from coercing people to engage in religion practice, ante , at 24–25, but its analysis of coercion misconstrues both the record and this Court’s precedents. The Court claims that the District “never raised coercion concerns” simply because the District conceded that there was “ ‘no evidence that students [were] directly coerced to pray with Kennedy.’ ” Ante, at 25 (emphasis added). The Court’s suggestion that coercion must be “direc[t]” to be cognizable under the Establishment Clause is contrary to long-established precedent. The Court repeatedly has recognized that indirect coercion may raise serious establishment concerns, and that “there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.” Lee , 505 U. S., at 592 (opinion of the Court); see also supra, at 15–16. Tellingly, none of this Court’s major cases involving school prayer concerned school practices that required students to do any more than listen silently to prayers, and some did not even formally require students to listen, instead providing that attendance was not mandatory. See Santa Fe , 530 U. S., at 296–298; Lee , 505 U. S., at 593; Wallace , 472 U. S., at 40; School Dist. of Abington Township , 374 U. S., at 205; Engel , 370 U. S., at 422. Nevertheless, the Court concluded that the practices were coercive as a constitutional matter. Today’s Court quotes the Lee Court’s remark that enduring others’ speech is “ ‘part of learning how to live in a pluralistic society.’ ” Ante, at 26 (quoting Lee , 505 U. S., at 590). The Lee Court, however, expressly concluded, in the very same paragraph, that “[t]his argument cannot prevail” in the school-prayer context because the notion that being subject to a “brief ” prayer in school is acceptable “overlooks a fundamental dynamic of the Constitution”: its “specific prohibition on . . . state intervention in religious affairs.” Id ., at 591; see also id., at 594 (“[T]he government may no more use social pressure to enforce orthodoxy than it may use more direct means”).[ 7 ] The Court also distinguishes Santa Fe because Kennedy’s prayers “were not publicly broadcast or recited to a captive audience.” Ante, at 30. This misses the point. In Santa Fe , a student council chaplain delivered a prayer over the public-address system before each varsity football game of the season. 530 U. S., at 294. Students were not required as a general matter to attend the games, but “cheerleaders, members of the band, and, of course, the team members themselves” were, and the Court would have found an “improper effect of coercing those present” even if it “regard[ed] every high school student’s decision to attend . . . as purely voluntary.” Id., at 311–312. Kennedy’s prayers raise precisely the same concerns. His prayers did not need to be broadcast. His actions spoke louder than his words. His prayers were intentionally, visually demonstrative to an audience aware of their history and no less captive than the audience in Santa Fe , with spectators watching and some players perhaps engaged in a song, but all waiting to rejoin their coach for a postgame talk. Moreover, Kennedy’s prayers had a greater coercive potential because they were delivered not by a student, but by their coach, who was still on active duty for postgame events. In addition, despite the direct record evidence that students felt coerced to participate in Kennedy’s prayers, the Court nonetheless concludes that coercion was not present in any event because “Kennedy did not seek to direct any prayers to students or require anyone else to participate.” Ante, at 26; see also ante, at 30, n. 7 (contending that the fact that “students might choose, unprompted, to participate” in their coach’s on-the-field prayers does not “necessarily prove them coercive”). But nowhere does the Court engage with the unique coercive power of a coach’s actions on his adolescent players.[ 8 ] In any event, the Court makes this assertion only by drawing a bright line between Kennedy’s yearslong practice of leading student prayers, which the Court does not defend, and Kennedy’s final three prayers, which BHS students did not join, but student peers from the other teams did. See ante , at 26 (distinguishing Kennedy’s prior practice and focusing narrowly on “three prayers . . . in October 2015”). As discussed above, see supra, at 18, this mode of analysis contravenes precedent by “turn[ing] a blind eye to the context in which [Kennedy’s practice] arose,” Santa Fe , 530 U. S., at 315.[ 9 ] This Court’s precedents require a more nuanced inquiry into the realities of coercion in the specific school context concerned than the majority recognizes today. The question before the Court is not whether a coach taking a knee to pray on the field would constitute an Establishment Clause violation in any and all circumstances. It is whether permitting Kennedy to continue a demonstrative prayer practice at the center of the football field after years of inappropriately leading students in prayer in the same spot, at that same time, and in the same manner, which led students to feel compelled to join him, violates the Establishment Clause. It does. Having disregarded this context, the Court finds Kennedy’s three-game practice distinguishable from precedent because the prayers were “quie[t]” and the students were otherwise “occupied.” Ante, at 26. The record contradicts this narrative. Even on the Court’s myopic framing of the facts, at two of the three games on which the Court focuses, players witnessed student peers from the other team and other authority figures surrounding Kennedy and joining him in prayer. The coercive pressures inherent in such a situation are obvious. Moreover, Kennedy’s actual demand to the District was that he give “verbal” prayers specifically at the midfield position where he traditionally led team prayers, and that students be allowed to join him “voluntarily” and pray. App. 64, 69–71. Notably, the Court today does not embrace this demand, but it nonetheless rejects the District’s right to ensure that students were not pressured to pray. To reiterate, the District did not argue, and neither court below held, that “ any visible religious conduct by a teacher or coach should be deemed . . . impermissibly coercive on students.” Ante, at 28. Nor has anyone contended that a coach may never visibly pray on the field. The courts below simply recognized that Kennedy continued to initiate prayers visible to students, while still on duty during school events, under the exact same circumstances as his past practice of leading student prayer. It is unprecedented for the Court to hold that this conduct, taken as a whole, did not raise cognizable coercion concerns. Importantly, nothing in the Court’s opinion should be read as calling into question that Kennedy’s conduct may have raised other concerns regarding disruption of school events or misuse of school facilities that would have separately justified employment action against Kennedy. *  *  * The Free Exercise Clause and Establishment Clause are equally integral in protecting religious freedom in our society. The first serves as “a promise from our government,” while the second erects a “backstop that disables our government from breaking it” and “start[ing] us down the path to the past, when [the right to free exercise] was routinely abridged.” Trinity Lutheran Church of Columbia, Inc. v. Comer , 582 U. S. ___, ___ (2017) (Sotomayor, J., dissenting) (slip op., at 26). Today, the Court once again weakens the backstop. It elevates one individual’s interest in personal religious exercise, in the exact time and place of that individual’s choosing, over society’s interest in protecting the separation between church and state, eroding the protections for religious liberty for all. Today’s decision is particularly misguided because it elevates the religious rights of a school official, who voluntarily accepted public employment and the limits that public employment entails, over those of his students, who are required to attend school and who this Court has long recognized are particularly vulnerable and deserving of protection. In doing so, the Court sets us further down a perilous path in forcing States to entangle themselves with religion, with all of our rights hanging in the balance. As much as the Court protests otherwise, today’s decision is no victory for religious liberty. I respectfully dissent. Notes 1 The Court recounts that Kennedy was “willing to say his ‘prayer while the players were walking to the locker room’ or ‘bus,’ and then catch up with his team.” Ante, at 4 (quoting App. 280–282); see also ante, at 5. Kennedy made the quoted remarks, however, only during his deposition in the underlying litigation, stating in response to a question that such timing would have been “physically possible” and “possibly” have been acceptable to him, but that he had never “discuss[ed] with the District whether that was a possibility for [him] to do” and had “no idea” whether his lawyers raised it with the District. App. 280. 2 The Court describes the events of the October 16 game as having “spurred media coverage of Mr. Kennedy’s case.” Ante, at 5. In fact, the District Court found that Kennedy himself generated the media coverage by publicizing his dispute with the District in his initial Facebook posting and in his media appearances before the October 16 game. 443 F. Supp. 3d 1223, 1230 (WD Wash. 2020). 3 The Court’s primary argument that Kennedy’s speech is not in his official capacity is that he was permitted “to call home, check a text, [or] socialize” during the time period in question. Ante, at 18–19. These truly private, informal communications bear little resemblance, however, to what Kennedy did. Kennedy explicitly sought to make his demonstrative prayer a permanent ritual of the postgame events, at the physical center of those events, where he was present by virtue of his job responsibilities, and after years of giving prayer-filled motivational speeches to students at the same relative time and location. In addition, Kennedy gathered public officials and other members of the public onto the field to join him in the prayer, contrary to school policies controlling access to the field. Such behavior raises an entirely different risk of depriving the employer of “control over what the employer itself has commissioned or created” than an employee making a call home on the sidelines, fleetingly checking email, or pausing to hug a friend in the crowd. Garcetti , 547 U. S., at 422. 4 The Court attempts to recast Lee and Santa Fe as solely concerning coercion, ante, at 29–30, but both cases emphasized that it was important to avoid appearances of “ ‘state endorsement of prayer in public schools.’ ” Santa Fe , 530 U. S., at 308; see Lee , 505 U. S., at 590 (finding that the “degree of school involvement” indicated that the “prayers bore the imprint of the State”). 5 The notion that integration of religious practices into the workplace may require compromise and accommodation is not unique to the public-employer context where Establishment Clause concerns arise. The Court’s precedents on religious discrimination claims similarly recognize that the employment context requires balancing employer and employee interests, and that religious practice need not always be accommodated. See Kennedy v. Bremerton School Dist. , 586 U. S. ___, ___ (2019) (slip op., at 6) (Alito, J., statement respecting denial of certiorari) (noting that “Title VII’s prohibition of discrimination on the basis of religion does not require an employer to make any accommodation that imposes more than a de minimis burden”). Surely, an employee’s religious practice that forces a school district to engage in burdensome measures to stop spectators from rushing onto a field and knocking people down imposes much more than a de minimis burden. 6 The Court also cites Shurtleff v. Boston , 596 U. S. ___ (2022), as evidence that the Lemon test has been rejected. See ante, at 23. Again, while separate writings in Shurtleff criticized Lemon , the Court did not. The opinion of the Court simply applied the longstanding rule that, when the government does not speak for itself, it cannot exclude speech based on the speech’s “ ‘religious viewpoint.’ ” Shurtleff , 596 U. S., at ___ (slip op., at 12) (quoting Good News Club , 533 U. S., at 112). The Court further infers Lemon ’s implicit overruling from recent decisions that do not apply its test. See ante, at 23, n. 4. As explained above, however, not applying a test in a given case is a different matter from overruling it entirely and, moreover, the Court has never before questioned the relevance of endorsement in the school-prayer context. 7 The Court further claims that Lee is distinguishable because it involved prayer at an event in which the school had “ ‘in every practical sense compelled attendance and participation in [a] religious exercise.’ ” Ante , at 29 (quoting Lee , 505 U. S., at 598). The Court in Lee , however, recognized expressly that attendance at the graduation ceremony was not mandatory and that students who attended only had to remain silent during and after the prayers. Id. , at 583, 593. 8 Puzzlingly, the Court goes a step further and suggests that Kennedy may have been in violation of the District policy on Religious-Related Activities and Practices if he did not permit the players to join his prayers because the policy prohibited staff from “discourag[ing]” student prayer. Ante, at 4, 30, n. 7. The policy, however, specifically referred to student prayer of the student’s “own volition” and equally prohibited staff from “encourag[ing]” student prayer. App. 28. 9 The Court claims that Kennedy’s “past prayer practices” should not be seen to “taint” his current ones by again turning to Town of Greece v. Galloway , the town assembly prayer case. Ante, at 30, n. 7. In the passage the Court cites, Town of Greece concluded that “two remarks” by two different “guest minister[s]” on two isolated occasions did not constitute a “pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose.” 572 U. S., at 585. As Town of Greece itself emphasizes, the school context presents Establishment Clause concerns distinct from those raised in a town meeting for “mature adults.” Id., at 590 (plurality opinion). See supra, at 15. In any event, Kennedy’s yearslong “past prayer practices” constituted an established pattern, not an isolated occasion, and he hardly “abandoned” the practice. Ante, at 30, n. 7. As his October 14 letter and subsequent actions made clear, Kennedy attempted to hew as closely to his past practice as possible, taking a knee at the same time and place as previously, and in the same manner that initially drew students to join him and by improperly permitting spectators to join him on the field.

The case of Joseph Kennedy, a high school football coach who lost his job for praying at midfield after games, was brought before the Supreme Court. The Court ruled in favor of Kennedy, citing protection under both the Free Exercise and Free Speech Clauses of the First Amendment. The Court argued that the Bremerton School District's decision to discipline Kennedy was misguided, as his prayers were private expressions made during a period when school employees were free to engage in personal activities. The ruling emphasized mutual respect and tolerance for religious and non-religious views, rather than censorship or suppression.

Role of Courts

Hollingsworth v. Virginia

https://supreme.justia.com/cases/federal/us/3/378/

U.S. Supreme Court Hollingsworth v. Virginia, 3 U.S. 3 Dall. 378 378 (1798) Hollingsworth v. Virginia 3 U.S. (3 Dall.) 378 Syllabus The amendment of the Constitution of the United States by which the judicial power of the United States was declared not to extend to any suit commenced or prosecuted by a citizen or citizens of another state or by foreign subjects against a state prevented the exercise of jurisdiction in any case past or future. The decision of the court, in the case of Chisholm v. Georgia , 2 U. S. 419 , produced a proposition in Congress for amending the Constitution of the United States according to the following terms: "The judicial power of the United States shall not be construed to extend to any suit in law and equity commenced or prosecuted against one of the United States by citizens of another state or by citizens or subjects of any foreign state." The proposition being now adopted by the constitutional number of states, Lee, Attorney General, submitted this question to the Court whether the amendment did or did not supersede all suits depending, as well as prevent the institution of new suits against any one of the United States by citizens of another state. Page 3 U. S. 382 The Court, on the day succeeding the argument, delivered an unanimous opinion that the amendment being constitutionally adopted, there could not be exercised any jurisdiction in any case, past or future, in which a state was sued by the citizens of another state or by citizens or subjects of any foreign state.

The case of Hollingsworth v. Virginia (1798) centered around an amendment to the US Constitution that restricted the judicial power of the United States in certain suits involving a state and citizens of another state or foreign subjects. The amendment was a response to the Court's decision in Chisholm v. Georgia, which allowed for such suits. The question before the Court in Hollingsworth was whether this amendment superseded all ongoing suits and prevented the initiation of new ones against a state by out-of-state citizens. The Court unanimously held that, with the amendment's adoption, there could be no jurisdiction exercised in any case, past or future, where a state was sued by citizens of another state or foreign subjects. This decision effectively overruled Chisholm v. Georgia and established sovereign immunity for states against certain types of lawsuits.

Role of Courts

Chisholm v. Georgia

https://supreme.justia.com/cases/federal/us/2/419/

U.S. Supreme Court Chisholm v. Georgia, 2 U.S. 2 Dall. 419 419 (1793) Chisholm v. Georgia 2 U.S. (2 Dall.) 419 Page 2 U. S. 429 Iredell, Justice. This great cause comes before the Court on a motion made by the Attorney General that an order be made by this Court to the following effect: "That, unless the State of Georgia shall, after reasonable notice of this motion, cause an appearance to be entered on behalf of the said State on the fourth day of next Term, or show cause to the contrary, judgment shall be entered for the plaintiff, and a writ of enquiry shall be awarded." Before such an order be made, it is proper that this Court should be satisfied it hath cognizance of the suit; for, to be sure, we ought not to enter a conditional judgment (which this would be) in a case where we were not fully persuaded we had authority to do so. This is the first instance wherein the important question involved in this cause has come regularly before the Court. In the Maryland case it did not, because the Attorney General of the State voluntarily appeared. We could not therefore, without the greatest impropriety, have taken up the question suddenly. That case has since been compromised. But, had it proceeded to trial, and a verdict been given for the plaintiff, it would have been our duty, previous to our giving judgment, to have well Page 2 U. S. 430 considered whether we were warranted in giving it. I had then great doubts upon my mind, and should in such a case have proposed a discussion of the subject. Those doubts have increased since, and, after the fullest consideration I have been able to bestow on the subject, and the most respectful attention to the able argument of the Attorney General, I am now decidedly of opinion that no such action as this before the Court can legally be maintained. The action is an action of assumpsit. The particular question then before the Court is will an action of assumpsit lie against a State? This particular question (abstracted from the general one, viz., whether a State can in any instance be sued?) I took the liberty to propose to the consideration of the Attorney General last Term. I did so because I have often found a great deal of confusion to arise from taking too large a view at once, and I had found myself embarrassed on this very subject until I considered the abstract question itself. The Attorney General has spoken to it, in reference to my request, as he has been pleased to intimate, but he spoke to this particular question slightly, conceiving it to be involved in the general one; and after establishing, as he thought, that point, he seemed to consider the other followed of course. He expressed, indeed, some doubt how to prove what appeared so plain. It seemed to him (if I recollect right) to depend principally on the solution of this simple question: can a State assume? But the Attorney General must know that, in England, certain judicial proceedings not inconsistent with the sovereignty may take place against the Crown, but that an action of assumpsit will not lie. Yet surely the King can assume as well as a State. So can the United States themselves, as well as any State in the Union. Yet the Attorney General himself has taken some pains to show that no action whatever is maintainable against the United States. I shall therefore confine myself, as much as possible, to the particular question before the Court, though everything I have to say upon it will effect every kind of suit the object of which is to compel the payment of money by a State. The question, as I before observed, is will an action of assumpsit lie against a State? If it will, it must be in virtue of the Constitution of the United States and of some law of Congress conformable thereto. The part of the Constitution concerning the Judicial Power is as follows, viz: "Art.3. sect. 2. The Judicial Powser shall extend" "(1) To all cases, in law and equity, arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;" "(2) To all cases affecting Ambassadors, or other public Ministers, and Consuls;" "(3) To all cases of Admiralty and Maritime Jurisdiction;" "(4) To controversies to which the Page 2 U. S. 431 United States shall be a party;" "(5) To controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State, claiming lands under grants of different States, and between a State or the citizens thereof and foreign states, citizens or subjects." The Constitution therefore provides for the jurisdiction wherein a State is a party in the following instances: 1st. Controversies between two or more States. 2nd. Controversies between a State and citizens of another State. 3rd. Controversies between a State, and foreign states, citizens, or subjects. And it also provides that, in all cases in which a State shall be a party, the Supreme Court shall have original jurisdiction. The words of the general Judicial Act conveying the authority of the Supreme Court under the Constitution, so far as they concern this question, are as follow: "Sect. 13. That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature where a State is a party, except between a State and its citizens, and except also between a State and citizens of other States, or aliens, in which latter case it shall have original, but not exclusive jurisdiction. And shall have, exclusively, all jurisdiction of suits or proceedings against Ambassadors, or other public Ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by Ambassadors, or other public Ministers, or in which a Consul, or Vice-Consul, shall be a party." The Supreme Court hath therefore First. Exclusive jurisdiction in every controversy of a civil nature: 1st. Between two or more States. 2nd Between a State and a foreign state. 3rd. Where a suit or proceeding is depending against Ambassadors, other public ministers, or their domestics, or domestic servants. Second. Original, but not exclusive jurisdiction. 1st. Between a State and citizens of other States. 2nd. Between a State and foreign citizens or subjects. 3rd. Where a suit is brought by Ambassadors, or other public ministers. 4th. Where a consul or vice-consul, is a party. The suit now before the Court (if maintainable at all) comes within the latter description, it being a suit against a State by a citizen of another State. The Constitution is particular in expressing the parties who may be the objects of the jurisdiction in any of these cases, but in respect to the subject matter upon which such jurisdiction is to be exercised, uses the word "controversies" only. The act of Congress more particularly mentions civil controversies, a qualification of the general word in the Constitution which I do not doubt every reasonable man will think well warranted, for it Page 2 U. S. 432 cannot be presumed that the general word "controversies" was intended to include any proceedings that relate to criminal cases, which, in all instances that respect the same Government only, are uniformly considered of a local nature, and to be decided by its particular laws. The word "controversy" indeed, would not naturally justify any such construction, but nevertheless it was perhaps a proper instance of caution in Congress to guard against the possibility of it. A general question of great importance here occurs. What controversy of a civil nature can be maintained against a State by an individual? The framers of the Constitution, I presume, must have meant one of two things: either 1. in the conveyance of that part of the judicial power which did not relate to the execution of the other authorities of the general Government (which it must be admitted are full and discretionary, within the restrictions of the Constitution itself), to refer to antecedent laws for the construction of the general words they use; or, 2. to enable Congress in all such cases to pass all such laws as they might deem necessary and proper to carry the purposes of this Constitution into full effect, either absolutely at their discretion, or at least in cases where prior laws were deficient for such purposes, if any such deficiency existed. The Attorney General has indeed suggested another construction, a construction, I confess that I never heard of before, nor can I now consider it grounded on any solid foundation, though it appeared to me to be the basis of the Attorney General's argument. His construction I take to be this: "That the moment a Supreme Court is formed, it is to exercise all the judicial power vested in it by the Constitution, by its own authority, whether the legislature has prescribed methods of doing so, or not." My conception of the Constitution is entirely different. I conceive that all the courts of the United States must receive not merely their organization as to the number of judges of which they are to consist; but all their authority as to the manner of their proceeding, from the legislature only. This appears to me to be one of those cases, with many others, in which an article of the Constitution cannot be effectuated without the intervention of the legislative authority. There being many such, at the end of the special enumeration of the powers of Congress in the Constitution, is this general one: "To make all laws which shall be necessary and proper for carrying into execution the foregoing Powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof." None will deny that an act of Legislation is necessary to say, at least of what number the judges are to consist; the President with the consent of the Senate could not nominate a number at their Page 2 U. S. 433 discretion. The Constitution intended this article so far at least to be the subject of a legislative act. Having a right thus to establish the Court, and it being capable of being established in no other manner, I conceive it necessary follows that they are also to direct the manner of its proceedings. Upon this authority, there is, that I know, but one limit -- that is, "that they shall not exceed their authority." If they do, I have no hesitation to say that any act to that effect would be utterly void, because it would be inconsistent with the Constitution, which is a fundamental law paramount to all others, which we are not only bound to consult, but sworn to observe; and therefore, where there is an interference, being superior in obligation to the other, we must unquestionably obey that in preference. Subject to this restriction, the whole business of organizing the Courts, and directing the methods of their proceeding where necessary, I conceive to be in the discretion of Congress. If it shall be found on this occasion or on any other that the remedies now in being are defective for any purpose it is their duty to provide for, they no doubt will provide others. It is their duty to legislate so far as is necessary to carry the Constitution into effect. It is ours only to judge. We have no reason, nor any more right, to distrust their doing their duty than they have to distrust that we all do ours. There is no part of the Constitution that I know of that authorises this Court to take up any business where they left it, and, in order that the powers given in the Constitution may be in full activity, supply their omission by making new laws for new cases -- or, which I take to be the same thing, applying old principles to new cases materially different from those to which they were applied before. With regard to the Attorney General's doctrine of incidents, that was founded entirely on the supposition of the other I have been considering. The authority contended for is certainly not one of those necessarily incident to all courts merely as such. If therefore, this Court is to be (as I consider it) the organ of the Constitution and the law, not of the Constitution only, in respect to the manner of its proceeding, we must receive our directions from the legislature in this particular, and have no right to constitute ourselves an ossicina brevium, or take any other short method of doing what the Constitution has chosen (and, in my opinion, with the most perfect propriety) should be done in another manner. But the act of Congress has not been altogether silent upon this subject. The 14th sect. of the Judicial Act provides in the following words: "All the before mentioned courts of the United States shall have power to issue writs of fiere facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective Page 2 U. S. 434 jurisdictions, and agreeable to the principles and usages of law." These words refer as well to the Supreme Court as to the other Courts of the United States. Whatever writs we issue that are necessary for the exercise of our jurisdiction must be agreeable to the principles and usages of law. This is a direction, I apprehend, we cannot supersede because it may appear to us not sufficiently extensive. If it be not, we must wait till other remedies are provided by the same authority. From this it is plain that the legislature did not chuse to leave to our own discretion the path to justice, but has prescribed one of its own. In doing so, it has, I think, wisely, referred us to principles and usages of law already well known, and by their precision calculated to guard against that innovating spirit of courts of justice which the Attorney General in another case reprobated with so much warmth, and with whose sentiments in that particular I most cordially join. The principles of law to which references is to be had either upon the general ground I first alluded to, or upon the special words I have above cited from the Judicial Act, I apprehend, can be either, 1st. those of the particular laws of the State against which the suit is brought, or, 2nd., principles of law common to all the States. I omit any consideration arising from the word "usages," though a still stronger expression. In regard to the principles of the particular laws of the State of Georgia, if they in any manner differed, so as to effect this question, from the principles of law common to all the States, it might be material to enquire whether there would be any propriety or congruity in laying down a rule of decision which would induce this consequence -- that an action would lie in the Supreme Court against some States whose laws admitted of a compulsory remedy against their own Governments, but not against others wherein no such remedy was admitted, or which would require, perhaps, if the principle was received, fifteen different methods of proceeding against States, all standing in the same political relation to the general Government, and none having any pretence to a distinction in its favor, or justly liable to any distinction to its prejudice. If any such difference existed in the laws of the different States, there would seem to be a propriety, in order to induce uniformity (if a constitutional power for that purpose exists) that Congress should prescribe a rule, fitted to this new case, to which no equal, uniform, and impartial mode of proceeding could otherwise be applied. But this point, I conceive, it is unnecessary to determine, because I believe there is no doubt that neither in the State now in question nor in any other in the Union, any particular legislative mode, authorizing a compulsory suit for the recovery of money against a State, was in being either when the Constitution Page 2 U. S. 435 was adopted, or at the time the Judicial Act was passed. Since that time, an Act of Assembly for such a purpose has been passed in Georgia. But that surely could have no influence in the construction of an act of the Legislature of the United States passed before. The only principles of law, then, that can be regarded are those common to all the States. I know of none such which can affect this case but those that are derived from what is properly termed "the common law," a law which I presume is the groundwork of the laws in every State in the Union, and which I consider, so far as it is applicable to the peculiar circumstances of the country, and where no special act of legislation controls it, to be in force in each State as it existed in England (unaltered by any statute) at the time of the first settlement of the country. The statutes of England that are in force in America differ perhaps in all the States, and therefore it is probable the common law in each is in some respects different. But it is certain that, in regard to any common law principle which can influence the question before us, no alteration has been made by any statute which could occasion the least material difference, or have any partial effect. No other part of the common law of England, it appears to me, can have any reference to this subject but that part of it which prescribes remedies against the Crown. Every State in the Union, in every instance where its sovereignty has not been delegated to the United States, I consider to be as completely sovereign as the United States are in respect to the powers surrendered. The United States are sovereign as to all the powers of Government actually surrendered: each State in the Union is sovereign as to all the powers reserved. It must necessarily be so, because the United States have no claim to any authority but such as the States have surrendered to them. Of course, the part not surrendered must remain as it did before. The powers of the general Government, either of a legislative or Executive nature, or which particularly concerns treaties with foreign powers, do for the most part (if not wholly) affect individuals, and not States. They require no aid from any State authority. This is the great leading distinction between the old Articles of Confederation and the present Constitution. The Judicial power is of a peculiar kind. It is indeed commensurate with the ordinary legislative and executive powers of the General Government, and the power which concerns treaties. But is also goes further. Where certain parties are concerned, although the subject in controversy does not relate to any of the special objects of authority of the General Government, wherein the separate sovereignties of the States are blended in one common mass of supremacy, yet the General Government has a judicial authority in regard to such Page 2 U. S. 436 subjects of controversy, and the Legislature of the United States may pass all laws necessary to give such judicial authority its proper effect. So far as States under the Constitution can be made legally liable to this authority, so far, to be sure, they are subordinate to the authority of the United States, and their individual sovereignty is in this respect limited. But it is limited no farther than the necessary execution of such authority requires. The authority externals only to the decision of controversies in which a State is a party, and providing laws necessary for that purpose. That surely can refer only to such controversies in which a State can be a part, in respect to which, if any question arises, it can be determined, according to the principles I have supported, in no other manner than by a reference either to preexistent laws or laws passed under the Constitution and in conformity to it. Whatever be the true construction of the Constitution in this particular -- whether it is to be construed as intending merely a transfer of jurisdiction from one tribunal to another, or as authorizing the legislature to provide laws for the decision of all possible controversies in which a State may be involved with an individual, without regard to any prior exemption -- yet it is certain that the legislature has in fact proceeded upon the former supposition, and not upon the latter. For, besides what I noticed before as to an express reference to principles and usages of law as the guide of our proceeding, it is observable that, in instances like this before the Court, this Court hath a concurrent jurisdiction only, the present being one of those cases where, by the Judicial Act, this Court hath original, but not exclusive, jurisdiction. This Court, therefore, under that Act, can exercise no authority in such instances but such authority as from the subject matter of it may be exercised in some other court. There are no courts with which such a concurrence can be suggested but the Circuit Courts, or courts of the different States. With the former it cannot be, for admitting that the Constitution is not to have a restrictive operation, so as to confine all cases in which a State is a party exclusively to the Supreme Court (an opinion to which I am strongly inclined), yet there are no words in the definition of the powers of the Circuit Court which give a colour to an opinion that where a suit is brought against a State by a citizen of another State, the Circuit Court could exercise any jurisdiction at all. If they could, however, such a jurisdiction, by the very terms of their authority, could be only concurrent with the courts of the several States. It follows, therefore, unquestionably, I think, that looking at the act of Congress, which I consider is on this occasion the limit of our authority (whatever further might be constitutionally, enacted), we can exercise no authority in the present instance Page 2 U. S. 437 consistently with the clear intention of the Act, but such as a proper State Court would have been at least competent to exercise at the time the Act was passed. If, therefore, no new remedy be provided (as plainly is the case), and consequently we have no other rule to govern us but the principles of the preexistent laws, which must remain in force till superseded by others, then it is incumbent upon us to enquire whether, previous to the adoption of the Constitution (which period, or the period of passing the law in respect to the object of this enquiry, is perfectly equal), an action of the nature like this before the Court could have been maintained against one of the States in the Union upon the principles of the common law, which I have shown to be alone applicable. If it could, I think it is now maintainable here. If it could not, I think, as the law stands at present, it is not maintainable, whatever opinion may be entertained upon the construction of the Constitution as to the power of Congress to authorize such a one. Now I presume it will not be denied that, in every State in the Union, previous to the adoption of the Constitution, the only common law principles in regard to suits that were in any manner admissible in respect to claims against the State were those which, in England, apply to claims against the Crown, there being certainly no other principles of the common law which, previous to the adoption of this Constitution could, in any manner or upon any colour, apply to the case of a claim against a State in its own courts, where it was solely and completely sovereign in respect to such cases at least. Whether that remedy was strictly applicable or not, still I apprehend there was no other. The only remedy in a case like that before the Court, by which, by any possibility, a suit can be maintained against the Crown in England, or could be at any period from which the common law, as in force in America, could be derived, I believe is that which is called a petition of right. It is stated, indeed, in Com.Dig. 105, that "until the time of Edward I, the King might have been sued in all actions as a common person." And some authorities are cited for that position, though it is even there stated as a doubt. But the same authority adds "but now none can have an action against the King, but one shall be put to sue to him by petition." This appears to be a quotation or abstract from Theloall's Digest, which is also one of the authorities quoted in the former case. And this book appears (from the law catalogue) to have been printed so long ago as the year 1579. The same doctrine appears (according to a quotation in Blackstone's Commentaries, I Vol. 243) to be stated in Finch's Law 253, the first edition of which, it seems, was published in 1579. This also more fully appears in the case of the Bankers, and particularly from the celebrated argument of Lord Page 2 U. S. 438 Somers, in the time of W. III., for, though that case was ultimately decided against Lord Somers' opinion, yet the ground on which the decision was given no way invalidates the reasoning of that argument so far as it respects the simple case of a sum of money demandable from the King and not by him secured on any particular revenues. The case is reported in Freeman, Vol. 1. p. 331. 5 Mod. 29; Skinn. 601, and lately, very elaborately, in a small pamphlet published by Mr. Hargrave which contains all the reports at length, except Skinner's, together with the argument at large of Lord Somers, besides some additional matter. The substance of the case was as follows: King Charles II, having received large sums of money from bankers on the credit of the growing produce of the revenue, for the payment of which tallies and orders of the Exchequer were given (afterwards made transferable by statute), and the payment of these having been afterward postponed, the King at length, in order to relieve the Bankers, in 1677, granted annuities to them, out of the hereditary Excise, equal to 6 percent interest on their several debts, but redeemable on payment of the principal. This interest was paid 'till 1683, but it then became in arrears, and continued so at the Revolution; and the suits which were commenced to enforce the payment of these arrears were the subject of this case. The Bankers presented a petition to the Barons of the Exchequer for the payment of the arrears of the annuities granted, to which petition the Attorney General demurred. Two points were made: first, whether the grant out of the Excise was good; second, whether a petition to the Barons of the Exchequer was a proper remedy. On the first point, the whole Court agreed that, in general, the King could alienate the revenues of the Crown; but Mr. Baron Lechmore differed from the other Barons by thinking that this particular revenue of the Excise was an exception to the general rule. But all agreed that the petition was a proper remedy. Judgment was therefore given for the petition by directing payment to the complainants at the receipt of the Exchequer. A writ of error was brought on this judgment by the Attorney General in the Exchequer Chamber. There, all the judges who argued held the grant out of the Excise good. A majority of them, including Lord Chief Justice Holt, also approved of the remedy by petition to the Barons. But Lord Chief Justice Treby was of opinion that the Barons of the Exchequer were not authorised to make order for payments on the receipt of the Exchequer, and therefore that the remedy by petition to the Barons was inapplicable. In this opinion, Lord Somers concurred. A doubt then arose whether the Lord Chancellor and Lord High Treasurer were at liberty to give judgment according to their own Page 2 U. S. 439 opinion, in opposition to that of a majority of the attendant judges; in other words, whether the judges called by the Lord Chancellor and Lord High Treasurer were to be considered as mere assistants to them, without voices. The opinion of the judges being taken on this point, seven against three held that the Lord Chancellor and Lord Treasurer were not concluded by the opinions of the judges, and therefore that the Lord Keeper in the case in question, there being then no Lord Treasurer, might give judgment according to his own opinion. Lord Somers concurring in this idea, reversed the judgment of the Court of Exchequer. But the case was afterwards carried by error into Parliament, and there the Lords reversed the judgment of the Exchequer Chamber and affirmed that of the Exchequer. However, notwithstanding this final decision in favour of the Bankers and their creditors, it appears by a subsequent statute that they were to receive only one half of their debts; the 12 and 14 W. 3, after appropriating certain sums out of the hereditary Excise for public uses, providing that, in lieu of the annuities granted to the Bankers and all arrears, the hereditary Excise should, after the 26th of December 1601, be charged with annual sums equal to an interest of three per cent, till redeemed by payment of one moiety of the principal sums. Hargrave's Case of the Bankers, 1, 2, 3. Upon perusing the whole of this case, these inferences naturally follow: 1st. That admitting the authority of that decision in its fullest extent, yet it is an authority only in respect to such cases, where letters patent from the Crown have been granted for the payment of certain sums out of a particular revenue. 2nd. That such relief was grantable in the Exchequer, upon no other principle than that that Court had a right to direct the issues of the Exchequer as well after the money was deposited there as while (in the Exchequer language) it was in transitu. 3rd. That such an authority could not have been exercised by any other court in Westminster Hall, or by any court that, from its particular constitution, had no controul over the revenues of the Kingdom. Lord C. J. Holt and Lord Somers (though they differed in the main point) both agreed in that case that the Court of King's Bench could not send a writ to the Treasury. Hargrave's Case, 45, 89. Consequently, no such remedy could, under any circumstances, I apprehend, be allowed in any of the American States, in none of which it is presumed any court of justice hath any express authority over the revenues of the State such as has been attributed to the Court of Exchequer in England. The observations of Lord Somers concerning the general remedy by petition to the King have been extracted and referred to by some of the ablest law characters since, particularly by Page 2 U. S. 440 Lord C. Baron Comyns in his digest. I shall therefore extract some of them, as he appears to have taken uncommon pains to collect all the material learning on the subject, and indeed is said to have expended several hundred pounds in the procuring of records relative to their case. Hargrave's preface to the case of the Bankers. After citing many authorities, Lord Somers proceeds thus: "By all these authorities, and by many others which I could cite, both ancient and modern, it is plain that, if the subject was to recover a rent, or annuity, or other charge from the Crown; whether it was a rent or annuity originally granted by the King, or issuing out of lands, which by subsequent title came to be in the King's hands; in all cases, the remedy to come at it was by petition to the person of the King; and no other method can be shown to have been practised at common law. Indeed, I take it to be generally true that, in all cases where the subject is in the nature of a plaintiff, to recover anything from the King, his only remedy, at common law, is to sue by petition to the person of the King. I say, where the subject comes as a plaintiff. For, as I said before, when, upon a title found for the King by office, the subject comes in to traverse the King's title, or to show his own right, he comes in the nature of a defendant, and is admitted to interplead in the case with the King in defense of his title, which otherwise would be defeated by finding the office. And to show that this was so, I would take notice of several instances. That, in cases of debts owing by the Crown, the subject's remedy was by petition appears by Aynesham's Case, Ryley 251, which is a petition for 19. due for work done at Carnarvon castle. So Ryley 251. The executors of John Estrateling petition for 132. due to the testator for wages. The answer is remarkable, for there is a latitude taken, which will very well agree with the notion that is taken up in this case; Habeant bre. de liberate in Canc. thes. & camerar. de 32. in partem solutionis. So the case of Yerward de Galeys, for 56. Ryley 414. In like manner in the same book 253.33. Ed. I. several parties sue by petition for money and goods taken for the King's use, and also for wages due to them, and for debts owing to them by the King. The answer is, Rex ordinavit per concilium thesaurarii & baronum de scaecario, quod satisfiet iis quam citius fieri poterit; ita quod contertos se tenebunt. And this is an answer given to a petition " brk: presented to the King in Parliament, and therefore we have reason to conclude it to be warranted by law. They must be content, and they shall be paid, quam citius fieri poterit. The parties in these cases first go to the King by petition: it is by him they are sent to the Exchequer, and it is by writ under the great seal that the Exchequer is impowered to act. Nor can Page 2 U. S. 441 any such writ be found (unless in a very few instances, where it is mere matter of account) in which the Treasurer is not joined with the Barons. So far was it from being taken to be law at that time that the Barons had any original power of paying the King's debts, or of commanding annuities, granted by the King or his progenitors to be paid when the person applied to them for such payment. But perhaps it may be objected that it is not to be inferred, because petitions were brought in these cases, that therefore it was of necessity that the subject should pursue that course, and could take no other way. It might be reasonable to require from those who object thus that they should produce some precedents at least, of another remedy taken. But I think there is a good answer to be given to this objection. All these petitions which I have mentioned are after the Stat. 8 Ed. I., Ryley 442, where notice is taken that the business of Parliament is interrupted by a multitude of petitions, which might be redressed by the Chancellor and Justices. Wherefore it is thereby enacted that petitions which touch the seal shall come first to the Chancellor; those which touch the Exchequer, to the Exchequer; and those which touch the Justices, or the law of the land, should come to the Justices; and if the business be so great, or st de grace that the Chancellor, or others, cannot do them without the King, then the petitions shall be brought before the King to know his pleasure, so that no petitions come before the King and his Council but by the hands of the Chancellor, and other chief Ministers; that the King and his Council may attend the great affairs of the King's Realm, and his sovereign dominions. "This law being made, there is reason to conclude that all petitions brought before the King or Parliament after this time, and answered there, were brought according to the method of this law, and were of the nature of such petitions as ought to be brought before the person of the King. And that petitions did lie for a chattel, as well as for a freehold, does appear, 37 Ass. pl ii. Bro.Pet. 17. If tenant by the statute merchant be ousted, he may have petition, and shall be restored. Vide 9 H.4.4. Bro.Pet. 9. 9. H. 6. 21. Bro.Pet. 2. If the subject be ousted of his term, he shall have his petition. 7. H.7.ii. Of a chattel real, a man shall have his petition of right, as of his freehold. 34. H. 6.51. Bro.Pet. 3. A man shall have a petition of right for goods and chattels, and the King indorses it in the usual form. It is said indeed, 1 H.7.3. Bro.Pet. 19., that a petition will not lie of a chattel. And, admitting there was any doubt as to that point, in the present suit, we are in the case of a freehold." Lord Somers' argument in Hargrave's Case of the Bankers, 103 to 105. The solitary case, noticed at the conclusion of Lord Somers' argument, "that a petition will not lie of a chattel," certainly Page 2 U. S. 442 is deserving of no consideration, opposed to so many other instances mentioned, and unrecognized (as I believe it is) by any other authority either ancient or modern, whereas the contrary, it appears to me, has long been received and established law. In Comyns' Dig. 4 Vol. 458, it is said expressly "suit shall be to the King by petition, for goods as well as for land." He cites Staundf.Prar. 75. b. 72. b. for his authority, and takes no notice of any authority to the contrary. The same doctrine is also laid down with equal explicitness, and without noticing any distinction whatever, in Blackstone's Commentaries, 3 Vol. 256, where he points out the petition of right as one of the common law methods of obtaining possession or restitution from the Crown, either of real or personal property, and says expressly the petition of right "is of use where the King is in full possession of any hereditaments or chattels, and the petitioner suggests such a right as controverts the title of the Crown, grounded on facts disclosed in the petition itself." I leave out of the argument, from which I have made so long a quotation, everything concerning the restriction on the Exchequer so far as it concerned the case then before the Court, as Lord Somers (although more perhaps by weight of authority than reasoning) was overruled in that particular. As to all others, I consider the authorities on which he relied, and his deduction from them, to be unimpeached. Blackstone, in the first volume of his commentaries (p. 203), speaking of demands in point of property upon the King, states the general remedy thus: "If any person has, in point of property, a just demand upon the King, he must petition him in his Court of Chancery, where his Chancellor will administer right, as a matter of grace, though not upon compulsion. [For which he cites Finch L. 255.] . . . And this is exactly consonant to what is laid down by the writers on natural law. A subject, say Puffendorf, so long as he continues a subject, hath no way to oblige his Prince to give him his due when he refuses it, though no wise Prince will ever refuse to stand to a lawful contract. And if the Prince gives the subject leave to enter an action against him upon such contract in his own courts, the action itself proceeds rather upon natural equity than upon the municipal laws. For the end of such action is not to compel the Prince to observe the contract, but to persuade him." It appears that when a petition to the person of the King is properly presented, the usual way is for the King to indorse or underwrite, soit droit sait al partie (let right be done to the party), upon which, unless the Attorney General confesses the suggestion, a commission is issued to enquire into the truth of it, after the return of which, the King's attorney is at liberty to Page 2 U. S. 443 plead in bar, and the merits shall be determined upon issue or demurrer, as in suits between subject and subject. If the Attorney General confesses the suggestion there is no occasion for a commission, his admission of the truth of the facts being equally conclusive as if they had been found by a jury. See 3 Blackstone's Commentaries 256. and 4 Com. Dig. 458, and the authorities there cited. Though the above-mentioned indorsement be the usual one, Lord Somers, in the course of his voluminous search, discovered a variety of other answers to what he considered were unquestionable petitions of right, in respect to which he observes: "The truth is, the manner of answering petitions to the person of the King was very various, which variety did sometimes arise from the conclusion of the party's petition, sometimes from the nature of the thing, and sometimes from favour to the person; and according as the indorsement was, the party was sent into Chancery or the other courts. If the indorsement was general, soit droit fait al partie, it must be delivered to the Chancellor of England, and then a commission was to go to find the right of the party, and that being found, so that there was a record so rhim, thus warranted, he is let in to interplead with the King; but if the indorsement was special, then the proceeding was to be according to the indorsement in any other Court. This is fully explained by Stamford (Staundfort) in his treatise of the Prerog. c. 22. The case Mich. 10 H. 4.4.no. 8. is full as to this matter. The King recovers in a quare impedit by default against one who was never summoned; the party cannot have a writ of deceit without a petition. If then, says the book, he concludes his petition generally ' que le Roy lui face droit ' (that the King will cause right to be done) and the answer be general, it must go into the Chancery that the right may inquired of by commission; and, upon the inquest found, an original writ must be directed to the Justices to examine the deceit; otherwise, the Justices, before whom the suit was, cannot meddle. But if he conclude his petition especially that it may please his Highness to command his Justices to proceed to the examination, and the indorsement be accordingly that had given the Justices a jurisdiction. They might in such case have proceeded upon the petition without any commission, or any writ to be sued out; the petition and answer indorsed giving a sufficient jurisdiction to the Court to which it was directed. And as the book I have mentioned proves this, so many other authorities may be cited." He accordingly mentions many other instances, immaterial to be recited here, particularly remarking a very extraordinary difference in the case belonging to the revenue, in regard to which he said, he thought there was not an instance to be found where petitions were answered, soit droit fait aux parties (let right be done Page 2 U. S. 444 to the parties). The usual reference appears to have been to the Treasurer and Barons, commanding them to do justice. Sometimes a writ under the great seal was directed to be issued to them for that purpose. Sometimes a writ from the Chancery directing payment of money immediately, without taking notice of the Barons. And other varieties appear to have taken place. See Hargrave's Case of the Bankers, p. 73, & seq. But in all cases of petition of right, of whatever nature is the demand, I think it is clear beyond all doubt that there must be some indorsement or order of the King himself to warrant any further proceedings. The remedy, in the language of Blackstone, being a matter of grace, and not on compulsion. In a very late case in England, this point was incidentally discussed. The case I refer to is the case of Macbeath against Haldimand, reported first Durnford & East 172. The action was against the defendant, for goods furnished by the defendant's order in Canada, when the defendant was Governor of Quebec. The defence was that the plaintiff was employed by the defendant in his official capacity, and not upon his personal credit, and that the goods being therefore furnished for the use of Government, and the defendant not having undertaken personally to pay, he was not liable. This defence was set up at the trial on the plea of the general issue, and the jury, by judge Buller's direction, found a verdict for the defendant. Upon a motion for a new trial, he reported particularly all the facts given in evidence, and said his opinion had been at the trial that the plaintiff should be nonsuited; "but the plaintiff's counsel appearing for their client, when he was called, he left the question to the jury, telling them that they were bound to find for the defendant in point of law. And upon their asking him whether, in the event of the defendant not being liable, any other person was, he told them that was no part of their consideration, but being willing to give them any information, he added that he was of opinion that if the plaintiff's demands were just, his proper remedy was by a petition of right to the Crown. On which they found a verdict for the defendant. The rule for granting a new trial was moved for, on the misdirection of two points. 1st. That the defendant had by his own conduct made himself liable, which question should have been left to the jury. 2ndly. That the plaintiff had no remedy against the Crown by a petition of right, on the supposition of which the jury had been induced to give their verdict. . . . Lord Mansfield, Chief Justice, now declared that the Court did not feel it necessary for them to give any opinion on the second ground. His Lordship said that great difference had arisen since the revolution with respect to the expenditure of the public money. Before that period, all the public supplies were given to the King, who in Page 2 U. S. 445 his individual capacity contracted for all expenses. He alone had the disposition of the public money. But since that time, the supplies had been appropriated by Parliament to particular purposes, and now, whoever advances money for the public service trusts to the faith of Parliament. That, according to the tenor of Lord Somers' argument in the Bankers Case, though a petition of right would lie, yet it would probably produce no effect. No benefit was ever derived from it in the Bankers Case, and Parliament was afterwards obliged to provide a particular fund for the payment of those debts. Whether, however, this alteration in the mode of distributing the supplies had made any difference in the law upon this subject it was unnecessary to determine; at any rate, if there were a recovery against the Crown, application must be made to Parliament, and it would come under the head of supplies for the year." The motion was afterwards argued on the other ground (with which I have at present nothing to do) and rejected. In the old authorities, there does not appear any distinction between debts that might be contracted personally by the King for his own private use and such as he contracted in his political capacity for the service of the kingdom. As he had however then fixed and independent revenues, upon which depended the ordinary support of Government as well as the expenditure for his own private occasions, probably no material distinction at that time existed, or could easily be made. A very important distinction may however perhaps now subsist between the two cases, for the reasons intimated by Lord Mansfield; since the whole support of Government depends now on Parliamentary provisions, and, except in the case of the civil list, those for the most part annual. Thus, it appears that, in England, even in case of a private debt contracted by the King in his own person, there is no remedy but by petition, which must receive his express sanction; otherwise there can be no proceeding upon it. If the debt contracted be avowedly for the public uses of Government, it is at least doubtful whether that remedy will lie; and if it will, it remains afterwards in the power of Parliament to provide for it or not among the current supplies of the year. Now let us consider the case of a debt due from a State. None can, I apprehend, be directly claimed but in the following instances. 1st. In case of a contract with the legislature itself. 2nd. In case of a contract with the Executive, or any other person, in consequence of an express authority from the legislature. 3rd. In case of a contract with the Executive without any special authority. In the first and second cases, the contract is evidently made on the public faith alone. Every man must know that no suit can lie against a legislative body. His only Page 2 U. S. 446 dependence therefore can be that the legislature, on principles of public duty, will make a provision for the execution of their own contracts, and if that fails, whatever reproach the legislature may incur, the case is certainly without remedy in any of the courts of the State. It never was pretended, even in the case of the Crown in England, that if any contract was made with Parliament, or with the Crown by virtue of an authority from Parliament, that a Petition to the Crown would in such case lie. In the third case, a contract with the Governor of a State without any special authority. This case is entirely different from such a contract made with the Crown in England. The Crown there has very high prerogatives, in many instances is a kind of trustee for the public interest, in all cases represents the sovereignty of the Kingdom, and is the only authority which can sue or be sued in any manner on behalf of the Kingdom in any Court of Justice. A Governor of a State is a mere Executive officer, his general authority very narrowly limited by the Constitution of the State, with no undefined or disputable prerogatives; without power to effect one shilling of the public money, but as he is authorised under the Constitution, or by a particular law; having no colour to represent the sovereignty of the State, so as to bind it in any manner to its prejudice, unless specially authorised thereto. And therefore all who contract with him do it at their own peril, and are bound to see (or take the consequence of their own indiscretion) that he has strict authority for any contract he makes. Of course, such contract, when so authorised, will come within the description I mentioned of cases where public faith alone is the ground of relief, and the legislative body the only one that can afford a remedy, which, from the very nature of it, must be the effect of its discretion, and not of any compulsory process. If however any such cases were similar to those which would entitle a party to relief by petition to the King in England, that petition being only presentable to him, as he is the sovereign of the Kingdom, so far as analogy is to take place, such petition in a State could only be presented to the sovereign power, which surely the Governor is not. The only constituted authority to which such an application could with any propriety be made must undoubtedly be the legislature, whose express consent, upon the principle of analogy, would be necessary to any further proceeding. So that this brings us (though by a different route) to the same goal -- the discretion and good faith of the legislative body. There is no other part of the common law, besides that which I have considered, which can by any person be pretended in any manner to apply to this case but that which concerns corporations. The applicability of this, the Attorney General, with great candour, has expressly waved. But as it may be Page 2 U. S. 447 urged on other occasions, and as I wish to give the fullest satisfaction, I will say a few words to that doctrine. Suppose, therefore ,it should be objected that the reasoning I have now used is not conclusive because, inasmuch as a State is made subject to the judicial power of Congress, its sovereignty must not stand in the way of the proper exercise of that power, and therefore in all such cases (though in no other) a State can only be considered as a subordinate corporation merely. I answer, 1st. That this construction can only be allowed, at the utmost, upon the supposition that the judicial authority of the United States, as it respects States, cannot be effectuated without proceeding against them in that light -- a position I by no means admit. 2nd. That, according to the principles I have supported in this argument, admitting that States ought to be so considered for that purpose, an act of the legislature is necessary to give effect to such a construction, unless the old doctrine concerning corporations will naturally apply to this particular case. 3rd. That, as it is evident the act of Congress has not made any special provision in this case, grounded on any such construction, so it is to my mind perfectly clear that we have no authority, upon any supposed analogy between the two cases, to apply the common doctrine concerning corporations, to the important case now before the Court. I take it for granted that when any part of an ancient law is to be applied to a new case, the circumstances of the new case must agree in all essential points with the circumstances of the old cases to which that ancient law was formerly appropriated. Now there are, in my opinion, the most essential differences between the old cases of corporations to which the law intimated has reference, and the great and extraordinary case of States separately possessing, as to everything simply relating to themselves, the fullest powers of sovereignty, and yet in some other defined particulars subject to a superior power composed out of themselves for the common welfare of the whole. The only law concerning corporations to which I conceive the least reference is to be had is the common law of England on that subject. I need not repeat the observations I made in respect to the operation of that law in this country. The word "corporations," in its largest sense, has a more extensive meaning than people generally are aware of. Any body politic (sole or aggregate), whether its power be restricted or transcendant, is in this sense "a corporation." The King, accordingly, in England is called a corporation. 10 Co. 29b. So also, by a very respectable author (Sheppard, in his abridgement, 1 Vol. 431) is the Parliament itself. In this extensive sense, not only each State singly, but even the United States may without impropriety be termed "corporations." I have therefore, in contradistinction to this large and indefinite Page 2 U. S. 448 term, used the term "subordinate corporations," meaning to refer to such only (as alone capable of the slightest application, for the purpose of the objection) whose creation and whose powers are limited by law. The differences between such corporations and the several States in the Union, as relative to the general Government, are very obvious in the following particulars. 1st. A corporation is a mere creature of the King, or of Parliament; very rarely of the latter, most usually of the former only. It owes its existence, its name, and its laws, (except such laws as are necessarily incident to all corporations merely as such) to the authority which create it. A State does not owe its origin to the Government of the United States, in the highest or in any of its branches. It was in existence before it. It derives its authority from the same pure and sacred source as itself: the voluntary and deliberate choice of the people. 2nd. A corporation can do no act but what is subject to the revision either of a court of justice or of some other authority within the Government. A State is altogether exempt from the jurisdiction of the Courts of the United States, or from any other exterior authority, unless in the special instances where the general Government has power derived from the Constitution itself. 3rd. A corporation is altogether dependant on that Government to which it owes its existence. Its charter may be forfeited by abuse. Its authority may be annihilated, without abuse, by an act of the legislative body. A State, though subject in certain specified particulars to the authority of the Government of the United States, is in every other respect totally independent upon it. The people of the State created, the people of the State can only change, its Constitution. Upon this power there is no other limitation but that imposed by the Constitution of the United States: that it must be of the Republican form. I omit minuter distinctions. These are so palpable that I never can admit that a system of law calculated for one of these cases is to be applied, as a matter of course, to the other, without admitting (as I conceive) that the distinct boundaries of law and legislation may be confounded in a manner that would make Courts arbitrary, and in effect makers of a new law, instead of being (as certainly they alone ought to be) expositors of an existing one. If still it should be insisted that. though a State cannot be considered upon the same footing as the municipal corporations I have been considering, yet, as relative to the powers of the General Government, it must be deemed in some measure dependent; admitting that to be the case (which to be sure is, so far as the necessary execution of the powers of the General Government extends), yet in whatever character this may place a State, this can only afford a reason for a new law, Page 2 U. S. 449 calculated to effectuate the powers of the General Government in this new case. But it affords no reason whatever for the Court's admitting a new action to fit a case to which no old ones apply, when the application of law, not the making of it, is the sole province of the Court. I have now, I think, established the following particulars. 1st. That the Constitution, so far as it respects the judicial authority, can only be carried into effect by acts of the legislature appointing courts and prescribing their methods of proceeding. 2nd. That Congress has provided no new law in regard to this case, but expressly referred us to the old. 3rd. That there are no principles of the old law, to which, we must have recourse that in any manner authorise the present suit, either by precedent or by analogy. The consequence of which, in my opinion, clearly is that the suit in question cannot be maintained, nor, of course, the motion made upon it be complied with. From the manner in which I have viewed this subject, so different from that in which it has been contemplated by the Attorney General, it is evident that I have not had occasion to notice many arguments offered by the Attorney General which certainly were very proper, as to his extended view of the case, but do not affect mine. No part of the Law of Nations can apply to this case, as I apprehend, but that part which is termed "The Conventional Law of Nations;" nor can this any otherwise apply than as furnishing rules of interpretation, since unquestionably the people of the United States had a right to form what kind of Union, and upon what terms they pleased, without reference to any former examples. If, upon a fair construction of the Constitution of the United States, the power contended for really exists, it undoubtedly may be exercised, though it be a power of the first impression. If it does not exist, upon that authority, ten thousand examples of similar powers would not warrant its assumption. So far as this great question affects the Constitution itself, if the present afforded, consistently with the particular grounds of my opinion, a proper occasion for a decision upon it, I would not shrink from its discussion. But it is of extreme moment that no judge should rashly commit himself upon important questions which it is unnecessary for him to decide. My opinion being that, even if the Constitution would admit of the exercise of such a power, a new law is necessary for the purpose, since no part of the existing law applies, this alone is sufficient to justify my determination in the present case. So much, however, has been said on the Constitution that it may not be improper to intimate that my present opinion is strongly against any construction of it which will admit, under any circumstances, a compulsive suit against a State for the recovery of money. I Page 2 U. S. 450 think every word in the Constitution may have its full effect without involving this consequence, and that nothing but express words, or an insurmountable implication (neither of which I consider, can be found in this case) would authorise the deduction of so high a power. This opinion I hold, however, with all the reserve proper for one which, according to my sentiments in this case, may be deemed in some measure extrajudicial. With regard to the policy of maintaining such suits, that is not for this Court to consider, unless the point in all other respects was very doubtful. Policy might then be argued from with a view to preponderate the judgment. Upon the question before us, I have no doubt. I have therefore nothing to do with the policy. But I confess, if I was at liberty to speak on that subject, my opinion on the policy of the case would also differ from that of the Attorney General. It is, however, a delicate topic. I pray to God that, if the Attorney General's doctrine as to the law be established by the judgment of this Court, all the good he predicts from it may take place, and none of the evils with which, I have the concern to say, it appears to me to be pregnant. Blair, Justice. In considering this important case, I have thought it best to pass over all the strictures which have been made on the various European confederations, because, as, on the one hand, their likeness to our own is not sufficiently close to justify any analogical application, so, on the other, they are utterly destitute of any binding authority here. The Constitution of the United States is the only fountain from which I shall draw; the only authority to which I shall appeal. Whatever be the true language of that, it is obligatory upon every member of the Union, for no State could have become a member but by an adoption of it by the people of that State. What then do we find there requiring the submission of individual States to the judicial authority of the United States? This is expressly extended, among other things, to controversies between a State and citizens of another State. Is, then, the case before us one of that description? Undoubtedly it is, unless it may be a sufficient denial to say that it is a controversy between a citizen of one State and another State. Can this change of order be an essential change in the thing intended? And is this alone a sufficient ground from which to conclude that the jurisdiction of this Court reaches the case where a State is plaintiff, but not where it is defendant? In this latter case, should any man be asked whether it was not a controversy between a State and citizen of another State, must not the answer be in the affirmative? A dispute between A. and B. as surely a dispute between B. and A. Both cases, I have no doubt, were intended; and probably the State was first named, Page 2 U. S. 451 in respect to the dignity of a State. But that very dignity seems to have been thought a sufficient reason for confining the sense to the case where a State is plaintiff. It is, however, a sufficient answer to say that our Constitution most certainly contemplates, in another branch of the cases enumerated, the maintaining a jurisdiction against a State, as defendant; this is unequivocally asserted when the judicial power of the United States is extended to controversies between two or more States; for there, a State must, of necessity, be a defendant. It is extended also to controversies between a State and foreign states; and if the argument taken from the order of designation were good, it would be meant here that this Court might have cognizance of a suit where a State is plaintiff, and some foreign state a defendant, but not where a foreign state brings a suit against a State. This, however, not to mention that the instances may rarely occur when a State may have an opportunity of suing in the American Courts a foreign state, seems to lose sight of the policy which, no doubt, suggested this provision, viz., that no State in the Union should, by withholding justice, have it in its power to embroil the whole Confederacy in disputes of another nature. But if a foreign state, though last named, may, nevertheless, be a plaintiff against an individual State, how can it be said that a controversy between a State and a citizen of another State means, from the mere force of the order of the words, only such cases where a State is plaintiff? After describing, generally, the judicial powers of the United States, the Constitution goes on to speak of it distributively, and gives to the Supreme Court original jurisdiction, among other instances, in the case where a State shall be a party; but is not a State a party as well brk: in the condition of a defendant as in that of a plaintiff? And is the whole force of that expression satisfied by confining its meaning to the case of a plaintiff State? It seems to me that if this Court should refuse to hold jurisdiction of a case where a State is defendant, it would renounce part of the authority conferred, and, consequently, part of the duty imposed on it by the Constitution, because it would be a refusal to take cognizance of a case where a State is a party. Nor does the jurisdiction of this Court, in relation to a State, seem to me to be questionable on the ground that Congress has not provided any form of execution, or pointed out any mode of making the judgment against a State effectual; the argument ab in utili may weigh much in cases depending upon the construction of doubtful legislative acts, but can have no force, I think, against the clear and positive directions of an act of Congress and of the Constitution. Let us go on as far as we can; and if, at the end of the business, notwithstanding the powers given us in the 14th section Page 2 U. S. 452 of the Judicial Law, we meet difficulties insurmountable to us, we must leave it to those departments of Government which have higher powers, to which, however, there may be no necessity to have recourse: is it altogether a vain expectation that a State may have other motives than such as arise from the apprehension of coercion, to carry into execution a judgment of the Supreme Court of the United States, though not conformable to their own ideas of justice? Besides, this argument takes it for granted that the judgment of the Court will be against the State; it possibly may be in favor of the State; and the difficulty vanishes. Should judgment be given against the plaintiff, could it be said to be void because extrajudicial? If the plaintiff, grounding himself upon that notion, should renew his suit against the State in any mode in which she may permit herself to be sued in her own Courts, would the Attorney General for the State be obliged to go again into the merits of the case because the matter, when here, was coram non judice? Might he not rely upon the judgment given by this Court in bar of the new suit? To me, it seems clear that he might. And if a State may be brought before this Court as a defendant, I see no reason for confining the plaintiff to proceed by way of petition; indeed, there would even seem to be an impropriety in proceeding in that mode. When sovereigns are sued in their own Courts, such a method may have been established as the most respectful form of demand; but we are not now in a State court, and if sovereignty be an exemption from suit in any other than the sovereign's own courts, it follows that when a State, by adopting the Constitution, has agreed to be amenable to the judicial power of the United States, she has, in that respect, given up her right of sovereignty. With respect to the service of the summons to appear, the manner in which it has been served seems to be as proper as any which could be devised for the purpose of giving notice of the suit, which is the end proposed by it, the Governor being the head of the Executive Department and the Attorney General the law officer who generally represents the State in legal proceedings. And this mode is the less liable to exception when it is considered that, in the suit brought in this Court by the State of Georgia against Brailsford * and others, it is conceived in the name of the Governor in behalf of the State. If the opinion which I have delivered respecting the liability of a State to be sued in this Court should be the opinion of the Court, it will come in course to consider what is the proper step to be taken for inducing appearance, none having been yet entered in behalf of the defendant. A judgment by default, in the present stage of the business, and writ of enquiry of damages, would Page 2 U. S. 453 be too precipitate in any case, and too incompatible with the dignity of a State in this. Farther opportunity of appearing to defend the suit ought to be given. The conditional order moved for the last term, the consideration of which was deferred to this, seems to me to be a very proper mode; it will warn the State of the meditated consequence of a refusal to appear, and give an opportunity for more deliberate consideration. The order, I think, should be thus: "Ordered that unless the State of Georgia should, after due notice of this order, by a service thereof upon the Governor and Attorney General of the said State, cause an appearance to be entered in behalf of the State, on the 5th day of the next Term, or then shew cause to the contrary, judgment be then entered up against the State, and a writ of enquiry of damages be awarded." * Som, Sup. c. 3. Wilson, Justice. This is a case of uncommon magnitude. One of the parties to it is a State -- certainly respectable, claiming to be sovereign. The question to be determined is whether this State, so respectable, and whose claim soars so high, is amenable to the jurisdiction of the Supreme Court of the United States? This question, important in itself, will depend on others more important still, and, may, perhaps, be ultimately resolved into one no less radical than this: "do the people of the United States form a Nation?" A cause so conspicuous and interesting should be carefully and accurately viewed from every possible point of sight. I shall examine it 1st. By the principles of general jurisprudence. 2nd. By the laws and practice of particular States and Kingdoms. From the law of nations, little or no illustration of this subject can be expected. By that law, the several States and Governments spread over our globe are considered as forming a society, not a NATION. It has only been by a very few comprehensive minds, such as those of Elizabeth and the Fourth Henry, that this last great idea has been even contemplated. 3rdly. and chiefly, I shall examine the important question before us by the Constitution of the United States, and the legitimate result of that valuable instrument. 1. I am, first, to examine this question by the principles of general jurisprudence. What I shall say upon this head I introduce by the observation of an original and profound writer who, in the philosophy of mind and all the sciences attendant on this prime one, has formed an era not less remarkable, and far more illustrious, than that formed by the justly celebrated Bacon in another science, not prosecuted with less ability, but less dignified as to its object; I mean the philosophy of matter. Dr. Reid, in his excellent enquiry into the human mind, on the principles of common sense, speaking of the sceptical and illiberal Page 2 U. S. 454 philosophy, which under bold but false pretentions to liberality, prevailed in many parts of Europe before he wrote, makes the following judicious remark: "The language of philosophers with regard to the original faculties of the mind is so adapted to the prevailing system that it cannot fit any other; like a coat that fits the man for whom it was made, and shews him to advantage, which yet will fit very aukward upon one of a different make, although as handsome and well proportioned. It is hardly possible to make any innovation in our philosophy concerning the mind and its operations without using new words and phrases, or giving a different meaning to those that are received." With equal propriety may this solid remark be applied to the great subject on the principles of which the decision of this Court is to be founded. The perverted use of genus and species in logic, and of impressions and ideas in metaphysics, have never done mischief so extensive or so practically pernicious as has been done by States and sovereigns in politics and jurisprudence -- in the politics and jurisprudence even of those who wished and meant to be free. In the place of those expressions, I intend not to substitute new ones; but the expressions themselves I shall certainly use for purposes different from those for which hitherto they have been frequently used; and one of them I shall apply to an object still more different from that to which it has hitherto been more frequently -- I may say almost universally -- applied. In these purposes, and in this application, I shall be justified by example the most splendid, and by authority the most binding; the example of the most refined as well as the most free nation known to antiquity; and the authority of one of the best Constitutions known to modern times. With regard to one of the terms, "state," this authority is declared; with regard to the other, "sovereign," the authority is implied only. But it is equally strong. For, in an instrument well drawn, as in a poem well composed, mence is sometimes most expressive. To the Constitution of the United States, the term SOVEREIGN, is totally unknown. There is but one place where it could have been used with propriety. But even in that place, it would not, perhaps, have comported with the delicacy of those who ordained and established that Constitution. They might have announced themselves "SOVEREIGN" people of the United States. But serenely conscious of the fact, they avoided the ostentatious declaration. Having thus avowed my disapprobation of the purposes for which the terms, state and sovereign are frequently used, and of the object to which the application of the last of them is almost universally made, it is now proper that I should disclose the meaning which I assign to both, and the application, Page 2 U. S. 455 which I make of the latter. In doing this, I shall have occasion incidently to evince how true it is that states and governments were made for man, and, at the same time, how true it is that his creatures and servants have first deceived, next vilified, and, at last, oppressed their master and maker. Man, fearfully and wonderfully made, is the workmanship of his all perfect Creator. A state, useful and valuable as the contrivance is, is the inferior contrivance of man, and from his native dignity derives all its acquired importance. When I speak of a state as an inferior contrivance, I mean that it is a contrivance inferior only to that which is divine. Of all human contrivances, it is certainly most transcendantly excellent. It is concerning this contrivance that Cicero says so sublimely, "Nothing, which is exhibited upon our globe is more acceptable to that divinity which governs the whole universe than those communities and assemblages of men which, lawfully associated, are denominated states. [ Footnote 1 ]" Let a state be considered as subordinate to the people. But let everything else be subordinate to the state. The latter part of this position is equally necessary with the former. For in the practice, and even at length, in the science of politics, there has very frequently been a strong current against the natural order of things, and an inconsiderate or an interested disposition to sacrifice the end to the means. As the state has claimed precedence of the people, so, in the same inverted course of things, the government has often claimed precedence of the state, and to this perversion in the second degree, many of the volumes of confusion concerning sovereignty owe their existence. The ministers, dignified very properly by the appellation of the magistrates, have wished, and have succeeded in their wish, to be considered as the sovereigns of the state. This second degree of perversion is confined to the old world, and begins to diminish even there; but the first degree is still too prevalent, even in the several States of which our union is composed. By a "state," I mean a complete body of free persons united together for their common benefit to enjoy peaceably what is their own and to do justice to others. It is an artificial person. It has its affairs and its interests; it has its rules; it has its rights; and it has its obligations. It may acquire property distinct from that of its members. It may incur debts to be discharged out of the public stock, not out of the private fortunes of individuals. It may be bound by contracts, and for damages arising from the breach of those contracts. In all our contemplations, however, concerning this Page 2 U. S. 456 feigned and artificial person, we should never forget that, in truth and nature, those who think and speak and act are men. Is the foregoing description of a state a true description? It will not be questioned but it is. Is there any part of this description, which intimates in the remotest manner that a state, any more than the men who compose it, ought not to do justice and fulfil engagements? It will not be pretended that there is. If justice is not done; if engagements are not fulfilled, is it, upon general principles of right, less proper in the case of a great number than in the case of an individual to secure by compulsion that which will not be voluntarily performed? Less proper it surely cannot be. The only reason, I believe, why a free man is bound by human laws is that he binds himself. Upon the same principles upon which he becomes bound by the laws, he becomes amenable to the courts of justice which are formed and authorised by those laws. If one free man, an original sovereign, may do all this, why may not an aggregate of free men, a collection of original sovereigns, do this likewise? If the dignity of each singly is undiminished, the dignity of all jointly must be unimpaired. A state, like a merchant, makes a contract. A dishonest state, like a dishonest merchant, wilfully refuses to discharge it. The latter is amenable to a court of justice. Upon general principles of right, shall the former, when summoned to answer the fair demands of its creditor, be permitted, Proteus-like, to assume a new appearance, and to insult him and justice by declaring "I am a Sovereign state?" Surely not. Before a claim so contrary, in its first appearance to the general principles of right and equality be sustained by a just and impartial tribunal, the person, natural or artificial, entitled to make such claim should certainly be well known and authenticated. Who, or what, is a sovereignty? What is his or its sovereignty? On this subject, the errors and the mazes are endless and inexplicable. To enumerate all therefore will not be expected. To take notice of some will be necessary to the full illustration of the present important cause. In one sense, the term "sovereign" has for its correlative "subject." In this sense, the term can receive no application, for it has no object in the Constitution of the United states. Under that Constitution, there are citizens, but no subjects. "Citizen of the United states." [ Footnote 2 ] "Citizens of another state." "Citizens of different states." "A state or citizen thereof." [ Footnote 3 ] The term, subject,occurs, indeed, once in the instrument; but to mark the contrast strongly, the epithet "foreign" [ Footnote 4 ] is prefixed. In this sense, I presume the state of Georgia has no claim upon Page 2 U. S. 457 her own citizens. In this sense, I am certain, she can have no claim upon the citizens of another state. In another sense, according to some writers, [ Footnote 5 ] every state, which governs itself without any dependence on another power is a sovereign state. Whether, with regard to her own citizens, this is the case of the state of Georgia; whether those citizens have done, as the individuals of England are said by their late instructors to have done, surrendered the supreme power to the state or government, and reserved nothing to themselves; or whether, like the people of other states, and of the United states, the citizens of Georgia have reserved the supreme power in their own hands, and on that supreme power have made the state dependent, instead of being sovereign -- these are questions to which, as a judge in this cause, I can neither know nor suggest the proper answers, though, as a citizen of the Union, I know, and am interested to know that the most satisfactory answers can be given. As a citizen, I know the government of that state to be republican; and my short definition of such a government is one constructed on this principle -- that the supreme power resides in the body of the people. As a judge of this court, I know, and can decide upon the knowledge that the citizens of Georgia, when they acted upon the large scale of the Union, as a part of the "People of the United states," did not surrender the supreme or sovereign power to that state, but, as to the purposes of the Union, retained it to themselves. As to the purposes of the Union, therefore, Georgia is NOT a sovereign state. If the judicial decision of this case forms one of those purposes, the allegation that Georgia is a sovereign state is unsupported by the fact. Whether the judicial decision of this cause is or is not one of those purposes is a question which will be examined particularly in a subsequent part of my argument. There is a third sense, in which the term "sovereign" is frequently used, and which it is very material to trace and explain, as it furnishes a basis for what I presume to be one of the principal objections against the jurisdiction of this court over the State of Georgia. In this sense, sovereignty is derived from a feudal source, and, like many other parts of that system so degrading to man, still retains its influence over our sentiments and conduct, though the cause by which that influence was produced never extended to the American states. The accurate and well informed President Henault, in his excellent chronological abridgment of the History of France, tells us that, about the end of the second race of Kings, a new kind of possession was acquired, under the name of Fief. The governors of cities and provinces usurped equally the property of land, Page 2 U. S. 458 and the administration of justice; and established themselves as proprietary seigniors over those places, in which they had been only civil magistrates or military officers. By this means, there was introduced into the state a new kind of authority, to which was assigned the appellation of sovereignty. In process of time, the feudal system was extended over France and almost all the other nations of Europe. And every kingdom became, in fact, a large fief. Into England this system was introduced by the conqueror, and to this era we may, probably, refer the English maxim that the King or sovereign is the fountain of justice. But, in the case of the King, the sovereignty had a double operation. While it vested him with jurisdiction over others, it excluded all others from jurisdiction over him. With regard to him, there was no superior power, and consequently, on feudal principles, no right of jurisdiction. "The law, says Sir William Blackstone, [ Footnote 6 ] ascribes to the King the attribute of sovereignty; he is sovereign and independent within his own dominions, and owes no kind of objection to any other potentate upon earth. Hence it is that no suit or action can be brought against the King, even in civil matters, because no court can have jurisdiction over him, for all jurisdiction implies superiority of power." This last position is only a branch of a much more extensive principle, on which a plan of systematic despotism has been lately formed in England, and prosecuted with unwearied assiduity and care. Of this plan, the author of the Commentaries was, if not the introducer, at least the great supporter. He has been followed in it by writers later and less known, and his doctrines have, both on the other and this side of the Atlantic, been implicitly and generally received by those who neither examined their principles nor their consequences. The principle is that all human law must be prescribed by a superior. This principle I mean not now to examine. Suffice it at present to say that another principle, very different in its nature and operations, forms, in my judgment, the basis of sound and genuine jurisprudence; laws derived from the pure source of equality and justice must be founded on the CONSENT of those whose obedience they require. The sovereign, when traced to his source, must be found in the man. I have now fixed, in the scale of things, the grade of a state; and have described its composure. I have considered the nature of sovereignty, and pointed its application to the proper object. I have examined the question before us by the principles of general jurisprudence. In those principles, I find nothing which tends to evince an exemption of the state of Georgia from the jurisdiction of the court. I find everything to have a contrary tendency. Page 2 U. S. 459 II. I am, in the second place, to examine this question by the laws and practice of different states and Kingdoms. In ancient Greece, as we learn from Isocrates, whole nations defended their rights before crowded tribunals. Such occasions as these excited, we are told, all the powers of persuasion, and the vehemence and enthusiasm of the sentiment was gradually infused into the Grecian language, equally susceptible of strength and harmony. In those days, law, liberty, and refining science made their benign progress in strict and graceful union. The rude and degrading league between the bar and feudal barbarism was not yet formed. When the laws and practice of particular states have any application to the question before us, that application will furnish what is called an argument a fortiori, because all the instances produced will be instances of subjects instituting and supporting suits against those who were deemed their own sovereigns. These instances are stronger than the present one, because between the present plaintiff and defendant no such unequal relation is alleged to exist. Columbus achieved the discovery of that country which, perhaps ought to bear his name. A contract made by Columbus furnished the first precedent for supporting, in his discovered country, the cause of injured merit against the claims and pretentions of haughty and ungrateful power. His son Don Diego wasted two years in incessant but fruitless solicitation at the Court of Spain for the rights which descended to him in consequence of his father's original capitulation. He endeavoured, at length, to obtain by a legal sentence what he could not procure from the favour of an interested monarch. He commenced a suit against Ferdinand before the council which managed Indian affairs, and that court, with integrity which reflects honour on their proceedings, decided against the King, and sustained Don Diego's claim. [ Footnote 7 ] Other states have instituted officers to judge the proceedings of their Kings. Of this kind were the Ephori of Sparta; of this kind also was the mayor of the Palace, and afterwards the constable of France. [ Footnote 8 ] But of all the laws and institutions relating to the present question, none is so striking as that described by the famous Hottoman, in his book entitled Francogallia. When the Spaniards of Arragon elect a King, they represent a kind of play, and introduce a personage whom they dignify by the name of LAW, la Jusliza, of Arragon. This personage they declare by a public decree to be greater and more powerful than their King, and then address him in the following remarkable expressions. "We, who are of as great worth as you, and can do more Page 2 U. S. 460 than you can do, elect you to be our King upon the conditions stipulated. But between you and us, there is one of greater authority than you. [ Footnote 9 ]" In England, according to Sir William Blackstone, no suit can be brought against the King, even in civil matters. So, in that Kingdom, is the law, at this time, received. But it was not always so. Under the Saxon government, a very different doctrine was held to be orthodox. Under that government, as we are informed by the Mirror of Justice, a book said by Sir Edward Coke to have been written in part, at least, before the conquest; under that government, it was ordained that the King's court should be open to all plaintiffs, by which, without delay, they should have remedial writs, as well against the King or against the Queen as against any other of the people. [ Footnote 10 ] The law continued to be the same for some centuries after the conquest. Until the time of Edward I, the King might have been sued as a common person. The form of the process was even imperative. " Pracipe Henrico Regi Anglia, " etc. "Command Henry King of England" etc. [ Footnote 11 ] Bracton, who wrote in the time of Henry III, uses these very remarkable expressions concerning the King " in justitia recipienda, minimo de regno suo comparetur " -- "in receiving justice, he should be placed on a level with the meanest person in the Kingdom." [ Footnote 12 ] True it is that now, in England, the King must be sued in his courts by petition, but even now, the difference is only in the form, not in the thing. The judgments or decrees of those courts will substantially be the same upon a precatory as upon a mandatory process. In the courts of justice, says the very able author of the considerations on the laws of forfeiture, the King enjoys many privileges, yet not to deter the subject from contending with him freely. [ Footnote 13 ] The judge of the High court of Admiralty in England made, in a very late cause, the following manly and independent declaration. "In any case, where the Crown is a party, it is to be observed that the Crown can no more withhold evidence of documents in its possession, than a private person. If the court thinks proper to order the production of any public instrument, that order must be obeyed. It wants no Insignia of an authority derived from the Crown. [ Footnote 14 ]" "Judges ought to know that the poorest peasant is a man as well as the King himself; all men ought to obtain justice, since, in the estimation of justice, all men are equal, whether the Prince complain of a peasant, or a peasant complain of the Prince. [ Footnote 15 ]" These are the words of a King, of the late Frederic of Prussia. In his courts of justice, that great man stood Page 2 U. S. 461 his native greatness, and disdained to mount upon the artificial stilts of sovereignty. Thus much concerning the laws and practice of other states and Kingdoms. We see nothing against, but much in favour of, the jurisdiction of this court over the State of Georgia, a party to this cause. III. I am, thirdly, and chiefly, to examine the important question now before us by the Constitution of the United states, and the legitimate result of that valuable instrument. Under this view, the question is naturally subdivided into two others. 1. Could the Constitution of the United states vest a jurisdiction over the State of Georgia? 2. Has that Constitution vested such jurisdiction in this Court? I have already remarked that, in the practice, and even in the science, of politics, there has been frequently a strong current against the natural order of things, and an inconsiderate or an interested disposition to sacrifice the end to the means. This remark deserves a more particular illustration. Even in almost every nation which has been denominated free, the state has assumed a supercilious preeminence above the people who have formed it. Hence the haughty notions of state independence, state sovereignty and state supremacy. In despotic governments, the government has usurped, in a similar manner, both upon the state and the people. Hence all arbitrary doctrines and pretensions concerning the supreme, absolute, and incontrolable, power of government. In each, man is degraded from the prime rank which he ought to hold in human affairs. In the latter, the state as well as the man is degraded. Of both degradations, striking instances occur in history, in politics, and in common life. One of them is drawn from an anecdote which is recorded concerning Louis XIV, who has been stiled the grand Monarch of France. This Prince, who diffused around him so much dazzling splendour and so little vivifying heat, was vitiated by that inverted manner of teaching and of thinking, which forms Kings to be tyrants, without knowing or even suspecting that they are so. The oppression under which he held his subjects during the whole course of his long reign proceeded chiefly from the principles and habits of his erroneous education. By these, he had been accustomed to consider his kingdom as his patrimony, and his power over his subjects as his rightful and undelegated inheritance. These sentiments were so deeply and strongly imprinted on his mind that when one of his Ministers represented to him the miserable condition to which those subjects were reduced, and, in the course of his representation, frequently used the word L'Etat, the state, the King, though he felt the truth and approved the substance of all that was said, yet was shocked at the frequent repetition of the expression L'Etat, and Page 2 U. S. 462 complained of it is as an indecency offered to his person and character. And, indeed that Kings should brk: imagine themselves the final causes for which men were made and societies were formed and governments were instituted will cease to be a matter of wonder or surprise when we find that lawyers, and statesmen, and philosophers have taught or favoured principles, which necessarily lead to the same conclusion. Another instance, equally strong, but still more astonishing, is drawn from the British government, as described by Sir William Blackstone and his followers. As described by him and them, the British is a despotic government. It is a government without a people. In that government, as so described, the sovereignty is possessed by the Parliament. In the Parliament, therefore, the supreme and absolute authority is vested. [ Footnote 16 ] In the Parliament resides that incontrolable and despotic power which, in all governments, must reside somewhere. The constituent parts of the Parliament are the King's Majesty, the Lord's Spiritual, the Lord's Temporal, and the Commons. The King and these three Estates together form the great corporation or body politic of the Kingdom. All these sentiments are found; the last expressions are found verbatim [ Footnote 17 ] in the commentaries upon the laws of England. [ Footnote 18 ] The Parliament form the great body politic of England! What, then, or where, are the People? Nothing! Nowhere! They are not so much as even the "baseless fabric of a vision!" From legal contemplation they totally disappear! Am I not warranted in saying that, if this is a just description, a government, so and justly so described, is a despotic government? Whether this description is or is not a just one is question of very different import. In the United states, and in the several states, which compose the Union, we go not so far, but still we go one step farther than we ought to go in this unnatural and inverted order of things. The states, rather than the people, for whose sakes the states exist, are frequently the objects which attract and arrest our principal attention. This, I believe, has produced much of the confusion and perplexity which have appeared in several proceedings and several publications on state politics, and on the politics, too, of the United states. Sentiments and expressions of this inaccurate kind prevail in our common, even in our convivial, language. Is a toast asked? "The United states," instead of the "People of the United states," is the toast given. This is not politically correct. The toast is meant to present to view the first great object in the Union: it presents only the second. It presents only the artificial person, instead of the natural persons who spoke it into existence. A state I cheerfully fully Page 2 U. S. 463 admit, is the noblest work of Man. But, Man himself, free and honest, is, I speak as to this world, the noblest work of God. Concerning the prerogative of Kings, and concerning the sovereignty of states, much has been said and written; but little has been said and written concerning a subject much more dignified and important, the majesty of the people. The mode of expression, which I would substitute in the place of that generally used, is not only politically, but also (for between true liberty and true taste there is a close alliance) classically more correct. On the mention of Athens, a thousand refined and endearing associations rush at once into the memory of the scholar, the philosopher, and the patriot. When Homer, one of the most correct, as well as the oldest of human authorities, enumerates the other nations of Greece whose forces acted at the siege of Troy, he arranges them under the names of their different Kings or Princes. But when he comes to the Athenians, he distinguishes them by the peculiar appellation of the PEOPLE [ Footnote 19 ] of Athens. The well known address used by Demosthenes, when he harrangued and animated his assembled countrymen, was "O Men of Athens." With the strictest propriety, therefore, classical and political, our national scene opens with the most magnificent object which the nation could present. "The PEOPLE of the United states" are the first personages introduced. Who were those people? They were the citizens of thirteen states, each of which had a separate constitution and government, and all of which were connected together by Articles of Confederation. To the purposes of public strength and felicity, that Confederacy was totally inadequate. A requisition on the several states terminated its legislative authority. Executive or judicial authority it had none. In order therefore to form a more perfect union, to establish justice, to ensure domestic tranquillity, to provide for common defence, and to secure the blessings of liberty, those people, among whom were the people of Georgia, ordained and established the present Constitution. By that Constitution legislative power is vested, executive power is vested, judicial power is vested. The question now opens fairly to our view, could the people of those states, among whom were those of Georgia, bind those states, and Georgia among the others, by the legislative, executive, and judicial power so vested? If the principles on which I have founded myself are just and true, this question must unavoidably receive an affirmative answer. If those states were the work of those people, those people, and that I may apply the case closely, the people of Georgia, in particular, Page 2 U. S. 464 could alter as they pleased their former work. To any given degree, they could diminish as well as enlarge it. Any or all of the former state powers, they could extinguish or transfer. The inference which necessarily results is that the Constitution ordained and established by those people, and, still closely to apply the case, in particular by the people of Georgia, could vest jurisdiction or judicial power over those states and over the State of Georgia in particular. The next question under this head, is has the Constitution done so? Did those people mean to exercise this, their undoubted power? These questions may be resolved either by fair and conclusive deductions or by direct and explicit declarations. In order ultimately to discover whether the people of the United states intended to bind those states by the judicial power vested by the national Constitution, a previous enquiry will naturally be: did those people intend to bind those states by the legislative power vested by that Constitution? The Articles of Confederation, it is well known, did not operate upon individual citizens, but operated only upon states. This defect was remedied by the national Constitution, which, as all allow, has an operation on individual citizens. But if an opinion which some seem to entertain be just, the defect remedied on one side was balanced by a defect introduced on the other. For they seem to think that the present Constitution operates only on individual citizens, and not on states. This opinion, however, appears to be altogether unfounded. When certain laws of the states are declared to be "subject to the revision and controul of the Congress," [ Footnote 20 ] it cannot, surely, be contended that the legislative power of the national government was meant to have no operation on the several states. The fact, uncontrovertibly established in one instance, proves the principle in all other instances to which the facts will be found to apply. We may then infer that the people of the United states intended to bind the several states by the legislative power of the national government. In order to make the discovery at which we ultimately aim, a second previous enquiry will naturally be: did the people of the United states intend to bind the several states by the executive power of the national government? The affirmative answer to the former question directs, unavoidably, an affirmative answer to this. Ever since the time of Bracton, his maxim, I believe, has been deemed a good one: " supervacuum esset leges condere, nisi esset qui leges tueretur. " [ Footnote 21 ] "It would be superfluous to make laws unless those laws, when made, were to be enforced." When the laws are plain, and the application of them is uncontroverted, they are enforced immediately by the Page 2 U. S. 465 executive authority of government. When the application of them is doubtful or intricate, the interposition of the judicial authority becomes necessary. The same principle therefore which directed us from the first to the second step will direct us from the second to the third and last step of our deduction. Fair and conclusive deduction, then, evinces that the people of the United states did vest this court with jurisdiction over the State of Georgia. The same truth may be deduced from the declared objects and the general texture of the Constitution of the United states. One of its declared objects is to form an Union more perfect than, before that time, had been formed. Before that time, the Union possessed legislative, but uninforced legislative power over the states. Nothing could be more natural than to intend that this legislative power should be enforced by powers executive and judicial. Another declared object is, "to establish justice." This points, in a particular manner, to the judicial authority. And when we view this object in conjunction with the declaration, "that no state shall pass a law impairing the obligation of contracts," we shall probably think that this object points, in a particular manner, to the jurisdiction of the court over the several states. What good purpose could this constitutional provision secure if a state might pass a law impairing the obligation of its own contracts, and be amenable, for such a violation of right to no controuling judiciary power? We have seen that on the principles of general jurisprudence, a state, for the breach of a contract, may be liable for damages. A third declared object is "to ensure domestic tranquillity." This tranquillity is most likely to be disturbed by controversies between states. These consequences will be most peaceably and effectually decided by the establishment and by the exercise of a superintending judicial authority. By such exercise and establishment, the law of nations, the rule between contending states, will be enforced among the several states in the same manner as municipal law. Whoever considers, in a combined and comprehensive view, the general texture of the Constitution will be satisfied that the people of the United states intended to form themselves into a nation for national purposes. They instituted for such purposes a national government, complete in all its parts, with powers legislative, executive and judicial, and in all those powers extending over the whole nation. Is it congruous that, with regard to such purposes, any man or body of men, any person natural or artificial, should be permitted to claim successfully an entire exemption from the jurisdiction of the national government? Would not such claims, crowned with success, be repugnant to our very existence as a nation? When Page 2 U. S. 466 so many trains of deduction, coming from different quarters, converge and unite at last in the same point, we may safely conclude, as the legitimate result of this Constitution, that the State of Georgia is amenable to the jurisdiction of this court. But, in my opinion, this doctrine rests not upon the legitimate result of fair and conclusive deduction from the Constitution. It is confirmed beyond all doubt by the direct and explicit declaration of the Constitution itself. "The judicial power of the United states shall extend, to controversies between two states." [ Footnote 22 ] Two states are supposed to have a controversy between them. This controversy is supposed to be brought before those vested with the judicial power of the United states. Can the most consummate degree of professional ingenuity devise a mode by which this "controversy between two states" can be brought before a court of law, and yet neither of those states be a defendant? "The judicial power of the United states shall extend to controversies between a state and citizens of another state." Could the strictest legal language, could even that language which is peculiarly appropriated to an art deemed by a great master to be one of the most honorable, laudable, and profitable things in our law; could this strict and appropriated language describe with more precise accuracy the cause now depending before the tribunal? Causes, and not parties to causes, are weighed by justice in her equal scales. On the former solely her attention is fixed. To the latter she is, as she is painted, blind. I have now tried this question by all the touchstones to which I proposed to apply it. I have examined it by the principles of general jurisprudence; by the laws and practice of states and Kingdoms; and by the Constitution of the United states. From all, the combined inference is that the action lies. [ Footnote 1 ] Art. 1. &. 2. [ Footnote 2 ] Art. 3. s. 3. [ Footnote 3 ] Art. 3. s. 3. [ Footnote 4 ] Vatt. B. 1. c. s. 4. [ Footnote 5 ] 113. [ Footnote 6 ] 1 Com. 241, 242. [ Footnote 7 ] Sid. 131. [ Footnote 8 ] Hol. 71. Book 31. [ Footnote 9 ] Hol. 71. Book 31. [ Footnote 10 ] 4 C.A.N. 487. [ Footnote 11 ] Com. 104. [ Footnote 12 ] Brac. 107. Com. 104. [ Footnote 13 ] G.F. 124. [ Footnote 14 ] Col.Jur. 68. [ Footnote 15 ] War, 343. [ Footnote 16 ] 46-52. 147. 160-162. [ Footnote 17 ] 155. [ Footnote 18 ] 153. [ Footnote 19 ] Iliad, I., 2. v. 54. [ Footnote 20 ] 1. s. 10. [ Footnote 21 ] Brac. 107. [ Footnote 22 ] Art. 3. s. 2. Cushing, justice. The grand and principal question in this case is whether a State can, by the Federal Constitution, be sued by an individual citizen of another State? The point turns not upon the law or practice of England, although perhaps it may be in some measure elucidated thereby, nor upon the law of any other country whatever, but upon the Constitution established by the people of the United States, and particularly upon the extent of powers given to the Federal judicial in the second section of the third article of the Constitution. It is declared that "the judicial power shall extend to all cases in law and equity arising under the Constitution, the laws of the United States, or treaties made or which shall be made under their authority; to all cases affecting ambassadors or other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies, to which the United Page 2 U. S. 467 States shall be a party; to controversies between two or more States and citizens of another State; between citizens of different States; between citizens of the same State claiming lands under grants of different States; and between a State and citizens thereof and foreign states, citizens or subjects." The judicial power, then, is expressly extended to "controversies between a State and citizens of another State." When a citizen makes a demand against a State of which he is not a citizen, it is as really a controversy between a State and a citizen of another State as if such State made a demand against such citizen. The case, then, seems clearly to fall within the letter of the Constitution. It may be suggested that it could not be intended to subject a State to be a defendant, because it would effect the sovereignty of States. If that be the case, what shall we do with the immediate preceding clause; "controversies between two or more States," where a State must of necessity be defendant? If it was not the intent, in the very next clause also, that a State might be made defendant, why was it so expressed as naturally to lead to and comprehend that idea? Why was not an exception made, if one was intended? Again, what are we to do with the last clause of the section of judicial powers, viz., "Controversies between a State, or the citizens thereof, and foreign states or citizens?" Here again, States must be suable or liable to be made defendants by this clause, which has a similar mode of language with the two other clauses I have remarked upon. For if the judicial power extends to a controversy between one of the United States and a foreign state, as the clause expresses, one of them must be defendant. And then, what becomes of the sovereignty of States as far as suing affects it? But although the words appear reciprocally to affect the State here and a foreign state, and put them on the same footing as far as may be, yet ingenuity may say that the State here may sue, but cannot be sued; but that the foreign state may be sued, but cannot sue. We may touch foreign sovereignties, but not our own. But I conceive the reason of the thing, as well as the words of the Constitution, tend to show that the Federal judicial power extends to a suit brought by a foreign state against any one of the United States. One design of the general government was for managing the great affairs of peace and war and the general defence, which were impossible to be conducted, with safety, by the States separately. Incident to these powers, and for preventing controversies between foreign powers or citizens from rising to extremities and to an appeal to the sword, a national tribunal was necessary amicably to decide them, and thus ward off such fatal public calamity. Thus, States at home and their citizens, and foreign states and their citizens, are put together without Page 2 U. S. 468 distinction upon the same footing, as far as may be, as to controversies between them. So also, with respect to controversies between a State and citizens of another State (at home) comparing all the clauses together, the remedy is reciprocal, the claim to justice equal. As controversies between State and State, and between a State and citizens of another State, might tend gradually to involve States in war and bloodshed, a disinterested civil tribunal was intended to be instituted to decide such controversies and preserve peace and friendship. Further, if a State is entitled to justice in the Federal court against a citizen of another State, why not such citizen against the State, when the same language equally comprehends both? The rights of individuals and the justice due to them are as dear and precious as those of States. Indeed, the latter are founded upon the former, and the great end and object of them must be to secure and support the rights of individuals, or else vain is government. But still it may be insisted that this will reduce States to mere corporations, and take away all sovereignty. As to corporations, all States whatever are corporations or bodies politic. The only question is, what are their powers? As to individual States and the United States, the Constitution marks the boundary of powers. Whatever power is deposited with the Union by the people for their own necessary security is so far a curtailing of the power and prerogatives of States. This is, as it were, a self-evident proposition; at least it cannot be contested. Thus the power of declaring war, making peace, raising and supporting armies for public defence, levying duties, excises and taxes, if necessary, with many other powers, are lodged in Congress, and are a most essential abridgement of State sovereignty. Again, the restrictions upon States: "No State shall enter into any treaty, alliance, or confederation, coin money, emit bills of credit, make any thing but gold and silver a tender in payment of debts, pass any law impairing the obligation of contracts;" these, with a number of others, are important restrictions of the power of States, and were thought necessary to maintain the Union and to establish some fundamental uniform principles of public justice throughout the whole Union. So that I think no argument of force can be taken from the sovereignty of States. Where it has been abridged, it was thought necessary for the greater indispensable good of the whole. If the Constitution is found inconvenient in practice in this or any other particular, it is well that a regular mode is pointed out for amendment. But, while it remains, all offices legislative, executive, and judicial, both of the States and of the Union, are bound by oath to support it. Page 2 U. S. 469 One other objection has been suggested -- that if a State may be sued by a citizen of another State, then the United States may be sued by a citizen of any of the States, or, in other words, by any of their citizens. If this be a necessary consequence, it must be so. I doubt the consequence, from the different wording of the different clauses, connected with other reasons. When speaking of the United States, the Constitution says "controversies to which the United States shall be a party," not controversies between the United States and any of their citizens. When speaking of States, it says, "controversies between two or more States; between a State and citizens of another State." As to reasons for citizens suing a different State which do not hold equally good for suing the United States, one may be that, as controversies between a State and citizens of another State might have a tendency to involve both States in contest, and perhaps in war, a common umpire to decide such controversies may have a tendency to prevent the mischief. That an object of this kind was had in view by the framers of the Constitution I have no doubt when I consider the clashing interfering laws which were made in the neighbouring States before the adoption of the Constitution, and some affecting the property of citizens of another State in a very different manner from that of their own citizens. But I do not think it necessary to enter fully into the question whether the United States are liable to be sued by an individual citizen in order to decide the point before us. Upon the whole, I am of opinion that the Constitution warrants a suit again a State by an individual citizen of another State. A second question made in the case was whether the particular action of assumpsit could lie against a State? I think assumpsit will lie, if any suit, provided a State is capable of contracting. The third question respects the competency of service, which I apprehend is good and proper, the service being by summons and notifying the suit to the Governor and the Attorney General; the Governor, who is the supreme executive magistrate and representative of the State, who is bound by oath to defend the State, and by the Constitution to give information to the legislature of all important matters which concern the interest of the State; the Attorney General, who is bound to defend the interest of the State in courts of Law. Jay, Chief justice. The question we are now to decide has been accurately stated, viz., is a State suable by individual citizens of another State? It is said that Georgia refuses to appear and answer to the plaintiff in this action because she is a sovereign State, and therefore not liable to such actions. In order to ascertain the merits Page 2 U. S. 470 of this objection, let us enquire, 1st. In what sense Georgia is a sovereign State. 2nd. Whether suability is incompatible with such sovereignty. 3rd. Whether the Constitution (to which Georgia is a party) authorises such an action against her. "Suability" and "suable" are words not in common use, but they concisely and correctly convey the idea annexed to them. 1st. In determining the sense in which Georgia is a sovereign State, it may be useful to turn our attention to the political situation we were in prior to the Revolution, and to the political rights which emerged from the Revolution. All the country now possessed by the United States was then a part of the dominions appertaining to the Crown of Great Britain. Every acre of land in this country was then held mediately or immediately by grants from that Crown. All the people of this country were then subjects of the King of Great Britain, and owed allegiance to him; and all the civil authority then existing or exercised here, flowed from the head of the British Empire. They were in strict sense fellow subjects, and in a variety of respects one people. When the Revolution commenced, the patriots did not assert that only the same affinity and social connection subsisted between the people of the colonies which subsisted between the people of Gaul, Britain, and Spain while Roman Provinces, viz., only that affinity and social connection which result from the mere circumstance of being governed by the same Prince; different ideas prevailed, and gave occasion to the Congress of 1774 and 1775. The Revolution, or rather the Declaration of Independence, found the people already united for general purposes, and at the same time providing for their more domestic concerns by State conventions and other temporary arrangements. From the Crown of Great Britain, the sovereignty of their country passed to the people of it, and it was then not an uncommon opinion that the unappropriated lands, which belonged to that Crown, passed not to the people of the Colony or States within whose limits they were situated, but to the whole people; on whatever principles this opinion rested, it did not give way to the other, and thirteen sovereignties were considered as emerged from the principles of the Revolution, combined with local convenience and considerations; the people nevertheless continued to consider themselves, in a national point of view, as one people; and they continued without interruption to manage their national concerns accordingly; afterwards, in the hurry of the war and in the warmth of mutual confidence, they made a Confederation of the States the basis of a general government. Experience disappointed the expectations they had formed from it, and then the people, in their collective and national capacity, established the present Constitution. It is remarkable Page 2 U. S. 471 that, in establishing it, the people exercised their own rights, and their own proper sovereignty, and, conscious of the plenitude of it, they declared with becoming dignity, "We the people of the United States, do ordain and establish this Constitution." Here we see the people acting as sovereigns of the whole country, and, in the language of sovereignty, establishing a Constitution by which it was their will that the State governments should be bound, and to which the State Constitutions should be made to conform. Every State Constitution is a compact made by and between the citizens of a State to govern themselves in a certain manner, and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves as to general objects in a certain manner. By this great compact however, many prerogatives were transferred to the national government, such as those of making war and peace, contracting alliances, coining money, etc. etc. If then it be true that the sovereignty of the nation is in the people of the nation, and the residuary sovereignty of each State in the people of each State, it may be useful to compare these sovereignties with those in Europe, that we may thence be enabled to judge whether all the prerogatives which are allowed to the latter are so essential to the former. There is reason to suspect that some of the difficulties which embarrass the present question arise from inattention to differences which subsist between them. It will be sufficient to observe briefly that the sovereignties in Europe, and particularly in England, exist on feudal principles. That system considers the Prince as the sovereign, and the people as his subjects; it regards his person as the object of allegiance, and excludes the idea of his being on an equal footing with a subject, either in a court of justice or elsewhere. That system contemplates him as being the fountain of honor and authority, and from his grace and grant derives all franchises, immunities and privileges; it is easy to perceive that such a sovereign could not be amenable to a court of justice, or subjected to judicial controul and actual constraint. It was of necessity, therefore, that suability became incompatible with such sovereignty. Besides, the Prince having all the Executive powers, the judgment of the courts would, in fact, be only monitory, not mandatory to him, and a capacity to be advised is a distinct thing from a capacity to be sued. The same feudal ideas run through all their jurisprudence, and constantly remind us of the distinction between the Prince and the subject. No such ideas obtain here; at the Revolution, the sovereignty devolved on the people, and they are truly the sovereigns of the country, but they are sovereigns without subjects (unless the African Page 2 U. S. 472 slaves among us may be so called), and have none to govern but themselves; the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty. From the differences existing between feudal sovereignties and governments founded on compacts, it necessarily follows that their respective prerogatives must differ. Sovereignty is the right to govern; a nation or State sovereign is the person or persons in whom that resides. In Europe, the sovereignty is generally ascribed to the Prince; here, it rests with the people; there, the sovereign actually administers the government; here, never in a single instance; our Governors are the agents of the people, and, at most, stand in the same relation to their sovereign in which regents in Europe stand to their sovereigns. Their Princes have personal powers, dignities, and preeminences; our rulers have none but official; nor do they partake in the sovereignty otherwise, or in any other capacity, than as private citizens. 2nd. The second object of enquiry now presents itself, viz., whether suability is compatible with State sovereignty. Suability, by whom? Not a subject, for in this country, there are none; not an inferior, for all the citizens being as to civil rights perfectly equal, there is not, in that respect, one citizen inferior to another. It is agreed that one free citizen may sue another, the obvious dictates of justice, and the purposes of society demanding it. It is agreed that one free citizen may sue any number on whom process can be conveniently executed; nay, in certain cases, one citizen may sue forty thousand; for where a corporation is sued, all the members of it are actually sued, though not personally sued. In this city there are forty odd thousand free citizens, all of whom may be collectively sued by any individual citizen. In the State of Delaware, there are fifty odd thousand free citizens, and what reason can be assigned why a free citizen who has demands against them should not prosecute them? Can the difference between forty odd thousand and fifty odd thousand make any distinction as to right? Is it not as easy, and as convenient to the public and parties, to serve a summons on the Governor and Attorney General of Delaware as on the Mayor or other Officers of the Corporation of Philadelphia? Will it be said that the fifty odd thousand citizens in Delaware, being associated under a State government, stand in a rank so superior to the forty odd thousand of Philadelphia, associated under their charter, that, although it may become the latter to meet an individual on an equal footing in a court of justice, yet that such a procedure would not comport with the dignity of the former? In this land of equal liberty, shall forty odd thousand in one place be compellable to do justice, and yet fifty odd thousand in Page 2 U. S. 473 another place be privileged to do justice only as they may think proper? Such objections would not correspond with the equal rights we claim, with the equality we profess to admire and maintain, and with that popular sovereignty in which every citizen partakes. Grant that the Governor of Delaware holds an office of superior rank to the Mayor of Philadelphia; they are both nevertheless the officers of the people; and however more exalted the one may be than the other, yet, in the opinion of those who dislike aristocracy, that circumstance cannot be a good reason for impeding the course of justice. If there be any such incompatibility as is pretended, whence does it arise? In what does it consist? There is at least one strong undeniable fact against this incompatibility, and that is this -- any one State in the Union may sue another State, in this Court, that is, all the people of one State may sue all the people of another State. It is plain then that a State may be sued, and hence it plainly follows that suability and State sovereignty are not incompatible. As one State may sue another State in this Court, it is plain that no degradation to a State is thought to accompany her appearance in this Court. It is not therefore to an appearance in this Court that the objection points. To what does it point? It points to an appearance at the suit of one or more citizens. But why it should be more incompatible that all the people of a State should be sued by one citizen than by one hundred thousand, I cannot perceive, the process in both cases being alike and the consequences of a judgment alike. Nor can I observe any greater inconveniences in the one case than in the other, except what may arise from the feelings of those who may regard a lesser number in an inferior light. But if any reliance be made on this inferiority as an objection, at least one half of its force is done away by this fact, viz., that it is conceded that a State may appear in this Court as plaintiff against a single citizen as defendant; and the truth is that the State of Georgia is at this moment prosecuting an action in this Court against two citizens of South Carolina.* The only remnant of objection, therefore, that remains is that the State is not bound to appear and answer as a defendant at the suit of an individual; but why it is unreasonable that she should be so bound is hard to conjecture. That rule is said to be a bad one which does not work both ways; the citizens of Georgia are content with a right of suing citizens of other States, but are not content that citizens of other States should have a right to sue them. Let us now proceed to enquire whether Georgia has not, by being a party to the National Compact, consented to be suable by individual citizens of another State. This enquiry naturally leads our attention, 1st., to the design of the Constitution; 2nd., to the letter and express declaration in it. Page 2 U. S. 474 Prior to the date of the Constitution, the people had not any national tribunal to which they could resort for justice; the distribution of justice was then confined to State judicatories, in whose institution and organization the people of the other States had no participation, and over whom they had not the least control. There was then no general court of appellate jurisdiction by whom the errors of State courts, affecting either the nation at large or the citizens of any other State, could be revised and corrected. Each State was obliged to acquiesce in the measure of justice which another State might yield to her or to her citizens, and that even in cases where State considerations were not always favorable to the most exact measure. There was danger that, from this source, animosities would in time result, and as the transition from animosities to hostilities was frequent in the history of independent States, a common tribunal for the termination of controversies became desirable from motives both of justice and of policy. Prior also to that period, the United States had, by taking a place among the nations of the earth, become amenable to the laws of nations, and it was their interest as well as their duty to provide that those laws should be respected and obeyed; in their national character and capacity, the United States were responsible to foreign nations for the conduct of each State relative to the laws of nations and the performance of treaties, and there the inexpediency of referring all such questions to State courts, and particularly to the courts of delinquent States, became apparent. While all the States were bound to protect each and the citizens of each, it was highly proper and reasonable that they should be in a capacity not only to cause justice to be done to each and the citizens of each, but also to cause justice to be done by each and the citizens of each, and that not by violence and force, but in a stable, sedate, and regular course of judicial procedure. These were among the evils against which it was proper for the nation -- that is, the people -- of all the United States to provide by a national judiciary, to be instituted by the whole nation and to be responsible to the whole nation. Let us now turn to the Constitution. The people therein declare that their design in establishing it comprehended six objects. 1st. To form a more perfect union. 2nd. To establish justice. 3rd. To ensure domestic tranquillity. 4th. To provide for the common defence. 5th. To promote the general welfare. 6th. To secure the blessings of liberty to themselves and their posterity. It would be pleasing and useful to consider and trace the relations which each of these objects bears to the others, Page 2 U. S. 475 and to show that they collectively comprise everything requisite, with the blessing of Divine Providence, to render a people prosperous and happy. On the present occasion, such disquisitions would be unseasonable because foreign to the subject immediately under consideration. It may be asked, what is the precise sense and latitude in which the words "to establish justice," as here used, are to be understood? The answer to this question will result from the provisions made in the Constitution on this head. They are specified in the second section of the third article, where it is ordained that the judicial power of the United States shall extend to ten descriptions of cases, viz., 1st. To all cases arising under this Constitution, because the meaning, construction, and operation of a compact ought always to be ascertained by all the parties, or by authority derived only from one of them. 2nd. To all cases arising under the laws of the United States, because, as such laws, constitutionally made, are obligatory on each State, the measure of obligation and obedience ought not to be decided and fixed by the party from whom they are due, but by a tribunal deriving authority from both the parties. 3rd. To all cases arising under treaties made by their authority; because, as treaties are compacts made by, and obligatory on, the whole nation, their operation ought not to be affected or regulated by the local laws or courts of a part of the nation. 4th. To all cases affecting Ambassadors, or other public Ministers and Consuls, because, as these are officers of foreign nations whom this nation are bound to protect and treat according to the laws of nations, cases affecting them ought only to be cognizable by national authority. 5th. To all cases of Admiralty and Maritime jurisdiction, because, as the seas are the joint property of nations, whose right and privileges relative thereto are regulated by the law of nations and treaties, such cases necessarily belong to national jurisdiction. 6th. To controversies to which the United States shall be a party, because, in cases in which the whole people are interested, it would not be equal or wise to let any one State decide and measure out the justice due to others. 7th. To controversies between two or more States, because domestic tranquillity requires that the contentions of States should be peaceably terminated by a common judicatory, and, because, in a free country, justice ought not to depend on the will of either of the litigants. 8th. To controversies between a State and citizens of another State, because in case a State (that is, all the citizens of it) has demands against some citizens of another State, it is better that she should prosecute their demands in a national court than in a court of the State to which those citizens belong, the danger of irritation and criminations arising from apprehensions and Page 2 U. S. 476 suspicions of partiality being thereby obviated. Because, in cases where some citizens of one State have demands against all the citizens of another State, the cause of liberty and the rights of men forbid that the latter should be the sole judges of the justice due to the latter, and true Republican government requires that free and equal citizens should have free, fair, and equal justice. 9th. To controversies between citizens of the same State, claiming lands under grants of different States, because, as the rights of the two States to grant the land are drawn into question, neither of the two States ought to decide the controversy. 10th. To controversies between a State or the citizens thereof and foreign states, citizens or subjects, because, as every nation is responsible for the conduct of its citizens towards other nations, all questions touching the justice due to foreign nations or people ought to be ascertained by, and depend on, national authority. Even this cursory view of the judicial powers of the United States leaves the mind strongly impressed with the importance of them to the preservation of the tranquillity, the equal sovereignty, and the equal right of the people. The question now before us renders it necessary to pay particular attention to that part of the second section which extends the judicial power "to controversies between a State and citizens of another State." It is contended that this ought to be construed to reach none of these controversies excepting those in which a State may be plaintiff. The ordinary rules for construction will easily decide whether those words are to be understood in that limited sense. This extension of power is remedial, because it is to settle controversies. It is therefore to be construed liberally. It is politic, wise, and good that not only the controversies in which a State is plaintiff, but also those in which a State is defendant, should be settled; both cases therefore are within the reason of the remedy, and ought to be so adjudged unless the obvious, plain, and literal sense of the words forbid it. If we attend to the words, we find them to be express, positive, free from ambiguity, and without room for such implied expressions: "The judicial power of the United States shall extend to controversies between a State and citizens of another State." If the Constitution really meant to extend these powers only to those controversies in which a State might be plaintiff, to the exclusion of those in which citizens had demands against a State, it is inconceivable that it should have attempted to convey that meaning in words not only so incompetent, but also repugnant to it; if it meant to exclude a certain class of these controversies, why were they not expressly excepted; on the contrary, not even an intimation of such intention appears in Page 2 U. S. 477 any part of the Constitution. It cannot be pretended that, where citizens urge and insist upon demands against a State, which the State refuses to admit and comply with, that there is no controversy between them. If it is a controversy between them, then it clearly falls not only within the spirit, but the very words, of the Constitution. What is it to the cause of justice, and how can it effect the definition of the word "controversy?;" whether the demands which cause the dispute are made by a State against citizens of another State or by the latter against the former? When power is thus extended to a controversy, it necessarily, as to all judicial purposes, is also extended to those between whom it subsists. The exception contended for would contradict and do violence to the great and leading principles of a free and equal national government, one of the great objects of which is to ensure justice to all -- to the few against the many as well as to the many against the few. It would be strange indeed that the joint and equal sovereigns of this country should, in the very Constitution by which they professed to establish justice, so far deviate from the plain path of equality and impartiality as to give to the collective citizens of one State a right of suing individual citizens of another State, and yet deny to those citizens a right of suing them. We find the same general and comprehensive manner of expressing the same ideas in a subsequent clause in which the Constitution ordains that, "in all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party, the Supreme court shall have original jurisdiction." Did it mean here party plaintiff? If that only was meant, it would have been easy to have found words to express it. Words are to be understood in their ordinary and common acceptation, and the word "party" being in common usage, applicable both to plaintiff and defendant, we cannot limit it to one of them in the present case. We find the Legislature of the United States expressing themselves in the like general and comprehensive manner; they speak in the thirteenth section of the judicial Act, of controversies where a State is a party, and as they do not impliedly or expressly apply that term to either of the litigants in particular, we are to understand them as speaking of both. In the same section, they distinguish the cases where Ambassadors are plaintiffs from those in which Ambassadors are defendants, and make different provisions respecting those cases; and it is not unnatural to suppose that they would in like manner have distinguished between cases where a State was plaintiff and where a State was defendant if they had intended to make any difference between them, or if they had apprehended that the Constitution had made any difference between them. Page 2 U. S. 478 I perceive, and therefore candor urges me to mention, a circumstance which seems to favor the opposite side of the question. It is this: the same section of the Constitution which extends the judicial power to controversies "between a State and the citizens of another State" does also extend that power to controversies to which the United States are a party. Now it may be said, if the word party comprehends both plaintiff and defendant, it follows that the United States may be sued by any citizen between whom and them there may be a controversy. This appears to me to be fair reasoning, but the same principles of candour which urge me to mention this objection also urge me to suggest an important difference between the two cases. It is this: in all cases of actions against States or individual citizens, the national courts are supported in all their legal and constitutional proceedings and judgments by the arm of the executive power of the United States; but in cases of actions against the United States, there is no power which the courts can call to their aid. From this distinction, important conclusions are deducible, and they place the case of a State, and the case of the United States, in very different points of view. I wish the state of society was so far improved, and the science of government advanced to such a degree of perfection, as that the whole nation could, in the peaceable course of law, be compelled to do justice, and be sued by individual citizens. Whether that is or is not now the case ought not to be thus collaterally and incidentally decided. I leave it a question. As this opinion, though deliberately formed, has been hastily reduced to writing between the intervals of the daily adjournments, and while my mind was occupied and wearied by the business of the day, I fear it is less concise and connected than it might otherwise have been. I have made no references to cases, because I know of none that are not distinguishable from this case; nor does it appear to me necessary to show that the sentiments of the best writers on government and the rights of men harmonize with the principles which direct my judgment on the present question. The acts of the former Congresses, and the acts of many of the State Conventions, are replete with similar ideas, and, to the honor of the United States, it may be observed that in no other country are subjects of this kind better, if so well, understood. The attention and attachment of the Constitution to the equal rights of the people are discernable in almost every sentence of it, and it is to be regretted that the provision in it which we have been considering has not in every instance received the approbation and acquiescence which it merits. Georgia has in strong language advocated the cause of republican equality, and there is reason to Page 2 U. S. 479 hope that the people of that State will yet perceive that it would not have been consistent with that equality to have exempted the body of her citizens from that suability which they are at this moment exercising against citizens of another State. For my own part, I am convinced that the sense in which I understand and have explained the words "controversies between States and citizens of another State" is the true sense. The extension of the judiciary power of the United States to such controversies appears to me to be wise, because it is honest and because it is useful. It is honest because it provides for doing justice without respect of persons, and, by securing individual citizens as well as States in their respective rights, performs the promise which every free government makes to every free citizen of equal justice and protection. It is useful because it is honest; because it leaves not even the most obscure and friendless citizen without means of obtaining justice from a neighbouring State; because it obviates occasions of quarrels between States on account of the claims of their respective citizens; because it recognizes and strongly rests on this great moral truth that justice is the same whether due from one man or a million, or from a million to one man; because it teaches and greatly appreciates the value of our free republican national government, which places all our citizens on an equal footing, and enables each and every of them to obtain justice without any danger of being overborne by the weight and number of their opponents; and because it brings into action and enforces this great and glorious principle -- that the people are the sovereign of this country, and consequently that fellow citizens and joint sovereigns cannot be degraded by appearing with each other in their own courts to have their controversies determined. The people have reason to prize and rejoice in such valuable privileges, and they ought not to forget that nothing but the free course of constitutional law and government can ensure the continuance and enjoyment of them. For the reasons before given, I am clearly of opinion that a State is suable by citizens of another State; but left I should be understood in a latitude beyond my meaning, I think it necessary to subjoin this caution, viz., that such suability may nevertheless not extend to all the demands and to every kind of action; there may be exceptions. For instance, I am far from being prepared to say that an individual may sue a State on bills of credit issued before the Constitution was established, and which were issued and received on the faith of the State, and at a time when no ideas or expectations of judicial interposition were entertained or contemplated. The following order was made: By The court. It is ordered that the plaintiff in this cause do file his declaration on or before the first day of March next. Ordered that certified copies of the said declaration be served on the Governor and Attorney General of the State of Georgia, on or before the first day of June next. Ordered that, unless the said State shall either in due form appear, or show cause to the contrary in this Court, by the first day of next Term, judgment by default shall be entered against the said State.* * Georgia v. Brailsford, et al., ante. * In February Term, 1794, judgment was rendered for the plaintiff, and a Writ of Enquiry awarded. The Writ, however, was not sued out and executed, so that this cause, and all the other suits against States, were swept at once from the Records of the Court by the amendment to the Federal Constitution, agreeably to the unanimous determination of the judges, in Hollingsworth et al. v. Virginia, argued at February Term, 1798.

In the case of Chisholm v. Georgia, the United States Supreme Court considered whether a state could be sued by a citizen of another state. The Court concluded that states are suable by citizens of another state, except in certain circumstances. The particular question before the Court was whether an action of assumpsit (a type of contractual agreement) could be brought against a state. The Court held that while states are suable in some instances, there may be exceptions, such as suits involving bills of credit issued before the establishment of the Constitution. The Court's decision was based on the idea that justice should be accessible to all citizens and that the people are the sovereign power in the country.

Role of Courts

Ware v. Hylton

https://supreme.justia.com/cases/federal/us/3/199/

U.S. Supreme Court Ware v. Hylton, 3 U.S. 3 Dall. 199 199 (1796) Ware v. Hylton 3 U.S. (3 Dall.) 199 ERROR TO THE CIRCUIT COURT FOR THE DISTRICT OF VIRGINIA Syllabus The act of the Legislature of Virginia of 1779 entitled "An act concerning escheats and forfeitures from British subjects," and under which a debtor to a subject of Great Britain had, in conformity to the provisions of that law, during the war, paid into the loan office of the state a portion of the debt due by him, did not operate to protect the debtor from a suit for such debt after the treaty of peace in 1783. The statute of Virginia, if it was valid and the legislature could pass such a law, was annulled by the fourth article of the treaty, and under this article, suits for the recovery of debts so due might be maintained, the provisions of the Virginia law to the contrary notwithstanding. The action was brought by William Jones (but as he died pendente lite, his administrator was duly substituted as plaintiff in the cause), surviving partner of Farrel & Jones, subjects of the King of Great Britain, against Daniel Hylton & Co. and Francis Eppes, citizens of Virginia, on a bond, for the penal sum of �2976 11s. 6d. sterling, dated 7 July, 1774. The defendants pleaded 1st, payment, and also, by leave of the court, the following additional pleas in bar of the action. "2d. That the plaintiff ought not to have and maintain his action aforesaid, against them for $3,111 1/9, equal to �933 14.s., part of the debt in the declaration mentioned, because they say that on 4 July, 1776, they, the said defendants, became citizens of the State of Virginia, and have ever since remained citizens thereof and residents therein, and that the plaintiff, on the said 4 July, 1776, and the said Joseph Farrel were, and from the time of their nativity ever had been, and always since have been, and the plaintiff still is a British subject, owing, yielding, and paying allegiance to the King of Great Britain, which said King of Great Britain and all his subjects, as well the plaintiff as others, were, on the said 4 July, 1776, and so continued until the third of September, 1783, enemies of and at open war with the State of Virginia and the United States of America, and that being so enemies and at open war as aforesaid, the Legislature of the State of Virginia did, at their session begun and held in the City of Williamsburgh on Monday, 20 October, 1777, pass an act entitled" "An act for sequestering British property, enabling those indebted Page 3 U. S. 200 to British subjects to pay off such debts, and directing the proceedings in suits where such subjects are parties," "whereby it was enacted" " That it may and shall be lawful for any citizen of this Commonwealth owing money to a subject of Great Britain to pay the same or any part thereof from time to time as he shall think fit into the said loan office, taking thereout a certificate for the same in the name of the creditor, with an endorsement under the hand of the commissioner of the said office expressing the name of the payer, and shall deliver such certificate to the governor and council, whose receipt shall discharge him from so much of the said debt." "And the defendants say that the said Daniel L. Hylton and Co. did, on 26 April, 1780, in the County of Henrico and in the State of Virginia, while the said recited act continued in full force, in pursuance thereof pay into the loan office of this Commonwealth, on account of the debt in the declaration mentioned, the sum of $3,111 1/9, equal to �933 14s., and did take out a certificate for the same in the name of Farell and Jones, in the declaration mentioned, as creditors, with an endorsement under the hand of the commissioner of the said office, expressing the name of the payer, which certificate they, the defendants, then delivered to the governor and council, who gave a receipt therefor in conformity to the directions of the said act, in the words and figures following, to-wit:" " Received into the council's office a certificate bearing date 26 April, 1780, under the hand of the treasurer, that Daniel L. Hylton and Co. have paid to him $3,111 1/9, to be applied to the credit of their accounts with Farrell & Jones, British subjects. Given under my hand, at Richmond, this 30 May, 1780." "T. JEFFERSON" "Whereby the defendants, by virtue of the said act of assembly, are discharged from so much of the debt in the declaration mentioned as the said receipt specifies and amounts to, and this they are ready to verify. Wherefore they pray the judgment of the court whether the said plaintiff ought to have or maintain his action aforesaid against them for the �933 14s., part of the debt in the declaration mentioned." "3d. That the plaintiff ought not to have or maintain his action aforesaid against them because they say that, on 4 July, 1776, the said defendants became citizens of the State of Virginia, and have ever since remained citizens thereof and residents therein, and that the said plaintiff and the said Joseph Farrell, on the said 4 July, 1776, and from the time of their nativity, had ever been, and always since have been, British subjects, Page 3 U. S. 201 and the plaintiff still is a British subject, yielding and paying allegiance to the King of Great Britain, which said King of Great Britain, and all his subjects, as well the plaintiff and the said Joseph Farell as others, were on the said 4 July, 1776, and so continued till 3 September, in the year 1783, enemies of and at open war with the State of Virginia and the United States of America, and that, being so enemies and at open war as aforesaid, the Legislature of the State of Virginia did, at its session commenced and held in the City of Williamsburg on 3 May, 1779, pass an act entitled 'An act concerning escheats and forfeitures from British subjects,' whereby it was, among other things enacted," " That all the property, real and personal, within this commonwealth belonging at this time to any British subject or which did belong to any British subject at the time when such escheat or forfeiture may have taken place shall be deemed to be vested in the commonwealth; the lands, slaves, and other real estate, by way of escheat, and the personal estate by forfeiture." "And the Legislature of the State of Virginia did, in its session begun and held in the Town of Richmond on Monday, 6 May, 1782, pass an act entitled 'An act to repeal so much of a former act as suspends the issuing of executions upon certain judgments until December, 1783,' whereby it is enacted that no demand whatsoever originally due to a subject of Great Britain shall be recoverable in any court in this commonwealth, although the same may be transferred to a citizen of this state or to any other person capable of maintaining such an action, unless the assignment hath been or may be made for a valuable consideration, bona fide, paid before 1 May, 1777, which said acts are unrepealed and still in force. And the defendants in fact say, that the debt in the declaration mentioned was personal property within this commonwealth, belonging to a British subject at the time of the passing of the said act entitled 'An act concerning escheats and forfeitures from British subjects,' and the defendants in fact also say that the debt in the declaration mentioned is a demand originally due to a subject of the King of Great Britain not transferred to any person whatsoever. And these things they are ready to verify. Wherefore they pray the judgment of the court, whether the said plaintiff ought to have, or maintain his action aforesaid against them." "4th. That the plaintiff his action aforesaid against them ought not to have or maintain because they say that a definitive treaty of peace between the United States of America and his Britannic Majesty was done at Paris on 3 September, 1783, and that by a part of the seventh Page 3 U. S. 202 article of the said treaty it was expressly agreed on the part of his Britannic Majesty with the United States, among other things," " That his said Britannic Majesty should with all convenient speed and without causing any destruction or carrying away any negroes or other property of the American inhabitants, withdraw all his armies, garrisons, and fleets from the said United States and from every port, place, and harbor within the same," "which may more fully appear, reference being had to the said treaty; and the said defendants aver that on the 3 September, 1783, and from their birth to this day, they have been citizens of these United States and of the State of Virginia, and that the plaintiff has ever been a British subject, and that the plaintiff ought not to maintain an action, because his Britannic Majesty hath willfully broken and violated the said treaty in this, that his Britannic Majesty hath, from the day of the said treaty and ever since, continued to carry off the negroes in his possession, the property of the American inhabitants of the United States, and hath and still doth refuse to deliver them or permit the owners of the said negroes to take them. And the defendants aver that his Britannic Majesty hath refused and still doth refuse to withdraw his armies and garrisons from every port and harbor within the United States, which his said Britannic Majesty was bound to do by the said treaty; and the defendants aver that from the day of the treaty, his Britannic Majesty, by force and violence and with his army, retains possession of the forts Detroit and Niagara and a large territory adjoining the said forts and within the bounds and limits of the United States of America, and the defendants say that in further violation of the said treaty of peace concluded as aforesaid, certain nations or tribes of Indians, known by the names of Shawanese, Tawas, Twightoes, Powtawatemies, Quiapoees, Wiandots, Mingoes, Piankaskaws, and Naiadonepes, and others, being at open, public, and known wars with the inhabitants of the United States and living within the limits thereof, and for the purpose of aiding the said Indians in such war and hostility, at certain posts, forts and garrisons, held and kept by the troops and garrisons of his Britannic Majesty, to-wit, at Detroit, Michelimachinac, and Niagara, within the limits of the said United States, on 4 September, 1783, and at divers times after the said 4 September, 1783, up to the institution of this suit, by orders and directions of his Britannic Majesty and his officers commanding his said troops and armies at the said garrisons of Detroit, Michelimachinac, and Niagara, and at other forts and places held by the said troops and armies within the limits of the United States, are supplied and furnished with arms, ammunition, and weapons of war, to-wit, with guns and gunpowder, lead Page 3 U. S. 203 and leaden bullets, tomahawks and scalping-knives, for the purpose of enabling them to prosecute the war against the citizens of these United States, and also giving and paying to the said Indians money, goods, wares, and merchandise for booty and plunder taken in such war, and for persons, citizens of these United States, made prisoners by the said Indians, in such their warfare against the United States, and so the King of Great Britain is an enemy to these United States; and this they are ready to verify. Wherefore they pray judgment of the court whether the plaintiff his action aforesaid against them ought to have or maintain." "5th. That the debt in the declaration mentioned was contracted before 4 July, 1776, to-wit, on 7 July, 1774, and that when the said debt was contracted, and from thence to the said 4 July, 1776, and on that day and until this day the said plaintiff was and is a subject to the King of Great Britain residing in Virginia, until the said 4 July, 1776, on which day the people of North America, among whom were these defendants, who had theretofore been the subjects of the King of Great Britain, dissolved the 'till then subsisting government, whereby the right of the plaintiff to the debt in the declaration mentioned was totally annulled. And this they are ready to verify; wherefore they pray the judgment of the court whether the plaintiff ought to have or maintain his action aforesaid, against them." The plaintiff replied 1st., non solverunt to the plea of payment, on which issue was joined, and to the 2d plea in bar he replied, "2d. That he, by reason of anything in the said plea alleged ought not to be barred from having or maintaining his said action against the said defendants, because, protesting that that plea and the matters therein contained are not sufficient in law to bar the said plaintiff from having or maintaining his said action in this behalf against the said defendants, to which the said plaintiff hath no reason, nor is he bound by the law of the land to answer, yet for replication in this behalf he, the said plaintiff, saith that after the debt in the said declaration mentioned was contracted and after the said 4 July, 1776, in the said plea of the said defendants mentioned, and also after the said 20 October, 1777, and the passing the act of general assembly in the said plea also mentioned, and also after the day in which the said receipt in the plea stated, is said to have been granted, to-wit, on 3f September, 1783, it was by the definitive Treaty of Peace between the United States of America and his Britannic Majesty, made and done in the Page 3 U. S. 204 City of Paris, that is to say, in the Commonwealth, now District, of Virginia, and now within the jurisdiction of this Honorable Court, stipulated and agreed, among other things," "that the creditors of either side should meet with no lawful impediment to the recovery of the full value in sterling money, of all bona fide debts, theretofore contracted," "and the said plaintiff in fact saith that he, on the said 3 September, 1783, and for a long time before (as well as the said Joseph Farrell, in his lifetime were) then was and ever since hath been and still is a subject of his Britannic Majesty and a creditor within the intent and meaning of the 4th article of the Definitive Treaty, and that the debt in the declaration mentioned was contracted before the said 3 September, 1783 -- that is to say in the county and commonwealth aforesaid, now the District of Virginia, and now within the jurisdiction of this Honorable Court, and there was and still is owing and unpaid. And the said plaintiff, for further replication saith that after contracting the debt in the declaration mentioned by the said defendants, and also after 4 July, 1776, and after the said 20 October, 1777, and also after the said 3 September, 1783 -- that is to say, on the __ day of 1787 in the then Commonwealth, now the District of Virginia, and now within the jurisdiction of this Honorable Court, it was by the Constitution of the United States of America, among other things, expressly declared that treaties which were then made or should thereafter be made under the authority of the United States, should be the supreme law of the land, anything in the said Constitution, or of the laws of any state to the contrary notwithstanding, and the said plaintiff doth in fact aver that the said Constitution of the United States was made and accepted subsequent to and after the ratification of the said definitive treaty of peace between the said United States of America and his Britannic Majesty, whose subject the said plaintiff then was and still is, and after the said 4 July, 1776, and also after the said 20 October, 1777. Wherefore, without that the debt in the declaration mentioned was bona fide contracted before the making of the said Definitive Treaty of Peace and before the making of the said Constitution of the United States, that he, the said plaintiff, is entitled to demand, have, and recover of the said defendants the aforesaid debt in the declaration mentioned without that the governor and council did give a receipt for a certificate of the payment into the loan office of the sum of $1,311 1/9 in the name of Farrell & Jones Page 3 U. S. 205 and in conformity to the direction of the act of general assembly entitled" "An act for sequestering British property, enabling those indebted to British subjects to pay of such debts, and directing the proceedings in suits where such subjects are parties," "whilst the said act was in force, as in the said plea of the said defendants is alleged, and this he is ready to verify. Wherefore the said plaintiff, as before, prays judgment of the court, and his debt aforesaid, and damages for detention of the debt to be adjudged to him." To the 3rd, 4th and 5th pleas in bar, the plaintiff demurred generally. The defendants to the plaintiff's second replication rejoined that the said plaintiff, for anything in the said replication contained, ought not to have or maintain his said action against them because they, by way of rejoinder, in this behalf, say, that in the same Definitive Treaty of Peace between the United States of America and his Britannic Majesty, by the said plaintiff in his replication mentioned, and which is now to the court shown, it was among other things stipulated and contracted as follows: "There shall be a firm and perpetual peace between his Britannic Majesty and the said United States and between the subjects of the one and the citizens of the other; wherefore, all hostilities both by sea and land, shall from henceforth cease, all prisoners on both sides shall be set at liberty, and his Britannic Majesty shall, with all convenient speed and without causing any destruction or carrying away any negroes or other property of the American inhabitants, withdraw all his armies, garrisons, and fleets, from the said United States and from every port, place, and harbor within the same. And the defendants in fact say that his said Britannic Majesty hath not performed those things which by the said Treaty of Peace he was bound to perform, but hath altogether failed to do so, and hath broken the said Treaty in this: that on 4 September, 1783, and on 3 June, 1790, and at divers times between the said 4 September, 1783, and the said 3 June, 1790, his Britannic Majesty at Detroit and other parts within the boundaries of the United States, to-wit, within the Commonwealth of Virginia and the jurisdiction of this Honorable Court, in open violation of the said treaty and the articles thereof, excited, persuaded, and stirred up the Shawanese and divers other tribes of Indians to make war upon the said United States of America and the Commonwealth of Virginia, and gave them, the said Indians, aid in the prosecution of the said war and furnished them with arms and ammunition for the purpose of enabling them to prosecute the same. And his said Britannic Page 3 U. S. 206 Majesty hath not, with all convenient speed and without causing any destruction or carrying away any negroes or other property of the American inhabitants, withdrawn all his armies, garrisons and fleets from the said United States and from every port and place within the same, but hath carried away five thousand negroes, the property of American inhabitants, on 4 September, 1783, from New York, to-wit, in the Commonwealth of Virginia, and within the jurisdiction of the court, and hath refused to withdraw with all convenient speed his armies and garrisons from the United States and from every post and place within the same, but hath, with force and violence and in open violation of the said Treaty of Peace, on the said 3 September, 1783, and since maintained his armies and garrisons in the forts of Niagara and Detroit, which are posts and places within the United States, and still doth maintain his armies and garrisons within the said forts; and the defendants further say that the debt in the declaration mentioned, or so much thereof as is equal to the sum of �933 14s., was not a bona fide debt due and owing to the plaintiff, on the said 3 September, 1783, because the defendant had, on the ___ day of 1780, in Virginia as aforesaid, paid in part thereof, the sum of $311 1/9, and afterwards obtained a certificate therefor, according to the act of the general assembly entitled" "An act for sequestering British property, enabling those indebted to British subjects to pay off such debts, and directing the proceedings in suits where such subjects are parties," "which payment was made while the said act continued in full force, without that the said Treaty of Peace and the Constitution of the United States entitle the said plaintiff to maintain his said action against the said defendants, for so much of the said debt in the declaration mentioned as is equal to �933 14s., and this they are ready to verify. Wherefore they pray the judgment of the court whether the plaintiff ought to have or maintain his action aforesaid, against them, for so much of the debt in the declaration mentioned, as is equal to the said sum of �933 14s." The defendants joined issue on the demurrer to the 3rd, 4th, and 5th pleas in bar. And the plaintiff having demurred to the defendants rejoinder to the second replication, issue was thereupon likewise joined. On the demurrer to the defendant's rejoinder to the plaintiff's replication to the second plea, judgment was given by the circuit court, for the defendants, and that as to so much of the debt in the declaration mentioned, as is in the said second plea set forth, the plaintiff take nothing by his bill. On which judgment, the present writ of error was brought, but on Page 3 U. S. 207 demurrer to the 3rd, 4th, and 5th pleas, judgment was given for the plaintiff; a venire was awarded to try the issue in fact on the first plea of payment, and on the trial, a verdict and judgment were given for the plaintiff for $596, with interest at 5 percent from 7 July, 1782, and costs. On the return of the record, the error assigned was that judgment had been given for the defendants, instead of being given for the plaintiff, upon his demurrer to their rejoinder to the replication to the second plea. In nullo est erratum was pleaded, and thereupon issue was joined. The general question was whether, by paying a debt due before the war from an American citizen to British subjects into the loan office of Virginia in pursuance of the law of that state, the debtor was discharged from his creditor? Page 3 U. S. 220 The Court, after great consideration, delivered its opinions seriatim, as follow: CHASE, JUSTICE. The defendants in error, on the __ day of July, 1774, passed their penal bond to Farrell & Jones for the payment of �2,976 11s. 6p. of good British money, but the condition of the bond, or the time of payment, does not appear on the record. On 20 October, 1777, the Legislature of the Commonwealth of Virginia, passed a law to sequester British property. In the third section of the law it was enacted "That it should be lawful for any citizen of Virginia owing money to a subject of Great Britain to pay the same or any part thereof from time to time as he should think fit into the loan office, taking thereout a certificate for the same in the name of the creditor, with an endorsement, under the hand of the commissioner of the said office, expressing the name of the payer, and Page 3 U. S. 221 shall deliver such certificate to the governor and the council, whose receipt shall discharge him from so much of the debt. And the governor and the council shall in like manner lay before the general assembly once in every year an account of these certificates, specifying the names of the persons by and for whom they were paid, and shall see to the safekeeping of the same, subject to the future directions of the legislature, provided that the governor and the council may make such allowance as they shall think reasonable out of the interest of the money so paid into the loan office to the wives and children, residing in the state of such creditor." On 26 April, 1780, the defendants in error paid into the loan office of Virginia part of their debt, to-wit, $3,111 1/9, equal to �933 14s. Virginia currency, and obtained a certificate from the commissioners of the loan office and a receipt from the Governor and the Council of Virginia, agreeably to the above, in part recited law. The defendants in error, being sued on the above bond in the Circuit Court of Virginia, pleaded the above law and the payment above stated in bar of so much of the plaintiff's debt. The plaintiff, to avoid this bar, replied the fourth article of the Definitive Treaty of Peace, between Great Britain and the United States, of 3 September, 1783. To this replication there was a general demurrer and joinder. The circuit court allowed the demurrer, and the plaintiff brought the present writ of error. The case is of very great importance, not only from the property that depends on the decision but because the effect and operation of the treaty are necessarily involved. I wished to decline sitting in the cause, as I had been counsel, some years ago, in a suit in Maryland in favor of American debtors, and I consulted with my brethren, who unanimously advised me not to withdraw from the bench. I have endeavored to divest myself of all former prejudices and to form an opinion with impartiality. I have diligently attended to the arguments of the learned counsel, who debated the several questions that were made in the cause with great legal abilities, ingenuity, and skill. I have given the subject, since the argument, my deliberate investigation, and shall, as briefly as the case will permit, deliver the result of it with great diffidence and the highest respect for those who entertain a different opinion. I solicit and I hope I shall meet with a candid allowance for the many imperfections which may be discovered in observations hastily drawn up, in the intervals of attendance in court and the consideration of other very important cases. The first point raised by the counsel for the plaintiff in error was "that the Legislature of Virginia had no right to make Page 3 U. S. 222 the law of 20 October, 1777, above in part recited." If this objection is established, the judgment of the circuit court must be reversed because it destroys the defendants plea in bar and leaves him without defense to the plaintiff's action. This objection was maintained on different grounds by the plaintiff's counsel. One of them (Mr. Tilghman) contended, that the Legislature of Virginia had no right to confiscate any British property, because Virginia was part of the dismembered empire of Great Britain, and the plaintiff and defendants were, all of them, members of the British nation when the debt was contracted, and therefore that the laws of independent nations do not apply to the case, and if applicable, that the Legislature of Virginia was not justified by the modern law and practice of European nations in confiscating private debts. In support of this opinion he cited Vattel Lib. 3, c. 5, s. 77, who expresses himself thus: "The sovereign has naturally the same right over what his subjects may be indebted to enemies. Therefore he may confiscate debts of this nature if the term of payment happen in the time of war. But at present, in regard to the advantage and safety of commerce, all the sovereigns of Europe have departed from this 'rigor', and as this custom has been generally received, he who should act contrary to it would injure the public faith, for strangers trusted his subjects only from a firm persuasion that the general custom would be observed." The other counsel for the plaintiff in error (Mr. Lewis) denied any power in the Virginia Legislature to confiscate any British property because all such power belonged exclusively to Congress, and he contended that if Virginia had a power of confiscation, yet it did not extend to the confiscation of debts by the modern law and practice of nations. I would premise that this objection against the right of the Virginia Legislature to confiscate British property (and especially debts) is made on the part of British subjects and after the treaty of peace, and not by the government of the United States. I would also remark that the law of Virginia was made after the declaration of independence by Virginia, and also by Congress, and several years before the Confederation of the United States, which, although agreed to by Congress on 15 November, 1777, and assented to by ten states in 1778, was only finally completed and ratified on 1 March, 1781. I am of opinion that the exclusive right of confiscating, during the war, all and every species of British property within the territorial limits of Virginia resided only in the legislature of that commonwealth. I shall hereafter consider whether the law of the 20th of October 1777, operated to confiscate or extinguish Page 3 U. S. 223 British debts contracted before the war. It is worthy of remembrance that delegates and representatives were elected, by the people of the several counties and corporations of Virginia to meet in general convention for the purpose of framing a new government by the authority of the people only, and that the said convention met on 6 May and continued in session until 5 July, 1776, and in virtue of their delegated power, established a constitution or form of government to regulate and determine by whom and in what manner the authority of the people of Virginia was thereafter to be executed. As the people of that country were the genuine source and fountain of all power that could be rightfully exercised within its limits, they had therefore an unquestionable right to grant it to whom they pleased and under what restrictions or limitations they thought proper. The people of Virginia, by their constitution or fundamental law, granted and delegated all their supreme civil power to a legislature, and executive, and a judiciary -- the first to make, the second to execute, and the last to declare or expound the laws of the commonwealth. This abolition of the old government and this establishment of a new one was the highest act of power that any people can exercise. From the moment the people of Virginia exercised this power, all dependence on and connection with Great Britain absolutely and forever ceased, and no formal declaration of independence was necessary, although a decent respect for the opinions of mankind required a declaration of the causes which impelled the separation, and was proper to give notice of the event to the nations of Europe. I hold it as unquestionable that the Legislature of Virginia established, as I have stated, by the authority of the people was forever thereafter invested with the supreme and sovereign power of the state and with authority to make any laws in their discretion, to affect the lives, liberties, and property of all the citizens of that commonwealth, with this exception only -- that such laws should not be repugnant to the Constitution, or fundamental law, which could be subject only to the control of the body of the nation, in cases not to be defined and which will always provide for themselves. The legislative power of every nation can only be restrained by its own constitution, and it is the duty of its courts of justice not to question the validity of any law made in pursuance of the Constitution. There is no question but the Act of the Virginia Legislature of 20 October, 1777, was within the authority granted to them by the people of that country, and this being admitted, it is a necessary result that the law is obligatory on the courts of Virginia, and, in my opinion, on the courts of the United States. If Virginia as a sovereign state, violated the ancient or modern Page 3 U. S. 224 law of nations in making the law of 29 October 1777, she was answerable in her political capacity to the British nation, whose subjects have been injured in consequence of that law. Suppose a general right to confiscate British property is admitted to be in Congress, and Congress had confiscated all British property within the United States, including private debts; would it be permitted to contend in any court of the United States that Congress had no power to confiscate such debts by the modern law of nations? If the right is conceded to be in Congress, it necessarily follows that it is the judge of the exercise of the right, as to the extent, mode, and manner. The same reasoning is strictly applicable to Virginia, is considered a sovereign nation, provided it had not delegated such power to Congress before the making of the law of October, 1777, which I will hereafter consider. In June, 1776, the Convention of Virginia formally declared that Virginia was a free, sovereign, and independent state, and on 4 July, 1776, following, the United States, in Congress assembled, declared the Thirteen United Colonies free and independent states, and that as such they had full power to levy war, conclude peace, etc. I consider this as a declaration not that the United Colonies jointly, in a collective capacity, were independent states, etc., but that each of them was a sovereign and independent state -- that is, that each of them had a right to govern itself by its own authority and its own laws, without any control from any other power upon earth. Before these solemn acts of separation from the Crown of Great Britain, the war between Great Britain and the United Colonies, jointly and separately, was a civil war; but instantly on that great and ever memorable event, the war changed its nature and became a public war between independent governments, and immediately thereupon all the rights of public war (and all the other rights of an independent nation) attached to the government of Virginia, and all the former political connection between Great Britain and Virginia, and also between their respective subjects, were totally dissolved, and not only the two nations, but all the subjects of each, were in a state of war, precisely as in the present war between Great Britain and France. Vatt. Lib. 3, c.18; s. 292-295; lib. 3., c. 5, s.70, 72 and 73. From 4 July, 1776, the American states were de facto, as well as de jure in the possession and actual exercise of all the rights of independent governments. On 6 February, 1778, the King of France entered into a treaty of alliance with the United States, and on 8 Oct., 1782, a Treaty of Amity and Commerce was concluded between the United States and the States General of the United Provinces. I have ever Page 3 U. S. 225 considered it as the established doctrine of the United States that its independence originated from and commenced with the declaration of Congress on 4 July, 1776, and that no other period can be fixed on for its commencement, and that all laws made by the legislatures of the several states after the Declaration of Independence were the laws of sovereign and independent governments. That Virginia was part of the dismembered British empire can, in my judgment, make no difference in the case. No such distinction is taken by Vattel (or any other writer), but Vattel, when considering the rights of war between two parties absolutely independent, and no longer acknowledging a common superior (precisely the case in question), thus expresses himself, Lib. 3, c. 18, s. 295. "In such case, the state is dissolved and the war between the two parties in every respect is the same with that of a public war between two different nations." And Vattel denies that subjects can acquire property in things taken during a civil war. That the creditor and debtor were members of the same empire when the debt was contracted cannot (in my opinion) distinguish the case for the same reasons. A most arbitrary claim was made by the Parliament of Great Britain to make laws to bind the people of America in all cases whatsoever, and the King of Great Britain, with the approbation of Parliament, employed not only the national forces, but hired foreign mercenaries to compel submission to this absurd claim of omnipotent power. The resistance against this claim was just, and independence became necessary, and the people of the United States announced to the people of Great Britain "that they would hold them, as the rest of mankind, enemies in war, in peace, friends." On the declaration of independence, it was in the option of any subject of Great Britain to join their brethren in America or to remain subjects of Great Britain. Those who joined us were entitled to all the benefits of our freedom and independence, but those who elected to continue subjects of Great Britain exposed themselves to any loss that might arise therefrom. By their adhering to the enemies of the United States, they voluntarily became parties to the injustice and oppression of the British government, and they also contributed to carry on the war and to enslave their former fellow citizens. As members of the British government, from their own choice, they became personally answerable for the conduct of that government, of which they remained a part, and their property, wherever found (on land or water) became liable to confiscation. On this ground, Congress, on 24 of July, 1776, confiscated any British property taken on the seas. See 2 Ruth.Inst., lib. 2, c.9, s.13, p. 531-559; Vatt. Page 3 U. S. 226 lib. 2, c.7, s.81, &c.; 18, s. 344; lib. 3, c. 5, s.74, &c., 9, s. 161 & 193. The British creditor, by the conduct of his sovereign, became an enemy to the Commonwealth of Virginia, and thereby his debt was forfeitable to that government as a compensation for the damages of an unjust war. It appears to me that every nation at war with another is justifiable, by the general and strict law of nations, to seize and confiscate all moveable property of its enemy (of any kind or nature whatsoever) wherever found, whether within its territory or not. Bynkershoek, Q. 1, P. de rebus bellicis, Lib. 1, c. 7, 175, thus delivers his opinion. " Cum ea sit belli conditiout hostes sint, omni jure, spoliati proscriptique, rationis est, quascunque res hostium, apud hostes inventas, Dominum mutare, et Fisco cedere. Since it is a condition of war that enemies, by every right, may be plundered and seized upon, it is reasonable that whatever effects of the enemy are found with us who are his enemy should change their master and be confiscated or go into the treasury." S.P. Lee on Capt., c. 8., p. 111; S.P. 2 Burn., p. 209, s.12, p.219; s. 2, p. 221, s.11. Bynkershoek, the same book and chapter, page 177, thus expresses himself: "Quod dixi de actionibus recte publicandis ita demum obtinet. Si quod subditi nostri hostibus nostris debent, princeps a subditis juis, revera exegerit. Si exegerit recte solutum est, si non exegerit, pace facta, reviviscit jus pristinum creditoris; quia occupatio, quae bello fit, magis in facto, quam in potestate juris consistit. Nomina igitur, non exacta, tempore belli quodammodo intermori videntur, sed per pacem, genere quodam postliminii, ad priorem dominum reverti. Secundum haec inter gentes fere convenit ut nominibus bello publicatis, pace deinde facta, exasta censeantur periisse, et maneant extincta; non autem exacta reviviscant, et restituantur veris creditoribus." "What I have said of things in action being rightfully confiscated holds thus: if the prince truly exacts from his subjects what they owed to the enemy; if he shall have exacted it, it is rightfully paid, if he shall not have exacted it, peace being made, the former right of the creditor revives, because the seizure which is made during war consists more in fact than in right. Debts, therefore, not exacted seem as it were to be forgotten in time of war, but upon peace, by a kind of postliminy, return to their former proprietor. Accordingly, it is for the most part agreed among nations that things in action, being confiscated in war, the peace being made, those which were paid are deemed to have perished, and remain extinct; but those not paid revive, and are restored to their true creditors. Vatt. lib. 4, s. 22. S.P. Lee on Capt., c. 8, p 118. " Page 3 U. S. 227 That this is the law of nations as held in Great Britain appears from Sir Thomas Parker, p. 267 (II William 3rd), in which it was determined that choses in action belonging to an alien enemy are forfeitable to the Crown of Great Britain, but there must be a commission and inquisition to entitle the Crown, and if peace is concluded before inquisition taken, it discharges the cause of forfeiture. The right to confiscate the property of enemies during war is derived from a state of war, and is called the rights of war. This right originates from self-preservation, and is adopted as one of the means to weaken an enemy and to strengthen ourselves. Justice also is another pillar on which it may rest, to-wit, a right to reimburse the expense of an unjust war. Vatt. lib. 3, c.8, s. 138 &c.; 9, s. 161. But it is said if Virginia had a right to confiscate British property, yet by the modern law and practice of European nations she was not justified in confiscating debts due from her citizens to subjects of Great Britain -- that is, private debts. Vattel is the only author relied on (or that can be found) to maintain the distinction between confiscating private debts and other property of an enemy. He admits the right to confiscate such debts if the term of payment happen in the time of war, but this limitation on the right is nowhere else to be found. His opinion alone will not be sufficient to restrict the right to that case only. It does not appear in the present case whether the time of payment happened before or during the war. If this restriction is just, the plaintiff ought to have shown the fact. Vattel adds, "at present, in regard to the advantages and safety of commerce, all the sovereigns of Europe have departed from this 'rigor,' and this custom has been generally received, and he who should act contrary to it (the custom) would injure the public faith." From these expressions it may be fairly inferred that, by the "rigor" of the law of nations, private debts to enemies might be confiscated, as well as any other of their property, but that a general custom had prevailed in Europe to the contrary, founded on commercial reasons. The law of nations may be considered of three kinds -- to-wit, general, conventional, or customary. The first is universal, or established by the general consent of mankind, and binds all nations. The second is founded on express consent, and is not universal, and only binds those nations that have assented to it. The third is founded on tacit consent, and is only obligatory on those nations which have adopted it. The relaxation or departure from the strict rights of war to confiscate private debts by the commercial nations of Europe was not binding on the State of Virginia, because founded on custom only, and she was at liberty to reject or adopt the custom as she pleased. Page 3 U. S. 228 The conduct of nations at war is generally governed and limited by their exigencies and necessities. Great Britain could not claim from the United States, or any of them, any relaxation of the general law of nations during the late war, because she did not consider it as a civil war, and much less as a public war, but she gave it the odious name of rebellion; and she refused to the citizens of the United States the strict rights of ordinary war. It cannot be forgotten that the Parliament of Great Britain, by statute (16 Geo. III, c. 5, in 1776) declared that the vessels and cargoes belonging to the people of Virginia and the twelve other colonies found and taken on the high seas should be liable to seizure and confiscation as the property of open enemies, and that the mariners and crews should be taken and considered as having voluntarily entered into the service of the King of Great Britain, and that the killing and destroying the persons and property of the Americans, before the passing this act, was just and lawful. And it is well known that in consequence of this statute, very considerable property of the citizens of Virginia was seized on the high seas and confiscated, and that other considerable property found within that commonwealth was seized and applied to the use of the British army or navy. Vattel lib. 3, c.12, sec. 191, says, and reason confirms his opinion, "That whatever is lawful for one nation to do, in time of war is lawful for the other." The law of nations is part of the municipal law of Great Britain, and by her laws all moveable property of enemies found within the kingdom is considered as forfeited to the Crown, as the head of the nation, but if no inquisition is taken to ascertain the owners to be alien enemies before peace takes place, the cause of forfeiture is discharged by the peace ipso facto. Sir Thomas Parker, p. 267. This doctrine agrees with Bynk. lib. 1, c. 7, p. 177, and Lee on Capt., ch. 8, p. 118, that debts not confiscated and paid revive on peace. Lee says, "Debts, therefore, which are not taken hold of seem, as it were, suspended and forgotten in time of war, but by a peace return to their former proprietor by a kind of postliminy." Mr. Lee, who wrote since Vattel, differs from him in opinion that private debts are not confiscable, p. 114. He thus delivers himself: "By the law of nations, rights and credits are not less in our power than other goods; why, therefore, should we regard the rights of war in regard to one and not as to the other? And when nothing occurs which gives room for a proper distinction, the general law of nations ought to prevail." He gives many examples of confiscating debts, and concludes (p. 119) "All which prove that not only actions, but all Page 3 U. S. 229 other things whatsoever, are forfeited in time of war, and are often exacted." Great Britain does not consider herself bound to depart from the rigor of the general law of nations because the commercial powers of Europe wish to adopt a more liberal practice. It may be recollected that it is an established principle of the law of nations "that the goods of a friend are free in an enemy's vessel, and an enemy's goods lawful prize in the vessel of a friend." This may be called the general law of nations. In 1780, the Empress of Russia proposed a relaxation of this rigor of the laws of nations, "That all the effects belonging to the subjects of the belligerent powers shall be free on board neutral vessels except only contraband articles." This proposal was acceded to by the neutral powers of Sweden, Denmark, the States General of the United Provinces, Prussia, and Portugal; France and Spain, two of the powers at war, did not oppose the principle, and Great Britain only declined to adopt it, and she still adheres to the rigorous principle of the law of nations. Can this conduct of Great Britain be objected to her as an uncivilized and barbarous practice? The confiscating private debts by Virginia has been branded with those terms of reproach, and very improperly, in my opinion. It is admitted that Virginia could not confiscate private debts without a violation of the modern law of nations; yet if in fact she has so done, the law is obligatory on all the citizens of Virginia and on her courts of justice, and in my opinion on all the courts of the United States. If Virginia by such conduct violated the law of nations, she was answerable to Great Britain, and such injury could only be redressed in the treaty of peace. Before the establishment of the national government, British debts could only be sued for in the state court. This alone proves that the several states possessed a power over debts. If the Crown of Great Britain had, according to the mode of proceeding in that country, confiscated or forfeited American debts, would it have been permitted in any of the courts of Westminster Hall to have denied the right of the Crown and that its power was restrained by the modern law of nations? Would it not have been answered that the British nation was to justify her own conduct, but that her courts were to obey her laws. It appears to me that there is another and conclusive ground which effectually precluded any objection, since the peace, on the part of Great Britain, as a nation, or on the part of any of her subjects, against the right of Virginia to confiscate British debts or any other British property during the war, even on the admission that such confiscation was in violation of the ancient or modern law of nations. Page 3 U. S. 230 If the Legislature of Virginia confiscated or extinguished the debt in question by the law of 20 October, 1777, as the defendants in error contend, this confiscation or extinguishment took place in 1777, flagrante bello, and the definitive treaty of peace was ratified in 1783. What effects flow from a treaty of peace, even if the confiscation or extinguishment of the debt was contrary to the law of nations and the stipulation in the 4th article of the treaty does not provide for the recovery of the debt in question? I apprehend that the treaty of peace abolishes the subject of the war, and that after peace is concluded, neither the matter in dispute nor the conduct of either party during the war can ever be revived or brought into contest again. All violences, injuries, or damages sustained by the government or people of either during the war are buried in oblivion, and all those things are implied by the very treaty of peace, and therefore not necessary to be expressed. Hence it follows that the restitution of or compensation for British property confiscated or extinguished during the war by any of the United States could only be provided for by the treaty of peace, and if there had been no provision respecting these subjects in the treaty, they could not be agitated after the treaty by the British government, much less by her subjects in courts of justice. If a nation, during a war, conducts itself contrary to the law of nations and no notice is taken of such conduct in the treaty of peace, it is thereby so far considered lawful as never afterwards to be revived or to be a subject of complaint. Vattel lib. 4, sec. 21, 121, says "The state of things at the instant of the treaty is held to be legitimate, and any change to be made in it requires an express specification in the treaty; consequently all things not mentioned in the treaty are to remain as they were at the conclusion of it. All the damages caused during the war are likewise buried in oblivion, and no plea is allowable for those the reparation of which is not mentioned in the treaty. They are looked on as if they had never happened." The same principle applies to injuries done by one nation to another on occasion of and during the war. See Grotius, lib. 3, c. 8, sec. 4. The Baron De Wolfuis, p. 1222, says, "De quibus nihil dictum ca manent quo sunt loco." Things of which nothing is said remain in the state in which they are. It is the opinion of the celebrated and judicious Doctor Rutherforth that a nation in a just war may seize upon any moveable goods of an enemy (and he makes no distinction as to private debts), but that whilst the war continues, the nation has, of right, nothing but the custody of the goods taken, and Page 3 U. S. 231 if the nation has granted to private captors (as privateers) the property of goods taken by them, and on peace restitution is agreed on, that the nation is obliged to make restitution, and not the private captors, and if on peace no restitution is stipulated, that the full property of moveable goods taken from the enemy during the war passes, by tacit consent, to the nation that takes them. This I collect as the substance of his opinion in lib. 2, c. 9, from pp. 558-573. I shall conclude my observations on the right of Virginia to confiscate any British property by remarking that the validity of such a law would not be questioned in the Court of Chancery of Great Britain, and I confess the doctrine seemed strange to me in an American court of justice. In the case of Wright v. Nutt, Lord Chancellor Thurlow declared that he considered an act of the State of Georgia, passed in 1782, for the confiscation of the real and personal estate of Sir James Wright and also his debts as a law of an independent country, and concluded with the following observation, that the law of every country must be equally regarded in the courts of justice of Great Britain, whether the law was a barbarous or civilized institution or wise or foolish. H. Black, p. 149. In the case of Folliot v. Ogden, Lord Loughborough, Chief Justice of the Court of Common Pleas, in delivering the judgment of the court, declared "That the act of the State of New York, passed in 1779, for attainting, forfeiting, and confiscating the real and personal estate of Folliott, the plaintiff, was certainly of as full validity as the act of any independent state. H. Black, p. 135." On a writ of error, Lord Kenyon, Chief Justice of the Court of King's Bench, and Judge Grose delivered direct contrary sentiments, but Judges Asburst and Buller were silent. 3 Term 726. From these observations and the authority of Bynkersboek, Lee, Burlamaque, and Rutherforth I conclude that Virginia had a right, as a sovereign and independent nation, to confiscate any British property within its territory unless she had before delegated that power to Congress, which Mr. Lewis contended she had done. The proof of the allegation that Virginia had transferred this authority to Congress lies on those who make it, because if she had parted with such power, it must be conceded that she once rightfully possessed it. It has been inquired what powers Congress possessed from the first meeting in September, 1774, until the ratification of the Articles of Confederation on 1 March, 1781? It appears to me that the powers of Congress during that whole period were derived from the people they represented, expressly given, through the medium of their state conventions or state legislatures, or that after they were exercised, they were Page 3 U. S. 232 impliedly ratified by the acquiescence and obedience of the people. After the confederacy was completed, the powers of Congress rested on the authority of the state legislatures and the implied ratifications of the people, and was a government over governments. The powers of Congress originated from necessity, and arose out of, and were only limited by, events, or in other words they were revolutionary in their very nature. Their extent depended on the exigencies and necessities of public affairs. It was absolutely and indispensably necessary that Congress should possess the power of conducting the war against Great Britain, and therefore if not expressly given by all (as it was by some of the states), I do not hesitate to say that Congress did rightfully possess such power. The authority to make war of necessity implies the power to make peace, or the war must be perpetual. I entertain this general idea -- that the several states retained all internal sovereignty, and that Congress properly possessed the great rights of external sovereignty -- Among others, the right to make treaties of commerce and alliance, as with France on 6 February 1778. In deciding on the powers of Congress and of the several states before the confederation, I see but one safe rule -- namely that all the powers actually exercised by Congress before that period were rightfully exercised, on the presumption not to be controverted, that they were so authorized by the people they represented by an express, or implied grant, and that all the powers exercised by the state conventions or state legislatures were also rightfully exercised on the same presumption of authority from the people. That Congress did not possess all the powers of war is self-evident from this consideration alone that she never attempted to lay any kind of tax on the people of the United States, but relied altogether on the state legislatures to impose taxes, to raise money to carry on the war, and to sink the emissions of all the paper money issued by Congress. It was expressly provided in the 8th article of the confederation that "All charges of war (and all other expenses for the common defense and general welfare) and allowed by Congress shall be defrayed out of a common treasury, to be supplied by the several states in proportion to the value of the land in each state, and the taxes for paying the said proportion shall be levied by the legislatures of the several states." In every free country the power of laying taxes is considered a legislative power over the property and persons of the citizens, and this power the people of the United States granted to their state legislatures, and they neither could nor did transfer it to Congress, but on the contrary they expressly stipulated that it should remain with them. It is an incontrovertible fact that Congress never attempted to confiscate Page 3 U. S. 233 any kind of British property within the United States (except what their army, or vessels of war captured), and thence I conclude that Congress did not conceive the power was vested in it. Some of the states did exercise this power, and thence I infer they possessed it. On 23 March, 3 April, and 24 July, 1776, Congress confiscated British property, taken on the high seas. See the Ordinance of 30 November, 1781. See also the Resolution of 23 November, 1781, in which Congress recommended to the states to pass laws to punish infractions of the law of nations. The second point made by the counsel for the plaintiff in error was "if the Legislature of Virginia had a right to confiscate British debts, yet it did not exercise that right by the act of 20 October, 1777." If this objection is well founded, the plaintiff in error must have judgment for the money covered by the plea of that law and the payment under it. The preamble recites that the public faith and the law and the usage of nations require that debts incurred during the connection with Great Britain should not be confiscated. No language can possibly be stronger to express the opinion of the Legislature of Virginia that British debts ought not to be confiscated, and if the words or effect and operation of the enacting clause are ambiguous or doubtful, such construction should be made as not to extend the provisions in the enacting clause beyond the intention of the legislature so clearly expressed in the preamble; but if the words in the enacting clause in their nature, import, and common understanding are not ambiguous, but plain and clear, and their operation and effect certain, there is no room for construction. It is not an uncommon case for a legislature in a preamble to declare its intention to provide for certain cases or to punish certain offenses, and in enacting clauses to include other cases and other offenses. But I believe very few instances can be found in which the legislature declared that a thing ought not to be done and afterwards did the very thing it reprobated. There can be no doubt that strong words in the enacting part of a law may extend it beyond the preamble. If the preamble is contradicted by the enacting clause as to the intention of the legislature, it must prevail on the principle that the legislature changed its intention. I am of opinion that the law of 20 October, 1777, and the payment in virtue thereof, amounts either to a confiscation or extinguishment of so much of the debt as was paid into the loan office of Virginia. 1st. The law makes it lawful for a citizen of Virginia indebted to a subject of Great Britain Page 3 U. S. 234 to pay the whole or any part of his debt into the loan office of that commonwealth. 2nd. It directs the debtor to take a certificate of his payment and to deliver it to the governor and the council, and it declares that the receipt of the governor and the council for the certificate shall discharge him (the debtor) from so much of the debt as he paid into the loan office. 3rd. It enacts that the certificate shall be subject to the future direction of the legislature. And 4th, it provides that the governor and council may make such allowance as they shall think reasonable out of the interest of the money paid to the wives and children residing within the state of such creditor. The payment by the debtor into the loan office is made a lawful act. The public receives the money, and they discharge the debtor and they make the certificate (which is the evidence of the payment) subject to their direction, and they benevolently appropriate part of the money paid, to-wit, the interest of the debt, to such of the family of the creditor as may live within the state. All these acts are plainly a legislative interposition between the creditor and debtor, annihilates the right of the creditor, and is an exercise of the right of ownership over the money, for the giving part to the family of the creditor, under the restriction of being residents of the state, or to a stranger can make no difference. The government of Virginia had precisely the same right to dispose of the whole, as of part of the debt. Whether all these acts amount to a confiscation of the debt or not may be disputed according to the different ideas entertained of the proper meaning of the word "confiscation." I am inclined to think that all these acts, collectively considered, are substantially a confiscation of the debt. The verb "confiscate" is derived from the Latin, con, with, and fiscus, a basket or hamper in which the emperor's treasure was formerly kept. The meaning of the word to "confiscate" is to transfer property from private to public use, or to forfeit property to the prince or state. In the language of Mr. Lee, p. 118, the debt was taken hold of, and this he considers as confiscation. But if, strictly speaking, the debt was not confiscated, yet it certainly was extinguished as between the creditor and debtor; the debt was legally paid, and of consequence extinguished. The state interfered and received the debt and discharged the debtor from his creditor, and not from the state, as suggested. The debtor owed nothing to the State of Virginia, but she had a right to take the debt or not at her pleasure. To say that the discharge was from the state, and not from the debtor, implies that the debtor was under some obligation or duty to pay the state what he owed his British creditor. If the debtor was to remain charged to his creditor notwithstanding his payment, not one farthing would have been Page 3 U. S. 235 paid into the loan office. Such a construction, therefore, is too violent, and not to be admitted. If Virginia had confiscated British debts and received the debt in question, and said nothing more, the debtor would have been discharged by the operation of the law. In the present case, there is an express discharge on payment, certificate, and receipt. It appears to me that the plea by the defendant of the act of assembly and the payment agreeably to its provisions, which is admitted, is a bar to the plaintiff's action for so much of his debt as he paid into the loan office unless the plea is avoided or destroyed by the plaintiff's replication of the fourth article of the Definitive Treaty of Peace between Great Britain and the United States on 3 September, 1783. The question, then, may be stated thus: whether the 4th article of the said treaty nullifies the law of Virginia, passed on 20 October, 1777, destroys the payment made under it, and revives the debt and gives a right of recovery thereof against the original debtor? It was doubted by one of the counsel for the defendants in error (Mr. Marshall) whether Congress had a power to make a treaty that could operate to annul a legislative act of any of the states and to destroy rights acquired by or vested in individuals in virtue of such acts. Another of the defendant's counsel (Mr. Campbell) expressly and with great zeal denied that Congress possessed such power. But a few remarks will be necessary to show the inadmissibility of this objection to the power of Congress. 1st. The legislatures of all the states, have often exercised the power of taking the property of its citizens for the use of the public, but they uniformly compensated the proprietors. The principle to maintain this right is for the public good, and to that the interest of individuals must yield. The instances are many, and among them are lands taken for forts, magazines, or arsenals, or for public roads or canals, or to erect towns. 2nd. The legislatures of all the states have often exercised the power of divesting rights vested, and even of impairing and in some instances of almost annihilating the obligation of contracts, as by tender laws, which made an offer to pay and a refusal to receive paper money for a specie debt, an extinguishment to the amount tendered. 3rd. If the Legislature of Virginia could by a law annul any former law, I apprehend that the effect would be to destroy all rights acquired under the law so nullified. 4th. If the Legislature of Virginia could not by ordinary acts of legislation do these things, yet possessing the supreme sovereign power of the state, she certainly could do them, by a treaty of peace; if she had not parted with the power or making Page 3 U. S. 236 such treaty. If Virginia had such power before she delegated it to Congress, it follows that afterwards, that body possessed it. Whether Virginia parted with the power of making treaties of peace will be seen by a perusal of the ninth article of the Confederation (ratified by all the states on 1 March, 1781), in which it was declared "That the United States in Congress assembled shall have the sole and exclusive right and power of determining on peace, or war, except in the two cases mentioned in the 6th article, and of entering into treaties and alliances, with a proviso, when made, respecting commerce." This grant has no restriction, nor is there any limitation on the power in any part of the confederation. A right to make peace necessarily includes the power of determining on what terms peace shall be made. A power to make treaties must of necessity imply a power to decide the terms on which they shall be made. A war between two nations can only be concluded by treaty. Surely the sacrificing public or private property to obtain peace cannot be the cases in which a treaty would be void. Vatt., lib. 2, c. 12, s. 160, 161, 173; lib. 6, c. 2, s. 2. It seems to me that treaties made by Congress, according to the Confederation, were superior to the laws of the states, because the Confederation made them obligatory on all the states. They were so declared by Congress on 13 April, 1787, were so admitted by the legislatures and executives of most of the states, and were so decided by the judiciary of the general government and by the judiciaries of some of the state governments. If doubts could exist before the establishment of the present national government, they must be entirely removed by the 6th article of the Constitution, which provides "That all treaties made or which shall be made under the authority of the United States shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding." There can be no limitation on the power of the people of the United States. By their authority, the state constitutions were made, and by their authority the Constitution of the United States was established, and they had the power to change or abolish the state constitutions or to make them yield to the general government and to treaties made by their authority. A treaty cannot be the supreme law of the land, that is of all the United States, if any act of a state legislature can stand in its way. If the constitution of a state (which is the fundamental law of the state, and paramount to its legislature) must give way to a treaty and fall before it, can it be questioned whether the less power, an act Page 3 U. S. 237 of the state legislature, must not be prostrate? It is the declared will of the people of the United States that every treaty made by the authority of the United States shall be superior to the constitution and laws of any individual state, and their will alone is to decide. If a law of a state, contrary to a treaty, is not void, but voidable only by a repeal or nullification by a state legislature, this certain consequence follows -- that the will of a small part of the United States may control or defeat the will of the whole. The people of America have been pleased to declare that all treaties made before the establishment of the national Constitution or laws of any of the states contrary to a treaty shall be disregarded. Four things are apparent on a view of this 6th article of the national Constitution. 1st. That it is retrospective, and is to be considered in the same light as if the Constitution had been established before the making of the treaty of 1783. 2d. That the constitution or laws of any of the states, so far as either of them shall be found contrary to that treaty, are by force of the said article prostrated before the treaty. 3rd. That consequently the treaty of 1783 has superior power to the legislature of any state, because no legislature of any state has any kind of power over the Constitution, which was its creator. 4th. That it is the declared duty of the state judges to determine any constitution or laws of any state contrary to that treaty (or any other) made under the authority of the United States null and void. national or federal judges are bound by duty and oath to the same conduct. The argument that Congress had not power to make the fourth article of the treaty of peace, if its intent and operation was to annul the laws of any of the states, and to destroy vested rights (which the plaintiff's Council contended to be the object and effect of the fourth article) was unnecessary, but on the supposition that this Court possess a power to decide whether this article of the treaty is within the authority delegated to that body by the Articles of Confederation. Whether this Court constitutionally possess such a power is not necessary now to determine, because I am fully satisfied that Congress was invested with the authority to make the stipulation in the fourth article. If the Court possess a power to declare treaties void, I shall never exercise it but in a very clear case indeed. One further remark will show how very circumspect the Court ought to be before it would decide against the right of Congress to make the stipulation objected to. If Congress had no Page 3 U. S. 238 power (under the confederation) to make the fourth article of the treaty, and for want of power that article is void, would it not be in the option of the Crown of Great Britain to say whether the other articles in the same treaty shall be obligatory on the British nation? I will now proceed to the consideration of the treaty of 1783. It is evident on a perusal of it what were the great and principal objects in view by both parties. There were four on the part of the United States, to-wit, 1st, an acknowledgment of its independence by the Crown of Great Britain; 2d, a settlement of its western bounds; 3d, the right of fishery, and 4th, the free navigation of the Mississippi. There were three on the part of Great Britain, to-wit, 1st, a recovery by British merchants of the value in sterling money of debts contracted by the citizens of America before the treaty; 2d, restitution of the confiscated property of real British subjects and of persons residents in districts in possession of the British forces, and who had not borne arms against the United States, and a conditional restoration of the confiscated property of all other persons, and 3rd, a prohibition of all future confiscations and prosecutions. The following facts were of the most public notoriety at the time when the treaty was made, and therefore must have been very well known to the gentlemen who assented to it. 1st, that British debts, to a great amount, had been paid into some of the state treasuries or loan offices in paper money of very little value, either under laws confiscating debts or under laws authorizing payment of such debts in paper money, and discharging the debtors; 2d, that tender laws had existed in all the states, and that by some of those laws a tender and a refusal to accept by principal or factor was declared an extinguishment of the debt. From the knowledge that such laws had existed there was good reason to fear that similar laws, with the same or less consequences, might be again made (and the fact really happened), and prudence required to guard the British creditor against them; 3, that in some of the states, property of any kind might be paid at an appraisement in discharge of any execution; 4th, that laws were in force in some of the states at the time of the treaty which prevented suits by British creditors; 5th, that laws were in force in other of the states at the time of the treaty to prevent suits by any person for a limited time. All these laws created legal impediments of one kind or another to the recovery of many British debts contracted before the war, and in many cases compelled the receipt of property instead of gold and silver. To secure the recovery of British debts, it was by the latter part of the 5th article agreed as follows: "That all persons Page 3 U. S. 239 who have any interest in confiscated lands by debts should meet with no lawful impediment in the prosecution of their just rights." This provision clearly relates to debts secured by mortgages on lands in fee simple which were afterwards confiscated, or to debts on judgments which were a lien on lands, which also were afterwards confiscated, and where such debts on mortgages, or judgments had been paid into the state treasuries and the debtors discharged. This stipulation was absolutely necessary if such debts were intended to be paid. The pledge, or security by lien, had been confiscated and sold. British subjects, being aliens, could neither recover the possession of lands by ejectment nor foreclose the equity of redemption, nor could they claim the money secured by a mortgage or have the benefit of a lien from a judgment if the debtor had paid his debt into the treasury and been discharged. If a British subject in either of those cases prosecuted his just right, it could only be in a court of justice, and if any of the above causes were set up as a lawful impediment, the courts were bound to decide whether this article of the treaty nullified the laws confiscating the lands and also the purchases made under them or the laws authorizing payment of such debts to the state, or whether aliens were enabled by this article to hold lands mortgaged to them before the war. In all these cases it seems to me that the courts in which the cases arose were the only proper authority to decide whether the case was within this article of the treaty and the operation and effect of it. One instance among many will illustrate my meaning. Suppose a mortgagor paid the mortgage money into the public treasury, and afterwards sold the land, would not the British creditor, under this article, be entitled to a remedy against the mortgaged lands? The fourth article of the treaty is in these words: "It is agreed that creditors on either side shall meet with no lawful impediment to the recovery of the full value, in sterling money, of all bona fide debts heretofore contracted." Before I consider this article of the treaty, I will adopt the following remarks, which I think applicable and which may be found in Dr. Rutherforth and Vattel. 2 Ruth. 307 to 315; Vattel, lib. 2, c. 17, s. 263, 271. The intention of the framers of the treaty must be collected from a view of the whole instrument, and from the words made use of by them to express their intention or from probable or rational conjectures. If the words express the meaning of the parties plainly, distinctly and perfectly, there ought to be no other means of interpretation; but if the words are obscure or ambiguous or imperfect, recourse must be had to other means of interpretation, and in these three cases we must collect the meaning from the words Page 3 U. S. 240 or from probable or rational conjectures, or from both. When we collect the intention from the words only, as they lie in the writing before us, it is a literal interpretation, and indeed if the words and the construction of a writing are clear and precise, we can scarce call it interpretation to collect the intention of the writer from thence. The principal rule to be observed in literal interpretation is to follow that sense, in respect both of the words and the construction which is agreeable to common use. If the recovery of the present debt is not within the clear and manifest intention and letter of the fourth article of the treaty, and if it was not intended by it to annul the law of Virginia mentioned in the plea and to destroy the payment under it and to revive the right of the creditor against his original debtor, and if the treaty cannot effect all these things, I think the Court ought to determine in favor of the defendants in error. Under this impression, it is altogether unnecessary to notice the several rules laid down by the counsel for the defendants in error for the construction of the treaty. I will examine the fourth article of the treaty in its several parts, and endeavor to affix the plain and natural meaning of each part. To take the fourth article in order as it stands. 1st. "It is agreed" -- that is, it is expressly contracted, and it appears from what follows that certain things shall not take place. This stipulation is direct. The distinction is self-evident between a thing that shall not happen and an agreement that a third power shall prevent a certain thing being done. The first is obligatory on the parties contracting. The latter will depend on the will of another, and although the parties contracting had power to lay him under a moral obligation for compliance, yet there is a very great difference in the two cases. This diversity appears in the treaty. 2nd. "That creditors on either side," without doubt meaning British and American creditors. 3rd. "Shall meet with no lawful impediment" -- that is, with no obstacle (or bar) arising from the common law, or acts of Parliament, or acts of Congress, or acts of any of the states, then in existence or thereafter to be made, that would, in any manner, operate to prevent the recovery of such debts, as the treaty contemplated. A lawful impediment to prevent a recovery of a debt can only be matter of law pleaded in bar to the action. If the word "lawful" had been omitted, the impediment would not be confined to matter of law. The prohibition that no lawful impediment shall be interposed is the same as that all lawful impediments shall be removed. The meaning cannot be satisfied by the removal of one impediment and leaving another, and a Page 3 U. S. 241 fortiori by taking away the less and leaving the greater. These words have both a retrospective and future aspect. 4th. "To the recovery" -- that is, to the right of action, judgment, and execution, and receipt of the money, without impediments in courts of justice, which could only be by plea (as in the present case) or by proceedings after judgment to compel receipt of paper money or property instead of sterling money. The word "recovery" is very comprehensive, and operates in the present case to give remedy from the commencement of suit to the receipt of the money. 5th. "In the full value in sterling money" -- that is, British creditors shall not be obliged to receive paper money, or property at a valuation, or anything else but the full value of their debts according to the exchange with Great Britain. This provision is clearly restricted to British debts contracted before the treaty, and cannot relate to debts contracted afterwards, which would be dischargeable according to contract and the laws of the state where entered into. This provision has also a future aspect in this particular -- namely that no lawful impediment, no law of any of the states made after the treaty, shall oblige British creditors to receive their debts, contracted before the treaty, in paper money, or property at appraisement, or in anything but the value in sterling money. The obvious intent of these words was to prevent the operation of past and future tender laws, or past and future laws authorizing the discharge of executions for such debts by property at a valuation. 6th. "Of all bona fide debts" -- that is, debts of every species, kind, or nature, whether by mortgage, if a covenant therein for payment, or by judgments, specialties, or simple contracts. But the debts contemplated were to be bona fide debts -- that is, bona fide contracted before the peace, and contracted with good faith or honestly and without covin and not kept on foot fraudulently. Bona fide is a legal technical expression, and the law of Great Britain and this country has annexed a certain idea to it. It is a term used in statutes in England and in acts of assembly of all the states, and signifies a thing done really, with a good faith, without fraud or deceit or collusion or trust. The words " bona fide " are restrictive, for a debt may be for a valuable consideration and yet not bona fide. A debt must be bona fide at the time of its commencement, or it never can become so afterwards. The words " bona fide " were not prefixed to describe the nature of the debt at the date of the treaty, but the nature of the debt at the time it was contracted. Debts created before the war were almost the only debts in the contemplation of the treaty, although debts contracted during the war were covered by the general provision, taking in debts from the most distant period of time, Page 3 U. S. 242 to the date of the treaty. The recovery, where no lawful impediments were to be interposed, was to have two qualifications: 1st. the debts were to be bona fide contracted, and 2d, they were to be contracted before the peace. 7th. "Heretofore contracted" -- that is, entered into at any period of time before the date of the treaty, without regard to the length or distance of time. These words are descriptive of the particular debts that might be recovered, and relate back to the time such debts were contracted. The time of the contract was plainly to designate the particular debts that might be recovered. A debt entered into during the war would not have been recoverable unless under this description of a debt contracted at any time before the treaty. If the words of the fourth article, taken separately, truly bear the meaning I have given them, their sense collectively cannot be mistaken, and must be the same. The next inquiry is whether the debt in question is one of those described in this article. It is very clear that the article contemplated no debts but those contracted before the treaty, and no debts but only those to the recovery whereof some lawful impediment might be interposed. The present debt was contracted before the war, and to the recovery of it a lawful impediment, to-wit, a law of Virginia and payment under it, is pleaded in bar. There can be no doubt that the debt sued for is within the description if I have given a proper interpretation of the words. If the treaty had been silent as to debts and the law of Virginia had not been made, I have already proved that debts would, on peace, have revived by the law of nations. This alone shows that the only impediment to the recovery of the debt in question is the law of Virginia, and the payment under it, and the treaty relates to every kind of legal impediment. But it is asked did the fourth article intend to annul a law of the states and destroy rights acquired under it? I answer that the fourth article did intend to destroy all lawful impediments, past and future, and that the law of Virginia, and the payment under it, is a lawful impediment, and would bar a recovery if not destroyed by this article of the treaty. This stipulation could not intend only to repeal laws that created legal impediments, to the recovery of the debt (without respect to the mode of payment), because the mere repeal of a law would not destroy acts done and rights acquired under the law during its existence and before the repeal. This right to repeal was only admitted by the counsel for the defendants in error because a repeal would not affect their case; but on the same ground that a treaty can repeal a law of the state, it can nullify it. I have already proved that a treaty can totally annihilate Page 3 U. S. 243 any part of the constitution of any of the individual states that is contrary to a treaty. It is admitted that the treaty intended and did annul some laws of the states, to-wit any laws, past or future, that authorized a tender of paper money to extinguish or discharge the debt, and any laws, past or future, that authorized the discharge of executions by paper money or delivery of property at appraisement, because if the words "sterling money" have not this effect, it cannot be shown that they have any other. If the treaty could nullify some laws, it will be difficult to maintain that it could not equally annul others. It was argued that the fourth article was necessary to revive debts which had not been paid, as it was doubtful whether debts not paid would revive on peace by the law of nations. I answer that the fourth article was not necessary on that account, because there was no doubt that debts not paid do revive by the law of nations, as appears from Bynkershock, Lee, and Sir Thomas Parker. And if necessary, this article would not have this effect, because it revives no debts but only those to which some legal impediment might be interposed, and there could be no legal impediment or bar to the recovery, after peace, of debts not paid during the war to the state. It was contended that the provision is that creditors shall recover, etc., and there was no creditor at the time of the treaty, because there was then no debtor, he having been legally discharged. The creditors described in the treaty were not creditors generally, but only those with whom debts had been contracted at some time before the treaty, and is a description of persons, and not of their rights. This adhering to the letter is to destroy the plain meaning of the provision, because if the treaty does not extend to debts paid into the state treasuries or loan offices, it is very clear that nothing was done by the treaty as to those debts, not even so much as was stipulated for royalists and refugees, to-wit, a recommendation of restitution. Further, by this construction, nothing was done for British creditors, because the law of nations secured a recovery of their debts, which had not been confiscated and paid to the states, and if the debts paid in paper money of little value into the state treasuries or loan offices were not to be paid to them, the article was of no kind of value to them, and they were deceived. The article relates either to debts not paid or to debts paid into the treasuries or loan offices. It has no relation to the first, for the reasons above assigned, and if it does not include the latter, it relates to nothing. It was said that the treaty secured British creditors from payment in paper money. This is admitted, but it is by force Page 3 U. S. 244 and operation of the words "in sterling money," but then the words, "heretofore contracted," are to have no effect whatsoever, and it is those very words, and those only, that secure the recovery of the debts paid to the states, because no lawful impediment is to be allowed to prevent the recovery of debts contracted at any time before the treaty. But it was alleged that the fourth article only stipulates that there shall be no lawful impediment, etc., but that a law of the state was first necessary to annul the law creating such impediment, and that the state is under a moral obligation to pass such a law, but until it is done, the impediment remains. I consider the fourth article in this light -- that it is not a stipulation that certain acts shall be done and that it was necessary for the legislatures of individual states to do those acts, but that it is an express agreement that certain things shall not be permitted the American courts of justice, and that it is a contract on behalf of those courts that they will not allow such acts to be pleaded in bar to prevent a recovery of certain British debts. "Creditors are to meet with no lawful impediment, etc." As creditors can only sue for the recovery of their debts in courts of justice, and it is only in courts of justice that a legal impediment can be set up by way of plea in bar of their actions, it appears to me that the courts are bound to overrule every such plea if contrary to the treaty. A recovery of a debt can only be prevented by a plea in bar to the action. A recovery of a debt in sterling money can only be prevented by a like plea in bar to the action, as tender and refusal, to operate as an extinguishment. After judgment, payment thereof in sterling money can only be prevented by some proceedings under some law that authorizes the debtor to discharge an execution in paper money or in property at a valuation. In all these and similar cases, it appears to me that the courts of the United States are bound by the treaty to interfere. No one can doubt that a treaty may stipulate that certain acts shall be done by the legislature; that other acts shall be done by the Executive, and others by the Judiciary. In the sixth article it is provided that no future prosecutions shall be commenced against any person for or by reason of the part he took in the war. Under this article, the American courts of justice discharged the prosecutions and the persons on receipt of the treaty and the proclamation of Congress. 1 U. S. 1 U.S. 233. If a law of the state to annul a former law was first necessary, it must be either on the ground that the treaty could not annul any law of a state or that the words used in the treaty were not explicit or effectual for that purpose. Our federal Constitution establishes the power of a treaty over the constitution Page 3 U. S. 245 and laws of any of the states, and I have shown that the words of the fourth article were intended, and are sufficient to nullify the law of Virginia and the payment under it. It was contended that Virginia is interested in this question, and ought to compensate the defendants in error, if obliged to pay the plaintiff under the treaty. If Virginia had a right to receive the money, which I hope I have clearly established, by what law is she obliged to return it? The treaty only speaks of the original debtor, and says nothing about a recovery from any of the states. It was said that the defendant ought to be fully indemnified if the treaty compels him to pay his debt over again, as his rights have been sacrificed for the benefit of the public. That Congress had the power to sacrifice the rights and interests of private citizens to secure the safety or prosperity of the public I have no doubt, but the immutable principles of justice, the public faith of the states that confiscated and received British debts, pledged to the debtors, and the rights of the debtors violated by the treaty all combine to prove that ample compensation ought to be made to all the debtors who have been injured by the treaty for the benefit of the public. This principle is recognized by the Constitution, which declares "that private property shall not be taken for public use without just compensation". See Vattel, lib. 1, c. 20, s. 244. Although Virginia is not bound to make compensation to the debtors, yet it is evident that they ought to be indemnified, and it is not to be supposed that those whose duty it may be to make the compensation will permit the rights of our citizens to be sacrificed to a public object without the fullest indemnity. On the best investigation I have been able to give the fourth article of the treaty, I cannot conceive that the wisdom of men could express their meaning in more accurate and intelligible words or in words more proper and effectual to carry their intention into execution. I am satisfied that the words, in their natural import, and common use, give a recovery to the British creditor from his original debtor of the debt contracted before the treaty, notwithstanding the payment thereof into the public treasuries or loan offices under the authority of any state law, and therefore I am of opinion that the judgment of the circuit court ought to be reversed and that judgment ought to be given on the demurrer, for the plaintiff in error, with the costs in the circuit court, and the costs of the appeal. PATERSON, JUSTICE. The present suit is instituted on a bond bearing date 7 July, 1774, and executed by Daniel Lawrence Hylton & Co. and Francis Eppes, citizens of the State of Virginia, to Joseph Farrel and William Jones, subjects Page 3 U. S. 246 of the King of Great Britain, for the payment of �2,976 11s. 6d. British, or sterling, money. The defendants, among other pleas, pleaded 1st. Payment, on which issue is joined. 2d. That $3,111 1/9, equal to �933 14s., part of the debt mentioned in the declaration, were, on 26 April, 1780, paid by them into the loan office of Virginia pursuant to an act of that state passed 20 October, 1777, entitled "An act for sequestering British property, enabling those indebted to British subjects to pay off such debts, and directing the proceedings in suits where such subjects are parties." The material section of the act is recited in the plea. To this plea the plaintiffs reply and set up the fourth article of the treaty, made 3 September 1783, between the United States and his Britannic Majesty and the Constitution of the United States, making treaties the supreme law of the land. The rejoinder sets forth that the debt in the declaration mentioned, or so much thereof as is equal to the sum of �933 14s., was not a bona fide debt due and owing to the plaintiffs on 3 September, 1783, because the defendants had, on 26 April, 1780, paid in part thereof the sum of $3,111 1/9 into the loan office of Virginia, and obtained a certificate and receipt therefor pursuant to the directions of the said act; without that, that the said treaty of peace, and the Constitution of the United States entitle the plaintiffs to maintain their action against the defendants for so much of the said debt in the declaration mentioned as is equal to �933 14s. To this rejoinder the plaintiffs demur. The defendants join in demurrer. On this issue in law, judgment was entered for the defendants in the Circuit Court for the District of Virginia. A writ of error has been brought, and the general errors are assigned. The question is whether the judgment rendered in the circuit court be erroneous. I shall not pursue the range of discussion which was taken by the counsel on the part of the plaintiffs in error. I do not deem it necessary to enter on the question whether the Legislature of Virginia had authority to make an act confiscating the debts due from its citizens to the subjects of the King of Great Britain, or whether the authority in such case was exclusively in Congress. I shall read and make a few observations on the act, which has been pleaded in bar, and then pass to the consideration of the fourth Page 3 U. S. 247 article of the treaty. The first and third sections are the only parts of the act necessary to be considered. "1st. Whereas divers persons, subjects of Great Britain, had, during our connection with that kingdom, acquired estates, real and personal, within this commonwealth, and had also become entitled to debts to a considerable amount, and some of them had commenced suits for the recovery of such debts before the present troubles had interrupted the administration of justice, which suits were at that time depending and undetermined, and such estates being acquired and debts incurred, under the sanction of the laws and of the connection then subsisting, and it not being known that their sovereign hath as yet set the example of confiscating debts and estates under the like circumstances, the public faith, and the law and usages of nations require that they should not be confiscated on our part, but the safety of the United States demands, and the same law and usages of nations will justify, that we should not strengthen the hands of our enemies during the continuance of the present war by remitting to them the profits or proceeds of such estates or the interest or principal of such debts." "3d. And be it further enacted that it shall and may be lawful for any citizen of this commonwealth owing money to a subject of Great Britain to pay the same, or any part thereof, from time to time, as he shall think fit, into the said loan office, taking thereout a certificate for the same in the name of the creditor, with an endorsement under the hand of the commissioner of the said office expressing the name of the payer, and shall deliver such certificate to the Governor and Council, whose receipt shall discharge him from so much of the debt. And the Governor and Council shall in like manner lay before the general assembly, once in every year, an account of these certificates, specifying the names of the persons by and for whom they were paid, and shall see to the safekeeping of the same, subject to the future direction of the legislature." The act does not confiscate debts due to British subjects. The preamble reprobates the doctrine as being inconsistent with public faith and the law and usages of nations. The payments made into the loan office were voluntary, and not compulsive, for it was in the option of the debtor to pay or not. The enacting clause will admit of a construction in full consistency with the preamble, for although the certificates were to be subject to the future direction of the legislature, yet it was under the express declaration that there should be no confiscation unless the King of Great Britain should set the example; if he should confiscate debts due to the citizens Page 3 U. S. 248 of Virginia, then the Legislature of Virginia would confiscate debts due to British subjects. But the King of Great Britain did not confiscate debts on his part, and the Legislature of Virginia has not confiscated debts on its part. It is, however, said that the payment being made under the act, the faith of Virginia is plighted. True, but to whom is it plighted -- to the creditor or debtor -- to the alien enemy or to its own citizen, who made the voluntary payment? Or will it be shaped and varied according to the event -- if one way, then to the creditor; if another, then to the debtor. Be these points as they may, the legislature thought it expedient to declare to what amount Virginia should be bound for payments so made. The act for this purpose was passed on 3 January, 1780, and is entitled "An act concerning monies paid into the public loan office in payment of British debts." "Section 1. Whereas by an act of the general assembly entitled" "An act for sequestering British property, enabling those indebted to British subjects to pay off such debts, and directing the proceedings in suits where such subjects are parties" "it is among other things provided that it shall and may be lawful for any citizen of this commonwealth owing money to a subject of Great Britain to pay the same or any part thereof from time to time, as he shall think fit, into the said loan office, taking thereout a certificate for the same in the name of the creditor with an endorsement under the hand of the commissioner of the said office expressing the name of the payer, and shall deliver such certificate to the Governor and Council, whose receipt shall discharge him from so much of the debt, and the Governor and Council shall in like manner lay before the general assembly once in every year an account of these certificates specifying the names of the persons by and for whom they were paid, and shall see to the safekeeping of the same subject to the future direction of the legislature." "Sec. 2. And whereas it belongs not to the legislature to decide particular questions of which the judiciary have cognizance, and it is therefore unfit for them to determine whether the payments so made into the loan office as aforesaid be good or void between the creditor and debtor. But it is expedient to declare to what amount this commonwealth may be bound for the payments aforesaid. Be it enacted and declared that this commonwealth shall at no time nor in any event or contingency be liable to any person or persons whatsoever for any sum on account of the payments aforesaid other than the value thereof when reduced by the scale of depreciation established by one other act of the general assembly entitled" "An act directing the mode of adjusting and settling the payment Page 3 U. S. 249 of certain debts and contracts and for other purposes, with interest thereon at the rate of six percentum per annum, any law, usage, custom, or any adjudication or construction of the first recited act already made or hereafter be made notwithstanding." On the part of the defendants it has been also urged that it is immaterial whether the payment be voluntary or compulsive, because the payer, on complying with the directions of the act, shall be discharged from so much of the debt. Be it so. If the legislature had authority to make the act, the Congress could, by treaty, repeal the act and annul everything done under it. This leads us to consider the treaty and its operation. Treaties must be construed in such manner as to effectuate the intention of the parties. The intention is to be collected from the letter and spirit of the instrument, and may be illustrated and enforced by considerations deducible from the situation of the parties and the reasonableness, justice, and nature of the thing for which provision has been made. The fourth article of the treaty gives the text, and runs in the following words: "It is agreed that creditors on either side shall meet with no legal impediment to the recovery of the full value in sterling money of all bona fide debts heretofore contracted." The phraseology made use of leaves in my mind no room to hesitate as to the intention of the parties. The terms are unequivocal and universal in their signification, and obviously point to and comprehend all creditors and all debtors previously to 3 September, 1783. In this article there appears to be a selection of expressions plain and extensive in their import, and admirably calculated to obviate doubts, to remove difficulties, to designate the objects, and ascertain the intention of the contending powers, and, in short, to meet and provide for all possible cases that could arise under the head or debts. The words "creditors on either side" embrace every description of creditors, and cannot be limited or narrowed down to such only whose debtors had not paid into the loan office of Virginia. Creditors must have debtors; "debtors" is the correlative term. Who are these debtors? On the part of the defendants in error, it has been contended that Virginia is the substituted debtor, so far as respects debtors who may have paid money into the loan office under its laws. But the idea that the treaty may be satisfied by substituting the State of Virginia in the stead of the original debtor is far-fetched and altogether inadmissible. The terms in which the article is expressed clearly evince a contrary intention and naturally and irresistibly carry the mind back to the original debtor, for as between the British creditor and the Page 3 U. S. 250 State of Virginia there was no express and preexisting stipulation or debt. Besides, what lawful impediment was to be removed out of the way of the creditor if Virginia was the substituted or self-created debtor? Did this clause make Virginia liable to a prosecution for the debt? Is Virginia now suable by such British creditor? No, he would in such case be totally remediless unless the nation of which he is a subject would interpose in his behalf. The words "shall meet with no lawful impediment" refer to legislative acts and everything done under them so far as the creditor might be affected or obstructed in regard either to his remedy or right. All lawful impediments, of whatever kind they might be, whether they related to personal disabilities or confiscations, sequestrations, or payments into loan offices or treasuries, are removed. No act of any state legislature, and no payment made under such act into the public coffers, shall obstruct the creditor in his course of recovery against his debtor. The act itself is a lawful impediment, and therefore is repealed; the payment under the act is also a lawful impediment, and therefore is made void. The article is to be construed according to the subject matter or nature of the impediment; it repeals in the first instance, and nullifies in the second. Unless this be the construction, it is not true that the creditor shall meet with no legal impediment to the recovery of his debt. Does not the plea in the present case contradict the treaty and raise an impediment in the way of recovery when the treaty declares there shall be none? Payments made in paper money into loan offices, and treasuries were the principal impediments to be removed and mischiefs to be redressed. The article makes provision accordingly. It stipulates that the creditor shall recover the full value of his debt in sterling money, thereby securing and guarding him against all payments in paper money. Suppose the creditor should call on Virginia for payment, what would it be -- the paper money paid into the loan office, or its value. Would this be a compliance with the article? In the one case, the money being cried down and dead, is no better than waste paper, and in the other, the payment, when reduced by the table of depreciation, would be inconsiderable, and in many cases not more than six-pence in the pound. Can this be called payment to the full value of the debt in sterling money? The subsequent expressions in the article enforce the preceding observations and mark the will and intention of the contracting parties in the most clear and precise terms. The concluding words are, "all bona fide debts heretofore contracted." In the construction of contracts, words are to be taken in their natural and obvious meaning unless some good reason be assigned to show Page 3 U. S. 251 that they should be understood in a different sense. Now if a person, in reading this article, should take the words in their common meaning and as generally understood, could he mistake the intention of the parties? Their design unquestionably was to restore the creditor and debtor to their original state and place them precisely in the situation they would have stood if no war had intervened or act of the Legislature of Virginia had been passed. The impediments created by legislative acts and the payments made in pursuance of them and all the evils growing out of them were, so far as respected creditors, done away and cured. This is the only way in which all lawful impediments can be removed and all debts contracted before the date of the treaty can be recovered to their full value by the creditors against their debtors. It has however been urged that this article must be restricted to debts existing and due at the time of making the treaty; that the debt in question was discharged because it has been paid into the Loan Office agreeably to law, and that the treaty ought not to be construed so as to renovate or revive it. To enforce this objection, the rule laid down by Vattel was relied on "that the state of things at the instant of the treaty is to be held legitimate, and any change to be made in it requires an express specification in the treaty; consequently all things not mentioned in the treaty are to remain as they were at the conclusion of it." Vatt., B. 4, c. 2, s. 21. The first part of the objection has been already answered, for it is within both the letter and spirit of the instrument that the creditors should be reinstated, and of course that the debtors should be liable to pay. The act of Virginia and the payment under it have, so far as the creditor is concerned, no operation, and are void. There is no difficulty in answering the objection arising from the passage in Vattel. The universality of the terms is equal to an express specification in the treaty, and indeed includes it. For it is fair and conclusive reasoning that if any description of debtors or class of cases was intended to be excepted, it would have been specified in the instrument, and the words "that creditors on either side shall meet with no lawful impediment to the recovery of the full value in sterling money of all debts heretofore contracted" would not have been made use of in the unqualified manner in which they stand in the treaty. Another article in the treaty now under review will serve by way of illustration. "Article VII. There shall be a firm and perpetual peace between his Britannic Majesty and the said states, and between the subjects of the one and the citizens of the other, wherefore all hostilities both by sea and land shall then immediately cease; all prisoners on both sides shall be set at liberty, and his Britannic Page 3 U. S. 252 Majesty shall, with all convenient speed and without causing any destruction or carrying away any negroes or other property of the American inhabitants, withdraw all his armies, garrisons, and fleets from the said United States and from every port, place, and harbor within the same, leaving in all fortifications the American artillery that may be therein. And shall also order and cause all archives, records, deeds, and papers belonging to any of the said states or their citizens which in the course of the war may have fallen into the hands of his officers to be forthwith restored and delivered to the proper states and persons to whom they belong." Would it be an objection on the part of his Britannic Majesty that the state of things at the instant of the treaty is to be held legitimate, and any change to be made in it requires an express specification? That the forts are not specified, and therefore not to be given up? The objection would be considered as futile and evasive. The answer would be that there is no doubt, because the expressions are general, comprehend the forts, and are equal to an express specification. So in the present case, the universality of the terms are equal to a specification of every particular debt, or an enumeration of every creditor and debtor. It is the same thing as though they had been individually named. All the creditors on either side, without distinction, must have been contemplated by the parties in the fourth article. Almost every word, separately taken, is expressive of this idea, and when all the words are combined and taken together, they remove every particle of doubt. But if the class of British creditors whose debtors have paid into the Loan Office of Virginia, are not comprehended in the fourth article, then they pass without redress, without notice, without so much as a recommendation in their favor. The thing is incredible. Why a distinction -- why should the creditors whose debtors paid into the Loan Office be in a worse situation than the creditors whose debtors did not thus pay? The traders and others of this country were largely indebted to the merchants of Great Britain. To provide for the payment of these debts and give satisfaction to this class of subjects must have been a matter of primary importance to the British ministry. This doubtless is at all times and in all situations an object of moment to a commercial country. The opulence, resources, and power of the British nation may in no small degree be ascribed to its commerce; it is a nation of manufacturers and merchants. To protect their interests and provide for the payment of debts due to them, especially when those debts amounted to an immense sum, could not fail of arresting the attention, and calling forth the utmost exertions of the British cabinet. A measure of this kind, it is easy to perceive, would be pursued with unremitting Page 3 U. S. 253 diligence and ardor; sacrifices would be made to ensure its success, and perhaps nothing short of extreme necessity would induce them to give it up. But if the debts which have been confiscated or paid into loan offices or treasuries be not within the provision of the fourth article, then a numerous class of British merchants is passed over in silence, and not so much attended to as the loyalists or Americans who attached themselves to the cause of Britain during the war. Is it a supposable case that the British negotiators would have been more regardful of the interests of the loyalists than of their own merchants? That they would make a discrimination between merchants when in a national and political view, and in the eye of justice, they were equally meritorious and entitled to receive complete satisfaction for their debts? No line should be drawn between creditors unless it be found in the treaty. The treaty does not make it; the truth is that none was intended, for if intended it would have been expressed. The indefinite and sweeping terms made use of by the parties, such as "creditors on either side, no lawful impediment to the recovery of the full value in sterling money, of all debts heretofore contracted," exclude the idea of any class of cases' having been intended to be excepted, and explode the doctrine of constructive discrimination. The fourth article appears to me to come within the first general maxim of interpretation laid down by Vattel. "It is not permitted to interpret what has no need of interpretation. When an act is conceived in clear and precise terms, when the sense is manifest, and leads to nothing absurd, there can be no reason to refuse the sense which this treaty naturally presents. To go elsewhere in search of conjectures in order to restrain or extinguish it is to endeavor to elude it. If this dangerous method be once admitted, there will be no act which it will not render useless. Let the brightest light shine on all the parts of the piece, let it be expressed in terms the most clear and determinate; all this shall be of no use if it be allowed to search for foreign reasons, in order to maintain what cannot be found in the sense it naturally presents." Vatt., B. 2, ch. 17, s. 263. To proceed, the construction on the part of the defendants excludes mutuality. The debts due from British subjects to American citizens were not confiscated or sequestered or drawn into the public coffers. They were left untouched. Now if all the British debtors be compelled to pay their American creditors, and a part only of the American debtors be compelled to pay their British creditors, there will not be that mutuality in the thing which its nature and justice require. The rule in such case should work both ways, whereas the other construction creates mutuality and proceeds upon Page 3 U. S. 254 indiscriminating principles. The former construction does violence to the letter and spirit of the instrument; the latter flows easily and naturally out of it. It has been made a question whether the confiscation of debts which were contracted by individuals of the enemy in time of war is authorized by the law of nations among civilized states. I shall not, however, controvert the position that by the "rigor" of the law of nations, debts of the description just mentioned may be confiscated. This rule has by some been considered as a relict of barbarism; it is certainly a hard one, and cannot continue long among commercial nations; indeed it ought not to have existed among any nations, and perhaps is generally exploded at the present day in Europe. Hear the language of Vattel on this subject, B. 3, c. 5, s. 77. "But at present, in regard to the advantage and safety of commerce, all the sovereigns of Europe have departed from this rigor. And as this custom has been generally received, he who should act contrary to it would injure the public faith, for strangers trusted his subjects only from a firm persuasion that the general custom would be observed. The state does not so much as touch the sums which it owes to the enemy. Everywhere in case of war, funds credited to the public are exempt from confiscation and seizure." The legislators of Virginia who made the act which has been pleaded in bar lay down the doctrine relative to this point in strong and unequivocal terms. For they expressly declare that the law and usages of nations require that debts should not be confiscated. If the enemy should in the first instance direct a confiscation of debts, retaliation might in such case be a proper and justifiable measure. The truth is that the confiscation of debts is at once unjust and impolitic; it destroys confidence, violates good faith, and injures the interests of commerce; it is also unproductive, and in most cases impracticable. Ingenious writers have endeavored to defend the doctrine on the ground that the confiscation of debts weakens the enemy and enriches ourselves. The first is not true, because remittances are seldom if ever made during a war, and the second generally proves unprofitable when attempted to be carried into practice. The gain is, at most, temporary and inconsiderable, whereas the injury is certain and incalculable, and the ignominy great and lasting. History furnishes a remarkable instance in support and illustration of the foregoing remarks. For in the war that broke out between France and Spain in the year 1684, his Catholic Majesty endeavored to seize the effects of the subjects of France in his kingdom, but the attempt proved Page 3 U. S. 255 abortive, for not one Spanish agent or factor violated his trust or betrayed his French principal or correspondent. If the payments which have been made into the loan office pursuant to the act of Virginia should be scaled according to a subsequent act of that state, they would not, it is probable, amount to a very large sum. Other reasons in support of the doctrine have been assigned -- namely that the confiscation of debts operates as an indemnity for past losses and a security against future injuries -- but they do not appear to me to be more solid than those already mentioned. Confiscation of debts is considered a disreputable thing among civilized nations of the present day, and indeed nothing is more strongly evincive of this truth than that it has gone into general desuetude, and whenever put into practice, provision is made by the treaty which terminates the war for the mutual and complete restoration of contracts and payment of debts. I feel no hesitation in declaring that it has always appeared to me to be incompatible with the principles of justice and policy that contracts entered into by individuals of different nations should be violated by their respective governments in consequence of national quarrels and hostilities. National differences should not affect private bargains. The confidence, both of an individual and national nature, on which the contracts were founded ought to be preserved inviolate. Is not this the language of honesty and honor? Does not the sentiment correspond with the principles of justice and the dictates of the moral sense? In short, is it not the result of right reason and natural equity? The relation which the parties stood in to each other at the time of contracting these debts ought not to pass without notice. The debts were contracted while the creditors and debtors were subjects of the same King and children of the same family. They were made under the sanction of laws common to and binding on both. A revolution war could not, like other wars, be foreseen or calculated upon. The thing was improbable. No one, at the time that the debts were contracted, had any idea of a severance or dismemberment of the empire by which persons, who had been united under one system of civil polity should be torn asunder and become enemies for a time, and perhaps aliens forever. Contracts entered into in such a state of things ought to be sacredly regarded. Inviolability seems to be attached to them. Considering then the usages of civilized nations and the opinion of modern writers relative to confiscation, and also the circumstances under which these debts were contracted, we ought to take the expressions in this fourth article in their most extensive sense. We ought to admit of no comment that will narrow and restrict their operation and Page 3 U. S. 256 import. The construction of a treaty made in favor of such creditors, and for the restoration and enforcement of preexisting contracts, ought to be liberal and benign. For these reasons, this clause in the treaty deserves the utmost latitude of exposition. The fourth article embraces all creditors, extends to all preexisting debts, removes all lawful impediments, repeals the legislative act of Virginia, which has been pleaded in bar, and with regard to the creditor annuls everything done under it. This article reinstates the parties; the creditor and debtor before the war are creditor and debtor since; as they stood then they stand now. To prevent mistakes, it is to be understood that my argument embraces none but lawful impediments within the meaning of the treaty, such as legislative acts, and payments under them into loan offices and treasuries. An impediment created by law stands on different ground from an impediment created by the creditor. To conclude, I am of opinion that the demurrer ought to have been sustained, and of course that the judgment rendered in the court below is erroneous and must be reversed. IREDELL, JUSTICE. In delivering my opinion on this important case, I feel myself deeply affected by the awful situation in which I stand. The uncommon magnitude of the subject, its novelty, the high expectation it has excited, and the consequences with which a decision may be attended have all impressed me with their fullest force. I have trembled lest by an ill informed or precipitate opinion of mine, either the honor, the interest, or the safety of the United States should suffer or Page 3 U. S. 257 be endangered, on the one hand, or the just rights and proper security of any individual, on the other. In endeavoring to form the opinion I shall now deliver, I am sure the great object of my heart has been to discover the true principles upon which a decision ought to be given, unbiased by any other consideration than the most sacred regard to justice. Happy should I have thought myself if I could as confidently have relied on a strength of abilities equal to the greatness of the occasion. The cause has been spoken to at the bar with a degree of ability equal to any occasion. However painfully I may at any time reflect on the inadequacy of my own talents, I shall as long as I live remember with pleasure and respect the arguments which I have heard on this case. They have discovered an ingenuity, a depth of investigation, and a power of reasoning fully equal to anything I have ever witnessed, and some of them have been adorned with a splendor of eloquence surpassing what I have ever felt before. Fatigue has given way under its influence, and the heart has been warmed, while the understanding has been instructed. The action now before the Court is an action of debt brought by a British creditor against an American debtor to recover upon a bond executed before the late war. To this action there are five pleas, substantially as follow. The 1st, a plea of payment, on which issue is joined, but not now before the Court, and which is to be tried by a jury in case judgment be given for the plaintiff upon the legal questions arising on the other pleas, so as to entitle him to try the issue. The 2d is a plea of a payment into the treasury of the state of part of the debt under an act of assembly of 20 October, 1777. The 3d plea is grounded on two acts of assembly -- one of May, 1779, under which it is alleged that the debt in question became forfeited to the state; the other of May, 1782, which is relied on as a bar to the recovery. The former part of the plea I understand to be given up by the defendant's counsel, and certainly with great propriety, because debts are expressly excepted in the act it refers to. The 4th plea alleges a noncompliance with the treaty on the part of Great Britain, and therefore that the British creditor cannot now recover a benefit under the same treaty. It also alleges acts of hostility by Great Britain since the peace, as likewise forming a bar to the recovery of the plaintiff, who is a British creditor. The 5th plea is that this debt was absolutely annulled by the change of government. This also I understand to have Page 3 U. S. 258 been given up in the course of the argument, and undoubtedly it is not tenable. The only pleas, therefore, for us to consider are the second, part of the third, and the fourth. Everything I have to say on that part of the 3d, not relinquished, admitting the fullest operation of the act of 1782, as intending to affect British creditors themselves, as well as assignees, which does not appear to me to have formed any part of its object, will appear from my observations on the second plea, and therefore, to prevent unnecessary repetition, I shall not consider it separately by itself. It seems proper to speak of the fourth plea first, because if that can be maintained, it is altogether immaterial to consider either of the others. I am clearly of opinion that the fourth plea is not maintainable. It is grounded on two allegations. 1st, the breach of the treaty by Great Britain, as alleged in the plea. 2d, new acts of hostility on the part of that kingdom. 1. In regard to the first, I consider the law of nations to be decided as to the following position, viz., "That if a treaty be broken by one of the contracting parties, it becomes (in the expressive language of the law) not absolutely void, but voidable, and voidable not at the option of any individual of the contracting country injured, however much he may be affected by it, but at the option of the sovereign power of that country of which such individual is a member." The authorities, I think, are full and decisive to that effect. Grotius, b. 2, c. 15, s. 15; ib., b. 3, c. 20, s. 35, 36, 37, 38; 2 Burl. 355, part 4, c. 14, in s. 8; Vattel, b. 4, c. 4, s. 54. The gentlemen for the defendant, taking hold of some particular expressions without regarding the whole of these authorities and considering the reason of them, have argued that true, in the present instance (for example) Congress might have remitted the infraction, but not having done so, the plaintiff is barred for the present, however he might be restored to the right, in case the infraction should hereafter be actually remitted. But to me it is very evident that such a position is not maintainable either by the authorities I have recited or the reason of the thing. The words of Grotius are pointed and express to show not that the treaty shall be reputed broken until a remission is actually pronounced by the injured party, but that it shall not be reputed as broken until the injured party shall think proper actually to pronounce it broken, and it is remarkable that his Page 3 U. S. 259 words to this effect are calculated for the very purpose of removing any doubts which other more general expressions might occasion. His words are: "When there is treachery on one side, it is certainly at the choice of the innocent party to let the peace subsist; as Scipio did formerly after many perfidious actions of the Carthagenians. Because no man, by doing contrary to his obligation, can thereby discharge himself from it. For though it is expressed that by such a fact the peace shall be reputed as broken, yet this clause is to be understood only in favor of the innocent if he thinks fit to make use of it." Grotius, b. 3, c. 20, s. 38. The whole clause of Vattel is substantially to the same purpose, and therefore where in one part of the clause he says, "the offended party may remit the infraction committed," this must be understood to make the whole consistent, a remission not arising from an express declaration, but from a tacit acquiescence in the breach. Otherwise, what becomes of the words "but if he chooses not to come to a rupture, the treaty remains valid and obligatory." The treaty therefore must remain valid and obligatory until the power, authorized to come to a rupture, does come to it. The same observations apply to Burlamaqui, who expresses himself more generally, but states substantially the same doctrine. His expression is, "it is at the choice of the innocent party to let the peace subsist," which certainly does not require a positive declaration that it shall subsist. This doctrine appears to me to be grounded on the highest reason. It is undoubtedly true that each nation is considered as a moral person, and the welfare and interest of all the individuals of that nation, so far as they may be affected by its concerns with foreign nations, are in each country entrusted to some particular power authorized to negotiate with them, or to speak the sense of the nation on any emergency. When any individual, therefore, of any nation has cause of complaint against another nation or any individual of it not immediately amenable to the authority of his own, he may complain to that power in his own nation which is entrusted with the sovereignty of it as to foreign negotiations and he will be entitled to all the redress which the nature of his case requires and the situation of his own country will enable him to obtain. The people of the United States, in their present Constitution, have devolved on the President and Senate the power of making treaties, and upon Congress the power of declaring war. To one or other of these powers, in case of an infraction of a treaty that has been entered into with the United States, I apprehend application is to be made. Page 3 U. S. 260 Upon such an application, various important considerations would necessarily occur. 1. Whether the treaty was first violated on the part of the United States or on that of the other contracting power. 2. Whether, if first violated by the latter, it was a violation in an important or an inconsiderable article; whether the violation was by design or accident, or owing to unforeseen obstacles; whether, in short, it was wholly or partially without excuse. 3. Whether, admitting it was either, it was a matter for which compensation could be made, or otherwise. 4. Whether the injury was of such a nature as to admit of negotiation or to require immediate satisfaction, peremptorily and without delay. 5. Whether, if the circumstances in all other cases justified it, it was advisable, upon an extensive view and wise estimation of all the relative circumstances of the United States, to declare the treaty broken, and of course void, for though the party first breaking the treaty cannot make it absolutely void, but it is only voidable at the election of the injured party, yet when that election is made by declaring the treaty void, I conceive it is totally so as to both parties, and that all rights enjoyed under the treaty are absolutely annulled, as if no stipulation had been made for them. These are considerations of policy -- considerations of extreme magnitude and certainly entirely incompetent to the examination and decision of a court of justice. Miserable and disgraceful indeed would be the situation of the citizens of the United States if they were obliged to comply with a treaty on their part and had no means of redress for a noncompliance by the other contracting power. But they have, and the law of nations points out the remedy. The remedy depends on the discretion and sense of duty of their own government. This plea is therefore defective so far as concerns the breach of the treaty -- not because this Court hath no cognizance of a breach of treaty, but because by the law of nations we have no authority, upon any information or concessions of any individuals, to consider or declare it broken; but our judgment must be grounded on the solemn declaration of Congress alone (to which, I conceive, the authority is entrusted), given for the very purpose of vacating the treaty on the principles I have stated. The paper transmitted by order of Congress to the Executive of Virginia on the subject of a violation complained of on the part of the British certainly cannot amount to so much, especially as there is another paper of theirs in the year 1787, transmitted to the different states, complaining of violations Page 3 U. S. 261 on our part. They have pronounced no solemn decision which committed the first infraction; much less have they declared that, in consequence of the infraction on the part of the British, they chose that the treaty should be annulled. But it is said that a declaration by Congress that the treaty was broken by Great Britain would be exercising a judicial power, which by the Constitution in all cases of treaties is devolved on the judges. Surely such a thing was never in the contemplation of the Constitution. If it was, a method is still wanting by which it could be executed, for if we are to declare whether Great Britain or the United States has violated a treaty, we ought to have some way of bringing both the parties before us. The method contended for by the defendant's counsel is very ill suited to another part of their doctrine, which is certainly right, that a nation is a moral person and that the act of a sovereign power to whom its foreign concerns are entrusted is the act of every individual of that nation, because he represents the whole. But in this case, the King of Great Britain does not act on behalf of the plaintiff, his subject, and the United States on behalf of the defendants, their citizens, but the plaintiff is alleged to represent the sovereignty of the United States, a dignity for aught I know, of which they may be respectively worthy, but which certainly does not either politically or judicially belong to them. The Judiciary is undoubtedly to determine in all cases in law and equity coming before them concerning treaties. The subject of treaties, gentlemen truly say, is to be determined by the law of nations. It is a part of the law of nations that if a treaty be violated by one party, it is at the option of the other party, if innocent, to declare, in consequence of the breach, that the treaty is void. If Congress, therefore (which, I conceive, alone has such authority under our government). shall make such a declaration in any case like the present, I shall deem it my duty to regard the treaty as void and then to forbear any share in executing it as a judge. But the same law of nations tells me that until that declaration be made, I must regard it (in the language of the law) valid and obligatory. The admission of the fact, stated in the plea, cannot be taken as an admission that the fact is strictly true, because the plaintiff had no way of avoiding the plea but by a demurrer, whether it was true or not. If it was well pleaded, it is an admission of the entire truth, but not otherwise. For the reasons I have given, it is clear to me that it is not well pleaded. Page 3 U. S. 262 2. In regard to the second branch of this plea, new acts of hostility, if meant as constituting a breach (which I don't understand it to be), the observations I have already made will equally apply to this part of the plea. If meant as a proof that a war in fact, tho' not in name, subsists, and therefore that the plaintiff is an alien enemy, the same observations will apply still more forcibly. We must receive a declaration that we are in a state of war from that part of the sovereignty of the union to which that important subject is entrusted. We certainly want some better information of the fact than we have at present. However, this point seems so clear that the defendant's counsel very faintly attempted to maintain this idea of the case. I conclude, therefore, for these reasons that there is nothing in the fourth plea which is a bar to the plaintiff's action. The great difficulty of the case arises from the second plea. This is the only part of the case about which I have from the beginning entertained any doubt. And I must confess I have had very great doubts indeed on this subject. My opinion has varied more than once in regard to it. I have endeavored to come to a conclusion by analyzing it in all its parts, and the result of my investigation has been, according to the best judgment I am capable of forming upon the most deliberate examination, that the plea is supportable. My reasons for this opinion I must give at considerable length in order to show it is not a rash one, and that gentlemen may be enabled in the future progress of this case more easily to detect my errors, if I should have committed any. I will divide the consideration of the plea into two points: 1. Whether the plea would have been a bar, if this case had stood independently of the treaty. 2. Whether the treaty destroys the operation of the plea. In considering the first point, I shall, for the greater perspicuity, consider it under the following heads: 1. Whether the Legislature of this state had a right, agreeable to the law of nations, to confiscate the debt in question. 2. Whether, admitting that the legislature had not a right agreeably to the law of nations to confiscate the debt, yet if it in fact did so, it would not, while it remained unrepealed by any subsequent sufficient authority, have been valid and obligatory within the limits of the state so as to bar any suit for the recovery of the debt. 3. Whether, if it shall be considered that the legislature did not wholly confiscate the debt so as totally to extinguish all right in the creditor (as I apprehend they clearly did not), but only sequester it under the peculiar circumstances stated in the act, the payment in question, under the authority of the act, did not, at that time at least, wholly exonerate the debtor. Page 3 U. S. 263 1. It being clear that there was no absolute confiscation in this case, I shall not give a conclusive opinion upon the right; but as I think it highly probable such a right did exist, some observations on that subject will naturally and properly lead to those upon which my opinion as to the validity of the payments is ultimately founded. For this reason and this reason only, I discuss the present question. Whatever doubt might have been entertained by reasoning on the particular examples of Grotius and Puffendorf, Bynkershoek (who, I believe, is alone, a very great authority) is full and decisive in the very point as to a general right of confiscating debts of an enemy. His doctrine I take to be this -- that the law of nations authorizes it unless in former treaties between the belligerent powers, there be particular stipulations to the contrary. Vattel recognizes the general right, but states a prevailing custom in Europe to the contrary, in consequence of which he says "As this custom has been generally observed, he who would act contrary to it would injure the public faith, for strangers trusted his subjects only from a firm persuasion that the general custom would be observed." Vattel mentions the fact, but does not state the origin of the fact, which I think it is not improbable may have arisen in consequence of particular stipulations, as mentioned by Bynkershoek, very few of the civilized nations of Europe not having treaties with each other. Whether this customary law (admitting the principle to prevail by custom only) was binding on the American states during the late war, in respect to Great Britain at least, may be a question of considerable doubt. There were particular circumstances in the relative situation of the two countries which might possibly exempt this from the force of such a custom could it be supposed that when this country became an independent nation, this customary law immediately attached upon it. However this country might have been considered bound to observe such a law in regard to any nation recognizing its independence, had we been unfortunately at war with such, and who observed it on her part (for undoubtedly a breach on one side would justify a nonobservance by the other), it did not necessarily follow that the people of this country were bound to observe it to a nation which not only did not recognize, but fought to destroy their very existence as an independent people, considering them in no other light than as traitors whose lives and fortunes were forfeited to the law. The people of this country literally fought pro aris & focis, and therefore means of defense which, when inferior objects were in view, might not be strictly justifiable might in such an extremity become so on the great principle on which the laws of war are Page 3 U. S. 264 founded, self preservation -- an object that may be attained by any means not inconsistent with the eternal and immutable rules of moral obligation. The principles of the common law of England, as appears from a case I showed to the bar (that in Sir Thomas Parker's Reports 267, Attorney General v. Weeden & Shales ) do undoubtedly recognize the forfeiture of a chose in action due to an enemy. At the utmost, it only requires that an inquisition should be completed during the war, so as, by ascertaining the fact, fully to establish the title of the Crown. I can see no reason why that principle of the common law should not obtain here. If so, then independent of any act of legislation whatever, an inquisition completed during the war finding the fact would have vested the title to the debt in question absolutely in the state, unless this debt can be distinguished from any other chose in action. Such a distinction has been attempted, 1st, because this debt was due before the war; 2d, because the state had not possession of the bond. To these objections, I think, easy answers may be given. 1st, the right acquired by war (detached from custom, which I am not now considering, or any express stipulation, if there be such) depends on the power of seizing the enemy's effects. It is not grounded on any antecedent claim of property, but, on the contrary, the property is admitted to be the enemy's, in the very act of seizing it. Its sole justification is that being forced into a state of hostility by an injury for which no satisfaction could be obtained in a peaceable manner, reprisals may be made use of as a means to compel justice to be done or to enable the injured party to obtain satisfaction for itself. Such a power, from its nature (being grounded on necessity only) seems incapable of limitation by any general rule, and if conscientiously used (of which each nation must judge for itself), the principle applies as well to property, which was in the country before the war began, as to any other which may be accident come into its possession. The same objection would apply to the seizure of any other property of an enemy which had been in the country before the war began as of an incorporeal right. The first resolution in the case I cited is as to choses in action generally, tho' the chose in action there in question was in fact one which had accrued during the war. 2d, the objection from the state's not having possession of the bond (though countenanced by one or two writers) I think is also susceptible of a satisfactory answer. The bond does not create the debt, but is only evidence of it. Possession of it alone can give no right. A robber or an individual coming to the possession of it by accident acquires no more title to the money than he had before. The law is so even as to promissory notes payable to bearer, if the fact can be Page 3 U. S. 265 made to appear. If a bond be lost, equity has long since afforded a remedy. In a modern case in a court of law, a profert of a deed has been dispensed with, upon a special declaration stating the loss of it. It was while the possession and the right were confounded that this objection was thought of weight. It is observable also that it would create an idle and a trifling distinction between debts due by specialty and simple contract debts -- a distinction that might be supported by ingenuity but certainly not by reason. And it would found harsh to say that simple contract debts should be forfeitable if the witnesses were in the country, but otherwise not. Now if the forfeiture of the debt in question could have been effected at common law by an inquisition completed during the war, I can see no reason why the legislature could not, with equal propriety as to the right, have effected the same object substantially in any other mode. The proceeding in each case must be ex parte, and the object affected can be conclusively bound by neither if his case did not come within the principles of the law. This I argue upon a supposition that the customary law of nations was not binding here, at least in this instance. That, however, is a point of some delicacy, and not necessary for me now to determine, because, 2d, I am of opinion that admitting that the legislature had not strictly a right, agreeably to the law of nations, to confiscate the debt in question, yet if they in fact did so, it would, while it remained unimpeached by any subsequent sufficient authority, have been valid and obligatory within the limits of the state, so as to bar any suit for the recovery of the debt. In this opinion I have the misfortune to differ from a very high authority, for which I have the greatest respect. But however painful it may be to differ from gentlemen whose superior abilities and learning I readily acknowledge, I am under the indispensable necessity of judging according to the best lights of my own understanding, assisted by all the information I can acquire. I confess, therefore, that I agree entirely with the defendant's counsel in thinking that the acts of the legislature of the state in regard to the subject in question, so far as they were conformable to the constitution of the state and not in violation of any article of the Confederation (where that was concerned) were absolutely binding de facto, and that if, in respect to foreign nations or any individual belonging to them, they were not strictly warranted by the law of nations, which ought Page 3 U. S. 266 to have been their guide, the acts were not for that reason void, but the state was answerable to the United States for a violation of the law of nations which the nation injured might complain of to the sovereignty of the Union. There is no doubt that an act of Parliament in Great Britain would bind in its own country in every possible case in which the legislature thought proper to act. Blackstone, 1 Comm. 91, is precise as to that point even in cases manifestly unjust, if the words of the law are plain and unequivocal. In this country, thank God, a less arbitrary principle prevails. The power of the legislatures is limited; of the state legislatures by their own state Constitutions, and that of the United States; of the legislature of the Union by the Constitution of the Union. Beyond these limitations, I have no doubt their acts are void because they are not warranted by the authority given. But within them, I think, they are in all cases obligatory in the country subject to their own immediate jurisdiction, because in such cases the legislatures only exercise a discretion expressly confided to them by the Constitution of their country, and for the abuse of which (if it should be abused) they alone are accountable. It is a discretion no more controllable (as I conceive) by a court of justice than a judicial determination is by them, neither department having any right to encroach on the exclusive province of the other in order to rectify any error in principle which it may suppose the other has committed. It is sufficient for each to take care that it commits no error of its own. As to a distinction between a state court and this Court in this respect, I do, for my part, disclaim, according to my present sentiments, any authority to give a different decision in any case whatsoever from such as a state court would be competent to give under the same circumstances. I have no conception that this Court is in the nature of a foreign jurisdiction. The thing itself would be as improper as it would be odious in cases where acts of the state have a concurrent jurisdiction with it. With regard to the exception I speak of, no one has suggested, that the act of October, 1777, was in any manner inconsistent with the constitution of the state, and at that time the Articles of Confederation were not in force; but if they had been, I think there is no color for alleging any inconsistency with them, since Congress could have passed no act on this subject, but if it had wished for an act, must have recommended to the state legislatures to pass it. And the very nature of a recommendation implies that the party recommending cannot, but the party to whom the recommendation is made can, do the thing recommended. Page 3 U. S. 267 The third question under the present head that I proposed was this: "Whether, if it shall be considered that the legislature did not absolutely confiscate the debt, so as totally to extinguish all right in the creditor (as I apprehend they clearly did not), but only sequestered it under the peculiar circumstances stated in the act, the payment in question, under the authority of the act, did not, at that time at least, wholly exonerate the debtor." The words of the enacting clause concerning this subject are as follow: "That it shall and may be lawful for any citizen of this commonwealth owing money to a subject of Great Britain to pay the same or any part thereof from time to time as he shall think fit into the said loan office, taking thereout a certificate for the said sum in the name of the creditor, with an endorsement under the hand of the commissioner of the said office expressing the name of the payer, and shall deliver such certificate to the Governor and Council, whose receipt shall discharge him from so much of the debt. And the Governor and Council shall in like manner say before the general assembly once in every year an account of these certificates, specifying the names of the persons by and for whom they were paid, and shall see to the safekeeping of the same, subject to the future direction of the legislature." We are too apt, in estimating a law passed at a remote period, to combine in our consideration all the subsequent events which have had an influence upon it, instead of confining ourselves (which we ought to do) to the existing circumstances at the time of its passing. Let us, however, recollect that at this period, no British creditor could institute a suit for the recovery of his debt, as the war constituted him an alien enemy, and therefore his remedy stood suspended at common law, so that he ran the risk of the entire loss of every debt where his debtor proved insolvent during the war. Consequently it would, in his own estimation, have been doing him a considerable service that the state should authorize a receipt on his behalf had there been no other currency in circulation than gold or silver. It would have been placing him in a state of security greater than he had any reason to expect. The extremity of the public situation rendered paper money unavoidable, but this was an evil to which all American as well as British creditors were liable, and the former (as we all know) were compelled, upon a tender, under pain of being deemed enemies of their country, to receive it at its nominal value. It was natural and perhaps not altogether, if at all, unjust if a man had $100 due to him from B. and he himself owed C. $100, and B. paid him the $100, though in depreciated Page 3 U. S. 268 money, that he should immediately carry it to his creditor. Many, I have no doubt, paid their creditors upon these plain grounds of retribution, though others undoubtedly (for no government can make all men honest) took most scandalous advantages of depreciation in its advanced periods. When this law was passed, the depreciation, I believe, was little felt and not at all acknowledged. De minimis non curat lex is an old law maxim. I may parody it on this occasion by saying de minimis non curat libertas. When life, liberty, property, everything dear to man was at stake, few could have coldness of heart enough to watch the then scarcely perceptible gradation in the value of money. In this situation, the legislature of the state passed the law in question. It did all that the then situation of affairs would admit of, even for the benefit of the British creditors themselves, and it put it in the power of American creditors, who were compelled to receive the existing currency, to pay their own debts with it. The depositing of money in the loan office was at that time by many, even in America itself, thought an eligible method of securing it, and with some foreigners it was a favorite object of speculation. I know myself that the proceeds of some very valuable cargoes were ordered to be so applied, and probably there were such instances of which I knew nothing. The increased difficulties of the American war in a great degree disappointed the intentions of the original law, but still British and American creditors were placed on the same footing so far as it was in the power of the legislature to effect it. I thought it proper to say thus much as introductory to the observations I shall make on the legal operation of those payments. 1. If the state, de jure, according to the law of nations (which I strongly incline to think) had a right wholly to confiscate this debt, it had undoubtedly a right to proceed a partial way towards it by receiving the money and discharging the debtor, substituting itself in his place. We are to be governed by things, and not names, and consequently if the state had a right to say to a debtor "We confiscate the right of your creditor, and you must pay your debt to us, and not to him," it had a right to say "We do not choose for the present absolutely to confiscate this debt, although we have the power so to do, but if you will pay the money to us, you shall be as completely discharged as if we did." In this point of view, I think there can be no doubt but that a discharge would, under such circumstances, have as completely extinguished the right of the creditor as to the debtor as if, in case no war had intervened, and therefore no right had accrued under it to the states, the debtor had actually paid the money Page 3 U. S. 269 to the order of the creditor and received a discharge from himself. 2. For the reasons I have before given, I think a confiscation, either whole or partial, or any less exercise of that power de facto, though not de jure, would in this state have been perfectly binding, and in legal contemplation as effectual to bar a recovery as if the law of nations had been strictly and unquestionably pursued. 3. I believe there can be no doubt but that according to the law of nations, even on the most modern notions of it, a sequestration merely for the purpose of recovering the debts and preventing the remittance of them to the enemy, and thereby strengthening him and weakening the government, would be allowable, and if so, surely it follows as a matter of course (perhaps it would follow without a solemn declaration) that when, in virtue of any such act, the money was paid to the government, the debtor was wholly discharged, and the government, if it thought proper not to proceed to confiscation afterwards, became itself liable. The case cited from the Law of Evidence I think is an authority substantially in point to show the complete discharge of the debtor. "In debt upon a lease, the defendant pleaded payment, and in evidence showed he paid it to sequestrators of the commonwealth, the plaintiff being a delinquent, and it was ruled this was good payment to prove the issue, which was a payment to the plaintiff himself." Clayton 129. Anonymous Law of Evidence (Edit of 1744) 196, c. 9, c. 11. This case is certainly very strong, for it was not deemed necessary to plead it in bar, but it was admitted in evidence upon a plea that he paid the money to the plaintiff himself. It does not appear whether this action was tried under the commonwealth or after the restoration. If under the former, it is more parallel to the present action. If it was tried after the restoration, it is a still stronger case, for it showed that courts of justice thought themselves bound to protect individuals, who acted under laws of a government they deemed an usurpation, and on all occasions treated with contempt. Besides an objection which I shall notice presently, I can imagine but one real difference between that case and the one before us, and that is that in England the payment was compelled; here Page 3 U. S. 270 it was voluntary. I once thought that circumstance of weight, but on reflection I consider the public faith equally pledged in one case as in the other; that the authority exercised in both is the same, and that it not only would be unjust in itself, but of dangerous example to tell men that they should be protected under a compulsory obedience to government, but not upon a cheerful submission to it. 4. My observations as to the paper money, which the necessities of this country unfortunately constrained us to use so long, had no other tendency than to show the circumstances of the fact as they really existed. As a judge, I conceive myself bound to say that that makes no difference as to the right. The competency of such acts at that time was unquestionable. Their justice depended on the degree of necessity which gave rise to them. A payment in paper money, then a legal tender, I must consider as complete and effectual a payment at that time as payment in gold or silver. Such was the law of the country. A law which severe necessity dictated, and by which, in the course of the war, in which many sacrifices became unavoidable, many thousand American citizens, as well as many British merchants, suffered. It is the lot of our nature to experience many evils for which we can find no remedy, and therefore nothing can be more fallacious than in anything of a general nature to expect perfect exactness. For these reasons, I am clearly of opinion that under the act of sequestration and the payment and discharge, the discharge will be a complete bar in the present case unless there be something in the Treaty of Peace to revive the right of the creditor against the defendant, so as to disable the latter from availing himself of the payment into the treasury in bar to the present action. The operation of that treaty comes, therefore, now to be considered. None can reverence the obligation of treaties more than I do. The peace of mankind, the honor of the human race, the welfare, perhaps the being of future generations, must in no inconsiderable degree depend on the sacred observance of national conventions. If ever any people, on account of the importance of a treaty, were under additional obligations to observe it, the people of the United States surely are to observe the treaty in question. It gave peace to our country after a war attended with many calamities, and in some of its periods presenting a most melancholy prospect. It insured, so far as peace could insure them, the freest forms of government, and the greatest share of individual liberty, of which perhaps the world had seen any example. It presented boundless views of future happiness and greatness which almost overpower the imagination, and which, I trust, will not be altogether Page 3 U. S. 271 unrealized. The means are in our power; wisdom and virtue are alone required to avail ourselves of them. Such was the peace which was procured by the treaty now in question -- a treaty which, when it shall be fully executed in all its parts on both sides, future generations will look up to with gratitude and admiration and with no small degree of fervor towards those who had an active share in procuring it. In proceeding to examine the treaty with these sentiments, it may well be imagined I do it with a reverential and sacred awe lest by any misconstruction of mine I should weaken any one of its provisions. The question now is whether, under this treaty, the payment into the treasury is a bar to so much of the plaintiff's claim, as comprehends money to that amount? I shall examine this question under two divisions: 1st, whether it would have been a bar, as the law existed, after the ratification of the treaty and previous to the passing of the present Constitution of the United States, even if the words of the treaty must be construed to comprehend such a case. 2d, whether, under that Constitution, it can now be considered as a bar. My opinion, I confess, as to the first question is that if the treaty had plainly comprehended such cases, the plaintiff could not have recovered in a court of justice in this state, as the law stood previous to the ratification of the present Constitution of the United States. I feel, as I ought to do, great diffidence, when I am under the necessity, in the execution of my duty as a judge of differing from the opinions of those entitled from superior talents and high authority to my utmost respect. I am compelled to do so in the present instance, but I shall at the same time assign my reasons for my opinion, and if in the future course of this great cause I can be convinced that in this or in any other instance I have committed an error, I shall most cheerfully acknowledge it. The opinion I have long entertained and still do entertain in regard to the operation of the fourth article is that the stipulation in favor of creditors, so as to enable them to bring suits and recover the full value of their debts, could not at that time be carried into effect in any other manner than by a repeal of the statutes of the different states constituting the impediments to their recovery, and the passing of such other acts as might be necessary to give the recovery entire efficacy in execution of the treaty. I consider a treaty (speaking generally, independent of the particular provisions on the subject in our present Constitution, Page 3 U. S. 272 the effect of which I shall afterwards observe upon) as a solemn promise by the whole nation that such and such things shall be done or that such and such rights shall be enjoyed. I think the distinction taken by the plaintiff's counsel as to stipulations in the treaty, executed or executory, will enable me to illustrate my meaning by considering various stipulations in the treaty in question. 1st. I will consider what may be deemed executed articles. In this class I would place, the acknowledgement of independence in the first article; the permission to fish on the banks in the third; the acknowledgement of the right to navigate the Mississippi in the eighth. These I call executed because, from the nature of them, they require no further act to be done. 2d. The executory (so far as they concern our part in the execution) I would place in three classes. Those which concern either, 1st, the legislative authority; 2d, the Executive; 3d, the judicial. The fourth article in question I consider to be a provision, the purpose of which could only be effected by the legislative authority, because when a nation promises to do a thing, it is to be understood that this promise is to be carried into execution in the manner which the Constitution of that nation prescribes. When, therefore, a treaty stipulates for anything of a legislative nature, the manner of giving effect to this stipulation is by that power which possesses the legislative authority and which consequently is authorized to prescribe laws to the people for their obedience, passing such laws as the public obligation requires. Laws are always seen, and through that medium people know what they have to do. Treaties are not always seen. Some articles (being what are called secret articles) the public never see. The present Constitution of the United States affords the first instance of any government which, by saying treaties should be the supreme law of the land made it indispensable that they should be published for the information of all. At the same time I admit that a treaty, when executed pursuant to full power, is valid and obligatory, in point of moral obligation, on all, as well on the legislative, executive, and judicial departments (so far as the authority of either extends, which in regard to the last, must in this respect be very limited) as on every individual of the nation, unconnected officially with either, because it is a promise in effect by the whole nation to another nation, and if not in fact complied with, unless there be valid reasons for noncompliance, the public faith is violated. I have mentioned this great article which concerns the legislative Page 3 U. S. 273 department. Let me now, by way of further illustration, consider one which concerns the executive. It is stipulated in one part of this treaty "That all prisoners on both sides shall be set at liberty." I very much doubt whether the Commander in Chief, without orders from Congress (then possessing the supreme executive authority of the Union) could have been justified in releasing such prisoners as he had then in custody after the ratification. Certainly no inferior officer in whose actual care they were could without an order directly or indirectly from the Commander in Chief. And yet I can see no reason, if a treaty is to be considered as operating de facto, by superior authority, notwithstanding any impediment arising from laws then in being, why the "rigor" of the treaty, which in that instance is said to be uncontrollable, should not be so in every other. If legislative authority is superseded, why not executive? Surely the former is not less sacred than the latter. In like manner as to the judicial. It is stipulated in the sixth article "That there shall be no future confiscations made, nor any prosecutions commenced against any person or persons, for or by reason of any part which he or they may have taken in the present war, and that no person shall on that account suffer any future loss or damage either in his person, liberty, or property, and that those who may be in confinement on such charges at the time of the ratification of the treaty in America shall be immediately set at liberty and the prosecutions so commenced be discontinued." I apprehend this article, so far as it respected the release of prisoners confined, could only be executed by an order from the judges of the court having judicial authority in the cases in question in consequence either of an actual alteration in the law by the legislature in conformity to the treaty (where that was necessary) or, of a particular pardon by the executive, and that if a jailer, merely because the treaty was ratified and he found this article in it, had set all such prisoners at liberty, he would have been guilty of an escape. This reasoning, in my opinion, derives considerable weight from the practice in Great Britain. The King of Great Britain certainly represents the sovereignty of the whole nation as to foreign negotiations as completely as the Congress of the United States ever represented the sovereignty of the Union in that particular. His power as to declaring war and making peace is as unlimited as the respective authorities for those purposes in the United States. The whole nation of Great Britain speaks as effectually and as completely through him as all the people of the United States can now speak through Congress as to a declaration of Page 3 U. S. 274 war, or through the President and Senate as to making peace, and of course as they ever did through Congress, under the old Articles of Confederation, the power certainly not being lessened. The law of nations equally applies to his treaties on behalf of Great Britain as it can apply to any treaty made on behalf of the United States. Yet I believe it is an invariable practice in that country, when the King makes any stipulation of a legislative nature, that it is carried into effect by an act of Parliament. The Parliament is considered as bound upon a principle of moral obligation to preserve the public faith pledged by the treaty by passing such laws as its obligation requires, but until such laws are passed, the system of law, entitled to actual obedience, remains de facto as before. I doubt not, if my time had admitted of a full search and I could have had access to the proper books for information, that I could find many instances of this. I will, however, mention one, which I have been able to procure here. It is a transaction of this nature, so late as the commercial treaty between Great Britain and France in 1786. The information I derive is from the Annual Registers of 1786 and 1787, which I suppose, as to this point, are correct. One article of the treaty was in these words: "The wines of France, imported directly from France to Great Britain, shall in no case pay any higher duties than those which the wines of Portugal now pay." This treaty was signed at Versailles 26 September, 1786. On 24 January, 1787, the King met his Parliament, and among other things, informed the two houses "That he had concluded a treaty of commerce with the French King, and had ordered a copy of it to be laid before them. He recommended, as the first object of their deliberations the necessary measures for carrying it into effect, and expressed his trust that they would find the provisions contained in it to be calculated for the encouragement of industry and the extension of lawful commerce in both countries, and by promoting a beneficial intercourse between their respective inhabitants, likely to give additional permanency to the blessings of peace." On 15 February, the House of Commons, being in a committee of the whole house, Mr. Pitt, the principal Minister of the Crown, moved the following resolution: "That the wines of France be imported into this country upon as low duties, as the present duties paid on the importation of Portugal wines." I have not had time to examine them all, but I doubt not it will be found on inspection that there was not a single provision Page 3 U. S. 275 in the treaty inconsistent with former Parliamentary regulations, but Parliament acted upon it by a new law calculated to give it effect. The following quotation,(which is a literal one) I think is very much to the purpose: "On the Monday following, the report of the committee, upon the commercial treaty was brought up and, on the usual motion's being made that the house do agree to the same, notice was taken of the omission of the mention of Ireland, both in the treaty and the tariff, and it was asked whether or not she was understood to be included in it? To this question Mr. Pitt replied that Ireland was undoubtedly entitled to all the benefits of the treaty, but it was entirely at her own option whether she would choose to avail herself of those advantages, for it was only to be done by her passing such laws as should put the tariff on the same footing in that country as it was stipulated should be done in this. Had the adoption of the treaty by Ireland, been a stipulation necessary to be performed before it could be finally concluded on in this country, then this country would have been deprived of all the benefits resulting from it in the event of Ireland's refusal." Now it is observable that in speaking of this tariff in the treaty, the King of Great Britain does not promise that the Parliament shall pass laws to such an effect; but the language is thus: "The two high contracting parties have thought proper to settle the duties on certain goods and merchandises in order to fix invariably the footing on which the trade therein shall be established between the two nations. In consequence of which, they have agreed upon the following tariff. . . ." In another part, the King of Great Britain says "His Britannic Majesty reserves the right of countervailing by additional duties on the undermentioned merchandises, the internal duties actually imposed upon the manufactures, or the import duties which are charged on the raw materials -- namely, on all linens or cottons, stained or painted, on beer, glassware, plate glass, and iron." Here is no mention of the Parliament, and yet no man living will say that a bare proclamation of the King upon the ground of the treaty would be an authority for the levying of any duties whatever; but it must be done in the constitutional mode, by act of Parliament, which affords an additional proof that where anything of a legislative nature is in contemplation, it is constantly implied and understood (without express words) that it can alone be effected by the medium of the legislative authority. Page 3 U. S. 276 That this practice I have noticed is not an occasional one, but has been constantly observed, I think is highly probable from this circumstance; that if treaties were considered in that country as ipso facto repealing all laws inconsistent with them and imposing new ones, they ought to be bound up with the statutes at large (which they never have been), otherwise the publication would be at least incomplete, if not deceitful. These examples from Great Britain I consider of very high authority, as they are taken from a kingdom equally bound by the law of nations as we are, possessing a mixed form of government as we do, and, so far as common principles of legislation are concerned, being the very country from which we derive the rudiments of our legal ideas. But I must admit that there is also a very high authority, and to which we naturally should be more partial, against this construction. It is the authority of the Congress of the United States in the year 1787. It is an authority derived from an unanimous opinion of that truly respectable body, conveyed in a circular letter from Congress to the different states on this very subject. I bow with proper deference to that great authority. But I should be unworthy of the high station I hold if I did not speak my real sentiments as a judge, uninfluenced by any authority whatsoever. It is certain that in this particular Congress was not exercising a judicial power, and therefore the opinion is not conclusive on any court of justice. I feel, however some consolation in differing from an opinion for which so much respect must and ought to be entertained by reflecting that though this was the unanimous opinion of Congress, it was not the unanimous opinion of the people of the United States. So far from it that I believe no suit was ever maintained in any court in the United States merely on the footing of the treaty when an act of the legislature stood in the way. It was to remove the obstacle arising from such an opinion that Congress recommended the repeal of all acts inconsistent with the due execution of the treaty. And I must with due submission say that in my opinion, without such a repeal no British creditor could have maintained a suit in virtue of the treaty, where any legislative impediment existed, until the present Constitution of the United States was formed. 2d. The article in the Constitution concerning treaties I have always considered, and do now consider, was in consequence of the conflict of opinions I have mentioned on the subject of the treaty in question. It was found in this instance, as in many others, that when thirteen different legislatures were necessary to act in unison on many occasions, it was in vain to expect that they would always agree to act as Congress might think it their duty to require. Requisitions formerly Page 3 U. S. 277 were made binding in point of moral obligation (so far as the amount of money was concerned, of which Congress was the constitutional judge), but the right and the power being separated, it was found often impracticable to make them act in conjunction. To obviate this difficulty, which everyone knows had been the means of greatly distressing the union and injuring its public credit, a power was given to the representatives of the whole union to raise taxes by their own authority for the good of the whole. Similar embarrassments had been found about the treaty. This was binding in moral obligation, but could not be constitutionally carried into effect (at least in the opinion of many), so far as acts of legislation then in being constituted an impediment, but by a repeal. The extreme inconveniencies felt from such a system dictated the remedy which the Constitution has now provided, "That all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land, and that the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding." Under this Constitution, therefore, so far as a treaty constitutionally is binding, upon principles of moral obligation, it is also by the vigor of its own authority to be executed in fact. It would not otherwise be the supreme law in the new sense provided for, and it was so before in a moral sense. The provision extends to subsisting as well as to future treaties. I consider, therefore, that when this Constitution was ratified, the case as to the treaty in question stood upon the same footing as if every act constituting an impediment to a creditor's recovery had been expressly repealed, and any further act passed, which the public obligation had before required, if a repeal alone would not have been sufficient. Before I go to the consideration of the words of the treaty itself, I think it material to say a few words as to the operation which an actual repeal would have had. I believe no one will doubt that everything done under the act while in existence, so far as private rights at least were concerned, would have been unaffected by the repeal. If a statute requires a will of lands to be executed in the presence of two witnesses, and a will is actually executed in that manner and the statute is afterwards repealed and three witnesses are made necessary, the will executed in the presence of two others when the former statute was in being would be undoubtedly good, and if I am not mistaken, a will made according to a law in being has been held good even though the devisor died after an alteration of it. Of this, however, I am not sure; but the general position, I imagine, will not be questioned. Page 3 U. S. 278 Let us now see the words of the treaty. They are these: "It is agreed that creditors on either side shall meet with no lawful impediment to the recovery of the full value in sterling money, of all bona fide debts heretofore contracted." The meaning of this provision may perhaps be better considered by an analysis of its parts so far as they concern the question before us. 1. Creditors -- There can be no creditor without two correlatives, a debtor and a debt. Prima facie, therefore, if a debtor has been discharged, he is not the person whom any other person can sue as a creditor. This probably may be fairly applied to the present defendant, who as a debtor was discharged by legal authority. With regard to the debt, that in the present instance was not extinguished even by the act of the state, because the right of the creditor to the money was not taken away. The debt therefore remains, but not from the same debtor. The state may be considered as substituting itself in some measure in the place of the debtor. The full effect of that substitution I am not now to consider, nor would it be proper for me at present to give an opinion upon it. The question is not whether the creditor is entitled to his money, or in what manner, but whether he is entitled to recover it against the present defendant. 2. No lawful impediment. These words must be construed as relative to the former, for the whole clause must be taken together. Therefore, where there are a creditor and a debtor, there is to be no lawful impediment to the former recovering against the latter. If the present defendant be not a debtor to the plaintiff, how can the treaty operate as against him? The words "lawful impediment," may admit of two senses. One "any lawful impediment whatsoever arising from any act done to the prejudice of a creditor's right during the war." I add that restriction "during the war" because the rules of construction as to treaties must narrow the words as to the object, the war, the affairs of which the Treaty of Peace was intended to operate upon. Or "any impediment arising from any law then in being or thereafter to be passed to the prejudice of a creditor's right." The latter, I think, is not an unnatural construction, and would give the words great operation, and I think is to be preferred to the former for the following reasons: 1. This would stipulate for what each legislature of the Union would rightfully and honestly do, relinquish public claims Page 3 U. S. 279 to debts existing before the war, and which otherwise might have stood upon a precarious footing, for though peace alone would do away a common law disability to sue, yet I apprehend it would not ipso facto remove a disability expressly created by statute, much less extinguish any public right acquired under any act of confiscation. 2. Though Congress possibly might, as the price of peace, have been authorized to give up even rights fully acquired by private persons during the war, more especially if derived from the laws of war only against the enemy, and in that case the individual might have been entitled to compensation from the public, for whose interests his own rights were sacrificed, yet nothing but the most rigorous necessity could justify such a sacrifice; such a sacrifice is not to be presumed even to have been intended under the operation of general words, not making such a construction unavoidable. For it is reasonable to infer that in such a case special words would have been used to obviate the least colorable doubt. Thus (for example) if it was stipulated in a treaty of peace between two European powers "that all ships taken during the war should be restored," I imagine this would not be construed to include ships taken by privateers, and legally condemned during the war, unless it had in fact happened that no other ships had been taken, and then I suppose they would be understood as comprehended, and their own nation must have indemnified them. 3. If, according to the practice in Great Britain, in conformity to the law of nations, and upon the principles of a mixed government, in case any impediments had then existed by acts of Parliament in Great Britain to the recovery of American debts, such impediments could only have been removed by a repeal, we may presume the British negotiator had reason to conclude that the lawful impediments in this country could only be removed in the same manner, and if so may we not fairly say that the impediments in view could be no other than such as the legislatures in the respective countries could do away by a repeal or might by subsequent laws enact? If they wanted a further act of legislation grounded not merely on ordinary legislative authority, but upon power to destroy private rights acquired under legislative faith, long since pledged and relied on, very special words were proper to effect that object, and neither in one country nor the other could it have been effected with the least color of justice but by providing at the same time the fullest means of indemnification. 4. This construction derives great weight from the recommendatory letter of Congress I before mentioned, for I will venture to say, had the act they recommended been passed in Page 3 U. S. 280 the state in the very words they recommended, they would not have had efficacy enough to destroy those payments as a bar. And yet, if Congress thought such a case ought to have been comprehended, I presume it would have recommended a special provision clearly comprehending such cases and accompanied with a full indemnity. I said the words of the treaty would have great operation, without giving them the very rigorous one contended for. And that will more fully appear when we take up the remaining words, viz., 3. "To the recovery of the full value in sterling money of all bona fide debts heretofore contracted." The operation (exclusive of these payments) would therefore be this: 1st. All creditors whose debts had not been confiscated or where the confiscations were not complete and no payments had been made would have a right of recovering their debts. 2d. Perhaps all creditors, whether their debts were confiscated or not or whether confiscations were complete or not, excepting those only from whom the government had received the money, would be entitled to recover, because undoubtedly the respective legislatures were competent to restore all these. 3d. Another object of no small importance was to secure the payment of all these debts in sterling money, so that the creditors might not suffer by paper currency, either then in existence or that might be thereafter emitted. When these general words, therefore, can comprehend so many cases, all reasonable objects of the article, I cannot think I am compelled as a judge, and therefore I ought not to do so, to say that the general words of this article, shall extinguish private as well as public rights. I hold public faith so sacred, when once pledged either to citizens or to foreigners, that a violation of that faith is never to be inferred as even in contemplation, but when it is impossible to give any other reasonable construction to a public act. I do not clearly see that it was intended in the present instance. I cannot therefore bring myself to say that the present defendant, having once lawfully paid the money, shall pay it over again. If the matter be only doubtful, I think the doubt should incline in favor of an innocent individual, and not against him. I should hope that the present plaintiff will still receive his money, as his right to the money certainly has not been divested, but I think, for all the reasons I have given, he is not entitled to recover it from the present defendant. My opinion, therefore, on the whole of this case is that judgment ought to be given for the defendant upon the second plea, upon the third, fourth and fifth for the plaintiff. Page 3 U. S. 281 WILSON, JUSTICE. I shall be concise in delivering my opinion, as it depends on a few plain principles. If Virginia had a power to pass the law of October, 1777, she must be equally empowered to pass a similar law in any future war, for the powers of Congress were in fact abridged by the Articles of Confederation, and in relation to the present Constitution she still retains her sovereignty and independence as a state, except in the instances of express delegation to the federal government. There are two points involved in the discussion of this power of confiscation, the first arising from the rule prescribed by the law of nations and the second arising from the construction of the treaty of peace. When the United States declared its independence, it was bound to receive the law of nations in its modern state of purity and refinement. By every nation, whatever is its form of government, the confiscation of debts has long been considered disreputable, and we know that not a single confiscation of that kind stained the code of any of the European powers, which were engaged in the war which our revolution produced. Nor did any authority for the confiscation of debts proceed from Congress (that body, which clearly possessed the right of confiscation as an incident of the powers of war and peace), and therefore, in no instance can the act of confiscation be considered as an act of the nation. But even if Virginia had the power to confiscate, the treaty annuls the confiscation. The fourth article is well expressed to meet the very case. it is not confined to debts existing at the time of making the treaty, but is extended to debts heretofore contracted. It is impossible by any glossary or argument, to make the words more perspicuous, more conclusive, than by a bare recital. Independent, therefore, of the Constitution of the United States, (which authoritatively inculcates the obligation of contracts), the treaty is sufficient to remove every impediment founded on the law of Virginia. The state made the law; the state was a party to the making of the treaty; a law does nothing more than express the will of a nation, and a treaty does the same. Under this general view of the subject, I think the judgment of the circuit court ought to be reversed. CUSHING, JUSTICE. My state of this case will, agreeably to my view of it, be short; I shall not question the right of a state to confiscate debts. Here is an act of the Assembly of Virginia, passed in 1777, respecting debts, which contemplating to prevent the enemy deriving strength by the receipt of them during the war, provides that if any British debtor will pay his debt into the Loan Office, obtain a certificate and Page 3 U. S. 282 receipt as directed, he shall be discharged from so much of the debt. But an intent is expressed in the act not to confiscate unless Great Britain should set the example. This act, it is said, works a discharge and a bar to the payer. If such payment is to be considered as a discharge or a bar so long as the act had force, the question occurs was there a power by the treaty, supposing it contained proper words, entirely to remove this law and this bar out of the creditor's way? This power seems not to have been contended against by the defendant's counsel, and indeed it cannot be denied, the treaty having been sanctioned in all its parts by the Constitution of the United States as the supreme law of the land. Then arises the great question upon the import of the fourth article of the treaty, and to me the plain and obvious meaning of it goes to nullify ab initio all laws, or the impediments of any law, as far as they might have been designed to impair or impede the creditor's right or remedy against his original debtor. "Creditors on either side shall meet with no lawful impediment to the recovery of the full value in sterling money of all bona fide debts heretofore contracted." The article speaking of creditors and bona fide debts heretofore contracted plainly contemplates debts as originally contracted, and creditors and original debtors, removing out of the way all legal impediments, so that a recovery might be had as if no such laws had particularly interposed. The words "recovery of the full value in sterling money," if they have force or meaning, must annihilate all tender laws making anything a tender but sterling money, and the other words, or at least the whole taken together, must in like manner remove all other impediments of law aimed at the recovery of those debts. What has some force to confirm this construction is the sense of all Europe that such debts could not be touched by states without a breach of public faith. And for that and other reasons, no doubt, this provision was insisted upon in full latitude by the British negotiators. If the sense of the article be as stated, it obviates at once all the ingenious, metaphysical reasoning and refinement upon the words "debt, discharge, extinguishment," and affords an answer to the decision made in the time of the interregnum that payment to sequestors was payment to the creditor. A state may make what rules it pleases, and those rules must necessarily have place within itself. But here is a treaty, the supreme law, which overrules all state laws upon the subject to all intents and purposes, and that makes the difference. Diverse objections are made to this construction: that it is an odious one, and as such ought to Page 3 U. S. 283 be avoided; that treaties regard the existing state of things; that it would carry an imputation upon public faith; that it is founded on the power of eminent domain, which ought not to be exercised but upon the most urgent occasions; that the negotiators themselves did not think they had power to repeal laws of confiscation because they, by the fifth article, only agreed that Congress should recommend a repeal to the states. As to the rule respecting odious constructions, that takes place where the meaning is doubtful, not where it is clear, as I think it is in this case. But it can hardly be considered as an odious thing to enforce the payment of an honest debt according to the true intent and meaning of the parties contracting, especially if, as in this case, the state having received the money, is bound in justice and honor to indemnify the debtor for what it in fact received. In whatever other rights this act of assembly may be reviewed, I consider it in one as containing a strong implied engagement on the part of the state to indemnify everyone who should pay money under it pursuant to the invitation it held out. Having never confiscated the debt, the state must, in the nature and reason of things, consider itself as answerable to the value. And this seems to be the full sense of the legislators upon this subject in a subsequent act of assembly; but the treaty holds the original debtor answerable to his creditor, as I understand the matter. The state therefore must be responsible to the debtor. These considerations will, in effect, exclude the idea of the power of eminent domain, and if they did not, yet there was sufficient authority to exercise it, and the greatest occasion that perhaps could ever happen. The same considerations will also take away all ground of imputation upon public faith. Again, the treaty regarded the existing state of things by removing the laws then existing, which intended to defeat the creditor of his usual remedy at law. As to the observations upon the recommendatory provision of the fifth article, I do not see that we can collect the private opinion of the negotiators respecting their powers by what they did not do, and if we could, this Court is not bound by their opinion unless the reasons on which it was founded, being known, were convincing. It would be hard upon them to suppose they gave up all that they might think they strictly had a right to give up. We may allow somewhat to skill, policy, and fidelity. With respect to confiscations of real and personal estates, which had been completed, the estates sold, and, perhaps, passed through the hands of a number of purchasers, and improvements made upon real estates by the then possessors, they knew that to give them up absolutely must create much confusion in this Page 3 U. S. 284 country. Avoiding that (whether from an apprehension of want of power does not appear from the instrument), they were led only to agree that Congress should recommend a restitution or composition. The fourth article, which is particularly and solely employed about debts, makes provision according to the doctrine then held sacred by all the sovereigns of Europe. Although our negotiators did not gain an exemption for individuals from bona fide debts contracted in time of peace, yet they gained much for this country -- as rights of fishery, large boundaries, a settled peace, and absolute independence, with their concomitant and consequent advantages. All which it might not have been prudent for them to risk by obstinately insisting on such exemption, either in whole or in part, contrary to the humane and meliorated policy of the civilized world in this particular. The fifth article, it is conceived, cannot affect or alter the construction of the fourth article. For first, it is against reason that a special provision made respecting debts by name should be taken away immediately after, in the next article, by general words, or words of implication, which words too, have otherwise ample matter to operate upon. 2d. No implication from the fifth article can touch the present case, because that speaks only of actual confiscations, and here was no confiscation. If we believe the Virginia legislators, they say, "We do not confiscate we will not confiscate debts, unless Great Britain sets the example," which it is not pretended she ever did. The provision, that "Creditors shall meet with no lawful impediment," etc is as absolute, unconditional, and peremptory, as words can well express, and made not to depend on the will and pleasure, or the optional conduct of any body of men whatever. To effect the object intended, there is no want of proper and strong language; there is no want of power, the treaty being sanctioned as the supreme law by the Constitution of the United States, which nobody pretends to deny to be paramount and controlling to all state laws, and even state constitutions, wheresoever they interfere or disagree. The treaty, then, as to the point in question, is of equal force with the Constitution itself, and certainly with any law whatsoever. And the words, "shall meet with no lawful impediment," etc., are as strong as the wit of man could devise to avoid all effects of sequestration, confiscation, or any other obstacle thrown in the way, by any law, particularly pointed against the recovery of such debts. I am therefore of opinion that the judgment of the circuit court ought to be reversed. Page 3 U. S. 285 BY THE COURT. All and singular the premises being seen by the Court here and fully understood, and mature deliberation had thereon, because it appears to the Court now here that in the record and process aforesaid, and also in the rendition of the judgment aforesaid upon the demurrer to the rejoinder of the defendants in error to the replication of the second plea, it is manifestly erred, it is considered that the said judgment for those errors and others in the record and process aforesaid be revoked and annulled and altogether held for nought, and it is further considered by the Court here that the plaintiff in error recover against the defendants �2,976 11s. 6p., good British money, commonly called sterling money, his debt aforesaid, and his costs by him about his suit in this behalf expended, and the said defendants, in mercy, etc. But this judgment is to be discharged by the payment of the sum of $596, and interest thereon to be computed, after the rate of five percent per annum, from 7 July, 1782, till payment, besides the costs, and by the payment of such damages as shall be awarded to the plaintiff in error on a writ of inquiry to be issued by the Circuit Court of Virginia, to ascertain the sum really due to the plaintiff in error, exclusively of the said sum of $596, which was found to be due to the plaintiff in error upon the trial in the said circuit court, on the issue joined upon the defendant's plea of payment at a time when the judgment of the said circuit court on the said demurrer was unreversed and in full force and vigor, and for the execution of the judgment of the court, the cause aforesaid is remanded to the said circuit court of Virginia. Judgment reversed.

Here is a summary of the case: In *Ware v. Hylton*, the Supreme Court ruled on a case concerning a debt owed by an American citizen to a British subject during the Revolutionary War. The case centered around a Virginia state law from 1779 that allowed debtors to pay their debts owed to British subjects into a state loan office instead of directly to the creditor during the war. The defendant, Hylton, had attempted to use this law to avoid repaying the debt to the plaintiff, Ware, after the war had ended and a peace treaty was signed in 1783. The Court ruled that the Virginia state law was annulled by the peace treaty, which guaranteed that creditors "shall meet with no lawful impediment" in recovering debts. The Court found that the state law was an impediment to the recovery of debts and therefore violated the treaty. As a result, the Court reversed the lower court's decision and ruled in favor of Ware, allowing him to recover the debt owed by Hylton. This case established the principle that state laws must comply with treaties signed by the United States and that treaties are the supreme law of the land, on par with the Constitution itself.

Role of Courts

Marbury v. Madison

https://supreme.justia.com/cases/federal/us/5/137/

U.S. Supreme Court Marbury v. Madison, 5 U.S. 1 Cranch 137 137 (1803) Marbury v. Madison 5 U.S. (1 Cranch) 137 Syllabus The clerks of the Department of State of the United States may be called upon to give evidence of transactions in the Department which are not of a confidential character. The Secretary of State cannot be called upon as a witness to state transactions of a confidential nature which may have occurred in his Department. But he may be called upon to give testimony of circumstances which were not of that character. Clerks in the Department of State were directed to be sworn, subject to objections to questions upon confidential matters. Some point of time must be taken when the power of the Executive over an officer, not removable at his will, must cease. That point of time must be when the constitutional power of appointment has been exercised. And the power has been exercised when the last act required from the person possessing the power has been performed. This last act is the signature of the commission. If the act of livery be necessary to give validity to the commission of an officer, it has been delivered when executed, and given to the Secretary of State for the purpose of being sealed, recorded, and transmitted to the party. In cases of commissions to public officers, the law orders the Secretary of State to record them. When, therefore, they are signed and sealed, the order for their being recorded is given, and, whether inserted inserted into the book or not, they are recorded. When the heads of the departments of the Government are the political or confidential officers of the Executive, merely to execute the will of the President, or rather to act in cases in which the Executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy. The President of the United States, by signing the commission, appointed Mr. Marbury a justice of the peace for the County of Washington, in the District of Columbia, and the seal of the United States, affixed thereto by the Secretary of State, is conclusive testimony of the verity of the signature, and of the completion of the appointment; and the appointment conferred on him a legal right to the office for the space of five years. Having this legal right to the office, he has a consequent right to the commission, a refusal to deliver which is a plain violation of that right for which the laws of the country afford him a remedy. To render a mandamus a proper remedy, the officer to whom it is directed must be one to whom, on legal principles, such writ must be directed, and the person applying for it must be without any other specific remedy. Where a commission to a public officer has been made out, signed, and sealed, and is withheld from the person entitled to it, an action of detinue for the commission against the Secretary of State who refuses to deliver it is not the proper remedy, as the judgment in detinue is for the thing itself, or its value. The value of a public office, not to be sold, is incapable of being ascertained. It is a plain case for a mandamus, either to deliver the commission or a copy of it from the record. To enable the Court to issue a mandamus to compel the delivery of the commission of a public office by the Secretary of State, it must be shown that it is an exercise of appellate jurisdiction, or that it be necessary to enable them to exercise appellate jurisdiction. It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create the cause. The authority given to the Supreme Court by the act establishing the judicial system of the United States to issue writs of mandamus to public officers appears not to be warranted by the Constitution. It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each. If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. At the December Term, 1801, William Marbury, Dennis Ramsay, Robert Townsend Hooe, and William Harper, by their counsel, Page 5 U. S. 138 severally moved the court for a rule to James Madison, Secretary of State of the United States, to show cause why a mandamus should not issue commanding him to cause to be delivered to them respectively their several commissions as justices of the peace in the District of Columbia. This motion was supported by affidavits of the following facts: that notice of this motion had been given to Mr. Madison; that Mr. Adams, the late President of the United States, nominated the applicants to the Senate for their advice and consent to be appointed justices of the peace of the District of Columbia; that the Senate advised and consented to the appointments; that commissions in due form were signed by the said President appointing them justices, &c., and that the seal of the United States was in due form affixed to the said commissions by the Secretary of State; that the applicants have requested Mr. Madison to deliver them their said commissions, who has not complied with that request; and that their said commissions are withheld from them; that the applicants have made application to Mr. Madison as Secretary of State of the United States at his office, for information whether the commissions were signed and sealed as aforesaid; that explicit and satisfactory information has not been given in answer to that inquiry, either by the Secretary of State or any officer in the Department of State; that application has been made to the secretary of the Senate for a certificate of the nomination of the applicants, and of the advice and consent of the Senate, who has declined giving such a certificate; whereupon a rule was made to show cause on the fourth day of this term. This rule having been duly served, Page 5 U. S. 139 Mr. Jacob Wagner and Mr. Daniel Brent, who had been summoned to attend the court and were required to give evidence, objected to be sworn, alleging that they were clerks in the Department of State, and not bound to disclose any facts relating to the business or transactions of the office. The court ordered the witnesses to be sworn, and their answers taken in writing, but informed them that, when the questions were asked, they might state their objections to answering each particular question, if they had any. Mr. Lincoln, who had been the acting Secretary of State, when the circumstances stated in the affidavits occurred, was called upon to give testimony. He objected to answering. The questions were put in writing. The court said there was nothing confidential required to be disclosed. If there had been, he was not obliged to answer it, and if he thought anything was communicated to him confidentially, he was not bound to disclose, nor was he obliged to state anything which would criminate himself. The questions argued by the counsel for the relators were, 1. Whether the Supreme Court can award the writ of mandamus in any case. 2. Whether it will lie to a Secretary of State, in any case whatever. 3. Whether, in the present case, the Court may award a mandamus to James Madison, Secretary of State. Page 5 U. S. 153 Mr. Chief Justice MARSHALL delivered the opinion of the Court. At the last term, on the affidavits then read and filed with the clerk, a rule was granted in this case requiring the Secretary of State to show cause why a mandamus Page 5 U. S. 154 should not issue directing him to deliver to William Marbury his commission as a justice of the peace for the county of Washington, in the District of Columbia. No cause has been shown, and the present motion is for a mandamus. The peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points which occur in it require a complete exposition of the principles on which the opinion to be given by the Court is founded. These principles have been, on the side of the applicant, very ably argued at the bar. In rendering the opinion of the Court, there will be some departure in form, though not in substance, from the points stated in that argument. In the order in which the Court has viewed this subject, the following questions have been considered and decided. 1. Has the applicant a right to the commission he demands? 2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? 3. If they do afford him a remedy, is it a mandamus issuing from this court? The first object of inquiry is: 1. Has the applicant a right to the commission he demands? His right originates in an act of Congress passed in February, 1801, concerning the District of Columbia. After dividing the district into two counties, the eleventh section of this law enacts, "that there shall be appointed in and for each of the said counties such number of discreet persons to be justices of the peace as the President of the United States shall, from time to time, think expedient, to continue in office for five years. " Page 5 U. S. 155 It appears from the affidavits that, in compliance with this law, a commission for William Marbury as a justice of peace for the County of Washington was signed by John Adams, then President of the United States, after which the seal of the United States was affixed to it, but the commission has never reached the person for whom it was made out. In order to determine whether he is entitled to this commission, it becomes necessary to inquire whether he has been appointed to the office. For if he has been appointed, the law continues him in office for five years, and he is entitled to the possession of those evidences of office, which, being completed, became his property. The second section of the second article of the Constitution declares, "The President shall nominate, and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, and all other officers of the United States, whose appointments are not otherwise provided for." The third section declares, that "He shall commission all the officers of the United States." An act of Congress directs the Secretary of State to keep the seal of the United States, "to make out and record, and affix the said seal to all civil commissions to officers of the United States to be appointed by the President, by and with the consent of the Senate, or by the President alone; provided that the said seal shall not be affixed to any commission before the same shall have been signed by the President of the United States." These are the clauses of the Constitution and laws of the United States which affect this part of the case. They seem to contemplate three distinct operations: 1. The nomination. This is the sole act of the President, and is completely voluntary. 2. The appointment. This is also the act of the President, and is also a voluntary act, though it can only be performed by and with the advice and consent of the Senate. Page 5 U. S. 156 3. The commission. To grant a commission to a person appointed might perhaps be deemed a duty enjoined by the Constitution. "He shall," says that instrument, "commission all the officers of the United States." The acts of appointing to office and commissioning the person appointed can scarcely be considered as one and the same, since the power to perform them is given in two separate and distinct sections of the Constitution. The distinction between the appointment and the commission will be rendered more apparent by adverting to that provision in the second section of the second article of the Constitution which authorises Congress "to vest by law the appointment of such inferior officers as they think proper in the President alone, in the Courts of law, or in the heads of departments;" thus contemplating cases where the law may direct the President to commission an officer appointed by the Courts or by the heads of departments. In such a case, to issue a commission would be apparently a duty distinct from the appointment, the performance of which perhaps could not legally be refused. Although that clause of the Constitution which requires the President to commission all the officers of the United States may never have been applied to officers appointed otherwise than by himself, yet it would be difficult to deny the legislative power to apply it to such cases. Of consequence, the constitutional distinction between the appointment to an office and the commission of an officer who has been appointed remains the same as if in practice the President had commissioned officers appointed by an authority other than his own. It follows too from the existence of this distinction that, if an appointment was to be evidenced by any public act other than the commission, the performance of such public act would create the officer, and if he was not removable at the will of the President, would either give him a right to his commission or enable him to perform the duties without it. These observations are premised solely for the purpose of rendering more intelligible those which apply more directly to the particular case under consideration. Page 5 U. S. 157 This is an appointment made by the President, by and with the advice and consent of the Senate, and is evidenced by no act but the commission itself. In such a case, therefore, the commission and the appointment seem inseparable, it being almost impossible to show an appointment otherwise than by proving the existence of a commission; still, the commission is not necessarily the appointment; though conclusive evidence of it. But at what stage does it amount to this conclusive evidence? The answer to this question seems an obvious one. The appointment, being the sole act of the President, must be completely evidenced when it is shown that he has done everything to be performed by him. Should the commission, instead of being evidence of an appointment, even be considered as constituting the appointment itself, still it would be made when the last act to be done by the President was performed, or, at furthest, when the commission was complete. The last act to be done by the President is the signature of the commission. He has then acted on the advice and consent of the Senate to his own nomination. The time for deliberation has then passed. He has decided. His judgment, on the advice and consent of the Senate concurring with his nomination, has been made, and the officer is appointed. This appointment is evidenced by an open, unequivocal act, and, being the last act required from the person making it, necessarily excludes the idea of its being, so far as it respects the appointment, an inchoate and incomplete transaction. Some point of time must be taken when the power of the Executive over an officer, not removable at his will, must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act required from the person possessing the power has been performed. This last act is the signature of the commission. This idea seems to have prevailed with the Legislature when the act passed converting the Department Page 5 U. S. 158 of Foreign Affairs into the Department of State. By that act, it is enacted that the Secretary of State shall keep the seal of the United States, "and shall make out and record, and shall affix the said seal to all civil commissions to officers of the United States, to be appointed by the President: . . . provided that the said seal shall not be affixed to any commission before the same shall have been signed by the President of the United States, nor to any other instrument or act without the special warrant of the President therefor." The signature is a warrant for affixing the great seal to the commission, and the great seal is only to be affixed to an instrument which is complete. It attests, by an act supposed to be of public notoriety, the verity of the Presidential signature. It is never to be affixed till the commission is signed, because the signature, which gives force and effect to the commission, is conclusive evidence that the appointment is made. The commission being signed, the subsequent duty of the Secretary of State is prescribed by law, and not to be guided by the will of the President. He is to affix the seal of the United States to the commission, and is to record it. This is not a proceeding which may be varied if the judgment of the Executive shall suggest one more eligible, but is a precise course accurately marked out by law, and is to be strictly pursued. It is the duty of the Secretary of State to conform to the law, and in this he is an officer of the United States, bound to obey the laws. He acts, in this respect, as has been very properly stated at the bar, under the authority of law, and not by the instructions of the President. It is a ministerial act which the law enjoins on a particular officer for a particular purpose. If it should be supposed that the solemnity of affixing the seal is necessary not only to the validity of the commission, but even to the completion of an appointment, still, when the seal is affixed, the appointment is made, and Page 5 U. S. 159 the commission is valid. No other solemnity is required by law; no other act is to be performed on the part of government. All that the Executive can do to invest the person with his office is done, and unless the appointment be then made, the Executive cannot make one without the cooperation of others. After searching anxiously for the principles on which a contrary opinion may be supported, none has been found which appear of sufficient force to maintain the opposite doctrine. Such as the imagination of the Court could suggest have been very deliberately examined, and after allowing them all the weight which it appears possible to give them, they do not shake the opinion which has been formed. In considering this question, it has been conjectured that the commission may have been assimilated to a deed to the validity of which delivery is essential. This idea is founded on the supposition that the commission is not merely evidence of an appointment, but is itself the actual appointment -- a supposition by no means unquestionable. But, for the purpose of examining this objection fairly, let it be conceded that the principle claimed for its support is established. The appointment being, under the Constitution, to be made by the President personally, the delivery of the deed of appointment, if necessary to its completion, must be made by the President also. It is not necessary that the livery should be made personally to the grantee of the office; it never is so made. The law would seem to contemplate that it should be made to the Secretary of State, since it directs the secretary to affix the seal to the commission after it shall have been signed by the President. If then the act of livery be necessary to give validity to the commission, it has been delivered when executed and given to the Secretary for the purpose of being sealed, recorded, and transmitted to the party. But in all cases of letters patent, certain solemnities are required by law, which solemnities are the evidences Page 5 U. S. 160 of the validity of the instrument. A formal delivery to the person is not among them. In cases of commissions, the sign manual of the President and the seal of the United States are those solemnities. This objection therefore does not touch the case. It has also occurred as possible, and barely possible, that the transmission of the commission and the acceptance thereof might be deemed necessary to complete the right of the plaintiff. The transmission of the commission is a practice directed by convenience, but not by law. It cannot therefore be necessary to constitute the appointment, which must precede it and which is the mere act of the President. If the Executive required that every person appointed to an office should himself take means to procure his commission, the appointment would not be the less valid on that account. The appointment is the sole act of the President; the transmission of the commission is the sole act of the officer to whom that duty is assigned, and may be accelerated or retarded by circumstances which can have no influence on the appointment. A commission is transmitted to a person already appointed, not to a person to be appointed or not, as the letter enclosing the commission should happen to get into the post office and reach him in safety, or to miscarry. It may have some tendency to elucidate this point to inquire whether the possession of the original commission be indispensably necessary to authorize a person appointed to any office to perform the duties of that office. If it was necessary, then a loss of the commission would lose the office. Not only negligence, but accident or fraud, fire or theft might deprive an individual of his office. In such a case, I presume it could not be doubted but that a copy from the record of the Office of the Secretary of State would be, to every intent and purpose, equal to the original. The act of Congress has expressly made it so. To give that copy validity, it would not be necessary to prove that the original had been transmitted and afterwards lost. The copy would be complete evidence that the original had existed, and that the appointment had been made, but not that the original had been transmitted. If indeed it should appear that Page 5 U. S. 161 the original had been mislaid in the Office of State, that circumstance would not affect the operation of the copy. When all the requisites have been performed which authorize a recording officer to record any instrument whatever, and the order for that purpose has been given, the instrument is in law considered as recorded, although the manual labour of inserting it in a book kept for that purpose may not have been performed. In the case of commissions, the law orders the Secretary of State to record them. When, therefore, they are signed and sealed, the order for their being recorded is given, and, whether inserted in the book or not, they are in law recorded. A copy of this record is declared equal to the original, and the fees to be paid by a person requiring a copy are ascertained by law. Can a keeper of a public record erase therefrom a commission which has been recorded? Or can he refuse a copy thereof to a person demanding it on the terms prescribed by law? Such a copy would, equally with the original, authorize the justice of peace to proceed in the performance of his duty, because it would, equally with the original, attest his appointment. If the transmission of a commission be not considered as necessary to give validity to an appointment, still less is its acceptance. The appointment is the sole act of the President; the acceptance is the sole act of the officer, and is, in plain common sense, posterior to the appointment. As he may resign, so may he refuse to accept; but neither the one nor the other is capable of rendering the appointment a nonentity. That this is the understanding of the government is apparent from the whole tenor of its conduct. A commission bears date, and the salary of the officer commences from his appointment, not from the transmission or acceptance of his commission. When a person appointed to any office refuses to accept that office, the successor is nominated in the place of the person who Page 5 U. S. 162 has declined to accept, and not in the place of the person who had been previously in office and had created the original vacancy. It is therefore decidedly the opinion of the Court that, when a commission has been signed by the President, the appointment is made, and that the commission is complete when the seal of the United States has been affixed to it by the Secretary of State. Where an officer is removable at the will of the Executive, the circumstance which completes his appointment is of no concern, because the act is at any time revocable, and the commission may be arrested if still in the office. But when the officer is not removable at the will of the Executive, the appointment is not revocable, and cannot be annulled. It has conferred legal rights which cannot be resumed. The discretion of the Executive is to be exercised until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases, where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it. Mr. Marbury, then, since his commission was signed by the President and sealed by the Secretary of State, was appointed, and as the law creating the office gave the officer a right to hold for five years independent of the Executive, the appointment was not revocable, but vested in the officer legal rights which are protected by the laws of his country. To withhold the commission, therefore, is an act deemed by the Court not warranted by law, but violative of a vested legal right. This brings us to the second inquiry, which is: 2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? Page 5 U. S. 163 The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain, the King himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court. In the third volume of his Commentaries, page 23, Blackstone states two cases in which a remedy is afforded by mere operation of law. "In all other cases," he says, "it is a general and indisputable rule that where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded." And afterwards, page 109 of the same volume, he says, "I am next to consider such injuries as are cognizable by the Courts of common law. And herein I shall for the present only remark that all possible injuries whatsoever that did not fall within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals are, for that very reason, within the cognizance of the common law courts of justice, for it is a settled and invariable principle in the laws of England that every right, when withheld, must have a remedy, and every injury its proper redress." The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right. If this obloquy is to be cast on the jurisprudence of our country, it must arise from the peculiar character of the case. It behooves us, then, to inquire whether there be in its composition any ingredient which shall exempt from legal investigation or exclude the injured party from legal redress. In pursuing this inquiry, the first question which presents itself is whether this can be arranged Page 5 U. S. 164 with that class of cases which come under the description of damnum absque injuria -- a loss without an injury. This description of cases never has been considered, and, it is believed, never can be considered, as comprehending offices of trust, of honour or of profit. The office of justice of peace in the District of Columbia is such an office; it is therefore worthy of the attention and guardianship of the laws. It has received that attention and guardianship. It has been created by special act of Congress, and has been secured, so far as the laws can give security to the person appointed to fill it, for five years. It is not then on account of the worthlessness of the thing pursued that the injured party can be alleged to be without remedy. Is it in the nature of the transaction? Is the act of delivering or withholding a commission to be considered as a mere political act belonging to the Executive department alone, for the performance of which entire confidence is placed by our Constitution in the Supreme Executive, and for any misconduct respecting which the injured individual has no remedy? That there may be such cases is not to be questioned. but that every act of duty to be performed in any of the great departments of government constitutes such a case is not to be admitted. By the act concerning invalids, passed in June, 1794, the Secretary at War is ordered to place on the pension list all persons whose names are contained in a report previously made by him to Congress. If he should refuse to do so, would the wounded veteran be without remedy? Is it to be contended that where the law, in precise terms, directs the performance of an act in which an individual is interested, the law is incapable of securing obedience to its mandate? Is it on account of the character of the person against whom the complaint is made? Is it to be contended that the heads of departments are not amenable to the laws of their country? Whatever the practice on particular occasions may be, the theory of this principle will certainly never be maintained. Page 5 U. S. 165 No act of the Legislature confers so extraordinary a privilege, nor can it derive countenance from the doctrines of the common law. After stating that personal injury from the King to a subject is presumed to be impossible, Blackstone, Vol. III. p. 255, says, "but injuries to the rights of property can scarcely be committed by the Crown without the intervention of its officers, for whom, the law, in matters of right, entertains no respect or delicacy, but furnishes various methods of detecting the errors and misconduct of those agents by whom the King has been deceived and induced to do a temporary injustice." By the act passed in 1796, authorizing the sale of the lands above the mouth of Kentucky river, the purchaser, on paying his purchase money, becomes completely entitled to the property purchased, and, on producing to the Secretary of State the receipt of the treasurer upon a certificate required by the law, the President of the United States is authorized to grant him a patent. It is further enacted that all patents shall be countersigned by the Secretary of State, and recorded in his office. If the Secretary of State should choose to withhold this patent, or, the patent being lost, should refuse a copy of it, can it be imagined that the law furnishes to the injured person no remedy? It is not believed that any person whatever would attempt to maintain such a proposition. It follows, then, that the question whether the legality of an act of the head of a department be examinable in a court of justice or not must always depend on the nature of that act. If some acts be examinable and others not, there must be some rule of law to guide the Court in the exercise of its jurisdiction. In some instances, there may be difficulty in applying the rule to particular cases; but there cannot, it is believed, be much difficulty in laying down the rule. By the Constitution of the United States, the President is invested with certain important political powers, in the Page 5 U. S. 166 exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders. In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and, being entrusted to the Executive, the decision of the Executive is conclusive. The application of this remark will be perceived by adverting to the act of Congress for establishing the Department of Foreign Affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the President. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the Courts. But when the Legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law, is amenable to the laws for his conduct, and cannot at his discretion, sport away the vested rights of others. The conclusion from this reasoning is that, where the heads of departments are the political or confidential agents of the Executive, merely to execute the will of the President, or rather to act in cases in which the Executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy. If this be the rule, let us inquire how it applies to the case under the consideration of the Court. Page 5 U. S. 167 The power of nominating to the Senate, and the power of appointing the person nominated, are political powers, to be exercised by the President according to his own discretion. When he has made an appointment, he has exercised his whole power, and his discretion has been completely applied to the case. If, by law, the officer be removable at the will of the President, then a new appointment may be immediately made, and the rights of the officer are terminated. But as a fact which has existed cannot be made never to have existed, the appointment cannot be annihilated, and consequently, if the officer is by law not removable at the will of the President, the rights he has acquired are protected by the law, and are not resumable by the President. They cannot be extinguished by Executive authority, and he has the privilege of asserting them in like manner as if they had been derived from any other source. The question whether a right has vested or not is, in its nature, judicial, and must be tried by the judicial authority. If, for example, Mr. Marbury had taken the oaths of a magistrate and proceeded to act as one, in consequence of which a suit had been instituted against him in which his defence had depended on his being a magistrate; the validity of his appointment must have been determined by judicial authority. So, if he conceives that, by virtue of his appointment, he has a legal right either to the commission which has been made out for him or to a copy of that commission, it is equally a question examinable in a court, and the decision of the Court upon it must depend on the opinion entertained of his appointment. That question has been discussed, and the opinion is that the latest point of time which can be taken as that at which the appointment was complete and evidenced was when, after the signature of the President, the seal of the United States was affixed to the commission. It is then the opinion of the Court: 1. That, by signing the commission of Mr. Marbury, the President of the United States appointed him a justice Page 5 U. S. 168 of peace for the County of Washington in the District of Columbia, and that the seal of the United States, affixed thereto by the Secretary of State, is conclusive testimony of the verity of the signature, and of the completion of the appointment, and that the appointment conferred on him a legal right to the office for the space of five years. 2. That, having this legal title to the office, he has a consequent right to the commission, a refusal to deliver which is a plain violation of that right, for which the laws of his country afford him a remedy. It remains to be inquired whether, 3. He is entitled to the remedy for which he applies. This depends on: 1. The nature of the writ applied for, and 2. The power of this court. 1. The nature of the writ. Blackstone, in the third volume of his Commentaries, page 110, defines a mandamus to be "a command issuing in the King's name from the Court of King's Bench, and directed to any person, corporation, or inferior court of judicature within the King's dominions requiring them to do some particular thing therein specified which appertains to their office and duty, and which the Court of King's Bench has previously determined, or at least supposes, to be consonant to right and justice." Lord Mansfield, in 3 Burrows, 1266, in the case of The King v. Baker et al., states with much precision and explicitness the cases in which this writ may be used. "Whenever," says that very able judge, "there is a right to execute an office, perform a service, or exercise a franchise (more especially if it be in a matter of public concern or attended with profit), and a person is kept out of possession, or dispossessed of such right, and Page 5 U. S. 169 has no other specific legal remedy, this court ought to assist by mandamus, upon reasons of justice, as the writ expresses, and upon reasons of public policy, to preserve peace, order and good government." In the same case, he says, "this writ ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one." In addition to the authorities now particularly cited, many others were relied on at the bar which show how far the practice has conformed to the general doctrines that have been just quoted. This writ, if awarded, would be directed to an officer of government, and its mandate to him would be, to use the words of Blackstone, "to do a particular thing therein specified, which appertains to his office and duty and which the Court has previously determined or at least supposes to be consonant to right and justice." Or, in the words of Lord Mansfield, the applicant, in this case, has a right to execute an office of public concern, and is kept out of possession of that right. These circumstances certainly concur in this case. Still, to render the mandamus a proper remedy, the officer to whom it is to be directed must be one to whom, on legal principles, such writ may be directed, and the person applying for it must be without any other specific and legal remedy. 1. With respect to the officer to whom it would be directed. The intimate political relation, subsisting between the President of the United States and the heads of departments, necessarily renders any legal investigation of the acts of one of those high officers peculiarly irksome, as well as delicate, and excites some hesitation with respect to the propriety of entering into such investigation. Impressions are often received without much reflection or examination, and it is not wonderful that, in such a case as this, the assertion by an individual of his legal claims in a court of justice, to which claims it is the duty of that court to attend, should, at first view, be considered Page 5 U. S. 170 by some as an attempt to intrude into the cabinet and to intermeddle with the prerogatives of the Executive. It is scarcely necessary for the Court to disclaim all pretensions to such a jurisdiction. An extravagance so absurd and excessive could not have been entertained for a moment. The province of the Court is solely to decide on the rights of individuals, not to inquire how the Executive or Executive officers perform duties in which they have a discretion. Questions, in their nature political or which are, by the Constitution and laws, submitted to the Executive, can never be made in this court. But, if this be not such a question; if so far from being an intrusion into the secrets of the cabinet, it respects a paper which, according to law, is upon record, and to a copy of which the law gives a right, on the payment of ten cents; if it be no intermeddling with a subject over which the Executive can be considered as having exercised any control; what is there in the exalted station of the officer which shall bar a citizen from asserting in a court of justice his legal rights, or shall forbid a court to listen to the claim or to issue a mandamus directing the performance of a duty not depending on Executive discretion, but on particular acts of Congress and the general principles of law? If one of the heads of departments commits any illegal act under colour of his office by which an individual sustains an injury, it cannot be pretended that his office alone exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law. How then can his office exempt him from this particular mode of deciding on the legality of his conduct if the case be such a case as would, were any other individual the party complained of, authorize the process? It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is to be determined. Where the head of a department acts in a case in which Executive discretion is to be exercised, in which he is the mere organ of Executive will, it is Page 5 U. S. 171 again repeated, that any application to a court to control, in any respect, his conduct, would be rejected without hesitation. But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the President, and the performance of which the President cannot lawfully forbid, and therefore is never presumed to have forbidden -- as for example, to record a commission, or a patent for land, which has received all the legal solemnities; or to give a copy of such record -- in such cases, it is not perceived on what ground the Courts of the country are further excused from the duty of giving judgment that right to be done to an injured individual than if the same services were to be performed by a person not the head of a department. This opinion seems not now for the first time to be taken up in this country. It must be well recollected that, in 1792, an act passed, directing the secretary at war to place on the pension list such disabled officers and soldiers as should be reported to him by the Circuit Courts, which act, so far as the duty was imposed on the Courts, was deemed unconstitutional; but some of the judges, thinking that the law might be executed by them in the character of commissioners, proceeded to act and to report in that character. This law being deemed unconstitutional at the circuits, was repealed, and a different system was established; but the question whether those persons who had been reported by the judges, as commissioners, were entitled, in consequence of that report, to be placed on the pension list was a legal question, properly determinable in the Courts, although the act of placing such persons on the list was to be performed by the head of a department. That this question might be properly settled, Congress passed an act in February, 1793, making it the duty of the Secretary of War, in conjunction with the Attorney General, to take such measures as might be necessary to obtain an adjudication of the Supreme Court of the United Page 5 U. S. 172 States on the validity of any such rights, claimed under the act aforesaid. After the passage of this act, a mandamus was moved for, to be directed to the Secretary of War, commanding him to place on the pension list a person stating himself to be on the report of the judges. There is, therefore, much reason to believe that this mode of trying the legal right of the complainant was deemed by the head of a department, and by the highest law officer of the United States, the most proper which could be selected for the purpose. When the subject was brought before the Court, the decision was not that a mandamus would not lie to the head of a department directing him to perform an act enjoined by law, in the performance of which an individual had a vested interest, but that a mandamus ought not to issue in that case -- the decision necessarily to be made if the report of the commissioners did not confer on the applicant a legal right. The judgment in that case is understood to have decided the merits of all claims of that description, and the persons, on the report of the commissioners, found it necessary to pursue the mode prescribed by the law subsequent to that which had been deemed unconstitutional in order to place themselves on the pension list. The doctrine, therefore, now advanced is by no means a novel one. It is true that the mandamus now moved for is not for the performance of an act expressly enjoined by statute. It is to deliver a commission, on which subjects the acts of Congress are silent. This difference is not considered as affecting the case. It has already been stated that the applicant has, to that commission, a vested legal right of which the Executive cannot deprive him. He has been appointed to an office from which he is not removable at the will of the Executive, and, being so Page 5 U. S. 173 appointed, he has a right to the commission which the Secretary has received from the President for his use. The act of Congress does not, indeed, order the Secretary of State to send it to him, but it is placed in his hands for the person entitled to it, and cannot be more lawfully withheld by him than by another person. It was at first doubted whether the action of detinue was not a specific legal remedy for the commission which has been withheld from Mr. Marbury, in which case a mandamus would be improper. But this doubt has yielded to the consideration that the judgment in detinue is for the thing itself, or its value. The value of a public office not to be sold is incapable of being ascertained, and the applicant has a right to the office itself, or to nothing. He will obtain the office by obtaining the commission or a copy of it from the record. This, then, is a plain case of a mandamus, either to deliver the commission or a copy of it from the record, and it only remains to be inquired: Whether it can issue from this Court. The act to establish the judicial courts of the United States authorizes the Supreme Court "to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States." The Secretary of State, being a person, holding an office under the authority of the United States, is precisely within the letter of the description, and if this Court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority and assigning the duties which its words purport to confer and assign. The Constitution vests the whole judicial power of the United States in one Supreme Court, and such inferior courts as Congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present Page 5 U. S. 174 case, because the right claimed is given by a law of the United States. In the distribution of this power. it is declared that "The Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction." It has been insisted at the bar, that, as the original grant of jurisdiction to the Supreme and inferior courts is general, and the clause assigning original jurisdiction to the Supreme Court contains no negative or restrictive words, the power remains to the Legislature to assign original jurisdiction to that Court in other cases than those specified in the article which has been recited, provided those cases belong to the judicial power of the United States. If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage -- is entirely without meaning -- if such is to be the construction. If Congress remains at liberty to give this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without substance. Affirmative words are often, in their operation, negative of other objects than those affirmed, and, in this case, a negative or exclusive sense must be given to them or they have no operation at all. It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it. Page 5 U. S. 175 If the solicitude of the Convention respecting our peace with foreign powers induced a provision that the Supreme Court should take original jurisdiction in cases which might be supposed to affect them, yet the clause would have proceeded no further than to provide for such cases if no further restriction on the powers of Congress had been intended. That they should have appellate jurisdiction in all other cases, with such exceptions as Congress might make, is no restriction unless the words be deemed exclusive of original jurisdiction. When an instrument organizing fundamentally a judicial system divides it into one Supreme and so many inferior courts as the Legislature may ordain and establish, then enumerates its powers, and proceeds so far to distribute them as to define the jurisdiction of the Supreme Court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction, the plain import of the words seems to be that, in one class of cases, its jurisdiction is original, and not appellate; in the other, it is appellate, and not original. ,If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to the obvious meaning. To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that, if it be the will of the Legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true; yet the jurisdiction must be appellate, not original. It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create that case. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper is, in effect, the same as to sustain an original action for that paper, and therefore seems not to belong to Page 5 U. S. 176 appellate, but to original jurisdiction. Neither is it necessary in such a case as this to enable the Court to exercise its appellate jurisdiction. The authority, therefore, given to the Supreme Court by the act establishing the judicial courts of the United States to issue writs of mandamus to public officers appears not to be warranted by the Constitution, and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised. The question whether an act repugnant to the Constitution can become the law of the land is a question deeply interesting to the United States, but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it. That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments. The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited Page 5 U. S. 177 and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act. Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable. Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void. This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject. If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each. Page 5 U. S. 178 So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law. This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure. That it thus reduces to nothing what we have deemed the greatest improvement on political institutions -- a written Constitution, would of itself be sufficient, in America where written Constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the Constitution of the United States furnish additional arguments in favour of its rejection. The judicial power of the United States is extended to all cases arising under the Constitution. Page 5 U. S. 179 Could it be the intention of those who gave this power to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained. In some cases then, the Constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey? There are many other parts of the Constitution which serve to illustrate this subject. It is declared that "no tax or duty shall be laid on articles exported from any State." Suppose a duty on the export of cotton, of tobacco, or of flour, and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the Constitution, and only see the law? The Constitution declares that "no bill of attainder or ex post facto law shall be passed." If, however, such a bill should be passed and a person should be prosecuted under it, must the Court condemn to death those victims whom the Constitution endeavours to preserve? "No person,' says the Constitution, 'shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." Here. the language of the Constitution is addressed especially to the Courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the Legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act? From these and many other selections which might be made, it is apparent that the framers of the Constitution Page 5 U. S. 180 contemplated that instrument as a rule for the government of courts, as well as of the Legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner to their conduct in their official character. How immoral to impose it on them if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support! The oath of office, too, imposed by the Legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: "I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States." Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if that Constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. To prescribe or to take this oath becomes equally a crime. It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank. Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument. The rule must be discharged.

In the landmark case of Marbury v. Madison, the Supreme Court of the United States established the principle of judicial review, holding that the Court has the power to strike down laws that violate the Constitution. The case revolved around the appointment of William Marbury as a justice of the peace by President John Adams. Marbury was appointed and commissioned, but his commission was not delivered before the end of Adams' term. The new Secretary of State, James Madison, refused to deliver the commission, and Marbury petitioned the Supreme Court for a writ of mandamus to compel Madison to deliver it. The Court held that Marbury did have a legal right to his commission, but the key issue was whether the Court could order Madison to deliver it. The Court concluded that it did not have original jurisdiction to issue a writ of mandamus in this case, as the law that purported to grant the Court such jurisdiction was found to be unconstitutional. Chief Justice Marshall, writing for a unanimous Court, famously stated, "It is explicitly the province and duty of the Judicial Department to say what the law is," thereby establishing the Court's role in interpreting the Constitution and reviewing the constitutionality of acts of Congress.

Role of Courts

Calder v. Bull

https://supreme.justia.com/cases/federal/us/3/386/

U.S. Supreme Court Calder v. Bull, 3 U.S. 3 Dall. 386 386 (1798) Calder v. Bull 3 U.S. (3 Dall.) 386 I N ERROR FROM THE STATE OF CONNECTICUT Syllabus A resolution or law of the State of Connecticut setting aside a decree of a court and granting a new trial to be had before the same court is not void under the Constitution as an ex post facto law. The Legislature of Connecticut, on the second Thursday of May, 1795, passed a resolution or law which set aside a decree of the Court of Probate for Hartford County made 21 March, 1793, disapproving a� the will of N.M. and refusing to record the will. The act of the legislature authorized a new hearing of the case before the court of probate, and an appeal to the superior court. Afterwards the will of N.M. was confirmed by the court of probate and by the Superior Court at Hartford;, and on an appeal to the Supreme Court of Errors of Connecticut the judgment of the superior court was confirmed. More than eighteen months had elapsed from the first decree of the court of probate, during which the right of appeal had been lost, and there was no law of Connecticut, before the passing of the special act of the legislature, by which a new hearing of the case could have been obtained. Held that the act of May, 1795, was not an ex post facto law prohibited by the Constitution of the United States. CHASE, JUSTICE. The decision of one question determines (in my opinion) the present dispute. I shall therefore state from the record no more of the case than I think necessary for the consideration of that question only. The Legislature of Connecticut, on the 2d Thursday of May, 1795, passed a resolution or law which, for the reasons assigned, set aside a decree of the Court of Probate for Harford on 21 March 1793, which decree disapproved of the will of Normand Morrison (the grandson) made 21 August, 1779, and refused to record the said will, and granted a new hearing by the said court of probate with liberty of appeal therefrom in six months. A new hearing was had in virtue of this resolution or law before the said court of probate, which, on 27 July, 1795, approved the said will and ordered it to be recorded. At August, 1795, appeal was then had to the Superior Court at Hartford, which, at February term, 1796, affirmed the decree of the court of probate. Appeal was had to the Supreme Court of Errors of Connecticut, which, in June, 1796, adjudged that there were no errors. More than 18 months elapsed from the decree of the court of probate (on 1 March, 1793) and thereby Caleb Bull and wife were barred of all right Page 3 U. S. 387 of appeal by a statute of Connecticut. There was no law of that state whereby a new hearing or trial before the said court of probate might be obtained. Calder and wife claim the premises in question, in right of his wife as heiress of N. Morrison, physician; Bull and wife claim under the will of N. Morrison, the grandson. The counsel for the plaintiffs in error contend that the said resolution or law of the Legislature of Connecticut granting a new hearing in the above case is an ex post facto law, prohibited by the Constitution of the United States; that any law of the federal government or of any of the state governments contrary to the Constitution of the United States is void, and that this Court possesses the power to declare such law void. It appears to me a self-evident proposition that the several state legislatures retain all the powers of legislation delegated to them by the state constitutions which are not expressly taken away by the Constitution of the United States. The establishing of courts of justice, the appointment of judges, and the making regulations for the administration of justice within each state according to its laws on all subjects not entrusted to the federal government appears to me to be the peculiar and exclusive province and duty of the state legislatures. All the powers delegated by the people of the United States to the federal government are defined, and no constructive powers can be exercised by it, and all the powers that remain in the state governments are indefinite except only in the Constitution of Massachusetts. The effect of the resolution or law of Connecticut above stated is to revise a decision of one of its inferior courts, called the Court of Probate for Hartford, and to direct a new hearing of the case by the same court of probate, that passed the decree against the will of Normand Morrison. By the existing law of Connecticut, a right to recover certain property had vested in Calder and wife (the appellants) in consequence of a decision of a court of justice, but, in virtue of a subsequent resolution or law and the new hearing thereof and the decision in consequence, this right to recover certain property was divested, and the right to the property declared to be in Bull and wife, the appellees. The sole inquiry is whether this resolution or law of Connecticut, having such operation, is an ex post facto law within the prohibition of the federal Constitution. Whether the legislature of any of the states can revise and correct by law a decision of any of its courts of justice, although not prohibited by the constitution of the state, is a question of very great importance, and not necessary now to be determined, because the resolution or law in question does not go so far. I cannot subscribe to the omnipotence of a state Page 3 U. S. 388 legislature, or that it is absolute and without control, although its authority should not be expressly restrained by the constitution or fundamental law of the state. The people of the United States erected their constitutions, or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty, and to protect their persons and property from violence. The purposes for which men enter into society will determine the nature and terms of the social compact, and as they are the foundation of the legislative power, they will decide what are the proper objects of it. The nature and ends of legislative power will limit the exercise of it. This fundamental principle flows from the very nature of our free republican governments that no man should be compelled to do what the laws do not require nor to refrain from acts which the laws permit. There are acts which the federal or state legislature cannot do without exceeding their authority. There are certain vital principles in our free republican governments which will determine and overrule an apparent and flagrant abuse of legislative power, as to authorize manifest injustice by positive law or to take away that security for personal liberty or private property for the protection whereof of the government was established. An act of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact and on republican principles must be determined by the nature of the power on which it is founded. A few instances will suffice to explain what I mean. A law that punished a citizen for an innocent action, or in other words for an act which when done was in violation of no existing law; a law that destroys or impairs the lawful private contracts of citizens; a law that makes a man a judge in his own cause, or a law that takes property from A. and gives it to B. It is against all reason and justice for a people to entrust a legislature with such powers, and therefore it cannot be presumed that it has done it. The genius, the nature, and the spirit of our state governments amount to a prohibition of such acts of legislation, and the general principles of law and reason forbid them. The legislature may enjoin, permit, forbid, and punish; It may declare new crimes and establish rules of conduct for all its citizens in future cases; it may command what is right and prohibit what is wrong, but it cannot change innocence into guilt or punish innocence as a crime or violate the right of an antecedent lawful private contract or the right of private property. To maintain that our federal or state legislature possesses such powers if it had not been expressly restrained would, Page 3 U. S. 389 in my opinion, be a political heresy altogether inadmissible in our free republican governments. All the restrictions contained in the Constitution of the United States on the power of the state legislatures were provided in favor of the authority of the federal government. The prohibition against its making any ex post facto laws was introduced for greater caution, and very probably arose from the knowledge that the Parliament of Great Britain claimed and exercised a power to pass such laws under the denomination of bills of attainder or bills of pains and penalties, the first inflicting capital and the other less punishment. These acts were legislative judgments and an exercise of judicial power. Sometimes they respected the crime by declaring acts to be treason which were not treason when committed; at other times they violated the rules of evidence (to supply a deficiency of legal proof) by admitting one witness when the existing law required two, by receiving evidence without oath or the oath of the wife against the husband, or other testimony which the courts of justice would not admit; at other times they inflicted punishments where the party was not by law liable to any punishment, and in other cases they inflicted greater punishment than the law annexed to the offense. The ground for the exercise of such legislative power was this, that the safety of the kingdom depended on the death or other punishment of the offender, as if traitors, when discovered, could be so formidable or the government so insecure! With very few exceptions, the advocates of such laws were stimulated by ambition or personal resentment and vindictive malice. To prevent such and similar, acts of violence and injustice, I believe, the federal and state legislatures were prohibited from passing any bill of attainder or any ex post facto law. The case of the Earl of Strafford in 1641. The case of Sir John Fenwick in 1696. The banishment of Lord Clarendon, 1669, 19 Ca. 2, c. 10, and of the Bishop of Atterbury in 1723, 9 Geo. I, c. 17. The Coventry Act, in 1670, 22 & 23 Car. II, c. 1. The Constitution of the United States, Article I, section 9, prohibits the Legislature of the United States from passing any ex post facto law, and in section 10 lays several restrictions on the authority of the legislatures of the several states, and among them "that no state shall pass any ex post facto law." It may be remembered that the legislatures of several of the states, to-wit, Massachusetts, Pennsylvania, Delaware, Maryland, and North and South Carolina, are expressly prohibited, by their state Constitutions from passing any ex post facto law. Page 3 U. S. 390 I shall endeavor to show what law is to be considered an ex post facto law within the words and meaning of the prohibition in the federal Constitution. The prohibition "that no state shall pass any ex post facto law" necessarily requires some explanation, for naked and without explanation it is unintelligible and means nothing. Literally, it is only that a law shall not be passed concerning and after the fact or thing done or action committed. I would ask, what fact, of what nature, or kind, and by whom done? That Charles I, King of England, was beheaded, that Oliver Cromwell was Protector of England, that Louis XVI, late King of France, was guillotined, are all facts that have happened, but it would be nonsense to suppose that the states were prohibited from making any law after either of these events and with reference thereto. The prohibition in the letter is not to pass any law concerning and after the fact, but the plain and obvious meaning and intention of the prohibition is this -- that the legislatures of the several states shall not pass laws after a fact done by a subject or citizen which shall have relation to such fact and shall punish him for having done it. The prohibition, considered in this light, is an additional bulwark in favor of the personal security of the subject, to protect his person from punishment by legislative acts having a retrospective operation. I do not think it was inserted to secure the citizen in his private rights of either property or contracts. The prohibitions not to make anything but gold and silver coin a tender in payment of debts and not to pass any law impairing the obligation of contracts were inserted to secure private rights, but the restriction not to pass any ex post facto law was to secure the person of the subject from injury or punishment in consequence of such law. If the prohibition against making ex post facto laws was intended to secure personal rights from being affected, or injured by such laws, and the prohibition is sufficiently extensive for that object, the other restraints I have enumerated were unnecessary, and therefore improper, for both of them are retrospective. I will state what laws I consider ex post facto laws within the words and the intent of the prohibition. 1st. Every law that makes an action done before the passing of the law and which was innocent when done, criminal and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the offender. Page 3 U. S. 391 All these and similar laws are manifestly unjust and oppressive. In my opinion, the true distinction is between ex post facto laws and retrospective laws. Every ex post facto law must necessarily be retrospective, but every retrospective law is not an ex post facto law. The former only are prohibited. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive, and it is a good general rule that a law should have no retrospect; but there are cases in which laws may justly, and for the benefit of the community and also of individuals, relate to a time antecedent to their commencement, as statutes of oblivion or of pardon. They are certainly retrospective, and literally both concerning and after the facts committed. But I do not consider any law ex post facto within the prohibition that mollifies the rigor of the criminal law, but only those that create or aggravate the crime or increase the punishment or change the rules of evidence for the purpose of conviction. Every law that is to have an operation before the making thereof, as to commence at an antecedent time or to save time from the statute of limitations or to excuse acts which were unlawful, and before committed, and the like, is retrospective. But such laws may be proper or necessary, as the case may be. There is a great and apparent difference between making an unlawful act lawful and the making an innocent action criminal and punishing it as a crime. The expressions " ex post facto laws" are technical; they had been in use long before the Revolution, and had acquired an appropriate meaning, by legislators, lawyers, and authors. The celebrated and judicious Sir William Blackstone, in his commentaries, considers an ex post facto law precisely in the same light I have done. His opinion is confirmed by his successor, Mr. Wooddeson, and by the author of the Federalist, who I esteem superior to both for his extensive and accurate knowledge of the true principles of government. I also rely greatly on the definition, or explanation of ex post facto laws as given by the Conventions of Massachusetts, Maryland, and North Carolina in their several constitutions or forms of government. In the declaration of rights by the convention of Massachusetts, part 1st, sec. 24, "Laws made to punish actions done before the existence of such laws, and which have not been declared crimes by preceding laws, are unjust. . . ." In the declaration of rights by the convention of Maryland, art. 15, "Retrospective laws punishing facts committed before the existence of such laws, and by them only declared criminal, are oppressive. . . ." Page 3 U. S. 392 In the declaration of rights by the Convention of North Carolina, art. 24, I find the same definition, precisely in the same words, as in the Maryland Constitution. In the declaration of Rights by the convention of Delaware, art. 11, the same definition was clearly intended, but inaccurately expressed by saying "laws punishing offenses [instead of actions, or facts] committed before the existence of such laws are oppressive. . . ." I am of opinion that the fact contemplated by the prohibition, and not to be affected by a subsequent law, was some fact to be done by a citizen or subject. In 2d Lord Raymond 1352, Raymond, Justice, called the stat. 7 Geo. I, stat. 2 par. 8, about registering contracts for South Sea Stock, an ex post facto law because it affected contracts made before the statute. In the present case there is no fact done by Bull and wife plaintiffs in error, that is in any manner affected by the law or resolution of Connecticut. It does not concern or relate to any act done by them. The decree of the Court of Probate of Hartford (on 21 March) in consequence of which Calder and wife claim a right to the property in question was given before the said law or resolution, and in that sense was affected and set aside by it, and in consequence of the law allowing a hearing and the decision in favor of the will, they have lost what they would have been entitled to if the law or resolution, and the decision in consequence thereof, had not been made. The decree of the court of probate is the only fact on which the law or resolution operates. In my judgment, the case of the plaintiffs in error is not within the letter of the prohibition, and for the reasons assigned I am clearly of opinion that it is not within the intention of the prohibition, and if within the intention but out of the letter, I should not, therefore, consider myself justified to continue it within the prohibition, and therefore that the whole was void. It was argued by the counsel for the plaintiffs in error that the Legislature of Connecticut had no constitutional power to make the resolution (or law) in question granting a new hearing, etc. Without giving an opinion at this time whether this Court has jurisdiction to decide that any law made by Congress contrary to the Constitution of the United States is void, I am fully satisfied that this Court has no jurisdiction to determine that any law of any state legislature contrary to the Constitution of such state is void. Further, if this Court had such jurisdiction, yet it does not appear to me that the resolution (or law) in question, is contrary to the charter of Connecticut or its constitution, which is said by counsel to be composed of its charter, Page 3 U. S. 393 acts of assembly, and usages and customs. I should think that the courts of Connecticut are the proper tribunals to decide whether laws contrary to the Constitution thereof are void. In the present case they have, both in the inferior and superior courts, determined that the resolution (or law) in question was not contrary to either their state or the federal Constitution. To show that the resolution was contrary to the Constitution of the United States, it was contended that the words " ex post facto law" have a precise and accurate meaning and convey but one idea to professional men, which is "by matter of after fact; by something after the fact." Co.Litt. 241; Fearnes Con.Rem. (Old Ed) 175 and 203; Powell on Devises 113, 133-134 were cited, and the table to Coke's Reports (by Wilson) title ex post facto, was referred to. There is no doubt that a man may be a trespasser from the beginning, by matter of after fact, as where an entry is given by law and the party abuses it, or where the law gives a distress and the party kills or works the distress. I admit an act unlawful in the beginning may, in some cases, become lawful by matter of after fact. I also agree that the words " ex post facto " have the meaning contended for, and no other, in the cases cited and in all similar cases, where they are used unconnected with and without relation to legislative acts or laws. There appears to me a manifest distinction between the case where one fact relates to and affects, another fact, as where an after fact, by operation of law, makes a former fact, either lawful or unlawful, and the case where a law made after a fact done, is to operate on and to affect such fact. In the first case, both the acts are done by private persons. In the second case, the first act is done by a private person and the second act is done by the legislature to affect the first act. I believe that but one instance can be found in which a British judge called a statute that affected contracts made before the statute an ex post facto law, but the judges of Great Britain always considered penal statutes that created crimes or increased the punishment of them as ex post facto laws. If the term " ex post facto law" is to be construed to include and to prohibit the enacting any law after a fact, it will greatly restrict the power of the federal and state legislatures, and the consequences of such a construction may not be foreseen. If the prohibition to make no ex post facto law extends to all laws made after the fact, the two prohibitions not to make anything but gold and silver coin a tender in payment of debts and not to pass any law impairing the obligation of contracts were improper and unnecessary. Page 3 U. S. 394 It was further urged that if the provision does not extend to prohibit the making any law after a fact, then all choses in action, all lands by devise, all personal property by bequest, or distribution, by elegit, by execution, by judgments, particularly on torts, will be unprotected from the legislative power of the states; rights vested may be divested at the will and pleasure of the state legislatures, and therefore that the true construction and meaning of the prohibition is that the states pass no law to deprive a citizen of any right vested in him by existing laws. It is not to be presumed that the federal or state legislatures will pass laws to deprive citizens of rights vested in them by existing laws unless for the benefit of the whole community and on making full satisfaction. The restraint against making any ex post facto laws was not considered by the framers of the Constitution as extending to prohibit the depriving a citizen even of a vested right to property or the provision "that private property should not be taken for public use, without just compensation" was unnecessary. It seems to me that the right of property, in its origin, could only arise from compact express or implied, and I think it the better opinion that the right as well as the mode or manner of acquiring property and of alienating or transferring, inheriting, or transmitting it is conferred by society, is regulated by civil institution, and is always subject to the rules prescribed by positive law. When I say that a right is vested in a citizen, I mean that he has the power to do certain actions or to possess certain things according to the law of the land. If anyone has a right to property, such right is a perfect and exclusive right; but no one can have such right before he has acquired a better right to the property than any other person in the world; a right, therefore, only to recover property cannot be called a perfect and exclusive right. I cannot agree that a right to property vested in Calder and wife, in consequence of the decree (of 21 March, 1783) disapproving of the will of Morrison, the grandson. If the will was valid, Mrs. Calder could have no right as heiress of Morrison, the physician, but if the will was set aside, she had an undoubted title. The resolution (or law) alone had no manner of effect on any right whatever vested in Calder and wife. The resolution (or law) combined with the new hearing, and the decision in virtue of it took away their right to recover the property in question. But when combined, they took away no right of property vested in Calder and wife, because the decree against the will (21 March, 1783) did not vest in or transfer any property to them. Page 3 U. S. 395 I am under a necessity to give a construction or explanation of the words " ex post facto law" because they have not any certain meaning attached to them. But I will not go further than I feel myself bound to do, and if I ever exercise the jurisdiction, I will not decide any law to be void but in a very clear case. I am of opinion that the decree of the Supreme Court of Errors of Connecticut be affirmed with costs. PATERSON, JUSTICE. The Constitution of Connecticut is made up of usages, and it appears that its legislature has from the beginning exercised the power of granting new trials. This has been uniformly the case till the year 1762, when this power was by a legislative act imparted to the superior and county courts. But the act does not remove or annihilate the preexisting power of the legislature in this particular; it only communicates to other authorities a concurrence of jurisdiction as to the awarding of new trials. And the fact is that the legislature has in two instances exercised this power since the passing of the law in 1762. It acted in a double capacity, as a house of legislation with undefined authority and also as a court of judicature in certain exigencies. Whether the latter arose from the indefinite nature of their legislative powers or in some other way it is not necessary to discuss. From the best information, however, which I have been able to collect on this subject, it appears that the legislature, or General Court of Connecticut, originally possessed and exercised all legislative, executive, and judicial authority, and that from time to time it distributed the two latter in such manner as it thought proper, but without parting with the general superintending power or the right of exercising the same whenever it should judge it expedient. But be this as it may, it is sufficient for the present to observe that it has on certain occasions exercised judicial authority from the commencement of its civil polity. This usage makes up part of the Constitution of Connecticut, and we are bound to consider it as such unless it be inconsistent with the Constitution of the United States. True it is that the awarding of new trials falls properly within the province of the judiciary; but if the Legislature of Connecticut has been in the uninterrupted exercise of this authority in certain cases, we must in such cases respect its decisions as flowing from a competent jurisdiction or constitutional organ. And therefore we may, in the present instance, consider the legislature of the state as having acted in its customary judicial capacity. If so, there is an end of the question. For if the power, thus exercised comes more properly within the description of a judicial than of a legislative power, and if by usage or the Page 3 U. S. 396 constitution, which, in Connecticut, are synonymous terms, the legislature of that state acted in both capacities, then in the case now before us it would be fair to consider the awarding of a new trial as an act emanating from the judiciary side of the department. But as this view of the subject militates against the plaintiffs in error, their counsel has contended for a reversal of the judgment on the ground that the awarding of a new trial was the effect of a legislative act, and that it is unconstitutional because an ex post facto law. For the sake of ascertaining the meaning of these terms, I will consider the resolution of the General Court of Connecticut as the exercise of a legislative, and not a judicial, authority. The question, then, which arises on the pleadings in this cause is whether the resolution of the Legislature of Connecticut be an ex post facto law within the meaning of the Constitution of the United States. I am of opinion that it is not. The words " ex post facto, " when applied to a law, have a technical meaning, and in legal phraseology refer to crimes, pains, and penalties. Judge Blackstone's description of the terms is clear and accurate. "There is," says he, "a still more unreasonable method than this, which is called making of laws, ex post facto, when after an action, indifferent in itself, is committed, the legislator then, for the first time, declares it to have been a crime and inflicts a punishment upon the person who has committed it. Here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law; he had, therefore, no cause to abstain from it, and all punishment for not abstaining, must of consequence be cruel and unjust." 1 Bl.Com. 46. Here the meaning annexed to the terms " ex post facto laws" unquestionably refers to crimes and nothing else. The historic page abundantly evinces that the power of passing such laws should be withheld from legislators, as it is a dangerous instrument in the hands of bold, unprincipled, aspiring, and party men, and has been two often used to effect the most detestable purposes. On inspecting such of our state constitutions as take notice of laws made ex post facto, we shall find that they are understood in the same sense. The Constitution of Massachusetts, article 24th of the Declaration of rights. "Laws made to punish for actions done before the existence of such laws, and which have not been declared crimes by preceding laws, are unjust, oppressive, and inconsistent with the fundamental principles of a free government." The Constitution of Delaware, article 11 of the Declaration of Rights: Page 3 U. S. 397 "That retrospective laws punishing offenses committed before the existence of such laws are oppressive and unjust, and ought not to be made." The Constitution of Maryland, article 15 of the Declaration of Rights: "That retrospective laws punishing facts committed before the existence of such laws and by them only declared criminal are oppressive, unjust, and incompatible with liberty, wherefore no ex post facto law ought to be made." The Constitution of North Carolina, article 24 of the Declaration of Rights: "That retrospective laws punishing facts committed before the existence of such laws and by them only declared criminal are oppressive, unjust, and incompatible with liberty, wherefore no ex post facto law ought to be made." From the above passages it appears that ex post facto laws have an appropriate signification; they extend to penal statutes, and no further; they are restricted in legal estimation to the creation, and perhaps enhancement of crimes, pains, and penalties. The enhancement of a crime or penalty seems to come within the same mischief as the creation of a crime or penalty, and therefore they may be classed together. Again, the words of the Constitution of the United States are "That no state shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts." Article I, section 10. Where is the necessity or use of the latter words if a law impairing the obligation of contracts be comprehended within the terms " ex post facto law?" It is obvious from the specification of contracts in the last member of the clause that the framers of the Constitution did not understand or use the words in the sense contended for on the part of the plaintiffs in error. They understood and used the words in their known and appropriate signification, as referring to crimes, pains, and penalties, and no further. The arrangement of the distinct members of this section necessarily points to this meaning. I had an ardent desire to have extended the provision in the Constitution to retrospective laws in general. There is neither policy nor safety in such laws, and therefore I have always had a strong aversion against them. It may in general be truly observed of retrospective laws of every description that they neither accord with sound legislation nor the fundamental principles of the social compact. But on full consideration I am convinced that ex post facto laws must be limited in the manner already expressed; they must be taken in their technical, which is also their common and general, acceptation, and are not to be understood in their literal sense. Page 3 U. S. 398 IREDELL, JUSTICE. Though I concur in the general result of the opinions which have been delivered, I cannot entirely adopt the reasons that are assigned upon the occasion. From the best information to be collected, relative to the Constitution of Connecticut, it appears that the legislature of that state has been in the uniform uninterrupted habit of exercising a general superintending power over its courts of law by granting new trials. It may indeed appear strange to some of us that in any form there should exist a power to grant, with respect to suits depending or adjudged, new rights of trial, new privileges of proceeding not previously recognized and regulated by positive institutions, but such is the established usage of Connecticut, and it is obviously consistent with the general superintending authority of her legislature. Nor is it altogether without some sanction for a legislature to act as a court of justice. In England, we know that one branch of the Parliament, the House of Lords, not only exercises a judicial power in cases of impeachment and for the trial of its own members, but as the court of dernier resort, takes cognizance of many suits at law, and in equity. And that in construction of law, the jurisdiction there exercised is by the King in full Parliament, which shows that in its origin, the causes were probably heard before the whole Parliament. When Connecticut was settled, the right of empowering her legislature to superintend the courts of justice was, I presume, early assumed, and its expediency, as applied to the local circumstances and municipal policy of the state, is sanctioned by a long and uniform practice. The power, however, is judicial in its nature, and whenever it is exercised, as in the present instance, it is an exercise of judicial, not of legislative, authority. But, let us for a moment suppose, that the resolution granting a new trial was a legislative act, it will by no means follow that it is an act affected by the constitutional prohibition that "no state shall pass any ex post facto law." I will endeavor to state the general principles which influence me on this point succinctly and clearly, though I have not had an opportunity to reduce my opinion to writing. If, then, a government, composed of legislative, executive and judicial departments, were established by a constitution which imposed no limits on the legislative power, the consequence would inevitably be that whatever the legislative power chose to enact would be lawfully enacted, and the judicial power could never interpose to pronounce it void. It is true that some speculative jurists have held that a legislative act against natural justice must in itself be void, but I cannot think that under such a government any court of justice would possess a power to declare it so. Sir William Blackstone, having put the strong case of an act of Parliament which should Page 3 U. S. 399 authorize a man to try his own cause, explicitly adds that even in that case, "there is no court that has power to defeat the intent of the legislature when couched in such evident and express words as leave no doubt whether it was the intent of the legislature or no." 1 Bl.Com. 91. In order, therefore, to guard against so great an evil, it has been the policy of all the American states which have individually framed their state constitutions since the Revolution, and of the people of the United States when they framed the federal Constitution, to define with precision the objects of the legislative power and to restrain its exercise within marked and settled boundaries. If any act of Congress or of the legislature of a state violates those constitutional provisions, it is unquestionably void, though I admit that as the authority to declare it void is of a delicate and awful nature, the court will never resort to that authority but in a clear and urgent case. If, on the other hand, the legislature of the Union or the legislature of any member of the Union shall pass a law within the general scope of its constitutional power, the court cannot pronounce it to be void merely because it is in its judgment contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard; the ablest and the purest men have differed upon the subject, and all that the court could properly say in such an event would be that the legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice. There are then but two lights in which the subject can be viewed: 1st. If the legislature pursue the authority delegated to it, its acts are valid. 2d. If it transgresses the boundaries of that authority, its acts are invalid. In the former case, it exercises the discretion vested in it by the people, to whom alone it is responsible for the faithful discharge of its trust, but in the latter case it violates a fundamental law which must be our guide whenever we are called upon as judges to determine the validity of a legislative act. Still, however, in the present instance, the act or resolution of the Legislature of Connecticut cannot be regarded as an ex post facto law, for the true construction of the prohibition extends to criminal, not to civil, cases. It is only in criminal cases, indeed, in which the danger to be guarded against is greatly to be apprehended. The history of every country in Europe will furnish flagrant instances of tyranny exercised under the pretext of penal dispensations. Rival factions, in their efforts to crush each other, have superseded all the forms and suppressed all the sentiments of justice, while attainders, on the principle of retaliation and proscription, have marked all the Page 3 U. S. 400 vicissitudes of party triumph. The temptation to such abuses of power is unfortunately too alluring for human virtue, and therefore the framers of the American Constitutions have wisely denied to the respective legislatures, federal as well as state, the possession of the power itself. They shall not pass any ex post facto law, or, in other words, they shall not inflict a punishment for any act, which was innocent at the time it was committed, nor increase the degree of punishment previously denounced for any specific offense. The policy, the reason and humanity, of the prohibition do not, I repeat, extend to civil cases, to cases that merely affect the private property of citizens. Some of the most necessary and important acts of legislation are, on the contrary, founded upon the principle that private rights must yield to public exigencies. Highways are run through private grounds. Fortifications, lighthouses, and other public edifices are necessarily sometimes built upon the soil owned by individuals. In such and similar cases, if the owners should refuse voluntarily to accommodate the public, they must be constrained, as far as the public necessities require, and justice is done by allowing them a reasonable equivalent. Without the possession of this power, the operations of government would often be obstructed and society itself would be endangered. It is not sufficient to urge that the power may be abused, for such is the nature of all power, such is the tendency of every human institution, and it might as fairly be said that the power of taxation, which is only circumscribed by the discretion of the body in which it is vested, ought not to be granted, because the legislature, disregarding its true objects, might, for visionary and useless projects, impose a tax to the amount of nineteen shillings in the pound. We must be content to limit power where we can, and where we cannot, consistently with its use, we must be content to repose a salutary confidence. It is our consolation that there never existed a government in ancient or modern times more free from danger in this respect than the governments of America. Upon the whole, though there cannot be a case in which an ex post facto law in criminal matters is requisite or justifiable (for providence never can intend to promote the prosperity of any country by bad means), yet in the present instance, the objection does not arise, because, 1st, if the act of the Legislature of Connecticut was a judicial act, it is not within the words of the Constitution, and 2d, even if it was a legislative act, it is not within the meaning of the prohibition. CUSHING, JUSTICE. The case appears to me to be clear of all difficulty, taken either way. If the act is a judicial act, it is not touched by the federal Constitution, and if it is a legislative Page 3 U. S. 401 act, it is maintained and justified by the ancient and uniform practice of the State of Connecticut. Judgment affirmed.

In Calder v. Bull, the U.S. Supreme Court held that a state legislature's act setting aside a court decree and granting a new trial is not an ex post facto law prohibited by the U.S. Constitution. The Court distinguished between criminal and civil cases, finding that the prohibition on ex post facto laws applies only to criminal matters. In this case, the act affected private property rights and was justified by the state's long-standing practice. The Court also noted that the act was either a judicial act, which is not covered by the Constitution, or a legislative act supported by the state's historical practice.

Role of Courts

Martin v. Hunter's Lessee

https://supreme.justia.com/cases/federal/us/14/304/

U.S. Supreme Court Martin v. Hunter's Lessee, 14 U.S. 1 Wheat. 304 304 (1816) Martin v. Hunter's Lessee 14 U.S. (1 Wheat.) 304 ERROR TO THE COURT OF APPEALS OF THE STATE OF VIRGINIA Page 14 U. S. 305 This was a writ of error to the Court of appeals of the state of Virginia, founded upon the refusal of that Court to obey the mandate of this Court, requiring the judgment rendered in this same cause, at February Term, 1813, to be carried into due execution. The following is the judgment of the Court of appeals, rendered on the mandate: "The Court is unanimously of opinion that the appellate power of the Supreme Court of the United States does not Page 14 U. S. 306 extend to this Court under a sound construction of the Constitution of the United States; that so much of the 25th section of the act of Congress, to establish the judicial courts of the United States as extends the appellate jurisdiction of the Supreme Court to this Court is not in pursuance of the Constitution of the United States. That the writ of error in this cause was improvidently allowed under the authority of that act; that the proceedings thereon in the Supreme Court were coram non judice in relation to this Court, and that obedience to its mandate be declined by the Court." The original suit was an action of ejectment, brought by the defendant in error in one of the district courts of Virginia, holden at Winchester, for the recovery of a parcel of land, situate within that tract, called the Northern Neck of Virginia, and part and parcel thereof. A declaration in ejectment was served (April, 1791) on the tenants in possession, whereupon Denny Fairfax (late Denny Martin), a British subject, holding the land in question under the devise of the late Thomas Lord Fairfax, was admitted to defend the suit, and plead the general issue, upon the usual terms of confessing lease, entry, and ouster, &c., and agreeing to insist, at the trial, on the title only, &c. The facts being settled in the form of a case agreed to be taken and considered as a special verdict, the Court, on consideration thereof, gave judgment (24th of April, 1794) in favour of the defendant in ejectment. From that judgment the plaintiff in ejectment (now defendant in error) appealed to the Court of Appeals, Page 14 U. S. 307 being the highest court of law of Virginia. At April term, 1810, the Court of appeals reversed the judgment of the district Court and gave judgment for the then appellant, now defendant in error, and thereupon the case was removed into this Court. Statement of the facts as settled by the case agreed. 1st. The title of the late Lord Fairfax to all that entire territory and tract of land called the Northern Neck of Virginia, the nature of his estate in the same, as he inherited it, and the purport of the several charters and grants from the Kings Charles II. and James II., under which his ancestor held, are agreed to be truly recited in an Act of the Assembly of Virginia, passed in the year 1736, [Vide Rev.Code, v. 1. ch. 3. p. 5] "For the confirming and better securing the titles to lands in the Northern Neck, held under the Rt. Hon. Thomas Lord Fairfax," &c. From the recitals of the act, it appears that the first letters patent (1 Car. II.) granting the land in question to Ralph Lord Hopton and others, being surrendered in order to have the grant renewed, with alterations, the Earl of St. Albans and others (partly survivors of, and partly purchasers under, the first patentees) obtained new letters patent (2 Car. II) for the same land and appurtenances, and by the same description, but with additional privileges and reservations, &c. The estate granted is described to be, "All that entire tract, territory, or parcel of land, situate, &c., and bounded by, and within the heads of, the Rivers Rappahannock, &c., together with the rivers themselves, and all the islands, &c., and all woods, underwoods, timber, &c., Page 14 U. S. 308 mines of gold and silver, lead, tin, &c., and quarries of stone and coal, &c., to have, hold, and enjoy the said tract of land, &c. to the said [patentees], their heirs and assigns forever, to their only use and behoof, and to no other use, intent, or purpose whatsoever." There is reserved to the crown the annual rent of 6l. 13s. 4d. "in lieu of all services and demands whatsoever;" also one-fifth part of all gold, and one-tenth part of all silver mines. To the absolute title and seisin in fee of the land and its appurtenance, and the beneficial use and enjoyment of the same, assured to the patentees, as tenants in capite, by the most direct and abundant terms of conveyancing, there are superadded certain collateral powers of baronial dominion; reserving, however, to the Governor, Council and Assembly of Virginia the exclusive authority in all the military concerns of the granted territory, and the power to impose taxes on the persons and property of its inhabitants for the public and common defence of the colony, as well as a general jurisdiction over the patentees, their heirs and assigns, and all other inhabitants of the said territory. In the enumeration of privileges specifically granted to the patentees, their heirs and assigns, is that "freely and without molestation of the King, to give, grant, or by any ways or means, sell or alien all and singular the granted premises, and every part and parcel thereof, to any person or persons being willing to contract for, or buy, the same." There is also a condition to avoid the grant, as to so much of the granted premises as should not be Page 14 U. S. 309 possessed, inhabited, or planted, by the means or procurement of the patentees, their heirs or assigns, in the space of 21 years. The third and last of the letters patent referred to (4 Jac. II) after reciting a sale and conveyance of the granted premises by the former patentees, to Thomas Lord Culpepper, "who was thereby become sole owner and proprietor thereof, in fee simple," proceeds to confirm the same to Lord Culpepper, in fee simple, and to release him from the said condition, for having the lands inhabited or planted as aforesaid. The said act of assembly then recites that Thomas Lord Fairfax, heir at law of Lord Culpepper, had become "sole proprietor of the said territory, with the appurtenances, and the above-recited letters patent." By another act of assembly, passed in the year 1748 (Rev.Code, v. 1. ch. 4. p. 10), certain grants from the crown, made while the exact boundaries of the Northern Neck were doubtful, for lands which proved to be within those boundaries, as then recently settled and determined, were, with the express consent of Lord Fairfax, confirmed to the grantees, to be held, nevertheless, of him, and all the rents, services, profits, and emoluments (reserved by such grants) to be paid and performed to him. In another Act of Assembly, passed May, 1779, for establishing a land office, and ascertaining the terms and manner of granting waste and unappropriated lands, there is the following clause, viz. ( vide Chy.Rev. of 1783, ch. 13. s. 6. p. 98.) "And that the Page 14 U. S. 310 proprietors of land within this Commonwealth may no longer be subject to any servile, feudal, or precarious tenure, and to prevent the danger to a free state from perpetual revenue, be it enacted, that the royal mines, quit-rents, and all other reservations and conditions in the patents or grants of land from the crown of England, under the former government, shall be, and are hereby declared null and void; and that all lands thereby respectively granted shall be held in absolute and unconditional property, to all intents and purposes whatsoever, in the same manner with the lands hereafter granted by the Commonwealth, by virtue of this act." 2d. As respects the actual exercise of his proprietary rights by Lord Fairfax. It is agreed that he did, in the year 1748, open and conduct, at his own expense, an office within the Northern Neck for granting and conveying what he described and called the waste and ungranted lands therein, upon certain terms, and according to certain rules by him established and published; that he did, from time to time, grant parcels of such lands in fee (the deeds being registered at his said office, in books kept for that purpose, by his own clerks and agents); that, according to the uniform tenor of such grants, he did, styling himself proprietor of the Northern Neck, &c., in consideration of a certain composition to him paid, and of certain annual rents therein reserved, grant, &c., with a clause of reentry for non-payment of the rent, & c.; that he also demised, for lives and terms of years, parcels of the same description of lands, also reserving annual Page 14 U. S. 311 rents; that he kept his said office open for the purposes aforesaid, from the year 1748 till his death, in December, 1781; during the whole of which period, and before, he exercised the right of granting in fee, and demising for lives and terms of years, as aforesaid, and received and enjoyed the rents annually, as they accrued, as well under the grants in fee, as under the leases for lives and years. It is also agreed that Lord Fairfax died seised of lands in the Northern Neck equal to about 300,000 acres, which had been granted by him in fee, to one T. B. Martin, upon the same terms and conditions, and in the same form, as the other grants in fee before described, which lands were, soon after being so granted, reconveyed to Lord Fairfax in fee. 3d. Lord Fairfax, being a citizen and inhabitant of Virginia, died in the month of December, 1781, and, by his last will and testament, duly made and published, devised the whole of his lands, &c., called, or known by the name of the Northern Neck of Virginia, in fee, to Denny Fairfax, (the original defendant in ejectment), by the name and description of the Reverend Denny Martin, &c., upon condition of his taking the name and arms of Fairfax, &c., and it is admitted that he fully complied with the conditions of the devise. 4th. It is agreed that Denny Fairfax, the devisee, was a native-born British subject, and never became a citizen of the United States, nor any one of them, but always resided in England, as well during the Revolutionary War as from his birth, about the year 1750, to his death, which happened some time between Page 14 U. S. 312 the years 1796 and 1803, as appears from the record of the proceedings in the Court of appeals. It is also admitted that Lord Fairfax left, at his death, a nephew named Thomas Bryan Martin, who was always a citizen of Virginia, being the younger brother of the said devisee, and the second son of a sister of the said Lord Fairfax; which sister was still living, and had always been a British subject. 5th. The land demanded by this ejectment being agreed to be part and parcel of the said territory and tract of land called the Northern Neck, and to be a part of that description of lands within the Northern Neck, called and described by Lord Fairfax as "waste and ungranted," and being also agreed never to have been escheated and seised into the hands of the Commonwealth of Virginia, pursuant to certain acts of assembly concerning escheators, and never to have been the subject of any inquest of office, was contained and included in a certain patent, bearing date the 30th of April, 1789, under the hand of the then Governor, and the seal of the Commonwealth of Virginia, purporting that the land in question is granted by the said Commonwealth unto David Hunter (the lessor of the plaintiff in ejectment) and his heirs forever, by virtue and in consideration of a land office treasury warrant, issued the 23d of January, 1788. The said lessor of the plaintiff in ejectment is, and always has been, a citizen of Virginia; and in pursuance of his said patent, entered into the land in question, and was thereof possessed, prior to the institution of the said action of ejectment. Page 14 U. S. 313 6th. The definitive treaty of peace concluded in the year 1783, and the treaty of amity, commerce, and navigation, of 1794, between the United States of America and Great Britain, and also the several acts of the Assembly of Virginia concerning the premises are referred to as making a part of the case agreed. Upon this state of facts, the judgment of the Court of appeals of Virginia was reversed by this Court, at February term, 1813, and thereupon the mandate above mentioned was issued to the Court of appeals, which being disobeyed, the cause was again brought before this Court. Page 14 U. S. 323 STORY, J., delivered the opinion of the Court. This is a writ of error from the Court of Appeals of Virginia founded upon the refusal of that Court to obey the mandate of this Court requiring the judgment rendered in this very cause, at February Term, 1813, to be carried into due execution. The following is the judgment of the Court of Appeals rendered on the mandate: "The Court is unanimously of opinion, that the appellate power of the Supreme Court of the United States does not extend to this Court, under a sound construction of the Constitution of the United States; that so much of the 25th section of the act of Congress to establish the judicial courts of the United States, as extends the appellate jurisdiction of the Supreme Court to this Court, is not in pursuance of the Constitution of the Page 14 U. S. 324 United States; that the writ of error in this cause was improvidently allowed under the authority of that act; that the proceedings thereon in the Supreme Court were coram non judice in relation to this Court, and that obedience to its mandate be declined by the Court." The questions involved in this judgment are of great importance and delicacy. Perhaps it is not too much to affirm that, upon their right decision rest some of the most solid principles which have hitherto been supposed to sustain and protect the Constitution itself. The great respectability, too, of the Court whose decisions we are called upon to review, and the entire deference which we entertain for the learning and ability of that Court, add much to the difficulty of the task which has so unwelcomely fallen upon us. It is, however, a source of consolation, that we have had the assistance of most able and learned arguments to aid our inquiries; and that the opinion which is now to be pronounced has been weighed with every solicitude to come to a correct result, and matured after solemn deliberation. Before proceeding to the principal questions, it may not be unfit to dispose of some preliminary considerations which have grown out of the arguments at the bar. The Constitution of the United States was ordained and established not by the States in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by "the people of the United States." There can be no doubt that it was competent to the people to invest the general government Page 14 U. S. 325 with all the powers which they might deem proper and necessary, to extend or restrain these powers according to their own good pleasure, and to give them a paramount and supreme authority. As little doubt can there be that the people had a right to prohibit to the States the exercise of any powers which were, in their judgment, incompatible with the objects of the general compact, to make the powers of the State governments, in given cases, subordinate to those of the nation, or to reserve to themselves those sovereign authorities which they might not choose to delegate to either. The Constitution was not, therefore, necessarily carved out of existing State sovereignties, nor a surrender of powers already existing in State institutions, for the powers of the States depend upon their own Constitutions, and the people of every State had the right to modify and restrain them according to their own views of the policy or principle. On the other hand, it is perfectly clear that the sovereign powers vested in the State governments by their respective Constitutions remained unaltered and unimpaired except so far as they were granted to the Government of the United States. These deductions do not rest upon general reasoning, plain and obvious as they seem to be. They have been positively recognised by one of the articles in amendment of the Constitution, which declares that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. " Page 14 U. S. 326 The government, then, of the United States can claim no powers which are not granted to it by the Constitution, and the powers actually granted, must be such as are expressly given, or given by necessary implication. On the other hand, this instrument, like every other grant, is to have a reasonable construction, according to the import of its terms, and where a power is expressly given in general terms, it is not to be restrained to particular cases unless that construction grow out of the context expressly or by necessary implication. The words are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged. The Constitution unavoidably deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specifications of its powers or to declare the means by which those powers should be carried into execution. It was foreseen that this would be a perilous and difficult, if not an impracticable, task. The instrument was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence. It could not be foreseen what new changes and modifications of power might be indispensable to effectuate the general objects of the charter, and restrictions and specifications which at the present might seem salutary might in the end prove the overthrow of the system itself. Hence its powers are expressed in general terms, leaving to the legislature from time to Page 14 U. S. 327 time to adopt its own means to effectuate legitimate objects and to mould and model the exercise of its powers as its own wisdom and the public interests, should require. With these principles in view, principles in respect to which no difference of opinion ought to be indulged, let us now proceed to the interpretation of the Constitution so far as regards the great points in controversy. The third article of the Constitution is that which must principally attract our attention. The 1st. section declares, "The judicial power of the United States shall be vested in one Supreme Court, and in such other inferior Courts as the Congress may, from time to time, ordain and establish." The 2d section declares, that "The judicial power shall extend to all cases in law or equity, arising under this Constitution, the laws of the United States, and the treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State, claiming lands under the grants of different States; and between a State or the citizens thereof, and foreign States, citizens, or subjects." It then proceeds to declare, that "in all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. Page 14 U. S. 328 In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations, as the Congress shall make." Such is the language of the article creating and defining the judicial power of the United States. It is the voice of the whole American people solemnly declared, in establishing one great department of that Government which was, in many respects, national, and in all, supreme. It is a part of the very same instrument which was to act not merely upon individuals, but upon States, and to deprive them altogether of the exercise of some powers of sovereignty and to restrain and regulate them in the exercise of others. Let this article be carefully weighed and considered. The language of the article throughout is manifestly designed to be mandatory upon the Legislature. Its obligatory force is so imperative, that Congress could not, without a violation of its duty, have refused to carry it into operation. The judicial power of the United States shall be vested (not may be vested) in one Supreme Court, and in such inferior Courts as Congress may, from time to time, ordain and establish. Could Congress have lawfully refused to create a Supreme Court, or to vest in it the constitutional jurisdiction? "The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive, for their services, a compensation which shall not be diminished during their continuance in office." Could Congress create or limit any other tenure of Page 14 U. S. 329 the judicial office? Could they refuse to pay at stated times the stipulated salary, or diminish it during the continuance in office? But one answer can be given to these questions: it must be in the negative. The object of the Constitution was to establish three great departments of Government -- the legislative, the executive, and the judicial departments. The first was to pass laws, the second to approve and execute them, and the third to expound and enforce them. Without the latter, it would be impossible to carry into effect some of the express provisions of the Constitution. How, otherwise, could crimes against the United States be tried and punished? How could causes between two States be heard and determined? The judicial power must, therefore, be vested in some court by Congress; and to suppose that it was not an obligation binding on them, but might, at their pleasure, be omitted or declined, is to suppose that, under the sanction of the Constitution, they might defeat the Constitution itself, a construction which would lead to such a result cannot be sound. The same expression, "shall be vested," occurs in other parts of the Constitution in defining the powers of the other coordinate branches of the Government. The first article declares that "all legislative powers herein granted shall be vested in a Congress of the United States." Will it be contended that the legislative power is not absolutely vested? that the words merely refer to some future act, and mean only that the legislative power may hereafter be vested? The second article declares that "the Page 14 U. S. 330 executive power shall be vested in a President of the United States of America." Could Congress vest it in any other person, or is it to await their good pleasure whether it is to vest at all? It is apparent that such a construction, in either case, would be utterly inadmissible. Why, then, is it entitled to a better support in reference to the judicial department? If, then, it is a duty of Congress to vest the judicial power of the United States, it is a duty to vest the whole judicial power. The language, if imperative as to one part, is imperative as to all. If it were otherwise, this anomaly would exist, that Congress might successively refuse to vest the jurisdiction in any one class of cases enumerated in the Constitution, and thereby defeat the jurisdiction as to all, for the Constitution has not singled out any class on which Congress are bound to act in preference to others. The next consideration is as to the Courts in which the judicial power shall be vested. It is manifest that a Supreme Court must be established; but whether it be equally obligatory to establish inferior Courts is a question of some difficulty. If Congress may lawfully omit to establish inferior Courts, it might follow that, in some of the enumerated cases, the judicial power could nowhere exist. The Supreme Court can have original jurisdiction in two classes of cases only, viz., in cases affecting ambassadors, other public ministers and consuls, and in cases in which a State is a party. Congress cannot vest any portion of the judicial power of the United States except in Courts ordained and established by Page 14 U. S. 331 itself, and if, in any of the cases enumerated in the Constitution, the State courts did not then possess jurisdiction, the appellate jurisdiction of the Supreme Court (admitting that it could act on State courts) could not reach those cases, and, consequently, the injunction of the Constitution that the judicial power "shall be vested," would be disobeyed. It would seem therefore to follow that Congress are bound to create some inferior Courts in which to vest all that jurisdiction which, under the Constitution, is exclusively vested in the United States, and of which the Supreme Court cannot take original cognizance. They might establish one or more inferior Courts; they might parcel out the jurisdiction among such Courts, from time to time, at their own pleasure. But the whole judicial power of the United States should be at all times vested, either in an original or appellate form, in some Courts created under its authority. This construction will be fortified by an attentive examination of the second section of the third article. The words are "the judicial power shall extend," &c. Much minute and elaborate criticism has been employed upon these words. It has been argued that they are equivalent to the words "may extend," and that "extend" means to widen to new cases not before within the scope of the power. For the reason which have been already stated, we are of opinion that the words are used in an imperative sense. They import an absolute grant of judicial power. They cannot have a relative signification applicable to powers already granted, for the American people Page 14 U. S. 332 had not made any previous grant. The Constitution was for a new Government, organized with new substantive powers, and not a mere supplementary charter to a Government already existing. The Confederation was a compact between States, and its structure and powers were wholly unlike those of the National Government. The Constitution was an act of the people of the United States to supersede the Confederation, and not to be ingrafted on it, as a stock through which it was to receive life and nourishment. If, indeed, the relative signification could be fixed upon the term "extend," it could not (as we shall hereafter see) subserve the purposes of the argument in support of which it has been adduced. This imperative sense of the words "shall extend" is strengthened by the context. It is declared that, "in all cases affecting ambassadors, &c., that the Supreme Court shall have original jurisdiction." Could Congress withhold original jurisdiction in these cases from the Supreme Court? The clause proceeds -- "in all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make." The very exception here shows that the framers of the Constitution used the words in an imperative sense. What necessity could there exist for this exception if the preceding words were not used in that sense? Without such exception, Congress would, by the preceding words, have possessed a complete power to regulate the appellate jurisdiction, if the language were Page 14 U. S. 333 only equivalent to the words "may have" appellate jurisdiction. It is apparent, then, that the exception was intended as a limitation upon the preceding words, to enable Congress to regulate and restrain the appellate power, as the public interests might, from time to time, require. Other clauses in the Constitution might be brought in aid of this construction, but a minute examination of them cannot be necessary, and would occupy too much time. It will be found that whenever a particular object is to be effected, the language of the Constitution is always imperative, and cannot be disregarded without violating the first principles of public duty. On the other hand, the legislative powers are given in language which implies discretion, as, from the nature of legislative power, such a discretion must ever be exercised. It being, then, established that the language of this clause is imperative, the next question is as to the cases to which it shall apply. The answer is found in the Constitution itself. The judicial power shall extend to all the cases enumerated in the Constitution. As the mode is not limited, it may extend to all such cases, in any form, in which judicial power may be exercised. It may therefore extend to them in the shape of original or appellate jurisdiction, or both, for there is nothing in the nature of the cases which binds to the exercise of the one in preference to the other. In what cases (if any) is this judicial power exclusive, or exclusive at the election of Congress? It will be observed that there are two classes of cases enumerated Page 14 U. S. 334 in the Constitution between which a distinction seems to be drawn. The first class includes cases arising under the Constitution, laws, and treaties of the United States, cases affecting ambassadors, other public ministers and consuls, and cases of admiralty and maritime jurisdiction. In this class, the expression is, and that the judicial power shall extend to all cases; but in the subsequent part of the clause which embraces all the other cases of national cognizance, and forms the second class, the word "all" is dropped, seemingly ex industria. Here the judicial authority is to extend to controversies (not to all controversies) to which the United States shall be a party, &c. From this difference of phraseology, perhaps, a difference of constitutional intention may, with propriety, be inferred. It is hardly to be presumed that the variation in the language could have been accidental. It must have been the result of some determinate reason, and it is not very difficult to find a reason sufficient to support the apparent change of intention. In respect to the first class, it may well have been the intention of the framers of the Constitution imperatively to extend the judicial power either in an original or appellate form to all cases, and in the latter class to leave it to Congress to qualify the jurisdiction, original or appellate, in such manner as public policy might dictate. The vital importance of all the cases enumerated in the first class to the national sovereignty might warrant such a distinction. In the first place, as to cases arriving under the Constitution, laws, and treaties of the United States. Here the State courts Page 14 U. S. 335 could not ordinarily possess a direct jurisdiction. The jurisdiction over such cases could not exist in the State courts previous to the adoption of the Constitution, and it could not afterwards be directly conferred on them, for the Constitution expressly requires the judicial power to be vested in courts ordained and established by the United States. This class of cases would embrace civil as well as criminal jurisdiction, and affect not only our internal policy, but our foreign relations. It would therefore be perilous to restrain it in any manner whatsoever, inasmuch as it might hazard the national safety. The same remarks may be urged as to cases affecting ambassadors, other public ministers, and consuls, who are emphatically placed under the guardianship of the law of nations, and as to cases of admiralty and maritime jurisdiction, the admiralty jurisdiction embraces all questions of prize and salvage, in the correct adjudication of which foreign nations are deeply interested; it embraces also maritime torts, contracts, and offences, in which the principles of the law and comity of nations often form an essential inquiry. All these cases, then, enter into the national policy, affect the national rights, and may compromit the national sovereignty. The original or appellate jurisdiction ought not therefore to be restrained, but should be commensurate with the mischiefs intended to be remedied, and, of course, should extend to all cases whatsoever. A different policy might well be adopted in reference to the second class of cases, for although it might be fit that the judicial power should extend Page 14 U. S. 336 to all controversies to which the United States should be a party, yet this power night not have been imperatively given, least it should imply a right to take cognizance of original suits brought against the United States as defendants in their own Courts. It might not have been deemed proper to submit the sovereignty of the United States, against their own will to judicial cognizance, either to enforce rights or to prevent wrongs; and as to the other cases of the second class, they might well be left to be exercised under the exceptions and regulations which Congress might, in their wisdom, choose to apply. It is also worthy of remark that Congress seem, in a good degree, in the establishment of the present judicial system, to have adopted this distinction. In the first class of cases, the jurisdiction is not limited except by the subject matter; in the second, it is made materially to depend upon the value in controversy. We do not, however, profess to place any implicit reliance upon the distinction which has here been stated and endeavoured to be illustrated. It has the rather been brought into view in deference to the legislative opinion, which has so long acted upon, and enforced this distinction. But there is, certainly, vast weight in the argument which has been urged that the Constitution is imperative upon Congress to vest all the judicial power of the United States, in the shape of original jurisdiction, in the Supreme and inferior courts created under its own authority. At all events, whether the one construction or the other prevail, it is manifest that the judicial power of the Page 14 U. S. 337 United States is unavoidably, in some cases, exclusive of all State authority, and in all others, may be made so at the election of Congress. No part of the criminal jurisdiction of the United States can, consistently with the Constitution, be delegated to State tribunals. The admiralty and maritime jurisdiction is of the same exclusive cognizance, and it can only be in those cases where, previous to the Constitution, State tribunals possessed jurisdiction independent of national authority that they can now constitutionally exercise a concurrent jurisdiction. Congress, throughout the Judicial Act, and particularly in the 9th, 11th, and 13th sections, have legislated upon the supposition that, in all the cases to which the judicial powers of the United States extended, they might rightfully vest exclusive jurisdiction in their own Courts. But even admitting that the language of the Constitution is not mandatory, and that Congress may constitutionally omit to vest the judicial power in Courts of the United States, it cannot be denied that, when it is vested, it may be exercised to the utmost constitutional extent. This leads us to the consideration of the great question as to the nature and extent of the appellate jurisdiction of the United States. We have already seen that appellate jurisdiction is given by the Constitution to the Supreme Court in all cases where it has not original jurisdiction, subject, however, to such exceptions and regulations as Congress may prescribe. It is therefore capable of embracing every case enumerated in the Constitution which is not exclusively to be decided by way of original Page 14 U. S. 338 jurisdiction. But the exercise of appellate jurisdiction is far from being limited by the terms of the Constitution to the Supreme Court. There can be no doubt that Congress may create a succession of inferior tribunals, in each of which it may vest appellate as well as original jurisdiction. The judicial power is delegated by the Constitution in the most general terms, and may therefore be exercised by Congress under every variety of form of appellate or original jurisdiction. And as there is nothing in the Constitution which restrains or limits this power, it must therefore, in all other cases, subsist in the utmost latitude of which, in its own nature, it is susceptible. As, then, by the terms of the Constitution, the appellate jurisdiction is not limited as to the Supreme Court, and as to this Court it may be exercised in all other cases than those of which it has original cognizance, what is there to restrain its exercise over State tribunals in the enumerated cases? The appellate power is not limited by the terms of the third article to any particular Courts. The words are, "the judicial power (which includes appellate power) shall extend to all cases," &c., and "in all other cases before mentioned, the Supreme Court shall have appellate jurisdiction." It is the case, then, and not the court, that gives the jurisdiction. If the judicial power extends to the case, it will be in vain to search in the letter of the Constitution for any qualification as to the tribunal where it depends. It is incumbent, then, upon those who assert such a qualification to show its existence by necessary implication. If the Page 14 U. S. 339 text be clear and distinct, no restriction upon its plain and obvious import ought to be admitted, unless the inference be irresistible. If the Constitution meant to limit the appellate jurisdiction to cases pending in the Courts of the United States, it would necessarily follow that the jurisdiction of these Courts would, in all the cases enumerated in the Constitution, be exclusive of State tribunals. How otherwise could the jurisdiction extend to all cases arising under the Constitution, laws, and treaties of the United States, or to all cases of admiralty and maritime jurisdiction? If some of these cases might be entertained by State tribunals, and no appellate jurisdiction as to them should exist, then the appellate power would not extend to all, but to some, cases. If State tribunals might exercise concurrent jurisdiction over all or some of the other classes of cases in the Constitution without control, then the appellate jurisdiction of the United States might, as to such cases, have no real existence, contrary to the manifest intent of the Constitution. Under such circumstances, to give effect to the judicial power, it must be construed to be exclusive, and this not only when the casus foederis should arise directly, but when it should arise incidentally in cases pending in State courts. This construction would abridge the jurisdiction of such Court far more than has been ever contemplated in any act of Congress. On the other hand, if, as has been contended, a discretion be vested in Congress to establish or not to establish inferior Courts, at their own pleasure, and Page 14 U. S. 340 Congress should not establish such Courts, the appellate jurisdiction of the Supreme Court would have nothing to act upon unless it could act upon cases pending in the State courts. Under such circumstances it must be held that the appellate power would extend to State courts, for the Constitution is peremptory that it shall extend to certain enumerated cases, which cases could exist in no other Courts. Any other construction, upon this supposition, would involve this strange contradiction that a discretionary power vested in Congress, and which they might rightfully omit to exercise, would defeat the absolute injunctions of the Constitution in relation to the whole appellate power. But it is plain that the framers of the Constitution did contemplate that cases within the judicial cognizance of the United States not only might, but would, arise in the State courts in the exercise of their ordinary jurisdiction. With this view, the sixth article declares, that "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." It is obvious that this obligation is imperative upon the State judges in their official, and not merely in their private, capacities. From the very nature of their judicial duties, they would be called upon to pronounce the law applicable to the case in judgment. They were not to decide merely Page 14 U. S. 341 according to the laws or Constitution of the State, but according to the Constitution, laws and treaties of the United States -- "the supreme law of the land." A moment's consideration will show us the necessity and propriety of this provision in cases where the jurisdiction of the State courts is unquestionable. Suppose a contract for the payment of money is made between citizens of the same State, and performance thereof is sought in the courts of that State; no person can doubt that the jurisdiction completely and exclusively attaches, in the first instance, to such courts. Suppose at the trial the defendant sets up in his defence a tender under a State law making paper money a good tender, or a State law impairing the obligation of such contract, which law, if binding, would defeat the suit. The Constitution of the United States has declared that no State shall make any thing but gold or silver coin a tender in payment of debts, or pass a law impairing the obligation of contracts. If Congress shall not have passed a law providing for the removal of such a suit to the courts of the United States, must not the State court proceed to hear and determine it? Can a mere plea in defence be, of itself, a bar to further proceedings, so as to prohibit an inquiry into its truth or legal propriety when no other tribunal exists to whom judicial cognizance of such cases is confided? Suppose an indictment for a crime in a State court, and the defendant should allege in his defence that the crime was created by an ex post facto act of the State, must not the State court, in the exercise of a jurisdiction which has already rightfully attached, have a Page 14 U. S. 342 right to pronounce on the validity and sufficiency of the defence? It would be extremely difficult, upon any legal principles, to give a negative answer to these inquiries. Innumerable instances of the same sort might be stated in illustration of the position, and unless the State courts could sustain jurisdiction in such cases, this clause of the sixth article would be without meaning or effect, and public mischiefs of a most enormous magnitude would inevitably ensue. It must therefore be conceded that the Constitution not only contemplated, but meant to provide for, cases within the scope of the judicial power of the United States which might yet depend before State tribunals. It was foreseen that, in the exercise of their ordinary jurisdiction, State courts would incidentally take cognizance of cases arising under the Constitution, the laws, and treaties of the United States. Yet to all these cases the judicial power, by the very terms of the Constitution, is to extend. It cannot extend by original jurisdiction if that was already rightfully and exclusively attached in the State courts, which (as has been already shown) may occur; it must therefore extend by appellate jurisdiction, or not at all. It would seem to follow that the appellate power of the United States must, in such cases, extend to State tribunals; and if in such cases, there is no reason why it should not equally attach upon all others within the purview of the Constitution. It has been argued that such an appellate jurisdiction over State courts is inconsistent with the genius Page 14 U. S. 343 of our Governments, and the spirit of the Constitution. That the latter was never designed to act upon State sovereignties, but only upon the people, and that, if the power exists, it will materially impair the sovereignty of the States, and the independence of their courts. We cannot yield to the force of this reasoning; it assumes principles which we cannot admit, and draws conclusions to which we do not yield our assent. It is a mistake that the Constitution was not designed to operate upon States in their corporate capacities. It is crowded with provisions which restrain or annul the sovereignty of the States in some of the highest branches of their prerogatives. The tenth section of the first article contains a long list of disabilities and prohibitions imposed upon the States. Surely, when such essential portions of State sovereignty are taken away or prohibited to be exercised, it cannot be correctly asserted that the Constitution does not act upon the States. The language of the Constitution is also imperative upon the States as to the performance of many duties. It is imperative upon the State legislatures to make laws prescribing the time, places, and manner of holding elections for senators and representatives, and for electors of President and Vice-President. And in these as well as some other cases, Congress have a right to revise, amend, or supersede the laws which may be passed by State legislatures. When therefore the States are stripped of some of the highest attributes of sovereignty, and the same are given to the United States; when the legislatures of the States are, in some Page 14 U. S. 344 respects, under the control of Congress, and in every case are, under the Constitution, bound by the paramount authority of the United States, it is certainly difficult to support the argument that the appellate power over the decisions of State courts is contrary to the genius of our institutions. The courts of the United States can, without question, revise the proceedings of the executive and legislative authorities of the States, and if they are found to be contrary to the Constitution, may declare them to be of no legal validity. Surely the exercise of the same right over judicial tribunals is not a higher or more dangerous act of sovereign power. Nor can such a right be deemed to impair the independence of State judges. It is assuming the very ground in controversy to assert that they possess an absolute independence of the United States. In respect to the powers granted to the United States, they are not independent; they are expressly bound to obedience by the letter of the Constitution, and if they should unintentionally transcend their authority or misconstrue the Constitution, there is no more reason for giving their judgments an absolute and irresistible force than for giving it to the acts of the other coordinate departments of State sovereignty. The argument urged from the possibility of the abuse of the revising power is equally unsatisfactory. It is always a doubtful course to argue against the use or existence of a power from the possibility of its abuse. It is still more difficult by such an argument to ingraft upon a general power a restriction Page 14 U. S. 345 which is not to be found in the terms in which it is given. From the very nature of things, the absolute right of decision, in the last resort, must rest somewhere -- wherever it may be vested, it is susceptible of abuse. In all questions of jurisdiction, the inferior or appellate court must pronounce the final judgment; and common sense, as well as legal reasoning, has conferred it upon the latter. It has been further argued against the existence of this appellate power that it would form a novelty in our judicial institutions. This is certainly a mistake. I n the Articles of Confederation, an instrument framed with infinitely more deference to State rights and State jealousies, a power was given to Congress to establish "courts for revising and determining, finally, appeals in all cases of captures." It is remarkable that no power was given to entertain original jurisdiction in such cases, and consequently the appellate power (although not so expressed in terms) was altogether to be exercised in revising the decisions of State tribunals. This was, undoubtedly, so far a surrender of State sovereignty, but it never was supposed to be a power fraught with public danger or destructive of the independence of State judges. On the contrary, it was supposed to be a power indispensable to the public safety, inasmuch as our national rights might otherwise be compromitted and our national peace been dangered. Under the present Constitution, the prize jurisdiction is confined to the courts of the United States, and a power to revise the decisions of State courts, if they should assert jurisdiction over prize causes, cannot be less Page 14 U. S. 346 important or less useful than it was under the Confederation. In this connexion, we are led again to the construction of the words of the Constitution, "the judicial power shall extend," &c. If, as has been contended at the bar, the term "extend" have a relative signification, and mean to widen an existing power, it will then follow, that, as the confederation gave an appellate power over State tribunals, the Constitution enlarged or widened that appellate power to all the other cases in which jurisdiction is given to the Courts of the United States. It is not presumed that the learned counsel would choose to adopt such a conclusion. It is further argued that no great public mischief can result from a construction which shall limit the appellate power of the United States to cases in their own Courts, first because State judges are bound by an oath to support the Constitution of the United States, and must be presumed to be men of learning and integrity, and secondly because Congress must have an unquestionable right to remove all cases within the scope of the judicial power from the State courts to the courts of the United States at any time before final judgment, though not after final judgment. As to the first reason -- admitting that the judges of the State courts are, and always will be, of as much learning, integrity, and wisdom as those of the courts of the United States (which we very cheerfully admit), it does not aid the argument. It is manifest that the Constitution has proceeded upon a theory of its own, and given or withheld Page 14 U. S. 347 powers according to the judgment of the American people, by whom it was adopted. We can only construe its powers, and cannot inquire into the policy or principles which induced the grant of them. The Constitution has presumed (whether rightly or wrongly we do not inquire) that State attachments, State prejudices, State jealousies, and State interests might sometimes obstruct or control, or be supposed to obstruct or control, the regular administration of justice. Hence, in controversies between States, between citizens of different States, between citizens claiming grants under different States, between a State and its citizens, or foreigners, and between citizens and foreigners, it enables the parties, under the authority of Congress, to have the controversies heard, tried, and determined before the national tribunals. No other reason than that which has been stated can be assigned why some, at least, of those cases should not have been left to the cognizance of the State courts. In respect to the other enumerated cases -- the cases arising under the Constitution, laws, and treaties of the United States, cases affecting ambassadors and other public ministers, and cases of admiralty and maritime jurisdiction -- reasons of a higher and more extensive nature, touching the safety, peace, and sovereignty of the nation, might well justify a grant of exclusive jurisdiction. This is not all. A motive of another kind, perfectly compatible with the most sincere respect for State tribunals, might induce the grant of appellate power over their decisions. That motive is the importance, and even necessity, of uniformity of decisions Page 14 U. S. 348 throughout the whole United States upon all subjects within the purview of the Constitution. Judges of equal learning and integrity in different States might differently interpret a statute or a treaty of the United States, or even the Constitution itself; if there were no revising authority to control these jarring and discordant judgments and harmonize them into uniformity, the laws, the treaties, and the Constitution of the United States would be different in different States, and might perhaps never have precisely the same construction, obligation, or efficacy in any two States. The public mischiefs that would attend such a State of things would be truly deplorable, and it cannot be believed that they could have escaped the enlightened convention which formed the Constitution. What, indeed, might then have been only prophecy has now become fact, and the appellate jurisdiction must continue to be the only adequate remedy for such evils. There is an additional consideration, which is entitled to great weight. The Constitution of the United States was designed for the common and equal benefit of all the people of the United States. The judicial power was granted for the same benign and salutary purposes. It was not to be exercised exclusively for the benefit of parties who might be plaintiffs, and would elect the national forum, but also for the protection of defendants who might be entitled to try their rights, or assert their privileges, before the same forum. Yet, if the construction contended for be correct, it will follow that, as the plaintiff may always elect the State court, the defendant Page 14 U. S. 349 may be deprived of all the security which the Constitution intended in aid of his rights. Such a State of things can in no respect be considered as giving equal rights. To obviate this difficulty, we are referred to the power which it is admitted Congress possess to remove suits from State courts to the national Courts, and this forms the second ground upon which the argument we are considering has been attempted to be sustained. This power of removal is not to be found in express terms in any part of the Constitution; if it be given, it is only given by implication, as a power necessary and proper to carry into effect some express power. The power of removal is certainly not, in strictness of language; it presupposes an exercise of original jurisdiction to have attached elsewhere. The existence of this power of removal is familiar in courts acting according to the course of the common law in criminal as well as civil cases, and it is exercised before as well as after judgment. But this is always deemed in both cases an exercise of appellate, and not of original, jurisdiction. If, then, the right of removal be included in the appellate jurisdiction, it is only because it is one mode of exercising that power, and as Congress is not limited by the Constitution to any particular mode or time of exercising it, it may authorize a removal either before or after judgment. The time, the process, and the manner must be subject to its absolute legislative control. A writ of error is indeed but a process which removes the record of one court to the possession of another court, Page 14 U. S. 350 and enables the latter to inspect the proceedings, and give such judgment as its own opinion of the law and justice of the case may warrant. There is nothing in the nature of the process which forbids it from being applied by the legislature to interlocutory as well as final judgments. And if the right of removal from State courts exist before judgment, because it is included in the appellate power, it must for the same reason exist after judgment. And if the appellate power by the Constitution does not include cases pending in State courts, the right of removal, which is but a mode of exercising that power, cannot be applied to them. Precisely the same objections therefore exist as to the right of removal before judgment as after, and both must stand or fall together. Nor, indeed, would the force of the arguments on either side materially vary if the right of removal were an exercise of original jurisdiction. It would equally trench upon the jurisdiction and independence of State tribunals. The remedy, too, of removal of suits would be utterly inadequate to the purposes of the Constitution if it could act only on the parties, and not upon the State courts. In respect to criminal prosecutions, the difficulty seems admitted to be insurmountable; and in respect to civil suits, there would, in many cases, be rights without corresponding remedies. If State courts should deny the constitutionality of the authority to remove suits from their cognizance, in what manner could they be compelled to relinquish the jurisdiction? In respect to criminal cases, there would at once be an end of all control, and the Page 14 U. S. 351 state decisions would be paramount to the Constitution; and though, in civil suits, the courts of the United States might act upon the parties, yet the State courts might act in the same way, and this conflict of jurisdictions would not only jeopardise private rights, but bring into imminent peril the public interests. On the whole, the Court are of opinion that the appellate power of the United States does extend to cases pending in the State courts, and that the 25th section of the judiciary act, which authorizes the exercise of this jurisdiction in the specified cases by a writ of error, is supported by the letter and spirit of the Constitution. We find no clause in that instrument which limits this power, and we dare not interpose a limitation where the people have not been disposed to create one. Strong as this conclusion stands upon the general language of the Constitution, it may still derive support from other sources. It is an historical fact that this exposition of the Constitution, extending its appellate power to State courts, was, previous to its adoption, uniformly and publicly avowed by its friends and admitted by its enemies as the basis of their respective reasonings, both in and out of the State conventions. It is an historical fact that, at the time when the Judiciary Act was submitted to the deliberations of the first Congress, composed, as it was, not only of men of great learning and ability but of men who had acted a principal part in framing, supporting, or opposing that Constitution, the same exposition was explicitly declared and admitted by the friends and by the opponents of that system. It Page 14 U. S. 352 is an historical fact that the Supreme Court of the United States have, from time to time, sustained this appellate jurisdiction in a great variety of cases brought from the tribunals of many of the most important States in the Union, and that no State tribunal has ever breathed a judicial doubt on the subject, or declined to obey the mandate of the Supreme Court until the present occasion. This weight of contemporaneous exposition by all parties, this acquiescence of enlightened State courts, and these judicial decisions of the Supreme Court through so long a period do, as we think, place the doctrine upon a foundation of authority which cannot be shaken without delivering over the subject to perpetual and irremediable doubts. The next question which has been argued is whether the case at bar be within the purview of the 25th section of the Judiciary Act, so that this Court may rightfully sustain the present writ of error. This section, stripped of passages unimportant in this inquiry, enacts, in substance, that a final judgment or decree in any suit in the highest court of law or equity of a State, where is drawn in question the validity of a treaty or statute of, or an authority excised under, the United States, and the decision is against their validity, or where is drawn in question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the Constitution, treaties, or laws, of the United States, and the decision is in favour of such their validity, or of the Constitution, or of a treaty or statute of, or commission held under, the United Page 14 U. S. 353 States, and the decision is against the title, right, privilege, or exemption specially set up or claimed by either party under such clause of the said Constitution, treaty, statute, or commission, may be reexamined and reversed or affirmed in the Supreme Court of the United States upon a writ of error in the same manner, and under the same regulations, and the writ shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a Circuit Court, and the proceeding upon the reversal shall also be the same, except that the Supreme Court, instead of remanding the cause for a final decision, as before provided, may, at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same and award execution. But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears upon the face of the record, and immediately respects the before-mentioned question of validity or construction of the said Constitution, treaties, statutes, commissions, or authorities in dispute. That the present writ of error is founded upon a judgment of the Court below which drew in question and denied the validity of a statute of the United States is incontrovertible, for it is apparent upon the face of the record. That this judgment is final upon the rights of the parties is equally true, for if well founded, the former judgment of that court was of conclusive authority, and the former judgment of this Court utterly void. The decision was therefore equivalent to a perpetual stay of proceedings upon Page 14 U. S. 354 the mandate, and a perpetual denial of all the rights acquired under it. The case, then, falls directly within the terms of the Act. It is a final judgment in a suit in a State court denying the validity of a statute of the United States, and unless a distinction can be made between proceedings under a mandate and proceedings in an original suit, a writ of error is the proper remedy to revise that judgment. In our opinion, no legal distinction exists between the cases. In causes remanded to the Circuit Courts, if the mandate be not correctly executed, a writ of error or appeal has always been supposed to be a proper remedy, and has been recognized as such in the former decisions of this Court. The statute gives the same effect to writs of error from the judgments of State courts as of the Circuit Courts, and in its terms provides for proceedings where the same cause may be a second time brought up on writ of error before the Supreme Court. There is no limitation or description of the cases to which the second writ of error may be applied, and it ought therefore to be coextensive with the cases which fall within the mischiefs of the statute. It will hardly be denied that this cause stands in that predicament; and if so, then the appellate jurisdiction of this Court has rightfully attached. But it is contended, that the former judgment of this Court was rendered upon a case not within the purview of this section of the Judicial Act, and that, as it was pronounced by an incompetent jurisdiction, it was utterly void, and cannot be a sufficient foundation Page 14 U. S. 355 to sustain any subsequent proceedings. To this argument several answers may be given. In the first place, it is not admitted that, upon this writ of error, the former record is before us. The error now assigned is not in the former proceedings, but in the judgment rendered upon the mandate issued after the former judgment. The question now litigated is not upon the construction of a treaty, but upon the constitutionality of a statute of the United States, which is clearly within our jurisdiction. In the next place, in ordinary cases a second writ of error has never been supposed to draw in question the propriety of the first judgment, and it is difficult to perceive how such a proceeding could be sustained upon principle. A final judgment of this Court is supposed to be conclusive upon the rights which it decides, and no statute has provided any process by which this Court can revise its own judgments. In several cases which have been formerly adjudged in this Court, the same point was argued by counsel, and expressly overruled. It was solemnly held that a final judgment of this Court was conclusive upon the parties, and could not be reexamined. In this case, however, from motives of a public nature, we are entirely willing to wave all objections and to go back and reexamine the question of jurisdiction as it stood upon the record formerly in judgment. We have great confidence that our jurisdiction will, on a careful examination, stand confirmed as well upon principle as authority. It will be recollected that the action was an ejectment for a parcel of land in the Northern Neck, formerly belonging to Page 14 U. S. 356 Lord Fairfax. The original plaintiff claimed the land under a patent granted to him by the State of Virginia in 1789, under a title supposed to be vested in that State by escheat or forfeiture. The original defendant claimed the land as devisee under the will of Lord Fairfax. The parties agreed to a special statement of facts in the nature of a special verdict, upon which the District Court of Winchester, in 1793, gave a general judgment for the defendant, which judgment was afterwards reversed in 1810 by the Court of Appeals, and a general judgment was rendered for the plaintiff; and from this last judgment a writ of error was brought to the Supreme Court. The statement of facts contained a regular deduction of the title of Lord Fairfax until his death, in 1781, and also the title of his devisee. It also contained a regular deduction of the title of the plaintiff, under the State of Virginia, and further referred to the treaty of peace of 1783, and to the acts of Virginia respecting the lands of Lord Fairfax, and the supposed escheat or forfeiture thereof, as component parts of the case. No facts disconnected with the titles thus set up by the parties were alleged on either side. It is apparent from this summary explanation that the title thus set up by the plaintiff might be open to other objections; but the title of the defendant was perfect and complete if it was protected by the treaty of 1783. If therefore this Court had authority to examine into the whole record, and to decide upon the legal validity of the title of the defendant, as well as its application to the treaty of peace, it would be a case within the express purview Page 14 U. S. 357 of the 25th section of the Act, for there was nothing in the record upon which the Court below could have decided but upon the title as connected with the treaty; and if the title was otherwise good, its sufficiency must have depended altogether upon its protection under the treaty. Under such circumstances it was strictly a suit where was drawn in question the construction of a treaty, and the decision was against the title specially set up or claimed by the defendant. It would fall, then, within the very terms of the Act. The objection urged at the bar is that this Court cannot inquire into the title, but simply into the correctness of the construction put upon the treaty by the Court of Appeals, and that their judgment is not reexaminable here unless it appear on the face of the record that some construction was put upon the treaty. If therefore that court might have decided the case upon the invalidity of the title (and, non constat, that they did not) independent of the treaty, there is an end of the appellate jurisdiction of this Court. In support of this objection, much stress is laid upon the last clause of the section, which declares that no other cause shall be regarded as a ground of reversal than such as appears on the face of the record and immediately respects the construction of the treaty, &c., in dispute. If this be the true construction of the section, it will be wholly inadequate for the purposes which it professes to have in view, and may be evaded at pleasure. But we see no reason for adopting this narrow construction; and there are the strongest Page 14 U. S. 358 reasons against it founded upon the words as well as the intent of the legislature. What is the case for which the body of the section provides a remedy by writ of error? The answer must be in the words of the section, a suit where is drawn in question the construction of a treaty, and the decision is against the title set up by the party. It is therefore the decision against the title set up with reference to the treaty, and not the mere abstract construction of the treaty itself, upon which the statute intends to found the appellate jurisdiction. How, indeed, can it be possible to decide whether a title be within the protection of a treaty until it is ascertained what that title is, and whether it have a legal validity? From the very necessity of the case, there must be a preliminary inquiry into the existence and structure of the title before the Court can construe the treaty in reference to that title. If the Court below should decide, that the title was bad, and therefore not protected by the treaty, must not this Court have a power to decide the title to be good, and therefore protected by the treaty? Is not the treaty, in both instances, equally construed, and the title of the party, in reference to the treaty, equally ascertained and decided? Nor does the clause relied on in the objection impugn this construction. It requires that the error upon which the Appellate Court is to decide shall appear on the face of the record, and immediately respect the questions before mentioned in the section. One of the questions is as to the construction of a treaty upon a title specially set up by a party, and every error that immediately respects Page 14 U. S. 359 that question must, of course, be within the cognizance, of the Court. The title set up in this case is apparent upon the face of the record, and immediately respects the decision of that question; any error therefore in respect to that title must be reexaminable, or the case could never be presented to the Court. The restraining clause was manifestly intended for a very different purpose. It was foreseen that the parties might claim under various titles, and might assert various defences altogether independent of each other. The Court might admit or reject evidence applicable to one particular title, and not to all, and, in such cases, it was the intention of Congress to limit what would otherwise have unquestionably attached to the Court, the right of revising all the points involved in the cause. It therefore restrains this right to such errors as respect the questions specified in the section; and, in this view, it has an appropriate sense, consistent with the preceding clauses. We are therefore satisfied that, upon principle, the case was rightfully before us, and if the point were perfectly new, we should not hesitate to assert the jurisdiction. But the point has been already decided by this Court upon solemn argument. In Smith v. The State of Maryland , 6 Cranch 286, precisely the same objection was taken by counsel, and overruled by the unanimous opinion of the Court. That case was, in some respects, stronger than the present; for the court below decided expressly that the party had no title, and therefore the treaty could not operate Page 14 U. S. 360 upon it. This Court entered into an examination of that question, and, being of the same opinion, affirmed the judgment. There cannot, then, be an authority which could more completely govern the present question. It has been asserted at the bar that, in point of fact, the Court of Appeals did not decide either upon the treaty or the title apparent upon the record, but upon a compromise made under an act of the legislature of Virginia. If it be true (as we are informed) that this was a private act, to take effect only upon a certain condition, viz., the execution of a deed of release of certain lands, which was matter in pais, it is somewhat difficult to understand how the Court could take judicial cognizance of the act or of the performance of the condition, unless spread upon the record. At all events, we are bound to consider that the Court did decide upon the facts actually before them. The treaty of peace was not necessary to have been stated, for it was the supreme law of the land, of which all Courts must take notice. And at the time of the decision in the Court of Appeals and in this Court, another treaty had intervened, which attached itself to the title in controversy and, of course, must have been the supreme law to govern the decision if it should be found applicable to the case. It was in this view that this Court did not deem it necessary to rest its former decision upon the treaty of peace, believing that the title of the defendant was, at all events, perfect under the treaty of 1794. Page 14 U. S. 361 The remaining questions respect more the practice than the principles of this Court. The forms of process and the modes of proceeding in the exercise of jurisdiction are, with few exceptions, left by the Legislature to be regulated and changed as this Court may, in its discretion, deem expedient. By a rule of this Court, the return of a copy of a record of the proper court, under the seal of that court, annexed to the writ of error, is declared to be "a sufficient compliance with the mandate of the writ." The record in this case is duly certified by the clerk of the Court of Appeals and annexed to the writ of error. The objection therefore which has been urged to the sufficiency of the return cannot prevail. Another objection is that it does not appear that the judge who granted the writ of error did, upon issuing the citation, take the bond required by the 22d section of the Judiciary Act. We consider that provision as merely directory to the judge; and that an omission does not avoid the writ of error. If any party be prejudiced by the omission, this Court can grant him summary relief by imposing such terms on the other party as, under all the circumstances, may be legal and proper. But there is nothing in the record by which we can judicially know whether a bond has been taken or not, for the statute does not require the bond to be returned to this Court, and it might with equal propriety be lodged in the Court below, who would ordinarily execute the judgment to be rendered on the writ. And the presumption of law is, until the contrary Page 14 U. S. 362 appears, that every judge who signs a citation has obeyed the injunctions of the Act. We have thus gone over all the principal questions in the cause, and we deliver our judgment with entire confidence that it is consistent with the Constitution and laws of the land. We have not thought it incumbent on us to give any opinion upon the question, whether this Court have authority to issue a writ of mandamus to the Court of Appeals to enforce the former judgments, as we do not think it necessarily involved in the decision of this cause. It is the opinion of the whole Court that the judgment of the Court of Appeals of Virginia, rendered on the mandate in this cause, be reversed, and the judgment of the District Court, held at Winchester, be, and the same is hereby, affirmed. JOHNSON, J. It will be observed in this case that the Court disavows all intention to decide on the right to issue compulsory process to the State courts, thus leaving us, in my opinion, where the Constitution and laws place us -- supreme over persons and cases as far as our judicial powers extend, but not asserting any compulsory control over the State tribunals. In this view I acquiesce in their opinion, but not altogether in the reasoning or opinion of my brother who delivered it. Few minds are accustomed to the same habit of thinking, and our conclusions are most satisfactory to ourselves when arrived at in our own way. Page 14 U. S. 363 I have another reason for expressing my opinion on this occasion. I view this question as one of the most momentous importance; as one which may affect, in its consequences, the permanence of the American Union. It presents an instance of collision between the judicial powers of the Union, and one of the greatest States in the Union, on a point the most delicate and difficult to be adjusted. On the one hand, the General Government must cease to exist whenever it loses the power of protecting itself in the exercise of its constitutional powers. Force, which acts upon the physical powers of man, or judicial process, which addresses itself to his moral principles or his fears, are the only means to which governments can resort in the exercise of their authority. The former is happily unknown to the genius of our Constitution except as far as it shall be sanctioned by the latter, but let the latter be obstructed in its progress by an opposition which it cannot overcome or put by, and the resort must be to the former, or government is no more. On the other hand, so firmly am I persuaded that the American people can no longer enjoy the blessings of a free government whenever the State sovereignties shall be prostrated at the feet of the General Government, nor the proud consciousness of equality and security any longer than the independence of judicial power shall be maintained consecrated and intangible, that I could borrow the language of a celebrated orator and exclaim, "I rejoice that Virginia has resisted." Yet here I must claim the privilege of expressing Page 14 U. S. 364 my regret, that the opposition of the high and truly respected tribunal of that State had not been marked with a little more moderation. The only point necessary to be decided in the case then before them was "whether they were bound to obey the mandate emanating from this Court?" But, in the judgment entered on their minutes, they have affirmed that the case was, in this Court, coram non judice, or, in other words, that this Court had not jurisdiction over it. This is assuming a truly alarming latitude of judicial power. Where is it to end? It is an acknowledged principle of, I believe, every Court in the world that not only the decisions, but everything done under the judicial process of courts not having jurisdiction are, ipso facto, void. Are, then, the judgments of this Court to be reviewed in every court of the Union? and is every recovery of money, every change of property, that has taken place under our process to be considered as null, void, and tortious? We pretend not to more infallibility than other courts composed of the same frail materials which compose this. It would be the height of affectation to close our minds upon the recollection that we have been extracted from the same seminaries in which originated the learned men who preside over the State tribunals. But there is one claim which we can with confidence assert in our own name upon those tribunals -- the profound, uniform, and unaffected respect which this Court has always exhibited for State decisions give us strong pretensions to judicial comity. And another claim I may assert, in the name of the American people; in this Court, every State in Page 14 U. S. 365 the Union is represented; we are constituted by the voice of the Union, and when decisions take place which nothing but a spirit to give ground and harmonize can reconcile, ours is the superior claim upon the comity of the State tribunals. It is the nature of the human mind to press a favourite hypothesis too far, but magnanimity will always be ready to sacrifice the pride of opinion to public welfare. In the case before us, the collision has been, on our part, wholly unsolicited. The exercise of this appellate jurisdiction over the State decisions has long been acquiesced in, and when the writ of error in this case was allowed by the President of the Court of Appeals of Virginia, we were sanctioned in supposing that we were to meet with the same acquiescence there. Had that Court refused to grant the writ in the first instance, or had the question of jurisdiction, or on the mode of exercising jurisdiction, been made here originally, we should have been put on our guard, and might have so modelled the process of the Court as to strip it of the offensive form of a mandate. In this case it might have been brought down to what probably the 25th section of the Judiciary Act meant it should be, to-wit, an alternative judgment either that the State court may finally proceed at its option to carry into effect the judgment of this Court or, if it declined doing so, that then this Court would proceed itself to execute it. The language, sense, and operation of the 25th section on this subject merit particular attention. In the preceding section, which has relation to causes brought up by writ of error from the Circuit Courts Page 14 U. S. 366 of the United States, this Court is instructed not to issue executions, but to send a special mandate to the Circuit Court to award execution thereupon. In case of the Circuit Court's refusal to obey such mandate, there could be no doubt as to the ulterior measures; compulsory process might, unquestionably, be resorted to. Nor, indeed, was there any reason to suppose that they ever would refuse, and therefore there is no provision made for authorizing this Court to execute its own judgment in cases of that description. But not so in cases brought up from the State courts; the framers of that law plainly foresaw that the State courts might refuse, and not being willing to leave ground for the implication that compulsory process must be resorted to, because no specific provision was made, they have provided the means, by authorizing this Court, in case of reversal of the State decision, to execute its own judgment. In case of reversal, only was this necessary, for, in case of affirmance, this collision could not arise. It is true that the words of this section are that this Court may, in their discretion, proceed to execute its own judgment. But these words were very properly put in, that it might not be made imperative upon this Court to proceed indiscriminately in this way, as it could only be necessary in case of the refusal of the State courts, and this idea is fully confirmed by the words of the 13th section, which restrict this Court in issuing the writ of mandamus, so as to confine it expressly to those Courts which are constituted by the United States. Page 14 U. S. 367 In this point of view, the Legislature is completely vindicated from all intention to violate the independence of the State judiciaries. Nor can this Court, with any more correctness, have imputed to it similar intentions. The form of the mandate issued in this case is that known to appellate tribunals, and used in the ordinary cases of writs of error from the courts of the United States. It will, perhaps, not be too much, in such cases, to expect of those who are conversant in the forms, fictions, and technicality of the law not to give the process of courts too literal a construction. They should be considered with a view to the ends they are intended to answer and the law and practice in which they originate. In this view, the mandate was no more than a mode of submitting to that court the option which the 25th section holds out to them. Had the decision of the Court of Virginia been confined to the point of their legal obligation to carry the judgment of this Court into effect, I should have thought it unnecessary to make any further observations in this cause. But we are called upon to vindicate our general revising power, and its due exercise in this particular case. Here, that I may not be charged with arguing upon a hypothetical case, it is necessary to ascertain what the real question is which this Court is now called to decide on. In doing this, it is necessary to do what, although, in the abstract, of very questionable propriety, appears to be generally acquiesced in, to-wit, to review the case as it originally came up to this Court Page 14 U. S. 368 on the former writ of error. The cause, then, came up upon a case stated between the parties, and under the practice of that State, having the effect of a special verdict. The case stated brings into view the treaty of peace with Great Britain, and then proceeds to present the various laws of Virginia and the facts upon which the parties found their respective titles. It then presents no particular question, but refers generally to the law arising out of the case. The original decision was obtained prior to the Treaty of 1794, but before the case was adjudicated in this Court, the Treaty of 1794 had been concluded. The difficulties of the case arise under the construction of the 25th section above alluded to, which, as far as it relates to this case, is in these words: "A final judgment or decree in any suit, in the highest Court of law or equity of a State in which a decision in the suit could be had, . . . where is drawn in question the construction of any clause of the Constitution or of a treaty, . . . and the decision is against the title set up or claimed by either party under such clause, may be reexamined and reversed, or affirmed. . . . But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid than such as appears on the face of the record and immediately respects the before-mentioned questions of validity or construction of the said treaties," &c. The first point decided under this state of the case was that, the judgment being a part of the record, if that judgment was not such as, upon that case, it ought to have been, it was an error apparent on the Page 14 U. S. 369 face of the record. But it was contended that the case there stated presented a number of points upon which the decision below may have been founded, and that it did not therefore necessarily appear to have been an error immediately respecting a question on the construction of a treaty. But the Court held that, as the reference was general to the law arising out of the case, if one question arose which called for the construction of a treaty, and the decision negatived the right set up under it, this Court will reverse that decision, and that it is the duty of the party who would avoid the inconvenience of this principle so to mould the case as to obviate the ambiguity. And under this point arises the question whether this Court can inquire into the title of the party, or whether they are so restricted in their judicial powers as to be confined to decide on the operation of a treaty upon a title previously ascertained to exist. If there is any one point in the case on which an opinion may be given with confidence, it is this, whether we consider the letter of the statute, or the spirit, intent, or meaning, of the Constitution and of the legislature, as expressed in the 27th section, it is equally clear that the title is the primary object to which the attention of the Court is called in every such case. The words are, "and the decision be against the title," so set up, not against the construction of the treaty contended for by the party setting up the title. And how could it be otherwise? The title may exist notwithstanding the decision of the State courts to the contrary, and, in that case, the Page 14 U. S. 370 party is entitled to the benefits intended to be secured by the treaty. The decision to his prejudice may have been the result of those very errors, partialities, or defects in State jurisprudence against which the Constitution intended to protect the individual. And if the contrary doctrine be assumed, what is the consequence? This Court may then be called upon to decide on a mere hypothetical case -- to give a construction to a treaty without first deciding whether there was any interest on which that treaty, whatever be its proper construction, would operate. This difficulty was felt and weighed in the case of Smith and the State of Maryland, and that decision was founded upon the idea that this Court was not thus restricted. But another difficulty presented itself: the Treaty of 1794 had become the supreme law of the land since the judgment rendered in the Court below. The defendant, who was at that time an alien, had now become confirmed in his rights under that treaty. This would have been no objection to the correctness of the original judgment. Were we, then, at liberty to notice that treaty in rendering the judgment of this Court? Having dissented from the opinion of this Court in the original case on the question of title, this difficulty did not present itself in my way in the view I then took of the case. But the majority of this Court determined that, as a public law, the treaty was a part of the law of every case depending in this Court; that, as such, it was not necessary that it should be spread upon the record, and that it was obligatory Page 14 U. S. 371 upon this Court, in rendering judgment upon this writ of error, notwithstanding the original judgment may have been otherwise unimpeachable. And to this opinion I yielded my hearty consent, for it cannot be maintained that this Court is bound to give a judgment unlawful at the time of rendering it, in consideration that the same judgment would have been lawful at any prior time. What judgment can now be lawfully rendered between the parties is the question to which the attention of the Court is called. And if the law which sanctioned the original judgment expire pending an appeal, this Court has repeatedly reversed the judgment below, although rendered whilst the law existed. So, too, if the plaintiff in error die pending suit, and his land descend on an alien, it cannot be contended that this Court will maintain the suit in right of the judgment in favour of his ancestor, notwithstanding his present disability. It must here be recollected that this is an action of ejectment. If the term formally declared upon expires pending the action, the Court will permit the plaintiff to amend by extending the term -- why? Because, although the right may have been in him at the commencement of the suit, it has ceased before judgment, and, without this amendment, he could not have judgment. But suppose the suit were really instituted to obtain possession of a leasehold, and the lease expire before judgment, would the Court permit the party to amend in opposition to the right of the case? On the contrary, if the term formally declared on were more extensive than the Page 14 U. S. 372 lease in which the legal title was founded, could they give judgment for more than costs? It must be recollected that, under this judgment, a writ of restitution is the fruit of the law. This, in its very nature, has relation to, and must be founded upon, a present existing right at the time of judgment. And whatever be the cause which takes this right away, the remedy must, in the reason and nature of things, fall with it. When all these incidental points are disposed of, we find the question finally reduced to this -- does the judicial power of the United States extend to the revision of decisions of State courts in cases arising under treaties? But in order to generalize the question and present it in the true form in which it presents itself in this case, we will inquire whether the Constitution sanctions the exercise of a revising power over the decisions of State tribunals in those cases to which the judicial power of the United States extends? And here it appears to me that the great difficulty is on the other side. That the real doubt is whether the State tribunals can constitutionally exercise jurisdiction in any of the cases to which the judicial power of the United States extends. Some cession of judicial power is contemplated by the third article of the Constitution; that which is ceded can no longer be retained. In one of the Circuit Courts of the United States, it has been decided (with what correctness I will not say) that the cession of a power to pass an uniform act of bankruptcy, although not acted on by the United States, deprives Page 14 U. S. 373 the States of the power of passing laws to that effect. With regard to the admiralty and maritime jurisdiction, it would be difficult to prove that the States could resume it if the United States should abolish the Courts vested with that jurisdiction; yet it is blended with the other cases of jurisdiction in the second section of the third article, and ceded in the same words. But it is contended that the second section of the third article contains no express cession of jurisdiction; that it only vests a power in Congress to assume jurisdiction to the extent therein expressed. And under this head arose the discussion on the construction proper to be given to that article. On this part of the case, I shall not pause long. The rules of construction, where the nature of the instrument is ascertained, are familiar to every one. To me, the Constitution appears, in every line of it, to be a contract which, in legal language, may be denominated tripartite. The parties are the people, the States, and the United States. It is returning in a circle to contend that it professes to be the exclusive act of the people, for what have the people done but to form this compact? That the States are recognised as parties to it is evident from various passages, and particularly that in which the United States guaranty to each State a republican form of Government. The security and happiness of the whole was the object, and, to prevent dissention and collision, each surrendered those powers which might make them dangerous to each other. Well aware of the sensitive Page 14 U. S. 374 irritability of sovereign States, where their wills or interests clash, they placed themselves, with regard to each other, on the footing of sovereigns upon the ocean, where power is mutually conceded to act upon the individual, but the national vessel must remain unviolated. And to remove all ground for jealousy and complaint, they relinquish the privilege of being any longer the exclusive arbiters of their own justice where the rights of others come in question or the great interests of the whole may be affected by those feelings, partialities, or prejudices, which they meant to put down forever. Nor shall I enter into a minute discussion on the meaning of the language of this section. I have seldom found much good result from hypercritical severity in examining the distinct force of words. Language is essentially defective in precision, more so than those are aware of who are not in the habit of subjecting it to philological analysis. In the case before us, for instance, a rigid construction might be made which would annihilate the powers intended to be ceded. The words are, "shall extend to;" now that which extends to does not necessarily include in, so that the circle may enlarge until it reaches the objects that limit it, and yet not take them in. But the plain and obvious sense and meaning of the word "shall," in this sentence, is in the future sense, and has nothing imperative in it. The language of the framers of the Constitution is "We are about forming a General Government -- when that Government is formed, its powers shall extend," &c. I therefore see nothing imperative in this clause, and certainly Page 14 U. S. 375 it would have been very unnecessary to use the word in that sense; for, as there was no controlling power constituted, it would only, if used in an imperative sense, have imposed a moral obligation to act. But the same result arises from using it in a future sense, and the Constitution everywhere assumes as a postulate that wherever power is given, it will be used, or at least used as far as the interests of the American people require it, if not from the natural proneness of man to the exercise of power, at least from a sense of duty and the obligation of an oath. Nor can I see any difference in the effect of the words used in this section, as to the scope of the jurisdiction of the United States' courts over the cases of the first and second description comprised in that section. "Shall extend to controversies," appears to me as comprehensive in effect as "shall extend to all cases." For if the judicial power extend "to controversies between citizen and alien," &c., to what controversies of that description does it not extend? If no case can be pointed out which is excepted, it then extends to all controversies. But I will assume the construction as a sound one that the cession of power to the General Government means no more than that they may assume the exercise of it whenever they think it advisable. It is clear that Congress have hitherto acted under that impression, and my own opinion is in favour of its correctness. But does it not then follow that the jurisdiction of the State court, within the range ceded to the General Government, is permitted, and Page 14 U. S. 376 may be withdrawn whenever Congress think proper to do so? As it is a principle that everyone may renounce a right introduced for his benefit, we will admit that, as Congress have not assumed such jurisdiction, the State courts may constitutionally exercise jurisdiction in such cases. Yet surely the general power to withdraw the exercise of it includes in it the right to modify, limit, and restrain that exercise. "This is my domain, put not your foot upon it; if you do, you are subject to my laws; I have a right to exclude you altogether; I have, then, a right to prescribe the terms of your admission to a participation. As long as you conform to my laws, participate in peace, but I reserve to myself the right of judging how far your acts are conformable to my laws." Analogy, then, to the ordinary exercise of sovereign authority would sustain the exercise of this controlling or revising power. But it is argued that a power to assume jurisdiction to the constitutional extent does not necessarily carry with it a right to exercise appellate power over the State tribunals. This is a momentous questions, and one on which I shall reserve myself uncommitted for each particular case as it shall occur. It is enough, at present, to have shown that Congress has not asserted, and this Court has not attempted, to exercise that kind of authority in personam over the State courts which would place them in the relation of an inferior responsible body without their own acquiescence. And I have too much confidence in the State tribunals to believe that a case ever will occur in which it will be necessary Page 14 U. S. 377 for the General Government to assume a controlling power over these tribunals. But is it difficult to suppose a case which will call loudly for some remedy or restraint? Suppose a foreign minister or an officer acting regularly under authority from the United States, seized today, tried tomorrow, and hurried the next day to execution. Such cases may occur, and have occurred, in other countries. The angry vindictive passions of men have too often made their way into judicial tribunals, and we cannot hope forever to escape their baleful influence. In the case supposed, there ought to be a power somewhere to restrain or punish, or the Union must be dissolved. At present, the uncontrollable exercise of criminal jurisdiction is most securely confided to the State tribunals. The Courts of the United States are vested with no power to scrutinize into the proceedings of the State courts in criminal cases; on the contrary, the General Government has, in more than one instance, exhibited their confidence by a wish to vest them with the execution of their own penal law. And extreme, indeed, I flatter myself, must be the case in which the General Government could ever be induced to assert this right. If ever such a case should occur, it will be time enough to decide upon their constitutional power to do so. But we know that, by the 3d article of the Constitution, judicial power, to a certain extent, is vested in the General Government, and that, by the same instrument, power is given to pass all laws necessary to carry into effect the provisions of the Constitution. At present, it is only necessary to vindicate the Page 14 U. S. 378 laws which they have passed affecting civil cases pending in State tribunals. In legislating on this subject, Congress, in the true spirit of the Constitution, have proposed to secure to everyone the full benefit of the Constitution without forcing any one necessarily into the courts of the United States. With this view, in one class of cases, they have not taken away absolutely from the State courts all the cases to which their judicial power extends, but left it to the plaintiff to bring his action there originally if he choose, or to the defendant to force the plaintiff into the courts of the United States where they have jurisdiction, and the former has instituted his suit in the State courts. In this case, they have not made it legal for the defendant to plead to the jurisdiction, the effect of which would be to put an end to the plaintiff's suit and oblige him, probably at great risk or expense, to institute a new action; but the Act has given him a right to obtain an order for a removal, on a petition to the State court, upon which the cause, with all its existing advantages, is transferred to the Circuit Court of the United States. This, I presume, can be subject to no objection, as the Legislature has an unquestionable right to make the ground of removal a ground of plea to the jurisdiction, and the Court must then do no more than it is now called upon to do, to-wit, give an order or a judgment, or call it what we will, in favour of that defendant. And so far from asserting the inferiority of the State tribunal, this act is rather that of a superior, inasmuch as the Circuit Court of the United States becomes bound, Page 14 U. S. 379 by that order, to take jurisdiction of the case. This method, so much more unlikely to affect official delicacy than that which is resorted to in the other class of cases, might perhaps have been more happily applied to all the cases which the Legislature thought it advisable to remove from the State courts. But the other class of cases, in which the present is included, was proposed to be provided for in a different manner. And here, again, the Legislature of the Union evince their confidence in the State tribunals, for they do not attempt to give original cognizance to their own Circuit Courts of such cases, or to remove them by petition and order; but still believing that their decisions will be generally satisfactory, a writ of error is not given immediately as a question within the jurisdiction of the United States shall occur, but only in case the decision shall finally, in the Court of the last resort, be against the title set up under the Constitution, treaty, &c. In this act I can see nothing which amounts to an assertion of the inferiority or dependence of the State tribunals. The presiding judge of the State court is himself authorized to issue the writ of error, if he will, and thus give jurisdiction to the Supreme Court; and if he thinks proper to decline it, no compulsory process is provided by law to oblige him. The party who imagines himself aggrieved is then at liberty to apply to a judge of the United States, who issues the writ of error, which (whatever the form) is, in substance, no more than a mode of compelling the opposite party to appear before this Court and maintain the legality of his judgment obtained before the Page 14 U. S. 380 state tribunal. An exemplification of a record is the common property of every one who chooses to apply and pay for it, and thus the case and the parties are brought before us; and so far is the court itself from being brought under the revising power of this Court that nothing but the case, as presented by the record and pleadings of the parties, is considered, and the opinions of the court are never resorted to unless for the purpose of assisting this Court in forming their own opinions. The absolute necessity that there was for Congress to exercise something of a revising power over cases and parties in the State courts will appear from this consideration. Suppose the whole extent of the judicial power of the United States vested in their own courts, yet such a provision would not answer all the ends of the Constitution, for two reasons: 1st. Although the plaintiff may, in such case, have the full benefit of the Constitution extended to him, yet the defendant would not, as the plaintiff might force him into the court of the State at his election. 2dly. Supposing it possible so to legislate as to give the courts of the United States original jurisdiction in all cases arising under the Constitution, laws, &c., in the words of the 2d section of the 3d article (a point on which I have some doubt, and which in time might perhaps, under some quo minus fiction or a willing construction, greatly accumulate the jurisdiction of those Courts), yet a very large class of cases would remain unprovided for. Incidental questions would often arise, and as a Court of competent Page 14 U. S. 381 jurisdiction in the principal case must decide all such questions, whatever laws they arise under, endless might be the diversity of decisions throughout the Union upon the Constitution, treaties, and laws of the United States, a subject on which the tranquillity of the Union, internally and externally, may materially depend. I should feel the more hesitation in adopting the opinions which I express in this case were I not firmly convinced that they are practical, and may be acted upon without compromitting the harmony of the Union or bringing humility upon the State tribunals. God forbid that the judicial power in these States should ever for a moment, even in its humblest departments, feel a doubt of its own independence. Whilst adjudicating on a subject which the laws of the country assign finally to the revising power of another tribunal, it can feel no such doubt. An anxiety to do justice is ever relieved by the knowledge that what we do is not final between the parties. And no sense of dependence can be felt from the knowledge that the parties, not the Court, may be summoned before another tribunal. With this view, by means of laws, avoiding judgments obtained in the State courts in cases over which Congress has constitutionally assumed jurisdiction, and inflicting penalties on parties who shall contumaciously persist in infringing the constitutional rights of others -- under a liberal extension of the writ of injunction and the habeas corpus ad subjiciendum, I flatter myself that the full extent of the constitutional revising power may be secured to the United States, and the Page 14 U. S. 382 benefits of it to the individual, without ever resorting to compulsory or restrictive process upon the State tribunals; a right which, I repeat again, Congress has not asserted, nor has this Court asserted, nor does there appear any necessity for asserting. The remaining points in the case being mere questions of practice, I shall make no remarks upon them. Judgment affirmed.

In Martin v. Hunter's Lessee (1816), the U.S. Supreme Court asserted its authority to review state court decisions involving federal law, establishing the principle of federal judicial supremacy. The case involved a land dispute in Virginia, where the state Court of Appeals refused to follow the Supreme Court's mandate, arguing that the Supreme Court's appellate jurisdiction did not extend to state courts. The Supreme Court asserted its power of judicial review, stating that it had the final say in interpreting the Constitution and that state courts were bound by its decisions. This case solidified the role of the Supreme Court as the ultimate arbiter of federal law and the Constitution, ensuring uniformity in the interpretation and application of federal law across state courts.

Role of Courts

Ableman v. Booth

https://supreme.justia.com/cases/federal/us/62/506/

U.S. Supreme Court Ableman v. Booth, 62 U.S. 21 How. 506 506 (1858) Ableman v. Booth 62 U.S. (21 How.) 506 Syllabus 1. The process of a State court or judge has no authority beyond the limits of the sovereignty which confers the judicial power. 2. A habeas corpus, issued by a State judge or court, has no authority within the limits of the sovereignty assigned by the Constitution to the United States. The sovereignty of the United States and of a State are distinct and independent of each other within their respective spheres of action, although both exist and exercise their powers within the same territorial limits. 3. When a writ of habeas corpus is served on a marshal or other person having a prisoner in custody under the authority of the United States, it is his duty, by a proper return, to make known to the State judge or court the authority by which he holds him. But, at the same time, it is his duty not to obey the process of the State authority, but to obey and execute the process of the United States. 4. This court has appellate power in all cases arising under the Constitution and laws of the United States, with such exceptions and regulations as Congress may make, whether the cases arise in a State Court or an inferior court of the United States. And, under the act of Congress of 1789, when the decision of the State court is against the right claimed under the Constitution or laws of the United States, a writ of error will lie to bring the judgment of the State court before this court for reexamination and revision. 5. The act of Congress of September 18, 1850, usually called the fugitive slave law, is constitutional in all its provisions. 6. The commissioner appointed by the District Court of the United States for the district of Wisconsin had authority to issue his warrant and commit the defendant in error for an offence against eh act of September 18, 1850. 7. The District Court of the United States had exclusive jurisdiction to try and punish the offence, and the validity of its proceedings and judgment cannot be reexamined and set aside by any other tribunal. These two cases were brought up from the Supreme Court Page 62 U. S. 507 of the State of Wisconsin by a writ of error issued under the 25th section of the judiciary act. The facts are stated in the opinion of the court. Mr. Chief Justice TANEY delivered the opinion of the court. The plaintiff in error in the first of these cases is the marshal of the United States for the district of Wisconsin, and the two cases have arisen out of the same transaction, and depend, to some extent, upon the same principles. On that account, they have been argued and considered together; and the following are the facts as they appear in the transcripts before us: Sherman M. Booth was charged before Winfield Smith, a commissioner duly appointed by the District Court of the United States for the district of Wisconsin, with having, on the 11th day of March, 1854, aided and abetted, at Milwaukee, in the said district, the escape of a fugitive slave from the deputy marshal, who had him in custody under a warrant issued by the district judge of the United States for that district, under the act of Congress of September 18, 1850. Upon the examination before the commissioner, he was satisfied that an offence had been committed as charged, and that there was probable cause to believe that Booth had been guilty of it, and thereupon held him to bail to appear and answer before the District Court of the United States for the district of Wisconsin on the first Monday in July then next ensuing. But on the 26th of May, his bail or surety in the recognisance delivered him to the marshal, in the presence of the commissioner, and requested the commissioner to recommit Booth to the custody of the marshal, and he having failed to recognise again for his appearance before the District Court, the commissioner committed him to the custody of the marshal, to be delivered to the keeper of the jail until he should be discharged by due course of law. Booth made application on the next day, the 27th of May, Page 62 U. S. 508 to A. D. Smith, one of the justices of the Supreme Court of the State of Wisconsin, for a writ of habeas corpus, stating that he was restrained of his liberty by Stephen V. R. Ableman, marshal of the United States for that district, under the warrant of commitment hereinbefore mentioned, and alleging that his imprisonment was illegal because the act of Congress of September 18, 1850, was unconstitutional and void, and also that the warrant was defective, and did not describe the offence created by that act, even if the act were valid. Upon this application, the justice, on the same day, issued the writ of habeas corpus, directed to the marshal, requiring him forthwith to have the body of Booth before him (the said justice) together with the time and cause of his imprisonment. The marshal thereupon, on the day above mentioned, produced Booth and made his return, stating that he was received into his custody as marshal on the day before, and held in custody by virtue of the warrant of the commissioner above mentioned, a copy of which he annexed to and returned with the writ. To this return Booth demurred, as not sufficient in law to justify his detention. And upon the hearing the justice decided that his detention was illegal, and ordered the marshal to discharge him and set him at liberty, which was accordingly done. Afterwards, on the 9th of June in the same year, the marshal applied to the Supreme Court of the State for a certiorari, setting forth in his application the proceedings hereinbefore mentioned, and charging that the release of Booth by the justice was erroneous and unlawful, and praying that his proceedings might be brought before the Supreme Court of the State for revision. The certiorari was allowed on the same day, and the writ was accordingly issued on the 12th of the same month, and returnable on the third Tuesday of the month, and on the 20th, the return was made by the justice, stating the proceedings as hereinbefore mentioned. The case was argued before the Supreme Court of the State, and, on the 19th of July, it pronounced its judgment, affirming Page 62 U. S. 509 the decision of the associate justice discharging Booth from imprisonment, with costs against Ableman, the marshal. Afterwards, on the 26th of October, the marshal sued out a writ of error, returnable to this court on the first Monday of December, 1854, in order to bring the judgment here for revision, and the defendant in error was regularly cited to appear on that day, and the record and proceedings were certified to this court by the clerk of the State court in the usual form, in obedience to the writ of error. And on the 4th of December, Booth, the defendant in error, filed a memorandum in writing in this court, stating that he had been cited to appear here in this case, and that he submitted it to the judgment of this court on the reasoning in the argument and opinions in the printed pamphlets therewith sent. After the judgment was entered in the Supreme Court of Wisconsin, and before the writ of error was sued out, the State court entered on its record that, in the final judgment it had rendered, the validity of the act of Congress of September 18, 1850, and of February 12, 1793, and the authority of the marshal to hold the defendant in his custody under the process mentioned in his return to the writ of habeas corpus were respectively drawn in question, and the decision of the court in the final judgment was against their validity, respectively. This certificate was not necessary to give this court jurisdiction, because the proceedings, upon their face, show that these questions arose, and how they were decided, but it shows that, at that time, the Supreme Court of Wisconsin did not question their obligation to obey the writ of error, nor the authority of this court to reexamine their judgment in the cases specified. And the certificate is given for the purpose of placing distinctly on the record the points that were raised and decided in that court, in order that this court might have no difficulty in exercising its appellate power and pronouncing its judgment upon all of them. We come now to the second case. At the January term of the District Court of the United States for the district of Wisconsin, after Booth had been set at liberty and after the transcript of the proceedings in the case above mentioned had been Page 62 U. S. 510 returned to and filed in this court, the grand jury found a bill of indictment against Booth for the offence with which he was charged before the commissioner and from which the State court had discharged him. The indictment was found on the 4th of January, 1855. On the 9th, a motion was made by counsel on behalf of the accused to quash the indictment, which was overruled by the court, and he thereupon pleaded not guilty, upon which issue was joined. On the 10th, a jury was called and appeared in court, when he challenged the array, but the challenge was overruled and the jury empaneled. The trial, it appears, continued from day to day, until the 13th, when the jury found him guilty in the manner and form in which he stood indicted in the fourth and fifth counts. On the 16th, he moved for a new trial and in arrest of judgment, which motions were argued on the 20th, and on the 23d the court overruled the motions and sentenced the prisoner to be imprisoned for one month, and to pay a fine of $1,000 and the costs of prosecution, and that he remain in custody until the sentence was complied with. We have stated more particularly these proceedings from a sense of justice to the District Court, as they show that every opportunity of making his defence was afforded him, and that his case was fully heard and considered. On the 26th of January, three days after the sentence was passed, the prisoner by his counsel filed his petition in the Supreme Court of the State, and with his petition filed a copy of the proceedings in the District Court, and also affidavits from the foreman and one other member of the jury who tried him, stating that their verdict was guilty on the fourth and fifth counts, and not guilty on the other three, and stated in his petition that his imprisonment was illegal because the fugitive slave law was unconstitutional, that the District Court had no jurisdiction to try or punish him for the matter charged against him, and that the proceedings and sentence of that court were absolute nullities in law. Various other objections to the proceedings are alleged which are unimportant in the questions now before the court, and need not, therefore, be particularly stated. On the next day, the 27th, the court directed Page 62 U. S. 511 two writs of habeas corpus to be issued, one to the marshal and one to the sheriff of Milwaukee, to whose actual keeping the prisoner was committed by the marshal, by order of the District Court. The habeas corpus directed each of them to produce the body of the prisoner and make known the cause of his imprisonment immediately after the receipt of the writ. On the 30th of January the marshal made his return, not acknowledging the jurisdiction but stating the sentence of the District Court as his authority; that the prisoner was delivered to, and was then in the actual keeping of the sheriff of Milwaukee county by order of the court, and he therefore had no control of the body of the prisoner; and if the sheriff had not received him, he should have so reported to the District Court, and should have conveyed him to some other place or prison, as the court should command. On the same day, the sheriff produced the body of Booth before the State court, and returned that he had been committed to his custody by the marshal by virtue of a transcript, a true copy of which was annexed to his return, and which was the only process or authority by which he detained him. This transcript was a full copy of the proceedings and sentence in the District Court of the United States, as hereinbefore stated. To this return the accused, by his counsel, filed a general demurrer. The court ordered the hearing to be postponed until the 2d of February, and notice to be given to the district attorney of the United States. It was accordingly heard on that day, and on the next (February 3d), the court decided that the imprisonment was illegal, and ordered and adjudged that Booth be, and he was by that judgment, forever discharged from that imprisonment and restraint, and he was accordingly set at liberty. On the 21st of April next following, the Attorney General of the United States presented a petition to the Chief Justice of the Supreme Court, stating briefly the facts in the case and at the same time presenting an exemplification of the proceedings hereinbefore stated, duly certified by the clerk of the State court and averring in his petition that the State court had no Page 62 U. S. 512 jurisdiction in the case, and praying that a writ of error might issue to bring its judgment before this court to correct the error. The writ of error was allowed and issued, and, according to the rules and practice of the court, was returnable on the first Monday of December, 1855, and a citation for the defendant in error to appear on that day was issued by the Chief Justice at the same time. No return having been made to this writ, the Attorney General, on the 1st of February, 1856, filed affidavits showing that the writ of error had been duly served on the clerk of the Supreme Court of Wisconsin, at his office, on the 30th of May, 1855, and the citation served on the defendant in error on the 28th of June, in the same year. And also the affidavit of the district attorney of the United States for the district of Wisconsin, setting forth that when he served the writ of error upon the clerk, as above mentioned, he was informed by the clerk, and has also been informed by one of the justices of the Supreme Court, which released Booth, " that the court had directed the clerk to make no return to the writ of error, and to enter no order upon the journals or records of the court concerning the same. " And, upon these proofs, the Attorney General moved the court for an order upon the clerk to make return to the writ of error, on or before the first day of the next ensuing term of this court. The rule was accordingly laid, and, on the 22d of July, 1856, the Attorney General filed with the clerk of this court the affidavit of the marshal of the district of Wisconsin that he had served the rule on the clerk on the 7th of the month above mentioned, and no return having been made, the Attorney General, on the 27th of February, 1857, moved for leave to file the certified copy of the record of the Supreme Court of Wisconsin, which he had produced with his application for the writ of error, and to docket the case in this court in conformity with a motion to that effect made at the last term. And the court thereupon, on the 6th of March, 1857, ordered the copy of the record filed by the Attorney General to be received and entered on the docket of this court, to have the same effect and legal operation as if returned by the clerk with the writ of error, and that the case stand for argument Page 62 U. S. 513 at the next ensuing term, without further notice to either party. The case was accordingly docketed, but was not reached for argument in the regular order and practice of the court until the present term. This detailed statement of the proceedings in the different courts has appeared to be necessary in order to form a just estimate of the action of the different tribunals in which it has been heard, and to account for the delay in the final decision of a case, which, from its character, would seem to have demanded prompt action. The first case, indeed, was reached for trial two terms ago. But as the two cases are different portions of the same prosecution for the same offence, they unavoidably, to some extent, involve the same principles of law, and it would hardly have been proper to hear and decide the first before the other was ready for hearing and decision. They have accordingly been argued together, by the Attorney General of the United States, at the present term. No counsel has in either case appeared for the defendant in error. But we have the pamphlet arguments filed and referred to by Booth in the first case, as hereinbefore mentioned, also the opinions and arguments of the Supreme Court of Wisconsin, and of the judges who compose it, in full, and are enabled, therefore, to see the grounds on which they rely to support their decisions. It will be seen from the foregoing statement of facts that a judge of the Supreme Court of the State of Wisconsin in the first of these cases, claimed and exercised the right to supervise and annul the proceedings of a commissioner of the United States, and to discharge a prisoner who had been committed by the commissioner for an offence against the laws of this Government, and that this exercise of power by the judge was afterwards sanctioned and affirmed by the Supreme Court of the State. In the second case, the State court has gone a step further, and claimed and exercised jurisdiction over the proceedings and judgment of a District Court of the United States, and, upon a summary and collateral proceeding by habeas corpus, Page 62 U. S. 514 has set aside and annulled its judgment and discharged a prisoner who had been tried and found guilty of an offence against the laws of the United States and sentenced to imprisonment by the District Court. And it further appears that the State court have not only claimed and exercised this jurisdiction, but have also determined that their decision is final and conclusive upon all the courts of the United States, and ordered their clerk to disregard and refuse obedience to the writ of error issued by this court, pursuant to the act of Congress of 1789, to bring here for examination and revision the judgment of the State court. These propositions are new in the jurisprudence of the United States, as well as of the States; and the supremacy of the State courts over the courts of the United States, in cases arising under the Constitution and laws of the United States, is now for the first time asserted and acted upon in the Supreme Court of a State. The supremacy is not, indeed, set forth distinctly and broadly, in so many words, in the printed opinions of the judges. It is intermixed with elaborate discussions of different provisions in the fugitive slave law, and of the privileges and power of the writ of habeas corpus. But the paramount power of the State court lies at the foundation of these decisions, for their commentaries upon the provisions of that law, and upon the privileges and power of the writ of habeas corpus, were out of place, and their judicial action upon them without authority of law, unless they had the power to revise and control the proceedings in the criminal case of which they were speaking, and their judgments releasing the prisoner and disregarding the writ of error from this court can rest upon no other foundation. If the judicial power exercised in this instance has been reserved to the States, no offence against the laws of the United States can be punished by their own courts without the permission and according to the judgment of the courts of the State in which the party happens to be imprisoned, for if the Supreme Court of Wisconsin possessed the power it has exercised in relation to offences against the act of Congress in question, Page 62 U. S. 515 it necessarily follows that they must have the same judicial authority in relation to any other law of the United States, and, consequently, their supervising and controlling power would embrace the whole criminal code of the United States, and extend to offences against our revenue laws, or any other law intended to guard the different departments of the General Government from fraud or violence. And it would embrace all crimes, from the highest to the lowest; including felonies, which are punished with death, as well as misdemeanors, which are punished by imprisonment. And, moreover, if the power is possessed by the Supreme Court of the State of Wisconsin, it must belong equally to every other State in the Union when the prisoner is within its territorial limits, and it is very certain that the State courts would not always agree in opinion, and it would often happen that an act which was admitted to be an offence, and justly punished, in one State would be regarded as innocent, and indeed as praiseworthy, in another. It would seem to be hardly necessary to do more than state the result to which these decisions of the State courts must inevitably lead. It is, of itself, a sufficient and conclusive answer, for no one will suppose that a Government which has now lasted nearly seventy years, enforcing its laws by its own tribunals and preserving the union of the States, could have lasted a single year, or fulfilled the high trusts committed to it, if offences against its laws could not have been punished without the consent of the State in which the culprit was found. The judges of the Supreme Court of Wisconsin do not distinctly state from what source they suppose they have derived this judicial power. There can be no such thing as judicial authority unless it is conferred by a Government or sovereignty, and if the judges and courts of Wisconsin possess the jurisdiction they claim, they must derive it either from the United States or the State. It certainly has not been conferred on them by the United States, and it is equally clear it was not in the power of the State to confer it, even if it had attempted to do so, for no State can authorize one of its judges Page 62 U. S. 516 or courts to exercise judicial power, by habeas corpus or otherwise, within the jurisdiction of another and independent Government. And although the State of Wisconsin is sovereign within its territorial limits to a certain extent, yet that sovereignty is limited and restricted by the Constitution of the United States. And the powers of the General Government, and of the State, although both exist and are exercised within the same territorial limits, are yet separate and distinct sovereignties, acting separately and independently of each other within their respective spheres. And the sphere of action appropriated to the United States is as far beyond the reach of the judicial process issued by a State judge or a State court, as if the line of division was traced by landmarks and monuments visible to the eye. And the State of Wisconsin had no more power to authorize these proceedings of its judges and courts than it would have had if the prisoner had been confined in Michigan, or in any other State of the Union, for an offence against the laws of the State in which he was imprisoned. It is, however, due to the State to say that we do not find this claim of paramount jurisdiction in the State courts over the courts of the United States asserted or countenanced by the Constitution or laws of the State. We find it only in the decisions of the judges of the Supreme Court. Indeed, at the very time these decisions were made, there was a statute of the State which declares that a person brought up on a habeas corpus shall be remanded if it appears that he is confined: "1st. By virtue of process, by any court or judge of the United States, in a case where such court or judge has exclusive jurisdiction; or," "2d. By virtue of the final judgment or decree of any competent court of civil or criminal jurisdiction." Revised Statutes of the State of Wisconsin, 1849, ch. 124, page 629. Even, therefore, if these cases depended upon the laws of Wisconsin, it would be difficult to find in these provisions such a grant of judicial power as the Supreme Court claims to have derived from the State. But, as we have already said, questions of this kind must Page 62 U. S. 517 always depend upon the Constitution and laws of the United States, and not of a State. The Constitution was not formed merely to guard the States against danger from foreign nations, but mainly to secure union and harmony at home, for if this object could be attained, there would be but little danger from abroad, and, to accomplish this purpose, it was felt by the statesmen who framed the Constitution and by the people who adopted it that it was necessary that many of the rights of sovereignty which the States then possessed should be ceded to the General Government, and that, in the sphere of action assigned to it, it should be supreme, and strong enough to execute its own laws by its own tribunals, without interruption from a State or from State authorities. And it was evident that anything short of this would be inadequate to the main objects for which the Government was established, and that local interests, local passions or prejudices, incited and fostered by individuals for sinister purposes, would lead to acts of aggression and injustice by one State upon the rights of another, which would ultimately terminate in violence and force unless there was a common arbiter between them, armed with power enough to protect and guard the rights of all by appropriate laws to be carried into execution peacefully by its judicial tribunals. The language of the Constitution by which this power is granted is too plain to admit of doubt or to need comment. It declares that "this Constitution, and the laws of the United States which shall be passed in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." But the supremacy thus conferred on this Government could not peacefully be maintained unless it was clothed with judicial power equally paramount in authority to carry it into execution, for if left to the courts of justice of the several States, conflicting decisions would unavoidably take place, and the local tribunals could hardly be expected to be always free Page 62 U. S. 518 from the local influences of which we have spoken. And the Constitution and laws and treaties of the United States, and the powers granted to the Federal Government, would soon receive different interpretations in different States, and the Government of the United States would soon become one thing in one State and another thing in another. It was essential, therefore, to its very existence as a Government that it should have the power of establishing courts of justice, altogether independent of State power, to carry into effect its own laws, and that a tribunal should be established in which all cases which might arise under the Constitution and laws and treaties of the United States, whether in a State court or a court of the United States, should be finally and conclusively decided. Without such a tribunal, it is obvious that there would be no uniformity of judicial decision, and that the supremacy, (which is but another name for independence) so carefully provided in the clause of the Constitution above referred to could not possibly be maintained peacefully unless it was associated with this paramount judicial authority. Accordingly, it was conferred on the General Government in clear, precise, and comprehensive terms. It is declared that its judicial power shall (among other subjects enumerated) extend to all cases in law and equity arising under the Constitution and laws of the United States, and that, in such cases, as well as the others there enumerated, this court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as Congress shall make. The appellate power, it will be observed, is conferred on this court in all cases or suits in which such a question shall arise. It is not confined to suits in the inferior courts of the United States, but extends to all cases where such a question arises, whether it be in a judicial tribunal of a State or of the United States. And it is manifest that this ultimate appellate power in a tribunal created by the Constitution itself was deemed essential to secure the independence and supremacy of the General Government in the sphere of action assigned to it, to make the Constitution and laws of the United States uniform, and the same in every State, and to guard against evils which would Page 62 U. S. 519 inevitably arise from conflicting opinions between the courts of a State and of the United States, if there was no common arbiter authorized to decide between them. The importance which the framers of the Constitution attached to such a tribunal, for the purpose of preserving internal tranquillity, is strikingly manifested by the clause which gives this court jurisdiction over the sovereign States which compose this Union when a controversy arises between them. Instead of reserving the right to seek redress for injustice from another State by their sovereign powers, they have bound themselves to submit to the decision of this court, and to abide by its judgment. And it is not out of place to say here that experience has demonstrated that this power was not unwisely surrendered by the States, for, in the time that has already elapsed since this Government came into existence, several irritating and angry controversies have taken place between adjoining States in relation to their respective boundaries, and which have sometimes threatened to end in force and violence but for the power vested in this court to hear them and decide between them. The same purposes are clearly indicated by the different language employed when conferring supremacy upon the laws of the United States, and jurisdiction upon its courts. In the first case, it provides that "this Constitution, and the laws of the United States which shall be made in pursuance thereof, shall be the supreme law of the land, and obligatory upon the judges in every State." The words in italics show the precision and foresight which marks every clause in the instrument. The sovereignty to be created was to be limited in its powers of legislation, and if it passed a law not authorized by its enumerated powers, it was not to be regarded as the supreme law of the land, nor were the State judges bound to carry it into execution. And as the courts of a State, and the courts of the United States, might, and indeed certainly would, often differ as to the extent of the powers conferred by the General Government, it was manifest that serious controversies would arise between the authorities of the United States and of the States, which must be settled by force of arms unless some Page 62 U. S. 520 tribunal was created to decide between them finally and with out appeal. The Constitution has accordingly provided, as far as human foresight could provide, against this danger. And, in conferring judicial power upon the Federal Government, it declares that the jurisdiction of its courts shall extend to all cases arising under "this Constitution" and the laws of the United States -- leaving out the words of restriction contained in the grant of legislative power which we have above noticed. The judicial power covers every legislative act of Congress, whether it be made within the limits of its delegated powers or be an assumption of power beyond the grants in the Constitution. This judicial power was justly regarded as indispensable not merely to maintain the supremacy of the laws of the United States, but also to guard the States from any encroachment upon their reserved rights by the General Government. And as the Constitution is the fundamental and supreme law, if it appears that an act of Congress is not pursuant to and within the limits of the power assigned to the Federal Government, it is the duty of the courts of the United States to declare it unconstitutional and void. The grant of judicial power is not confined to the administration of laws passed in pursuance to the provisions of the Constitution, nor confined to the interpretation of such laws, but, by the very terms of the grant, the Constitution is under their view when any act of Congress is brought before them, and it is their duty to declare the law void, and refuse to execute it, if it is not pursuant to the legislative powers conferred upon Congress. And as the final appellate power in all such questions is given to this court, controversies as to the respective powers of the United States and the States, instead of being determined by military and physical force, are heard, investigated, and finally settled with the calmness and deliberation of judicial inquiry. And no one can fail to see that, if such an arbiter had not been provided in our complicated system of government, internal tranquillity could not have been preserved, and if such controversies were left to arbitrament of physical force, our Government, State and National, would soon cease to be Governments Page 62 U. S. 521 of laws, and revolutions by force of arms would take the place of courts of justice and judicial decisions. In organizing such a tribunal, it is evident that every precaution was taken which human wisdom could devise to fit it for the high duty with which it was intrusted. It was not left to Congress to create it by law, for the States could hardly be expected to confide in the impartiality of a tribunal created exclusively by the General Government without any participation on their part. And as the performance of its duty would sometimes come in conflict with individual ambition or interests and powerful political combinations, an act of Congress establishing such a tribunal might be repealed in order to establish another more subservient to the predominant political influences or excited passions of the day. This tribunal, therefore, was erected, and the powers of which we have spoken conferred upon it, not by the Federal Government, but by the people of the States, who formed and adopted that Government and conferred upon it all the powers, legislative, executive, and judicial, which it now possesses. And in order to secure its independence and enable it faithfully and firmly to perform its duty, it engrafted it upon the Constitution itself, and declared that this court should have appellate power in all cases arising under the Constitution and laws of the United States. So long, therefore, as this Constitution shall endure, this tribunal must exist with it, deciding in the peaceful forms of judicial proceeding the angry and irritating controversies between sovereignties which, in other countries, have been determined by the arbitrament of force. These principles of constitutional law are confirmed and illustrated by the clause which confers legislative power upon Congress. That power is specifically given in article 1, section 8, paragraph 18, in the following words: "To make all laws which shall be necessary and proper to carry into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof." Under this clause of the Constitution, it became the duty of Congress to pass such laws as were necessary and proper to Page 62 U. S. 522 carry into execution the powers vested in the judicial department. And in the performance of this duty, the First Congress, at its first session, passed the act of 1789, ch. 20, entitled " An act to establish the judicial courts of the United States. " It will be remembered that many of the members of the Convention were also members of this Congress, and it cannot be supposed that they did not understand the meaning and intention of the great instrument which they had so anxiously and deliberately considered, clause by clause, and assisted to frame. And the law they passed to carry into execution the powers vested in the judicial department of the Government proves past doubt that their interpretation of the appellate powers conferred on this court was the same with that which we have now given, for, by the 25th section of the act of 1789, Congress authorized writs of error to be issued from this court to a State court whenever a right had been claimed under the Constitution or laws of the United States and the decision of the State court was against it. And to make this appellate power effectual and altogether independent of the action of State tribunals, this act further provides that, upon writs of error to a State court, instead of remanding the cause for a final decision in the State court, this court may, at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same and award execution. These provisions in the act of 1789 tell us, in language not to be mistaken, the great importance which the patriots and statement of the First Congress attached to this appellate power, and the foresight and care with which they guarded its free and independent exercise against interference or obstruction by States or State tribunals. In the case before the Supreme Court of Wisconsin, a right was claimed under the Constitution and laws of the United States, and the decision was against the right claimed, and it refuses obedience to the writ of error, and regards its own judgment as final. It has not only reversed and annulled the judgment of the District Court of the United States, but it has reversed and annulled the provisions of the Constitution itself, Page 62 U. S. 523 and the act of Congress of 1789, and made the superior and appellate tribunal the inferior and subordinate one. We do not question the authority of State court or judge who is authorized by the laws of the State to issue the writ of habeas corpus to issue it in any case where the party is imprisoned within its territorial limits, provided it does not appear, when the application is made, that the person imprisoned is in custody under the authority of the United States. The court or judge has a right to inquire, in this mode of proceeding, for what cause and by what authority the prisoner is confined within the territorial limits of the State sovereignty. And it is the duty of the marshal or other person having the custody of the prisoner to make known to the judge or court, by a proper return, the authority by which he holds him in custody. This right to inquire by process of habeas corpus, and the duty of the officer to make a return, grows necessarily out of the complex character of our Government and the existence of two distinct and separate sovereignties within the same territorial space, each of them restricted in its powers and each within its sphere of action, prescribed by the Constitution of the United States, independent of the other. But, after the return is made and the State judge or court judicially apprized that the party is in custody under the authority of the United States, they can proceed no further. They then know that the prisoner is within the dominion and jurisdiction of another Government, and that neither the writ of habeas corpus nor any other process issued under State authority can pass over the line of division between the two sovereignties. He is then within the dominion and exclusive jurisdiction of the United States. If he has committed an offence against their laws, their tribunals alone can punish him. If he is wrongfully imprisoned, their judicial tribunals can release him and afford him redress. And although, as we have said, it is the duty of the marshal or other person holding him to make known, by a proper return, the authority under which he detains him, it is at the same time imperatively his duty to obey the process of the United States, to hold the prisoner in custody under it, and to refuse obedience to the mandate or Page 62 U. S. 524 process of any other Government. And consequently it is his duty not to take the prisoner, nor suffer him to be taken, before a State judge or court upon a habeas corpus issued under State authority. No State judge or court, after they are judicially informed that the party is imprisoned under the authority of the United States, has any right to interfere with him or to require him to be brought before them. And if the authority of a State, in the form of judicial process or otherwise, should attempt to control the marshal or other authorized officer or agent of the United States in any respect, in the custody of his prisoner, it would be his duty to resist it, and to call to his aid any force that might be necessary to maintain the authority of law against illegal interference. No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued, and an attempt to enforce it beyond these boundaries is nothing less than lawless violence. Nor is there anything in this supremacy of the General Government, or the jurisdiction of its judicial tribunals to awaken the jealousy or offend the natural and just pride of State sovereignty. Neither this Government nor the powers of which we are speaking were forced upon the States. The Constitution of the United States, with all the powers conferred by it on the General Government and surrendered by the States, was the voluntary act of the people of the several States, deliberately done for their own protection and safety against injustice from one another. And their anxiety to preserve it in full force, in all its powers, and to guard against resistance to or evasion of its authority on the part of a State is proved by the clause which requires that the members of the State Legislatures and all executive and judicial officers of the several States (as well as those of the General Government) shall be bound, by oath or affirmation, to support this Constitution. This is the last and closing clause of the Constitution, and inserted when the whole frame of Government, with the powers hereinbefore specified, had been adopted by the Convention, and it was in that form, and with these powers, that the Constitution Page 62 U. S. 525 was submitted to the people of the several States for their consideration and decision. Now, it certainly can be no humiliation to the citizen of a republic to yield a ready obedience to the laws as administered by the constituted authorities. On the contrary, it is among his first and highest duties as a citizen, because free government cannot exist without it. Nor can it be inconsistent with the dignity of a sovereign State to observe faithfully, and in the spirit of sincerity and truth, the compact into which it voluntarily entered when it became a State of this Union. On the contrary, the highest honor of sovereignty is untarnished faith. And certainly no faith could be more deliberately and solemnly pledged than that which every State has plighted to the other States to support the Constitution as it is, in all its provisions, until they shall be altered in the manner which the Constitution itself prescribes. In the emphatic language of the pledge required, it is to support this Constitution. And no power is more clearly conferred by the Constitution and laws of the United States than the power of this court to decide, ultimately and finally, all cases arising under such Constitution and laws, and for that purpose to bring here for revision, by writ of error, the judgment of a State court, where such questions have arisen, and the right claimed under them denied by the highest judicial tribunal in the State. We are sensible that we have extended the examination of these decisions beyond the limits required by any intrinsic difficulty in the questions. But the decisions in question were made by the supreme judicial tribunal of the State, and when a court so elevated in its position has pronounced a judgment which, if it could be maintained, would subvert the very foundations of this Government, it seemed to be the duty of this court, when exercising its appellate power, to show plainly the grave errors into which the State court has fallen and the consequences to which they would inevitably lead. But it can hardly be necessary to point out the errors which followed their mistaken view of the jurisdiction they might lawfully exercise, because, if there was any defect of power in the commissioner, or in his mode of proceeding, it was for the Page 62 U. S. 526 tribunals of the United States to revise and correct it, and not for a State court. And as regards the decision of the District Court, it had exclusive and final jurisdiction by the laws of the United States, and neither the regularity of its proceedings nor the validity of its sentence could be called in question in any other court, either of a State or the United States, by habeas corpus or any other process. But although we think it unnecessary to discuss these questions, yet, as they have been decided by the State court, and are before us on the record, and we are not willing to be misunderstood, it is proper to say that, in the judgment of this court, the act of Congress commonly called the fugitive slave law is, in all of its provisions, fully authorized by the Constitution of the United States, that the commissioner had lawful authority to issue the warrant and commit the party, and that his proceedings were regular and conformable to law. We have already stated the opinion and judgment of the court as to the exclusive jurisdiction of the District Court and the appellate powers which this court is authorized and required to exercise. And if any argument was needed to show the wisdom and necessity of this appellate power, the cases before us sufficiently prove it, and at the same time emphatically call for its exercise. The judgment of the Supreme Court of Wisconsin must therefore be reversed in each of the cases now before the court.

Here is a summary of the case: *Background:* Sherman Booth was arrested by US Marshal Robert Ableman for helping a fugitive slave escape, as per the Fugitive Slave Act of 1850. A Wisconsin state judge issued a writ of habeas corpus, challenging Booth's arrest. The US District Court for Wisconsin had exclusive jurisdiction over Booth's case. *Issue:* Whether the state court's writ of habeas corpus could override the US marshal's authority and the jurisdiction of the US District Court. *Holding:* The Supreme Court of the United States held that: - State court processes have no authority beyond state limits. - The state's habeas corpus had no power over US authority. - The US marshal's duty was to not obey the state's process but to follow the US process. - The US Supreme Court has the power to revise and correct decisions made by state courts in cases arising under US laws and the Constitution. - The Fugitive Slave Act of 1850 was constitutional, and the commissioner's actions were lawful. - The US District Court had exclusive and final jurisdiction over Booth's case, and its proceedings were valid. *Conclusion:* The Supreme Court reversed the Wisconsin Supreme Court's judgment, asserting the supremacy of federal law and the exclusive jurisdiction of federal courts in cases arising under US laws and the Constitution.

Role of Courts

Fletcher v. Peck

https://supreme.justia.com/cases/federal/us/10/87/

U.S. Supreme Court Fletcher v. Peck, 10 U.S. 6 Cranch 87 87 (1810) Fletcher v. Peck 10 U.S. (6 Cranch) 87 ERROR TO THE CIRCUIT COURT FOR THE DISTRICT OF MASSACHUSETTS Syllabus If the breach of covenant assigned be that the State had no authority to sell and dispose of the land, it is not a good plea in bar to say that the Governor was legally empowered to sell and convey the premises, although the facts stated in the plea as inducement are sufficient to justify a direct negative of the breach assigned. It is not necessary that a breach of covenant be assigned in the very words of the covenant. It is sufficient if it show a substantial breach. The Court will not declare a law to be unconstitutional unless the opposition between the Constitution and the law be clear and plain. The Legislature of Georgia, in 1795, had the power of disposing of the unappropriated lands within its own limits. In a contest between two individuals claiming under an act of a legislature, the Court cannot inquire into the motives which actuated the members of that legislature. If the legislature might constitutionally pass such an act; if the act be clothed with all the requisite forms of a law, a court, sitting as a court of law, cannot sustain a suit between individuals founded on the allegation that the act is a nullity in consequence of the impure motives which influenced certain members of the legislature which passed the law. When a law is in the nature of a contract, when absolute rights have vested under that contract, a repeal of the law cannot devest those rights. A party to a contract cannot pronounce its own deed invalid, although that party be a sovereign State. A grant is a contract executed. A law annulling conveyances is unconstitutional because it is a law impairing the obligation of contracts within the meaning of the Constitution of the United States. The proclamation of the King of Great Britain in 1763 did not alter the boundaries of Georgia. The nature of the Indian title is not such as to absolutely repugnant to seisin in fee on the part of the State. The question whether a law is void for its repugnancy to the Constitution is at all times a question of much delicacy, which ought seldom, if ever, to be decided in a doubtful case. The Court, when impelled by duty to render such a judgment, would be unworthy of its station could it be unmindful of the solemn obligations which that station imposes. But it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its act to be considered void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other. One individual who holds lands in the State of Georgia under a deed covenanting that the title of Georgia was in the grantor brings an action of covenant on this deed, and assigns as a breach that some of the members of the Legislature were induced to vote in favour of the law which constituted the contract by being promised an interest in it, and that therefore the act is a mere nullity. This solemn question cannot be brought thus collaterally and incidentally before the Court. It would be indecent in the extreme, upon a private contract between two individuals, to enter into an inquiry respecting the corruption of the sovereign power of the State. If the title be plainly deduced from a legislative act which the legislature might constitutionally pass, if the act be clothed with all the requisite forms of law, a court, sitting as a court of law, cannot sustain a suit brought by one individual against another founded on the allegation that the act is a nullity in consequence of the impure motives which influenced certain members of the legislature which passed the acts. If a suit be brought to set aside a conveyance obtained by fraud, and the fraud be clearly proved, the conveyance will be set aside as between the parties, but the rights of third persons who are purchasers without notice for a valuable consideration cannot be disregarded. The principle asserted is that one legislature is competent to repeal any act which a former legislature was competent to pass, and that one legislature cannot abridge the powers of a succeeding legislature. The correctness of this principle so far as it respects general legislation cannot be controverted. But if an act be done under a law, a succeeding legislature cannot undo it. The past cannot be recalled by the most absolute power. The State legislatures can pass no ex post facto law. An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed. Such a law may inflict penalties upon the person, or may inflict pecuniary penalties which swell the public treasury. The legislature is then prohibited from passing a law by which a man's estate, or any part of it, shall be seized for a crime which was not declared by some previous law to render him liable for punishment. It was doubted whether a State can be seised in fee of lands subject to the Indian title, and whether a decision that they were seised in fee might not be construed to amount to a decision that their grantee might maintain an ejectment for them notwithstanding that title. The majority of the Court is of opinion that the nature of the Indian title, which is certainly to be respected by all courts until it be legitimately extinguished, is not such as to be absolutely repugnant to a seisin in fee on the part of the State. Error to the Circuit Court for the District of Massachusetts in an action of covenant brought by Fletcher against Peck. The first count of the declaration states that Peck, by his deed of bargain and sale dated the 14th of May, 1803, in consideration of 3,000 dollars, sold and conveyed to Fletcher 15,000 acres of land lying in common and undivided in a tract described as follows: beginning on the river Mississippi, where the latitude 32 deg. 40 min. north of the equator intersects the same, running thence along the same parallel of latitude a due east course to the Tombigby river, thence up the said Tombigby river to where the latitude of 32 deg. 43 min. 52 sec. intersects the same, thence along the same parallel of latitude a due west course to the Mississippi; thence down the said river, to the place of beginning; the said described tract containing 500,000 acres, and is the same which was conveyed by Nathaniel Prime to Oliver Phelps by deed dated the 27th of February, 1796, and of which the said Phelps conveyed four-fifths to Benjamin Hichborn, and the said Peck by deed dated the 8th of December, 1800; the said tract of 500,000 acres being part of a tract which James Greenleaf conveyed to the said N. Prime, by deed dated the 23d of September, 1795, and is parcel of that tract which James Gunn, Mathew M'Allister, George Walker, Zachariah Cox, Jacob Walburger, William Longstreet and Wade Hampton, by deed dated 22d of August, 1795, conveyed to the said James Greenleaf; the same being part of that tract which was granted by letters patent under the great seal of the State of Georgia, and the signature of George Matthews, Esq. Governor of that State, dated the 13th of January, 1795, to the said James Gunn and others, under the name of James Gunn, Mathew M'Allister, and George Page 10 U. S. 88 Walker and their associates, and their heirs and assigns in fee simple, under the name of the Georgia company; which patent was issued by virtue of an Act of the Legislature of Georgia, passed the 7th of January, 1795, entitled "An act supplementary to an act for appropriating part of the unlocated territory of this State for the payment of the late State troops, and for other purposes therein mentioned, and declaring the right of this State to the unappropriated territory thereof, for the protection and support of the frontiers of this State, and for other purposes." That Peck, in his deed to Fletcher, covenanted "that the State of Georgia aforesaid was, at the time of the passing of the act of the legislature thereof (entitled as aforesaid), legally seised in fee of the soil thereof, subject only to the extinguishment of part of the Indian title thereon. And that the Legislature of the said State at the time of passing the act of sale aforesaid had good right to sell and dispose of the same in manner pointed out by the said Act. And that the Governor of the said State had lawful authority to issue his grant aforesaid, by virtue of the said Act. And further, that all the title which the said State of Georgia ever had in the aforegranted premises has been legally conveyed to the said John Peck by force of the conveyances aforesaid. And further, that the title to the premises so conveyed by the State of Georgia, and finally vested in the said Peck, has been in no way Constitutionally or legally impaired by virtue of any subsequent act of any subsequent Legislature of the said State of Georgia." The breaches assigned in the first count was that, at the time the said Act of 7th of January, 1795, was passed, "the said Legislature had no authority to sell and dispose of the tenements aforesaid, or of any part thereof, in the manner pointed out in the said Act." In the second count, "that at Augusta, in the said State of Georgia, on the 7th day of January, 1795, the said James Gunn, Mathew M'Allister Page 10 U. S. 89 and George Walker, promised and assured divers members of the Legislature of the said State then duly and legally sitting in General Assembly of the said State, that if the said members would assent to and vote for the passing of the act of the said General Assembly, entitled as aforesaid, the same then being before the said General Assembly in the form of a bill, and if the said bill should pass into a law, that such members should have a share of, and be interested in, all the lands which they the said Gunn, M'Allister and Walker and their associates should purchase of the said State by virtue of and under authority of the same law, and that divers of the said members to whom the said promise and assurance was so made as aforesaid were unduly influenced thereby, and, under such influence, did then and there vote for the passing the said bill into a law, by reason whereof the said law was a nullity, and, from the time of passing, the same as aforesaid was, ever since has been, and now is, absolutely void and of no effect whatever; and that the title which the said State of Georgia had in the aforegranted premises at any time whatever was never legally conveyed to the said Peck, by force of the conveyances aforesaid." The third count, after repeating all the averments and recitals contained in the second, further averred that, after the passing of the said act, and of the execution of the patent aforesaid, the General Assembly of the State of Georgia, being a legislature of that State subsequent to that which passed the said act, at a session thereof, duly and legally holden at Augusta in the said State, did, on the 13th of February, 1796, because of the undue influence used as aforesaid in procuring the said act to be passed, and for other causes, pass another certain act in the words following that is to say, "An act declaring null and void a certain usurped act passed by the last legislature of this State at Augusta, the 7th day of January, 1795, under the pretended title of" "An act supplementary to an act entitled an act for appropriating a part of the unlocated Page 10 U. S. 90 territory of the State for the payment of the late State troops, and for other purposes therein mentioned, declaring the right of this State to the unappropriated territory thereof for the protection of the frontiers, and for other purposes," "and for expunging from the public records the said usurped act, and declaring the right of this State to all lands lying within the boundaries therein mentioned." By which, after a long preamble, it is enacted "That the said usurped act passed on the 7th of January, 1795, entitled, &c. be, and the same is hereby declared, null and void, and the grant or grants right or rights, claim or claims, issued, deduced, or derived therefrom, or from any clause, letter or spirit of the same, or any part of the same, is hereby also annulled, rendered void, and of no effect, and as the same was made without constitutional authority, and fraudulently obtained, it is hereby declared of no binding force or effect on this State, or the people thereof, but is and are to be considered, both law and grant, as they ought to be, ipso facto, of themselves, void, and the territory therein mentioned is also hereby declared to be the sole property of the State, subject only to the right of treaty of the United States to enable the State to purchase, under its preemption right, the Indian title to the same." The second section directs the enrolled law, the grant, and all deeds, contracts, &c. relative to the purchase to be expunged from the records of the State, &c. The third section declares that neither the law nor the grant nor any other conveyance, or agreement relative thereto shall be received in evidence in any court of law or equity in the State so far as to establish a right to the territory or any part thereof, but they may be received in evidence in private actions between individuals for the recovery of money paid upon pretended sales, &c. The fourth section provides for the repayment of money, funded stock, &c. which may have been paid into the treasury, provided it was then remaining Page 10 U. S. 91 therein, and provided the repayment should be demanded within eight months from that time. The fifth section prohibits any application to Congress, or the General Government of the United States for the extinguishment of the Indian claim. The sixth section provides for the promulgation of the act. The count then assigns a breach of the covenant in the following words, viz.: "And by reason of the passing of the said last-mentioned act, and by virtue thereof, the title which the said Peck had, as aforesaid, in and to the tenements aforesaid, and in and to any part thereof, was constitutionally and legally impaired, and rendered null and void." The fourth count, after reciting the covenants as in the first, assigned as a breach "that at the time of passing of the Act of the 7th of January, 1795, the United States of America were seised in fee simple of all the tenements aforesaid, and of all the soil thereof, and that, at that time the State of Georgia was not seised in fee simple of the tenements aforesaid, or of any part thereof, nor of any part of the soil thereof, subject only to the extinguishment of part of the Indian title thereon." The defendant pleaded four pleas, viz.: First plea. As to the breach assigned in the first count, he says, That, on the 6th of May, 1789, at Augusta, in the State of Georgia, the people of that State by their delegates, duly authorized and empowered to form, declare, ratify, and confirm a constitution for the government of the said State, did form, declare, ratify, and confirm such constitution, in the words following: [Here was inserted the whole Constitution, the sixteenth section of which declares that the General Assembly hall have power to make all laws and ordinances Page 10 U. S. 92 which they shall deem necessary and proper for the good of the State which shall not be repugnant to this constitution.] The plea then avers that, until and at the ratification and confirmation aforesaid of the said constitution, the people of the said State were seised, among other large parcels of land, and tracts of country, of all the tenements described by the said Fletcher in his said first count, and of the soil thereof in absolute sovereignty, and in fee simple (subject only to the extinguishment of the Indian title to part thereon), and that, upon the confirmation and ratification of the said Constitution, and by force thereof, the said State of Georgia became seised in absolute sovereignty, and in fee simple, of all the tenements aforesaid, with the soil thereof, subject as aforesaid, the same being within the territory and jurisdiction of the said State, and the same State continued so seised in fee simple until the said tenements and soil were conveyed by letters patent under the great seal of the said State, and under the signature of George Matthews, Esq., Governor thereof, in the manner and form mentioned by the said Fletcher in his said first count. And the said Peck further saith that on the 7th of January, 1795, at a session of the General Assembly of the said State duly holden at Augusta within the same, according to the provisions of the said constitution, the said General Assembly, then and there possessing all the powers vested in the Legislature of the said State by virtue of the said Constitution, passed the Act above mentioned by the said Fletcher in the assignment of the breach aforesaid, which Act is in the words following that is to say, "An Act supplementary," &c. [Here was recited the whole act, which, after a long preamble, declares the jurisdictional and territorial rights, and the fee simple to be in the State, and then enacts that certain portions of the vacant lands should be sold to four distinct associations of individuals, calling themselves respectively, "The Georgia Company," "The Georgia Mississippi Company," "The Upper Mississippi Company," and "The Tennessee Company."] The tract ordered to be sold to James Gunn and Page 10 U. S. 93 others (the Georgia Company) was described as follows: "All that tract or parcel of land, including islands, situate, lying and being within the following boundaries, that is to say, beginning on the Mobile bay where the latitude 31 deg. north of the equator, intersects the same, running thence up the said bay to the mouth of Lake Tensaw; thence up the said Lake Tensaw to the Alabama River, including Curry's, and all other islands therein; thence up the said Alabama River to the junction of the Coosa and Oakfushee Rivers; thence up the Coosa River above the big shoals to where it intersects the latitude of thirty-four degrees north of the equator; thence a due west course to the Mississippi River; thence down the middle of the said river to the latitude 32 deg. 40 min.; thence, a due east course to the Don or Tombigby River; thence down the middle of the said river to its junction with the Alabama River; thence down the middle of the said river to Mobile Bay; thence down the Mobile Bay to the place of beginning." Upon payment of fifty thousand dollars, the Governor was required to issue and sign a grant for the same, taking a mortgage to secure the balance, being two hundred thousand dollars, payable on the first of November, 1795. The plea then avers that all the tenements described in the first count are included in, and parcel of, the lands in the said Act to be sold to the said Gunn, M'Allister, and Walker and their associates, as in the Act is mentioned. And that, by force and virtue of the said Act, and of the Constitution aforesaid, of the said State, the said Matthews, Governor of the said State, was fully and legally empowered to sell and convey the tenements aforesaid, and the soil thereof, subject as aforesaid, in fee simple by the said patent under the seal of the said State, and under his signature, according to the terms, limitations, and conditions in the said Act mentioned. And all this he is ready to verify; wherefore, &c. Page 10 U. S. 94 To this plea there was a general demurrer and joinder. Second plea. To the second count, the defendant, "protesting that the said Gunn, M'Allister, and Walker did not make the promises and assurances to divers members of the Legislature of the said State of Georgia, supposed by the said Fletcher in his second count, for plea saith that, until after the purchase by the said Greenleaf, as is mentioned in the said second count, neither he the said defendant, nor the said Prime, nor the said Greenleaf, nor the said Phelps, nor the said Hichborn, nor either of them, had any notice nor knowledge that any such promises and assurances were made by the said Gunn, M'Allister and Walker, or either of them, to any of the members of the Legislature of the said State of Georgia, as is supposed by the said Fletcher in his said second count, and this he is ready to verify," &c. To this plea also there was a general demurrer and joinder. The third plea to the third count was the same as the second plea, with the addition of an averment that Greenleaf, Prince, Phelps, Hichborn and the defendant were, until and after the purchase by Greenleaf, on the 22d of August, 1795, and ever since have been, citizens of some of the United States other than the State of Georgia. To this plea also there was a general demurrer and joinder. Fourth plea. To the fourth count, the defendant pleaded that, at the time of passing the Act of the 7th of January, 1795, the State of Georgia was seised in fee simple of all the tenements and territories aforesaid, and of all the soil thereof, subject only to the extinguishment of the Indian title to part thereof, and of this he puts himself on the country, and the plaintiff likewise. Page 10 U. S. 95 Upon the issue joined upon the fourth plea, the jury found the following special verdict, viz.: That his late majesty, Charles the second, King of Great Britain, by his letters patent under the great seal of Great Britain, bearing date the thirtieth day of June, in the seventeenth year of his reign, did grant unto Edward Earl of Clarendon, George Duke of Albemarle, William Earl of Craven, John Lord Berkeley, Antony Lord Ashby, Sir George Carteret, Sir John Colleton, and Sir William Berkeley, therein called lords proprietors, and their heirs and assigns, all that Province, territory, or tract of ground, situate, lying and being in North America, and described as follows: extending north and eastward as far as the north end of Carahtuke River or gullet, upon a straight westerly line to Wyonoahe Creek, which lies within or about the degrees of thirty-six and thirty minutes of northern latitude, and so west in a direct line as far as the South Seas, and south and westward as far as the degrees of twenty-nine inclusive, northern latitude, and so west in a direct line as far as the South Seas (which territory was called Carolina), together with all ports, harbours, bays, rivers, soil, land, fields, woods, lakes, and other rights and privileges therein named; that the said lords proprietors, grantees aforesaid, afterwards, by force of said grant, entered upon and took possession of said territory, and established within the same many settlements, and erected therein fortifications and posts of defence. And the jury further find that the northern part of the said tract of land, granted as aforesaid to the said lords proprietors, was afterwards created a colony by the King of Great Britain, under the name of North Carolina, and that the most northern part of the thirty-fifth degree of north latitude was then and ever afterwards the boundary and line between North Carolina and South Carolina, and that the land, described in the plaintiff's declaration, is situate in that part of said tract, formerly called Carolina, which was afterwards a colony called South Carolina, as aforesaid; that afterwards, on the twenty-sixth day of July, in the Page 10 U. S. 96 third year of the reign of his late majesty George the second, King of Great Britain, and in the year of Our Lord one thousand, seven hundred and twenty-nine, the heirs or legal representatives of all the said grantees, except those of Sir George Carteret, by deed of indenture, made between authorized agents of the said King George the second and the heirs and representatives of the said grantees, in conformity to an act of the parliament of said Kingdom of Great Britain, entitled, "An act for establishing an agreement with seven of the lords proprietors of Carolina for the surrender of their title and interest in that Province to his majesty," for and in consideration of the sum of twenty-two thousand five hundred pounds of the money of Great Britain, paid to the said heirs and representatives of the said seven of the lords proprietors, by the said agent of the said King, sold and surrendered to his said majesty, King George the second, all their right of soil, and other privileges to the said granted territory; which deed of indenture was duly executed and was enrolled in the chancery of Great Britain, and there remains in the chapel of the rolls. That afterwards, on the ninth day of December, one thousand, seven hundred and twenty-nine, his said majesty, George the second, appointed Robert Johnson, Esq. to be Governor of the Province of South Carolina, by a commission under the great seal of the said Kingdom of Great Britain, in which commission the said Governor Johnson is authorized to grant lands within the said Province, but no particular limits of the said Province is therein defined. And the jury further find that the said Governor of South Carolina did exercise jurisdiction in and over the said colony of South Carolina under the commission aforesaid, claiming to have jurisdiction by force thereof as far southward and westward as the southern and western bounds of the aforementioned grant of Carolina by King Charles the second, to the said lords proprietors, but that he was often interrupted therein and prevented therefrom in the southern and western parts of said grants by the public enemies of the King of Great Britain, who at divers times Page 10 U. S. 97 had actual possession of the southern and western parts aforesaid. That afterwards the right honourable Lord Viscount Percival, the honourable Edward Digby, the honourable George Carpenter, James Oglethorpe, Esq. with others, petitioned the lords of the committee of his said majesty's Privy Council for a grant of lands in South Carolina, for the charitable purpose of transporting necessitous persons and families from London to that Province, to procure there a livelihood by their industry, and to be incorporated for that purpose; that the lords of the said Privy Council referred the said petition to the Board of Trade, so called, in Great Britain, who, on the seventeenth day of December, in the year of Our Lord one thousand seven hundred and thirty, made report thereon, and therein recommended that his said majesty would be pleased to incorporate the said petitioners as a charitable society, by the name of "The Corporation for the purpose of establishing charitable colonies in America, with perpetual succession." And the said report further recommended that his said majesty be pleased "to grant to the said petitioners and their successors for ever, all that tract of land in his Province of South Carolina, lying between the rivers Savannah and Alatamaha, to be bounded by the most navigable and largest branches of the Savannah, and the most southerly branch of the Alatamaha." And that they should be separated from the Province of South Carolina, and be made a colony independent thereof, save only in the command of their militia. That afterwards, on the twenty-second day of December, one thousand seven hundred and thirty-one, the said board of trade reported further to the said lords of the Privy Council, and recommended that the western boundary of the new charter of the colony, to be established in South Carolina, should extend as far as that described in the ancient patents granted by King Charles the Second to the late lords proprietors of Carolina, whereby that Province was to extend westward in a direct line as far as the South Seas. That afterwards, on the ninth day of June in the year of Our Lord one thousand seven hundred and thirty-two, his said majesty, George the Page 10 U. S. 98 Second, by his letters patent, or royal charter, under the great seal of the said Kingdom of Great Britain, did incorporate the said Lord Viscount Percival and others, the petitioners aforesaid, into a body politic and corporate, by the name of "The trustees for establishing the Colony of Georgia, in America, with perpetual succession;" and did, by the same letters patent, give and grant in free and common socage, and not in capite, to the said corporation and their successors, seven undivided parts (the whole into eight equal parts to be divided) of all those lands, countries and territories, situate, lying and being in that part of South Carolina in America which lies from a northern stream of a river there commonly called the Savannah, all along the seacoast to the southward unto the most southern branch of a certain other great water or river, called the Alatamaha, and westward from the heads of the said rivers respectively in direct lines to the South Seas, and all the lands lying within said boundaries, with the islands in the sea lying opposite to the eastern coast of the same, together with all the soils, grounds, havens, bays, mines, minerals, woods, rivers, waters, fishings, jurisdictions, franchises, privileges, and preeminences within the said territories. That afterwards, in the same year, the right honourable John Lord Carteret, Baron of Hawnes, in the county of Bedford, then Earl Granville, and heir of the late Sir George Carteret, one of the grantees and lords proprietors aforesaid, by deed of indenture between him and the said trustees for establishing the Colony of Georgia in America, for valuable consideration therein mentioned, did give, grant, bargain and sell unto the said trustees for establishing the Colony of Georgia aforesaid, and their successors, all his one undivided eighth part of or belonging to the said John Lord Carteret (the whole into eight equal parts to be divided) of, in, and to the aforesaid territory, seven undivided eight parts of which had been before granted by his said majesty to said trustees. And the jury further find that one-eighth part of the said territory, granted to the said lords proprietors, and called Carolina as aforesaid, which eighth part belonged Page 10 U. S. 99 to Sir George Carteret, and was not surrendered as aforesaid, was afterwards divided and set off in severalty to the heirs of the said Sir George Carteret in that part of said territory which was afterwards made a colony by the name of North Carolina. That afterwards, in the same year, the said James Oglethorpe, Esq. one of the said corporation, for and in the name of and as agent to the said corporation, with a large number of other persons under his authority and control, took possession of said territory, granted as aforesaid to the said corporation, made a treaty with some of the native Indians within said territory, in which, for and in behalf of said corporation, he made purchases of said Indians of their native rights to parts of said territory, and erected forts in several places to keep up marks of possession. That afterwards, on the sixth day of September, in the year last mentioned, on the application of said corporation to the said Board of Trade, they the said Board of Trade, in the name of his said majesty, sent instructions to said Robert Johnson, then Governor of South Carolina, thereby willing and requiring him to give all due countenance and encouragement for the settling of the said Colony of Georgia, by being aiding and assisting to any settlers therein, and further requiring him to cause to be registered the aforesaid charter of the Colony of Georgia, within the said Province of South Carolina, and the same to be entered of record by the proper officer of the said Province of South Carolina. And the jury further find that the Governor of South Carolina, after the granting the said charter of the Colony of Georgia, did exercise jurisdiction south of the southern limits of said Colony of Georgia, claiming the same to be within the limits of his government; and particularly that he had the superintendency and control of a military post there, and did make divers grants of land there, which lands have ever since been holden under his said grants. That afterwards, in the year of Our Lord one thousand seven hundred and fifty-two, by deed of indenture made between His said Majesty, George the Second, of the one part, and the said trustees for establishing the Page 10 U. S. 100 colony in America, of the other part, they the said trustees, for divers valuable considerations therein expressed, did, for themselves and their successors, grant, surrender, and yield up to His said Majesty, George the Second, his heirs and successors, their said letters patent, and their charter of corporation, and all right, title and authority, to be or continue a corporate body, and all their powers of government, and all other powers, jurisdictions, franchises, preeminences and privileges therein, or thereby granted or conveyed to them, and did also grant and convey to His said Majesty, George the Second, his heirs and successors, all the said lands, countries, territories and premises, as well the said one eighth part thereof granted by the said John Lord Carteret to them as aforesaid, as also the said seven eighth parts thereof, granted as aforesaid by His said Majesty's letters patent or charter as aforesaid, together with all the soils, grounds, havens, ports, bays, mines, woods, rivers, waters, fishings, jurisdictions, franchises, privileges and preeminences, within said territories, with all their right, title, interest, claim or demand whatsoever in and to the premises; and which grant and surrender aforesaid was then accepted by His said Majesty for himself and his successors; and said indenture was duly executed on the part of said trustees, with the privity and by the direction of the common council of the said corporation by affixing the common seal of said corporation thereunto, and on the part of His said Majesty by causing the great seal of Great Britain to be thereunto affixed. That afterwards, on the sixth day of August, one thousand seven hundred and fifty-four, His said Majesty, George the Second, by his royal commission of that date under the great seal of Great Britain, constituted and appointed John Reynolds, Esq. to be Captain General and Commander in Chief in and over said Colony of Georgia in America, with the following boundaries, viz., lying from the most northerly stream of a river there commonly called Savannah, all along the sea coast to the southward unto the most southern stream of a certain other great water or river called the Alatahama, and westward from the heads of the said rivers respectively, in straight lines to the South Seas, and all the space, circuit and precinct of Page 10 U. S. 101 land lying within the said boundaries, with the islands in the sea lying opposite to the eastern coast of said lands within twenty leagues of the same. That afterwards, on the tenth day of February, in the year of Our Lord one thousand seven hundred and sixty-three, a definitive treaty of peace was concluded at Paris, between his Catholic Majesty, the King of Spain, and his Majesty, George the third, King of Great Britain, by the twentieth article of which treaty, his said Catholic Majesty did cede and guaranty, in full right to his Britannic Majesty, Florida, with fort St. Augustin, and the bay of Pensacola, as well as all that Spain possessed on the continent of North America, to the east or to the south east of the river Mississippi, and in general all that depended on the said countries and island, with the sovereignty, property, possession, and all rights acquired by treaties or otherwise, which the Catholic King and the Crown of Spain had till then over the said countries, lands, places, and their inhabitants; so that the Catholic King did cede and make over the whole to the said King and said Crown of Great Britain, and that in the most ample manner and form. That afterwards, on the seventh day of October, in the year of Our Lord one thousand seven hundred and sixty-three, His said Majesty, George the Third, King of Great Britain, by and with the advice of his Privy Council, did issue his royal proclamation, therein publishing and declaring that he, the said King of Great Britain, had, with the advice of his said Privy Council, granted his letters patent, under the great seal of Great Britain, to erect within the countries and islands ceded and confirmed to him by the said treaty, four distinct and separate governments, styled and called by the names of Quebec, East Florida, West Florida and Grenada; in which proclamation the said government of West Florida is described as follows, viz., bounded to the southward by the Gulf of Mexico, including all islands within six leagues of the coast from the river Apalachicola to lake Pontchartrain, to the westward by the said lake, the lake Maurepas, and the River Mississippi; to the northward by Page 10 U. S. 102 a line drawn due east from that part of the River Mississippi which lies in thirty one-degrees of north latitude, to the river Apalachicola or Catahouchee; and to the eastward by the said river. And in the same proclamation the said government of East Florida is described as follows, viz., bounded to the westward by the Gulf of Mexico and the Apalachicola river; to the northward by a line drawn from that part of the said river where the Catahouchee and Flint Rivers meet, to the source of St. Mary's River, and by the course of the said river to the Atlantic Ocean; and to the east and south by the Atlantic Ocean and the Gulf of Florida, including all islands within six leagues of the seacoast. And in and by the same proclamation, all lands lying between the Rivers Alatamaha and St. Mary's were declared to be annexed to the said Province of Georgia; and that, in and by the same proclamation, it was further declared by the said King as follows, viz., "That it is our royal will and pleasure for the present, as aforesaid, to reserve under our sovereignty, protection and dominion for the use of the said Indians all the land and territories not included within the limits of our said three new governments, or within the limits of the territory granted to the Hudson's Bay Company, as also all the land and territories lying to the westward of the sources of the rivers which fall into the sea from the west and north-west as aforesaid; and we do hereby strictly forbid, on pain of our displeasure, all our loving subjects from making any purchases or settlements whatever, or taking possession of any of the lands above reserved, without our special leave and license for that purpose first obtained." And the jury find that the land described in the plaintiff's declaration did lay to the westward of the sources of the rivers which fall into the sea from the west and northwest as aforesaid. That afterwards, on the twenty-first day of November, in the year of Our Lord one thousand seven hundred and sixty-three, and in the fourth year of the reign of said King George the Third, he the said King, by his royal commission under the great seal of Great Britain, did constitute and appoint Page 10 U. S. 103 George Johnstone, Esq. Captain General and Governor in Chief over the said Province of West Florida in America; in which commission the said Province was described in the same words of limitation and extent, as in said proclamation is before set down. That afterwards, on the twentieth day of January, in the year of Our Lord one thousand seven hundred and sixty-four, the said King of Great Britain, by his commission under the great seal of Great Britain, did constitute and appoint James Wright, Esq. to be the Captain General and Governor in chief in and over the Colony of Georgia, by the following bounds, viz., bounded on the north by the most northern stream of a river there commonly called Savannah, as far as the heads of the said river; and from thence westward as far as our territories extend; on the east, by the sea coast, from the said river Savannah to the most southern stream of a certain other river, called St. Mary; (including all islands within twenty leagues of the coast lying between the said river Savannah and St. Mary, as far as the head thereof;) and from thence westward as far as our territories extend by the north boundary line of our Provinces of East and West Florida. That afterwards, from the year one thousand seven hundred and seventy-five to the year one thousand seven hundred and eighty-three, an open war existed between the colonies of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, called the United States, on the one part, and His said Majesty, George the Third, King of Great Britain, on the other part. And on the third day of September, in the year of Our Lord one thousand seven hundred and eighty-three, a definitive treaty of peace was signed and concluded at Paris by and between certain authorized commissioners on the part of the said belligerent powers, which was afterwards duly ratified and confirmed by the said two respective powers, by the first article of which treaty, the said King George the Third, by the name of his Britannic Majesty, acknowledged the aforesaid United Page 10 U. S. 104 States to be free, sovereign and independent States; that he treated with them as such, and for himself, his heirs and successors, relinquishes all claim to the government, propriety and territorial rights of the same, and every part thereof; and by the second article of said treaty, the western boundary of the United States is a line drawn along the middle of the River Mississippi, until it shall intersect the northernmost part of the thirty-first degree of north latitude; and the southern boundary is a line drawn due east from the determination of the said line, in the latitude of thirty-one degrees north of the equator, to the middle of the River Apalachicola or Catahouchee; thence along the middle thereof to its junction with the Flint River; thence straight to the head of St. Mary's River; and thence down along the middle of St. Mary's River to the Atlantic Ocean. And the jury further find that in the year of Our Lord one thousand seven hundred and eighty-two, the Congress of the United States did instruct the said commissioners, authorized on the part of the United States to negotiate and conclude the treaty aforesaid that they should claim in this negotiation, respecting the boundaries of the United States that the most northern part of the thirty-first degree of north latitude should be agreed to be the southern boundary of the United States, on the ground that that was the southern boundary of the Colony of Georgia; and that the River Mississippi should be agreed to be the western boundary of the United States, on the ground that the Colony of Georgia and other colonies, now States of the United States, were bounded westward by that river; and that the commissioners on the part of the United States did, in said negotiation, claim the same accordingly, and that, on those grounds, the said southern and western boundaries of the United States were agreed to by the commissioners on the part of the King of Great Britain. That afterwards, in the same year, the Legislature of the State of Georgia passed an act declaring her right, and proclaiming her title to all the lands lying within her boundaries to the River Mississippi. And in the year of Our Lord, one thousand seven hundred Page 10 U. S. 105 and eighty five, the Legislature of the said State of Georgia established a county, by the name of Bourbon, on the Mississippi, and appointed civil officers for said county, which lies within the boundaries now denominated the Mississippi territory; that thereupon a dispute arose between the State of South Carolina and the State of Georgia concerning their respective boundaries, the said States separately claiming the same territory; and the said State of South Carolina, on the first day of June, in the year of Our Lord one thousand seven hundred and eighty-five, petitioned the Congress of the United States for a hearing and determination of the differences and disputes subsisting between them and the State of Georgia, agreeably to the ninth article of the then Confederation and perpetual Union between the United States of America; that the said Congress of the United States did thereupon on the same day resolve that the second Monday in May then next following should be assigned for the appearance of the said States of South Carolina and Georgia, by their lawful agents, and did then and there give notice thereof to the said State of Georgia, by serving the Legislature of said State with an attested copy of said petition of the State of South Carolina, and said resolve of Congress. That afterwards, on the eighth day of May, in the year of Our Lord one thousand seven hundred and eighty-six, by the joint consent of the agents of said States of South Carolina and Georgia, the Congress resolved that further day be given for the said hearing, and assigned the fifteenth day of the same month for that purpose. That afterwards, on the eighteenth day of May aforesaid, the said Congress resolved that further day be given for the said hearing, and appointed the first Monday in September, then next ensuing, for that purpose. That afterwards, on the first day of September then next ensuing, authorized agents from the States of Carolina and Georgia attended in pursuance of the order of Congress aforesaid, and produced their credentials, which were read in Congress, and there recorded, together with the acts of their respective legislatures, which acts and credentials authorized the said agents to settle and compromise all the differences Page 10 U. S. 106 and disputes aforesaid, as well as to appear and represent the said States respectively before any tribunal that might be created by Congress for that purpose, agreeably to the said ninth article of the Confederation. And in conformity to the powers aforesaid, the said commissioners of both the said States of South Carolina and Georgia, afterwards, on the 28th day of April, in the year of Our Lord one thousand seven hundred and eighty-seven, met at Beaufort, in the State of South Carolina, and then and there entered into, signed, and concluded a convention between the States of South Carolina and Georgia aforesaid. By the first article of which convention it was mutually agreed between the said States that the most northern branch or stream of the River Savannah from the sea or mouth of such stream to the fork or confluence of the Rivers then called Tugaloo and Keowee; and from thence the most northern branch or stream of said River Tugaloo, till it intersects the northern boundary line of South Carolina, if the said branch or stream of Tugaloo extends so far north, reserving all the islands in the said Rivers Savannah and Tugaloo, to Georgia; but if the head, spring, or source of any branch or stream of the said River Tugaloo does not extend to the north boundary line of South Carolina, then a west course to the Mississippi, to be drawn from the head, spring, or source of the said branch or stream of Tugaloo River, which extends to the highest northern latitude, shall forever thereafter form the separation, limit, and boundary between the States of South Carolina and Georgia. And by the third article of the convention aforesaid, it was agreed by the said States of South Carolina and Georgia that the said State of South Carolina should not thereafter claim any lands to the eastward, southward, southeastward, or west of the said boundary above established; and that the said State of South Carolina did relinquish and cede to the said State of Georgia all the right, title, and claim which the said State of South Carolina had to the government, sovereignty, and jurisdiction in and over the same, and also the right and preemption of soil from the native Indians, and all the estate, property, and claim which the said State of South Carolina had in or to the said lands. Page 10 U. S. 107 And the jury further find that the land described in the plaintiff's declaration is situate southwest of the boundary line last aforesaid; and that the same land lies within the limits of the territory granted to the said lords proprietors of Carolina, by King Charles the second, as aforesaid, and within the bounds of the territory agreed to belong and ceded to the King of Great Britain, by the said treaty of peace made in seventeen hundred and sixty-three, as aforesaid; and within the bounds of the United States, as agreed and settled by the treaty of peace in seventeen hundred and eighty-three, as aforesaid; and north of a line drawn due east from the mouth of the said River Yazoos, where it unites with the Mississippi aforesaid. That afterwards, on the ninth day of August, in the year of Our Lord one thousand seven hundred and eighty-seven, the delegates of said State of South Carolina in Congress moved that the said convention, made as aforesaid, be ratified and conformed, and that the lines and limits therein specified be thereafter taken and received as the boundaries between the said States of South Carolina and Georgia; which motion was by the unanimous vote of Congress committed, and the same convention was thereupon entered of record on the journals of Congress; and on the same day, John Kean and Daniel Huger, by virtue of authority given to them by the Legislature of said State of South Carolina, did execute a deed of cession on the part of said State of South Carolina, by which they ceded and conveyed to the United States, in Congress assembled, for the benefit of all the said States, all their right and title to that territory and tract of land included within the River Mississippi, and a line beginning at that part of the said River which is intersected by the southern boundary line of the State of North Carolina; and continuing along the said boundary line, until it intersects the ridge or chain of mountains which divides the eastern from the western waters; then to be continued along the top of the said ridge of mountains, until it intersects a line to be drawn due west from the head of the southern branch of the Tugaloo River to the said mountains, and thence to run a due west course to the River Mississippi; which deed of cession was Page 10 U. S. 108 thereupon received and entered on the journals of Congress, and accepted by them. The jury further find that the Congress of the United States did, on the sixth day of September, in the year of Our Lord one thousand, seven hundred and eighty, recommend to the several States in the Union having claims to western territory to make a liberal cession to the United States of a portion of their respective claims for the common benefit of the Union. That afterwards, on the ninth day of August, in the year of Our Lord one thousand seven hundred and eighty-six, the said Congress resolved that, whereas the States of Massachusetts, New York, Connecticut, and Virginia had, in consequence of the recommendation of Congress on the sixth day of September aforesaid, made cessions of their claims to western territory to the United States in Congress assembled for the use of the United States, the said subject be again presented to the view of the States of N. Carolina, S. Carolina and Georgia, who had not complied with so reasonable a proposition, and that they be once more solicited to consider with candour and liberality the expectations of their sister States, and the earnest and repeated applications made to them by Congress on this subject. That afterwards, on the twentieth day of October, one thousand seven hundred and eighty-seven, the Congress of the United States passed the following resolve, viz., that it be and hereby is represented to the States of North-Carolina and Georgia that the lands, which have been ceded by the other States in compliance with the recommendation of this body, are now selling in large quantities for public securities; that the deeds of cession from the different States have been made without annexing an express condition that they should not operate till the other States, under like circumstances, made similar cessions; and that Congress have such faith in the justice and magnanimity of the States of North Carolina and Georgia that they only think it necessary to call their attention to these circumstances, not doubting but, upon consideration of the subject, they will fell those obligations which will induce similar cessions, and justify that confidence which has been Page 10 U. S. 109 placed in them. That afterwards, on the first day of February, one thousand seven hundred and eighty-eight, and Legislature of said State of Georgia, then duly convened, passed an act for ceding part of the territorial claims of said State to the United States, by which act the State of Georgia authorized her delegates in Congress to convey to the United States the territorial claims of said State of Georgia to a certain tract of country bounded as follows, to-wit: beginning at the middle of the River Catahouchee or Apalachicola, where it is intersected by the thirty-first degree of north latitude, and from thence due north one hundred and forty miles, thence due west to the River Mississippi; thence down the middle of the said River to where it intersects the thirty-first degree of north latitude, and along the said degree to the place of beginning; annexing the provisions and conditions following, to-wit: that the United States in Congress assembled shall guaranty to the citizens of said territory a republican form of government, subject only to such changes as may take place in the Federal Constitution of the United States; secondly that the navigation of all the waters included in the said cession shall be equally free to all the citizens of the United States; nor shall any tonnage on vessels, or any duties whatever, be laid on any goods, wares, or merchandises that pass up or down the said waters, unless for the use and benefit of the United States. Thirdly that the sum of one hundred and and seventy-one thousand and twenty-eight dollars, forty-five cents, which has been expended in quieting the minds of the Indians, and resisting their hostilities, shall be allowed as a charge against the United States, and be admitted in payment of the specie requisition of that State's quotas that have been or may be required by the United States. Fourthly, that in all cases where the State may require defence, the expenses arising thereon shall be allowed as a charge against the United States, agreeably to the Articles of Confederation. Fifthly that Congress shall guaranty and secure all the remaining territorial rights of the State, as pointed out and expressed by the definitive treaty of peace between the United States and Great Britain, the convention between the said Page 10 U. S. 110 State and the State of South Carolina, entered into the twenty-eighth day of April, in the year of Our Lord one thousand seven hundred and eighty-seven, and the clause of an act of the said State of Georgia, describing the boundaries thereof, passed the seventeenth day of February, in the year one thousand seven hundred and eighty-three, which act of the said State of Georgia, with said conditions annexed, was by the delegates of said State in Congress presented to the said Congress, and the same was, after being read, committed to a committee of Congress; who, on the fifteenth day of July, in the said year one thousand seven hundred and eighty-eight, made report thereon to Congress, as follows, to-wit: "The committee, having fully considered the subject referred to them, are of opinion that the cession offered by the State of Georgia cannot be accepted on the terms proposed; first, because it appears highly probable that, on running the boundary line between that State and the adjoining State or States, a claim to a large tract of country extending to the Mississippi, and lying between the tract proposed to be ceded and that lately ceded by South Carolina will be retained by the said State of Georgia; and therefore the land which the State now offers to cede must be too far removed from the other lands hitherto ceded to the Union to be of any immediate advantages to it. Secondly, because there appears to be due from the State of Georgia, on specie requisitions, but a small part of the sum mentioned in the third proviso or condition before recited; and it is improper in this case to allow a charge against the specie requisitions of Congress which may hereafter be made, especially as the said State stands charged to the United States for very considerable sums of money loaned. And, thirdly, because the fifth proviso or condition before recited contains a special guaranty of territorial rights, and such a guaranty has not been made by Congress to any State, and which, considering the spirit and meaning of the Confederation, must be unnecessary and improper. But the committee are of opinion that the first, second, and fourth provisions, before recited, and also the third, with some variations, may be admitted; and that, should the said State extend the bounds of her cession, Page 10 U. S. 111 and vary the terms thereof as herein after mentioned, Congress may accept the same. Whereupon they submit the following resolutions: That the cession of claims to western territory, offered by the State of Georgia, cannot be accepted on the terms contained in her act passed the first of February last. That in case the said State shall authorize her delegates in Congress to make a cession of all her territorial claims to lands west of the River Apalachicola, or west of a meridian line running through or near the point where that River intersects the thirty-first degree of north latitude, and shall omit the last proviso in her said act, and shall so far vary the proviso respecting the sum of one hundred and seventy-one thousand four hundred and twenty-eight dollars, and forty-five cents, expended in quieting and resisting the Indians as that the said State shall have credit in the specie requisitions of Congress, to the amount of her specie quotas on the past requisitions, and for the residue, in her account with the United States for moneys loaned, Congress will accept the cession." Which report being read, Congress resolved that Congress agree to the said report. The jury further find that in the year of Our Lord one thousand seven hundred and ninety-three, Thomas Jefferson, Esq. then secretary of State for the United States, made a report to the then President of the United States which was intended to serve as a basis of instructions to the commissioners of the United States for settling the points which were then in dispute between the King of Spain and the government of the United States, one of which points in dispute was the just boundaries between West Florida and the southern line of the United States. On this point, the said secretary of State, in his report aforesaid, expresses himself as follows, to-wit: "As to boundary that between Georgia and West Florida is the only one which needs any explanation. It (that is, the court of Spain) sets up a claim to possessions within the State of Georgia, founded on her (Spain) having rescued them by force from the British during the late war. The following view of that subject seems to admit of no reply. The several States now composing the United Page 10 U. S. 112 States of America were, from their first establishment, separate and distinct societies, dependent on no other society of men whatever. They continued at the head of their respective governments the Executive Magistrate who presided over the one they had left, and thereby secured in effect a constant amity with the nation. In this stage of their government their several boundaries were fixed, and particularly the southern boundary of Georgia, the only one now in question, was established at the thirty first degree of latitude, from the Apalachicola westwardly. The southern limits of Georgia depend chiefly on, first, the charter of South Carolina, &c. Secondly, on the proclamation of the British King, in one thousand seven hundred and sixty-three, establishing the boundary between Georgia and Florida, to begin on the Mississippi, in thirty-one degrees of north latitude, and running eastwardly to the Apalachicola, &c. That afterwards, on the seventh day of December, of the same year, the commissioners of the United States for settling the aforesaid disputes, in their communications with those of the King of Spain, express themselves as follows, to-wit:" "In this stage of their (meaning the United States) government, the several boundaries were fixed, and particularly the southern boundary of Georgia, the one now brought into question by Spain. This boundary was fixed by the proclamation of the King of Great Britain, their chief magistrate, in the year one thousand seven hundred and sixty-three, at a time when to other power pretended any claim whatever to any part of the country through which it run. The boundary of Georgia was thus established: to begin in the Mississippi, in latitude thirty-one north, and running eastward to the Apalachicola," &c. From what has been said, it results, first that the boundary of Georgia, now forming the southern limits of the United States, was lawfully established in the year seventeen hundred and sixty-three. Secondly, that it has been confirmed by the only power that could at any time have pretensions to contest it. That afterwards, on the tenth day of August, in the year 1795, Thomas Pinckney, Esq. minister plenipotentiary Page 10 U. S. 113 of the United States at the Court of Spain, in a communication to the Prince of Peace, Prime Minister of Spain, agreeably to his instructions from the President of the United States on the subject of said boundaries, expresses himself as follows, to-wit: "Thirty-two years have elapsed since all the country on the left or eastern bank of the Mississippi, being under the legitimate jurisdiction of the King of England that sovereign thought proper to regulate with precision the limits of Georgia and the two Floridas, which was done by his solemn proclamation, published in the usual form, by which he established between them precisely the same limits that, near twenty years after, he declared to be the southern limits of the United States, by the treaty which the same King of England concluded with them in the month of November, seventeen hundred and eighty two." That afterwards, on the 27th day of October, in the year seventeen hundred and ninety-five, a treaty of friendship, limits and navigation was concluded between the United States and his Catholic Majesty the King of Spain, in the second article of which treaty it is agreed that the southern boundary of the United States, which divides their territory from the Spanish colonies of East and West Florida, shall be designated by a line beginning on the River Mississippi, at the northernmost part of the thirty-first degree of north latitude, which from thence shall be drawn due east to the middle of the River Apalachicola or Catahouchee, thence along the middle thereof to its junction with the Flint, thence straight to the head of St. Mary's River, and thence down the middle thereof to the Atlantic Ocean. But whether, upon the whole matter, the State of Georgia, at the time of passing the act aforesaid, entitled as aforesaid, as mentioned by the plaintiff, in his assignment of the breach in the fourth count of his declaration, was seised in fee simple of all the territories and tenements aforesaid, and of all the soil thereof, subject only to the extinguishment of the Indian title Page 10 U. S. 114 to part thereof, the jury are ignorant, and pray the advisement of the court thereon; and if the court are of opinion that the said State of Georgia was so seised at the time aforesaid, then the jury find that the said State of Georgia, at the time of passing the act aforesaid, entitled as aforesaid, as mentioned by the said Fletcher, in his assignment of the breach in the fourth count of his declaration, was seised in fee simple of all the territories and tenements aforesaid, and of all the soil thereof, subject only to the extinguishment of the Indian title to part thereof, and the jury thereupon find that the said Peck his covenant aforesaid, the breach whereof is assigned in the plaintiff's fourth count mentioned, hath not broken, but hath kept the same. But if the court are of opinion that the said State of Georgia was not so seised at the time aforesaid, then the jury find that the said State of Georgia, at the time of passing the act aforesaid, entitled as aforesaid, as mentioned by the said Fletcher, in his assignment of the breach in the fourth count of his declaration, was not seised of all the territories and tenements aforesaid, and of all the soil thereof, subject only to the extinguishment of the Indian title to part thereof, and the jury thereupon find that the said Peck his covenant aforesaid, the breach whereof is assigned in the plaintiff's fourth count mentioned, hath not kept, but broken the same, and assess damages for the plaintiff, for the breach thereof, in the sum of three thousand dollars, and costs of suit. Whereupon it was considered and adjudged by the court below that, on the issues on the three first counts, the several pleas are good and sufficient, and that the demurrer thereto be overruled; and on the last issue, on which there is a special verdict that the State of Georgia was seised, as alleged by the defendant, and that the defendant recover his costs. Page 10 U. S. 125 Mr. Chief Justice MARSHALL delivered the opinion of the Court. In this cause, there are demurrers to three pleas filed in the Circuit Court, and a special verdict found on an issue joined on the 4th plea. The pleas were all sustained, and judgment was rendered for the defendant. To support this judgment, this Court must concur in overruling all the demurrers; for, if the plea to any one of the counts be bad, the plaintiff below is entitled to damages on that count. The covenant, on which the breach in the first count is assigned, is in these words: "that the Legislature of the said State, (Georgia), at the time of the passing of the act of sale aforesaid, had good right to sell and dispose of the same, in manner pointed out by the said act." The breach of this covenant is assigned in these words: "now the said Fletcher saith that, at the time when the said act of the Legislature of Georgia, entitled an act, &c. was passed, the said Legislature had no authority to sell and dispose of the tenements aforesaid, or of any part thereof, in the manner pointed out in the said act. " Page 10 U. S. 126 The plea sets forth the Constitution of the State of Georgia, and avers that the lands lay within that State. It then sets forth the act of the legislature, and avers that the lands, described in the declaration, are included within those to be sold by the said act, and that the Governor was legally empowered to sell and convey the premises. To this plea the plaintiff demurred; and the defendant joined in the demurrer. If it be admitted that sufficient matter is shown in this plea to have justified the defendant in denying the breach alleged in the count, it must also be admitted that he has not denied it. The breach alleged is that the Legislature had not authority to sell. The bar set up is that the Governor had authority to convey. Certainly an allegation that the principal has no right to give a power, is not denied by alleging that he has given a proper power to the agent. It is argued that the plea shows, although it does not, in terms, aver, that the Legislature had authority to convey. The court does not mean to controvert this position, but its admission would not help the case. The matter set forth in the plea, as matter of inducement, may be argumentatively good, may warrant an averment which negatives the averment in the declaration, but does not itself constitute that negative. Had the plaintiff tendered an issue in fact upon this plea that the Governor was legally empowered to sell and convey the premises, it would have been a departure from his declaration, for the count to which this plea is intended as a bar alleges no want of authority in the Governor. He was therefore under the necessity of demurring. But it is contended that, although the plea be substantially bad, the judgment overruling the demurrer, is correct because the declaration is defective. The defect alleged in the declaration is that the Page 10 U. S. 127 breach is not assigned in the words of the covenant. The covenant is that the Legislature had a right to convey, and the breach is that the Legislature had no authority to convey. It is not necessary that a breach should be assigned in the very words of the covenant. It is enough that the words of the assignment show, unequivocally, a substantial breach. The assignment under consideration does show such a breach. If the Legislature had no authority to convey, it had no right to convey. It is, therefore, the opinion of this Court that the Circuit Court erred in overruling the demurrer to the first plea by the defendant pleaded, and that their judgment ought therefore to be reversed, and that judgment on that plea be rendered for the plaintiff. After the opinion of the court was delivered, the parties agreed to amend the pleadings, and the cause was continued for further consideration. The cause having been again argued at this term, as has been stated. Mr. Chief Justice MARSHALL delivered the opinion of the Court. The pleadings being now amended, this cause comes on again to be heard on sundry demurrers, and on a special verdict. The suit was instituted on several covenants contained in a deed made by John Peck, the defendant in error, conveying to Robert Fletcher, the plaintiff in error, certain lands which were part of a large purchase made by James Gunn and others, in the year 1795, from the State of Georgia, the contract for which was made in the form of a bill passed by the Legislature of that State. The first count in the declaration set forth a breach Page 10 U. S. 128 in the second covenant contained in the deed. The covenant is "that the Legislature of the State of Georgia, at the time of passing the act of sale aforesaid, had good right to sell and dispose of the same in manner pointed out by the said act." The breach assigned is that the Legislature had no power to sell. The plea in bar sets forth the Constitution of the State of Georgia, and avers that the lands sold by the defendant to the plaintiff were within that State. It then sets forth the granting act, and avers the power of the Legislature to sell and dispose of the premises as pointed out by the act. To this plea the plaintiff below demurred, and the defendant joined in demurrer. That the Legislature of Georgia, unless restrained by its own Constitution, possesses the power of disposing of the unappropriated lands within its own limits, in such manner as its own judgment shall dictate, is a proposition not to be controverted. The only question, then, presented by this demurrer, for the consideration of the Court is this: did the then Constitution of the State of Georgia prohibit the Legislature to dispose of the lands which were the subject of this contract in the manner stipulated by the contract? The question whether a law be void for its repugnancy to the Constitution is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station could it be unmindful of the solemn obligations which that station imposes. But it is not on slight implication and vague conjecture that the Legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other. In this case, the court can perceive no such opposition. In the Constitution of Georgia, adopted in the Page 10 U. S. 129 year 1789, the court can perceive no restriction on the legislative power which inhibits the passage of the Act of 1795. The court cannot say that, in passing that Act, the Legislature has transcended its powers and violated the Constitution. In overruling the demurrer, therefore, to the first plea, the Circuit Court committed no error. The third covenant is that all the title which the State of Georgia ever had in the premises had been legally conveyed to John Peck, the grantor. The second count assigns, in substance, as a breach of this covenant that the original grantees from the State of Georgia promised and assured divers members of the Legislature, then sitting in General Assembly that if the said members would assent to, and vote for, the passing of the Act, and if the said bill should pass, such members should have a share of, and be interested in, all the lands purchased from the said State by virtue of such law. And that divers of the said members to whom the said promises were made were unduly influenced thereby, and, under such influence, did vote for the passing of the said bill, by reason whereof the said law was a nullity, &c., and so the title of the State of Georgia did not pass to the said Peck, &c. The plea to this count, after protesting that the promises it alleges were not made, avers that, until after the purchase made from the original grantees by James Greenleaf, under whom the said Peck claims, neither the said James Greenleaf nor the said Peck, nor any of the mesne vendors between the said Greenleaf and Peck, had any notice or knowledge that any such promises or assurances were made by the said original grantees, or either of them, to any of the members of the Legislature of the State of Georgia. To this plea the plaintiff demurred generally, and the defendant joined in the demurrer. Page 10 U. S. 130 That corruption should find its way into the governments of our infant republics and contaminate the very source of legislation, or that impure motives should contribute to the passage of a law or the formation of a legislative contract are circumstances most deeply to be deplored. How far a court of justice would, in any case, be competent, on proceedings instituted by the State itself to vacate a contract thus formed, and to annul rights required under that contract by third persons having no notice of the improper means by which it was obtained is a question which the court would approach with much circumspection. It may well be doubted how far the validity of a law depends upon the motives of its framers, and how far the particular inducements operating on members of the supreme sovereign power of a State to the formation of a contract by that power are examinable in a court of justice. If the principle be conceded that an act of the supreme sovereign power might be declared null by a court in consequence of the means which procured it, still would there be much difficulty in saying to what extent those means much be applied to produce this effect. Must it be direct corruption, or would interest or undue influence of any kind be sufficient? Must the vitiating cause operate on a majority, or on what number of the members? Would the act be null whatever might be the wish of the nation, or would its obligation or nullity depend upon the public sentiment? If the majority of the Legislature be corrupted, it may well be doubted whether it be within the Province of the judiciary to control their conduct, and if less than a majority act from impure motives, the principle by which judicial interference would be regulated is not clearly discerned. Whatever difficulties this subject might present when viewed under aspects of which it may be susceptible, this Court can perceive none in the particular pleadings now under consideration. This is not a bill brought by the State of Georgia to annul the contract, nor does it appear to the Court by Page 10 U. S. 131 this count that the State of Georgia is dissatisfied with the sale that has been made. The case, as made out in the pleadings, is simply this. One individual who holds lands in the State of Georgia, under a deed covenanting that the title of Georgia was in the grantor, brings an action of covenant upon this deed, and assigns, as a breach that some of the members of the Legislature were induced to vote in favour of the law, which constituted the contract, by being promised an interest in it, and that therefore the act is a mere nullity. This solemn question cannot be brought thus collaterally and incidentally before the court. It would be indecent in the extreme, upon a private contract, between two individuals, to enter into an inquiry respecting the corruption of the sovereign power of a State. If the title be plainly deduced from a legislative act, which the Legislature might constitutionally pass, if the act be clothed with all the requisite forms of a law, a court, sitting as a court of law cannot sustain a suit brought by one individual against another founded on the allegation that the act is a nullity in consequence of the impure motives which influenced certain members of the Legislature which passed the law. The Circuit Court, therefore, did right in overruling this demurrer. The fourth covenant in the deed is that the title to the premises has been in no way constitutionally or legally impaired by virtue of any subsequent act of any subsequent Legislature of the State of Georgia. The third count recites the undue means practised on certain members of the Legislature, as stated in the second count, and then alleges that, in consequence of these practices and of other causes, a subsequent Legislature passed an act annulling and rescinding the law under which the conveyance to the original grantees was made, declaring that conveyance void, and asserting the title of the State to the lands it contained. The Page 10 U. S. 132 count proceeds to recite at large, this rescinding act, and concludes with averring that, by reason of this act, the title of the said Peck in the premises was constitutionally and legally impaired and rendered null and void. After protesting, as before, that no such promises were made as stated in this count, the defendant again pleads that himself and the first purchaser under the original grantees, and all intermediate holders of the property, were purchasers without notice. To this plea there is a demurrer and joinder. The importance and the difficulty of the questions, presented by these pleadings are deeply felt by the Court. The lands in controversy vested absolutely in James Gunn and others, the original grantees, by the conveyance of the Governor, made in pursuance of an act of assembly to which the Legislature was fully competent. Being thus in full possession of the legal estate, they, for a valuable consideration, conveyed portions of the land to those who were willing to purchase. If the original transaction was infected with fraud, these purchasers did not participate in it, and had no notice of it. They were innocent. Yet the Legislature of Georgia has involved them in the fate of the first parties to the transaction, and, if the act be valid, has annihilated their rights also. The Legislature of Georgia was a party to this transaction, and for a party to pronounce its own deed invalid, whatever cause may be assigned for its invalidity, must be considered as a mere act of power which must find its vindication in a train of reasoning not often heard in courts of justice. But the real party, it is said, are the people, and when their agents are unfaithful, the acts of those agents cases to be obligatory. It is, however, to be recollected that the people can Page 10 U. S. 133 act only by these agents, and that, while within the powers conferred on them, their acts must be considered as the acts of the people. If the agents be corrupt, others may be chosen, and, if their contracts be examinable, the common sentiment, as well as common usage of mankind, points out a mode by which this examination may be made, and their validity determined. If the Legislature of Georgia was not bound to submit its pretensions to those tribunals which are established for the security of property, and to decide on human rights, if it might claim to itself the power of judging in its own case, yet there are certain great principles of justice, whose authority is universally acknowledged, that ought not to be entirely disregarded. If the Legislature be its own judge in its own case, it would seem equitable that its decision should be regulated by those rules which would have regulated the decision of a judicial tribunal. The question was, in its nature, a question of title, and the tribunal which decided it was either acting in the character of a court of justice, and performing a duty usually assigned to a court, or it was exerting a mere act of power in which it was controlled only by its own will. If a suit be brought to set aside a conveyance obtained by fraud, and the fraud be clearly proved, the conveyance will be set aside as between the parties, but the rights of third persons who are purchasers without notice, for a valuable consideration, cannot be disregarded. Titles, which, according to every legal test, are perfect are acquired with that confidence which is inspired by the opinion that the purchaser is safe. If there be any concealed defect, arising from the conduct of those who had held the property long before he acquired it, of which he had no notice, that concealed defect cannot be set up against him. He has paid his money for a title good at law; he is innocent, whatever may be the guilt of others, and equity will not subject him to the penalties attached to that guilt. All titles would be insecure, and the intercourse Page 10 U. S. 134 between man and man would be very seriously obstructed if this principle be overturned. A court of chancery, therefore, had a bill been brought to set aside the conveyance made to James Gunn and others as being obtained by improper practices with the Legislature, whatever might have been its decision as respected the original grantees, would have been bound, by its own rules and by the clearest principles of equity, to leave unmolested those who were purchasers without notice for a valuable consideration. If the Legislature felt itself absolved from those rules of property which are common to all the citizens of the United States, and from those principles of equity which are acknowledged in all our courts, its act is to be supported by its power alone, and the same power may devest any other individual of his lands if it shall be the will of the Legislature so to exert it. It is not intended to speak with disrespect of the Legislature of Georgia, or of its acts. Far from it. The question is a general question, and is treated as one. For although such powerful objections to a legislative grant as are alleged against this may not again exist, yet the principle on which alone this rescinding act is to be supported may be applied to every case to which it shall be the will of any legislature to apply it. The principle is this: that a legislature may, by its own act, devest the vested estate of any man whatever, for reasons which shall, by itself, be deemed sufficient. In this case the Legislature may have had ample proof that the original grant was obtained by practices which can never be too much reprobated, and which would have justified its abrogation so far as respected those to whom crime was imputable. But the grant, when issued, conveyed an estate in fee simple to the grantee, clothed with all the solemnities which law can bestow. This estate was transferrable, and those who purchased parts of it were not stained by that Page 10 U. S. 135 guilt which infected the original transaction. Their case is not distinguishable from the ordinary case of purchasers of a legal estate without knowledge of any secret fraud which might have led to the emanation of the original grant. According to the well known course of equity, their rights could not be affected by such fraud. Their situation was the same, their title was the same, with that of every other member of the community who holds land by regular conveyances from the original patentee. Is the power of the Legislature competent to the annihilation of such title, and to a resumption of the property thus held? The principle asserted is that one Legislature is competent to repeal any act which a former legislature was competent to pass, and that one legislature cannot abridge the powers of a succeeding legislature. The correctness of this principle, so far as respects general legislation, can never be controverted. But if an act be done under a law, a succeeding legislature cannot undo it. The past cannot be recalled by the most absolute power. Conveyances have been made, those conveyances have vested legal estate, and, if those estates may be seized by the sovereign authority, still that they originally vested is a fact, and cannot cease to be a fact. When, then, a law is in its nature a contract, when absolute rights have vested under that contract, a repeal of the law cannot devest those rights; and the act of annulling them, if legitimate, is rendered so by a power applicable to the case of every individual in the community. It may well be doubted whether the nature of society and of government does not prescribe some limits to the legislative power; and, if any be prescribed, where are they to be found if the property of an individual, fairly and honestly acquired, may be seized without compensation? Page 10 U. S. 136 To the Legislature all legislative power is granted, but the question whether the act of transferring the property of an individual to the public be in the nature of the legislative power is well worthy of serious reflection. It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments. How far the power of giving the law may involve every other power, in cases where the Constitution is silent, never has been, and perhaps never can be, definitely stated. The validity of this rescinding act, then, might well be doubted, were Georgia a single sovereign power. But Georgia cannot be viewed as a single, unconnected, sovereign power, on whose legislature no other restrictions are imposed than may be found in its own Constitution. She is a part of a large empire; she is a member of the American Union; and that Union has a Constitution the supremacy of which all acknowledge, and which imposes limits to the legislatures of the several States which none claim a right to pass. The Constitution of the United States declares that no State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts. Does the case now under consideration come within this prohibitory section of the Constitution? In considering this very interesting question, we immediately ask ourselves what is a contract? Is a grant a contract? A contract is a compact between two or more parties, and is either executory or executed. An executory contract is one in which a party binds himself to do, or not to do, a particular thing; such was the law under which the conveyance was made by the Governor. A contract executed is one in which the object Page 10 U. S. 137 of contract is performed, and this, says Blackstone, differs in nothing from a grant. The contract between Georgia and the purchasers was executed by the grant. A contract executed, as well as one which is executory, contains obligations binding on the parties. A grant, in its own nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right. A party is therefore always estopped by his own grant. Since, then, in fact, a grant is a contract executed, the obligation of which still continues, and since the Constitution uses the general term "contract" without distinguishing between those which are executory and those which are executed, it must be construed to comprehend the latter as well as the former. A law annulling conveyances between individuals, and declaring that the grantors should stand seised of their former estates, notwithstanding those grants, would be as repugnant to the Constitution as a law discharging the vendors of property from the obligation of executing their contracts by conveyances. It would be strange if a contract to convey was secured by the Constitution, while an absolute conveyance remained unprotected. If, under a fair construction the Constitution, grants are comprehended under the term "contracts," is a grant from the State excluded from the operation of the provision? Is the clause to be considered as inhibiting the State from impairing the obligation of contracts between two individuals, but as excluding from that inhibition contracts made with itself? The words themselves contain no such distinction. They are general, and are applicable to contracts of every description. If contracts made with the State are to be exempted from their operation, the exception must arise from the character of the contracting party, not from the words which are employed. Whatever respect might have been felt for the State sovereignties, it is not to be disguised that the framers of the Constitution viewed with some apprehension Page 10 U. S. 138 the violent acts which might grow out of the feelings of the moment, and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed. The restrictions on the legislative power of the States are obviously founded in this sentiment, and the Constitution of the United States contains what may be deemed a bill of rights for the people of each State. No State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts. A bill of attainder may affect the life of an individual, or may confiscate his property, or may do both. In this form, the power of the legislature over the lives and fortunes of individuals is expressly restrained. What motive, then, for implying, in words which import a general prohibition to impair the obligation of contracts, an exception in favour of the right to impair the obligation of those contracts into which the State may enter? The State legislatures can pass no ex post facto law. An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed. Such a law may inflict penalties on the person, or may inflict pecuniary penalties which swell the public treasury. The legislature is then prohibited from passing a law by which a man's estate, or any part of it, shall be seized for a crime which was not declared by some previous law to render him liable to that punishment. Why, then, should violence be done to the natural meaning of words for the purpose of leaving to the legislature the power of seizing for public use the estate of an individual in the form of a law annulling the title by which he holds that estate? The Court can perceive no sufficient grounds for making this distinction. This rescinding act would have the effect of an ex post facto law. It forfeits the estate of Fletcher for a crime not committed by himself, but by those from whom he purchased. Page 10 U. S. 139 This cannot be effected in the form of an ex post facto law or bill of attainder; why, then, is it allowable in the form of a law annulling the original grant? The argument in favour of presuming an intention to except a case not excepted by the words of the Constitution is susceptible of some illustration from a principle originally ingrafted in that instrument, though no longer a part of it. The Constitution, as passed, gave the courts of the United States jurisdiction in suits brought against individual States. A State, then, which violated its own contract was suable in the courts of the United States for that violation. Would it have been a defence in such a suit to say that the State had passed a law absolving itself from the contract? It is scarcely to be conceived that such a defence could be set up. And yet, if a State is neither restrained by the general principles of our political institutions nor by the words of the Constitution from impairing the obligation of its own contracts, such a defence would be a valid one. This feature is no longer found in the Constitution, but it aids in the construction of those clauses with which it was originally associated. It is, then, the unanimous opinion of the Court that, in this case, the estate having passed into the hands of a purchaser for a valuable consideration, without notice, the State of Georgia was restrained, either by general principles which are common to our free institutions or by the particular provisions of the Constitution of the United States, from passing a law whereby the estate of the plaintiff in the premises so purchased could be constitutionally and legally impaired and rendered null and void. In overruling the demurrer to the third plea, therefore, there is no error. The first covenant in the deed is that the State of Georgia, at the time of the act of the Legislature thereof entitled as aforesaid, was legally seised in fee of the soil thereof subject only to the extinguishment of part of the Indian title thereon. Page 10 U. S. 140 The fourth count assigns, as a breach of this covenant that the right to the soil was in the United States, and not in Georgia. To this Court, the defendant pleads that the State of Georgia was seised, and tenders an issue on the fact in which the plaintiff joins. On this issue, a special verdict is found. The jury find the grant of Carolina by Charles Second to the Earl of Clarondon and others, comprehending the whole country from 36 deg. 30 min. north lat. to 29 deg. north lat., and from the Atlantic to the South Sea. They find that the northern part of this territory was afterwards erected into a separate colony, and that the most northern part of the 35 deg. of north lat. was the boundary line between North and South Carolina. That seven of the eight proprietors of the Carolinas surrendered to George II in the year 1729, who appointed a Governor of South Carolina. That, in 1732, George II granted to the Lord Viscount Percival and others seven eighths of the territory between the Savannah and the Alatamaha, and extending west to the South Sea, and that the remaining eighth part, which was still the property of the heir of Lord Carteret, one of the original grantees of Carolina, was afterwards conveyed to them. This territory was constituted a colony and called Georgia. That the Governor of South Carolina continued to exercise jurisdiction south of Georgia. That, in 1752, the grantees surrendered to the Crown. That, in 1754, a Governor was appointed by the Crown, with a commission describing the boundaries of the colony. That a treaty of peace was concluded between Great Page 10 U. S. 141 Britain and Spain in 1763 in which the latter ceded to the former Florida, with Fort St. Augustin and the bay of Pensacola. That, in October, 1763, the King of Great Britain issued a proclamation creating four new colonies, Quebec, East Florida, West Florida, and Grenada, and prescribing the bounds of each, and further declaring that all the lands between the Alatamaha, and St. Mary's should be annexed to Georgia. The same proclamation contained a clause reserving, under the dominion and protection of the Crown, for the use of the Indians, all the lands on the western waters, and forbidding a settlement on them or a purchase of them from the Indians. The lands conveyed to the plaintiff lie on the western waters. That, in November, 1763, a commission was issued to the Governor of Georgia in which the boundaries of that Province are described as extending westward to the Mississippi. A commission describing boundaries of the same extent was afterwards granted in 1764. That a war broke out between Great Britain and her colonies which terminated in a treaty of peace acknowledging them as sovereign and independent States. That in April, 1787, a convention was entered into between the States of South Carolina and Georgia settling the boundary line between them. The jury afterwards describe the situation of the lands mentioned in the plaintiff's declaration in such manner that their lying within the limits of Georgia, as defined in the proclamation of 1763, in the treaty of peace, and in the convention between that State and South Carolina, has not been questioned. The counsel for the plaintiff rest their argument on a single proposition. They contend that the reservation for the use of the Indians, contained in the proclamation Page 10 U. S. 142 of 1763, excepts the lands on the western waters from the colonies within whose bounds they would otherwise have been, and that they were acquired by the Revolutionary War. All acquisitions during the War, it is contended, were made by the joint arms, for the joint benefit of the United States, and not for the benefit of any particular State. The Court does not understand the proclamation as it is understood by the counsel for the plaintiff. The reservation for the use of the Indians appears to be a temporary arrangement suspending for a time the settlement of the country reserved, and the powers of the royal Governor within the territory reserved, but is not conceived to amount to an alteration of the boundaries of the colony. If the language of the proclamation be in itself doubtful, the commissions subsequent thereto which were given to the Governors of Georgia entirely remove the doubt. The question whether the vacant lands within the United States became a joint property or belonged to the separate States was a momentous question which at one time threatened to shake the American Confederacy to its foundation. This important and dangerous contest has been compromised, and the compromise is not now to be disturbed. It is the opinion of the Court that the particular land stated in the declaration appears, from this special verdict, to lie within the State of Georgia, and that the State of Georgia had power to grant it. Some difficulty was produced by the language of the covenant and of the pleadings. It was doubted whether a State can be seised in fee of lands subject to the Indian title, and whether a decision that they were seised in fee might not be construed to amount to a decision that their grantee might maintain an ejectment for them notwithstanding that title. The majority of the Court is of opinion that the nature of the Indian title, which is certainly to be respected Page 10 U. S. 143 by all Courts until it be legitimately extinguished, is not such as to be absolutely repugnant to seisin in fee on the part of the State. Judgment affirmed with costs. JOHNSON, J. In this case, I entertain, on two points, an opinion different from that which has been delivered by the Court. I do not hesitate to declare that a State does not possess the power of revoking its own grants. But I do it on a general principle, on the reason and nature of things: a principle which will impose laws even on the deity. A contrary opinion can only be maintained upon the ground that no existing legislature can abridge the powers of those which will succeed it. To a certain extent, this is certainly correct, but the distinction lies between power and interest, the right of jurisdiction and the right of soil. The right of jurisdiction is essentially connected to, or rather identified with, the national sovereignty. To part with it is to commit a species of political suicide. In fact, a power to produce its own annihilation is an absurdity in terms. It is a power as utterly incommunicable to a political as to a natural person. But it is not so with the interests or property of a nation. Its possessions nationally are in nowise necessary to its political existence; they are entirely accidental, and may be parted with in every respect similarly to those of the individuals who compose the community. When the legislature have once conveyed their interest or property in any subject to the individual, they have lost all control over it; have nothing to act upon; it has passed from them; is vested in the individual; becomes intimately blended with his existence, as essentially so as the blood that circulates through his system. The government may indeed demand of him the one or the other, not because they are not his, but because whatever is his is his country's. Page 10 U. S. 144 As to the idea that the grants of a legislature may be void because the legislature are corrupt, it appears to me to be subject to insuperable difficulties. The acts of the supreme power of a country must be considered pure for the same reason that all sovereign acts must be considered just -- because there is no power that can declare them otherwise. The absurdity in this case would have been strikingly perceived could the party who passed the act of cession have got again into power and declared themselves pure and the intermediate legislature corrupt. The security of a people against the misconduct of their rulers must lie in the frequent recurrence to first principles, and the imposition of adequate constitutional restrictions. Nor would it be difficult, with the same view, for laws to be framed which would bring the conduct of individuals under the review of adequate tribunals, and make them suffer under the consequences of their own immoral conduct. I have thrown out these ideas that I may have it distinctly understood that my opinion on this point is not founded on the provision in the Constitution of the United States relative to laws impairing the obligation of contracts. It is much to be regretted that words of less equivocal signification, had not been adopted in that article of the Constitution. There is reason to believe, from the letters of Publius, which are well-known to be entitled to the highest respect, that the object of the convention was to afford a general protection to individual rights against the acts of the State legislatures. Whether the words, "acts impairing the obligation of contracts," can be construed to have the same force as must have been given to the words "obligation and effect of contracts," is the difficulty in my mind. There can be no solid objection to adopting the technical definition of the word "contract," given by Blackstone. The etymology, the classical signification, and the civil law idea of the word will all support it. But the difficulty arises on the word "obligation," Page 10 U. S. 145 which certainly imports an existing moral or physical necessity. Now a grant or conveyance by no means necessarily implies the continuance of an obligation beyond the moment of executing it. It is most generally but the consummation of a contract, is functus officio the moment it is executed, and continues afterwards to be nothing more than the evidence that a certain act was done. I enter with great hesitation upon this question, because it involves a subject of the greatest delicacy and much difficulty. The States and the United States are continually legislating on the subject of contracts, prescribing the mode of authentication, the time within which suits shall be prosecuted for them, in many cases affecting existing contracts by the laws which they pass, and declaring them to cease or lose their effect for want of compliance, in the parties, with such statutory provisions. All these acts appear to be within the most correct limits of legislative powers, and most beneficially exercised, and certainly could not have been intended to be affected by this constitutional provision, yet where to draw the line, or how to define or limit the words, "obligation of contracts," will be found a subject of extreme difficulty. To give it the general effect of a restriction of the State powers in favour of private rights is certainly going very far beyond the obvious and necessary import of the words, and would operate to restrict the States in the exercise of that right which every community must exercise, of possessing itself of the property of the individual, when necessary for public uses; a right which a magnanimous and just government will never exercise without amply indemnifying the individual, and which perhaps amounts to nothing more than a power to oblige him to sell and convey, when the public necessities require it. The other point on which I dissent from the opinion of the Court is relative to the judgment which ought to be given on the first count. Upon that count, we are Page 10 U. S. 146 called upon substantially to decide "that the State of Georgia, at the time of passing the act of cession, was legally seised in fee of the soil [then ceded], subject only to the extinguishment of part of the Indian title." That is that the State of Georgia was seised of an estate in fee simple in the lands in question, subject to another estate, we know not what, nor whether it may not swallow up the whole estate decided to exist in Georgia. It would seem that the mere vagueness and uncertainty of this covenant would be a sufficient objection to deciding in favour of it, but to me it appears that the facts in the case are sufficient to support the opinion that the State of Georgia had not a fee simple in the land in question. This is a question of much delicacy, and more fitted for a diplomatic or legislative than a judicial inquiry. But I am called upon to make a decision, and I must make it upon technical principles. The question is whether it can be correctly predicated of the interest or estate which the State of Georgia had in these lands, "that the State was seised thereof, in fee simple." To me, it appears that the interest of Georgia in that land amounted to nothing more than a mere possessibility, and that her conveyance thereof could operate legally only as a covenant to convey or to stand seised to a use. The correctness of this opinion will depend upon a just view of the State of the Indian nations. This will be found to be very various. Some have totally extinguished their national fire, and submitted themselves to the laws of the States; others have, by treaty, acknowledged that they hold their national existence at the will of the State within which they reside; others retain a limited sovereignty and the absolute proprietorship of their soil. The latter is the case of the tribes to the west of Georgia. We legislate upon the conduct of strangers or citizens within their limits, but innumerable treaties formed with them Page 10 U. S. 147 acknowledge them to be an independent people, and the uniform practice of acknowledging their right of soil, by purchasing from them and restraining all persons from encroaching upon their territory, makes it unnecessary to insist upon their right of soil. Can, then, one nation be said to be seised of a fee simple in lands, the right of soil of which is in another nation? It is awkward to apply the technical idea of a fee simple to the interests of a nation, but I must consider an absolute right of soil as an estate to them and their heirs. A fee simple estate may be held in reversion, but our law will not admit the idea of its being limited after a fee simple. In fact, if the Indian nations be the absolute proprietors of their soil, no other nation can be said to have the same interest in it. What, then, practically, is the interest of the States in the soil of the Indians within their boundaries? Unaffected by particular treaties, it is nothing more than what was assumed at the first settlement of the country, to-wit, a right of conquest or of purchase, exclusively of all competitors within certain defined limits. All the restrictions upon the right of soil in the Indians amount only to an exclusion of all competitors from their markets, and the limitation upon their sovereignty amounts to the right of governing every person within their limits except themselves. If the interest in Georgia was nothing more than a preemptive right, how could that be called a fee simple which was nothing more than a power to acquire a fee simple by purchase, when the proprietors should be pleased to sell? And if this ever was any thing more than a mere possibility, it certainly was reduced to that state when the State of Georgia ceded to the United States, by the Constitution, both the power of preemption and of conquest, retaining for itself only a resulting right dependent on a purchase or conquest to be made by the United States. I have been very unwilling to proceed to the decision of this cause at all. It appears to me to bear strong evidence, upon the face of it, of being a mere feigned case. It is our duty to decide on the rights, but not on the speculations of parties. My confidence, Page 10 U. S. 148 however, in the respectable gentlemen who have been engaged for the parties has induced me to abandon my scruples in the belief that they would never consent to impose a mere feigned case upon this Court.

In Fletcher v. Peck, the U.S. Supreme Court ruled that the Legislature of Georgia had the authority to dispose of unappropriated lands within its borders in 1795. The Court also established the principle that a law impairing the obligation of contracts is unconstitutional. Additionally, the Court recognized the nature of Indian land titles and the rights of states regarding those lands. The case involved a dispute over land in Georgia and the validity of a law annulling conveyances. The Court's decision affirmed the rights of individuals holding land under acts of the legislature and established important precedents regarding contract law and state power.

Role of Courts

Ex parte Milligan

https://supreme.justia.com/cases/federal/us/71/2/

U.S. Supreme Court Ex parte Milligan, 71 U.S. 4 Wall. 2 2 (1866) Ex parte Milligan 71 U.S. (4 Wall.) 2 Syllabus 1. Circuit Courts, as well as the judges thereof, are authorized, by the fourteenth section of the Judiciary Act, to issue the writ of habeas corpus for the purpose of inquiring into the cause of commitment, and they have Page 71 U. S. 3 jurisdiction, except in cases where the privilege of the writ is suspended, to hear and determine the question whether the party is entitled to be discharged. 2. The usual course of proceeding is for the court, on the application of the prisoner for a writ of habeas corpus, to issue the writ, and, on its return, to hear and dispose of the case; but where the cause of imprisonment is fully shown by the petition, the court may, without issuing the writ, consider and determine whether, upon the facts presented in the petition, the prisoner, if brought before the court, would be discharged. 3. When the Circuit Court renders a final judgment refusing to discharge the prisoner, he may bring the case here by writ of error, and, if the judges of the Circuit Court, being opposed in opinion, can render no judgment, he may have the point upon which the disagreement happens certified to this tribunal. 4. A petition for a writ of habeas corpus, duly presented, is the institution of a cause on behalf of the petitioner, and the allowance or refusal of the process, as well as the subsequent disposition of the prisoner is matter of law, and not of discretion. 5. A person arrested after the passage of the act of March 3d, 1863, "relating to habeas corpus and regulating judicial proceedings in certain cases," and under the authority of said act, was entitled to his discharge if not indicted or presented by the grand jury convened at the first subsequent term of the Circuit or District Court of the United States for the District. 6. The omission to furnish a list of the persons arrested to the judges of the Circuit or District Court as provided in the said act did not impair the right of said person, if not indicted or presented, to his discharge. 7. Military commissions organized during the late civil war, in a State not invaded and not engaged in rebellion, in which the Federal courts were open, and in the proper and unobstructed exercise of their judicial functions, had no jurisdiction to try, convict, or sentence for any criminal offence, a citizen who was neither a resident of a rebellious State nor a prisoner of war, nor a person in the military or naval service. And Congress could not invest them with any such power. 8. The guaranty of trial by jury contained in the Constitution was intended for a state of war, as well as a state of peace, and is equally binding upon rulers and people at all times and under all circumstances. 9. The Federal authority having been unopposed in the State of Indiana, and the Federal courts open for the trial of offences and the redress of grievances, the usages of war could not, under the Constitution, afford any sanction for the trial there of a citizen in civil life not connected with the military or naval service, by a military tribunal, for any offence whatever. 10. Cases arising in the land or naval forces, or in the militia in time of war or public danger, are excepted from the necessity of presentment or indictment by a grand jury, and the right of trial by jury in such cases is subject to the same exception. Page 71 U. S. 4 11. Neither the President nor Congress nor the Judiciary can disturb any one of the safeguards of civil liberty incorporated into the Constitution except so far as the right is given to suspend in certain cases the privilege of the writ of habeas corpus. 12. A citizen not connected with the military service and a resident in a State where the courts are open and in the proper exercise or their jurisdiction cannot, even when the privilege of the writ of habeas corpus is suspended, be tried, convicted, or sentenced otherwise than by the ordinary courts of law. 13. Suspension of the privilege of the writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of course, and, on its return, the court decides whether the applicant is denied the right of proceeding any further. 14. A person who is a resident of a loyal State, where he was arrested, who was never resident in any State engaged in rebellion, nor connected with the military or naval service, cannot be regarded as a prisoner of war. This case came before the court upon a certificate of division from the judges of the Circuit Court for Indiana, on a petition for discharge from unlawful imprisonment. The case was thus: An act of Congress -- the Judiciary Act of 1789, [ Footnote 1 ] section 14 -- enacts that the Circuit Courts of the United States "Shall have power to issue writs of habeas corpus. And that either of the justices of the Supreme Court, as well as judges of the District Court, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment. Provided, " &c. Another act -- that of March 3d, 1863, [ Footnote 2 ] "relating to habeas corpus, and regulating judicial proceedings in certain cases" -- an act passed in the midst of the Rebellion -- makes various provisions in regard to the subject of it. The first section authorizes the suspension, during the Rebellion, of the writ of habeas corpus, throughout the United States, by the President. Two following sections limited the authority in certain respects. Page 71 U. S. 5 The second section required that lists of all persons, being citizens of States in which the administration of the laws had continued unimpaired in the Federal courts, who were then held, or might thereafter be held, as prisoners of the United States, under the authority of the President, otherwise than as prisoners of war, should be furnished by the Secretary of State and Secretary of War to the judges of the Circuit and District Courts. These lists were to contain the names of all persons, residing within their respective jurisdictions, charged with violation of national law. And it was required, in cases where the grand jury in attendance upon any of these courts should terminate its session without proceeding by indictment or otherwise against any prisoner named in the list, that the judge of the court should forthwith make an order that such prisoner, desiring a discharge, should be brought before him or the court to be discharged, on entering into recognizance, if required, to keep the peace and for good behavior, or to appear, as the court might direct, to be further dealt with according to law. Every officer of the United States having custody of such prisoners was required to obey and execute the judge's order, under penalty, for refusal or delay, of fine and imprisonment. The third section enacts, in case lists of persons other than prisoners of war then held in confinement or thereafter arrested, should not be furnished within twenty days after the passage of the act, or, in cases of subsequent arrest, within twenty days after the time of arrest, that any citizen, after the termination of a session of the grand jury without indictment or presentment, might, by petition alleging the facts and verified by oath, obtain the judge's order of discharge in favor of any person so imprisoned, on the terms and conditions prescribed in the second section. This act made it the duty of the District Attorney of the United States to attend examinations on petitions for discharge. By proclamation, [ Footnote 3 ] dated the 15th September following, Page 71 U. S. 6 the President, reciting this statute, suspended the privilege of the writ in the cases where, by his authority, military, naval, and civil officers of the United States "hold persons in their custody either as prisoners of war, spies, or aiders and abettors of the enemy, . . . or belonging to the land or naval force of the United States, or otherwise amenable to military law, or the rules and articles of war, or the rules or regulations prescribed for the military or naval services, by authority of the President, or for resisting a draft, or for any other offence against the military or naval service." With both these statutes and this proclamation in force, Lamdin P. Milligan, a citizen of the United States, and a resident and citizen of the State of Indiana, was arrested on the 5th day of October, 1864, at his home in the said State, by the order of Brevet Major-General Hovey, military commandant of the District of Indiana, and by the same authority confined in a military prison at or near Indianapolis, the capital of the State. On the 21st day of the same month, he was placed on trial before a "military commission," convened at Indianapolis, by order of the said General, upon the following charges, preferred by Major Burnett, Judge Advocate of the Northwestern Military Department, namely: 1. "Conspiracy against the Government of the United States;" 2. "Affording aid and comfort to rebels against the authority of the United States;" 3. "Inciting insurrection;" 4. "Disloyal practices;" and 5. "Violation of the laws of war." Under each of these charges, there were various specifications. The substance of them was joining and aiding, at different times between October, 1863, and August, 1864, a secret society known as the Order of American Knights or Sons of Liberty, for the purpose of overthrowing the Government and duly constituted authorities of the United States; holding communication with the enemy; conspiring to seize munitions of war stored in the arsenals; to liberate Page 71 U. S. 7 prisoners of war, &c.; resisting the draft, &c.; . . . "at a period of war and armed rebellion against the authority of the United States, at or near Indianapolis [and various other places specified] in Indiana, a State within the military lines of the army of the United States and the theatre of military operations, and which had been and was constantly threatened to be invaded by the enemy." These were amplified and stated with various circumstances. An objection by him to the authority of the commission to try him being overruled, Milligan was found guilty on all the charges, and sentenced to suffer death by hanging, and this sentence, having been approved, he was ordered to be executed on Friday, the 19th of May, 1865. On the 10th of that same May, 1865, Milligan filed his petition in the Circuit Court of the United States for the District of Indiana, by which, or by the documents appended to which as exhibits, the above facts appeared. These exhibits consisted of the order for the commission; the charges and specifications; the findings and sentence of the court, with a statement of the fact that the sentence was approved by the President of the United States, who directed that it should "be carried into execution without delay;" all "by order of the Secretary of War." The petition set forth the additional fact that, while the petitioner was held and detained, as already mentioned, in military custody (and more than twenty days after his arrest), a grand jury of the Circuit Court of the United States for the District of Indiana was convened at Indianapolis, his said place of confinement, and duly empaneled, charged, and sworn for said district, held its sittings, and finally adjourned without having found any bill of indictment, or made any presentment whatever against him. That at no time had he been in the military service of the United States, or in any way connected with the land or naval force, or the militia in actual service; nor within the limits of any State whose citizens were engaged in rebellion against the United States, at any time during the war, but, during all the time aforesaid, and for twenty years last past, he had been an Page 71 U. S. 8 inhabitant, resident, and citizen of Indiana. And so that it had been "wholly out of his power to have acquired belligerent rights or to have placed himself in such relation to the government as to have enabled him to violate the laws of war." The record, in stating who appeared in the Circuit Court, ran thus: "Be it remembered, that on the 10th day of May, A.D. 1865, in the court aforesaid, before the judges aforesaid, comes Jonathan W. Gorden, Esq., of counsel for said Milligan, and files here, in open court, the petition of said Milligan, to be discharged.. . . . At the same time comes John Hanna, Esquire, the attorney prosecuting the pleas of the United States in this behalf. And thereupon, by agreement, this application is submitted to the court, and day is given, &c." The prayer of the petition was that, under the already mentioned act of Congress of March 3d, 1863, the petitioner might be brought before the court and either turned over to the proper civil tribunal to be proceeded with according to the law of the land or discharged from custody altogether. At the hearing of the petition in the Circuit Court, the opinions of the judges were opposed upon the following questions: I. On the facts stated in the petition and exhibits, ought a writ of habeas corpus to be issued according to the prayer of said petitioner? II. On the facts stated in the petition and exhibits, ought the said Milligan to be discharged from custody as in said petition prayed? III. Whether, upon the facts stated in the petition and exhibits, the military commission had jurisdiction legally to try and sentence said Milligan in manner and form, as in said petition and exhibit is stated? And these questions were certified to this court under the provisions of the act of Congress of April 29th, 1802, [ Footnote 4 ] an act Page 71 U. S. 9 which provides "that whenever any question shall occur before a Circuit Court upon which the opinions of the judges shall be opposed, the point upon which the disagreement shall happen shall, during the same term, upon the request of either party or their counsel, be stated under the direction of the judges and certified under the seal of the court to the Supreme Court, at their next session to be held thereafter, and shall by the said court be finally decided, and the decision of the Supreme Court and their order in the premises shall be remitted to the Circuit Court and be there entered of record, and shall have effect according to the nature of the said judgment and order; Provided, That nothing herein contained shall prevent the cause from proceeding if, in the opinion of the court, further proceedings can be had without prejudice to the merits." The three several questions above mentioned were argued at the last term. And along with them, an additional question raised in this court, namely: IV. A question of jurisdiction, as -- 1. Whether the Circuit Court had jurisdiction to hear the case there presented? -- 2. Whether the case sent up here by certificate of division was so sent up in conformity with the intention of the act of 1802? in other words, whether this court had jurisdiction of the questions raised by the certificate? Page 71 U. S. 107 Mr. Justice DAVIS delivered the opinion of the court. On the 10th day of May, 1865, Lambdin P. Milligan presented a petition to the Circuit Court of the United States for the District of Indiana to be discharged from an alleged unlawful imprisonment. The case made by the petition is this: Milligan is a citizen of the United States; has lived for twenty years in Indiana, and, at the time of the grievances complained of, was not, and never had been, in the military or naval service of the United States. On the 5th day of October, 1864, while at home, he was arrested by order of General Alvin P. Hovey, commanding the military district of Indiana, and has ever since been kept in close confinement. On the 21st day of October, 1864, he was brought before a military commission, convened at Indianapolis by order of General Hovey, tried on certain charges and specifications, found guilty, and sentenced to be hanged, and the sentence ordered to be executed on Friday, the 19th day of May, 1865. On the 2d day of January, 1865, after the proceedings of the military commission were at an end, the Circuit Court of the United States for Indiana met at Indianapolis and empaneled a grand jury, who were charged to inquire Page 71 U. S. 108 whether the laws of the United States had been violated. and, if so, to make presentments. The court adjourned on the 27th day of January, having, prior thereto, discharged from further service the grand jury, who did not find any bill of indictment or make any presentment against Milligan for any offence whatever, and, in fact, since his imprisonment, no bill of indictment has been found or presentment made against him by any grand jury of the United States. Milligan insists that said military commission had no jurisdiction to try him upon the charges preferred, or upon any charges whatever, because he was a citizen of the United States and the State of Indiana, and had not been, since the commencement of the late Rebellion, a resident of any of the States whose citizens were arrayed against the government, and that the right of trial by jury was guaranteed to him by the Constitution of the United States. The prayer of the petition was that, under the act of Congress approved March 3d, 1863, entitled, "An act relating to habeas corpus and regulating judicial proceedings in certain cases," he may be brought before the court and either turned over to the proper civil tribunal to be proceeded against according to the law of the land or discharged from custody altogether. With the petition were filed the order for the commission, the charges and specifications, the findings of the court, with the order of the War Department reciting that the sentence was approved by the President of the United States, and directing that it be carried into execution without delay. The petition was presented and filed in open court by the counsel for Milligan; at the same time, the District Attorney of the United States for Indiana appeared and, by the agreement of counsel, the application was submitted to the court. The opinions of the judges of the Circuit Court were opposed on three questions, which are certified to the Supreme Court: 1st. "On the facts stated in said petition and exhibits, ought a writ of habeas corpus to be issued?" Page 71 U. S. 109 2d. "On the facts stated in said petition and exhibits, ought the said Lambdin P. Milligan to be discharged from custody as in said petition prayed?" 3d. "Whether, upon the facts stated in said petition and exhibits, the military commission mentioned therein had jurisdiction legally to try and sentence said Milligan in manner and form as in said petition and exhibits is stated?" The importance of the main question presented by this record cannot be overstated, for it involves the very framework of the government and the fundamental principles of American liberty. During the late wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then, considerations of safety were mingled with the exercise of power, and feelings and interests prevailed which are happily terminated. Now that the public safety is assured, this question, as well as all others, can be discussed and decided without passion or the admixture of any element not required to form a legal judgment. We approach the investigation of this case fully sensible of the magnitude of the inquiry and the necessity of full and cautious deliberation. But we are met with a preliminary objection. It is insisted that the Circuit Court of Indiana had no authority to certify these questions, and that we are without jurisdiction to hear and determine them. The sixth section of the "Act to amend the judicial system of the United States," approved April 29, 1802, declares "that whenever any question shall occur before a Circuit Court upon which the opinions of the judges shall be opposed, the point upon which the disagreement shall happen shall, during the same term, upon the request of either party or their counsel, be stated under the direction of the judges and certified under the seal of the court to the Supreme Court at their next session to be held thereafter, and shall by the said court be finally decided, and the decision of the Page 71 U. S. 110 Supreme Court and their order in the premises shall be remitted to the Circuit Court and be there entered of record, and shall have effect according to the nature of the said judgment and order: Provided, That nothing herein contained shall prevent the cause from proceeding, if, in the opinion of the court, further proceedings can be had without prejudice to the merits." It is under this provision of law that a Circuit Court has authority to certify any question to the Supreme Court for adjudication. The inquiry, therefore, is, whether the case of Milligan is brought within its terms. It was admitted at the bar that the Circuit Court had jurisdiction to entertain the application for the writ of habeas corpus and to hear and determine it, and it could not be denied, for the power is expressly given in the 14th section of the Judiciary Act of 1789, as well as in the later act of 1863. Chief Justice Marshall, in Bollman's case, [ Footnote 5 ] construed this branch of the Judiciary Act to authorize the courts as well as the judges to issue the writ for the purpose of inquiring into the cause of the commitment, and this construction has never been departed from. But it is maintained with earnestness and ability that a certificate of division of opinion can occur only in a cause, and that the proceeding by a party moving for a writ of habeas corpus does not become a cause until after the writ has been issued and a return made. Independently of the provisions of the act of Congress of March 3, 1863, relating to habeas corpus, on which the petitioner bases his claim for relief and which we will presently consider, can this position be sustained? It is true that it is usual for a court, on application for a writ of habeas corpus, to issue the writ, and, on the return, to dispose of the case, but the court can elect to waive the issuing of the writ and consider whether, upon the facts presented in the petition, the prisoner, if brought before it, could be discharged. One of the very points on which the case of Tobias Watkins, reported in 3 Peters, [ Footnote 6 ] turned was Page 71 U. S. 111 whether, if the writ was issued, the petitioner would be remanded upon the case which he had made. The Chief Justice, in delivering the opinion of the court, said: "The cause of imprisonment is shown as fully by the petitioner as it could appear on the return of the writ; consequently, the writ ought not to be awarded if the court is satisfied that the prisoner would be remanded to prison." The judges of the Circuit Court of Indiana were therefore warranted by an express decision of this court in refusing the writ if satisfied that the prisoner. on his own showing. was rightfully detained. But, it is contended, if they differed about the lawfulness of the imprisonment, and could render no judgment, the prisoner is remediless, and cannot have the disputed question certified under the act of 1802. His remedy is complete by writ of error or appeal, if the court renders a final judgment refusing to discharge him; but if he should be so unfortunate as to be placed in the predicament of having the court divided on the question whether he should live or die, he is hopeless, and without remedy. He wishes the vital question settled not by a single judge at his chambers, but by the highest tribunal known to the Constitution, and yet the privilege is denied him because the Circuit Court consists of two judges, instead of one. Such a result was not in the contemplation of the legislature of 1802, and the language used by it cannot be construed to mean any such thing. The clause under consideration was introduced to further the ends of justice by obtaining a speedy settlement of important questions where the judges might be opposed in opinion. The act of 1802 so changed the judicial system that the Circuit Court, instead of three, was composed of two judges, and, without this provision or a kindred one, if the judges differed, the difference would remain, the question be unsettled, and justice denied. The decisions of this court upon the provisions of this section have been numerous. In United States v. Daniel, [ Footnote 7 ] the court, in holding that a division Page 71 U. S. 112 of the judges on a motion for a new trial could not be certified, say: "That the question must be one which arises in a cause depending before the court relative to a proceeding belonging to the cause." Testing Milligan's case by this rule of law, is it not apparent that it is rightfully here, and that we are compelled to answer the questions on which the judges below were opposed in opinion? If, in the sense of the law, the proceeding for the writ of habeas corpus was the " cause " of the party applying for it, then it is evident that the "cause" was pending before the court, and that the questions certified arose out of it, belonged to it, and were matters of right, and not of discretion. But it is argued that the proceeding does not ripen into a cause until there are two parties to it. This we deny. It was the cause of Milligan when the petition was presented to the Circuit Court. It would have been the cause of both parties if the court had issued the writ and brought those who held Milligan in custody before it. Webster defines the word "cause" thus: "A suit or action in court; any legal process which a party institutes to obtain his demand, or by which he seeks his right, or supposed right" -- and he says, "this is a legal, scriptural, and popular use of the word, coinciding nearly with case, from cado, and action, from ago, to urge and drive." In any legal sense, action, suit, and cause, are convertible terms. Milligan supposed he had a right to test the validity of his trial and sentence, and the proceeding which he set in operation for that purpose was his "cause" or "suit." It was the only one by which he could recover his liberty. He was powerless to do more; he could neither instruct the judges nor control their action, and should not suffer, because, without fault of his, they were unable to render a judgment. But the true meaning to the term "suit" has been given by this court. One of the questions in Weston v. City Council of Charleston, [ Footnote 8 ] was whether a writ of prohibition was a suit, and Chief Justice Marshall says: "The Page 71 U. S. 113 term is certainly a comprehensive one, and is understood to apply to any proceeding in a court of justice by which an individual pursues that remedy which the law affords him." Certainly Milligan pursued the only remedy which the law afforded him. Again, in Cohens v. Virginia, [ Footnote 9 ] he says: "In law language, a suit is the prosecution of some demand in a court of justice." Also, "To commence a suit is to demand something by the institution of process in a court of justice, and to prosecute the suit is to continue that demand." When Milligan demanded his release by the proceeding relating to habeas corpus, he commenced a suit, and he has since prosecuted it in all the ways known to the law. One of the questions in Holmes v. Jennison, et al., [ Footnote 10 ] was whether, under the 25th section of the Judiciary Act, a proceeding for a writ of habeas corpus was a "suit." Chief Justice Taney held that, "if a party is unlawfully imprisoned, the writ of habeas corpus is his appropriate legal remedy. It is his suit in court to recover his liberty." There was much diversity of opinion on another ground of jurisdiction, but that, in the sense of the 25th section of the Judiciary Act, the proceeding by habeas corpus was a suit was not controverted by any except Baldwin, Justice, and he thought that "suit" and "cause," as used in the section, mean the same thing. The court do not say that a return must be made and the parties appear and begin to try the case before it is a suit. When the petition is filed and the writ prayed for, it is a suit -- the suit of the party making the application. If it is a suit under the 25th section of the Judiciary Act when the proceedings are begun, it is, by all the analogies of the law, equally a suit under the 6th section of the act of 1802. But it is argued that there must be two parties to the suit, because the point is to be stated upon the request of "either party or their counsel." Such a literal and technical construction would defeat the very purpose the legislature had in view, which was to enable Page 71 U. S. 114 any party to bring the case here when the point in controversy was a matter of right, and not of discretion, and the words "either party," in order to prevent a failure of justice, must be construed as words of enlargement, and not of restriction. Although this case is here ex parte, it was not considered by the court below without notice having been given to the party supposed to have an interest in the detention of the prisoner. The statements of the record show that this is not only a fair, but conclusive, inference. When the counsel for Milligan presented to the court the petition for the writ of habeas corpus, Mr. Hanna, the District Attorney for Indiana, also appeared, and, by agreement, the application was submitted to the court, who took the case under advisement, and on the next day announced their inability to agree, and made the certificate. It is clear that Mr. Hanna did not represent the petitioner, and why is his appearance entered? It admits of no other solution than this -- that he was informed of the application, and appeared on behalf of the government to contest it. The government was the prosecutor of Milligan, who claimed that his imprisonment was illegal and sought, in the only way he could, to recover his liberty. The case was a grave one, and the court unquestionably directed that the law officer of the government should be informed of it. He very properly appeared, and, as the facts were uncontroverted and the difficulty was in the application of the law, there was no useful purpose to be obtained in issuing the writ. The cause was therefore submitted to the court for their consideration and determination. But Milligan claimed his discharge from custody by virtue of the act of Congress "relating to habeas corpus, and regulating judicial proceedings in certain cases," approved March 3d, 1863. Did that act confer jurisdiction on the Circuit Court of Indiana to hear this case? In interpreting a law, the motives which must have operated with the legislature in passing it are proper to be considered. This law was passed in a time of great national peril, when our heritage of free government was in danger. Page 71 U. S. 115 An armed rebellion against the national authority, of greater proportions than history affords an example of, was raging, and the public safety required that the privilege of the writ of habeas corpus should be suspended. The President had practically suspended it, and detained suspected persons in custody without trial, but his authority to do this was questioned. It was claimed that Congress alone could exercise this power, and that the legislature, and not the President, should judge of the political considerations on which the right to suspend it rested. The privilege of this great writ had never before been withheld from the citizen, and, as the exigence of the times demanded immediate action, it was of the highest importance that the lawfulness of the suspension should be fully established. It was under these circumstances, which were such as to arrest the attention of the country, that this law was passed. The President was authorized by it to suspend the privilege of the writ of habeas corpus whenever, in his judgment, the public safety required, and he did, by proclamation, bearing date the 15th of September, 1863, reciting, among other things, the authority of this statute, suspend it. The suspension of the writ does not authorize the arrest of anyone, but simply denies to one arrested the privilege of this writ in order to obtain his liberty. It is proper therefore to inquire under what circumstances the courts could rightfully refuse to grant this writ, and when the citizen was at liberty to invoke its aid. The second and third sections of the law are explicit on these points. The language used is plain and direct, and the meaning of the Congress cannot be mistaken. The public safety demanded, if the President thought proper to arrest a suspected person, that he should not be required to give the cause of his detention on return to a writ of habeas corpus. But it was not contemplated that such person should be detained in custody beyond a certain fixed period unless certain judicial proceedings, known to the common law, were commenced against him. The Secretaries of State and War were directed to furnish to the judges of the courts of the Page 71 U. S. 116 United States a list of the names of all parties, not prisoners of war, resident in their respective jurisdictions, who then were or afterwards should be held in custody by the authority of the President, and who were citizens of states in which the administration of the laws in the Federal tribunals was unimpaired. After the list was furnished, if a grand jury of the district convened and adjourned, and did not indict or present one of the persons thus named, he was entitled to his discharge, and it was the duty of the judge of the court to order him brought before him to be discharged if he desired it. The refusal or omission to furnish the list could not operate to the injury of anyone who was not indicted or presented by the grand jury, for, if twenty days had elapsed from the time of his arrest and the termination of the session of the grand jury, he was equally entitled to his discharge as if the list were furnished, and any credible person, on petition verified by affidavit, could obtain the judge's order for that purpose. Milligan, in his application to be released from imprisonment, averred the existence of every fact necessary under the terms of this law to give the Circuit Court of Indiana jurisdiction. If he was detained in custody by the order of the President otherwise than as a prisoner of war, if he was a citizen of Indiana and had never been in the military or naval service, and the grand jury of the district had met, after he had been arrested, for a period of twenty days, and adjourned without taking any proceedings against him, then the court had the right to entertain his petition and determine the lawfulness of his imprisonment. Because the word "court" is not found in the body of the second section, it was argued at the bar that the application should have been made to a judge of the court, and not to the court itself; but this is not so, for power is expressly conferred in the last proviso of the section on the court equally with a judge of it to discharge from imprisonment. It was the manifest design of Congress to secure a certain remedy by which anyone deprived of liberty could obtain it if there was a judicial failure to find cause of offence against him. Courts are Page 71 U. S. 117 not, always in session, and can adjourn on the discharge of the grand jury, and before those who are in confinement could take proper steps to procure their liberation. To provide for this contingency, authority was given to the judges out of court to grant relief to any party who could show that, under the law, he should be no longer restrained of his liberty. It was insisted that Milligan's case was defective because it did not state that the list was furnished to the judges, and therefore it was impossible to say under which section of the act it was presented. It is not easy to see how this omission could affect the question of jurisdiction. Milligan could not know that the list was furnished, unless the judges volunteered to tell him, for the law did not require that any record should be made of it or anybody but the judges informed of it. Why aver the fact when the truth of the matter was apparent to the court without an averment? How can Milligan be harmed by the absence of the averment when he states that he was under arrest for more than sixty days before the court and grand jury, which should have considered his case, met at Indianapolis? It is apparent therefore that, under the Habeas Corpus Act of 1863, the Circuit Court of Indiana had complete jurisdiction to adjudicate upon this case, and, if the judges could not agree on questions vital to the progress of the cause, they had the authority (as we have shown in a previous part of this opinion), and it was their duty, to certify those questions of disagreement to this court for final decision. It was argued that a final decision on the questions presented ought not to be made, because the parties who were directly concerned in the arrest and detention of Milligan were not before the court, and their rights might be prejudiced by the answer which should be given to those questions. But this court cannot know what return will be made to the writ of habeas corpus when issued, and it is very clear that no one is concluded upon any question that may be raised to that return. In the sense of the law of 1802 which authorized a certificate of division, a final decision Page 71 U. S. 118 means final upon the points certified, final upon the court below, so that it is estopped from any adverse ruling in all the subsequent proceedings of the cause. But it is said that this case is ended, as the presumption is that Milligan was hanged in pursuance of the order of the President. Although we have no judicial information on the subject, yet the inference is that he is alive, for otherwise learned counsel would not appear for him and urge this court to decide his case. It can never be, in this country of written constitution and laws, with a judicial department to interpret them, that any chief magistrate would be so far forgetful of his duty as to order the execution of a man who denied the jurisdiction that tried and convicted him after his case was before Federal judges with power to decide it, who, being unable to agree on the grave questions involved, had, according to known law, sent it to the Supreme Court of the United States for decision. But even the suggestion is injurious to the Executive, and we dismiss it from further consideration. There is therefore nothing to hinder this court from an investigation of the merits of this controversy. The controlling question in the case is this: upon the facts stated in Milligan's petition and the exhibits filed, had the military commission mentioned in it jurisdiction legally to try and sentence him? Milligan, not a resident of one of the rebellious states or a prisoner of war, but a citizen of Indiana for twenty years past and never in the military or naval service, is, while at his home, arrested by the military power of the United States, imprisoned, and, on certain criminal charges preferred against him, tried, convicted, and sentenced to be hanged by a military commission, organized under the direction of the military commander of the military district of Indiana. Had this tribunal the legal power and authority to try and punish this man? No graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole Page 71 U. S. 119 people, for it is the birthright of every American citizen when charged with crime to be tried and punished according to law. The power of punishment is alone through the means which the laws have provided for that purpose, and, if they are ineffectual, there is an immunity from punishment, no matter how great an offender the individual may be or how much his crimes may have shocked the sense of justice of the country or endangered its safety. By the protection of the law, human rights are secured; withdraw that protection and they are at the mercy of wicked rulers or the clamor of an excited people. If there was law to justify this military trial, it is not our province to interfere; if there was not, it is our duty to declare the nullity of the whole proceedings. The decision of this question does not depend on argument or judicial precedents, numerous and highly illustrative as they are. These precedents inform us of the extent of the struggle to preserve liberty and to relieve those in civil life from military trials. The founders of our government were familiar with the history of that struggle, and secured in a written constitution every right which the people had wrested from power during a contest of ages. By that Constitution and the laws authorized by it, this question must be determined. The provisions of that instrument on the administration of criminal justice are too plain and direct to leave room for misconstruction or doubt of their true meaning. Those applicable to this case are found in that clause of the original Constitution which says "That the trial of all crimes, except in case of impeachment, shall be by jury," and in the fourth, fifth, and sixth articles of the amendments. The fourth proclaims the right to be secure in person and effects against unreasonable search and seizure, and directs that a judicial warrant shall not issue "without proof of probable cause supported by oath or affirmation." The fifth declares "that no person shall be held to answer for a capital or otherwise infamous crime unless on presentment by a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger, nor be deprived Page 71 U. S. 120 of life, liberty, or property without due process of law." And the sixth guarantees the right of trial by jury, in such manner and with such regulations that, with upright judges, impartial juries, and an able bar, the innocent will be saved and the guilty punished. It is in these words: "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence." These securities for personal liberty thus embodied were such as wisdom and experience had demonstrated to be necessary for the protection of those accused of crime. And so strong was the sense of the country of their importance, and so jealous were the people that these rights, highly prized, might be denied them by implication, that, when the original Constitution was proposed for adoption, it encountered severe opposition, and, but for the belief that it would be so amended as to embrace them, it would never have been ratified. Time has proven the discernment of our ancestors, for even these provisions, expressed in such plain English words that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times Page 71 U. S. 121 and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority. Have any of the rights guaranteed by the Constitution been violated in the case of Milligan?, and, if so, what are they? Every trial involves the exercise of judicial power, and from what source did the military commission that tried him derive their authority? Certainly no part of judicial power of the country was conferred on them, because the Constitution expressly vests it "in one supreme court and such inferior courts as the Congress may from time to time ordain and establish," and it is not pretended that the commission was a court ordained and established by Congress. They cannot justify on the mandate of the President, because he is controlled by law, and has his appropriate sphere of duty, which is to execute, not to make, the laws, and there is "no unwritten criminal code to which resort can be had as a source of jurisdiction." But it is said that the jurisdiction is complete under the "laws and usages of war." It can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed. This court has judicial knowledge that, in Indiana, the Federal authority was always unopposed, and its courts always open to hear criminal accusations and redress grievances, and no usage of war could sanction a military trial there for any offence whatever of a citizen in civil life in nowise Page 71 U. S. 122 connected with the military service. Congress could grant no such power, and, to the honor of our national legislature be it said, it has never been provoked by the state of the country even to attempt its exercise. One of the plainest constitutional provisions was therefore infringed when Milligan was tried by a court not ordained and established by Congress and not composed of judges appointed during good behavior. Why was he not delivered to the Circuit Court of Indiana to be proceeded against according to law? No reason of necessity could be urged against it, because Congress had declared penalties against the offences charged, provided for their punishment, and directed that court to hear and determine them. And soon after this military tribunal was ended, the Circuit Court met, peacefully transacted its business, and adjourned. It needed no bayonets to protect it, and required no military aid to execute its judgments. It was held in a state, eminently distinguished for patriotism, by judges commissioned during the Rebellion, who were provided with juries, upright, intelligent, and selected by a marshal appointed by the President. The government had no right to conclude that Milligan, if guilty, would not receive in that court merited punishment, for its records disclose that it was constantly engaged in the trial of similar offences, and was never interrupted in its administration of criminal justice. If it was dangerous, in the distracted condition of affairs, to leave Milligan unrestrained of his liberty because he "conspired against the government, afforded aid and comfort to rebels, and incited the people to insurrection," the law said arrest him, confine him closely, render him powerless to do further mischief, and then present his case to the grand jury of the district, with proofs of his guilt, and, if indicted, try him according to the course of the common law. If this had been done, the Constitution would have been vindicated, the law of 1863 enforced, and the securities for personal liberty preserved and defended. Another guarantee of freedom was broken when Milligan was denied a trial by jury. The great minds of the country Page 71 U. S. 123 have differed on the correct interpretation to be given to various provisions of the Federal Constitution, and judicial decision has been often invoked to settle their true meaning; but, until recently, no one ever doubted that the right of trial by jury was fortified in the organic law against the power of attack. It is now assailed, but if ideas can be expressed in words and language has any meaning, this right -- one of the most valuable in a free country -- is preserved to everyone accused of crime who is not attached to the army or navy or militia in actual service. The sixth amendment affirms that, "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury," language broad enough to embrace all persons and cases; but the fifth, recognizing the necessity of an indictment or presentment before anyone can be held to answer for high crimes, " excepts cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger," and the framers of the Constitution doubtless meant to limit the right of trial by jury in the sixth amendment to those persons who were subject to indictment or presentment in the fifth. The discipline necessary to the efficiency of the army and navy required other and swifter modes of trial than are furnished by the common law courts, and, in pursuance of the power conferred by the Constitution, Congress has declared the kinds of trial, and the manner in which they shall be conducted, for offences committed while the party is in the military or naval service. Everyone connected with these branches of the public service is amenable to the jurisdiction which Congress has created for their government, and, while thus serving, surrenders his right to be tried by the civil courts. All other persons, citizens of states where the courts are open, if charged with crime, are guaranteed the inestimable privilege of trial by jury. This privilege is a vital principle, underlying the whole administration of criminal justice; it is not held by sufferance, and cannot be frittered away on any plea of state or political necessity. When peace prevails, and the authority of the government is undisputed, Page 71 U. S. 124 there is no difficulty of preserving the safeguards of liberty, for the ordinary modes of trial are never neglected, and no one wishes it otherwise; but if society is disturbed by civil commotion -- if the passions of men are aroused and the restraints of law weakened, if not disregarded -- these safeguards need, and should receive, the watchful care of those intrusted with the guardianship of the Constitution and laws. In no other way can we transmit to posterity unimpaired the blessings of liberty, consecrated by the sacrifices of the Revolution. It is claimed that martial law covers with its broad mantle the proceedings of this military commission. The proposition is this: that, in a time of war, the commander of an armed force (if, in his opinion, the exigencies of the country demand it, and of which he is to judge) has the power, within the lines of his military district, to suspend all civil rights and their remedies and subject citizens, as well as soldiers to the rule of his will, and, in the exercise of his lawful authority, cannot be restrained except by his superior officer or the President of the United States. If this position is sound to the extent claimed, then, when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience, the commander of one of them can, if he chooses, within his limits, on the plea of necessity, with the approval of the Executive, substitute military force for and to the exclusion of the laws, and punish all persons as he thinks right and proper, without fixed or certain rules. The statement of this proposition shows its importance, for, if true, republican government is a failure, and there is an end of liberty regulated by law. Martial law established on such a basis destroys every guarantee of the Constitution, and effectually renders the "military independent of and superior to the civil power" -- the attempt to do which by the King of Great Britain was deemed by our fathers such an offence that they assigned it to the world as one of the causes which impelled them to declare their independence. Civil liberty and this kind of martial law cannot endure Page 71 U. S. 125 together; the antagonism is irreconcilable, and, in the conflict, one or the other must perish. This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln, and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate. If our fathers had failed to provide for just such a contingency, they would have been false to the trust reposed in them. They knew -- the history of the world told them -- the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued human foresight could not tell, and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen. For this and other equally weighty reasons, they secured the inheritance they had fought to maintain by incorporating in a written constitution the safeguards which time had proved were essential to its preservation. Not one of these safeguards can the President or Congress or the Judiciary disturb, except the one concerning the writ of habeas corpus. It is essential to the safety of every government that, in a great crisis like the one we have just passed through, there should be a power somewhere of suspending the writ of habeas corpus. In every war, there are men of previously good character wicked enough to counsel their fellow-citizens to resist the measures deemed necessary by a good government to sustain its just authority and overthrow its enemies, and their influence may lead to dangerous combinations. In the emergency of the times, an immediate public investigation according to law may not be possible, and yet the period to the country may be too imminent to suffer such persons to go at large. Unquestionably, there is then an exigency which demands that the government, if it should see fit in the exercise of a proper discretion to make arrests, should not be required to produce the persons arrested Page 71 U. S. 126 in answer to a writ of habeas corpus. The Constitution goes no further. It does not say, after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law; if it had intended this result, it was easy, by the use of direct words, to have accomplished it. The illustrious men who framed that instrument were guarding the foundations of civil liberty against the abuses of unlimited power; they were full of wisdom, and the lessons of history informed them that a trial by an established court, assisted by an impartial jury, was the only sure way of protecting the citizen against oppression and wrong. Knowing this, they limited the suspension to one great right, and left the rest to remain forever inviolable. But it is insisted that the safety of the country in time of war demands that this broad claim for martial law shall be sustained. If this were true, it could be well said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation. Happily, it is not so. It will be borne in mind that this is not a question of the power to proclaim martial law when war exists in a community and the courts and civil authorities are overthrown. Nor is it a question what rule a military commander, at the head of his army, can impose on states in rebellion to cripple their resources and quell the insurrection. The jurisdiction claimed is much more extensive. The necessities of the service during the late Rebellion required that the loyal states should be placed within the limits of certain military districts and commanders appointed in them, and it is urged that this, in a military sense, constituted them the theater of military operations, and as, in this case, Indiana had been and was again threatened with invasion by the enemy, the occasion was furnished to establish martial law. The conclusion does not follow from the premises. If armies were collected in Indiana, they were to be employed in another locality, where the laws were obstructed and the national authority disputed. On her soil there was no hostile foot; if once invaded, that invasion was at an end, and, with Page 71 U. S. 127 it, all pretext for martial law. Martial law cannot arise from a threatened invasion. The necessity must be actual and present, the invasion real, such as effectually closes the courts and deposes the civil administration. It is difficult to see how the safety for the country required martial law in Indiana. If any of her citizens were plotting treason, the power of arrest could secure them until the government was prepared for their trial, when the courts were open and ready to try them. It was as easy to protect witnesses before a civil as a military tribunal, and as there could be no wish to convict except on sufficient legal evidence, surely an ordained and establish court was better able to judge of this than a military tribunal composed of gentlemen not trained to the profession of the law. It follows from what has been said on this subject that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society, and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration, for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. Because, during the late Rebellion, it could have been enforced in Virginia, where the national authority was overturned and the courts driven out, it does not follow that it should obtain in Indiana, where that authority was never disputed and justice was always administered. And so, in the case of a foreign invasion, martial rule may become a necessity in one state when, in another, it would be "mere lawless violence." Page 71 U. S. 128 We are not without precedents in English and American history illustrating our views of this question, but it is hardly necessary to make particular reference to them. From the first year of the reign of Edward the Third, when the Parliament of England reversed the attainder of the Earl of Lancaster because he could have been tried by the courts of the realm, and declared "that, in time of peace, no man ought to be adjudged to death for treason or any other offence without being arraigned and held to answer, and that regularly when the king's courts are open it is a time of peace in judgment of law," down to the present day, martial law, as claimed in this case, has been condemned by all respectable English jurists as contrary to the fundamental laws of the land and subversive of the liberty of the subject. During the present century, an instructive debate on this question occurred in Parliament, occasioned by the trial and conviction by court-martial, at Demerara, of the Rev. John Smith, a missionary to the negroes, on the alleged ground of aiding and abetting a formidable rebellion in that colony. Those eminent statesmen Lord Brougham and Sir James Mackintosh participated in that debate, and denounced the trial as illegal because it did not appear that the courts of law in Demerara could not try offences, and that, "when the laws can act, every other mode of punishing supposed crimes is itself an enormous crime." So sensitive were our Revolutionary fathers on this subject, although Boston was almost in a state of siege, when General Gage issued his proclamation of martial law, they spoke of it as an "attempt to supersede the course of the common law, and, instead thereof, to publish and order the use of martial law." The Virginia Assembly also denounced a similar measure on the part of Governor Dunmore "as an assumed power which the king himself cannot exercise, because it annuls the law of the land and introduces the most execrable of all systems, martial law." In some parts of the country, during the war of 1812, our officers made arbitrary arrests and, by military tribunals, tried citizens who were not in the military service. These arrests Page 71 U. S. 129 and trials, when brought to the notice of the courts, were uniformly condemned as illegal. The cases of Smith v. Shaw and McConnell v. Hampden (reported in 12 Johnson [ Footnote 11 ]) are illustrations, which we cite not only for the principles they determine but on account of the distinguished jurists concerned in the decisions, one of whom for many years occupied a seat on this bench. It is contended, that Luther v. Borden, decided by this court, is an authority for the claim of martial law advanced in this case. The decision is misapprehended. That case grew out of the attempt in Rhode Island to supersede the old colonial government by a revolutionary proceeding. Rhode Island, until that period, had no other form of local government than the charter granted by King Charles II in 1663, and, as that limited the right of suffrage, and did not provide for its own amendment, many citizens became dissatisfied because the legislature would not afford the relief in their power, and, without the authority of law, formed a new and independent constitution and proceeded to assert its authority by force of arms. The old government resisted this, and, as the rebellion was formidable, called out the militia to subdue it and passed an act declaring martial law. Borden, in the military service of the old government, broke open the house of Luther, who supported the new, in order to arrest him. Luther brought suit against Borden, and the question was whether, under the constitution and laws of the state, Borden was justified. This court held that a state "may use its military power to put down an armed insurrection too strong to be controlled by the civil authority," and, if the legislature of Rhode Island thought the period so great as to require the use of its military forces and the declaration of martial law, there was no ground on which this court could question its authority, and, as Borden acted under military orders of the charter government, which had been recognized by the political power of the country, and was upheld by the state judiciary, he was justified in breaking Page 71 U. S. 130 into and entering Luther's house. This is the extent of the decision. There was no question in issue about the power of declaring martial law under the Federal Constitution, and the court did not consider it necessary even to inquire "to what extent nor under what circumstances that power may by exercised by a state." We do not deem it important to examine further the adjudged cases, and shall therefore conclude without any additional reference to authorities. To the third question, then, on which the judges below were opposed in opinion, an answer in the negative must be returned. It is proper to say, although Milligan's trial and conviction by a military commission was illegal, yet, if guilty of the crimes imputed to him, and his guilt had been ascertained by an established court and impartial jury, he deserved severe punishment. Open resistance to the measures deemed necessary to subdue a great rebellion, by those who enjoy the protection of government, and have not the excuse even of prejudice of section to plead in their favor, is wicked; but that resistance becomes an enormous crime when it assumes the form of a secret political organization, armed to oppose the laws, and seeks by stealthy means to introduce the enemies of the country into peaceful communities, there to light the torch of civil war and thus overthrow the power of the United States. Conspiracies like these, at such a juncture, are extremely perilous, and those concerned in them are dangerous enemies to their country, and should receive the heaviest penalties of the law as an example to deter others from similar criminal conduct. It is said the severity of the laws caused them; but Congress was obliged to enact severe laws to meet the crisis, and as our highest civil duty is to serve our country when in danger, the late war has proved that rigorous laws, when necessary, will be cheerfully obeyed by a patriotic people, struggling to preserve the rich blessings of a free government. The two remaining questions in this case must be answered in the affirmative. The suspension of the privilege of the Page 71 U. S. 131 writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of course, and, on the return made to it, the court decides whether the party applying is denied the right of proceeding any further with it. If the military trial of Milligan was contrary to law, then he was entitled, on the facts stated in his petition, to be discharged from custody by the terms of the act of Congress of March 3d, 1863. The provisions of this law having been considered in a previous part of this opinion, we will not restate the views there presented. Milligan avers he was a citizen of Indiana, not in the military or naval service, and was detained in close confinement, by order of the President, from the 5th day of October, 1864, until the 2d day of January, 1865, when the Circuit Court for the District of Indiana, with a grand jury, convened in session at Indianapolis, and afterwards, on the 27th day of the same month, adjourned without finding an indictment or presentment against him. If these averments were true (and their truth is conceded for the purposes of this case), the court was required to liberate him on taking certain oaths prescribed by the law, and entering into recognizance for his good behavior. But it is insisted that Milligan was a prisoner of war, and therefore excluded from the privileges of the statute. It is not easy to see how he can be treated as a prisoner of war when he lived in Indiana for the past twenty years, was arrested there, and had not been, during the late troubles, a resident of any of the states in rebellion. If in Indiana he conspired with bad men to assist the enemy, he is punishable for it in the courts of Indiana; but, when tried for the offence, he cannot plead the rights of war, for he was not engaged in legal acts of hostility against the government, and only such persons, when captured, are prisoners of war. If he cannot enjoy the immunities attaching to the character of a prisoner of war, how can he be subject to their pains and penalties? This case, as well as the kindred cases of Bowles and Horsey, were disposed of at the last term, and the proper orders were entered of record. There is therefore no additional entry required. Page 71 U. S. 132 [ Footnote 1 ] 1 Stat at Large 81. [ Footnote 2 ] 12 id. 755. [ Footnote 3 ] 13 Stat. at Large 734. [ Footnote 4 ] 2 Stat. at Large 159. [ Footnote 5 ] 8 U. S. 4 Cranch 75. [ Footnote 6 ] Page 28 U. S. 193 . [ Footnote 7 ] 19 U. S. 6 Wheaton 542. [ Footnote 8 ] 27 U. S. 2 Peters 449. [ Footnote 9 ] 19 U. S. 6 Wheaton 264. [ Footnote 10 ] 39 U. S. 14 Peters 540. [ Footnote 11 ] Pages 257 and 234. The CHIEF JUSTICE delivered the following opinion. Four members of the court, concurring with their brethren in the order heretofore made in this cause, but unable to concur in some important particulars with the opinion which has just been read, think it their duty to make a separate statement of their views of the whole case. We do not doubt that the Circuit Court for the District of Indiana had jurisdiction of the petition of Milligan for the writ of habeas corpus. Whether this court has jurisdiction upon the certificate of division admits of more question. The construction of the act authorizing such certificates, which has hitherto prevailed here, denies jurisdiction in cases where the certificate brings up the whole cause before the court. But none of the adjudicated cases is exactly in point, and we are willing to resolve whatever doubt may exist in favor of the earliest possible answers to questions involving life and liberty. We agree, therefore, that this court may properly answer questions certified in such a case as that before us. The crimes with which Milligan was charged were of the gravest character, and the petition and exhibits in the record, which must here be taken as true, admit his guilt. But whatever his desert of punishment may be, it is more important to the country and to every citizen that he should not be punished under an illegal sentence, sanctioned by this court of last resort, than that he should be punished at all. The laws which protect the liberties of the whole people must not be violated or set aside in order to inflict, even upon the guilty, unauthorized though merited justice. The trial and sentence of Milligan were by military commission convened in Indiana during the fall of 1864. The action of the commission had been under consideration by President Lincoln for some time when he himself became the victim of an abhorred conspiracy. It was approved by his successor in May, 1865, and the sentence was ordered to be carried into execution. The proceedings therefore had the fullest sanction of the executive department of the government. Page 71 U. S. 133 This sanction requires the most respectful and the most careful consideration of this court. The sentence which it supports must not be set aside except upon the clearest conviction that it cannot be reconciled with the Constitution and the constitutional legislation of Congress. We must inquire, then, what constitutional or statutory provisions have relation to this military proceeding. The act of Congress of March 3d, 1863, comprises all the legislation which seems to require consideration in this connection. The constitutionality of this act has not been questioned and is not doubted. The first section authorized the suspension, during the Rebellion, of the writ of habeas corpus throughout the United States by the President. The two next sections limited this authority in important respects. The second section required that lists of all persons, being citizens of states in which the administration of the laws had continued unimpaired in the Federal courts, who were then held or might thereafter be held as prisoners of the United States, under the authority of the President, otherwise than as prisoners of war, should be furnished to the judges of the Circuit and District Courts. The lists transmitted to the judges were to contain the names of all persons, residing within their respective jurisdictions, charged with violation of national law. And it was required, in cases where the grand jury in attendance upon any of these courts should terminate its session without proceeding by indictment or otherwise against any prisoner named in the list, that the judge of the court should forthwith make an order that such prisoner, desiring a discharge, should be brought before him or the court to be discharged on entering into recognizance, if required, to keep the peace and for good behavior, or to appear, as the court might direct, to be further dealt with according to law. Every officer of the United States having custody of such prisoners was required to obey and execute the judge's order under penalty, for refusal or delay, of fine and imprisonment. The third section provided, in case lists of persons other Page 71 U. S. 134 than prisoners of war then held in confinement, or thereafter arrested, should not be furnished within twenty days after the passage of the act, or, in cases of subsequent arrest, within twenty days after the time of arrest, that any citizen, after the termination of a session of the grand jury without indictment or presentment, might, by petition alleging the facts and verified by oath, obtain the judge's order of discharge in favor of any person so imprisoned on the terms and conditions prescribed in the second section. It was made the duty of the District Attorney of the United States to attend examinations on petitions for discharge. It was under this act that Milligan petitioned the Circuit Court for the District of Indiana for discharge from imprisonment. The holding of the Circuit and District Courts of the United States in Indiana had been uninterrupted. The administration of the laws in the Federal courts had remained unimpaired. Milligan was imprisoned under the authority of the President, and was not a prisoner of war. No list of prisoners had been furnished to the judges, either of the District or Circuit Courts, as required by the law. A grand jury had attended the Circuit Courts of the Indiana district while Milligan was there imprisoned, and had closed its session without finding any indictment or presentment or otherwise proceeding against the prisoner. His case was thus brought within the precise letter and intent of the act of Congress, unless it can be said that Milligan was not imprisoned by authority of the President, and nothing of this sort was claimed in argument on the part of the government. It is clear upon this statement that the Circuit Court was bound to hear Milligan's petition for the writ of habeas corpus, called in the act an order to bring the prisoner before the judge or the court, and to issue the writ, or, in the language of the act, to make the order. The first question, therefore -- ought the writ to issue? -- must be answered in the affirmative. Page 71 U. S. 135 And it is equally clear that he was entitled to the discharge prayed for. It must be borne in mind that the prayer of the petition was not for an absolute discharge, but to be delivered from military custody and imprisonment, and if found probably guilty of any offence, to be turned over to the proper tribunal for inquiry and punishment, or, if not found thus probably guilty, to be discharged altogether. And the express terms of the act of Congress required this action of the court. The prisoner must be discharged on giving such recognizance as the court should require, not only for good behavior, but for appearance, as directed by the court, to answer and be further dealt with according to law. The first section of the act authorized the suspension of the writ of habeas corpus generally throughout the United States. The second and third sections limited this suspension, in certain cases, within states where the administration of justice by the Federal courts remained unimpaired. In these cases, the writ was still to issue, and, under it, the prisoner was entitled to his discharge by a circuit or district judge or court unless held to bail for appearance to answer charges. No other judge or court could make an order of discharge under the writ. Except under the circumstances pointed out by the act, neither circuit nor district judge or court could make such an order. But under those circumstances, the writ must be issued, and the relief from imprisonment directed by the act must be afforded. The commands of the act were positive, and left no discretion to court or judge. An affirmative answer must therefore be given to the second question, namely: ought Milligan to be discharged according to the prayer of the petition? That the third question, namely: had the military commission in Indiana, under the facts stated, jurisdiction to try and sentence Milligan? must be answered negatively is an unavoidable inference from affirmative answers to the other two. Page 71 U. S. 136 The military commission could not have jurisdiction to try and sentence Milligan if he could not be detained in prison under his original arrest or under sentence after the close of a session of the grand jury without indictment or other proceeding against him. Indeed, the act seems to have been framed on purpose to secure the trial of all offences of citizens by civil tribunals in states where these tribunals were not interrupted in the regular exercise of their functions. Under it, in such states, the privilege of the writ might be suspended. Any person regarded as dangerous to the public safety might be arrested and detained until after the session of a grand jury. Until after such session, no person arrested could have the benefit of the writ, and even then no such person could be discharged except on such terms, as to future appearance, as the court might impose. These provisions obviously contemplate no other trial or sentence than that of a civil court, and we could not assert the legality of a trial and sentence by a military commission, under the circumstances specified in the act and described in the petition, without disregarding the plain directions of Congress. We agree therefore that the first two questions certified must receive affirmative answers, and the last a negative. We do not doubt that the positive provisions of the act of Congress require such answers. We do not think it necessary to look beyond these provisions. In them, we find sufficient and controlling reasons for our conclusions. But the opinion which has just been read goes further, and, as we understand it, asserts not only that the military commission held in Indiana was not authorized by Congress, but that it was not in the power of Congress to authorize it, from which it may be thought to follow that Congress has no power to indemnify the officers who composed the commission against liability in civil courts for acting as members of it. We cannot agree to this. We agree in the proposition that no department of the Page 71 U. S. 137 government of the United States -- neither President, nor Congress, nor the Courts -- possesses any power not given by the Constitution. We assent fully to all that is said in the opinion of the inestimable value of the trial by jury, and of the other constitutional safeguards of civil liberty. And we concur also in what is said of the writ of habeas corpus and of its suspension, with two reservations: (1) that, in our judgment, when the writ is suspended, the Executive is authorized to arrest, as well as to detain, and (2) that there are cases in which, the privilege of the writ being suspended, trial and punishment by military commission, in states where civil courts are open, may be authorized by Congress, as well as arrest and detention. We think that Congress had power, though not exercised, to authorize the military commission which was held in Indiana. We do not think it necessary to discuss at large the grounds of our conclusions. We will briefly indicate some of them. The Constitution itself provides for military government, as well as for civil government. And we do not understand it to be claimed that the civil safeguards of the Constitution have application in cases within the proper sphere of the former. What, then, is that proper sphere? Congress has power to raise and support armies, to provide and maintain a navy, to make rules for the government and regulation of the land and naval forces, and to provide for governing such part of the militia as may be in the service of the United States. It is not denied that the power to make rules for the government of the army and navy is a power to provide for trial and punishment by military courts without a jury. It has been so understood and exercised from the adoption of the Constitution to the present time. Nor, in our judgment, does the fifth, or any other amendment, abridge that power. "Cases arising in the land and naval forces, or in the militia in actual service in time of war Page 71 U. S. 138 or public danger," are expressly excepted from the fifth amendment, "that no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury," and it is admitted that the exception applies to the other amendments as well as to the fifth. Now we understand this exception to have the same import and effect as if the powers of Congress in relation to the government of the army and navy and the militia had been recited in the amendment, and cases within those powers had been expressly excepted from its operation. The states, most jealous of encroachments upon the liberties of the citizen, when proposing additional safeguards in the form of amendments, excluded specifically from their effect cases arising in the government of the land and naval forces. Thus, Massachusetts proposed that "no person shall be tried for any crime by which he would incur an infamous punishment or loss of life until he be first indicted by a grand jury except in such cases as may arise in the government and regulation of the land forces." The exception in similar amendments proposed by New York, Maryland, and Virginia was in the same or equivalent terms. The amendments proposed by the states were considered by the first Congress, and such as were approved in substance were put in form and proposed by that body to the states. Among those thus proposed and subsequently ratified was that which now stands as the fifth amendment of the Constitution. We cannot doubt that this amendment was intended to have the same force and effect as the amendment proposed by the states. We cannot agree to a construction which will impose on the exception in the fifth amendment a sense other than that obviously indicated by action of the state conventions. We think, therefore, that the power of Congress in the government of the land and naval forces and of the militia is not at all affected by the fifth or any other amendment. It is not necessary to attempt any precise definition of the boundaries of this power. But may it not be said that government Page 71 U. S. 139 includes protection and defence, as well as the regulation of internal administration? And is it impossible to imagine cases in which citizens conspiring or attempting the destruction or great injury of the national forces may be subjected by Congress to military trial and punishment in the just exercise of this undoubted constitutional power? Congress is but the agent of the nation, and does not the security of individuals against the abuse of this, as of every other, power depend on the intelligence and virtue of the people, on their zeal for public and private liberty, upon official responsibility secured by law, and upon the frequency of elections, rather than upon doubtful constructions of legislative powers? But we do not put our opinion that Congress might authorize such a military commission as was held in Indiana upon the power to provide for the government of the national forces. Congress has the power not only to raise and support and govern armies, but to declare war. It has therefore the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President as commander-in-chief. Both these powers are derived from the Constitution, but neither is defined by that instrument. Their extent must be determined by their nature and by the principles of our institutions. The power to make the necessary laws is in Congress, the power to execute in the President. Both powers imply many subordinate and auxiliary powers. Each includes all authorities essential to its due exercise. But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President. Both are servants of the people, whose will is expressed in the fundamental law. Congress cannot direct the conduct of campaigns, nor can the President, Page 71 U. S. 140 or any commander under him, without the sanction of Congress, institute tribunals for the trial and punishment of offences, either of soldiers or civilians, unless in cases of a controlling necessity, which justifies what it compels, or at least insures acts of indemnity from the justice of the legislature. We by no means assert that Congress can establish and apply the laws of war where no war has been declared or exists. Where peace exists, the laws of peace must prevail. What we do maintain is that, when the nation is involved in war, and some portions of the country are invaded, and all are exposed to invasion, it is within the power of Congress to determine in what states or district such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes and offences against the discipline or security of the army or against the public safety. In Indiana, for example, at the time of the arrest of Milligan and his co-conspirators, it is established by the papers in the record, that the state was a military district, was the theatre of military operations, had been actually invaded, and was constantly threatened with invasion. It appears also that a powerful secret association, composed of citizens and others, existed within the state, under military organization, conspiring against the draft and plotting insurrection, the liberation of the prisoners of war at various depots, the seizure of the state and national arsenals, armed cooperation with the enemy, and war against the national government. We cannot doubt that, in such a time of public danger, Congress had power under the Constitution to provide for the organization of a military commission and for trial by that commission of persons engaged in this conspiracy. The fact that the Federal courts were open was regarded by Congress as a sufficient reason for not exercising the power, but that fact could not deprive Congress of the right to exercise it. Those courts might be open and undisturbed in the execution Page 71 U. S. 141 of their functions, and yet wholly incompetent to avert threatened danger or to punish, with adequate promptitude and certainty, the guilty conspirators. In Indiana, the judges and officers of the courts were loyal to the government. But it might have been otherwise. In times of rebellion and civil war, it may often happen, indeed, that judges and marshals will be in active sympathy with the rebels, and courts their most efficient allies. We have confined ourselves to the question of power. It was for Congress to determine the question of expediency. And Congress did determine it. That body did not see fit to authorize trials by military commission in Indiana, but, by the strongest implication, prohibited them. With that prohibition we are satisfied, and should have remained silent if the answers to the questions certified had been put on that ground, without denial of the existence of a power which we believe to be constitutional and important to the public safety -- a denial which, as we have already suggested, seems to draw in question the power of Congress to protect from prosecution the members of military commissions who acted in obedience to their superior officers and whose action, whether warranted by law or not, was approved by that upright and patriotic President under whose administration the Republic was rescued from threatened destruction. We have thus far said little of martial law, nor do we propose to say much. What we have already said sufficiently indicates our opinion that there is no law for the government of the citizens, the armies or the navy of the United States, within American jurisdiction, which is not contained in or derived from the Constitution. And wherever our army or navy may go beyond our territorial limits, neither can go beyond the authority of the President or the legislation of Congress. There are under the Constitution three kinds of military jurisdiction: one to be exercised both in peace and war, another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within states or districts occupied by rebels treated Page 71 U. S. 142 as belligerents, and a third to be exercised in time of invasion or insurrection within the limits of the United States or during rebellion within the limits of states maintaining adhesion to the National Government, when the public danger requires its exercise. The first of these may be called jurisdiction under MILITARY LAW, and is found in acts of Congress prescribing rules and articles of war or otherwise providing for the government of the national forces; the second may be distinguished as MILITARY GOVERNMENT, superseding, as far as may be deemed expedient, the local law and exercised by the military commander under the direction of the President, with the express or implied sanction of Congress, while the third may be denominated MARTIAL LAW PROPER, and is called into action by Congress, or temporarily, when the action of Congress cannot be invited, and, in the case of justifying or excusing peril, by the President in times of insurrection or invasion or of civil or foreign war, within districts or localities where ordinary law no longer adequately secures public safety and private rights. We think that the power of Congress, in such times and in such localities, to authorize trials for crimes against the security and safety of the national forces may be derived from its constitutional authority to raise and support armies and to declare war, if not from its constitutional authority to provide for governing the national forces. We have no apprehension that this power, under our American system of government, in which all official authority is derived from the people and exercised under direct responsibility to the people, is more likely to be abused than the power to regulate commerce or the power to borrow money. And we are unwilling to give our assent by silence to expressions of opinion which seem to us calculated, though not intended, to cripple the constitutional powers of the government, and to augment the public dangers in times of invasion and rebellion. Mr. Justice WAYNE, Mr. Justice SWAYNE, and Mr. Justice MILLER concur with me in these views.

In Ex Parte Milligan, the US Supreme Court ruled that military commissions have no jurisdiction to try civilians for crimes in areas where civilian courts are functioning properly. The Court asserted that the Constitution guarantees the right to a trial by jury during war and peace, and that military jurisdiction is only applicable in three scenarios: under military law, military government, and martial law proper. The power of Congress to authorize trials for crimes against national security stems from its authority to raise armies, declare war, and govern national forces. The Court emphasized that official authority in the American system is derived from the people and is subject to their direct responsibility.

Role of Courts

Cohens v. Virginia

https://supreme.justia.com/cases/federal/us/19/264/

U.S. Supreme Court Cohens v. Virginia, 19 U.S. 6 Wheat. 264 264 (1821) Cohens v. Virginia 19 U.S. (6 Wheat.) 264 Syllabus This Court has, constitutionally, appellate jurisdiction under the Judiciary Act of 1789, c. 20, § 25, from the final judgment or decree of the highest court of law or equity of a state, having jurisdiction of the subject matter of the suit, where is drawn in question the validity of a treaty, or statute of, or an authority exercised under, the United State, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under, any state, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of such, their validity; or of the constitution, or of treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege, or exemption specially set up or claimed, by either party under such clause of the constitution, treaty, statute, or commission. It is no objection to the exercise of this appellate jurisdiction that one of the parties is a state and the other a citizen of that state. The act of Congress of the 4th of May, 1812, entitled "an act further to amend the charter of the City of Washington," which provides, (§ 6) that the corporation of the city shall be empowered, for certain purposes, and under certain restrictions, to authorize the drawing of lotteries, does not extend to authorize the corporation to force the sale of the tickets in such lottery in states where such sale may be prohibited by the state laws. Page 19 U. S. 265 This was a writ of error to the Quarterly Session Court for the borough of Norfolk, in the State of Virginia, under the twenty-fifth section of the Judiciary Act of 1789, c. 20, it being the highest Court of law or equity of that State having jurisdiction of the case. "Pleas at the Court House of Norfolk borough, before the Mayor, Recorder, and Aldermen of the said borough, on Saturday, the second day of September, one thousand eight hundred and twenty, and in the forty-fifth year of the Commonwealth." "Be it remembered, that heretofore, to-wit, at a Quarterly Session Court, held the twenty-sixth day of June, one thousand eight hundred and twenty, the grand jury, duly summoned and impaneled for the said borough of Norfolk, and sworn and charged according to law, made a presentment in these words:" " We present P. J. and M. J. Cohen, for vending and selling two halves and four quarter lottery tickets of the National Lottery, to be drawn at Washington, to William H. Jennings, at their office at the corner of Maxwell's wharf, contrary to the act thus made and provided in that case, since January, 1820. On the information of William H. Jennings. " Page 19 U. S. 266 "Whereupon the regular process of law was awarded against the said defendants, to answer the said presentment, returnable to the next succeeding term, which was duly returned by the Sergeant of the borough of Norfolk -- 'Executed.'" And at another Quarterly Session Court, held for the said borough of Norfolk, the twenty-ninth day of August, one thousand eight hundred and twenty, came as well the attorney prosecuting for the Commonwealth in this Court as the defendants, by their attorney, and on the motion of the said attorney, leave is given by the Court to file an information against the defendants on the presentment aforesaid, which was accordingly filed, and is in these words: " Norfolk borough, to-wit: Be it remembered, that James Nimmo, attorney for the Commonwealth of Virginia, in the Court of the said borough of Norfolk, cometh into Court, in his proper person, and with leave of the Court, giveth the said Court to understand and be informed that, by an act of the General Assembly of the said Commonwealth of Virginia entitled, 'An act to reduce into one the several acts, and parts of acts to prevent unlawful gaming.' It is, among other things, enacted and declared, that no person or persons shall buy, or sell, within the said Commonwealth, any lottery, or part or share of a lottery ticket, except in such lottery or lotteries as may be authorized by the laws thereof, and the said James Nimmo, as attorney aforesaid, further giveth the Court to understand and be informed, that P. J. and M. J. Cohen, traders and partners, late of the parish of Elizabeth River, and Page 19 U. S. 267 borough of Norfolk aforesaid, being evil disposed persons, and totally regardless of the laws and statutes of the said Commonwealth, since the first day of January, in the year of our Lord one thousand eight hundred and twenty, that is to say, on the first day of June, in that year, and within the said Commonwealth of Virginia, to-wit, at the parish of Elizabeth River, in the said borough of Norfolk, and within the jurisdiction of this Court, did then and there unlawfully vend, sell, and deliver to a certain William H. Jennings, two half lottery tickets, and four quarter lottery tickets, of the National Lottery, to be drawn in the City of Washington, that being a lottery not authorized by the laws of this Commonwealth, to the evil example of all other persons, in the like case offending, and against the form of the act of the General Assembly, in that case made and provided." JAMES NIMMO, for the Commonwealth. "And at this same Quarterly Session Court, continued by adjournment, and held for the said borough of Norfolk, the second day of September, eighteen hundred and twenty, came, as well the attorney prosecuting for the Commonwealth, in this Court, as the defendants, by their attorney, and the said defendants, for plea, say, that they are not guilty in manner and form as in the information against them is alleged, and of this they put themselves upon the country, and the attorney for the Commonwealth doth the same; whereupon a case Page 19 U. S. 268 was agreed by them to be argued in lieu of a special verdict, and is in these words:" "Commonwealth against Cohens -- case agreed." "In this case, the following statement is admitted and agreed by the parties in lieu of a special verdict: that the defendants, on the first day of June, in the year of our Lord eighteen hundred and twenty, within the borough of Norfolk, in the Commonwealth of Virginia, sold to William H. Jennings a lottery ticket in the lottery called and denominated the National Lottery, to be drawn in the City of Washington, within the District of Columbia." "That the General Assembly of the State of Virginia enacted a statute, or act of Assembly, which went into operation on the first day of January, in the year of our Lord 1820, and which is still unrepealed, in the words following." " No person, in order to raise money for himself or another, shall, publicly or privately, put up a lottery to be drawn or adventured for, or any prize or thing to be raffled or played for, and whosoever shall offend herein shall forfeit the whole sum of money proposed to be raised by such lottery, raffling or playing, to be recovered by action of debt in the name of anyone who shall sue for the same, or by indictment or information in the name of the Commonwealth, in either case, for the use and benefit of the literary fund. Nor shall any person or persons buy or sell within this Commonwealth any lottery ticket, or part or share of a lottery ticket, except in such lottery or lotteries as may be authorized by the laws Page 19 U. S. 269 thereof; and any person or persons offending herein, shall forfeit and pay, for every such offence, the sum of one hundred dollars, to be recovered and appropriated in manner last aforesaid." "That the Congress of the United States enacted a statute on the third day of May, in the year of our Lord 1802, entitled, An Act, &c. in the words and figures following:" " An Act to incorporate the inhabitants of the City of Washington, in the District of Columbia." " Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That the inhabitants of the City of Washington be constituted a body politic and corporate, by the name of a Mayor and Council of the City of Washington, and by their corporate name may sue and be sued, implead and be impleaded, grant, receive, and do all other acts as natural persons, and may purchase and hold real, personal and mixed property, or dispose of the same for the benefit of the said city, and may have and use a city seal, which may be altered at pleasure. The City of Washington shall be divided into three divisions or wards, as now divided by the Levy Court for the county, for the purposes of assessment; but the number may be increased hereafter, as in the wisdom of the City Council shall seem most conducive to the general interest and convenience." " Sec. 2. And be it further enacted, That the Council of the City of Washington shall consist of twelve Page 19 U. S. 270 members, residents of the city, and upwards of twenty-five years of age, to be divided into two chambers; the first chamber to consist of seven members, and the second chamber of five members; the second chamber to be chosen from the whole number of councillors, elected by their joint ballot. The City Council to be elected annually by ballot, in a general ticket, by the free white male inhabitants of full age, who have resided twelve months in the city, and paid taxes therein the year preceding the elections being held: the justices of the county of Washington, resident in the city, or any three of them, to preside as judges of election, with such associates as the council may from time to time appoint." " Sec. 3. And be it further enacted, That the first election of members of the City Council, shall be held on the first Monday in June next, and in every year afterwards, at such place in each ward as the judges of the election may prescribe." " Sec. 4. And be it further enacted, That the polls shall be kept open from eight o'clock in the morning, till seven o'clock in the evening, and no longer, for the reception of ballots. On the closing of the poll, the judges shall close and seal their ballot boxes, and meet on the day following, in the presence of the Marshal of the District, on the first election, and the council afterwards, when the seals shall be broken, and the votes counted: within three days after such election, they shall give notice to the persons having the greatest number of legal votes, that they are duly elected, and shall make their return to the Mayor of the city. " Page 19 U. S. 271 " Sec. 5. And be it. further enacted, That the Mayor of the city shall be appointed annually by the President of the United States; he must be a citizen of the United States, and a resident of the city prior to his appointment." " Sec. 6. And be it further enacted, That the City Council shall hold their sessions in the City Hall, or until such building is erected, in such place as the Mayor may provide for that purpose, on the second Monday in June, in each year; but the Mayor may convene them oftener, if the public good require their deliberations; three fourths of the members of each Council, may be a quorum to do business, but a smaller number may adjourn from day to day: they may compel the attendance of absent members in such manner, and under such penalties, as they may, by ordinance, provide: they shall appoint their respective Presidents, who shall preside during their sessions, and shall vote on all questions where there is an equal division: they shall settle their rules of proceedings, appoint their own officers, regulate their respective fees, and remove them at pleasure: they shall judge of the elections, returns, and qualifications of their own members, and may, with the concurrence of three-fourths of the whole, expel any member for disorderly behaviour, or malconduct in office, but not a second time for the same offence: they shall keep a journal of their proceedings, and enter the yeas and nays on any question, resolve or ordinance, at the request of any member, and their deliberations shall be public. The Mayor shall appoint to all offices under the Corporation. All ordinances Page 19 U. S. 272 or acts passed by the City Council, shall be sent to the Mayor for his approbation, and when approved by him, shall then be obligatory as such. But, if the said Mayor shall not approve of such ordinance or act, he shall return the same within five days, with his reasons in writing therefor; and if three-fourths of both branches of the City Council, on reconsideration thereof, approve of the same, it shall be in force in like manner as if he had approved it, unless the City Council, by their adjournment, prevent its return." " Sec. 7. And be it further enacted, That the Corporation aforesaid shall have full power and authority to pass all by-laws and ordinances to prevent and remove nuisances; to prevent the introduction of contagious diseases within the City; to establish night watches or patrols, and erect lamps; to regulate the stationing, anchorage, and mooring of vessels; to provide for licensing and regulating auctions, retailers of liquors, hackney carriages, waggons, carts and drays, and pawn-brokers within the city; to restrain or prohibit gambling, and to provide for licensing, regulating, or restraining theatrical or other public amusements within the City; to regulate and establish markets; to erect and repair bridges; to keep in repair all necessary streets, avenues, drains and sewers, and to pass regulations necessary for the preservation of the same, agreeably to the plan of the said City; to provide for the safe keeping of the standard of weights and measures fixed by Congress, and for the regulation of all weights and measures used in the City; to provide Page 19 U. S. 273 for the licensing and regulating the sweeping of chimneys, and fixing the rates thereof; to establish and regulate fire wards and fire companies; to regulate and establish the size of bricks that are to be made and used in the City; to sink wells, and erect and repair pumps in the streets; to impose and appropriate fines, penalties and forfeitures for breach of their ordinances; to lay and collect taxes; to enact by-laws for the prevention and extinguishment of fires; and to pass all ordinances necessary to give effect and operation to all the powers vested in the Corporation of the City of Washington: Provided, That the by-laws, or ordinances of the said Corporation, shall be in no wise obligatory upon the persons of nonresidents of the said City, unless in cases of intentional violation of the by-laws or ordinances previously promulgated. All the fines, penalties and forfeitures imposed by the Corporation of the City of Washington, if not exceeding twenty dollars, shall be recovered before a single magistrate, as small debts are by law recoverable; and if such fines, penalties and forfeitures, exceed the sum of twenty dollars, the same shall be recovered by action of debt, in the District Court of Columbia, for the County of Washington, in the name of the Corporation, and for the use of the City of Washington." " Sec. 8. And be it further enacted, That the person or persons appointed to collect any tax imposed in virtue of the powers granted by this Act shall have authority to collect the same by distress and sale of the goods and chattels of the person chargeable therewith; no sale shall be made unless ten days' Page 19 U. S. 274 previous notice thereof be given: no law shall be passed by the City Council subjecting vacant or unimproved city lots, or parts of lots, to be sold for taxes." " Sec. 9. And be it further enacted, That the City Council shall provide for the support of the poor, infirm and diseased of the City." " Sec. 10. Provided always, and be it further enacted, That no tax shall be imposed by the City Council on real property in the said City, at any higher rate than three quarters of one per centum on the assessment valuation of such property." " Sec. 11. And be it further enacted, That this Act shall be in force for two years from the passing thereof, and from thence to the end of the next session of Congress thereafter, and no longer." "And another act, on the 23d day of February, 1804, entitled 'An Act supplementary to an Act, entitled, an Act to incorporate the inhabitants of the City of Washington, in the District of Columbia.'" " Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That the Act, entitled, an Act to incorporate the inhabitants of the City of Washington, in the District of Columbia, except so much of the same as is consistent with the provisions of this Act, be, and the same is hereby continued in force, for and during the term of fifteen years from the end of the next session of Congress." " Sec. 2. And be it further enacted, That the Council of the City of Washington, from and after the Page 19 U. S. 275 period for which the members of the present Council have been elected, shall consist of two chambers, each of which shall be composed of nine members, to be chosen by distinct ballots, according to the directions of the Act to which this is a supplement; a majority of each chamber shall constitute a quorum to do business. In case vacancies shall occur in the Council, the chamber in which the same may happen shall supply the same by an election by ballot from the three persons next highest on the list to those elected at the preceding election, and a majority of the whole number of the chamber in which such vacancy may happen, shall be necessary to make an election." " Sec. 3. And be it further enacted, That the Council shall have power to establish and regulate the inspection of flour, tobacco, and salted provisions, the gauging of casks and liquors, the storage of gunpowder, and all naval and military stores, not the property of the United States, to regulate the weight and quality of bread, to tax and license hawkers and peddlers, to restrain or prohibit tippling houses, lotteries, and all kinds of gaming, to superintend the health of the City, to preserve the navigation of the Potomac and Anacostia rivers adjoining the City, to erect, repair, and regulate public wharves, and to deepen docks and basins, to provide for the establishment and superintendence of public schools, to license and regulate, exclusively, hackney coaches, ordinary keepers, retailers and ferries, to provide for the appointment of inspectors, constables, and such other officers as may be necessary to execute the Page 19 U. S. 276 laws of the Corporation, and to give such compensation to the Mayor of the City as they may deem fit." " Sec. 4. And be it further enacted, That the Levy Court of the county of Washington shall not hereafter possess the power of imposing any tax on the inhabitants of the City of Washington." "That the Congress of the United States, on the 4th day of May, in the year of our Lord 1812, enacted another statute, entitled, An Act further to amend the Charter of the City of Washington." " Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That from and after the first Monday in June next, the Corporation of the City of Washington shall be composed of a Mayor, a Board of Aldermen, and a Board of Common Council, to be elected by ballot, as hereafter directed; the Board of Aldermen shall consist of eight members, to be elected for two years, two to be residents of, and chosen from, each ward, by the qualified voters therein; and the Board of Common Council shall consist of twelve members, to be elected for one year, three to be residents of, and chosen from, each ward, in manner aforesaid: and each board shall meet at the Council Chamber on the second Monday in June next, (for the despatch of business) at ten o'clock in the morning, and on the same day, and at the same hour, annually, thereafter. A majority of each board shall be necessary to form a quorum to do business, but a less number may adjourn from day to day. The Board of Aldermen, immediately after they shall Page 19 U. S. 277 have assembled in consequence of the first election, shall divide themselves by lot into two classes; the seats of the first class shall be vacated at the expiration of one year, and the seats of the second class shall be vacated at the expiration of two years, so that one half may be chosen every year. Each board shall appoint its own President from among its own members, who shall preside during the sessions of the board, and shall have a casting vote on all questions where there is an equal division; provided such equality shall not have been occasioned by his previous vote." " Sec. 2. And be it further enacted, That no person shall be eligible to a seat in the Board of Aldermen or Board of Common Council, unless he shall be more than twenty-five years of age, a free white male citizen of the United States, and shall have been a resident of the City of Washington one whole year next preceding the day of the election; and shall, at the time of his election, be a resident of the ward for which he shall be elected, and possessed of a freehold estate in the said City of Washington, and shall have been assessed two months preceding the day of election. And every free white male citizen of lawful age, who shall have resided in the City of Washington for the space of one year next preceding the day of election, and shall be a resident of the ward in which he shall offer to vote, and who shall have been assessed on the books of the Corporation, not less than two months prior to the day of election, shall be qualified to vote for members to serve in the said Board of Aldermen and Board of Common Page 19 U. S. 278 Council, and no other person whatever shall exercise the right of suffrage at such election." " Sec. 3. And be it further enacted, That the present Mayor of the City of Washington shall be, and continue such, until the second Monday in June next, on which day, and on the second Monday in June annually thereafter, the Mayor of the said City shall be elected by ballot of the Board of Aldermen and Board of Common Council, in joint meeting, and a majority of the votes of all the members of both boards shall be necessary to a choice; and if there should be an equality of votes between two persons after the third ballot, the two houses shall determine by lot. He shall, before he enters upon the duties of his office, take an oath or affirmation in the presence of both boards, 'lawfully to execute the duties of his office to the best of his skill and judgment, without favour or partiality.' He shall, ex officio, have, and exercise all the powers, authority, and jurisdiction of a Justice of the Peace, for the County of Washington, within the said county. He shall nominate, and with the consent of a majority of the members of the Board of Aldermen, appoint to all offices under the Corporation (except the commissioners of elections), and every such officer shall be removed from office on the concurrent remonstrance of a majority of the two boards. He shall see that the laws of the Corporation be duly executed, and shall report the negligence or misconduct of any officer to the two boards. He shall appoint proper persons to fill up all vacancies during the recess of the Board of Aldermen, to hold such Page 19 U. S. 279 appointment until the end of the then ensuing session. He shall have power to convene the two Boards, when, in his opinion, the good of the community may require it, and he shall lay before them, from time to time, in writing, such alterations in the laws of the Corporation as he shall deem necessary and proper, and shall receive for his services annually, a just and reasonable compensation, to be allowed and fixed by the two boards, which shall neither be increased or diminished during the period for which he shall have been elected. Any person shall be eligible to the office of Mayor who is a free white male citizen of the United States, who shall have attained to the age of thirty years, and who shall be a bona fide owner of a freehold estate in the said City, and shall have been a resident in the said City two years immediately preceding his election, and no other person shall be eligible to the said office. In case of the refusal of any person to accept the office of Mayor, upon his election thereto, or of his death, resignation, inability or removal from the City, the said two boards shall elect another in his place, to serve the remainder of the year." " Sec. 4. And be it further enacted, That the first election for members of the Board of Aldermen, and Board of Common Council, shall be held on the first Monday in June next, and on the first Monday in June annually thereafter. The first election to be held by three commissioners to be appointed in each ward by the Mayor of the City, and at such place in each ward as he may direct; and all subsequent elections shall be held by a like number Page 19 U. S. 280 of Commissioners, to be appointed in each ward by the two boards, in joint meeting, which several appointments, except the first, shall be at least ten days previous to the day of each election. And it shall be the duty of the Mayor for the first election, and of the commissioners for all subsequent elections, to give at least five days public notice of the place in each ward where such elections are to be held. The said commissioners shall, before they receive any ballot, severally take the following oath or affirmation, to be administered by the Mayor of the City, or any Justice of the Peace for the county of Washington: 'I, A. B. do solemnly swear or affirm, (as the case may be) that I will truly and faithfully receive, and return the votes of such persons as are by law entitled to vote for members of the Board of Aldermen, and Board of Common Council, in ward No. ___, according to the best of my judgment and understanding, and that I will not, knowingly, receive or return the vote of any person who is not legally entitled to the same, so help me God.' The polls shall be opened at ten o'clock in the morning, and be closed at seven o'clock in the evening, of the same day. Immediately on closing the polls, the commissioners of each ward, or a majority of them, shall count the ballots, and make out under their hands and seals a correct return of the two persons for the first election, and of the one person for all subsequent elections, having the greatest number of legal votes, together with the number of votes given to each, as members of the Board of Aldermen: and of the three persons having the greatest number of legal Page 19 U. S. 281 votes, together with the number of votes given to each, as Members of the Board of Common Council. And the two persons at the first election, and the one person at all subsequent elections, having the greatest number of legal votes for the Board of Aldermen; and the three persons having the greatest number of legal votes for the Board of Common Council, shall be duly elected; and in all cases of an equality of votes, the commissioners shall decide by lot. The said returns shall be delivered to the Mayor of the City, on the succeeding day, who shall cause the same to be published in some newspaper printed in the city of Washington. A duplicate return, together with a list of the persons who voted at such election, shall also be made by the said commissioners, to the Register of the City, on the day succeeding the election, who shall preserve and record the same, and shall, within two days thereafter, notify the several persons so returned, of their election; and each board shall judge of the legality of the elections, returns and qualifications of its own members, and shall supply vacancies in its own body, by causing elections to be made to fill the same, in the ward, and for the Board in which such vacancies shall happen, giving at least five days notice previous thereto; and each Board shall have full power to pass all rules necessary and requisite to enable itself to come to a just decision in cases of a contested election of its own members: and the several members of each Board shall, before entering upon the duties of their office, take the following oath or affirmation: Page 19 U. S. 282 'I do swear (or solemnly, sincerely, and truly affirm and declare, as the case may be) that I will faithfully execute the office of to the best of my knowledge and ability,' which oath or affirmation shall be administered by the Mayor, or some Justice of the Peace, for the county of Washington." " Sec. 5. And be it further enacted, That in addition to the powers heretofore granted to the Corporation of the City of Washington, by an act, entitled, 'An Act to incorporate the inhabitants of the City of Washington, in the District of Columbia,' and an act, entitled, 'An Act, supplementary to an act, entitled, an act to incorporate the inhabitants of the City of Washington, in the District of Columbia,' the said Corporation shall have power to lay taxes on particular wards, parts, or sections of the City, for their particular local improvements." " That after providing for all objects of a general nature, the taxes raised on the assessable property in each ward, shall be expended therein, and in no other; in regulating, filling up and repairing of streets and avenues, building of bridges, sinking of wells, erecting pumps, and keeping them in repair; in conveying water in pumps, and in the preservation of springs; in erecting and repairing wharves; in providing fire engines and other apparatus for the extinction of fires, and for other local improvements and purposes, in such manner as the said Board of Aldermen and Board of Common Council shall provide; but the sums raised for the support of the poor, Page 19 U. S. 283 aged and infirm, shall be a charge on each ward in proportion to its population or taxation, as the two Boards shall decide. That whenever the proprietors of two-thirds of the inhabited houses, fronting on both sides of a street, or part of a street, shall by petition to the two branches, express the desire of improving the same, by laying the curbstone of the foot pavement, and paving the gutters or carriage way thereof, or otherwise improving said street, agreeably to its graduation, the said Corporation shall have power to cause to be done at any expense, not exceeding two dollars and fifty cents per front foot, of the lots fronting on such improved street or part of a street, and charge the same to the owners of the lots fronting on said street, or part of a street, in due proportion; and also on a like petition to provide for erecting lamps for lighting any street or part of a street, and to defray the expense thereof by a tax on the proprietors or inhabitants of such houses, in proportion to their rental or valuation, as the two Boards shall decide." " Sec. 6. And be it further enacted, That the said Corporation shall have full power and authority to erect and establish hospitals or pest houses, work houses, houses of correction, penitentiary, and other public buildings for the use of the City, and to lay and collect taxes for the defraying the expenses thereof; to regulate party and other fences, and to determine by whom the same shall be made and kept in repair; to lay open streets, avenues, lanes and alleys, and to regulate or prohibit all inclosures thereof, and to occupy and improve for public purposes, by Page 19 U. S. 284 and with the consent of the President of the United States, any part of the public and open spaces or squares in said city, not interfering with any private rights; to regulate the measurement of, and weight, by which all articles brought into the city for sale shall be disposed of; to provide for the appointment of appraisers, and measurers of builders' work and materials, and also of wood, coal, grain and lumber; to restrain and prohibit the nightly and other disorderly meetings of slaves, free negroes and mulattoes, and to punish such slaves by whipping, not exceeding forty stripes, or by imprisonment not exceeding six calendar months, for any one offence; and to punish such free negroes and mulattoes for such offences, by fixed penalties, not exceeding twenty dollars for any one offence; and in case of inability of any such free negro or mulatto to pay and satisfy and such penalty and costs thereon, to cause such free negro or mulatto to be confined to labour for such reasonable time, not exceeding six calendar months, for any one offence, as may be deemed equivalent to such penalty and costs; to cause all vagrants, idle or disorderly persons, all persons of evil life or ill fame, and all such as have no visible means of support, or are likely to become chargeable to the City as paupers, or are found begging or drunk in or about the streets, or loitering in or about tippling houses, or who can show no reasonable cause of business or employment in the City; and all suspicious persons, and all who have no fixed place of residence, or cannot give a good account of themselves, all eves-droppers and night walkers, all who Page 19 U. S. 285 are guilty of open profanity, or grossly indecent language or behaviour publicly in the streets, all public prostitutes, and such as lead a notoriously lewd or lascivious course of life, and all such as keep public gaming tables, or gaming houses, to give security for their good behaviour for a reasonable time, and to indemnify the City against any charge for their support, and in case of their refusal or inability to give such security, to cause them to be confined to labour for a limited time, not exceeding one year at a time, unless such security should be sooner given. But if they shall afterwards be found again offending, such security may be again required, and for want thereof, the like proceedings may again be had, from time to time, as often as may be necessary; to prescribe the terms and conditions upon which free negroes and mulattoes, and others who can show no visible means of support, may reside in the City; to cause the avenues, streets, lanes and alleys to be kept clean, and to appoint officers for that purpose. To authorize the drawing of lotteries for effecting any important improvement in the City, which the ordinary funds or revenue thereof will not accomplish. Provided, That the amount to be raised in each year, shall not exceed the sum of ten thousand dollars: And provided also, that the object for which the money is intended to be raised shall be first submitted to the President of the United States, and shall be approved of by him. To take care of, preserve and regulate the several burying grounds within the City; to provide for registering of births, deaths and marriages; to cause abstracts or minutes Page 19 U. S. 286 of all transfers of real property, both freehold and leasehold, to be lodged in the Registry of the City, at stated periods; to authorize night watches and patroles, and the taking up and confining by them, in the night time, of all suspected persons; to punish by law corporally any servant or slave guilty of a breach of any of their by-laws or ordinances, unless the owner or holder of such servant or slave shall pay the fine annexed to the offence; and to pass all laws which shall be deemed necessary and proper for carrying into execution the foregoing powers, and all other powers vested in the Corporation, or any of its officers, either by this act, or any former act." " Sec. 7. And be it further enacted, That the Marshal of the District of Columbia shall receive, and safely keep, within the jail for Washington county, at the expense of the City, all persons committed thereto under the sixth section of this act, until other arrangements be made by the Corporation for the confinement of offenders, within the provisions of the said section; and in all cases where suit shall be brought before a Justice of the Peace, for the recovery of any fine or penalty arising or incurred for a breach of any by-law or ordinance of the Corporation, upon a return of 'nulla bona' to any fieri facias issued against the property of the defendant or defendants, it shall be the duty of the Clerk of the Circuit Court for the County of Washington, when required, to issue a writ of capias ad satisfaciendum against every such defendant, returnable to the next Circuit Court for the County of Washington thereafter, Page 19 U. S. 287 and which shall be proceeded on as in other writs of the like kind." " Sec. 8. And be it further enacted, That unimproved lots in the City of Washington, on which two years taxes remain due and unpaid, or so much thereof as may be necessary to pay such taxes, may be sold at public sale for such taxes due thereon: Provided, that public notice be given of the time and place of sale, by advertising in some newspaper printed in the City of Washington, at least six months, where the property belongs to persons residing out of the United States; three months where the property belongs to persons residing in the United States, but without the limits of the District of Columbia; and six weeks where the property belongs to persons residing within the District of Columbia or City of Washington; in which notice shall be stated the number of the lot or lots, the number of the square or squares, the name of the person or persons to whom the same may have been assessed, and also the amount of taxes due thereon: And provided, also, that the purchaser shall not be obliged to pay at the time of such sale, more than the taxes due, and the expenses of sale; and that, if within two years from the day of such sale, the proprietor or proprietors of such lot or lots, or his or their heirs, representatives, or agents, shall repay to such purchaser the moneys paid for the taxes and expenses as aforesaid, together with ten per centum per annum as interest thereon, or make a tender of the same, he shall be reinstated in his original right and title; but if no such payment or tender be made Page 19 U. S. 288 within two years next after the said sale, then the purchaser shall pay the balance of the purchase money of such lot or lots into the City Treasury, where it shall remain subject to the order of the original proprietor or proprietors, his or their heirs, or legal representatives; and the purchaser shall receive a title in fee simple to the said lot or lots, under the hand of the Mayor, and seal of the Corporation, which shall be deemed good and valid in law and equity." " Sec. 9. And be it further enacted, That the said Corporation shall, in future, be named and styled, 'The Mayor, Aldermen, and Common Council of the City of Washington;' and that if there shall have been a non-election or informality of a City Council, on the first Monday in June last, it shall not be taken, construed, or adjudged, in any manner, to have operated as a dissolution of the said Corporation, or to affect any of its rights, privileges, or laws passed previous to the second Monday in June last, but the same are hereby declared to exist in full force." " Sec. 10. And be it further enacted, That the Corporation shall, from time to time, cause the several wards of the City to be so located, as to give, as nearly as may be, an equal number of votes to each ward; and it shall be the duty of the Register of the City, or such officer as the Corporation may hereafter appoint, to furnish the commissioners of election for each ward, on the first Monday in June, annually, previous to the opening of the polls, a list of the persons having a right to vote, agreeably to the provisions of the second section of this act. " Page 19 U. S. 289 " Sec. 11. And be it further enacted, That so much of any former act as shall be repugnant to the provisions of this act, be, and the same is hereby repealed." "Which statutes are still in force and unrepealed. That the lottery, denominated the National Lottery, before mentioned, the ticket of which was sold by the defendants as aforesaid, was duly created by the said Corporation of Washington, and the drawing thereof, and the sale of the said ticket, was duly authorized by the said Corporation, for the objects and purposes, and in the mode directed by the said statute of the Congress of the United States. If, upon this case, the Court shall be of opinion, that the acts of Congress before mentioned were valid, and on the true construction of these acts, the lottery ticket sold by the said defendants as aforesaid, might lawfully be sold within the State of Virginia, notwithstanding the act or statute of the General Assembly of Virginia prohibiting such sale, then judgment to be entered for the defendants. But if the Court should be of opinion, that the statute or act of the General Assembly of the State of Virginia, prohibiting such sale, is valid, notwithstanding the said acts of Congress, then judgment to be entered, that the defendants are guilty, and that the Commonwealth recover against them one hundred dollars and costs." "TAYLOR, for defendants." "And thereupon the matters of law arising upon the said case agreed being argued, it seems to the Court here, that the law is for the Commonwealth, and Page 19 U. S. 290 that the defendants are guilty in manner and form, as in the information against them is alleged, and they do assess their fine to one hundred dollars besides the costs. Therefore, it is considered by the Court, that the Commonwealth recover against the said defendants, to the use of the President and Directors of the Literary Fund, one hundred dollars, the fine by the Court aforesaid, in manner aforesaid assessed, and the costs of this prosecution; and the said defendants may be taken, &c." From which judgment the defendants, by their counsel, prayed an appeal to the next Superior Court of law of Norfolk county, which was refused by the Court, inasmuch as cases of this sort are not subject to revision by any other Court of the Commonwealth. Commonwealth's costs, $31 50 cents. Page 19 U. S. 375 MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court. This is a writ of error to a judgment rendered in the Court of Hustings for the borough of Norfolk, on an information for selling lottery tickets, contrary to an act of the Legislature of Virginia. In the State court, the defendant claimed the protection of an act of Congress. A case was agreed between the parties, which states the act of Assembly on which the prosecution was founded and the act of Congress on which the defendant relied, and concludes in these words: "If, upon this case, the Court shall be of opinion that the acts of Congress before mentioned were valid, and, on the true construction of those acts, the lottery tickets sold by the defendants as aforesaid, might lawfully be sold within the State of Virginia, notwithstanding the act or statute of the general assembly of Virginia prohibiting such sale, then judgment to be entered for the defendants; and if the Court should be of opinion that the statute or act of the General Assembly of the State of Virginia, prohibiting such sale, is valid, notwithstanding the said acts of Congress, then judgment to be entered that the defendants are guilty, and that the Commonwealth recover against them one hundred dollars and costs. " Page 19 U. S. 376 Judgment was rendered against the defendants; and the Court in which it was rendered being the highest Court of the State in which the cause was cognizable, the record has been brought into this Court by writ of error. * The defendant in error moves to dismiss this writ, for want of jurisdiction. In support of this motion, three points have been made, and argued with the ability which the importance of the question merits. These points are: 1st. That a State is a defendant. 2d. That no writ of error lies from this Court to a State court. 3d. The third point has been presented in different forms by the gentlemen who have argued it. The counsel who opened the cause said that the want of jurisdiction was shown by the subject matter of the case. The counsel who followed him said that jurisdiction was not given by the Judiciary Act. The Court has bestowed all its attention on the arguments of both gentlemen, and supposes that their tendency is to show that this Court has no jurisdiction of the case, or, in other words, has no right to review the judgment of the State court, because neither the Constitution nor any law of the United States has been violated by that judgment. The questions presented to the Court by the two first Page 19 U. S. 377 points made at the bar are of great magnitude, and may be truly said vitally to affect the Union. They exclude the inquiry whether the Constitution and laws of the United States have been violated by the judgment which the plaintiffs in error seek to review; and maintain that, admitting such violation, it is not in the power of the government to apply a corrective. They maintain that the nation does not possess a department capable of restraining peaceably, and by authority of law, any attempts which may be made, by a part, against the legitimate powers of the whole, and that the government is reduced to the alternative of submitting to such attempts or of resisting them by force. They maintain that the Constitution of the United States has provided no tribunal for the final construction of itself, or of the laws or treaties of the nation, but that this power may be exercised in the last resort by the Courts of every State in the Union. That the Constitution, laws, and treaties may receive as many constructions as there are States; and that this is not a mischief, or, if a mischief, is irremediable. These abstract propositions are to be determined, for he who demands decision without permitting inquiry affirms that the decision he asks does not depend on inquiry. If such be the Constitution, it is the duty of the Court to bow with respectful submission to its provisions. If such be not the Constitution, it is equally the duty of this Court to say so, and to perform that task which the American people have assigned to the judicial department. Page 19 U. S. 378 1st. The first question to be considered is whether the jurisdiction of this Court is excluded by the character of the parties, one of them being a State, and the other a citizen of that State? The second section of the third article of the Constitution defines the extent of the judicial power of the United States. Jurisdiction is given to the Courts of the Union in two classes of cases. In the first, their jurisdiction depends on the character of the cause, whoever may be the parties. This class comprehends "all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority." This clause extends the jurisdiction of the Court to all the cases described, without making in its terms any exception whatever, and without any regard to the condition of the party. If there by any exception, it is to be implied against the express words of the article. In the second class, the jurisdiction depends entirely on the character of the parties. In this are comprehended "controversies between two or more States, between a State and citizens of another State," "and between a State and foreign States, citizens or subjects." If these be the parties, it is entirely unimportant what may be the subject of controversy. Be it what it may, these parties have a constitutional right to come into the Courts of the Union. The counsel for the defendant in error have stated that the cases which arise under the Constitution must grow out of those provisions which are capable Page 19 U. S. 379 of self-execution, examples of which are to be found in the 2d section of the 4th article, and in the 10th section of the 1st article. A case which arises under a law of the United States must, we are likewise told, be a right given by some act which becomes necessary to execute the powers given in the Constitution, of which the law of naturalization is mentioned as an example. The use intended to be made of this exposition of the first part of the section, defining the extent of the judicial power, is not clearly understood. If the intention be merely to distinguish cases arising under the Constitution from those arising under a law, for the sake of precision in the application of this argument, these propositions will not be controverted. If it be to maintain that a case arising under the Constitution, or a law, must be one in which a party comes into Court to demand something conferred on him by the Constitution or a law, we think the construction too narrow. A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the Constitution or a law of the United States whenever its correct decision depends on the construction of either. Congress seems to have intended to give its own construction of this part of the Constitution in the twenty-fifth section of the Judiciary Act, and we perceive no reason to depart from that construction. The jurisdiction of the Court, then, being extended by the letter of the Constitution to all cases arising under it, or under the laws of the United States, it follows that those who would withdraw Page 19 U. S. 380 any case of this description from that jurisdiction, must sustain the exemption they claim on the spirit and true meaning of the Constitution, which spirit and true meaning must be so apparent as to overrule the words which its framers have employed. The counsel for the defendant in error have undertaken to do this, and have laid down the general proposition that a sovereign independent State is not suable except by its own consent. This general proposition will not be controverted. But its consent is not requisite in each particular case. It may be given in a general law. And if a State has surrendered any portion of its sovereignty, the question whether a liability to suit be a part of this portion depends on the instrument by which the surrender is made. If, upon a just construction of that instrument, it shall appear that the State has submitted to be sued, then it has parted with this sovereign right of judging in every case on the justice of its own pretensions, and has entrusted that power to a tribunal in whose impartiality it confides. The American States, as well as the American people, have believed a close and firm Union to be essential to their liberty and to their happiness. They have been taught by experience that this Union cannot exist without a government for the whole, and they have been taught by the same experience that this government would be a mere shadow, that must disappoint all their hopes, unless invested with large portions of that sovereignty which belongs to independent States. Under the influence of this opinion, and thus instructed by experience, Page 19 U. S. 381 the American people, in the conventions of their respective States, adopted the present Constitution. If it could be doubted whether, from its nature, it were not supreme in all cases where it is empowered to act, that doubt would be removed by the declaration that "this Constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby; any thing in the Constitution or laws of any State to the contrary notwithstanding." This is the authoritative language of the American people, and, if gentlemen please, of the American States. It marks, with lines too strong to be mistaken the characteristic distinction between the government of the Union and those of the States. The general government, though limited as to its objects, is supreme with respect to those objects. This principle is a part of the Constitution, and if there be any who deny its necessity, none can deny its authority. To this supreme government ample powers are confided, and if it were possible to doubt the great purposes for which they were so confided, the people of the United States have declared that they are given "in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to themselves and their posterity. " Page 19 U. S. 382 With the ample powers confided to this supreme government, for these interesting purposes are connected many express and important limitations on the sovereignty of the States which are made for the same purposes. The powers of the Union, on the great subjects of war, peace, and commerce, and on many others, are in themselves limitations of the sovereignty of the States; but, in addition to these, the sovereignty of the States is surrendered in many instances where the surrender can only operate to the benefit of the people, and where, perhaps, no other power is conferred on Congress than a conservative power to maintain the principles established in the Constitution. The maintenance of these principles in their purity is certainly among the great duties of the government. One of the instruments by which this duty may be peaceably performed is the judicial department. It is authorized to decide all cases of every description arising under the Constitution or laws of the United States. From this general grant of jurisdiction, no exception is made of those cases in which a State may be a party. When we consider the situation of the government of the Union and of a State in relation to each other; the nature of our Constitution; the subordination of the State governments to that Constitution; the great purpose for which jurisdiction over all cases arising under the Constitution and laws of the United States is confided to the judicial department; are we at liberty to insert in this general grant an exception of those cases in which a State may be a Page 19 U. S. 383 party? Will the spirit of the Constitution justify this attempt to control its words? We think it will not. We think a case arising under the Constitution or laws of the United States is cognizable in the Courts of the Union whoever may be the parties to that case. Had any doubt existed with respect to the just construction of this part of the section, that doubt would have been removed by the enumeration of those cases to which the jurisdiction of the federal Courts is extended in consequence of the character of the parties. In that enumeration, we find "controversies between two or more States, between a State and citizens of another State," "and between a State and foreign States, citizens, or subjects." On of the express objects, then, for which the judicial department was established is the decision of controversies between States, and between a State and individuals. The mere circumstance that a State is a party gives jurisdiction to the Court. How, then, can it be contended that the very same instrument, in the very same section, should be so construed as that this same circumstance should withdraw a case from the jurisdiction of the Court where the Constitution or laws of the United States are supposed to have been violated? The Constitution gave to every person having a claim upon a State a right to submit his case to the Court of the nation. However unimportant his claim might be, however little the community might be interested in its decision, the framers of our Constitution thought it necessary for the purposes of justice to provide a Page 19 U. S. 384 tribunal as superior to influence as possible in which that claim might be decided. Can it be imagined that the same persons considered a case involving the Constitution of our country and the majesty of the laws, questions in which every American citizen must be deeply interested, as withdrawn from this tribunal, because a State is a party? While weighing arguments drawn from the nature of government and from the general spirit of an instrument, and urged for the purpose of narrowing the construction which the words of that instrument seem to require, it is proper to place in the opposite scale those principles, drawn from the same sources, which go to sustain the words in their full operation and natural import. One of these, which has been pressed with great force by the counsel for the plaintiffs in error, is that the judicial power of every well constituted government must be coextensive with the legislative, and must be capable of deciding every judicial question which grows out of the Constitution and laws. If any proposition may be considered as a political axiom, this, we think, may be so considered. In reasoning upon it as an abstract question, there would, probably, exist no contrariety of opinion respecting it. Every argument proving the necessity of the department proves also the propriety of giving this extent to it. We do not mean to say that the jurisdiction of the Courts of the Union should be construed to be coextensive with the legislative merely because it is fit that it should be so; but we mean to say that this fitness furnishes an argument Page 19 U. S. 385 in construing the Constitution which ought never to be overlooked, and which is most especially entitled to consideration when we are inquiring whether the words of the instrument which purport to establish this principle shall be contracted for the purpose of destroying it. The mischievous consequences of the construction contended for on the part of Virginia are also entitled to great consideration. It would prostrate, it has been said, the government and its laws at the feet of every State in the Union. And would not this be its effect? What power of the government could be executed by its own means in any State disposed to resist its execution by a course of legislation? The laws must be executed by individuals acting within the several States. If these individuals may be exposed to penalties, and if the Courts of the Union cannot correct the judgments by which these penalties may be enforced, the course of the government may be at any time arrested by the will of one of its members. Each member will possess a veto on the will of the whole. The answer which has been given to this argument does not deny its truth, but insists that confidence is reposed, and may be safely reposed, in the State institutions, and that, if they shall ever become so insane or so wicked as to seek the destruction of the government, they may accomplish their object by refusing to perform the functions assigned to them. We readily concur with the counsel for the defendant Page 19 U. S. 386 in the declaration that the cases which have been put of direct legislative resistance for the purpose of opposing the acknowledged powers of the government are extreme cases, and in the hope that they will never occur, but we cannot help believing that a general conviction of the total incapacity of the government to protect itself and its laws in such cases would contribute in no inconsiderable degree to their occurrence. Let it be admitted that the cases which have been put are extreme and improbable, yet there are gradations of opposition to the laws, far short to those cases, which might have a baneful influence on the affairs of the nation. Different States may entertain different opinions on the true construction of the constitutional powers of Congress. We know that, at one time, the assumption of the debts contracted by the several States during the war of our revolution was deemed unconstitutional by some of them. We know, too, that, at other times, certain taxes imposed by Congress have been pronounced unconstitutional. Other laws have been questioned partially, while they were supported by the great majority of the American people. We have no assurance that we shall be less divided than we have been. States may legislate in conformity to their opinions, and may enforce those opinions by penalties. It would be hazarding too much to assert that the judicatures of the States will be exempt from the prejudices by which the legislatures and people are influenced, and will constitute perfectly impartial tribunals. In many States, the judges are dependent for office and Page 19 U. S. 387 for salary on the will of the legislature. The Constitution of the United States furnishes no security against the universal adoption of this principle. When we observe the importance which that Constitution attaches to the independence of judges, we are the less inclined to suppose that it can have intended to leave these constitutional questions to tribunals where this independence may not exist, in all cases where a State shall prosecute an individual who claims the protection of an act of Congress. These prosecutions may take place even without a legislative act. A person making a seizure under an act of Congress, may be indicted as a trespasser, if force has been employed, and of this a jury may judge. How extensive may be the mischief if the first decisions in such cases should be final! These collisions may take place in times of no extraordinary commotion. But a Constitution is framed for ages to come, and is designed to approach immortality as nearly as human institutions can approach it. Its course cannot always be tranquil. It is exposed to storms and tempests, and its framers must be unwise statesmen indeed if they have not provided it, as far as its nature will permit, with the means of self-preservation from the perils it may be destined to encounter. No government ought to be so defective in its organization as not to contain within itself the means of securing the execution of its own laws against other dangers than those which occur every day. Courts of justice are the means most usually employed, and it is reasonable to expect that a government should repose on its Page 19 U. S. 388 own Courts, rather than on others. There is certainly nothing in the circumstances under which our Constitution was formed, nothing in the history of the times, which would justify the opinion that the confidence reposed in the States was so implicit as to leave in them and their tribunals the power of resisting or defeating, in the form of law, the legitimate measures of the Union. The requisitions of Congress under the confederation were as constitutionally obligatory as the laws enacted by the present Congress. That they were habitually disregarded is a fact of universal notoriety. With the knowledge of this fact, and under its full pressure, a convention was assembled to change the system. Is it so improbable that they should confer on the judicial department the power of construing the Constitution and laws of the Union in every case, in the last resort, and of preserving them from all violation from every quarter, so far as judicial decisions can preserve them, that this improbability should essentially affect the construction of the new system? We are told, and we are truly told, that the great change which is to give efficacy to the present system is its ability to act on individuals directly, instead of acting through the instrumentality of State governments. But ought not this ability, in reason and sound policy, to be applied directly to the protection of individuals employed in the execution of the laws, as well as to their coercion. Your laws reach the individual without the aid of any other power; why may they not protect him from punishment for performing his duty in executing them? Page 19 U. S. 389 The counsel for Virginia endeavor to obviate the force of these arguments by saying that the dangers they suggest, if not imaginary, are inevitable; that the Constitution can make no provision against them; and that, therefore, in construing that instrument, they ought to be excluded from our consideration. This state of things, they say, cannot arise until there shall be a disposition so hostile to the present political system as to produce a determination to destroy it; and, when that determination shall be produced, its effects will not be restrained by parchment stipulations. The fate of the Constitution will not then depend on judicial decisions. But, should no appeal be made to force, the States can put an end to the government by refusing to act. They have only not to elect Senators, and it expires without a struggle. It is very true that, whenever hostility to the existing system shall become universal, it will be also irresistible. The people made the Constitution, and the people can unmake it. It is the creature of their will, and lives only by their will. But this supreme and irresistible power to make or to unmake resides only in the whole body of the people, not in any subdivision of them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated their power of repelling it. The acknowledged inability of the government, then, to sustain itself against the public will and, by force or otherwise, to control the whole nation, is no sound argument in support of its constitutional Page 19 U. S. 390 inability to preserve itself against a section of the nation acting in opposition to the general will. It is true that, if all the States, or a majority of them, refuse to elect Senators, the legislative powers of the Union will be suspended. But if any one State shall refuse to elect them, the Senate will not, on that account, be the less capable of performing all its functions. The argument founded on this fact would seem rather to prove the subordination of the parts to the whole than the complete independence of any one of them. The framers of the Constitution were, indeed, unable to make any provisions which should protect that instrument against a general combination of the States, or of the people, for its destruction; and, conscious of this inability, they have not made the attempt. But they were able to provide against the operation of measures adopted in any one State whose tendency might be to arrest the execution of the laws, and this it was the part of true wisdom to attempt. We think they have attempted it. It has been also urged as an additional objection to the jurisdiction of the Court that cases between a State and one of its own citizens do not come within the general scope of the Constitution, and were obviously never intended to be made cognizable in the federal Courts. The State tribunals might be suspected of partiality in cases between itself or its citizens and aliens, or the citizens of another State, but not in proceedings by a State against its own citizens. That jealousy which might exist in the first case could not exist in the last, and therefore the judicial power is not extended to the last. Page 19 U. S. 391 This is very true, so far as jurisdiction depends on the character of the parties; and the argument would have great force if urged to prove that this Court could not establish the demand of a citizen upon his State, but is not entitled to the same force when urged to prove that this Court cannot inquire whether the Constitution or laws of the United States protect a citizen from a prosecution instituted against him by a State. If jurisdiction depended entirely on the character of the parties, and was not given where the parties have not an original right to come into Court, that part of the 2d section of the 3d article which extends the judicial power to all cases arising under the Constitution and laws of the United States would be mere surplusage. It is to give jurisdiction where the character of the parties would not give it that this very important part of the clause was inserted. It may be true that the partiality of the State tribunals, in ordinary controversies between a State and its citizens, was not apprehended, and therefore the judicial power of the Union was not extended to such cases; but this was not the sole nor the greatest object for which this department was created. A more important, a much more interesting, object was the preservation of the Constitution and laws of the United States, so far as they can be preserved by judicial authority, and therefore the jurisdiction of the Courts of the Union was expressly extended to all cases arising under that Constitution and those laws. If the Constitution or laws may be violated by proceedings Page 19 U. S. 392 instituted by a State against its own citizens, and if that violation may be such as essentially to affect the Constitution and the laws, such as to arrest the progress of government in its constitutional course, why should these cases be excepted from that provision which expressly extends the judicial power of the Union to all cases arising under the Constitution and laws? After bestowing on this subject the most attentive consideration, the Court can perceive no reason founded on the character of the parties for introducing an exception which the Constitution has not made, and we think that the judicial power, as originally given, extends to all cases arising under the Constitution or a law of the United States, whoever may be the parties. It has been also contended that this jurisdiction, if given, is original, and cannot be exercised in the appellate form. The words of the Constitution are, "in all cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction." This distinction between original and appellate jurisdiction, excludes, we are told, in all cases, the exercise of the one where the other is given. The Constitution gives the Supreme Court original jurisdiction in certain enumerated cases, and gives it appellate jurisdiction in all others. Among those in which jurisdiction must be exercised in the appellate Page 19 U. S. 393 form are cases arising under the Constitution and laws of the United States. These provisions of the Constitution are equally obligatory, and are to be equally respected. If a State be a party, the jurisdiction of this Court is original; if the case arise under a Constitution or a law, the jurisdiction is appellate. But a case to which a State is a party may arise under the Constitution or a law of the United States. What rule is applicable to such a case? What, then, becomes the duty of the Court? Certainly, we think, so to construe the Constitution as to give effect to both provisions, as far as it is possible to reconcile them, and not to permit their seeming repugnancy to destroy each other. We must endeavor so to construe them as to preserve the true intent and meaning of the instrument. In one description of cases, the jurisdiction of the Court is founded entirely on the character of the parties, and the nature of the controversy is not contemplated by the Constitution. The character of the parties is everything, the nature of the case nothing. In the other description of cases, the jurisdiction is founded entirely on the character of the case, and the parties are not contemplated by the Constitution. In these, the nature of the case is everything, the character of the parties nothing. When, then, the Constitution declares the jurisdiction, in cases where a State shall be a party, to be original, and in all cases arising under the Constitution or a law, to be appellate -- the conclusion seems irresistible that its framers designed to include in the first class Page 19 U. S. 394 those cases in which jurisdiction is given because a State is a party, and to include in the second those in which jurisdiction is given because the case arises under the Constitution or a law. This reasonable construction is rendered necessary by other considerations. That the Constitution or a law of the United States is involved in a case, and makes a part of it, may appear in the progress of a cause in which the Courts of the Union, but for that circumstance, would have no jurisdiction, and which, of consequence, could not originate in the Supreme Court. In such a case, the jurisdiction can be exercised only in its appellate form. To deny its exercise in this form is to deny its existence, and would be to construe a clause dividing the power of the Supreme Court in such manner as in a considerable degree to defeat the power itself. All must perceive that this construction can be justified only where it is absolutely necessary. We do not think the article under consideration presents that necessity. It is observable that, in this distributive clause, no negative words are introduced. This observation is not made for the purpose of contending that the legislature may "apportion the judicial power between the Supreme and inferior Courts according to its will." That would be, as was said by this Court in the case of Marbury v. Madison, to render the distributive clause "mere surplusage," to make it "form without substance." This cannot, therefore, be the true construction of the article. Page 19 U. S. 395 But although the absence of negative words will not authorize the legislature to disregard the distribution of the power previously granted, their absence will justify a sound construction of the whole article so as to give every part its intended effect. It is admitted that "affirmative words are often, in their operation, negative of other objects than those affirmed," and that, where "a negative or exclusive sense must be given to them, or they have no operation at all," they must receive that negative or exclusive sense. But where they have full operation without it; where it would destroy some of the most important objects for which the power was created; then, we think, affirmative words ought not to be construed negatively. The Constitution declares that, in cases where a State is a party, the Supreme Court shall have original jurisdiction, but does not say that its appellate jurisdiction shall not be exercised in cases where, from their nature, appellate jurisdiction is given, whether a State be or be not a party. It may be conceded that, where the case is of such a nature as to admit of its originating in the Supreme Court, it ought to originate there, but where, from its nature, it cannot originate in that Court, these words ought not to be so construed as to require it. There are many cases in which it would be found extremely difficult, and subversive of the spirit of the Constitution, to maintain the construction that appellate jurisdiction cannot be exercised where one of the parties might sue or be sued in this Court. The Constitution defines the jurisdiction of the Page 19 U. S. 396 Supreme Court, but does not define that of the inferior Courts. Can it be affirmed that a State might not sue the citizen of another State in a Circuit Court? Should the Circuit Court decide for or against its jurisdiction, should it dismiss the suit or give judgment against the State, might not its decision be revised in the Supreme Court? The argument is that it could not; and the very clause which is urged to prove that the Circuit Court could give no judgment in the case is also urged to prove that its judgment is irreversible. A supervising Court, whose peculiar province it is to correct the errors of an inferior Court, has no power to correct a judgment given without jurisdiction because, in the same case, that supervising Court has original jurisdiction. Had negative words been employed, it would be difficult to give them this construction if they would admit of any other. But without negative words, this irrational construction can never be maintained. So, too, in the same clause, the jurisdiction of the Court is declared to be original "in cases affecting ambassadors, other public ministers, and consuls." There is, perhaps, no part of the article under consideration so much required by national policy as this, unless it be that part which extends the judicial power "to all cases arising under the Constitution, laws, and treaties of the United States." It has been generally held that the State courts have a concurrent jurisdiction with the federal Courts, in cases to which the judicial power is extended, unless the jurisdiction of the federal Courts be rendered exclusive Page 19 U. S. 397 by the words of the third article. If the words, "to all cases," give exclusive jurisdiction in cases affecting foreign ministers, they may also give exclusive jurisdiction, if such be the will of Congress, in cases arising under the Constitution, laws, and treaties of the United States. Now suppose an individual were to sue a foreign minister in a State court, and that Court were to maintain its jurisdiction and render judgment against the minister -- could it be contended that this Court would be incapable of revising such judgment, because the Constitution had given it original jurisdiction in the case? If this could be maintained, then a clause inserted for the purpose of excluding the jurisdiction of all other Courts than this in a particular case would have the effect of excluding the jurisdiction of this Court in that very case if the suit were to be brought in another Court and that Court were to assert jurisdiction. This tribunal, according to the argument which has been urged, could neither revise the judgment of such other Court nor suspend its proceedings, for a writ of prohibition, or any other similar writ, is in the nature of appellate process. Foreign consuls frequently assert, in our Prize Courts, the claims of their fellow subjects. These suits are maintained by them as consuls. The appellate power of this Court has been frequently exercised in such cases, and has never been questioned. It would be extremely mischievous to withhold its exercise. Yet the consul is a party on the record. The truth is that, where the words confer only appellate jurisdiction, original jurisdiction is most Page 19 U. S. 398 clearly not given; but where the words admit of appellate jurisdiction, the power to take cognizance of the suit originally does not necessarily negative the power to decide upon it on an appeal if it may originate in a different Court. It is, we think, apparent that to give this distributive clause the interpretation contended for, to give to its affirmative words a negative operation, in every possible case would, in some instances, defeat the obvious intention of the article. Such an interpretation would not consist with those rules which, from time immemorial, have guided Courts in their construction of instruments brought under their consideration. It must therefore be discarded. Every part of the article must be taken into view, and that construction adopted which will consist with its words and promote its general intention. The Court may imply a negative from affirmative words where the implication promotes, not where it defeats, the intention. If we apply this principle, the correctness of which we believe will not be controverted, to the distributive clause under consideration, the result, we think, would be this: the original jurisdiction of the Supreme Court, in cases where a State is a party, refers to those cases in which, according to the grant of power made in the preceding clause, jurisdiction might be exercised in consequence of the character of the party, and an original suit might be instituted in any of the federal Courts, not to those cases in which an original suit might not be Page 19 U. S. 399 instituted in a federal Court. Of the last description is every case between a State and its citizens, and perhaps every case in which a State is enforcing its penal laws. In such cases, therefore, the Supreme Court cannot take original jurisdiction. In every other case -- that is, in every case to which the judicial power extends and in which original jurisdiction is not expressly given -- that judicial power shall be exercised in the appellate, and only in the appellate, form. The original jurisdiction of this Court cannot be enlarged, but its appellate jurisdiction may be exercised in every case cognizable under the third article of the Constitution, in the federal Courts, in which original jurisdiction cannot be exercised; and the extent of this judicial power is to be measured not by giving the affirmative words of the distributive clause a negative operation in every possible case, but by giving their true meaning to the words which define its extent. The counsel for the defendant in error urge, in opposition to this rule of construction, some dicta of the Court in the case of Marbury v. Madison. It is a maxim not to be disregarded that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the Court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered Page 19 U. S. 400 in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated. In the case of Marbury v. Madison, the single question before the Court, so far as that case can be applied to this, was whether the legislature could give this Court original jurisdiction in a case in which the Constitution had clearly not given it, and in which no doubt respecting the construction of the article could possibly be raised. The Court decided, and we think very properly, that the legislature could not give original jurisdiction in such a case. But, in the reasoning of the Court in support of this decision, some expressions are used which go far beyond it. The counsel for Marbury had insisted on the unlimited discretion of the legislature in the apportionment of the judicial power, and it is against this argument that the reasoning of the Court is directed. They say that, if such had been the intention of the article, "it would certainly have been useless to proceed farther than to define the judicial power and the tribunals in which it should be vested." The Court says that such a construction would render the clause dividing the jurisdiction of the Court into original and appellate totally useless; that "affirmative words are often, in their operation, negative of other objects than those which are affirmed; and, in this case [in the case of Marbury v. Madison ], a negative or exclusive sense must be given to them or they have no operation at all." "It cannot be presumed," adds the Court, "that any clause in the Constitution is intended to be without Page 19 U. S. 401 effect, and therefore such a construction is inadmissible unless the words require it." The whole reasoning of the Court proceeds upon the idea that the affirmative words of the clause giving one sort of jurisdiction must imply a negative of any other sort of jurisdiction, because otherwise the words would be totally inoperative, and this reasoning is advanced in a case to which it was strictly applicable. If, in that case, original jurisdiction could have been exercised, the clause under consideration would have been entirely useless. Having such cases only in its view, the Court lays down a principle which is generally correct, in terms much broader than the decision, and not only much broader than the reasoning with which that decision is supported, but in some instances contradictory to its principle. The reasoning sustains the negative operation of the words in that case, because otherwise the clause would have no meaning whatever, and because such operation was necessary to give effect to the intention of the article. The effort now made is to apply the conclusion to which the Court was conducted by that reasoning in the particular case to one in which the words have their full operation when understood affirmatively, and in which the negative or exclusive sense is to be so used as to defeat some of the great objects of the article. To this construction the Court cannot give its assent. The general expressions in the case of Marbury v. Madison must be understood with the limitations which are given to them in this opinion -- limitations Page 19 U. S. 402 which in no degree affect the decision in that case or the tenor of its reasoning. The counsel who closed the argument put several cases for the purpose of illustration which he supposed to arise under the Constitution, and yet to be apparently without the jurisdiction of the Court. Were a State to lay a duty on exports, to collect the money and place it in her treasury, could the citizen who paid it, he asks, maintain a suit in this Court against such State to recover back the money? Perhaps not. Without, however, deciding such supposed case, we may say that it is entirely unlike that under consideration. The citizen who has paid his money to his State under a law that is void is in the same situation with every other person who has paid money by mistake. The law raises an assumpsit to return the money, and it is upon that assumpsit that the action is to be maintained. To refuse to comply with this assumpsit may be no more a violation of the Constitution than to refuse to comply with any other; and as the federal Courts never had jurisdiction over contracts between a State and its citizens, they may have none over this. But let us so vary the supposed case as to give it a real resemblance to that under consideration. Suppose a citizen to refuse to pay this export duty, and a suit to be instituted for the purpose of compelling him to pay it. He pleads the Constitution of the United States in bar of the action, notwithstanding which the Court gives judgment against him. This would be a case arising under Page 19 U. S. 403 the Constitution, and would be the very case now before the Court. We are also asked, if a State should confiscate property secured by a treaty, whether the individual could maintain an action for that property? If the property confiscated be debts, our own experience informs us that the remedy of the creditor against his debtor remains. If it be land, which is secured by a treaty, and afterwards confiscated by a State, the argument does not assume that this title, thus secured, could be extinguished by an act of confiscation. The injured party, therefore, has his remedy against the occupant of the land for that which the treaty secures to him, not against the State for money which is not secured to him. The case of a State which pays off its own debts with paper money no more resembles this than do those to which we have already adverted. The Courts have no jurisdiction over the contract. They cannot enforce it, nor judge of its violation. Let it be that the act discharging the debt is a mere nullity, and that it is still due. Yet the federal Courts have no cognizance of the case. But suppose a State to institute proceedings against an individual which depended on the validity of an act emitting bills of credit; suppose a State to prosecute one of its citizens for refusing paper money, who should plead the Constitution in bar of such prosecution. If his plea should be overruled, and judgment rendered against him, his case would resemble this; and, unless the jurisdiction of this Court might be exercised over it, the Constitution would Page 19 U. S. 404 be violated, and the injured party be unable to bring his case before that tribunal to which the people of the United States have assigned all such cases. It is most true that this Court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is to exercise our best judgment and conscientiously to perform our duty. In doing this on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the Constitution and laws of the United States. We find no exception to this grant, and we cannot insert one. To escape the operation of these comprehensive words, the counsel for the defendant has mentioned instances in which the Constitution might be violated without giving jurisdiction to this Court. These words, therefore, however universal in their expression, must, he contends, be limited and controlled in their construction by circumstances. One of these instances is the grant by a State of a patent of nobility. The Court, he says, cannot annul this grant. Page 19 U. S. 405 This may be very true, but by no means justifies the inference drawn from it. The article does not extend the judicial power to every violation of the Constitution which may possibly take place, but to "a case in law or equity" in which a right under such law is asserted in a Court of justice. If the question cannot be brought into a Court, then there is no case in law or equity, and no jurisdiction is given by the words of the article. But if, in any controversy depending in a Court, the cause should depend on the validity of such a law, that would be a case arising under the Constitution, to which the judicial power of the United States would extend. The same observation applies to the other instances with which the counsel who opened the cause has illustrated this argument. Although they show that there may be violations of the Constitution of which the Courts can take no cognizance, they do not show that an interpretation more restrictive than the words themselves import ought to be given to this article. They do not show that there can be "a case in law or equity," arising under the Constitution to which the judicial power does not extend. We think, then that, as the Constitution originally stood, the appellate jurisdiction of this Court, in all cases arising under the Constitution, laws, or treaties of the United States, was not arrested by the circumstance that a State was a party. This leads to a consideration of the Eleventh Amendment. It is in these words: "The judicial power of the United States shall not be construed to extend to any Page 19 U. S. 406 suit in law or equity commenced or prosecuted against one of the United States, by citizens of another State, or by citizens or subjects of any foreign State." It is a part of our history that, at the adoption of the Constitution, all the States were greatly indebted, and the apprehension that these debts might be prosecuted in the federal Courts formed a very serious objection to that instrument. Suits were instituted, and the Court maintained its jurisdiction. The alarm was general, and, to quiet the apprehensions that were so extensively entertained, this amendment was proposed in Congress and adopted by the State legislatures. That its motive was not to maintain the sovereignty of a State from the degradation supposed to attend a compulsory appearance before the tribunal of the nation may be inferred from the terms of the amendment. It does not comprehend controversies between two or more States, or between a State and a foreign State. The jurisdiction of the Court still extends to these cases, and in these a State may still be sued. We must ascribe the amendment, then, to some other cause than the dignity of a State. There is no difficulty in finding this cause. Those who were inhibited from commencing a suit against a State, or from prosecuting one which might be commenced before the adoption of the amendment, were persons who might probably be its creditors. There was not much reason to fear that foreign or sister States would be creditors to any considerable amount, and there was reason to retain the jurisdiction of the Court in those Page 19 U. S. 407 cases, because it might be essential to the preservation of peace. The amendment, therefore, extended to suits commenced or prosecuted by individuals, but not to those brought by States. The first impression made on the mind by this amendment is that it was intended for those cases, and for those only, in which some demand against a State is made by an individual in the Courts of the Union. If we consider the causes to which it is to be traced, we are conducted to the same conclusion. A general interest might well be felt in leaving to a State the full power of consulting its convenience in the adjustment of its debts or of other claims upon it, but no interest could be felt in so changing the relations between the whole and its parts as to strip the government of the means of protecting, by the instrumentality of its Courts, the Constitution and laws from active violation. The words of the amendment appear to the Court to justify and require this construction. The judicial power is not "to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State, &c." What is a suit? We understand it to be the prosecution, or pursuit, of some claim, demand, or request. In law language, it is the prosecution of some demand in a Court of justice. The remedy for every species of wrong is, says Judge Blackstone, "the being put in possession of that right whereof the party injured is deprived." "The instruments whereby this remedy is obtained are a diversity of suits and actions, which are defined by the Page 19 U. S. 408 Mirror to be 'the lawful demand of one's right.' Or, as Bracton and Fleta express it, in the words of Justinian, ' jus prosequendi in judicio quod alicui debetur. '" Blackstone then proceeds to describe every species of remedy by suit, and they are all cases were the party suing claims to obtain something to which he has a right. To commence a suit is to demand something by the institution of process in a Court of justice, and to prosecute the suit is, according to the common acceptation of language, to continue that demand. By a suit commenced by an individual against a State, we should understand process sued out by that individual against the State for the purpose of establishing some claim against it by the judgment of a Court, and the prosecution of that suit is its continuance. Whatever may be the stages of its progress, the actor is still the same. Suits had been commenced in the Supreme Court against some of the States before this amendment was introduced into Congress, and others might be commenced before it should be adopted by the State legislatures, and might be depending at the time of its adoption. The object of the amendment was not only to prevent the commencement of future suits, but to arrest the prosecution of those which might be commenced when this article should form a part of the Constitution. It therefore embraces both objects, and its meaning is that the judicial power shall not be construed to extend to any suit which may be commenced, or which, if already commenced, may be Page 19 U. S. 409 prosecuted against a State by the citizen of another State. If a suit, brought in one Court and carried by legal process to a supervising Court, be a continuation of the same suit, then this suit is not commenced nor prosecuted against a State. It is clearly in its commencement the suit of a State against an individual, which suit is transferred to this Court not for the purpose of asserting any claim against the State, but for the purpose of asserting a constitutional defence against a claim made by a State. A writ of error is defined to be a commission by which the judges of one Court are authorized to examine a record upon which a judgment was given in another Court, and, on such examination, to affirm or reverse the same according to law. If, says my Lord Coke, by the writ of error, the plaintiff may recover, or be restored to anything, it may be released by the name of an action. In Bacon's Abridgment, tit. Error, L., it is laid down that "where, by a writ of error, the plaintiff shall recover, or be restored to any personal thing, as debt, damage, or the like, a release of all actions personal is a good plea; and when land is to be recovered or restored in a writ of error, a release of actions real is a good bar; but where, by a writ of error, the plaintiff shall not be restored to any personal or real thing, a release of all actions, real or personal, is no bar." And for this we have the authority of Lord Coke, both in his Commentary on Littleton and in his Reports. A writ of error, then, is in the nature of a suit or action when it is to restore the party who obtains it to the possession of any thing which is withheld Page 19 U. S. 410 from him, not when its operation is entirely defensive. This rule will apply to writs of error from the Courts of the United States, as well as to those writs in England. Under the Judiciary Act, the effect of a writ of error is simply to bring the record into Court, and submit the judgment of the inferior tribunal to reexamination. It does not in any manner act upon the parties; it acts only on the record. It removes the record into the supervising tribunal. Where, then, a State obtains a judgment against an individual, and the Court, rendering such judgment, overrules a defence set up under the Constitution or laws of the United States, the transfer of this record into the Supreme Court, for the sole purpose of inquiring whether the judgment violates the Constitution or laws of the United States, can, with no propriety, we think, be denominated a suit commenced or prosecuted against the State whose judgment is so far reexamined. Nothing is demanded from the State. No claim against it of any description is asserted or prosecuted. The party is not to be restored to the possession of anything. Essentially, it is an appeal on a single point, and the defendant who appeals from a judgment rendered against him is never said to commence or prosecute a suit against the plaintiff who has obtained the judgment. The writ of error is given, rather than an appeal, because it is the more usual mode of removing suits at common law, and because, perhaps, it is more technically proper where a single point of law, and not the whole case, is to Page 19 U. S. 411 be reexamined. But an appeal might be given, and might be so regulated as to effect every purpose of a writ of error. The mode of removal is form, and not substance. Whether it be by writ of error or appeal, no claim is asserted, no demand is made by the original defendant; he only asserts the constitutional right to have his defence examined by that tribunal whose province it is to construe the Constitution and laws of the Union. The only part of the proceeding which is in any manner personal is the citation. And what is the citation? It is simply notice to the opposite party that the record is transferred into another Court, where he may appear, or decline to appear, as his judgment or inclination may determine. As the party who has obtained a judgment is out of Court, and may, therefore, not know that his cause is removed, common justice requires that notice of the fact should be given him. But this notice is not a suit, nor has it the effect of process. If the party does not choose to appear, he cannot be brought into Court, nor is his failure to appear considered as a default. Judgment cannot be given against him for his nonappearance, but the judgment is to be reexamined, and reversed or affirmed, in like manner as if the party had appeared and argued his cause. The point of view in which this writ of error, with its citation, has been considered uniformly in the Courts of the Union has been well illustrated by a reference to the course of this Court in suits instituted by the United States. The universally received opinion is that no suit can be commenced Page 19 U. S. 412 or prosecuted against the United States; that the Judiciary Act does not authorize such suits. Yet writs of error, accompanied with citations, have uniformly issued for the removal of judgments in favour of the United States into a superior Court, where they have, like those in favour of an individual, been reexamined, and affirmed or reversed. It has never been suggested that such writ of error was a suit against the United States, and, therefore, not within the jurisdiction of the appellate Court. It is, then, the opinion of the Court that the defendant who removes a judgment rendered against him by a State court into this Court for the purpose of reexamining the question whether that judgment be in violation of the Constitution or laws of the United States does not commence or prosecute a suit against the State, whatever may be its opinion where the effect of the writ may be to restore the party to the possession of a thing which he demands. But should we in this be mistaken, the error does not affect the case now before the Court. If this writ of error be a suit in the sense of the Eleventh Amendment, it is not a suit commenced or prosecuted "by a citizen of another State, or by a citizen or subject of any foreign State." It is not then within the Amendment, but is governed entirely by the Constitution as originally framed, and we have already seen that, in its origin, the judicial power was extended to all cases arising under the Constitution or laws of the United States, without respect to parties. Page 19 U. S. 413 2d. The second objection to the jurisdiction of the Court is that its appellate power cannot be exercised, in any case, over the judgment of a State court. This objection is sustained chiefly by arguments drawn from the supposed total separation of the judiciary of a State from that of the Union, and their entire independence of each other. The argument considers the federal judiciary as completely foreign to that of a State, and as being no more connected with it in any respect whatever than the court of a foreign State. If this hypothesis be just, the argument founded on it is equally so; but if the hypothesis be not supported by the Constitution, the argument fails with it. This hypothesis is not founded on any words in the Constitution which might seem to countenance it, but on the unreasonableness of giving a contrary construction to words which seem to require it, and on the incompatibility of the application of the appellate jurisdiction to the judgments of State courts with that constitutional relation which subsists between the government of the Union and the governments of those States which compose it. Let this unreasonableness, this total incompatibility, be examined. That the United States form, for many and for most important purposes, a single nation has not yet been denied. In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. In Page 19 U. S. 414 many other respects, the American people are one, and the government, which is alone capable of controlling and managing their interests in all these respects, is the government of the Union. It is their government, and in that character they have no other. America has chosen to be, in many respects, and to many purposes, a nation, and for all these purposes, her government is complete; to all these objects, it is competent. The people have declared that, in the exercise of all powers given for these objects, it is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory. The Constitution and laws of a State, so far as they are repugnant to the Constitution and laws of the United States, are absolutely void. These States are constituent parts of the United States. They are members of one great empire -- for some purposes sovereign, for some purposes subordinate. In a government so constituted, is it unreasonable that the judicial power should be competent to give efficacy to the constitutional laws of the legislature? That department can decide on the validity of the Constitution or law of a State, if it be repugnant to the Constitution or to a law of the United States. Is it unreasonable that it should also be empowered to decide on the judgment of a State tribunal enforcing such unconstitutional law? Is it so very unreasonable as to furnish a justification for controlling the words of the Constitution? We think it is not. We think that, in a government Page 19 U. S. 415 acknowledgedly supreme, with respect to objects of vital interest to the nation, there is nothing inconsistent with sound reason, nothing incompatible with the nature of government, in making all its departments supreme so far as respects those objects and so far as is necessary to their attainment. The exercise of the appellate power over those judgments of the State tribunals which may contravene the Constitution or laws of the United States is, we believe, essential to the attainment of those objects. The propriety of entrusting the construction of the Constitution, and laws made in pursuance thereof, to the judiciary of the Union has not, we believe, as yet, been drawn into question. It seems to be a corollary from this political axiom that the federal Courts should either possess exclusive jurisdiction in such cases, or a power to revise the judgment rendered in them, by the State tribunals. If the federal and State courts have concurrent jurisdiction in all cases arising under the Constitution, laws, and treaties of the United States, and if a case of this description brought in a State court cannot be removed before judgment, nor revised after judgment, then the construction of the Constitution, laws, and treaties of the United States is not confided particularly to their judicial department, but is confided equally to that department and to the State courts, however they may be constituted. "Thirteen independent Courts," says a very celebrated statesman (and we have now more than twenty such Courts) "of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government from Page 19 U. S. 416 which nothing but contradiction and confusion can proceed." Dismissing the unpleasant suggestion that any motives which may not be fairly avowed, or which ought not to exist, can ever influence a State or its Courts, the necessity of uniformity, as well as correctness in expounding the Constitution and laws of the United States, would itself suggest the propriety of vesting in some single tribunal the power of deciding, in the last resort, all cases in which they are involved. We are not restrained, then, by the political relations between the general and State governments from construing the words of the Constitution defining the judicial power in their true sense. We are not bound to construe them more restrictively than they naturally import. They give to the Supreme Court appellate jurisdiction in all cases arising under the Constitution, laws, and treaties of the United States. The words are broad enough to comprehend all cases of this description, in whatever Court they may be decided. In expounding them, we may be permitted to take into view those considerations to which Courts have always allowed great weight in the exposition of laws. The framers of the Constitution would naturally examine the state of things existing at the time, and their work sufficiently attests that they did so. All acknowledge that they were convened for the purpose of strengthening the confederation by enlarging the powers of the government, and by giving efficacy Page 19 U. S. 417 to those which it before possessed, but could not exercise. They inform us themselves, in the instrument they presented to the American public, that one of its objects was to form a more perfect union. Under such circumstances, we certainly should not expect to find, in that instrument, a diminution of the powers of the actual government. Previous to the adoption of the confederation, Congress established Courts which received appeals in prize causes decided in the Courts of the respective States. This power of the government to establish tribunals for these appeals was thought consistent with, and was founded on, its political relations with the States. These Courts did exercise appellate jurisdiction over those cases decided in the State courts to which the judicial power of the federal government extended. The confederation gave to Congress the power "of establishing Courts for receiving and determining finally appeals in all cases of captures." This power was uniformly construed to authorize those Courts to receive appeals from the sentences of State courts, and to affirm or reverse them. State tribunals are not mentioned, but this clause in the confederation necessarily comprises them. Yet the relation between the general and State governments was much weaker, much more lax, under the confederation than under the present Constitution, and the States being much more completely sovereign, their institutions were much more independent. The Convention which framed the Constitution, on Page 19 U. S. 418 turning their attention to the judicial power, found it limited to a few objects, but exercised, with respect to some of those objects, in its appellate form, over the judgments of the State courts. They extend it, among other objects, to all cases arising under the Constitution, laws, and treaties of the United States, and, in a subsequent clause, declare that, in such cases, the Supreme Court shall exercise appellate jurisdiction. Nothing seems to be given which would justify the withdrawal of a judgment rendered in a State court on the Constitution, laws, or treaties of the United States from this appellate jurisdiction. Great weight has always been attached, and very rightly attached, to contemporaneous exposition. No question, it is believed, has arisen to which this principle applies more unequivocally than to that now under consideration. The opinion of the Federalist has always been considered as of great authority. It is a complete commentary on our Constitution, and is appealed to by all parties in the questions to which that instrument has given birth. Its intrinsic merit entitles it to this high rank, and the part two of its authors performed in framing the Constitution put it very much in their power to explain the views with which it was framed. These essays having been published while the Constitution was before the nation for adoption or rejection, and having been written in answer to objections founded entirely on the extent of its powers, and on its diminution of State sovereignty, are entitled to the more consideration where they Page 19 U. S. 419 frankly avow that the power objected to is given, and defend it. In discussing the extent of the judicial power, the Federalist says, "Here another question occurs: what relation would subsist between the national and State courts in these instances of concurrent jurisdiction? I answer that an appeal would certainly lie from the latter to the Supreme Court of the United States. The Constitution in direct terms gives an appellate jurisdiction to the Supreme Court in all the enumerated cases of federal cognizance in which it is not to have an original one, without a single expression to confine its operation to the inferior federal Courts. The objects of appeal, not the tribunals from which it is to be made, are alone contemplated. From this circumstance, and from the reason of the thing, it ought to be construed to extend to the State tribunals. Either this must be the case or the local Courts must be excluded from a concurrent jurisdiction in matters of national concern, else the judicial authority of the Union may be eluded at the pleasure of every plaintiff or prosecutor. Neither of these consequences ought, without evident necessity, to be involved; the latter would be entirely inadmissible, as it would defeat some of the most important and avowed purposes of the proposed government, and would essentially embarrass its measures. Nor do I perceive any foundation for such a supposition. Agreeably to the remark already made, the national and State systems are to be regarded as ONE WHOLE. The Courts of the latter will, of course, be natural auxiliaries to the execution Page 19 U. S. 420 of the laws of the Union, and an appeal from them will as naturally lie to that tribunal which is destined to unite and assimilate the principles of natural justice, and the rules of national decision. The evident aim of the plan of the national convention is that all the causes of the specified classes shall, for weighty public reasons, receive their original or final determination in the Courts of the Union. To confine, therefore, the general expressions which give appellate jurisdiction to the Supreme Court to appeals from the subordinate federal Courts, instead of allowing their extension to the State courts, would be to abridge the latitude of the terms, in subversion of the intent, contrary to every sound rule of interpretation." A contemporaneous exposition of the Constitution, certainly of not less authority than that which has been just cited, is the Judiciary Act itself. We know that in the Congress which passed that Act were many eminent members of the Convention which formed the Constitution. Not a single individual, so far as is known, supposed that part of the Act which gives the Supreme Court appellate jurisdiction over the judgments of the State courts in the cases therein specified to be unauthorized by the Constitution. While on this part of the argument, it may be also material to observe that the uniform decisions of this Court on the point now under consideration have been assented to, with a single exception, by the Courts of every State in the Union whose judgments have been revised. It has been the unwelcome Page 19 U. S. 421 duty of this tribunal to reverse the judgments of many State courts in cases in which the strongest State feelings were engaged. Judges, whose talents and character would grace any bench, to whom a disposition to submit to jurisdiction that is usurped, or to surrender their legitimate powers, will certainly not be imputed, have yielded without hesitation to the authority by which their judgments were reversed, while they perhaps disapproved the judgment of reversal. This concurrence of statesmen, of legislators, and of judges, in the same construction of the Constitution may justly inspire some confidence in that construction. In opposition to it, the counsel who made this point has presented in a great variety of forms the idea, already noticed, that the federal and State courts must, of necessity and from the nature of the Constitution, be in all things totally distinct and independent of each other. If this Court can correct the errors of the Court of Virginia, he says, it makes them Courts of the United States, or becomes itself a part of the judiciary of Virginia. But it has been already shown that neither of these consequences necessarily follows. The American people may certainly give to a national tribunal a supervising power over those judgments of the State courts which may conflict with the Constitution, laws, or treaties, of the United States without converting them into federal Courts or converting the national into a State tribunal. The one Court Page 19 U. S. 422 still derives its authority from the State; the other still derives its authority from the nation. If it shall be established, he says that this Court has appellate jurisdiction over the State courts in all cases enumerated in the 3d article of the Constitution, a complete consolidation of the States, so far as respects judicial power is produced. But certainly the mind of the gentleman who urged this argument is too accurate not to perceive that he has carried it too far; that the premises by no means justify the conclusion. "A complete consolidation of the States, so far as respects the judicial power," would authorize the legislature to confer on the federal Courts appellate jurisdiction from the State courts in all cases whatsoever. The distinction between such a power and that of giving appellate jurisdiction in a few specified cases in the decision of which the nation takes an interest is too obvious not to be perceived by all. This opinion has been already drawn out to too great a length to admit of entering into a particular consideration of the various forms in which the counsel who made this point has, with much ingenuity, presented his argument to the Court. The argument in all its forms is essentially the same. It is founded not on the words of the Constitution, but on its spirit -- a spirit extracted not from the words of the instrument, but from his view of the nature of our Union and of the great fundamental principles on which the fabric stands. To this argument, in all its forms, the same answer may be given. Let the nature and objects of Page 19 U. S. 423 our Union be considered; let the great fundamental principles on which the fabric stands be examined; and we think the result must be that there is nothing so extravagantly absurd in giving to the Court of the nation the power of revising the decisions of local tribunals on questions which affect the nation as to require that words which import this power should be restricted by a forced construction. The question then must depend on the words themselves, and on their construction we shall be the more readily excused for not adding to the observations already made, because the subject was fully discussed and exhausted in the case of Martin v. Hunter. 3d. We come now to the third objection, which, though differently stated by the counsel, is substantially the same. One gentleman has said that the Judiciary Act does not give jurisdiction in the case. The cause was argued in the State court, on a case agreed by the parties, which states the prosecution under a law for selling lottery tickets, which is set forth, and further states the act of Congress by which the City of Washington was authorized to establish the lottery. It then states that the lottery was regularly established by virtue of the act, and concludes with referring to the Court the questions, whether the act of Congress be valid? whether, on its just construction, it constitutes a bar to the prosecution? and, whether the act of Assembly, on which the prosecution is founded, be not itself invalid? These questions were decided against the operation of the act of Congress and in favour of the operation of the act of the State. Page 19 U. S. 424 If the twenty-fifth section of the Judiciary Act be inspected, it will at once be perceived that it comprehends expressly the case under consideration. But it is not upon the letter of the Act that the gentleman who stated this point in this form founds his argument. Both gentlemen concur substantially in their views of this part of the case. They deny that the act of Congress on which the plaintiff in error relies is a law of the United States; or, if a law of the United States, is within the second clause of the sixth article. In the enumeration of the powers of Congress, which is made in the eighth section of the first article, we find that of exercising exclusive legislation over such District as shall become the seat of government. This power, like all others which are specified, is conferred on Congress as the legislature of the Union, for, strip them of that character and they would not possess it. In no other character can it be exercised. In legislating for the District, they necessarily preserve the character of the legislature of the Union, for it is in that character alone that the Constitution confers on them this power of exclusive legislation. This proposition need not be enforced. The second clause of the sixth article declares that "This Constitution, and the laws of the United States, which shall be made in pursuance thereof, shall be the supreme law of the land." The clause which gives exclusive jurisdiction is, unquestionably, a part of the Constitution, and, as such, binds all the United States. Those who contend that acts of Congress, made in pursuance of Page 19 U. S. 425 this power, do not, like acts made in pursuance of other powers, bind the nation ought to show some safe and clear rule which shall support this construction, and prove that an act of Congress, clothed in all the forms which attend other legislative acts and passed in virtue of a power conferred on, and exercised by Congress as the legislature of the Union, is not a law of the United States and does not bind them. One of the gentlemen sought to illustrate his proposition that Congress, when legislating for the District, assumed a distinct character, and was reduced to a mere local legislature whose laws could possess no obligation out of the ten miles square, by a reference to the complex character of this Court. It is, they say, a Court of common law and a Court of equity. Its character, when sitting as a Court of common law, is as distinct from its character when sitting as a Court of equity as if the powers belonging to those departments were vested in different tribunals. Though united in the same tribunal, they are never confounded with each other. Without inquiring how far the union of different characters in one court, may be applicable, in principle, to the union in Congress of the power of exclusive legislation in some places and of limited legislation in others, it may be observed that the forms of proceedings in a court of law are so totally unlike the forms of proceedings in a court of equity that a mere inspection of the record gives decisive information of the character in which the court sits, and consequently of the extent of its powers. But Page 19 U. S. 426 if the forms of proceeding were precisely the same, and the court the same, the distinction would disappear. Since Congress legislates in the same forms, and in the same character, in virtue of powers of equal obligation, conferred in the same instrument, when exercising its exclusive powers of legislation as well as when exercising those which are limited, we must inquire whether there be anything in the nature of this exclusive legislation which necessarily confines the operation of the laws made in virtue of this power to the place with a view to which they are made. Connected with the power to legislate within this District is a similar power in forts, arsenals, dock yards, &c. Congress has a right to punish murder in a fort or other place within its exclusive jurisdiction, but no general right to punish murder committed within any of the States. In the act for the punishment of crimes against the United States, murder committed within a fort, or any other place or district of country under the sole and exclusive jurisdiction of the United States, is punished with death. Thus, Congress legislates in the same act under its exclusive and its limited powers. The act proceeds to direct that the body of the criminal, after execution, may be delivered to a surgeon for dissection, and punishes any person who shall rescue such body during its conveyance from the place of execution to the surgeon to whom it is to be delivered. Page 19 U. S. 427 Let these actual provisions of of the law, or any other provisions which can be made on the subject, be considered with a view to the character in which Congress acts when exercising its powers of exclusive legislation. If Congress is to be considered merely as a local legislature, invested, as to this object, with powers limited to the fort or other place in which the murder may be committed, if its general powers cannot come in aid of these local powers, how can the offence be tried in any other court than that of the place in which it has been committed? How can the offender be conveyed to, or tried in, any other place? How can he be executed elsewhere? How can his body be conveyed through a country under the jurisdiction of another sovereign, and the individual punished, who, within that jurisdiction, shall rescue the body. Were any one State of the Union to pass a law for trying a criminal in a court not created by itself, in a place not within its jurisdiction, and direct the sentence to be executed without its territory, we should all perceive and acknowledge its incompetency to such a course of legislation. If Congress be not equally incompetent, it is because that body unites the powers of local legislation with those which are to operate through the Union, and may use the last in aid of the first, or because the power of exercising exclusive legislation draws after it, as an incident, the power of making that legislation effectual, and the incidental power may be exercised Page 19 U. S. 428 throughout the Union, because the principal power is given to that body as the legislature of the Union. So, in the same act, a person who, having knowledge of the commission of murder or other felony on the high seas or within any fort, arsenal, dock yard, magazine, or other place, or district of country within the sole and exclusive jurisdiction of the United States shall conceal the same, &c., he shall be adjudged guilty of misprision of felony, and shall be adjudged to be imprisoned, &c. It is clear that Congress cannot punish felonies generally, and, of consequence, cannot punish misprision of felony. It is equally clear that a State legislature, the State of Maryland for example, cannot punish those who, in another State, conceal a felony committed in Maryland. How, then, is it that Congress, legislating exclusively for a fort, punishes those who, out of that fort, conceal a felony committed within it? The solution, and the only solution of the difficulty, is that the power vested in Congress, as the legislature of the United States, to legislate exclusively within any place ceded by a State, carries with it, as an incident, the right to make that power effectual. If a felon escape out of the State in which the act has been committed, the government cannot pursue him into another State and apprehend him there, but must demand him from the executive power of that other State. If Congress were to be considered merely as the local legislature for the fort or other place in which the offence might be committed, then this principle would apply to them as to other local Page 19 U. S. 429 legislatures, and the felon who should escape out of the fort or other place in which the felony may have been committed could not be apprehended by the marshal, but must be demanded from the executive of the State. But we know that the principle does not apply; and the reason is that Congress is not a local legislature, but exercises this particular power, like all its other powers, in its high character as the legislature of the Union. The American people thought it a necessary power, and they conferred it for their own benefit. Being so conferred, it carries with it all those incidental powers which are necessary to its complete and effectual execution. Whether any particular law be designed to operate without the District or not depends on the words of that law. If it be designed so to operate, then the question, whether the power so exercised be incidental to the power of exclusive legislation, and be warranted by the Constitution, requires a consideration of that instrument. In such cases, the Constitution and the law must be compared and construed. This is the exercise of jurisdiction. It is the only exercise of it which is allowed in such a case. For the act of Congress directs that "no other error shall be assigned or regarded as a ground or reversal, in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before mentioned questions of validity or construction of the said Constitution, treaties," &c. The whole merits of this case, then, consist in the construction of the Constitution and the act of Congress. Page 19 U. S. 430 The jurisdiction of the Court, if acknowledged, goes no farther. This we are required to do without the exercise of jurisdiction. The counsel for the State of Virginia have, in support of this motion, urged many arguments of great weight against the application of the act of Congress to such a case as this, but those arguments go to the construction of the Constitution, or of the law, or of both, and seem, therefore, rather calculated to sustain their cause upon its merits than to prove a failure of jurisdiction in the Court. After having bestowed upon this question the most deliberate consideration of which we are capable, the Court is unanimously of opinion that the objections to its jurisdiction are not sustained, and that the motion ought to be overruled. Motion denied. March 2d. The cause was this day argued on the merits. Page 19 U. S. 440 The opinion of the Court was delivered by MR. CHIEF JUSTICE MARSHALL. This case was stated in the opinion given on the motion for dismissing the writ of error for want of jurisdiction in the Court. It now comes on to be decided on the question whether the Borough Court of Norfolk, in overruling the defence set up under Page 19 U. S. 441 the act of Congress, has misconstrued that act. It is in these words: "The said Corporation shall have full power to authorize the drawing of lotteries for effecting any important improvement in the City, which the ordinary funds or revenue thereof will not accomplish: Provided that the sum to be raised in each year shall not exceed the amount of 10,000 dollars: And provided, also that the object for which the money is intended to be raised shall be first submitted to the President of the United States, and shall be approved of by him." Two questions arise on this act. 1st. Does it purport to authorize the Corporation to force the sale of these lottery tickets in States where such sales may be prohibited by law? If it does, 2d. Is the law constitutional? If the first question be answered in the affirmative, it will become necessary to consider the second. If it should be answered in the negative, it will be unnecessary, and consequently improper, to pursue any inquiries, which would then be merely speculative, respecting the power of Congress in the case. In inquiring into the extent of the power granted to the Corporation of Washington, we must first examine the words of the grant. We find in them no expression which looks beyond the limits of the City. The powers granted are all of them local in their nature, and all of them such as would, in the common course of things, if not necessarily, be exercised Page 19 U. S. 442 within the city. The subject on which Congress was employed when framing this act was a local subject; it was not the establishment of a lottery, but the formation of a separate body for the management of the internal affairs of the City, for its internal government, for its police. Congress must have considered itself as delegating to this corporate body powers for these objects, and for these objects solely. In delegating these powers, therefore, it seems reasonable to suppose that the mind of the legislature was directed to the City alone, to the action of the being they were creating within the City, and not to any extraterritorial operations. In describing the powers of such a being, no words of limitation need be used. They are limited by the subject. But, if it be intended to give its acts a binding efficacy beyond the natural limits of its power, and within the jurisdiction of a distinct power, we should expect to find, in the language of the incorporating act, some words indicating such intention. Without such words, we cannot suppose that Congress designed to give to the acts of the Corporation any other effect beyond its limits than attends every act having the sanction of local law when anything depends upon it which is to be transacted elsewhere. If this would be the reasonable construction of corporate powers generally, it is more especially proper in a case where an attempt is made so to exercise those powers as to control and limit the penal laws of a State. This is an operation which was not, Page 19 U. S. 443 we think, in the contemplation of the legislature, while incorporating the City of Washington. To interfere with the penal laws of a State, where they are not leveled against the legitimate powers of the Union, but have for their sole object the internal government of the country, is a very serious measure which Congress cannot be supposed to adopt lightly or inconsiderately. The motives for it must be serious and weighty. It would be taken deliberately, and the intention would be clearly and unequivocally expressed. An act such as that under consideration ought not, we think, to be so construed as to imply this intention unless its provisions were such as to render the construction inevitable. We do not think it essential to the corporate power in question that it should be exercised out of the City. Could the lottery be drawn in any State of the Union? Does the corporate power to authorize the drawing of a lottery imply a power to authorize its being drawn without the jurisdiction of a Corporation, in a place where it may be prohibited by law? This, we think, would scarcely be asserted. And what clear legal distinction can be taken between a power to draw a lottery in a place where it is prohibited by law and a power to establish an office for the sale of tickets in a place where it is prohibited by law? It may be urged that the place where the lottery is drawn is of no importance to the Corporation, and therefore the act need not be so construed as to give power over the place, but that the right to sell tickets throughout the United Page 19 U. S. 444 States is of importance, and therefore ought to be implied. That the power to sell tickets in every part of the United States might facilitate their sale is not to be denied, but it does not follow that Congress designed, for the purpose of giving this increased facility, to overrule the penal laws of the several States. In the City of Washington, the great metropolis of the nation, visited by individuals from every part of the Union, tickets may be freely sold to all who are willing to purchase. Can it be affirmed that this is so limited a market that the incorporating act must be extended beyond its words, and made to conflict with the internal police of the States, unless it be construed to give a more extensive market? It has been said that the States cannot make it unlawful to buy that which Congress has made it lawful to sell. This proposition is not denied, and therefore the validity of a law punishing a citizen of Virginia for purchasing a ticket in the City of Washington might well be drawn into question. Such a law would be a direct attempt to counteract and defeat a measure authorized by the United States. But a law to punish the sale of lottery tickets in Virginia is of a different character. Before we can impeach its validity, we must inquire whether Congress intended to empower this Corporation to do any act within a State which the laws of that State might prohibit. Page 19 U. S. 445 In addition to the very important circumstance that the act contains no words indicating such intention, and that this extensive construction is not essential to the execution of the corporate power, the Court cannot resist the conviction that the intention ascribed to this act, had it existed, would have been executed by very different means from those which have been employed. Had Congress intended to establish a lottery for those improvements in the City which are deemed national, the lottery itself would have become the subject of legislative consideration. It would be organized by law, and agents for its execution would be appointed by the President or in such other manner as the law might direct. If such agents were to act out of the District, there would be, probably, some provision made for such a state of things, and, in making such provisions, Congress would examine its power to make them. The whole subject would be under the control of the government, or of persons appointed by the government. But in this case, no lottery is established by law, no control is exercised by the government over any which may be established. The lottery emanates from a corporate power. The Corporation may authorize or not authorize it, and may select the purposes to which the proceeds are to be applied. This Corporation is a being intended for local objects only. All its capacities are limited to the City. This, as well as every other law it is capable of making, is a by-law, and, from its nature, is only coextensive with the City. It is not probable that Page 19 U. S. 446 such an agent would be employed in the execution of a lottery established by Congress; but when it acts not as the agent for carrying into effect a lottery established by Congress, but in its own corporate capacity, from its own corporate powers, it is reasonable to suppose that its acts were intended to partake of the nature of that capacity and of those powers and, like all its other acts, be merely local in its nature. The proceeds of these lotteries are to come in aid of the revenues of the City. These revenues are raised by laws whose operation is entirely local, and for objects which are also local, for no person will suppose that the President's house, the Capitol, the Navy Yard, or other public institution was to be benefitted by these lotteries, or was to form a charge on the City revenue. Coming in aid of the City revenue, they are of the same character with it -- the mere creature of a corporate power. The circumstances that the lottery cannot be drawn without the permission of the President, and that this resource is to be used only for important improvements, have been relied on as giving to this corporate power a more extensive operation than is given to those with which it is associated. We do not think so. The President has no agency in the lottery. It does not originate with him, nor is the improvement to which its profits are to be applied to be selected by him. Congress has not enlarged the corporate power by restricting its exercise to cases of which the President might. approve. Page 19 U. S. 447 We very readily admit that the act establishing the seat of government, and the act appointing commissioners to superintend the public buildings, are laws of universal obligation. We admit too that the laws of any State to defeat the loan authorized by Congress would have been void, as would have been any attempt to arrest the progress of the canal, or of any other measure which Congress may adopt. These, and all other laws relative to the District have the authority which may be claimed by other acts of the national legislature, but their extent is to be determined by those rules of construction which are applicable to all laws. The act incorporating the City of Washington is unquestionably of universal obligation; but the extent of the corporate powers conferred by that act is to be determined by those considerations which belong to the case. Whether we consider the general character of a law incorporating a City, the objects for which such law is usually made, or the words in which this particular power is conferred, we arrive at the same result. The Corporation was merely empowered to authorize the drawing of lotteries, and the mind of Congress was not directed to any provision for the sale of the tickets beyond the limits of the Corporation. That subject does not seem to have been taken into view. It is the unanimous opinion of the Court that the law cannot be construed to embrace it. Judgment affirmed. * The plaintiff in error prayed an appeal from the judgment of the Court of Hustings, but it was refused, on the ground that there was no higher State tribunal which could take cognizance of the case.

The Supreme Court's verdict in Cohens v. Virginia established that the Court has appellate jurisdiction under the Judiciary Act of 1789 when state court decisions involve federal law, even if one party is a state and the other a citizen of that state. In this case, the Court ruled that a federal law authorizing Washington, D.C., to hold lotteries did not extend to the sale of lottery tickets in states where such sales were prohibited by state laws. The Court interpreted the corporate power granted by Congress as local in nature and not intended to override state laws on lottery ticket sales.

Role of Courts

Luther v. Borden

https://supreme.justia.com/cases/federal/us/48/1/

U.S. Supreme Court Luther v. Borden, 48 U.S. 7 How. 1 1 (1849) Luther v. Borden* 48 U.S. (7 How.) 1 Syllabus At the period of the American Revolution, Rhode Island did not, like the other States, adopt a new constitution, but continued the form of government established by the Charter of Charles the Second, making only such alterations, by acts of the Legislature, as were necessary to adapt it to their condition and rights as an independent State. But no mode of proceeding was pointed out by which amendments might be made. In 1841, a portion of the people held meetings and formed associations which resulted in the election of a convention to form a new constitution to be submitted to the people for their adoption or rejection. This convention framed a constitution, directed a vote to be taken upon it, declared afterwards that it had been adopted and ratified by a majority of the people of the State, and was the paramount law and constitution of Rhode Island. Under it, elections were held for Governor, members of the Legislature, and other officers, who assembled together in May, 1842, and proceeded to organize the new government. But the charter government did not acquiesce in these proceedings. On the contrary, it passed stringent laws, and finally passed an act declaring the State under martial law. In May, 1843, a new constitution, which had been framed by a convention called together by the charter government, went into operation, and has continued ever since. The question which of the two opposing governments was the legitimate one, viz., the charter government or the government established by the voluntary convention, has not heretofore been regarded as a judicial one in any of the State courts. The political department has always determined whether a proposed constitution or amendment was ratified or not by the people of the State, and the judicial power has followed its decision. The courts of Rhode Island have decided in favor of the validity of the charter government, and the courts of the United States adopt and follow the decisions of the State courts in questions which concern merely the constitution and laws of the state. Page 48 U. S. 2 The question whether or not a majority of those persons entitled to suffrage voted to adopt a constitution cannot be settled in a judicial proceeding. The Constitution of the United States has treated the subject as political in its nature, and placed the power of recognizing a State government in the hands of Congress. Under the existing legislation of Congress, the exercise of this power by courts would be entirely inconsistent with that legislation. The President of the United States is vested with certain power by an act of Congress, and in this case, he exercised that power by recognizing the charter government. Although no State could establish a permanent military government, yet it may use its military power to put down an armed insurrection too strong to be controlled by the civil authority. The State must determine for itself what degree of force the crisis demands. After martial law was declared, an officer might lawfully arrest any one who he had reasonable grounds to believe was engaged in the insurrection, or order a house to be forcibly entered. But no more force can be used than is necessary to accomplish the object, and if the power is exercised for the purposes of oppression, or any injury willfully done to person or property, the party by whom, or by whose order, it is committed would undoubtedly be answerable. These two cases came up from the Circuit Court of the United States for the District of Rhode Island, the former by a writ of error and the latter by a certificate of division in opinion. As the allegations, evidence, and arguments were the same in both, it is necessary to state those only of the first. They were argued at the preceding term of the court, and held under advisement until the present. Martin Luther, a citizen of the State of Massachusetts, brought an action of trespass quare clausum fregit against the defendants, citizens of the State of Rhode Island, for breaking and entering the house of Luther, on the 29th of June, 1842. The action was brought in October, 1842. At November term, 1842, the defendants filed four pleas in justification, averring, in substance: An insurrection of men in arms to overthrow the government of the State by military force That, in defence of the government, martial law was declared by the General Assembly of the State. That the plaintiff was aiding and abetting said insurrection. That at the time the trespasses were committed, the State was under martial law, and the defendants were enrolled in the fourth company of infantry in the town of Warren, under the command of J. T. Child. That the defendants were ordered to arrest the plaintiff, and, if necessary, to break and enter his dwelling-house. That it was necessary, and they did, break and enter, &c., doing as little injury as possible, &c., and searched said house, &c. To these pleas there was a general replication and issue. The cause came on for trial at November term, 1843, when the jury, under the rulings of the court, found a verdict for Page 48 U. S. 3 the defendants. During the trial, the counsel for the plaintiff took a bill of exceptions, which was as follows: " RHODE ISLAND DISTRICT, sc.:" "MARTIN LUTHER" "v." "LUTHER M. BORDEN ET ALS." " Circuit Court of the United States, November Term, 1843" "Be it remembered, that, upon the trial of the aforesaid issue before said jury, duly impanelled to try the same," "The defendants offered in evidence, in support of their first, second, and third pleas:" "1st. The charter of the Colony of Rhode Island and Providence Plantations, and the acceptance of the same at a very great meeting and assembly of all the freemen of the then Colony of Rhode Island and Providence Plantations, legally called and held at Newport, in the said Colony, on the 24th day of November, A.D. 1663." "That on the 25th day of November, A.D. 1663, the former lawful colonial government of the said Colony dissolved itself, and the said charter became and was henceforth the fundamental law or rule of government for said Colony. That, under and by virtue of said charter, and the acceptance thereof as aforesaid, the government of said Colony was duly organized, and by due elections was continued, and exercised all the powers of government granted by it, and was recognized by the inhabitants of said Colony, and by the king of Great Britain and his successors, as the true and lawful government of said Colony, until the 4th day of July, A.D. 1776." "That the General Assembly of said Colony, from time to time, elected and appointed delegates to the General Congress of the delegates of the several Colonies of North America, held in the years 1774, 1775, and 1776, and to the Congress of the United States of America, in the years 1776 and 1778. And that said delegates of said Colony of Rhode Island and Providence Plantations were received by, and acted with, the delegates from the other Colonies and States of America, in Congress assembled, as the delegates representing the said Colony and State of Rhode Island and Providence Plantations; and that on the 4th day of July, A.D. 1776, said delegates of the said Colony of Rhode Island and Providence Plantations united with the delegates of the other Colonies as representatives of the United States of America, and as such assented to and signed in behalf of said Colony the Declaration of the Independence of the United States of America. " Page 48 U. S. 4 "That afterward, to-wit, at the July session of the General Assembly of said State of Rhode Island and Providence Plantations, said General Assembly, by resolution thereof, did approve the said Declaration of Independence made by the Congress aforesaid, and did most solemnly engage that they would support the said General Congress in the said Declaration with their lives and fortunes." "That afterwards, to-wit, on the 9th day of July, 1778, the said State of Rhode Island and Providence Plantations, by her delegates duly authorized thereunto, became a party to the articles of confederation and perpetual union between the States of New Hampshire. Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, and Georgia, and ratified and confirmed the same, and, as one of the United States of America under said articles of confederation and perpetual union, was received, recognized, and acted with and by the other States of the said confederation, and by the United States of America in Congress assembled, during the continuation of said confederacy." "That after the dissolution of said confederacy, to wit, on the 29th day of May, A.D. 1790, said State of Rhode Island and Providence Plantations, in convention duly called, elected, and assembled under an act of the General Assembly of said State, ratified the Constitution of the United States, and under the same became, and ever since has been, one of the said United States, and as such, under the Constitution and laws of the United States, and of the said State of Rhode Island and Providence Plantations, hath ever elected and sent, and doth now send, Senators and Representatives to the Congress of the United States, who have been since, and now are, received and recognized as such by the said United States, and in all respects have ever been received and recognized by the several States, and by the United States, as one of the said United States, under the said Constitution thereof." "That from the said 4th of July, A.D. 1776, to the present time, the said charter and the said government of the said State of Rhode Island and Providence Plantations, organized under the same, hath ever been acted under and recognized by the people of said State, and hath been recognized by each of the said United States, and hath been recognized and guaranteed by the said United States as the true, lawful, and republican constitution and form of government of said State; and that the said charter continued to regulate the exercise and distribution of the powers of said government of said State, and except so far as it hath been modified by the Revolution and the new Page 48 U. S. 5 order of things consequence thereon, continued to be the fundamental law of said State, until the adoption of the present constitution of said State, and the organization of the government under the same." "That all the officers of the said government of said Colony and State of Rhode Island and Providence Plantations, organized under said charter as aforesaid, were elected in conformity with said charter and with the existing laws, from the first organization of the government under the said charter until the organization of the government under the present constitution of said State, and were and continued to be in the full exercise of all the powers of said government, and in the full possession of all the State-houses, court-houses, public records, prisons, jails, and all other public property, until the regular and legal dissolution of said government by the adoption of the present constitution, and the organization of the present government under the same." "2d. That the General Assembly of said State, at their January session, in the year of our Lord one thousand eight hundred and forty-one, passed resolutions in the words following, to-wit:" " Resolved by this General Assembly (the Senate concurring with the House of Representatives therein), That the freemen of the several towns in this State, and of the city of Providence, qualified to vote for general officers be, and they are hereby, requested to choose, at their semiannual town or ward meetings, in August next, so many delegates, and of the like qualifications, as they are now respectively entitled to choose representatives to the General Assembly, to attend a convention, to be holden at Providence, on the first Monday of November, in the year of our Lord one thousand eight hundred and forty-one, to frame a new constitution for this State, either in whole or in part, with full powers for this purpose, and if only for a constitution in part, that said convention have under their especial consideration the expediency of equalizing the representation of the towns in the House of Representatives." " Resolved, That a majority of the whole number of delegates which all the towns are entitled to choose shall constitute a quorum; who may elect a president and secretary; judge of the qualifications of the members, and establish such rules and proceedings as they may think necessary; and any town or city which may omit to elect its delegates at the said meetings in August may elect them at any time previous to the meeting of said convention." " Resolved, That the constitution or amendments agreed upon by said convention shall be submitted to the freemen in open town or ward meetings, to be holden at such time as may be Page 48 U. S. 6 named by said convention. That said constitution or amendments shall be certified by the president and secretary, and returned to the Secretary of State, who shall forthwith distribute to the several town and city clerks, in due proportion, one thousand printed copies thereof, and also fifteen thousand ballots, on one side of which shall be printed '( Amendments or Constitution ) adopted by the convention holden at Providence, on the first Monday of November last'; and on the other side, the word approve on the one half of the said ballots, and the word reject on the other half." " Resolved, That at the town or ward meetings, to be holden as aforesaid, every freeman voting shall have his name written on the back of his ballot; and the ballots shall be sealed up in open town or ward meeting by the clerks, and, with lists of the names of the voters, shall be returned to the General Assembly at its next succeeding session; and the said General Assembly shall cause said ballots to be examined and counted, and said amendments or constitution being approved of by a majority of the freemen voting, shall go into operation and effect at such time as may be appointed by said convention." " Resolved, That a sum not exceeding three hundred dollars be appropriated for defraying the expenses of said convention, to be paid according to the order of said convention, certified by its president." "That at their May session, in the year of our Lord one thousand eight hundred and forty-one, the said General Assembly passed resolutions in the words following, to-wit:" " Resolved by this General Assembly (the Senate concurring with the House of Representatives therein) That the delegates from the several towns to the State convention to be holden in November next, for the purpose of framing a State constitution, be elected on the basis of population, in the following manner, to-wit: Every town of not more than eight hundred and fifty inhabitants may elect one delegate; of more than eight hundred and fifty, and not more than three thousand inhabitants, two delegates; of more than three thousand, and not more than six thousand inhabitants, three delegates; of more than six thousand, and not more than ten thousand inhabitants, four delegates; of more than ten thousand, and not more than fifteen thousand inhabitants, five delegates; of more than fifteen thousand inhabitants, six delegates." " Resolved, That the delegates attending said convention be entitled to receive from the general treasury the same pay as members of the General Assembly." " Resolved, That so much of the resolutions to which these are in amendment as is inconsistent herewith be repealed. " Page 48 U. S. 7 "And that at their January session, in the year of our Lord one thousand eight hundred and forty-two, the said General Assembly passed resolutions in the words following, to-wit:" " Whereas a portion of the people of this State, without the forms of law, have undertaken to form and establish a constitution of government for the people of this State, and have declared such constitution to be the supreme law, and have communicated such condition to the General Assembly; and whereas many of the good people of this State are in danger of being misled by these informal proceedings, therefore," " It is hereby resolved by this General Assembly That all acts done by the persons aforesaid, for the purpose of imposing upon this State a constitution, are an assumption of the powers of government in violation of the rights of the existing government, and of the rights of the people at large." " Resolved, That the convention called and organized in pursuance of an act of this General Assembly, for the purpose of forming a constitution to be submitted to the people of this State, is the only body which we can recognize as authorized to form such a constitution, and to this constitution the whole people have a right to look, and we are assured they will not look in vain, for such a form of government as will promote their peace, security, and happiness." " Resolved, That this General Assembly will maintain its own proper authority, and protect and defend the legal and constitutional rights of the people." "And that, at their January session, in the year of our Lord one thousand eight hundred and forty-two, the said General Assembly passed an act in the words following, to-wit:" " An act in amendment of an act, entitled an act revising the act entitled an act regulating the manner of admitting freemen, and directing the manner of electing officers in this State." " Whereas the good people of this State have elected delegates to a convention to form a constitution, which constitution, if ratified by the people, will become the supreme law of the State; therefore," " Be it enacted by the General Assembly as follows: all persons now qualified to vote, and those who may be qualified to vote under the existing laws previous to the time of such their voting, and all persons who shall be qualified to vote under the provisions of such constitution, shall be qualified to vote upon the question of the adoption of the said constitution." " That under and by virtue of the resolutions and acts last aforesaid, a written constitution of government for the said State of Rhode Island and Providence Plantations was framed Page 48 U. S. 8 by a convention legally called, elected, and assembled, and that said proposed constitution was, in pursuance of the said resolutions and acts, on the 21st, 22d, and 23d days of March, A.D. 1842, submitted for adoption or rejection to all persons qualified by the existing laws of said State to vote, and also to all persons who, under the provisions of said constitution, were qualified to vote, in the legal town and ward meetings of said State and of the city of Providence, legally called and assembled, and was by a majority of the persons so qualified by law to vote thereon, and actually voting thereon, rejected. That the said Martin Luther and his confederates, in causing and fomenting the said rebellion, voted against the adoption of said constitution, a copy of which is hereunto annexed, marked A." "3d. The defendants further offered all the acts, resolutions, and proceedings of the said General Assembly of the said Colony and State of Rhode Island and Providence Plantations, from the organization of the said government under the said charter, until the organization of the present government under the present constitution." "4th. The defendants offered evidence that, on the 24th day of June, A.D. 1842, and for a long time before, and from that time continually, until after the time when the said trespasses are alleged in the plaintiff's said declaration to have been committed, large numbers of men, among whom was the said Martin Luther, were assembled in arms in different parts of the said State of Rhode Island and Providence Plantations for the purpose and with the intent of overthrowing the government of said State and destroying the same by military force, and with such illegal, malicious, and traitorous intent and purpose at and during the times aforesaid did, in different parts of said State, make and levy war upon said State, and upon the government and citizens thereof, and did attempt and enterprize the hurt, detriment, annoyance, and destruction of the inhabitants of said State, and the overthrow of the government thereof." "5th. That, in order to protect and preserve said State and the government and the citizens thereof from the destruction threatened by said rebellion and military force, the General Assembly of said State, on the 25th day of June, A.D. 1842, enacted and declared martial law in the words following:" " An Act establishing Martial Law in this State." " Be it enacted by the General Assembly as follows: Section 1. The State of Rhode Island and Providence Plantations is hereby placed under martial law, and the same is declared to be in full force, until otherwise ordered by the General Assembly, or suspended by proclamation of his Excellency the Governor of the State. " Page 48 U. S. 9 "And thereupon, on the 26th day of June, A.D. 1842, Samuel Ward King, governor, captain-general, and commander-in-chief in and over said State of Rhode Island and Providence Plantations, issued his proclamation in the words and figures following:" " By his Excellency, Samuel Ward King, Governor, Captain-General, and Commander-in-chief of the State of Rhode Island and Providence Plantations." " A Proclamation " " Whereas the General Assembly of the said State of Rhode Island and Providence Plantations did, on the 25th day of June, A.D. 1842, pass the act following, to-wit:" " "An Act establishing Martial Law in this State." " 'Be it enacted by the General Assembly as follows: Section 1. The State of Rhode Island and Providence Plantations is hereby placed under marital law, and the same is declared to be in full force until otherwise ordered by the General Assembly, or suspended by proclamation of his Excellency the Governor of the State." " 'I do, therefore, issue this my proclamation, to make known the same unto the good people of this State, and all others, that they may govern themselves accordingly. And I do warn all persons against any intercourse or connection with the traitor Thomas Wilson Dorr, or his deluded adherents, how assembled in arms against the laws and authorities of this State, and admonish and command the said Thomas Wilson Dorr and his adherents immediately to throw down their arms and disperse, that peace and order may be restored to our suffering community, and as they will answer the contrary at their peril. Further, I exhort the good people of this State to aid and support by example, and by arms, the civil and military authorities thereof, in pursuing and bringing to condign punishment all engaged in said unholy and criminal enterprise against the peace and dignity of the State." " 'In testimony whereof, I have caused the seal of said State to be affixed to these presents, and have signed the said with my hand. Given at the city of Providence, on the 26th day of June, A.D. 1842, and of the Independence of the United States of America the sixty-sixth." " 'SAMUEL WARD KING" "'[L.S.]" "'By his Excellency's command." "'HENRY BOWEN, Secretary. ' " Page 48 U. S. 10 "6th. That at the time when the trespasses mentioned and set forth in the plaintiff's said declaration are alleged to have been committed, and at divers other times before that time, the plaintiff was aiding and abetting the aforesaid traitorous, malicious, and unlawful purposes and designs of overthrowing the government of said State by rebellion and military force, and in making war upon said State, and upon the government and citizens thereof." "7th. That, at the time when the pretended trespasses mentioned in the plaintiff's declaration are alleged to have been committed, the said State was under martial law as aforesaid, and the said defendants were enrolled in the company of infantry in the said town of Warren, in the fourth regiment of the militia of said State, and were under the command of John T. Child." "8th. That said John T. Child, on the 25th day of June, A.D. 1842, was duly commissioned and sworn as a quartermaster of the fourth regiment of the first brigade of militia of Rhode Island, and continued to exercise such command until after the time when the trespasses mentioned in the plaintiff's declaration are alleged to have been committed; that, on the 27th day of June, A.D. 1842, the said John T. Child received written orders from Thomas G. Turner, Esq., lieutenant-colonel commanding said regiment, and duly commissioned and sworn," "to continue to keep a strong armed guard, night and day, in the said Warren, and to arrest every person, either citizens of Warren or otherwise, whose movements were in the least degree suspicious, or who expressed the least willingness to assist the insurgents who were in arms against the law and authorities of the State." "9th. That these defendants were ordered, by the said John T. Child, their commander as aforesaid, to arrest and take the said Martin Luther, and, if necessary for the purpose of arresting and taking the said Luther, these defendants were ordered to break and enter the dwelling-house of said Luther." "10th. That these defendants, in compliance with said orders, and for the purpose of arresting and taking said Luther, proceeded to his house and knocked at the door, and, not being able to obtain admission therein, forced the latch of the door of said house, and entered the same for the purpose of making said arrest, doing as little damage as possible." "11th. That, at the time these defendants were ordered to arrest the said Martin Luther, as before stated, the town of Warren was in danger of an attack from the said Martin Luther and his confederates, and the inhabitants of said town were in great alarm on account thereof. " Page 48 U. S. 11 "And the counsel for the plaintiff, to maintain and prove the issue on his part, offered in evidence the following matters, facts, and things, in manner following, to-wit:" "1st. The plaintiff offered in evidence the proceedings and resolutions of a convention of the State of Rhode Island and Providence Plantations, passed 29th May, 1790, a copy whereof is hereunto annexed, marked A." "2d. The plaintiff offered in evidence the report of a committee of the House of Representatives of the State of Rhode Island, &c., made in June, 1829, upon certain memorials to them directed therein, praying for an extension of the right of suffrage in said State, a copy of which is hereunto annexed, marked B." "3d. The plaintiff offered in evidence resolutions passed by the General Assembly of said State, at their session, January, 1841, a copy of which is hereunto annexed, Marked C." "4th. The plaintiff then offered in evidence the memorial addressed to said Assembly, at said session, by Elisha Dillingham and others, a copy of which is hereunto annexed, marked D." "5th. The plaintiff offered evidence to prove that, in the last part of the year 1840, and in the year 1841, associations were formed in many, if not in all, the towns in the State, called 'Suffrage Associations,' the object of which was to diffuse information among the people upon the question of forming a written republican constitution, and of extending the right of suffrage. To prove this, he offered the officers and members of said associations, also the declaration of principles of said associations, passed February 7, 1841, and the proceedings of a meeting thereof on the 13th day of April, 1841; and also offered witnesses to prove that a portion of the people of this State assembled at Providence, on the 17th day of April, 1841, under a call from the Rhode Island Suffrage Association, to take into consideration certain matters connected with the existing state of suffrage in said State, and to prove the proceedings of said meeting; and this he offered to prove by the testimony of the chairman of said meeting, and the clerk of the same, and of other persons present thereat, all of which proceedings and declaration, resolutions, &c., are hereunto annexed, marked E." "6th. The plaintiff offered to prove that, on the 5th day of May, A.D. 1841, a mass convention of the male inhabitants of this State, consisting of four thousand and upwards, of the age of twenty-one years and upwards, met at Newport, in said State, in pursuance of notice for that purpose, whereat, among other things, it was resolved by said convention as follows: (See copy of said resolutions hereunto annexed, marked F.)" "7th. The plaintiff offered to prove that the said mass convention Page 48 U. S. 12 at Newport aforesaid adjourned their meeting from said 5th day of May to the 5th day of July, 1841, to Providence, in said State, at which place and time last mentioned said convention reassembled, consisting of six thousand persons and upwards, of the age of twenty-one years and upwards, the same being the free male inhabitants of said State, when and where, among other things, it was resolved by said convention as follows: (See copy of said resolutions hereunto annexed, and marked G.)" "8th. The plaintiff offered in evidence certain resolutions of the General Assembly of said State, passed at their May session, 1841; also a certain bill (or act) presented by a member of said Assembly, at the same session, and the proceedings of said Assembly thereupon, copies of which are hereunto annexed, marked H a, H b." "9th. The plaintiff offered in evidence the minority report from the Committee on the Judiciary upon the bill or act mentioned in the eighth offer, made to said General Assembly at their June session, A.D. 1841, and the action of said General Assembly thereupon, copies of which are hereunto annexed, marked I a, I b." "10th. The plaintiff offered to prove that the said State committee, by virtue of the authority in them vested by the said mass convention, notified the inhabitants of the several towns, and of the city of Providence, in this State, to assemble together and appoint delegates to a convention, for the purpose of framing a constitution for this State aforesaid, and that every American male citizen, twenty-one years of age and upwards, who had resided in this State as his home one year preceding the election of delegates, should have the right to vote for delegates to said convention, to draft a constitution to be laid before the people of said State; and that every thousand inhabitants in the towns in said State should be entitled to one delegate, and each ward in the city of Providence to three delegates, as appears by the following request duly published and proclaimed; also an address from said committee to the people of the State. See the copies of said request and address, hereunto annexed, and marked J a, J b." "11th. The plaintiff offered to prove that the said notice, request, or call was duly published and promulgated in public newspapers printed and published in said State, and by handbills which were struck up in the public houses, and at various other places of public resort, in all the towns, and in every ward in the city of Providence, in said State." "12th. The plaintiff offered to prove, that, at the adjourned mass convention aforementioned as held at Providence, in said Page 48 U. S. 13 State, on the 5th day of July, A.D. 1841, the people of the State then present did by vote duly taken enlarge said State committee by the addition of the following-named persons, all citizens of this State, to-wit:" "Providence County, Henry L. Webster, Philip B. Stiness, Metcalf Marsh." "Newport County, Silas Sissons." "Bristol County, Abijah Luce." "Kent County, John B. Sheldon." "Washington County, Wager Weeden, Charles Allen." "13th. The plaintiff offered to prove that, at the meeting of the said State committee, on the 20th day of July, 1841, at Providence aforesaid, when the said notice, request, or call was ordered, the following members of said committee were present, and approved of the aforesaid call, and of all the proceedings then had, to-wit: Samuel H. Wales, Henry L. Webster, Benjamin Arnold, Jr., Welcome B. Sayles, Metcalf Marsh, Philip B. Stiness, Dutee J. Pearce, Silas Sissons, Benjamin M. Bosworth, Abijah Luce, Sylvester Himes." "14th. The plaintiff then offered to prove that, in the month of August, 1841, citizens of this State, qualified as aforesaid, did meet in their several towns, and in the several wards in the said city of Providence, and made choice of delegates, in conformity with said notice, to meet in convention to form a draft of a constitution to be laid before the people of this State, and he offered the chairman presiding at said meetings, and the persons acting as clerks of the same, the votes or ballots then and there cast by the persons voting thereon, and of the persons then and there voting, to prove the aforesaid facts, and to prove the number of citizens so voting." "15th. The plaintiff offered to prove that the said delegates did meet in convention in said city of Providence in the month of October, 1841, and drafted a constitution, and submitted it to the people of said State for their examination, and then adjourned, to meet in said city of Providence in the month of November, A.D. 1841, and he offered to prove this by the production of the original minutes, or records, of the proceedings of said convention, verified by the oaths of the presidents and secretaries thereof, and of divers persons attending the same, as members thereof, or delegates thereto." "16th. The plaintiff offered to prove that, in pursuance of said adjournment, the said delegates did again meet in convention, in said Providence, in said month of November, and then completed the draft of the following constitution (a copy of which is hereunto annexed marked K), and submitted the same to the people of said State for their adoption or rejection, recommending Page 48 U. S. 14 them to express their will on the subject at meetings to be duly presided over by moderators and clerks and by writing their names and their tickets, and to be holden in their several towns, and in the several wards of the city of Providence, on Monday, the 27th day of December, and on the two next successive days, and that any person entitled to vote, who, from sickness or other cause, might be unable to attend and vote in the town or ward meeting on the days aforesaid might write his name on a ticket and obtain the signature upon the back of the same, as a witness thereto, of a person who had given in his vote, which tickets were in the following form, to-wit:" " I am an American citizen, of the age of twenty-one years, and have my permanent residence, or home, in this State; I am (or not) qualified to vote under the existing laws of this State. I vote (for or against) the constitution formed by the convention of the people assembled in Providence, and which was proposed to the people by said convention on the 18th day of November, A.D. 1841;" "which votes the moderator or clerk of any town or ward meetings should receive on either of the three days succeeding the three days before named, and which he offered to prove by the production of said original minutes and records as aforesaid, verified as aforesaid, and by the testimony of said persons aforesaid, and by the 14th article of said constitution." "17th. The plaintiff offered to prove that meetings were held in the several towns and wards of the city of Providence aforesaid, and on the days aforesaid for the purposes aforesaid, in pursuance of the requirements of said constitution, and the said moderators and clerks did receive, on said three successive days, such votes of persons qualified as aforesaid, and then carefully kept and made registers of all the persons voting, which, together with the tickets given in by the voters, were sealed up and returned by said moderators and clerks, with certificates signed and sealed by them, to the secretary of said convention, to be counted and declared at their adjourned meeting, on the 12th day of January, A.D. 1842, all of which he offered to prove by the testimony of the several moderators presiding at said meeting, and of the clerks of the same, and of the secretaries of said convention, and by the production of the original votes or ballots cast or polled by the persons then and there voting, the original registers of all said persons so voting, and the said certificates, signed and sealed as aforesaid, verified by the oaths of said moderators and clerks." "18th. The plaintiff offered to prove that the said convention of delegates did meet in said Providence, on the said 12th day of January, 1842, and did then and there count the said votes, Page 48 U. S. 15 and the said convention thereafterwards, on the said 13th day of said January, did pass the preamble and resolutions following, to-wit:" " Whereas, by the return of the votes upon the constitution proposed to the citizens of this State by this convention, the 18th day of November last, it satisfactorily appears that the citizens of this State, in their original sovereign capacity, have ratified and adopted said constitution by a large majority; and the will of the people, thus decisively made known, ought to be implicitly obeyed and faithfully executed." " We do therefore resolve and declare that said constitution rightfully ought to be, and is, the paramount law and constitution of the State of Rhode Island and Providence Plantations." " And we further resolve and declare, for ourselves and in behalf of the people whom we represent, that we will establish said constitution and sustain and defend the same by all necessary means." " Resolved, That the officers of this convention make proclamation of the return of the votes upon the constitution, and that the same has been adopted and become the constitution of this State, and that they cause said proclamation to be published in the newspapers of the same." " Resolved, That a certified copy of the report of the committee appointed to count the votes upon the constitution, and of these resolutions, and of the constitution, be sent to his Excellency the Governor, with a request that he would communicate the same to the two houses of the General Assembly." "A copy of which resolutions and proceedings is annexed, marked L c." "And he further offered to prove that the same was sent to said Governor, and by him communicated to the said General Assembly, and by them laid on the table, and that, by a subsequent resolution of the House of Representatives in said General Assembly, the further consideration thereof was indefinitely postponed. All these matters he offered to prove by the production of the original minutes or records of the convention aforesaid, verified by the oaths of the president, vice-presidents, and secretaries thereof, by the report of the committee appointed by said convention to count said votes, verified by the certificate of the secretaries of said convention, and by the oaths of the members of said committee, and by the certificate of Henry Bowen, Secretary of State under the then acting government, and of Thomas A. Jenks, one of the clerks of the then House of Representatives. And he further offered to prove, that, at the same session of said Assembly, a member of the House of Representatives submitted to that body, for their Page 48 U. S. 16 action, a resolution referring all the matters connected with the formation and adoption of the aforesaid constitution to a select committee, with instructions to them to ascertain and report the number of votes cast, and the number of persons voting for the same, with full power to send for persons and papers; which resolution was rejected by said House of Representatives, as appears by copies of the records of the said House for said session, hereunto annexed, and marked L a, and the exhibit hereunto annexed, marked L b, and the testimony of witnesses." "19th. The plaintiff then offered to prove that the officers of said convention did make the proclamation required by the said resolution of the said convention, and he offered to prove this by a copy of said proclamation, certified by said officers, the oaths of said officers, and the testimony of other witnesses. See form of proclamation annexed, marked X." "20th. The plaintiff then offered to prove that the said constitution was adopted by a large majority of the male people of this State, of the age of twenty-one years and upwards, who were qualified to vote under said constitution, and also adopted by a majority of the persons entitled to vote for general officers under the then existing laws of the said State, and according to the provisions thereof, and that so much of the same as relates to the election of the officers named in the sixth section of the fourteenth article of said constitution, on the Monday before the 3d Wednesday of April, A.D. 1842, to-wit, on the 18th day of said April, and all the other parts thereof on the first Tuesday of May, 1842, to-wit, on the 3d day of said May, and then and there became, and was, the rightful and legal constitution of said State, and paramount law of said State; and this he offered to prove by the production of the original votes or ballots cast or polled by the persons voting for or against the adoption of said constitution, by the production of the original registers of the persons so voting, verified by the oaths of the several moderators and clerks of the meetings held for such votings, by the testimony of all the persons so voting, and by the said constitution." "21st. The plaintiff produced a copy of said constitution, verified by the certificates of Joseph Joslin, president of said convention of delegates elected and assembled as aforesaid, and for the purposes aforesaid, and of Samuel H. Wales, one of the vice-presidents, and of John S. Harris and William Smith, secretaries of the same, and offered the said Joslin, Wales, Harris, and Smith as witnesses to prove the truth of the matters set forth in said certificates, which said copy, upon the proof aforesaid, he claimed to be a true and authenticated copy of said constitution, and which constitution he claimed to be the paramount law of the said State. " Page 48 U. S. 17 "22d. The plaintiff offered to prove, that, by virtue of, and in conformity with, the provisions of said constitution, so adopted as aforesaid, the people of said State entitled to vote for general officers, Senators and Representatives, to the General Assembly of said State, under said constitution, did meet, in legal town and ward meetings, on the third Wednesday of April next preceding the first Tuesday of May, 1842, to-wit, on the 18th day of April, 1842, and did elect duly the officers required by said constitution for the formation of the government under said constitution, and that said meetings were conducted and directed according to the provisions of said constitution and the laws of said State, and this he offered to prove by the evidence of the moderators and clerks of said meetings, and the persons present at the same." "23d. The plaintiff offered in evidence that the said general officers, to-wit, the Governor, Lieutenant-Governor, Secretary of State, Senators and Representatives, all constituting the General Assembly of said State under said constitution, did assemble in said city of Providence on the first Tuesday of May, A.D. 1842, to-wit, on the 3d day of May, 1842, and did then and there organize a government for the said State, in conformity with the provisions and requirements of said constitution, and did elect, appoint, and qualify officers to carry the said constitution and laws into effect, and, to prove the same, he offered exemplified copies of the acts and doings of said General Assembly, hereunto annexed, and marked N a, N b, N c." "24th. The plaintiff offered in evidence a duly certified copy of that part of the census of the United States for the year 1840, which applies to the District and State of Rhode Island, &c., hereunto annexed, and marked O." "25th. The plaintiff offered in evidence a certificate signed by Henry Bowen, Secretary of State of the then existing government of the State of Rhode Island, &c., showing the number of votes polled by the freemen in said State for ten years then last past; a copy of which is hereunto annexed, marked P. Also, under the same certificate, an act marked Q, purporting to establish martial law." "26th. And the plaintiff offered in evidence an authenticated copy of an act of the General Assembly under the charter government, passed at their June session, A.D. 1842, entitled 'An Act to provide for calling a Convention of the People,' &c., and an act in amendment thereto; which said copy is hereunto annexed, marked Q a. And also a copy of _____ from the records of the House of Representatives (under said government), at their March session, A.D. 1842, hereunto annexed, marked R. " Page 48 U. S. 18 "Whereupon, the counsel for the plaintiff requested the court to charge the jury, that, under the facts offered in evidence by the plaintiff, the constitution and frame of government prepared, adopted, and established in the manner and form set forth and shown thereby was, and became thereby, the supreme law of the State of Rhode Island, and was in full force and effect, as such, during the time set forth in the plaintiff's writ and declaration, when the trespass alleged therein was committed by the defendants, as admitted in their pleas." "That a majority of the free white male citizens of Rhode Island, of twenty-one years and upwards, in the exercise of the sovereignty of the people, through the forms and in the manner set forth in said evidence, offered to be proved by the plaintiff, and in the absence, under the then existing frame of government of the said State of Rhode Island, of any provision therein for amending, altering, reforming, changing, or abolishing the said frame of government, had the right to reassume the powers of government, and establish a written constitution and frame of a republican form of government; and that having so exercised such right as aforesaid, the preexisting charter government, and the authority and the assumed laws under which the defendants in their plea claim to have acted, became null and void and of no effect, so far as they were repugnant to and conflicted with said constitution, and are no justification of the acts of the defendants in the premises." "And the court, pro forma and upon the understandings of the parties to carry up the rulings and exceptions of the said court to the Supreme Court of the United States, refused to give the said instructions, or to admit in evidence the facts offered to be proved by the plaintiff, but did admit the testimony offered to be proved by the defendants, and did rule that the government and laws, under which they assume in their plea to have acted, were in full force and effect as the frame of government and laws of the State of Rhode Island, and did constitute a justification of the acts of the defendants, as set forth in their pleas." "To which refusals of the court so to instruct the jury as prayed for, as well as to the instructions so as aforesaid given by the court to the jury, the plaintiff, by his counsel, excepted, and prayed the exceptions to be allowed by the court. And after the said instructions were so refused, and so given as aforesaid, the jury withdrew, and afterwards returned their verdict for the defendants." "And inasmuch as the said several matters of law, and the said several matters of fact, so produced and given in evidence on the part of the said plaintiff and the said defendants, and by Page 48 U. S. 19 their counsel insisted on and objected to in manner as aforesaid, do not appear by the record and verdict aforesaid; the said counsel for the plaintiff did then and there propose the aforesaid exceptions to the said refusals and opinions of said court, and requested them to put the seal of said court to this bill of exceptions, containing the said several matters so produced and given in evidence for the party objecting as aforesaid." "And thereupon the judges of the aforesaid court, at the request of the counsel for the party objecting, did put their said seal to this bill of exceptions, the same being found to be true, pursuant to the law in such cases provided, at the term of said court and the trial aforesaid." "JOSEPH STORY [SEAL.]" The papers referred to in the above bill of exceptions, and made a part of it, were so voluminous that it is impossible to insert them. They constituted a volume of 150 pages. Page 48 U. S. 34 Mr. Chief Justice TANEY delivered the opinion of the court. This case has arisen out of the unfortunate political differences which agitated the people of Rhode Island in 1841 and 1842. It is an action of trespass brought by Martin Luther, the plaintiff in error, against Luther M. Borden and others, the defendants, in the Circuit Court of the United States for the District of Rhode Island, for breaking and entering the plaintiff's house. The defendants justify upon the ground that large numbers of men were assembled in different parts of the State for the purpose of overthrowing the government by military force, and were actually levying war upon the State; that, in order to defend itself from this insurrection, the State was declared by competent authority to be under martial law; that the plaintiff was engaged in the insurrection; and that the defendants, being in the military service of the State, by command of their superior officer, broke and entered the house and searched the rooms for the plaintiff, who was supposed to be there concealed, in order to arrest him, doing as little damage as possible. The plaintiff replied that the trespass was committed by the defendants of their own proper wrong, and without any such cause; and upon the issue joined on this replication, the parties proceeded to trial. The evidence offered by the plaintiff and the defendants is Page 48 U. S. 35 stated at large in the record, and the questions decided by the Circuit Court, and brought up by the writ of error, are not such as commonly arise in an action of trespass. The existence and authority of the government under which the defendants acted was called in question, and the plaintiff insists that, before the acts complained of were committed, that government had been displaced and annulled by the people of Rhode Island, and that the plaintiff was engaged in supporting the lawful authority of the State, and the defendants themselves were in arms against it. This is a new question in this court, and certainly a very grave one, and, at the time when the trespass is alleged to have been committed, it had produced a general and painful excitement in the State, and threatened to end in bloodshed and civil war. The evidence shows that the defendants, in breaking into the plaintiff's house and endeavouring to arrest him, as stated in the pleadings, acted under the authority of the government which was established in Rhode Island at the time of the Declaration of Independence, and which is usually called the charter government. For when the separation from England took place, Rhode Island did not, like the other States, adopt a new constitution, but continued the form of government established by the charter of Charles the Second in 1663, making only such alterations, by acts of the legislature, as were necessary to adapt it to their condition and rights as an independent State. It was under this form of government that Rhode Island united with the other States in the Declaration of Independence, and afterwards ratified the Constitution of the United States and became a member of this Union, and it continued to be the established and unquestioned government of the State until the difficulties took place which have given rise to this action. In this form of government, no mode of proceeding was pointed out by which amendments might be made. It authorized the legislature to prescribe the qualification of voters, and, in the exercise of this power, the right of suffrage was confined to freeholders until the adoption of the constitution of 1843. For some years previous to the disturbances of which we are now speaking, many of the citizens became dissatisfied with the charter government, and particularly with the restriction upon the right of suffrage. Memorials were addressed to the legislature upon this subject urging the justice and necessity of a more liberal and extended rule. But they failed to produce the desired effect. And thereupon, meetings were held and associations formed by those who were in favor of a more extended right of suffrage, which finally resulted in the election Page 48 U. S. 36 of a convention to form a new constitution to be submitted to the people for their adoption or rejection. This convention was not authorized by any law of the existing government. It was elected at voluntary meetings, and by those citizens only who favored this plan of reform, those who were opposed to it, or opposed to the manner in which it was proposed to be accomplished taking no part in the proceedings. The persons chosen as above mentioned came together and framed a constitution by which the right of suffrage was extended to every male citizen of twenty-one years of age who had resided in the State for one year, and in the town in which the offered to vote for six months next preceding the election. The convention also prescribed the manner in which this constitution should be submitted to the decision of the people, permitting everyone to vote on that question who was an American citizen, twenty-one years old, and who had a permanent residence or home in the State, and directing the votes to be returned to the convention. Upon the return of the votes, the convention declared that the constitution was adopted and ratified by a majority of the people of the State, and was the paramount law and constitution of Rhode Island. And it communicated this decision to the governor under the charter government for the purpose of being laid before the legislature, and directed elections to be held for a governor, members of the legislature, and other officers under the new constitution. These elections accordingly took place, and the governor, lieutenant-governor, secretary of state, and senators and representatives thus appointed assembled at the city of Providence on May 3d, 1842, and immediately proceeded to organize the new government by appointing the officers and passing the laws necessary for that purpose. The charter government did not, however, admit the validity of these proceedings nor acquiesce in them. On the contrary, in January, 1842, when this new constitution was communicated to the governor, and by him laid before the legislature, it passed resolutions declaring all acts done for the purpose of imposing that constitution upon the State to be an assumption of the powers of government in violation of the rights of the existing government and of the people at large, and that it would maintain its authority and defend the legal and constitutional rights of the people. In adopting this measure as well as in all others taken by the charter government to assert its authority, it was supported by a large number of the citizens of the State, claiming to be a majority, who regarded the proceedings of the adverse party as Page 48 U. S. 37 unlawful and disorganizing, and maintained that, as the existing government had been established by the people of the State, no convention to frame a new constitution could be called without its sanction, and that the times and places of taking the votes, and the officers to receive them, and the qualification of the voters, must be previously regulated and appointed by law. But notwithstanding the determination of the charter government and of those who adhered to it to maintain its authority, Thomas W. Dorr, who had been elected governor under the new constitution, prepared to assert the authority of that government by force, and many citizens assembled in arms to support him. The charter government thereupon passed an act declaring the State under martial law, and at the same time proceeded to call out the militia to repel the threatened attack and to subdue those who were engaged in it. In this state of the contest, the house of the plaintiff, who was engaged in supporting the authority of the new government, was broken and entered in order to arrest him. The defendants were, at the time, in the military service of the old government, and in arms to support its authority. It appears, also that the charter government. at its session of January, 1842, took measures to call a convention to revise the existing form of government, and, after various proceedings, which it is not material to state, a new constitution was formed by a convention elected under the authority of the charter government, and afterwards adopted and ratified by the people, the times and places at which the votes were to be given, the persons who were to receive and return them, and the qualification of the voters, having all been previously authorized and provided for by law passed by the charter government. This new government went into operation in May, 1843, at which time the old government formally surrendered all its powers, and this constitution has continued ever since to be the admitted and established government of Rhode Island. The difficulties with the government of which Mr. Dorr was the head were soon over. They had ceased before the constitution was framed by the convention elected by the authority of the charter government. For after an unsuccessful attempt made by Mr. Dorr in May, 1842, at the head of a military force, to get possession of the State arsenal at Providence, in which he was repulsed, and an assemblage of some hundreds of armed men under his command at Chepatchet in the June following, which dispersed upon the approach of the troops of the old government, no further effort was made to establish it, and, until the constitution of 1843 went into operation, the charter government continued to assert its authority Page 48 U. S. 38 and exercise its powers and to enforce obedience throughout the State, arresting and imprisoning and punishing in its judicial tribunals those who had appeared in arms against it. We do not understand from the argument that the constitution under which the plaintiff acted is supposed to have been in force after the constitution of May, 1843, went into operation. T he contest is confined to the year preceding. The plaintiff contends that the charter government was displaced, and ceased to have any lawful power, after the organization, in May, 1842, of the government which he supported, and although that government never was able to exercise any authority in the State nor to command obedience to its laws or to its officers, yet he insists that it was the lawful and established government upon the ground that it was ratified by a large majority of the male people of the State of the age of twenty-one and upwards, and also by a majority of those who were entitled to vote for general officers under the then existing laws of the State. The fact that it was so ratified was not admitted, and, at the trial in the Circuit Court, he offered to prove it by the production of the original ballots and the original registers of the persons voting, verified by the oaths of the several moderators and clerks of the meetings, and by the testimony of all the persons so voting, and by the said constitution, and also offered in evidence for the same purpose that part of the census of the United States for the year 1840 which applies to Rhode Island and a certificate of the secretary of state of the charter government showing the number of votes polled by the freemen of the State for the ten years then last past. The Circuit Court rejected this evidence, and instructed the jury that the charter government and laws under which the defendants acted were, at the time the trespass is alleged to have been committed, in full force and effect as the form of government and paramount law of the State, and constituted a justification of the acts of the defendants as set forth in their pleas. It is this opinion of the Circuit Court that we are now called upon to review. It is set forth more at large in the exception, but is in substance as above stated, and the question presented is certainly a very serious one. For if this court is authorized to enter upon this inquiry as proposed by the plaintiff, and it should be decided that the charter government had no legal existence during the period of time above mentioned, if it had been annulled by the adoption of the opposing government, then the laws passed by its legislature during that time were nullities, its taxes wrongfully collected, its salaries and compensation Page 48 U. S. 39 to its officers illegally paid, its public accounts improperly settled, and the judgments and sentences of its courts in civil and criminal cases null and void, and the officers who carried their decisions into operation answerable as trespassers, if not, in some cases, as criminals. When the decision of this court might lead to such results, it becomes its duty to examine very carefully its own powers before it undertakes to exercise jurisdiction. Certainly the question which the plaintiff proposed to raise by the testimony he offered has not heretofore been recognized as a judicial one in any of the State courts. In forming the constitutions of the different States after the Declaration of Independence, and in the various changes and alterations which have since been made, the political department has always determined whether the proposed constitution or amendment was ratified or not by the people of the State, and the judicial power has followed its decision. In Rhode Island, the question has been directly decided. Prosecutions were there instituted against some of the persons who had been active in the forcible opposition to the old government. And in more than one of the cases, evidence was offered on the part of the defence similar to the testimony offered in the Circuit Court, and for the same purpose -- that is, for the purpose of showing that the proposed constitution had been adopted by the people of Rhode Island, and had therefore become the established government, and consequently that the parties accused were doing nothing more than their duty in endeavouring to support it. But the courts uniformly held that the inquiry proposed to be made belonged to the political power, and not to the judicial; that it rested with the political power to decide whether the charter government had been displaced or not; and when that decision was made, the judicial department would be bound to take notice of it as the paramount law of the State, without the aid of oral evidence or the examination of witnesses; that, according to the laws and institutions of Rhode Island, no such change had been recognized by the political power; and that the charter government was the lawful and established government of the State during the period in contest, and that those who were in arms against it were insurgents, and liable to punishment. This doctrine is clearly and forcibly stated in the opinion of the Supreme Court of the State in the trial of Thomas W. Dorr, who was the governor elected under the opposing constitution, and headed the armed force which endeavoured to maintain its authority. Indeed, we do not see how the question could be tried and Page 48 U. S. 40 judicially decided in a State court. Judicial power presupposes an established government capable of enacting laws and enforcing their execution, and of appointing judges to expound and administer them. The acceptance of the judicial office is a recognition of the authority of the government from which it is derived. And if the authority of that government is annulled and overthrown, the power of its courts and other officers is annulled with it. And if a State court should enter upon the inquiry proposed in this case, and should come to the conclusion that the government under which it acted had been put aside and displaced by an opposing government, it would cease to be a court, and be incapable of pronouncing a judicial decision upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the existence and authority of the government under which it is exercising judicial power. It is worthy of remark, however, when we are referring to the authority of State decisions, that the trial of Thomas W. Dorr took place after the constitution of 1843 went into operation. The judges who decided that case held their authority under that constitution, and it is admitted on all hands that it was adopted by the people of the State, and is the lawful and established government. It is the decision, therefore, of a State court whose judicial authority to decide upon the constitution and laws of Rhode Island is not questioned by either party to this controversy, although the government under which it acted was framed and adopted under the sanction and laws of the charter government. The point, then, raised here has been already decided by the courts of Rhode Island. The question relates altogether to the constitution and laws of that State, and the well settled rule in this court is that the courts of the United States adopt and follow the decisions of the State courts in questions which concern merely the constitution and laws of the State. Upon what ground could the Circuit Court of the United States which tried this case have departed from this rule, and disregarded and overruled the decisions of the courts of Rhode Island? Undoubtedly the courts of the United States have certain powers under the Constitution and laws of the United States which do not belong to the State courts. But the power of determining that a State government has been lawfully established, which the courts of the State disown and repudiate, is not one of them. Upon such a question, the courts of the United States are bound to follow the decisions of the State tribunals, and must therefore regard the charter government as the lawful established government during the time of this contest. Page 48 U. S. 41 Besides, if the Circuit Court had entered upon this inquiry, by what rule could it have determined the qualification of voters upon the adoption or rejection of the proposed constitution unless there was some previous law of the State to guide it? It is the province of a court to expound the law, not to make it. And certainly it is no part of the judicial functions of any court of the United States to prescribe the qualification of voters in a State, giving the right to those to whom it is denied by the written and established constitution and laws of the State, or taking it away from those to whom it is given; nor has it the right to determine what political privileges the citizens of a State are entitled to, unless there is an established constitution or law to govern its decision. And if the then existing law of Rhode Island which confined the right of suffrage to freeholders is to govern, and this question is to be tried by that rule, how could the majority have been ascertained by legal evidence such as a court of justice might lawfully receive? The written returns of the moderators and clerks of mere voluntary meetings, verified by affidavit, certainly would not be admissible, nor their opinions who judgments as to the freehold qualification of the persons who voted. The law requires actual knowledge in the witness of the fact to which he testifies in a court of justice. How, then, could the majority of freeholders have been determined in a judicial proceeding? The court had not the power to order a census of the freeholders to be taken, nor would the census of the United States of 1840 be any evidence of the number of freeholders in the State in 1842. Nor could the court appoint persons to examine and determine whether every person who had voted possessed the freehold qualification which the law then required. In the nature of things, the Circuit Court could not know the name and residence of every citizen, and bring him before the court to be examined. And if this were attempted, where would such an inquiry have terminated? And how long must the people of Rhode Island have waited to learn from this court under what form of government they were living during the year in controversy? But this is not all. The question as to the majority is a question of fact. It depends upon the testimony of witnesses, and if the testimony offered by the plaintiff had been received, the defendants had the right to offer evidence to rebut it, and there might, and probably would, have been conflicting testimony as to the number of voters in the State, and as to the legal qualifications of many of the individuals who had voted. The decision would, therefore, have depended upon the relative Page 48 U. S. 42 credibility of witnesses and the weight of testimony, and, as the case before the Circuit Court was an action at common law, the question of fact, according to the seventh amendment to the Constitution of the United States, must have been tried by the jury. In one case, a jury might find that the constitution which the plaintiff supported was adopted by a majority of the citizens of the State, or of the voters entitled to vote by the existing law. Another jury in another case might find otherwise. And as a verdict is not evidence in a suit between different parties, if the courts of the United States have the jurisdiction contended for by the plaintiff, the question whether the acts done under the charter government during the period in contest are valid or not must always remain unsettled and open to dispute. The authority and security of the State governments do not rest on such unstable foundations. Moreover, the Constitution of the United States, as far as it has provided for an emergency of this kind and authorized the general government to interfere in the domestic concerns of a State, has treated the subject as political in its nature, and placed the power in the hands of that department. The fourth section of the fourth article of the Constitution of the United States provides that the United States shall guarantee to every State in the Union a republican form of government, and shall protect each of them against invasion, and on the application of the legislature or of the executive (when the legislature cannot be convened) against domestic violence. Under this article of the Constitution, it rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal. It is true that the contest in this case did not last long enough to bring the matter to this issue, and, as no senators or representatives were elected under the authority of the government of which Mr. Dorr was the head, Congress was not called upon to decide the controversy. Yet the right to decide is placed there, and not in the courts. So, too, as relaters to the clause in the above-mentioned article of the Constitution, providing for cases of domestic violence. Page 48 U. S. 43 It rested with Congress, too, to determine upon the means proper to be adopted to fulfil this guarantee. They might, if they had deemed it most advisable to do so, have placed it in the power of a court to decide when the contingency had happened which required the federal government to interfere. But Congress thought otherwise, and no doubt wisely, and, by the act of February 28, 1795, provided that, "in case of an insurrection in any State against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such State or of the executive (when the legislature cannot be convened), to call forth such number of the militia of any other State or States, as may be applied for, as he may judge sufficient to sufficient to suppress such insurrection." By this act, the power of deciding whether the exigency had arisen upon which the government of the United States is bound to interfere is given to the President. He is to act upon the application of the legislature or of the executive, and consequently he must determine what body of men constitute the legislature, and who is the governor, before he can act. The fact that both parties claim the right to the government cannot alter the case, for both cannot be entitled to it. If there is an armed conflict like the one of which we are speaking, it is a case of domestic violence, and one of the parties must be in insurrection against the lawful government. And the President must, of necessity, decide which is the government and which party is unlawfully arrayed against it before he can perform the duty imposed upon him by the act of Congress. After the President has acted and called out the militia, is a Circuit Court of the United States authorized to inquire whether his decision was right? Could the court, while the parties were actually contending in arms for the possession of the government, call witnesses before it and inquire which party represented a majority of the people? If it could, then it would become the duty of the court (provided it came to the conclusion that the President had decided incorrectly) to discharge those who were arrested or detained by the troops in the service of the United States or the government which the President was endeavouring to maintain. If the judicial power extends so far, the guarantee contained in the Constitution of the United States is a guarantee of anarchy, and not of order. Yet if this right does not reside in the courts when the conflict is raging, if the judicial power is at that time bound to follow the decision of the political, it must be equally bound when the contest is over. It cannot, when peace is restored, punish as offences and crimes the acts which it before recognized, and was bound to recognize, as lawful. Page 48 U. S. 44 It is true that, in this case, the militia were not called out by the President. But, upon the application of the governor under the charter government, the President recognized him as the executive power of the State, and took measures to call out the militia to support his authority if it should be found necessary for the general government to interfere, and it is admitted in the argument that it was the knowledge of this decision that put an end to the armed opposition to the charter government and prevented any further efforts to establish by force the proposed constitution. The interference of the President, therefore, by announcing his determination was as effectual as if the militia had been assembled under his orders. And it should be equally authoritative. For certainly no court of the United States, with a knowledge of this decision, would have been justified in recognizing the opposing party as the lawful government or in treating as wrongdoers or insurgents the officers of the government which the President had recognized, and was prepared to support by an armed force. In the case of foreign nations, the government acknowledged by the President is always recognized in the courts of justice. And this principle has been applied by the act of Congress to the sovereign States of the Union. It is said that this power in the President is dangerous to liberty, and may be abused. All power may be abused if placed in unworthy hands. But it would be difficult, we think, to point out any other hands in which this power would be more safe, and at the same time equally effectual. When citizens of the same State are in arms against each other, and the constituted authorities unable to execute the laws, the interposition of the United States must be prompt or it is of little value. The ordinary course of proceedings in courts of justice would be utterly unfit for the crisis. And the elevated office of the President, chosen as he is by the people of the United States, and the high responsibility he could not fail to feel when acting in a case of so much moment, appear to furnish as strong safeguards against a wilful abuse of power as human prudence and foresight could well provide. At all events, it is conferred upon him by the Constitution and laws of the United States, and must therefore be respected and enforced in its judicial tribunals. A question very similar to this arose in the case of Martin v. Mott , 12 Wheat. 29-31. The first clause of the first section of the act of February 28, 1795, of which we have been speaking, authorizes the President to call out the militia to repel invasion. It is the second clause in the same section which authorizes the call to suppress an insurrection against a State Page 48 U. S. 45 government. The power given to the President in each case is the same, with this difference only, that it cannot be exercised by him in the latter case except upon the application of the legislature or executive of the State. The case above mentioned arose out of a call made by the President by virtue of the power conferred by the first clause, and the court said that "whenever a statute gives a discretionary power to any person to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of those facts." The grounds upon which that opinion is maintained are set forth in the report, and we think are conclusive. The same principle applies to the case how before the court. Undoubtedly, if the President in exercising this power, shall fall into error or invade the rights of the people of the State, it would be in the power of Congress to apply the proper remedy. But the courts must administer the law as they find it. The remaining question is whether the defendants, acting under military orders issued under the authority of the government, were justified in breaking and entering the plaintiff's house. In relation to the act of the legislature declaring martial law, it is not necessary in the case before us to inquire to what extent, nor under what circumstances, that power may be exercised by a State. Unquestionably a military government, established a the permanent government of the State, would not be a republican government, and it would be the duty of Congress to overthrow it. But the law of Rhode Island evidently contemplated no such government. It was intended merely for the crisis, and to meet the peril in which the existing government was placed by the armed resistance to its authority. It was so understood and construed by the State authorities. And unquestionably a State may use its military power to put down an armed insurrection too strong to be controlled by the civil authority. The power is essential to the existence of every government, essential to the preservation of order and free institutions, and is as necessary to the States of this Union as to any other government. The State itself must determine what degree of force the crisis demands. And if the government of Rhode Island deemed the armed opposition so formidable and so ramified throughout the State as to require the use of its military force and the declaration of martial law, we see no ground upon which this court can question its authority. It was a state of war, and the established government resorted to the rights and usages of war to maintain itself, and to overcome the unlawful opposition. And in that state of things, the officers engaged in its military service Page 48 U. S. 46 might lawfully arrest anyone who, from the information before them, they had reasonable grounds to believe was engaged in the insurrection, and might order a house to be forcibly entered and searched when there were reasonable grounds for supposing he might be there concealed. Without the power to do this, martial law and the military array of the government would be mere parade, and rather encourage attack than repel it. No more force, however, can be used than is necessary to accomplish the object. And if the power is exercised for the purposes of oppression, or any injury wilfully done to person or property, the party by whom, or by whose order, it is committed would undoubtedly be answerable. We forbear to remark upon the cases referred to in the argument in relation to the commissions anciently issued by the kings of England to commissioners to proceed against certain descriptions of persons in certain places by the law martial. These commissions were issued by the king at his pleasure, without the concurrence or authority of Parliament, and were often abused for the most despotic and oppressive purposes. They were used before the regal power of England was well defined, and were finally abolished and prohibited by the petition of right in the reign of Charles the First. But they bear no analogy in any respect to the declaration of martial law by the legislative authority of the State, made for the purposes of self-defence, when assailed by an armed force, and the cases and commentaries concerning these commissions cannot, therefore, influence the construction of the Rhode Island law, nor furnish any test of the lawfulness of the authority exercised by the government. Upon the whole, we see no reason for disturbing the judgment of the Circuit Court. The admission of evidence to prove that the charter government was the established government of the State was an irregularity, but is not material to the judgment. A Circuit Court of the United States sitting in Rhode Island is presumed to know the constitution and law of the State. And in order to make up its opinion upon that subject, it seeks information from any authentic and available source, without waiting for the formal introduction of testimony to prove it and without confining itself to the process which the parties may offer. But this error of the Circuit Court does not affect the result. For whether this evidence was or was not received, the Circuit Court, for the reasons herein before stated, was bound to recognize that government as the paramount and established authority of the State. Much of the argument on the part of the plaintiff turned upon political rights and political questions, upon which the Page 48 U. S. 47 court has been urged to express an opinion. We decline doing so. The high power has been conferred on this court of passing judgment upon the acts of the State sovereignties, and of the legislative and executive branches of the federal government, and of determining whether they are beyond the limits of power marked out for them respectively by the Constitution of the United States. This tribunal, therefore, should be the last to overstep the boundaries which limit its own jurisdiction. And while it should always be ready to meet any question confided to it by the Constitution, it is equally its duty not to pass beyond its appropriate sphere of action, and to take care not to involve itself in discussions which properly belong to other forums. No one, we believe, has ever doubted the proposition that, according to the institutions of this country, the sovereignty in every State resides in the people of the State, and that they may alter and change their form of government at their own pleasure. But whether they have changed it or not by abolishing an old government and establishing a new one in its place is a question to be settled by the political power. And when that power has decided, the courts are bound to take notice of its decision, and to follow it. The judgment of the Circuit Court must therefore be affirmed. RACHEL LUTHER v. LUTHER M. BORDEN ET AL. Mr. Chief Justice TANEY delivered the opinion of the court. This case has been sent here under a certificate of division from the Circuit Court for the District of Rhode Island. It appears, on the face of the record, that the division was merely formal, and that the whole case has been transferred to this court, and a multitude of points (twenty-nine in number) presented for its decision. We have repeatedly decided that this mode of proceeding is not warranted by the act of Congress, authorizing the justices of a Circuit Court to certify to the Supreme Court a question of law which arose at the trial, and upon which they differed in opinion. And many cases in which, like the present one, the whole case was certified, have been dismissed for want of jurisdiction. The same disposition must be made of this. The material points, however, have been decided in the case of Martin Luther against the same defendants, in which the opinion of this court has been just delivered, and which was regularly brought up by writ of error upon the judgment of the Circuit Court. The case before us depends mainly upon the same principles, and, indeed, grew out of the same transaction, and the parties will understand the Page 48 U. S. 48 judgment of this court upon all the material points certified, from the opinion it has already given in the case referred to. This case is removed to the Circuit Court. * Mr. Justice Catron, Mr. Justice Daniel, and Mr. Justice McKinley were absent on account of ill health when this case was argued. Mr. Justice WOODBURY, dissenting. The writ in this case charges the defendants with breaking and entering the plaintiff's dwelling house, on the 29th of June, 1842, and doing much damage. The plea in justification alleges that, on June 24th, 1842, an assembly in arms had taken place in Rhode Island to overawe and make war upon the State. And therefore, in order to protect its government, the legislature, on the 25th of that month, passed an act declaring the whole State to be under martial law. That the plaintiff was assisting in traitorous designs, and had been in arms to sustain them, and the defendants were ordered by J. Child, an officer in the militia, to arrest the plaintiff, and, supposing him within the house named in the writ, to break and enter it for the purpose of fulfilling that order, and, in doing this, they caused as little damage as possible. The replication denied all the plea, and averred that the defendants did the acts complained of in their own wrong, and without the cause alleged. To repel the defense, and in vindication of the conduct of the plaintiff, much evidence was offered, the substance of which will be next stated, with some leading facts proved on the other side in connection with it The people of Rhode Island had continued to live under their charter of 1663 from Charles the Second till 1841, with some changes in the right of suffrage by acts of the legislature, but without any new constitution, and still leaving in force a requirement of a freehold qualification for voting. By the growth of the State in commerce and manufactures, this requirement had for some time been obnoxious, as it excluded so many adult males of personal worth and possessed of intelligence and wealth, though not of land, and as it made the ancient apportionment of the number of representatives, founded on real estate, very disproportionate to the present population and personal property in different portions and towns of the State. This led to several applications to the legislature for a change in these matters, or for provision to have a convention of the people called to correct it by a new constitution. These all failing, voluntary societies were formed in 1841, Page 48 U. S. 49 and a convention called by them of delegates, selected by the made adults who had resided one year in the State, with a view chiefly to correct the right of suffrage and the present unequal apportionment of representatives. This, though done without the formalities or recommendation of any statute of the State, or any provision in the charter, was done peacefully, and with as much care and form as were practicable without such a statute or charter provision. A constitution was formed by those delegates, a vote taken on its ratification, and an adoption of it made, as its friends supposed, and offered to prove, by a decided majority, both of the freehold voters and of the male adults in the State. Political officers for the executive and legislative departments were then chosen under it by those in its favor, which officers assembled on the 3d of May, 1842, and took their respective oaths of office and appointed several persons to situations under the constitution, and among them the existing judges of the superior court. After transacting some other business the next day, but the old officers in the State under the charter not acknowledging their authority nor surrendering to them the public records and public property, they adjourned till July after, and never convened again, nor performed any further official duties. Nor did they institute actions for the possession of the public records and public property, but T. Dorr, the person elected governor, at the head of an armed force, on the 25th of June, 1842, in his supposed official capacity, made some attempt to get possession of the public arsenal, but, failing in it, he dismissed the military assembled, by a written order, on the 27th of June, and left the State. He states as a reason for this "that a majority of the friends of the people's constitution disapprove of any further forcible measures for its support." In the meantime, the officers under the old charter, having, as before suggested, continued in possession of the public records and property, and in the discharge of their respective functions, passed an act, on the 24th of June, placing the State under martial law. A proclamation was then issued by the governor warning the people not to support the new constitution or its officers, and another act was passed making it penal to officiate under it. An application was made to the President of the United States for assistance in quelling the disturbances apprehended, but was answered by him on the 29th of May, 1842, not complying with the request, though with expressions of willingness to do it should it, in his opinion, afterwards become necessary. Nothing further seems to have been done by him in the Page 48 U. S. 50 premises except that, on the 29th of June, the day of the trespass complained of in this action, a proclamation was prepared under his direction, but not issued, denouncing such of the supporters of the new constitution as were in arms to be "insurgents," and commanding them to disperse. It was next shown by the respondents that Dorr, the governor-elect under the new constitution, was, in August, 1842, indicted for treason against the State, and, being apprehended in 1844, was then tried and convicted. If further appears that the court, at the trial of the present cause, ruled out the evidence offered by the plaintiff in support of his conduct and admitted that which went to justify the defendants, and decided that the old charter, and not the new constitution, was in force at the time the act passed declaring martial law, and that this law was valid, and, as pleaded, justified the defendants in their behaviour. Without entering here at more length into details concerning the unhappy controversy which agitated Rhode Island in 1842, it is manifest that it grew out of a political difficulty among her own people in respect to the formation of a new constitution. It is not probable that the active leaders, and much less the masses who were engaged on either side, had any intention to commit crimes or oppress illegally their fellow citizens. Such, says Grotius, is usually, in civil strife, the true, liberal view to be taken of the masses. Grotius on War, B. 3, ch. 11, sec. 6. And much more is it so when, in a free country, they honestly divide on great political principles, and do not wage a struggle merely for rapine or spoils. In this instance, each side appears to have sought, by means which it considered lawful and proper, to sustain the cause in which it had embarked, till peaceful discussions and peaceful action unexpectedly ripened into a resort to arms and brother became arrayed against brother in civil strife. Fortunately, no lives were destroyed, and little property injured. But the bitterness consequent on such differences did not pass off without some highly penal legislation and the extraordinary measure of the establishment of martial law over the whole State. Under these circumstances, it is too much to expect, even at this late day, that a decision on any branch of this controversy can be received without some of the leaven of former political excitement and prejudice, on the one side or the other, by those who were engaged in its stirring scenes. Public duty, however, seems to require each member of this court to speak freely his own convictions on the different questions which it may be competent for us to decide, and when one of those members, like myself, has the misfortune to differ in any respect from the rest, to explain Page 48 U. S. 51 with frankness, and undeterred by consequences, the grounds of that difference. This difference, however, between me and my brethren extends only to the points in issue concerning martial law. But that being a very important one in a free government, and this controversy having arisen in the circuit to which I belong, and where the deepest interest is felt in its decision, I hope to be excused for considering that point fully and for assigning also some additional and different reasons why I concur with the rest of the court in the opinion, that the other leading question, the validity of the old charter at that time, is not within our constitutional jurisdiction. These two inquiries seem to cover the whole debatable ground, and I refrain to give an opinion on the last question, which is merely political, under a conviction that, as a judge, I possess no right to do it, and not to avoid or conceal any views entertained by me concerning them, as mine, before sitting on this bench and as a citizen, were frequently and publicly avowed. It must be very obvious on a little reflection that the last is a mere political question. Indeed, large portions of the points subordinate to it on this record, which have been so ably discussed at the bar, are of a like character, rather than being judicial in their nature and cognizance. For they extend to the power of the people, independent of the legislature, to make constitutions, to the right of suffrage among different classes of them in doing this, to the authority of naked majorities, and other kindred questions of such high political interest as during a few years to have agitated much of the Union, no less than Rhode Island. But, fortunately for our freedom from political excitements in judicial duties, this court can never with propriety be called on officially to be the umpire in questions merely political. The adjustment of these questions belongs to the people and their political representatives, either in the State or general government. These questions relate to matters not to be settled on strict legal principles. They are adjusted rather by inclination, or prejudice or compromise, often. Some of them succeed or are defeated even by public policy alone, or mere naked power, rather than intrinsic right. There being so different tastes as well as opinions in politics, and especially in forming constitutions, some people prefer foreign models, some domestic, and some neither, while judges, on the contrary, for their guides, have fixed constitutions and laws, given to them by others and not provided by themselves. And those others are no more Locke than an Abbe Sieyes, but the people. Judges, for constitutions, must go to the people of their own country, and must Page 48 U. S. 52 merely enforce such as the people themselves, whose judicial servants they are, have been pleased to put into operation. Another evil, alarming and little foreseen, involved in regarding these as questions for the final arbitrament of judges would be that, in such an event, all political privileges and rights would, in a dispute among the people, depend on our decision finally. We would possess the power to decide against, as well as for, them, and, under a prejudiced or arbitrary judiciary, the public liberties and popular privileges might thus be much perverted, if not entirely prostrated. But, allowing the people to make constitutions and unmake them, allowing their representatives to make laws and unmake them, and without our interference as to their principles or policy in doing it, yet, when constitutions and laws are made and put in force by others, then the courts, as empowered by the State or the Union, commence their functions and may decide on the rights which conflicting parties can legally set up under them, rather than about their formation itself. Our power begins after theirs ends. Constitutions and laws precede the judiciary, and we act only under and after them, and as to disputed rights beneath them, rather than disputed points in making them. We speak what is the law, jus dicere, we speak or construe what is the constitution, after both are made, but we make, or revise, or control neither. The disputed rights beneath constitutions already made are to be governed by precedents, by sound legal principles, by positive legislation, clear contracts, moral duties, and fixed rules; they are per se questions of law, and are well suited to the education and habits of the bench. But the other disputed points in making constitutions, depending often, as before shown, on policy, inclination, popular resolves and popular will and arising not in respect to private rights, not what is meum and tuum, but in relation to politics, they belong to politics, and they are settled by political tribunals, and are too dear to a people bred in the school of Sydney and Russel for them ever to intrust their final decision, when disputed, to a class of men who are so far removed from them as the judiciary, a class also who might decide them erroneously, as well as right, and if in the former way, the consequences might not be able to be averted except by a revolution, while a wrong decision by a political forum can often be peacefully corrected by new elections or instructions in a single month; and if the people, in the distribution of powers under the constitution, should ever think of making judges supreme arbiters in political controversies when not selected by nor, frequently, amenable to them nor at liberty to follow such various considerations in their judgments as Page 48 U. S. 53 belong to mere political questions, they will dethrone themselves and lose one of their own invaluable birthrights; building up in this way -- slowly, but surely -- a new sovereign power in the republic, in most respects irresponsible and unchangeable for life, and one more dangerous, in theory at least, than the worst elective oligarchy in the worst of times. Again, instead of controlling the people in political affairs, the judiciary in our system was designed rather to control individuals, on the one hand, when encroaching, or to defend them, on the other, under the Constitution and the laws, when they are encroached upon. And if the judiciary at times seems to fill the important station of a check in the government, it is rather a check on the legislature, who may attempt to pass laws contrary to the Constitution, or on the executive, who may violate both the laws and Constitution, than on the people themselves in their primary capacity as makers and amenders of constitutions. Hence, the judiciary power is not regarded by elementary writers on politics and jurisprudence as a power coordinate or commensurate with that of the people themselves, but rather coordinate with that of the legislature. Kendall v. United States , 12 Peters 526. Hence, too, the following view was urged when the adoption of the Constitution was under consideration: "It is the more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter within the limits assigned to their authority." Federalist, No. 77, by Hamilton. "Nor does the conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both," "&c., &c." But how would this superiority be as to this court if we could decide finally on all the political claims and acts of the people and overrule or sustain them according only to our own views? So the judiciary, by its mode of appointment, long duration in office, and slight accountability, is rather fitted to check legislative power than political, and enforce what the political authorities have manifestly ordained. These last authorities are, by their pursuits and interests, better suited to make rules, we to expound and enforce them after made. The subordinate questions which also arise here in connection with the others, such as whether all shall vote in forming or amending those constitutions who are capable and accustomed to transact business in social and civil life, and none others, and whether, in great exigencies of oppression by the legislature itself and refusal by it to give relief, the people may not take the subject into their own hands, independent of the legislature, Page 48 U. S. 54 and whether a simple plurality in number on such an occasion, or a majority of all, or a larger proportion, like two-thirds or three-fourths, shall be deemed necessary and proper for a change, and whether, if peacefully completed, violence can afterwards be legally used against them by the old government, if that is still in possession of the public property and public records, whether what are published and acted on as the laws and constitution of a State were made by persons duly chosen or not, were enrolled and read according to certain parliamentary rules or not, were in truth voted for by a majority or two thirds -- these and several other questions equally debatable and difficult in their solution are in some aspects a shade less political. But they are still political. They are too near all the great fundamental principles in government, and are too momentous ever to have been intrusted by our jealous fathers to a body of men like judges, holding office for life, independent in salary, and not elected by the people themselves. Non nostrum tantas componere lites. Where, then, does our power, as a general rule, begin? In what place runs the true boundary line? It is here. Let the political authorities admit as valid a constitution made with or without previous provision by the legislature, as in the last situation Tennessee and Michigan were introduced into the Union. See Federalist, No. 40, and 2 Ell.Deb. 57; 13 Regis by Y. 95, 1164, and Cong. Globe, App., 78, 137, 147. Let the collected will of the people as to changes be so strong, and so strongly evinced, as to call down no bills of pains and penalties to resist it and no arming of the militia or successful appeals to the general government to suppress it by force, as none were in some cases abroad as well as in America, and one recently in New York, which might be cited beside those above. See A.D. 1846, and opinion of their judges. In short, let a constitution or law, however originating, be clearly acknowledged by the existing political tribunals, and be put and kept in successful operation. The judiciary can then act in conformity to and under them. Kemper v. Hawkins, 1 Virg.Cas., 74, App. Then, when the claims of individuals come in conflict under them, it is the true province of the judiciary to decide what they rightfully are under such constitutions and laws, rather than to decide whether those constitutions and laws themselves have been rightfully or wisely made. Again, the Constitution of the United States enumerates specially the cases over which its judiciary is to have cognizance, but nowhere includes controversies between the people of a State as to the formation or change of their constitutions. Page 48 U. S. 55 See Article 3, sec. 2. Though at first the federal judiciary was empowered to entertain jurisdiction where a State was a party in a suit, it has since been deprived even of that power by a jealous country except in cases of disputed boundary. Article 3, sec. 2; Amendment 11th; Massachusetts v. Rhode Island , 12 Peters 755. If it be asked what redress have the people, if wronged in these matters, unless by resorting to the judiciary, the answer is, they have the same as in all other political matters. In those, they go to the ballot boxes, to the legislature or executive, for the redress of such grievances as are within the jurisdiction of each, and, for such as are not, to conventions and amendments of constitutions. And when the former fail, and these last are forbidden by statutes, all that is left in extreme cases, where the suffering is intolerable and the prospect is good of relief by action of the people without the forms of law, is to do as did Hampden and Washington, and venture action without those forms, and abide the consequences. Should strong majorities favor the change, it generally is completed without much violence. In most states, where representation is not unequal, or the right of suffrage is not greatly restricted, the popular will can be felt and triumph through the popular vote and the delegates of the people in the legislature, and will thus lead soon, and peacefully, to legislative measures ending in reform, pursuant to legislative countenance and without the necessity of any stronger collateral course. But when the representation is of a character which defeats this, the action of the people, even then, if by large majorities, will seldom be prosecuted with harsh pains and penalties, or resisted with arms. Changes, thus demanded and thus supported, will usually be allowed to go into peaceful consummation. But when not so allowed, or when they are attempted by small or doubtful majorities, it must be conceded that it will be at their peril, as they will usually be resisted by those in power by means of prosecutions, and sometimes by violence, and, unless crowned by success, and thus subsequently ratified, they will often be punished as rebellious or treasonable. If the majorities, however, in favor of changes happen to be large, and still those in power refuse to yield to them, as in the English revolution of 1688, or in our own of 1776, the popular movement will generally succeed, though it be only by a union of physical with moral strength; and when triumphant, it will, as on those occasions, confirm by subsequent forms of law what may have begun without them. There are several other questions, also, which may arise under our form of government that are not properly of judicial Page 48 U. S. 56 cognizance. They originate in political matters, extend to political objects, and do not involve any pecuniary claims or consequences between individuals so as to become grounds for judicial inquiry. These questions are decided sometimes by legislatures, or heads of departments, or by public political bodies, and sometimes by officers, executive or military, so as not to be revisable here. See Decatur v. Paulding , 14 Peters 497. Looking to all these considerations, it appears to me that we cannot rightfully settle those grave political questions which, in this case, have been discussed in connection with the new constitution; and, as judges, our duty is to take for a guide the decision made on them by the proper political powers, and, whether right or wrong according to our private opinions, enforce it till duly altered. But it is not necessary to rest this conclusion on reasoning alone. Several precedents in this court, as well as in England, show the propriety of it. In Foster et al. v. Neilson , 2 Peters 309, where the title to the property depended on the question whether the land was within a cession by treaty to the United States, it was held that, after our government, legislative and executive, had claimed jurisdiction over it, the courts must consider that the question was a political one the decision of which, having been made in this manner, they must conform to. See also 6 Peters 31 U. S. 711 and Garcia v. Lee , 12 Peters 520; 38 U. S. 13 Peters 419. In The Cherokee Nation v. The State of Georgia , 5 Peters 20, the court expressed strong doubts whether it was not a political question, not proper for their decision, to protect the Cherokee Indians in their possessions, and to restrain the State of Georgia and construe and enforce its treaty obligations. Justice Johnson seemed decisive that it was. In Massachusetts v. Rhode Island , 12 Peters 736, 37 U. S. 738 , it was held that the boundaries between States was a political question per se, and should be adjusted by political tribunals unless agreed to be settled as a judicial question, and in the Constitution so provided for. Garcia v. Lee, ib., 37 U. S. 520 . In Barclay v. Russel, 3 Ves. 424, in respect to confiscations, it was held to be a political question, and a subject of treaty, and not of municipal jurisdiction. P. 434. In Nabob of the Carnatic v. The East India Company, 2 Ves. jun. 56, the court decided that political treaties between a foreign state and subjects of Great Britain, conducting as a state under acts of Parliament, are not a matter of municipal jurisdiction, and to be examined and enforced by the judiciary. Another class of political questions, coming still nearer this, is which must be regarded as the rightful government abroad Page 48 U. S. 57 between two contending parties? That is never settled by the judiciary, but is left to the decision of the general government. The Cherokee Case , 5 Peters 50; and Williams v. Suffolk Ins. Co. , 13 Peters 419; 6 U. S. 2 Cranch 241; Rose v. Himely , 4 Cranch 268; United States v. Palmer , 3 Wheat. 634, and Gelston v. Hoyt, ib. , 246; The Divina Pastora , 4 Wheat. 64; 14 Ves. 353; 11 Ves. 583; 1 Edw. Ad. 1. The doctrines laid down in Palmer's case are as directly applicable to this in the event of two contending parties in arms in a domestic war as in a foreign. If one is recognized by the executive or legislature of the Union as the de facto government, the judiciary can only conform to that political decision. See also The Santissima Trinidad , 7 Wheat. 336, 20 U. S. 337 ; and, further, that if our general government recognizes either as exclusively in power, the judiciary must sustain its belligerent rights, see 3 Sumner 270. In the case of the City of Berne v. The Bank of England, 9 Ves. 348, it was held that "a judicial court cannot take notice of a foreign government not acknowledged by the government of the country in which the court sits." The same rule has been applied by this court in case of a contest as to which is the true constitution between two, or which possesses the true legislative power in one, of our own States, those citizens acting under the new constitution, which is objected to as irregularly made, or those under the old territorial government therein. Semb. 46 U. S. v. Jones et al., 5 Howard 374. In that case, we held that no writ of error lies to us to revise a decision of a State court where the only question is the validity of the statute on account of the political questions and objections just named. It was held also in Williams v. Suffolk Ins. Co., 3 Sumner 270, that, where a claim exists by two governments over a country, the courts of each are bound to consider the claims of their own government as right, being settled for the time being by the proper political tribunal. And hence no right exists in their judicial authorities to revise that decision. Pp. 273, 275; S.C., 38 U. S. 13 Peters 419. " Omnia rite acta. It might otherwise happen that the extraordinary spectacle might be presented of the courts of a country disavowing and annulling the acts of its own government in matters of state and political diplomacy." This is no new distinction in judicial practice, any more than in judicial adjudications. The pure mind of Sir Matthew Hale, after much hesitation, at last consented to preside on the bench in administering the laws between private parties under a government established and recognized by other governments, and in full possession de facto of the records and power of the kingdom, but without feeling satisfied on inquiring, as a Page 48 U. S. 58 judicial question, into its legal rights. Cromwell had "gotten possession of the government," and expressed a willingness "to rule according to the laws of the land" -- by "red gowns rather than red coats," as he is reported to have quaintly remarked. And this Hale thought justified him in acting as a judge. Hale's Hist. of the Com.Law, p. 14, Preface. For a like reason, though the power of Cromwell was soon after overturned, and Charles and Second restored, the judicial decisions under the former remained unmolested on this account, and the judiciary went on as before, still looking only to the de facto government for the time being. Grotius virtually holds the like doctrine. B 1, ch. 4, sec. 20, and B. 2, ch. 13, sec. 11. Such was the case likewise over most of this country after the Declaration of Independence, till the acknowledgment of it by England in 1783. 3 Story's Com. on Const., §§ 214, 215. And such is believed to have been the course in France under all her dynasties and regimes during the last half-century. These conclusions are strengthened by the circumstance that the Supreme Court of Rhode Island, organized since under the second new constitution, has adopted this principle. In numerous instances, this court has considered itself bound to follow the decision of the State tribunals on their own constitutions and laws. See cases in Smith v. Babcock, 2 Woodb. & Min.; 46 U. S. 5 Howard 139; Elmendorf v. Taylor , 10 Wheat. 159; Bank of United States v. Daniel et al. , 12 Peters 32. This, of course, relates to their validity when not overruling any defence set up under the authority of the United States. None such was set up in the trial of Dorr, and yet, after full hearing, the Supreme Court of Rhode Island decided that the old charter and its legislature were the political powers which they were bound to respect, and the only ones legally in force at the time of this transaction, and accordingly convicted and punished the governor chosen under the new constitution for treason, as being technically committed, however pure may have been his political designs or private character. Report of Dorr's Trial, 1844, pp. 130, 131. The reasons for this uniform compliance by us with State decisions made before ours on their own laws and constitutions, and not appealed from, are given by Chief Justice Marshall with much clearness. It is only necessary to refer to his language in Elmendorf v. Taylor , 10 Wheat. 159. Starting, then, as we are forced to here, with several political questions arising on this record, and those settled by political tribunals in the State and general government, and whose decisions on them we possess no constitutional authority to revise, all which, apparently, is left for us to decide is the Page 48 U. S. 59 other point, whether the statute establishing martial law over the whole State, and under which the acts done by the defendants are sought to be justified, can be deemed constitutional. To decide a point like this last is clearly within judicial cognizance, it being a matter of private personal authority and right, set up by the defendants under constitutions and laws, and not of political power, to act in relation to the making of the former. Firstly, then, in order to judge properly whether this act of Assembly was constitutional, let us see what was the kind and character of the law the Assembly intended, in this instance, to establish, and under which the respondents profess to have acted. The Assembly says: "The State of Rhode Island and Providence Plantations is hereby placed under martial law, and the same is hereby declared to be in full force until otherwise ordered by the General Assembly, or suspended by a proclamation of his Excellency the Governor of the State." Now the words "martial law," as here used, cannot be construed in any other than their legal sense, long known and recognized in legal precedents as well as political history. See it in 1 Hallam's Const. Hist., ch. 5, p. 258; 1 MacArthur on Courts-Martial, 33. The legislature evidently meant to be understood in that sense by using words of such well settled construction, without any limit or qualification, and covering the whole State with its influence under a supposed exigency and justification for such an unusual course. I do not understand this to be directly combated in the opinion just delivered by the Chief Justice. That they could mean no other than the ancient martial law often used before the Petition of Right, and sometimes since, is further manifest from the fact that they not only declared "martial" law to exist over the State, but put their militia into the field to help, by means of them and such a law, to suppress the action of those denominated "insurgents," and this without any subordination to the civil power or any efforts in conjunction and in cooperation with it. The defendants do not aver the existence of any civil precept which they were aiding civil officers to execute, but set up merely military orders under martial law. Notwithstanding this, however, some attempts have been made at another construction of this act, somewhat less offensive, by considering it a mere equivalent to the suspension of the habeas corpus, and another still to regard it as referring only to the military code used in the armies of the United States and England. But when the legislature enacted Page 48 U. S. 60 such a system "as martial law," what right have we to say that they intended to establish something else, and something entirely different? A suspension, for instance, of the writ of habeas corpus, a thing not only unnamed by them but wholly unlike and far short, in every view, of what they both said and did? Because they not only said, eo nomine, that they established "martial law," but they put in operation its principles -- principles not relating merely to imprisonment, like the suspension of the habeas corpus, but forms of arrest without warrant, breaking into houses where no offenders were found, and acting exclusively under military orders, rather than civil precepts. Had the legislature meant merely to suspend the writ of habeas corpus, they, of course, would have said that, and nothing more. A brief examination will show also that they did not thus intend to put in force merely some modern military code, such as the Articles of War made by Congress, or those under the Mutiny Act in England. They do not mention either, and what is conclusive on this, neither would cover or protect them in applying the provisions of those laws to a person situated like the plaintiff. For nothing is better settled than that military law applies only to the military, but "martial law" is made here to apply to all. Hough on Courts-Martial 384, note; 27 State Trials 625, in Theobald Wolfe Tone's case. The present laws for the government of the military in England also do not exist in the vague and general form of martial law, but are explicitly restricted to the military, and are allowed as to them only to prevent desertion and mutiny and to preserve good discipline. 1 Bl.Com. 412; 1 MacArthur on Courts-Martial, p. 20. So, in this country, legislation as to the military is usually confined to the general government, where the great powers of war and peace reside. And hence, under those powers, Congress, by the act of 1806 2 Stat. at Large 359, has created the Articles of War, "by which the armies of the United States shall be governed," and the militia when in actual service, and only they. To show this is not the law by which other than those armies shall be governed, it has been found necessary, in order to include merely the drivers or artificers "in the service," and the militia after mustered into it, to have special statutory sections. See articles 96 and 97. Till mustered together, even the militia are not subject to martial law. 18 U. S. 5 Wheat. 20; 3 Stor.Com.Const. § 120. And whenever an attempt is made to embrace others in its operation, not belonging to the military or militia, nor having ever agreed to the rules of the service, well may they say, we have not entered into such bonds, in haec vinculae non veni. Page 48 U. S. 61 2 Hen.Bl. 99; 1 Bl.Com. 408, 414; 1 D. & E. 493, 550, 784; 27 State Trials, 625. Well may they exclaim, as in Magna Charta, that "no freeman shall be taken or imprisoned but by the lawful judgment of his equals, or by the law of the land." There is no pretence that this plaintiff, the person attempted to be arrested by the violence exercised here, was a soldier or militia-man then mustered into the service of the United States, or of Rhode Island, or subject by its laws to be so employed, or on that account sought to be seized. He could not, therefore, in this view of the case, be arrested under this limited and different kind of military law, nor houses be broken into for that purpose and by that authority. So it is a settled principle even in England that, "under the British constitution, the military law does in no respect either supersede or interfere with the civil law of the realm," and that "the former is in general subordinate to the latter" Tytler on Military Law 365, while "martial law" overrides them all. The Articles of War likewise are not only authorized by permanent, rather than temporary, legislation, but they are prepared by or under it with punishments and rules before promulgated and known and assented to by those few who are subject to them as operating under established legal principles and the customary military law of modern times. 1 East, 306, 313; Pain v. Willard , 12 Wheat. 539, and also 19; 1 MacArthur, Courts-Martial 13 and 215. They are also definite in the extent of authority under them as to subject matter as well as persons, as they regulate and restrain within more safe limits the jurisdiction to be used, and recognize and respect the civil rights of those not subject to it, and even of those who are in all other matters than what are military and placed under military cognizance. 2 Stephen on Laws of Eng. 602; 9 Bac.Abr., Soldier, F; Tytler on Military Law, 119. And as a further proof how rigidly the civil power requires the military to confine even the modified code martial to the military, and to what are strictly military matters, it cannot, without liability to a private suit in the judicial tribunals, be exercised on a soldier himself for a cause not military, or over which the officer had no right to order him -- as, for example, to attend school instruction, or pay an assessment towards it out of his wages. 4 Taunt. 67; 4 Maule & Selw. 400; 2 Hen.Bl. 103, 537; 7 U. S. 3 Cranch 337; 7 Johns. 96. The prosecution of Governor Wall in England for causing, when he was in military command, a soldier to be seized and flogged so that he died, for an imputed offence not clearly military and by a pretended court-martial without a full trial, and executing Wall for the offence after a lapse of twenty years, Page 48 U. S. 62 illustrate how jealously the exercise of any martial power is watched in England, though in the army itself and on its own members. See Annual Register for 1802, p. 569; 28 State Trials, p. 52, Howell's ed. How different in its essence and forms, as well as subjects, from the Articles of War was the "martial law" established here over the whole people of Rhode Island may be seen by adverting to its character for a moment, as described in judicial as well as political history. It exposed the whole population not only to be seized without warrant or oath, and their houses broken open and rifled, and this where the municipal law and its officers and courts remained undisturbed and able to punish all offences, but to send prisoners thus summarily arrested in a civil strife to all the harsh pains and penalties of courts-martial or extraordinary commissions, and for all kinds of supposed offences. By it, every citizen, instead of reposing under the shield of known and fixed laws as to his liberty, property, and life, exists with a rope round his neck, subject to be hung up by a military despot at the next lamp-post under the sentence of some drum-head court-martial. See Simmons' Pract. of Courts-Martial 40. See such a trial in Hough on Courts-Martial, 383, where the victim on the spot was "blown away by a gun," "neither time, place, nor persons considered." As an illustration how the passage of such a law may be abused, Queen Mary put it in force in 1558 by proclamation merely, and declared, "that whosoever had in his possession any heretical, treasonable, or seditious books, and did not presently burn them, without reading them or showing them to any other person, should be esteemed a rebel, and without any further delay be executed by the martial law." Tyler on Military Law, p. 50, ch. 1, sec 1. For convincing reasons like these, in every country which makes any claim to political or civil liberty, "martial law," as here attempted and as once practised in England against her own people, has been expressly forbidden there for near two centuries, as well as by the principles of every other free constitutional government. 1 Hallam's Const. Hist. 420. And it would be not a little extraordinary if the spirit of our institutions, both State and national, was not much stronger than in England against the unlimited exercise of martial law over a whole people, whether attempted by any chief magistrate or even by a legislature. It is true, and fortunate it is that true, the consequent actual evil in this instance from this declaration of martial law was smaller than might have been naturally anticipated. But we must be thankful for this not to the harmless character of the law itself, but rather to an inability to arrest many, or from the Page 48 U. S. 63 small opposition in arms, and its short continuance, or from the deep jealousy and rooted dislike generally in this country to any approach to the reign of a mere military despotism. Unfortunately, the legislature had probably heard of this measure in history, and even at our Revolution, as used by some of the British generals against those considered rebels, and, in the confusion and hurry of the crisis, seem to have rushed into it suddenly, and, I fear, without a due regard to private rights, or their own constitutional powers or the supervisory authority of the general government over wars and rebellions. Having ascertained the kind and character of the martial law established by this act of Assembly in Rhode Island, we ask next how, under the general principles of American jurisprudence in modern times, such a law can properly exist or be judicially upheld. A brief retrospect of the gradual, but decisive, repudiation of it in England will exhibit many of the reasons why such a law cannot be rightfully tolerated anywhere in this country. One object of Parliamentary inquiry, as early as 1620, was to check the abuse of martial law by the king which had prevailed before. Tytler on Military Law 502. The Petition of Right, in the first year of Charles the First, reprobated all such arbitrary proceedings in the just terms and in the terse language of that great patriot as well as judge, Sir Edward Coke, and prayed they might be stopped and never repeated. To this the king wisely replied, " Soit droit fait come est desire, Let right be done as desired." Petition of Right, in Statutes at Large, 1 Charles 1. Putting it in force by the king alone was not only restrained by the Petition of Right early in the seventeenth century, but virtually denied as lawful by the Declaration of Rights in 1688. Tytler on Military Law 307. Hallam, therefore, in his Constitutional History, p. 420, declares that its use by "the commissions to try military offenders by martial law was a procedure necessary within certain limits to the discipline of an army, but unwarranted by the constitution of this country." Indeed, a distinguished English judge has since said that "martial law," as of old, now "does not exist in England at all," "was contrary to the constitution, and has been for a century totally exploded." Grant v. Gould, 2 Hen.Bl. 69; 1 Hale, P.C. 346; Hale, Com.Law ch. 2, p. 36; 1 MacArthur 55. This is broad enough, and is correct as to the community generally in both war and peace. No question can exist as to the correctness of this doctrine in time of peace. The Mutiny Act itself, for the government of the army, in 36 Geo. 3, ch. 24, sec. 1, begins by reciting, "Whereas, no man can be forejudged of life or limb, or subjected Page 48 U. S. 64 in time of peace to any punishment within the realm by martial law." Simmons' Pract. of Courts-Martial 38. Lord Coke says, in 3 Inst. 52: "If a lieutenant, or other that hath commission of martial authority in time of peace hang or otherwise execute any man by color of martial law, this is murder." "Thom. Count de Lancaster, being taken in open insurrection, was by judgment of martial law put to death," and this, though during an insurrection, was adjudged to be murder because done in time of peace, and while the courts of law were open. 1 Hallam's Const.Hist. 260. The very first Mutiny Act, therefore, under William the Third, was cautious to exonerate all subjects except the military from any punishment by martial law. Tytler on Military Law 19, note. In this manner it has become gradually established in England that, in peace, the occurrence of civil strife does not justify individuals or the military or the king in using martial law over the people. It appears also that nobody has dared to exercise it in war or peace on the community at large in England for the last century and a half, unless specially enacted by Parliament in some great exigency and under various restrictions, and then under the theory not that it is consistent with bills of rights and constitutions, but that Parliament is omnipotent, and for sufficient cause may override and trample on them all temporarily. After the civil authorities have become prostrated in particular places, and the din of arms has reached the most advanced stages of intestine commotions, a Parliament which alone furnishes the means of war -- a Parliament unlimited in its powers -- has, in extremis, on two or three occasions, ventured on martial law beyond the military, but it has usually confined it to the particular places thus situated, limited it to the continuance of such resistance, and embraced in its scope only those actually in arms. Thus, the "Insurrection Act" of November, 1796, for Ireland, passed by the Parliament of England, extended only to let magistrates put people "out of the king's peace," and subject to military arrest, under certain circumstances. Even then, though authorized by Parliament, like the general government here, and not a State, it is through the means of the civil magistrate, and a clause of indemnity goes with it against prosecutions in the "king's ordinary courts of law." Annual Register, p. 173, for A.D. 1798; 1 MacArthur, Courts-Martial, 34. See also the cases of the invasions by the Pretender in 1715 and 1745, and of the Irish rebellion in 1798. Tytler on Military Law 48, 49, 369, 370, App. No. 6, p. 402, the act passed by the Irish Parl.; Simmons' Page 48 U. S. 65 Practice of Courts-Martial, App. 633. When speaking of the absence of other and sound precedents to justify such martial law in modern times here, I am aware that something of the kind may have been attempted in some of the doings of the British Colonial governors towards this country at the Revolution. In the Annual Register for 1775, p. 133, June 12th, it may be seen that General Gage issued his proclamation pardoning all who would submit except Samuel Adams and John Hancock, and further declaring, "that, as a stop was put to the due course of justice, martial law should take place till the laws were restored to their due efficacy." Though the engagements at Lexington and Concord happened on the 19th of April, 1775, though Parliament had, in February previous, declared the Colonies to be in a state of rebellion, ibid., p. 247, and though thousands of militia had assembled near Bunker Hill before the 12th of June, no martial law had been established by Parliament, and not till that day did General Gage, alone and unconstitutionally, undertake, in the language of our fathers, to "supersede the course of the common law, and, instead thereof, to publish and order the use and exercise of martial law." Ibid., p. 261; Journal of Old Cong., 147, a declaration on 6th July, 1775, drawn up by J. Dickenson. Another of these outrages was by Lord Dunmore, in Virginia, November 7th, 1775, not only declaring all the slaves of rebels free, but "declaring martial law to be enforced throughout this Colony." Annual Register for 1775, p. 28; 4 American Archives 74. This was, however, justly denounced by the Virginia Assembly as an "assumed power which the king himself cannot exercise," as it "annuls the law of the land and introduces the most execrable of all systems, martial law." 4 American Archives 87. It was a return to the unbridled despotism of the Tudors, which, as already shown one to two hundred years before, had been accustomed, in peace as well as war, to try not only soldiers under it, but others, and by courts-martial, rather than civil tribunals, and by no settled laws instead of the municipal code, and for civil offences no less than military ones. 2 Hen.Bl. 85; 3 Instit. 52; Stat. at Large, 1 Charles 1; Tytler on Military Law, passim. Having thus seen that "martial law" like this, ranging over a whole people and State, was not by our fathers considered proper at all in peace or during civil strife, and that, in the country from which we derive most of our jurisprudence, the king has long been forbidden to put it in force in war or peace, and that Parliament never, in the most extreme cases of rebellion, allows it, except as being sovereign and unlimited in power, Page 48 U. S. 66 and under peculiar restrictions, the next inquiry is whether the legislature of Rhode Island could, looking to her peculiar situation as to a constitution, rightfully establish such a law under the circumstances existing there in 1842. And, to meet this question broadly, whether she could do it regarding those circumstances, first, as constituting peace, and next, as amounting to war. In examining this, I shall refrain from discussing the points agitated at the bar, whether the old charter under which it took place was a wise one for a republic, or whether the acts of the legislature rendering it so highly penal to resort to peaceful measures to form or put into operation a new constitution without their consent, and establishing "martial law" to suppress them, were characterized by the humanity and the civilization of the present age towards their own fellow citizens. But I shall merely inquire first, whether it was within the constitutional power of that legislature to pass such a law as this during peace, or, in other words, before any lawful and competent declaration of war, leaving all questions of mere expediency as belonging to the States themselves, rather than the judiciary, and being one of the last persons to treat any of them with disrespect or attempt to rob them of any legitimate power. At the outset, it is to be remembered that, if Parliament now exercises such a power occasionally, it is only under various limitations and restrictions, not attended to in this case, and only because the power of Parliament is, by the English constitution, considered as unlimited or omnipotent. But here legislative bodies, no less than the executive and judiciary, are usually not regarded as omnipotent. They are in this country now limited in their powers, and placed under strong prohibitions and checks. 21 U. S. 8 Wheat. 88; 3 Smedes & Marshall 673. This court has declared that "the legislatures are the creatures of the Constitution. They owe their existence to the Constitution. They derive their powers from the Constitution. It is their commission, and therefore all their acts must be conformable to it or else they will be void." Vanhorne's Lessee v. Dorrance, 2 Dall. 308; Vattel, ch. 3, sec. 34. In most of our legislatures, also, as in Rhode Island in A.D. 1798, by a fundamental law, there has been incorporated into their constitutions prohibitions to make searches for papers or persons without a due warrant, and to try for offenses except by indictment unless in cases arising in the army or navy or militia themselves. The genius of our liberties holds in abhorrence all irregular inroads upon the dwelling houses and persons of the citizen, Page 48 U. S. 67 and with a wise jealousy regards them as sacred except when assailed in the established and allowed forms of municipal law. Three of the amendments to the Constitution of the United States were adopted under such influences, to guard against abuses of power in those modes by the general government, and evidently to restrict even a modified "martial law" to cases happening among military men, or the militia when in actual service. For one of them, amendment fourth, expressly provides that "the right of the people to be secured in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The others are amendments third and fifth. And who could hold for a moment, when the writ of habeas corpus cannot be suspended by the legislature itself, either in the general government or most of the States, without an express constitutional permission, that all other writs and laws could be suspended, and martial law substituted for them over the whole State or country, without any express constitutional license to that effect, in any emergency? Much more is this last improbable when even the mitigated measure, the suspension of the writ of habeas corpus, has never yet been found proper by Congress, and, it is believed, by neither of the States, since the Federal Constitution was adopted. 3 Story's Com. on Const., § 1325. Again, the act of June 24th, 1842, as an act of legislation by Rhode Island, was virtually forbidden by the express declaration of principles made by the Rhode Island Assembly in 1798, and also by the views expressed through the delegates of their people upon adopting the Federal Constitution, June 16th, 1790. These may be seen in 1 Elliott's Deb. 370, declaring, in so many words, "that every person has a right to be secure from all unreasonable searches and seizures of his person, his papers, or his property," and warrants to search without oath and seizures by general warrant are "oppressive," and "ought not to be granted." But as these views were expressed in connection with the constitution of the general government, though avowed to be the principles of her people generally, and as the doings in 1798 were in the form of a law, and not a constitution, it was subject to suspension or repeal, and hence it will be necessary to look into the charter to Rhode Island of 1663, her only State constitution till 1842, to see if there be any limitation in that to legislation like this, establishing martial law. So far from that charter, royal as it was in origin, permitting Page 48 U. S. 68 an unlimited authority in the legislature, it will be found expressly to forbid any laws "contrary and repugnant unto" "the laws of this our realm of England," and to require them to be, "as near as may be, agreeable" to those laws. See Document, p. 12. This, so far from countenancing the establishment of martial law in Rhode Island, contrary to the Petition of Right in England and her Bill of Rights, regulated it by the same restrictions, "as near as may be." Nor did our Revolution of A.D. 1776 remove that restraint, so far as respects what was then the body of English laws. For although Rhode Island chose to retain that charter with this restriction after the Revolution, and made no new constitution with other limitations till 1842 or 1843, yet probably "the laws of England" forbidden to be violated by her legislature must be considered such as existed when the charter was granted in 1663, and as continued down to 1776. After that, her control over this country de jure ceasing, a conformity to any new laws made would not be required. But retaining the charter as the sole guide and limit to her legislature until she formed a new constitution, it seems clear that her legislature had no right, on the 25th of June, 1842, to put the whole State under martial law by any act of Parliament in force in England in 1663 or in 1776, because none such was then in force there, nor by any clause whatever in her charter, as will soon be shown, nor by any usages in her history, nor by any principles which belong to constitutional governments or the security of public liberty. To remove all doubt on this subject, the charter does expressly allow "martial law" in one way and case to be declared, and thus impliedly forbids it in any other. Expressio unius est exclusio alterius. But so far from the martial law allowed by it being by permission of the legislature and over the whole State, it was to be declared only in war waged against a public enemy, and then by the "military officer" appointed to command the troops so engaged, and then not over their whole territory and all persons and cases, but he was to "use and exercise the law martial in such cases only as occasion shall necessarily require." P. 15. Even this power, thus limited, as before shown, related to the troops of the State, and those liable to serve among them in an exigency, and when in arms against an enemy. They did not touch opponents, over whom they could exercise only the municipal laws if noncombatants, and only the law of nations and belligerent rights when in the field, and after war or rebellion is recognized as existing by the proper authorities. Again, it would be extraordinary indeed if in England Page 48 U. S. 69 the king himself is restrained by Magna Charta and by the Petition as well as Declaration of Rights, binding him to these limits against martial law since the Revolution of 1688 4 Bl.Com. 440; 27 U. S. 2 Peters 656, and yet he could grant a charter which should exonerate others from the obligations of Magna Charta and the general laws of the kingdom, or that they could be exonerated under it as to the power of legislation, and do what is against the whole body of English laws since the end of the sixteenth century, and what Parliament itself, in its omnipotence and freedom from restrictions, has never, in the highest emergencies, thought it proper to do without numerous limitations, regulations, and indemnities, as before explained. Beside this, it may well be doubted whether, in the nature of the legislative power in this country, it can be considered as anywhere rightfully authorized, any more than the executive, to suspend or abolish the whole securities of person and property at its pleasure, and whether, since the Petition of Right was granted, it has not been considered as unwarrantable for any British or American legislative body, not omnipotent in theory like Parliament, to establish in a whole country an unlimited reign of martial law over its whole population, and whether to do this is not breaking up the foundations of all sound municipal rule, no less than social order, and restoring the reign of the strongest, and making mere physical force the test of right. All our social usages and political education, as well as our constitutional checks, are the other way. It would be alarming enough to sanction here an unlimited power, exercised either by legislatures, or the executive, or courts, when all our governments are themselves governments of limitations and checks, and of fixed and known laws, and the people a race above all others jealous of encroachments by those in power. And it is far better that those persons should be without the protection of the ordinary laws of the land who disregard them in an emergency, and should look to a grateful country for indemnity and pardon, than to allow, beforehand, the whole frame of jurisprudence to be overturned, and every thing placed at the mercy of the bayonet. No tribunal or department in our system of governments ever can be lawfully authorized to dispense with the laws, like some of the tyrannical Stuarts, or to repeal, or abolish, or suspend the whole body of them, or, in other words, appoint an unrestrained military dictator at the head of armed men. Whatever stretches of such power may be ventured on in great crises, they cannot be upheld by the laws, as they prostrate the laws and ride triumphant over and beyond them, Page 48 U. S. 70 however the Assembly of Rhode Island, under the exigency, may have hastily supposed that such a measure in this instance was constitutional. It is but a branch of the omnipotence claimed by Parliament to pass bills of attainder, belonging to the same dangerous and arbitrary family with martial law. But even those have ceased to succeed in England under the lights of the nineteenth century, and are expressly forbidden by the Federal Constitution, and neither ought ever to disgrace the records of any free government. Such laws (and martial law is only still baser and more intolerable than bills of attainder) Mr. Madison denounces as "contrary to the first principles of the social compact and to every principle of sound legislation." Federalist, No. 44. In short, then, there was nothing peculiar in the condition of Rhode Island as to a constitution in 1842, which justified her legislature in peace, more than the legislature of any other State, to declare martial law over her whole people; but there was much in her ancient charter, as well as in the plainest principles of constitutional liberty, to forbid it. Considering this, then, and that some cases already cited show that domestic violence is still to be regarded not as a state of war, giving belligerent rights, but as conferring only the powers of peace in a State, through its civil authorities, aided by its militia, till the general government interferes and recognizes the contest as a war, this branch of our inquiries as to martial law would end here, upon my view of the pleadings, because the defendants justify under that law and because the State legislature alone possessed no constitutional authority to establish martial law of this kind and to this extent over her people generally, whether in peace or civil strife. But some of the members of this court seem to consider the pleadings broad enough to cover the justification, under some rights of war, independent of the act of the Assembly, or, as the opinion just read by the Chief Justice seems to imply, under the supposed authority of the State, in case of domestic insurrection like this, to adopt an act of martial law over its whole people, or any war measure deemed necessary by its legislature for the public safety. It looks certainly like pretty bold doctrine in a constitutional government that, even in time of legitimate war, the legislature can properly suspend or abolish all constitutional restrictions, as martial law does, and lay all the personal and political rights of the people at their feet. But bolder still is it to justify a claim to this tremendous power in any State, or in any of its officers, on the occurrence merely of some domestic violence. We have already shown, that in this last event, such a claim Page 48 U. S. 71 is entirely untenable on general principles, or by the old charter of Rhode Island, and was denounced as unlawful by our fathers when attempted against them at the Revolution, and has in England been punished as murder when exercised to kill one, though taken in open arms in an insurrection. ( See cases, ante. ) The judgment which the court has pronounced in this case seems to me also to be rested not on any right of this kind in peace, but, on the contrary, to uphold the act of martial law only as a war measure. But the grounds have not been shown to my conviction for supposing that war and war measures, and the rights of war, existed legally in Rhode Island when this act passed. And, finally, it seems to me that the insurrection then existing was not in a stage of progress which would justify any mere belligerent rights; but if any, it was such rights in the general government, and not in the legislature of the State, obtained, too, by mere implication, and, as to so formidable a measure as this, operating so loosely and recklessly over all its own citizens. It is admitted that no war had duly been declared to exist, either by Rhode Island or the United States, at the time this war measure was adopted or when the trespass under it was committed. Yet, had either wished to exercise any war powers, they would have been legalized in our political system not by Rhode Island, but the general government. Constit., Art. 1, sec. 8; 3 Story's Com. on Const., §§ 215, 217; 1 Bl.Com. by Tucker, App., p. 270. It may not be useless to refresh our minds a little on this subject. The Constitution expressly provides that "the Congress shall have power to declare war." Art. 1, sec. 8. This is not the States, nor the President, and much less the legislature of a State. Nor is it foreign war alone that Congress is to declare, but "war," -- war of any kind existing legitimately or according to the law of nations. Because Congress alone, and not the States, is invested with power to use the great means for all wars, "to raise and support armies," "to provide and maintain a navy," "to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions," and "to provide for organizing, arming, and disciplining the militia." The largest powers of taxation, too, were conferred on Congress at the same time, and in part for this cause, with authority to borrow money on the credit of the Union and to dispose of the public lands. But the States, deprived of these means, were at the same time properly relieved from the duty of carrying on war themselves, civil or foreign, because they were not required to incur expenses Page 48 U. S. 72 to suppress even "domestic violence," or "insurrections," or "rebellions." By a provision, sec. 4, art. 3, "the United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion, and, on application of the legislature (or of the executive when the legislature cannot be convened), against domestic violence." This exclusiveness of the war power in Congress in all cases, domestic or foreign, is confirmed, too, by another authority given to Congress, not only to organize and discipline the militia, no less than to have regular armies and navies, but "to provide for calling forth the militia" "to suppress insurrections." Sec. 8, art. 1. And lest it might be argued that this power to declare war and raise troops and navies was not exclusive in the general government, as is the case with some other grants to it deemed concurrent, about weights and measures, bankrupt laws, &c. see cases cited in Boston v. Norris, post, 283, the reasons for this grant as to war, and an express prohibition on the States as to it, both show the power to be exclusive in Congress. Thus, the reasons as to the power itself are cogent for having it exclusive only in one body, in order to prevent the numerous and sudden hostilities and bloody outbreaks in which the country might be involved, with their vast expenses, if thirty States could each declare and wage war under its own impulses. 1 Bl.Com. by Tucker, App., p. 270. And, to remove all doubt on that point, the Constitution proceeded expressly to provide in another clause a prohibition on the States, sec. 10, art. 1, that "no State shall, without the consent of Congress," "keep troops or ships of war in time of peace," "or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay." This accorded with the sixth and ninth articles of the old Confederation, which vested in it exclusively the power to declare war, and took the power of waging it from the States, unless in case of sudden attacks by Indians or pirates or unless actually invaded by enemies, or in such imminent danger of it that time cannot be had to consult Congress. 1 Laws of U.S. 15, 16, Bioren's ed. No concurrent or subordinate power is, therefore, left to the States on this subject, except by occasional and special consent of Congress, which is not pretended to have been given to Rhode Island, or unless "actually invaded" by some enemy, which is not pretended here, or unless "in such imminent danger as will not admit of delay," which manifestly refers to danger from a foreign enemy threatening invasion, or from Indians and pirates. Another circumstance to prove this, besides Page 48 U. S. 73 the language itself being used in connection with foreign invasions and the danger of them, and not insurrections, is the like clauses in the old Confederation being thus restricted. One of those (article 9th) declares that "the United States in Congress assembled shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article." 1 Laws of U.S. 16, Bioren's ed. And the sixth article, after providing against foreign embassies, troops, and vessels of war by a State, adds: "No State shall engage in any war unless such State be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of delay till the United States in Congress assembled can be consulted." Nor, by an additional provision, could a State grant commissions to ships of war or letters of marque, "except it be after a declaration of war by the United States," and only against the kingdom or state against whom the war had been declared, "unless such State be infested by pirates, in which case vessels of war may be fitted for that occasion," &c. 1 Laws of U.S. 15, Bioren's ed. It is impossible to mistake the intention in these provisions, and to doubt that substantially the same intention was embodied by restrictions in the present Constitution, similar in terms, though not entering into so great details. What is, however, decisive as to this intent in the Constitution is the action on it by the second Congress, only a few years after, and of which some were members who aided in framing the Constitution itself. That Congress, May 2d, 1792, authorized force to be used by the President to aid in repelling the invasions here referred to in the Constitution, and they are described in so many words, as "shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe." 1 Stat. at Large 264 So again in the act of Feb. 28, 1795, 1 Stat. at Large 424, and still further sustaining this view, the power to aid in suppressing insurrections in a State is given in a separate section, showing that they were not deemed the invasions and the "imminent danger" of them expressed in different sections of the act of Congress as well as of the Constitution. If, however, this "imminent danger" could, by any stretch of construction, be considered broader, it did not exist here so as to prevent "delay" in applying to the President first; because, in truth, before martial law as declared, time had existed to make application to Congress and the President, and both had declined to use greater force or to declare war, and the judicial tribunals of the State were still unmolested in Page 48 U. S. 74 their course. Besides this, at the time of the trespass complained of here, the few troops which had before taken up arms for the new constitution had been disbanded, and all further violence disclaimed. Whoever, too, would justify himself under an exception in a law or constitution must set it up and bring his case within it, neither of which is attempted here as to this exception; but the justification is, on the contrary, under this head, placed by the defendant and the court on the existence of war, and rights consequent on its existence. Some mistake has arisen here, probably from not adverting to the circumstance that Congress alone can declare war, and that all other conditions of violence are regarded by the Constitution as but ordinary cases of private outrage, to be punished by prosecutions in the courts or as insurrections, rebellions, or domestic violence, to be put down by the civil authorities, aided by the militia, or, when these prove incompetent, by the general government, when appealed to by a State for aid, and matters appear to the general government to have reached the extreme stage, requiring more force to sustain the civil tribunals of a State, or requiring a declaration of war, and the exercise of all its extraordinary rights. Of these last, when applied to as here, and the danger has not been so imminent as to prevent an application, the general government must be the judge, and the general government is responsible for the consequences. And when it is asked what shall a State do if the general government, when applied to, refrains to declare war till a domestic force becomes very formidable, I reply, exert all her civil power through her judiciary and executive, and if these fail, sustain them by her militia, cooperating, and not independent, and if these fail, it is quite certain that the general government will never hesitate to strengthen the arm of the State when too feeble in either of these modes to preserve public order. And how seldom this will be required of the general government or by means of war may be seen by our unspotted, unbroken experience of this kind as to the States for half a century, and by the obvious facts that no occasion can scarcely ever in future arise for such interference when the violence, at the utmost, must usually be from a minority of one State, and in the face of the larger power of the majority within it, and of the cooperation, if need be, of the whole of the rest of the Union. Carry these constitutional provisions with us, and the facts which have existed, that there had been no war declared by Congress, no actual invasion of the State by a foreign enemy, no imminent danger of it, no emergency of any kind, Page 48 U. S. 75 which prevented time or delay to apply to the general government, and remember that, in this stage of things, Congress omitted or declined to do anything, and that the President also declined to consider a civil violence or insurrection as existing so as to justify his ordering out troops to suppress it. The State, then, in and of itself, declared martial law, and the defendants attempted to enforce it. In such a condition of things, I am not prepared to say that the authorities of a State alone can exercise the rights of war against their own citizens; persons, too, who, it is to be remembered, were for many purposes at the same time under the laws and protection of the general government. On the contrary, it seems very obvious, as before suggested, that, in periods of civil commotion, the first and wisest and only legal measure to test the rights of parties and sustain the public peace under threatened violence is to appeal to the laws and the judicial tribunals. When these are obstructed or overawed, the militia is next to be ordered out, but only to strengthen the civil power in enforcing its processes and upholding the laws. Then, in extreme cases, another assistance is resorted to in the suspension of the writ of habeas corpus. And, finally, if actual force, exercised in the field against those in battle array and not able to be subdued in any other manner, becomes necessary, as quasi war, whether against a foreign foe or rebels, it must first, as to the former, be declared by Congress, or recognized and allowed by it as to the latter, under the duty of the United States "to protect each of them against invasion" and "against domestic violence." Art. 4, sec. 4. When this is not done in a particular case by Congress, if then in session, it is done by the President in conformity to the Constitution, Art. 1, sec. 8, and the act of Congress of February 28th, 1795, 1 Stat. at Large 424, "to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions." Under all these circumstances, then, to imply a power like this declaration of martial law over a State as still lawfully existing in its legislature would be to imply what is forbidden by all constitutional checks, forbidden by all the usages of free governments, forbidden by an exclusive grant of the war power to Congress, forbidden by the fact that there were no exceptions or exigencies existing here which could justify it, and, in short, forbidden by the absence of any necessity in our system for a measure so dangerous and unreasonable, unless in some great extremity, if at all, by the general government, which alone holds the issues of war and the power and means of waging it. Under these views and restrictions, the States have succeeded well, thus far, over half a century, in suppressing domestic Page 48 U. S. 76 violence in other ways than by martial law. The State courts, with the aid of the militia, as in Shays' rebellion and the Western insurrection, could, for aught which appears, by help of the posse comitatus, or at least by that militia, have in this case dispersed all opposition. They did this in both of those instances, so much more formidable in numbers, and made no resort to martial law. See before, and Minot's History, 163, 178. In one of them, not even the writ of habeas corpus was suspended by the State, and never by the United States, though empowered to do that in dangerous emergencies. 2 Kent's Com. 24; 2 Story's Com. on Const., § 1335. But if civil process, aided by the militia, should fail to quell an insurrection against State laws, which has never yet happened in our history, then an appeal lies, and is appropriate, to the general government for additional force before a resort can be had to supposed belligerent rights, much less to any exploded and unconstitutional extremes of martial law. As before shown, such an appeal had been made here, but not complied with, because, I presume, the civil authority of the State, assisted by its own militia, did not appear to have failed to overcome the disturbance. How then, let me ask, had the State here become possessed of any belligerent rights? how could it in any way be possessed of them at the time of the passage of the act declaring martial law or even at the time of the trespass complained of? I am unable to discover. Congress, on this occasion, was in session, ready to act when proper and as proper, and it alone could, by the Constitution, declare war or, under the act of May 2d, 1792, allow the militia from an adjoining State to be called out. 1 Stat. at Large 264. But Congress declared no war, and conferred no rights of war. The act of Feb. 28th, 1795, 1 Stat. at Large 424, seems to be made broader as to the power of the President over all the militia, and, indeed, over the regular troops, to assist on such an occasion, by another act of March 3d, 1807, 2 Stat. at Large 443. But the President also did nothing to cause or give belligerent rights to the State. He might, perhaps, have conferred some such rights on the militia, had he called them out, under the consent of Congress, but it would be unreasonable, if not absurd, to argue that the President, rather than Congress, was thus empowered to declare war, or that Congress meant to construe such insurrections and the means used to suppress them as wars, else Congress itself should in each case pronounce them so, and not intrust so dangerous a measure to mere executive discretion. But he issued no orders or proclamations. Had he done so, and marched troops through the action of the Executive under Page 48 U. S. 77 the standing law is not waging war, yet, I concede, it is attempting to suppress domestic violence by force of arms, and, in doing it, the President may possess and exert some belligerent rights in some extreme stages of armed opposition. It is he, however, and those acting under his orders, who, it will be seen, may possibly then, at times, use some such rights, and not the State or its organs. Nor is it till after the President has interfered that such rights arise, and then they arise under the decision and laws and proceedings of the general government. Then the organs of that government have come to the conclusion that the exercise of force independent of the civil and State authorities has become necessary. Federalist, No. 29. The President has been considered the paramount and final judge as to this, whether in invasion or rebellion, and not the governors or legislatures of States. This was fully settled during the war of 1812 with England. 3 Story's Com. on Const. § 1206; 11 Johns. 150. He may then issue his proclamation for those in insurrection to disperse, and, if not dispersing, he may afterwards call out the militia to aid in effecting it. Martin v. Mott , 12 Wheat. 30. But not till then do any belligerent rights exist against those even in arms, and then only by or under him. It is a singular coincidence that, in England, it is held to be not "lawful" for the chief magistrate to order out the militia in case of "rebellion and insurrection" without "the occasion being first communicated to Parliament, if sitting, and, if not sitting, published by proclamation." 1 MacArthur 28; 12 Statutes at Large 432, 16 George 3, ch. 3; 8 Stat. at Large 634, sec. 116. And here, under the act of 1793, the President himself could not call out the militia from another State to assist without consulting Congress, if in session, much less could he declare war. 1 Stat. at Large 264, sec. 2. When the President issues his orders to assemble the militia to aid in sustaining the civil authorities of the State to enforce the laws, or to suppress actual array and violence by counter force, obedience to those orders by the militia then undoubtedly becomes a military duty. 25 U. S. 12 Wheat. 31. So in England. 8 Stat. at Large sec. 116; 11 Johns. 150; 4 Burrows 2472; 12 Johns. 257. And a refusal to obey such a military summons may be punished in due form, without doubt, by a court-martial. Houston v. Moore , 5 Wheat. 1, 18 U. S. 20 , 18 U. S. 35 , 18 U. S. 37 ; 3 Story's Com. on Const., § 120. When such troops, called out by the general government, are in the field on such an occasion, what they may lawfully do to others who are in opposition, and do it by any mere belligerent rights, is a very different question. For, now, I am examining only whether any Page 48 U. S. 78 belligerent rights before this event existed on the part of the State, as matters then stood, commensurate with this strong measure of putting martial law in force over the whole State. The precedents, as well as the sound reasons and principles just adverted to are all, in my view, the other way. Under our present Constitution, the first, if not nearest, precedent in history as to the course proper to be followed in any State insurrection is Shays' rebellion in Massachusetts. Having occurred in 1787, before the formation of the Federal Constitution, and having been suppressed by the State alone under its own independent authority, Minot's History of Shays' Insurrection, p. 95, it was untrammeled by any of the provisions now existing about war and insurrections in that Constitution. But the course pursued on that occasion is full of instruction and proof as to what was deemed the legal use of the militia by the State when thus called out, under the old Confederation, and the extent of the rights of force incident to a State on a rebellion within its limits. We have before shown that the provisions in the old Confederation as to war were much the same in substance as in the present Constitution. Now in Shays' rebellion, the resort was not first had at all to the military, but to civil power, till the courts themselves were obstructed and put in jeopardy. And when the militia were finally called out, the whole State, or any part of it, was not put under martial law. The writ of habeas corpus was merely suspended for a limited time, and the military ordered to aid in making arrests under warrants, and not by military orders, as here. They were directed to protect civil officers in executing their duty, and nothing more, unless against persons when actually in the field obstructing them. Ibid., 101. The language of Governor Bowdoin's orders to Major-General Lincoln, January 19th, 1787, shows the commendable caution deemed legal on such an occasion: "Consider yourself in all your military offensive operations constantly as under the direction of the civil officer, saving where any armed force shall appear and oppose your marching to execute these orders." This gives no countenance to the course pursued on this occasion, even had it been attempted to be justified in the pleadings as a right of war, though in a domestic insurrection, and not yet recognized as existing so as to require countenance and assistance through the interposition of force by the general government. Even General Gage did not, though illegally, venture to declare martial law in 1775 till the fact occurred, as he averred, that the municipal laws could not be executed. Much less was it unlikely here that these laws could not have Page 48 U. S. 79 been executed by the civil power, or at least by that assisted by the militia, when the judges of the Supreme Court of Rhode Island had been appointed their own judges, and been approved by those who were considered in an insurrectionary condition. In substantial accordance with these views was likewise the conduct of the general government in the insurrection against its own laws in the only other case of rebellion of much note, except the controverted one of Burr's, in our national history. It was in Western Pennsylvania, in 1793, and where the rebellion, or violent resistance, and even treason, as adjudged by the courts of law in The United States v. The Insurgents of Pennsylvania , 2 Dallas 335, were committing against the government of the United States. So far, however, from martial law having then been deemed proper or competent to be declared by Congress, and enforced anywhere, or even the writ of habeas corpus suspended, the troops were called out expressly to co operate with the civil authorities, these having proved insufficient. Findley's Hist., App. 316, 317. But that of itself did not seem to be considered as per se amounting to war, or as justifying war measures. The government, therefore, neither declared war nor waged it without that declaration, but did what seems most humane and fit on such occasions, till greater resistance and bloodshed might render war measures expedient -- that is, marched the troops expressly with a view only to "cause the laws to be duly executed." Nor was this done till Judge Peters ,who officiated in that district in the courts of the United States, certified that he had issued warrants which the marshal was unable to execute without military aid. 1 American State Papers 185. The acts of Congress then required such a certificate before allowing the militia to be called out. 1 Stat. at Large 264. The marshal also wrote that he needed "military aid." 1 Am.State Papers 186. The additional force authorized by Congress was expressly for that same purpose, as well as to suppress such combinations. 1 Stat. at Large 403. And though, with these objects, so fully did it seem proper to reach this last one by means of the first, the orders in the field were to a like effect, and the arrests made were by authority of the civil officers, and those seized were carried before those authorities for hearing and trial. Findley 181. The Secretary of War likewise issued public orders in which, among other things, it is stated that "one object of the expedition is to assist the marshal of the district to make prisoners," &c. "The marshal of the District of Pennsylvania will move with you and give you the names of the offenders, their Page 48 U. S. 80 descriptions and respective places of abode, who are to be made prisoners under criminal process." And so exclusively did Congress look to the laws of the land for a guide that special sessions of the Circuit Court nearer the place of offence were allowed, March 2d, 1793, 1 Stat. at Large 334, to be called when necessary to try offenders. The President, throughout the excitement, evinced the characteristic moderation and prudence of Washington, constantly enjoined a subordination of the military to the civil power, and accompanied the troops in person to see that the laws were respected. Findley's History of the Western Insurrection, p. 144. "He assured us," says Findley, p. 179, "that the army should not consider themselves as judges or executioners of the laws, but as employed to support the proper authorities in the execution of them." That he had issued orders "for the subordination of the army to the laws." P. 181. This was in accordance with the course pursued in England on some similar occasions. 1 MacArthur on Courts-Martial 28. And though some arrests were to be made, they were to be in a legal civil form, for he said, "Nothing remained to be done by them but to support the civil magistrate in procuring proper subjects to atone for the outrages that had been committed." Findley 187. The orders or warrants executed seem to have emanated from the federal judge of the Pennsylvania District. Pp. 200, 201, 204, ch. 16. The arrests in 1805 and 1806, in what is called Burr's conspiracy, furnish another analogy and precedent. They were not made till an oath and warrant had issued, except in one or two cases. And in those, the prisoners were immediately discharged, as illegally arrested, as soon as writs of habeas corpus could be obtained and enforced. By the Constitution, Art. 3, sec. 9, "the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it." And Congress then declined to suspend that writ, much less to declare martial law, even where the supposed rebellion existed. Nor was the latter done by the States in the rebellions of 1787 and 1794, as before explained, but merely the writ of habeas corpus suspended in one of them. It is further characteristic of the jealousy of our people over legislative action to suspend the habeas corpus, though expressly allowed by the Constitution, that, after a bill to do it in 1807 seems to have passed the Senate of the United States, through all its readings in one day, and with closed doors, the House of Representatives rejected it on the first reading by a vote of 113 to 19. See the Journals of the two Houses, 25th and 27th Page 48 U. S. 81 Jan., 1807. And this although the bill to suspend the habeas corpus provided it should be done only when one is charged on oath with treason or misdemeanour affecting the peace of the United States, and imprisoned by warrant on authority of the President of the United States, or the Governor of a State or Territory. It was not deemed prudent to suspend it, though in that mild form, considering such a measure at the best but a species of dictatorship, and to be justified only by extreme peril to the public safety. And Mr. Jefferson has left on record his opinion that it was much wiser, even in insurrections, never even to suspend the writ of habeas corpus. 2 Jefferson's Cor. and Life, 274, 291. But what would have been thought then of a measure of "martial law," established over the whole country, acting too without oath or warrant, and under no grant by the Constitution, instead of a mere suspension of a writ, and which suspension was permitted by the Constitution in certain exigencies? Again, if only to repeal or suspend the habeas corpus requires a permissive clause in the Constitution, how much more should the repeal or suspension of all municipal laws? Indeed, the Mutiny Act itself, as for instance that of 53 George 3, ch. 18, sec. 100, does not allow the military to break open a house to arrest so bad a culprit as a deserter without a warrant and under oath. 38 Stat. at Large 97. So, though a rebellion may have existed in Burr's case in the opinion of the Executive, and troops had been ordered out to assist in executing the laws and in suppressing the hostile array, this court held that an arrest by a military officer of one concerned in the rebellion, though ordered by the Executive, was not valid unless he was a person then actually engaged in hostilities, or in warlike array, or in some way actually abetting those who then were so. Bollman and Swartout's Case , 4 Cranch 75, 8 U. S. 101 , 8 U. S. 126 ; 1 Burr's Tr. 175. And if an arrest was made without an order of the commander-in-chief, the court would discharge at once. Alexander's Case , 4 Cranch 75, 8 U. S. 76 , in note. It should also be by warrant, and on oath, and, in most cases, these were then resorted to be General Wilkinson. Annual Register for 1807, p. 84. And so jealous were the people then of abuses that a neglect by him of obedience to the requisitions of the habeas corpus in some respects led to a presentment against his conduct by the grand jury of New Orleans. Annual Register for 1807, p. 98. But here, no actual arrest was made, though attempted, and, what was less justifiable, without oath or warrant, the house was broken into, and hence any justification by martial law failing which might be set up for the former would seem more clearly to fail for the latter. Certainly it must Page 48 U. S. 82 fail unless the latter was proper in this way, under all the circumstances, though no one was there liable to be arrested, and none actually arrested. This doctrine of their failing is familiar in municipal law in breaking houses to seize persons and property on legal precept, when none are found there liable to be seized. 5 Coke 93 a ; Bac.Abr. Execution, W. In civil dissensions, the case stands very differently from foreign ones. In the latter, force is the only weapon after reason and negotiation have failed. In the former, it is not the course of governments, nor their right, when citizens are unable to convince each other, to fly at once to arms and military arrests and confiscations. The civil power can first be brought to bear upon these dissensions and outbreaks through the judiciary, and usually can thus subdue them. All these principles, and the precedents just referred to, show that the course rightfully to be pursued on such unfortunate occasions is that already explained: first, resorting to municipal precepts; next, strengthening them by cooperation of the militia if resisted; and then, if the opposition are in battle array, opposing the execution of such precepts to obtain further assistance, if needed, from the general government to enforce them, and to seize and suppress those so resisting in actual array against the State. But affairs must advance to this extreme stage through all intermediate ones, keeping the military in strict subordination to the civil authority except when acting on its own members, before any rights of mere war exist or can override the community, and then, in this country, they must do that under the countenance and controlling orders of the general government. Belligerent measures, too, must come not from subordinates, but from those empowered to command, and be commensurate only with the opposing array, the persons, places, and causes where resistance flagrante bello exists of the reckless character justifying violence and a disregard of all ordinary securities and laws. It is not a little desirable that this doctrine should prove to be the true one, on account of its greater tendency to secure orderly and constitutional liberty instead of rude violence, to protect rights by civil process rather than the bayonet, and to render all domestic outbreaks less bloody and devastating than they otherwise would be. There having been, then, no rights of war on the part of the State when this act of Assembly passed, and certainly none which could justify so extreme a measure as martial law over the whole State as incident to them, and this act being otherwise unconstitutional, the justification set up under it must, in Page 48 U. S. 83 my opinion, fail. If either government, on the 24th of June, possessed authority to pass an act establishing martial law to this extent, it was, of course that of the United States, the government appointed in our system to carry on war and suppress rebellion or domestic violence when a State in unable to do it by her own powers. But as the general government did not exercise this authority, and probably could not have done it constitutionally in so sweeping a manner and in such an early stage of resistance, if at all, this furnishes an additional reason why the State alone could not properly do it. But if I err in this, and certain rights of war may exist with one of our States in a civil strife like the present, in some extreme stage of it, independent of any act of Congress or the President recognizing it, another inquiry would be whether, in the state of affairs existing at this time, such rights had become perfected, and were broad enough, if properly pleaded, to cover this measure of martial law over the whole State and the acts done under it in the present instance. The necessities of foreign war, it is conceded, sometimes impart great powers as to both things and persons. But they are modified by those necessities, and subjected to numerous regulations of national law and justice and humanity. These, when they exist in modern times, while allowing the persons who conduct war some necessary authority of an extraordinary character, must limit, control, and make its exercise under certain circumstances and in a certain manner justifiable or void, with almost as much certainty and clearness as any provisions concerning municipal authority or duty. So may it be in some extreme stages of civil war. Among these, my impression is that a state of war, whether foreign or domestic, may exist, in the great perils of which it is competent, under its rights and on principles of national law, for a commanding officer of troops under the controlling government to extend certain rights of war not only over his camp, but its environs and the near field of his military operations. 6 American Archives 186. But no further, nor wider. Johnson v. Davis et al., 3 Martin, 530, 551. On this rested the justification of one of the great commanders of this country and of the age in a transaction so well known at New Orleans. But in civil strife, they are not to extend beyond the place where insurrection exists. 3 Martin 551. Nor to portions of the State remote from the scene of military operations, nor after the resistance is over, nor to persons not connected with it. Grant v. Gould et al., 2 Hen.Bl. 69. Nor, even within the scene, can they extend to the person or property of citizens against whom no probable cause exists which Page 48 U. S. 84 may justify it. Sutton v. Johnston, 1 D. & E. 549. Nor to the property of any person without necessity or civil precept. If matters in this case had reached such a crisis, and had so been recognized by the general government, or if such a state of things could and did exist as to warrant such a measure, independent of that government, and it was properly pleaded, the defendants might perhaps be justified within those limits, and under such orders, in making search for an offender or an opposing combatant, and, under some circumstances, in breaking into houses for his arrest. Considerations like these show something in respect to the extent of authority that could have been exercised in each of these cases as a belligerent right had war been properly declared before and continued till that time, 6 American Archives 232, neither of which seems to have been the case. It is obvious enough that, though on the 24th of June, five days previous, Luther had been in arms at Providence, several miles distant, under the governor appointed under the new constitution, in order to take possession of some of the public property there, and though in the record it is stated that the defendants offered to prove he was at this time in arms somewhere, yet, the fact not being deemed material under the question of martial law, on which the defence was placed, it does not seem to have been investigated. How it might turn out can be ascertained only on a new trial. But to show it is not uncontroverted, the other record before us as to this transaction states positively that Mrs. Luther offered to prove there was no camp nor hostile array by any person in the town where this trespass was committed, on the 29th of June, nor within twenty-five miles of it in any part of the State, and that Dorr had, on the 27th instant, two days previous, published a statement against "any further forcible measures" on his part, and directing that the military "be dismissed." The collection which had there happened in relation to the disputed rights as to the public property under the new constitution seems to have been nothing, on the evidence, beyond a few hundreds of persons, and nothing beyond the control of the courts of law, aided by the militia, if they had been wisely resorted to, nothing which, when represented to the Executive of the United States, required, in his opinion, from its apprehended extent or danger, any war measures, the calling out of the militia of other States, or aid of the public troops, or even the actual issue of a proclamation; and the persons who did assemble had, it appears, two days before the trespass, been disbanded, and further force disclaimed, without a gun being fired or blood in any way shed on that occasion. Page 48 U. S. 85 Under the worst insurrections, and even wars, in our history, so strong a measure as this is believed never to have been ventured on before by the general government, and much less by any one of the States, as within their constitutional capacity, either in peace, insurrection, or war. And if it is to be tolerated, and the more especially in civil feuds like this, it will open the door in future domestic dissensions here to a series of butchery, rapine, confiscation, plunder, conflagration, and cruelty unparalleled in the worst contests in history between mere dynasties for supreme power. It would go in practice to render the whole country -- what Bolivar at one time seemed to consider his -- a camp, and the administration of the government a campaign. It is to be hoped we have some national ambition and pride, under our boasted dominion of law and order, to preserve them by law, by enlightened and constitutional law, and the moderation of superior intelligence and civilization, rather than by appeals to any of the semi-barbarous measures of darker ages and the unrelenting, lawless persecutions of opponents in civil strife which characterized and disgraced those ages. Again, when belligerent measures do become authorized by extreme resistance, and a legitimate state of war exists, and civil authority is prostrate, and violence and bloodshed seem the last desperate resort, yet war measures must be kept within certain restraints in all civil contests in all civilized communities. "The common laws of war, those maxims of humanity, moderation, and honor," which should characterize other wars, Vattel says, B. 3, ch. 8, sec. 294 and 295, "ought to be observed by both parties in every civil war." Under modern and Christian civilization, you cannot needlessly arrest or make war on husbandmen or mechanics, or women and children. Vattel, B. 3, ch. 8, sec. 149. The rights of war are against enemies, open and armed enemies, while enemies and during war, but no longer. And the force used then is not to exceed the exigency, not wantonly to injure private property, nor disturb private dwellings and their peaceful inmates. Vattel, B. 3, ch. 8, sec. 148. Much will be allowed to discretion if manifestly exercised with honesty, fairness, and humanity. But the principles of the common law, as opposed to trials without a jury, searches of houses and papers without oath or warrant, and all despotic invasions on private personal liberty, the customary usages to respect the laws of the land except where a great exigency may furnish sufficient excuse, should all limit this power, in many respects, in practice. 2 Stephens on Laws of England 602. The Page 48 U. S. 86 more especially must it be restrained in civil strife, operating on our own people in masses and under our system of government in distributing authority between the States and the Union, as the great powers of war are intrusted to the latter alone, and the latter is also to recognize when that which amounts to a rebellion exists, and interfere to suppress it if necessary with the incidents to such interference. Under the right of war, the defence must also rest not only on what has been alluded to, but, as before suggested, on the question whether the insurrection at the time of this trespass was not at an end. For if one has previously been in arms, but the insurrection or war is over, any belligerent rights cease, and no more justify a departure from the municipal laws than they do before insurrection or war begins. If any are noncombatants, either as never having been engaged in active resistance or as having abandoned it, the rights of civil warfare over them would seem to have terminated, and the prosecution and punishment of their past misconduct belongs then to the municipal tribunals, and not to the sword and bayonet of the military. The Irish Rebellion Act, as to martial law, was expressly limited "from time to time during the continuance of the said rebellion." Tytler on Military Law, 405. And in case of a foreign war, it is not customary to make prisoners and arrest enemies after the war has ceased and been declared abandoned, though the terms of peace have not been definitely settled. And if any of them voluntarily, like Bonaparte, abandon the contest or surrender themselves as prisoners, the belligerent right to continue to imprison them after the war is at an end, much less to commit violence, as here, on others, with a view to capture them, is highly questionable, and has been very gravely doubted. Vattel, B. 3, ch. 8, sec. 152, 154. Circumstances like these make the rule of force and violence operate only to a due extent and for a due time, within its appropriate sphere, and secure beyond that extent and time the supremacy of the ordinary laws of the land. Much more in a social or civil war, a portion of the people, where not then in arms, though differing in opinion, are generally to be treated as noncombatants, and searched for and arrested, if at all, by the municipal law, by warrant under oath, and tried by a jury, and not by the law martial. Our own and English history is full of such arrests and trials, and the trials are held not round a drum-head or cannon, but in halls of justice and under the forms of established jurisprudence. See State Trials, passim. The writ of habeas corpus, also, unless specially suspended by the legislature having Page 48 U. S. 87 power to do so, is as much in force in intestine war as in peace, and the empire of the laws is equally to be upheld, if practicable. Ibid., 532; 8 U. S. 4 Cranch 101; 2 Hen.Bl. 69. To conclude, it is manifest that another strong evidence of the control over military law in peace, and over these belligerent rights in civil strife, which is proper in a bold and independent judiciary, exists in this fact that whenever they are carried beyond what the exigency demands, even in cases where some may be lawful, the sufferer is always allowed to resort, as here, to the judicial tribunals for redress. 4 Taunt. 67, and Baily v. Warder, 4 Maule & Selw. 400. See other cases before cited. Bills or clauses of indemnity are enacted in England, otherwise officers would still oftener be exposed to criminal prosecution and punishment for applying either belligerent rights or the military law in an improper case, or to an excess in a proper case, or without probable cause. 1 MacArthur on Courts-Martial 33, 34; Tytler on Military Law 49 and 489; see last act in Appendix to Tytler and Simmons. And when, in an insurrection, an opponent or his property is treated differently from what the laws and constitution, or national law, sanction, his remedy is sacred in the legal tribunals. And though the offender may have exposed himself to penalties and confiscations, yet he is thus not to be deprived of due redress for wrongs committed on himself. The plaintiff in one of these records is a female, and was not at all subject to military duty and laws, and was not in arms as an opponent supporting the new constitution. And if the sanctity of domestic life has been violated, the castle of the citizen broken into, or property or person injured without good cause, in either case, a jury of the country should give damages, and courts are bound to instruct them to do so unless a justification is made out fully on correct principles. This can and should be done without any vindictive punishment when a party appears to have acted under a supposed legal right. And indeed such is the structure of our institutions that officers, as well as others, are often called on to risk much in behalf of the public and of the country in time of peril. And if they appear to do it from patriotism, and with proper decorum and humanity, the legislature will, on application, usually indemnify them by discharging from the public treasury the amount recovered for any injury to individual rights. In this very case, therefore, the defence seems to be by the State, and at its expense. It shows the beautiful harmony of our system not to let private damage be suffered wrongfully without redress, but, at the same time, not to let a public agent suffer Page 48 U. S. 88 who, in a great crisis, appears to have acted honestly for the public, from good probable cause, though in some degree mistaking the extent of his powers, as well as the rights of others. But whether any of the rights of war, or rights of a citizen in civil strife, independent of the invalid act of the Assembly declaring martial law over all the State, have here, on the stronger side against the feebler, been violated does not seem yet to have been tried. The only point in connection with this matter which appears clearly to have been ruled at the trial was the legality or constitutionality of that act of Assembly. I think that the ruling made was incorrect, and hence that there has been a mistrial. The judgment should, in this view, be reversed, and though it is very doubtful whether, in any other view, as by the general rights of war, these respondents can justify their conduct on the facts now before us, yet they should be allowed an opportunity for it, which can be granted on motion below to amend the pleas in justification. Orders MARTIN LUTHER v. LUTHER M. BORDEN ET AL This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Rhode Island, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court that the judgment of the said Circuit Court in this cause be and the same is hereby affirmed, with costs. RACHEL LUTHER v. LUTHER M. BORDEN ET AL. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Rhode Island, and on the questions and points on which the judges of the said Circuit Court were opposed in opinion, and which were certified to this court for its opinion agreeably to the act of Congress in such case made and provided, and was argued by counsel. On consideration whereof, and it appearing to this court, upon an inspection of the said transcript, that no point in the case, within the meaning of the act of Congress, has been certified to this court, it is thereupon now here ordered and decreed by this court that this cause be, and the same is hereby, dismissed, and that this cause be, and the same is hereby, remanded to the said Circuit Court to be proceeded in according to law.

In the case of Luther v. Borden, the U.S. Supreme Court ruled on a dispute between two opposing governments in Rhode Island: the charter government and a government established by a voluntary convention. The Court held that the question of which government was legitimate was not a judicial one and that the power to recognize a state government rested with Congress. The Court affirmed the decision of the lower court, which had recognized the charter government as the legitimate authority. The case highlighted the complex nature of government legitimacy and the role of different branches of government in resolving such disputes.

Role of Courts

Mississippi v. Johnson

https://supreme.justia.com/cases/federal/us/71/475/

U.S. Supreme Court Mississippi v. Johnson, 71 U.S. 4 Wall. 475 475 (1866) Mississippi v. Johnson 71 U.S. (4 Wall.) 475 Syllabus 1. The President of the United States cannot be restrained by injunction from carrying into effect an act of Congress alleged to be unconstitutional, nor will a bill having such a purpose be allowed to be filed. 2. It makes no difference whether such incumbent of the Presidential office be described in the bill as President or simply as a citizen of a State. This was a motion made by Messrs. Sharkey and R. J. Walker, on behalf of the State of Mississippi, for leave to file a bill in the name of the State praying this court perpetually to enjoin and restrain Andrew Johnson, a citizen of the State of Tennessee and President of the United States, and his officers and agents appointed for that purpose, and especially E. O. C. Ord, assigned as military commander of the district where the State of Mississippi is, from executing or in any manner carrying out two acts of Congress named in the bill, one "An act for the more efficient government of the rebel States," passed March 2d, 1867, notwithstanding the President's veto of it as unconstitutional, and the other an act supplementary to it, passed in the same way March 23d, 1867, acts commonly called the Reconstruction Acts. The former of these acts, reciting that no legal State governments or adequate protection for life or property now exists in the rebel States of Virginia, North Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, and Arkansas, and that it was necessary that peace and good order should be enforced in them until loyal and republican State governments could be legally established, divided the States named into five military districts, and made it the duty of the President to assign to each one an officer of the army, and to detail a sufficient military force to enable him to perform his duties and enforce his authority within his district. It made it the duty of this officer to protect all persons in their rights, to suppress insurrection, disorder, violence, and to punish, or cause to be punished, all disturbers of the public peace and criminals, either through the local civil tribunals or through military Page 71 U. S. 476 commissions, which the act authorized. It provided further that, on the formation of new constitutions and certain conditions which the act prescribed, the States respectively should be declared entitled to representation in Congress, and the preceding part of the act become inoperative, and that, until they were so admitted, any civil governments which might exist in them should be deemed provisional only, and subject to the paramount authority of the United States at any time to abolish, modify, control, or supersede it. The second of the two acts related chiefly to the registration of voters who were to form the new constitutions of the States in question. The bill set out the political history of Mississippi so far as related to its having become one of the United States, and "that forever after, it was impossible for her people, or for the State in its corporate capacity, to dissolve that connection with the other States, and that any attempt to do so by secession or otherwise was a nullity," and she "now solemnly asserted that her connection with the Federal government was not in anywise thereby destroyed or impaired," and she averred and charged "that the Congress of the United States cannot constitutionally expel her from the Union, and that any attempt which practically does so is a nullity." The bill then went on: "The acts in question annihilate the State and its government by assuming for Congress the power to control, modify, and even abolish its government -- in short, to exert sovereign power over it -- and the utter destruction of the State must be the consequence of their execution. They also violate a well known salutary principle in governments, the observance of which can alone preserve them, by making the civil power subordinate to the military power, and thus establish a military rule over the States enumerated in the act, and make a precedent by which the government of the United States may be converted into a military despotism in which every man may be deprived of his goods, lands, liberty, and life, by the breath Page 71 U. S. 477 of a military commander or the sentence of the military commission or tribunal, without the benefit of trial by jury and without the observance of any of those requirements and guarantees by which the Constitution and laws so plainly protect and guard the rights of the citizen. And, the more effectually to accomplish this purpose, the said acts divide the ten Southern States into five military districts, and make it the duty of the President to assign an officer to the command of each district, and to place a sufficient force under him whose will is to be the law and his soldiers the power that executes it. It is declared to be his duty to protect all persons in their rights of person and property, to suppress insurrections, disorder, and violence, and to punish, or cause to be punished, all disturbers of the peace and criminals, and he may organize military commissions and tribunals to try offenders when he may think proper. But by what rule or law is he to judge of the rights of person or property? By what rule or law is he to arrest, try, and punish criminals? By what rule or law is he to judge whether they have committed crimes? The answer to these questions is plain -- by his own will, for, though he may adopt the State authorities as his instruments if he will, yet he may reject them if he will. A scope of power so broad, so comprehensive, was never before vested in a military commander in any government which guards the rights of its citizens or subjects by law. It embraces necessarily all those subjects over which the States reserved the power to legislate for themselves as essential to their existence as States, including the domestic relations, all the rights of property, real and personal, the rights of personal security and personal liberty, and assumes the right to control the whole of the domestic concerns of the State. These acts also provide that the governments now existing in the Southern States are but provisional governments, subject to the paramount authority of Congress, which may at any time abolish, modify, control, or supersede them." It then charged that, from information and belief, the said Andrew Johnson, President, in violation of the Constitution and in violation of the sacred rights of the States, would proceed, notwithstanding his vetoes, and as a mere ministerial duty, to the execution of said acts as though they Page 71 U. S. 478 were the law of the land, which the vetoes prove he would not do if he had any discretion, or that in doing so he performed anything more than a mere ministerial duty; and that with the view to the execution of said acts he had assigned General E. O. C. Ord to the command of the States of Mississippi and Arkansas. Upon an intimation made a few days before by Mr. Sharkey, of his desire to file this bill, the Attorney General objected to it in limine, as containing matter not fit to be received. The Chief Justice then stated that while, as a general thing, a motion to file a bill was granted as of course, yet if it was suggested that the bill contained scandalous or impertinent matter, or was in other respects improper to be received, the court would either examine the bill or refer it to a master for examination. The only matter, therefore, which would now be considered was the question of leave to file the bill. Page 71 U. S. 497 The CHIEF JUSTICE delivered the opinion of the court. A motion was made, some days since, in behalf of the State of Mississippi, for leave to file a bill in the name of the State, praying this court perpetually to enjoin and restrain Andrew Johnson, President of the United States, and E. O. C. Ord, general commanding in the District of Mississippi and Arkansas, from executing, or in any manner carrying out certain acts of Congress therein named. The acts referred to are those of March 2d and March 23d, 1867, commonly known as the Reconstruction Acts. The Attorney General objected to the leave asked for upon Page 71 U. S. 498 the ground that no bill which makes a President a defendant and seeks an injunction against him to restrain the performance of his duties as President should be allowed to be filed in this court. This point has been fully argued, and we will now dispose of it. We shall limit our inquiry to the question presented by the objection, without expressing any opinion on the broader issues discussed in argument whether, in any case, the President of the United States may be required, by the process of this court, to perform a purely ministerial act under a positive law, or may be held amenable, in any case otherwise than by impeachment for crime. The single point which requires consideration is this: can the President be restrained by injunction from carrying into effect an act of Congress alleged to be unconstitutional? It is assumed by the counsel for the State of Mississippi that the President, in the execution of the Reconstruction Acts, is required to perform a mere ministerial duty. In this assumption there is, we think, a confounding of the terms ministerial and executive, which are by no means equivalent in import. A ministerial duty the performance of which may, in proper cases, be required of the head of a department by judicial process is one in respect to which nothing is left to discretion. It is a simple, definite duty, arising under conditions admitted or proved to exist and imposed by law. The case of Marbury v. Madison, Secretary of State, [ Footnote 1 ] furnishes an illustration. A citizen had been nominated, confirmed, and appointed a justice of the peace for the District of Columbia, and his commission had been made out, signed, and sealed. Nothing remained to be done except delivery, and the duty of delivery was imposed by law on the Secretary of State. It was held that the performance of this duty might be enforced by mandamus issuing from a court having jurisdiction. Page 71 U. S. 499 So, in the case of Kendall, Postmaster General v. Stockton & Stokes, [ Footnote 2 ] an act of Congress had directed the Postmaster General to credit Stockton & Stokes with such sums as the Solicitor of the Treasury should find due to them, and that officer refused to credit them with certain sums so found due. It was held that the crediting of this money was a mere ministerial duty the performance of which might be judicially enforced. In each of these cases, nothing was left to discretion. There was no room for the exercise of judgment. The law required the performance of a single specific act, and that performance, it was held, might be required by mandamus. Very different is the duty of the President in the exercise of the power to see that the laws are faithfully executed, and, among these laws, the acts named in the bill. By the first of these acts, he is required to assign generals to command in the several military districts, and to detail sufficient military force to enable such officers to discharge their duties under the law. By the supplementary act, other duties are imposed on the several commanding generals, and these duties must necessarily be performed under the supervision of the President as commander-in-chief. The duty thus imposed on the President is in no just sense ministerial. It is purely executive and political. An attempt on the part of the judicial department of the government to enforce the performance of such duties by the President might be justly characterized, in the language of Chief Justice Marshal, as "an absurd and excessive extravagance." It is true that, in the instance before us, the interposition of the court is not sought to enforce action by the Executive under constitutional legislation, but to restrain such action under legislation alleged to be unconstitutional. But we are unable to perceive that this circumstance takes the case out of the general principles which forbid judicial interference with the exercise of Executive discretion. Page 71 U. S. 500 It was admitted in the argument that the application now made to us is without a precedent, and this is of much weight against it. Had it been supposed at the bar that this court would, in any case, interpose by injunction to prevent the execution of an unconstitutional act of Congress, it can hardly be doubted that applications with that object would have been heretofore addressed to it. Occasions have not been wanting. The constitutionality of the act for the annexation of Texas was vehemently denied. It made important and permanent changes in the relative importance of States and sections, and was by many supposed to be pregnant with disastrous results to large interests in particular States. But no one seems to have thought of an application for an injunction against the execution of the act by the President. And yet it is difficult to perceive upon what principle the application now before us can be allowed and similar applications in that and other cases have been denied. The fact that no such application was ever before made in any case indicates the general judgment of the profession that no such application should be entertained. It will hardly be contended that Congress can interpose in any case to restrain the enactment of an unconstitutional law, and yet how can the right to judicial interposition to prevent such an enactment, when the purpose is evident and the execution of that purpose certain, be distinguished in principle from the right to such interposition against the execution of such a law by the President? The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department, though the acts of both, when performed, are, in proper cases, subject to its cognizance. The impropriety of such interference will be clearly seen upon consideration of its possible consequences. Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to Page 71 U. S. 501 observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the acts of Congress, is it not clear that a collision may occur between the executive and legislative departments of the government? May not the House of Representatives impeach the President for such refusal? And in that case, could this court interfere in behalf of the President, thus endangered by compliance with its mandate, and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would the strange spectacle be offered to the public world of an attempt by this court to arrest proceedings in that court? These questions answer themselves. It is true that a State may file an original bill in this court. And it may be true, in some cases, that such a bill may be filed against the United States. But we are fully satisfied that this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties; and that no such bill ought to be received by us. It has been suggested that the bill contains a prayer that, if the relief sought cannot be had against Andrew Johnson, as President, it may be granted against Andrew Johnson as a citizen of Tennessee. But it is plain that relief as against the execution of an act of Congress by Andrew Johnson is relief against its execution by the President. A bill praying an injunction against the execution of an act of Congress by the incumbent of the presidential office cannot be received, whether it describes him as President or as a citizen of a State. The motion for leave to file the bill is, therefore, DENIED. [ Footnote 1 ] 5 U. S. 1 Cranch 137. [ Footnote 2 ] 37 U. S. 12 Pet. 527.

The Supreme Court denied the State of Mississippi's request to file a bill restraining President Andrew Johnson from enforcing two Reconstruction Acts passed by Congress. The Court held that the President cannot be restrained by injunction from carrying out an act of Congress, regardless of its constitutionality. The Court also emphasized the separation of powers between the legislative, executive, and judicial branches, stating that neither the President nor Congress can be restrained by the judiciary in their official duties. The potential consequences of such interference, including a possible collision between the executive and legislative branches, were highlighted as reasons for denying the motion.

Role of Courts

Georgia v. Stanton

https://supreme.justia.com/cases/federal/us/73/50/

U.S. Supreme Court Georgia v. Stanton, 73 U.S. 6 Wall. 50 50 (1867) Georgia v. Stanton 73 U.S. (6 Wall.) 50 ORIGINAL Syllabus 1. A bill in equity filed by one of the United States to enjoin the Secretary of War and other officers who represent the Executive authority of the United States from carrying into execution certain acts of Congress on the ground that such execution would annul and totally abolish the existing state government of the state and establish another and different one in its place -- in other words, would overthrow and destroy the corporate existence of the state by depriving it of all the means and instrumentalities whereby its existence might and otherwise would be maintained -- calls for a judgment upon a political question, and will therefore not be entertained by this Court. 2. This character of the bill is not changed by the fact that in setting forth the political rights sought to be protected, the bill avers that the state has real and personal property (as for example, the public buildings &c), of the enjoyment of which, by the destruction of its corporate existence, the state will be deprived, such averment not being the substantive ground of the relief sought. This was a bill filed April 15, 1867, in this Court, invoking the exercise of its original jurisdiction, against Stanton, Secretary of War; Grant, General of the Army, and Pope, Major General, assigned to the command of the Third Military District, consisting of the States of Georgia, Florida, and Alabama (a district organized under the Acts of Congress of the 2d March, 1867, entitled "An act to provide for the more efficient government of the rebel states," and an act of the 23d of the same month supplementary thereto), for the purpose of restraining the defendants from carrying into execution the several provisions of these acts, acts known in common parlance as the "Reconstruction Acts." Both these acts had been passed over the President's veto. The former of the acts, reciting that no legal state governments or adequate protection for life or property now existed in the rebel States of Virginia and North Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, and Arkansas, and that it was necessary that peace and good order should be enforced in them until loyal and republican state governments could be legally established, divided the states named into five military districts and Page 73 U. S. 51 made it the duty of the President to assign to each one an officer of the army and to detail a sufficient military force to enable him to perform his duties and enforce his authority within his district. It made it the duty of this officer to protect all persons in their rights, to suppress insurrection, disorder, violence, and to punish or cause to be punished all disturbers of the public peace and criminals, either through the local civil tribunals or through military commissions, which the act authorized. It provided further that when the people of any one of these states had formed a constitution in conformity with that of the United States, framed by a convention of delegates elected by male citizens &c., of twenty-one years old and upwards, "of whatever race, color, or previous condition," who had been residents in it for one year, "except such as may be disfranchised for participation in the rebellion," &c., and when such constitution should provide &c., and should be ratified by a majority of the persons voting on the question of ratification, who were qualified for electors as delegates, and when such constitution should have been submitted to Congress for examination and approval, and Congress should have approved the same, and when the state by a vote of its legislature elected under such constitution should have adopted a certain article of amendment named to the Constitution of the United States, and ordaining among other things that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the state where they reside," and when such article should have become a part of the Constitution of the United States, then that the states respectively should be declared entitled to representation in Congress and the preceding part of the act become inoperative, and that until they were so admitted, any civil governments which might exist in them should be deemed provisional only, and subject to the paramount authority of the United States at any time to abolish, modify, control, or supersede them. The second of the two acts related chiefly to the registration of voters who were to form the new constitutions of the Page 73 U. S. 52 states in question, and which registration by the act, could include only those persons who took and subscribed a certain oath set forth in such second act, as that they had "not been disfranchised for participation in any rebellion or civil war against the United States," &c. The bill set forth the existence of the State of Georgia, the complainant, as one of the states of this Union under the Constitution; the civil war of 1861-1865 in which she was involved; the surrender of the Confederate armies in the latter year and submission to the Constitution and laws of the Union; the withdrawal of the military government from Georgia by the President, commander-in-chief of the army; and the revival and reorganization of the civil government of the state with his permission; and that the government thus reorganized was in the possession and enjoyment of all the rights and privileges in her several departments -- executive, legislative, and judicial -- belonging to a state in the Union under the Constitution, with the exception of a representation in the Senate and House of Representatives of the United States. It set forth further that the intent and design of the acts of Congress, as was apparent on their face and by their terms, was to overthrow and to annul this existing state government and to erect another and different government in its place, unauthorized by the Constitution and in defiance of its guarantees, and that, in furtherance of this intent and design, the defendants (the Secretary of War, the General of the Army, and Major General Pope), acting under orders of the President, were about setting in motion a portion of the army to take military possession of the state, and threatened to subvert her government and to subject her people to military rule; that the state was wholly inadequate to resist the power and force of the Executive Department of the United States. She therefore insisted that such protection could and ought to be afforded by a decree, or order, of this Court in the premises. The bill then prayed that the defendants might be restrained: Page 73 U. S. 53 1. From issuing any order or doing or permitting any act or thing within or concerning the State of Georgia which was or might be directed or required of them or any of them by or under the two acts of Congress. 2. From causing to be made any registration within the state as specified and prescribed in the last of the aforesaid acts. 3. From administering or causing to be administered within the state the oath or affirmation prescribed in said act. 4. From holding or causing to be held within the state any such election or elections or causing to be made any return of any such elections for the purpose of ascertaining the result of the same according to said act. 5. From holding or causing to be held within the state any such convention as is prescribed therein. The bill, in setting forth the political rights of the State of Georgia, and of its people sought to be protected, averred among other things that the state was owner of certain real estate and buildings therein (the state capitol, at Milledgeville, and Executive mansion), and of other real and personal property, exceeding in value $5,000,000, and that putting the acts of Congress into execution and destroying the state would deprive it of the possession and enjoyment of its property. This reference and statement were not set up, however, as a specific or independent ground of relief, but apparently only by way of showing one of the grievances resulting from the threatened destruction of the state, and in aggravation of it. And the matter of property was not noticed in the prayers for relief. Page 73 U. S. 71 The bill having been dismissed at the last term, MR. JUSTICE NELSON now delivered the opinion of the Court. A motion has been made by the counsel for the defendants to dismiss the bill for want of jurisdiction, for which a precedent is found in the case of Rhode Island v. Massachusetts. [ Footnote 1 ] It is claimed that the Court has no jurisdiction either over the subject matter set forth in the bill or over the parties defendants. And in support of the first ground, it is urged that the matters involved, and presented for adjudication, are political and not judicial, and therefore not the subject of judicial cognizance. This distinction results from the organization of the government into the three great departments -- executive, legislative, and judicial -- and from the assignment and limitation of the powers of each by the Constitution. The judicial power is vested in one Supreme Court and in such inferior courts as Congress may ordain and establish, the political power of the government in the other two departments. The distinction between judicial and political power is so generally acknowledged in the jurisprudence both of England and of this country that we need do no more than refer to some of the authorities on the subject. They are all in one direction. [ Footnote 2 ] Page 73 U. S. 72 It has been supposed that the case of Rhode Island v. Massachusetts [ Footnote 3 ] is an exception, and affords an authority for hearing and adjudicating upon political questions in the usual course of judicial proceedings on a bill in equity. But it will be seen on a close examination of the case that this is a mistake. It involved a question of boundary between the two states. Mr. Justice Baldwin, who delivered the opinion of the Court, states the objection, and proceeds to answer it. He observes, [ Footnote 4 ] "It is said that this is a political, not civil, controversy between the parties, and so not within the Constitution or thirteenth section of the Judiciary Act. As it is viewed by the Court on the bill alone, had it been demurred to, a controversy as to the locality of a point three miles south of the southernmost point of Charles River is the only question that can arise under the charter. Taking the case on the bill and plea, the question is whether the stake set up on Wrentham Plain by Woodward and Saffrey in 1842 is the true point from which to run an east and west line as the compact boundary between the states. In the first aspect of the case it depends on a fact; in the second, on the law of equity, whether the agreement is void or valid, neither of which present a political controversy, but one of an ordinary judicial nature of frequent occurrence in suits between individuals." In another part of the opinion, speaking of the submission by sovereigns or states of a controversy between them, he observes, "From the time of such submission the question ceases to be a political one, to be decided by the sic volo, sic jubeo of political power. It comes to the Court to be decided by its judgment, legal discretion, and solemn consideration of the rules of law appropriate to its nature as a judicial question, depending on the exercise of judicial powers, as it is bound to act by known and settled principles of national or municipal jurisprudence, as the case requires. Page 73 U. S. 73 And he might have added what indeed is probably implied in the opinion, that the question thus submitted by the sovereign or state to a judicial determination must be one appropriate for the exercise of judicial power, such as a question of boundary or, as in the case of Penn v. Lord Baltimore, a contract between the parties in respect to their boundary. Lord Hardwicke places his right in that case to entertain jurisdiction upon this ground." The objections to the jurisdiction of the Court in the case of Rhode Island against Massachusetts were that the subject matter of the bill involved sovereignty and jurisdiction, which were not matters of property, but of political rights over the territory in question. They are forcibly stated by the Chief Justice, who dissented from the opinion. [ Footnote 5 ] The very elaborate examination of the case by Mr. Justice Baldwin was devoted to an answer and refutation of these objections. He endeavored to show, and we think did show, that the question was one of boundary, which of itself was not a political question, but one of property, appropriate for judicial cognizance, and that sovereignty and jurisdiction were but incidental and dependent upon the main issue in the case. The right of property was undoubtedly involved, as in this country, where feudal tenures are abolished, in cases of escheat, the state takes the place of the feudal lord by virtue of its sovereignty as the original and ultimate proprietor of all the lands within its jurisdiction. In the case of Florida v. Georgia, [ Footnote 6 ] the United States were allowed to intervene, being the proprietors of a large part of the land situated within the disputed boundary, ceded by Spain as a part of Florida. The State of Florida was also deeply interested as a proprietor. The case bearing most directly on the one before us is Cherokee Nation v. Georgia. [ Footnote 7 ] A bill was filed in that case and an injunction prayed for to prevent the execution of certain acts of the Legislature of Georgia within the territory of the Cherokee Nation of Indians, they claiming Page 73 U. S. 74 a right to file it in this Court, in the exercise of its original jurisdiction, as a foreign nation. The acts of the legislature, if permitted to be carried into execution, would have subverted the tribal government of the Indians and subjected them to the jurisdiction of the state. The injunction was denied on the ground that the Cherokee Nation could not be regarded as a foreign nation within the Judiciary Act, and that therefore they had no standing in court. But Chief Justice Marshall, who delivered the opinion of the majority, very strongly intimated that the bill was untenable on another ground -- namely that it involved simply a political question. He observed "that the part of the bill which respects the land occupied by the Indians, and prays the aid of the Court to protect their possessions may be more doubtful. The mere question of right might perhaps be decided by this Court in a proper case with proper parties. But the Court is asked to do more than decide on the title. The bill requires us to control the Legislature of Georgia and to restrain the exertion of its physical force. The propriety of such an interposition by the Court may be well questioned. It savors too much of the exercise of political power to be within the province of the judicial department." Several opinions were delivered in the case, a very elaborate one, by Mr. Justice Thompson, in which Judge Story concurred. They maintained that the Cherokee Nation was a foreign nation within the Judiciary Act, and competent to bring the suit, but agreed with the Chief Justice that all the matters set up in the bill involved political questions with the exception of the right and title of the Indians to the possession of the land which they occupied. Mr. Justice Thompson, referring to this branch of the case, observed: "For the purpose of guarding against any erroneous conclusions, it is proper I should state that I do not claim for this Court the exercise of jurisdiction upon any matter properly falling under the denomination of political power. Relief to the full extent prayed for by the bill may be beyond the reach of this Court. Much of the matters therein contained by way of complaint would seem to depend for relief upon Page 73 U. S. 75 the exercise of political power, and as such appropriately devolving upon the executive, and not the judicial, department of the government. This Court can grant relief so far only as the rights of persons or property are drawn in question and have been infringed." And in another part of the opinion he returns again to this question, and is still more emphatic in disclaiming jurisdiction. He observes: "I certainly do not claim as belonging to the judiciary the exercise of political power. That belongs to another branch of the government. The protection and enforcement of many rights secured by treaties most certainly do not belong to the judiciary. It is only where the rights of persons or property are involved and when such rights can be presented under some judicial form of proceedings that courts of justice can interpose relief. This Court can have no right to pronounce an abstract opinion upon the constitutionality of a state law. Such law must be brought into actual or threatened operation upon rights properly falling under judicial cognizance, or a remedy is not to be had here." We have said Mr. Justice Story concurred in this opinion, and Mr. Justice Johnson, who also delivered one, recognized the same distinctions. [ Footnote 8 ] By the second section of the third article of the Constitution, "the judicial power extends to all cases, in law and equity, arising under the Constitution, the laws of the United States," &c., and as applicable to the case in hand, "to controversies between a state and citizens of another state," which controversies, under the Judiciary Act, may be brought, in the first instance, before this Court in the exercise of its original jurisdiction, and we agree, that the bill filed presents a case which, if it be the subject of judicial cognizance, would in form come under a familiar head of equity jurisdiction -- that is, jurisdiction to grant an injunction to restrain a party from a wrong or injury to the rights of another where the danger, actual or threatened, is irreparable or the remedy at law inadequate. But, according to the course of Page 73 U. S. 76 proceeding under this head in equity, in order to entitle the party to the remedy, a case must be presented appropriate for the exercise of judicial power; the rights in danger, as we have seen, must be rights of persons or property, not merely political rights, which do not belong to the jurisdiction of a court, either in law or equity. The remaining question on this branch of our inquiry is whether, in view of the principles above stated and which we have endeavored to explain, a case is made out in the bill of which this Court can take judicial cognizance. In looking into it, it will be seen that we are called upon to restrain the defendants, who represent the executive authority of the government, from carrying into execution certain acts of Congress, inasmuch as such execution would annul and totally abolish the existing state government of Georgia and establish another and different one in its place -- in other words, would overthrow and destroy the corporate existence of the state by depriving it of all the means and instrumentalities whereby its existence might and otherwise would be maintained. This is the substance of the complaint and of the relief prayed for. The bill, it is true, sets out in detail the different and substantial changes in the structure and organization of the existing government as contemplated in these acts of Congress, which, it is charged, if carried into effect by the defendants, will work this destruction. But they are grievances, because they necessarily and inevitably tend to the overthrow of the state as an organized political body. They are stated in detail as laying a foundation for the interposition of the court to prevent the specific execution of them, and the resulting threatened mischief. So in respect to the prayers of the bill. The first is that the defendants may be enjoined against doing or permitting any act or thing within or concerning the state which is or may be directed or required of them by or under the two acts of Congress complained of, and the remaining four prayers are of the same character, except more specific as to the particular acts threatened to be committed. Page 73 U. S. 77 That these matters, both as stated in the body of the bill and in the prayers for relief, call for the judgment of the court upon political questions and upon rights not of persons or property but of a political character will hardly be denied. For the rights for the protection of which our authority is invoked are the rights of sovereignty, of political jurisdiction, of government, of corporate existence as a state, with all its constitutional powers and privileges. No case of private rights or private property infringed or in danger of actual or threatened infringement is presented by the bill in a judicial form for the judgment of the Court. It is true, the bill, in setting forth the political rights of the state and of its people to be protected, among other matters, avers, that Georgia owns certain real estate and buildings therein, state capitol, and executive mansion, and other real and personal property, and that putting the acts of Congress into execution and destroying the state would deprive it of the possession and enjoyment of its property. But it is apparent that this reference to property and statement concerning it are only by way of showing one of the grievances resulting from the threatened destruction of the state and in aggravation of it, not as a specific ground of relief. This matter of property is neither stated as an independent ground nor is it noticed at all in the prayers for relief. Indeed, the case as made in the bill would have stopped far short of the relief sought by the state, and its main purpose and design given up, by restraining its remedial effect simply to the protection of the title and possession of its property. Such relief would have called for a very different bill from the one before us. Having arrived at the conclusion that this Court, for the reasons above stated, possesses no jurisdiction over the subject matter presented in the bill for relief, it is unimportant to examine the question as it respects jurisdiction over the parties defendants. Bill dismissed for want of jurisdiction. [ Footnote 1 ] 37 U. S. 12 Pet. 669. [ Footnote 2 ] Nabob of Carnatic v. East India Co., 1 Vesey Jr. 375-393, S.C., 2 id. 56-60; Penn v. Lord Baltimore, 1 Vesey 446-447; New York v. Connecticut , 4 Dall. 1; Cherokee Nation v. Georgia , 5 Pet. 1, 30 U. S. 20 , 30 U. S. 29 -30, 30 U. S. 51 , 30 U. S. 75 ; Rhode Island v. Massachusetts , 12 Pet. 657, 37 U. S. 733 -734, 37 U. S. 737 -738. [ Footnote 3 ] 37 U. S. 12 Pet. 657. [ Footnote 4 ] Page 37 U. S. 736 . [ Footnote 5 ] 37 U. S. 12 Pet. 752, 37 U. S. 754 . [ Footnote 6 ] 58 U. S. 17 How. 478. [ Footnote 7 ] 30 U. S. 5 Pet. 1. [ Footnote 8 ] 5 Pet. 30 U. S. 29 -30. THE CHIEF JUSTICE: Without being able to yield my assent to the grounds stated in the opinion just read for the Page 73 U. S. 78 dismissal of the complainant's bill, I concur fully in the conclusion that the case made by the bill is one of which this Court has no jurisdiction.

In Georgia v. Stanton (1867), the Supreme Court dismissed a bill of equity filed by the state of Georgia seeking to enjoin the enforcement of Reconstruction Acts passed by Congress after the Civil War. Georgia argued that the acts, which provided for military rule and the establishment of new state governments in the former Confederate states, would overthrow and destroy its corporate existence by depriving it of the means to maintain its sovereignty and political jurisdiction. The Court held that the bill presented a political question and, therefore, was not justiciable. The Court declined to exercise its original jurisdiction, finding that the rights Georgia sought to protect were political, not private, in nature, and that the reference to property in the bill was not an independent ground for relief.

Role of Courts

Pacific States Tel. & Tel. Co. v. Oregon

https://supreme.justia.com/cases/federal/us/223/118/

U.S. Supreme Court Pacific States Tel. & Tel. Co. v. Oregon, 223 U.S. 118 (1912) Pacific States Telephone and Telegraph Company v. Oregon No. 36 Argued November 3, 1911 Decided February 19, 1912 223 U.S. 118 ERROR TO THE SUPREME COURT OF THE STATE OF OREGON Syllabus The enforcement of the provision in § 4 of Art. IV of the Constitution that the United States shall guarantee to every State a republican form of government is of a political character, and exclusively committed to Congress, and as such is beyond the jurisdiction of the courts. The provisions of § 4 of Art. IV of the Constitution do not authorize the judiciary to substitute its judgment as to a matter purely political for the judgment of Congress on a subject committed to Congress. Under § 4 of Art. IV of the Constitution, it rests with Congress to decide what government is the established one in a State, and its decision is binding on every other department of the Government, and cannot be questioned by the judiciary. Luther v. Borden , 7 How. 1. A statute otherwise constitutional cannot be attacked in the courts on the ground that it was adopted in pursuance of provisions in the constitution of the State which render the form of government of the State unrepublican in form within the meaning of § 4 of Art. IV of the Constitution. The courts have no jurisdiction of the question; it is for Congress to determine. Where the claim that one taxed under a state statute is deprived of property without due process of law is not based on any inherent defect in the law, or infirmity of power of State to levy it, but on the ground that the government of the State is not republican in form, the question is not within the jurisdiction of the courts. The judicial power of the United States will not be extended so as to interfere with the authority of Congress or of the Executive so as to make the guarantee contained in § 4 of Art. IV of the Constitution one of anarchy, instead of order. Luther v. Borden , 7 How. 1. Whether the adoption of provisions for the initiative and referendum in the constitution of a State, such as those adopted in Oregon in 1902, so alter the form of government of the State as to make it no longer republican within the meaning of § 4 of Art. IV of the Constitution, Page 223 U. S. 119 is a purely political question over which this court has no jurisdiction. Writ of error to review 53 Oregon 162, dismissed. The facts, which involve the constitutionality under § 4 of Art. IV of the Federal Constitution of the initiative and referendum provisions of the constitution of the State of Oregon, are stated in the opinion. Page 223 U. S. 133 MR. CHIEF JUSTICE WHITE delivered the opinion of the court. We premise by saying that, while the controversy which this record presents is of much importance, it is not novel. It is important, since it calls upon us to decide whether it is the duty of the courts or the province of Congress to determine when a State has ceased to be republican in form and to enforce the guarantee of the Constitution on that subject. It is not novel, as that question has long since been determined by this court conformably to the practise of the Government from the beginning to be political in character, and therefore not cognizable by the judicial power, but solely committed by the Constitution to the judgment of Congress. The case is this: in 1902, Oregon amended its constitution (Art. IV, § 1). This amendment, while retaining an existing clause vesting the exclusive legislative power in a General Assembly consisting of a senate and house of representatives, added to that provision the following: "But the people reserve to themselves power to propose laws and amendments to the constitution and to enact or Page 223 U. S. 134 reject the same at the polls, independent of the legislative assembly, and also reserve power at their own option to approve or reject at the polls any act of the legislative assembly." Specific means for the exercise of the power thus reserved was contained in further clauses authorizing both the amendment of the constitution and the enactment of laws to be accomplished by the method known as the initiative and that commonly referred to as the referendum. As to the first, the initiative, it suffices to say that a stated number of voters were given the right at any time to secure a submission to popular vote for approval of any matter which it was desired to have enacted into law, and providing that the proposition thus submitted, when approved by popular vote, should become the law of the State. The second, the referendum, provided for a reference to a popular vote, for approval or disapproval, of any law passed by the legislature, such reference to take place either as the result of the action of the legislature itself or of a petition filed for that purpose by a specified number of voters. The full text of the amendment is in the margin. [ Footnote 1 ] Page 223 U. S. 135 In 1903 (Feby. 24, 1903, Gen.Laws 1903, p. 244) detailed provisions for the carrying into effect of this amendment were enacted by the legislature. By resort to the initiative in 1906 a law taxing certain classes of corporations was submitted, voted on and promulgated by the Governor in 1906 (June 25, 1906, Gen.Laws 1907, p. 7) as having been duly adopted. By this law, telephone and telegraph companies were taxed, by what was qualified as an annual license, two percentum upon their gross revenue derived from business done within the State. Penalties were provided for nonpayment, and methods were created for enforcing payment in case of delinquency. The Pacific States Telephone and Telegraph Company, an Oregon corporation engaged in business in that State, made a return of its gross receipts as required by the Page 223 U. S. 136 statute and was accordingly assessed two percent. upon the amount of such return. The suit which is now before us was commenced by the State to enforce payment of this assessment and the statutory penalties for delinquency. The petition alleged the passage of the taxing law by resort to the initiative, the return made by the corporation, the assessment, the duty to pay, and the failure to make such payment. The answer of the corporation contained twenty-nine paragraphs. Four of these challenged the validity of the tax because of defects inhering in the nature or operation of the tax. The defenses stated in these four paragraphs, however, may be put out of view, as the defendant corporation, on its own motion, was allowed by the court to strike these propositions from its answer. We may also put out of view the defenses raised by the remaining paragraphs based upon the operation and effect of the state constitution as they are concluded by the judgment of the state court. Coming to consider these paragraphs of the answer thus disembarrassed, it is true to say that they all, insofar as they relied upon the Constitution of the United States, rested exclusively upon an alleged infirmity of the powers of government of the State begotten by the incorporation into the state constitution of the amendment concerning the initiative and the referendum. The answer was demurred to as stating no defense. The demurrer was sustained, and, the defendant electing not to plead further, judgment went against it and that judgment was affirmed by the Supreme Court of Oregon. (53 Oregon, 162.) The court sustained the conclusion by it reached, not only for the reasons expressed in its opinion, but by reference to the opinion in a prior case ( Kadderly v. Portland, 44 Oregon, 118, 146), where a like controversy had been determined. The assignments of error filed on the allowance of the writ of error are numerous. The entire matters covered Page 223 U. S. 137 by each and all of them in the argument, however, are reduced to six propositions, which really amount to but one, since they are all based upon the single contention that the creation by a State of the power to legislate by the initiative and referendum causes the prior lawful state government to be bereft of its lawful character as the result of the provisions of § 4 of Art. IV of the Constitution, that "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion, and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence." This being the basis of all the contentions, the case comes to the single issue whether the enforcement of that provision, because of its political character, is exclusively committed to Congress, or is judicial in its character. Because of their absolute unity, we consider all the propositions together, and therefore at once copy them. We observe, however, that, in the argument the second, fourth and fifth paragraphs, for the purposes of discussion, were subordinately classified, and these subordinate classifications we omit from our text, reproducing them, however, by a marginal reference. " I " "The initiative and the tax measure in question are repugnant to the provisions of section 1 of the Fourteenth Amendment to the Constitution of the United States which forbids a State to deny to any person within it jurisdiction the equal protection of the law." II "The initiative amendment and the tax in question, levied pursuant to a measure, passed by authority of the initiative amendment, violate the right to a republican Page 223 U. S. 138 form of government which is guaranteed by section 4, article IV, of the Federal Constitution. [ Footnote 2 ]" " III " "Taxation by the initiative method violates fundamental rights, and is not in accordance with 'the law of the land.' (U.S.Const., Art. VI)." " IV " "The initiative is in contravention of a republican form of government. Government by the people directly is the attribute of a pure democracy, and is subversive of the principles upon which the republic is founded. Direct legislation is, therefore, repugnant to that form of government with which alone Congress could admit a State to the Union and which the State is bound to maintain. [ Footnote 3 ] " Page 223 U. S. 139 " V " "The Federal Constitution presupposes in each State the maintenance of a republican form of government and the existence of state legislatures, to-wit: representative assemblies having the power to make the laws, and that, in each State, the powers of government will be divided into three departments: a legislature, an executive and a judiciary. One of these, the legislature, is destroyed by the initiative. [ Footnote 4 ]" " VI " "The provision in the Oregon constitution for direct legislation violates the provisions of the act of Congress admitting Oregon to the Union." On the surface, the impression might be produced that the first and third propositions -- the one in words relating Page 223 U. S. 140 to the equal protection clause of the Fourteenth Amendment, and the other in terms asserting "taxation by the initiative method violates fundamental rights, and is not in accordance with the law of the land," are addressed to some inherent defect in the tax or infirmity of power to levy it without regard to the guarantee of a republican form of Government. But this is merely superficial, and is at once dispelled by observing that every reason urged to support the two propositions is solely based on § 4 of Art. IV and the consequent inability of the State to impose any tax of any kind which would not violate the Fourteenth Amendment or be repugnant to the law of the land if, in such State, the initiative or referendum method is permitted. Thus, dispelling any mere confusion resulting from forms of expression and considering the substance of things, it is apparent that the second proposition, which rests upon the affirmative assertion that, by the adoption of the initiative and referendum, the State "violates the right to a republican form of government which is guaranteed by section 4 of Article IV of the Federal Constitution," and the two subdivisions made of that proposition, the first that "the guarantee in question is to the people of the States and to each citizen, as well as to the States as political entities," and the second asserting "section 4 of Article IV therefore prohibits the majority in any State from adopting an unrepublican constitution," are the basic propositions upon which all the others rest. That is to say, all the others and their subdivisions are but inducements tending to show the correctness of the second and fundamental one. This conclusion is certain, as they all but point out the various modes by which the adoption of the initiative and referendum incapacitated the State from performing the duties incumbent upon it as a member of the Union or its obligations towards its citizens, thus causing the State to cease to be a government republican in form within the intendment of the Page 223 U. S. 141 constitutional provision relied upon. In other words, the propositions each and all proceed alone upon the theory that the adoption of the initiative and referendum destroyed all government republican in form in Oregon. This being so, the contention, if held to be sound, would necessarily affect the validity not only of the particular statute which is before us, but of every other statute passed in Oregon since the adoption of the initiative and referendum. And indeed the propositions go further than this, since, in their essence, they assert that there is no governmental function, legislative or judicial, in Oregon, because it cannot be assumed, if the proposition be well founded, that there is at one and the same time one and the same government which is republican in form and not of that character. Before immediately considering the text of § 4 of Art. IV, in order to uncover and give emphasis to the anomalous and destructive effects upon both the state and national governments which the adoption of the proposition implies, as illustrated by what we have just said, let us briefly fix the inconceivable expansion of the judicial power and the ruinous destruction of legislative authority in matters purely political which would necessarily be occasioned by giving sanction to the doctrine which underlies and would be necessarily involved in sustaining the propositions contended for. First. That however perfect and absolute may be the establishment and dominion, in fact, of a state government, however complete may be its participation in and enjoyment of all its powers and rights as a member of the national Government, and however all the departments of that Government may recognize such state government, nevertheless every citizen of such State or person subject to taxation therein, or owing any duty to the established government, may be heard, for the purpose of defeating the payment of such taxes or avoiding the discharge of such duty, to assail in a court of justice the rightful existence Page 223 U. S. 142 of the State. Second. As a result, it becomes the duty of the courts of the United States, where such a claim is made, to examine as a justiciable issue the contention as to the illegal existence of a State, and, if such contention be thought well founded, to disregard the existence in fact of the State, of its recognition by all of the departments of the Federal Government, and practically award a decree absolving from all obligation to contribute to the support of or obey the laws of such established state government. And as a consequence of the existence of such judicial authority, a power in the judiciary must be implied, unless it be that anarchy is to ensue, to build by judicial action upon the ruins of the previously established government a new one, a right which, by its very terms, also implies the power to control the legislative department of the Government of the United States in the recognition of such new government and the admission of representatives therefrom, as well as to strip the executive department of that government of its otherwise lawful and discretionary authority. Do the provisions of § 4, Art. IV bring about these strange, far-reaching and injurious results? That is to say, do the provisions of that Article obliterate the division between judicial authority and legislative power upon which the Constitution rests? In other words, do they authorize the judiciary to substitute its judgment as to a matter purely political for the judgment of Congress on a subject committed to it, and thus overthrow the Constitution upon the ground that thereby the guarantee to the States of a government republican in form may be secured, a conception which, after all, rests upon the assumption that the States are to be guaranteed a government republican in form by destroying the very existence of a government republican in form in the Nation. We shall not stop to consider the text to point out how absolutely barren it is of support for the contentions sought to be based upon it, since the repugnancy of those contentions Page 223 U. S. 143 to the letter and spirit of that text is so conclusively established by prior decisions of this court as to cause the matter to be absolutely foreclosed. In view of the importance of the subject, the apparent misapprehension on one side and seeming misconception on the other suggested by the argument as to the full significance of the previous doctrine, we do not content ourselves with a mere citation of the cases, but state more at length than we otherwise would the issues and the doctrine expounded in the leading and absolutely controlling case -- Luther v. Borden , 7 How. 1. The case came from a Circuit Court of the United States. It was an action of damages for trespass. The case grew out of what is commonly known as the Dorr Rebellion in Rhode Island, and the conflict which was brought about by the effort of the adherents of that alleged government -- sometimes described as "the government established by a voluntary convention" -- to overthrow the established charter government. The defendants justified on the ground that the acts done by them charged as a trespass were done under the authority of the charter government during the prevalence of martial law, and for the purpose of aiding in the suppression of an armed revolt by the supporters of the insurrectionary government. The plaintiffs, on the contrary, asserted the validity of the voluntary government, and denied the legality of the charter government. In the course of the trial, the plaintiffs, to support the contention of the illegality of the charter government and the legality of the voluntary government "although that government never was able to exercise any authority in the State nor to command obedience to its laws or to its officers," offered certain evidence tending to show that, nevertheless, it was "the lawful and established government" upon the ground that its powers to govern have been ratified by a large majority of the male people of the State of the age of 21 years and upwards, and also by a large Page 223 U. S. 144 majority of those who were entitled to vote for general officers cast in favor of a constitution which was submitted as the result of a voluntarily assembled convention of what was alleged to be the people of the State of Rhode Island. The Circuit Court rejected this evidence and instructed the jury that, as the charter government was the established state government at the time the trespass occurred, the defendants were justified in acting under the authority of that government. This court, coming to review this ruling, at the outset pointed out "the novelty and serious nature" of the question which it was called upon to decide. Attention also was at the inception directed to the far-reaching effect and gravity of the consequences which would be produced by sustaining the right of the plaintiff to assail and set aside the established government by recovering damages from the defendants for acts done by them under the authority of, and for the purpose of sustaining, such established government. On this subject, it was said (p. 48 U. S. 38 ): "For, if this court is authorized to enter upon this inquiry as proposed by the plaintiff, and it should be decided that the charter government had no legal existence during the period of time above mentioned, if it had been annulled by the adoption of the opposing government, then the laws passed by its legislature during that time, were nullities; its taxes wrongfully collected; its salaries and compensation to its officers illegally paid; its public accounts improperly settled, and the judgments and sentences of its courts in civil and criminal cases null and void, and the officers who carried their decisions into operation answerable as trespassers, if not, in some cases, as criminals." Coming to review the question, attention was directed to the fact that the courts of Rhode Island had recognized the complete dominancy, in fact, of the charter government, and had refused to investigate the legality of the Page 223 U. S. 145 voluntary government for the purpose of decreeing the established government to be illegal, on the ground (p. 48 U. S. 39 ) "that the inquiry proposed to be made belonged to the political power, and not to the judicial; that it rested with the political power to decide whether the charter government had been displaced or not, and, when that decision was made, the judicial department would be bound to take notice of it as the paramount law of the State, without the aid of oral evidence or the examination of witnesses, etc." It was further remarked: "This doctrine is clearly and forcibly stated in the opinion of the supreme court of the State in the trial of Thomas W. Dorr, who was the governor elected under the opposing constitution, and headed the armed force which endeavored to maintain its authority." Reviewing the grounds upon which these doctrines proceeded, their cogency was pointed out and the disastrous effect of any other view was emphasized, and, from a point of view of the state law, the conclusive effect of the judgments of the courts of Rhode Island was referred to. The court then came to consider the correctness of the principle applied by the Rhode Island courts, in the light of § 4 of Art. IV, of the Constitution of the United States. The contention of the plaintiff in error concerning that Article was, in substantial effect, thus pressed in argument: the ultimate power of sovereignty is in the people, and they, in the nature of things, if the government is a free one, must have a right to change their constitution. Where, in the ordinary course, no other means exists of doing so, that right of necessity embraces the power to resort to revolution. As, however, no such right, it was urged, could exist under the Constitution, because of the provision of § 4 of Art. IV, protecting each State on application of the legislature or of the executive, when the legislature cannot be convened, against domestic violence, it followed that the guarantee of a government republican in form Page 223 U. S. 146 was the means provided by the Constitution to secure the people in their right to change their government, and made the question whether such change was rightfully accomplished a judicial question determinable by the courts of the United States. To make the physical power of the United States available, at the demand of an existing state government, to suppress all resistance to its authority, and yet to afford no method of testing the rightful character of the state government, would be to render people of a particular State hopeless in case of a wrongful government. It was pointed out in the argument that the decision of the courts of Rhode Island in favor of the charter government illustrated the force of these contentions, since they proceeded solely on the established character of that government, and not upon whether the people had rightfully overthrown it by voluntarily drawing and submitting for approval a new constitution. It is thus seen that the propositions relied upon in this case were presented for decision in the most complete and most direct way. The court, in disposing of them, while virtually recognizing the cogency of the argument insofar as it emphasized the restraint upon armed resistance to an existing state government, arising from the provision of § 4 of Art. IV, and the resultant necessity for the existence somewhere in the Constitution of a tribunal upon which the people of a State could rely to protect them from the wrongful continuance against their will of a government not republican in form, proceeded to inquire whether a tribunal existed, and its character. In doing this, it pointed out that, owing to the inherent political character of such a question, its decision was not by the Constitution vested in the judicial department of the Government, but was, on the contrary, exclusively committed to the legislative department, by whose action on such subject the judiciary were absolutely controlled. The court said (p. 74 U. S. 42 ): Page 223 U. S. 147 "Moreover, the constitution of the United States, as far as it has provided for an emergency of this kind and authorized the general government to interfere in the domestic concerns of a State, has treated the subject as political in its nature, and placed the power in the hands of that department." "The fourth section of the fourth article of the constitution of the United States provides that the United States shall guarantee to every State in the Union a republican form of government, and shall protect each of them against invasion, and on the application of the legislature or of the executive (when the legislature cannot be convened) against domestic violence." "Under this article of the constitution, it rests with congress to decide what government is the established one in a State. For, as the United States guarantee to each State a republican government, congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal. It is true that the contest in this case did not last long enough to bring the matter to this issue, and as no senators or representatives were elected under the authority of the government of which Mr. Dorr was the head, Congress was not called upon to decide the controversy. Yet the right to decide is placed there, and not in the courts." Pointing out that Congress, by the act of February 28, 1795 (1 Stat. 424, c. 36), had recognized the obligation resting upon it to protect from domestic violence by conferring authority upon the President of the United States, Page 223 U. S. 148 on the application of the legislature of a State or of the Governor, to call out the militia of any other State or States to suppress such insurrection, it was suggested that, if the question of what was the rightful government within the intendment of § 4 of Art. IV was a judicial one, the duty to afford protection from invasion and to suppress domestic violence would be also judicial, since those duties were inseparably related to the determination of whether there was a rightful government. If this view were correct, it was intimated, it would follow that the delegation of authority made to the President by the act of 1795 would be void as a usurpation of judicial authority, and hence it would be the duty of the courts, if they differed with the judgment of the President as to the manner of discharging this great responsibility, to interfere and set at naught his action, and the pertinent statement was made (p. 74 U. S. 43 ): "If the judicial power extends so far, the guarantee contained in the constitution of the United States is a guarantee of anarchy, and not of order." The fundamental doctrines thus so lucidly and cogently announced by the court, speaking through Mr. Chief Justice Taney in the case which we have thus reviewed, have never been doubted or questioned since, and have afforded the light guiding the orderly development of our constitutional system from the day of the deliverance of that decision up to the present time. We do not stop to cite other cases which indirectly or incidentally refer to the subject, but conclude by directing attention to the statement by the court, speaking through Mr. Chief Justice Fuller, in Taylor v. Beckham, No. 1, 178 U. S. 548 , where, after disposing of a contention made concerning the Fourteenth Amendment and coming to consider a proposition which was necessary to be decided concerning the nature and effect of the guarantee of § 4 of Art. IV, it was said (p. 178 U. S. 578 ): "But it is said that the Fourteenth Amendment must be Page 223 U. S. 149 read with section 4 of article IV of the Constitution, providing that:" "The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion, and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence." It is argued that, when the State of Kentucky entered the Union, the people "surrendered their right of forcible revolution in state affairs," and received in lieu thereof a distinct pledge to the people of the State of the guarantee of a republican form of government, and of protection against invasion, and against domestic violence; that the distinguishing feature of that form of government is the right of the people to choose their own officers for governmental administration; that this was denied by the action of the General Assembly in this instance; and, in effect, that this court has jurisdiction to enforce that guarantee, albeit the judiciary of Kentucky was unable to do so because of the division of the powers of government. And yet the writ before us was granted under § 70 of the Revised Statutes to revise the judgment of the state court on the ground that a constitutional right was decided against by that court. "It was long ago settled that the enforcement of this guarantee belonged to the political department. Luther v. Borden , 7 How. 1. In that case, it was held that the question which of the two opposing governments of Rhode Island, namely, the charter government or the government established by a voluntary convention, was the legitimate one, was a question for the determination of the political department, and, when that department had decided, the courts were bound to take notice of the decision and follow it. . . ." It is indeed a singular misconception of the nature and character of our constitutional system of government to suggest that the settled distinction which the doctrine just Page 223 U. S. 150 stated points out between judicial authority over justiciable controversies and legislative power as to purely political questions tends to destroy the duty of the judiciary in proper cases to enforce the Constitution. The suggestion but results from failing to distinguish between things which are widely different, that is, the legislative duty to determine the political questions involved in deciding whether a state government republican in form exists, and the judicial power and ever-present duty whenever it becomes necessary in a controversy properly submitted to enforce and uphold the applicable provisions of the Constitution as to each and every exercise of governmental power. How better can the broad lines which distinguish these two subjects be pointed out than by considering the character of the defense in this very case? The defendant company does not contend here that it could not have been required to pay a license tax. It does not assert that it was denied an opportunity to be heard as to the amount for which it was taxed, or that there was anything inhering in the tax or involved intrinsically in the law which violated any of its constitutional rights. If such questions had been raised, they would have been justiciable, and therefore would have required the calling into operation of judicial power. Instead, however, of doing any of these things, the attack on the statute here made is of a wholly different character. Its essentially political nature is at once made manifest by understanding that the assault which the contention here advanced makes it not on the tax as a tax, but on the State as a State. It is addressed to the framework and political character of the government by which the statute levying the tax was passed. It is the government, the political entity, which (reducing the case to its essence) is called to the bar of this court not for the purpose of testing judicially some exercise of power assailed on the ground that its exertion has injuriously Page 223 U. S. 151 affected the rights of an individual because of repugnancy to some constitutional limitation, but to demand of the State that it establish its right to exist as a State, republican in form. As the issues presented, in their very essence, are, and have long since by this court been, definitely determined to be political and governmental, and embraced within the scope of the powers conferred upon Congress, and not therefore within the reach of judicial power, it follows that the case presented is not within our jurisdiction, and the writ of error or must therefore be, and it is, dismissed for want of jurisdiction. Dismissed for want of jurisdiction. [ Footnote 1 ] Section 1 of Article IV of the constitution of the State of Oregon shall be and hereby is amended to read as follows: "SECTION 1. The legislative authority of the state shall be vested in a legislative assembly, consisting of a senate and house of representatives, but the people reserve to themselves power to propose laws and amendments to the constitution and to enact or reject the same at the polls, independent of the legislative assembly, and also reserve power at their own option to approve or reject at the polls any act of the legislative assembly. The first power reserved by the people is the initiative, and not more than eight percent of the legal voters shall be required to propose any measure by such petition, and every such petition shall include the full text of the measure so proposed. Initiative petitions shall be filed with the secretary of state not less than four months before the election at which they are to be voted upon. The second power is the referendum, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health, or safety) either by the petition signed by five percent of the legal voters, or by the legislative assembly, as other bills are enacted. Referendum petitions shall be filed with the secretary of state not more than ninety days after the final adjournment of the session of the legislative assembly which passed the bill on which the referendum is demanded. The veto power of the governor shall not extend to measures referred to the people. All elections on measures referred to the people of the state shall be had at the biennial regular general elections, except when the legislative assembly shall order a special election. Any measure referred to the people shall take effect and become the law when it is approved by a majority of the votes cast thereon, and not otherwise. The style of all bills shall be: 'Be it enacted by the people of the state of Oregon.' This section shall not be construed to deprive any member of the legislative assembly of the right to introduce any measure. The whole number of votes cast for justice of the supreme court at the regular election last preceding the filing of any petition for the initiative or for the referendum shall be the basis on which the number of legal voters necessary to sign such petition shall be counted. Petitions and orders for the initiative and for the referendum shall be filed with the secretary of state, and in submitting the same to the people he, and all other officers, shall be guided by the general laws and the act submitting this amendment, until legislation shall be especially provided therefor." (1 Lord's Oregon Laws, p. 89.) [ Footnote 2 ] 1. The guaranty of article IV, section 4, of the Federal Constitution is to the people of the States, and to each citizen, as well as to the States as political entities. 2. Section 4 of article IV therefore prohibits the majority in any State from adopting an unrepublican constitution. [ Footnote 3 ] 1. Difference between a republic and democracy. 2. In ascertaining the meaning of the phrase "republican form of government," the debates of the constitutional conventions and the federalist papers are of great importance, if not conclusive. 3. The framers of the Constitution recognized the distinction between the republican and democratic form of government, and carefully avoided the latter. 4. The extent of territory of the States alone sufficed, in the judgment of the framers of the Constitution, to condemn the establishment of a democratic form of government. 5. The form of state government perpetuated by the Constitution was the republican form, with the three departments of government, in force in all the States at the time of the adoption of the Constitution. 6. The history of other nations does not furnish the definition of the phrase "republican form of government," as those words were used by the framers of the Constitution. They distinguish the American from all other republics by the introduction of the principle of representation. 7. Initiative legislation is invalid because government by the people directly is inconsistent with our form of government. 8. The well known practices of (a) adopting state constitutions by popular vote, and of (b) local legislation in "town meetings," furnish no precedent for the lodgment of legislative power in the ballot box. [ Footnote 4 ] 1. State legislatures are a vital feature of our Government; the Federal Constitution presupposes their existence and imposes on each State the obligation to maintain them. 2. The division of powers of the three departments in each of the States is a prerequisite to the national Government. 3. It is evident under the Constitution the State Legislatures are the agency to carry on the relations between the Nation and the States. 4. The word "legislature" in the Constitution means a representative assembly consisting of two houses, empowered to make the law. Such was its meaning at the time of the adoption of the Constitution. 5. Contemporaneous legislation by Congress sheds some light on the meaning of the term "legislature" as used in the constitution. 6. The initiative destroys the legislative assemblies or legislatures which it is the implied obligation of each State to maintain, for a legislature must be the lawmaking power. 7. The initiative overthrows one of the greatest safeguards against the abuse of the power of legislation, to-wit: the system of a dual legislative assembly.

In Pacific States Telephone and Telegraph Company v. Oregon, the U.S. Supreme Court ruled that the enforcement of a republican form of government in a state is a political question that falls under the jurisdiction of Congress, not the courts. The case challenged the initiative and referendum provisions of Oregon's constitution, arguing that they made the state's government unrepublican in form and thus violated Article IV, Section 4 of the U.S. Constitution. The Court dismissed the case, stating that it had no authority to question Congress's judgment on what constitutes a republican form of government.

Role of Courts

Ex parte McCardle

https://supreme.justia.com/cases/federal/us/74/506/

U.S. Supreme Court Ex parte McCardle, 74 U.S. 7 Wall. 506 506 (1868) Ex parte McCardle 74 U.S. (7 Wall.) 506 APPEAL FROM THE CIRCUIT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI Syllabus 1. The appellate jurisdiction of this court is conferred by the Constitution, and not derived from acts of Congress, but is conferred "with such exceptions, and under such regulations, as Congress may make," and, therefore, acts of Congress affirming such jurisdiction have always been construed as excepting from it all cases not expressly described and provided for. 2. When, therefore, Congress enacts that this court shall have appellate jurisdiction over final decisions of the Circuit Courts in certain cases, the act operates as a negation or exception of such jurisdiction in other cases, and the repeal of the act necessarily negatives jurisdiction under it of these cases also. 3. The repeal of such an act, pending an appeal provided for by it, is not an exercise of judicial power by the legislature, no matter whether the repeal takes effect before or after argument of the appeal. 4. The act of 27th March, 1868, repealing that provision of the act of 5th of February, 1867, to amend the Judicial Act of 1789, which authorized appeals to this court from the decisions of the Circuit Courts in cases of habeas corpus, does not except from the appellate jurisdiction of this Page 74 U. S. 507 court any cases but appeals under the act of 1867. It does not affect the appellate jurisdiction which was previously exercised in cases of habeas corpus. The case was this: The Constitution of the United States ordains as follows: "§ 1. The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." "§ 2. The judicial power shall extend to all cases in law or equity arising under this Constitution, the laws of the United States, " &c. And in these last cases, the Constitution ordains that, "The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make. " With these constitutional provisions in existence, Congress, on the 5th February, 1867, by "An act to amend an act to establish the judicial courts of the United States, approved September 24, 1789," provided that the several courts of the United States, and the several justices and judges of such courts, within their respective jurisdiction, in addition to the authority already conferred by law, should have power to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the Constitution, or of any treaty or law of the United States. And that, from the final decision of any judge, justice, or court inferior to the Circuit Court, appeal might be taken to the Circuit Court of the United States for the district in which the cause was heard, and from the judgment of the said Circuit Court to the Supreme Court of the United States. This statute being in force, one McCardle, alleging unlawful restraint by military force, preferred a petition in the court below, for the writ of habeas corpus. Page 74 U. S. 508 The writ was issued, and a return was made by the military commander admitting the restraint, but denying that it was unlawful. It appeared that the petitioner was not in the military service of the United States, but was held in custody by military authority for trial before a military commission upon charges founded upon the publication of articles alleged to be incendiary and libelous, in a newspaper of which he was editor. The custody was alleged to be under the authority of certain acts of Congress. Upon the hearing, the petitioner was remanded to the military custody, but, upon his prayer, an appeal was allowed him to this court, and upon filing the usual appeal bond, for costs, he was admitted to bail upon recognizance, with sureties conditioned for his future appearance in the Circuit Court, to abide by and perform the final judgment of this court. The appeal was taken under the above-mentioned act of February 5, 1867. A motion to dismiss this appeal was made at the last term, and, after argument, was denied. [ Footnote 1 ] Subsequently, on the 2d, 3d, 4th, and 9th March, the case was argued very thoroughly and ably upon the merits, and was taken under advisement. While it was thus held, and before conference in regard to the decision proper to be made, an act was passed by Congress, [ Footnote 2 ] returned with objections by the President, and, on the 27th March, repassed by the constitutional majority, the second section of which was as follows: " And be it further enacted, That so much of the act approved February 5, 1867, entitled 'An act to amend an act to establish the judicial courts of the United States, approved September 24, 1789,' as authorized an appeal from the judgment of the Circuit Court to the Supreme Court of the United States, or the exercise of any such jurisdiction by said Supreme Court, on appeals which have been, or may hereafter be taken, be, and the same is hereby repealed. " Page 74 U. S. 509 The attention of the court was directed to this statute at the last term, but counsel having expressed a desire to be heard in argument upon its effect, and the Chief Justice being detained from his place here by his duties in the Court of Impeachment, the cause was continued under advisement. Argument was now heard upon the effect of the repealing act. Page 74 U. S. 512 THE CHIEF JUSTICE delivered the opinion of the court. The first question necessarily is that of jurisdiction, for if the act of March, 1868, takes away the jurisdiction defined by the act of February, 1867, it is useless, if not improper, to enter into any discussion of other questions. It is quite true, as was argued by the counsel for the petitioner, that the appellate jurisdiction of this court is not derived from acts of Congress. It is, strictly speaking, conferred Page 74 U. S. 513 by the Constitution. But it is conferred "with such exceptions and under such regulations as Congress shall make." It is unnecessary to consider whether, if Congress had made no exceptions and no regulations, this court might not have exercised general appellate jurisdiction under rules prescribed by itself. For among the earliest acts of the first Congress, at its first session, was the act of September 24th, 1789, to establish the judicial courts of the United States. That act provided for the organization of this court, and prescribed regulations for the exercise of its jurisdiction. The source of that jurisdiction, and the limitations of it by the Constitution and by statute, have been on several occasions subjects of consideration here. In the case of Durousseau v. The United States [ Footnote 3 ] particularly, the whole matter was carefully examined, and the court held that, while "the appellate powers of this court are not given by the judicial act, but are given by the Constitution," they are, nevertheless, "limited and regulated by that act, and by such other acts as have been passed on the subject." The court said further that the judicial act was an exercise of the power given by the Constitution to Congress "of making exceptions to the appellate jurisdiction of the Supreme Court." "They have described affirmatively," said the court, "its jurisdiction, and this affirmative description has been understood to imply a negation of the exercise of such appellate power as is not comprehended within it." The principle that the affirmation of appellate jurisdiction implies the negation of all such jurisdiction not affirmed having been thus established, it was an almost necessary consequence that acts of Congress, providing for the exercise of jurisdiction, should come to be spoken of as acts granting jurisdiction, and not as acts making exceptions to the constitutional grant of it. The exception to appellate jurisdiction in the case before us, however, is not an inference from the affirmation of other Page 74 U. S. 514 appellate jurisdiction. It is made in terms. The provision of the act of 1867 affirming the appellate jurisdiction of this court in cases of habeas corpus is expressly repealed. It is hardly possible to imagine a plainer instance of positive exception. We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution, and the power to make exceptions to the appellate jurisdiction of this court is given by express words. What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without jurisdiction, the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and, when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. And this is not less clear upon authority than upon principle. Several cases were cited by the counsel for the petitioner in support of the position that jurisdiction of this case is not affected by the repealing act. But none of them, in our judgment, affords any support to it. They are all cases of the exercise of judicial power by the legislature, or of legislative interference with courts in the exercising of continuing jurisdiction. [ Footnote 4 ] On the other hand, the general rule, supported by the best elementary writers, [ Footnote 5 ] is that, "when an act of the legislature is repealed, it must be considered, except as to transactions past and closed, as if it never existed." And the effect of repealing acts upon suits under acts repealed has been determined by the adjudications of this court. The subject was fully considered in Norris v. Crecker, [ Footnote 6 ] and more recently in Insurance Company v. Ritchie. [ Footnote 7 ] In both of these cases, it was held that no judgment could be rendered in a suit after the repeal of the act under which it was brought and prosecuted. Page 74 U. S. 515 It is quite clear, therefore, that this court cannot proceed to pronounce judgment in this case, for it has no longer jurisdiction of the appeal, and judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer. Counsel seem to have supposed, if effect be given to the repealing act in question, that the whole appellate power of the court, in cases of habeas corpus, is denied. But this is an error. The act of 1868 does not except from that jurisdiction any cases but appeals from Circuit Courts under the act of 1867. It does not affect the jurisdiction which was previously exercised. [ Footnote 8 ] The appeal of the petitioner in this case must be DISMISSED FOR WANT OF JURISDICTION. [ Footnote 1 ] See Ex parte McCardle , 6 Wallace 318. [ Footnote 2 ] Act of March 27, 1868, 15 Stat. at Large 44. [ Footnote 3 ] 10 U. S. 6 Cranch 312; Wiscart v. Dauchy , 3 Dallas 321. [ Footnote 4 ] Lanier v. Gallatas, 13 Louisiana Annual 175; De Chastellux v. Fairchild, 15 Pennsylvania State 18; The State v. Fleming, 7 Humphreys 152; Lewis v. Webb, 3 Greenleaf 326. [ Footnote 5 ] Dwarris on Statutes 538. [ Footnote 6 ] 54 U. S. 13 Howard 429. [ Footnote 7 ] 72 U. S. 5 Wallace 541. [ Footnote 8 ] Ex parte McCardle , 6 Wallace 324.

In Ex parte McCardle, the Supreme Court of the United States held that it lacked jurisdiction to hear an appeal from a Circuit Court decision involving a petition for a writ of habeas corpus. The Court ruled that Congress has the power to regulate the Court's appellate jurisdiction and that the repeal of a law granting such jurisdiction effectively removes the Court's ability to hear those cases. The case was dismissed due to the lack of jurisdiction.

Role of Courts

Ex Parte Young

https://supreme.justia.com/cases/federal/us/209/123/

U.S. Supreme Court Ex Parte Young, 209 U.S. 123 (1908) Ex Parte Young No. 10, Original Argued December 2, 3, 1907 Decided March 23, 1908 209 U.S. 123 PETITION FOR WRITS OF HABEAS CORUS AND CERTIORARI Syllabus While this court will not take jurisdiction if it should not, it must take jurisdiction if it should. It cannot, as the legislature may, avoid meeting a measure because it desires so to do. In this case, a suit by a stockholder against a corporation to enjoin the directors and officers from complying with the provisions of a State statute, alleged to be unconstitutional, was properly brought within Equity Rule 94 of this court. An order of the Circuit Court committing one for contempt for violation of a decree entered in a suit of which it did not have jurisdiction is unlawful, and, in such case, upon proper application, this court will discharge the person so held. Page 209 U. S. 124 Although the determination of whether a railway rate prescribed by a state statute is so low as to be confiscatory involves a question of fact, its solution raises a Federal question, and the sufficiency of rates is a judicial question over which the proper Circuit Court has jurisdiction, as one arising under the Constitution of the United States. Whether a state statute is unconstitutional because the penalties for its violation are so enormous that persons affected thereby are prevented from resorting to the courts for the purpose of determining the validity of the statute, and are thereby denied the equal protection of the law, and their property rendered liable to be taken without due process of law, is a Federal question and gives the Circuit Court jurisdiction. Whether the state railroad rate statute involved in this case, although on its face relating only to intrastate rates, was an interference with interstate commerce held to raise a Federal question which could not be considered frivolous. A state railroad rate statute which imposes such excessive penalties that parties affected are deterred from testing its validity in the courts denies the carrier the equal protection of the law without regard to the question of insufficiency of the rates prescribed; it is within the jurisdiction, and is the duty, of the Circuit Court to inquire whether such rates are so low as to be confiscatory, and, if so, to permanently enjoin the railroad company, at the suit of one of its stockholders, from putting them in force, and it has power pending such inquiry to grant a temporary injunction to the same effect. While there is no rule permitting a person to disobey a statute with impunity at least once for the purpose of testing its validity, where such validity can only be determined by judicial investigation and construction, a provision in the statute which imposes such severe penalties for disobedience of its provisions as to intimidate the parties affected thereby from resorting to the courts to test its validity practically prohibits those parties from seeking such judicial construction, and denies them the equal protection of the law. The attempt of a State officer to enforce an unconstitutional statute is a proceeding without authority of, and does not affect, the State in its sovereign or governmental capacity, and is an illegal act, and the officer is stripped of his official character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to its officer immunity from responsibility to the supreme authority of the United States. When the question of the validity of a State statute with reference to the Federal Constitution has been first raised in a Federal court, that court has the right to decide it to the exclusion of all other courts. It is not necessary that the duty of a State officer to enforce a statute be declared in that statute itself in order to permit his being joined as a party defendant from enforcing it; if, by virtue of his office, he has some connection with the enforcement of the act, it is immaterial whether it arises by common general law or by statute. Page 209 U. S. 125 While the courts cannot control the exercise of the discretion of an executive officer, an injunction preventing such officer from enforcing an unconstitutional statute is not an interference with his discretion. The Attorney General of the State of Minnesota, under his common law power and the state statutes, has the general authority imposed upon him of enforcing constitutional statutes of the State, and is a proper party defendant to a suit brought to prevent the enforcement of a State statute on the ground of its unconstitutionality. While a Federal court cannot interfere in a criminal case already pending in a state court, and while, as a general rule, a court of equity cannot enjoin criminal proceedings, those rules do not apply when such proceedings are brought to enforce an alleged unconstitutional state statute, after the unconstitutionality thereof has become the subject of inquiry in a suit pending in a Federal court which has first obtained jurisdiction thereover; and, under such circumstances, the Federal court has the right in both civil and criminal cases to hold and maintain such jurisdiction to the exclusion of all other courts. While making a state officer who has no connection with the enforcement of an act alleged to be unconstitutional a party defendant is merely making him a party as a representative of the State, and thereby amounts to making the State a party within the prohibition of the Eleventh Amendment, individuals, who, as officers of the State, are clothed with some duty in regard to the enforcement of the laws of the State, and who threaten and are about to commence an action, either civil or criminal, to enforce an unconstitutional state statute, may be enjoined from so doing by a Federal court. Under such conditions as are involved in this case, the Federal court may enjoin an individual or a state officer from enforcing a state statute on account of its unconstitutionality, but it may not restrain the state court from acting in any case brought before it either of a civil or criminal nature, or prevent any investigation or action by a grand jury. An injunction by a Federal court against a State court would violate the whole scheme of this Government, and it does not follow that, because an individual may be enjoined from doing certain things, a court may be similarly enjoined. No adequate remedy at law, sufficient to prevent a court of equity from acting, exists in a case where the enforcement of an unconstitutional state rate statute would require the complainant to carry merchandise at confiscatory rates if it complied with the statute, and subject it to excessive penalties in case it did not comply therewith, and its validity was finally sustained. While a common carrier sued at common law for penalties under, or on indictment for violation of, a state rate statute might interpose as a defense the unconstitutionality of the statute on account of the confiscatory character of the rates prescribed, a jury cannot intelligently pass upon such a matter; the proper method is to determine the constitutionality of the statute in a court of equity in which the opinions of experts may be Page 209 U. S. 126 taken and the matter referred to a master to make the needed computations and to find the necessary facts on which the court may act. A state rate statute is to be regarded as prima facie valid, and the onus rests on the carrier to prove the contrary. The railroad interests of this country are of great magnitude, and the thousands of persons interested therein are entitled to protection from the laws and from the courts equally with the owners of all other kinds of property, and the courts having jurisdiction, whether Federal or State, should at all times be open to them, and, where there is no adequate remedy at law, the proper course to protect their rights is by suit in equity in which all interested parties are made defendants. While injunctions against the enforcement of a State rate statute should not be granted by a Federal court except in a case reasonably free from doubt, the equity jurisdiction of the Federal court has been constantly exercised for such purpose. The Circuit Court of the United States having, in an action brought by a stockholder of the Northern Pacific Railway Company against the officers of the road, certain shippers, and the Attorney General and certain other officials of the State of Minnesota, held that a railroad rate statute of Minnesota was unconstitutional, and enjoined all the defendants from enforcing such statute, and, the Attorney General having refused to comply with such order, the Circuit Court fined and committed him for contempt, and this court refused to discharge him on habeas corpus. An original application was made to this court for leave to file a petition for writs of habeas corpus and certiorari in behalf of Edward T. Young, petitioner, as Attorney General of the State of Minnesota. Leave was granted and a rule entered directing the United States marshal for the district of Minnesota, third division, who held the petitioner in his custody, to show cause why such petition should not be granted. The marshal, upon the return of the order to show cause, justified his detention on the petitioner by virtue of an order of the Circuit Court of the United States for the District of Minnesota, which adjudged the petitioner guilty of contempt of that court, and directed that he be fined the sum of $100, and that he should dismiss the mandamus proceedings brought by him in the name and in behalf of the State, in the Circuit Court of the State, and that he should stand committed to the custody of the marshal until that order was obeyed. The case Page 209 U. S. 127 involves the validity of the order of the Circuit Court committing him for contempt. The facts are these: the legislature of the State of Minnesota duly created a railroad and warehouse commission, and that commission, on the 6th of September, 1906, made an order fixing the rates for the various railroad companies for the carriage of merchandise between stations in that State of the kind and classes specified in what is known as the "Western Classification." These rates materially reduced those then existing, and were, by the order, to take effect November 15, 1906. In obedience to the order, the railroads filed and published the schedules of rates, which have, ever since that time, been carried out by the companies. At the time of the making of the above order, it was provided by the Revised Laws of Minnesota, 1905 (§ 1987), that any common carrier who violated the provisions of that section or willfully suffered any such unlawful act or omission, when no specific penalty is imposed therefor, "if a natural person, shall be guilty of a gross misdemeanor, and shall be punished by a fine of not less than $2,500, nor more than $5,000 for the first offense, and not less than $5,000 nor more than $10,000 for each subsequent offense; and, if such carrier or warehouseman be a corporation, it shall forfeit to the State for the first offense not less than $2,500 nor more than $5,000, and for each subsequent offense not less than $5,000 nor more than $10,000, to be recovered in a civil action." This provision covered disobedience to the orders of the commission. On the 4th of April, 1907, the legislature of the State of Minnesota passed an act fixing 2 cents a mile as the maximum passenger rate to be charged by railroads in Minnesota. (The rate had been theretofore 3 cents per mile.) The act was to take effect on the 1st of May, 1907, and was put into effect on that day by the railroad companies, and the same Page 209 U. S. 128 has been observed by them up to the present time. It was provided in the act that "any railroad company, or any officer, agent, or representative thereof, who shall violate any provision of this act, shall be guilty of a felony, and, upon conviction thereof, shall be punished by a fine not exceeding five thousand ($5,000) dollars, or by imprisonment in the state prison for a period not exceeding five (5) years, or both such fine and imprisonment." On the 18th of April, 1907, the legislature passed an act (chapter 232 of the laws of that year), which established rates for the transportation of certain commodities (not included in the Western Classification) between stations in that State. The act divided the commodities to which it referred into seven classes, and set forth a schedule of maximum rates for each class when transported in carload lots, and established the minimum weight which constituted a carload of each class. Section 5 provided that it should not affect the power or authority of the railroad and warehouse commission, except that no duty should rest upon that commission to enforce any rates specifically fixed by the act or any other statute of the State. The section further provided generally that the orders made by the railroad and warehouse commission prescribing rates should be the exclusive legal maximum rates for the transportation of the commodities enumerated in the act between points within that State. Section 6 directed that every railroad company in the State should adopt and publish and put into effect the rates specified in the statute, and that every officer, director, traffic manager, or agent, or employee of such railroad company should cause the adoption, publication, and use by such railroad company of rates not exceeding those specified in the act, "and any officer, director, or such agent or employee of any such railroad company who violates any of the provisions of this section, or who causes or counsels, advises or assists, any such railroad company to violate any of the provisions of this section, shall be guilty of a misdemeanor, and may be prosecuted therefor Page 209 U. S. 129 in any county into which its railroad extends, and in which it has a station, and upon a conviction thereof be punished by imprisonment in the county jail for a period not exceeding ninety days." The act was to take effect June 1, 1907. The railroad companies did not obey the provisions of this act so far as concerned the adoption and publication of rates as specified therein. On the 31st of May, 1907, the day before the act was to take effect, nine suits in equity were commenced in the Circuit Court of the United States for the district of Minnesota, third division, each suit being brought by stockholders of the particular railroad mentioned in the bill, and in each case the defendants named were the railroad company of which the complainants were, respectively, stockholders, and the members of the railroad and warehouse commission, and the Attorney General of the State, Edward T. Young, and individual defendants, representing the shippers of freight upon the railroad. The order punishing Mr. Young for contempt was made in the suit in which Charles E. Perkins, a citizen of the State of Iowa, and David C. Shepare, a citizen of the State of Minnesota, were complainants, and the Northern Pacific Railway Company, a corporation organized under the laws of the State of Wisconsin, Edward T. Young, petitioner herein, and others, were parties defendant. All of the defendants, except the railway company, are citizens and residents of the State of Minnesota. It was averred in the bill that the suit was not a collusive one to confer on the court jurisdiction of a case of which it could not otherwise have cognizance, but that the objects and purposes of the suit were to enjoin the railway company from publishing or adopting (or continuing to observe, if already adopted) the rates and tariffs prescribed and set forth in the two acts of the legislature above mentioned and in the orders of the railroad and warehouse commission, and also to enjoin the other defendants from attempting to enforce such provisions, or from instituting any action or proceeding against Page 209 U. S. 130 the defendant railway company, its officers, etc., on account of any violation thereof, for the reason that the said acts and orders were and each of them was violative of the Constitution of the United States. The bill also alleged that the orders of the railroad commission of September 6, 1906, May 3, 1907, the passenger rate act of April 4, 1907, and the act of April 18, 1907, reducing the tariffs and charges which the railway company had theretofore been permitted to make, were each and all of them unjust, unreasonable, and confiscatory, in that they each of them would, and will if enforced, deprive complainants and the railway company of their property without due process of law, and deprive them and it of the equal protection of the laws, contrary to and in violation of the Constitution of the United States and the amendments thereof. It was also averred that the complainants had demanded of the president and managing directors of the railway company that they should cease obedience to the orders of the commission dated September 6, 1906, and May 3, 1907, and to the acts already mentioned, and that the rates prescribed in such orders and acts should not be put into effect, and that the said corporation, its officers and directors, should institute proper suit or suits to prevent said rates (named in the orders and in the acts of the legislature) from continuing or becoming effective, as the case might be, and to have the same declared illegal; but the said corporation, its president and directors, had positively declined and refused to do so, not because they considered the rates a fair and just return upon the capital invested, or that they would not be confiscatory, but because of the severity of the penalties provided for the violation of such acts and orders, and therefore they could not subject themselves to the ruinous consequences which would inevitably result from failure on their part to obey the said laws and orders -- a result which no action by themselves, their stockholders or directors, could possibly prevent. The bill further alleged that the orders of the commission Page 209 U. S. 131 of September, 1906, and May, 1907, and the acts of April 4, 1907, and April 18, 1907, were, in the penalties prescribed for their violation, so drastic that no owner or operator of a railway property could invoke the jurisdiction of any court to test the validity thereof except at the risk of confiscation of its property and the imprisonment for long terms in jails and penitentiaries of its officers, agents, and employees. For this reason, the complainants alleged that the above-mentioned orders and acts, and each of them, denied to the defendant railway company and its stockholders, including the complainants, the equal protection of the laws, and deprived it and them of their property without due process of law, and that each of them was, for that reason, unconstitutional and void. The bill also contained an averment that, if the railway company should fail to continue to observe and keep in force, or to observe and put in force, the orders of the commission and the acts of April 4, 1907, and April 18, 1907, such failure might result in an action against the company or criminal proceedings against its officers, directors, agents, or employees, subjecting the company and such officers to an endless number of actions at law and criminal proceedings; that, if the company should fail to obey the order of the commission or the acts of April 4, 1907, and April 18, 1907, the said Edward T. Young, as Attorney General of the State of Minnesota, would, as complainants were advised and believed, institute proceedings by mandamus or otherwise against the railway company, its officers, directors, agents, or employees, to enforce said orders and all the provisions thereof, and that he threatened and would take other proceedings against the company, its officers, etc., to the same end and for the same purpose, and that he would, on such failure, institute mandamus or other proceedings for the purpose of enforcing said acts and each thereof, and the provisions and penalties thereof. Appropriate relief by injunction against the action of the defendant Young and the railroad commission was asked for. Page 209 U. S. 132 A temporary restraining order was made by the Circuit Court, which only restrained the railway company from publishing the rates as provided for in the act of April 18, 1907, and from reducing its tariffs to the figures set forth in that act, the court refusing for the present to interfere by injunction with regard to the orders of the commission and the act of April 4, 1907, as the railroads had already put them in operation; but it restrained Edward T. Young, Attorney General, from taking any steps against the railroads to enforce the remedies or penalties specified in the act of April 18, 1907. Copies of the bill and the restraining order were served, among others, upon the defendant Mr. Edward T. Young, Attorney General, who appeared specially and only for the purpose of moving to dismiss the bill as to him, on the ground that the court had no jurisdiction over him as Attorney General; and he averred that the State of Minnesota had not consented, and did not consent, to the commencement of this suit against him as Attorney General of the State, which suit was, in truth and effect, a suit against the said State of Minnesota contrary to the Eleventh Amendment of the Constitution of the United States. The Attorney General also filed a demurrer to the bill on the same ground stated in the motion to dismiss. The motion was denied and the demurrer overruled. Thereupon, on the 23d of September, 1907, the court, after a hearing of all parties and taking proofs in regard to the issues involved, ordered a temporary injunction to issue against the railway company restraining it, pending the final hearing of the cause, from putting into effect the tariffs, rates, or charges set forth in the act approved April 18, 1907. The court also enjoined the defendant Young, as Attorney General of the State of Minnesota, pending the final hearing of the cause, from taking or instituting any action or proceeding to enforce the penalties and remedies specified in the act above mentioned, or to compel obedience to that act, or compliance therewith, or any part thereof. Page 209 U. S. 133 As the court refused to grant any preliminary injunction restraining the enforcement of the rates fixed by the railroad and warehouse commission, or the passenger rates under the act of April 4, 1907, because the same had been accepted by the railroads and were in operation, the court stated that, in omitting the granting of such preliminary injunction, the necessity was obviated upon that hearing of determining whether the rates fixed by the commission, or the passenger rates, together or singly, were confiscatory and did not afford reasonable compensation for the service rendered and a proper allowance for the property employed, and, for those reasons, that question had not been considered; but inasmuch as the rates fixed by the act of April 18, 1907, had not gone into force, the court observed: "It seems to me, upon this evidence of the conditions before either of those new rates were put into effect (that is, the order of the commission of September, 1906, or the act of April 4, 1907) and the reductions made by those rates, that, if there is added the reduction which is attempted to be made by the commodity act (April 18, 1907), it will reduce the compensation received by the companies below what would be a fair compensation for the services performed, including an adequate return upon the property invested. And I think, on the whole, that a preliminary injunction should issue in respect to the rates fixed by chapter 232 (act of April 18), talked of as the commodity rates, and that there should be no preliminary injunction as to the other rates, although the matter as to whether they are compensatory or not is a matter which may be determined in the final determination of the action. " The day after the granting of this preliminary injunction, the Attorney General, in violation of such injunction, filed a petition for an alternative writ of mandamus in one of the courts of the State, and obtained an order from that court September 24, 1907, directing the alternative writ to issue as prayed for in the petition. The writ was thereafter issued and served upon the Northern Pacific Railway Company, Page 209 U. S. 134 commanding the company, immediately after its receipt, "to adopt and publish and keep for public inspection, as provided by law, as the rates and charges to be made, demanded, and maintained by you for the transportation of freight between stations in the State of Minnesota of the kind, character, and class named and specified in chapter 232 of the Session Laws of the State of Minnesota for the year 1907, rates and charges which do not exceed those declared to be just and reasonable in and by the terms and provisions of said chapter 232. . . ." Upon an affidavit showing these facts, the United States Circuit Court ordered Mr. Young to show cause why he should not be punished as for a contempt for his misconduct in violating the temporary injunction issued by that court in the case therein pending. Upon the return of this order, the Attorney General filed his answer, in which he set up the same objections which he had made to the jurisdiction of the court in his motion to dismiss the bill, and in his demurrer; he disclaimed any intention to treat the court with disrespect in the commencement of the proceedings referred to, but, believing that the decision of the court in the action, holding that it had jurisdiction to enjoin him, as Attorney General, from performing his discretionary official duties, was in conflict with the Eleventh Amendment of the Constitution of the United States, as the same has been interpreted and applied by the United States Supreme Court, he believed it to be his duty, as such Attorney General, to commence the mandamus proceedings for and in behalf of the State, and it was in this belief that the proceedings were commenced solely for the purpose of enforcing the law of the State of Minnesota. The order adjudging him in contempt was then made. Page 209 U. S. 142 MR. JUSTICE PECKHAM, after making the foregoing statement, delivered the opinion of the court. We recognize and appreciate to the fullest extent the very great importance of this case not only to the parties now before the court, but also to the great mass of the citizens of this country, all of whom are interested in the practical working of the courts of justice throughout the land, both Federal and State, and in the proper exercise of the jurisdiction of the Federal courts, as limited and controlled by the Federal Constitution and the laws of Congress. That there has been room for difference of opinion with regard to such limitations the reported cases in this court bear conclusive testimony. It cannot be stated that the case before us is entirely free from any possible doubt, nor that intelligent men may not differ as to the correct answer to the question we are called upon to decide. The question of jurisdiction, whether of the Circuit Court or of this court, is frequently a delicate matter to deal with, and it is especially so in this case, where the material and most important objection to the jurisdiction of the Circuit Court is the assertion that the suit is, in effect, against one of the States of the Union. It is a question, however, which we are called upon, and which it is our duty, to decide. Under these circumstances, the language of Chief Justice Marshall in Cohen v. Virginia , 6 Wheat. 264-404, is most apposite. In that case, he said: Page 209 U. S. 143 "It is most true that this court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is to exercise our best judgment, and conscientiously to perform our duty." Coming to a consideration of the case, we find that the complainants in the suit commenced in the Circuit Court were stockholders in the Northern Pacific Railway Company, and the reason for commencing it and making the railroad company one of the parties defendant is sufficiently set forth in the bill. Davis &c Co. v. Los Angeles, 189 U. S. 207 , 189 U. S. 220 ; equity rule 94, Supreme Court. It is primarily asserted on the part of the petitioner that jurisdiction did not exist in the Circuit Court because there was not the requisite diversity of citizenship, and there was no question arising under the Constitution or laws of the United States to otherwise give jurisdiction to that court. There is no claim made here of jurisdiction on the ground of diversity of citizenship, and the claim, if made, would be unfounded in fact. If no other ground exists, then the order of the Circuit Court assuming to punish petitioner for contempt was an unlawful order made by a court without jurisdiction. In such case, this court, upon proper application, will discharge the person from imprisonment. Ex parte Yarbrough, 110 U. S. 651 ; Ex parte Fisk, 113 U. S. 713 ; In re Ayers, 123 U. S. 443 , 123 U. S. 485 . But an examination of the record before us shows that there are Federal questions in this case. It is insisted by the petitioner that there is no Federal question Page 209 U. S. 144 presented under the Fourteenth Amendment, because there is no dispute as to the meaning of the Constitution, where it provides that no State shall deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws; and whatever dispute there may be in this case is one of fact simply, whether the freight or passenger rates, as fixed by the legislature or by the railroad commission, are so low as to be confiscatory; and that is not a Federal question. Jurisdiction is given to the Circuit Court in suits involving the requisite amount, arising under the Constitution or laws of the United States (1 U.S.Comp.Stat. p. 508), and the question really to be determined under this objection is whether the acts of the legislature and the orders of the railroad commission, if enforced, would take property without due process of law, and, although that question might incidentally involve a question of fact, its solution, nevertheless, is one which raises a Federal question. See Hastings v. Ames (C.C.A. 8th Circuit), 68 Fed.Rep. 726. The sufficiency of rates with reference to the Federal Constitution is a judicial question, and one over which Federal courts have jurisdiction by reason of its Federal nature. Chicago &c. R.R. Co. v. Minnesota, 134 U. S. 418 ; Reagan v. Farmers' &c. Co. 154 U.S. 154 U. S. 369 -399; St. Louis &c. Co. v. Gill, 156 U. S. 649 ; Covington &c. Co. v. Sandford, 164 U. S. 578 ; Smyth v. Ames, 169 U. S. 466 , 169 U. S. 522 ; Chicago, &c. Railway Co. v. Tompkins, 170 U. S. 167 , 170 U. S. 172 . Another Federal question is the alleged unconstitutionality of these acts because of the enormous penalties denounced for their violation, which prevent the railway company, as alleged, or any of its servants or employees, from resorting to the courts for the purpose of determining the validity of such acts. The contention is urged by the complainants in the suit that the company is denied the equal protection of the laws. and its property is liable to be taken without due process of law, because it is only allowed a hearing upon the claim of of Page 209 U. S. 145 the unconstitutionality of the acts and orders in question, at the risk, if mistaken, of being subjected to such enormous penalties, resulting in the possible confiscation of its whole property, that, rather than take such risks, the company would obey the laws although such obedience might also result in the end (though by a slower process) in such confiscation. Still another Federal question is urged growing out of the assertion that the laws are, by their necessary effect, an interference with and a regulation of interstate commerce, the grounds for which assertion it is not now necessary to enlarge upon. The question is not, at any rate, frivolous. We conclude that the Circuit Court had jurisdiction in the case before it, because it involved the decision of Federal questions arising under the Constitution of the United States. Coming to the inquiry regarding the alleged invalidity of these acts, we take up the contention that they are invalid on their face on account of the penalties. For disobedience to the freight act, the officers, directors, agents, and employees of the company are made guilty of a misdemeanor, and, upon conviction, each may be punished by imprisonment in the county jail for a period not exceeding ninety days. Each violation would be a separate offense, and, therefore, might result in imprisonment of the various agents of the company who would dare disobey for a term of ninety days each for each offense. Disobedience to the passenger rate act renders the party guilty of a felony and subject to a fine not exceeding $5,000 or imprisonment in the state prison for a period not exceeding five years, or both fine and imprisonment. The sale of each ticket above the price permitted by the act would be a violation thereof. It would be difficult, if not impossible, for the company to obtain officers, agents, or employees willing to carry on its affairs except in obedience to the act and orders in question. The company itself would also, in case of disobedience, be liable to the immense fines provided for in violating orders of the commission. The company, in order to test the validity of the acts, must find some Page 209 U. S. 146 agent or employee to disobey them at the risk stated. The necessary effect and result of such legislation must be to preclude a resort to the courts (either State or Federal) for the purpose of testing its validity. The officers and employees could not be expected to disobey any of the provisions of the acts or orders at the risk of such fines and penalties being imposed upon them in case the court should decide that the law was valid. The result would be a denial of any hearing to the company. The observations upon a similar question, made by Mr. Justice Brewer in Cotting v. Kansas City Stock Yards Company, 183 U. S. 79 , 183 U. S. 99 , 183 U. S. 100 , 183 U. S. 102 , are very apt. At page 183 U. S. 100 , he stated: "Do the laws secure to an individual an equal protection when he is allowed to come into court and make his claim or defense subject to the condition that, upon a failure to make good that claim or defense, the penalty for such failure either appropriates all his property or subjects him to extravagant and unreasonable loss?" Again, at page 183 U. S. 102 , he says: "It is doubtless true that the State may impose penalties such as will tend to compel obedience to its mandates by all, individuals or corporations, and, if extreme and cumulative penalties are imposed only after there has been a final determination of the validity of the statute, the question would be very different from that here presented. But when the legislature, in an effort to prevent any inquiry of the validity of a particular statute, so burdens any challenge thereof in the courts that the party affected is necessarily constrained to submit, rather than take the chances of the penalties imposed, then it becomes a serious question whether the party is not deprived of the equal protection of the laws." The question was not decided in that case, as it went off on another ground. We have the same question now before us, only the penalties are more severe in the way of fines, to which is added, in the case of officers, agents, or employees of the company, the risk of imprisonment for years as a common felon. See also Mercantile Trust Co. v. Texas &c. Ry. Co., 51 Fed.Rep. 529-543; Louisville &c. Ry. Co. v. McChord, 103 Page 209 U. S. 147 Fed.Rep. 216-223; Consolidated Gas Co. v. Mayer, 146 Fed.Rep. 150-153. In McGahey v. Virginia, 135 U. S. 662 , 135 U. S. 694 , it was held that, to provide a different remedy to enforce a contract which is unreasonable and which imposes conditions not existing when the contract was made was to offer no remedy, and when the remedy is so onerous and impracticable as to substantially give none at all, the law is invalid, although what is termed a remedy is in fact given. See also Bronson v. Kinzie , 1 How. 311, 42 U. S. 317 ; Seibert v. Lewis, 122 U. S. 284 . If the law be such as to make the decision of the legislature or of a commission conclusive as to the sufficiency of the rates, this court has held such a law to be unconstitutional. Chicago, &c. Railway Co. v. Minnesota, supra. A law which indirectly accomplishes a like result by imposing such conditions upon the right to appeal for judicial relief as work an abandonment of the right, rather than face the conditions upon which it is offered or may be obtained, is also unconstitutional. It may therefore be said that, when the penalties for disobedience are by fines so enormous and imprisonment so severe as to intimidate the company and its officers from resorting to the courts to test the validity of the legislation, the result is the same as if the law, in terms, prohibited the company from seeking judicial construction of laws which deeply affect its rights. It is urged that there is no principle upon which to base the claim that a person is which to base the claim that a person is entitled to disobey a statute at least once, for the purpose of testing its validity, without subjecting himself to the penalties for disobedience provided by the statute in case it is valid. This is not an accurate statement of the case. Ordinarily, a law creating offenses in the nature of misdemeanors or felonies relates to a subject over which the jurisdiction of the legislature is complete in any event. In the case, however, of the establishment of certain rates without any hearing, the validity of such rates necessarily depends upon whether they are high enough to permit at least some return upon the investment (how much it is not now Page 209 U. S. 148 necessary to state), and an inquiry as to that fact is a proper subject of judicial investigation. If it turns out that the rates are too low for that purpose, then they are illegal. Now to impose upon a party interested the burden of obtaining a judicial decision of such a question (no prior hearing having ever been given) only upon the condition that, if unsuccessful, he must suffer imprisonment and pay fines, as provided in these acts, is, in effect, to close up all approaches to the courts, and thus prevent any hearing upon the question whether the rates as provided by the acts are not too low, and therefore invalid. The distinction is obvious between a case where the validity of the act depends upon the existence of a fact which can be determined only after investigation of a very complicated and technical character, and the ordinary case of a statute upon a subject requiring no such investigation, and over which the jurisdiction of the legislature is complete in any event. We hold, therefore, that the provisions of the acts relating to the enforcement of the rates, either for freight or passengers, by imposing such enormous fines and possible imprisonment as a result of an unsuccessful effort to test the validity of the laws themselves, are unconstitutional on their face, without regard to the question of the insufficiency of those rates. We also hold that the Circuit Court had jurisdiction under the cases already cited (and it was therefore its duty) to inquire whether the rates permitted by these acts or orders were too low, and therefore confiscatory, and, if so held, that the court then had jurisdiction to permanently enjoin the railroad company from putting them in force, and that it also had power, while the inquiry was pending, to grant a temporary injunction to the same effect. Various affidavits were received upon the hearing before the court prior to the granting of the temporary injunction, and the hearing itself was, as appears from the opinion, full and deliberate, and the fact was found that the rates fixed by the commodity act, under the circumstances existing with Page 209 U. S. 149 reference to the passenger rate act and the orders of the commission, were not sufficient to be compensatory, and were, in fact, confiscatory, and the act was therefore unconstitutional. The injunction was thereupon granted with reference to the enforcement of the commodity act. We have, therefore, upon this record, the case of an unconstitutional act of the state legislature and an intention by the Attorney General of the State to endeavor to enforce its provisions, to the injury of the company, in compelling it, at great expense, to defend legal proceedings of a complicated and unusual character, and involving questions of vast importance to all employees and officers of the company, as well as to the company itself. The question that arises is whether there is a remedy that the parties interested may resort to, by going into a Federal court of equity, in a case involving a violation of the Federal Constitution, and obtaining a judicial investigation of the problem, and, pending its solution, obtain freedom from suits, civil or criminal, by a temporary injunction, and, if the question be finally decided favorably to the contention of the company, a permanent injunction restraining all such actions or proceedings. This inquiry necessitates an examination of the most material and important objection made to the jurisdiction of the Circuit Court -- the objection being that the suit is, in effect, one against the State of Minnesota, and that the injunction issued against the Attorney General illegally prohibits state action, either criminal or civil, to enforce obedience to the statutes of the State. This objection is to be considered with reference to the 11th and Fourteenth Amendments to the Federal Constitution. The Eleventh Amendment prohibits the commencement or prosecution of any suit against one of the United States by citizens of another State or citizens or subjects of any foreign state. The Fourteenth Amendment provides that no State shall deprive any person of life, liberty, or property without due process of law, nor shall it deny to any person within its jurisdiction the equal protection of the laws. Page 209 U. S. 150 The case before the Circuit Court proceeded upon the theory that the orders and acts heretofore mentioned would, if enforced, violate rights of the complainants protected by the latter amendment. We think that, whatever the rights of complainants may be, they are largely founded upon that Amendment, but a decision of this case does not require an examination or decision of the question whether its adoption in any way altered or limited the effect of the earlier Amendment. We may assume that each exists in full force, and that we must give to the Eleventh Amendment all the effect it naturally would have, without cutting it down or rendering its meaning any more narrow than the language, fairly interpreted, would warrant. It applies to a suit brought against a State by one of its own citizens, as well as to a suit brought by a citizen of another State. Hans v. Louisiana, 134 U. S. 1 . It was adopted after the decision of this court in Chisholm v. Georgia , (1792) 2 Dall. 419, where it was held that a State might be sued by a citizen of another State. Since that time, there have been many cases decided in this court involving the Eleventh Amendment, among them being Osborn v. United States Bank , (1824) 9 Wheat. 738, 22 U. S. 846 , 22 U. S. 857 , which held that the Amendment applied only to those suits in which the State was a party on the record. In the subsequent case of Governor of Georgia v. Madrazo , (1828) 1 Pet. 110, 26 U. S. 122 , 26 U. S. 123 , that holding was somewhat enlarged, and Chief Justice Marshall, delivering the opinion of the court, while citing Osborn v. United States Bank, supra, said that, where the claim was made, as in the case then before the court, against the Governor of Georgia as Governor, and the demand was made upon him not personally, but officially (for moneys in the treasury of the State and for slaves in possession of the State government), the State might be considered as the party on the record (page 26 U. S. 123 ), and therefore the suit could not be maintained. Davis v. Gray , 16 Wall. 203, 83 U. S. 220 , reiterates the rule of Osborn v. United States Bank so far as concerns the right to enjoin a state officer from executing a state law in conflict with Page 209 U. S. 151 the Constitution or a statute of the United States when such execution will violate the rights of the complainant. In Poindexter v. Greenhow, 114 U. S. 270 , 114 U. S. 296 , it was adjudged that a suit against a tax collector who had refused coupons in payment of taxes, and, under color of a void law, was about to seize and sell the property of a taxpayer for nonpayment of his taxes was a suit against him personally, as a wrongdoer, and not against the State. Hagood v. Southern, 117 U. S. 52 , 117 U. S. 67 , decided that the bill was, in substance, a bill for the specific performance of a contract between the complainants and the State of South Carolina, and, although the State was not, in name, made a party defendant, yet, being the actual party to the alleged contract the performance of which was sought, and the only party by whom it could be performed, the State was, in effect, a party to the suit, and it could not be maintained for that reason. The things required to be done by the actual defendants were the very things which, when done, would constitute a performance of the alleged contract by the State. The cases upon the subject were reviewed, and it was held, In re Ayers, 123 U. S. 443 , that a bill in equity brought against officers of a State who, as individuals, have no personal interest in the subject matter of the suit, and defend only as representing the State, where the relief prayed for, if done, would constitute a performance by the State of the alleged contract of the State, was a suit against the State (page 123 U. S. 504 ), following in this respect Hagood v. Southern, supra. A suit of such a nature was simply an attempt to make the State itself, through its officers, perform its alleged contract by directing those officers to do acts which constituted such performance. The State alone had any interest in the question, and a decree in favor of plaintiff would affect the treasury of the State. On the other hand, United States v. Lee, 106 U. S. 196 , determined that an individual in possession of real estate under the government of the United States, which claimed to be Page 209 U. S. 152 its owner, was, nevertheless, properly sued by the plaintiff, as owner, to recover possession, and such suit was not one against the United States, although the individual in possession justified such possession under its authority. See also Tindal v. Wesley, 167 U. S. 204 , to the same effect. In Pennoyer v. McConnaughy, 140 U. S. 1 , 140 U. S. 9 , a suit against land commissioners of the State was said not to be against the State, although the complainants sought to restrain the defendants, officials of the State, from violating, under an unconstitutional act, the complainants' contract with the State, and thereby working irreparable damage to the property rights of the complainants. Osborn v. United States Bank, supra, was cited, and it was stated: "But the general doctrine of Osborn v. United States Bank, that the Circuit Courts of the United States will restrain a state officer from executing an unconstitutional statute of the State when to execute it would violate rights and privileges of the complainant which had been guaranteed by the Constitution and would work irreparable damage and injury to him, has never been departed from." The same principle is decided in Scott v. Donald, 165 U. S. 58 , 165 U. S. 67 . And see Missouri &c. v. Missouri Railroad Commissioners, 183 U. S. 53 . The cases above cited do not include one exactly like this under discussion. They serve to illustrate the principles upon which many cases have been decided. We have not cited all the cases, as we have not thought it necessary. But the injunction asked for in the Ayers Case, 123 U.S. ( supra ), was to restrain the state officers from commencing suits under the act of May 12, 1887 (alleged to be unconstitutional), in the name of the State and brought to recover taxes for its use, on the ground that, if such suits were commenced, they would be a breach of a contract with the State. The injunction was declared illegal because the suit itself could not be entertained, as it was one against the State, to enforce its alleged contract. It was said, however, that, if the court had power to entertain such a suit, it would have power to grant the restraining order Page 209 U. S. 153 preventing the commencement of suits. (Page 123 U. S. 487 .) It was not stated that the suit or the injunction was necessarily confined to a case of a threatened direct trespass upon or injury to property. Whether the commencement of a suit could ever be regarded as an actionable injury to another, equivalent, in some cases, to a trespass such as is set forth in some of the foregoing cases, has received attention of the rate cases, so-called. Reagan v. Farmers' & Trust Co., 154 U. S. 362 (a rate case), was a suit against the members of a railroad commission (created under an act of the State of Texas) and the Attorney General, all of whom were held suable, and that such suit was not one against the State. The commission was enjoined from enforcing the rates it had established under the act, and the Attorney General was enjoined from instituting suits to recover penalties for failing to conform to the rates fixed by the commission under such act. It is true the statute in that case creating the board provided that suit might be maintained by any dissatisfied railroad company, or other party in interest, in a court of competent jurisdiction in Travis county, Texas, against the commission as defendant. This court held that such language permitted a suit in the United States Circuit Court for the western district of Texas, which embraced Travis county, but it also held that, irrespective of that consent, the suit was not, in effect, a suit against the State (although the Attorney General was enjoined), and therefore not prohibited under the Amendment. It was said in the opinion, which was delivered by Mr. Justice Brewer, that the suit could not, in any fair sense, be considered a suit against the State (page 154 U. S. 392 ), and the conclusion of the court was that the objection to the jurisdiction of the Circuit Court was not tenable, whether that jurisdiction was rested (page 154 U. S. 393 ) "upon the provisions of the statute, or upon the general jurisdiction of the court, existing by virtue of the statutes of Congress, under the sanction of the Constitution of the United States." Each of these grounds is effective and both are of equal force. Page 209 U. S. 154 Union Pacific &c. v. Mason City Company, 199 U. S. 160 , 199 U. S. 166 . In Smyth v. Ames, 169 U. S. 466 (another rate case), it was again held that a suit against individuals for the purpose of preventing them, as officers of the State, from enforcing, by the commencement of suits or by indictment, an unconstitutional enactment, to the injury of the rights of the plaintiff was not a suit against a State within the meaning of the Amendment. At page 169 U. S. 518 , in answer to the objection that the suit was really against the State, it was said: "It is the settled doctrine of this court that a suit against individuals, for the purpose of preventing them, as officers of a State, from enforcing an unconstitutional enactment, to the injury of the rights of the plaintiff, is not a suit against the State within the meaning of that Amendment." The suit was to enjoin the enforcement of a statute of Nebraska because it was alleged to be unconstitutional on account of the rates being too low to afford some compensation to the company, and contrary, therefore, to the Fourteenth Amendment. There was no special provision in the statute as to rates, making it the duty of the Attorney General to enforce it, but, under his general powers, he had authority to ask for a mandamus to enforce such or any other law. State of Nebraska ex rel. &c. v. The Fremont &c. Railroad Co., 22 Neb. 313. The final decree enjoined the Attorney General from bringing any suit (page 169 U. S. 477 ) by way of injunction, mandamus, civil action, or indictment, for the purpose of enforcing the provisions of the act. The 5th section of the act provided that an action might be brought by a railroad company in the supreme court of the State of Nebraska; but this court did not base its decision on that section when it held that a suit of the nature of that before it was not a suit against a State, although brought against individual state officers, for the purpose of enjoining them from enforcing, either by civil proceeding or indictment, an unconstitutional enactment to the injury of the plaintiff's right. Page 169 U. S. 518 . Page 209 U. S. 155 This decision was reaffirmed in Prout v. Starr, 188 U. S. 537 , 188 U. S. 542 . Attention is also directed to the case of Missouri &c. Rwy. Co. v. Missouri R.R. &c. Commissioners, 183 U. S. 53 . That was a suit brought in a state court of Missouri by the railroad commissioners of the State, who had the powers granted them by the statutes set forth in the report. Their suit was against the railway company, to compel it to discontinue certain charges it was making for crossing the Boonville bridge over the Missouri river. The defendant sought to remove the case to the Federal court, which the plaintiffs resisted, and the state court refused to remove, on the ground that the real plaintiff was the State of Missouri, and it was proper to go behind the face of the record to determine that fact. In regular manner, the case came here, and this court held that the State was not the real party plaintiff, and the case had therefore been properly removed from the state court, whose judgment was thereupon reversed. Applying the same principles of construction to the removal act which had been applied to the Eleventh Amendment, it was said by this court that the State might be the real party plaintiff when the relief sought inures to it alone, and in whose favor the judgment or decree, if for the plaintiff, will effectively operate. Although the case is one arising under the removal act, and does not involve the Eleventh Amendment, it nevertheless illustrates the question now before us, and reiterates the doctrine that the State is not a party to a suit simply because the state railroad commission is such party. The doctrine of Smyth v. Ames is also referred to and reiterated in Gunter, Attorney General v. Atlantic &c. Railroad Co., 200 U. S. 273 , 200 U. S. 283 . See also McNeill v. Southern Railway, 202 U. S. 543 , 202 U. S. 559 ; Mississippi Railroad Commission v. Illinois &c. Railroad Co., 203 U. S. 335 , 203 U. S. 340 . The various authorities we have referred to furnish ample justification for the assertion that individuals who, as officers Page 209 U. S. 156 of the State, are clothed with some duty in regard to the enforcement of the laws of the State, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such action. It is objected, however, that Fitts v. McGhee, 172 U. S. 516 , has somewhat limited this principle, and that, upon the authority of that case, it must be held that the State was a party to the suit in the United States Circuit Court, and the bill should have been dismissed as to the Attorney General on that ground. We do not think such contention is well founded. The doctrine of Smyth v. Ames was neither overruled nor doubted in the Fitts case. In that case, the Alabama legislature, by the act of 1895, fixed the tolls to be charged for crossing the bridge. The penalties for disobeying that act by demanding and receiving higher tolls were to be collected by the persons paying them. No officer of the State had any official connection with the recovery of such penalties. The indictments mentioned were found under another State statute, set forth at page 172 U. S. 520 of the report of the case, which provided a fine against an officer of a company for taking any greater rate of toll than was authorized by its charter, or, if the charter did not specify the amount, then the fine was imposed for charging any unreasonable toll, to be determined by a jury. This act was not claimed to be unconstitutional, and the indictments found under it were not necessarily connected with the alleged unconstitutional act fixing the tolls. As no state officer who was made a party bore any close official connection with the act fixing the tolls, the making of such officer a party defendant was a simple effort to test the constitutionality of such act in that way, and there is no principle upon which it could be done. A state superintendent of schools might as well have been made a party. In the light of this fact it was said in the opinion (page 172 U. S. 530 ): Page 209 U. S. 157 "In the present case, as we have said, neither of the state officers named held any special relation to the particular statute alleged to be unconstitutional. They were not expressly directed to see to its enforcement. If, because they were law officers of the State, a case could be made for the purpose of testing the constitutionality of the statute by an injunction suit brought against them, then the constitutionality of every act passed by the legislature could be tested by a suit against the Governor and the Attorney General, based upon the theory that the former, as the executive of the State, was, in a general sense, charged with the execution of all its laws, and the latter, as Attorney General, might represent the State in litigation involving the enforcement of its statutes. That would be a very convenient way for obtaining a speedy judicial determination of questions of constitutional law which may be raised by individuals, but it is a mode which cannot be applied to the States of the Union consistently with the fundamental principle that they cannot, without their assent, be brought into any court at the suit of private persons." In making an officer of the State a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional, it is plain that such officer must have some connection with the enforcement of the act, or else it is merely making him a party as a representative of the State, and thereby attempting to make the State a party. It has not, however, been held that it was necessary that such duty should be declared in the same act which is to be enforced. In some cases, it is true, the duty of enforcement has been so imposed ( 154 U. S. 154 U.S. 362, 154 U. S. 366 , § 19 of the act), but that may possibly make the duty more clear; if it otherwise exist, it is equally efficacious. The fact that the state officer, by virtue of his office, has some connection with the enforcement of the act, is the important and material fact, and whether it arises out of the general law or is specially created by the act itself is not material, so long as it exists. In the course of the opinion in the Fitts case, the Reagan and Page 209 U. S. 158 Smyth cases were referred to (with others) as instances of state officers specially charged with the execution of a State enactment alleged to be unconstitutional, and who commit, under its authority, some specific wrong or trespass to the injury of plaintiff's rights. In those cases, the only wrong or injury or trespass involved was the threatened commencement of suits to enforce the statute as to rates, and the threat of such commencement was, in each case, regarded as sufficient to authorize the issuing of an injunction to prevent the same. The threat to commence those suits under such circumstances was therefore necessarily held to be equivalent to any other threatened wrong or injury to the property of a plaintiff which had theretofore been held sufficient to authorize the suit against the officer. The being specially charged with the duty to enforce the statute is sufficiently apparent when such duty exists under the general authority of some law, even though such authority is not to be found in the particular act. It might exist by reason of the general duties of the officer to enforce it as a law of the State. The officers in the Fitts case occupied the position of having no duty at all with regard to the act, and could not be properly made parties to the suit for the reason stated. It is also objected that, as the statute does not specifically make it the duty of the Attorney General (assuming he has that general right) to enforce it, he has, under such circumstances, a full general discretion whether to attempt its enforcement or not, and the court cannot interfere to control him as Attorney General in the exercise of his discretion. In our view, there is no interference with his discretion under the facts herein. There is no doubt that the court cannot control the exercise of the discretion of an officer. It can only direct affirmative action where the officer having some duty to perform not involving discretion, but merely ministerial in its nature, refuses or neglects to take such action. In that case, the court can direct the defendant to perform this merely ministerial duty. Board of Liquidation v. McComb, 92 U. S. 531 , 92 U. S. 541 . Page 209 U. S. 159 The general discretion regarding the enforcement of the laws when and as he deems appropriate is not interfered with by an injunction which restrains the state officer from taking any steps towards the enforcement of an unconstitutional enactment, to the injury of complainant. In such case, no affirmative action of any nature is directed, and the officer is simply prohibited from doing an act which he had no legal right to do. An injunction to prevent him from doing that which he has no legal right to do is not an interference with the discretion of an officer. It is also argued that the only proceeding which the Attorney General could take to enforce the statute, so far as his office is concerned, was one by mandamus, which would be commenced by the State, in its sovereign and governmental character, and that the right to bring such action is a necessary attribute of a sovereign government. It is contended that the complainants do not complain and they care nothing about any action which Mr. Young might take or bring as an ordinary individual, but that he was complained of as an officer, to whose discretion is confided the use of the name of the State of Minnesota so far as litigation is concerned, and that when or how he shall use it is a matter resting in his discretion, and cannot be controlled by any court. The answer to all this is the same as made in every case where an official claims to be acting under the authority of the State. The act to be enforced is alleged to be unconstitutional, and, if it be so, the use of the name of the State to enforce an unconstitutional act to the injury of complainants is a proceeding without the authority of, and one which does not affect, the State in its sovereign or governmental capacity. It is simply an illegal act upon the part of a State official in attempting, by the use of the name of the State, to enforce a legislative enactment which is void because unconstitutional. If the act which the state Attorney General seeks to enforce be a violation of the Federal Constitution, the officer, in proceeding under such enactment, comes into conflict with the Page 209 U. S. 160 superior authority of that Constitution, and he is, in that case, stripped of his official or representative character, and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States. See In re Ayers, supra, p. 123 U. S. 507 . It would be an injury to complainant to harass it with a multiplicity of suits or litigation generally in an endeavor to enforce penalties under an unconstitutional enactment, and to prevent it ought to be within the jurisdiction of a court of equity. If the question of unconstitutionality, with reference, at least, to the Federal Constitution, be first raised in a Federal court, that court, as we think is shown by the authorities cited hereafter, has the right to decide it, to the exclusion of all other courts. The question remains whether the Attorney General had, by the law of the State, so far as concerns these rate acts, any duty with regard to the enforcement of the same. By his official conduct, it seems that he regarded it as a duty connected with his office to compel the company to obey the commodity act, for he commenced proceedings to enforce such obedience immediately after the injunction issued, at the risk of being found guilty of contempt by so doing. The duties of the Attorney General, as decided by the supreme court of the State of Minnesota, are created partly by statute and exist partly as at common law. State ex rel. Young, Attorney General v. Robinson (decided June 7, 1907),112 N.W.Rep. 269. In the above-cited case, it was held that the Attorney General might institute, conduct, and maintain all suits and proceedings he might deem necessary for the enforcement of the laws of the State, the preservation of order, and the protection of public rights, and that there were no statutory restrictions in that State limiting the duties of the Attorney General in such case. Section 3 of chapter 227 of the General Laws of Minnesota, 1905 (same law, § 58, Revised Laws of Minnesota, 1905), Page 209 U. S. 161 imposes the duty upon the Attorney General to cause proceedings to be instituted against any corporation whenever it shall have offended against the laws of the State. By § 1960 of the Revised Laws of 1905, it is also provided that the Attorney General shall be ex officio attorney for the railroad commission, and it is made his duty to institute and prosecute all actions which the commission shall order brought, and shall render the commissioners all counsel and advice necessary for the proper performance of their duties. It is said that the Attorney General is only bound to act when the commission orders action to be brought, and that § 5 of the commodity act (April 18, 1907) expressly provides that no duty shall rest upon the commission to enforce the act, and hence no duty other than that which is discretionary rests upon the Attorney General in that matter. The provision is somewhat unusual, but the reasons for its insertion in that act are not material, and neither require nor justify comment by this court. It would seem to be clear that the Attorney General, under his power existing at common law, and by virtue of these various statutes, had a general duty imposed upon him which includes the right and the power to enforce the statutes of the State, including, of course, the act in question, if it were constitutional. His power, by virtue of his office, sufficiently connected him with the duty of enforcement to make him a proper party to a suit of the nature of the one now before the United States Circuit Court. It is further objected (and the objection really forms part of the contention that the State cannot be sued) that a court of equity has no jurisdiction to enjoin criminal proceedings, by indictment or otherwise, under the state law. This, as a general rule, is true. But there are exceptions. When such indictment or proceeding is brought to enforce an alleged unconstitutional statute which is the subject matter of inquiry in a suit already pending in a Federal court, the latter court, having first obtained jurisdiction over the subject matter, has Page 209 U. S. 162 the right, in both civil and criminal cases, to hold and maintain such jurisdiction, to the exclusion of all other courts, until its duty is fully performed. Prout v. Starr, 188 U. S. 537 , 188 U. S. 544 . But the Federal court cannot, of course, interfere in a case where the proceedings were already pending in a state court. Taylor v. Taintor , 16 Wall. 366, 83 U. S. 370 ; Harkrader v. Wadley, 172 U. S. 148 . Where one commences a criminal proceeding who is already party to a suit then pending in a court of equity, if the criminal proceedings are brought to enforce the same right that is in issue before that court, the latter may enjoin such criminal proceedings. Davis &c. Co. v. Los Angeles, 189 U. S. 207 . In Dobbins v. Los Angeles, 195 U. S. 223 , 195 U. S. 241 , it is remarked by Mr. Justice Day, in delivering the opinion of the court, that "it is well settled that, where property rights will be destroyed, unlawful interference by criminal proceedings under a void law or ordinance may be reached and controlled by a decree of a court of equity." Smyth v. Ames, supra, distinctly enjoined the proceedings by indictment to compel obedience to the rate act. These cases show that a court of equity is not always precluded from granting an injunction to stay proceedings in criminal cases, and we have no doubt the principle applies in a case such as the present. In re Sawyer, 124 U. S. 200 , 124 U. S. 211 , is not to the contrary. That case holds that, in general, a court of equity has no jurisdiction of a bill to stay criminal proceedings, but it expressly states an exception, "unless they are instituted by a party to the suit already pending before it, and to try the same right that is in issue there." Various authorities are cited to sustain the exception. The criminal proceedings here that could be commenced by the state authorities would be under the statutes relating to passenger or freight rates, and their validity is the very question involved in the suit in the United States Circuit Court. The right to restrain proceedings by mandamus is based upon the same foundation, and governed by the same principles. Page 209 U. S. 163 It is proper to add that the right to enjoin an individual, even though a state official, from commencing suits under circumstances already stated does not include the power to restrain a court from acting in any case brought before it, either of a civil or criminal nature, nor does it include power to prevent any investigation or action by a grand jury. The latter body is part of the machinery of a criminal court, and an injunction against a State court would be a violation of the whole scheme of our government. If an injunction against an individual is disobeyed, and he commences proceedings before a grand jury or in a court, such disobedience is personal only, and the court or jury can proceed without incurring any penalty on that account. The difference between the power to enjoin an individual from doing certain things and the power to enjoin courts from proceeding in their own way to exercise jurisdiction is plain, and no power to do the latter exists because of a power to do the former. It is further objected that there is a plain and adequate remedy at law open to the complainants, and that a court of equity, therefore, has no jurisdiction in such case. It has been suggested that the proper way to test the constitutionality of the act is to disobey it at least once, after which the company might obey the act pending subsequent proceedings to test its validity. But, in the event of a single violation, the prosecutor might not avail himself of the opportunity to make the test, as obedience to the law was thereafter continued, and he might think it unnecessary to start an inquiry. If, however, he should do so while the company was thereafter obeying the law, several years might elapse before there was a final determination of the question, and, if it should be determined that the law was invalid, the property of the company would have been taken during that time without due process of law, and there would be no possibility of its recovery. Another obstacle to making the test on the part of the company might be to find an agent or employee who would disobey Page 209 U. S. 164 the law, with a possible fine and imprisonment staring him in the face if the act should be held valid. Take the passenger rate act, for instance: a sale of a single ticket above the price mentioned in that act might subject the ticket agent to a charge of felony, and, upon conviction, to a fine of $5,000 and imprisonment for five years. It is true the company might pay the fine, but the imprisonment the agent would have to suffer personally. It would not be wonderful if, under such circumstances, there would not be a crowd of agents offering to disobey the law. The wonder would be that a single agent should be found ready to take the risk. If, however, one should be found, and the prosecutor should elect to proceed against him, the defense that the act was invalid, because the rates established by it were too low, would require a long and difficult examination of quite complicated facts upon which the validity of the act depended. Such investigation it would be almost impossible to make before a jury, as such body could not intelligently pass upon the matter. Questions of the cost of transportation of passengers and freight, the net earnings of the road, the separation of the cost and earnings within the State from those arising beyond its boundaries, all depending upon the testimony of experts and the examination of figures relating to these subjects, as well, possibly, as the expenses attending the building and proper cost of the road, would necessarily form the chief matter of inquiry, and intelligent answers could only be given after a careful and prolonged examination of the whole evidence, and the making of calculations based thereon. All material evidence having been taken upon these issues, it has been held that it ought to be referred to the most competent and reliable master to make all needed computations, and to find therefrom the necessary facts upon which a judgment might be rendered that might be reviewed by this court. Chicago, &c. Railway Co. v. Tompkins, 176 U. S. 167 . From all these considerations, it is plain that this is not a proper suit for investigation by a jury. Suits for penalties, or indictment Page 209 U. S. 165 or other criminal proceedings for a violation of the act, would therefore furnish no reasonable or adequate opportunity for the presentation of a defense founded upon the assertion that the rates were too low, and therefore the act invalid. We do not say the company could not interpose this defense in an action to recover penalties or upon the trial of an indictment ( St. Louis &c. Ry. Co. v. Gill, 156 U. S. 649 ), but the facility of proving it, in either case, falls so far below that which would obtain in a court of equity that comparison is scarcely possible. To await proceedings against the company in a state court, grounded upon a disobedience of the act, and then, if necessary, obtain a review in this court by writ of error to the highest state court, would place the company in peril of large loss, and its agents in great risk of fines and imprisonment if it should be finally determined that the act was valid. This risk the company ought not to be required to take. Over eleven thousand millions of dollars, it is estimated, are invested in railroad property, owned by many thousands of people who are scattered over the whole country, from ocean to ocean, and they are entitled to equal protection from the laws and from the courts with the owners of all other kinds of property -- no more, no less. The courts having jurisdiction, Federal or State, should at all times be opened to them, as well as to others, for the purpose of protecting their property and their legal rights. All the objections to a remedy at law as being plainly inadequate are obviated by a suit in equity, making all who are directly interested parties to the suit and enjoining the enforcement of the act until the decision of the court upon the legal question. An act of the legislature fixing rates, either for passengers or freight, is to be regarded as prima facie valid, and the onus rests upon the company to prove its assertion to the contrary. Under such circumstances, it was stated by Mr. Justice Miller, Page 209 U. S. 166 in his concurring opinion in Chicago, &c. Co. v. Minnesota, 134 U. S. 418 , 134 U. S. 460 , that the proper, if not the only, mode of judicial relief against the tariff of rates established by the legislature or by its commission is by a bill in chancery asserting its unreasonable character, and that, until the decree of the court in such equity suit was obtained, it was not competent for each individual having dealings with a carrier, or for the carrier in regard to each individual who demands its services, to raise a contest in the courts over the questions which ought to be settled in this general and conclusive manner. This remedy by bill in equity is referred to and approved by Mr. Justice Shiras in delivering the opinion of the court in St. Louis &c. Co. v. Gill, 156 U. S. 649 , 156 U. S. 659 , 166 U. S. 666 ,, although that question was not then directly before the court. Such remedy is undoubtedly the most convenient, the most comprehensive, and the most orderly way in which the rights of all parties can be properly, fairly, and adequately passed upon. It cannot be to the real interest of anyone to injure or cripple the resources of the railroad companies of the country, because the prosperity of both the railroads and the country is most intimately connected. The question of sufficiency of rates is important and controlling, and, being of a judicial nature, it ought to be settled at the earliest moment by some court, and, when a Federal court first obtains jurisdiction, it ought, on general principles of jurisprudence, to be permitted to finish the inquiry and make a conclusive judgment, to the exclusion of all other courts. This is all that is claimed, and this, we think, must be admitted. Finally, it is objected that the necessary result of upholding this suit in the Circuit Court will be to draw to the lower Federal courts a great flood of litigation of this character, where one Federal judge would have it in his power to enjoin proceedings by state officials to enforce the legislative acts of the State, either by criminal or civil actions. To this it may be answered, in the first place, that no injunction ought to be granted unless in a case reasonably free from doubt. We Page 209 U. S. 167 think such rule is, and will be, followed by all the judges of the Federal courts. And, again, it must be remembered that jurisdiction of this general character has, in fact, been exercised by Federal courts from the time of Osborn v. United States Bank up to the present, the only difference in regard to the case of Osborn and the case in hand being that, in this case, the injury complained of is the threatened commencement of suits, civil or criminal, to enforce the act, instead of, as in the Osborn case, an actual and direct trespass upon or interference with tangible property. A bill filed to prevent the commencement of suits to enforce an unconstitutional act, under the circumstances already mentioned is no new invention, as we have already seen. The difference between an actual and direct interference with tangible property and the enjoining of state officers from enforcing an unconstitutional act is not of a radical nature, and does not extend, in truth, the jurisdiction of the courts over the subject matter. In the case of the interference with property, the person enjoined is assuming to act in his capacity as an official of the State, and justification for his interference is claimed by reason of his position as a state official. Such official cannot so justify when acting under an unconstitutional enactment of the legislature. So, where the state official, instead of directly interfering with tangible property, is about to commence suits which have for their object the enforcement of an act which violates the Federal Constitution, to the great and irreparable injury of the complainants, he is seeking the same justification from the authority of the State as in other cases. The sovereignty of the State is, in reality, no more involved in one case than in the other. The State cannot, in either case, impart to the official immunity from responsibility to the supreme authority of the United States. See In re Ayers, 123 U. S. 507 . This supreme authority, which arises from the specific provisions of the Constitution itself, is nowhere more fully illustrated than in the series of decisions under the Federal habeas Page 209 U. S. 168 corpus statute (§ 753, Rev.Stat.), in some of which cases persons in the custody of state officers for alleged crimes against the State have been taken from that custody and discharged by a Federal court or judge because the imprisonment was adjudged to be in violation of the Federal Constitution. The right to so discharge has not been doubted by this court, and it has never been supposed there was any suit against the State by reason of serving the writ upon one of the officers of the State in whose custody the person was found. In some of the cases, the writ has been refused as matter of discretion, but, in others, it has been granted, while the power has been fully recognized in all. Ex parte Royall, 117 U. S. 241 ; In re Loney, 134 U. S. 372 ; In re Neagle, 135 U. S. 1 ; Baker v. Grice, 169 U. S. 284 ; Ohio v. Thomas, 173 U. S. 276 ; Minnesota v. Brundage, 180 U. S. 499 , 180 U. S. 502 ; Reid v. Jones, 187 U. S. 153 ; United States v. Lewis, 200 U. S. 1 ; In re Lincoln, 202 U. S. 178 . It is somewhat difficult to appreciate the distinction which, while admitting that the taking of such a person from the custody of the State by virtue of service of the writ on the state officer in whose custody he is found is not a suit against the State, and yet service of a writ on the Attorney General, to prevent his enforcing an unconstitutional enactment of a State legislature, is a suit against the State. There is nothing in the case before us that ought properly to breed hostility to the customary operation of Federal courts of justice in cases of this character. The rule to show cause is discharged and the petition for writs of habeas corpus and certiorari is dismissed. So ordered. MR. JUSTICE HARLAN, dissenting: Although the history of this litigation is set forth in the opinion of the court, I deem it appropriate to restate the principal facts of the case in direct connection with my examination of the question upon which the decision turns. Page 209 U. S. 169 That question is whether the suit in the Circuit Court of the United States was, as to the relief sought against the Attorney General of Minnesota, forbidden by the Eleventh Amendment of the Constitution of the United States, declaring that "the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign state." That examination, I may say at the outset, is entered upon with no little embarrassment, in view of the fact that the views expressed by me are not shared by my brethren. I may also frankly admit embarrassment arising from certain views stated in dissenting opinions heretofore delivered by me which did not, at the time, meet the approval of my brethren, and which I do not now myself entertain. What I shall say in this opinion will be in substantial accord with what the court has heretofore decided, while the opinion of the court departs, as I think, from principles previously announced by it upon full consideration. I propose to adhere to former decisions of the court whatever may have been once my opinion as to certain aspects of this general question. The plaintiffs in the suit referred to, Perkins and Shepard, were shareholders of the Northern Pacific Railway Company, and citizens, respectively, of Iowa and Minnesota. The defendants were the railway company, Edward T. Young, Attorney General of Minnesota, the several members of the state railroad and warehouse commission, and certain persons who were shippers of freight over the lines of that railway. The general object of the suit was to prevent compliance with the provisions of certain acts of the Minnesota legislature and certain orders of the state railroad and warehouse commission indicating the rates which the State permits to be charged for the transportation of passengers and commodities upon railroads within its limits; also, to prevent shippers from bringing actions against the railway company to enforce those acts and orders. Page 209 U. S. 170 The bill, among other things, prayed that Edward T. Young, "as Attorney General of the State of Minnesota," and the members of the State Railroad and Warehouse Commission (naming them) be enjoined from all attempts to compel the railway company to put in force the rates or any of them prescribed by said orders, and "from taking any action, step, or proceeding against said Railway Company, or any of its officers, directors, agents, or employees, to enforce any penalties or remedies for the violation by said Railway Company of said orders or either of them," and that said Young, "as Attorney General," be enjoined from taking any action, step, or proceeding against the railway company, its officers, agents, or employees, to enforce the penalties and remedies specified in those acts. The court gave a temporary injunction as prayed for. The Attorney General of Minnesota appeared specially, and, without submitting to or acknowledging the jurisdiction of the court, moved to dismiss the suit as to him upon the ground that the State had not consented to be sued, and also because the bill was exhibited against him "as, and only as, the Attorney General of the State of Minnesota," to restrain him, by injunction, from exercising the discretion vested in him to commence appropriate actions, on behalf of the State, to enforce or to test the validity of its laws. He directly raised the question that the suit as to him, in his official capacity, was one against the State, in violation of the Eleventh Amendment. In response to an order to show cause why the injunction asked for should not be granted, the Attorney General also appeared specially, and urged like objections to the suit against him in the Circuit Court. After hearing the parties, the court made an order, September 23d, 1907, whereby the railway company, its officers, directors, agents, servants, and employees, were enjoined until the further order of the court from publishing, adopting, or putting into effect the tariffs, rates, or charges specified in the Page 209 U. S. 171 act of April 18th, 1907. The court likewise enjoined the defendant Young, "as Attorney General of the State of Minnesota," from "taking or instituting any action, suit, step, or proceeding to enforce the penalties and remedies specified in said act or either thereof, or to compel obedience to said act or compliance therewith or any part thereof." A like injunction was granted against the defendant shippers. On the next day, September 24th, 1907, the State of Minnesota, "on the relation of Edward T. Young, Attorney General," commenced an action in one of its own courts against the Northern Pacific Railway Company, the only relief sought being a mandamus ordering the company to adopt, publish, keep for public inspection, and put into effect, as the rates and charges to be maintained for the transportation of freight between stations in Minnesota, those named and specified in what is known as chapter 232 of the Session Laws of Minnesota for 1907. That was the act which it was the object of the Perkins-Shepard suit in the Federal court to strike down and nullify. An alternative writ of mandamus, such as the State asked, was issued by the state court. The institution, in the state court, by the State, on the relation of its Attorney General, of the mandamus proceeding against the railway company, having been brought to the attention of the Federal Circuit Court, a rule was issued against the defendant Young to show cause why he should not be punished as for contempt. Answering that rule, he alleged, among other things, that the mandamus proceeding was brought by and on behalf of the State, through him as its Attorney General; that in every way possible, he had objected to such jurisdiction on the ground that the action was commenced against him solely as the Attorney General for Minnesota, in order to prevent him from instituting in the proper courts civil actions for and in the name of the State, to enforce or test the validity of its laws; that there is no other action or proceeding pending or contemplated by this defendant against said railway company, except said proceedings in mandamus Page 209 U. S. 172 hereinbefore referred to. Defendant expressly disclaimed any intention to treat this court with disrespect in the commencement of the proceedings referred to, "but, believing that the decision of this court in this action, holding that it had jurisdiction to enjoin this defendant, as such Attorney General, from performing his discretionary official duties, was in conflict with the Eleventh Amendment of the Constitution of the United States, as the same has been interpreted and applied by the United States Supreme Court, defendant believed it to be his duty as such Attorney General to commence said mandamus proceedings for and in behalf of the State, and it was in this belief that said proceedings were commenced solely for the purpose of enforcing the said law of the State of Minnesota." The rule was heard, and the Attorney General was held to be in contempt, the order of the Federal court being: "Ordered further, that said Edward T. Young forthwith dismiss or cause to be dismissed the suit of the State of Minnesota on the Relation of Edward T. Young, Attorney General, Plaintiff, v. Northern Pacific Railway Company, Defendant, heretofore instituted by him in the district court of the county of Ramsey, Second Judicial District, State of Minnesota. Ordered further, that, for his said contempt, said Edward T. Young be fined the sum of $100 and stand committed in the custody of the marshal of this court until the same be paid, and until he purge himself of his contempt by dismissing, or causing to be dismissed, said suit last herein mentioned." The present proceeding was commenced by an original application by Young to this court for a writ of habeas corpus. The petitioner, in his application, proceeds upon the ground that he is held in custody in violation of the Constitution of the United States. The petition set out all the steps taken in the suit in the Federal court, alleging, among other things: "That your petitioner's office as Attorney General of the State of Minnesota is established and provided for by the Constitution of the said State, § 1 of article 5 thereof Page 209 U. S. 173 providing as follows, to-wit:" " The executive department shall consist of a Governor, lieutenant Governor, Secretary of State, Auditor, Treasurer, and Attorney General, who shall be chosen by the electors of the State." "That neither by statute nor otherwise is your petitioner charged with any special duty of a ministerial character in the doing or not doing of which said complainants in the said bill of complaint or the said Northern Pacific Railway Company had any legal right, and that whatever duties your petitioner had or has with respect to the several matters complained of in the said bill of complaint are of an executive and discretionary nature. That in no case could your petitioner, even though it was his intention so to do, which it was not, deprive the said complainants or the said Northern Pacific Railway Company, or either of them, of any property, nor could he trespass upon their rights in any particular, and that all he could do as Attorney General, as aforesaid, and all that it was his duty to do in that capacity, and all that he intended to do or would do, was to commence formal judicial proceedings in the appropriate court of Minnesota against the said Northern Pacific Railway Company, its officers, agents, and employees, to compel the said company, its officers, agents, and servants, to adopt and put in force the schedule of freight rates tariffs, and charges prescribed by said chapter 232, Laws 1907, of the State of Minnesota." He renewed the objection that the suit instituted by Perkins and Shepard, insofar as the same is against him, was a suit against the State, to prevent his commencing the proposed action in the name of the State, and was in restraint of the State itself, "and that the said suit is one against the said State, in violation of the Eleventh Amendment to the Constitution of the United States, and that therefore the same is and was, so far as your petitioner is concerned, beyond the jurisdiction of the said Circuit Court," etc. This statement will sufficiently indicate the nature of the question to be now examined upon its merits. Let it be observed that the suit instituted by Perkins and Page 209 U. S. 174 Shepard in the Circuit Court of the United States was, as to the defendant Young, one against him as, and only because he was, Attorney General of Minnesota. No relief was sought against him individually, but only in his capacity as Attorney General. And the manifest, indeed the avowed and admitted, object of seeking such relief, was to tie the hands of the State, so that it could not in any manner or by any mode of proceeding, in its own courts, test the validity of the statutes and orders in question. It would therefore seem clear that, within the true meaning of the Eleventh Amendment, the suit brought in the Federal court was one, in legal effect, against the State -- as much so as if the State had been formally named on the record as a party -- and therefore it was a suit to which, under the Amendment, so far as the State or its Attorney General was concerned, the judicial power of the United States did not and could not extend. If this proposition be sound, it will follow -- indeed, it is conceded, that if, so far as relief is sought against the Attorney General of Minnesota, this be a suit against the State, then the order of the Federal court enjoining that officer from taking any action, suit, step, or proceeding to compel the railway company to obey the Minnesota statute was beyond the jurisdiction of that court and wholly void, in which case, that officer was at liberty to proceed in the discharge of his official duties as defined by the laws of the State, and the order adjudging him to be in contempt for bringing the mandamus proceeding in the state court was a nullity. The fact that the Federal Circuit Court had, prior to the institution of the mandamus suit in the state court, preliminarily (but not finally) held the statutes of Minnesota and the orders of its railroad and warehouse commission in question to be in violation of the Constitution of the United States was no reason why that court should have laid violent hands upon the Attorney General of Minnesota and, by its orders, have deprived the State of the services of its constitutional law officer in its own courts. Yet that is what was done by Page 209 U. S. 175 the Federal Circuit Court; for the intangible thing called a State, however extensive its powers, can never appear or be represented or known in any court in a litigated case except by and through its officers. When, therefore, the Federal court forbade the defendant Young, as Attorney General of Minnesota, from taking any action, suit, step, or proceeding whatever looking to the enforcement of the statutes in question, it said in effect to the State of Minnesota: "It is true that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to its people, and it is true that, under the Constitution, the judicial power of the United States does not extend to any suit brought against a State by a citizen of another State or by a citizen or subject of a foreign state, yet the Federal court adjudges that you, the State, although a sovereign for many important governmental purposes, shall not appear in your own courts, by your law officer, with the view of enforcing, or even for determining the validity of, the state enactments which the Federal court has, upon a preliminary hearing, declared to be in violation of the Constitution of the United States." This principle, if firmly established, would work a radical change in our governmental system. It would inaugurate a new era in the American judicial system and in the relations of the national and state governments. It would enable the subordinate Federal courts to supervise and control the official action of the States as if they were "dependencies" or provinces. It would place the States of the Union in a condition of inferiority never dreamed of when the Constitution was adopted or when the Eleventh Amendment was made a part of the supreme law of the land. I cannot suppose that the great men who framed the Constitution ever thought the time would come when a subordinate Federal court, having no power to compel a State, in its corporate capacity, to appear before it as a litigant, would yet assume to deprive a State of the right to be represented in its own courts by its Page 209 U. S. 176 regular law officer. That is what the court below did, as to Minnesota, when it adjudged that the appearance of the defendant Young in the state court, as the Attorney General of Minnesota, representing his State as its chief law officer, was a contempt of the authority of the Federal court, punishable by fine and imprisonment. Too little consequence has been attached to the fact that the courts of the States are under an obligation equally strong with that resting upon the courts of the Union to respect and enforce the provisions of the Federal Constitution as the supreme law of the land, and to guard rights secured or guaranteed by that instrument. We must assume -- a decent respect for the States requires us to assume -- that the state courts will enforce every right secured by the Constitution. If they fail to do so, the party complaining has a clear remedy for the protection of his rights, for he can come by writ of error, in an orderly, judicial way, from the highest court of the State to this tribunal for redress in respect of every right granted or secured by that instrument and denied by the state court. The state courts, it should be remembered, have jurisdiction concurrent with the courts of the United States of all suits of a civil nature, at common law or equity, involving a prescribed amount, arising under the Constitution or laws of the United States. 25 Stat. 434. And this court has said: "A state court of original jurisdiction, having the parties before it, may, consistently with existing Federal legislation, determine cases at law or in equity arising under the Constitution or laws of the United States or involving rights dependent upon such Constitution or laws. Upon the state courts, equally with the courts of the Union, rests the obligation to guard, enforce, and protect every right granted or secured by the Constitution of the United States and the laws made in pursuance thereof, whenever those rights are involved in any suit or proceeding before them; for the judges of the state courts are required to take an oath to support that Constitution, and they are bound by it, and the laws of the United States made in pursuance thereof, and all treaties Page 209 U. S. 177 made under their authority, as the supreme law of the land, 'anything in the Constitution or laws of any State to the contrary notwithstanding.' If they fail therein, and withhold or deny rights, privileges, or immunities secured by the Constitution and laws of the United States, the party aggrieved may bring the case from the highest court of the State in which the question could be decided to this court for final and conclusive determination." Robb v. Connolly, 111 U. S. 624 , 111 U. S. 637 . So that an order of the Federal court preventing the State from having the services of its Attorney General in one of its own courts, except at the risk of his being fined and arrested, cannot be justified upon the ground that the question of constitutional law, involved in the enforcement of the statutes in question, was beyond the competency of a State court to consider and determine, primarily, as between the parties before it in a suit brought by the State itself. At the argument of this case, counsel for the railway company insisted that the provisions of the act in question were so drastic that they could be enforced by the State in its own courts with such persistency and in such a manner as, in a very brief period, to have the railway officers and agents all in jail, the business of the company destroyed, and its property confiscated by heavy and successive penalties before a final judicial decision as to the constitutionality of the act could be obtained. I infer from some language in the court's opinion that these apprehensions are shared by some of my brethren. And this supposed danger to the railway company and its shareholders seems to have been the basis of the action of the Federal Circuit Court when, by its order directed against the Attorney General of Minnesota, it practically excluded the State from its own courts in respect of the issues here involved. But really no such question as to the state statute is here involved or need be now considered, for it cannot possibly arise on the hearing of the present application of that officer for discharge on habeas corpus. The only question now before this court is whether the suit by Perkins and Shepard in the Federal Page 209 U. S. 178 court was not, upon its face, as to the relief sought against the Attorney General of Minnesota, a suit against the State. Stated in another form, the question is whether that court may, by operating upon that officer in his official capacity, by means of fine and imprisonment, prevent the State from being represented by its law officer in one of its own courts? If the Federal court could not thus put manacles upon the State so as to prevent it from being represented by its Attorney General in its own court and from having the state court pass upon the validity of the state enactment in question in the Perkins-Shepard suit, that is an end to this habeas corpus proceeding, and the Attorney General of Minnesota should be discharged by order of this court from custody. It is to be observed that, when the State was, in effect, prohibited by the order of the Federal court from appearing in its own courts, there was no danger -- absolutely none whatever -- from anything that the Attorney General had ever done or proposed to do that the property of the railway company would be confiscated and its officers and agents imprisoned, beyond the power of that company to stay any wrong done by bringing to this court, in regular order, any final judgment of the state court, in the mandamus suit, which may have been in derogation of a Federal right. When the Attorney General instituted the mandamus proceeding in the state court against the railway company, there was in force, it must not be forgotten, an order of injunction by the Federal court which prevented that company from obeying the state law. There was consequently no danger from that direction. Besides, the mandamus proceeding was not instituted for the recovery of any of the penalties prescribed by the state law, and therefore no judgment in that case could operate directly upon the property of the railway company or upon the persons of its officers or agents. The Attorney General, in his response to the rule against him, assured the Federal court that he did not contemplate any proceeding whatever against the railway company except the one in mandamus. Suppose the Page 209 U. S. 179 mandamus case had been finally decided in the state court -- the way was open for the railway company to preserve any question it made as to its rights under the Constitution, and, in the event of a decision adverse to it in that court, at once to carry the case to the highest court of Minnesota, and thence, by a writ of error, bring it to this court. That course would have served to determine every question of constitutional law raised by the suit in the Federal court in an orderly way, without trampling upon the State, and without interfering, in the meantime, with the operation of the railway property in the accustomed way. Instead of adopting that course -- so manifestly consistent with the dignity and authority of both the Federal and State judicial tribunals -- the Federal court practically closed the state courts against the State itself when it adjudged that the Attorney General, without regard to the wishes of the Governor of Minnesota and without reference to his duties as prescribed by the laws of that State, should stand in the custody of the marshal unless he dismissed the mandamus suit. If the Federal court could thus prohibit the law officer of the State from representing it in a suit brought in the state court, why might not the bill in the Federal court be so amended that that court could reach all the district attorneys in Minnesota, and forbid them from bringing to the attention of grand juries and the state courts violations of the state act by the railway company? And if a grand jury was about to inquire into the acts of the railway company in respect of the matter of its rates, why may not the Federal court, proceeding upon the same grounds on which it has moved against the Attorney General, enjoin the finding or returning of indictments against the railway company? If an indictment was returned against the railway company, and was about to be tried by a petit jury, why could not the Federal court, upon the principles now announced, forbid the jury to proceed against the railway company, and, if it did, punish every petit juryman as for contempt of court? Indeed, why may it not lay its hands on the Governor of the State and Page 209 U. S. 180 forbid him from appealing to the courts of Minnesota in the name of the State, to test the validity of the act in question? And why may not the Federal court lay its hands even upon the judge of the state court itself whenever it proceeds against the railway company under the state law? The subject matter of these questions has evidently been considered by this court, and the startling consequences that would result from an affirmative answer to them have not been overlooked; for, in its opinion, I find these observations: "It is proper to add that the right to enjoin an individual, even though a state official, from commencing suits under circumstances already stated, does not include the power to restrain a court from acting in any case brought before it, either of a civil or criminal nature, nor does it include power to prevent any investigation or action by a grand jury. The latter body is part of the machinery of a criminal court, and an injunction against a State court would be a violation of the whole scheme of our government. If an injunction against an individual is disobeyed, and he commences proceedings before a grand jury or in a court, such disobedience is personal only, and the court or jury can proceed without incurring any penalty on that account. The difference between the power to enjoin an individual from doing certain things and the power to enjoin courts from proceeding in their own way to exercise jurisdiction is plain, and no power to do the latter exists because of a power to do the former." If an order of the Federal court forbidding a state court or its grand jury from attempting to enforce a state enactment would be "a violation of the whole scheme of our government," it is difficult to perceive why an order of that court forbidding the chief law officer and all the district attorneys of a State to represent it in the courts in a particular case, and practically, in that way, closing the doors of the state court against the State, would not also be inconsistent with the whole scheme of our government, and, therefore, beyond the power of the court to make. Page 209 U. S. 181 Whether the Minnesota statutes are or are not violative of the Constitution is not, as already suggested, a question in this habeas corpus proceeding. I do not, therefore, stop to consider whether those statutes are repugnant to the Constitution upon the ground that, by their necessary operation, when enforced, they will prevent the railway company from contesting their validity, or upon the ground that they are confiscatory, and therefore obnoxious to the requirement of due process of law. While the argument at the bar in support of each of these propositions was confessedly of great force and persuasiveness, those points need not be now examined. I express no opinion about them. Their soundness may, however, be conceded for the purposes of this discussion. Indeed, it may be assumed for the purposes of this discussion that these state enactments are harsh and intemperate and, in some of their features, invalid. But those questions are wholly apart from the present proceeding. If we now consider them, we must go out of our way in order to do so. We have no evidence in this proceeding as to the effect which the statutes, if enforced, would have upon the value either of the railway property or of the bonds or stocks of the railway company. The question of their validity has not been finally decided by the Circuit Court, and we have not before us even the evidence upon which its preliminary injunction was based. The essential and only question now before us or that need be decided is whether an order by the Federal court which prevents the State from being represented in its own courts, by its chief law officer, upon an issue involving the constitutional validity of certain state enactments, does not make a suit against the State within the meaning of the Eleventh Amendment. If it be a suit of that kind, then, it is conceded, the Circuit Court was without jurisdiction to fine and imprison the petitioner, and he must be discharged whatever our views may be as to the validity of those state enactments. This must necessarily be so unless the Amendment has less force and a more restricted meaning now than it had at the time of its adoption, Page 209 U. S. 182 and unless a suit against the Attorney General of a State, in his official capacity, is not one against a State under the Eleventh Amendment when its determination depends upon a question of constitutional power or right under the Fourteenth Amendment. In that view, I cannot concur. In my opinion, the Eleventh Amendment has not been modified in the slightest degree as to its scope or meaning by the Fourteenth Amendment, and a suit which, in its essence, is one against the State remains one of that character, and is forbidden even when brought to strike down a state statute alleged to be in violation of that clause of the Fourteenth Amendment, forbidding the deprivation by a State of life, liberty, or property without due process of law. If a suit be commenced in a state court, and involves a right secured by the Federal Constitution, the way is open under our incomparable judicial system to protect that right, first by the judgment of the state court, and ultimately by the judgment of this court, upon writ of error. But such right cannot be protected by means of a suit which, at the outset, is, directly or in legal effect, one against the State whose action is alleged to be illegal. That mode of redress is absolutely forbidden by the Eleventh Amendment, and cannot be made legal by mere construction, or by any consideration of the consequences that may follow from the operation of the statute. Parties cannot, in any case, obtain redress by a suit against the State. Such has been the uniform ruling in this court, and it is most unfortunate that it is now declared to be competent for a Federal Circuit Court, by exerting its authority over the chief law officer of the State, without the consent of the State, to exclude the State, in its sovereign capacity, from its own courts when seeking to have the ruling of those courts as to its powers under its own statutes. Surely the right of a State to invoke the jurisdiction of its own courts is not less than the right of individuals to invoke the jurisdiction of a Federal court. The preservation of the dignity and sovereignty of the States, within the limits of their constitutional powers, Page 209 U. S. 183 is of the last importance, and vital to the preservation of our system of government. The courts should not permit themselves to be driven by the hardships, real or supposed, of particular cases, to accomplish results, even if they be just results, in a mode forbidden by the fundamental law. The country should never be allowed to think that the Constitution can, in any case, be evaded or amended by mere judicial interpretation, or that its behests may be nullified by an ingenious construction of its provisions. The importance of the question under consideration is a sufficient justification for such a reference to the authorities as will indicate the precise grounds on which this court has oftentimes proceeded when determining what is and what is not a suit against a State within the meaning of the Eleventh Amendment. All the cases agree in declaring the incapacity of a Federal court to exercise jurisdiction over a State as a party. But assaults upon the Eleventh Amendment have oftenest been made in cases in which the effort has been, without making the State a formal party, to control the acts of its officers and agents by such orders directed to them as will accomplish, by indirection, the same results that could be accomplished by a suit directly against the State if such a suit were possible. It will be well to look at some of the principal adjudged cases. The general question was examined in Cunningham v. Macon & Brunswick R.E. Co., 109 U. S. 446 -451, where the court said that it was conceded in all the cases, and "may be accepted as a point of departure unquestioned, that neither a State nor the United States can be sued as defendant in any court in this country without their consent, except in the limited class of cases in which a State may be made a party in the Supreme Court of the United States by virtue of the original jurisdiction conferred on this court by the Constitution." The court has not in any case departed from this constitutional principle. In Pennoyer v. McConnaughy, 140 U. S. 1 , 140 U. S. 9 , it is said that "this immunity of a State from suit is Page 209 U. S. 184 absolute and unqualified, and the constitutional provision securing it is not to be so construed as to place the State within the reach of the process of the court. Accordingly, it is equally well settled that a suit against the officers of a State, to compel them to do the acts which constitute a performance by it of its contracts, is, in effect, a suit against the State itself." In Cunningham v. Macon & Brunswick R.R. Co., just cited, the distinction was drawn between a suit in which the State is the real party in interest, although not technically a party on the record, and one in which "an individual is sued in tort for some act injurious to another in regard to person or property, to which his defense is that he has acted under the orders of the government," in which last case, the court observed, the defendant "is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer." Let it not be forgotten that the defendant Young was sued not as an individual or because he had any personal interest in these matters, but as, and solely because be is, an officer of the State, charged with the performance of certain public duties. In Hagood v. Southern, 117 U. S. 52 , 117 U. S. 67 , 117 U. S. 68 , which involved the validity of certain scrip alleged to have been issued by the State of South Carolina, it appeared that, the State having denied its obligation to pay, the plaintiff sought relief by simply suing certain state officers as such, without making the State a formal party. The court said: "These suits are accurately described as bills for the specific performance of a contract between the complainants and the State of South Carolina, who are the only parties to it. But to these bills the State is not, in name, made a party defendant, though leave is given to it to become such if it chooses; and, except with that consent, it could not be brought before the court and be made to appear and defend. And yet it is the actual party to the alleged contract the performance of which is decreed, the one required to perform the decree, and the only Page 209 U. S. 185 party by whom it can be performed. Though not nominally a party to the record, it is the real and only party in interest, the nominal defendants being the officers and agents of the State, having no personal interest in the subject matter of the suit and defending only as representing the State. And the things required by the decrees to be done and performed by them are the very things which, when done and performed, constitute a performance of the alleged contract by the State. The State is not only the real party to the controversy, but the real party against which relief is sought by the suit, and the suit is, therefore, substantially within the prohibition of the Eleventh Amendment to the Constitution of the United States, which declares that" "the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign state." Again: "If this case is not within the class of those forbidden by the constitutional guaranty to the states of immunity from suits in Federal tribunals, it is difficult to conceive the frame of one which would be. If the State is named as a defendant, it can only be reached either by mesne or final process through its officers and agents, and a judgment against it could neither be obtained nor enforced except as the public conduct and government of the ideal political body called a State could be reached and affected through its official representatives. A judgment against these latter, in their official and representative capacity, commanding them to perform official functions on behalf of the State according to the dictates and decrees of the court, is, if anything can be, a judicial proceeding against the State itself. If not, it may well be asked, what would constitute such a proceeding? In the present cases, the decrees were not only against the defendants in their official capacity, but, that there might be no mistake as to the nature and extent of the duty to be performed, also against their successors in office." Is it to be said that an order requiring the Attorney General of a Page 209 U. S. 186 State to perform certain official functions on behalf of the State is a suit against the State, while an order forbidding him, as Attorney General, not to perform an official function on behalf of the State, is not a suit against the State? The leading case upon the general subject, and one very similar in many important particulars to the present one, is In re Ayers, 123 U. S. 443 , 123 U. S. 496 , 123 U. S. 497 , 123 U. S. 505 . The facts in that case were briefly these: the legislature of Virginia, in 1887, passed an act which holders of sundry bonds and tax-receivable coupons of that Commonwealth alleged to be in violation of their rights under the Constitution of the United States. They instituted a suit in equity in the Circuit Court of the United States against the Attorney General and auditor of Virginia, and against the treasurers and Commonwealth Attorneys of counties, cities, and towns in Virginia, the relief asked being a decree enjoining and restraining the said state officers, and each of them, from bringing or commencing any suit provided for by the above act of 1887, or from doing anything to put that act into operation. The Circuit Court entered an order enjoining the Attorney General of Virginia and each and all the state officers named "from bringing or commencing any suit against any person who has tendered the State of Virginia's tax-receivable coupons in payment of taxes due to said State, as provided for and directed by the act of the legislature of Virginia, approved May 12th, 1887." Subsequently, the Circuit Court of the United States was informed that the Attorney General of Virginia had disobeyed its order of injunction. Thereupon that officer was ruled to show cause why he should not be fined and imprisoned. He responded to the rule, admitting that, after being served with the injunction, he had instituted a suit, in the state Circuit Court, against the Baltimore & Ohio Railroad Company, to recover taxes due the State, and alleging "that he instituted the said suit because he was thereunto required by the act of the General Assembly of Virginia, aforesaid, and because he believed this court had no jurisdiction whatever to award the injunction Page 209 U. S. 187 violated." He disclaimed any intention to treat the court with disrespect, and stated that he had been actuated alone by the desire to have the law properly administered. He was, nevertheless, adjudged guilty of contempt, was required forthwith to dismiss the suit he had brought, was fined $500 for contempt of court, and committed to the custody of the marshal until the fine was paid, and until he purged himself of his contempt by dismissing the suit in the state court. The Attorney General then applied directly to this court for a writ of habeas corpus, which was granted, and, upon hearing, he was released by this court from custody. The order for his discharge recited that the suit in which the injunctions were granted was "in substance and in law a suit against the State of Virginia" and "within the prohibition of the Eleventh Amendment to the Constitution;" that it was one "to which the judicial power of the United States does not extend;" that the Circuit Court was without jurisdiction to entertain it; that all its proceedings in the exercise of jurisdiction were null and void; that it had no authority or power to adjudge the Attorney General in contempt; and that his imprisonment was without authority of law. In the opinion in the Ayers case, the court said: "It follows, therefore, in the present case, that the personal act of the petitioners sought to be restrained by the order of the Circuit Court, reduced to the mere bringing of an action in the name of and for the State against taxpayers, who, although they may have tendered tax-receivable coupons, are charged as delinquents, cannot be alleged against them as an individual act in violation of any legal or contract rights of such taxpayers." Again: "The relief sought is against the defendants, not in their individual, but in their representative, capacity as officers of the State of Virginia. The acts sought to be restrained are the bringing of suits by the State of Virginia in its own name and for its own use. If the State had been made a defendant to this bill by name, charged according to the allegations it now contains -- supposing that such a suit could be maintained -- it would have been subjected Page 209 U. S. 188 to the jurisdiction of the court by process served upon its Governor and Attorney General, according to the precedents in such cases. New Jersey v. New York , 5 Pet. 284, 30 U. S. 288 , 30 U. S. 290 ; Kentucky v. Dennison , 24 How. 66, 65 U. S. 96 , 65 U. S. 97 ; Rule 5 of 1884, 108 U.S. 574. If a decree could have been rendered enjoining the State from bringing suits against its taxpayers, it would have operated upon the State only through the officers who by law were required to represent it in bringing such suits, viz., the present defendants, its Attorney General, and the commonwealth's attorneys for the several counties. For a breach of such an injunction, these officers would be amenable to the court as proceeding in contempt of its authority, and would be liable to punishment therefor by attachment and imprisonment. The nature of the case, as supposed, is identical with that of the case as actually presented in the bill, with the single exception that the State is not named as a defendant. How else can the State be forbidden by judicial process to bring actions in its name except by constraining the conduct of its officers, its attorneys, and its agents? And if all such officers, attorneys, and agents are personally subjected to the process of the court, so as to forbid their acting in its behalf, how can it be said that the State itself is not subjected to the jurisdiction of the court as an actual and real defendant? " Further: "The very object and purpose of the Eleventh Amendment were to prevent the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties. It was thought to be neither becoming nor convenient that the several States of the Union, invested with that large residuum of sovereignty which had not been delegated to the United States, should be summoned as defendants to answer the complaints of private persons, whether citizens of other states or aliens, or that the course of their public policy and the administration of their public affairs should be subject to and controlled by the members of judicial tribunals without their consent, and in favor of individual interests. To secure the manifest purposes of the constitutional exemption guaranteed Page 209 U. S. 189 by the Eleventh Amendment requires that it should be interpreted, not literally and too narrowly, but fairly, and with such breadth and largeness as effectually to accomplish the substance of its purpose. In this spirit, it must be held to cover not only suits brought against a State by name, but those also against its officers, agents, and representatives where the State, though not named as such, is nevertheless the only real party against which alone in fact the relief is asked, and against which the judgment or decree effectively operates. But this is not intended in any way to impinge upon the principle which justifies suits against individual defendants, who, under color of the authority of unconstitutional legislation by the State, are guilty of personal trespasses and wrongs, nor to forbid suits against officers in their official capacity either to arrest or direct their official action by injunction or mandamus, where such suits are authorized by law, and the act to be done or omitted is purely ministerial, in the performance or omission of which the plaintiff has a legal interest." It is said that the Ayers case is not applicable here, because the orders made by the Federal Circuit Court had for their object to compel Virginia to perform its contract with bondholders, which is not this case. But that difference between the Ayers case and this case cannot affect the principle involved. The proceeding against the Attorney General of Virginia had for its object to compel, by indirection, the performance of the contract which that Commonwealth was alleged to have made with bondholders -- such performance, on the part of the State, to be effected by means of orders in a Federal Circuit Court directly controlling the official action of that officer. The proceeding in the Perkins-Shepard suit against the Attorney General of Minnesota had for its object, by means of orders in a Federal Circuit Court, directed to that officer, to control the action of that State in reference to the enforcement of certain statutes by judicial proceedings commenced in its own courts. The relief sought in each case was to control the State by controlling the conduct of its law officer, Page 209 U. S. 190 against its will. I cannot conceive how the proceeding against the Attorney General of Virginia could be deemed a suit against that State, and yet the proceeding against the Attorney General of Minnesota is not to be deemed a suit against Minnesota, when the object and effect of the latter proceeding was, beyond all question, to shut that State entirely out of its own courts, and prevent it, through its law officer, from invoking their jurisdiction in a special matter of public concern, involving official duty, about which the State desired to know the views of its own judiciary. In my opinion, the decision in the Ayers case determines this case for the petitioner. More directly in point, perhaps, for the petitioner Young is the case of Fitts v. McGhee, 172 U. S. 516 , 172 U. S. 528 -530. That suit was brought by the receivers of a railroad company against the Governor and Attorney General of Alabama. Its object was to prevent the enforcement of the provisions of an Alabama statute prescribing the maximum rates of toll to be charged on a certain bridge across the Tennessee river. The statute imposed a penalty for each time that the owners, lessees, or operators of the bridge demanded or received any higher rate of toll than was prescribed by it. The relief asked was an injunction prohibiting the Governor and Attorney General of the State and all other persons from instituting any proceeding against the complainants, or either of them, to enforce the statute. An injunction, as prayed for, was granted. In the progress of the cause, the solicitor of the district in which the case was pending was made a defendant, and the injunction was extended to him. By amended pleadings, it was made to appear that the tollgate keepers at the public crossing of the bridge were indicted for collecting tolls in violation of the statute. In the progress of the cause, the plaintiffs dismissed the case as to the State, and the cause was discontinued as to the Governor. But the case was heard upon the motion to dismiss the bill upon the ground that the suit was one against the State, in violation of the Constitution of the United States. Page 209 U. S. 191 After stating the principles settled in the Ayers case and in other cases, this court said: "If these principles be applied in the present case, there is no escape from the conclusion that, although the State of Alabama was dismissed as a party defendant, this suit against its officers is really one against the State. As a State can act only by its officers, an order restraining those officers from taking any steps, by means of judicial proceedings, in execution of the statute of February 9, 1895, is one which restrains the State itself, and the suit is consequently as much against the State as if the State were named as a party defendant on the record. If the individual defendants held possession or were about to take possession of, or to commit any trespass upon, any property belonging to or under the control of the plaintiffs, in violation of the latter's constitutional rights, they could not resist the judicial determination, in a suit against them, of the question of the right to such possession by simply asserting that they held or were entitled to hold the property in their capacity as officers of the State. In the case supposed, they would be compelled to make good the State's claim to the property, and could not shield themselves against suit because of their official character. Tindal v. Wesley, 167 U. S. 204 , 167 U. S. 222 . No such case is before us." Again, in the same case: "It is to be observed that neither the Attorney General of Alabama nor the Solicitor of the Eleventh Judicial Circuit of the State appear to have been charged by law with any special duty in connection with the act of February 9, 1895. In support of the contention that the present suit is not one against the State, reference was made by counsel to several cases, among which were Poindexter v. Greenhow, 114 U. S. 270 ; Allen v. Baltimore & Ohio Railroad, 114 U. S. 311 ; Pennoyer v. McConnaughy, 140 U. S. 1 ; In re Tyler, 149 U. S. 164 ; Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362 , 154 U. S. 388 ; Scott v. Donald, 165 U. S. 58 ; and Smyth v. Ames, 169 U. S. 466 . Upon examination, it will be found that the defendants in each of those cases were officers of the State, especially charged with the execution of a State enactment Page 209 U. S. 192 alleged to be unconstitutional, but under the authority of which, it was averred, they were committing or were about to commit some specific wrong or trespass, to the injury of the plaintiff's rights. There is a wide difference between a suit against individuals, holding official positions under a State, to prevent them, under the sanction of an unconstitutional statute, from committing, by some positive act, a wrong or trespass, and a suit against officers of a State merely to test the constitutionality of a State statute, in the enforcement of which those officers will act only by formal judicial proceedings in the courts of the State. In the present case, as we have said, neither of the state officers named held any special relation to the particular statute alleged to be unconstitutional. They were not expressly directed to see to its enforcement. If, because they were law officers of the State, a case could be made for the purpose of testing the constitutionality of the statute, by an injunction suit brought against them, then the constitutionality of every act passed by the legislature could be tested by a suit against the Governor and Attorney General, based upon the theory that the former, as the executive of the State, was, in a general sense, charged with the execution of all its laws, and the latter, as Attorney General, might represent the State in litigation involving the enforcement of its statutes. That would be a very convenient way for obtaining a speedy judicial determination of questions of constitutional law which may be raised by individuals, but it is a mode which cannot be applied to the States of the Union consistently with the fundamental principle that they cannot, without their assent, be brought into any court at the suit of private persons. If their officers commit acts of trespass or wrong to the citizen, they may be individually proceeded against for such trespasses or wrong. Under the view we take of the question, the citizen is not without effective remedy when proceeded against under a legislative enactment void for repugnancy to the supreme law of the land; for, whatever the form of proceeding against him, he can make his defense upon the Page 209 U. S. 193 ground that the statute is unconstitutional and void. And that question can be ultimately brought to this court for final determination." I am unable to distinguish that case, in principle, from the one now before us. The Fitts case is not overruled, but is, I fear, frittered away or put out of sight by unwarranted distinctions. Two cases in this court are much relied on to support the proposition that the Perkins-Shepard suit in the Circuit Court is not a suit against the State. I refer to Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362 , and Smyth v. Ames, 169 U. S. 466 , 169 U. S. 472 . But each of those cases differs in material respects from the one instituted by Perkins and Shepard in the court below. In the Reagan case, it appears that the very act under which the railroad commission proceeded authorized the railroad company, or any interested party, if dissatisfied with the action of the commission in establishing rates, to bring suit against that commission in any court, in a named county, with right to appeal to a higher court. This court, when combating the suggestion that only the state court had jurisdiction to proceed against the commission, and give relief in respect of the rates it established, said: "It may be laid down as a general proposition that, whenever a citizen of a State can go into the courts of a State to defend his property against the illegal acts of its officers, a citizen of another State may invoke the jurisdiction of the Federal courts to maintain a like defense. A State cannot tie up a citizen of another State, having property rights within its territory invaded by unauthorized acts of its own officers, to suits for redress in its own courts. Given a case where a suit can be maintained in the courts of the State to protect property rights, a citizen of another State may invoke the jurisdiction of the Federal courts. . . . It comes, therefore, within the very terms of the act. It cannot be doubted that a State, like any other government, can waive exemption from suit." The declaration of the court in the Reagan case that that suit was not, within the true meaning of the Eleventh Page 209 U. S. 194 Amendment, to be regarded as a suit against the State, must therefore be taken in connection with the declaration in the same case that the State, having consented that the commission might be sued in one of its own courts in respect of the rates established by the statute, must be taken to have waived its immunity from suit in the Circuit Court of the United States sitting in Texas. In Smyth v. Ames, above cited, which was a suit in a Circuit Court of the United States, involving the constitutional validity of certain rates established for railroads in Nebraska, it appeared that the statute expressly authorized any railroad company claiming that the rates were unreasonable to bring an action against the State before the Supreme Court in the name of the railroad company or companies bringing the same. Thus, the State of Nebraska waived its immunity from suit, and having authorized a suit against itself in one of its courts in respect of the rates there in question, it could not, according to the decision in the Reagan case, deny its liability to like suit in a court of the United States. It is true that this court, in its opinion in Smyth v. Ames, did not lay any special stress on the fact that Nebraska, by the statute, agreed that it might be sued, but it took especial care in its extended statement of the case to bring out that fact. Its silence on that point is not extraordinary, in view of the fact, as appears from the opinion of this court, that the question whether that suit was to be deemed one against the State was not discussed at the bar by the Nebraska State Board. We there quoted from the Reagan case these words: "Whenever a citizen of a State can go into the courts of a State to defend his property against the illegal acts of its officers, a citizen of another State may invoke the jurisdiction of the Federal courts to maintain a like defense. A State cannot tie up a citizen of another State, having property rights within its territory invaded by unauthorized acts of its own officers, to suits for redress in its own courts." That the Reagan and Smyth cases did not go as far as is now claimed for them is made clear by the later case of Fitts v. McGhee, already referred Page 209 U. S. 195 to, in which the doctrines of In re Ayers were reaffirmed and applied. We may refer in this connection to Gunter v. Atlantic Coast Line, 200 U. S. 273 , 200 U. S. 291 , in which case one of the points made was that the Circuit Court of the United States had no power to restrain the Attorney General of South Carolina and the counsel associated with him from prosecuting in the state courts actions authorized by the laws of the State, and hence that the court erred in awarding an injunction against said officers. This court said: "Support for the proposition is rested upon the terms of the Eleventh Amendment and the provisions of § 720 of the Revised Statutes forbidding the granting of a writ by any court of the United States to stay proceedings in any court of a State, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy. The soundness of the doctrine relied upon is undoubted. In re Ayers, 123 U. S. 443 ; Fitts v. McGhee, 172 U. S. 516 . The difficulty is that the doctrine is inapplicable to this case. Section 720 of the Revised Statutes was originally adopted in 1793, whilst the Eleventh Amendment was in process of formation in Congress for submission to the States, and long, therefore, before the ratification of that Amendment. The restrictions embodied in the section were therefore but a partial accomplishment of the more comprehensive result effectuated by the prohibitions of the Eleventh Amendment. Both the statute and the amendment relate to the power of courts of the United States to deal, against the will and consent of a State, with controversies between it and individuals. None of the prohibitions, therefore, of the Amendment or of the statute relate to the power of a Federal court to administer relief in causes where jurisdiction as to a State and its officers has been acquired as a result of the voluntary action of the State in submitting its rights to judicial determination. To confound the two classes of cases is but to overlook the distinction which exists between the power of a court to deal with a subject over which it has Page 209 U. S. 196 jurisdiction and its want of authority to entertain a controversy as to which jurisdiction is not possessed." Counsel for the railway company placed some reliance on Pennoyer v. McConnaughy, 140 U. S. 1 , 140 U. S. 18 , in which the previous cases on the general subject of suits against the States were classified. That case was a suit in equity against certain parties "who, under the Constitution of Oregon, as Governor, Secretary of State, and Treasurer of State, comprised the Board of Land Commissioners of that State, to restrain and enjoin them from selling and conveying a large amount of land in that State to which the appellee asserted title." That suit, in view of the nature of the relief asked, and of the relations of the defendants to the matters involved, was held not to be one against the State within the meaning of the Eleventh Amendment. But after a review of the facts, the court, as explanatory of the conclusion reached by it, took especial care to observe: "In this connection, it must be borne in mind that this suit is not nominally against the Governor, Secretary of State, and Treasurer, as such officers, but against them collectively, as the Board of Land Commissioners." The present suit is, in terms, against Young "as Attorney General of Minnesota," and the decree was sought against him as such officer; not against him individually, or as a mere administrative officer charged with certain duties. One of the cases cited in support of the decision now rendered is Missouri, Kansas & Texas Railway Co. v. Missouri R.R. & Warehouse Commissioners, 183 U. S. 53 , 183 U. S. 58 , 183 U. S. 59 . But although that particular suit was held not to be one against the State, the case, in respect of the principles announced by the court, is in harmony with the views I have expressed. For the court there says: "Was the State the real party plaintiff? It was at an early day held by this court, construing the Eleventh Amendment, that, in all cases where jurisdiction depends on the party, it is the party named in the record. Osborn v. United States Bank , 9 Wheat. 738. But that technical construction has yielded to one more in consonance with the Page 209 U. S. 197 spirit of the Amendment, and in In re Ayers, supra, it was ruled upon full consideration that the Amendment covers not only suits against a State by name, but those also against its officers, agents, and representatives where the State, though not named as such, is nevertheless the only real party against which in fact the relief is asked, and against which the judgment or decree effectively operates. And that construction of the Amendment has since been followed." In the present case, the State, although not named on the record as a party, is the real party whose action it is sought to control. There are other cases in this court in which the scope and meaning of the Eleventh Amendment were under consideration, but they need not be cited, for they are well known. They are all cited in In re Ayers, 123 U. S. 443 , 123 U. S. 500 . "The vital principle in all such cases," this court said in the Ayers case, "is that the defendants, though professing to act as officers of the State, are threatening a violation of the personal or property rights of the complainant, for which they are personally and individually liable," or cases in which the officer sued refused to perform a purely ministerial duty, about which he had no discretion and in the performance of which the plaintiff had a direct interest. The case before us is altogether different. The statutes in question did not impose upon the Attorney General of Minnesota any special duty to see to their enforcement. In bringing the mandamus suit, he acted under the general authority inhering in him as the chief law officer of his State. He could not become personally liable to the railway company simply because of his bringing the mandamus suit. The Attorney General stated that all he did, or contemplated doing, was to bring the mandamus suit. The mere bringing of such a suit could not be alleged against him as an individual, in violation of any legal right of the railway company or its shareholders. In re Ayers, 123 U. S. 443 , 123 U. S. 496 . The plaintiffs recognized this fact, and hence did not proceed in their suit upon the ground that the defendant was individually liable. They sued him only as Attorney General, Page 209 U. S. 198 and sought a decree against him in his official capacity, not otherwise. Some reference has been made to Ex parte Royall, 117 U. S. 241 , and other cases, that affirm the authority of a Federal court, under existing statutes, to discharge upon habeas corpus, from the custody of a State officer, one who is held in violation of the Federal Constitution for an alleged crime against a State. Those cases are not at all in point in the present discussion. Such a habeas corpus proceeding is ex parte, having for its object only to inquire whether the applicant for the writ is illegally restrained of his liberty. If he is, then the state officer holding him in custody is a trespasser, and cannot defend the wrong or tort committed by him, by pleading his official character. The power in a Federal court to discharge a person from the custody of a trespasser may well exist, and yet the court have no power in a suit before it, by an order directed against the Attorney General of a State, as such, to prevent the State from being represented by that officer as a litigant in one of its own courts. The former cases, it may be argued, come within the decisions which hold that a suit which only seeks to prevent or restrain a trespass upon property or person by one who happens to be a state officer, but is proceeding in violation of the Constitution of the United States, is not a suit against a State within the meaning of the Eleventh Amendment, but a suit against the trespasser or wrongdoer. But the authority of the Federal court to protect one against a trespass committed or about to be committed by a state officer, in violation of the Constitution of the United States, is very different from the power now asserted, and recognized by this court as existing, to shut out a sovereign State from its own courts by the device of forbidding its Attorney General, under the penalty of fine and imprisonment from appearing in such courts in its behalf. The mere bringing of a suit on behalf of a State by its Attorney General cannot (this court has decided in the Ayers case) make that officer a trespasser and individually liable to the Page 209 U. S. 199 party sued. To enjoin him from representing the State in such suit is therefore, for every practical or legal purpose, to enjoin the State itself. This court, in In re Debs, 158 U. S. 564 , 158 U. S. 584 , said: "Every government, intrusted, by the very terms of its being, with powers and duties to be exercised and discharged for the general welfare, has a right to apply to its own courts for any proper assistance in the exercise of the one and the discharge of the other, and it is no sufficient answer to its appeal to one of those courts that it has no pecuniary interest in the matter. The obligations which it is under to promote the interest of all, and to prevent the wrongdoing of one resulting in injury to the general welfare, is often of itself sufficient to give it a standing in court. This proposition in some of its relations has heretofore received the sanction of this court." If there be one power that a State possesses which ought to be deemed beyond the control, in any mode, of the national government or of any of its courts, it is the power, by judicial proceedings, to appear in its own courts, by its law officer or by attorneys, and seek the guidance of those courts in respect of matters of a justiciable nature. If the state court, by its judgment, in such a suit, should disregard the injunctions of the Federal Constitution, that judgment would be subject to review by this court upon writ of error or appeal. It will be well now to look at the course of decisions in other Federal courts. Attention is first directed to Arbuckle v. Blackburn, 113 Fed.Rep. 616, 622, which was a suit in equity, one of the principal objects of which was to restrain the enforcement of an act of the Ohio legislature relating to food products, particularly of a named coffee in which the plaintiffs were interested. The Circuit Court of appeals held that the bill was properly dismissed, saying, among other things: "What, then, is the object of the injunction sought in this case? It is no more or less than to restrain the officer of the State from bringing prosecutions for violations of an act which such officer Page 209 U. S. 200 is expressly charged to enforce in the only way he is authorized to proceed -- by bringing criminal prosecutions in the name of the State. This is virtually to enjoin the State from proceeding through its duly qualified and acting officers. If the food commissioner may be enjoined from instituting such prosecutions, why may not the prosecuting attorney, or any officer of the State, charged with the execution of the criminal laws of the State? While the State may not be sued, if the bill can be sustained against its officers, it is as effectually prevented from proceeding to enforce its laws as it would be by an action directly against the State. This view of the case, in our judgment, is amply sustained by the cases above cited, and by the later case of Fitts v. McGhee, 172 U. S. 516 . . . . Insofar as this action seeks an injunction against the respondent from proceeding to enforce by prosecution the provisions of the statutes of Ohio above cited, the courts of the United States are deprived of jurisdiction by the Eleventh Amendment to the Constitution." In Union Trust Co. v. Stearns, 119 Fed.Rep. 790, 791, 792, 795, the Circuit Court of the United States for the district of Rhode Island had occasion to consider the scope of the Eleventh Amendment. The case related to a statute regulating the hours of labor of certain employees of street railways, and imposing a fine for a violation of its provisions. The court, upon an elaborate review of all the cases in this court, dismissed the action. The defendants Stearns and Greenough were, respectively, the Attorney General and assistant Attorney General of the State. They were not named in the act, nor charged with any special duty in connection therewith. The court said: "The purpose of the present bill, in substance and effect, is to enjoin the State of Rhode Island from the enforcement of a penal statute. Indictments under the act are brought in the name and on behalf of the State, for the protection of the State. These defendants, the Attorney General and his assistant, merely represent the State in such proceedings. They are simply the officers and agents of the State. It is not as Page 209 U. S. 201 individuals, but solely by virtue of their holding such offices, that they prefer and prosecute indictments in the name of the State. A State can only act or be proceeded against through its officers. If a decree could be entered against the State of Rhode Island, enjoining prosecutions under this act, it could only operate against the State through enjoining these defendants. An order restraining the Attorney General and his assistant from the enforcement of this statute is an order restraining the State itself. The present suit, therefore, is as much against the State of Rhode Island as if the State itself were named a party defendant." After referring to In re Ayers and Fitts v. McGhee, and upon a review of the cases, the court proceeded: "The defendants Stearns and Greenough hold no special relation to the act of June 1, 1902. They are not specially charged with its execution. They are not thereby constituted a board or commission with administrative powers, nor are they, as individuals, and apart from the official authority under which they act, threatening to seize the property of the complainant, or to commit any wrong or trespass against its personal or property rights. They have no other connection with this statute than the institution of formal judicial proceedings for its enforcement in the courts of the State, in the name and behalf of the State. Upon reason and authority, the present bill is a suit against the State of Rhode Island within the meaning of the Eleventh Amendment to the Constitution of the United States." In Morenci Copper Co. v. Freer, 127 Fed.Rep. 199, 205, which was an action in equity to restrain and inhibit the defendant, in his official capacity as Attorney General of West Virginia, from proceeding to institute an action in the state court for forfeiture of the charter of the plaintiff corporation for a failure to pay a license tax imposed by a state statute, and which statute was alleged to be in violation of the Federal Constitution, the Circuit Court reviewed the decision of this court upon the question as to what were and what were not suits against the State. The Circuit Court held that it had no jurisdiction Page 209 U. S. 202 of the case, saying: "But it may be said, if the court holds that no remedy of this sort will lie in the Circuit Court of the United States to prevent this breach of a contract by the State of West Virginia by means of the machinery of a law violative of the Constitution of the United States, how are the rights of corporations to be preserved? The answer is that such alleged unconstitutionality is matter of defense to any suit brought for the forfeiture of complainant's charter, and could be set up as an answer and defense to any bill brought for that purpose; and, if the highest court of the State ruled adversely to that contention, appeal would lie to the Supreme Court of the United States. Or the case can be removed to the Circuit Court of the United States if it presents a case arising under the Constitution or laws of the United States." A well considered case is that of Western Union Tel. Co. v. Andrews, 154 Fed.Rep. 95, 107. In that case, the telegraph company sought by bill to enjoin the prosecuting attorneys of the various judicial circuits of Arkansas from instituting any proceeding for penalties for its failure or refusal to comply with the provisions of an act of the legislature of Arkansas relating to foreign corporations doing business in that State and fixing fees, etc. The bill charged that the various prosecuting attorneys would, unless restrained, institute numerous actions for the recovery of the penalties prescribed by the act, which was no less than $1,000 for each alleged violation. The defense was, among other things, that the action was one against the State, and, therefore, prohibited by the Constitution. After a careful review of the adjudged cases in this court and in the subordinate Federal courts, the Circuit Court held the action to be one against the State, forbidden by the Eleventh Amendment, saying, among other things: "The allegations in the bill show that this is an attempt to prevent the State of Arkansas, through its officers, who, by its laws, are merely its attorneys, to represent it in all legal actions in its favor or in which it is interested, from instituting and prosecuting suits for the recovery of penalties incurred for alleged Page 209 U. S. 203 violation of its laws -- actions which can only be instituted in the name of the State and for its use and benefit." Upon the fullest consideration and after a careful examination of the authorities, my mind has been brought to the conclusion that no case heretofore determined by this court requires us to hold that the Federal Circuit Court had authority to forbid the Attorney General of Minnesota from representing the State in the mandamus suit in the state court, or to adjudge that he was in contempt and liable to be fined and imprisoned simply because of his having, as Attorney General, brought that suit for the State in one of its courts. On the contrary, my conviction is very strong that, if regard be had to former utterances of this court, the suit of Perkins and Shepard in the Federal court, in respect of the relief sought therein against Young, in his official capacity, as Attorney General of Minnesota, is to be deemed -- under the Ayers and Fitts cases particularly -- a suit against the State, of which the Circuit Court of the United States could not take cognizance without violating the Eleventh Amendment of the Constitution. Even if it were held that suits to restrain the instituting of actions directly to recover the prescribed penalties would not be suits against the State, it would not follow that we should go further and hold that a proceeding under which the State was, in effect, denied access, by its Attorney General, to its own courts would be consistent with the Eleventh Amendment. A different view means, as I think, that although the judicial power of the United States does not extend to any suit expressly brought against a State by a citizen of another State without its consent, or to any suit the legal effect of which is to tie the hands of the State, although not formally named as a party, yet a Circuit Court of the United States, in a suit brought against the Attorney General of a State, may, by orders directed specifically against that officer, control, entirely control, by indirection, the action of the State itself in judicial proceedings in its own courts involving the constitutional validity of its statutes. This court has heretofore held that Page 209 U. S. 204 that could not be done, and that such a result would, for most purposes, practically obliterate the Eleventh Amendment, and place the States, in vital particulars, as absolutely under the control of the subordinate Federal courts as if they were capable of being directly sued. I put the matter in this way because to forbid the Attorney General of a State (under the penalty of being punished as for contempt) from representing his State in suits of a particular kind in its own courts is to forbid the State itself from appearing and being heard in such suits. Neither the words nor the policy of the Eleventh Amendment will, under our former decisions, justify any order of a Federal court the necessary effect of which will be to exclude a State from its own courts. Such an order, attended by such results, cannot, I submit, be sustained consistently with the powers which the States, according to the uniform declarations of this court, possess under the Constitution. I am justified, by what this court has heretofore declared, in now saying that the men who framed the Constitution, and who caused the adoption of the Eleventh Amendment, would have been amazed by the suggestion that a State of the Union can be prevented, by an order of a subordinate Federal court, from being represented by its Attorney General in a suit brought by it in one of its own courts; and that such an order would be inconsistent with the dignity of the States as involved in their constitutional immunity from the judicial process of the Federal courts (except in the limited cases in which they may constitutionally be made parties in this court), and would be attended by most pernicious results. I dissent from the opinion and judgment. Dissent.

In Ex Parte Young, the Supreme Court held that a federal court can issue an injunction to stop a state official from enforcing a state law that allegedly violates the Constitution, even if the state is immune from being sued directly. The case established the doctrine of "sovereign immunity," which prevents states from being sued without their consent but allows for federal judicial review of state laws that allegedly violate constitutional rights. The Court also affirmed that determining whether a state-prescribed railway rate is confiscatory raises a federal question and that state statutes that impose excessive penalties may deny equal protection and due process.

Role of Courts

Reid v. Covert

https://supreme.justia.com/cases/federal/us/354/1/

U.S. Supreme Court Reid v. Covert, 354 U.S. 1 (1957) Reid v. Covert No. 701, October Term, 1955 Argued May 3, 1956 Decided June 11, 1956 Rehearing granted November 5, 1956 Reargued February 27, 1957 Decided June 10, 1957 354 U.S. 1 ON REHEARING * Syllabus Article 2(11) of the Uniform Code of Military Justice, providing for the trial by court-martial of "all persons . . . accompanying the armed forces" of the United States in foreign countries, cannot constitutionally be applied, in capital cases, to the trial of civilian dependents accompanying members of the armed forces overseas in time of peace. Kinsella v. Krueger, 351 U. S. 470 , and Reid v. Covert, 351 U. S. 487 , withdrawn. Pp. 354 U. S. 3 -78. Judgment below in No. 701, October Term, 1955, affirmed. 137 F. Supp. 806 , reversed and remanded. MR. JUSTICE BLACK, in an opinion joined by THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN, concluded that: 1. When the United States acts against its citizens abroad, it can do so only in accordance with all the limitations imposed by the Constitution, including Art. III, § 2, and the Fifth and Sixth Amendments. Pp. 354 U. S. 5 -14. Page 354 U. S. 2 2. Insofar as Art. 2(11) of the Uniform Code of Military Justice provides for the military trial of civilian dependents accompanying the armed forces in foreign countries, it cannot be sustained as legislation which is "necessary and proper" to carry out obligations of the United States under international agreements made with those countries, since no agreement with a foreign nation can confer on Congress or any other branch of the Government power which is free from the restraints of the Constitution. Pp. 354 U. S. 15 -19. 3. The power of Congress under Art. I, § 8, cl. 14, of the Constitution, "To make Rules for the Government and Regulation of the land and naval Forces," taken in conjunction with the Necessary and Proper Clause, does not extend to civilians -- even though they may be dependents living with servicemen on a military base. Pp. 354 U. S. 19 -40. 4. Under our Constitution, courts of law alone are given power to try civilians for their offenses against the United States. Pp. 354 U. S. 40 -41. MR. JUSTICE FRANKFURTER, concurring in the result, concluded that, in capital cases, the exercise of court-martial jurisdiction over civilian dependents in time of peace cannot be justified by the power of Congress under Article I to regulate the "land and naval Forces," when considered in connection with the specific protections afforded civilians by Article III and the Fifth and Sixth Amendments. Pp. 354 U. S. 41 -64. MR. JUSTICE HARLAN, concurring in the result, concluded that, where the offense is capital, Art. 2(11) of the Uniform Code of Military Justice cannot constitutionally be applied to the trial of civilian dependents of members of the armed forces overseas in times of peace. Pp. 354 U. S. 65 -78. Page 354 U. S. 3 MR. JUSTICE BLACK announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS, and MR. JUSTICE BRENNAN join. These cases raise basic constitutional issues of the utmost concern. They call into question the role of the military under our system of government. They involve the power of Congress to expose civilians to trial by military tribunals, under military regulations and procedures, for offenses against the United States, thereby depriving them of trial in civilian courts, under civilian laws and procedures and with all the safeguards of the Bill of Rights. These cases are particularly significant because, for the first time since the adoption of the Constitution, wives of soldiers have been denied trial by jury in a court of law and forced to trial before courts-martial. In No. 701, Mrs. Clarice Covert killed her husband, a sergeant in the United States Air Force, at an airbase in England. Mrs. Covert, who was not a member of the armed services, was residing on the base with her husband at the time. She was tried by a court-martial for murder under Article 118 of the Uniform Code of Military Justice (UCMJ). [ Footnote 1 ] The trial was on charges preferred by Air Force personnel, and the court-martial was composed of Air Force officers. The court-martial asserted jurisdiction over Mrs. Covert under Article 2(11) of the UCMJ, [ Footnote 2 ] which provides: "The following persons are subject to this code: " " * * * *" "(11) Subject to the provisions of any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, Page 354 U. S. 4 all persons serving with, employed by, or accompanying the armed forces without the continental limits of the United States. . . ." Counsel for Mrs. Covert contended that she was insane at the time she killed her husband, but the military tribunal found her guilty of murder and sentenced her to life imprisonment. The judgment was affirmed by the Air Force Board of Review, 16 CMR 465, but was reversed by the Court of Military Appeals, 6 U.S.C.M.A 48, because of prejudicial errors concerning the defense of insanity. While Mrs. Covert was being held in this country pending a proposed retrial by court-martial in the District of Columbia, her counsel petitioned the District Court for a writ of habeas corpus to set her free on the ground that the Constitution forbade her trial by military authorities. Construing this Court's decision in United States ex rel. Toth v. Quarles, 350 U. S. 11 , as holding that "a civilian is entitled to a civilian trial," the District Court held that Mrs. Covert could not be tried by court-martial, and ordered her released from custody. The Government appealed directly to this Court under 28 U.S.C. § 1252. See 350 U.S. 985. In No. 713, Mrs. Dorothy Smith killed her husband, an Army officer, at a post in Japan where she was living with him. She was tried for murder by a court-martial and, despite considerable evidence that she was insane, was found guilty and sentenced to life imprisonment. The judgment was approved by the Army Board of Review, 10 CMR 350, 13 CMR 307, and the Court of Military Appeals, 5 U.S.C.MA 314. Mrs. Smith was then confined in a federal penitentiary in West Virginia. Her father, respondent here, filed a petition for habeas corpus in a District Court for West Virginia. The petition charged that the court-martial was without jurisdiction because Article 2(11) of the UCMJ was unconstitutional insofar as it authorized the trial of civilian dependents accompanying Page 354 U. S. 5 servicemen overseas. The District Court refused to issue the writ, 137 F. Supp. 806 , and, while an appeal was pending in the Court of Appeals for the Fourth Circuit, we granted certiorari at the request of the Government, 350 U.S. 986. The two cases were consolidated and argued last Term, and a majority of the Court, with three Justices dissenting and one reserving opinion, held that military trial of Mrs. Smith and Mrs. Covert for their alleged offenses was constitutional. 351 U. S. 351 U.S. 470, 351 U. S. 487 . The majority held that the provisions of Article III and the Fifth and Sixth Amendments which require that crimes be tried by a jury after indictment by a grand jury did not protect an American citizen when he was tried by the American Government in foreign lands for offenses committed there, and that Congress could provide for the trial of such offenses in any manner it saw fit, so long as the procedures established were reasonable and consonant with due process. The opinion then went on to express the view that military trials, as now practiced, were not unreasonable or arbitrary when applied to dependents accompanying members of the armed forces overseas. In reaching their conclusion, the majority found it unnecessary to consider the power of Congress "To make Rules for the Government and Regulation of the land and naval Forces" under Article I of the Constitution. Subsequently, the Court granted a petition for rehearing, 352 U.S. 901. Now, after further argument and consideration, we conclude that the previous decisions cannot be permitted to stand. We hold that Mrs. Smith and Mrs. Covert could not constitutionally be tried by military authorities. I At the beginning, we reject the idea that, when the United States acts against citizens abroad, it can do so free of the Bill of Rights. The United States is entirely Page 354 U. S. 6 a creature of the Constitution. [ Footnote 3 ] Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. [ Footnote 4 ] When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land. This is not a novel concept. To the contrary, it is as old as government. It was recognized long before Paul successfully invoked his right as a Roman citizen to be tried in strict accordance with Roman law. And many centuries later, an English historian wrote: "In a Settled Colony, the inhabitants have all the rights of Englishmen. They take with them, in the first place, that which no Englishman can by expatriation put off, namely, allegiance to the Crown, the duty of obedience to the lawful commands of the Sovereign, and obedience to the Laws which Parliament may think proper to make with reference to such a Colony. But, on the other hand, they take with them all the rights and liberties of British Subjects; all the rights and liberties as against the Prerogative of the Crown, which they would enjoy in this country. [ Footnote 5 ]" The rights and liberties which citizens of our country enjoy are not protected by custom and tradition alone; they have been jealously preserved from the encroachments Page 354 U. S. 7 of Government by express provisions of our written Constitution. [ Footnote 6 ] Among those provisions, Art. III, § 2 and the Fifth and Sixth Amendments are directly relevant to these cases. Article III, § 2 lays down the rule that: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury, and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed." The Fifth Amendment declares: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; . . ." And the Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed. . . ." The language of Art. III, § 2 manifests that constitutional protections for the individual were designed to restrict the United States Government when it acts outside of this country, as well as here at home. After declaring that all criminal trials must be by jury, the section states that, when a crime is "not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed." If Page 354 U. S. 8 this language is permitted to have its obvious meaning, [ Footnote 7 ] § 2 is applicable to criminal trials outside of the States as a group without regard to where the offense is committed or the trial held. [ Footnote 8 ] From the very first Congress, federal statutes have implemented the provisions of § 2 by providing for trial of murder and other crimes committed outside the jurisdiction of any State "in the district where the offender is apprehended, or into which he may first be brought." [ Footnote 9 ] The Fifth and Sixth Amendments, like Art. III, § 2, are also all inclusive with their sweeping references to "no person" and to "all criminal prosecutions. " This Court and other federal courts have held or asserted that various constitutional limitations apply to the Government when it acts outside the continental United States. [ Footnote 10 ] While it has been suggested that only Page 354 U. S. 9 those constitutional rights which are "fundamental" protect Americans abroad, [ Footnote 11 ] we can find no warrant, in logic or otherwise, for picking and choosing among the remarkable collection of "Thou shalt nots" which were explicitly fastened on all departments and agencies of the Federal Government by the Constitution and its Amendments. Moreover, in view of our heritage and the history of the adoption of the Constitution and the Bill of Rights, it seems peculiarly anomalous to say that trial before a civilian judge and by an independent jury picked from the common citizenry is not a fundamental right. [ Footnote 12 ] As Blackstone wrote in his Commentaries: ". . . the trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law. And if it has so great an advantage over others in regulating civil property, how much must that advantage be heightened when it is applied to criminal cases! . . . [I]t is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his Page 354 U. S. 10 liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals. [ Footnote 13 ]" Trial by jury in a court of law and in accordance with traditional modes of procedure after an indictment by grand jury has served and remains one of our most vital barriers to governmental arbitrariness. These elemental procedural safeguards were embedded in our Constitution to secure their inviolateness and sanctity against the passing demands of expediency or convenience. The keystone of supporting authorities mustered by the Court's opinion last June to justify its holding that Art. III, § 2, and the Fifth and Sixth Amendments did not apply abroad was In re Ross, 140 U. S. 453 . The Ross case is one of those cases that cannot be understood except in its peculiar setting; even then, it seems highly unlikely that a similar result would be reached today. Ross was serving as a seaman on an American ship in Japanese waters. He killed a ship's officer, was seized and tried before a consular "court" in Japan. At that time, statutes authorized American consuls to try American citizens charged with committing crimes in Japan and certain other "non-Christian" countries. [ Footnote 14 ] These Page 354 U. S. 11 statutes provided that the laws of the United States were to govern the trial except: ". . . where such laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies, the common law and the law of equity and admiralty shall be extended in like manner over such citizens and others in those countries, and if neither the common law, nor the law of equity or admiralty, nor the statutes of the United States, furnish appropriate and sufficient remedies, the ministers in those countries, respectively, shall, by decrees and regulations which shall have the force of law, supply such defects and deficiencies. [ Footnote 15 ]" The consular power approved in the Ross case was about as extreme and absolute as that of the potentates of the "non-Christian" countries to which the statutes applied. Under these statutes, consuls could and did make the criminal laws, initiate charges, arrest alleged offenders, try them, and, after conviction, take away their liberty or their life -- sometimes at the American consulate. Such a blending of executive, legislative, and judicial powers in one person, or even in one branch of the Government, is ordinarily regarded as the very acme of absolutism. [ Footnote 16 ] Nevertheless, the Court sustained Ross' conviction by the consul. It stated that constitutional Page 354 U. S. 12 protections applied "only to citizens and others within the United States, or who are brought there for trial for alleged offences committed elsewhere, and not to residents or temporary sojourners abroad." [ Footnote 17 ] Despite the fact that it upheld Ross' conviction under United States laws passed pursuant to asserted constitutional authority, the Court went on to make a sweeping declaration that "[t]he Constitution can have no operation in another country." [ Footnote 18 ] The Ross approach that the Constitution has no applicability abroad has long since been directly repudiated by numerous cases. [ Footnote 19 ] That approach is obviously erroneous if the United States Government, which has no power except that granted by the Constitution, can and does try citizens for crimes committed abroad. [ Footnote 20 ] Thus, the Ross case rested, at least in substantial part, on a fundamental misconception, and the most that can be said in support of the result reached there is that the consular court jurisdiction had a long history antedating the adoption of the Constitution. The Congress has recently buried the consular system of trying Americans. [ Footnote 21 ] We are not willing to jeopardize the lives and liberties of Americans by disinterring it. At best, the Ross case should be left as a relic from a different era. The Court's opinion last Term also relied on the "Insular Cases" to support its conclusion that Article III and the Fifth and Sixth Amendments were not applicable Page 354 U. S. 13 to the trial of Mrs. Smith and Mrs. Covert. [ Footnote 22 ] We believe that reliance was misplaced. The "Insular Cases," which arose at the turn of the century, involved territories which had only recently been conquered or acquired by the United States. These territories, governed and regulated by Congress under Art. IV, § 3, [ Footnote 23 ] had entirely different cultures and customs from those of this country. This Court, although closely divided, [ Footnote 24 ] ruled that certain constitutional safeguards were not applicable to these territories since they had not been "expressly or impliedly incorporated" into the Union by Congress. While conceding that "fundamental" constitutional rights applied everywhere, [ Footnote 25 ] the majority found that it would disrupt long-established practices and would be inexpedient to require a jury trial after an indictment by a grand jury in the insular possessions. [ Footnote 26 ] Page 354 U. S. 14 The "Insular Cases" can be distinguished from the present cases in that they involved the power of Congress to provide rules and regulations to govern temporarily territories with wholly dissimilar traditions and institutions whereas here the basis for governmental power is American citizenship. None of these cases had anything to do with military trials and they cannot properly be used as vehicles to support an extension of military jurisdiction to civilians. Moreover, it is our judgment that neither the cases nor their reasoning should be given any further expansion. The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and, if allowed to flourish, would destroy the benefit of a written Constitution and undermine the basis of our Government. If our foreign commitments become of such nature that the Government can no longer satisfactorily operate within the bounds laid down by the Constitution, that instrument can be amended by the method which it prescribes. [ Footnote 27 ] But we have no authority, or inclination, to read exceptions into it which are not there. [ Footnote 28 ] Page 354 U. S. 15 II At the time of Mrs. Covert's alleged offense, an executive agreement was in effect between the United States and Great Britain which permitted United States' military courts to exercise exclusive jurisdiction over offenses committed in Great Britain by American servicemen or their dependents. [ Footnote 29 ] For its part, the United States agreed that these military courts would be willing and able to try and to punish all offenses against the laws of Great Britain by such persons. In all material respects, the same situation existed in Japan when Mrs. Smith Page 354 U. S. 16 killed her husband. [ Footnote 30 ] Even though a court-martial does not give an accused trial by jury and other Bill of Rights protections, the Government contends that Art. 2 (11) of the UCMJ, insofar as it provides for the military trial of dependents accompanying the armed forces in Great Britain and Japan, can be sustained as legislation which is necessary and proper to carry out the United States' obligations under the international agreements made with those countries. The obvious and decisive answer to this, of course, is that no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution. Article VI, the Supremacy Clause of the Constitution, declares: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; . . ." There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates, as well as the history that surrounds the adoption of the treaty provision in Article VI, make it clear that the reason treaties were not limited to those made in "pursuance" of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary Page 354 U. S. 17 War, would remain in effect. [ Footnote 31 ] It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights -- let alone alien to our entire constitutional history and tradition -- to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. [ Footnote 32 ] In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government, and they cannot be nullified by the Executive or by the Executive and the Senate combined. There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty. [ Footnote 33 ] For example, in Geofroy v. Riggs, 133 U. S. 258 , 133 U. S. 267 , it declared: "The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the Page 354 U. S. 18 government, or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent." This Court has also repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that, when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null. [ Footnote 34 ] It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be overridden by a statute that must conform to that instrument. There is nothing in Missouri v. Holland, 252 U. S. 416 , which is contrary to the position taken here. There, the Court carefully noted that the treaty involved was not inconsistent with any specific provision of the Constitution. The Court was concerned with the Tenth Amendment, which reserves to the States or the people all power not delegated to the National Government. To the extent that the United States can validly make treaties, the people and the States have delegated their power to the National Government, and the Tenth Amendment is no barrier. [ Footnote 35 ] In summary, we conclude that the Constitution in its entirety applied to the trials of Mrs. Smith and Mrs. Page 354 U. S. 19 Covert. Since their court-martial did not meet the requirements of Art. III, § 2 or the Fifth and Sixth Amendments, we are compelled to determine if there is anything within the Constitution which authorizes the military trial of dependents accompanying the armed forces overseas. III Article I, § 8, cl. 14 empowers Congress "To make Rules for the Government and Regulation of the land and naval Forces." It has been held that this creates an exception to the normal method of trial in civilian courts as provided by the Constitution, and permits Congress to authorize military trial of members of the armed services without all the safeguards given an accused by Article III and the Bill of Rights. [ Footnote 36 ] But if the language of Clause 14 is given its natural meaning, [ Footnote 37 ] the power granted does not extend to civilians -- even though they may be dependents living with servicemen on a military base. [ Footnote 38 ] The term "land and naval Forces" refers to persons Page 354 U. S. 20 who are members of the armed services and not to their civilian wives, children and other dependents. It seems inconceivable that Mrs. Covert or Mrs. Smith could have been tried by military authorities as members of the "land and naval Forces" had they been living on a military post in this country. Yet this constitutional term surely has the same meaning everywhere. The wives of servicemen are no more members of the "land and naval Forces" when living at a military post in England or Japan than when living at a base in this country or in Hawaii or Alaska. The Government argues that the Necessary and Proper Clause, when taken in conjunction with Clause 14, allows Congress to authorize the trial of Mrs. Smith and Mrs. Covert by military tribunals and under military law. The Government claims that the two clauses together constitute a broad grant of power "without limitation" authorizing Congress to subject all persons, civilians and soldiers alike, to military trial if "necessary and proper" to govern and regulate the land and naval forces. It was on a similar theory that Congress once went to the extreme of subjecting persons who made contracts with the military to court-martial jurisdiction with respect to frauds related to such contracts. [ Footnote 39 ] In the only judicial test, a Circuit Court held that the legislation was patently unconstitutional. Ex parte Henderson, 11 Fed.Cas. 1067, No. 6,349. It is true that the Constitution expressly grants Congress power to make all rules necessary and proper to govern and regulate those persons who are serving in the "land and naval Forces." But the Necessary and Proper Page 354 U. S. 21 Clause cannot operate to extend military jurisdiction to any group of persons beyond that class described in Clause 14 -- "the land and naval Forces." Under the grand design of the Constitution, civilian courts are the normal repositories of power to try persons charged with crimes against the United States. And to protect persons brought before these courts, Article III and the Fifth, Sixth, and Eighth Amendments establish the right to trial by jury, to indictment by a grand jury, and a number of other specific safeguards. By way of contrast, the jurisdiction of military tribunals is a very limited and extraordinary jurisdiction derived from the cryptic language in Art. I, § 8, and, at most, was intended to be only a narrow exception to the normal and preferred method of trial in courts of law. [ Footnote 40 ] Every extension of military jurisdiction is an encroachment on the jurisdiction of the civil courts, and, more important, acts as a deprivation of the right to jury trial and of other treasured constitutional protections. Having run up against the steadfast bulwark of the Bill of Rights, the Necessary and Proper Clause cannot extend the scope of Clause 14. Nothing said here contravenes the rule laid down in McCulloch v. Maryland , 4 Wheat. 316, at 17 U. S. 421 , that: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. " Page 354 U. S. 22 In McCulloch, this Court was confronted with the problem of determining the scope of the Necessary and Proper Clause in a situation where no specific restraints on governmental power stood in the way. Here, the problem is different. Not only does Clause 14, by its terms, limit military jurisdiction to members of the "land and naval Forces," but Art. III, § 2 and the Fifth and Sixth Amendments require that certain express safeguards, which were designed to protect persons from oppressive governmental practices, shall be given in criminal prosecutions -- safeguards which cannot be given in a military trial. In the light of these as well as other constitutional provisions, and the historical background in which they were formed, military trial of civilians is inconsistent with both the "letter and spirit of the constitution." Further light is reflected on the scope of Clause 14 by the Fifth Amendment. That Amendment, which was adopted shortly after the Constitution, reads: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; . . ." (Emphasis added.) Since the exception in this Amendment for "cases arising in the land or naval forces" was undoubtedly designed to correlate with the power granted Congress to provide for the "Government and Regulation" of the armed services, it is a persuasive and reliable indication that the authority conferred by Clause 14 does not encompass persons who cannot fairly be said to be "in" the military service. Even if it were possible, we need not attempt here to precisely define the boundary between "civilians" and members of the "land and naval Forces." We recognize Page 354 U. S. 23 that there might be circumstances where a person could be "in" the armed services for purposes of Clause 14 even though he had not formally been inducted into the military or did not wear a uniform. But the wives, children and other dependents of servicemen cannot be placed in that category, even though they may be accompanying a serviceman abroad at Government expense and receiving other benefits from the Government. [ Footnote 41 ] We have no difficulty in saying that such persons do not lose their civilian status and their right to a civilian trial because the Government helps them live as members of a soldier's family. The tradition of keeping the military subordinate to civilian authority may not be so strong in the minds of this generation as it was in the minds of those who wrote the Constitution. The idea that the relatives of soldiers could be denied a jury trial in a court of law, and instead be tried by court-martial under the guise of regulating the armed forces, would have seemed incredible to those men, in whose lifetime the right of the military to try soldiers for any offenses in time of peace had only been grudgingly conceded. [ Footnote 42 ] The Founders envisioned the Page 354 U. S. 24 army as a necessary institution, but one dangerous to liberty if not confined within its essential bounds. Their fears were rooted in history. They knew that ancient republics had been overthrown by their military leaders. [ Footnote 43 ] They were familiar with the history of Seventeenth Century England, where Charles I tried to govern through the army and without Parliament. During this attempt, contrary to the Common Law, he used courts-martial to try soldiers for certain non-military offenses. [ Footnote 44 ] Page 354 U. S. 25 This court-martialing of soldiers in peacetime evoked strong protests from Parliament. [ Footnote 45 ] The reign of Charles I was followed by the rigorous military rule of Oliver Cromwell. Later, James II used the Army in his fight Page 354 U. S. 26 against Parliament and the people. He promulgated Articles of War (strangely enough relied on in the Government's brief) authorizing the trial of soldiers for non-military crimes by courts-martial. [ Footnote 46 ] This action hastened the revolution that brought William and Mary to the throne upon their agreement to abide by a Bill of Rights which, among other things, protected the right of trial by jury. [ Footnote 47 ] It was against this general background that two of the greatest English jurists, Lord Chief Justice Hale and Sir William Blackstone -- men who exerted considerable influence on the Founders -- expressed sharp hostility to any expansion of the jurisdiction of military courts. For instance, Blackstone went so far as to assert: "For martial law, which is built upon no settled principles, but is entirely arbitrary in its decisions, is, as Sir Matthew Hale observes, in truth and reality no law, but something indulged, rather than allowed as a law. The necessity of order and discipline in an army is the only thing which can give it countenance; Page 354 U. S. 27 and therefore it ought not to be permitted in time of peace, when the king's courts are open for all persons to receive justice according to the laws of the land. [ Footnote 48 ]" The generation that adopted the Constitution did not distrust the military because of past history alone. Within their own lives, they had seen royal governors sometimes resort to military rule. British troops were quartered in Boston at various times from 1768 until the outbreak of the Revolutionary War to support unpopular royal governors and to intimidate the local populace. The trial of soldiers by courts-martial and the interference of the military with the civil courts aroused great anxiety and antagonism not only in Massachusetts, but throughout the colonies. For example, Samuel Adams in 1768 wrote: ". . . [I]s it not enough for us to have seen soldiers and mariners forejudged of life, and executed within the body of the county by martial law? Are citizens Page 354 U. S. 28 to be called upon, threatened, ill-used at the will of the soldiery, and put under arrest, by pretext of the law military, in breach of the fundamental rights of subjects, and contrary to the law and franchise of the land? . . . Will the spirits of people as yet unsubdued by tyranny, unawed by the menaces of arbitrary power, submit to be governed by military force? No, Let us rouse our attention to the common law -- which is our birthright, our great security against all kinds of insult and oppression. . . . [ Footnote 49 ]" Colonials had also seen the right to trial by jury subverted by acts of Parliament which authorized courts of admiralty to try alleged violations of the unpopular Page 354 U. S. 29 "Molasses" and "Navigation" Acts. [ Footnote 50 ] This gave the admiralty courts jurisdiction over offenses historically triable only by a jury in a court of law, and aroused great resentment throughout the colonies. [ Footnote 51 ] As early as 1765, delegates from nine colonies meeting in New York asserted in a "Declaration of Rights" that trial by jury was the "inherent and invaluable" right of every citizen in the colonies. [ Footnote 52 ] With this background, it is not surprising that the Declaration of Independence protested that George III had "affected to render the Military independent of and superior to the Civil Power," and that Americans had been deprived in many cases of "the benefits of Trial by Jury." [ Footnote 53 ] And those who adopted the Constitution embodied their profound fear and distrust of military power, as well as their determination to protect trial by jury, in the Constitution and its Amendments. [ Footnote 54 ] Perhaps they Page 354 U. S. 30 were aware that memories fade, and hoped that, in this way, they could keep the people of this Nation from having to fight again and again the same old battles for individual freedom. In light of this history, it seems clear that the Founders had no intention to permit the trial of civilians in military courts, where they would be denied jury trials and other constitutional protections, merely by giving Congress the power to make rules which were "necessary and proper" for the regulation of the "land and naval Forces." Such a latitudinarian interpretation of these clauses would be at war with the well established purpose of the Founders to keep the military strictly within its proper sphere, subordinate to civil authority. The Constitution does not say that Congress can regulate "the land and naval Forces and all other persons whose regulation might have some relationship to maintenance of the land and naval Forces." There is no indication that the Founders contemplated setting up a rival system of military courts to compete with civilian courts for jurisdiction over civilians who might have some contact or relationship with the armed forces. Courts-martial were not to have concurrent jurisdiction with courts of law over nonmilitary America. On several occasions, this Court has been faced with an attempted expansion of the jurisdiction of military courts. Ex parte Milligan , 4 Wall. 2, one of the great landmarks in this Court's history, held that military authorities were without power to try civilians not in the military or naval service by declaring martial law in an area where the civil Page 354 U. S. 31 administration was not deposed and the courts were not closed. [ Footnote 55 ] In a stirring passage, the Court proclaimed: "Another guarantee of freedom was broken when Milligan was denied a trial by jury. The great minds of the country have differed on the correct interpretation to be given to various provisions of the Federal Constitution, and judicial decision has been often invoked to settle their true meaning; but, until recently, no one ever doubted that the right of trial by jury was fortified in the organic law against the power of attack. It is now assailed; but if ideas can be expressed in words, and language has any meaning, this right -- one of the most valuable in a free country -- is preserved to everyone accused of crime who is not attached to the army, or navy, or militia in actual service. [ Footnote 56 ]" In Duncan v. Kahanamoku, 327 U. S. 304 , the Court reasserted the principles enunciated in Ex parte Milligan and reaffirmed the tradition of military subordination to civil authorities and institutions. It refused to sanction the military trial of civilians in Hawaii during wartime despite government claims that the needs of defense made martial law imperative. Just last Term, this Court held in United States ex rel. Toth v. Quarles, 350 U. S. 11 , that military courts could not constitutionally try a discharged serviceman for an offense which he had allegedly committed while in the armed forces. It was decided (1) that, since Toth was a civilian, he could not be tried by military court-martial, [ Footnote 57 ] Page 354 U. S. 32 and (2) that, since he was charged with murder, a "crime" in the constitutional sense, he was entitled to indictment by a grand jury, jury trial, and the other protections contained in Art. III, § 2 and the Fifth, Sixth, and Eighth Amendments. The Court pointed out that trial by civilian courts was the rule for persons who were not members of the armed forces. There are no supportable grounds upon which to distinguish the Toth case from the present cases. Toth, Mrs. Covert, and Mrs. Smith were all civilians. All three were American citizens. All three were tried for murder. All three alleged crimes were committed in a foreign country. The only differences were: (1) Toth was an ex-serviceman while they were wives of soldiers; (2) Toth was arrested in the United States, while they were seized in foreign countries. If anything, Toth had closer connection with the military than the two women, for his crime was committed while he was actually serving in the Air Force. Mrs. Covert and Mrs. Smith had never been members of the army, had never been employed by the army, had never served in the army in any capacity. The Government appropriately argued in Toth that the constitutional basis for court-martialing him was clearer than for court-martialing wives who are accompanying their husbands abroad. [ Footnote 58 ] Certainly Toth's conduct as a soldier bears a closer relation to the maintenance of order and discipline in the armed forces than the conduct of these wives. The fact that Toth was arrested here, while the Page 354 U. S. 33 wives were arrested in foreign countries is material only if constitutional safeguards do not shield a citizen abroad when the Government exercises its power over him. As we have said before, such a view of the Constitution is erroneous. The mere fact that these women had gone overseas with their husbands should not reduce the protection the Constitution gives them. The Milligan, Duncan, and Toth cases recognized and manifested the deeply rooted and ancient opposition in this country to the extension of military control over civilians. In each instance an effort to expand the jurisdiction of military courts to civilians was repulsed. There have been a number of decisions in the lower federal courts which have upheld military trial of civilians performing services for the armed forces "in the field" during time of war. [ Footnote 59 ] To the extent that these cases can be justified, insofar as they involved trial of persons who were not "members" of the armed forces, they must rest on the Government's "war powers." In the face of an actively hostile enemy, military commanders necessarily have broad power over persons on the battlefront. From a time prior to the adoption of the Constitution, the extraordinary circumstances present in an area of actual fighting have been considered sufficient to permit punishment of some civilians in that area by military courts under military rules. [ Footnote 60 ] But neither Japan Page 354 U. S. 34 nor Great Britain could properly be said to be an area where active hostilities were under way at the time Mrs. Smith and Mrs. Covert committed their offenses or at the time they were tried. [ Footnote 61 ] The Government urges that the concept "in the field" should be broadened to reach dependents accompanying the military forces overseas under the conditions of world tension which exist at the present time. It points out how the "war powers" include authority to prepare defenses and to establish our military forces in defensive posture about the world. While we recognize that the "war powers" of the Congress and the Executive are Page 354 U. S. 35 broad, [ Footnote 62 ] we reject the Government's argument that present threats to peace permit military trial of civilians accompanying the armed forces overseas in an area where no actual hostilities are under way. [ Footnote 63 ] The exigencies which have required military rule on the battlefront are not present in areas where no conflict exists. Military trial of civilians "in the field" is an extraordinary jurisdiction, and it should not be expanded at the expense of the Bill of Rights. We agree with Colonel Winthrop, an expert on military jurisdiction, who declared: " a statute cannot be framed by which a civilian can lawfully be made amenable to the military jurisdiction in time of peace. " [ Footnote 64 ] (Emphasis not supplied.) As this Court stated in United States ex rel. Toth v. Quarles, 350 U. S. 11 , the business of soldiers is to fight and prepare to fight wars, not to try civilians for their alleged crimes. Traditionally, military justice has been a rough form of justice emphasizing summary procedures, Page 354 U. S. 36 speedy convictions and stern penalties with a view to maintaining obedience and fighting fitness in the ranks. Because of its very nature and purpose, the military must place great emphasis on discipline and efficiency. Correspondingly, there has always been less emphasis in the military on protecting the rights of the individual than in civilian society and in civilian courts. Courts-martial are typically ad hoc bodies appointed by a military officer from among his subordinates. They have always been subject to varying degrees of "command influence." [ Footnote 65 ] In essence, these tribunals are simply executive tribunals whose personnel are in the executive chain of command. Frequently, the members of the court-martial must look to the appointing officer for promotions, advantageous assignments and efficiency ratings -- in short, for their future progress in the service. Conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, the members of a court-martial, in the nature of things, do not and cannot have the independence of jurors drawn from the general public or of civilian judges. [ Footnote 66 ] Page 354 U. S. 37 We recognize that a number of improvements have been made in military justice recently by engrafting more and more of the methods of civilian courts on courts-martial. In large part, these ameliorations stem from the reaction of civilians, who were inducted during the two World Wars, to their experience with military justice. Notwithstanding the recent reforms, military trial does not give an accused the same protection which exists in the civil courts. Looming far above all other deficiencies of the military trial, of course, is the absence of trial by jury before an independent judge after an indictment by a grand jury. Moreover the reforms are merely statutory; Congress -- and perhaps the President -- can reinstate former practices, subject to any limitations imposed by the Constitution, whenever it desires. [ Footnote 67 ] As yet, it has not been clearly settled to what extent the Bill of Rights and other protective parts of the Constitution apply to military trials. [ Footnote 68 ] Page 354 U. S. 38 It must be emphasized that every person who comes within the jurisdiction of courts-martial is subject to military law -- law that is substantially different from the law which governs civilian society. Military law is, in many respects, harsh law which is frequently cast in very sweeping and vague terms. [ Footnote 69 ] It emphasizes the iron hand of discipline more that it does the even scales of justice. Moreover, it has not yet been definitely established to what extent the President, as Commander-in-Chief of the armed forces, or his delegates, can promulgate, supplement or change substantive military law as well as the procedures of military courts in time of peace, or in time of war. [ Footnote 70 ] In any event, Congress has given the President broad discretion to provide the rules governing military trials. [ Footnote 71 ] For example, in these very cases, a technical manual issued under the President's name with regard to the defense of insanity in military trials was of critical importance in the convictions of Mrs. Covert and Mrs. Smith. If the President can provide Page 354 U. S. 39 rules of substantive law as well as procedure, then he and his military subordinates exercise legislative, executive and judicial powers with respect to those subject to military trials. Such blending of functions in one branch of the Government is the objectionable thing which the draftsmen of the Constitution endeavored to prevent by providing for the separation of governmental powers. In summary, "it still remains true that military tribunals have not been, and probably never can be, constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts. [ Footnote 72 ]" In part, this is attributable to the inherent differences in values and attitudes that separate the military establishment from civilian society. In the military, by necessity, emphasis must be placed on the security and order of the group, rather than on the value and integrity of the individual. It is urged that the expansion of military jurisdiction over civilians claimed here is only slight, and that the practical necessity for it is very great. [ Footnote 73 ] The attitude appears to be that a slight encroachment on the Bill of Rights and other safeguards in the Constitution need cause little concern. But to hold that these wives could be tried by the military would be a tempting precedent. Slight encroachments create new boundaries from which legions of power can seek new territory to capture. "It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional Page 354 U. S. 40 practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. [ Footnote 74 ]" Moreover, we cannot consider this encroachment a slight one. Throughout history, many transgressions by the military have been called "slight" and have been justified as "reasonable" in light of the "uniqueness" of the times. We cannot close our eyes to the fact that, today, the peoples of many nations are ruled by the military. We should not break faith with this Nation's tradition of keeping military power subservient to civilian authority, a tradition which we believe is firmly embodied in the Constitution. The country has remained true to that faith for almost one hundred seventy years. Perhaps no group in the Nation has been truer than military men themselves. Unlike the soldiers of many other nations, they have been content to perform their military duties in defense of the Nation in every period of need, and to perform those duties well without attempting to usurp power which is not theirs under our system of constitutional government. Ours is a government of divided authority on the assumption that in division there is not only strength but freedom from tyranny. And, under our Constitution, courts of law alone are given power to try civilians for Page 354 U. S. 41 their offenses against the United States. The philosophy expressed by Lord Coke, speaking long ago from a wealth of experience, is still timely: "God send me never to live under the Law of Conveniency or Discretion. Shall the Souldier and Justice Sit on one Bench, the Trumpet will not let the Cryer speak in Westminster-Hall. [ Footnote 75 ]" In No. 701, Reid v. Covert, the judgment of the District Court directing that Mrs. Covert be released from custody is Affirmed. In No. 713, Kinsella v. Krueger, the judgment of the District Court is reversed and the case is remanded with instructions to order Mrs. Smith released from custody. Reversed and remanded. MR. JUSTICE WHITTAKER took no part in the consideration or decision of these cases. * Together with No. 713, October Term, 1955, Kinsella, Warden v. Krueger, also on rehearing; argued, decided, rehearing granted, reargued, and decided on the same dates. [ Footnote 1 ] 50 U.S.C. § 712. [ Footnote 2 ] 50 U.S.C. § 552(11). [ Footnote 3 ] Martin v. Hunter's Lessee , 1 Wheat. 304, 326; Ex parte Milligan , 4 Wall. 2, 71 U. S. 119 , 71 U. S. 136 -137; Graves v. New York ex rel. O'Keefe, 306 U. S. 466 , 306 U. S. 477 ; Ex parte Quirin, 317 U. S. 1 , 317 U. S. 25 . [ Footnote 4 ] Marbury v. Madison , 1 Cranch 137, 5 U. S. 176 -180; Hawaii v. Mankichi, 190 U. S. 197 , 190 U. S. 236 -239 (Harlan, J., dissenting). [ Footnote 5 ] 2 Clode, Military Forces of the Crown, 175. [ Footnote 6 ] Cf. 32 U. S. Baltimore, 7 Pet. 243, 32 U. S. 250 . [ Footnote 7 ] This Court has constantly reiterated that the language of the Constitution where clear and unambiguous must be given its plain evident meaning. See, e.g., 25 U. S. Saunders, 12 Wheat. 213, 25 U. S. 302 -303; Lake Count v. Rollins, 130 U. S. 662 , 130 U. S. 670 -671. In United States v. Sprague, 282 U. S. 716 , 282 U. S. 731 -732, the Court said: "The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary, as distinguished from technical, meaning; where the intention is clear, there is no room for construction, and no excuse for interpolation or addition. . . . The fact that an instrument drawn with such meticulous care and by men who so well understood how to make language fit their thought does not contain any such limiting phrase . . . is persuasive evidence that no qualification was intended." [ Footnote 8 ] According to Madison, the section was intended "to provide for trial by jury of offences committed out of any State." 3 Madison Papers (Gilpin ed. 1841) 1441. [ Footnote 9 ] 1 Stat. 113-114. With slight modifications, this provision is now 18 U.S.C. § 3238. [ Footnote 10 ] See, e.g., Balzac v. Porto Rico, 258 U. S. 298 , 258 U. S. 312 -313 (Due Process of Law); Downes v. Bidwell, 182 U. S. 244 , 182 U. S. 277 (First Amendment, Prohibition against Ex Post Facto Laws or Bills of Attainder); Mitchell v. Harmony , 13 How. 115, 54 U. S. 134 (Just Compensation Clause of the Fifth Amendment); Best v. United States, 184 F.2d 131, 138 (Fourth Amendment); Eisentrager v. Forrestal, 84 U.S.App.D.C. 396, 174 F.2d 961 (Right to Habeas Corpus), rev'd on other grounds sub nom. Johnson v. Eisentrager, 339 U. S. 763 ; Turney v. United States, 126 Ct.Cl. 202, 115 F. Supp. 457, 464 (Just Compensation Clause of the Fifth Amendment). [ Footnote 11 ] See Dorr v. United States, 195 U. S. 138 , 195 U. S. 144 -148. [ Footnote 12 ] The right to trial by jury in a criminal case is twice guaranteed by the Constitution. It is common knowledge that the fear that jury trial might be abolished was one of the principal sources of objection to the Federal Constitution, and was an important reason for the adoption of the Bill of Rights. The Sixth Amendment reaffirmed the right to trial by jury in criminal cases, and the Seventh Amendment insured such trial in civil controversies. See 2 Elliot's Debates (2d ed. 1836) passim; 3 id. passim. [ Footnote 13 ] 3 Blackstone's Commentaries 379. As to the importance of trial by jury, See also Ex parte Milligan , 4 Wall. 2, 71 U. S. 122 -123; Thompson v. Utah, 170 U. S. 343 , 170 U. S. 349 -350; United States ex rel. Toth v. Quarles, 350 U. S. 11 , 350 U. S. 16 , 350 U. S. 18 -19; 2 Kent's Commentaries, 3-10; The Federalist, No. 83 (Hamilton); 2 Wilson's Works (Andrews ed. 1896) 222. De Tocqueville observed: "The institution of the jury . . . places the real direction of society in the hands of the governed, or of a portion of the governed, and not in that of the government. . . . He who punishes the criminal is . . . the real master of society. . . . All the sovereigns who have chosen to govern by their own authority, and to direct society instead of obeying its directions, have destroyed or enfeebled the institution of the jury." 1 De Tocqueville, Democracy in America (Reeve trans.1948 ed.), 282-283. [ Footnote 14 ] Rev.Stat. §§ 4083-4130 (1878). [ Footnote 15 ] Id. § 4086. [ Footnote 16 ] Secretary of State Blaine referred to these consular powers as "greater than ever the Roman law conferred on the pro-consuls of the empire, to an officer who, under the terms of the commitment of this astounding trust, is practically irresponsible." S.Exec.Doc. No. 21, 47th Cong., 1st Sess. 4. Seward, at a time when he was Consul-General, declared: "[t]here is no reason, excepting the absence of appropriate legislation, why American citizens in China, charged with grave offenses, should not have the privilege of a trial by jury as elsewhere throughout the world where the institution of civilization prevails." Id. at 7. [ Footnote 17 ] In re Ross, supra, at 140 U. S. 464 . [ Footnote 18 ] Ibid. [ Footnote 19 ] See cases cited in note 10 supra. [ Footnote 20 ] See, e.g., Kawakita v. United States, 343 U. S. 717 , United States v. Flores, 289 U. S. 137 ; United States v. Bowman, 260 U. S. 94 ; Chandler v. United States, 171 F.2d 921, cert. denied, 336 U.S. 918. [ Footnote 21 ] 70 Stat. 773. [ Footnote 22 ] Downes v. Bidwell, 182 U. S. 244 ; Hawaii v. Mankichi, 190 U. S. 197 ; Dorr v. United States, 195 U. S. 138 ; Balzac v. Porto Rico, 258 U. S. 298 . [ Footnote 23 ] "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; . . . ." [ Footnote 24 ] Downes v. Bidwell, 182 U. S. 244 , the first of the "Insular Cases" was decided over vigorous dissents from Mr. Chief Justice Fuller, joined by Justices Harlan, Brewer, and Peckham, and from Mr. Justice Harlan separately. The four dissenters took the position that all the restraints of the Bill of Rights and of other parts of the Constitution were applicable to the United States Government wherever it acted. This was the position which the Court had consistently followed prior to the "Insular Cases." See, e.g., Thompson v. Utah, 170 U. S. 343 ; Callan v. Wilson, 127 U. S. 540 . [ Footnote 25 ] As to the great significance of the right to trial by jury see text at note 13 supra, and the authorities referred to in that note. [ Footnote 26 ] Later the Court held that, once a territory become "incorporated" all of the constitutional protections became "applicable." See, e.g., Rassmussen v. United States, 197 U. S. 516 , 197 U. S. 520 -521. [ Footnote 27 ] It may be said that it is difficult to amend the Constitution. To some extent that is true. Obviously the Founders wanted to guard against hasty and ill-considered changes in the basic charter of government. But if the necessity for alteration becomes pressing, or if the public demand becomes strong enough, the Constitution can and has been promptly amended. The Eleventh Amendment was ratified within less than two years after the decision in Chisholm v. Georgia , 2 Dall. 419. And, more recently, the Twenty-First Amendment, repealing nationwide prohibition, became part of the Constitution within ten months after congressional action. On the average, it has taken the States less than two years to ratify each of the twenty-two amendments which have been made to the Constitution. [ Footnote 28 ] In 1881, Senator Carpenter, while attacking the consular courts "as a disgrace to this nation" because they deprived citizens of the "fundamental and essential" rights to indictment and trial by jury, declared: "If we are too mean as a nation to pay the expense of observing the Constitution in China, then let us give up our concessions in China and come back to as much of the Constitution as we can afford to carry out." 11 Cong.Rec. 410. [ Footnote 29 ] Executive Agreement of July 27, 1942, 57 Stat. 1193. The arrangement now in effect in Great Britain and the other North Atlantic Treaty Organization nations, as well as in Japan, is the NATO Status of Forces Agreement, 4 U.S. Treaties and Other International Agreements 1792, T.I.A.S. 2846, which, by its terms, gives the foreign nation primary jurisdiction to try dependents accompanying American servicemen for offenses which are violations of the law of both the foreign nation and the United States. Art. VII, §§ 1(b), 3(a). The foreign nation has exclusive criminal jurisdiction over dependents for offenses which only violate its laws. Art. VII, § 2(b). However, the Agreement contains provisions which require that the foreign nations provide procedural safeguards for our nationals tried under the terms of the Agreement in their courts. Art. VII, § 9. Generally, see Note, 70 Harv.L.Rev. 1043. Apart from those persons subject to the Status of Forces and comparable agreements and certain other restricted classes of Americans, a foreign nation has plenary criminal jurisdiction, of course, over all Americans -- tourists, residents, businessmen, government employees and so forth -- who commit offenses against its laws within its territory. [ Footnote 30 ] See Administrative Agreement, 3 U.S. Treaties and Other International Agreements 3341, T.I.A.S. 2492. [ Footnote 31 ] See the references collected in 4 Farrand, Records of the Federal Convention (Rev. ed.1937), 123. [ Footnote 32 ] See the discussion in the Virginia Convention on the adoption of the Constitution, 3 Elliot's Debates (1836 ed.) 500-519. [ Footnote 33 ] E.g., United States v. Minnesota, 270 U. S. 181 , 270 U. S. 207 -208; Holden v. Joy , 17 Wall. 211, 84 U. S. 242 -243; The Cherokee Tobacco , 11 Wall. 616, 78 U. S. 620 -621; Doe v. Braden , 16 How. 635, 57 U. S. 657 . Cf. 5 U. S. Madison, 1 Cranch 137, 5 U. S. 176 -180. We recognize that executive agreements are involved here, but it cannot be contended that such an agreement rises to greater stature than a treaty. [ Footnote 34 ] In Whitney v. Robertson, 124 U. S. 190 , the Court stated, at p. 124 U. S. 194 : "By the Constitution, a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other. . . . [I]f the two are inconsistent, the one last in date will control the other. . . . Head Money Cases, 112 U. S. 580 ; Botiller v. Dominguez, 130 U. S. 238 ; Chae Chan Ping v. United States, 130 U. S. 581 . See Clark v. Allen, 331 U. S. 503 , 331 U. S. 509 -510; Moser v. United States, 341 U. S. 41 , 341 U. S. 45 ." [ Footnote 35 ] See United States v. Darby, 312 U. S. 100 , 312 U. S. 124 -125, and the authorities collected there. [ Footnote 36 ] Dynes v. Hoover , 20 How. 65; Ex parte Reed, 100 U. S. 13 . [ Footnote 37 ] See note 7 supra. [ Footnote 38 ] Colonel Winthrop, who has been called the "Blackstone of Military Law," made the following statement in his treatise: "Can [the power of Congress to raise, support, and govern the military forces] be held to include the raising or constituting, and the governing nolens volens, in time of peace, as a part of the army, of a class of persons who are under no contract for military service, . . . who render no military service, perform no military duty, receive no military pay, but are and remain civilians in every sense and for every capacity. . . . In the opinion of the author, such a range of control is certainly beyond the power of Congress under [the Constitution. The Fifth Amendment] clearly distinguishes the military from the civil class as separate communities. It recognizes no third class which is part civil and part military . . . , and it cannot be perceived how Congress can create such a class without a disregard of the letter and spirit of the organic law." Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 106. [ Footnote 39 ] 12 Stat. 696. For debates showing sharp attacks on the constitutionality of this legislation see Cong.Globe, 37th Cong., 3d Sess. 952-958. The legislation was subsequently repealed. Rev.Stat. (1878 ed.) §§ 1342, 5596. [ Footnote 40 ] As the Government points out in its brief on rehearing: "The clause granting Congress power to make rules for the government and regulation of the land and naval forces was included in the final draft of the Constitution without either discussion or debate. . . . Neither the original draft presented to the convention nor the draft submitted by the 'Committee of Detail' contained the clause. 5 Elliot's Debates 130, 379." [ Footnote 41 ] Most of the benefits received by dependents accompanying servicemen overseas are also enjoyed by those accompanying servicemen in this country -- for example, quarters, commissary privileges, medical benefits, free transportation of household effects and so forth. [ Footnote 42 ] In the Mutiny Acts, first passed in 1688, 1 Will. & Mar., c. 5, the English Parliament reluctantly departed from the Common Law, see note 44 infra and granted the Army authority in time of peace to try soldiers -- initially for only the offenses of mutiny and desertion in time of civil insurrection. In the beginning. this limited court-martial jurisdiction was granted only for periods of four months; later, it was granted from year to year. See 1 Clode, Military Forces of the Crown, 19-21, 55-61, 76-78, 142-166, 499-501, 519-520. Initially the Mutiny Acts did not apply to the American Colonies. In 1713, Parliament, for the first time, authorized the trial of soldiers by courts-martial during peacetime in the overseas dominions. 12 Anne, c. 13, § 43; 1 Geo. I, c. 34. See the British War Office, Manual of Military Law (7th ed.1929), 10-14. For colonial reaction to military trial of soldiers in this country in the period preceding the revolution see text at note 49 and the authorities referred to there It was not until 1863 that Congress first authorized the trial of soldiers, in wartime, for civil crimes such as murder, arson, rape, etc., by courts-martial. 12 Stat. 736. Previously, the soldiers had been turned over to state authorities for trial in state courts. In Coleman v. Tennessee, 97 U. S. 509 , this Court declined to construe the 1863 statute as depriving civilian courts of a concurrent jurisdiction to try soldiers for crimes. The Court said: "With the known hostility of the American people to any interference by the military with the regular administration of justice in the civil courts, no such intention should be ascribed to Congress in the absence of clear and direct language to that effect." Id. at 97 U. S. 514 . [ Footnote 43 ] Washington warned that "Mercenary Armies . . . have at one time or another subverted the liberties of almost all the Countries they have been raised to defend. . . ." 26 Writings of Washington (Fitzpatrick ed.) 388. Madison in The Federalist, No. 41, cautioned: "[T]he liberties of Rome proved the final victim to her military triumphs, and . . . the liberties of Europe, as far as they ever existed, have, with few exceptions, been the price of her military establishments." [ Footnote 44 ] The Common Law made no distinction between the crimes of soldiers and those of civilians in time of peace. All subjects were tried alike by the same civil courts, so, "if a life-guardsman deserted he could only be sued for breach of contract, and if he struck his officer, he was only liable to an indictment or an action of battery." 2 Campbell, Lives of the Chief Justices (1st ed. 1849), 91. In time of war, the Common Law recognized an exception that permitted armies to try soldiers "in the field." The pages of English history are filled with the struggle of the common law courts and Parliament against the jurisdiction of military tribunals. See, for example, 8 Richard II, c. 5; 13 Richard II, cc. 2, 5; 1 Henry IV, c. 14; 18 Henry VI, c.19; 3 Car. I, c. 1. See 3 Rushworth, Historical Collections, App. 76-81. During the Middle Ages, the Court of the Constable and Marshal exercised jurisdiction over offenses committed by soldiers in time of war and over cases "of Death or Murder committed beyond the Sea." Hale, History and Analysis of the Common Law of England (1st ed. 1713), 372. As time passed, the jurisdiction of this court was steadily narrowed by Parliament and the common law courts so that Lord Chief Justice Hale (1609-1676) could write that the court "has been long disused upon great Reasons." Hale, supra, 42. As the Court of the Constable and Marshal fell into disuse and disrepute, jurisdiction over soldiers in time of war was assumed by commissions appointed by the King or by military councils. In Mostyn v. Fabrigas, 1 Cowp. 161, at 176, Lord Mansfield observed that "tradesmen who followed the train [of the British Army at Gibraltar], were not liable to martial law." (The distinction between the terms "martial law" and "military law" is of relatively recent origin. Early writers referred to all trials by military authorities as "martial law.") [ Footnote 45 ] In 1627, the Petition of Right, 3 Car. I, c. 1 (Pickering, Vol. VII, p. 319, 1763) protested: " nevertheless of late time divers commissions under your Majesty's great seal have issued forth by which certain persons have been assigned and appointed commissioners with power and authority to proceed within the land, according to the justice of martial law, against such soldiers or mariners, or other dissolute persons joining with them as should commit any murder, robbery, felony, mutiny or other outrage or misdemeanor whatsoever, and by such summary course and order as is agreeable to martial law, and as is used in armies in time of war, to proceed to the trial and condemnation of such offenders, and them to cause to be executed and put to death according to the law martial: " " * * * *" "[Your Majesty's subjects] do therefore humbly pray your most excellent Majesty . . . that the aforesaid commissions, for proceeding by martial law, may be revoked and annulled, and that hereafter no commissions of like nature may issue forth to any person or persons whatsoever to be executed as aforesaid, lest by colour of them any of your Majesty's subjects be destroyed, or put to death contrary to the laws and franchise of the land." See also 1 Clode, Military Forces of the Crown, 120, 424-425. [ Footnote 46 ] These Articles are set out in Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 920. James II also removed Lord Chief Justice Herbert and Sir John Holt (later Lord Chief Justice) from the bench for holding that military trials in peacetime were illegal and contrary to the law of the land. See 2 Campbell, Lives of the Chief Justices (1st ed. 1849), 90-93, 129. [ Footnote 47 ] 1 Will. & Mar., c. 2 [ Footnote 48 ] 1 Blackstone's Commentaries 413. And Hale, in much the same vein, wrote: " First, That in Truth and Reality, [martial law] is not a Law, but something indulged, rather than allowed as a Law; the Necessity of Government, Order and Discipline in an Army is that only which can give those Laws a Countenance. . . ." " Secondly, This indulged Law was only to extend to Members of the Army, or to those of the opposite Army, and never was so much indulged as intended to be (executed or) exercised upon others; for others who were not listed under the Army had no Colour of Reason to be bound by Military Constitutions, applicable only to the Army, whereof they were not Parts, but they were to be order'd and govern'd according to the Laws to which they were subject, though it were a Time of War." " Thirdly, That the Exercise of Martial Law, whereby any Person should lose his Life or Member, or Liberty, may not be permitted in Time of Peace, when the Kings Courts are open for all Persons to receive Justice, according to the Laws of the Land." Hale, History and Analysis of the Common Law of England (1st ed. 1713), 441. [ Footnote 49 ] 1 Wells, The Life and Public Services of Samuel Adams, 231. See also Dickerson, Boston Under Military Rule; Report of Boston Committee of Correspondence (November 20, 1772), "A List of Infringements and Violations of Rights," in Morison, The American Revolution 1764-1788, 91; Declaration and Resolves of the First Continental Congress in 1 Journals of the Continental Congress (Ford ed.) 63-73. In June, 1775, General Gage, then Royal Governor of Massachusetts Colony, declared martial law in Boston and its environs. The Continental Congress denounced this effort to supersede the course of the common law and to substitute the law martial. Declaration of Causes of Taking Up Arms, in 2 American Archives, Fourth Series (Force ed.), 1865, 1868. In November, 1775, Norfolk, Virginia, also was placed under martial law by the Royal Governor. The Virginia Assembly denounced this imposition of the "most execrable of all systems, the law martial," as in "direct violation of the Constitution, and the laws of this country." 4 id., 81-82. And the Constitution adopted by the Provincial Congress of South Carolina on March 26, 1776, protested: ". . . governors and others bearing the royal commission in the colonies [have] . . . dispensed with the law of the land, and substituted the law martial in its stead; . . . ." Thorpe, The Federal and State Constitutions, 3242. [ Footnote 50 ] 4 Geo. III, c. 15; 8 Geo. III, c. 22. [ Footnote 51 ] See 4 Benedict, American Admiralty (6th ed.1940), §§ 672-704; Harper, The English Navigation Laws, 184-196; 9 John Adams, Works, 318-319. Jefferson, in 1775, protested: "[Parliament has] extended the jurisdiction of the courts of admiralty beyond their antient limits, thereby depriving us of the inestimable right of trial by jury in cases affecting both life and property and subjecting both to the arbitrary decision of a single and dependent judge." 2 Journals of the Continental Congress (Ford ed.) 132. [ Footnote 52 ] 43 Harvard Classics 147, 148. [ Footnote 53 ] State constitutions adopted during this period generally contained provisions protecting the right to trial by jury and warning against the military. See Thorpe, The Federal and State Constitutions, (Delaware) 569, (Maryland) 1688, (Massachusetts) 1891-1892, (North Carolina) 2787-2788, (Pennsylvania) 3083, (South Carolina) 3257, (Virginia) 3813-3814. [ Footnote 54 ] See Art. I, §§ 8, 9; Art. II, § 2; Art. III; Amendments II, III, V, VI of the Constitution. See Madison, The Debates in the Federal Convention of 1787, in Documents Illustrative of the Formation of The Union of The American States, H.R.Doc. No. 398, 69th Cong., 1st Sess. 564-571, 600-602; Warren, The Making of the Constitution (1947 ed.), 482-484, 517-521. The Federalist, Nos. 26, 27, 28, 41; Elliot's Debates (2d ed. 1836) passim. [ Footnote 55 ] Cf. Ex parte Merryman, 17 Fed.Cas. 144, No. 9,487. And see the account of the trial of Theobald Wolfe Tone, 27 Howell's State Trials 614. [ Footnote 56 ] 4 Wall. at 71 U. S. 122 -123. [ Footnote 57 ] 350 U.S. at 350 U. S. 22 -23. Cf. United States ex rel. Flannery v. Commanding General, 69 F. Supp. 661 , rev'd by stipulation in unreported order of the Second Circuit, No. 20235, April 18, 1946. And see Ex parte Van Vranken, 47 F. 888; Antrim's Case, 5 Phila. 278, 288; Jones v. Seward, 40 Barb. (N.Y.) 563, 569-570; Smith v. Shaw, 12 Johns. (N.Y.) 257. [ Footnote 58 ] Brief for respondent, p. 31, United States ex rel. Toth v. Quarles, 350 U. S. 11 : "Indeed, we think the constitutional case is, if anything, clearer for the court-martial of Toth, who was a soldier at the time of his offense, than it is for a civilian accompanying the armed force." [ Footnote 59 ] Perlstein v. United States, 151 F.2d 167, cert. granted, 327 U.S. 777, dismissed as moot, 328 U.S. 822; Hines v. Mikell, 259 F. 28; Ex parte Jochen, 257 F. 200; Ex parte Falls, 251 F. 415; Ex parte Gerlach, 247 F. 616; Shilman v. United States, 73 F. Supp. 648 , reversed in part, 164 F.2d 649, cert. denied, 333 U.S. 837; In re Berue, 54 F. Supp. 252 ; McCune v. Kilpatrick, 53 F. Supp. 80 ; In re Di Bartolo, 50 F. Supp. 929 . [ Footnote 60 ] See, e.g., American Articles of War of 1775, Art. XXXII in Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 953, 956. We have examined all the cases of military trial of civilians by the British or American Armies prior to and contemporaneous with the Constitution that the Government has advanced or that we were able to find by independent research. Without exception, these cases appear to have involved trials during wartime in the area of battle -- "in the field" -- or in occupied enemy territory. Even in these areas, there are only isolated instances of military trial of "dependents" accompanying the armed forces. Apparently the normal method of disciplining camp followers was to expel them from the camp or to take away their ration privileges. [ Footnote 61 ] Experts on military law, the Judge Advocate General, and the Attorney General have repeatedly taken the position that "in the field" means in an area of actual fighting. See, e.g., Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 100-102; Davis, Military Law (3d ed.1915), 478-479; Dudley, Military Law and the Procedures of Courts-Martial (2d ed.1908), 413-414; 14 Op.Atty.Gen. 22; 16 id. 48; Dig.Op.JAG (1912) 151; id. (1901) 56, 563; id. (1895) 76, 325-326, 599-600; id. (1880) 49, 211, 384. Cf. Walker v. Chief Quarantine Officer, 69 F. Supp. 980, 987. Article 2(10) of the UCMJ, 50 U.S.C. § 552(10), provides that, in time of war, persons serving with or accompanying the armed forces in the field are subject to court-martial and military law. We believe that Art. 2(10) sets forth the maximum historically recognized extent of military jurisdiction over civilians under the concept of "in the field." The Government does not attempt -- and quite appropriately so -- to support military jurisdiction over Mrs. Smith or Mrs. Covert under Art. 2(10). [ Footnote 62 ] Even during time of war, the Constitution must be observed. Ex parte Milligan , 4 Wall. 2, at 71 U. S. 120 , declares: "The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government." Also see Hamilton v. Kentucky Distilleries Co., 251 U. S. 146 , 251 U. S. 156 ; United States v. Commodities Trading Corp., 339 U. S. 121 , 339 U. S. 125 . [ Footnote 63 ] Madsen v. Kinsella, 343 U. S. 341 , is not controlling here. It concerned trials in enemy territory which had been conquered and held by force of arms and which was being governed at the time by our military forces. In such areas, the Army commander can establish military or civilian commissions as an arm of the occupation to try everyone in the occupied area, whether they are connected with the Army or not. [ Footnote 64 ] Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 107. [ Footnote 65 ] See Hearings before a Subcommittee of the Senate Committee on Armed Services on S. 857 and H.R. 4080, 81st Cong., 1st Sess.; Beets v. Hunter, 75 F. Supp. 825 , rev'd on other grounds, 180 F.2d 101, cert. denied, 339 U.S. 963; Shapiro v. United States, 107 Ct.Cl. 650, 69 F. Supp. 205. Cf. Keeffe, JAG Justice in Korea, 6 Catholic U. of Amer.L.Rev. 1. The officer who convenes the court-martial also has final authority to determine whether charges will be brought in the first place, and to pick the board of inquiry, the prosecutor, the defense counsel, and the law officer who serves as legal adviser to the court-martial. [ Footnote 66 ] Speaking of the imperative necessity that judges be independent, Hamilton declared: ". . . [L]iberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; . . . nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security." The Federalist, No. 78. [ Footnote 67 ] The chief legal officers of the armed services have already recommended to Congress that certain provisions of the UCMJ which were designed to provide protection to an accused should be repealed or limited in the interest of military order and efficiency. Joint Report of the United States Court of Military Appeals and the Judge Advocates General of the Armed Forces and the General Counsel of the Department of the Treasury (1954). See Walsh, Military Law: Return to Drumhead Justice?, 42 A.B.A.J. 521. [ Footnote 68 ] Cf. Burns v. Wilson, 346 U. S. 137 , 346 U. S. 146 , 346 U. S. 148 , 346 U. S. 150 ; Note, 70 Harv.L.Rev. 1043, 1050-1053. But see Jackson v. Taylor, 353 U. S. 569 ; In re Grimley, 137 U. S. 147 , 137 U. S. 150 . The exception in the Fifth Amendment, of course, provides that grand jury indictment is not required in cases subject to military trial, and this exception has been read over into the Sixth Amendment, so that the requirements of jury trial are inapplicable. Ex parte Quirin, 317 U. S. 1 , 317 U. S. 40 . In Swaim v. United States, 165 U. S. 553 , this Court held that the President or commanding officer had power to return a case to a court-martial for an increase in sentence. If the double jeopardy provisions of the Fifth Amendment were applicable, such a practice would be unconstitutional. Cf. Kepner v. United States, 195 U. S. 100 . [ Footnote 69 ] For example, Art. 134, UCMJ, 50 U.S.C. § 728 provides: "Though not specifically mentioned in this [Code], all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces . . . shall be taken cognizance of . . . and punished at the discretion of [a court-martial]." In 1942, the Judge Advocate General ruled that a civilian employee of a contractor engaged in construction at an Army base could be tried by court-martial under the predecessor of Article 134 for advising his fellow employees to slow down at their work. Dig.Op.JAG, 941 Supp. 357. [ Footnote 70 ] See Ex parte Quirin, 317 U. S. 1 , 317 U. S. 28 -29; United States v. Eliason , 16 Pet. 291, 41 U. S. 301 ; Swaim v. United States, 165 U. S. 553 . Cf. General Orders, No. 100, Official Records, War of Rebellion, Ser. III, Vol. III, April 24, 1863; 15 Op.Atty.Gen. 297 and Note attached. [ Footnote 71 ] Art. 36, UCMJ, 50 U.S.C. § 611. [ Footnote 72 ] United States ex rel. Toth v. Quarles, 350 U. S. 11 , 350 U. S. 17 . [ Footnote 73 ] According to the Government's figures, almost 95% of the civilians tried abroad by army courts-martial during the six-year period from 1949-1955 were tried for minor offenses. In this country, "petty offenses" by civilians on military reservations are tried by civilian commissioners unless the alleged offender chooses trial in the Federal District Court. 18 U.S.C. § 3401. [ Footnote 74 ] Boyd v United States, 116 U. S. 616 , 116 U. S. 635 . [ Footnote 75 ] 3 Rushworth, Historical Collections, App. 81. MR. JUSTICE FRANKFURTER, concurring in the result. These cases involve the constitutional power of Congress to provide for trial of civilian dependents accompanying members of the armed forces abroad by court-martial in capital cases. The normal method of trial of federal offenses under the Constitution is in a civilian tribunal. Trial of offenses by way of court-martial, with all the characteristics of its procedure so different from the forms and safeguards of procedure in the conventional courts, is an exercise of exceptional jurisdiction, arising from the power granted to Congress in Art. I, § 8, cl. 14, of the Constitution of the United States "To make Rules for the Government and Regulation Page 354 U. S. 42 of the land and naval Forces." Dynes v. Hoover , 20 How. 65; see Toth v. Quarles, 350 U. S. 11 ; Winthrop, Military Law and Precedents (2d ed. 1896), 52. Article 2(11) of the Uniform Code of Military Justice, 64 Stat. 107, 109, 50 U.S.C. § 552(11), and its predecessors were passed as an exercise of that power, and the agreements with England and Japan recognized that the jurisdiction to be exercised under those agreements was based on the relation of the persons involved to the military forces. See the agreement with Great Britain, 57 Stat. 1193, E.A.S. No. 355, and the United States of America (Visiting Forces) Act, 1942, 5 & 6 Geo. VI, c. 31, and the 1952 Administrative Agreement with Japan, 3 U.S. Treaties and Other International Agreements 3341, T.I.A.S. 2492. Trial by court-martial is constitutionally permissible only for persons who can, on a fair appraisal, be regarded as falling within the authority given to Congress under Article I to regulate the "land and naval Forces," and who therefore are not protected by specific provisions of Article III and the Fifth and Sixth Amendments. It is, of course, true that, at least regarding the right to a grand jury indictment, the Fifth Amendment is not unmindful of the demands of military discipline. [ Footnote 2/1 ] Within the scope of appropriate construction, the phrase "except in cases arising in the land and naval Forces" has been assumed also to modify the guaranties of speedy and public trial Page 354 U. S. 43 by jury. And so the problem before us is not to be answered by recourse to the literal words of this exception. The cases cannot be decided simply by saying that, since these women were not in uniform, they were not "in the land and naval Forces." The Court's function in constitutional adjudications is not exhausted by a literal reading of words. It may be tiresome, but it is nonetheless vital, to keep our judicial minds fixed on the injunction that "it is a constitution we are expounding." M'Culloch v. Maryland , 4 Wheat. 316, 17 U. S. 407 . Although Winthrop, in his treatise, states that the Constitution "clearly distinguishes the military from the civil class as separate communities," and "recognizes no third class which is part civil and part military -- military for a particular purpose or in a particular situation, and civil for all other purposes and in all other situations . . . ," Winthrop, Military Law and Precedents (2d ed. 1896), 145, this Court, applying appropriate methods of constitutional interpretation, has long held, and in a variety of situations, that, in the exercise of a power specifically granted to it, Congress may sweep in what may be necessary to make effective the explicitly worded power. See Jacob Ruppert v. Caffey, 251 U. S. 264 , especially 251 U. S. 289 et seq.; Purity Extract Co. v. Lynch, 226 U. S. 192 , 226 U. S. 201 ; Railroad Commission v. Chicago, Burlington & Quincy R. Co., 257 U. S. 563 , 257 U. S. 588 . This is the significance of the Necessary and Proper Clause, which is not to be considered so much a separate clause in Art. I, § 8, as an integral part of each of the preceding 17 clauses. Only thus may be avoided a strangling literalness in construing a document that is not an enumeration of static rules but the living framework of government designed for an undefined future. M'Culloch v. Maryland , 4 Wheat. 316; Hurtado v. California, 110 U. S. 516 , 110 U. S. 530 -531. Everything that may be deemed, as the exercise of an allowable judgment by Congress, to fall fairly within the Page 354 U. S. 44 conception conveyed by the power given to Congress "To make Rules for the Government and Regulation of the land and naval Forces" is constitutionally within that legislative grant, and not subject to revision by the independent judgment of the Court. To be sure, every event or transaction that bears some relation to "the land and naval Forces" does not ipso facto come within the tolerant conception of that legislative grant. The issue in these cases involves regard for considerations not dissimilar to those involved in a determination under the Due Process Clause. Obviously, the practical situations before us bear some relation to the military. Yet the question for this Court is not merely whether the relation of these women to the "land and naval Forces" is sufficiently close to preclude the necessity of finding that Congress has been arbitrary in its selection of a particular method of trial. For, although we must look to Art. I, § 8, cl. 14, as the immediate justifying power, it is not the only clause of the Constitution to be taken into account. The Constitution is an organic scheme of government to be dealt with as an entirety. A particular provision cannot be dissevered from the rest of the Constitution. Our conclusion in these cases therefore must take due account of Article III and the Fifth and Sixth Amendments. We must weigh all the factors involved in these cases in order to decide whether these women dependents are so closely related to what Congress may allowably deem essential for the effective "Government and Regulation of the land and naval Forces" that they may be subjected to court-martial jurisdiction in these capital cases, when the consequence is loss of the protections afforded by Article III and the Fifth and Sixth Amendments. We are not concerned here even with the possibility of some alternative non-military type of trial that does Page 354 U. S. 45 not contain all the safeguards of Article III and the Fifth and Sixth Amendments. We must judge only what has been enacted and what is at issue. It is the power actually asserted by Congress under Art. I, § 8, cl. 14, that must now be adjudged in the light of Article III and the Fifth and Sixth Amendments. In making this adjudication, I must emphasize that it is only the trial of civilian dependents in a capital case in time of peace that is in question. The Court has not before it, and therefore I need not intimate any opinion on, situations involving civilians, in the sense of persons not having a military status, other than dependents. Nor do we have before us a case involving a non-capital crime. This narrow delineation of the issue is merely to respect the important restrictions binding on the Court when passing on the constitutionality of an Act of Congress. "In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. These rules are safe guides to sound judgment. It is the dictate of wisdom to follow them closely and carefully." Steamship Co. v. Emigration Commissioners, 113 U. S. 33 , 113 U. S. 39 . We are also not concerned here with the substantive aspects of the grant of power to Congress to "make Rules for the Government and Regulation of the land and naval Forces." What conduct should be punished and what constitutes a capital case are matters for congressional discretion, always subject, of course, to any specific restrictions of the Constitution. These cases involve the validity of procedural conditions for determining the commission of a crime, in fact, punishable by death. The taking of life is irrevocable. It is in capital cases especially Page 354 U. S. 46 that the balance of conflicting interests must be weighted most heavily in favor of the procedural safeguards of the Bill of Rights. Thus, in Powell v. Alabama, 287 U. S. 45 , 287 U. S. 71 , the fact "above all that they stood in deadly peril of their lives" led the Court to conclude that the defendants had been denied due process by the failure to allow them reasonable time to seek counsel and the failure to appoint counsel. I repeat. I do not mean to imply that the considerations that are controlling in capital cases involving civilian dependents are constitutionally irrelevant in capital cases involving civilians other than dependents or in non-capital cases involving dependents or other civilians. I do say that we are dealing here only with capital cases and civilian dependents. The Government asserts that civilian dependents are an integral part of our armed forces overseas, and that there is substantial military necessity for subjecting them to court-martial jurisdiction. The Government points out that civilian dependents go military community, enjoy the privileges of military facilities, and that their conduct inevitably tends to influence military discipline. The prosecution by court-martial for capital crimes committed by civilian dependents of members of the armed forces abroad is hardly to be deemed, under modern conditions, obviously appropriate to the effective exercise of the power to "make Rules for the Government and Regulation of the land and naval Forces" when it is a question of deciding what power is granted under Article I, and therefore what restriction is made on Article III and the Fifth and Sixth Amendments. I do not think that the proximity, physical and social, of these women to the "land and naval Forces" is, with due regard to all that has been put before us, so clearly demanded by the effective "Government and Regulation" Page 354 U. S. 47 of those forces as reasonably to demonstrate a justification for court-martial jurisdiction over capital offenses. The Government speaks of the "great potential impact on military discipline" of these accompanying civilian dependents. This cannot be denied, nor should its implications be minimized. But the notion that discipline over military personnel is to be furthered by subjecting their civilian dependents to the threat of capital punishment imposed by court-martial is too hostile to the reasons that underlie the procedural safeguards of the Bill of Rights for those safeguards to be displaced. It is true that military discipline might be affected seriously if civilian dependents could commit murders and other capital crimes with impunity. No one, however, challenges the availability to Congress of a power to provide for trial and punishment of these dependents for such crimes. [ Footnote 2/2 ] The method of trial alone is in issue. The Government suggests that, if trial in an Article III court subject to the restrictions of the Fifth and Sixth Amendments is the only alternative, such a trial could not be held abroad practicably, and it would often be equally impracticable to transport all the witnesses back to the United States for trial. But, although there is no need to pass on that issue in this case, trial in the United States is obviously not the only practical alternative, and other alternatives may raise different constitutional questions. The Government's own figures for the Army show that the total number of civilians (all civilians "serving with, employed by, or accompanying the armed forces" overseas and not merely civilian dependents) for whom general courts-martial for alleged Page 354 U. S. 48 murder were deemed advisable [ Footnote 2/3 ] was only 13 in the 7 fiscal years 1950-1956. It is impossible to ascertain from the figures supplied to us exactly how many persons were tried for other capital offenses, but the figures indicate that there could not have been many. There is nothing to indicate that the figures for the other services are more substantial. It thus appears to be a manageable problem within the procedural restrictions found necessary by this opinion. A further argument is made that a decision adverse to the Government would mean that only a foreign trial could be had. Even assuming that the NATO Status of Forces Agreement, 4 U.S. Treaties and Other International Agreements 1792, T.I.A.S. 2846, covering countries where a large part of our armed forces are stationed, gives jurisdiction to the United States only through its military authorities, this Court cannot speculate that any given nation would be unwilling to grant or continue such extraterritorial jurisdiction over civilian dependents in capital cases if they were to be tried by some other manner than court-martial. And even if such were the case, these civilian dependents would then Page 354 U. S. 49 merely be in the same position as are so many federal employees and their dependents and other United States citizens who are subject to the laws of foreign nations when residing there. [ Footnote 2/4 ] See also the NATO Status of Forces Agreement, supra, Art. VII, §§ 2, 3. The Government makes the final argument that these civilian dependents are part of he United States military contingent abroad in the eyes of the foreign nations concerned, and that their conduct may have a profound effect on our relations with these countries, with a consequent effect on the military establishment there. But the argument that military court-martials in capital cases are necessitated by this factor assumes either that a military court-martial constitutes a stronger deterrent to this sort of conduct or that, in the absence of such a trial, no punishment would be meted out, and our foreign policy thereby injured. The reasons why these considerations carry no conviction have already been indicated. I therefore conclude that, in capital cases, the exercise of court-martial jurisdiction over civilian dependents in time of peace cannot be justified by Article I, considered in connection with the specific protections of Article III and the Fifth and Sixth Amendments. Since the conclusion thus reached differs from what the Court decided last Term, a decent respect for the judicial process calls for reexamination of the two grounds that then prevailed. The Court sustained its action on the Page 354 U. S. 50 authority of the cases dealing with the power of Congress to "make all needful Rules and Regulations" for the Territories, reinforced by In re Ross, 140 U. S. 453 , in which this Court, in 1891, sustained the criminal jurisdiction of a consular court in Japan. [ Footnote 2/5 ] These authorities grew out of, and related to, specific situations very different from those now here. They do not control or even embarrass the problem before us. Legal doctrines are not self-generated abstract categories. They do not fall from the sky; nor are they pulled out of it. They have a specific juridical origin and etiology. They derive meaning and content from the circumstances that gave rise to them, and from the purposes they were designed to serve. To these they are bound as is a live tree to its roots. Doctrines like those expressed by the Ross case and the series of cases beginning with American Insurance Co. v. Canter , 1 Pet. 511, must be placed in their historical setting. They cannot be wrenched from it and mechanically transplanted into an alien, unrelated context without suffering mutilation or distortion. "If a precedent involving a black horse is applied to a case involving a white horse, we are not excited. If it were an elephant or an animal ferae naturae or a chose in action, then we would venture into thought. The difference might make a difference. We really are concerned about precedents chiefly when their facts differ somewhat from the facts in the case at bar. Then there is a gulf or hiatus that has to be bridged by a concern for principle and a concern for practical results and practical wisdom." Thomas Reed Powell, Vagaries and Varieties in Constitutional Interpretation, Page 354 U. S. 51 36. This attitude toward precedent underlies the whole system of our case law. It was thus summarized by Mr. Justice Brandeis: "It is a peculiar virtue of our system of law that the process of inclusion and exclusion, so often employed in developing a rule, is not allowed to end with its enunciation, and that an expression in an opinion yields later to the impact of facts unforeseen." Jaybird Mining Co. v. Weir, 271 U. S. 609 , 271 U. S. 619 (dissenting). Especially is this attitude to be observed in constitutional controversies. The territorial cases relied on by the Court last Term held that certain specific constitutional restrictions on the Government did not automatically apply in the acquired territories of Florida, Hawaii, the Philippines, or Puerto Rico. In these cases, the Court drew its decisions from the power of Congress to "make all needful Rules and Regulations respecting the Territory . . . belonging to the United States," for which provision is made in Art. IV, § 3. The United States from time to time acquired lands in which many of our laws and customs found an uncongenial soil because they ill accorded with the history and habits of their people. Mindful of all relevant provisions of the Constitution and not allowing one to frustrate another -- which is the guiding thought of this opinion -- the Court found it necessary to read Art. IV, § 3, together with the Fifth and Sixth Amendments and Article III in the light of those circumstances. The question arose most frequently with respect to the establishment of trial by jury in possessions in which such a system was wholly without antecedents. The Court consistently held with respect to such "Territory" that congressional power under Art. IV, § 3, was not restricted by the requirement of Art. III, § 2, cl. 3, and the Sixth Amendment of providing trial by jury. "If the right to trial by jury were a fundamental right which goes wherever the jurisdiction of the Page 354 U. S. 52 United States extends, or if Congress, in framing laws for outlying territory belonging to the United States, was obliged to establish that system by affirmative legislation, it would follow that, no matter what the needs or capacities of the people, trial by jury, and in no other way, must be forthwith established, although the result may be to work injustice and provoke disturbance, rather than to aid the orderly administration of justice. If the United States, impelled by its duty or advantage, shall acquire territory peopled by savages, and of which it may dispose or not hold for ultimate admission to Statehood, if this doctrine is sound, it must establish there the trial by jury. To state such a proposition demonstrates the impossibility of carrying it into practice. Again, if the United States shall acquire by treaty the cession of territory having an established system of jurisprudence, where jury trials are unknown, but a method of fair and orderly trial prevails under an acceptable and long-established code, the preference of the people must be disregarded, their established customs ignored and they themselves coerced to accept, in advance of incorporation into the United States, a system of trial unknown to them and unsuited to their needs. We do not think it was intended, in giving power to Congress to make regulations for the territories, to hamper its exercise with this condition." Dorr v. United States, 195 U. S. 138 , 195 U. S. 148 . [ Footnote 2/6 ] Page 354 U. S. 53 The "fundamental right" test is the one which the Court has consistently enunciated in the long series of cases -- e.g., 26 U. S. Co. v. Canter, 1 Pet. 511; De Lima v. Bidwell, 182 U. S. 1 ; Downes v. Bidwell, 182 U. S. 244 ; Dorr v. United States, 195 U. S. 138 ; Balzac v. Porto Rico, 258 U. S. 298 -- dealing with claims of constitutional restrictions on the power of Congress to "make all needful Rules and Regulations" for governing the unincorporated territories. The process of decision appropriate to the problem led to a detailed examination of the relation of the specific "Territory" to the United States. This examination, in its similarity to analysis in terms of "due process," is essentially the same as that to be made in the present cases in weighing congressional power to make "Rules for the Government and Regulation of the land and naval Forces" against the safeguards of Article III and the Fifth and Sixth Amendments. The results in the cases that arose by reason of the acquisition of exotic "Territory" do not control the present cases, for the territorial cases rest specifically on Art. IV, § 3, which is a grant of power to Congress to deal with "Territory" and other Government property. Of course, the power sought to be exercised in Great Britain and Japan does not relate to "Territory." [ Footnote 2/7 ] The Court's Page 354 U. S. 54 opinions in the territorial cases did not lay down a broad principle that the protective provisions of the Constitution do not apply outside the continental limits of the United States. This Court considered the particular situation in each newly acquired territory to determine whether the grant to Congress of power to govern "Territory" was restricted by a specific provision of the Constitution. The territorial cases, in the emphasis put by them on the necessity for considering the specific circumstances of each particular case, are thus relevant in that they provide an illustrative method for harmonizing constitutional provisions which appear, separately considered, to be conflicting. The Court last Term relied on a second source of authority, the consular court case, In re Ross, 140 U. S. 453 . Pursuant to a treaty with Japan, Ross, a British subject but a member of the crew of a United States ship, was tried and convicted in a consular court in Yokohama for murder of a fellow seaman while the ship was in Yokohama harbor. His application for a writ of habeas corpus to a United States Circuit Court was denied, 44 F. 185, and, on appeal here, the judgment was affirmed. This Court set forth the ground of the Circuit Court, "the long and uniform acquiescence by the executive, administrative and legislative departments of the government in the validity of the legislation," 140 U.S. at 140 U. S. 461 , and then stated: "The Circuit Court might have found an additional ground for not calling in question the legislation of Congress in the uniform practice of civilized governments for centuries to provide consular tribunals in other than Christian countries . . . for the Page 354 U. S. 55 trial of their own subjects or citizens for offences committed in those countries, as well as for the settlement of civil disputes between them, and in the uniform recognition, down to the time of the formation of our government, of the fact that the establishment of such tribunals was among the most important subjects for treaty stipulations. . . ." " * * * *" "The treaty-making power vested in our government extends to all proper subjects of negotiation with foreign governments. It can, equally with any of the former or present governments of Europe, make treaties providing for the exercise of judicial authority in other countries by its officers appointed to reside therein." "We do not understand that any question is made by counsel as to its power in this respect. His objection is to the legislation by which such treaties are carried out. . . ." ". . . By the Constitution, a government is ordained and established 'for the United States of America,' and not for countries outside of their limits. The guarantees it affords against accusation of capital or infamous crimes, except by indictment or presentment by a grand jury, and for an impartial trial by a jury when thus accused, apply only to citizens and others within the United States, or who are brought there for trial for alleged offences committed elsewhere, and not to residents or temporary sojourners abroad. . . . The Constitution can have no operation in another country. When, therefore, the representatives or officers of our government are permitted to exercise authority of any kind in another country, it must be on such conditions as the two countries may agree, the laws of neither one being obligatory upon the other. The deck of a private Page 354 U. S. 56 American vessel, it is true, is considered for many purposes constructively as territory of the United States, yet persons on board of such vessels, whether officers, sailors, or passengers, cannot invoke the protection of the provisions referred to until brought within the actual territorial boundaries of the United States. . . ." 140 U.S. at 140 U. S. 462 -464. One observation should be made at the outset about the grounds for decision in Ross. Insofar as the opinion expressed a view that the Constitution is not operative outside the United States -- and apparently Mr. Justice Field meant by "United States" all lands over which the United States flag flew, see John W. Burgess, How May the United States Govern Its Extra-Continental Territory?, 14 Pol.Sci.Q. 1 (1899) -- it expressed a notion that has long since evaporated. Governmental action abroad is performed under both the authority and the restrictions of the Constitution -- for example, proceedings before American military tribunals, whether in Great Britain or in the United States, are subject to the applicable restrictions of the Constitution. See opinions in Burns v. Wilson, 346 U. S. 137 . The significance of the Ross case and its relevance to the present cases cannot be assessed unless due regard is accorded the historical context in which that case was decided. Ross is not rooted in any abstract principle or comprehensive theory touching constitutional power or its restrictions. It was decided with reference to a very particular, practical problem with a long history. To be mindful of this does not attribute to Mr. Justice Field's opinion some unavowed historical assumption. On behalf of the whole Court, he spelled out the considerations that controlled it: "The practice of European governments to send officers to reside in foreign countries, authorized to Page 354 U. S. 57 exercise a limited jurisdiction over vessels and seamen of their country, to watch the interests of their countrymen, and to assist in adjusting their disputes and protecting their commerce, goes back to a very early period, even preceding what are termed the Middle Ages. . . . In other than Christian countries, they were, by treaty stipulations, usually clothed with authority to hear complaints against their countrymen and to sit in judgment upon them when charged with public offences. After the rise of Islamism and the spread of its followers over eastern Asia and other countries bordering on the Mediterranean, the exercise of this judicial authority became a matter of great concern. The intense hostility of the people of Moslem faith to all other sects, and particularly to Christians, affected all their intercourse and all proceedings had in their tribunals. Even the rules of evidence adopted by them placed those of different faith on unequal grounds in any controversy with them. For this cause, and by reason of the barbarous and cruel punishments inflicted in those countries and the frequent use of torture to enforce confession from parties accused, it was a matter of deep interest to Christian governments to withdraw the trial of their subjects, when charged with the commission of a public offence, from the arbitrary and despotic action of the local officials. Treaties conferring such jurisdiction upon these consuls were essential to the peaceful residence of Christians within those countries and the successful prosecution of commerce with their people." 140 U.S. at 140 U. S. 462 -463. "It is true that the occasion for consular tribunals in Japan may hereafter be less than at present, as every year that country progresses in civilization and in the assimilation of its system of judicial procedure Page 354 U. S. 58 to that of Christian countries, as well as in the improvement of its penal statutes; but the system of consular tribunals . . . is of the highest importance, and their establishment in other than Christian countries, where our people may desire to go in pursuit of commerce, will often be essential for the protection of their persons and property." Id. at 140 U. S. 480 . [ Footnote 2/8 ] It is important to have a lively sense of this background before attempting to draw on the Ross case. Historians have traced grants of extraterritorial rights as far back as the permission given by Egypt in the 12th or 13th century B.C. to the merchants of Tyre to establish factories on the Nile and to live under their own law and practice their own religion. Numerous other instances of persons living under their own law in foreign lands existed in the later pre-Christian era and during the Roman Empire and the so-called Dark and Middle Ages -- Greeks in Page 354 U. S. 59 Egypt, all sorts of foreigners in Rome, inhabitants of Christian cities and states in the Byzantine Empire, the Latin kingdoms of the Levant, and other Christian cities and states, Mohammedans in the Byzantine Empire and China, and many others lived in foreign lands under their own law. While the origins of this extraterritorial jurisdiction may have differed in each country, the notion that law was for the benefit of the citizens of a country and its advantages not for foreigners appears to have been.an important factor. Thus, there existed a long-established custom of extraterritorial jurisdiction at the beginning of the 15th century when the complete conquest of the Byzantine Empire by the Turks and the establishment of the Ottoman Empire substantially altered political relations between Christian Europe and the Near East. But commercial relations continued, and in 1535, Francis I of France negotiated a treaty with Suleiman I of Turkey that provided for numerous extraterritorial rights, including criminal and civil jurisdiction over all disputes among French subjects. 1 Ernest Charriere, Negociations de la France dans le Levant 283. Other nations, and eventually the United States in 1830, 8 Stat. 408, later negotiated similar treaties with the Turks. (For a more complete history of the development of extraterritorial rights and consular jurisdiction, see 1 Calvo, Le Droit International Theorique et Pratique (5th ed., Rousseau, 1896), 2-18, 2 id. 9-12; Hinckley, American Consular Jurisdiction in the Orient, 1-9; 1 Miltitz, Manuel des Consuls passim; Ravndal, The Origin of the Capitulations and of the Consular Institution, S.Doc. No. 34, 67th Cong., 1st Sess. 5-45, 56-96; Shih Shun Liu, Extraterritoriality, 23-66, 118 Studies in History, Economics and Public Law, Columbia University (1925); Twiss, The Law of Nations (Rev. ed. 1884), 443-457.) Page 354 U. S. 60 The emergence of the nation state in Europe and the growth of the doctrine of absolute territorial sovereignty changed the nature of extraterritorial rights. No longer were strangers to be denied the advantages of local law. Indeed, territorial sovereignty meant the exercise of sovereignty over all residents within the borders of the state, and the system of extraterritorial consular jurisdiction tended to die out among Christian nations in the 18th and 19th centuries. But a new justification was found for the continuation of that jurisdiction in those countries whose systems of justice were considered inferior, and it was this strong feeling with respect to Moslem and Far Eastern countries that was reflected, as we have seen, in the Ross opinion. Until 1842, China had asserted control over all foreigners within its territory, Shih Shun Liu, op. cit. supra, 76-89, but, as a result of the Opium War, Great Britain negotiated a treaty with China whereby she obtained consular offices in five open ports and was granted extraterritorial rights over her citizens. On July 3, 1844, Caleb Cushing negotiated a similar treaty on behalf of the United States. 8 Stat. 592. In a letter to Secretary of State Calhoun, he explained: "I entered China with the formed general conviction that the United States ought not to concede to any foreign state, under any circumstances, jurisdiction over the life and liberty of a citizen of the United States unless that foreign state be of our own family of nations -- in a word, a Christian state." Quoted in 7 Op.Atty.Gen. 495, 496-497. Later treaties continued the extraterritorial rights of the United States, and the Treaty of 1903 contained the following article demonstrating the purpose of those rights: "The Government of China having expressed a strong desire to reform its judicial system and to bring it into accord with that of Western nations, the Page 354 U. S. 61 United States agrees to give every assistance to such reform, and will also be prepared to relinquish extraterritorial rights when satisfied that the state of the Chinese laws, the arrangements for their administration, and other considerations warrant it in doing so." 33 Stat. 2208, 2215. The first treaty with Japan was negotiated by Commodore Perry in 1854. 11 Stat. 597. It opened two ports, but did not provide for any exercise of judicial powers by United States officials. Under the Treaty of 1857, 11 Stat. 723, such power was given, and later treaties, which opened up further Japanese cities for trade and residence by United States citizens, retained these rights. The treaty of 1894, effective on July 17, 1899, however, ended these extraterritorial rights, and Japan, even though a "non-Christian" nation, came to occupy the same status as Christian nations. 29 Stat. 848. The exercise of criminal jurisdiction by consuls over United States citizens was also provided for, at one time or another, in treaties with Borneo, 10 Stat. 909, 910; Siam, 11 Stat. 683, 684; Madagascar, 15 Stat. 491, 492; Samoan Islands, 20 Stat. 704; Korea, 23 Stat. 720, 721; Tonga Islands, 25 Stat. 1440, 1442, and, by virtue of most favored nation clauses, in treaties with Tripoli, 8 Stat. 154; Persia, 11 Stat. 709; the Congo, 27 Stat. 926, and Ethiopia, 33 Stat. 2254. The exercise of criminal jurisdiction was also provided for in a treaty with Morocco, 8 Stat. 100, by virtue of a most favored nation clause and by virtue of a clause granting jurisdiction if "any . . . citizens of the United States . . . shall have any disputes with each other." The word "disputes" has been interpreted by the International Court of Justice to comprehend criminal as well as civil disputes. France v. United States, I.C.J. Reports 1952, pp.176, 188-189. The treaties with Algiers, 8 Stat. 133, 224, 244; Tunis, 8 Stat. Page 354 U. S. 62 157, and Muscat, 8 Stat. 458, contained similar "disputes" clauses. [ Footnote 2/9 ] The judicial power exercised by consuls was defined by statute, and was sweeping: "Jurisdiction in both criminal and civil matters shall, in all cases, be exercised and enforced in conformity with the laws of the United States, which are hereby, so far as is necessary to execute such treaties, respectively, and so far as they are suitable to carry the same into effect, extended over all citizens of the United States in those countries, and over all others to the extent that the terms of the treaties, respectively, justify or require. But in all cases where such laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies, the common law and the law of equity and admiralty shall be extended in like manner over such citizens and others in those countries, and if neither the common law, nor the law of equity or admiralty, nor the statutes of the United States, furnish appropriate and sufficient remedies, the ministers in those countries, respectively, shall, by decrees and regulations which shall have the force of law, supply such defects and deficiencies." Rev.Stat. § 4086. The consuls, then, exercised not only executive and judicial power, but legislative power as well. The number of people subject to the jurisdiction of these courts during their most active periods appears to Page 354 U. S. 63 have been fairly small. In the Chronicle & Directory for China, Japan, & the Philippines, for the year 1870, there is a listing of the total number of foreign, not just United States, residents in these three places. The list is 81 pages long, with a total of some 4,500 persons. (Pp. 54-134.) This same publication gives the following information about Japan: "The number of foreigners settled in Japan is as yet very small. At the end of the year 1862, the foreign community at Kanagawa, the principal of the three ports of Japan open to aliens, consisted of . . . thirty-eight Americans . . . , and in the latter part of 1864, the permanent foreign residents at Kanagawa had increased to 300, not counting soldiers, of which number . . . about 80 [were] Americans. . . . At Nagasaki, the second port of Japan thrown open to foreign trade by the government, the number of alien settlers was as follows on the 1st of January, 1866: -- . . . American citizens 32. . . . A third port opened to European and American traders, that of Hakodadi, in the north of Japan, was deserted, after a lengthened trial, by nearly all the foreign merchants settled there. . . ." (Appendix, p. 353.) The Statesman's Yearbook of 1890 shows: China at the end of 1888: 1,020 Americans (p. 411); Japan in 1887: 711 Americans (p. 709); Morocco, 1889 estimate: "The number of Christians is very small, not exceeding 1,500." (P. 739.) The Statesman's Yearbook of 1901 shows: China at the end of 1899: 2,335 Americans (p. 484); Japan, December 31, 1898, just before the termination of our extraterritorial rights: 1,165 Americans (p. 809); Morocco: "The number of Christians does not exceed 6,000; the Christian population of Tangier alone probably amounts to 5,000." (P. 851.) These figures, of course, do not include those civilians temporarily in the country coming within consular jurisdiction. Page 354 U. S. 64 The consular court jurisdiction, then, was exercised in countries whose legal systems at the time were considered so inferior that justice could not be obtained in them by our citizens. The existence of these courts was based on long-established custom, and they were justified as the best possible means for securing justice for the few Americans present in those countries. The Ross case, therefore, arose out of, and rests on, very special, confined circumstances, and cannot be applied automatically to the present situation, involving hundreds of thousands of American citizens in countries with civilized systems of justice. If Congress had established consular courts or some other non-military procedure for trial that did not contain all the protections afforded by Article III and the Fifth and Sixth Amendments for the trial of civilian dependents of military personnel abroad, we would be forced to a detailed analysis of the situation of the civilian dependent population abroad in deciding whether the Ross case should be extended to cover such a case. It is not necessary to do this in the present cases in view of our decision that the form of trial here provided cannot constitutionally be justified. The Government, apparently recognizing the constitutional basis for the decision in Ross, has, on rehearing, sought to show that civilians in general and civilian dependents in particular have been subject to military order and discipline ever since the colonial period. The materials it has submitted seem too episodic, too meager, to form a solid basis in history, preceding and contemporaneous with the framing of the Constitution, for constitutional adjudication. What has been urged on us falls far too short of proving a well established practice -- to be deemed to be infused into the Constitution -- of court-martial jurisdiction, certainly not in capital cases, over such civilians in time of peace. Page 354 U. S. 65 [ Footnote 2/1 ] "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces. . . ." Article 2 of the Uniform Code of Military Justice provides: "The following persons are subject to this code: . . . (11) Subject to the provisions of any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, all persons serving with, employed by, or accompanying the armed forces without the continental limits of the United States. . . ." [ Footnote 2/2 ] Article III, § 2, cl. 3, provides that "The Trial of all Crimes . . . when not committed within any State . . . shall be at such Place or Places as the Congress may by Law have directed." Since 1790, 1 Stat. 113-114, Congress has provided for such trial in the district where the offender is found (apprehended) or first brought. See 18 U.S.C. § 3238. [ Footnote 2/3 ] Under Article 19 of the Uniform Code of Military Justice, 64 Stat. 114, 50 U.S.C. § 579, a special court-martial may impose any punishment not forbidden by the Code "except death, dishonorable discharge, dismissal, confinement in excess of six months, hard labor without confinement in excess of three months, forfeiture of pay exceeding two-thirds pay per month, or forfeiture of pay for a period exceeding six months." Under Art. 20, 64 Stat. 114, 50 U.S.C. § 580, a summary court-martial may impose any punishment not forbidden by the Code "except death, dismissal, dishonorable or bad conduct discharge, confinement in excess of one month, hard labor without confinement in excess of forty-five days, restriction to certain specified limits in excess of two months, or forfeiture of pay in excess of two-thirds of one month's pay." In order to impose a punishment in excess of these limits, a general court-martial must be convened under Art. 18, 64 Stat. 114, 50 U.S.C. § 578. [ Footnote 2/4 ] A Report of the Joint Committee on Reduction of Nonessential Federal Expenditures on Federal Personnel and Pay indicates that the executive agencies of the Federal Government, excluding the Department of Defense, alone employed 51,027 persons outside the continental United States in February, 1957, excluding employees of the Panama Canal. S.Com.Print No. 157, 85th Cong., 1st Sess. Although these figures include "some foreign nationals," they nevertheless indicate a substantial number of United States citizens subject to foreign law. See 103 Cong.Rec. 5313-5316. [ Footnote 2/5 ] Having based the constitutionality of Article 2(11) on these grounds, the Court concluded, "we have no need to examine the power of Congress 'To make Rules for the Government and Regulation of the land and naval Forces' under Article I of the Constitution." 351 U.S. 470 , 351 U. S. 476 . [ Footnote 2/6 ] In Hawaii v. Mankichi, 190 U. S. 197 , the Court rested its decision on an interpretation of the joint resolution of Congress annexing the Hawaiian Islands. The Court held that the act of annexation did not, of its own force, require indictment by grand jury and a trial by a Sixth Amendment jury. Implicit in this holding was the assumption that such indictment and trial were not constitutionally required in Hawaii. This assumption was based on a recognition that the act should not be construed as "imposing upon the islands every provision of a Constitution, which must have been unfamiliar to a large number of their inhabitants, and for which no previous preparation had been made. . . ." Id. at 190 U. S. 215 -216. [ Footnote 2/7 ] For a statement of the applicable law before the question arose with respect to lands outside the continental limits of the United States, see Thompson v. Utah, 170 U. S. 343 , 170 U. S. 347 : "It is equally beyond question that the provisions of the National Constitution relating to trials by jury for crimes and to criminal prosecutions apply to the Territories of the United States." But see Mormon Church v. United States, 136 U. S. 1 , 136 U. S. 44 : "Doubtless Congress, in legislating for the Territories, would be subject to those fundamental limitations in favor of personal rights which are formulated in the Constitution and its amendments; but these limitations would exist rather by inference and the general spirit of the Constitution from which Congress derives all its powers than by any express and direct application of its provisions." [ Footnote 2/8 ] This feeling about the "non-Christian" nations of the world was widely shared. In his "Jubilee of the Constitution," delivered on the 50th anniversary of the inauguration of George Washington, John Quincy Adams said: "The Declaration of Independence recognised the European law of nations, as practised among Christian nations, to be that by which they considered themselves bound, and of which they claimed the rights. This system is founded upon the principle that the state of nature between men and between nations is a state of peace. But there was a Mahometan law of nations which considered the state of nature as a state of war -- an Asiatic law of nations which excluded all foreigners from admission within the territories of the state. . . . With all these different communities, the relations of the United States were, from the time when they had become an independent nation, variously modified according to the operation of those various laws. It was the purpose of the Constitution of the United States to establish justice over them all." Adams, Jubilee of the Constitution, 73. See also the views of Secretary of State Hamilton Fish quoted in 351 U.S. at 351 U. S. 484 -485. [ Footnote 2/9 ] On August 1, 1956, the President approved Public Law 856, 84th Cong., 2d Sess., providing for the relinquishment by the President, at such time as he deemed appropriate, of the consular jurisdiction of the United States in Morocco, the only foreign country where United States consuls continued to exercise such jurisdiction. 70 Stat. 773. The jurisdiction was relinquished on October 6, 1956. N.Y. Times, Oct. 8, 1956, p. 1, col. 6. MR. JUSTICE HARLAN, concurring in the result. I concur in the result, on the narrow ground that, where the offense is capital, Article 2(11) [ Footnote 3/1 ] cannot constitutionally be applied to the trial of civilian dependents of members of the armed forces overseas in times of peace. Since I am the only one among today's majority who joined in the Court's opinions of June 11, 1956, which sustained the court-martial jurisdiction in these cases, 351 U. S. 470 , 351 U. S. 487 , I think it appropriate to state the reasons which led to my voting, first, to rehear these cases, 352 U.S. 901, and, now, to strike down that jurisdiction. I The petitions for rehearing which were filed last summer afforded an opportunity for a greater degree of reflection upon the difficult issues involved in these cases than, at least for me, was possible in the short interval between the argument and decision of the cases in the closing days of last Term. [ Footnote 3/2 ] As a result I became satisfied that this court-martial jurisdiction could, in any event, not be sustained upon the reasoning of our prior opinion. In essence, that reasoning was this: (1) under In re Ross, 140 U. S. 453 , and the Insular Cases, [ Footnote 3/3 ] the requirement of a trial by an Article III court and the other specific safeguards of Article III and the Fifth and Sixth Amendments are not applicable to the trial of American citizens outside the United States; (2) there is thus no express constitutional prohibition against the use of courts-martial Page 354 U. S. 66 for such trials abroad; (3) the choice of a court-martial in cases such as these was "reasonable" because of these women's connection with the military, and therefore satisfied due process; (4) the court-martial jurisdiction was thus constitutional. I have since concluded that this analysis was not sound, for two reasons: (1) The underlying premise of the prior opinion, it seems to me, is that, under the Constitution, the mere absence of a prohibition against an asserted power, plus the abstract reasonableness of its use, is enough to establish the existence of the power. I think this is erroneous. The powers of Congress, unlike those of the English Parliament, are constitutionally circumscribed. Under the Constitution, Congress has only such powers as are expressly granted or those that are implied as reasonably necessary and proper to carry out the granted powers. Hence, the constitutionality of the statute here in question must be tested not by abstract notions of what is reasonable "in the large," so to speak, but by whether the statute, as applied in these instances, is a reasonably necessary and proper means of implementing a power granted to Congress by the Constitution. To say that the validity of the statute may be rested upon the inherent "sovereign powers" of this country in its dealings with foreign nations seems to me to be no more than begging the question. As I now see it, the validity of this court-martial jurisdiction must depend upon whether the statute, as applied to these women, can be justified as an exercise of the power, granted to Congress by Art. I, § 8, cl. 14 of the Constitution, "To make Rules for the Government and Regulation of the land and naval Forces." I can find no other constitutional power to which this statute can properly be related. I therefore think that we were wrong last Term in considering that we need not decide Page 354 U. S. 67 the case in terms of the Article I power. In my opinion, that question squarely confronts us. (2) I also think that we were mistaken in interpreting Ross and the Insular Cases as standing for the sweeping proposition that the safeguards of Article III and the Fifth and Sixth Amendments automatically have no application to the trial of American citizens outside the United States, no matter what the circumstances. Aside from the questionable wisdom of mortgaging the future by such a broad pronouncement, I am satisfied that our prior holding swept too lightly over the historical context in which this Court upheld the jurisdiction of the old consular and territorial courts in those cases. I shall not repeat what my brother FRANKFURTER has written on this subject, with which I agree. But I do not go as far as my brother BLACK seems to go on this score. His opinion, if I understand it correctly, in effect discards Ross and the Insular Cases as historical anomalies. I believe that those cases, properly understood, still have vitality, and that, for reasons suggested later, which differ from those given in our prior opinions, they have an important bearing on the question now before us. II I come then to the question whether this court-martial jurisdiction can be justified as an exercise of Congress' Article I power to regulate the armed forces. At the outset, I cannot accept the implication of my brother BLACK's opinion that this Article I power was intended to be unmodified by the Necessary and Proper Clause of the Constitution, [ Footnote 3/4 ] and that, therefore, this power Page 354 U. S. 68 is incapable of expansion under changing circumstances. The historical evidence, in fact, shows quite the opposite. True, the records of the time indicate that the Founders shared a deep fear of an unchecked military branch. But what they feared was a military branch unchecked by the legislature, and susceptible of use by an arbitrary executive power. [ Footnote 3/5 ] So far as I know, there is no evidence at all that the Founders intended to limit the power of the people, as embodied in the legislature, to make such laws in the regulation of the land and naval forces as are necessary to the proper functioning of those forces. In other words, there is no indication that any special limitation on the power of Congress, as opposed to the power of the executive, was subsumed in the grant of power to govern the land and naval forces. Alexander Hamilton, indeed, stated exactly the opposite: [ Footnote 3/6 ] "The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and, for this reason, no constitutional shackles can wisely be Page 354 U. S. 69 imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances, and ought to be under the direction of the same councils which are appointed to preside over the common defense." " * * * *" ". . . Shall the Union be constituted the guardian of the common safety? Are fleets and armies and revenues necessary to this purpose? The government of the Union must be empowered to pass all laws, and to make all regulations which have relation to them. . . ." " * * * *" "Every view we may take of the subject, as candid inquirers after truth, will serve to convince us that it is both unwise and dangerous to deny the federal government an unconfined authority as to all those objects which are intrusted to its management. . . . A government the constitution of which renders it unfit to be trusted with all the powers which a free people ought to delegate to any government would be an unsafe and improper depositary of the national interests. Wherever these can with propriety be confided, the coincident powers may safely accompany them." No less an authority than Chief Justice Marshall, in McCulloch v. Maryland , 4 Wheat. 316, has taught us that the Necessary and Proper Clause is to be read with all the powers of Congress, so that, "where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department, and to tread on legislative ground." Id. at 17 U. S. 423 . Page 354 U. S. 70 I think it no answer to say, as my brother BLACK does, that, "having run up against the steadfast bulwark of the Bill of Rights, the Necessary and Proper Clause cannot extend the scope of [Art. I] Clause 14." For that simply begs the question as to whether there is such a collision, an issue to which I address myself below. For analytical purposes, I think it useful to break down the issue before us into two questions: first, is there a rational connection between the trial of these army wives by court-martial and the power of Congress to make rules for the governance of the land and naval forces; in other words, is there any initial power here at all? Second, if there is such a rational connection, to what extent does this statute, though reasonably calculated to subserve an enumerated power, collide with other express limitations on congressional power; in other words, can this statute, however appropriate to the Article I power looked at in isolation, survive against the requirements of Article III and the Fifth and Sixth Amendments? I recognize that these two questions are ultimately one and the same, since the scope of the Article I power is not separable from the limitations imposed by Article III and the Fifth and Sixth Amendments. Nevertheless I think it will make for clarity of analysis to consider them separately. A I assume for the moment, therefore, that we may disregard other limiting provisions of the Constitution and examine the Article I power in isolation. So viewed, I do not think the courts-martial of these army wives can be said to be an arbitrary extension of congressional power. It is suggested that, historically, the Article I power was intended to embody a rigid and unchangeable self-limitation, namely, that it could apply only to those Page 354 U. S. 71 in the actual service of the armed forces. [ Footnote 3/7 ] I cannot agree that this power has any such rigid content. First of all, the historical evidence presented by the Government convinces me that, at the time of the adoption of the Constitution, military jurisdiction was not thought to be rigidly limited to uniformed personnel. The fact is that it was traditional for "retainers to the camp" to be subjected to military discipline, that civilian dependents encamped with the armies were traditionally regarded as being in that class, and that the concept was not strictly limited to times of war. [ Footnote 3/8 ] Indeed, the British, who are no less sensitive than we to maintaining the supremacy of civil justice, have recently enacted a law comparable to the statute involved here. [ Footnote 3/9 ] Thinking, as I do, that Article I, still taking it in isolation, must be viewed as supplemented by the Necessary and Proper Clause, I cannot say that the court-martial jurisdiction here involved has no rational connection with the stated power. The Government, it seems to me, has Page 354 U. S. 72 made a strong showing that the court-martial of civilian dependents abroad has a close connection to the proper and effective functioning of our overseas military contingents. There is no need to detail here the various aspects of this connection, which have been well dealt with in the dissenting opinion of my brother CLARK. Suffice it to say that, to all intents and purposes, these civilian dependents are part of the military community overseas, [ Footnote 3/10 ] are so regarded by the host country, and must be subjected to the same discipline if the military commander is to have the power to prevent activities which would jeopardize the security and effectiveness of his command. [ Footnote 3/11 ] The matter has been well summarized by General Palmer, Commander of the Eighth Army, stationed in Japan: "Jurisdiction by courts-martial over all civilians accompanying the Army overseas is essential because of the manner in which U.S. Armed Forces personnel Page 354 U. S. 73 live in their overseas military communities. In this command, almost all personnel serving in or accompanying the U.S. Armed Forces live in or near separate, closely knit U.S. military communities which are basically under the control, administration and supervision of the local U.S. Commander, who is, in turn, responsive to the normal military chain of command. This responsibility which is vested in the military commander extends to the administration and supervision of the operation and use of all facilities and major activities of the community, including the proper control of occupants and users which is inherent in such supervision overseas. In the absence of a supporting judicial system responsive to the same government as the military, such as is the case existing in the United States and overseas possessions, and as the law enforcement requirement stems primarily from the immediate unalterable responsibilities of the overseas commander and his subordinate commanders, it is essential that the commander be vested with the law enforcement authority commensurate with his responsibilities." It seems to me clear on such a basis that these dependents, when sent overseas by the Government, become pro tanto a part of the military community. I cannot say, therefore, that it is irrational or arbitrary for Congress to subject them to military discipline. I do not deal now, of course, with the problem of alternatives to court-martial jurisdiction; all that needs to be established at this stage is that, viewing Art. I, § 8, cl. 14 in isolation, subjection of civilian dependents overseas to court-martial jurisdiction can in no wise be deemed unrelated to the power of Congress to make all necessary and proper laws to insure the effective governance of our overseas land and naval forces. Page 354 U. S. 74 B I turn now to the other side of the coin. For no matter how practical and how reasonable this jurisdiction might be, it still cannot be sustained if the Constitution guarantees to these army wives a trial in an Article III court, with indictment by grand jury and jury trial as provided by the Fifth and Sixth Amendments. We return, therefore, to the Ross question: to what extent do these provisions of the Constitution apply outside the United States? As I have already stated, I do not think that it can be said that these safeguards of the Constitution are never operative without the United States, regardless of the particular circumstances. On the other hand, I cannot agree with the suggestion that every provision of the Constitution must always be deemed automatically applicable to American citizens in every part of the world. For Ross and the Insular Cases do stand for an important proposition, one which seems to me a wise and necessary gloss on our Constitution. The proposition is, of course, not that the Constitution "does not apply" overseas, but that there are provisions in the Constitution which do not necessarily apply in all circumstances in every foreign place. In other words, it seems to me that the basic teaching of Ross and the Insular Cases is that there is no rigid and abstract rule that Congress, as a condition precedent to exercising power over Americans overseas, must exercise it subject to all the guarantees of the Constitution, no matter what the conditions and considerations are that would make adherence to a specific guarantee altogether impracticable and anomalous. To take but one example: Balzac v. Porto Rico, 258 U. S. 298 , is not good authority for the proposition that jury trials need never be provided for American citizens tried by Page 354 U. S. 75 the United States abroad; but the case is good authority for the proposition that there is no rigid rule that jury trial must always be provided in the trial of an American overseas if the circumstances are such that trial by jury would be impractical and anomalous. In other words, what Ross and the Insular Cases hold is that the particular local setting, the practical necessities, and the possible alternatives are relevant to a question of judgment, namely, whether jury trial should be deemed a necessary condition of the exercise of Congress' power to provide for the trial of Americans overseas. I think the above thought is crucial in approaching the cases before us. Decision is easy if one adopts the constricting view that these constitutional guarantees as a totality do or do not "apply" overseas. But, for me, the question is which guarantees of the Constitution should apply in view of the particular circumstances, the practical necessities, and the possible alternatives which Congress had before it. The question is one of judgment, not of compulsion. And so I agree with my brother FRANKFURTER that, in view of Ross and the Insular Cases, we have before us a question analogous, ultimately, to issues of due process; one can say, in fact, that the question of which specific safeguards of the Constitution are appropriately to be applied in a particular context overseas can be reduced to the issue of what process is "due" a defendant in the particular circumstances of a particular case. On this basis, I cannot agree with the sweeping proposition that a full Article III trial, with indictment and trial by jury, is required in every case for the trial of a civilian dependent of a serviceman overseas. The Government, it seems to me, has made an impressive showing that, at least for the run-of-the-mill offenses committed by dependents overseas, such a requirement would Page 354 U. S. 76 be as impractical and as anomalous as it would have been to require jury trial for Balzac in Porto Rico. [ Footnote 3/12 ] Again, I need not go into details, beyond stating that, except for capital offenses, such as we have here, to which, in my opinion, special considerations apply, I am by no means ready to say that Congress' power to provide for trial by court-martial of civilian dependents overseas is limited by Article III and the Fifth and Sixth Amendments. Page 354 U. S. 77 Where, if at all, the dividing line should be drawn among cases not capital need not now be decided. We are confronted here with capital offenses alone, and it seems to me particularly unwise now to decide more than we have to. Our far-flung foreign military establishments are a new phenomenon in our national life, and I think it would be unfortunate were we unnecessarily to foreclose, as my four brothers would do, our future consideration of the broad questions involved in maintaining the effectiveness of these national outposts, in the light of continuing experience with these problems. So far as capital cases are concerned, I think they stand on quite a different footing than other offenses. In such cases, the law is especially sensitive to demands for that procedural fairness which inheres in a civilian trial where the judge and trier of fact are not responsive to the command of the convening authority. I do not concede that whatever process is "due" an offender faced with a fine or a prison sentence necessarily satisfies the requirements of the Constitution in a capital case. The distinction is by no means novel, compare Powell v. Alabama, 287 U. S. 45 , with Betts v. Brady, 316 U. S. 455 ; nor is it negligible, being literally that between life and death. And, under what I deem to be the correct view of Ross and the Insular Cases, it is precisely the kind of distinction which plays a large role in the process of weighing the competing considerations which lead to sound judgment upon the question whether certain safeguards of the Constitution should be given effect in the trial of an American citizen abroad. In fact, the Government itself has conceded that one grave offense, treason, presents a special case: "The gravity of this offense is such that we can well assume that, whatever difficulties may be involved in trial far from the scene of the offense . . . , the trial should be in our courts." I see no reason for not applying the same principle to any case where a civilian Page 354 U. S. 78 dependent stands trial on pain of life itself. The number of such cases would appear to be so negligible that the practical problems of affording the defendant a civilian trial would not present insuperable problems. On this narrow ground, I concur in the result in these cases. [ Footnote 3/1 ] 50 U.S.C. § 552(11). [ Footnote 3/2 ] The cases were argued on May 3, 1956, and decided on June 11, 1956. [ Footnote 3/3 ] Downes v. Bidwell, 182 U. S. 244 ; Hawaii v. Mankichi, 190 U. S. 197 ; Dorr v. United States, 195 U. S. 138 ; Balzac v. Porto Rico, 258 U. S. 298 . [ Footnote 3/4 ] Article I, § 8, cl. 18 of the Constitution provides that Congress shall have the power "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the government of the United States, or in any Department or Officer thereof." [ Footnote 3/5 ] Thus, proposals to limit the size of the standing army in times of peace to a specific number of men in the Constitution were defeated at the Constitutional Convention. See 5 Elliot's Debates 442-443 ("no room for . . . distrust of the representatives of the people"). See also The Federalist, No. 24: "[T]he whole power of raising armies was lodged in the Legislature, not in the Executive; . . . this legislature was to be a popular body, consisting of the representatives of the people periodically elected. . . ." [ Footnote 3/6 ] The Federalist, No. 23. [ Footnote 3/7 ] To be sure, the opinion does "recognize that there might be circumstances where a person could be 'in' the armed services for purposes of [Art. I, § 8] Clause 14 even though he had not formally been inducted into the military, or did not wear a uniform." It continues, however, to state categorically that "wives, children and other dependents of servicemen cannot be placed in that category. . . ." [ Footnote 3/8 ] The essential element was thought to be not so much that there be war, in the technical sense, but rather that the forces and their retainers be "in the field." The latter concept, in turn, would seem to have extended to any area where the nature of the military position and the absence of civil authority made military control over the whole camp appropriate. See, in general, Blumenthal, Women Camp Followers of the American Revolution. The British history is the same. See, in particular, Samuel, Historical Account of the British Army and of the Law Military, pp. 691-692. [ Footnote 3/9 ] Army Act, 1955, 3 & 4 Eliz. II, c. 18, § 209, and see Fifth Schedule, id. at 219. [ Footnote 3/10 ] These dependents are taken abroad only because their presence is deemed necessary to the morale and proper functioning of our armies overseas. They are transported at government expense, carry passports identifying them as service dependents, are admitted to the host country without visas, use military payment certificates, and receive the benefit of army postal facilities and privileges. They enjoy the tax exemptions and customs benefits of the military. They are treated at service hospitals, their children go to schools maintained by the Government, and they share with the military the recreational facilities provided by the Government. They are housed and furnished heat, light, fuel, water, and telephone service by the military, as well as receiving transportation, food, and clothing from military sources. [ Footnote 3/11 ] This necessity is particularly acute with regard to peculiarly "military" and "local" offenses which must be dealt with swiftly and effectively. Thus, security regulations at these military installations must be enforced against civilian dependents as well as servicemen; the same is true of base traffic violations, black marketeering, and misuse of military customs and post-exchange privileges. [ Footnote 3/12 ] The practical circumstances requiring some sort of disciplinary jurisdiction have already been adverted to, supra, pp. 354 U. S. 71 -73. These circumstances take on weight when viewed in light of the alternatives available to Congress -- certainly a crucial question in weighing the need for dispensing with particular constitutional guarantees abroad. What are these alternatives? (1) One is to try all offenses committed by civilian dependents abroad in the United States. But the practical problems in the way of such a choice are obvious and overwhelming. To require the transportation home for trial of every petty black marketeer or violator of security regulations would be a ridiculous burden on the Government, quite aside from the problems of persuading foreign witnesses to make the trip and of preserving evidence. It can further be deemed doubtful in the extreme whether foreign governments would permit crimes punishable under local law to be tried thousands of miles away in the United States. (2) Civilian trial overseas by the United States also presents considerable difficulties. If juries are required, the problem of jury recruitment would be difficult. Furthermore, it is indeed doubtful whether some foreign governments would accede to the creation of extraterritorial United States civil courts within their territories -- courts which, by implication, would reflect on the fairness of their own tribunals, and which would smack unpleasantly of consular courts set up under colonial "capitulations." (3) The alternative of trial in foreign courts, in at least some instances, is no more palatable. Quite aside from the fact that, in some countries where we station troops, the protections granted to criminal defendants compare unfavorably with our own minimum standards, the fact would remain that many of the crimes involved -- particularly breaches of security -- are not offenses under foreign law at all, and thus would go completely unpunished. Add to this the undesirability of foreign police carrying out investigations in our military installations abroad, and it seems to me clear that this alternative does not commend itself. MR. JUSTICE CLARK, with whom MR. JUSTICE BURTON joins, dissenting. The Court today releases two women from prosecution though the evidence shows that they brutally killed their husbands, both American soldiers, while stationed with them in quarters furnished by our armed forces on its military installations in foreign lands. In turning these women free, it declares unconstitutional an important section of an Act of Congress governing our armed forces. Furthermore, four of my brothers would specifically overrule and two would impair the long-recognized vitality of an old and respected precedent in our law, the case of In re Ross, 140 U. S. 453 (1891), cited by this Court with approval in many opinions and as late as 1929 by a unanimous Court [ Footnote 4/1 ] in Ex parte Bakelite Corp., 279 U. S. 438 , 279 U. S. 451 . And finally, the Court reverses, sets aside, and overrules two majority opinions and judgments of this Court in these same cases, reported in 351 U.S. at 351 U. S. 470 and 351 U. S. 487 , and entered on June 11, 1956, less than 12 months ago. In substitute therefor, it enters no opinion whatever for the Court. It is unable to muster a majority. Instead, there are handed down three opinions. But, worst of all, it gives no authoritative guidance as to what, if anything, the Executive or the Congress may do to remedy the distressing situation in which they now find themselves. Page 354 U. S. 79 MR. JUSTICE BURTON and I remain convinced that the former opinions of the Court are correct, and that they set forth valid constitutional doctrine under the long-recognized cases of this Court. The opinions were neither written nor agreed to in haste, and they reflect the consensus of the majority, reached after thorough discussion at many conferences. In fact, the cases were here longer, both before and after argument, than many of the cases we decide. We adhere to the views there expressed, since we are convinced that, through them, we were neither "mortgaging the future," as is claimed, nor foreclosing the present, as does the judgment today. We do not include a discussion of the theory upon which those former judgments were entered, because we are satisfied with its handling in the earlier opinions. See 351 U.S. at 351 U. S. 470 and 351 U. S. 487 . I Before discussing the power of the Congress under Art. I, § 8, cl. 14, of the Constitution, it is well to take our bearings. These cases do not involve the jurisdiction of a military court-martial sitting within the territorial limits of the United States. Nor are they concerned with the power of the Government to make treaties, or the legal relationship between treaties and the Constitution. Nor are they concerned with the power of Congress to provide for the trial of Americans sojourning, touring, or temporarily residing in foreign nations. Essentially, we are to determine only whether the civilian dependents of American servicemen may constitutionally be tried by an American military court-martial in a foreign country for an offense committed in that country. Congress has provided in Article 2(11) of the Uniform Code of Military Justice, 64 Stat. 109, 50 U.S.C. § 552(11), that they shall be so tried in those countries with which we have an implementing treaty. The question therefore is whether Page 354 U. S. 80 this enactment is reasonably related to the power of Congress "To make Rules for the Government and Regulation of the land and naval Forces." U.S.Const., Art. I, § 8,cl. 14. Historically, the military has always exercised jurisdiction by court-martial over civilians accompanying armies in time of war. Over 40 years ago, this jurisdiction was declared by Congress to include "all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States." [ Footnote 4/2 ] Art. of War 2(d), 39 Stat. 651. Article 2(11) of the present Uniform Code of Military Justice was taken without material change from this provision of the Articles of War. At the time of enactment of the earlier provision, Congress was plainly concerned with the maintenance of discipline and morale of American expeditionary forces composed of both military and civilian personnel. As pointed out in the Senate Report to the Sixty-fourth Congress at the time Article 2(d) was adopted: "The existing articles are further defective in that they do not permit the disciplining of these three classes of camp followers in time of peace in places to which the civil jurisdiction of the United States does not extend and where it is contrary to international policy to subject such persons to the local jurisdiction, or where, for other reasons, the law of the local jurisdiction is not applicable, thus leaving these classes practically without liability to punishment for their unlawful acts under such circumstances -- as, for example, . . . where such forces so Page 354 U. S. 81 accompanied are engaged in the nonhostile occupation of foreign territory, as was the case during the intervention of 1906-7 in Cuba." S.Rep. No. 130, 64th Cong., 1st Sess. 37-38. Since that time, the power of Congress to make civilians amenable to military jurisdiction under such circumstances has been considered and sustained by this Court and other federal courts in a number of cases. In Madsen v. Kinsella, 343 U. S. 341 (1952), we sustained the jurisdiction of a military commission to try a civilian wife for the murder of her husband in Germany in 1949. Unlike Mrs. Smith, the petitioner in Madsen contended that a military court-martial had exclusive jurisdiction to try her pursuant to Article of War 2(d), the predecessor of Article 2(11). In upholding the constitutionality of trial by a military commission, we pointed out that its jurisdiction was concurrent with that of the military court-martial, 343 U.S. at 343 U. S. 345 , and that the jurisdiction of both stemmed directly from Article 2(d), 343 U.S. at 343 U. S. 361 . It is contended that no holding on the validity of court-martial jurisdiction over civilians was necessary to our decision in Madsen, and that the case itself is distinguishable because occupied territory was involved, and hence the action of Congress could be supported under the War Power. It is true that our reference to concurrent court-martial jurisdiction -- when both petitioner and the Government agreed to it -- was a concomitant to that decision, but our recognition of the power of Congress to authorize military trial of civilians under the circumstances provided for in Article 2(d) was essential to the judgment. 343 U.S. at 343 U. S. 361 . Madsen was factually very similar to the present case, and, in terms of the relevant considerations involved, it is practically indistinguishable. In Madsen, as here, the crime involved was murder of a serviceman by a dependent wife living as a civilian with Page 354 U. S. 82 our armed forces in a foreign country. In both cases, jurisdiction was exercised by a military tribunal pursuant to an Act of Congress authorizing such jurisdiction over all persons accompanying the armed forces outside the territorial jurisdiction of the United States. The distinction that, in one case, the trial was by court-martial, and in the other, by a military commission, is insubstantial. The contention that jurisdiction could be sustained in Madsen under the War Power of Congress, but that this power is unavailable to authorize jurisdiction in Smith, is likewise without merit. [ Footnote 4/3 ] Aside from the fact that this Court has never restricted so narrowly the action that Congress might take under the War Power, see Ashwander v. TVA, 297 U. S. 288 (1936), and Silesian-American Corp. v. Clark, 332 U. S. 469 (1947), there is as much, if not more, justification for employment of the War Power in Japan in 1952 as in Germany in 1949. At the time Mrs. Smith's crime was committed, Japan was the logistics and aviation base for actual hostilities then being waged in Korea, just across the Sea of Japan. And in 1949, Germany, after four years of peaceful and uneventful occupation, could hardly be considered an area where Congress could act only under its War Power. But the salient feature common to both countries was that the problems of maintaining control, morale, and discipline of our military contingents located there were substantially identical. These problems were not appreciably affected by the fact that one instance occurred during an occupation, and the other shortly after a peace treaty had been signed. Earlier, in Duncan v. Kahanamoku, 327 U. S. 304 , 327 U. S. 313 (1946), this Court had recognized the "well established Page 354 U. S. 83 power of the military" to exercise jurisdiction over persons directly connected with the armed forces, and this power has been repeatedly recognized in cases decided in the lower federal courts. See United States ex rel. Mobiley v. Handy, 176 F.2d 491 (1949); Perlstein v. United States, 151 F.2d 167 (1945); Grewe v. France, 75 F. Supp. 433 (1948); In re Berue, 54 F. Supp. 252 (1944); Hines v. Mikell, 259 F. 28 (1919); Ex parte Jochen, 257 F. 200 (1919); Ex parte Falls, 251 F. 415 (1918); Ex parte Gerlach, 247 F. 616 (1917). See also United States v. Burney, 6 U.S.C.M.A. 776, 21 C.M.R. 98 (1956). In considering whether Article 2(11) is reasonably necessary to the power of Congress to provide for the government of the land and naval forces, we note as relevant certain other considerations. As a nation, we have found it necessary to the preservation of our security in the present day to maintain American forces in 63 foreign countries throughout the world. In recent years, the services have recognized that the presence of wives and families at many of these foreign bases is essential to the maintenance of the morale of our forces. This policy has received legislative approval and the tremendous expense to the Government involved in the transportation and accommodation of dependents overseas is considered money well spent. It is not for us to question this joint executive and legislative determination. The result, however, has been the creation of American communities of mixed civilian and military population on military bases throughout the world. These civilians are dependent on the military for food, housing, medical facilities, transportation, and protection. Often, they live in daily association in closely knit groups nearly isolated from their surroundings. It cannot be denied that disciplinary problems have been multiplied and complicated by this influx of civilians onto military bases, and Congress has provided that military personnel and civilians Page 354 U. S. 84 alike shall be governed by the same law administered by the same courts. Concerning the effect of civilian activities under such circumstances on the discipline and morale of the armed services, we have found no better statement than that of Judge Latimer of the United States Court of Military Appeals, where the constitutionality of Article 2(11) was upheld in the recent case of United States v. Burney, 6 U.S.C.M.A. 776, 21 C.M.R. 98 (1956). Referring to the combat readiness of an overseas command, Judge Latimer stated: "[I]t is readily ascertainable that black market transactions, trafficking in habit-forming drugs, unlawful currency circulation, promotion of illicit sex relations, and a myriad of other crimes which may be perpetrated by persons closely connected with one of the services could have a direct and forceful impact on the efficiency and discipline of the command. One need only view the volume of business transacted by military courts involving, for instance, the sale and use of narcotics in the Far East to be shocked into a realization of the truth of the previous statement. If the Services have no power within their own system to punish that type of offender, then indeed overseas crime between civilians and military personnel will flourish, and that amongst civilians will thrive unabated and untouched. A few civilians plying an unlawful trade in military communities can, without fail, impair the discipline and combat readiness of a unit. At best, the detection and prosecution of crime is a difficult and time-consuming business, and we have grave doubts that, in faraway lands, the foreign governments will help the cause of a military commander by investigating the seller or user of habit-forming drugs, or assist him in deterring Page 354 U. S. 85 American civilians from stealing from their compatriots, or their Government, or from misusing its property." 6 U.S.C.M.A. at 800, 21 C.M.R. at 122. In addition, it is reasonable to provide that the military commander who bears full responsibility for the care and safety of those civilians attached to his command should also have authority to regulate their conduct. Moreover, all members of an overseas contingent should receive equal treatment before the law. In their actual day-to-day living, they are a part of the same unique communities, and the same legal considerations should apply to all. There is no reason for according to one class a different treatment than is accorded to another. The effect of such a double standard on discipline, efficiency, and morale can easily be seen. In United States ex rel. Toth v. Quarles, 350 U. S. 11 (1955), the Court recognized this necessity. There, Art. I, § 8, cl. 14, was "given its natural meaning," and "would seem to restrict court-martial jurisdiction to persons who are actually members or part of the armed forces." (Emphasis added.) Id. at 15. The Court went on to say: "It is impossible to think that the discipline of the Army is going to be disrupted, its morale impaired, or its orderly processes disturbed, by giving ex servicemen the benefit of a civilian court trial when they are actually civilians. . . . Court-martial jurisdiction sprang from the belief that within the military ranks there is need for a prompt, ready-at-hand means of compelling obedience and order. But Army discipline will not be improved by court-martialing, rather than trying by jury, some civilian ex-soldier who has been wholly separated from the service for months, years or perhaps decades. Consequently considerations of discipline provide no excuse for new Page 354 U. S. 86 expansion of court-martial jurisdiction at the expense of the normal and constitutionally preferable system of trial by jury." Id. at 22-23. These women were as much "a part" of the military installation as were their husbands. Upon attack by an enemy, they would be so treated; all foreign governments so recognized them at all times; and, in addition, it has been clearly shown, unlike in Toth, that "the discipline of the Army is going to be disrupted, its morale impaired, or its orderly processes disturbed" by excluding them from the provisions of the Uniform Code. Every single one of our major military commanders over the world has filed a statement to this effect in this case. We should not substitute our views as to this necessity for the views of those charged with the responsibility of the protection of such far-flung outposts of the free world. The former minority, however, repudiates this underlying basis of the opinion in Toth, namely, that, where disciplinary measures are necessary to the regulation of the armed forces, the Congress does have constitutional power to make rules. In my opinion, the rules it has made are necessary to the regulation of the land and naval forces, and the means chosen, the Uniform Code, is in no way an unreasonable one. There remains the further consideration of whether this provision is " the least possible power adequate to the end proposed.'" United States ex rel. Toth v. Quarles, supra, at 350 U. S. 23 . This is the strict standard by which we determine the scope of constitutional power of Congress to authorize trial by court-martial. A study of the problem clearly indicates that the use of the Uniform Code of Military Justice was really the only practicable alternative available. While it was conceded before this Court that Congress could have established a system of territorial or consular Page 354 U. S. 87 courts to try offenses committed by civilian dependents abroad, the action of four of my brothers who would overrule and two who would impair the vitality of In re Ross, supra, places this alternative in jeopardy. Territorial courts have been used by our Government for over a century, and have always received the sanction of this Court until today. However, in the light of all of the opinions of the former minority here, the use of a system of territorial or consular courts is now out of the question. Moreover, Congress probably had concluded to abandon this system before the Uniform Code was adopted, since, a short time thereafter, the jurisdiction of the last of our territorial or consular courts was terminated. 70 Stat. 773. Another alternative the Congress might have adopted was the establishment of federal courts pursuant to Article III of the Constitution. These constitutional courts would have to sit in each of the 63 foreign countries where American troops are stationed at the present time. Aside from the fact that the Constitution has never been interpreted to compel such an undertaking, it would seem obvious that it would be manifestly impossible. The problem of the use of juries in common law countries alone suffices to illustrate this. Obviously, the jury could not be limited to those who live within the military installation. To permit this would be a sham. A jury made up of military personnel would be tantamount to the personnel of a court-martial to which the former minority objects. A jury composed of civilians residing on the military installation is subject to the same criticism. If the jury is selected from among the local populace, how would the foreign citizens be forced to attend the trial? And perchance if they did attend, language barriers in non-English-speaking countries would be nigh insurmountable. Personally, I would much prefer, as did Mrs. Madsen, that my case be tried before a Page 354 U. S. 88 military court-martial of my own countrymen. Moreover, we must remember that the agreement of the foreign country must be obtained before any American court could sit in its territory. In non-common law countries, if such courts were permitted to sit -- a doubtful possibility -- our jury system would be tossed about like a cork on unsettled waters. Likewise, trial of offenders by an Article III court in this country, perhaps workable in some cases, is equally impracticable as a general solution to the problem. The hundreds of petty cases involving black-market operations, narcotics, immorality, and the like, could hardly be brought here for prosecution even if the Congress and the foreign nation involved authorized such a procedure. Aside from the tremendous waste of the time of military personnel and the resultant disruptions, as well as the large expenditure of money necessary to bring witnesses and evidence to the United States, the deterrent effect of the prosecution would be nil because of the delay and distance at which it would be held. Furthermore, compulsory process is an essential to any system of justice. The attendance of foreign nationals as witnesses at a judicial proceeding in this country could rest only on a voluntary basis, and depositions could not be required. As a matter of international law, such attendance could never be compelled, and the court in such a proceeding would be powerless to control this vital element in its procedure. In short, this solution could only result in the practical abdication of American judicial authority over most of the offenses committed by American civilians in foreign countries. The only alternative remaining -- probably the alternative that the Congress will now be forced to choose -- is that Americans committing offenses on foreign soil be tried by the courts of the country in which the offense is committed. Foreign courts have exclusive jurisdiction Page 354 U. S. 89 under the principles of international law, and many nations enjoy concurrent jurisdiction with the American military authorities pursuant to Article VII of the Agreement Regarding Status of Forces of Parties to the North Atlantic Treaty. [ Footnote 4/4 ] Where the American military authorities do have jurisdiction, it is only by mutual agreement with the foreign sovereign concerned and pursuant to carefully drawn agreements conditioned on trial by the American military authorities. Typical of these agreements was the one concluded between the United States and Japan on February 28, 1952, and in force at the time one of these cases arose. Under this and like agreements, the jurisdiction so ceded to the United States military courts will surely be withdrawn if the services are impotent to exercise it. It is clear that trial before an American court-martial in which the fundamentals of due process are observed is preferable to leaving American servicemen and their dependents to the widely varying standards of justice in foreign courts throughout the world. Under these circumstances, it is untenable to say that Congress could have exercised a lesser power adequate to the end proposed. II My brothers who are concurring in the result seem to find some comfort in that, for the present they void an Act of Congress only as to capital cases. I find no distinction in the Constitution between capital and other cases. In fact, at argument, all parties admitted there could be no valid difference. My brothers are careful not to say that they would uphold the Act as to offenses less than capital. They unfortunately leave that decision for Page 354 U. S. 90 another day. This is disastrous to proper judicial administration, as well as to law enforcement. The Congress and the Executive Department are entitled to know whether a court-martial may be constitutionally utilized to try an offense less than capital. If so, then all that is necessary is to eliminate capital punishment insofar as Article 2(11) offenses are concerned. I deeply regret that the former minority does not, now that it has become the majority, perform the high duty that circumstance requires. Both the Congress and the Executive are left only to conjecture as to whether they should "sack" Article 2(11) and require all dependents to return and remain within this country or simply eliminate capital punishment from all offenses under the Article. The morale of our troops may prevent the former, and certainly the abstention of this Court prohibits the latter. All that remains is for the dependents of our soldiers to be prosecuted in foreign courts, an unhappy prospect not only for them but for all of us. [ Footnote 4/1 ] The Court was composed of Chief Justice Taft and Associate Justices Holmes, Van Devanter, McReynolds, Brandeis, Sutherland, Butler, Sanford, and Stone. Mr. Justice Van Devanter wrote the opinion for the Court. [ Footnote 4/2 ] An interesting and authoritative treatment of court-martial jurisdiction over camp followers is found in Blumenthal, Women Camp Followers of the American Revolution (1952). It points out many instances where women, not in the armed services, were subjected to a court-martial long after the war had ended. This was not taken to be an "astronomical doctrine" either in our forces or abroad. [ Footnote 4/3 ] In this connection see " Madsen v. Kinsella -- Landmark and Guidepost in Law of Military Occupation," by John M. Raymond, Assistant Legal Adviser, Department of State, 47 Am.J.Int'l L. 300 (1953) [ Footnote 4/4 ] NATO Status of Forces Agreement, T.I.A.S. 2846 (signed in London on July 19, 1951), 4 U.S. Treaties and Other International Agreements 1792.

In the case of Reid v. Covert, the United States Supreme Court decided that civilian dependents of military personnel cannot be tried by a military court-martial in capital cases when accompanying the armed forces overseas during peacetime. The Court concluded that the United States must act within the limitations of the Constitution, including the Fifth and Sixth Amendments, when dealing with its citizens abroad. The power of Congress to regulate the military does not extend to civilians, and only courts of law have the authority to try civilians for offenses against the United States. This decision affirmed the protection of specific constitutional rights for civilians, even in the context of military presence overseas.

Role of Courts

Cooper v. Aaron

https://supreme.justia.com/cases/federal/us/358/1/

U.S. Supreme Court Cooper v. Aaron, 358 U.S. 1 (1958) Cooper v. Aaron No. 1 Argued September 11, 1958 Decided September 12, 1958 358 U.S. 1 ast|>* Opinion announced September 29, 1958 358 U.S. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT Syllabus Under a plan of gradual desegregation of the races in the public schools of Little Rock, Arkansas, adopted by petitioners and approved by the courts below, respondents, Negro children, were ordered admitted to a previously all-white high school at the beginning of the 1957-1958 school year. Due to actions by the Legislature and Governor of the State opposing desegregation, and to threats of mob violence resulting therefrom, respondents were unable to attend the school until troops were sent and maintained there by the Federal Government for their protection; but they Page 358 U. S. 2 attended the school for the remainder of that school year. Finding that these events had resulted in tensions, bedlam, chaos and turmoil in the school, which disrupted the educational process, the District Court, in June, 1958, granted petitioners' request that operation of their plan of desegregation be suspended for two and one-half years, and that respondents be sent back to segregated schools. The Court of Appeals reversed. Held: The judgment of the Court of Appeals is affirmed, and the orders of the District Court enforcing petitioners' plan of desegregation are reinstated, effective immediately. Pp. 358 U. S. 4 -20. 1. This Court cannot countenance a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court's considered interpretation of the United States Constitution in Brown v. Board of Education, 347 U. S. 483 . P. 358 U. S. 4 . 2. This Court rejects the contention that it should uphold a suspension of the Little Rock School Board's plan to do away with segregated public schools in Little Rock until state laws and efforts to upset and nullify its holding in the Brown case have been further challenged and tested in the courts. P. 358 U. S. 4 . 3. In many locations, obedience to the duty of desegregation will require the immediate general admission of Negro children, otherwise qualified as students for their appropriate classes at particular schools. P. 358 U. S. 7 . 4. If, after analysis of the relevant factors (which, of course, excludes hostility to racial desegregation), a District Court concludes that justification exists for not requiring the present nonsegregated admission of all qualified Negro children to public schools, it should scrutinize the program of the school authorities to make sure that they have developed arrangements pointed toward the earliest practicable completion of desegregation, and have taken appropriate steps to put their program into effective operation. P. 358 U. S. 7 . 5. The petitioners stand in this litigation as the agents of the State, and they cannot assert their good faith as an excuse for delay in implementing the respondents' constitutional rights when vindication of those rights has been rendered difficult or impossible by the actions of other state officials. Pp. 358 U. S. 15 -16. 6. The constitutional rights of respondents are not to be sacrificed or yielded to the violence and disorder which have followed Page 358 U. S. 3 upon the actions of the Governor and Legislature, and law and order are not here to be preserved by depriving the Negro children of their constitutional rights. P. 358 U. S. 16 . 7. The constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executives or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted "ingeniously or ingenuously." Pp. 358 U. S. 16 -17. 8. The interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." P. 358 U. S. 18 . 9. No state legislator or executive or judicial officer can war against the Constitution without violating his solemn oath to support it. P. 358 U. S. 18 . 10. State support of segregated schools through any arrangement, management, funds or property cannot be squared with the command of the Fourteenth Amendment that no State shall deny to any person within its jurisdiction the equal protection of the laws. P. 358 U. S. 19 . 257 F.2d 33, affirmed. Page 358 U. S. 4 Opinion of the Court by THE CHIEF JUSTICE, MR. JUSTICE BLACK, MR. JUSTICE FRANKFURTER, MR. JUSTICE DOUGLAS, MR. JUSTICE BURTON, MR. JUSTICE CLARK, MR. JUSTICE HARLAN, MR. JUSTICE BRENNAN, and MR. JUSTICE WHITTAKER. As this case reaches us, it raises questions of the highest importance to the maintenance of our federal system of government. It necessarily involves a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court's considered interpretation of the United States Constitution. Specifically, it involves actions by the Governor and Legislature of Arkansas upon the premise that they are not bound by our holding in Brown v. Board of Education, 347 U. S. 483 . That holding was that the Fourteenth Amendment forbids States to use their governmental powers to bar children on racial grounds from attending schools where there is state participation through any arrangement, management, funds or property. We are urged to uphold a suspension of the Little Rock School Board's plan to do away with segregated public schools in Little Rock until state laws and efforts to upset and nullify our holding in Brown v. Board of Education have been further challenged and tested in the courts. We reject these contentions. The case was argued before us on September 11, 1958. On the following day, we unanimously affirmed the judgment of the Court of Appeals for the Eighth Circuit, 257 F.2d 33, which had reversed a judgment of the District Court for the Eastern District of Arkansas, 163 F. Supp. 13 . The District Court had granted the application of the petitioners, the Little Rock School Board and School Superintendent, to suspend for two and one-half years the operation of the School Board's court-approved desegregation program. In order that the School Board Page 358 U. S. 5 might know, without doubt, its duty in this regard before the opening of school, which had been set for the following Monday, September 15, 1958, we immediately issued the judgment, reserving the expression of our supporting views to a later date.** This opinion of all of the members of the Court embodies those views. The following are the facts and circumstances so far as necessary to show how the legal questions are presented. On May 17, 1954, this Court decided that enforced racial segregation in the public schools of a State is a denial of the equal protection of the laws enjoined by the Fourteenth Amendment. Brown v. Board of Education , Page 358 U. S. 6 347 U. S. 483 . The Court postponed, pending further argument, formulation of a decree to effectuate this decision. That decree was rendered May 31, 1955. Brown v. Board of Education, 349 U. S. 294 . In the formulation of that decree, the Court recognized that good faith compliance with the principles declared in Brown might, in some situations, "call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision." Id. at 349 U. S. 300 . The Court went on to state: "Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them." "While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems." 349 U.S. at 349 U. S. 300 -301. Page 358 U. S. 7 Under such circumstances, the District Courts were directed to require "a prompt and reasonable start toward full compliance," and to take such action as was necessary to bring about the end of racial segregation in the public schools "with all deliberate speed." Ibid. Of course, in many locations, obedience to the duty of desegregation would require the immediate general admission of Negro children, otherwise qualified as students for their appropriate classes at particular schools. On the other hand, a District Court, after analysis of the relevant factors (which, of course, excludes hostility to racial desegregation), might conclude that justification existed for not requiring the present nonsegregated admission of all qualified Negro children. In such circumstances, however, the Court should scrutinize the program of the school authorities to make sure that they had developed arrangements pointed toward the earliest practicable completion of desegregation, and had taken appropriate steps to put their program into effective operation. It was made plain that delay in any guise in order to deny the constitutional rights of Negro children could not be countenanced, and that only a prompt start, diligently and earnestly pursued, to eliminate racial segregation from the public schools could constitute good faith compliance. State authorities were thus duty bound to devote every effort toward initiating desegregation and bringing about the elimination of racial discrimination in the public school system. On May 20, 1954, three days after the first Brown opinion, the Little Rock District School Board adopted, and on May 23, 1954, made public, a statement of policy entitled "Supreme Court Decision -- Segregation in Public Schools." In this statement, the Board recognized that "It is our responsibility to comply with Federal Constitutional Requirements, and we intend to do so when the Supreme Court of the United States outlines the method to be followed. " Page 358 U. S. 8 Thereafter, the Board undertook studies of the administrative problems confronting the transition to a desegregated public school system at Little Rock. It instructed the Superintendent of Schools to prepare a plan for desegregation, and approved such a plan on May 24, 1955, seven days before the second Brown opinion. The plan provided for desegregation at the senior high school level (grades 10 through 12) as the first stage. Desegregation at the junior high and elementary levels was to follow. It was contemplated that desegregation at the high school level would commence in the fall of 1957, and the expectation was that complete desegregation of the school system would be accomplished by 1963. Following the adoption of this plan, the Superintendent of Schools discussed it with a large number of citizen groups in the city. As a result of these discussions, the Board reached the conclusion that "a large majority of the residents" of Little Rock were of "the belief . . . that the Plan, although objectionable in principle" from the point of view of those supporting segregated schools, "was still the best for the interests of all pupils in the District." Upon challenge by a group of Negro plaintiffs desiring more rapid completion of the desegregation process, the District Court upheld the School Board's plan, Aaron v. Cooper, 143 F. Supp. 855 . The Court of Appeals affirmed, 243 F.2d 361. Review of that judgment was not sought here. While the School Board was thus going forward with its preparation for desegregating the Little Rock school system, other state authorities, in contrast, were actively pursuing a program designed to perpetuate in Arkansas the system of racial segregation which this Court had held violated the Fourteenth Amendment. First came, in November, 1956, an amendment to the State Constitution flatly commanding the Arkansas General Assembly to oppose "in every Constitutional manner the Unconstitutional Page 358 U. S. 9 desegregation decisions of May 17, 1954, and May 31, 1955, of the United States Supreme Court," Ark.Const.Amend. 44, and, through the initiative, a pupil assignment law, Ark.Stats. §§ 80-1519 to 80-1524. Pursuant to this state constitutional command, a law relieving school children from compulsory attendance at racially mixed schools, Ark.Stats. § 80-1525, and a law establishing a State Sovereignty Commission, Ark.Stats. §§ 6-801 to 6-824, were enacted by the General Assembly in February, 1957. The School Board and the Superintendent of Schools nevertheless continued with preparations to carry out the first stage of the desegregation program. Nine Negro children were scheduled for admission in September, 1957, to Central High School, which has more than two thousand students. Various administrative measures, designed to assure the smooth transition of this first stage of desegregation, were undertaken. On September 2, 1957, the day before these Negro students were to enter Central High, the school authorities were met with drastic opposing action on the part of the Governor of Arkansas, who dispatched units of the Arkansas National Guard to the Central High School grounds and placed the school "off limits" to colored students. As found by the District Court in subsequent proceedings, the Governor's action had not been requested by the school authorities, and was entirely unheralded. The findings were these: "Up to this time [September 2], no crowds had gathered about Central High School and no acts of violence or threats of violence in connection with the carrying out of the plan had occurred. Nevertheless, out of an abundance of caution, the school authorities had frequently conferred with the Mayor and Chief of Police of Little Rock about taking appropriate Page 358 U. S. 10 steps by the Little Rock police to prevent any possible disturbances or acts of violence in connection with the attendance of the 9 colored students at Central High School. The Mayor considered that the Little Rock police force could adequately cope with any incidents which might arise at the opening of school. The Mayor, the Chief of Police, and the school authorities made no request to the Governor or any representative of his for State assistance in maintaining peace and order at Central High School. Neither the Governor nor any other official of the State government consulted with the Little Rock authorities about whether the Little Rock police were prepared to cope with any incidents which might arise at the school, about any need for State assistance in maintaining peace and order, or about stationing the Arkansas National Guard at Central High School." Aaron v. Cooper, 156 F. Supp. 220 , 225. The Board's petition for postponement in this proceeding states: "The effect of that action [of the Governor] was to harden the core of opposition to the Plan and cause many persons who theretofore had reluctantly accepted the Plan to believe there was some power in the State of Arkansas which, when exerted, could nullify the Federal law and permit disobedience of the decree of this [District] Court, and, from that date, hostility to the Plan was increased, and criticism of the officials of the [School] District has become more bitter and unrestrained." The Governor's action caused the School Board to request the Negro students on September 2 not to attend the high school "until the legal dilemma was solved." The next day, September 3, 1957, the Board petitioned the District Court for instructions, and the court, after a hearing, found that the Board's Page 358 U. S. 11 request of the Negro students to stay away from the high school had been made because of the stationing of the military guards by the state authorities. The court determined that this was not a reason for departing from the approved plan, and ordered the School Board and Superintendent to proceed with it. On the morning of the next day, September 4, 1957, the Negro children attempted to enter the high school, but, as the District Court later found, units of the Arkansas National Guard, "acting pursuant to the Governor's order, stood shoulder to shoulder at the school grounds and thereby forcibly prevented the 9 Negro students . . . from entering," as they continued to do every school day during the following three weeks. 156 F. Supp. at 225. That same day, September 4, 1957, the United States Attorney for the Eastern District of Arkansas was requested by the District Court to begin an immediate investigation in order to fix responsibility for the interference with the orderly implementation of the District Court's direction to carry out the desegregation program. Three days later, September 7, the District Court denied a petition of the School Board and the Superintendent of Schools for an order temporarily suspending continuance of the program. Upon completion of the United States Attorney's investigation, he and the Attorney General of the United States at the District Court's request, entered the proceedings and filed a petition on behalf of the United States, as amicus curiae, to enjoin the Governor of Arkansas and officers of the Arkansas National Guard from further attempts to prevent obedience to the court's order. After hearings on the petition, the District Court found that the School Board's plan had been obstructed by the Governor through the use of National Guard troops, and granted a preliminary injunction on September Page 358 U. S. 12 20, 1957, enjoining the Governor and the officers of the Guard from preventing the attendance of Negro children at Central High School, and from otherwise obstructing or interfering with the orders of the court in connection with the plan. 156 F. Supp. 220 , affirmed, Faubus v. United States, 254 F.2d 797. The National Guard was then withdrawn from the school. The next school day was Monday, September 23, 1957. The Negro children entered the high school that morning under the protection of the Little Rock Police Department and members of the Arkansas State Police. But the officers caused the children to be removed from the school during the morning because they had difficulty controlling a large and demonstrating crowd which had gathered at the high school. 163 F. Supp. at 16. On September 25, however, the President of the United States dispatched federal troops to Central High School, and admission of the Negro students to the school was thereby effected. Regular army troops continued at the high school until November 27, 1957. They were then replaced by federalized National Guardsmen who remained throughout the balance of the school year. Eight of the Negro students remained in attendance at the school throughout the school year. We come now to the aspect of the proceedings presently before us. On February 20, 1958, the School Board and the Superintendent of Schools filed a petition in the District Court seeking a postponement of their program for desegregation. Their position, in essence, was that, because of extreme public hostility, which they stated had been engendered largely by the official attitudes and actions of the Governor and the Legislature, the maintenance of a sound educational program at Central High School, with the Negro students in attendance, would be impossible. The Board therefore proposed that the Negro students already admitted to the school be withdrawn Page 358 U. S. 13 and sent to segregated schools, and that all further steps to carry out the Board's desegregation program be postponed for a period later suggested by the Board to be two and one-half years. After a hearing, the District Court granted the relief requested by the Board. Among other things, the court found that the past year at Central High School had been attended by conditions of "chaos, bedlam and turmoil"; that there were "repeated incidents of more or less serious violence directed against the Negro students and their property"; that there was "tension and unrest among the school administrators, the classroom teachers, the pupils, and the latters' parents, which inevitably had an adverse effect upon the educational program"; that a school official was threatened with violence; that a "serious financial burden" had been cast on the School District; that the education of the students had suffered "and under existing conditions will continue to suffer"; that the Board would continue to need "military assistance or its equivalent"; that the local police department would not be able "to detail enough men to afford the necessary protection"; and that the situation was "intolerable." 163 F. Supp. at 20-26. The District Court's judgment was dated June 20, 1958. The Negro respondents appealed to the Court of Appeals for the Eighth Circuit and also sought there a stay of the District Court's judgment. At the same time, they filed a petition for certiorari in this Court asking us to review the District Court's judgment without awaiting the disposition of their appeal to the Court of Appeals, or of their petition to that court for a stay. That we declined to do. 357 U. S. 566 . The Court of Appeals did not act on the petition for a stay, but, on August 18, 1958, after convening in special session on August 4 and hearing the appeal, reversed the District Court, 257 F.2d 33. On August 21, 1958, the Court of Appeals stayed its mandate Page 358 U. S. 14 to permit the School Board to petition this Court for certiorari. Pending the filing of the School Board's petition for certiorari, the Negro respondents, on August 23, 1958, applied to MR. JUSTICE WHITTAKER, as Circuit Justice for the Eighth Circuit, to stay the order of the Court of Appeals withholding its own mandate, and also to stay the District Court's judgment. In view of the nature of the motions, he referred them to the entire Court. Recognizing the vital importance of a decision of the issues in time to permit arrangements to be made for the 1958-1959 school year, see Aaron v. Cooper, 357 U. S. 566 , 357 U. S. 567 , we convened in Special Term on August 28, 1958, and heard oral argument on the respondents' motions, and also argument of the Solicitor General who, by invitation, appeared for the United States as amicus curiae, and asserted that the Court of Appeals' judgment was clearly correct on the merits, and urged that we vacate its stay forthwith. Finding that respondents' application necessarily involved consideration of the merits of the litigation, we entered an order which deferred decision upon the motions pending the disposition of the School Board's petition for certiorari, and fixed September 8, 1958, as the day on or before which such petition might be filed, and September 11, 1958, for oral argument upon the petition. The petition for certiorari, duly filed, was granted in open Court on September 11, 1958, 358 U. S. 29 , and further arguments were had, the Solicitor General again urging the correctness of the judgment of the Court of Appeals. On September 12, 1958, as already mentioned, we unanimously affirmed the judgment of the Court of Appeals in the per curiam opinion set forth in the margin at the outset of this opinion. In affirming the judgment of the Court of Appeals which reversed the District Court, we have accepted without reservation the position of the School Board, the Page 358 U. S. 15 Superintendent of Schools, and their counsel that they displayed entire good faith in the conduct of these proceedings and in dealing with the unfortunate and distressing sequence of events which has been outlined. We likewise have accepted the findings of the District Court as to the conditions at Central High School during the 1957-1958 school year, and also the findings that the educational progress of all the students, white and colored, of that school has suffered, and will continue to suffer if the conditions which prevailed last year are permitted to continue. The significance of these findings, however, is to be considered in light of the fact, indisputably revealed by the record before us, that the conditions they depict are directly traceable to the actions of legislators and executive officials of the State of Arkansas, taken in their official capacities, which reflect their own determination to resist this Court's decision in the Brown case and which have brought about violent resistance to that decision in Arkansas. In its petition for certiorari filed in this Court, the School Board itself describes the situation in this language: "The legislative, executive, and judicial departments of the state government opposed the desegregation of Little Rock schools by enacting laws, calling out troops, making statements villifying federal law and federal courts, and failing to utilize state law enforcement agencies and judicial processes to maintain public peace." One may well sympathize with the position of the Board in the face of the frustrating conditions which have confronted it, but, regardless of the Board's good faith, the actions of the other state agencies responsible for those conditions compel us to reject the Board's legal position. Had Central High School been under the direct management of the State itself, it could hardly be suggested Page 358 U. S. 16 that those immediately in charge of the school should be heard to assert their own good faith as a legal excuse for delay in implementing the constitutional rights of these respondents, when vindication of those rights was rendered difficult of impossible by the actions of other state officials. The situation here is in no different posture because the members of the School Board and the Superintendent of Schools are local officials; from the point of view of the Fourteenth Amendment, they stand in this litigation as the agents of the State. The constitutional rights of respondents are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and Legislature. As this Court said some 41 years ago in a unanimous opinion in a case involving another aspect of racial segregation: "It is urged that this proposed segregation will promote the public peace by preventing race conflicts. Desirable as this is, and important as is the preservation of the public peace, this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the federal Constitution." Buchanan v. Warley, 245 U. S. 60 , 245 U. S. 81 . Thus, law and order are not here to be preserved by depriving the Negro children of their constitutional rights. The record before us clearly establishes that the growth of the Board's difficulties to a magnitude beyond its unaided power to control is the product of state action. Those difficulties, as counsel for the Board forthrightly conceded on the oral argument in this Court, can also be brought under control by state action. The controlling legal principles are plain. The command of the Fourteenth Amendment is that no "State" shall deny to any person within its jurisdiction the equal protection of the laws. "A State acts by its legislative, its executive, or its judicial authorities. It can act in no Page 358 U. S. 17 other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, . . . denies or takes away the equal protection of the laws violates the constitutional inhibition; and, as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning." Ex parte Virginia, 100 U. S. 339 , 100 U. S. 347 . Thus, the prohibitions of the Fourteenth Amendment extend to all action of the State denying equal protection of the laws; whatever the agency of the State taking the action, see Virginia v. Rives, 100 U. S. 313 ; Pennsylvania v. Board of Directors of City Trusts of Philadelphia, 353 U. S. 230 ; Shelley v. Kraemer, 334 U. S. 1 ; or whatever the guise in which it is taken, see Derrington v. Plummer, 240 F.2d 922; Department of Conservation and Development v. Tate, 231 F.2d 615. In short, the constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes for segregation whether attempted "ingeniously or ingenuously." Smith v. Texas, 311 U. S. 128 , 311 U. S. 132 . What has been said, in the light of the facts developed, is enough to dispose of the case. However, we should answer the premise of the actions of the Governor and Legislature that they are not bound by our holding in the Brown case. It is necessary only to recall some basic constitutional propositions which are settled doctrine. Page 358 U. S. 18 Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison , 1 Cranch 137, 5 U. S. 177 , that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3 "to support this Constitution." Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers' "anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State. . . ." Ableman v. Booth , 21 How. 506, 62 U. S. 524 . No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: "If the legislatures of the several states may at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery. . . ." United States v. Peters , 5 Cranch 115, 9 U. S. 136 . A Governor who asserts a Page 358 U. S. 19 power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, "it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases. . . ." Sterling v. Constantin, 287 U. S. 378 , 287 U. S. 397 -398. It is, of course, quite true that the responsibility for public education is primarily the concern of the States, but it is equally true that such responsibilities, like all other state activity, must be exercised consistently with federal constitutional requirements as they apply to state action. The Constitution created a government dedicated to equal justice under law. The Fourteenth Amendment embodied and emphasized that ideal. State support of segregated schools through any arrangement, management, funds, or property cannot be squared with the Amendment's command that no State shall deny to any person within its jurisdiction the equal protection of the laws. The right of a student not to be segregated on racial grounds in schools so maintained is indeed so fundamental and pervasive that it is embraced in the concept of due process of law. Bolling v. Sharpe, 347 U. S. 497 . The basic decision in Brown was unanimously reached by this Court only after the case had been briefed and twice argued and the issues had been given the most serious consideration. Since the first Brown opinion, three new Justices have come to the Court. They are at one with the Justices still on the Court who participated in that basic decision as to its correctness, and that decision is now unanimously reaffirmed. The principles announced in that decision and the obedience of the States to them, according to the command of the Constitution, Page 358 U. S. 20 are indispensable for the protection of the freedoms guaranteed by our fundamental charter for all of us. Our constitutional ideal of equal justice under law is thus made a living truth. * NOTE: The per curiam opinion announced on September 12, 1958, and printed in a footnote, post, p. 358 U. S. 5 , applies not only to this case but also to No. 1, Misc., August Special Term, 1958, Aaron et al. v. Cooper et al., on application for vacation of order of the United States Court of Appeals for the Eighth Circuit staying issuance of its mandate, for stay of order of the United States District Court for the Eastern District of Arkansas, and for such other orders as petitioners may be entitled to, argued August 28, 1958. ** The following was the Court's per curiam opinion: "PER CURIAM." "The Court, having fully deliberated upon the oral arguments had on August 28, 1958, as supplemented by the arguments presented on September 11, 1958, and all the briefs on file, is unanimously of the opinion that the judgment of the Court of Appeals for the Eighth Circuit of August 18, 1958, 257 F.2d 33, must be affirmed. In view of the imminent commencement of the new school year at the Central High School of Little Rock, Arkansas, we deem it important to make prompt announcement of our judgment affirming the Court of Appeals. The expression of the views supporting our judgment will be prepared and announced in due course." "It is accordingly ordered that the judgment of the Court of Appeals for the Eighth Circuit, dated August 18, 1958, 257 F.2d 33, reversing the judgment of the District Court for the Eastern District of Arkansas, dated June 20, 1958, 163 F. Supp. 13 , be affirmed, and that the judgments of the District Court for the Eastern District of Arkansas, dated August 28, 1956, 143 F. Supp. 855 , and September 3, 1957, enforcing the School Board's plan for desegregation in compliance with the decision of this Court in Brown v. Board of Education, 347 U. S. 483 , be reinstated. It follows that the order of the Court of Appeals dated August 21, 1958, staying its own mandate is of no further effect." "The judgment of this Court shall be effective immediately, and shall be communicated forthwith to the District Court for the Eastern District of Arkansas." Concurring opinion of MR. JUSTICE FRANKFURTER. While unreservedly participating with my brethren in our joint opinion, I deem it appropriate also to deal individually with the great issue here at stake. By working together, by sharing in a common effort, men of different minds and tempers, even if they do not reach agreement, acquire understanding and thereby tolerance of their differences. This process was under way in Little Rock. The detailed plan formulated by the Little Rock School Board, in the light of local circumstances, had been approved by the United States District Court in Arkansas as satisfying the requirements of this Court's decree in Brown v. Board of Education, 349 U. S. 294 . The Little Rock School Board had embarked on an educational effort "to obtain public acceptance" of its plan. Thus, the process of the community's accommodation to new demands of law upon it, the development of habits of acceptance of the right of colored children to the equal protection of the laws guaranteed by the Constitution, Amend. 14, had peacefully and promisingly begun. The condition in Little Rock before this process was forcibly impeded by those in control of the government of Arkansas was thus described by the District Court, and these findings of fact have not been controverted: "14. Up to this time, no crowds had gathered about Central High School and no acts of violence or threats of violence in connection with the carrying out of the plan had occurred. Nevertheless, out of an abundance of caution, the school authorities had Page 358 U. S. 21 frequently conferred with the Mayor and Chief of Police of Little Rock about taking appropriate steps by the Little Rock police to prevent any possible disturbances or acts of violence in connection with the attendance of the 9 colored students at Central High School. The Mayor considered that the Little Rock police force could adequately cope with any incidents which might arise at the opening of school. The Mayor, the Chief of Police, and the school authorities made no request to the Governor or any representative of his for State assistance in maintaining peace and order at Central High School. Neither the Governor nor any other official of the State government consulted with the Little Rock authorities about whether the Little Rock police were prepared to cope with any incidents which might arise at the school, about any need for State assistance in maintaining peace and order, or about stationing the Arkansas National Guard at Central High School." 156 F. Supp. 220 , 225. All this was disrupted by the introduction of the state militia and by other obstructive measures taken by the State. The illegality of these interferences with the constitutional right of Negro children qualified to enter the Central High School is unaffected by whatever action or nonaction the Federal Government had seen fit to take. Nor is it neutralized by the undoubted good faith of the Little Rock School Board in endeavoring to discharge its constitutional duty. The use of force to further obedience to law is, in any event, a last resort, and one not congenial to the spirit of our Nation. But the tragic aspect of this disruptive tactic was that the power of the State was used not to sustain law, but as an instrument for thwarting law. The State of Arkansas is thus responsible for disabling one Page 358 U. S. 22 of its subordinate agencies, the Little Rock School Board, from peacefully carrying out the Board's and the State's constitutional duty. Accordingly, while Arkansas is not a formal party in these proceedings and a decree cannot go against the State, it is legally and morally before the Court. We are now asked to hold that the illegal, forcible interference by the State of Arkansas with the continuance of what the Constitution commands, and the consequences in disorder that it entrained, should be recognized as justification for undoing what the School Board had formulated, what the District Court in 1955 had directed to be carried out, and what was in process of obedience. No explanation that may be offered in support of such a request can obscure the inescapable meaning that law should bow to force. To yield to such a claim would be to enthrone official lawlessness, and lawlessness, if not checked, is the precursor of anarchy. On the few tragic occasions in the history of the Nation, North and South, when law was forcibly resisted or systematically evaded, it has signaled the breakdown of constitutional processes of government on which ultimately rest the liberties of all. Violent resistance to law cannot be made a legal reason for its suspension without loosening the fabric of our society. What could this mean but to acknowledge that disorder under the aegis of a State has moral superiority over the law of the Constitution? For those in authority thus to defy the law of the land is profoundly subversive not only of our constitutional system, but of the presuppositions of a democratic society. The State "must . . . yield to an authority that is paramount to the State." This language of command to a State is Mr. Justice Holmes', speaking for the Court that comprised Mr. Justice Van Devanter, Mr. Justice McReynolds, Mr. Justice Brandeis, Mr. Justice Sutherland, Page 358 U. S. 23 Mr. Justice Butler and Mr. Justice Stone. Wisconsin v. Illinois, 281 U. S. 179 , 281 U. S. 197 . When defiance of law, judicially pronounced, was last sought to be justified before this Court, views were expressed which are now especially relevant: "The historic phrase 'a government of laws, and not of men ' epitomizes the distinguishing character of our political society. When John Adams put that phrase into the Massachusetts Declaration of Rights, he was not indulging in a rhetorical flourish. He was expressing the aim of those who, with him, framed the Declaration of Independence and founded the Republic. 'A government of laws, and not of men,' was the rejection in positive terms of rule by fiat, whether by the fiat of governmental or private power. Every act of government may be challenged by an appeal to law, as finally pronounced by this Court. Even this Court has the last say only for a time. Being composed of fallible men, it may err. But revision of its errors must be by orderly process of law. The Court may be asked to reconsider its decisions, and this has been done successfully again and again throughout our history. Or what this Court has deemed its duty to decide may be changed by legislation, as it often has been, and, on occasion, by constitutional amendment." "But, from their own experience and their deep reading in history, the Founders knew that Law alone saves a society from being rent by internecine strife or ruled by mere brute power however disguised. 'Civilization involves subjection of force to reason, and the agency of this subjection is law.' (Pound, The Future of Law (1937) 47 Yale L.J. 1, 13.) The conception of a government by laws dominated the thoughts of those who founded this Page 358 U. S. 24 Nation and designed its Constitution, although they knew as well as the belittlers of the conception that laws have to be made, interpreted and enforced by men. To that end, they set apart a body of men who were to be the depositories of law, who, by their disciplined training and character and by withdrawal from the usual temptations of private interest, may reasonably be expected to be 'as free, impartial, and independent as the lot of humanity will admit.' So strongly were the framers of the Constitution bent on securing a reign of law that they endowed the judicial office with extraordinary safeguards and prestige. No one, no matter how exalted his public office or how righteous his private motive, can be judge in his own case. That is what courts are for." United States v. United Mine Workers, 330 U. S. 258 , 330 U. S. 307 -309 (concurring opinion). The duty to abstain from resistance to "the supreme Law of the Land," U.S.Const., Art. VI, � 2, as declared by the organ of our Government for ascertaining it, does not require immediate approval of it, nor does it deny the right of dissent. Criticism need not be stilled. Active obstruction or defiance is barred. Our kind of society cannot endure if the controlling authority of the Law as derived from the Constitution is not to be the tribunal specially charged with the duty of ascertaining and declaring what is "the supreme Law of the Land." See President Andrew Jackson's Message to Congress of January 16, 1833, II Richardson, Messages and Papers of the Presidents (1896 ed.) 610, 623. Particularly is this so where the declaration of what "the supreme Law" commands on an underlying moral issue is not the dubious pronouncement of a gravely divided Court, but is the unanimous conclusion of a long-matured deliberative process. The Constitution is not the formulation of the Page 358 U. S. 25 merely personal views of the members of this Court, nor can its authority be reduced to the claim that state officials are its controlling interpreters. Local customs, however hardened by time, are not decreed in heaven. Habits and feelings they engender may be counteracted and moderated. Experience attests that such local habits and feelings will yield, gradually though this be, to law and education. And educational influences are exerted not only by explicit teaching. They vigorously flow from the fruitful exercise of the responsibility of those charged with political official power, and from the almost unconsciously transforming actualities of living under law. The process of ending unconstitutional exclusion of pupils from the common school system -- "common" meaning shared alike -- solely because of color is no doubt not an easy, overnight task in a few States where a drastic alteration in the ways of communities is involved. Deep emotions have, no doubt, been stirred. They will not be calmed by letting violence loose -- violence and defiance employed and encouraged by those upon whom the duty of law observance should have the strongest claim -- nor by submitting to it under whatever guise employed. Only the constructive use of time will achieve what an advanced civilization demands and the Constitution confirms. For carrying out the decision that color alone cannot bar a child from a public school, this Court has recognized the diversity of circumstances in local school situations. But is it a reasonable hope that the necessary endeavors for such adjustment will be furthered, that racial frictions will be ameliorated, by a reversal of the process and interrupting effective measures toward the necessary goal? The progress that has been made in respecting the constitutional rights of the Negro children, according to the graduated plan sanctioned by the two Page 358 U. S. 26 lower courts, would have to be retraced, perhaps with even greater difficulty because of deference to forcible resistance. It would have to be retraced against the seemingly vindicated feeling of those who actively sought to block that progress. Is there not the strongest reason for concluding that to accede to the Board's request, on the basis of the circumstances that gave rise to it, for a suspension of the Board's nonsegregation plan, would be but the beginning of a series of delays calculated to nullify this Court's adamant decisions in the Brown case that the Constitution precludes compulsory segregation based on color in state-supported schools? That the responsibility of those who exercise power in a democratic government is not to reflect inflamed public feeling, but to help form its understanding, is especially true when they are confronted with a problem like a racially discriminating public school system. This is the lesson to be drawn from the heartening experience in ending enforced racial segregation in the public schools in cities with Negro populations of large proportions. Compliance with decisions of this Court, as the constitutional organ of the supreme Law of the Land, has often, throughout our history, depended on active support by state and local authorities. It presupposes such support. To withhold it, and indeed to use political power to try to paralyze the supreme Law, precludes the maintenance of our federal system as we have known and cherished it for one hundred and seventy years. Lincoln's appeal to "the better angels of our nature" failed to avert a fratricidal war. But the compassionate wisdom of Lincoln's First and Second Inaugurals bequeathed to the Union, cemented with blood, a moral heritage which, when drawn upon in times of stress and strife, is sure to find specific ways and means to surmount difficulties that may appear to be insurmountable.

In Cooper v. Aaron, the U.S. Supreme Court affirmed the duty of state officials to obey federal court orders regarding desegregation in public schools, regardless of opposition from state governments or threats of violence. The Court rejected any suspension of desegregation plans and emphasized the immediate need for general admission of qualified Negro children to previously all-white schools. The Court highlighted the responsibility of those in power to form public understanding, rather than reflect inflamed emotions, especially in addressing racially discriminating systems. Compliance with the Constitution and the Court's previous Brown v. Board of Education decision was paramount, and any resistance or defiance would undermine the nation's federal system.

Role of Courts

Coleman v. Miller

https://supreme.justia.com/cases/federal/us/307/433/

U.S. Supreme Court Coleman v. Miller, 307 U.S. 433 (1939) Coleman v. Miller No. 7 Argued October 10, 1938 Reargued April 17, 18, 1939 Decided June 5, 1939 307 U.S. 433 CERTIORARI TO THE SUPREME COURT OF KANSAS Syllabus 1. Upon submission of a resolution for ratification of a proposed amendment to the Federal Constitution, known as the Child Labor Amendment, twenty of the forty senators of the State of Kansas voted in favor of its adoption and twenty voted against it. The Lieutenant Governor, the presiding officer of the Senate, then cast his vote in favor of the resolution, and later it was adopted by the other house of the legislature on a vote of a majority of its members. The twenty senators who had voted against ratification, challenging the right of the Lieutenant Governor to cast the deciding vote in the Senate, and alleging that the proposed amendment had lost its vitality because of previous rejection by Kansas and other States and failure of ratification within a reasonable time, sought a writ of mandamus to compel the Secretary of the Senate to erase an endorsement on the resolution, to the effect that it had been adopted by the Senate, and to endorse thereon the words "was not passed," and to restrain the officers of the Senate and House of Representatives from signing the resolution and the Secretary of Kansas from authenticating it and delivering it to the Governor. The State entered its appearance, and the State Supreme Court entertained the action, sustained the right of the plaintiffs to maintain it, but overruled their contentions, upheld the ratification, and denied the writ. Held: (1) The questions decided were federal questions, arising under. Article V of the Constitution. P. 307 U. S. 437 . (2) The complaining senators, whose votes against ratification have been overridden and virtually held for naught, although, if they are right in their contentions, their votes would have been sufficient to defeat ratification, have a plain, direct and adequate interest in maintaining the effectiveness of their votes. They have set up and claimed a right and privilege under the Constitution of the United States to have their votes given effect, and the state court has denied that right and privilege. P. 307 U. S. 438 . (3) This Court has jurisdiction to review the decision of the state court by certiorari, under Jud.Code § 237(b). P. 307 U. S. 438 . Page 307 U. S. 434 2. The Court, being equally divided in opinion as to whether the question presents a justiciable controversy, or is a political question, expresses no opinion upon a contention that the Lieutenant Governor of Kansas was not a part of the "legislature," and, under Article V of the Federal Constitution, could not be permitted a deciding vote on the ratification of the proposed amendment. P. 307 U. S. 446 . 3. In accordance with the precedent of the Fourteenth Amendment, the efficacy of ratification of a proposed amendment to the Federal Constitution by a state legislature which had previously rejected the proposal is held a question for the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment. P. 307 U. S. 447 . 4. The legislature of Kansas having actually ratified the proposed Child Labor Amendment, this Court should not restrain the state officers from certifying the ratification to the Secretary of State because of an earlier rejection, and thus prevent the question from coming before the political departments. There is found no basis in either Constitution or statute for such judicial action. P. 307 U. S. 450 . 5. R.S. § 205; 5 U.S.C. 160, presupposes official notice to the Secretary of State when a state legislature has adopted a resolution of ratification. No warrant is seen for judicial interference with the performance of that duty. P. 307 U. S. 450 . 6. The Congress, in controlling the promulgation of the adoption of a constitutional amendment, has the final determination of the question whether, by lapse of time, its proposal of the amendment had lost its vitality before being adopted by the requisite number of legislatures. P. 307 U. S. 451 . 7. In determining whether a question falls within the category of political nonjusticiable questions, the appropriateness under our system of government of attributing finality to the action of the political departments, and also the lack of satisfactory criteria for a judicial determination, are dominant considerations. P. 307 U. S. 454 . 146 Kan. 390; 71 P.2d 518, reversed. Certiorari, 303 U.S. 632, to review a judgment of the Supreme Court of Kansas denying a writ of mandamus, applied for in that court by senators of the State and members of its House of Representatives for the purpose of compelling the Secretary of the Senate to erase an endorsement purporting to show that a resolution for the Page 307 U. S. 435 ratification of a proposal to amend the Federal Constitution had passed the Senate, and to restrain the officers of the Senate and the other house of the legislature from signing the resolution and the Secretary of Kansas from authenticating it and delivering it to the Governor. MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court. In June, 1924, the Congress proposed an amendment to the Constitution, known as the Child Labor Amendment. [ Footnote 1 ] In January, 1925, the Legislature of Kansas adopted a resolution rejecting the proposed amendment and a certified copy of the resolution was sent to the Secretary of State of the United States. In January, 1937, a resolution known as "Senate Concurrent Resolution Page 307 U. S. 436 No. 3" was introduced in the Senate of Kansas ratifying the proposed amendment. There were forty senators. When the resolution came up for consideration, twenty senators voted in favor of its adoption and twenty voted against it. The Lieutenant Governor, the presiding officer of the Senate, then cast his vote in favor of the resolution. The resolution was later adopted by the House of Representatives on the vote of a majority of its members. This original proceeding in mandamus was then brought in the Supreme Court of Kansas by twenty-one members of the Senate, including the twenty senators who had voted against the resolution, and three members of the house of representatives, to compel the Secretary of the Senate to erase an endorsement on the resolution to the effect that it had been adopted by the Senate and to endorse thereon the words "was not passed," and to restrain the officers of the Senate and House of Representatives from signing the resolution and the Secretary of Kansas from authenticating it and delivering it to the Governor. The petition challenged the right of the Lieutenant Governor to cast the deciding vote in the Senate. The petition also set forth the prior rejection of the proposed amendment, and alleged that, in the period from June, 1924, to March, 1927, the amendment had been rejected by both houses of the legislatures of twenty-six states, and had been ratified in only five states, and that, by reason of that rejection and the failure of ratification within a reasonable time, the proposed amendment had lost its vitality. An alternative writ was issued. Later the Senate passed a resolution directing the Attorney General to enter the appearance of the State and to represent the State as its interests might appear. Answers were filed Page 307 U. S. 437 on behalf of the defendants other than the State, and plaintiffs made their reply. The Supreme Court found no dispute as to the facts. The court entertained the action and held that the Lieutenant Governor was authorized to cast the deciding vote, that the proposed amendment retained its original vitality, and that the resolution "having duly passed the House of Representatives and the Senate, the act of ratification of the proposed amendment by the Legislature of Kansas was final and complete." The writ of mandamus was accordingly denied. 146 Kan. 390, 71 P.2d 518, 526. This Court granted certiorari. 303 U.S. 632. First. The jurisdiction of this Court. -- Our authority to issue the writ of certiorari is challenged upon the ground that petitioners have no standing to seek to have the judgment of the state court reviewed, and hence it is urged that the writ of certiorari should be dismissed. We are unable to accept that view. The state court held that it had jurisdiction; that "the right of the parties to maintain the action is beyond question." [ Footnote 2 ] The state court thus determined in substance that members of the legislature had standing to seek, and the court had jurisdiction to grant, mandamus to compel a proper record of legislative action. Had the questions been solely state questions, the matter would Page 307 U. S. 438 have ended there. But the questions raised in the instant case arose under the Federal Constitution, and these questions were entertained and decided by the state court. They arose under Article V of the Constitution, which alone conferred the power to amend and determined the manner in which that power could be exercised. Hawke v. Smith (No. 1), 253 U. S. 221 , 253 U. S. 227 ; Leser v. Garnett, 258 U. S. 130 , 258 U. S. 137 . Whether any or all of the questions thus raised and decided are deemed to be justiciable or political, they are exclusively federal questions, and not state questions. We find the cases cited in support of the contention that petitioners lack an adequate interest to invoke our jurisdiction to review to be inapplicable. [ Footnote 3 ] Here, the plaintiffs include twenty senators whose votes against ratification have been overridden and virtually held for naught although if they are right in their contentions their votes would have been sufficient to defeat ratification. We think that these senators have a plain, direct, and adequate interest in maintaining the effectiveness of their votes. Petitioners come directly within the provisions of the statute governing our appellate jurisdiction. They have set up and claimed a right and privilege under the Constitution of the United States to have their votes given effect, and the state court has denied that right and privilege. As the validity of a state statute was not assailed, the remedy by appeal was not available, Jud.Code, § 237(a), 28 U.S.C. § 344(a), and the appropriate remedy was by writ of certiorari, which we granted. Jud.Code, § 237(b), 28 U.S.C. § 344(b). The contention to the contrary is answered by our decisions in Hawke v. Smith, supra, and Leser v. Garnett, Page 307 U. S. 439 supra. In Hawke v. Smith, supra, the plaintiff in error, suing as a "citizen and elector of the State of Ohio, and as a taxpayer and elector of the County of Hamilton," on behalf of himself and others similarly situated, filed a petition for an injunction in the state court to restrain the Secretary of State from spending the public money in preparing and printing ballots for submission of a referendum to the electors on the question of the ratification of the Eighteenth Amendment to the Federal Constitution. A demurrer to the petition was sustained in the lower court, and its judgment was affirmed by the intermediate appellate court and the Supreme Court of the State. This Court entertained jurisdiction and, holding that the state court had erred in deciding that the State had authority to require the submission of the ratification to a referendum, reversed the judgment. In Leser v. Garnett, supra, qualified voters in the State of Maryland brought suit in the state court to have the names of certain women stricken from the list of qualified voters on the ground that the constitution of Maryland limited suffrage to men, and that the Nineteenth Amendment to the Federal Constitution has not been validly ratified. The state court took jurisdiction, and the Court of Appeals of the State affirmed the judgment dismissing the petition. We granted certiorari. On the question of our jurisdiction we said: "The petitioners contended, on several grounds, that the amendment had not become part of the federal Constitution. The trial court overruled the contentions, and dismissed the petition. Its judgment was affirmed by the Court of Appeals of the state, 139 Md. 46, 114 A. 840, and the case comes here on writ of error. That writ must be dismissed, but the petition for a writ of certiorari, also duly filed, is granted. The laws of Maryland authorized such a suit by a qualified voter against the board of registry. Whether the Nineteenth Amendment has become Page 307 U. S. 440 part of the federal Constitution is the question presented for decision." And, holding that the official notice to the Secretary of State, duly authenticated, of the action of the legislatures of the States, whose alleged ratifications were assailed, was conclusive upon the Secretary of State, and that his proclamation accordingly of ratification was conclusive upon the courts, we affirmed the judgment of the state court. That the question of our jurisdiction in Leser v. Garnett, supra, was decided upon deliberate consideration is sufficiently shown by the fact that there was a motion to dismiss the writ of error for the want of jurisdiction and opposition to the grant of certiorari. The decision is the more striking because, on the same day, in an opinion immediately preceding which was prepared for the Court by the same Justice, [ Footnote 4 ] jurisdiction had been denied to a federal court (the Supreme Court of the District of Columbia) of a suit by citizens of the United States, taxpayers, and members of a voluntary association organized to support the Constitution, in which it was sought to have the Nineteenth Amendment declared unconstitutional and to enjoin the Secretary of State from proclaiming its ratification and the Attorney General from taking steps to enforce it. Fairchild v. Hughes, 258 U. S. 126 . The Court held that the plaintiffs' alleged interest in the question submitted was not such as to afford a basis for the proceeding; that the plaintiffs had only the right possessed by every citizen "to require that the government be administered according to law, and that the public moneys be not wasted," and that this general right did not entitle a private citizen to bring such a suit as the one in question in the federal courts. [ Footnote 5 ] It Page 307 U. S. 441 would be difficult to imagine a situation in which the adequacy of the petitioners' interest to invoke our appellate jurisdiction in Leser v. Garnett, supra, could have been more sharply presented. The effort to distinguish that case on the ground that the plaintiffs were qualified voters in Maryland, and hence could complain of the admission to the registry of those alleged not to be qualified, is futile. The interest of the plaintiffs in Leser v. Garnett, supra, as merely qualified voters at general elections is certainly much less impressive than the interest of the twenty senators in the instant case. This is not a mere intra-parliamentary controversy, but the question relates to legislative action deriving its force solely from the provisions of the Federal Constitution, and the twenty senators were not only qualified to vote on the question of ratification, but their votes, if the Lieutenant Governor were excluded as not being a part of the legislature for that purpose, would have been decisive in defeating the ratifying resolution. We are of the opinion that Hawke v. Smith and Leser v. Garnett, supra, are controlling authorities, but, in view of the wide range the discussion has taken, we may refer to some other instances in which the question of what constitutes a sufficient interest to enable one to invoke our appellate jurisdiction has been involved. The principle that the applicant must show a legal interest in the controversy has been maintained. It has been applied repeatedly in cases where municipal corporations have challenged state legislation affecting their alleged rights and obligations. Being but creatures of the State, municipal corporations have no standing to invoke the contract clause or the provisions of the Fourteenth Amendment of the Constitution in opposition to the will of their creator. [ Footnote 6 ] But there Page 307 U. S. 442 has been recognition of the legitimate interest public officials and administrative commissions, federal and state, to resist the endeavor to prevent the enforcement of statutes in relation to which they have official duties. Under the Urgent Deficiencies Act, [ Footnote 7 ] the Interstate Commerce Commission, and commissions representing interested States which have intervened, are entitled as "aggrieved parties" to an appeal to this Court from a decree setting aside an order of the Interstate Commerce Commission, though the United States refuses to join in the appeal. Interstate Commerce Commission v. Oregon-Washington R. & N. Co., 288 U. S. 14 . So, this Court may grant certiorari, on the application of the Federal Trade Commission, to review decisions setting aside its orders. [ Footnote 8 ] Federal Trade Commission v. Curtis Publishing Co., 260 U. S. 568 . Analogous provisions authorize certiorari to review decisions against the National Labor Relations Board. [ Footnote 9 ] Labor Board v. Jones & Laughlin Corp., 301 U. S. 1 . Under § 266 of the Judicial Code, 28 U.S.C. § 380, where an injunction is sought to restrain the enforcement of a statute of a State or an order of its administrative board or commission, upon the ground of invalidity under the Federal Constitution, the right of direct appeal to this Court from the decree of the required three judges is accorded whether the injunction be granted or denied. Hence, in case the injunction is granted, the state board is entitled to appeal. See, for example, South Carolina Highway Department v. Barnwell Brothers, 303 U. S. 177 . The question of our authority to grant certiorari, on the application of state officers, to review decisions of state courts declaring state statutes, which these officers Page 307 U. S. 443 seek to enforce, to be repugnant to the Federal Constitution, has been carefully considered and our jurisdiction in that class of cases has been sustained. The original Judiciary Act of 1789 provided in § 25 [ Footnote 10 ] for the review by this Court of a judgment of a state court "where is drawn in question the validity . . . of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the constitution, treaties, or laws of the United States, and the decision is in favour of such their validity;" that is, where the claim of federal right had been denied. By the Act of December 23, 1914, [ Footnote 11 ] it was provided that this Court may review on certiorari decisions of state courts sustaining a federal right. The present statute governing our jurisdiction on certiorari contains the corresponding provision that this Court may exercise that jurisdiction "as well where the Federal claim is sustained as where it is denied." Jud.Code, § 7(b), 28 U.S.C. § 344(b). The plain purpose was to provide an opportunity, deemed to be important and appropriate, for the review of the decisions of state courts on constitutional questions however the state court might decide them. Accordingly, where the claim of a complainant that a state officer be restrained from enforcing a state statute because of constitutional invalidity is sustained by the state court, the statute enables the state officer to seek a reversal by this Court of that decision. In Blodgett v. Silberman, 277 U. S. 1 , 277 U. S. 7 , the Court granted certiorari on the application of the State Tax Commissioner of Connecticut, who sought review of the decision of the Supreme Court of Errors of the State so far as it denied the right created by its statute to tax the transfer of certain securities, which had been placed for safekeeping in New York, on the ground that they Page 307 U. S. 444 were not within the taxing jurisdiction of Connecticut. Entertaining jurisdiction, this Court reversed the judgment in that respect. Id., p. 277 U. S. 18 . The question received most careful consideration in the case of Boynton v. Hutchinson Gas Co., 291 U.S. 656, where the Supreme Court of Kansas had held a state statute to be repugnant to the Federal Constitution, and the Attorney General of the State applied for certiorari. His application was opposed upon the ground that he had merely an official interest in the controversy, and the decisions were invoked upon which the Government relies in challenging our jurisdiction in the instant case. [ Footnote 12 ] Because of its importance, and contrary to our usual practice, the Court directed oral argument on the question whether certiorari should be granted, and, after that argument, upon mature deliberation, granted the writ. The writ was subsequently dismissed, but only because of a failure of the record to show service of summons and severance upon the appellees in the state court who were not parties to the proceedings here. 292 U.S. 601. This decision with respect to the scope of our jurisdiction has been followed in later cases. In Morehead v. New York ex rel. Tipaldo, 298 U. S. 587 , we granted certiorari on an application by the warden of a city prison to review the decision of the Court of Appeals of the State on habeas corpus, ruling that the minimum wage law of the State violated the Federal Constitution. This Court decided the case on the merits. In Kelly v. Washington ex rel. Foss Co., 302 U. S. 1 , we granted certiorari, on the application of the state authorities charged with the enforcement of the state law relating to the inspection and regulation of vessels, to review the decision of the state court holding the statute invalid in its application to navigable waters. We concluded that the state act had a permissible field of operation, and the decision of the Page 307 U. S. 445 state court in holding the statute completely unenforceable in deference to federal law was reversed. This class of cases in which we have exercised our appellate jurisdiction on the application of state officers may be said to recognize that they have an equate interest in the controversy by reason of their duty to enforce the state statutes the validity of which has been drawn in question. In none of these cases could it be said that the state officers invoking our jurisdiction were sustaining any "private damage." While one who asserts the mere right of a citizen and taxpayer of the United States to complain of the alleged invalid outlay of public moneys has no standing to invoke the jurisdiction of the federal courts ( Frothingham v. Mellon, 262 U. S. 447 , 262 U. S. 480 , 262 U. S. 486 -487), the Court has sustained the more immediate and substantial right of a resident taxpayer to invoke the interposition of a court of equity to enjoin an illegal use of moneys by a municipal corporation. Crampton v. Zabriskie, 101 U. S. 601 , 101 U. S. 609 ; Frothingham v. Mellon, supra. In Heim v. McCall, 239 U. S. 175 , we took jurisdiction on a writ of error sued out by a property owner and taxpayer, who had been given standing in the state court, for the purpose of reviewing its decision sustaining the validity under the Federal Constitution of a state statute as applied to contracts for the construction of public works in the City of New York, the enforcement of which was alleged to involve irreparable loss to the city, and hence to be inimical to the interests of the taxpayer. In Smiley v. Holm, 285 U. S. 355 , we granted certiorari on the application of one who was an "elector," as well as a "citizen" and "taxpayer," and who assailed under the Federal Constitution a state statute establishing congressional districts. Passing upon the merits, we held that the function of a state legislature in prescribing the time, place, and manner of holding elections for representatives Page 307 U. S. 446 in Congress under Article I, § 4 was a lawmaking function in which the veto power of the state governor participates if, under the state constitution, the governor has that power in the course of the making of state laws, and accordingly reversed the judgment of the state court. We took jurisdiction on certiorari in a similar case from New York where the petitioners were "citizens and voters of the State" who had sought a mandamus to compel the Secretary of New York to certify that representatives in Congress were to be elected in the congressional districts as defined by a concurrent resolution of the Senate and Assembly of the legislature. There, the state court, construing the provision of the Federal Constitution as contemplating the exercise of the lawmaking power, had sustained the defense that the concurrent resolution was ineffective, as it had not been submitted to the Governor for approval, and refused the writ of mandamus. We affirmed the judgment. Koenig v. Flynn, 285 U. S. 375 . In the light of this course of decisions, we find no departure from principle in recognizing in the instant case that at least the twenty senators whose votes, if their contention were sustained, would have been sufficient to defeat the resolution ratifying the proposed constitutional amendment, have an interest in the controversy which, treated by the state court as a basis for entertaining and deciding the federal questions, is sufficient to give the Court jurisdiction to review that decision. Second. The participation of the Lieutenant Governor. -- Petitioners contend that, in the light of the powers and duties of the Lieutenant Governor and his relation to the Senate under the state constitution, as construed by the supreme court of the state, the Lieutenant Governor was not a part of the "legislature," so that, under Article V of the Federal Constitution, he could be permitted to have a deciding vote on the ratification of the Page 307 U. S. 447 proposed amendment when the senate was equally divided. Whether this contention presents a justiciable controversy, or a question which is political in its nature and hence not justiciable, is a question upon which the Court is equally divided, and therefore the Court expresses no opinion upon that point. Third. The effect of the previous rejection of the amendment and of the lapse of time since its submission. 1. The state court adopted the view expressed by text writers that a state legislature which has rejected an amendment proposed by the Congress may later ratify. [ Footnote 13 ] The argument in support of that view is that Article V says nothing of rejection, but speaks only of ratification, and provides that a proposed amendment shall be valid as part of the Constitution when ratified by three-fourths of the States; that the power to ratify is thus conferred upon the State by the Constitution, and, as a ratifying power, persists despite a previous rejection. The opposing view proceeds on an assumption that, if ratification by "Conventions" were prescribed by the Congress, a convention could not reject and, having adjourned sine die, be reassembled and ratify. It is also premised, in accordance with views expressed by text writers, [ Footnote 14 ] that ratification, if once given, cannot afterwards be rescinded, and the amendment rejected, and it is urged that the same effect in the exhaustion of the State's power to act should be ascribed to rejection; that a State can act "but once, either by convention or through its legislature." Page 307 U. S. 448 Historic instances are cited. In 1865, the Thirteenth Amendment was rejected by the legislature of New Jersey, which subsequently ratified it, but the question did not become important, as ratification by the requisite number of States had already been proclaimed. [ Footnote 15 ] The question did arise in connection with the adoption of the Fourteenth Amendment. The legislatures of Georgia, North Carolina, and South Carolina had rejected the amendment in November and December, 1866. [ Footnote 16 ] New governments were erected in those States (and in others) under the direction of Congress. [ Footnote 17 ] The new legislatures ratified the amendment, that of North Carolina on July 4, 1868, that of South Carolina on July 9, 1868, and that of Georgia on July 21, 1868. [ Footnote 18 ] Ohio and New Jersey first ratified and then passed resolutions withdrawing their consent. [ Footnote 19 ] As there were then thirty-seven States, twenty-eight were needed to constitute the requisite three-fourths. On July 9, 1868, the Congress adopted a resolution requesting the Secretary of State to communicate "a list of the States of the Union whose legislatures have ratified the fourteenth article of amendment," [ Footnote 20 ] and, in Secretary Seward's report, attention was called to the action of Ohio and New Jersey. [ Footnote 21 ] On July 20th, Secretary Seward issued a proclamation reciting the ratification by twenty-eight States, including North Carolina, South Carolina, Ohio, and New Jersey, and stating that it appeared that Ohio and New Jersey had since passed resolutions withdrawing their consent, and that "it is Page 307 U. S. 449 deemed a matter of doubt and uncertainty whether such resolutions are not irregular, invalid, and therefore ineffectual." The Secretary certified that, if the ratifying resolutions of Ohio and New Jersey were still in full force and effect notwithstanding the attempted withdrawal, the amendment had become a part of the Constitution. [ Footnote 22 ] On the following day the Congress adopted a concurrent resolution which, reciting that three-fourths of the States having ratified (the list including North Carolina, South Carolina, Ohio and New Jersey), [ Footnote 23 ] declared the Fourteenth Amendment to be a part of the Constitution, and that it should be duly promulgated as such by the Secretary of State. Accordingly, Secretary Seward, on July 28th, issued his proclamation embracing the States mentioned in the congressional resolution and adding Georgia. [ Footnote 24 ] Thus, the political departments of the Government dealt with the effect both of previous rejection and of attempted withdrawal and determined that both were ineffectual in the presence of an actual ratification. [ Footnote 25 ] While there were special circumstances, because of the action of the Congress in relation to the governments of the rejecting States (North Carolina, South Carolina and Georgia), these circumstances were not recited in proclaiming ratification, and the previous action taken in these States was set forth in the proclamation as actual previous rejections by the respective legislatures. This Page 307 U. S. 450 decision by the political departments of the Government as to the validity of the adoption of the Fourteenth Amendment has been accepted. We think that, in accordance with this historic precedent, the question of the efficacy of ratifications by state legislatures, in the light of previous rejection or attempted withdrawal, should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment. The precise question as now raised is whether, when the legislature of the State, as we have found, has actually ratified the proposed amendment, the Court should restrain the state officers from certifying the ratification to the Secretary of State because of an earlier rejection, and thus prevent the question from coming before the political departments. We find no basis in either Constitution or statute for such judicial action. Article V, speaking solely of ratification, contains no provision as to rejection. [ Footnote 26 ] Nor has the Congress enacted a statute relating to rejections. The statutory provision with respect to constitutional amendments is as follows: "Whenever official notice is received at the Department of State that any amendment proposed to the Constitution of the United States has been adopted according to the provisions of the Constitution, the Secretary of State shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States. [ Footnote 27 ] " Page 307 U. S. 451 The statute presupposes official notice to the Secretary of State when a state legislature has adopted a resolution of ratification. We see no warrant for judicial interference with the performance of that duty. See Leser v. Garnett, supra, p. 258 U. S. 137 . 2. The more serious question is whether the proposal by the Congress of the Amendment had lost its vitality through lapse of time, and hence it could not be ratified by the Kansas legislature in 1937. The argument of petitioners stresses the fact that nearly thirteen years elapsed between the proposal in 1924 and the ratification in question. It is said that, when the amendment was proposed, there was a definitely adverse popular sentiment, and that, at the end of 1925 there had been rejection by both houses of the legislatures of sixteen States, and ratification by only four States, and that it was not until about 1933 that an aggressive campaign was started in favor of the amendment. In reply, it is urged that Congress did not fix a limit of time for ratification, and that an unreasonably long time had not elapsed since the submission; that the conditions which gave rise to the amendment had not been eliminated; that the prevalence of child labor, the diversity of state laws, and the disparity in their administration, with the resulting competitive inequalities, continued to exist. Reference is also made to the fact that a number of the States have treated the amendment as still pending, and that, in the proceedings of the national government, there have been indications of the same view. [ Footnote 28 ] It is said that there were fourteen ratifications in 1933, four in 1935, one in 1936, and three in 1937. Page 307 U. S. 452 We have held that the Congress, in proposing an amendment, may fix a reasonable time for ratification. Dillon v. Gloss, 256 U. S. 368 . There, we sustained the action of the Congress in providing in the proposed Eighteenth Amendment that it should be inoperative unless ratified within seven years. [ Footnote 29 ] No limitation of time for ratification is provided in the instant case, either in the proposed amendment or in the resolution of submission. But petitioners contend that, in the absence of a limitation by the Congress, the Court can and should decide what is a reasonable period within which ratification may be had. We are unable to agree with that contention. It is true that, in Dillon v. Gloss, supra, the Court said that nothing was found in Article V which suggested that an amendment, once proposed, was to be open to ratification for all time, or that ratification in some States might be separated from that in others by many years, and yet be effective; that there was a strong suggestion to the contrary in that proposal and ratification were but succeeding steps in a single endeavor; that, as amendments were deemed to be prompted by necessity, they should be considered and disposed of presently, and that there is a fair implication that ratification must be sufficiently contemporaneous in the required number of States to reflect the will of the people in all sections at relatively the same period, and hence that ratification must be within some reasonable time after the proposal. These considerations were cogent reasons for the decision in Dillon v. Gloss, supra, that the Congress had the power to fix a reasonable time for ratification. But it does not follow that, whenever Congress has not exercised that power, the Court should take upon itself the responsibility of deciding what constitutes Page 307 U. S. 453 a reasonable time and determine accordingly the validity of ratifications. That question was not involved in Dillon v. Gloss, supra, and, in accordance with familiar principle, what was there said must be read in the light of the point decided. Where are to be found the criteria for such a judicial determination? None is to be found in Constitution or statute. In their endeavor to answer this question, petitioners' counsel have suggested that at least two years should be allowed; that six years would not seem to be unreasonably long; that seven years had been used by the Congress as a reasonable period; that one year, six months and thirteen days was the average time used in passing upon amendments which have been ratified since the first ten amendments; that three years, six months and twenty-five days has been the longest time used in ratifying. To this list of variables, counsel add that "the nature and extent of publicity and the activity of the public and of the legislatures of the several States in relation to any particular proposal should be taken into consideration." That statement is pertinent, but there are additional matters to be examined and weighed. When a proposed amendment springs from a conception of economic needs, it would be necessary, in determining whether a reasonable time had elapsed since its submission, to consider the economic conditions prevailing in the country, whether these had so far changed since the submission as to make the proposal no longer responsive to the conception which inspired it, or whether conditions were such as to intensify the feeling of need and the appropriateness of the proposed remedial action. In short, the question of a reasonable time in many cases would involve, as in this case it does involve, an appraisal of a great variety of relevant conditions, political, social, and economic, which can hardly be said to be within the appropriate range of evidence receivable in a court of justice Page 307 U. S. 454 and as to which it would be an extravagant extension of judicial authority to assert judicial notice as the basis of deciding a controversy with respect to the validity of an amendment actually ratified. On the other hand, these conditions are appropriate for the consideration of the political departments of the Government. The questions they involve are essentially political, and not justiciable. They can be decided by the Congress with the full knowledge and appreciation ascribed to the national legislature of the political, social, and economic conditions which have prevailed during the period since the submission of the amendment. Our decision that the Congress has the power under Article V to fix a reasonable limit of time for ratification in proposing an amendment proceeds upon the assumption that the question -- what is a reasonable time -- lies within the congressional province. If it be deemed that such a question is an open one when the limit has not been fixed in advance, we think that it should also be regarded as an open one for the consideration of the Congress when, in the presence of certified ratifications by three-fourths of the States, the time arrives for the promulgation of the adoption of the amendment. The decision by the Congress, in its control of the action of the Secretary of State, of the question whether the amendment had been adopted within a reasonable time would not be subject to review by the courts. It would unduly lengthen this opinion to attempt to review our decisions as to the class of questions deemed to be political and not justiciable. In determining whether a question falls within that category, the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination Page 307 U. S. 455 are dominant considerations. [ Footnote 30 ] There are many illustrations in the field of our conduct of foreign relations where there are "considerations of policy, considerations of extreme magnitude, and certainly entirely incompetent to the examination and decision of a court of justice." Ware v. Hylton , 3 Dall.199, 3 U. S. 260 . [ Footnote 31 ] Questions involving similar considerations are found in the government of our internal affairs. Thus, under Article IV, section 4, of the Constitution, providing that the United States "shall guarantee to every State in this Union a Republican Form of Government," we have held that it rests with the Congress to decide what government is the established one in a State and whether or not it is republican in form. Luther v. Borden , 7 How. 1, 48 U. S. 42 . In that case, Chief Justice Taney observed that "when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal." So it was held in the same case that, under the provision of the same Article for the protection of each of the States "against domestic violence," it rested with the Congress "to determine upon the means proper to be adopted to fulfill this guarantee." Id., p. 48 U. S. 43 . So, in Pacific Telephone Company v. Oregon, 223 U. S. 118 , we considered that questions arising under the guaranty of Page 307 U. S. 456 a republican form of government had long since been "definitely determined to be political and governmental," and hence that the question whether the government of Oregon had ceased to be republican in form because of a constitutional amendment by which the people reserved to themselves power to propose and enact laws independent of the legislative assembly, and also to approve or reject any act of that body, was a question for the determination of the Congress. It would be finally settled when the Congress admitted the senators and representatives of the State. For the reasons we have stated, which we think to be as compelling as those which underlay the cited decisions, we think that the Congress, in controlling the promulgation of the adoption of a constitutional amendment, has the final determination of the question whether, by lapse of time, its proposal of the amendment had lost its vitality prior to the required ratifications. The state officials should not be restrained from certifying to the Secretary of State the adoption by the legislature of Kansas of the resolution of ratification. As we find no reason for disturbing the decision of the Supreme Court of Kansas in denying the mandamus sought by petitioners, its judgment is affirmed, but upon the grounds stated in this opinion. Affirmed. [ Footnote 1 ] The text of the proposed amendment is as follows (43 Stat. 670): "Section 1. The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age." "Sec. 2. The power of the several States is unimpaired by this article except that the operation of State laws shall be suspended to the extent necessary to give effect to legislation enacted by the Congress." [ Footnote 2 ] The state court said on this point: "At the threshold we are confronted with the question raised by the defendants as to the right of the plaintiffs to maintain this action. It appears that, on March 30, 1937, the State Senate adopted a resolution directing the Attorney General to appear for the State of Kansas in this action. It further appears that, on April 3, 1937, on application of the Attorney General, an order was entered making the State of Kansas a party defendant. The state being a party to the proceedings, we think the right of the parties to maintain the action is beyond question. G.S.1935, 75-702; State ex rel. v. Public Service Comm'n, 135 Kan. 491, 11 P.2d 999." [ Footnote 3 ] See Caffrey v. Oklahoma Territory, 177 U. S. 346 ; Smith v. Indiana, 191 U. S. 138 ; Braxton County Court v. West Virginia, 208 U. S. 192 ; Marshall v. Dye, 231 U. S. 250 ; Stewart v. Kansas City, 239 U. S. 14 ; Columbus & Greenville Ry. Co. v. Miller, 283 U. S. 96 . [ Footnote 4 ] Mr. Justice Brandeis. [ Footnote 5 ] Id., pp. 258 U. S. 129 -130. See also Frothingham v. Mellon, 262 U. S. 447 , 262 U. S. 480 , 262 U. S. 486 -487. [ Footnote 6 ] Pawhuska v. Pawhuska Oil Co., 250 U. S. 394 ; Trenton v. New Jersey, 262 U. S. 182 ; Risty v. Chicago, R.I. & P. Ry. Co., 270 U. S. 378 ; Williams v. Mayor, 289 U. S. 36 . [ Footnote 7 ] Act of October 22, 1913, 38 Stat. 219; 28 U.S.C. §§ 47, 47a, 345. [ Footnote 8 ] 15 U.S.C. § 45; 28 U.S.C. § 348. [ Footnote 9 ] 29 U.S.C. § 160(e). See also, as to orders of Federal Communications Commission, 47 U.S.C. § 402(e). [ Footnote 10 ] 1 Stat. 73, 85, 86. [ Footnote 11 ] 38 Stat. 790; see also Act of September 6, 1916, 39 Stat. 726. [ Footnote 12 ] See cases cited in Note 3 [ Footnote 13 ] Jameson on Constitutional Conventions, §§ 576-581; Willoughby on the Constitution, § 329a. [ Footnote 14 ] Jameson, op. cit., §§ 582-584; Willoughby, op. cit., § 329a; Ames, "Proposed Amendments to the Constitution," House Doc. No. 353, Pt. 2, 54th Cong., 2d Sess., pp. 299, 300. [ Footnote 15 ] 13 Stat. 774, 775; Jameson, op. cit., § 576; Ames, op. cit., p. 300. [ Footnote 16 ] 15 Stat. 710. [ Footnote 17 ] Act of March 2, 1867, 14 Stat., p. 428. See White v. Hart , 13 Wall. 646, 80 U. S. 652 . [ Footnote 18 ] 15 Stat. 710. [ Footnote 19 ] 15 Stat. 707. [ Footnote 20 ] Cong.Globe, 40th Cong., 2d Sess., p. 3857. [ Footnote 21 ] Cong.Globe, 40th Cong., 2d Sess., p. 4070. [ Footnote 22 ] 15 Stat. 706, 707. [ Footnote 23 ] 15 Stat. 709, 710. [ Footnote 24 ] 15 Stat. 710, 711; Ames, op. cit., App. No. 1140, p. 377. [ Footnote 25 ] The legislature of New York, which had ratified the Fifteenth Amendment in 1869, attempted, in January, 1870, to withdraw its ratification, and, while this fact was stated in the proclamation by Secretary Fish of the ratification of the amendment, and New York was not needed to make up the required three-fourths, that State was included in the list of ratifying States. 16 Stat. 1131; Ames. op. cit., App. No. 1284, p. 388. [ Footnote 26 ] Compare Article VII. [ Footnote 27 ] 5 U.S.C. § 160. From Act of April 20, 1818, § 2, 3 Stat. 439; R.S. § 205. [ Footnote 28 ] Sen.Rep. 726, 75th Cong., 1st sess.; Sen.Rep. 788, 75th Cong., 1st sess.: Letter of the President on January 8, 1937, to the Governors of nineteen nonratifying States whose legislatures were to meet in that year, urging them to press for ratification. New York Times, January 9, 1937, p. 5. [ Footnote 29 ] 40 Stat. 1050. A similar provision was inserted in the Twenty-first Amendment. United States v. Chambers, 291 U. S. 217 , 291 U. S. 222 . [ Footnote 30 ] See Willoughby, op. cit., pp. 1326, et seq.; Oliver P. Field, "The Doctrine of Political Questions in the Federal Courts," 8 Minnesota Law Review, 485; Melville Fuller Weston, "Political Questions," 38 Harvard Law Review, 296. [ Footnote 31 ] See also United States v. Palmer , 3 Wheat. 610, 16 U. S. 634 ; Foster v. Neilson , 2 Pet. 253, 27 U. S. 309 ; Doe v. Braden , 16 How. 635, 57 U. S. 657 ; Terlinden v. Ames, 184 U. S. 270 , 184 U. S. 288 . Concurring opinion by MR. JUSTICE BLACK, in which MR. JUSTICE ROBERTS, MR. JUSTICE FRANKFURTER, and MR. JUSTICE DOUGLAS join. Although, for reasons to be stated by MR. JUSTICE FRANKFURTER, we believe this cause should be dismissed, the ruling of the Court just announced removes from the case the question of petitioners' standing to sue. Under the compulsion of that ruling, [ Footnote 2/1 ] MR. JUSTICE ROBERTS, Page 307 U. S. 457 MR. JUSTICE FRANKFURTER, MR. JUSTICE DOUGLAS, and I have participated in the discussion of other questions considered by the Court, and we concur in the result reached, but for somewhat different reasons. The Constitution grants Congress exclusive power to control submission of constitutional amendments. Final determination by Congress that ratification by three-fourths of the States has taken place "is conclusive upon the courts." [ Footnote 2/2 ] In the exercise of that power, Congress, of course, is governed by the Constitution. However, whether submission, intervening procedure, or Congressional determination of ratification conforms to the commands of the Constitution calls for decisions by a "political department" of questions of a type which this Court has frequently designated "political." And decision of a "political question" by the "political department" to which the Constitution has committed it "conclusively binds the judges, as well as all other officers, citizens, and subjects of . . . government." [ Footnote 2/3 ] Proclamation under authority of Congress that an amendment has been ratified will carry with it a solemn insurance by the Congress that ratification has taken place as the Constitution commands. Upon this assurance, a proclaimed amendment must be accepted as a part of the Page 307 U. S. 458 Constitution, leaving to the judiciary its traditional authority of interpretation. [ Footnote 2/4 ] To the extent that the Court's opinion in the present case even impliedly assumes a power to make judicial interpretation of the exclusive constitutional authority of Congress over submission and ratification of amendments, we are unable to agree. The State court below assumed jurisdiction to determine whether the proper procedure is being followed between submission and final adoption. However, it is apparent that judicial review of or pronouncements upon a supposed limitation of a "reasonable time" within which Congress may accept ratification; as to whether duly authorized State officials have proceeded properly in ratifying or voting for ratification; or whether a State may reverse its action once taken upon a proposed amendment, and kindred questions, are all consistent only with an ultimate control over the amending process in the courts. And this must inevitably embarrass the course of amendment by subjecting to judicial interference matters that we believe were intrusted by the Constitution solely to the political branch of government. The Court here treats the amending process of the Constitution, in some respects, as subject to judicial construction, in others as subject to the final authority of the Congress. There is no disapproval of the conclusion arrived at in Dillon v. Gloss, [ Footnote 2/5 ] that the Constitution impliedly requires that a properly submitted amendment must die unless ratified within a "reasonable time." Nor does the Court now disapprove its prior assumption of power to make such a pronouncement. And it is not made clear that only Congress has constitutional power to determine if there is any such implication in Article V of the Constitution. On the other hand, the Court's opinion declares that Congress has the exclusive power to Page 307 U. S. 459 decide the "political questions" of whether a State whose legislature has once acted upon a proposed amendment may subsequently reverse its position, and whether, in the circumstances of such a case as this, an amendment is dead because an "unreasonable" time has elapsed. Such division between the political and judicial branches of the government is made by Article V, which grants power over the amending of the Constitution to Congress alone. Undivided control of that process has been given by the Article exclusively and completely to Congress. The process itself is "political" in its entirety, from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control, or interference at any point. Since Congress has sole and complete control over the amending process, subject to no judicial review, the views of any court upon this process cannot be binding upon Congress, and insofar as Dillon v. Gloss, supra, attempts judicially to impose a limitation upon the right of Congress to determine final adoption of an amendment, it should be disapproved. If Congressional determination that an amendment has been completed and become a part of the Constitution is final, and removed from examination by the courts, as the Court's present opinion recognizes, surely the steps leading to that condition must be subject to the scrutiny, control, and appraisal of none save the Congress, the body having exclusive power to make that final determination. Congress, possessing exclusive power over the amending process, cannot be bound by, and is under no duty to accept, the pronouncements upon that exclusive power by this Court or by the Kansas courts. Neither State nor Federal courts can review that power. Therefore, any judicial expression amounting to more than mere acknowledgment of exclusive Congressional power over the political process of amendment is a mere admonition to Page 307 U. S. 460 the Congress in the nature of an advisory opinion, given wholly without constitutional authority. [ Footnote 2/1 ] Cf. Helvering v. Davis, 301 U. S. 619 , 301 U. S. 639 -640. [ Footnote 2/2 ] Leser v. Garnett, 258 U. S. 130 , 258 U. S. 137 . [ Footnote 2/3 ] Jones v. United States, 137 U. S. 202 , 137 U. S. 212 ; Foster & Elam v. Neilson , 2 Pet. 253, 27 U. S. 309 , 27 U. S. 314 ; Luther v. Borden , 7 How. 1, 48 U. S. 42 ; In re Cooper, 143 U. S. 472 , 143 U. S. 503 ; Pacific Telephone Co. v. Oregon, 223 U. S. 118 ; Davis v. Ohio, 241 U. S. 565 , 241 U. S. 569 ; "And, in this view, it is not material to inquire, nor is it the province of the court to determine, whether the executive ['political department'] be right or wrong. It is enough to know that, in the exercise of his constitutional functions, he has decided the question. Having done this under the responsibilities which belong to him, it is obligatory on the people and the government of the Union. . . . [T]his court have laid down the rule that the action of the political branches of the government, in a matter that belongs to them, is conclusive." Williams v. Suffolk Ins. Co. , 13 Pet. 415, 38 U. S. 420 . [ Footnote 2/4 ] Field v. Clark, 143 U. S. 649 , 143 U. S. 672 . [ Footnote 2/5 ] 256 U. S. 256 U.S. 368, 256 U. S. 375 . Opinion of MR. JUSTICE FRANKFURTER. It is the view of MR. JUSTICE ROBERTS, MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, and myself that the petitioners have no standing in this Court. In endowing this Court with "judicial Power," the Constitution presupposed an historic content for that phrase, and relied on assumption by the judiciary of authority only over issues which are appropriate for disposition by judges. The Constitution further explicitly indicated the limited area within which judicial action was to move -- however far-reaching the consequences of action within that area -- by extending "judicial Power" only to "Cases" and "Controversies." Both by what they said and by what they implied, the framers of the Judiciary Article gave merely the outlines of what were to them the familiar operations of the English judicial system and its manifestations on this side of the ocean before the Union. Judicial power could come into play only in matters that were the traditional concern of the courts at Westminster, and only if they arose in ways that to the expert feel of lawyers constituted "Cases" or "Controversies." It was not for courts to meddle with matters that require no subtlety to be identified as political issues. [ Footnote 3/1 ] And, even as to the kinds of questions which were the staple of judicial business, it was not for courts to pass upon them as abstract intellectual problems, but only if a concrete living contest between adversaries called for the arbitrament of law. Compare Muskrat v. United States, 219 U. S. 346 ; Tutun v. United States, 270 U. S. 568 ; Willing Chicago Page 307 U. S. 461 Auditorium Assn., 277 U. S. 274 ; Nashville, C. & St.L. Ry. Co. v. Wallace, 288 U. S. 249 . As abstractions, these generalities represent common ground among judges. Since, however, considerations governing the exercise of judicial power are not mechanical criteria, but derive from conceptions regarding the distribution of governmental powers in their manifold, changing guises, differences in the application of canons of jurisdiction have arisen from the beginning of the Court's history. [ Footnote 3/2 ] Conscious or unconscious leanings toward the serviceability of the judicial process in the adjustment of public controversies clothed in the form of private litigation inevitably affect decisions. For they influence awareness in recognizing the relevance of conceded doctrines of judicial self-limitation and rigor in enforcing them. Of all this the present controversy furnishes abundant illustration. Twenty-one members of the Kansas Senate and three members of its House of Representatives brought an original mandamus proceeding in the Supreme Court of that State to compel the Secretary of its Senate to erase an endorsement on Kansas "Senate Concurrent Resolution No. 3" of January 1937, to the effect that it had been passed by the Senate, and instead to endorse thereon the words "not passed." They also sought to restrain the officers of both Senate and House from authenticating and delivering it to the Governor of the State for transmission to the Secretary of the United States. These Kansas legislators resorted to their Supreme Court claiming that there was no longer an amendment open for ratification by Kansas, and that, in any event, it had not been ratified by the "legislature" of Page 307 U. S. 462 Kansas, the constitutional organ for such ratification. See Article V of the Constitution of the United States. The Kansas Supreme Court held that the Kansas legislators had a right to its judgment on these claims, but, on the merits, decided against them and denied a writ of mandamus. Urging that such denial was in derogation of their rights under the Federal Constitution, the legislators, having been granted certiorari to review the Kansas judgment, Coleman v. Miller, 303 U.S. 632, ask this Court to reverse it. Our power to do so is explicitly challenged by the United States as amicus curiae, but would, in any event, have to be faced. See Mansfield C. & L.M. Ry. Co. v. Swan, 111 U. S. 379 , 111 U. S. 382 . To whom and for what causes the courts of Kansas are open are matters for Kansas to determine. [ Footnote 3/3 ] But Kansas cannot define the contours of the authority of the federal courts, and more particularly of this Court. It is our ultimate responsibility to determine who may invoke our judgment and under what circumstances. Are these members of the Kansas legislature therefore entitled to ask us to adjudicate the grievances of which they complain? It is not our function, and it is beyond our power, to write legal essays or to give legal opinions, however solemnly requested and however great the national emergency. See the correspondence between Secretary of State Jefferson and Chief Justice Jay, 3 Johnson, Correspondence and Public Papers of John Jay, 486-89. Unlike the role allowed to judges in a few state courts and to the Supreme Court of Canada, our exclusive business is litigation. [ Footnote 3/4 ] The requisites of litigation are not satisfied Page 307 U. S. 463 when questions of constitutionality, though conveyed through the outward forms of a conventional court proceeding, do not bear special relation to a particular litigant. The scope and consequences of our doctrine of judicial review over executive and legislative action Page 307 U. S. 464 should make us observe fastidiously the bounds of the litigious process within which we are confined. [ Footnote 3/5 ] No matter how seriously infringement of the Constitution may be called into question, this is not the tribunal for its challenge except by those who have some specialized interest of their own to vindicate, apart from a political concern which belongs to all. Stearns v. Wood, 236 U. S. 75 ; Fairchild v. Hughes, 258 U. S. 126 . In the familiar language of jurisdiction, these Kansas legislators must have standing in this Court. What is their distinctive claim to be here not possessed by every Kansan? What is it that they complain of which could not be complained of here by all their fellow citizens? The answer requires analysis of the grievances which they urge. They say that it was beyond the power of the Kansas legislature, no matter who voted or how, to ratify the Child Labor Amendment, because, for Kansas, there was no Child Labor Amendment to ratify. Assuming that an amendment proposed by the Congress dies of inanition after what is to be deemed a "reasonable" time, they claim that, having been submitted in 1924, the proposed Child Labor Amendment was no longer alive in 1937. Or, if alive, it was no longer so for Kansas, because, by a prior resolution of rejection in 1925, Kansas had exhausted her power. In no respect, however, do these objections relate to any secular interest that pertains to these Kansas legislators apart from interests that belong to the entire commonalty of Kansas. The fact that these legislators are part of the ratifying mechanism, while the ordinary citizen of Kansas is not, is wholly irrelevant to this issue. On this aspect of the case, the problem would be exactly the same if all but one legislator had voted for ratification. Page 307 U. S. 465 Indeed, the claim that the Amendment was dead, or that it was not longer open to Kansas to ratify, is not only not an interest which belongs uniquely to these Kansas legislators; it is not even an interest special to Kansas. For it is the common concern of every citizen of the United States whether the Amendment is still alive or whether Kansas could be included among the necessary "three-fourths of the several States." These legislators have no more standing on these claims of unconstitutionality to attack "Senate Concurrent Resolution No. 3" than they would have standing here to attack some Kansas statute claimed by them to offend the Commerce Clause. By as much right could a member of the Congress who had voted against the passage of a bill because moved by constitutional scruples urge before this Court our duty to consider his arguments of unconstitutionality. Clearly a Kansan legislator would have no standing had be brought suit in a federal court. Can the Kansas Supreme Court transmute the general interest in these constitutional claims into the individualized legal interest indispensable here? No doubt the bounds of such legal interest have a penumbra which gives some freedom in judging fulfillment of our jurisdictional requirements. The doctrines affecting standing to sue in the federal courts will not be treated as mechanical yardsticks in assessing state court ascertainments of legal interest brought here for review. For the creation of vast domain of legal interests is in the keeping of the states, and, from time to time, state courts and legislators give legal protection to new individual interests. Thus, while the ordinary state taxpayer's suit is not recognized in the federal courts, it affords adequate standing for review of state decisions when so recognized by state courts. Coyle v. Smith, 221 U. S. 559 ; Heim v. McCall, 239 U. S. 175 . Page 307 U. S. 466 But it by no means follows that a state court ruling on the adequacy of legal interest is binding here. Thus, in Tyler v. Judges of the Court of Registration, 179 U. S. 405 , the notion was rejected that merely because the Supreme Judicial Court of Massachusetts found an interest of sufficient legal significance for assailing a statute, this Court must consider such claim. Again, this Court has consistently held that the interest of a state official in vindicating the Constitution of the United States gives him no legal standing here to attack the constitutionality of a state statute in order to avoid compliance with it. Smith v. Indiana, 191 U. S. 138 ; Braxton County Court v. West Virginia, 208 U. S. 192 ; Marshall v. Dye, 231 U. S. 250 ; Stewart v. Kansas City, 239 U. S. 14 . Nor can recognition by a state court of such an undifferentiated general interest confer jurisdiction on us. Columbus & Greenville Ry. Co. v. Miller, 283 U. S. 96 , reversing Miller v. Columbus & Greenville Ry., 154 Miss. 317, 122 So. 366. Contrariwise, of course, an official has a legally recognized duty to enforce a statute which he is charged with enforcing. And so, an official who is obstructed in the performance of his duty under a state statute because his state court found a violation of the United States Constitution may, since the Act of December 23, 1914, 38 Stat. 790, ask this Court to remove the fetters against enforcement of his duty imposed by the state court because of an asserted misconception of the Constitution. Such a situation is represented by Blodgett v. Silberman, 277 U. S. 1 , and satisfied the requirement of legal interest in Boynton v. Hutchinson, 291 U.S. 656, certiorari dismissed on another ground, 292 U.S. 601. [ Footnote 3/6 ] Page 307 U. S. 467 We can only adjudicate an issue as to which there is a claimant before us who has a special individualized stake in it. One who is merely the self-constituted spokesman of a constitutional point of view cannot ask us to pass on it. The Kansas legislators could not bring suit explicitly on behalf of the people of the United States to determine whether Kansas could still vote for the Child Labor Amendment. They cannot gain standing here by having brought such a suit in their own names. Therefore, none of the petitioners can here raise questions concerning the power of the Kansas legislature to ratify the Amendment. This disposes of the standing of the three members of the lower house who seek to invoke the jurisdiction of this Court. They have no standing here. Equally without Page 307 U. S. 468 litigious standing is the member of the Kansas Senate who voted for "Senate Concurrent Resolution No. 3." He cannot claim that his vote was denied any parliamentary efficacy to which it was entitled. There remains for consideration only the claim of the twenty nay-voting senators that the Lieutenant-Governor or Kansas, the presiding officer of its Senate, had, under the Kansas Constitution, no power to break the tie in the senatorial vote on the Amendment, thereby depriving their votes of the effect of creating such a tie. Whether this is the tribunal before which such a question can be raised by these senators must be determined even before considering whether the issue which they pose is justiciable. For the latter involves questions affecting the distribution of constitutional power which should be postponed to preliminary questions of legal standing to sue. Page 307 U. S. 469 The right of the Kansas senators to be here is rested on recognition by Leser v. Garnett, 258 U. S. 130 , of a voter's right to protect his franchise. The historic source of this doctrine and the reasons for it were explained in Nixon v. Herndon, 273 U. S. 536 , 273 U. S. 540 . That was an action for $5,000 damages against the Judges of Elections for refusing to permit the plaintiff to vote at a primary election in Texas. In disposing of the objection that the plaintiff had no cause of action because the subject matter of the suit was political, Mr. Justice Holmes thus spoke for the Court: "Of course, the petition concerns political action, but it alleges and seeks to recover for private damage. That private damage may be caused by such political action, and may be recovered for in a suit at law hardly has been doubted for over two hundred years, since Ashby v. White, 2 Ld.Raym. 938, 3 Ld.Raym. 320, and has been recognized by this Court." "Private damage" is the clue to the famous ruling in Ashby v. White, supra, and determines its scope as well as that of cases in this Court of which it is the justification. The judgment of Lord Holt is permeated with the conception that a voter's franchise is a personal right, assessable in money damages, of which the exact amount "is peculiarly appropriate for the determination of a jury," see Wiley v. Sinkler, 179 U. S. 58 , 179 U. S. 65 , and for which there is no remedy outside the law courts. "Although this matter relates to the parliament," said Lord Holt, "yet it is an injury precedaneous to the parliament, as my Lord Hale said in the case of Bernardiston v. Soame, 2 Lev. 114, 116. The parliament cannot judge of this injury, nor give damage to the plaintiff for it: they cannot make him a recompense." 2 Ld.Raym. 938, 958. The reasoning of Ashby v. White and the practice which has followed it leave intra-parliamentary controversies to parliaments and outside the scrutiny of law courts. The procedures for voting in legislative assemblies Page 307 U. S. 470 who are members, how and when they should vote, what is the requisite number of votes for different phases of legislative activity, what votes were cast, and how they were counted -- surely are matters that not merely concern political action, but are of the very essence of political action, if "political" has any connotation at all. Field v. Clark, 143 U. S. 649 , 143 U. S. 670 et seq.; Leser v. Garnett, 258 U. S. 130 , 258 U. S. 137 . In no sense are they matters of "private damage." They pertain to legislators not as individuals, but as political representatives executing the legislative process. To open the law courts to such controversies is to have courts sit in judgment on the manifold disputes engendered by procedures for voting in legislative assemblies. If the doctrine of Ashby v. White vindicating the private rights of a voting citizen has not been doubted for over two hundred years, it is equally significant that, for over two hundred years, Ashby v. White has not been sought to be put to purposes like the present. In seeking redress here, these Kansas senators have wholly misconceived the functions of this Court. The writ of certiorari to the Kansas Supreme Court should therefore be dismissed. [ Footnote 3/1 ] For an early instance of the abstention of the King's Justices from matters political, see the Duke of York's Claim to the Crown, House of Lords, 1460, 5 Rot.Parl. 375, reprinted in Wambaugh, Cases on Constitutional Law 1. [ Footnote 3/2 ] See e.g., the opinion of Mr. Justice Iredell in Chisholm v. Georgia , 2 Dall. 419, 2 U. S. 429 ; concurring opinion of Mr. Justice Johnson in Fletcher v. Peck , 6 Cranch 87, 10 U. S. 143 , and the cases collected in the concurring opinion of Mr. Justice Brandeis in Ashwander v. Tennessee Valley Authority, 297 U. S. 288 , 297 U. S. 341 . [ Footnote 3/3 ] This is subject to some narrow exceptions not here relevant. See, e.g., McKnett v. St. Louis & San Francisco Ry. Co., 292 U. S. 230 . [ Footnote 3/4 ] As to advisory opinions in use in a few of the state courts, see J. B. Thayer, Advisory Opinions, reprinted in Legal Essays by J. B. Thayer at 42 et seq.; article on "Advisory Opinions," 1 Enc.Soc.Sci. 475. As to advisory opinions in Canada, see Attorney General for Ontario v. Attorney General for Canada [1912] A.C. 571. Speaking of the Canadian system, Lord Chancellor Haldane, in Attorney General for British Columbia v. Attorney General for Canada [1914] A.C. 153, 162, said: "It is at times attended with inconveniences, and it is not surprising that the Supreme Court of the United States should have steadily refused to adopt a similar procedure, and should have confined itself to adjudication on the legal rights of litigants in actual controversies." For further animadversions on advisory pronouncements by judges, see Lord Chancellor Sankey in In re The Regulation and Control of Aeronautics in Canada [1932] A.C. 54, 66: "We sympathize with the view expressed at length by Newcombe, J., which was concurred in by the Chief Justice [of Canada] as to the difficulty which the Court must experience in endeavoring to answer questions put to it in this way." Australia followed our Constitutional practice in restricting her courts to litigious business. The experience of English history which lay behind it was thus put in the Australian Constitutional Convention by Mr. (later Mr. Justice) Higgins: "I feel strongly that it is most inexpedient to break in on the established practice of the English law, and secure decisions on facts which have not arisen yet. Of course, it is a matter that lawyers have experience of every day that a judge does not give the same attention, he cannot give that same attention, to a suppositious case as when he feels the pressure of the consequences to a litigant before him. . . . But here is an attempt to allow this High Court, before cases have arisen, to make a pronouncement upon the law that will be binding. I think the imagination of judges, like that of other persons, is limited, and they are not able to put before their minds all the complex circumstances which may arise and which they ought to have in their minds when giving a decision. If there is one thing more than another which is recognized in British jurisprudence, it is that a judge never gives a decision until the facts necessary for that decision have arisen." Rep.Nat.Austral.Conv.Deb. (1897) 966-67. [ Footnote 3/5 ] See the series of cases beginning with Hayburn's Case , 2 Dall. 409, through United States v. West Virginia, 295 U. S. 463 . [ Footnote 3/6 ] A quick summary of the jurisdiction of this Court over state court decisions leaves no room for doubt that the fact that the present case is here on certiorari is wholly irrelevant to our assumption of jurisdiction. Section 25 of the First Judiciary Act gave reviewing power to this Court only over state court decisions denying a claim of federal right. This restriction was, of course, born of fear of disobedience by the state judiciaries of national authority. The Act of September 6, 1916, 39 Stat. 726, withdrew from this obligatory jurisdiction cases where the state decision was against a "title, right, privilege, or immunity" claimed to exist under the Constitution, laws, treaties or authorities of the United States. This change, which was inspired mainly by a desire to eliminate from review as of right of cases arising under the Federal Employers' Liability Act, left such review only in cases where the validity of a treaty, statute, or authority of the United States was drawn into question and the decision was against the validity, and in cases where the validity of a statute of a state or a state authority was drawn into question on the grounds of conflict with federal law, and the decision was in favor of its validity. The Act of February 13, 1925, 43 Stat. 936, 937, extended this process of restricting our obligatory jurisdiction by transferring to review by certiorari cases in which the state court had held invalid an "authority" claimed to be exercised under the laws of the United States or in which it had upheld, against claims of invalidity on federal grounds, an "authority" exercised under the laws of the states. Neither the terms of these two restrictions nor the controlling comments in committee reports or by members of this, Court who had a special share in promoting the Acts of 1916 and 1925, give any support for believing that, by contracting the range of obligatory jurisdiction over state adjudications Congress enlarged the jurisdiction of the Court by removing the established requirement of legal interest as a threshold condition to being here. Nor does the Act of December 23, 1914, 38 Stat. 790, touch the present problem. By that Act, Congress for the first time gave this Court power to review state court decisions sustaining a federal right. For this purpose, it made certiorari available. The Committee reports and the debates on this Act prove that its purpose was merely to remove the unilateral quality of Supreme Court review of state court decisions on constitutional questions as to which this Court has the ultimate say. The Act did not create a new legal interest as a basis of review here; it built on the settled doctrine that an official has a legally recognizable duty to carry out a statute which he is supposed to enforce. Thus, prior to the Act of 1914, the Kentucky case, Chandler v. Wise, 307 U. S. 474 , could not have come here at all, and, prior to 1916, the Kansas case would have come here, if at all, by writ of error. By allowing cases from state courts which previously could not have come here at all to come here on certiorari, the Act of 1914 merely lifted the previous bar -- that a federal claim had been sustained -- but left every other requisite of jurisdiction unchanged. Similarly, no change in these requisites was affected by the Acts of 1916 and 1925 in confining certain categories of litigation from the state courts to our discretionary, instead of obligatory, reviewing power. MR. JUSTICE BUTLER, dissenting. The Child Labor Amendment was proposed in 1924; more than 13 years elapsed before the Kansas legislature voted, as the decision just announced holds, to ratify it. Petitioners insist that more than a reasonable time had elapsed, and that therefore the action of the state legislature is without force. But this Court now holds that the question is not justiciable, relegates it to the "consideration of the Congress when, in the presence of certified ratifications by three-fourths of the States, the time arrives for the promulgation of the adoption of the amendment," and declares that the decision by Congress would not be subject to review by the courts. Page 307 U. S. 471 In Dillon v. Gloss, 256 U. S. 368 , one imprisoned for transportation of intoxicating liquor in violation of § 3 of the National Prohibition Act, instituted habeas corpus proceedings to obtain his release on the ground that the Eighteenth Amendment was invalid because the resolution proposing it declared that it should not be operative unless ratified within seven years. The Amendment was ratified in less than a year and a half. We definitely held that Article V impliedly requires amendments submitted to be ratified within a reasonable time after proposal, that Congress may fix a reasonable time for ratification, and that the period of seven years fixed by the Congress was reasonable. We said: "It will be seen that this article says nothing about the time within which ratification may be had -- neither that it shall be unlimited nor that it shall be fixed by Congress. What, then, is the reasonable inference or implication? Is it that ratification may be had at any time, as within a few years, a century or even a longer period, or that it must be had within some reasonable period which Congress is left free to define? . . ." "We do not find anything in the article which suggests that an amendment once proposed is to be open to ratification for all time, or that ratification in some of the states may be separated from that in others by many years and yet be effective. We do find that which strongly suggests the contrary. First, proposal and ratification are not treated as unrelated acts, but as succeeding steps in a single endeavor, the natural inference being that they are not to be widely separated in time. Secondly, it is only when there is deemed to be a necessity therefor that amendments are to be proposed, the reasonable implication being that, when proposed, they are to be considered and disposed of presently. Thirdly, as ratification is but the expression of the approbation of the people, and is to be effective when had in three-fourths of the Page 307 U. S. 472 states, there is a fair implication that it must be sufficiently contemporaneous in that number of states to reflect the will of the people in all sections at relatively the same period, which, of course, ratification scattered through a long series of years would not do. These considerations and the general purport and spirit of the article lead to the conclusion expressed by Judge Jameson [in his Constitutional Conventions, 4th ed. § 585]" "that an alteration of the Constitution proposed today has relation to the sentiment and the felt needs of today, and that, if not ratified early while that sentiment may fairly be supposed to exist, it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed by Congress." "That this is the better conclusion becomes even more manifest when what is comprehended in the other view is considered; for, according to it, four amendments proposed long ago-two in 1789, one in 1810, and one in 1861-are still pending, and in a situation where their ratification in some of the states many years since by representatives of generations now largely forgotten may be effectively supplemented in enough more states to make three-fourths by representatives of the present or some future generation. To that view few would be able to subscribe, and, in our opinion, it is quite untenable. We conclude that the fair inference or implication from article 5 is that the ratification must be within some reasonable time after the proposal." "Of the power of Congress, keeping within reasonable limits, to fix a definite period for the ratification, we entertain no doubt. . . . Whether a definite period for ratification shall be fixed, so that all may know what it is and speculation on what is a reasonable time may be avoided, is, in our opinion, a matter of detail which Congress may determine as an incident of its power to designate the mode of ratification. It is not questioned that seven years, the period fixed in this instance, was reasonable, Page 307 U. S. 473 if power existed to fix a definite time; nor could it well be questioned considering the periods within which prior amendments were ratified." Upon the reasoning of our opinion in that case, I would hold that more than a reasonable time had elapsed * and Page 307 U. S. 474 that the judgment of the Kansas supreme court should be reversed. The point, that the question -- whether more than a reasonable time had elapsed -- is not justiciable, but one for Congress after attempted ratification by the requisite number of States, was not raised by the parties or by the United States appearing as amicus curiae; it was not suggested by us when ordering reargument. As the Court in the Dillon case did directly decide upon the reasonableness of the seven years fixed by the Congress, it ought not now, without hearing argument upon the point, hold itself to lack power to decide whether more than 13 years between proposal by Congress and attempted ratification by Kansas is reasonable. MR. JUSTICE McREYNOLDS joins in this opinion. * CHRONOLOGY OF CHILD LABOR AMENDMENT [A State is said to have "rejected" when both Houses of its legislature passed resolutions of rejection, and to have "refused to ratify" when both Houses defeated resolution for ratification.] June 2, 1924, Joint Resolution deposited in State Department. In that year, Arkansas ratified; North Carolina rejected. Ratification, 1; rejection, 1. 1925, Arizona, California and Wisconsin ratified; Florida, Georgia, Indiana, Kansas, Maine, Massachusetts, Minnesota, Missouri, New Hampshire, Pennsylvania, South Carolina, Tennessee, Texas, Utah, and Vermont rejected; Connecticut, Delaware and South Dakota refused to ratify. Ratifications, 4; rejections, 16; refusals to ratify, 3. 1926, Kentucky and Virginia rejected. Ratifications, 4; rejections, 18; refusals to ratify, 3. 1927, Montana, ratified; Maryland rejected. Ratifications, 5; rejections, 19; refusals to ratify, 3. 1931, Colorado ratified. Ratifications, 6; rejections, 19; refusals to ratify, 3. 1933, Illinois, Iowa, Michigan, New Jersey, North Dakota, Ohio, Oklahoma, Oregon, Washington and West Virginia ratified, as did also Maine, Minnesota, New Hampshire, and Pennsylvania, which had rejected in 1925. Ratifications, 20; rejections (eliminating States subsequently ratifying), 15; refusals to ratify, 3. 1935, Idaho and Wyoming ratified, as did Utah and Indiana, which had rejected in 1925. As in 1925, Connecticut refused to ratify. Ratifications, 24; rejections, 13; refusals to ratify, 3. 1936, Kentucky, which had rejected in 1926, ratified. Ratifications, 25; rejections, 12; refusals to ratify, 3. 1937, Nevada and New Mexico ratified, as did Kansas, which had rejected in 1925. Massachusetts, which had rejected in 1925, refused to ratify. Ratifications, 28; rejections, 11; refusals to ratify, 3. Six States are not included in this list: Alabama, Louisiana, Mississippi, Nebraska, New York, and Rhode Island. It appears that there has never been a vote in Alabama or Rhode Island. Louisiana house of representatives has three times (1924, 1934 and 1936) defeated resolutions for ratification. In Mississippi, the Senate adopted resolution for ratification in 1934, but, in 1936, another Senate resolution for ratification was adversely reported. In Nebraska, the House defeated ratification resolutions in 1927 and 1935, but the Senate passed such a resolution in 1929. In New York, ratification was defeated in the House in 1935 and 1937, and, in the latter year, the Senate passed such a resolution.

The case of Coleman v. Miller (1939) concerned the proposed Child Labor Amendment to the US Constitution and the role of the Lieutenant Governor of Kansas in its ratification. Twenty senators voted against its adoption, but their votes were overridden when the Lieutenant Governor cast the deciding vote in favor. The opposing senators sought a writ of mandamus to invalidate the Lieutenant Governor's vote and prevent the amendment's ratification. The main issue was whether the case presented a justiciable controversy or a political question. The Court was equally divided, and thus, no opinion was expressed. However, the Court held that the senators had a direct interest in maintaining the effectiveness of their votes and that the case raised federal questions under Article V of the Constitution. The decision addressed the jurisdiction of the Court and the rights of the senators under the Constitution but did not provide a conclusive resolution to the central question of the Lieutenant Governor's role in the ratification process.

Role of Courts

Flast v. Cohen

https://supreme.justia.com/cases/federal/us/392/83/

U.S. Supreme Court Flast v. Cohen, 392 U.S. 83 (1968) Flast v. Cohen No. 416 Argued March 12, 1968 Decided June 10, 1968 392 U.S. 83 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK Syllabus Appellant taxpayers allege that federal funds have been disbursed by appellee federal officials under the Elementary and Secondary Education Act of 1965 to finance instruction and the purchase of educational materials for use in religious and sectarian schools, in violation of the Establishment and Free Exercise Clauses of the First Amendment. Appellants sought a declaration that the expenditures were not authorized by the Act or, in the alternative, that the Act is to that extent unconstitutional, and requested the convening of a three-judge court. A three-judge court ruled, on the authority of Frothingham v. Mellon, 262 U. S. 447 (1923), that appellants lacked standing to maintain the action. Held: 1. The three-judge court was properly convened, as the constitutional attack, even though focused on the program's operations in New York City, would, if successful, affect the entire regulatory scheme of the statute, and the complaint alleged a constitutional ground for relief, albeit one coupled with an alternative nonconstitutional ground. Pp. 392 U. S. 88 -91. 2. There is no absolute bar in Art. III of the Constitution to suits by federal taxpayers challenging allegedly unconstitutional federal taxing and spending programs, since the taxpayers may or may not have the requisite personal stake in the outcome. Pp. 392 U. S. 91 -101. 3. To maintain an action challenging the constitutionality of a federal spending program, individuals must demonstrate the necessary stake as taxpayers in the outcome of the litigation to satisfy Art. III requirements. Pp. 392 U. S. 102 -103. (a) Taxpayers must establish a logical link between that status and the type of legislative enactment attacked, as it will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute. P. 392 U. S. 102 . (b) Taxpayers must also establish a nexus between that status and the precise nature of the constitutional infringement alleged. They must show that the statute exceeds specific constitutional Page 392 U. S. 84 limitations on the exercise of the taxing and spending power, and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8. Pp. 1 392 U. S. 02 -103. 4. The taxpayer appellants here have standing consistent with Art. III to invoke federal judicial power, since they have alleged that tax money is being spent in violation of a specific constitutional protection against the abuse of legislative power, i.e., the Establishment Clause of the First Amendment. Frothingham v. Mellon, supra, distinguished. Pp. 392 U. S. 103 -106. 271 F. Supp. 1 , reversed. Page 392 U. S. 85 MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. In Frothingham v. Mellon, 262 U. S. 447 (1923), this Court ruled that a federal taxpayer is without standing to challenge the constitutionality of a federal statute. That ruling has stood for 45 years as an impenetrable barrier to suits against Acts of Congress brought by individuals who can assert only the interest of federal taxpayers. In this case, we must decide whether the Frothingham barrier should be lowered when a taxpayer attacks a federal statute on the ground that it violates the Establishment and Free Exercise Clauses of the First Amendment. Appellants filed suit in the United States District Court for the Southern District of New York to enjoin the allegedly unconstitutional expenditure of federal funds under Titles I and II of the Elementary and Secondary Education Act of 1965, 79 Stat. 27, 20 U.S.C. §§ 241a et seq., 821 et seq. (1964 ed., Supp. II). The complaint alleged that the seven appellants had as a common attribute that "each pay[s] income taxes of the United States," and it is clear from the complaint that the appellants were resting their standing to maintain the action solely on their status as federal taxpayers. [ Footnote 1 ] The appellees, who are charged by Congress with administering the Elementary and Secondary Education Act of 1965, were sued in their official capacities. The gravamen of the appellants' complaint was that federal funds appropriated under the Act were being used to finance instruction in reading, arithmetic, and other subjects in religious schools, and to purchase textbooks Page 392 U. S. 86 and other instructional materials for use in such schools. Such expenditures were alleged to be in contravention of the Establishment and Free Exercise Clauses of the First Amendment. Appellants' constitutional attack focused on the statutory criteria which state and local authorities must meet to be eligible for federal grants under the Act. Title I of the Act establishes a program for financial assistance to local educational agencies for the education of low income families. Federal payments are made to state educational agencies, which pass the payments on in the form of grants to local educational agencies. Under § 205 of the Act, 20 U.S.C. § 241e, a local educational agency wishing to have a plan or program funded by a grant must submit the plan or program to the appropriate state educational agency for approval. The plan or program must be "consistent with such basic criteria as the [appellee United States Commissioner of Education] may establish." The specific criterion of that section attacked by the appellants is the requirement "that, to the extent consistent with the number of educationally deprived children in the school district of the local educational agency who are enrolled in private elementary and secondary schools, such agency has made provision for including special educational services and arrangements (such as dual enrollment, educational radio and television, and mobile educational services and equipment) in which such children can participate. . . ." 20 U.S.C. § 241e(a)(2). Under § 206 of the Act, 20 U.S.C. § 241f, the Commissioner of Education is given broad powers to supervise a State's participation in Title I programs and grants. Title II of the Act establishes a program of federal grants for the acquisition of school library resources, textbooks, Page 392 U. S. 87 and other printed and published instructional materials "for the use of children and teachers in public and private elementary and secondary schools." 20 U.S.C. § 821. A State wishing to participate in the program must submit a plan to the Commissioner for approval, and the plan must "provide assurance that, to the extent consistent with law, such library resources, textbooks, and other instructional materials will be provided on an equitable basis for the use of children and teachers in private elementary and secondary schools in the State. . . ." 20 U.S.C. § 823(a)(3)(b). While disclaiming any intent to challenge as unconstitutional all programs under Title I of the Act, the complaint alleges that federal funds have been disbursed under the Act, "with the consent and approval of the [appellees]," and that such funds have been used and will continue to be used to finance "instruction in reading, arithmetic and other subjects and for guidance in religious and sectarian schools" and "the purchase of textbooks and instructional and library materials for use in religious and sectarian schools." Such expenditures of federal tax funds, appellants alleged, violate the First Amendment because "they constitute a law respecting an establishment of religion" and because "they prohibit the free exercise of religion on the part of the [appellants] . . . by reason of the fact that they constitute compulsory taxation for religious purposes." The complaint asked for a declaration that appellees' actions in approving the expenditure of federal funds for the alleged purposes were not authorized by the Act or, in the alternative, that, if appellees' actions are deemed within the authority and intent of the Act, "the Act is to that extent unconstitutional and void." The complaint also prayed for an injunction to enjoin appellees Page 392 U. S. 88 from approving any expenditure of federal funds for the allegedly unconstitutional purposes. The complaint further requested that a three-judge court be convened as provided in 28 U.S.C. §§ 2282, 2284. The Government moved to dismiss the complaint on the ground that appellants lacked standing to maintain the action. District Judge Frankel, who considered the motion, recognized that Frothingham v. Mellon, supra, provided "powerful" support for the Government's position, but he ruled that the standing question was of sufficient substance to warrant the convening of a three-judge court to decide the question. 267 F. Supp. 351 (1967). The three-judge court received briefs and heard arguments limited to the standing question, and the court ruled on the authority of Frothingham that appellants lacked standing. Judge Frankel dissented. 271 F. Supp. 1 (1967). From the dismissal of their complaint on that ground, appellants appealed directly to this Court, 28 U.S.C. § 1253, and we noted probable jurisdiction. 389 U.S. 895 (1967). For reasons explained at length below, we hold that appellants do have standing as federal taxpayers to maintain this action, and the judgment below must be reversed. I We must deal first with the Government's contention that this Court lacks jurisdiction on direct appeal because a three-judge court was improperly convened below. [ Footnote 2 ] Under 28 U.S.C. § 1253, direct appeal to this Page 392 U. S. 89 Court from a district court lies only "from an order granting or denying . . . an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges." Thus, if the Government is correct, we lack jurisdiction over this direct appeal. The Government's argument on this question is two-pronged. First, noting that appellants have conceded that the case should be deemed one limited to the practices of the New York City Board of Education, the Government contends that appellants wish only to forbid specific local programs which they find objectionable, and not to enjoin the operation of the broad range of programs under the statutory scheme. Only if the latter relief is sought, the Government argues, can a three-judge court properly be convened under 28 U.S.C. § 2282. We cannot accept the Government's argument in the context of this case. It is true that the appellants' complaint makes specific reference to the New York City Board of Education's programs which are funded under the challenged statute, and we can assume that appellants' proof at trial would focus on those New York City programs. However, we view these allegations of the complaint as imparting specificity and focus to the issues in the lawsuit, and not as limiting the impact of the constitutional challenge made in this case. The injunctive relief sought by appellants is not limited to programs in operation in New York City, but extends to any program that would have the unconstitutional features alleged in the complaint. Congress enacted § 2282 "to prevent a single federal judge from being able to paralyze totally the operation of an entire regulatory scheme . . . by issuance of a broad injunctive order." Kennedy v. Mendoza-Martinez, 372 U. S. 144 , 372 U. S. 154 (1963). If the District Court in this case were to rule for appellants on the merits of their constitutional attack on New York Page 392 U. S. 90 City's federally funded programs, that decision would cast sufficient doubt on similar programs elsewhere as to cause confusion approaching paralysis to surround the challenged statute. Therefore, even if the injunction which might issue in this case were narrower than that sought by appellants, we are satisfied that the legislative policy underlying § 2282 was served by the convening of a three-judge court, despite appellants' focus on New York City's programs. Secondly, the Government argues that a three-judge court should not have been convened, because appellants question not the constitutionality of the Elementary and Secondary Education Act of 1965, but its administration. [ Footnote 3 ] The decision in Zemel v. Rusk, 381 U. S. 1 (1965), is dispositive on this issue. It is true that appellants' complaint states a nonconstitutional ground for relief, namely, that appellees' actions in approving the expenditure of federal funds for allegedly unconstitutional programs are in excess of their authority under the Act. However, the complaint also requests an alternative and constitutional ground for relief, namely, a declaration that, if appellees' actions "are within the authority and intent of the Act, the Act is, to that extent, unconstitutional and void." The Court noted in Zemel v. Rusk, supra, "[W]e have often held that a litigant need not abandon his nonconstitutional arguments in order to obtain Page 392 U. S. 91 a three-judge court." 381 U.S. at 381 U. S. 6 . See also Florida Lime Growers v. Jacobsen, 362 U. S. 73 (1960); Allen v. Grand Central Aircraft Co., 347 U. S. 535 (1954). The complaint in this case falls within that rule. Thus, since the three-judge court was properly convened below, [ Footnote 4 ] direct appeal to this Court is proper. We turn now to the standing question presented by this case. II This Court first faced squarely [ Footnote 5 ] the question whether a litigant asserting only his status as a taxpayer has standing to maintain a suit in a federal court in Frothingham v. Mellon, supra, and that decision must be the starting point for analysis in this case. The taxpayer in Frothingham attacked as unconstitutional the Maternity Act of 1921, 42 Stat. 224, which established a federal program of grants to those States which would undertake programs to reduce maternal and infant mortality. The taxpayer alleged that Congress, in enacting the challenged statute, had exceeded the powers delegated to it under Article I of the Constitution and had invaded the legislative province reserved to the several States by the Tenth Amendment. The taxpayer complained that the result of the allegedly unconstitutional enactment would be to increase her future federal tax Page 392 U. S. 92 liability, and "thereby take her property without due process of law." 262 U.S. at 262 U. S. 486 . The Court noted that a federal taxpayer's "interest in the moneys of the Treasury . . . is comparatively minute and indeterminable," and that "the effect upon future taxation, of any payment out of the [Treasury's] funds, . . . [is] remote, fluctuating and uncertain." Id. at 262 U. S. 487 . As a result, the Court ruled that the taxpayer had failed to allege the type of "direct injury" necessary to confer standing. Id. at 262 U. S. 488 . Although the barrier Frothingham erected against federal taxpayer suits has never been breached, the decision has been the source of some confusion, and the object of considerable criticism. The confusion has developed as commentators have tried to determine whether Frothingham establishes a constitutional bar to taxpayer suits or whether the Court was simply imposing a rule of self-restraint which was not constitutionally compelled. [ Footnote 6 ] The conflicting viewpoints are reflected in the arguments made to this Court by the parties in this case. The Government has pressed upon us the view that Frothingham announced a constitutional rule, compelled by the Article III limitations on federal court jurisdiction and grounded in considerations of the doctrine of separation of powers. Appellants, however, insist that Page 392 U. S. 93 Frothingham expressed no more than a policy of judicial self-restraint which can be disregarded when compelling reasons for assuming jurisdiction over a taxpayer's suit exist. The opinion delivered in Frothingham can be read to support either position. [ Footnote 7 ] The concluding sentence of the opinion states that to take jurisdiction of the taxpayer's suit "would be not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and coequal department, an authority which plainly we do not possess." 262 U.S. at 262 U. S. 489 . Yet the concrete reasons given for denying standing to a federal taxpayer suggest that the Court's holding rests on something less than a constitutional foundation. For example, the Court conceded that standing had previously been conferred on municipal taxpayers to sue in that capacity. However, the Court viewed the interest of a federal taxpayer in total federal tax revenues as "comparatively minute and indeterminable" when measured against a municipal taxpayer's interest in a smaller city treasury. Id. at 262 U. S. 486 -487. This suggests that the petitioner in Frothingham was denied standing not because she was a taxpayer, but because her tax bill was not large enough. In addition, the Court spoke of the "attendant inconveniences" of entertaining that taxpayer's suit because it might open the door of federal courts to countless such suits "in respect of every other appropriation act and statute whose administration requires the outlay of public money, and whose validity may be questioned." Id. at 262 U. S. 487 . Such a statement suggests pure policy considerations. Page 392 U. S. 94 To the extent that Frothingham has been viewed as resting on policy considerations, it has been criticized as depending on assumptions not consistent with modern conditions. For example, some commentators have pointed out that a number of corporate taxpayers today have a federal tax liability running into hundreds of millions of dollars, and such taxpayers have a far greater monetary stake in the Federal Treasury than they do in any municipal treasury. [ Footnote 8 ] To some degree, the fear expressed in Frothingham that allowing one taxpayer to sue would inundate the federal courts with countless similar suits has been mitigated by the ready availability of the devices of class actions and joinder under the Federal Rules of Civil Procedure, adopted subsequent to the decision in Frothingham. [ Footnote 9 ] Whatever the merits of the current debate over Frothingham, its very existence suggests that we should undertake a fresh examination of the limitations upon standing to sue in a federal court and the application of those limitations to taxpayer suits. III The jurisdiction of federal courts is defined and limited by Article III of the Constitution. In terms relevant to the question for decision in this case, the judicial power of federal courts is constitutionally restricted to "cases" and "controversies." As is so often the situation in constitutional adjudication, those two words have an iceberg quality, containing beneath their surface simplicity submerged complexities which go to the very heart of our constitutional form of government. Embodied in the Page 392 U. S. 95 words "cases" and "controversies" are two complementary but somewhat different limitations. In part, those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government. Justiciability is the term of art employed to give expression to this dual limitation placed upon federal courts by the "case and controversy" doctrine. Justiciability is itself a concept of uncertain meaning and scope. Its reach is illustrated by the various grounds upon which questions sought to be adjudicated in federal courts have been held not to be justiciable. Thus, no justiciable controversy is presented when the parties seek adjudication of only a political question, [ Footnote 10 ] when the parties are asking for an advisory opinion, [ Footnote 11 ] when the question sought to be adjudicated has been mooted by subsequent developments, [ Footnote 12 ] and when there is no standing to maintain the action. [ Footnote 13 ] Yet it remains true that "[j]usticiability is . . . not a legal concept with a fixed content or susceptible of scientific verification. Its utilization is the resultant of many subtle pressures. . . ." Poe v. Ullman, 367 U. S. 497 , 367 U. S. 508 (1961). Part of the difficulty in giving precise meaning and form to the concept of justiciability stems from the uncertain Page 392 U. S. 96 historical antecedents of the "case and controversy" doctrine. For example, Mr. Justice Frankfurter twice suggested that historical meaning could be imparted to the concepts of justiciability and case and controversy by reference to the practices of the courts of Westminster when the Constitution was adopted. Joint Anti-Fascist Committee v. McGrath, 341 U. S. 123 , 341 U. S. 150 (1951) (concurring opinion); Coleman v. Miller, 307 U. S. 433 , 307 U. S. 460 (1939) (separate opinion). However, the power of English judges to deliver advisory opinions was well established at the time the Constitution was drafted. 3 K. Davis, Administrative Law Treatise 127-128 (1958). And it is quite clear that "the oldest and most consistent thread in the federal law of justiciability is that the federal courts will not give advisory opinions." C. Wright, Federal Courts 34 (1963). [ Footnote 14 ] Thus, the implicit policies embodied in Article III, and not history alone, impose the rule against advisory opinions on federal courts. When the federal judicial power is invoked to pass upon the validity of actions by the Legislative and Executive Branches of the Government, the rule against advisory opinions implements the separation of powers prescribed by the Constitution and confines federal courts to the role assigned them by Article III. See Muskrat v. United States, 219 U. S. 346 (1911); 3 H. Johnston, Correspondence and Public Papers of John Jay 486-489 (1891) (correspondence between Secretary of State Jefferson and Chief Justice Jay). However, the rule against advisory opinions also recognizes that such suits often "are not pressed before the Court with that clear concreteness provided when a question emerges precisely Page 392 U. S. 97 framed and necessary for decision from a clash of adversary argument exploring every aspect of a multi-faced situation embracing conflicting and demanding interests." United States v. Fruehauf, 365 U. S. 146 , 365 U. S. 157 (1961). Consequently, the Article III prohibition against advisory opinions reflects the complementary constitutional considerations expressed by the justiciability doctrine: federal judicial power is limited to those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process. Additional uncertainty exists in the doctrine of justiciability because that doctrine has become a blend of constitutional requirements and policy considerations. And a policy limitation is "not always clearly distinguished from the constitutional limitation." Barrows v. Jackson, 346 U. S. 249 , 346 U. S. 255 (1953). For example, in his concurring opinion in Ashwander v. Tennessee Valley Authority, 297 U. S. 288 , 297 U. S. 345 -348 (1936), Mr. Justice Brandeis listed seven rules developed by this Court "for its own governance" to avoid passing prematurely on constitutional questions. Because the rules operate in "cases confessedly within [the Court's] jurisdiction," id. at 297 U. S. 346 , they find their source in policy, rather than purely constitutional, considerations. However, several of the cases cited by Mr. Justice Brandeis in illustrating the rules of self-governance articulated purely constitutional grounds for decision. See, e.g., Massachusetts v. Mellon, 262 U. S. 447 (1923); Fairchild v. Hughes, 258 U. S. 126 (1922); Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339 (1892). The "many subtle pressures" [ Footnote 15 ] which cause policy considerations to blend into the constitutional limitations of Article III make the justiciability doctrine one of uncertain and shifting contours. Page 392 U. S. 98 It is in this context that the standing question presented by this case must be viewed and that the Government's argument on that question must be evaluated. As we understand it, the Government's position is that the constitutional scheme of separation of powers, and the deference owed by the federal judiciary to the other two branches of government within that scheme, present an absolute bar to taxpayer suits challenging the validity of federal spending programs. The Government views such suits as involving no more than the mere disagreement by the taxpayer "with the uses to which tax money is put." [ Footnote 16 ] According to the Government, the resolution of such disagreements is committed to other branches of the Federal Government, and not to the judiciary. Consequently, the Government contends that under no circumstances should standing be conferred on federal taxpayers to challenge a federal taxing or spending program. [ Footnote 17 ] An analysis of the function served by standing limitations compels a rejection of the Government's position. Standing is an aspect of justiciability, and, as such, the problem of standing is surrounded by the same complexities and vagaries that inhere in justiciability. Page 392 U. S. 99 Standing has been called one of "the most amorphous [concepts] in the entire domain of public law." [ Footnote 18 ] Some of the complexities peculiar to standing problems result because standing "serves, on occasion, as a shorthand expression for all the various elements of justiciability." [ Footnote 19 ] In addition, there are at work in the standing doctrine the many subtle pressures which tend to cause policy considerations to blend into constitutional limitations. [ Footnote 20 ] Despite the complexities and uncertainties, some meaningful form can be given to the jurisdictional limitations placed on federal court power by the concept of standing. The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court, and not on the issues he wishes to have adjudicated. The "gist of the question of standing" is whether the party seeking relief has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U. S. 186 , 369 U. S. 204 (1962). In other words, when standing is placed in issue in a case, the question is whether the person whose standing is Page 392 U. S. 100 challenged is a proper party to request an adjudication of a particular issue, and not whether the issue itself is justiciable. [ Footnote 21 ] Thus, a party may have standing in a particular case, but the federal court may nevertheless decline to pass on the merits of the case because, for example, it presents a political question. [ Footnote 22 ] A proper party is demanded so that federal courts will not be asked to decide "ill-defined controversies over constitutional issues," United Public Workers v. Mitchell, 330 U. S. 75 , 330 U. S. 90 (1947), or a case which is of "a hypothetical or abstract character," Aetna Life Insurance Co. v. Haworth, 300 U. S. 227 , 300 U. S. 240 (1937). So stated, the standing requirement is closely related to, although more general than, the rule that federal courts will not entertain friendly suits, Chicago & Grand Trunk R. Co. v. Wellman, supra, or those which are feigned or collusive in nature, United States v. Johnson, 319 U. S. 302 (1943); Lord v. Veazie , 8 How. 251 (1850). When the emphasis in the standing problem is placed on whether the person invoking a federal court's jurisdiction is a proper party to maintain the action, the weakness of the Government's argument in this case becomes apparent. The question whether a particular person is a proper party to maintain the action does not, by its own force, raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government. Such problems Page 392 U. S. 101 arise, if at all, only from the substantive issues the individual seeks to have adjudicated. Thus, in terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution. It is for that reason that the emphasis in standing problems is on whether the party invoking federal court jurisdiction has "a personal stake in the outcome of the controversy," Baker v. Carr, supra, at 369 U. S. 204 , and whether the dispute touches upon "the legal relations of parties having adverse legal interests." Aetna Life Insurance Co. v. Haworth, supra, at 300 U. S. 240 -241. A taxpayer may or may not have the requisite personal stake in the outcome, depending upon the circumstances of the particular case. Therefore, we find no absolute bar in Article III to suits by federal taxpayers challenging allegedly unconstitutional federal taxing and spending programs. There remains, however, the problem of determining the circumstances under which a federal taxpayer will be deemed to have the personal stake and interest that impart the necessary concrete adverseness to such litigation so that standing can be conferred on the taxpayer qua taxpayer consistent with the constitutional limitations of Article III. IV The various rules of standing applied by federal courts have not been developed in the abstract. Rather, they have been fashioned with specific reference to the status asserted by the party whose standing is challenged and to the type of question he wishes to have adjudicated. We have noted that, in deciding the question of standing, it is not relevant that the substantive issues in the litigation might be nonjusticiable. However, our decisions Page 392 U. S. 102 establish that, in ruling on standing, it is both appropriate and necessary to look to the substantive issues for another purpose, namely, to determine whether there is a logical nexus between the status asserted and the claim sought to be adjudicated. For example, standing requirements will vary in First Amendment religion cases depending upon whether the party raises an Establishment Clause claim or a claim under the Free Exercise Clause. See McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 429 -430 (1961). Such inquiries into the nexus between the status asserted by the litigant and the claim he presents are essential to assure that he is a proper and appropriate party to invoke federal judicial power. Thus, our point of reference in this case is the standing of individuals who assert only the status of federal taxpayers and who challenge the constitutionality of a federal spending program. Whether such individuals have standing to maintain that form of action turns on whether they can demonstrate the necessary stake as taxpayers in the outcome of the litigation to satisfy Article III requirements. The nexus demanded of federal taxpayers has two aspects to it. First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, § 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute. This requirement is consistent with the limitation imposed upon state-taxpayer standing in federal courts in Doremus v. Board of Education, 342 U. S. 429 (1952). Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds Page 392 U. S. 103 specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power, and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8. When both nexuses are established, the litigant will have shown a taxpayer's stake in the outcome of the controversy, and will be a proper and appropriate party to invoke a federal court's jurisdiction. The taxpayer appellants in this case have satisfied both nexuses to support their claim of standing under the test we announce today. Their constitutional challenge is made to an exercise by Congress of its power under Art. I, § 8, to spend for the general welfare, and the challenged program involves a substantial expenditure of federal tax funds. [ Footnote 23 ] In addition, appellants have alleged that the challenged expenditures violate the Establishment and Free Exercise Clauses of the First Amendment. Our history vividly illustrates that one of the specific evils feared by those who drafted the Establishment Clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general. James Madison, who is generally recognized as the leading architect of the religion clauses of the First Amendment, observed in his famous Memorial and Remonstrance Against Religious Assessments that "the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment may force him to conform to any other establishment in all cases whatsoever." 2 Writings of James Madison 183, 186 (Hunt ed.1901). The concern of Madison and his supporters was quite clearly that religious liberty ultimately would be the victim if Page 392 U. S. 104 government could employ its taxing and spending powers to aid one religion over another or to aid religion in general. [ Footnote 24 ] The Establishment Clause was designed as a specific bulwark against such potential abuses of governmental power, and that clause of the First Amendment [ Footnote 25 ] operates as a specific constitutional limitation upon the exercise by Congress of the taxing and spending power conferred by Art. I, § 8. The allegations of the taxpayer in Frothingham v. Mellon, supra, were quite different from those made in this case, and the result in Frothingham is consistent with the test of taxpayer standing announced today. The taxpayer in Frothingham attacked a federal spending program, and she, therefore, established the first nexus Page 392 U. S. 105 required. However, she lacked standing because her constitutional attack was not based on an allegation that Congress, in enacting the Maternity Act of 1921, had breached a specific limitation upon its taxing and spending power. The taxpayer in Frothingham alleged essentially that Congress, by enacting the challenged statute, had exceeded the general powers delegated to it by Art. I, § 8, and that Congress had thereby invaded the legislative province reserved to the States by the Tenth Amendment. To be sure, Mrs. Frothingham made the additional allegation that her tax liability would be increased as a result of the allegedly unconstitutional enactment, and she framed that allegation in terms of a deprivation of property without due process of law. However, the Due Process Clause of the Fifth Amendment does not protect taxpayers against increases in tax liability, and the taxpayer in Frothingham failed to make any additional claim that the harm she alleged resulted from a breach by Congress of the specific constitutional limitations imposed upon an exercise of the taxing and spending power. In essence, Mrs. Frothingham was attempting to assert the States' interest in their legislative prerogatives, and not a federal taxpayer's interest in being free of taxing and spending in contravention of specific constitutional limitations imposed upon Congress' taxing and spending power. We have noted that the Establishment Clause of the First Amendment does specifically limit the taxing and spending power conferred by Art. I, § 8. Whether the Constitution contains other specific limitations can be determined only in the context of future cases. However, whenever such specific limitations are found, we believe a taxpayer will have a clear stake as a taxpayer in assuring that they are not breached by Congress. Consequently, we hold that a taxpayer will have standing Page 392 U. S. 106 consistent with Article III to invoke federal judicial power when he alleges that congressional action under the taxing and spending clause is in derogation of those constitutional provisions which operate to restrict the exercise of the taxing and spending power. The taxpayer's allegation in such cases would be that his tax money is being extracted and spent in violation of specific constitutional protections against such abuses of legislative power. Such an injury is appropriate for judicial redress, and the taxpayer has established the necessary nexus between his status and the nature of the allegedly unconstitutional action to support his claim of standing to secure judicial review. Under such circumstances, we feel confident that the questions will be framed with the necessary specificity, that the issues will be contested with the necessary adverseness, and that the litigation will be pursued with the necessary vigor to assure that the constitutional challenge will be made in a form traditionally thought to be capable of judicial resolution. We lack that confidence in cases, such as Frothingham, where a taxpayer seeks to employ a federal court as a forum in which to air his generalized grievances about the conduct of government or the allocation of power in the Federal System. While we express no view at all on the merits of appellants' claims in this case, [ Footnote 26 ] their complaint contains sufficient allegations under the criteria we have outlined to give them standing to invoke a federal court's jurisdiction for an adjudication on the merits. Reversed. Page 392 U. S. 107 [ Footnote 1 ] The complaint alleged that one of the appellants "has children regularly registered in and attending the elementary or secondary grades in the public schools of New York." However, the District Court did not view that additional allegation as being relevant to the question of standing, and appellants have made no effort to justify their standing on that additional ground. [ Footnote 2 ] This issue was not raised in the court below, and the Government argued it for the first time in its brief in this Court. The Government claims the inappropriateness of convening a three-judge court became apparent only as the issues in the case have been clarified by appellants. Because the question now presented goes to our jurisdiction on direct appeal, the lateness of the claim is irrelevant to our consideration of it. United States v. Griffin, 303 U. S. 226 , 303 U. S. 229 (1938). [ Footnote 3 ] The Government also seems to argue that, if any administrative action is suspect, it is the action of state officials, and not of appellees. For example, the Government describes federal participation in the challenged programs as "remote." Brief for Appellees 17. The premise for this argument is apparently that, under 20 U.S.C. § 241e, programs of local educational agencies require only the direct approval of state officials to be eligible for grants. However, appellees are given broad powers of supervision over state participation by 20 U.S.C. § 241f, and it is federal funds administered by appellees that finance the local programs. We cannot characterize such federal participation as "remote." [ Footnote 4 ] An additional requirement for the convening of a three-judge court is that the constitutional question presented be substantial. See Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U. S. 713 (1962); Ex parte Poresky, 290 U. S. 30 (1933). The Government does not dispute the substantiality of the constitutional attack made by appellants on the Elementary and Secondary Education Act of 1965. See Flast v. Gardner, 267 F. Supp. 351 , 352 (1967). [ Footnote 5 ] In at least three cases prior to Frothingham, the Court accepted jurisdiction in taxpayer suits without passing directly on the standing question. Wilson v. Shaw, 204 U. S. 24 , 204 U. S. 31 (1907); Millard v. Roberts, 202 U. S. 429 , 202 U. S. 438 (1906); Bradfield v. Roberts, 175 U. S. 291 , 175 U. S. 295 (1899). [ Footnote 6 ] The prevailing view of the commentators is that Frothingham announced only a nonconstitutional rule of self-restraint. See, e.g., Jaffe, Standing to Secure Judicial Review: Private Actions,75 Harv.L.Rev. 255, 302-303 (1961); Arthur Garfield Hays Civil Liberties Conference: Public Aid to Parochial Schools and Standing to Bring Suit, 12 Buffalo L.Rev. 35, 48-65 (1962); Davis, Standing to Challenge Governmental Action, 39 Minn.L.Rev. 353, 386-391 (1955). But see Hearings on S. 2097 before the Subcommittee on Constitutional Rights of the Senate Judiciary Committee, 89th Cong., 2d Sess., 465, 467-468 (1966) (statement of Prof. William D. Valente). The last-cited hearings contain the best collection of recent expression of views on this question. [ Footnote 7 ] "Although the Court in the latter part of the opinion used language suggesting that it did not find the elements of a justiciable controversy present in the case, the case in its central aspect turns on application of the judicially formulated [ i.e., nonconstitutional] rules respecting standing." Hearings on S. 2097, supra, n 6, at 503 (statement of Prof. Paul G. Kauper). [ Footnote 8 ] See, e.g., Hearings on S. 2097, supra, n 6, at 493 (statement of Prof. Kenneth C. Davis); Note, 69 Yale L.J. 895, 917, and n. 127 (1960). [ Footnote 9 ] Judge Frankel's dissent below also noted that federal courts have learned in recent years to cope effectively with "huge litigations" and "redundant actions." 271 F. Supp. at 17. [ Footnote 10 ] See, e.g., Commercial Trust Co. v. Miller, 262 U. S. 51 (1923); Luther v. Borden , 7 How. 1 (1849). [ Footnote 11 ] See, e.g., United States v. Fruehauf, 365 U. S. 146 (1961); Muskrat v. United States, 219 U. S. 346 (1911). [ Footnote 12 ] See, e.g., California v. San Pablo & T. R. Co., 149 U. S. 308 (1893). [ Footnote 13 ] See, e.g., Tileston v. Ullman, 318 U. S. 44 (1943); Frothingham v. Mellon, 262 U. S. 447 (1923). [ Footnote 14 ] The rule against advisory opinions was established as early as 1793, see 3 H. Johnston, Correspondence and Public Papers of John Jay 486-489 (1891), and the rule has been adhered to without deviation. See United States v. Fruehauf, 365 U. S. 146 , 365 U. S. 157 (1961), and cases cited therein. [ Footnote 15 ] Poe v. Ullman, 367 U. S. 497 , 367 U. S. 508 (1961). [ Footnote 16 ] Brief for Appellees 7. [ Footnote 17 ] The logic of the Government's argument would compel it to concede that a taxpayer would lack standing even if Congress engaged in such palpably unconstitutional conduct as providing funds for the construction of churches for particular sects. See Flast v. Gardner, 271 F. Supp. 1 , 5 (1967) (dissenting opinion of Frankel, J.). The Government professes not to be bothered by such a result because it contends there might be individuals in society other than taxpayers who could invoke federal judicial power to challenge such unconstitutional appropriations. However, if, as we conclude, there are circumstances under which a taxpayer will be a proper and appropriate party to seek judicial review of federal statutes, the taxpayer's access to federal courts should not be barred because there might be at large in society a hypothetical plaintiff who might possibly bring such a suit. [ Footnote 18 ] Hearings on S. 2097, supra, n 6, at 498 (statement of Prof. Paul A. Freund). [ Footnote 19 ] Lewis, Constitutional Rights and the Misuse of "Standing," 14 Stan.L.Rev. 433, 453 (1962). [ Footnote 20 ] Thus, a general standing limitation imposed by federal courts is that a litigant will ordinarily not be permitted to assert the rights of absent third parties. See, e.g., Heald v. District of Columbia, 259 U. S. 114 , 259 U. S. 123 (1922); Yazoo & Miss. Valley R. Co. v. Jackson Vinegar Co., 226 U. S. 217 (1912). However, this rule has not been imposed uniformly as a firm constitutional restriction on federal court jurisdiction. See, e.g., Dombrowski v. Pfister, 380 U. S. 479 , 380 U. S. 486 -487 (1965); Barrows v. Jackson, 346 U. S. 249 (1953). [ Footnote 21 ] This distinction has not always appeared with clarity in prior cases. See Bickel, Foreword: The Passive Virtues, The Supreme Court, 1960 Term, 75 Harv.L.Rev. 40, 75-76 (1961). [ Footnote 22 ] One contemporary commentator advanced such an explanation for the holding in Frothingham, suggesting that the standing rationale was simply a device used by the Court to avoid judicial inquiry into questions of social policy and the political wisdom of Congress. See Finkelstein, Judicial Self-Limitation, 37 Harv.L.Rev. 338, 359-364 (1924). [ Footnote 23 ] Almost $1,000,000,000 was appropriated to implement the Elementary and Secondary Education Act in 1965. 79 Stat. 832. [ Footnote 24 ] The Memorial and Remonstrance was Madison's impassioned reaction to a bill introduced in the Virginia General Assembly in 1785 to provide a tax levy to support teachers of the Christian religion. Madison's eloquent opposition to the levy generated strong support in Virginia, and the Assembly postponed consideration of the proposal until its next session. When the bill was revived, it died in committee, and the Assembly instead enacted the famous Virginia Bill for Religious Liberty authored by Thomas Jefferson. The Virginia experience is recounted in S. Cobb, Rise of Religious Liberty in America 490-499 (1902). [ Footnote 25 ] Appellants have also alleged that the Elementary and Secondary Education Act of 1965 violates the Free Exercise Clause of the First Amendment. This Court has recognized that the taxing power can be used to infringe the free exercise of religion. Murdock v. Pennsylvania, 319 U. S. 105 (1943). Since we hold that appellants' Establishment Clause claim is sufficient to establish the nexus between their status and the precise nature of the constitutional infringement alleged, we need not decide whether the Free Exercise claim, standing alone, would be adequate to confer standing in this case. We do note, however, that the challenged tax in Murdock operated upon a particular class of taxpayers. When such exercises of the taxing power are challenged, the proper party emphasis in the federal standing doctrine would require that standing be limited to the taxpayers within the affected class. [ Footnote 26 ] In fact, it is impossible to make any such judgment in the present posture of this case. The proceedings in the court below thus far have been devoted solely to the threshold question of standing, and nothing in the record bears upon the merits of the substantive questions presented in the complaint. MR. JUSTICE DOUGLAS, concurring. While I have joined the opinion of the Court, I do not think that the test it lays down is a durable one, for the reasons stated by my Brother HARLAN. I think, therefore, that it will suffer erosion, and, in time, result in the demise of Frothingham v. Mellon, 262 U. S. 447 . It would therefore be the part of wisdom, as I see the problem, to be rid of Frothingham here and now. I do not view with alarm, as does my Brother HARLAN, the consequences of that course. Frothingham, decided in 1923, was in the heyday of substantive due process, when courts were sitting in judgment on the wisdom or reasonableness of legislation. The claim in Frothingham was that a federal regulatory Act dealing with maternity deprived the plaintiff of property without due process of law. When the Court used substantive due process to determine the wisdom or reasonableness of legislation, it was indeed transforming itself into the Council of Revision which was rejected by the Constitutional Convention. It was that judicial attitude, not the theory of standing to sue rejected in Frothingham, that involved "important hazards for the continued effectiveness of the federal judiciary," to borrow a phrase from my Brother HARLAN. A contrary result in Frothingham in that setting might well have accentuated an ominous trend to judicial supremacy. But we no longer undertake to exercise that kind of power. Today's problem is in a different setting. Most laws passed by Congress do not contain even a ghost of a constitutional question. The "political" decisions, as distinguished from the "justiciable" ones, occupy most of the spectrum of congressional action. The case or controversy requirement comes into play only when the Federal Government does something that affects a person's life, his liberty, or his property. The wrong may be slight or it may be grievous. Madison, in denouncing Page 392 U. S. 108 state support of churches, said the principle was violated when even "three pence" was appropriated to that cause by the Government. [ Footnote 2/1 ] It therefore does not do to talk about taxpayers' interest as "infinitesimal." The restraint on "liberty" may be fleeting and passing, and still violate a fundamental constitutional guarantee. The "three pence" mentioned by Madison may signal a monstrous invasion by the Government into church affairs, and so on. The States have experimented with taxpayers' suits and, with only two exceptions, [ Footnote 2/2 ] now allow them. A few state decisions are frankly based on the theory that a taxpayer is a private attorney general seeking to indicate the public interest. [ Footnote 2/3 ] Some of them require that the taxpayer have more than an infinitesimal financial stake in the problem. [ Footnote 2/4 ] At the federal level, Congress can, of Page 392 U. S. 109 course, define broad categories of "aggrieved" persons who have standing to litigate cases or controversies. But, contrary to what my Brother HARLAN suggests, the failure of Congress to act has not barred this Court from allowing standing to sue and from providing remedies. The multitude of cases under the Fourth, as well as the Fourteenth, Amendment, are witness enough. [ Footnote 2/5 ] The constitutional guide is "cases" or "controversies" within the meaning of § 2 of Art. III of the Constitution. As respects our appellate jurisdiction, Congress may largely fashion it as Congress desires by reason of the express provisions of § 2, Art. III. See Ex parte McCardle , 7 Wall. 506. But where there is judicial power to act, there is judicial power to deal with all the facets of the old issue of standing. Taxpayers can be vigilant private attorneys general. Their stake in the outcome of litigation may be de minimis by financial standards, yet very great when measured by a particular constitutional mandate. My Brother HARLAN's opinion reflects the British, not the American, tradition of constitutionalism. We have a written Constitution, and it is full of "thou shalt nots" directed at Congress and the President, as well as at the courts. Page 392 U. S. 110 And the role of the federal courts is not only to serve as referee between the States and the center, but also to protect the individual against prohibited conduct by the other two branches of the Federal Government. There has long been a school of thought here that the less the judiciary does, the better. It is often said that judicial intrusion should be infrequent, since it is "always attended with a serious evil, namely, that the correction of legislative mistakes comes from the outside, and the people thus lose the political experience, and the moral education and stimulus that come from fighting the question out in the ordinary way, and correcting their own errors"; that the effect of a participation by the judiciary in these processes is "to dwarf the political capacity of the people, and to deaden its sense of moral responsibility." J. Thayer, John Marshall 106, 107 (1901). The late Edmond Cahn, who opposed that view, stated my philosophy. He emphasized the importance of the role that the federal judiciary was designed to play in guarding basic rights against majoritarian control. He chided the view expressed by my Brother HARLAN: "we are entitled to reproach the majoritarian justices of the Supreme Court . . . with straining to be reasonable when they ought to be adamant." Can the Supreme Court Defend Civil Liberties? in Samuel, ed., Toward a Better America 132, 144 (1968). His description of our constitutional tradition was in these words: "Be not reasonable with inquisitions, anonymous informers, and secret files that mock American justice. Be not reasonable with punitive denationalizations, ex post facto deportations, labels of disloyalty, and all the other stratagems for outlawing human beings from the community of mankind. These devices have put us to shame. Exercise the full judicial power of the United States; nullify Page 392 U. S. 111 them, forbid them, and make us proud again." Id. 144-145. The judiciary is an indispensable part of the operation of our federal system. With the growing complexities of government, it is often the one and only place where effective relief can be obtained. If the judiciary were to become a super-legislative group sitting in judgment on the affairs of people, the situation would be intolerable. But where wrongs to individuals are done by violation of specific guarantees, it is abdication for courts to close their doors. Marshall wrote in Marbury v. Madison , 1 Cranch 137, 5 U. S. 178 , that, if the judiciary stayed its hand in deference to the legislature, it would give the legislature "a practical and real omnipotence." My Brother HARLAN's view would do just that, for, unless Congress created a procedure through which its legislative creation could be challenged quickly and with ease, the momentum of what it had done would grind the dissenter under. We have a Constitution designed to keep government out of private domains. But the fences have often been broken down, and Frothingham denied effective machinery to restore them. The Constitution, even with the judicial gloss it has acquired, plainly is not adequate to protect the individual against the growing bureaucracy in the Legislative and Executive Branches. He faces a formidable opponent in government, even when he is endowed with funds and with courage. The individual is almost certain to be plowed under unless he has a well organized active political group to speak for him. The church is one. The press is another. The union is a third. But if a powerful sponsor is lacking, individual liberty withers -- in spite of glowing opinions and resounding constitutional phrases. I would not be niggardly, therefore, in giving private attorneys general standing to sue. I would certainly not Page 392 U. S. 112 wait for Congress to give its blessing to our deciding cases clearly within our Article III jurisdiction. To wait for a sign from Congress is to allow important constitutional questions to go undecided and personal liberty unprotected. There need be no inundation of the federal courts if taxpayers' suits are allowed. There is a wise judicial discretion that usually can distinguish between the frivolous question and the substantial question, between cases ripe for decision and cases that need prior administrative processing, and the like. [ Footnote 2/6 ] When the judiciary is no longer "a great rock" [ Footnote 2/7 ] in the storm, as Lord Sankey once put it, when the courts are niggardly in the use of their power and reach great issues only timidly and reluctantly, the force of the Constitution in the life of the Nation is greatly weakened. Gideon Hausner, after reviewing the severe security measures sometimes needed for Israel's survival and the vigilance of her courts in maintaining the rights of individuals, recently stated, "When all is said and done, one is inclined to think that a rigid constitutional frame is on the whole preferable even if it serves no better purpose than obstructing and embarrassing an over-active Executive." Individuals' Rights in the Courts of Israel, International Lawyers Convention In Israel, 1958, pp. 201, 228 (1959). That observation is apt here, whatever the transgression and whatever branch of government may be implicated. We have recently reviewed the host of devices Page 392 U. S. 113 used by the States to avoid opening to Negroes public facilities enjoyed by whites. Green v. School Board of New Kent County, 391 U. S. 430 ; Raney v. Board of Education, 391 U. S. 443 ; Monroe v. Board of Commissioners, 391 U. S. 450 . There is a like process at work at the federal level in respect to aid to religion. The efforts made to insert in the law an express provision which would allow federal aid to sectarian schools to be reviewable in the courts was defeated. [ Footnote 2/8 ] The mounting federal aid to sectarian schools is notorious, and the subterfuges numerous. [ Footnote 2/9 ] Page 392 U. S. 114 I would be as liberal in allowing taxpayers standing to object to these violations of the First Amendment as I would in granting standing to people to complain of any invasion of their rights under the Fourth Amendment or the Fourteenth or under any other guarantee in the Constitution itself or in the Bill of Rights. [ Footnote 2/1 ] Memorial and Remonstrance against Religious Assessments, 2 Writings of James Madison 186 (Hunt ed.1901). [ Footnote 2/2 ] The two clear exceptions are municipal taxpayers' suits in Kansas ( see Asendorf v. Common School Dist. No. 102, 175 Kan. 601, 266 P.2d 309 (1954)) and state taxpayers' suits in New York ( see Schieffelin v. Komfort, 212 N.Y. 520, 106 N.E. 675 (1914); St. Clair v. Yonkers Raceway, 13 N.Y.2d 72, 242 N.Y.S.2d 43, 192 N.E.2d 15 (1963); but see Kuhn v. Curran, 294 N.Y. 207, 61 N.E.2d 513 (1945)). [ Footnote 2/3 ] See, e.g., Clapp v. Town of Jaffrey, 97 N.H. 456, 91 A.2d 464 (1952); Vibberts v. Hart, 85 R.I. 35, 125 A.2d 193 (1956); Lien v. Northwestern Engineering Co., 74 S.D. 476, 54 N.W.2d 472 (1952). ("It is now the settled law of this state that a taxpayer or elector having no special interest may institute an action to protect a public right." 74 S.D. at 479, 54 N.W.2d at 474.) [ Footnote 2/4 ] See, e.g., Crews v. Beattie, 197 S.C. 32, 14 S.E.2d 351 (1941); Goodland v. Zimmerman, 243 Wis. 459, 10 N.W.2d 180 (1943) (taxpayer may not enjoin state expenditure of $1.49); contra, Richardson v. Blackburn, 41 Del.Ch. 54, 187 A.2d 823 (1963); Woodard v. Reily, 244 La. 337, 152 So. 2d 41 (1963). The estimates of commentators as to how many jurisdictions have specifically upheld taxpayers' suits range from 32 to 40. See generally 3 K. Davis, Administrative Law Treatise § 22.09 (1958), §§ 22.09-22.10 (1965 Supp.); Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv.L.Rev. 1265, 1276-1281 (1961); Comment, Taxpayers' Suits: A Survey and Summary, 69 Yale L.J. 895 (1960); St. Clair v. Yonkers Raceway, 13 N.Y.2d 72, 77-81, 242 N.Y.S.2d 43, 45-49, 192 N.E.2d 15, 16-19 (1963) (dissenting opinion of Fuld, J.). [ Footnote 2/5 ] See, e.g., NAACP v. Alabama, 357 U. S. 449 ; Pierce v. Society of Sisters, 268 U. S. 510 . As the Court said in Barrows v. Jackson, 346 U. S. 249 , 346 U. S. 255 , apart from Article III jurisdictional questions, standing involves a "rule of self-restraint for its own governance" which "this Court has developed" itself. And attempts by Congress to confer standing when it is constitutionally lacking are unavailing. Muskrat v. United States, 219 U. S. 346 . [ Footnote 2/6 ] "The general indifference of private individuals to public omissions and encroachments, the fear of expense in unsuccessful, and even in successful, litigation, and the discretion of the court have been, and doubtless will continue to be, a sufficient guard to these public officials against too numerous and unreasonable attacks." Ferry v. Williams, 41 N.J.L. 332, 339 (Sup.Ct. 1879). [ Footnote 2/7 ] Quoted in the Law Times, March 17, 1928, at 242. [ Footnote 2/8 ] These efforts, commencing in 1961, are discussed in S.Rep. No. 85, 90th Cong., 1st Sess., 2-3 (1967), and S.Rep. No. 473, 90th Cong., 1st Sess., 115 (1967). The Senate added such a provision to the Higher Education Facilities Act of 1963, but it did not survive conference. S.Rep. No. 85, at 2. A bill, S. 3, to make certain "establishment" questions reviewable has been reported by the Senate in the Ninetieth Congress. [ Footnote 2/9 ] "Tuition grants to parents of students in church schools is considered by the clerics and their helpers to have possibilities. The idea here is that the parent receives the money, carries it down to the school, and gives it to the priest. Since the money pauses a moment with the parent before going to the priest, it is argued that this evades the constitutional prohibition against government money for religion. This is a diaphanous trick which seeks to do indirectly what may not be done directly." "Another one is the 'authority.' The state may not grant aid directly to church schools. But how about setting up an authority -- like the Turnpike Authority? The state could give the money to the authority which, under one pretext or another, could channel it into the church schools." "Yet another favorite of those who covet sectarian subsidies is 'child benefit.' Government may not aid church schools, but it may aid the children in the schools. The trouble with this argument is that it proves too much. Anything that is done for a school would presumably be of some benefit to the children in it. Government could even build church school classrooms, under this theory, because it would benefit the children to have nice rooms to study in." 21 Church & State (June 1968), p. 5 (editorial). MR. JUSTICE STEWART, concurring. I join the judgment and opinion of the Court, which I understand to hold only that a federal taxpayer has standing to assert that a specific expenditure of federal funds violates the Establishment Clause of the First Amendment. Because that clause plainly prohibits taxing and spending in aid of religion, every taxpayer can claim a personal constitutional right not to be taxed for the support of a religious institution. The present case is thus readily distinguishable from Frothingham v. Mellon, 262 U. S. 447 , where the taxpayer did not rely on an explicit constitutional prohibition, but instead questioned the scope of the powers delegated to the national legislature by Article I of the Constitution. As the Court notes, "one of the specific evils feared by those who drafted the Establishment Clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general." Ante at 392 U. S. 103 . Today's decision no more than recognizes that the appellants have a clear stake as taxpayers in assuring that they not be compelled to contribute even "three pence . . . of [their] property for the support of any one establishment." Ibid. In concluding that the appellants therefore have standing to sue, we do not undermine the salutary principle, established by Frothingham and reaffirmed today, that a taxpayer may not "employ a federal court as a forum in which to air his generalized grievances about the conduct of government or the allocation of power in the Federal System." Ante at 392 U. S. 106 . Page 392 U. S. 115 MR. JUSTICE FORTAS, concurring. I would confine the ruling in this case to the proposition that a taxpayer may maintain a suit to challenge the validity of a federal expenditure on the ground that the expenditure violates the Establishment Clause. As the Court's opinion recites, there is enough in the constitutional history of the Establishment Clause to support the thesis that this Clause includes a specific prohibition upon the use of the power to tax to support an establishment of religion. * There is no reason to suggest, and no basis in the logic of this decision for implying, that there may be other types of congressional expenditures which may be attacked by a litigant solely on the basis of his status as a taxpayer. I agree that Frothingham does not foreclose today's result. I agree that the congressional powers to tax and spend are limited by the prohibition upon Congress to enact laws "respecting an establishment of religion." This thesis, slender as its basis is, provides a direct "nexus," as the Court puts it, between the use and collection of taxes and the congressional action here. Because of this unique "nexus," in my judgment, it is not far-fetched to recognize that a taxpayer has a special claim to status as a litigant in a case raising the "establishment" issue. This special claim is enough, I think, to permit us to allow the suit, coupled as it is with the interest which the taxpayer and all other citizens have in the church-state issue. In terms of the structure and basic philosophy of our constitutional government, it would be difficult to point to any issue that has a more intimate, pervasive, and fundamental impact upon the life of the taxpayer -- and upon the life of all citizens. Perhaps the vital interest of a citizen in the establishment issue, without reference to his taxpayer's status, Page 392 U. S. 116 would be acceptable as a basis for this challenge. We need not decide this. But certainly, I believe, we must recognize that our principle of judicial scrutiny of legislative acts which raise important constitutional questions requires that the issue here presented -- the separation of state and church -- which the Founding Fathers regarded as fundamental to our constitutional system -- should be subjected to judicial testing. This is not a question which we, if we are to be faithful to our trust, should consign to limbo, unacknowledged, unresolved, and undecided. On the other hand, the urgent necessities of this case and the precarious opening through which we find our way to confront it, do not demand that we open the door to a general assault upon exercises of the spending power. The status of taxpayer should not be accepted as a launching pad for an attack upon any target other than legislation affecting the Establishment Clause. See concurring opinion of STEWART, J., ante, p. 392 U. S. 114 . * See ante at 392 U. S. 104 , n. 24. MR. JUSTICE HARLAN, dissenting. The problems presented by this case are narrow and relatively abstract, but the principles by which they must be resolved involve nothing less than the proper functioning of the federal courts, and so run to the roots of our constitutional system. The nub of my view is that the end result of Frothingham v. Mellon, 262 U. S. 447 , was correct, even though, like others, [ Footnote 3/1 ] I do not subscribe to all of its reasoning and premises. Although I therefore agree with certain of the conclusions reached today by the Court, [ Footnote 3/2 ] I cannot accept the standing doctrine Page 392 U. S. 117 that it substitutes for Frothingham, for it seems to me that this new doctrine rests on premises that do not withstand analysis. Accordingly, I respectfully dissent. I It is desirable first to restate the basic issues in this case. The question here is not, as it was not in Frothingham, whether "a federal taxpayer is without standing to challenge the constitutionality of a federal statute." Ante at 392 U. S. 85 . It could hardly be disputed that federal taxpayers may, as taxpayers, contest the constitutionality of tax obligations imposed severally upon them by federal statute. Such a challenge may be made by way of defense to an action by the United States to recover the amount of a challenged tax debt, see, e.g., 3 U. S. United States, 3 Dall. 171; McCray v. United States, 195 U. S. 27 ; United States v. Butler, 297 U.S. l; or to a prosecution for willful failure to pay or to report the tax. See, e.g., Marchetti v. United States, 390 U. S. 39 . Moreover, such a challenge may provide the basis of an action by a taxpayer to obtain the refund of a previous tax payment. See, e.g., Bailey v. Drexel Furniture Co., 259 U. S. 20 . The lawsuits here and in Frothingham are fundamentally different. They present the question whether federal taxpayers qua taxpayers may, in suits in which they do not contest the validity of their previous or existing tax obligations, challenge the constitutionality of the uses for which Congress has authorized the expenditure of public funds. These differences in the purposes of the cases are reflected in differences in the litigants' interests. An action brought to contest the validity of tax liabilities assessed to the plaintiff is designed to vindicate interests that are personal and proprietary. The wrongs alleged and the relief sought by such a plaintiff are unmistakably private; only secondarily are his interests representative of those of the general population. I take Page 392 U. S. 118 it that the Court, although it does not pause to examine the question, believes that the interests of those who as taxpayers challenge the constitutionality of public expenditures may, at least in certain circumstances, be similar. Yet this assumption is surely mistaken. [ Footnote 3/3 ] The complaint in this case, unlike that, in Frothingham, contains no allegation that the contested expenditures will in any fashion affect the amount of these taxpayers' own existing or foreseeable tax obligations. Even in cases in which such an allegation is made, the suit cannot result in an adjudication either of the plaintiff's tax liabilities or of the propriety of any particular level of taxation. The relief available to such a plaintiff consists entirely of the vindication of rights held in common by all citizens. It is thus scarcely surprising that few of the state courts that permit such suits require proof either that the challenged expenditure is consequential in amount, or that it is likely to affect significantly the plaintiff's own tax bill; these courts have at least impliedly recognized that such allegations are surplusage, useful only to preserve the form of an obvious fiction. [ Footnote 3/4 ] Nor are taxpayers' interests in the expenditure of public funds differentiated from those of the general public by any special rights retained by them in their tax payments. The simple fact is that no such rights can sensibly be said to exist. Taxes are ordinarily levied by the United States without limitations of purpose; absent such a limitation, payments received by the Treasury in satisfaction of tax obligations lawfully created become part of the Government's general funds. The national legislature is required by the Constitution to Page 392 U. S. 119 exercise its spending powers to "provide for the common Defence and general Welfare." Art. I, § 8, cl. 1. Whatever other implications there may be to that sweeping phrase, it surely means that the United States holds its general funds not as stakeholder or trustee for those who have paid its imposts, but as surrogate for the population at large. Any rights of a taxpayer with respect to the purposes for which those funds are expended are thus subsumed in, and extinguished by, the common rights of all citizens. To characterize taxpayers' interests in such expenditures as proprietary or even personal either deprives those terms of all meaning or postulates for taxpayers a scintilla juris in funds that no longer are theirs. Surely it is plain that the rights and interests of taxpayers who contest the constitutionality of public expenditures are markedly different from those of "Hohfeldian" plaintiffs, [ Footnote 3/5 ] including those taxpayer plaintiffs who challenge the validity of their own tax liabilities. We must recognize that these non-Hohfeldian plaintiffs complain, just as the petitioner in Frothingham sought to complain, not as taxpayers, but as "private attorneys general." [ Footnote 3/6 ] The interests they represent, and the rights they espouse, are bereft of any personal or proprietary coloration. They are, as litigants, indistinguishable from any group selected at random from among the general Page 392 U. S. 120 population, taxpayers and nontaxpayers alike. These are and must be, to adopt Professor Jaffe's useful phrase, "public actions" brought to vindicate public rights. [ Footnote 3/7 ] It does not, however, follow that suits brought by non-Hohfeldian plaintiffs are excluded by the "case or controversy" clause of Article III of the Constitution from the jurisdiction of the federal courts. This and other federal courts have repeatedly held that individual litigants, acting as private attorneys-general, may have standing as "representatives of the public interest." Scripps-Howard Radio v. Comm'n, 316 U. S. 4 , 316 U. S. 14 . See also Commission v. Sanders Radio Station, 309 U. S. 470 , 309 U. S. 477 ; Associated Industries v. Ickes, 134 F.2d 694; Reade v. Ewing, 205 F.2d 630; Scenic Hudson Preservation Conf. v. FPC, 354 F.2d 608; Office of Communication of United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 359 F.2d 994. Compare Oklahoma v. Civil Service Comm'n, 330 U. S. 127 , 330 U. S. 137 -139. And see, on actions qui tam, Marvin v. Trout, 199 U. S. 212 , 199 U. S. 225 ; United States ex rel. Marcus v. Hess, 317 U. S. 537 , 317 U. S. 546 . The various lines of authority are by no means free of difficulty, and certain of the cases may be explicable as involving a personal, if remote, economic interest, but I think that it is nonetheless clear that non-Hohfeldian plaintiffs, as such, are not constitutionally excluded from the federal courts. The problem ultimately presented by this case is, in my view, therefore, to determine in what circumstances, consonant with the character and proper functioning of the federal courts, such suits should be permitted. [ Footnote 3/8 ] With this preface, I shall examine the position adopted by the Court. Page 392 U. S. 121 II As I understand it, the Court's position is that it is unnecessary to decide in what circumstances public actions should be permitted, for it is possible to identify situations in which taxpayers who contest the constitutionality of federal expenditures assert "personal" rights and interests, identical in principle to those asserted by Hohfeldian plaintiffs. This position, if supportable, would, of course, avoid many of the difficulties of this case; indeed, if the Court is correct, its extended exploration of the subtleties of Article III is entirely unnecessary. But, for reasons that follow, I believe that the Court's position is untenable. The Court's analysis consists principally of the observation that the requirements of standing are met if a taxpayer has the "requisite personal stake in the outcome" of his suit. Ante at 392 U. S. 101 . This does not, of course, resolve the standing problem; it merely restates it. The Court implements this standard with the declaration that taxpayers will be "deemed" to have the necessary personal interest if their suits satisfy two criteria: first, the challenged expenditure must form part of a federal spending program, and not merely be "incidental" to a regulatory program, and second, the constitutional provision under which the plaintiff claims must be a "specific limitation" upon Congress' spending powers. The difficulties with these criteria are many and severe, but it is enough for the moment to emphasize that they are not in any sense a measurement of any plaintiff's interest in the outcome of any suit. As even a cursory examination of Page 392 U. S. 122 the criteria will show, the Court's standard for the determination of standing and its criteria for the satisfaction of that standard are entirely unrelated. It is surely clear that a plaintiff's interest in the outcome of a suit in which he challenges the constitutionality of a federal expenditure is not made greater or smaller by the unconnected fact that the expenditure is, or is not, "incidental" to an "essentially regulatory" program. [ Footnote 3/9 ] An example will illustrate the point. Assume that two independent federal programs are authorized by Congress, that the first is designed to encourage a specified religious group by the provision to it of direct grants in aid, and that the second is designed to discourage all other religious groups by the imposition of various forms of discriminatory regulation. Equal amounts are appropriated by Congress for the two programs. If a taxpayer challenges their constitutionality in separate suits, [ Footnote 3/10 ] are we to suppose, as evidently does the Court, that his Page 392 U. S. 123 "personal stake" in the suit involving the second is necessarily smaller than it is in the suit involving the first, and that he should therefore have standing in one, but not the other? Presumably the Court does not believe that regulatory programs are necessarily less destructive of First Amendment rights, or that regulatory programs are necessarily less prodigal of public funds than are grants in aid, for both these general propositions are demonstrably false. The Court's disregard of regulatory expenditures is not even a logical consequence of its apparent assumption that taxpayer plaintiffs assert essentially monetary interests, for it surely cannot matter to a taxpayer qua taxpayer whether an unconstitutional expenditure is used to hire the services of regulatory personnel or is distributed among private and local governmental agencies as grants in aid. His interest as taxpayer arises, if at all, from the fact of an unlawful expenditure, and not as a consequence of the expenditure's form. Apparently the Court has repudiated the emphasis in Frothingham upon the amount of the plaintiff's tax bill, only to substitute an equally irrelevant emphasis upon the form of the challenged expenditure. The Court's second criterion is similarly unrelated to its standard for the determination of standing. The intensity of a plaintiff's interest in a suit is not measured, even obliquely, by the fact that the constitutional provision under which he claims is, or is not, a "specific limitation" upon Congress' spending powers. Thus, among the claims in Frothingham was the assertion that the Maternity Act, 42 Stat. 224, deprived the petitioner of property without due process of law. The Court has evidently concluded that this claim did not confer standing because the Due Process Clause of the Fifth Amendment is not a specific limitation upon the spending Page 392 U. S. 124 powers. [ Footnote 3/11 ] Disregarding for the moment the formidable obscurity of the Court's categories, how can it be said that Mrs. Frothingham's interests in her suit were, as a consequence of her choice of a constitutional claim, necessarily less intense than those, for example, of the present appellants? I am quite unable to understand how, if a taxpayer believes that a given public expenditure is unconstitutional, and if he seeks to vindicate that belief in a federal court, his interest in the suit can be said necessarily to vary according to the constitutional provision under which he states his claim. The absence of any connection between the Court's standard for the determination of standing and its criteria for the satisfaction of that standard is not merely a logical ellipsis. Instead, it follows quite relentlessly from the fact that, despite the Court's apparent belief, the plaintiffs in this and similar suits are non-Hohfeldian, and it is very nearly impossible to measure sensibly any differences in the intensity of their personal interests in their suits. The Court has thus been compelled simply to postulate situations in which such taxpayer plaintiffs will be "deemed" to have the requisite "personal stake and interest." Ante at 392 U. S. 101 . The logical inadequacies of the Court's criteria are thus a reflection of the deficiencies of its entire position. These deficiencies will, however, appear more plainly from an examination of the Court's treatment of the Establishment Clause. Page 392 U. S. 125 Although the Court does not altogether explain its position, the essence of its reasoning is evidently that a taxpayer's claim under the Establishment Clause is "not merely one of ultra vires, " but one which, instead, asserts "an abridgment of individual religious liberty" and a "governmental infringement of individual rights protected by the Constitution." Choper, The Establishment Clause and Aid to Parochial Schools, 56 Calif.L.Rev. 260, 276. It must first be emphasized that this is apparently not founded upon any "preferred" position for the First Amendment, or upon any asserted unavailability of other plaintiffs. [ Footnote 3/12 ] The Court's position is, instead, that, because of the Establishment Clause's historical purposes, taxpayers retain rights under it quite different from those held by them under other constitutional provisions. The difficulties with this position are several. First, we have recently been reminded that the historical purposes of the religious clauses of the First Amendment are significantly more obscure and complex than this Court has heretofore acknowledged. [ Footnote 3/13 ] Careful students Page 392 U. S. 126 of the history of the Establishment Clause have found that "it is impossible to give a dogmatic interpretation of the First Amendment, and to state with any accuracy the intention of the men who framed it. [ Footnote 3/14 ]" Above all, the evidence seems clear that the First Amendment was not intended simply to enact the terms of Madison's Memorial and Remonstrance against Religious Assessments. [ Footnote 3/15 ] I do not suggest that history is without relevance to these questions, or that the use of federal funds for religious purposes was not a form of establishment that many in the 18th century would have found objectionable. I say simply that, given the ultimate obscurity of the Establishment Clause's historical purposes, it is inappropriate for this Court to draw fundamental distinctions among the several constitutional commands upon the supposed authority of isolated dicta extracted from the clause's complex history. In particular, I have not found, and the opinion of the Court has not adduced, historical evidence that properly permits the Court to distinguish, as it has here, among the Establishment Clause, the Tenth Amendment, and the Due Process Clause of the Fifth Amendment as limitations upon Congress' taxing and spending powers. [ Footnote 3/16 ] Page 392 U. S. 127 The Court's position is equally precarious if it is assumed that its premise is that the Establishment Clause is, in some uncertain fashion, a more "specific" limitation upon Congress' powers than are the various other constitutional commands. It is obvious, first, that only in some Pickwickian sense are any of the provisions with which the Court is concerned "specific[ally]" limitations upon spending, for they contain nothing that is expressly directed at the expenditure of public funds. The specificity to which the Court repeatedly refers must therefore arise not from the provisions' language, but from something implicit in their purposes. But this Court has often emphasized that Congress' powers to spend are coterminous with the purposes for which, and methods by which, it may act, and that the various constitutional commands applicable to the central government, including those implicit both in the Tenth Amendment and in the General Welfare Clause, thus operate as limitations upon spending. See United States v. Butler, 297 U. S. 1 . And see, e.g., 75 U. S. Fenno, 8 Wall. 533, 75 U. S. 541 ; Loan Association v. Topeka , 20 Wall. 655, 87 U. S. 664 ; Thompson v. Consolidated Gas Co., 300 U. S. 55 , 300 U. S. 80 ; Carmichael v. Southern Coal Co., 301 U. S. 495 ; Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 6 . Compare Steward Machine Co. v. Davis, 301 U. S. 548 ; Helvering v. Davis, 301 U. S. 619 . I can attach no constitutional significance to the various degrees of specificity with which these limitations appear in the terms or history of the Constitution. If the Court accepts the proposition, as I do, Page 392 U. S. 128 that the number and scope of public actions should be restricted, there are, as I shall show, methods more appropriate, and more nearly permanent, than the creation of an amorphous category of constitutional provisions that the Court has deemed, without adequate foundation, "specific limitations" upon Congress' spending powers. Even if it is assumed that such distinctions may properly be drawn, it does not follow that federal taxpayers hold any "personal constitutional right" such that they may each contest the validity under the Establishment Clause of all federal expenditures. The difficulty, with which the Court never comes to grips, is that taxpayers' suits under the Establishment Clause are not, in these circumstances, meaningfully different from other public actions. If this case involved a tax specifically designed for the support of religion, as was the Virginia tax opposed by Madison in his Memorial and Remonstrance, [ Footnote 3/17 ] I would agree that taxpayers have rights under the religious clauses of the First Amendment that would permit them standing to challenge the tax's validity in the federal courts. But this is not such a case, and appellants challenge an expenditure, not a tax. Where no such tax is involved, a taxpayer's complaint can consist only of an allegation that public funds have been, or shortly will be, expended for purposes inconsistent with the Constitution. The taxpayer cannot ask the return of any portion of his previous tax payments, cannot prevent the collection of any existing tax debt, and cannot demand an adjudication of the propriety of any particular level of taxation. His tax payments are received for the general purposes of the United States, and are, upon proper receipt, lost in the general revenues. Compare Steward Machine Co. v. Davis, supra, at 301 U. S. 585 . The interests he Page 392 U. S. 129 represents, and the rights he espouses, are, as they are in all public actions, those held in common by all citizens. To describe those rights and interests as personal, and to intimate that they are in some unspecified fashion to be differentiated from those of the general public, reduces constitutional standing to a word game played by secret rules. [ Footnote 3/18 ] Page 392 U. S. 130 Apparently the Court, having successfully circumnavigated the issue, has merely returned to the proposition from which it began. A litigant, it seems, will have standing if he is "deemed" to have the requisite interest, and "if you . . . have standing, then you can be confident you are" suitably interested. Brown, Quis Custodiet Ipsos Custodes? -- The School Prayer Cases, 1963 Sup.Ct.Rev. 1, 22. III It seems to me clear that public actions, whatever the constitutional provisions on which they are premised, may involve important hazards for the continued effectiveness of the federal judiciary. Although I believe such actions to be within the jurisdiction conferred upon the federal courts by Article III of the Constitution, there surely can be little doubt that they strain the judicial function and press to the limit judicial authority. There is every reason to fear that unrestricted public actions might well alter the allocation of authority among the three branches of the Federal Government. It is not, I submit, enough to say that the present members of the Court would not seize these opportunities for abuse, for such actions would, even without conscious abuse, go far toward the final transformation of this Court into the Council of Revision which, despite Madison's support, was rejected by the Constitutional Convention. [ Footnote 3/19 ] I do not doubt that there must be "some effectual power in the government to restrain or correct the infractions" [ Footnote 3/20 ] of Page 392 U. S. 131 the Constitution's several commands, but neither can I suppose that such power resides only in the federal courts. We must as judges recall that, as Mr. Justice Holmes wisely observed, the other branches of the Government "are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts." Missouri, Kansas & Texas R. Co. v. May, 194 U. S. 267 , 194 U. S. 270 . The powers of the federal judiciary will be adequate for the great burdens placed upon them only if they are employed prudently, with recognition of the strengths as well as the hazards that go with our kind of representative government. Presumably the Court recognizes at least certain of these hazards, else it would not have troubled to impose limitations upon the situations in which, and purposes for which, such suits may be brought. Nonetheless, the limitations adopted by the Court are, as I have endeavored to indicate, wholly untenable. This is the more unfortunate because there is available a resolution of this problem that entirely satisfies the demands of the principle of separation of powers. This Court has previously held that individual litigants have standing to represent the public interest, despite their lack of economic or other personal interests, if Congress has appropriately authorized such suits. See especially Oklahoma v. Civil Service Comm'n, 330 U. S. 127 , 330 U. S. 137 -139. Compare Perkins v. Lukens Steel Co., 310 U. S. 113 , 310 U. S. 125 -127. I would adhere to that principle. [ Footnote 3/21 ] Any hazards to the Page 392 U. S. 132 proper allocation of authority among the three branches of the Government would be substantially diminished if public actions had been pertinently authorized by Congress and the President. I appreciate that this Court does not ordinarily await the mandate of other branches of the Government, but it seems to me that the extraordinary character of public actions, and of the mischievous, if not dangerous, consequences they involve for the proper functioning of our constitutional system, and in particular of the federal courts, makes such judicial forbearance the part of wisdom. [ Footnote 3/22 ] It must be emphasized Page 392 U. S. 133 that the implications of these questions of judicial policy are of fundamental significance for the other branches of the Federal Government. Such a rule could readily be applied to this case. Although various efforts have been made in Congress to authorize public actions to contest the validity of federal expenditures in aid of religiously affiliated schools and other institutions, no such authorization has yet been given. [ Footnote 3/23 ] This does not mean that we would, under such a rule, be enabled to avoid our constitutional responsibilities, or that we would confine to limbo the First Amendment or any other constitutional command. The question here is not, despite the Court's unarticulated premise, whether the religious clauses of the First Amendment are hereafter to be enforced by the federal courts; the issue is simply whether plaintiffs of an additional category, heretofore excluded from those courts, are to be permitted to maintain suits. The recent history of this Court is replete with illustrations, including even one announced today ( supra at 392 U.S. 83 fn3/12|>n. 12), that questions involving the religious clauses will not, if federal taxpayers are prevented from contesting federal expenditures, be left "unacknowledged, unresolved, and undecided." Accordingly, for the reasons contained in this opinion, I would affirm the judgment of the District Court. [ Footnote 3/1 ] See, e.g., Davis, Standing to Challenge Governmental Action, 39 Minn.L.Rev. 353; L. Jaffe, Judicial Control of Administrative Action 483-495 (1965). [ Footnote 3/2 ] In particular, I agree, essentially for the reasons stated by the Court, that we do not lack jurisdiction under 28 U.S.C. § 1253 to consider the judgment of the three-judge District Court. [ Footnote 3/3 ] I put aside for the moment the suggestion that a taxpayers rights under the Establishment Clause are more "personal" than they are under any other constitutional provision. [ Footnote 3/4 ] See generally Comment, Taxpayers' suits: A Survey and summary, 69 Yale L.J. 895, 905-906. [ Footnote 3/5 ] The phrase is Professor Jaffe's, adopted, of course, from W. Hohfeld, Fundamental Legal Conceptions (1923). I have here employed the phrases "Hohfeldian" and "non-Hohfeldian" plaintiffs to mark the distinction between the personal and proprietary interests of the traditional plaintiff and the representative and public interests of the plaintiff in a public action. I am aware that we are confronted here by a spectrum of interests of varying intensities, but the distinction is sufficiently accurate, and convenient, to warrant its use at least for purposes of discussion. [ Footnote 3/6 ] Cf. Associated Industries v. Ickes, 134 F.2d 694, 704; Reade v. Ewin, 205 F.2d 630, 632. [ Footnote 3/7 ] L. Jaffe, Judicial Control of Administrative Action 483 (1965). [ Footnote 3/8 ] I agree that implicit in this question is the belief that the federal courts may decline to accept for adjudication cases or questions that, although otherwise within the perimeter of their constitutional jurisdiction, are appropriately thought to be unsuitable at least for immediate judicial resolution. Compare Ashwander v. Tennessee Valley Authority, 297 U. S. 288 , 297 U. S. 345 -348 (concurring opinion); H. Wechsler, Principles, Politics, and Fundamental Law 9-15 (1961), and Bickel, Foreword: The Passive Virtues, The Supreme Court, 1960 Term, 75 Harv.L.Rev. 40, 45-47 (1961). [ Footnote 3/9 ] I must note at the outset that I cannot determine with any certainty the Court's intentions with regard to this first criterion. Its use of Doremus v. Board of Education, 342 U. S. 429 , as an analogue perhaps suggests that it intends to exclude only those cases in which there are virtually no public expenditures. See, e.g., Howard v. City of Boulder, 132 Colo. 401, 290 P.2d 23. On the other hand, the Court also emphasizes that the contested programs may not be "essentially regulatory" programs, and that the statute challenged here "involves a substantial expenditure of federal tax funds." Ante at 392 U. S. 102 , 392 U. S. 103 (emphasis added). Presumably this means that the Court's standing doctrine also excludes any program in which the expenditures are "insubstantial" or which cannot be characterized as a "spending" program. [ Footnote 3/10 ] I am aware that the attack upon the second program would presumably be premised, at least in large part, upon the Free Exercise Clause, and that the Court does not today hold that that clause is within its standing doctrine. I cannot, however, see any meaningful distinction for these purposes, even under the Court's reasoning, between the two religious clauses. [ Footnote 3/11 ] It should be emphasized that the Court finds it unnecessary to examine the history of the Due Process Clause to determine whether it was intended as a "specific limitation" upon Congress' spending and taxing powers. Nor does the Court pause to examine the purposes of the Tenth Amendment, another of the premises of the constitutional claims in Frothingham. But see 22 U. S. Ogden, 9 Wheat. 1, 22 U. S. 199 ; Veazie Bank v. Fenno , 8 Wall. 533, 75 U. S. 541 ; United States v. Butler, 297 U. S. 1 . And compare Everson v Board of Education, 330 U. S. 1 , 330 U. S. 6 . [ Footnote 3/12 ] The Court does make one reference to the availability vel non of other plaintiffs. It indicates that, where a federal statute is directed at a specified class, "the proper party emphasis in the federal standing doctrine would require that standing be limited to the taxpayers within the affected class." Ante at 392 U. S. 104 , n. 25. Assuming arguendo the existence of such a federal "best plaintiff" rule, it is difficult to see why this rule would not altogether exclude taxpayers as plaintiffs under the Establishment Clause, since there plainly may be litigants under the Clause with the personal rights and interests of Hohfeldian plaintiffs. See, e.g., Board of Education v. Allen, decided today, post, p. 392 U. S. 236 . [ Footnote 3/13 ] See, in particular, M. Howe, The Garden and the Wilderness 1-31 (1965); C. Antieau, A. Downey & E. Roberts, Freedom from Federal Establishment (1964). Not all members of the Court have, of course, ignored the complexities of the clause's history. See especially McCollum v. Board of Education, 333 U. S. 203 , 333 U. S. 238 (dissenting opinion of Reed, J.). [ Footnote 3/14 ] Antieau, Downey & Roberts, supra, at 142. See also Howe, supra, at 10-12. [ Footnote 3/15 ] See, in particular, Antieau, Downey & Roberts, supra, at 126-128, 144-146, 207-208. And see 1 Annals of Cong. 730-731. It has elsewhere been observed, I think properly, that "to treat [Madison's Remonstrance] as authoritatively incorporated in the First Amendment is to take grotesque liberties with the simple legislative process, and even more with the complex and diffuse process of ratification of an Amendment by three-fourths of the states." Brown, Quis Custodiet Ipsos Custodes? -- The School Prayer Cases, 1963 Sup.Ct.Rev. 1, 8. [ Footnote 3/16 ] I will, of course, grant that claims under, for example, the Tenth Amendment may present "generalized grievances about the conduct of government or the allocation of power in the Federal System." Ante at 392 U. S. 106 . I will also grant that it would be well if such questions could be avoided by the federal courts. Unfortunately, I cannot see how these considerations are relevant under the Court's principal criterion, which I understand to be merely whether any given constitutional provision is, or is not, a limitation upon Congress' spending powers. It is difficult to see what there is in the fact that a constitutional provision is held to be such a limitation that could sensibly give the Court "confidence" about the fashion in which a given plaintiff will present a given issue. [ Footnote 3/17 ] The bill was intended to establish "a provision for teachers of the Christian religion." It and the Memorial and Remonstrance are reprinted in Everson v. Board of Education, supra, at 330 U. S. 63 -74. [ Footnote 3/18 ] I have equal difficulty with the argument that the religious clauses of the First Amendment create a "personal constitutional right," held by all citizens, such that any citizen may, under those clauses, contest the constitutionality of federal expenditures. The essence of the argument would presumably be that freedom from establishment is a right that inheres in every citizen, thus, any citizen should be permitted to challenge any measure that conceivably involves establishment. Certain provisions of the Constitution, so the argument would run, create the basic structure of our society and of its government, and accordingly should be enforceable at the demand of every individual. Unlike the position taken today by the Court, such a doctrine of standing would at least be internally consistent, but it would also threaten the proper functioning both of the federal courts and of the principle of separation of powers. The Establishment Clause is, after all, only one of many provisions of the Constitution that might be characterized in this fashion. Certain of these provisions, e.g., the Ninth and Tenth Amendments, would provide the basis for cases that, absent a standing question, could not readily be excluded from the federal courts as involving political questions, or as otherwise unsuitable for adjudication under the principles formulated for these purposes by the Court. Compare United Public Workers v. Mitchell, 330 U. S. 75 , 330 U.S. 94 -96; Griswold v. Connecticut, 381 U. S. 479 . Indeed, it might even be urged that the Ninth and Tenth Amendments, since they are largely confirmatory of rights created elsewhere in the Constitution, were intended to declare the standing of individual citizens to contest the validity of governmental activities. It may, of course, also be argued that these amendments are merely "tub[s] for the whale," 1 W. Crosskey, Politics and the Constitution 688 (1953); nut lacking such an argument, any doctrine of standing premised upon the generality or relative importance of a constitutional command would, I think, very substantially increase the number of situations in which individual citizens could present for adjudication "generalized grievances about the conduct of government." I take it that the Court, apart from my Brother DOUGLAS, and I are agreed that any such consequence would be exceedingly undesirable. [ Footnote 3/19 ] See 1 I. Farrand, The Records of the Federal Convention of 1787, at 21, 97-98, 108-110, 138-140 (1911); 2 Farrand, id. at 73-80. [ Footnote 3/20 ] The Federalist No. 80 (Hamilton). [ Footnote 3/21 ] My premise is, as I have suggested, that non-Hohfeldian plaintiffs as such are not excluded by Article III from the jurisdiction of the federal courts. The problem is therefore to determine in what situations their suits should be permitted, and not whether a "statute constitutionally could authorize a person who shows no case or controversy to call on the courts. . . ." Scripps-Howard Radio v. Comm'n, 316 U. S. 4 , 316 U. S. 21 (dissenting opinion). I do not, of course, suggest that Congress' power to authorize suits by specified classes of litigants is without constitutional limitation. This Court has recognized a panoply of restrictions upon the actions that may properly be brought in federal courts, or reviewed by this Court after decision in state courts. It is enough now to emphasize that I would not abrogate these restrictions in situations in which Congress has authorized a suit. The difficult case of Muskrat v. United States, 219 U. S. 346 , does not require more. Whatever the other implications of that case, it is enough to note that there, the United States, as statutory defendant, evidently had "no interest adverse to the claimants." Id. at 219 U. S. 361 . [ Footnote 3/22 ] I am aware that there is a second category of cases in which the Court has entertained claims by non-Hohfeldian plaintiffs: suits brought by state or local taxpayers in state courts to vindicate federal constitutional claims. A certain anomaly may be thought to have resulted from the Court's consideration of such cases while it has refused similar suits brought by federal taxpayers in the federal courts. This anomaly, if such it is, will presumably continue even under the standing doctrine announced today, since we are not told that the standing rules will hereafter be identical for the two classes of taxpayers. Although these questions are not now before the Court, I think it appropriate to note that one possible solution would be to hold that standing to raise federal questions is itself a federal question. See Freund, in E. Cahn, Supreme Court and Supreme Law 35 (1954). This would demand partial reconsideration of, for example, Doremus v. Board of Education, 342 U. S. 429 . Cf. United States v. Raines, 362 U. S. 17 , 362 U. S. 23 , n. 3; Cramp v. Board of Public Instruction, 368 U. S. 278 , 368 U. S. 282 ; Baker v. Carr, 369 U. S. 186 , 369 U. S. 204 . [ Footnote 3/23 ] This question was, however, extensively discussed in the course of the debates upon the Elementary and Secondary Education Act of 1965, 79 Stat. 27. See, e.g., 111 Cong.Rec. 5973, 6132, 7316-7318.

Here is a summary of the key points from the Flast v. Cohen case: - The case centers around the question of whether federal taxpayers have standing to challenge federal spending programs on constitutional grounds. - The Court ruled that a three-judge court was appropriately convened to hear the case, as the constitutional challenge would impact the entire regulatory scheme of the statute in question. - The Court held that there is no absolute bar in Article III of the Constitution against federal taxpayer lawsuits challenging taxing and spending programs as unconstitutional. - To have standing, taxpayers must demonstrate a personal stake in the outcome and establish a logical link between their taxpayer status and the legislative enactment being challenged. - In this case, the taxpayer appellants had standing because they alleged that tax money was being spent in violation of the Establishment Clause of the First Amendment, a specific constitutional protection. - The Court distinguished this case from Frothingham v. Mellon, where taxpayers lacked standing, by arguing that the taxpayers in this case had a direct stake in how their tax money was spent in relation to the Establishment Clause. This case sets an important precedent for taxpayer standing in federal court, particularly in cases involving constitutional challenges to federal spending programs.

Role of Courts

Linda R.S. v. Richard D.

https://supreme.justia.com/cases/federal/us/410/614/

U.S. Supreme Court Linda R. S. v. Richard D., 410 U.S. 614 (1973) Linda R. S. v. Richard D. No. 71-6078 Argued December 6, 1972 Decided March 5, 1973 410 U.S. 614 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS Syllabus Appellant, the mother of an illegitimate child, brought a class action to enjoin the "discriminatory application" of Art. 602 of the Texas Penal Code providing that any "parent" who fails to support his "children" is subject to prosecution, but which, by state judicial construction, applies only to married parents. Appellant sought to enjoin the local district attorney from refraining to prosecute the father of her child. The three-judge District Court dismissed appellant's action for want of standing: Held: Although appellant has an interest in her child's support, application of Art. 602 would not result in support, but only in the father's incarceration, and a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another. Pp. 410 U. S. 616 -619. 335 F. Supp. 80, affirmed. MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, POWELL, and REHNQUIST, JJ., joined. WHITE, J., filed a dissenting opinion, in which DOUGLAS, J., joined, post, p. 410 U. S. 619 . BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 410 U. S. 622 . MR. JUSTICE MARSHALL delivered the opinion of the Court. Appellant, the mother of an illegitimate child, brought this action in United States District Court on behalf of herself, her child, and others similarly situated to enjoin Page 410 U. S. 615 the "discriminatory application" of Art. 602 of the Texas Penal Code. A three-judge court was convened pursuant to 28 U.S.C. § 2281, but that court dismissed the action for want of standing. [ Footnote 1 ] 335 F. Supp. 804 (ND Tex.1971). We postponed consideration of jurisdiction until argument on the merits, 405 U.S. 1064, and now affirm the judgment below. Article 602, in relevant part, provides: "any parent who shall willfully desert, neglect or refuse to provide for the support and maintenance of his or her child or children under eighteen years of age, shall be guilty of a misdemeanor, and upon conviction, shall be punished by confinement in the County Jail for not more than two years." The Texas courts have consistently construed this statute to apply solely to the parents of legitimate children, and to impose no duty of support on the parents of illegitimate children. See Home of the Holy Infancy v. Kaska, 397 S.W.2d 208 , 210 (Tex.1966); Beaver v. State, 96 Tex.Cr.R. 179, 256 S.W. 929 (1923). In her complaint, appellant alleges that one Richard D. is the father of her child, that Richard D. has refused to provide support for the child, and that, although appellant made application to the local district attorney for enforcement of Art. 602 against Richard D., the district attorney refused to take action for the express Page 410 U. S. 616 reason that, in his view, the fathers of illegitimate children were not within the scope of Art. 602. [ Footnote 2 ] Appellant argues that this interpretation of Art. 602 discriminates between legitimate and illegitimate children without rational foundation, and therefore violates the Equal Protection Clause of the Fourteenth Amendment. Cf. Gomez v. Perez, 409 U. S. 535 (1973); Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 (1972); Glona v. American Guarantee & Liability Ins. Co., 391 U. S. 73 (1968); Levy v. Louisiana, 391 U. S. 68 (1968). But cf. Labine v. Vincent, 401 U. S. 532 (1971). Although her complaint is not entirely clear on this point, she apparently seeks an injunction running against the district attorney forbidding him from declining prosecution on the ground that the unsupported child is illegitimate. Before we can consider the merits of appellant's claim or the propriety of the relief requested, however, appellant must first demonstrate that she is entitled to invoke the judicial process. She must, in other words, show that the facts alleged present the court with a "case or controversy" in the constitutional sense, and that she is a proper plaintiff to raise the issues sought to be litigated. The threshold question which must be answered is whether the appellant has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U. S. 186 , 369 U. S. 204 (1962). Recent decisions by this Court have greatly expanded the types of "personal stake[s]" which are capable of Page 410 U. S. 617 conferring standing on a potential plaintiff. Compare Tennessee Electric Power Co. v. TVA, 306 U. S. 118 (1939), and Alabama Power Co. v. Ickes, 302 U. S. 464 (1938), with Barlow v. Collins, 397 U. S. 159 (1970), and Association of Data Processing Service Organizations v. Camp, 397 U. S. 150 (1970). But, as we pointed out only last Term, "broadening the categories of injury that may be alleged in support of standing is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury." Sierra Club v. Morton, 405 U. S. 727 , 405 U. S. 738 (1972). Although the law of standing has been greatly changed in the last 10 years, we have steadfastly adhered to the requirement that, at least in the absence of a statute expressly conferring standing, [ Footnote 3 ] federal plaintiffs must allege some threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction. [ Footnote 4 ] See, e.g., Moose Lodge No. 107 v. Irvis, 407 U. S. 163 , 407 U. S. 166 -167 (1972); Flast v. Cohen, 392 U. S. 83 , 392 U. S. 101 (1968); Baker v. Carr, 369 U. S. 186 , 369 U. S. 204 (1962). Cf. Laird v. Tatum, 408 U. S. 1 , 408 U. S. 13 (1972). Applying this test to the facts of this case, we hold that, in the unique context of a challenge to a criminal statute, appellant has failed to allege a sufficient nexus Page 410 U. S. 618 between her injury and the government action which she attacks to justify judicial intervention. To be sure, appellant no doubt suffered an injury stemming from the failure of her child's father to contribute support payments. But the bare existence of an abstract injury meets only the first half of the standing requirement. "The party who invokes [judicial] power must be able to show . . . that he has sustained or is immediately in danger of sustaining some direct injury as the result of [a statute's] enforcement." Massachusetts v. Mellon, 262 U. S. 447 , 262 U. S. 488 (1923) (emphasis added). See also Ex parte Levitt, 302 U.S. 633, 634 (1937). As this Court made plain in Flast v. Cohen, supra, a plaintiff must show "a logical nexus between the status asserted and the claim sought to be adjudicated. . . . Such inquiries into the nexus between the status asserted by the litigant and the claim he presents are essential to assure that he is a proper and appropriate party to invoke federal judicial power." Id. at 392 U. S. 102 . Here, appellant has made no showing that her failure to secure support payments results from the nonenforcement, as to her child's father, of Art. 602. Although the Texas statute appears to create a continuing duty, it does not follow the civil contempt model whereby the defendant "keeps the keys to the jail in his own pocket," and may be released whenever he complies with his legal obligations. On the contrary, the statute creates a completed offense with a fixed penalty as soon as a parent fails to support his child. Thus, if appellant were granted the requested relief, it would result only in the jailing of the child's father. The prospect that prosecution will, at least in the future, result in payment of support can, at best, be termed only speculative. Certainly the "direct" relationship between the alleged injury and the claim sought to be adjudicated, which previous decisions of this Court suggest is a prerequisite of standing, is absent in this case. Page 410 U. S. 619 The Court's prior decisions consistently hold that a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution. See Younger v. Harris, 401 U. S. 37 , 401 U. S. 42 (1971); Bailey v. Patterson, 369 U. S. 31 , 369 U. S. 33 (1962); Poe v. Ullman, 367 U. S. 497 , 367 U. S. 501 (1961). Although these cases arose in a somewhat different context, they demonstrate that, in American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another. Appellant does have an interest in the support of her child. But given the special status of criminal prosecutions in our system, we hold that appellant has made an insufficient showing of a direct nexus between the vindication of her interest and the enforcement of the State's criminal laws. The District Court was therefore correct in dismissing the action for want of standing, [ Footnote 5 ] and its judgment must be affirmed. [ Footnote 6 ] So ordered. [ Footnote 1 ] The District Court also considered an attack on Art. 4.02 of the Texas Family Code, which imposes civil liability upon "spouses" for the support of their minor children. Petitioner argued that the statute violated equal protection because it imposed no civil liability on the parents of illegitimate children. However, the three-judge court held that the challenge to this statute was not properly before it, since appellant did not seek an injunction running against any state official as to it. See 28 U.S.C. § 2281. The Court therefore remanded this portion of the case to a single district judge. 335 F. Supp. 804 , 807. The District Court's disposition of petitioner's Art. 4.02 claim is not presently before us. But see Gomez v. Perez, 409 U. S. 535 (1973). [ Footnote 2 ] Appellant attached to her complaint an affidavit, signed by an assistant district attorney, stating that the State was unable to institute prosecution "due to case law construing Art. 602 of the Penal Code to be inapplicable to fathers of illegitimate children." [ Footnote 3 ] It is, of course, true that "Congress may not confer jurisdiction on Art. III federal courts to render advisory opinions," Sierra Club v. Morton, 405 U. S. 727 , 405 U. S. 732 n. 3 (1972). But Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute. See, e.g., Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205 , 409 U. S. 212 (1972) (WHITE, J., concurring); Hardin v. Kentucky Utilities Co., 390 U. S. 1 , 390 U. S. 6 (1968). [ Footnote 4 ] One of the leading commentators on standing has written, "Even though the past law of standing is so cluttered and confused that almost every proposition has some exception, the federal courts have consistently adhered to one major proposition without exception: one who has no interest of his own at stake always lacks standing." K. Davis, Administrative Law Text 428-429 (3d ed.1972). [ Footnote 5 ] We noted last Term that "[t]he requirement that a party seeking review must allege facts showing that he is himself adversely affected does not insulate executive action from judicial review, nor does it prevent any public interests from being protected through the judicial process." Sierra Club v. Morton, 405 U.S. at 405 U. S. 740 . That observation is fully applicable here. As the District Court stated, "the proper party to challenge the constitutionality of Article 602 would be a parent of a legitimate child who has been prosecuted under the statute. Such a challenge would allege that, because the parents of illegitimate children may not be prosecuted, the statute unfairly discriminates against the parents of legitimate children." 335 F. Supp. at 806. [ Footnote 6 ] Since we dispose of this case on the basis of lack of standing, we intimate no view as to the merits of appellant's claim. But cf. Gomez v. Perez, 409 U. S. 535 (1973). MR. JUSTICE WHITE, with whom MR. JUSTICE DOUGLAS joins, dissenting. Appellant Linda R.S. alleged that she is the mother of an illegitimate child and that she is suing "on behalf of Page 410 U. S. 620 herself, her minor daughter, and on behalf of all other women and minor children who have sought, are seeking, or in the future will seek to obtain support for so-called illegitimate children from said child's father." Appellant sought a declaratory judgment that Art. 602 is unconstitutional and an injunction against its continued enforcement against fathers of legitimate children only. Appellant further sought an order requiring Richard D., the putative father, "to pay a reasonable amount of money for the support of his child." Obviously there are serious difficulties with appellant's complaint insofar as it may be construed as seeking to require the official appellees to prosecute Richard D. or others, or to obtain what amounts to a federal child support order. But those difficulties go to the question of what relief the court may ultimately grant appellant. They do not affect her right to bring this class action. The Court notes, as it must, that the father of a legitimate child, if prosecuted under Art. 602, could properly raise the statute's underinclusiveness as an affirmative defense. See McLaughlin v. Florida, 379 U. S. 184 (1964); Railway Express Agency v. New York, 336 U. S. 106 (1949). Presumably that same father would have standing to affirmatively seek to enjoin enforcement of the statute against him. Cf. Rinaldi v. Yeager, 384 U. S. 305 (1966); see also Epperson v. Arkansas, 393 U. S. 97 (1968). The question then becomes simply: why should only an actual or potential criminal defendant have a recognizable interest in attacking this allegedly discriminatory statute and not appellant and her class? They are not, after all, in the position of members of the public at large who wish merely to force an enlargement of state criminal laws. Cf. Sierra Club v. Morton, 405 U. S. 727 (1972). Appellant, her daughter, and the children born out of wedlock whom Page 410 U. S. 621 she is attempting to represent have all allegedly been excluded intentionally from the class of persons protected by a particular criminal law. They do not get the protection of the laws that other women and children get. Under Art. 602, they are rendered nonpersons; a father may ignore them with full knowledge that he will be subjected to no penal sanctions. The Court states that the actual coercive effect of those sanctions on Richard D. or others "can, at best, be termed only speculative." This is a very odd statement. I had always thought our civilization has assumed that the threat of penal sanctions had something more than a "speculative" effect on a person's conduct. This Court has long acted on that assumption in demanding that criminal laws be plainly and explicitly worded so that people will know what they mean and be in a position to conform their conduct to the mandates of law. Certainly Texas does not share the Court's surprisingly novel view. It assumes that criminal sanctions are useful in coercing fathers to fulfill their support obligations to their legitimate children. Unquestionably, Texas prosecutes fathers of legitimate children on the complaint of the mother asserting nonsupport and refuses to entertain like complaints from a mother of an illegitimate child. I see no basis for saying that the latter mother has no standing to demand that the discrimination be ended, one way or the other. If a State were to pass a law that made only the murder of a white person a crime, I would think that Negroes as a class would have sufficient interest to seek a declaration that that law invidiously discriminated against them. Appellant and her class have no less interest in challenging their exclusion from what their own State perceives as being the beneficial protections that flow from the existence and enforcement of a criminal child support law. Page 410 U. S. 622 I would hold that appellant has standing to maintain this suit and would, accordingly, reverse the judgment and remand the case for further proceedings. MR. JUSTICE BLACKMUN, with whom MR. JUSTICE BRENNAN joins, dissenting. By her complaint, appellant challenged Texas' exemption of fathers of illegitimate children from both civil and criminal liability. Our decision in Gomez v. Perez, 409 U. S. 535 (1973), announced after oral argument in this case, has important implications for the Texas law governing a man's civil liability for the support of children he has fathered illegitimately. Although appellant's challenge to the civil statute, as the Court points out, is not procedurally before us, ante at 410 U. S. 615 n. 1, her brief makes it clear that her basic objection to the Texas system concerns the absence of a duty of paternal support for illegitimate children. The history of the case suggests that appellant sought to utilize the criminal statute as a tool to compel support payments for her child. The decision in Gomez may remove the need for appellant to rely on the criminal law if she continues her quest for paternal contribution. The standing issue now decided by the Court is, in my opinion, a difficult one with constitutional overtones. I see no reason to decide that question in the absence of a live, ongoing controversy. See Rice v. Sioux City Memorial Park Cemetery, 349 U. S. 70 (1955). Gomez now has beclouded the state precedents relied upon by both parties in the District Court. Thus, "intervening circumstances may well have altered the views of the participants," and the necessity for resolving the particular dispute may no longer be present. Protective Committee v. Anderson, 390 U. S. 414 , 390 U. S. 453 -454 (1968). Under these circumstances, I would remand the case to the District Court for clarification of the status of the litigation.

The Supreme Court ruled that the mother of an illegitimate child did not have standing to challenge the Texas law that exempted fathers of illegitimate children from criminal liability for failing to provide child support. The Court held that while the mother had an interest in her child's support, the application of the law would only result in the father's incarceration, and citizens lack a judicially cognizable interest in the prosecution or non-prosecution of another person.

Role of Courts

Powell v. McCormack

https://supreme.justia.com/cases/federal/us/395/486/

U.S. Supreme Court Powell v. McCormack, 395 U.S. 486 (1969) Powell v. McCormack No. 138 Argued April 21, 1969 Decided June 16, 1969 395 U.S. 486 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Syllabus Petitioner Powell, who had been duly elected to serve in the House of Representatives for the 90th Congress, was denied his seat by the adoption of House Resolution No. 278 which the Speaker had ruled was on the issue of excluding Powell and could be decided by majority vote. The House's action followed charges that Powell had misappropriated public funds and abused the process of the New York courts. Powell and certain voters of his congressional district thereafter brought suit in the District Court for injunctive, mandatory, and declaratory relief against respondents, certain named House members, the Speaker, Clerk, Sergeant at Arms, and Doorkeeper of the House, alleging that the Resolution barring his seating violated Art. I, § 2, cl. 1, of the Constitution as contrary to the mandate that House members be elected by the people of each State, and cl. 2, which sets forth the qualifications for membership of age, citizenship, and residence (all concededly met by Powell), which they claimed were exclusive. The complaint alleged that the House Clerk threatened to refuse to perform the service to which Powell as a duly elected Congressman was entitled; that the Sergeant at Arms refused to pay Powell's salary, and that the Doorkeeper threatened to deny Powell admission to the House chamber. The District Court granted respondents' motion to dismiss the complaint "for want of jurisdiction of the subject matter." The Court of Appeals affirmed on somewhat different grounds. While the case was pending in this Court, the 90th Congress ended and Powell was elected to and seated by the 91st Congress. Respondents contend that (1) the case is moot; (2) the Speech or Debate Clause (Art. I, § 6) forecloses judicial review; (3) the decision to exclude Powell is supported by the expulsion power in Art. I, § 5, under which the House, which "shall be the Judge of the . . . Qualifications of its own embers," can by a two-thirds vote (exceeded here) expel a member for any reason at all; (4) the Court lacks subject matter jurisdiction over this litigation, or, alternatively, Page 395 U. S. 487 (5) the litigation is not justiciable under general criteria or because it involves a political question. Held: 1. The case has not been mooted by Powell's seating in the 91st Congress, since his claim for back salary remains a viable issue. Pp. 395 U. S. 495 -500. (a) Powell's averments as to declaratory relief are sufficient. Alejandrino v. Quezon, 271 U. S. 528 , distinguished. Pp. 395 U. S. 496 -499. (b) The mootness of Powell's claim to a seat in the 90th Congress does not affect the viability of his back salary claim with respect to the term for which he was excluded. Bond v. Floyd, 385 U. S. 116 . Pp. 395 U. S. 499 -500. 2. Although the Speech or Debate Clause bars action against respondent Congressmen, it does not bar action against the other respondents, who are legislative employees charged with unconstitutional activity, Kilbourn v. Thompson, 103 U. S. 168 ; Dombrowski v. Eastland, 387 U. S. 82 , and the fact that House employees are acting pursuant to express orders of the House does not preclude judicial review of the constitutionality of the underlying legislative decision. Pp. 395 U. S. 501 -506. 3. House Resolution No. 278 was an exclusion proceeding, and cannot be treated as an expulsion proceeding (which House members have viewed as not applying to pre-election misconduct). This Court will not speculate whether the House would have voted to expel Powell had it been faced with that question. Pp. 395 U. S. 506 -512. 4. The Court has subject matter jurisdiction over petitioners' action. Pp. 395 U. S. 512 -516. (a) The case is one "arising under" the Constitution within the meaning of Art. III, since petitioners' claims "will be sustained if the Constitution . . . [is] given one construction and will be defeated if it [is] given another." Bell v. Hood, 327 U. S. 678 . Pp. 395 U. S. 513 -514. (b) The district courts are given a broad grant of jurisdiction by 28 U.S.C. § 1331(a), over "all civil actions wherein the matter in controversy . . . arises under the Constitution . . . ," and, while that grant is not entirely coextensive with Art. III, there is no indication that § 1331(a) was intended to foreclose federal courts from entertaining suits involving the seating of Congressmen. Pp. 395 U. S. 514 -516. 5. This litigation is justiciable because the claim presented and the relief sought can be judicially resolved. Pp. 395 U. S. 516 -518. (a) Petitioners' claim does not lack justiciability on the ground that the House's duty cannot be judicially determined, since, if Page 395 U. S. 488 petitioners are correct, the House had a duty to seat Powell once it determined that he met the standing qualifications set forth in the Constitution. P. 395 U. S. 517 . (b) The relief sought is susceptible of judicial resolution, since, regardless of the appropriateness of a coercive remedy against House personnel (an issue not here decided), declaratory relief is independently available. Pp. 395 U. S. 517 -518. 6. The case does not involve a "political question," which, under the separation of powers doctrine, would not be justiciable. Pp. 395 U. S. 518 -549. (a) The Court's examination of relevant historical materials shows at most that Congress' power under Art. I, § 5, to judge the "Qualifications of its Members" is a "textually demonstrable constitutional commitment . . . to [that] co-ordinate political department of government" ( Baker v. Carr, 369 U. S. 186 , 369 U. S. 217 ) to judge only standing qualifications which are expressly set forth in the Constitution; hence, the House has no power to exclude a member-elect who meets the Constitution's membership requirements. Pp. 395 U. S. 518 -548. (b) The case does not present a political question in the sense, also urged by respondents, that it would entail a "potentially embarrassing confrontation between coordinate branches" of the Government, since our system of government requires federal courts on occasion to interpret the Constitution differently from other branches. Pp. 395 U. S. 548 -549. 7. In judging the qualifications of its members under Art. I, § 5, Congress is limited to the standing qualifications expressly prescribed by the Constitution. P. 395 U. S. 550 . 129 U.S.App.D.C. 354, 395 F.2d 577, affirmed in part, reversed in part, and remanded to the District Court for entry of a declaratory judgment and for further proceedings. Page 395 U. S. 489 MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. In November, 1966, petitioner Adam Clayton Powell, Jr., was duly elected from the 18th Congressional District of New York to serve in the United States House of Representatives for the 90th Congress. However, pursuant to a House resolution, he was not permitted to take his seat. Powell (and some of the voters of his district) then filed suit in Federal District Court, claiming that the House could exclude him only if it found he failed to meet the standing requirements of age, citizenship, and residence contained in Art. I, § 2, of the Constitution -- requirements the House specifically found Powell met -- and thus had excluded him unconstitutionally. The District Court dismissed petitioners' complaint "for want of jurisdiction of the subject matter." A panel of the Court of Appeals affirmed the dismissal, although on somewhat different grounds, each judge filing a separate opinion. We have determined that it was error to dismiss the complaint, and that petitioner Powell is entitled to a declaratory judgment that he was unlawfully excluded from the 90th Congress. I FACTS During the 89th Congress, a Special Subcommittee on Contracts of the Committee on House Administration conducted an investigation into the expenditures of the Committee on Education and Labor, of which petitioner Page 395 U. S. 490 Adam Clayton Powell, Jr., was chairman. The Special Subcommittee issued a report concluding that Powell and certain staff employees had deceived the House authorities as to travel expenses. The report also indicated there was strong evidence that certain illegal salary payments had been made to Powell's wife at his direction. See H.R.Rep. No. 2349, 89th Cong., 2d Sess., 6-7 (1966). No formal action was taken during the 89th Congress. However, prior to the organization of the 90th Congress, the Democratic members-elect met in caucus and voted to remove Powell as chairman of the Committee on Education and Labor. See H.R.Rep. No. 27, 90th Cong., 1st Sess., 1-2 (1967). When the 90th Congress met to organize in January, 1967, Powell was asked to step aside while the oath was administered to the other members-elect. Following the administration of the oath to the remaining members, the House discussed the procedure to be followed in determining whether Powell was eligible to take his seat. After some debate, by a vote of 363 to 65, the House adopted House Resolution No. 1, which provided that the Speaker appoint a Select Committee to determine Powell's eligibility. 113 Cong.Rec. 26-27. Although the resolution prohibited Powell from taking his seat until the House acted on the Select Committee's report, it did provide that he should receive all the pay and allowances due a member during the period. The Select Committee, composed of nine lawyer-members, issued an invitation to Powell to testify before the Committee. The invitation letter stated that the scope of the testimony and investigation would include Powell's qualifications as to age, citizenship, and residency; his involvement in a civil suit (in which he had been held in contempt), and "[m]atters of . . . alleged official misconduct since January 3, 1961." See Hearings on Page 395 U. S. 491 H.R.Res. No. 1 before Select Committee Pursuant to H.R.Res. No. 1, 90th Cong., 1st Sess., 5 (1967) (hereinafter Hearings). Powell appeared at the Committee hearing held on February 8, 1967. After the Committee denied in part Powell's request that certain adversary-type procedures be followed, [ Footnote 1 ] Powell testified. He would, however, give information relating only to his age, citizenship, and residency; upon the advice of counsel, he refused to answer other questions. On February 10, 1967, the Select Committee issued another invitation to Powell. In the letter, the Select Committee informed Powell that its responsibility under the House Resolution extended to determining not only whether he met the standing qualifications of Art. I, § 2, but also to "inquir[ing] into the question of whether you should be punished or expelled pursuant to the powers granted . . . the House under Article I, Section 5, . . . of the Constitution. In other words, the Select Committee is of the opinion that, at the conclusion of the present inquiry, it has authority to report back to the House recommendations with respect to . . . seating, expulsion or other punishment." See Hearings 110. Powell did Page 395 U. S. 492 not appear at the next hearing, held February 14, 1967. However, his attorneys were present, and they informed the Committee that Powell would not testify about matters other than his eligibility under the standing qualifications of Art. I, § 2. Powell's attorneys reasserted Powell's contention that the standing qualifications were the exclusive requirements for membership, and they further urged that punishment or expulsion was not possible until a member had been seated. See Hearings 111-113. The Committee held one further hearing at which neither Powell nor his attorneys were present. Then, on February 23, 1967, the Committee issued its report, finding that Powell met the standing qualifications of Art. I, § 2. H.R.Rep. No. 27, 90th Cong., 1st Sess., 31 (1967). However, the Committee further reported that Powell had asserted an unwarranted privilege and immunity from the processes of the courts of New York; that he had wrongfully diverted House funds for the use of others and himself, and that he had made false reports on expenditures of foreign currency to the Committee on House Administration. Id. at 31-32. The Committee recommended that Powell be sworn and seated as a member of the 90th Congress, but that he be censured by the House, fined $40,000, and be deprived of his seniority. Id. at 33. The report was presented to the House on March 1, 1967, and the House debated the Select Committee's proposed resolution. At the conclusion of the debate, by a vote of 222 to 202 the House rejected a motion to bring the resolution to a vote. An amendment to the resolution was then offered; it called for the exclusion of Powell and a declaration that his seat was vacant. The Speaker ruled that a majority vote of the House would be sufficient to pass the resolution if it were so Page 395 U. S. 493 amended. 113 Cong.Rec. 5020. After further debate, the amendment was adopted by a vote of 248 to 176. Then the House adopted by a vote of 307 to 116 House Resolution No. 278 in its amended form, thereby excluding Powell and directing that the Speaker notify the Governor of New York that the seat was vacant. Powell and 13 voters of the 18th Congressional District of New York subsequently instituted this suit in the United States District Court for the District of Columbia. Five members of the House of Representatives were named as defendants individually and "as representatives of a class of citizens who are presently serving . . . as members of the House of Representatives." John W. McCormack was named in his official capacity as Speaker, and the Clerk of the House of Representatives, the Sergeant at Arms and the Doorkeeper were named individually and in their official capacities. The complaint alleged that House Resolution No. 278 violated the Constitution, specifically Art. I, § 2, cl. 1, because the resolution was inconsistent with the mandate that the members of the House shall be elected by the people of each State, and Art. I, § 2, cl. 2, which, petitioners alleged, sets forth the exclusive qualifications for membership. [ Footnote 2 ] The complaint further alleged that the Clerk of the House threatened to refuse to perform the service for Powell to which a duly elected Congressman is entitled, that the Sergeant at Arms refused to pay Powell his salary, and that the Doorkeeper threatened to deny Powell admission to the House chamber. Page 395 U. S. 494 Petitioners asked that a three-judge court be convened. [ Footnote 3 ] Further, they requested that the District Court grant a permanent injunction restraining respondents from executing the House Resolution, and enjoining the Speaker from refusing to administer the oath, the Clerk from refusing to perform the duties due a Representative, the Sergeant at Arms from refusing to pay Powell his salary, and the Doorkeeper from refusing to admit Powell to the Chamber. [ Footnote 4 ] The complaint also requested a declaratory judgment that Powell's exclusion was unconstitutional. The District Court granted respondents' motion to dismiss the complaint "for want of jurisdiction of the subject matter." Powell v. McCormack, 266 F. Supp. 354 (D.C. D.C.1967). [ Footnote 5 ] The Court of Appeals for the District of Columbia Circuit affirmed on somewhat different grounds, with each judge of the panel filing a separate opinion. Powell v. McCormack, 129 U.S.App.D.C. 354, 395 F.2d 577 (1968). We granted certiorari. 393 U.S. 949 (1968). While the case was pending on our docket, the 90th Congress officially terminated, and the 91st Congress was seated. In November, 1968, Powell was again elected as the representative of the 18th Congressional District of New York, and he was seated by the 91st Congress. The resolution seating Powell also Page 395 U. S. 495 fined him $25,000. See H.R.Res. No. 2, 91st Cong., 1st Sess., 115 Cong.Rec. H21 (daily ed., January 3, 1969). Respondents then filed a suggestion of mootness. We postponed further consideration of this suggestion to a hearing on the merits. 393 U.S. 1060 (1969). Respondents press upon us a variety of arguments to support the court below; they will be considered in the following order. (1) Events occurring subsequent to the grant of certiorari have rendered this litigation moot. (2) The Speech or Debate Clause of the Constitution, Art. I, § 6, insulates respondents' action from judicial review. (3) The decision to exclude petitioner Powell is supported by the power granted to the House of Representatives to expel a member. (4) This Court lacks subject matter jurisdiction over petitioners' action. (5) Even if subject matter jurisdiction is present, this litigation is not justiciable either under the general criteria established by this Court or because a political question is involved. II MOOTNESS After certiorari was granted, respondents filed a memorandum suggesting that two events which occurred subsequent to our grant of certiorari require that the case be dismissed as moot. On January 3, 1969, the House of Representatives of the 90th Congress officially terminated, and petitioner Powell was seated as a member of the 91st Congress. 115 Cong.Rec. H22 (daily ed., January 3, 1969). Respondents insist that the gravamen of petitioners' complaint was the failure of the 90th Congress to seat petitioner Powell, and that, since the House of Representatives is not a continuing body [ Footnote 6 ] Page 395 U. S. 496 and Powell has now been seated, his claims are moot. Petitioners counter that three issues remain unresolved, and thus this litigation present a "case or controversy" within the meaning of Art. III: [ Footnote 7 ] (1) whether Powell was unconstitutionally deprived of his seniority by his exclusion from the 90th Congress; (2) whether the resolution of the 91st Congress imposing as "punishment" a $25,000 fine is a continuation of respondents' allegedly unconstitutional exclusion, see H.R.Res. No. 2, 91st Cong., 1st Sess., 115 Cong.Rec. H21 (daily ed., January 3, 1969), and (3) whether Powell is entitled to salary withheld after his exclusion from the 90th Congress. We conclude that Powell's claim for back salary remains viable even though he has been seated in the 91st Congress, and thus find it unnecessary to determine whether the other issues have become moot. [ Footnote 8 ] Simply stated, a case is moot when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome. See E. Borchard, Declaratory Page 395 U. S. 497 Judgments 35-37 (2d ed.1941). Where one of the several issues presented becomes moot, the remaining live issues supply the constitutional requirement of a case or controversy. See United Public Workers v. Mitchell, 330 U. S. 75 , 330 U. S. 86 -94 (1947); 6A J. Moore, Federal Practice 1157.13 (2d ed.1966). Despite Powell's obvious and continuing interest in his withheld salary, respondents insist that Alejandrino v. Quezon, 271 U. S. 528 (1926), leaves us no choice but to dismiss this litigation as moot. Alejandrino, a duly appointed Senator of the Philippine Islands, was suspended for one year by a resolution of the Philippine Senate and deprived of all "prerogatives, privileges and emoluments" for the period of his suspension. The Supreme Court of the Philippines refused to enjoin the suspension. By the time the case reached this Court, the suspension had expired and the Court dismissed as moot Alejandrino's request that the suspension be enjoined. Then, sua sponte, [ Footnote 9 ] the Court considered whether the possibility that Alejandrino was entitled to back salary required it "to retain the case for the purpose of determining whether he [Alejandrino] may not have a mandamus for this purpose." Id. at 271 U. S. 533 . Characterizing the issue of Alejandrino's salary as a "mere incident" to his claim that the suspension was improper, the Court noted that he had not briefed the salary issue, and that his request for mandamus did not set out with sufficient clarity the official or set of officials against whom the mandamus should issue. Id. at 271 U. S. 533 -534. The Court therefore refused to treat the salary claim and dismissed the entire action as moot. Page 395 U. S. 498 Respondents believe that Powell's salary claim is also a "mere incident" to his insistence that he was unconstitutionally excluded so that we should likewise dismiss this entire action as moot. This argument fails to grasp that the reason for the dismissal in Alejandrino was not that Alejandrino's deprivation of salary was insufficiently substantial to prevent the case from becoming moot, but rather that his failure to plead sufficient facts to establish his mandamus claim made it impossible for any court to resolve the mandamus request. [ Footnote 10 ] By contrast, petitioners' complaint names the official responsible for the payment of congressional salaries and asks for both mandamus and an injunction against that official. [ Footnote 11 ] Furthermore, even if respondents are correct that petitioners' averments as to injunctive relief are not sufficiently definite, it does not follow that this litigation must be dismissed as moot. Petitioner Powell has not been paid his salary by virtue of an allegedly unconstitutional House resolution. That claim is still unresolved, and hotly contested by clearly adverse parties. Declaratory relief has been requested, a form of relief not available Page 395 U. S. 499 when Alejandrino was decided. [ Footnote 12 ] A court may grant declaratory relief even though it chooses not to issue an injunction or mandamus. See United Public Workers v. Mitchell, supra, at 330 U. S. 93 ; cf. United States v. California, 332 U. S. 19 , 332 U. S. 25 -26 (1947). A declaratory judgment can then be used as a predicate to further relief, including an injunction. 28 U.S.C. § 2202; see Vermont Structural Slate Co. v. Tatko Brothers Slate Co., 253 F.2d 29 (C.A.2d Cir.1958); United States Lines Co. v. Shaughnessy, 195 F.2d 385 (C.A.2d Cir.1952). Alejandrino stands only for the proposition that, where one claim has become moot and the pleadings are insufficient to determine whether the plaintiff is entitled to another remedy, the action should be dismissed as moot. [ Footnote 13 ] There is no suggestion that petitioners' averments as to declaratory relief are insufficient, and Powell's allegedly unconstitutional deprivation of salary remains unresolved. Respondents further argue that Powell's "wholly incidental and subordinate" demand for salary is insufficient to prevent this litigation from becoming moot. They suggest that the "primary and principal relief" sought was the seating of petitioner Powell in the 90th Congress, rendering his presumably secondary claims not worthy of judicial consideration. Bond v. Floyd, 385 U. S. 116 (1966), rejects respondents' theory that the mootness of a "primary" claim requires a conclusion that all "secondary" claims are moot. At the Bond oral argument, it was suggested that the expiration of the session of the Georgia Legislature which excluded Bond had rendered Page 395 U. S. 500 the case moot. We replied: "The State has not pressed this argument, and it could not do so, because the State has stipulated that, if Bond succeeds on this appeal, he will receive back salary for the term from which he was excluded." 385 U.S. at 385 U. S. 128 , n. 4. Bond is not controlling, argue respondents, because the legislative term from which Bond was excluded did not end until December 31, 1966, [ Footnote 14 ] and our decision was rendered December 5; further, when Bond was decided, Bond had not as yet been seated, while, in this case, Powell has been. [ Footnote 15 ] Respondents do not tell us, however, why these factual distinctions create a legally significant difference between Bond and this case. We relied in Bond on the outstanding salary claim, not the facts respondents stress, to hold that the case was not moot. Finally, respondents seem to argue that Powell's proper action to recover salary is a suit in the Court of Claims, so that, having brought the wrong action, a dismissal for mootness is appropriate. The short answer to this argument is that it confuses mootness with whether Powell has established a right to recover against the Sergeant at Arms, a question which it is inappropriate to treat at this stage of the litigation. [ Footnote 16 ] Page 395 U. S. 501 III SPEECH OR DEBATE CLAUSE Respondents assert that the Speech or Debate Clause of the Constitution, Art. I, § 6, [ Footnote 17 ] is an absolute bar to petitioners' action. This Court has on four prior occasions -- Dombrowski v. Eastland, 387 U. S. 82 (1967); United States v. Johnson, 383 U. S. 169 (1966); Tenney v. Brandhove, 341 U. S. 367 (1951), and Kilbourn v. Thompson, 103 U. S. 168 (1881) -- been called upon to determine if allegedly unconstitutional action taken by legislators or legislative employees is insulated from judicial review by the Speech or Debate Clause. Both parties insist that their respective positions find support in these cases, and tender for decision three distinct issues: (1) whether respondents, in participating in the exclusion of petitioner Powell, were "acting in the sphere of legitimate legislative activity," Tenney v. Brandhove, supra, at 341 U. S. 376 ; (2) assuming that respondents were so acting, whether the fact that petitioners seek neither damages from any of the respondents nor a criminal prosecution lifts the bar of the clause; [ Footnote 18 ] and (3) even if this Page 395 U. S. 502 action may not be maintained against a Congressman, whether those respondents who are merely employees of the House may plead the bar of the clause. We find it necessary to treat only the last of these issues. The Speech or Debate Clause, adopted by the Constitutional Convention without debate or opposition, [ Footnote 19 ] finds its roots in the conflict between Parliament and the Crown culminating in the Glorious Revolution of 1688 and the English Bill of Rights of 1689. [ Footnote 20 ] Drawing upon this history, we concluded in United States v. Johnson, supra, at 383 U. S. 181 , that the purpose of this clause was "to prevent intimidation [of legislators] by the executive and accountability before a possibly hostile Judiciary." Although the clause sprang from a fear of seditious libel actions instituted by the Crown to punish unfavorable speeches made in Parliament, [ Footnote 21 ] we have held that it would be a "narrow view" to confine the protection of the Speech or Debate Clause to words spoken in debate. Committee reports, resolutions, and the act of voting are equally covered, as are "things generally done in a session of the House by one of its members in relation to the business before it." Kilbourn v. Thompson, supra, at 103 U. S. 204 . Furthermore, the clause not only provides a Page 395 U. S. 503 defense on the merits, but also protects a legislator from the burden of defending himself. Dombrowski v. Eastland, supra, at 387 U. S. 85 ; see Tenney v. Brandhove, supra, at 341 U. S. 377 . Our cases make it clear that the legislative immunity created by the Speech or Debate Clause performs an important function in representative government. It insures that legislators are free to represent the interests of their constituents without fear that they will be later called to task in the courts for that representation. Thus, in Tenney v. Brandhove, supra, at 341 U. S. 373 , the Court quoted the writings of James Wilson as illuminating the reason for legislative immunity: "In order to enable and encourage a representative of the publick to discharge his publick trust with firmness and success, it is indispensably necessary that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of everyone, however powerful, to whom the exercise of that liberty may occasion offence. [ Footnote 22 ]" Legislative immunity does not, of course, bar all judicial review of legislative acts. That issue was settled by implication as early as 1803, See Marbury v. Madison , 1 Cranch 137, and expressly in Kilbourn v. Thompson, the first of this Court's cases interpreting the reach of the Speech or Debate Clause. Challenged in Kilbourn was the constitutionality of a House Resolution ordering the arrest and imprisonment of a recalcitrant witness who had refused to respond to a subpoena issued by a House investigating committee. While holding that the Speech or Debate Clause barred Kilbourn's action for false imprisonment brought against several members of the House, the Court nevertheless reached the merits of Kilbourn's attack, and decided that, since the House had no power to punish for contempt, Kilbourn's imprisonment Page 395 U. S. 504 pursuant to the resolution was unconstitutional. It therefore allowed Kilbourn to bring his false imprisonment action against Thompson, the House's Sergeant at Arms, who had executed the warrant for Kilbourn's arrest. The Court first articulated in Kilbourn and followed in Dombrowski v. Eastland [ Footnote 23 ] the doctrine that, although an action against a Congressman may be barred by the Speech or Debate Clause, legislative employees who participated in the unconstitutional activity are responsible for their acts. Despite the fact that petitioners brought this suit against several House employees -- the Sergeant at Arms, the Doorkeeper and the Clerk -- as well as several Congressmen, respondents argue that Kilbourn and Dombrowski are distinguishable. Conceding that, in Kilbourn, the presence of the Sergeant at Arms, and, in Dombrowski, the presence of a congressional subcommittee counsel as defendants in the litigation allowed judicial review of the challenged congressional action, respondents urge that both cases concerned an affirmative act performed by the employee outside the House having a direct effect upon a private citizen. Here, they continue, the relief sought relates to actions taken by House agents solely within the House. Alternatively, respondents insist that Kilbourn and Dombrowski prayed for damages, while petitioner Powell asks that the Sergeant at Arms disburse funds, an assertedly greater interference with the legislative process. We reject the proffered distinctions. That House employees are acting pursuant to express orders of the House does not bar judicial review of the constitutionality of the underlying legislative decision. Page 395 U. S. 505 Kilbourn decisively settles this question, since the Sergeant at Arms was held liable for false imprisonment even though he did nothing more than execute the House Resolution that Kilbourn be arrested and imprisoned. [ Footnote 24 ] Respondents' suggestions thus ask us to distinguish between affirmative acts of House employees and situations in which the House orders its employees not to act or between actions for damages and claims for salary. We can find no basis in either the history of the Speech or Debate Clause or our cases for either distinction. The purpose of the protection afforded legislators is not to forestall judicial review of legislative action, but to insure that legislators are not distracted from or hindered in the performance of their legislative tasks by being called into court to defend their actions. A legislator is no more or no less hindered or distracted by litigation against a legislative employee calling into question the employee's affirmative action than he would be by a lawsuit questioning the employee's failure to act. Nor is the distraction or hindrance increased because the claim is for salary, rather than damages, or because the litigation questions action taken by the employee within, rather than without, the House. Freedom of legislative activity and the purposes of the Speech or Debate Clause are fully protected if legislators are relieved of the burden of defending themselves. [ Footnote 25 ] In Kilbourn and Dombrowski, Page 395 U. S. 506 we thus dismissed the action against members of Congress, but did not regard the Speech or Debate Clause as a bar to reviewing the merits of the challenged Congressional action, since congressional employees were also sued. Similarly, though this action may be dismissed against the Congressmen, petitioners are entitled to maintain their action against House employees and to judicial review of the propriety of the decision to exclude petitioner Powell. [ Footnote 26 ] As was said in Kilbourn, in language which time has not dimmed: "Especially is it competent and proper for this court to consider whether its [the legislature's] proceedings are in conformity with the Constitution and laws because, living under a written constitution, no branch or department of the government is supreme, and it is the province and duty of the judicial department to determine, in cases regularly brought before them, whether the powers of any branch of the government, and even those of the legislature in the enactment of laws, have been exercised in conformity to the Constitution, and, if they have not, to treat their acts as null and void." 103 U.S. at 103 U. S. 199 . IV EXCLUSION OR EXPULSION The resolution excluding petitioner Powell was adopted by a vote in excess of two-thirds of the 434 Members of Page 395 U. S. 507 Congress, 307 to 116. 113 Cong.Rec. 5037-5038. Article I, § 5, grants the House authority to expel a member "with the Concurrence of two thirds." [ Footnote 27 ] Respondents assert that the House may expel a member for any reason whatsoever, and that, since a two-thirds vote was obtained, the procedure by which Powell was denied his seat in the 90th Congress should be regarded as an expulsion, not an exclusion. Cautioning us not to exalt form over substance, respondents quote from the concurring opinion of Judge McGowan in the court below: "Appellant Powell's cause of action for a judicially compelled seating thus boils down, in my view, to the narrow issue of whether a member found by his colleagues . . . to have engaged in official misconduct must, because of the accidents of timing, be formally admitted before he can be either investigated or expelled. The sponsor of the motion to exclude stated on the floor that he was proceeding on the theory that the power to expel included the power to exclude, provided a 2/3 vote was forthcoming. It was. Therefore, success for Mr. Powell on the merits would mean that the District Court must admonish the House that it is form, not substance, that should govern in great affairs, and accordingly command the House members to act out a charade." 129 U.S.App.D.C. at 383-384, 395 F.2d at 606-607. Page 395 U. S. 508 Although respondents repeatedly urge this Court not to speculate as to the reasons for Powell's exclusion, their attempt to equate exclusion with expulsion would require a similar speculation that the House would have voted to expel Powell had it been faced with that question. Powell had not been seated at the time House Resolution No. 278 was debated and passed. After a motion to bring the Select Committee's proposed resolution to an immediate vote had been defeated, an amendment was offered which mandated Powell's exclusion. [ Footnote 28 ] Mr. Celler, chairman of the Select Committee, then posed a parliamentary inquiry to determine whether a two-thirds vote was necessary to pass the resolution if so amended "in the sense that it might amount to an expulsion." 113 Cong.Rec. 5020. The Speaker replied that "action by a majority vote would be in accordance with the rules." Ibid. Had the amendment been regarded as an attempt to expel Powell, a two-thirds vote would have been constitutionally required. The Speaker ruled that the House was voting to exclude Powell, and we will not speculate what the result might have been if Powell had been seated and expulsion proceedings subsequently instituted. Nor is the distinction between exclusion and expulsion merely one of form. The misconduct for which Powell was charged occurred prior to the convening of the 90th Congress. On several occasions, the House has debated whether a member can be expelled for actions taken during a prior Congress, and the House's own manual of procedure applicable in the 90th Congress states that "both Houses have distrusted their power to punish in such cases." Rules of the House of Representatives, H.R.Doc. No. 529, 89th Cong., 2d Sess., 25 (1967); Page 395 U. S. 509 see G. Galloway, History of the House of Representatives 32 (1961). The House rules manual reflects positions taken by prior Congress. For example, the report of the Select Committee appointed to consider the expulsion of John W. Langley states unequivocally that the House will not expel a member for misconduct committed during an earlier Congress: "[I]t must be said that with practical uniformity the precedents in such cases are to the effect that the House will not expel a Member for reprehensible action prior to his election as a Member, not even for conviction for an offense. On May 23, 1884, Speaker Carlisle decided that the House had no right to punish a Member for any offense alleged to have been committed previous to the time when he was elected a Member, and added, 'That has been so frequently decided in the House that it is no longer a matter of dispute.'" H.R.Rep. No. 30, 69th Cong., 1st Sess., 1-2 (1925). [ Footnote 29 ] Page 395 U. S. 510 Members of the House having expressed a belief that such strictures apply to its own power to expel, we will not assume that two-thirds of its members would have expelled Powell for his prior conduct had the Speaker announced that House Resolution No. 278 was for expulsion, rather than exclusion. [ Footnote 30 ] Finally, the proceedings which culminated in Powell's exclusion cast considerable doubt upon respondents' assumption that the two-thirds vote necessary to expel would have been mustered. These proceedings have been succinctly described by Congressman Eckhardt: "The House voted 202 votes for the previous question [ Footnote 31 ] leading toward the adoption of the [Select] Committee report. It voted 222 votes against the previous question, opening the floor for the Curtis Amendment, which ultimately excluded Powell. " Page 395 U. S. 511 "Upon adoption of the Curtis Amendment, the vote again fell short of two-thirds, being 248 yeas to 176 nays. Only on the final vote, adopting the Resolution as amended, was more than a two-thirds vote obtained, the vote being 307 yeas to 116 nays. On this last vote, as a practical matter, members who would not have denied Powell a seat if they were given the choice to punish him had to cast an aye vote or else record themselves as opposed to the only punishment that was likely to come before the House. Had the matter come up through the processes of expulsion, it appears that the two-thirds vote would have failed, and then members would have been able to apply a lesser penalty. [ Footnote 32 ]" We need express no opinion as to the accuracy of Congressman Eckhardt's prediction that expulsion proceedings would have produced a different result. However, the House's own views of the extent of its power to expel Page 395 U. S. 512 combined with the Congressman's analysis counsel that exclusion and expulsion are not fungible proceedings. The Speaker ruled that House Resolution No. 278 contemplated an exclusion proceeding. We must reject respondents' suggestion that we overrule the Speaker, and hold that, although the House manifested an intent to exclude Powell, its action should be tested by whatever standards may govern an expulsion. V SUBJECT MATTER JURISDICTION As we pointed out in Baker v. Carr, 369 U. S. 186 , 369 U. S. 198 (1962), there is a significant difference between determining whether a federal court has "jurisdiction of the subject matter" and determining whether a cause over which a court has subject matter jurisdiction is "justiciable." The District Court determined that "to decide this case on the merits . . . would constitute a clear violation of the doctrine of separation of powers." and then dismissed the complaint "for want of jurisdiction of the subject matter." Powell v. McCormack, 266 F. Supp. 354 , 359, 360 (D.C. D.C.1967). However, as the Court of Appeals correctly recognized, the doctrine of separation of powers is more properly considered in determining whether the case is "justiciable." We agree with the unanimous conclusion of the Court of Appeals that the District Court had jurisdiction over the subject matter of this case. [ Footnote 33 ] However, for reasons set forth in 395 U. S. infra we disagree with the Court of Appeals' conclusion that this case is not justiciable. In Baker v. Carr, supra, we noted that a federal district court lacks jurisdiction over the subject matter (1) if the Page 395 U. S. 513 cause does not "arise under" the Federal Constitution, laws, or treaties (or fall within one of the other enumerated categories of Art. III); or (2) if it is not a "case or controversy" within the meaning of that phrase in Art. III; or (3) if the cause is not one described by any jurisdictional statute. And, as in Baker v. Carr, supra, our determination ( see 395 U. S. B(1), infra ) that this cause presents no nonjusticiable "political question" disposes of respondents' contentions [ Footnote 34 ] that this cause is not a "case or controversy." [ Footnote 35 ] Respondents first contend that this is not a case "arising under" the Constitution within the meaning of Art. III. They emphasize that Art. I, § 5, assigns to each House of Congress the power to judge the elections and qualifications of its own members and to punish its members for disorderly behavior. Respondents also note that, under Art. I, § 3, the Senate has the "sole power" to try all impeachments. Respondents argue that these delegations (to "judge," to "punish," and to "try") to the Legislative Branch are explicit grants of "judicial power" to the Congress, and constitute specific exceptions Page 395 U. S. 514 to the general mandate of Art. III that the "judicial power" shall be vested in the federal courts. Thus, respondents maintain, the "power conferred on the courts by article III does not authorize this Court to do anything more than declare its lack of jurisdiction to proceed. [ Footnote 36 ]" We reject this contention. Article III, § 1, provide that the "judicial Power . . . shall be vested in one supreme Court, and in such inferior Courts as the Congress may . . . establish." Further, § 2 mandates that the "judicial Power shall extend to all Cases . . . arising under this Constitution. . . ." It has long been held that a suit "arises under" the Constitution if a petitioner's claim "will be sustained if the Constitution . . . [is] given one construction and will be defeated if [it is] given another." [ Footnote 37 ] Bell v. Hood, 327 U. S. 678 , 327 U. S. 685 (1946). See King County v. Seattle School District No. 1, 263 U. S. 361 , 263 U. S. 363 -364 (1923). Cf. 22 U. S. Bank of the United States, 9 Wheat. 738 (1824). See generally C. Wright, Federal Courts 48-52 (1963). Thus, this case clearly is one "arising under" the Constitution as the Court has interpreted that phrase. Any bar to federal courts reviewing the judgments made by the House or Senate in excluding a member arises from the allocation of powers between the two branches of the Federal Government (a question of justiciability), and not from the petitioners' failure to state a claim based on federal law. Respondents next contend that the Court of Appeals erred in ruling that petitioners' suit is authorized by a jurisdictional statute, i.e., 28 U.S.C. § 1331(a). Page 395 U. S. 515 Section 1331(a) provides that district courts shall have jurisdiction in "all civil actions wherein the matter in controversy . . . arises under the Constitution. . . ." Respondents urge that, even though a case may "arise under the Constitution" for purposes of Art. III, it does not necessarily "arise under the Constitution" for purposes of § 1331(a). Although they recognize there is little legislative history concerning the enactment of § 1331(a), respondents argue that the history of the period when the section was first enacted indicates that the drafters did not intend to include suits questioning the exclusion of Congressmen in this grant of "federal question" jurisdiction. Respondents claim that the passage of the Force Act [ Footnote 38 ] in 1870 lends support to their interpretation of the intended scope of § 1331. The Force Act gives the district courts jurisdiction over "any civil action to recover possession of any office . . . wherein it appears that the sole question . . . arises out of denial of the right to vote . . . on account of race, color or previous condition of servitude." However, the Act specifically excludes suits concerning the office of Congressman. Respondents maintain that this exclusion demonstrates Congress' intention to prohibit federal courts from entertaining suits regarding the seating of Congressmen. We have noted that the grant of jurisdiction in § 1331(a), while made in the language used in Art. III, is not in all respects coextensive with the potential for federal jurisdiction found in Art. III. See Zwickler v. Koota, 389 U. S. 241 , 389 U. S. 246 , n. 8 (1967). Nevertheless, it has generally been recognized that the intent of the drafters was to provide a broad jurisdictional grant to the federal courts. See, e.g., Mishkin, The Federal "Question" in the District Courts, 53 Col.L.Rev. Page 395 U. S. 516 157, 160 (1953); Chadbourn & Levin, Original Jurisdiction of Federal Questions, 90 U.Pa.L.Rev. 639, 6 645 (1942). And, as noted above, the resolution of this case depends directly on construction of the Constitution. The Court has consistently held such suits are authorized by the statute. Bell v. Hood, supra; King County v. Seattle School District No. 1, supra. See, e.g., Gully v. First Nat. Bank in Meridian, 299 U. S. 109 , 299 U. S. 112 (1936); The Fair v. Kohler Die & Specialty Co., 228 U. S. 22 , 228 U. S. 25 (1913). As respondents recognize, there is nothing in the wording or legislative history of § 1331 or in the decisions of this Court which would indicate that there is any basis for the interpretation they would give that section. Nor do we think the passage of the Force Act indicates that § 1331 does not confer jurisdiction in this case. The Force Act is limited to election challenges where a denial of the right to vote in violation of the Fifteenth Amendment is alleged. See 28 U.S.C. § 1344. Further, the Act was passed five years before the original version of 1331 was enacted. While it might be inferred that Congress intended to give each House the exclusive power to decide congressional election challenges, [ Footnote 39 ] there is absolutely no indication that the passage of this Act evidences an intention to impose other restrictions on the broad grant of jurisdiction in § 1331. VI JUSTICIABILITY Having concluded that the Court of Appeals correctly ruled that the District Court had jurisdiction over the subject matter, we turn to the question whether the case is justiciable. Two determinations must be made in this regard. First, we must decide whether the claim Page 395 U. S. 517 presented and the relief sought are of the type which admit of judicial resolution. Second, we must determine whether the structure of the Federal Government renders the issue presented a "political question" -- that is, a question which is not justiciable in federal court because of the separation of powers provided by the Constitution. A. General Considerations In deciding generally whether a claim is justiciable, a court must determine whether "the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded." Baker v. Carr, supra, at 369 U. S. 198 . Respondents do not seriously contend that the duty asserted and its alleged breach cannot be judicially determined. If petitioners are correct, the House had a duty to seat Powell once it determined he met the standing requirements set forth in the Constitution. It is undisputed that he met those requirements, and that he was nevertheless excluded. Respondents do maintain, however, that this case is not justiciable because, they assert, it is impossible for a federal court to "mold effective relief for resolving this case." Respondents emphasize that petitioners asked for coercive relief against the officers of the House, and, they contend, federal courts cannot issue mandamus or injunctions compelling officers or employees of the House to perform specific official acts. Respondents rely primarily on the Speech or Debate Clause to support this contention. We need express no opinion about the appropriateness of coercive relief in this case, for petitioners sought a declaratory judgment, a form of relief the District Court could have issued. The Declaratory Judgment Act, 28 U.S.C. § 2201, provides that a district court may "declare the rights . . . of any interested party . . . whether or not further relief is or could be sought." The Page 395 U. S. 518 availability of declaratory relief depends on whether there is a live dispute between the parties, Golden v. Zwickler, 394 U. S. 103 (1969), and a request for declaratory relief may be considered independently of whether other forms of relief are appropriate. See United Public Workers v. Mitchell, 330 U. S. 75 , 330 U. S. 93 (1947); 6A J. Moore, Federal Practice � 57.08[3] (2d ed.1966); cf. United States v. California, 332 U. S. 19 , 332 U. S. 25 -26 (1947). We thus conclude that, in terms of the general criteria of justiciability, this case is justiciable. B. Political Question Doctrine 1. Textually Demonstrable Constitutional Commitment. Respondents maintain that, even if this case is otherwise justiciable, it presents only a political question. It is well established that the federal courts will not adjudicate political questions. See, e.g., Coleman v. Miller, 307 U. S. 433 (1939); Oetjen v. Central Leather Co., 246 U. S. 297 (1918). In Baker v. Carr, supra, we noted that political questions are not justiciable primarily because of the separation of powers within the Federal Government. After reviewing our decisions in this area, we concluded that on the surface of any case held to involve a political question was at least one of the following formulations: "a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality Page 395 U. S. 519 of embarrassment from multifarious pronouncements by various departments on one question." 369 U.S. at 369 U. S. 217 . Respondents' first contention is that this case presents a political question because, under Art. I, 5, there has been a "textually demonstrable constitutional commitment" to the House of the "adjudicatory power" to determine Powell's qualifications. Thus, it is argued that the House, and the House alone, has power to determine who is qualified to be a member. [ Footnote 40 ] In order to determine whether there has been a textual commitment to a coordinate department of the Government, we must interpret the Constitution. In other words, we must first determine what power the Constitution confers upon the House through Art. I, § 5, before we can determine to what extent, if any, the exercise of that power is subject to judicial review. Respondents Page 395 U. S. 520 maintain that the House has broad power under § 5, and, they argue, the House may determine which are the qualifications necessary for membership. On the other hand, petitioners allege that the Constitution provides that an elected representative may be denied his seat only if the House finds he does not meet one of the standing qualifications expressly prescribed by the Constitution. If examination of § 5 disclosed that the Constitution gives the House judicially unreviewable power to set qualifications for membership and to judge whether prospective members meet those qualifications, further review of the House determination might well be barred by the political question doctrine. On the other hand, if the Constitution gives the House power to judge only whether elected members possess the three standing qualifications set forth in the Constitution, [ Footnote 41 ] further consideration would be necessary to determine whether any of the other formulations of the political question doctrine are Page 395 U. S. 521 "inextricable from the case at bar." [ Footnote 42 ] Baker v. Carr, supra, at 369 U. S. 217 . In other words, whether there is a "textually demonstrable constitutional commitment of the issue to a coordinate political department" of government and what is the scope of such commitment are questions we must resolve for the first time in this case. [ Footnote 43 ] For, as we pointed out in Baker v. Carr, supra, "[d]eciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution." Id. at 369 U. S. 211 . In order to determine the scope of any "textual commitment" under Art. I, § 5, we necessarily must determine the meaning of the phrase to "be the Judge of the Qualifications of its own Members." Petitioners argue that the records of the debates during the Constitutional Convention; available commentary from the post-Convention, pre-ratification period, and early congressional applications of Art. I, § 5, support their construction of the section. Respondents insist, however, that a careful examination of the pre-Convention practices of the English Parliament and American colonial assemblies demonstrates that, by 1787, a legislature's power to judge the qualifications of its members was generally understood Page 395 U. S. 522 to encompass exclusion or expulsion on the ground that an individual's character or past conduct rendered him unfit to serve. When the Constitution and the debates over its adoption are thus viewed in historical perspective, argue respondents, it becomes clear that the "qualifications" expressly set forth in the Constitution were not meant to limit the long-recognized legislative power to exclude or expel at will, but merely to establish "standing incapacities," which could be altered only by a constitutional amendment. Our examination of the relevant historical materials leads us to the conclusion that petitioners are correct, and that the Constitution leaves the House [ Footnote 44 ] without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution. a. The Pre-Convention Precedents. Since our rejection of respondents' interpretation of § 5 results in significant measure from a disagreement with their historical analysis, we must consider the relevant historical antecedents in considerable detail. As do respondents, we begin with the English and colonial precedents. The earliest English exclusion precedent appears to be a declaration by the House of Commons in 1553 "that Alex. Nowell, being Prebendary [ i.e., a clergyman] in Westminster, and thereby having voice in the Convocation House, cannot be a member of this House. . . ." J. Tanner, Tudor Constitutional Documents: A.D. 1485-1603, p. 596 (2d ed.1930). This decision, however, was Page 395 U. S. 523 consistent with a long-established tradition that clergy who participated in their own representative assemblies or convocations were ineligible for membership in the House of Commons. [ Footnote 45 ] See 1 E. Porritt, The Unreformed House of Commons 125 (1963); T. Taswell-Langmead's English Constitutional History 14143 (11th ed. T. Plucknett 1960). The traditional ineligibility of clergymen was recognized as a standing incapacity. [ Footnote 46 ] See 1 W. Blackstone's Commentaries *175. Nowell's exclusion, therefore, is irrelevant to the present case, for petitioners concedes -- and we agree -- that, if Powell had not met one of the standing qualifications set forth in the Constitution, he could have been excluded under Art. I, § 5. The earliest colonial exclusions also fail to support respondents' theory. [ Footnote 47 ] Page 395 U. S. 524 Respondents' remaining 16th and 17th century English precedents all are cases of expulsion, although some were for misdeeds not encompassed within recognized standing incapacities existing either at the time of the expulsions or at the time the Constitution was drafted in 1787. [ Footnote 48 ] Although these early expulsion orders occasionally contained statements suggesting that the individual expelled was thereafter ineligible for reelection, at least for the duration of the Parliament from which he was expelled, [ Footnote 49 ] Page 395 U. S. 525 there is no indication that any were reelected and thereafter excluded. Respondents' colonial precedents during this period follow a similar pattern. [ Footnote 50 ] Apparently the reelection of an expelled member first occurred in 1712. The House of Commons had expelled Robert Walpole for receiving kickbacks for contracts relating to "foraging the Troops," 17 H.C.Jour. 28, and committed him to the Tower. Nevertheless, two months later, he was reelected. The House thereupon resolved "[t]hat Robert Walpole, Esquire, having been, this Session of Parliament, committed a Prisoner to the Tower of London, and expelled [from] this House, . . . is incapable of being elected a Member to serve in this present Parliament. . . ." Id. at 128. (Second emphasis added.) A new election was ordered, and Walpole was not reelected. At least two similar exclusions after an initial expulsion were effected in the American colonies during the first half of the 18th century. [ Footnote 51 ] Page 395 U. S. 526 Respondents urge that the Walpole case provides strong support for their conclusion that the pre-Convention English and colonial practice was that members-elect could be excluded for their prior misdeeds at the sole discretion of the legislative body to which they had been elected. However, this conclusion overlooks an important limiting characteristic of the Walpole case and of both the colonial exclusion cases on which respondents rely: the excluded member had been previously expelled. Moreover, Walpole was excluded only for the remainder of the Parliament from which he had been expelled. "The theory seems to have been that expulsion lasted as long as the parliament. . . ." Taswell-Langmead, supra, at 584, n. 99. Accord, 1 W. Blackstone's Commentaries *176. Thus, Walpole's exclusion justifies only the proposition that an expulsion lasted for the remainder of the particular Parliament, and the expelled member was therefore subject to subsequent exclusion if reelected prior to the next general election. The two colonial cases arguably support a somewhat broader principle, i.e., that the assembly could permanently expel. Apparently the colonies did not consistently adhere to the theory that an expulsion lasted only until the election of a new assembly. M. Clarke, Parliamentary Privilege in the American Colonies 196-202 (1943). [ Footnote 52 ] Clearly, however, none of these cases supports respondents' contention that, by the 18th century the English Parliament Page 395 U. S. 527 and colonial assemblies had assumed absolute discretion to exclude any member-elect they deemed unfit to serve. Rather, they seem to demonstrate that a member could be excluded only if he had first been expelled. Even if these cases could be construed to support respondents' contention, their precedential value was nullified prior to the Constitutional Convention. By 1782, after a long struggle, the arbitrary exercise of the power to exclude was unequivocally repudiated by a House of Commons resolution which ended the most notorious English election dispute of the 18th century -- the John Wilkes case. While serving as a member of Parliament in 1763, Wilkes published an attack on a recent peace treaty with France, calling it a product of bribery and condemning the Crown's ministers as " the tools of despotism and corruption.'" R. Postgate, That Devil Wilkes 53 (1929). Wilkes and others who were involved with the publication in which the attack appeared were arrested. [ Footnote 53 ] Prior to Wilkes' trial, the House of Commons expelled him for publishing "a false, scandalous, and seditious libel." 15 Parl.Hist.Eng. 1393 (1764). Wilkes then fled to France, and was subsequently sentenced to exile. 9 L. Gipson, The British Empire Before the American Revolution 37 (1956). Wilkes returned to England in 1768, the same year in which the Parliament from which he had been expelled was dissolved. He was elected to the next Parliament, and he then surrendered himself to the Court of King's Bench. Wilkes was convicted of seditious libel and sentenced to 22 months' imprisonment. The new Parliament Page 395 U. S. 528 declared him ineligible for membership and ordered that he be "expelled this House." 16 Parl. Hist. Eng. 545 (1769). Although Wilkes was reelected to fill the vacant seat three times, each time the same Parliament declared him ineligible and refused to seat him. See 11 Gipson, supra, at 207-215. [ Footnote 54 ] Wilkes was released from prison in 1770, and was again elected to Parliament in 1774. For the next several years, he unsuccessfully campaigned to have the resolutions expelling him and declaring him incapable of reelection expunged from the record. Finally, in 1782, the House of Commons voted to expunge them, resolving that the prior House actions were "subversive of the rights of the whole body of electors of this kingdom." 22 Parl.Hist.Eng. 1411 (1782). With the successful resolution of Wilkes' long and bitter struggle for the right of the British electorate to be represented by men of their own choice, it is evident that, on the eve of the Constitutional Convention, English precedent stood for the proposition that "the law of the land had regulated the qualifications of members to serve in parliament" and those qualifications were "not occasional, but fixed." 16 Parl.Hist.Eng. 589, 590 (1769). Certainly English practice did not support, nor had it ever supported, respondents' assertion that the power to judge qualifications was generally understood to encompass the right to exclude members-elect for general misconduct not within standing qualifications. With the repudiation in 1782 of the only two precedents Page 395 U. S. 529 for excluding a member-elect who had been previously expelled, [ Footnote 55 ] it appears that the House of Commons also repudiated any "control over the eligibility of candidates, except in the administration of the laws which define their [standing] qualifications." T. May's Parliamentary Practice 66 (13th ed. T. Webster 1924). See Taswell-Langmead, supra, at 585. [ Footnote 56 ] The resolution of the Wilkes case similarly undermined the precedential value of the earlier colonial exclusions, for the principles upon which they had been based were repudiated by the very body the colonial assemblies sought to imitate and whose precedents they generally followed. See Clarke, supra, at 54, 59-60, 196. Thus, in 1784, the Council of Censors of the Pennsylvania Assembly [ Footnote 57 ] denounced the prior expulsion of an unnamed assemblyman, ruling that his expulsion had not been effected in conformity with the recently enacted Pennsylvania Constitution. [ Footnote 58 ] In the course of its report, the Page 395 U. S. 530 Council denounced by name the Parliamentary exclusions of both Walpole and Wilkes, stating that they "reflected dishonor on none but the authors of these violences." Pennsylvania Convention Proceedings: 1776 and 1790, p. 89 (1825). Wilkes' struggle and his ultimate victory had a significant impact in the American colonies. His advocacy of libertarian causes [ Footnote 59 ] and his pursuit of the right to be Page 395 U. S. 531 seated in Parliament became a cause celebre for the colonists. "[T]he cry of 'Wilkes and Liberty' echoed loudly across the Atlantic Ocean as wide publicity was given to every step of Wilkes' public career in the colonial press. . . . The reaction in America took on significant proportions. Colonials tended to identify their cause with that of Wilkes. They saw him as a popular hero and a martyr to the struggle for liberty. . . . They named towns, counties, and even children in his honour." 11 Gipson, supra, at 222. [ Footnote 60 ] It is within this historical context that we must examine the Convention debates in 1787, just five years after Wilkes' final victory. Page 395 U. S. 532 b. Convention Debates Relying heavily on Charles Warren's analysis [ Footnote 61 ] of the Convention debates, petitioners argue that the proceedings manifest the Framers' unequivocal intention to deny either branch of Congress the authority to add to or otherwise vary the membership qualifications expressly set forth in the Constitution. We do not completely agree, for the debates are subject to other interpretations. However, we have concluded that the records of the debates, viewed in the context of the bitter struggle for the right to freely choose representatives which had recently concluded in England and in light of the distinction the Framers made between the power to expel and the power to exclude, indicate that petitioners' ultimate conclusion is correct. The Convention opened in late May, 1787. By the end of July, the delegates adopted, with a minimum of debate, age requirements for membership in both the Senate and the House. The Convention then appointed a Committee of Detail to draft a constitution incorporating these and other resolutions adopted during the preceding months. Two days after the Committee was appointed, George Mason, of Virginia, moved that the Committee consider a clause " requiring certain qualifications of landed property & citizenship'" and disqualifying from membership in Congress persons who had unsettled accounts or who were indebted to the United States. 2 Farrand 121. A vigorous debate ensued. Charles Pinckney and General Charles C. Pinckney, both of South Carolina, moved to extend these incapacities to both the judicial and executive branches of the new government. But John Dickinson, of Delaware, opposed the inclusion of any statement of qualifications in the Constitution. He argued that it would be "impossible Page 395 U. S. 533 to make a compleat one, and a partial one would, by implication, tie up the hands of the Legislature from supplying the omissions." Id. at 123. [ Footnote 62 ] Dickinson's argument was rejected, and, after eliminating the disqualification of debtors and the limitation to "landed" property, the Convention adopted Mason's proposal to instruct the Committee of Detail to draft a property qualification. Id. at 116-117. The Committee reported in early August, proposing no change in the age requirement; however, it did recommend adding citizenship and residency requirements for membership. After first debating what the precise requirements should be, on August 8, 1787, the delegates unanimously adopted the three qualifications embodied in Art. I, § 2. Id. at 213. [ Footnote 63 ] On August 10, the Convention considered the Committee of Detail's proposal that the "Legislature of the United States shall have authority to establish such uniform qualifications of the members of each House, with regard to property, as to the said Legislature shall seem expedient." Id. at 179. The debate on this proposal discloses much about the views of the Framers on the issue of qualifications. For example, James Madison urged its rejection, stating that the proposal would vest "an improper & dangerous power in the Legislature. The qualifications of electors and elected were fundamental articles in a Republican Govt., and ought to be fixed by the Constitution. If the Legislature Page 395 U. S. 534 could regulate those of either, it can by degrees subvert the Constitution. A Republic may be converted into an aristocracy or oligarchy as well by limiting the number capable of being elected as the number authorised to elect. . . . It was a power also which might be made subservient to the views of one faction agst. another. Qualifications founded on artificial distinctions may be devised by the stronger in order to keep out partizans of [a weaker] faction." Id. at 249-250. [ Footnote 64 ] Significantly, Madison's argument was not aimed at the imposition of a property qualification as such, but rather at the delegation to the Congress of the discretionary power to establish any qualifications. The parallel between Madison's arguments and those made in Wilkes' behalf is striking. [ Footnote 65 ] Page 395 U. S. 535 In view of what followed Madison's speech, it appears that, on this critical day, the Framers were facing and then rejecting the possibility that the legislature would have power to usurp the "indisputable right [of the people] to return whom they thought proper" [ Footnote 66 ] to the legislature. Oliver Ellsworth, of Connecticut, noted that a legislative power to establish property qualifications was exceptional, and "dangerous because it would be much more liable to abuse." Id. at 250. Gouverneur Morris then moved to strike "with regard to property" from the Committee's proposal. His intention was "to leave the Legislature entirely at large." Ibid. Hugh Williamson, of North Carolina, expressed concern that, if a majority of the legislature should happen to be "composed of any particular description of men, of lawyers for example, . . . the future elections might be secured to their own body." Ibid. [ Footnote 67 ] Madison then referred to the British Parliament's assumption of the power to regulate the qualifications of both electors and the elected, and noted that "the abuse they had made of it was a lesson worthy of our attention. They had made the changes in both cases subservient to their own views, or to the views of political or Religious parties." Ibid. [ Footnote 68 ] Shortly thereafter, Page 395 U. S. 536 the Convention rejected both Gouverneur Morris' motion and the Committee's proposal. Later the same day, the Convention adopted without debate the provision authorizing each House to be "the judge of the . . . qualifications of its own members." Id. at 254. One other decision made the same day is very important to determining the meaning of Art. I, § 5. When the delegates reached the Committee of Detail's proposal to empower each House to expel its members, Madison "observed that the right of expulsion . . . was too important to be exercised by a bare majority of a quorum, and, in emergencies, [one] faction might be dangerously abused." Id. at 254. He therefore moved that "with the concurrence of two-thirds" be inserted. With the exception of one State, whose delegation was divided, the motion was unanimously approved without debate, although Gouverneur Morris noted his opposition. The importance of this decision cannot be overemphasized. None of the parties to this suit disputes that, prior to 1787, the legislative powers to judge qualifications and to expel were exercised by a majority vote. Indeed, without exception, the English and colonial antecedents to Art. I, § 5, cls. 1 and 2, support this conclusion. Thus, the Convention's decision to increase the vote required to expel, because that power was "too important to be exercised by a bare majority," while at the same time not similarly restricting the power to judge qualifications, is compelling evidence that they considered the latter already limited by the standing qualifications previously adopted. [ Footnote 69 ] Page 395 U. S. 537 Respondents urge, however, that these events must be considered in light of what they regard as a very significant change made in Art. I, § 2, cl. 2, by the Committee of Style. When the Committee of Detail reported the provision to the Convention, it read: "Every member of the House of Representatives shall be of the age of twenty five years at least; shall have been a citizen of [in] the United States for at least three years before his election, and shall be, at the time of his election, a resident of the State in which he shall be chosen." Id. at 178. However, as finally drafted by the Committee of Style, these qualifications were stated in their present negative form. Respondents note that there are no records of the "deliberations" of the Committee of Style. Nevertheless, they speculate that this particular change was designed to make the provision correspond to the form used by Blackstone in listing the "standing incapacities" for membership in the House of Commons. See 1 W. Blackstone's Commentaries *175-176. Blackstone, who was an apologist for the anti-Wilkes forces in Parliament, [ Footnote 70 ] Page 395 U. S. 538 had added to his Commentaries after Wilkes' exclusion the assertion that individuals who were not ineligible for the Commons under the standing incapacities could still be denied their seat if the Commons deemed them unfit for other reasons. [ Footnote 71 ] Since Blackstone's Commentaries was widely circulated in the Colonies, respondents further speculate that the Committee of Style rephrased the qualifications provision in the negative to clarify the delegates' intention "only to prescribe the standing incapacities without imposing any other limit on the historic power of each house to judge qualifications on a case by case basis. [ Footnote 72 ]" Respondents' argument is inherently weak, however, because it assumes that legislative bodies historically possessed the power to judge qualifications on a case-by-case basis. As noted above, the basis for that conclusion was the Walpole and Wilkes cases, which, by the time of the Convention, had been denounced by the House of Commons and repudiated by at least one State government. Moreover, respondents' argument misrepresents the function of the Committee of Style. It was appointed only "to revise the stile of and arrange the articles which had been agreed to. . . ." 2 Farrand 553. Page 395 U. S. 539 "[T]he Committee . . . had no authority from the Convention to make alterations of substance in the Constitution as voted by the Convention, nor did it purport to do so, and certainly the Convention had no belief . . . that any important change was, in fact, made in the provisions as to qualifications adopted by it on August 10. [ Footnote 73 ]" Petitioners also argue that the post-Convention debates over the Constitution's ratification support their interpretation of § 5. For example, they emphasize Hamilton's reply to the anti-federalist charge that the new Constitution favored the wealthy and well born: "The truth is that there is no method of securing to the rich the preference apprehended but by prescribing qualifications of property either for those who may elect or be elected. But this forms no part of the power to be conferred upon the national government. Its authority would be expressly restricted to the regulation of the times, the places, the manner of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature. " The Federalist Papers 371 (Mentor ed.1961). (Emphasis in last sentence added.) Page 395 U. S. 540 Madison had expressed similar views in an earlier essay, [ Footnote 74 ] and his arguments at the Convention leave no doubt about his agreement with Hamilton on this issue. Respondents counter that Hamilton was actually addressing himself to criticism of Art. I, § 4, which authorizes Congress to regulate the times, places, and manner of electing members of Congress. They note that prominent anti-federalists had argued that this power could be used to "confer on the rich and well-born all honours." Brutus No. IV, N.Y. Journal, Nov. 29, 1787, p. 7. (Emphasis in original.) Respondents' contention, however, ignores Hamilton's express reliance on the immutability of the qualifications set forth in the Constitution. [ Footnote 75 ] The debates at the state conventions also demonstrate the Framers' understanding that the qualifications for members of Congress had been fixed in the Constitution. Before the New York convention, for example, Hamilton emphasized: "[T]he true principle of a republic is that Page 395 U. S. 541 the people should choose whom they please to govern them. Representation is imperfect in proportion as the current of popular favor is checked. This great source of free government, popular election, should be perfectly pure, and the most unbounded liberty allowed." 2 Debates on the Federal Constitution 257 (J. Elliot ed. 1876) (hereinafter cited as Elliot's Debates). [ Footnote 76 ] In Virginia, where the Federalists faced powerful opposition by advocates of popular democracy, Wilson Carey Nicholas, a future member of both the House and Senate and later Governor of the State, met the arguments that the new Constitution violated democratic principles with the following interpretation of Art. I, § 2, cl. 2, as it respects the qualifications of the elected: "It has ever been considered a great security to liberty that very few should be excluded from the right of being chosen to the legislature. This Constitution has amply attended to this idea. We find no qualifications required except those of age and residence, which create a certainty of their judgment being matured, and of being attached to their state." 3 Elliot's Debates 8. c. Post-Ratification. As clear as these statements appear, respondents dismiss them as "general statements . . . directed to other issues." [ Footnote 77 ] They suggest that far more relevant is Congress' own understanding of its power to judge qualifications as manifested in post-ratification exclusion cases. Unquestionably, both the House and the Senate have excluded members-elect for reasons other than their Page 395 U. S. 542 failure to meet the Constitution's standing qualifications. For almost the first 100 years of its existence, however, Congress strictly limited its power to judge the qualifications of its members to those enumerated in the Constitution. Congress was first confronted with the issue in 1807, [ Footnote 78 ] when the eligibility of William McCreery was challenged because he did not meet additional residency requirements imposed by the State of Maryland. In recommending that he be seated, the House Committee of Elections reasoned: "The committee proceeded to examine the Constitution, with relation to the case submitted to them, and find that qualifications of members are therein determined without reserving any authority to the State Legislatures to change, add to, or diminish those qualifications, and that, by that instrument, Congress is constituted the sole judge of the qualifications prescribed by it, and are obliged to decide agreeably to the Constitutional rules. . . ." 17 Annals of Cong. 871 (1807). Lest there be any misunderstanding of the basis for the committee's recommendation, during the ensuing debate, the chairman explained the principles by which the committee was governed: "The Committee of Elections considered the qualifications of members to have been unalterably determined Page 395 U. S. 543 by the Federal Convention, unless changed by an authority equal to that which framed the Constitution at first; that neither the State nor the Federal Legislatures are vested with authority to add to those qualifications, so as to change them. . . . Congress, by the Federal Constitution, are not authorized to prescribe the qualifications of their own members, but they are authorized to judge of their qualifications; in doing so, however, they must be governed by the rules prescribed by the Federal Constitution, and by them only. These are the principles on which the Election Committee have made up their report, and upon which their resolution is founded." Id. at 872. The chairman emphasized that the committee's narrow construction of the power of the House to judge qualifications was compelled by the "fundamental principle in a free government," id. at 873, that restrictions upon the people to choose their own representatives must be limited to those "absolutely necessary for the safety of the society." Id. at 874. At the conclusion of a lengthy debate, which tended to center on the more narrow issue of the power of the States to add to the standing qualifications set forth in the Constitution, the House agreed by a vote of 89 to 18 to seat Congressman McCreery. Id. at 1237. See 1 A. Hinds, Precedents of the House of Representatives of the United States § 414 (1907) (hereinafter cited as Hinds). There was no significant challenge to these principles for the next several decades. [ Footnote 79 ] They came under heavy Page 395 U. S. 544 attack, however, "during the stress of civil war, [but initially] the House of Representatives declined to exercise the power [to exclude], even under circumstances of great provocation. [ Footnote 80 ]" Rules of the House of Representatives, H.R.Doc. No. 529, 89th Cong., 2d Sess., § 12, p. 7 (1967). The abandonment of such restraint, however, was among the casualties of the general upheaval produced in war's wake. In 1868, the House voted for the first time in its history to exclude a member-elect. It refused to seat two duly elected representatives for giving aid and comfort to the Confederacy. See 1 Hinds § § 449-451. [ Footnote 81 ] "This change was produced by the North's bitter emnity toward those who failed to support the Union cause during the war, and was effected by the Radical Republican domination of Congress. It was a shift brought about by the naked urgency of power, and was given little doctrinal support." Comment, Legislative Exclusion: Julian Bond and Adam Clayton Powell, 35 U.Chi.L.Rev. 151, 157 (1967). [ Footnote 82 ] From that time until Page 395 U. S. 545 the present, congressional practice has been erratic; [ Footnote 83 ] and on the few occasions when a member-elect was excluded although he met all the qualifications set forth in the Page 395 U. S. 546 Constitution, there were frequently vigorous dissents. [ Footnote 84 ] Even the annotations to the official manual of procedure for the 90th Congress manifest doubt as to the House's power to exclude a member-elect who has met the constitutionally prescribed qualifications. See Rules of the House of Representatives, H.R.Doc. No. 529, 89th Cong., 2d Sess., § 12, pp. 7-8 (1967). Had these congressional exclusion precedents been more consistent, their precedential value still would be quite limited. See Note, The Power of a House of Congress to Judge the Qualifications of its Members, 81 Harv.L.Rev. 673, 679 (1968). [ Footnote 85 ] That an unconstitutional Page 395 U. S. 547 action has been taken before surely does not render that same action any less unconstitutional at a later date. Particularly in view of the Congress' own doubts in those few cases where it did exclude members-elect, we are not inclined to give its precedents controlling weight. The relevancy of prior exclusion cases is limited largely to the insight they afford in correctly ascertaining the draftsmen's intent. Obviously, therefore, the precedential value of these cases tends to increase in proportion to their proximity to the Convention in 1787. See Myers v. United States, 272 U. S. 52 , 272 U. S. 175 (1926). And what evidence we have of Congress' early understanding confirms our conclusion that the House is without power to exclude any member-elect who meets the Constitution's requirements for membership. d. Conclusion Had the intent of the Framers emerged from these materials with less clarity, we would nevertheless have been compelled to resolve any ambiguity in favor of a narrow construction of the scope of Congress' power to exclude members-elect. A fundamental principle of our representative democracy is, in Hamilton's words, "that the people should choose whom they please to govern them." 2 Elliot's Debates 257. As Madison pointed out at the Convention, this principle is undermined as much by limiting whom the people can select as by limiting the franchise itself. In apparent agreement with this basic philosophy, the Convention adopted his suggestion limiting the power to expel. To allow essentially that same power to be exercised under the guise of judging qualifications would be to ignore Madison's warning, borne out in the Wilkes case and some of Congress' Page 395 U. S. 548 own post-Civil War exclusion cases, against "vesting an improper & dangerous power in the Legislature." 2 Farrand 249. Moreover, it would effectively nullify the Convention's decision to require a two-thirds vote for expulsion. Unquestionably, Congress has an interest in preserving its institutional integrity, but, in most cases, that interest can be sufficiently safeguarded by the exercise of its power to punish its members for disorderly behavior and, in extreme cases, to expel a member with the concurrence of two-thirds. In short, both the intention of the Framers, to the extent it can be determined, and an examination of the basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote. For these reasons, we have concluded that Art. I, § 5, is, at most, a "textually demonstrable commitment" to Congress to judge only the qualifications expressly set forth in the Constitution. Therefore, the "textual commitment" formulation of the political question doctrine does not bar federal courts from adjudicating petitioners' claims. 2. Other Considerations. Respondents' alternate contention is that the case presents a political question because judicial resolution of petitioners' claim would produce a "potentially embarrassing confrontation between coordinate branches" of the Federal Government. But, as our interpretation of Art. I, § 5, discloses, a determination of petitioner Powell's right to sit would require no more than an interpretation of the Constitution. Such a determination falls within the traditional role accorded courts to interpret the law, and does not involve a "lack of the respect due [a] coordinate [branch] of government," nor does it involve an "initial policy determination of a kind clearly for nonjudicial Page 395 U. S. 549 discretion." Baker v. Carr, 369 U. S. 186 , at 369 U. S. 217 . Our system of government requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch. The alleged conflict that such an adjudication may cause cannot justify the courts' avoiding their constitutional responsibility. [ Footnote 86 ] See United States v. Brown, 381 U. S. 437 , 381 U. S. 462 (1965); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 , 343 U. S. 613 -614 (1952) (Frankfurter, J., concurring); Myers v. United States, 272 U. S. 52 , 272 U. S. 293 (1926) (Brandeis, J., dissenting). Nor are any of the other formulations of a political question "inextricable from the case at bar." Baker v. Carr, supra, at 369 U. S. 217 . Petitioners seek a determination that the House was without power to exclude Powell from the 90th Congress, which, we have seen, requires an interpretation of the Constitution -- a determination for which clearly there are "judicially . . . manageable standards." Finally, a judicial resolution of petitioners' claim will not result in "multifarious pronouncements by various departments on one question." For, as we noted in Baker v. Carr, supra, at 369 U. S. 211 , it is the responsibility of this Court to act as the ultimate interpreter of the Constitution. Marbury v. Madison , 1 Cranch 137 (1803). Thus, we conclude that petitioners' claim is not barred by the political question doctrine, and, having determined that the claim is otherwise generally justiciable, we hold that the case is justiciable. VII CONCLUSION To summarize, we have determined the following: (1) This case has not been mooted by Powell's seating in Page 395 U. S. 550 the 91st Congress. (2) Although this action should be dismissed against respondent Congressmen, it may be sustained against their agents. (3) The 90th Congress' denial of membership to Powell cannot be treated as an expulsion. (4) We have jurisdiction over the subject matter of this controversy. (5) The case is justiciable. Further, analysis of the "textual commitment" under Art. I, § 5 ( see 395 U. S. B(1)), has demonstrated that, in judging the qualifications of its members, Congress is limited to the standing qualifications prescribed in the Constitution. Respondents concede that Powell met these. Thus, there is no need to remand this case to determine whether he was entitled to be seated in the 90th Congress. Therefore, we hold that, since Adam Clayton Powell, Jr., was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership. Petitioners seek additional forms of equitable relief, including mandamus for the release of petitioner Powell's backpay. The propriety of such remedies, however, is more appropriately considered in the first instance by the courts below. Therefore, as to respondents McCormack, Albert, Ford, Celler, and Moore, the judgment of the Court of Appeals for the District of Columbia Circuit is affirmed. As to respondents Jennings, Johnson, and Miller, the judgment of the Court of Appeals for the District of Columbia Circuit is reversed, and the case is remanded to the United States District Court for the District of Columbia with instructions to enter a declaratory judgment and for further proceedings consistent with this opinion. It is so ordered. Page 395 U. S. 551 [ Footnote 1 ] Powell requested that he be given (1) notice of the charges pending against him, including a bill of particulars as to any accuser; (2) the opportunity to confront any accuser, to attend all committee sessions where evidence was given, and the right to cross-examine all witnesses; (3) public hearings; (4) the right to have the Select Committee issue its process to summon witnesses for his defense; (5) and a transcript of every hearing. Hearings on H.R.Res. No. 1 before Select Committee Pursuant to H.R.Res. No. 1, 90th Cong., 1st Sess., 54 (1967). The Select Committee noted that it had given Powell notice of the matters it would inquire into, that Powell had the right to attend all hearings (which would be public) with his counsel, and that the Committee would call witnesses upon Powell's written request and supply a transcript of the hearings. Id. at 59. [ Footnote 2 ] The complaint also attacked the House Resolution as a bill of attainder, an ex post facto law, and as cruel and unusual punishment. Further, petitioners charged that the hearing procedures adopted by the Select Committee violated the Due Process Clause of the Fifth Amendment. [ Footnote 3 ] The District Court refused to convene a three-judge court, and the Court of Appeals affirmed. Petitioners did not press this issue in their petition for writ of certiorari, apparently recognizing the validity of the Court of Appeals' ruling. See Stamler v. Willis, 393 U. S. 217 (196). [ Footnote 4 ] Petitioners also requested that a writ of mandamus issue ordering that the named officials perform the same acts. [ Footnote 5 ] The District Court entered its order April 7, 1967, and a notice of appeal was filed the same day. On April 11, 1967, Powell was reelected to the House of Representatives in a special election called to fill his seat. The formal certification of election was received by the House on May 1, 1967, but Powell did not again present himself to the House or ask to be given the oath of office. [ Footnote 6 ] Respondents' authority for this assertion is a footnote contained in Gojack v. United States, 384 U. S. 702 , 384 U. S. 70 , n. 4. (1966): "Neither the House of Representatives nor its committees are continuing bodies." [ Footnote 7 ] The rule that this Court lacks jurisdiction to consider the merits of a moot case is a branch of the constitutional command that the judicial power extends only to cases or controversies. See Sibron v. New York, 392 U. S. 40 , 392 U. S. 57 (1968); R. Robertson & F. Kirkham, Jurisdiction of the Supreme Court of the United States §§ 270-271 (R. Wolfson & P. Kurland ed.1951); Diamond, Federal Jurisdiction To Decide Moot Cases, 94 U.Pa.L.Rev. 125 (1946); Note, Cases Moot on Appeal: A Limit on the Judicial Power, 103 U.Pa.L.Rev. 772 (1955). [ Footnote 8 ] Petitioners do not press their claim that respondent McCormack should be required to administer the oath to Powell, apparently conceding that the seating of Powell has rendered this specific claim moot. Where several forms of relief are requested and one of these requests subsequently becomes moot, the Court has still considered the remaining requests. See Standard Fashion Co. v. Magrane-Houston Co., 258 U. S. 346 , 258 U. S. 353 (1922). Respondents also argue that the seating of petitioner Powell has mooted the claims of Powell's constituents. Since this case will be remanded, that issue, as well as petitioners' other claims, can be disposed of by the court below. [ Footnote 9 ] Alejandrino's brief did not consider either the possibility that his request for injunctive relief had become moot or whether his salary claim required that the Court treat the propriety of his suspension. No brief was filed on behalf of respondents. [ Footnote 10 ] After discussing the insufficiency of Alejandrino's averments as to the officer responsible for his salary, the Court stated: "Were that set out, the remedy of the Senator would seem to be by mandamus to compel such official in the discharge of his ministerial duty to pay him the salary due. . . ." 271 U.S. at 271 U. S. 534 . That the insufficiency of Alejandrino's averments was the reason for dismissal is further substantiated by a later passage: "As we are not able to derive from the petition sufficient information upon which properly to afford such a remedy [mandamus], we must treat the whole cause as moot, and act accordingly." Id. at 271 U. S. 535 . [ Footnote 11 ] Paragraph 1b of petitioners' complaint avers that "Leake W. Johnson, as Sergeant-at-Arms of the House" is responsible for and refuses to pay Powell's salary, and prays for an injunction restraining the Sergeant at Arms from implementing the House resolution depriving Powell of his salary, as well as mandamus to order that the salary be paid. [ Footnote 12 ] Federal courts were first empowered to grant declaratory judgments in 1934, see 48 Stat. 955, 10 years after Alejandrino filed his complaint. [ Footnote 13 ] It was expressly stated in Alejandrino that a properly pleaded mandamus action could be brought, 271 U.S. at 271 U. S. 535 , impliedly holding that Alejandrino's salary claim had not been mooted by the expiration of his suspension. [ Footnote 14 ] Respondents do not supply any substantiation for their assertion that the term of the Georgia Legislature did not expire until December 31. Presumably, they base their statement upon Ga.Code Ann. §§ 2-1601, 2-1603 (Supp. 1968). [ Footnote 15 ] Respondents also suggest that Bond is not applicable because the parties in Bond had stipulated that Bond would be entitled to back salary if his constitutional challenges were accepted, while there is no stipulation in this case. However, if the claim in Bond was moot, a stipulation by the parties could not confer jurisdiction. See, e.g., California v. San Pablo & Tulare R. Co., 149 U. S. 308 , 149 U. S. 314 (1893). [ Footnote 16 ] Since the court below disposed of this case on grounds of justiciability, it did not pass upon whether Powell had brought an appropriate action to recover his salary. Where a court of appeals has misconceived the applicable law, and therefore failed to pass upon a question, our general practice has been to remand the case to that court for consideration of the remaining issues. See, e.g., Utah Pie Co. v. Continental Baking Co., 386 U. S. 685 , 386 U. S. 704 (1967); Bank of America National Trust & Savings Assn. v. Parnell, 352 U. S. 29 , 352 U. S. 34 (1956). We believe that such action is appropriate for resolution of whether Powell in this litigation is entitled to mandamus against the Sergeant at Arms for salary withheld pursuant to the House resolution. [ Footnote 17 ] Article I, § 6, provides: "for any Speech or Debate in either House, they [Senators and Representatives] shall not be questioned in any other Place." [ Footnote 18 ] Petitioners ask the Court to draw a distinction between declaratory relief sought against members of Congress and either an action for damages or a criminal prosecution, emphasizing that our four previous cases concerned "criminal or civil sanctions of a deterrent nature." Brief for Petitioners 171. [ Footnote 19 ] See 5 Debates on the Federal Constitution 406 (J. Elliot ed. 1876); 2 Records of the Federal Convention of 1787, p. 246 (M. Farrand rev. ed.1966) (hereinafter cited as Farrand). [ Footnote 20 ] The English Bill of Rights contained a provision substantially identical to Art. I, § 6: "That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament." 1 W. & M., Sess. 2, c. 2. The English and American colonial history is traced in some detail in Cella, The Doctrine of Legislative Privilege of Freedom of Speech and Debate: Its Past, Present and Future as a Bar to Criminal Prosecutions in the Courts, 2 Suffolk U.L.Rev. 1, 3-16 (1968), and Yankwich, The Immunity of Congressional Speech -- Its Origin, Meaning and Scope, 99 U.Pa.L.Rev. 960, 961-966 (1951). [ Footnote 21 ] United States v. Johnson, 383 U. S. 169 , 383 U. S. 182 -183 (1966). [ Footnote 22 ] 1 The Works of James Wilson 421 (R. McCloskey ed.1967). [ Footnote 23 ] In Dombrowski, $500,000 in damages was sought against a Senator and the chief counsel of a Senate Subcommittee chaired by that Senator. Record in No. 118, O.T. 1966, pp. 10-11. We affirmed the grant of summary judgment as to the Senator, but reversed as to subcommittee counsel. [ Footnote 24 ] The Court in Kilbourn quoted extensively from Stockdale v. Hansard, 9 Ad. & E. 1, 114, 112 Eng.Rep. 1112, 1156 (Q.B. 1839), to refute the assertion that House agents were immune because they were executing orders of the House: "[I]f the Speaker, by authority of the House, order an illegal Act, though that authority shall exempt him from question, his order shall no more justify the person who executed it than King Charles' warrant for levying ship-money could justify his revenue officer." Kilbourn eventually recovered $20,000 against Thompson. See Kilbourn v. Thompson, MacArth. & M. 401, 432 (Sup.Ct.D.C. 1883). [ Footnote 25 ] A Congressman is not, by virtue of the Speech or Debate Clause, absolved of the responsibility of filing a motion to dismiss, and the trial court must still determine the applicability of the clause to plaintiff's action. See Tenney v. Brandhove, 341 U. S. 367 , 341 U. S. 377 (1951). [ Footnote 26 ] Given our disposition of this issue, we need not decide whether, under the Speech or Debate Clause, petitioners would be entitled to maintain this action solely against members of Congress where no agents participated in the challenged action and no other remedy was available. Cf. Kilbourn v. Thompson, 103 U. S. 168 , 103 U. S. 204 -205 (1881). [ Footnote 27 ] Powell was "excluded" from the 90th Congress, i.e., he was not administered the oath of office, and was prevented from taking his seat. If he had been allowed to take the oath and subsequently had been required to surrender his seat, the House's action would have constituted an "expulsion." Since we conclude that Powell was excluded from the 90th Congress, we express no view on what limitations may exist on Congress' power to expel or otherwise punish a member once he has been seated. [ Footnote 28 ] House Resolution No. 278, as amended and adopted, provided: "That said Adam Clayton Powell . . . be and the same hereby is excluded from membership in the 90th Congress. . . ." 113 Cong.Rec. 5020. (Emphasis added.) [ Footnote 29 ] Other Congresses have expressed an identical view. The Report of the Judiciary Committee concerning the proposed expulsion of William S. King and John G. Schumaker informed the House: "Your committee are of opinion that the House of Representatives has no authority to take jurisdiction of violations of law or offenses committed against a previous Congress. This is purely a legislative body, and entirely unsuited for the trial of crimes. The fifth section of the first article of the Constitution authorizes" "each house to determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member." "This power is evidently given to enable each house to exercise its constitutional function of legislation unobstructed. It cannot vest in Congress a jurisdiction to try a member for an offense committed before his election; for such offense a member, like any other citizen, is amenable to the courts alone." H.R.Rep. No. 815, 44th Cong., 1st Sess., (1876). See also 15 Cong.Rec. 4434 (1884) (ruling of the Speaker); H.R.Rep. No. 81, 42d Cong., 3d Sess., 8 (1873) (expulsion of James Brooks and Oakes Ames); H.R.Rep. No. 179, 35th Cong., 1st Sess., 4-5 (1858) (expulsion of Orsamus B. Matteson). [ Footnote 30 ] We express no view as to whether such a ruling would have been proper. A further distinction between expulsion and exclusion inheres in the fact that a member whose expulsion is contemplated may, as a matter of right, address the House and participate fully in debate, while a member-elect apparently does not have a similar right. In prior cases, the member whose expulsion was under debate has been allowed to make a long, and often impassioned, defense. See Cong.Globe, 42d Cong., 3d Sess., 1723 (1873) (expulsion of Oakes Ames); Cong.Globe, 41st Cong., 2d Sess., 1524-1525, 1544 (1870) (expulsion of B. F. Whittemore); Cong.Globe, 34th Cong., 3d Sess., 925-926 (1857) (expulsion of William A. Gilbert); Cong.Globe, 34th Cong., 3d Sess., 947-951 (1857) (expulsion of William W. Welch); 9 Annals of Cong. 2966 (1799) (expulsion of Matthew Lyon). On at least one occasion, the member has been allowed to cross-examine other members during the expulsion debate. 2 A. Hinds, Precedents of the House of Representatives § 1643 (1907). [ Footnote 31 ] A motion for the previous question is a debate-limiting device which, when carried, has the effect of terminating debate and of forcing a vote on the subject at hand. See Rules of the House of Representatives, H.R.Doc. No. 529, 89th Cong., 2d Sess., §§ 804-809 (1967); Cannon's Procedure in the House of Representatives, H.R.Doc. No. 610, 87th Cong., 2d Sess., 277-281 (1963). [ Footnote 32 ] Eckhardt, The Adam Clayton Powell Case, 45 Texas L.Rev. 1205, 1209 (1967). The views of Congressman Eckhardt were echoed during the exclusion proceedings. Congressman Cleveland stated that, although he voted in favor of and supported the Select Committee's recommendation, if the exclusion amendment received a favorable vote on the motion for the previous question, then he would support the amendment "on final passage." 113 Cong.Rec. 5031. Congressman Gubser was even more explicit: "I shall vote against the previous question on the Curtis amendment simply because I believe future and perfecting amendments should be allowed. But if the previous question is ordered, then I will be placed on the horns of an impossible dilemma." "Mr. Speaker, I want to expel Adam Clayton Powell by seating him first, but that will not be my choice when the Curtis amendment is before us. I will be forced to vote for exclusion, about which I have great constitutional doubts, or to vote for no punishment at all. Given this raw and isolated issue, the only alternative I can follow is to vote for the Curtis amendment. I shall do so, Mr. Speaker, with great reservation." Ibid. [ Footnote 33 ] Although each judge of the panel wrote a separate opinion, all were clear in stating that the District Court possessed subject matter jurisdiction. Powell v. McCormack, 129 U.S.App.D.C. 354, 368, 384, 385, 395 F.2d 577, 591, 607, 608 (1968). [ Footnote 34 ] We have determined that the case is not moot. See 395 U. S. supra. [ Footnote 35 ] Indeed, the thrust of respondents' argument on this jurisdictional issue is similar to their contentions that this case presents a nonjusticiable "political question." They urge that it would have been "unthinkable" to the Framers of the Constitution for courts to review the decision of a legislature to exclude a member. However, we have previously determined that a claim alleging that a legislature has abridged an individual's constitutional rights by refusing to seat an elected representative constitutes a "case or controversy" over which federal courts have jurisdiction. See Bond v. Floyd, 385 U. S. 116 , 385 U. S. 131 (1966). To the extent the expectations of the Framers are discernible and relevant to this case, they must therefore relate to the special problem of review by federal courts of actions of the federal legislature. This is, of course, a problem of separation of powers, and is to be considered in determining justiciability. See Baker v. Carr, 369 U. S. 186 , 369 U. S. 210 (1962). [ Footnote 36 ] Brief for Respondents 39. [ Footnote 37 ] Petitioners' complaint is predicated, inter alia, on several sections of Article I, Article III, and several amendments to the Constitution. Respondents do not challenge the substantiality of these claims. [ Footnote 38 ] Act of May 31, 1870, § 23, 16 Stat. 146. The statute is now 28 U.S.C. § 1344. [ Footnote 39 ] Cong.Globe,41st Cong., 2d Sess., 3872 (1870). [ Footnote 40 ] Respondents rely on Barry v. United States ex rel. Cunningham, 279 U. S. 597 (1929). Barry involved the power of the Senate to issue an arrest warrant to summon a witness to give testimony concerning a senatorial election. The Court ruled that issuance of the warrant was constitutional, relying on the power of the Senate under Art. I, § 5, to be the judge of the elections of its members. Respondents particularly rely on language the Court used in discussing the power conferred by Art. I, § 5. The Court noted that, under § 5, the Senate could "render a judgment which is beyond the authority of any other tribunal to review." Id. at 279 U. S. 613 . Barry provides no support for respondents' argument that this case is not justiciable, however. First, in Barry, the Court reached the merits of the controversy, thus indicating that actions allegedly taken pursuant to Art. I, § 5, are not automatically immune from judicial review. Second, the quoted statement is dictum; and, later in the same opinion, the Court noted that the Senate may exercise its power subject "to the restraints imposed by or found in the implications of the Constitution." Id. at 279 U. S. 614 . Third, of course, the statement in Barry leaves open the particular question that must first be resolved in this case: the existence and scope of the textual commitment to the House to judge the qualifications of members. [ Footnote 41 ] In addition to the three qualifications set forth in Art. I, § 2, Art. I, § 3, cl. 7, authorizes the disqualification of any person convicted in an impeachment proceeding from "any Office of honor, Trust or Profit under the United States"; Art. I, § 6, cl. 2, provides that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office", and § 3 of the 14th Amendment disqualifies any person "who, having previously taken an oath . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." It has been argued that each of these provisions, as well as the Guarantee Clause of Article IV and the oath requirement of Art. VI, cl. 3, is no less a "qualification" within the meaning of Art. I, § 5, than those set forth in Art. I, § 2. Dionisopoulos, A Commentary on the Constitutional Issues in the Powell and Related Cases, 17 J.Pub.L. 103, 111-115 (1968). We need not reach this question, however, since both sides agree that Powell was not ineligible under any of these provisions. [ Footnote 42 ] Consistent with this interpretation, federal courts might still be barred by the political question doctrine from reviewing the House's factual determination that a member did not meet one of the standing qualifications. This is an issue not presented in this case, and we express no view as to its resolution. [ Footnote 43 ] Indeed, the force of respondents' other arguments that this case presents a political question depends in great measure on the resolution of the textual commitment question. See 395 U. S. B(2), infra. [ Footnote 44 ] Since Art. I, § 5, cl. 1, applies to both Houses of Congress, the scope of the Senate's power to judge the qualifications of its members necessarily is identical to the scope of the House's power, with the exception, of course, that Art. 1, § 3, cl. 3, establishes different age and citizenship requirements for membership in the Senate. [ Footnote 45 ] Since the reign of Henry IV (1399-1413), no clergyman had sat in the House of Commons. 1 E. Porritt, The Unreformed House of Commons 125 (1963). [ Footnote 46 ] Because the British do not have a written constitution, standing incapacities or disqualifications for membership in Parliament are derived from "the custom and law of parliament." 1 W. Blackstone's Commentaries *162; see id. at *175. The groups thus disqualified as of 1770 included aliens; minors; judges who sat in the House of Lords; clergy who were represented in their own convocation; persons "attainted of treason or felony"; sheriffs, mayors, and bailiffs as representatives for their own jurisdictions, and certain taxing officials and officers of the Crown. Id. at *175-176. Not until the exclusion of John Wilkes, discussed infra, did Blackstone subscribe to the theory that, in addition, the Commons could declare ineligible an individual "in particular [unspecified] circumstances . . . for that parliament" if it deemed him unfit to serve on grounds not encompassed by the recognized standing incapacities. As we explain infra, this position was subsequently repudiated by the House in 1782. A Clerk of the House of Commons later referred to cases in which this theory was relied upon "as examples of an excess of . . . jurisdiction by the Commons; for one house of Parliament cannot create a disability unknown to the law." T. May's Parliamentary Practice 67 (13th ed. T. Webster 1924). [ Footnote 47 ] In 1619, the Virginia House of Burgesses challenged the eligibility of certain delegates on the ground that they did not hold their plantations under proper patents from the Virginia Company in England. See generally 7 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws 3783-3810 (F. Thorpe ed.1909) (hereinafter cited as Thorpe). One of them, a Captain Warde, was admitted on condition that he obtain the necessary patent. The others, representatives from Martin's Brandon plantation, were excluded on the ground that the owner of the plantation had claimed that his patent exempted him from the colony's laws. See Journals of the House of Burgesses of Virginia:1619-1658/59, pp. 4-5 (1915); M. Clarke, Parliamentary Privilege in the American Colonies 133-134 (1943). The questions presented by these two cases, therefore, seem to be jurisdictional in nature -- that is, an attempt was made to gain representation for plantations over which the assembly may have had no power to act. Thus viewed, these cases are analogous to the exclusions for failure to comply with standing qualifications. They certainly are not precedents which support the view that a legislative body could exclude members for mere character defects or prior misconduct disapproved by the assembly. See generally Clarke, supra, at 132-204; J. Greene, The Quest for Power: The Lower Houses of Assembly in the Southern Royal Colonies:1689-1776, pp. 171-204 (1963). [ Footnote 48 ] For example, in 1585, the Commons expelled a Doctor Parry for unspecified misbehavior. A Compleat Journal of the Votes, Speeches and Debates of the House of Lords and House of Commons Throughout the Whole Reign of Queen Elizabeth, of Glorious Memory 352 (S. D'Ewes ed. 1708), and in 1628 Sir Edmund Sawyer was expelled because he had sought to induce a witness to suppress evidence against Sir Edmund in testimony before the House. 1 H.C.Jour. 917. [ Footnote 49 ] In expelling Sir Edmund Sawyer in 1628, the Commons declared "him to be unworthy ever to serve as a Member of this House." Ibid. Almost identical language was used in the expulsion of H. Benson in 1641. 2 id. at 301. But, by 1642, the formula had been changed to "disabled to serve any longer in this Parliament as a Member of this House. . . ." Id. at 703. (Emphasis added.) By the 18th century, it was apparently well established that an expulsion by the House of Commons could last no longer than the duration of the Parliament from which the member was expelled. See 1 W. Blackstone's Commentaries *176. [ Footnote 50 ] For example, in 1652, the Virginia House of Burgesses expelled two members for prior conduct disapproved by the assembly, Journals of the House of Burgesses, supra, at 85, and, in 1683, Rhode Island expelled a member "from acting in this present Assembly" for refusing to answer a court summons. 1 S. Arnold, History of the State of Rhode Island and Providence Plantations 289 (1859). See generally Clarke, supra, at 173-204. [ Footnote 51 ] In 1726, the Massachusetts House of Representatives excluded Gershom Woodle, who had been expelled on three previous occasions as "unworthy to be a Member." 7 Journals of the House of Representatives of Massachusetts 1726-1727, pp. 4-5, 15, 68-69 (1926). In 1758, North Carolina expelled Francis Brown for perjury. He was reelected twice in 1760 and excluded on both occasions; however, when he was elected at the 1761 general elections, he was allowed to take his seat. 5 Colonial Records of North Carolina 1057-1058 (1887); 6 id. at 375, 474, 662-663, 672-673 (1888). There may have been similar exclusions of two men elected in 1710 to the New Jersey Assembly. See Clarke, supra, at 197-198. [ Footnote 52 ] Significantly, the occasional assumption of this broader expulsion power did not go unchallenged, Clarke, supra, at 196-202, and it was not supported by the only parliamentary precedent, the Walpole case. [ Footnote 53 ] Pursuant to a general warrant, Wilkes was arrested, his home ransacked, and his private papers seized. In his later election campaigns, Wilkes denounced the use of general warrants, asserting that he was fighting for liberty itself. See 11 L. Gipson The British Empire Before the American Revolution 213-214 (1965). [ Footnote 54 ] The issue before the Commons was clear: could the Commons "put in any disqualification, that is not put in by the law of the land." 1 H. Cavendish's Debates 384 (J. Wright ed. 1841). The affirmative answer was somewhat less than resounding. After Wilkes' third reelection, the motion to seat his opponent carried 197 to 143. [ Footnote 55 ] The validity of the House's action against Wilkes rested to a large extent on the validity of the Walpole precedent. Taswell-Langmead, supra, at 585. Thus, the House of Commons resolution expunging, as subversive to the rights of the whole electorate, the action taken against Wilkes was also a tacit repudiation of the similar action taken against Walpole in 1712. [ Footnote 56 ] English law is apparently the same today. See T. May's Parliamentary Practice 105-108 (17th ed. B. Cocks 1964). [ Footnote 57 ] The Council of Censors was established by the 1776 Pennsylvania Constitution. It was an elected body that was specifically charged with the duty "to enquire whether the constitution has been preserved inviolate in every part, and whether the legislative and executive branches of government have performed their duty as guardians of the people, or assumed to themselves, or exercised other or greater powers than they are entitled to by the constitution." Pa.Const. of 1776, § 47, 5 Thorpe 3091. See Pennsylvania Convention Proceedings:1776 and 1790, Introduction, p. IV (1825). [ Footnote 58 ] In discussing the case, respondents characterize the earlier action as an exclusion. The Council of Censors, however, stated that the general assembly had resolved that the member "is expelled from his seat." Pennsylvania Convention Proceedings, supra, at 89. The account of the dissenting committee members suggests that the term expulsion was properly used. They note that, in February, 1783, the assembly received a letter from the Comptroller General charging the assemblyman with fraud. Not until September 9, 1783, did the assembly vote to expel him. Presumably, he held his seat until that time. But, even if he had been excluded, arguably he was excluded for not meeting a standing incapacity, since the Pennsylvania Constitution of 1776 required assemblymen to be "most noted for wisdom and virtue. " Pa.Const. of 1776, § 7, 5 Thorpe 3084. (Emphasis added.) In fact, the dissenting members of the Committee argued that the expelled member was ineligible under this very provision. Pennsylvania Convention Proceedings, supra, at 89. Respondents cite one other exclusion during the period between the Declaration of Independence and the Constitutional Convention 11 years later. In 1780, the Virginia Assembly excluded John Breckenridge because he was a minor. Minority, of course, was a traditional standing incapacity, and Charles Warren therefore appears to have been correct in concluding that this exclusion was probably based upon an interpretation of the state constitutional requirement that members must be duly qualified according to law. Va.Const., 7 Thorpe 3816. See C. Warren, The Making of the Constitution 423, n. 1 (1928). Respondents, based upon their misinterpretation of the Pennsylvania case just discussed, criticize Charles Warren for concluding that there had been only one exclusion during this period. Our research, however, has disclosed no other cases. [ Footnote 59 ] Wilkes had established a reputation both in England and the Colonies as a champion of free elections, freedom from arbitrary arrest and seizure, and freedom of the press. See 11 Gipson, supra, at 191-222. [ Footnote 60 ] See R. Postgate, That Devil Wilkes 171-172, 173-174 (1929). During the House of Commons debates in 1781, a member remarked that expelling Wilkes had been "one of the great causes which had separated . . . [England] from America." 22 Parl.Hist.Eng. 100-101 (1781). The writings of the pamphleteer "Junius" were widely reprinted in colonial newspapers, and lent considerable support to the revolutionary cause. See 3 Dictionary of American History 190 (1940). Letter XVIII of the "Letters of Junius" bitterly attacked the exclusion of Wilkes. This letter, addressed to Blackstone, asserted: "You cannot but know, sir, that what was Mr. Wilkes' case yesterday may be yours or mine tomorrow, and that, consequently, the common right of every subject of the realm is invaded by it. . . . If the expulsion of a member, not under any legal disability, of itself creates in him an incapacity to be elected, I see a ready way marked out by which the majority may, at any time, remove the honestest and ablest men who happen to be in opposition to them. To say that they will not make this extravagant use of their power would be a language unfit for a man so learned in the laws as you are. By your doctrine, sir, they have the power: and laws, you know, are intended to guard against what men may do, not to trust to what they will do." 1 Letters of Junius, Letter XVIII, p. 118 (1821). [ Footnote 61 ] See Warren, supra, at 399-426. [ Footnote 62 ] Dickinson also said that a built-in veneration for wealth would be inconsistent with the republican ideal that merit alone should determine who holds the public trust. 2 Farrand 123. [ Footnote 63 ] On August 10, a delegate moved to reconsider the citizenship qualification. The delegate proposed to substitute a three-year requirement for the seven-year requirement already agreed upon. The motion passed. Id. at 251. However, when this proposal was considered on August 13, it was rejected. Id. at 265-266. [ Footnote 64 ] Charles Pinckney proposed that the President, judges, and legislators of the United States be required to swear that they possessed a specified amount of unencumbered property. Benjamin Franklin expressed his strong opposition, observing that "[s]ome of the greatest rogues he was ever acquainted with were the richest rogues." Id. at 249. He voiced the fear that a property requirement would "discourage the common people from removing to this Country." Ibid. Thereafter, "the Motion of Mr. Pinkney [ sic ] was rejected by so general a no that the States were not called." Ibid. (Emphasis in original.) [ Footnote 65 ] "That the right of the electors to be represented by men of their own choice was so essential for the preservation of all their other rights that it ought to be considered as one of the most sacred parts of our constitution. . . . That the law of the land had regulated the qualifications of members to serve in parliament, and that the freeholders . . . had an indisputable right to return whom they thought proper, provided he was not disqualified by any of those known laws. . . . They are not occasional, but fixed: to rule and govern the question as it shall arise; not to start up on a sudden, and shift from side to side as the caprice of the day or the fluctuation of party shall direct." 16 Parl.Hist.Eng. 589-590 (1769). [ Footnote 66 ] Id. at 589. [ Footnote 67 ] Wilkes had made essentially the same argument in one of his early attempts to have the resolutions denying him a seat expunged: "This usurpation, if acquiesced under, would be attended with the most alarming consequences. If you can reject those disagreeable to a majority, and expel whom you please, the House of Commons will be self-created and self-existing. You may expel till you approve, and thus in effect you nominate. The original idea of this House being the representative of the Commons of the realm will be lost." 18 Parl.Hist.Eng. 367 (1775). [ Footnote 68 ] Charles Warren concluded that "Madison's reference was undoubtedly to the famous election case of John Wilkes. . . ." Warren, supra, at 420, n. 1. It is also possible, however, that he was referring to the Parliamentary Test Act, 30 Car. 2, Stat. 2, c. 1 (1678), which had excluded Catholics as a group from serving in Parliament. [ Footnote 69 ] Charles Warren, upon whose interpretation of these events petitioners rely, concluded that the Convention's decision to reject Gouverneur Morris' proposal and the more limited proposal of the Committee of Detail was an implicit adoption of Madison's position that the qualifications of the elected "were fundamental articles in a Republican Govt. and ought to be fixed by the Constitution." 2 Farrand 249-250. See Warren, supra, at 420-421. Certainly, Warren argued, "[s]uch action would seem to make it clear that the Convention did not intend to grant to a single branch of Congress . . . the right to establish any qualifications for its members, other than those qualifications established by the Constitution itself. . . . For certainly it did not intend that a single branch of Congress should possess a power which the Convention had expressly refused to vest in the whole Congress." Id. at 421. See 1 J. Story, Commentaries on the Constitution of the United States § 625, at 445 (1873). Although Professor Chafee argued that congressional precedents do not support this construction, he nevertheless stated that forbidding any additions to the qualifications expressed in the Constitution was "the soundest policy." Z. Chafee, Free Speech in the United States 256 (1941). [ Footnote 70 ] See 10 W. Holdsworth, A History of English Law 540-542 (1938). [ Footnote 71 ] Holdsworth notes that, in the first edition of Blackstone's Commentaries, Blackstone enumerated various incapacities and then concluded that, "subject to these standing restrictions and disqualifications, every subject of the realm is eligible [for membership in the House of Commons] of common right." 1 W. Blackstone's Commentaries *176. Blackstone was called upon in Commons to defend Wilkes' exclusion, and the passage was quoted against him. Blackstone retaliated by writing a pamphlet and making two additions to later editions of his Commentaries in an effort to justify the decision of Parliament. Holdsworth, supra, at 540-541. [ Footnote 72 ] Appendix D to Brief for Respondents 52. [ Footnote 73 ] Warren, supra, at 422, n. 1. Charles Warren buttressed his conclusion by noting that the Massachusetts Constitution of 1780 "contained affirmative qualifications for Representatives and exactly similar negative qualifications for Senators." Ibid. Apparently, these provisions were not considered substantively different, for each house was empowered in identical language to "judge of the elections, returns and qualifications of their own members, as pointed out in the constitution. " Mass.Const., pt. 2, c. I, § 2, Art. IV, 3 Thorpe 1897, and § 3, Art. X, 3 Thorpe 1899. (Emphasis added.) See Warren, supra, at 422-423, n. 1. [ Footnote 74 ] In No. 52 of The Federalist, Madison stated: "The qualifications of the elected, being less carefully and properly defined by the State constitutions, and being at the same time more susceptible of uniformity, have been very properly considered and regulated by the convention. [He then enumerated the qualifications for both representatives and Senators.] . . . Under these reasonable limitations, the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession or religious faith." The Federalist Papers 326 (Mentor ed.1961). [ Footnote 75 ] Respondents dismiss Madison's assertion that the "qualifications of the elected, . . . being at the same time more susceptible of uniformity, have been very properly considered and regulated by the convention" as nothing more than a refutation of the charge that the new national legislature would be free to establish additional "standing incapacities." However, this conclusion cannot be reconciled with the pre-Convention history on this question, the Convention debates themselves, and, in particular, the delegates' decision to require a two-thirds vote for expulsion. [ Footnote 76 ] At the same convention, Robert Livingston, one of the new Constitution's most ardent supporters and one of the State's most substantial landowners, endorsed this same fundamental principle: "The people are the best judges who ought to represent them. To dictate and control them, to tell them whom they shall not elect, is to abridge their natural rights." 2 Elliot's Debates 292-293. [ Footnote 77 ] Appendix D to Brief for Respondents 62. [ Footnote 78 ] In 1797, during the 5th Congress, 1st Session, the House considered expelling Matthew Lyon, a Republican, for sedition. The vote to expel, however, was 49 to 45, and broke down largely along partisan lines. Although Lyon's opponents, the Federalists, retained a majority in the 6th Congress, to which Lyon was reelected, and although there were political advantages to be gained from trying to prevent him from taking his seat, there was no effort made to exclude him. See Dionisopoulos, A Commentary on the Constitutional Issues in the Powell and Related Cases, 17 J.Pub.L. 103, 123-127 (1968). [ Footnote 79 ] Another Maryland representative was unsuccessfully challenged in 1808 on grounds almost identical to those asserted in the challenge of McCreery. See 18 Annals of Cong. 1848-1849 (1808). In 1844, the Senate declined to exclude John M. Niles, who was accused of being mentally incompetent, after a special committee reported him competent. Cong.Globe, 28th Cong., 1st Sess., 564-565, 602 (1844). In 1856, the House rejected an attempt to exclude Samuel Marshall for violating an Illinois law prohibiting state judges from running for other offices. 1 Hinds § 415. That same year, the Senate refused to exclude Lyman Trumbull for violating the same Illinois law. Ibid. [ Footnote 80 ] Between 1862 and 1867, both the House and Senate resisted several attempts to exclude members-elect who were accused of being disloyal to the Union during the Civil War. See id., §§ 448, 455, 458; Senate Election, Expulsion and Censure Cases, S.Doc. No. 71, 87th Cong., 2d Sess., 21 (1962) (hereinafter cited as Senate Cases). [ Footnote 81 ] That same year, the Senate also excluded a supporter of the Confederacy. Senate Cases 40. The House excluded two others shortly thereafter, one for the same offense, and another for selling appointments to the Military and Naval Academies. See 1 Hinds §§ 459, 464; 2 Hinds § 1273. [ Footnote 82 ] This departure from previous House construction of its power to exclude was emphasized by Congressman William P. Fessenden: "[T]he power which we have under the Constitution to judge of the qualifications of members of the body is not a mere arbitrary power, to be exerted according to the will of the individuals who may vote upon the subject. It ought to be a power subject to certain rules and founded upon certain principles. So it was up to a very late period, until the rebellion. The rule simply was, if a man came here and presented proper credentials from his State to allow him to take the ordinary oath, which we all took, to support the Constitution, and be admitted, and if there was any objection to him to try that question afterward." Cong.Globe, 40th Cong., 2d Sess., 685 (1868). [ Footnote 83 ] For example, in 1870, the House refused to exclude a Texas Congressman accused of a variety of criminal acts, 1 Hinds § 465; but in 1882 and again in 1900, the House excluded a member-elect for practicing polygamy. 1 Hinds §§ 473, 477-480. Thereafter, it apparently did not consider excluding anyone until shortly after World War I, when it twice excluded Victor L. Berger, an avowed Socialist, for giving aid and comfort to the enemy. Significantly, the House committee investigating Berger concluded that he was ineligible under the express provision of § 3 of the Fourteenth Amendment. 6 C. Cannon, Precedents of the House of Representatives of the United States §§ 56-59 (1935) (hereinafter cited as Cannon). Berger, the last person to be excluded from the House prior to Powell, was later reelected and finally admitted after his criminal conviction was reversed. 65 Cong.Rec. 7 (1923). The House next considered the problem in 1925, when it contemplated excluding John W. Langley for his alleged misconduct. Langley resigned after losing a criminal appeal, and the House therefore never voted upon the question. 6 Cannon § 238. The most recent exclusion attempt prior to Powell's occurred in 1933, when the House refused to exclude a Representative from Minnesota who had been convicted of sending defamatory matter through the mail. See 77 Cong.Rec. 73-74, 131-139 (1933). The Senate has not excluded anyone since 1929; in that year, it refused to seat a member-elect because of improper campaign expenditures. 6 Cannon § 180. In 1947, a concerted effort was made to exclude Senator Theodore G. Bilbo of Mississippi for allegedly accepting gifts from war contractors and illegally intimidating Negroes in Democratic primaries. See 93 Cong.Rec. 3-28 (1947). He died, however, before a decision was reached. [ Footnote 84 ] During the debates over H.R.Res. No. 278, Congressman Celler, chairman of both the Select Committee and the Judiciary Committee, forcefully insisted that the Constitution "unalterably fixes and defines" the qualifications for membership in the House, and that any other construction of Art. I, § 5, would be "improper and dangerous." 113 Cong.Rec. 4998. See H.R.Rep. No. 484, 43d Cong., 1st Sess., 11-15 (1874) (views of minority); H.R.Rep. No. 85, 56th Cong., 1st Sess., 53-77 (1900) (views of minority). In the latter report, the dissenters argued: "A small partisan majority might render the desire to arbitrarily exclude, by a majority vote, in order to more securely intrench itself in power, irresistible. Hence, its exercise is controlled by legal rules. In case of expulsion, when the requisite two-thirds can be had, the motive for the exercise of arbitrary power no longer exists, as a two-thirds partisan majority is sufficient for every purpose. . . . The power of exclusion is a matter of law, to be exercised by a majority vote in accordance with legal principles, and exists only where a member-elect lacks some of the qualifications required by the Constitution." Id. at 76-77. [ Footnote 85 ] "Determining the basis for a congressional action is itself difficult; since a congressional action, unlike a reported judicial decision, contains no statement of the reasons for the disposition, one must fall back on the debates and the committee reports. If more than one issue is raised in the debates, one can never be sure on what basis the action was predicated. Unlike a court, which is presumed to be disinterested, in an exclusion case, the concerned house is, in effect, a party to the controversy that it must adjudicate. Consequently, some members may be inclined to vote for exclusion though they strongly doubt its constitutionality." 81 Harv.L.Rev. at 679. [ Footnote 86 ] In fact, the Court has noted that it is an "inadmissible suggestion" that action might be taken in disregard of a judicial determination. McPherson v. Blacker, 146 U. S. 1 , 146 U. S. 24 (1892). MR. JUSTICE DOUGLAS. While I join the opinion of the Court, I add a few words. As the Court says, the important constitutional question is whether the Congress has the power to deviate from or alter the qualifications for membership as a Representative contained in Art. I, § 2, cl. 2, of the Constitution. [ Footnote 2/1 ] Up to now, the understanding has been quite clear to the effect that such authority does not exist. [ Footnote 2/2 ] To be sure, Art. I, § 5, provides that: "Each Page 395 U. S. 552 House shall be the Judge of the Elections, Returns and Qualifications of its own Members. . . ." Contests may arise over whether an elected official meets the "qualifications" of the Constitution, in which event the House is the sole judge. [ Footnote 2/3 ] But the House is not the sole judge when "qualifications" are added which are not specified in the Constitution. [ Footnote 2/4 ] Page 395 U. S. 553 A man is not seated because he is a Socialist or a Communist. [ Footnote 2/5 ] Another is not seated because, in his district, members of a minority are systematically excluded from voting. [ Footnote 2/6 ] Another is not seated because he has spoken out in opposition to the war in Vietnam. [ Footnote 2/7 ] The possible list is long. Some cases will have the racist overtones of the present one. Others may reflect religious or ideological clashes. [ Footnote 2/8 ] At the root of all these cases, however, is the basic integrity of the electoral process. Today we proclaim the constitutional principle of "one man, one vote." When that principle is followed and the electors choose a person who is repulsive to the Establishment in Congress, by what constitutional authority can that group of electors be disenfranchised? By Art. I, § 5, the House may "expel a Member" by a vote of two-thirds. And if this were an expulsion case, I would think that no justiciable controversy would be presented, the vote of the House being two-thirds or more. But it is not an expulsion case. Whether it could have been won as an expulsion case no one knows. Expulsion for "misconduct" may well raise different questions, different considerations. Policing the conduct of members, a recurring problem in the Senate and House as well, is quite different from the initial decision whether an elected official should be seated. It well might be easier to bar admission than to expel one already seated. The House excluded Representative-elect Powell from the 90th Congress allegedly for misappropriating public funds and for incurring the contempt of New York Page 395 U. S. 554 courts. [ Footnote 2/9 ] Twenty-six years earlier, members of the upper chamber attempted to exclude Senator-elect William Langer of North Dakota for like reasons. [ Footnote 2/10 ] Langer first became State's Attorney for Morton County, North Dakota, from 1914 to 1916, and then served as State Attorney General from 1916 to 1920. He became Governor of the State in 1932, and took office in January, 1933. In 1934, he was indicted for conspiring to interfere with the enforcement of federal law by illegally soliciting political contributions from federal employees, and suit was filed in the State Supreme Court to remove him from office. [ Footnote 2/11 ] While that suit was pending, he called the State Legislature into special session. [ Footnote 2/12 ] When it became clear that the court would order his ouster, he signed a Declaration of Independence, invoked martial law, and called out the National Guard. [ Footnote 2/13 ] Nonetheless, when his own officers refused to recognize him as the legal head of state, he left office in July, 1934. As with Adam Clayton Powell, however, the people of the State still wanted him. In 1937, they reelected him Governor and, in 1940, they sent him to the United States Senate. During the swearing-in ceremonies, Senator Barkley drew attention to certain complaints filed against Langer by citizens of North Dakota, yet asked that he be allowed to take the oath of office "without prejudice, which is a two-sided proposition -- without prejudice to the Senator and without Page 395 U. S. 555 prejudice to the Senate in the exercise of its right [to exclude him]. [ Footnote 2/14 ]" The matter of Langer's qualifications to serve in the Senate was referred to committee, which held confidential hearings on January 9 and 16, 1941, and open hearings on November 3 and 18, 1941. By a vote of 14 to 2, the committee reported that a majority of the Senate had jurisdiction under Art. I, § 5, cl. 1, of the Constitution to exclude Langer; and, by a vote of 13 to 3, it reported its recommendation that Langer not be seated. [ Footnote 2/15 ] The charges against Langer were various. As with Powell, they included claims that he had misappropriated public funds [ Footnote 2/16 ] and that he had interfered with the judicial process in a way that beclouded the dignity of Congress. [ Footnote 2/17 ] Reference was also made to his professional ethics as a lawyer. [ Footnote 2/18 ] Langer enjoyed the powerful advocacy of Senator Murdock from Utah. The Senate debate itself raged Page 395 U. S. 556 for over a year. [ Footnote 2/19 ] Much of it related to purely factual allegations of "moral turpitude." Some of it, however, was addressed to the power of the Senate under Art. I, § 5, cl. 1, to exclude a member-elect for lacking qualifications not enumerated in Art. I, § 3. "Mr. MURDOCK. . . . [U]nder the Senator's theory that the Senate has the right to add qualifications which are not specified in the Constitution, does the Senator believe the Senate could adopt a rule specifying intellectual and moral qualifications? [ Footnote 2/20 ]" "Mr. LUCAS. The Senate can do anything it wants to do. . . . Yes; the Senate can deny a person his seat simply because it does not like the cut of his jaw, if it wishes to. [ Footnote 2/21 ]" Senator Murdock argued that the only qualifications for service in the Senate were those enumerated in the Constitution; that Congress had the power to review those enumerated qualifications; but that it could not -- while purporting to "judge" those qualifications -- in reality add to them. "Mr. LUCAS. The Senator referred to article I, section 5. What does he think the framers of the Constitution meant when they gave to each House the power to determine or to judge the qualifications, and so forth, of its own Members? [ Footnote 2/22 ]" "Mr. MURDOCK. I construe the term 'judge' to mean what it is held to mean in its common, ordinary usage. My understanding of the definition of the Page 395 U. S. 557 word 'judge,' as a verb, is this: when we judge of a thing, it is supposed that the rules are laid out; the law is there for us to look at and to apply to the facts." "But whoever heard the word 'judge' used as meaning the power to add to what already is the law? [ Footnote 2/23 ]" It was also suggested from the floor that the enumerated qualifications in § 3 were only a minimum which the Senate could supplement, and that the Founding Fathers so intended by using words of the negative. To which Senator Murdock replied -- "Mr. President, I think it is the very distinguished and able Senator from Georgia who makes the contention that the constitutional provisions relating to qualifications, because they are stated in the negative -- that is, 'no person shall be a Senator' -- are merely restrictions or prohibitions on the State; but -- and I shall read it later on -- when we read what Madison said, when we read what Hamilton said, when we read what the other framers of the Constitution said on that question, there cannot be a doubt as to what they intended and what they meant. [ Footnote 2/24 ]" " * * * *" "Madison knew that the qualifications should be contained in the Constitution, and not left to the whim and caprice of the legislature. [ Footnote 2/25 ]" " * * * *" "Bear that in mind, that the positive or affirmative phraseology was not changed to the negative by debate or by amendment in the convention, but it Page 395 U. S. 558 was changed by the committee of which Madison was a member, the committee on style. [ Footnote 2/26 ]" The Senate was nonetheless troubled by the suggestion that the Constitution compelled it to accept anyone whom the people might elect, no matter how egregious and even criminal his behavior. No need to worry, said Murdock. It is true that the Senate cannot invoke its majority power to "judge" under Art. I, § 5, cl. 1, as a device for excluding men elected by the people who possess the qualifications enumerated by the Constitution. But it does have the power under Art. I, § 5, cl. 2, to expel anyone it designates by a two-thirds vote. Nonetheless, he urged the Senate not to bypass the two-thirds requirement for expulsion by wrongfully invoking its power to exclude. [ Footnote 2/27 ] "Mr. LUCAS. . . . The position the Senator from Utah takes is that it does not make any difference what a Senator does in the way of crime, that, whenever he is elected by the people of his State, comes here with bona fide credentials, and there is no fraud in the election, the Senate cannot refuse to give him the oath. That is the position the Senator takes?" "Mr. MURDOCK. That is my position, yes. [ Footnote 2/28 ]" " * * * *" "My position is that we do not have the right to exclude anyone who comes here clothed with the proper credentials and possessing the constitutional qualifications. My position is that we do not have Page 395 U. S. 559 the right under the provision of the Constitution to which the Senator from Florida referred, to add to the qualifications. My position is that the State is the sole judge of the intellectual and the moral qualifications of the representatives it sends to Congress. [ Footnote 2/29 ]" "MR. MURDOCK [quoting Senator Philander Knox]. 'I know of no defect in the plain rule of the Constitution for which I am contending. . . . I cannot see that any danger to the Senate lies in the fact that an improper character cannot be excluded without a two-thirds vote. It requires the unanimous vote of a jury to convict a man accused of crime; it should require, and I believe that it does require, a two-thirds vote to eject a Senator from his position of honor and power, to which he has been elected by a sovereign State.' [ Footnote 2/30 ]" Thus, after a year of debate, on March 27, 1942, the Senate overruled the recommendation of its committee and voted 52 to 30 to seat Langer. I believe that Senator Murdock stated the correct constitutional principle governing the present case. [ Footnote 2/1 ] U.S.Const., Art. I, § 2, cl. 2: "No Person shall be a Representative who shall not have attained to the age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen." [ Footnote 2/2 ] The Constitutional Convention had the occasion to consider several proposals for giving Congress discretion to shape its own qualifications for office and explicitly rejected them. James Madison led the opposition by arguing that such discretion would be "an improper & dangerous power in the Legislature. The qualifications of electors and elected were fundamental articles in a Republican Govt., and ought to be fixed by the Constitution. If the Legislature could regulate those of either, it can by degrees subvert the Constitution." 2 M Farrand, Records of the Federal Convention of 1787, pp. 249-250 (1911). Alexander Hamilton echoed that same conclusion: "The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature." The Federalist Papers, No. 60, p. 371 (Mentor ed.1961). And so, too, the early Congress of 1807 decided to seat Representative-elect William McCreery on the ground that its power to "judge" was limited by the enumerated qualifications. "The Committee of Elections considered the qualifications of members to have been unalterably determined by the Federal Convention, unless changed by an authority equal to that which framed the Constitution at first. . . . Congress, by the Federal Constitution, are not authorized to prescribe the qualifications of their own members, but they are authorized to judge of their qualifications; in doing so, however, they must be governed by the rules prescribed by the Federal Constitution, and by them only." 17 Annals of Cong. 872 (1807) (remarks of Rep. Findley, Chairman of House Committee of Elections). Constitutional scholars of two centuries have reaffirmed the principle that congressional power to "judge" the qualifications of its members is limited to those enumerated in the Constitution. 1 J. Story, Commentaries on the Constitution 462 (5th ed. 1891); C. Warren, The Making of the Constitution 420-426 (1928). See also remarks by Emmanuel Celler, Chairman of the House Select Committee which inquired into the qualifications of Adam Clayton Powell, Jr., and which recommended seating him: "The Constitution lays down three qualifications for one to enter Congress -- age, inhabitancy, citizenship. Mr. Powell satisfies all three. The House cannot add to these qualifications." 113 Cong.Rec. 4998. [ Footnote 2/3 ] Baker v. Carr, 369 U. S. 186 , 369 U.S. 242 , n. 2 (DOUGLAS, J., concurring). [ Footnote 2/4 ] The question whether Congress has authority under the Constitution to add to enumerated qualifications for office is itself a federal question within the particular expertise of this Court. Baker v. Carr, 369 U. S. 186 , 369 U. S. 211 . Where that authority has been exceeded, redress may be properly sought here. Marbury v. Madison , 1 Cranch 137. Congress itself suspected no less in deciding to exclude Rep. Powell: "[C]ases may readily be postulated where the action of a House in excluding or expelling a Member may directly impinge upon rights under other provisions of the Constitution. In such cases, the unavailability of judicial review may be less certain. Suppose, for example, that a Member was excluded or expelled because of his religion or race, contrary to the equal protection clause, or for making an unpopular speech protected by the first amendment. . . . [E]xclusion of the Member-elect on grounds other than age, citizenship, or inhabitancy could raise an equally serious constitutional issue." H.R.Rep. No. 27, 90th Cong., 1st Sess., 30 (1967). See also 113 Cong.Rec. 4994. [ Footnote 2/5 ] Case of Victor Berger, 6 C. Cannon, Precedents of the House of Representatives of the United States § 56 (1935). [ Footnote 2/6 ] Id. at § 122. [ Footnote 2/7 ] See, e.g., Bond v. Floyd, 385 U. S. 116 . [ Footnote 2/8 ] 1 A. Hinds, Precedents of the House of Representatives of the United States § 481 (1907). [ Footnote 2/9 ] 113 Cong.Rec.1997. [ Footnote 2/10 ] S.Doc. No. 71 on Senate Election, Expulsion and Censure Cases from 1789 to 1960, 87th Cong., 2d Sess., 140 (1962). [ Footnote 2/11 ] Hearings on A Protest to the Seating of William Langer, before the Senate Committee on Privileges and Elections, 77th Cong., 1st Sess., 820 (Nov. 3, 18, 1941) (hereinafter Hearings). [ Footnote 2/12 ] Hearings 821. [ Footnote 2/13 ] Hearings 820. [ Footnote 2/14 ] 7 Cong.Rec. 3-4 (1941). [ Footnote 2/15 ] S.Rep. No. 1010, 77th Cong., 2d Sess. (1942). [ Footnote 2/16 ] It was alleged that he had conspired as Governor to have municipal and county bonds sold to a friend of his who made a profit of $300,000 on the purchase, and purportedly rebated as much as $56,000 to Langer himself. Hearings 822-823. [ Footnote 2/17 ] At the retrial of his conviction for conspiring to interfere with the enforcement of federal law, he was said to have paid money to have a friend of his, Judge Wyman, be given control of the litigation, and to have "meddled" with the jury. Hearings 20-42, 120-130. [ Footnote 2/18 ] He was charged as a lawyer with having accepted $2,000 from the mother of a boy in prison on the promise that he would obtain his pardon when he knew, in fact, that a pardon was out of the question. He was also said to have counseled a defendant-client of his to marry the prosecution's chief witness in order to prevent her from testifying against him. And finally, it was suggested that he once bought an insurance policy during trial from one of the jurors sitting in judgment of his client. Hearings 820-830. [ Footnote 2/19 ] 87 Cong.Rec. 3-4, 460 (1941); 88 Cong.Rec. 822, 828, 1253, 2077, 2165, 2239, 2328, 2382, 2412, 2472, 2564, 2630, 2699, 2759, 2791, 2801, 2842, 2858, 2914, 2917, 2959, 2972, 2989, 3038, 3051, 3065, 5668 (1942). [ Footnote 2/20 ] 88 Cong.Rec. 2401. [ Footnote 2/21 ] Ibid. [ Footnote 2/22 ] 88 Cong.Rec. 2474. [ Footnote 2/23 ] Ibid. [ Footnote 2/24 ] Ibid. [ Footnote 2/25 ] 88 Cong.Rec. 2483. [ Footnote 2/26 ] 88 Cong.Rec. 2484. [ Footnote 2/27 ] Although the House excluded Adam Clayton Powell by over two-thirds vote, it was operating on the assumption that only a majority was needed. For the suggestion that the House could never have rallied the votes to exclude Powell on the basis of a two-thirds ground rule, see Note, 14 How.L.J. 162 (1968); Note, 42 N.Y.U.L.Rev. 716 (1967). [ Footnote 2/28 ] 88 Cong.Rec. 2488. [ Footnote 2/29 ] 88 Cong.Rec. 2490. [ Footnote 2/30 ] 88 Cong.Rec. 2488. Senator Knox of Pennsylvania had defended Senator-elect Reed Smoot of Utah in 1903 against charges that he ought to be excluded because of his affiliation with a group (Mormons) that countenanced polygamy. S.Doc. No. 71, 87th Cong., 2d Sess., 97. MR. JUSTICE STEWART, dissenting. I believe that events which have taken place since certiorari was granted in this case on November 18, 1968, have rendered it moot, and that the Court should therefore refrain from deciding the novel, difficult, and delicate constitutional questions which the case presented at its inception. Page 395 U. S. 560 I The essential purpose of this lawsuit by Congressman Powell and members of his constituency was to regain the seat from which he was barred by the 90th Congress. That purpose, however, became impossible of attainment on January 3, 1969, when the 90th Congress passed into history and the 91st Congress came into being. On that date, the petitioners' prayer for a judicial decree restraining enforcement of House Resolution No. 278 and commanding the respondents to admit Congressman Powell to membership in the 90th Congress became incontestably moot. The petitioners assert that actions of the House of Representatives of the 91st Congress have prolonged the controversy raised by Powell's exclusion and preserved the need for a judicial declaration in this case. I believe, to the contrary, that the conduct of the present House of Representatives confirms the mootness of the petitioners' suit against the 90th Congress. Had Powell been excluded from the 91st Congress, he might argue that there was a "continuing controversy" concerning the exclusion attacked in this case. [ Footnote 3/1 ] And such an argument might be sound even though the present House of Representatives is a distinct legislative body, rather than a continuation of its predecessor, [ Footnote 3/2 ] and though any grievance Page 395 U. S. 561 caused by conduct of the 91st Congress is not redressable in this action. But on January 3, 1969, the House of Representatives of the 91st Congress admitted Congressman Powell to membership, and he now sits as the Representative of the 18th Congressional District of New York. With the 90th Congress terminated and Powell now a member of the 91st, it cannot seriously be contended that there remains a judicial controversy between these parties over the power of the House of Representatives to exclude Powell and the power of a court to order him reseated. Understandably, neither the Court nor the petitioners advance the wholly untenable proposition that the continuation of this case can be founded on the infinitely remote possibility that Congressman Powell, or any other Representative, may someday be excluded for the same reasons or in the same manner. And because no foreseeable possibility of such future conduct exists, the respondents have met their heavy burden of showing that "subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." United States v. Concentrated Phosphate Export Assn., 393 U. S. 199 , 393 U. S. 203 . [ Footnote 3/3 ] The petitioners further argue that this case cannot be deemed moot because of the principle that "the voluntary abandonment of a practice does not relieve a court of adjudicating its legality. . . ." Gray v. Sanders , 372 Page 395 U. S. 562 U.S. 368, 372 U. S. 376 . [ Footnote 3/4 ] I think it manifest, however, that this principle and the cases enunciating it have no application to the present case. In the first place, this case does not involve "the voluntary abandonment of a practice." Rather, it became moot because of an event over which the respondents had no control -- the expiration of the 90th Congress. Moreover, unlike the cases relied on by the petitioners, there has here been no ongoing course of conduct of indefinite duration against which a permanent injunction is necessary. Thus, it cannot be said of the respondents' actions in this case, as it was of the conduct sought to be enjoined in Gray, for example, that "the practice is deeply rooted and longstanding," ibid., or that, without judicial relief, the respondents would be "free to return to [their] old ways." United States v. W. T. Grant Co., 345 U. S. 629 , 345 U. S. 632 . [ Footnote 3/5 ] Finally, and Page 395 U. S. 563 most important, the "voluntary abandonment" rule does not dispense with the requirement of a continuing controversy, nor could it under the definition of the judicial power in Article III of the Constitution. Voluntary cessation of unlawful conduct does make a case moot "if the defendant can demonstrate that there is no reasonable expectation that the wrong will be repeated.'" Id. at 345 U. S. 633 . [ Footnote 3/6 ] Since that is the situation here, the case would be moot even if it could be said that it became so by the House's "voluntary abandonment" of its "practice" of excluding Congressman Powell. The petitioners' proposition that conduct of the 91st Congress has perpetuated the controversy is based on the fact that House Resolution No. 2 -- the same resolution by which the House voted to seat Powell -- fined him $25,000 and provided that his seniority was to commence as of the date he became a member of the 91st Congress. [ Footnote 3/7 ] That punishment, it is said, "arises out of the Page 395 U. S. 564 prior actions of the House which originally impelled this action." It is indisputable, however, that punishment of a House member involves constitutional issues entirely distinct from those raised by exclusion, [ Footnote 3/8 ] and that a punishment in one Congress is in no legal sense a "continuation" of an exclusion from the previous Congress. A judicial determination that the exclusion was improper would have no bearing on the constitutionality of the punishment, nor any conceivable practical impact on Powell's status in the 91st Congress. It is thus clear that the only connection between the exclusion by the 90th Congress and the punishment by the 91st is that they were evidently based on the same asserted derelictions of Congressman Powell. But this action was not brought to exonerate Powell or to expunge the legislative findings of his wrongdoing; its only purpose was to restrain the action taken in consequence of those findings -- Powell's exclusion. Equally without substance is the petitioners' contention that this case is saved from mootness by application of the asserted "principle" that a case challenging allegedly unconstitutional conduct cannot be rendered moot Page 395 U. S. 565 by further unconstitutional conduct of the defendants. Under this hypothesis, it is said that the "Court cannot determine that the conduct of the House on January 3, 1969, has mooted this controversy without inferentially, at least, holding that the action of the House of that day was legal and constitutionally permissible." If there is in our jurisprudence any doctrine remotely resembling the petitioners' theory -- which they offer without reference to any authority -- it has no conceivable relevance to this case. For the events of January 3, 1969, that made this case moot were the termination of the 90th Congress and Powell's seating in the 91st, not the punishment which the petitioners allege to have been unconstitutional. That punishment is wholly irrelevant to the question of mootness, and is in no wise before the Court in this case. II The passage of time and intervening events have, therefore, made it impossible to afford the petitioners the principal relief they sought in this case. If any aspect of the case remains alive, it is only Congressman Powell's individual claim for the salary of which he was deprived by his absence from the 90th Congress. [ Footnote 3/9 ] But even if that claim can be said to prevent this controversy from being moot, which I doubt, there is no need to reach the fundamental constitutional issues that the Court today undertakes to decide. This Court has not in the past found that an incidental claim for back pay preserves the controversy between a legislator and the legislative body which evicted him, once the term of his eviction has expired. Alejandrino v. Quezon, 271 U. S. 528 , was a case nearly identical to Page 395 U. S. 566 that before the Court today. The petitioner was a member of the Senate of the Philippines who had been suspended for one year for assaulting a colleague. He brought an action in the Supreme Court of the Philippines against the elected members of the Senate [ Footnote 3/10 ] and its officers and employees (the President, Secretary, Sergeant at Arms, and Paymaster), seeking a writ of mandamus and an injunction restoring him to his seat and to all the privileges and emoluments of office. The Supreme Court of the Philippines dismissed the action for want of jurisdiction, and Alejandrino brought the case here, [ Footnote 3/11 ] arguing that the suspension was not authorized by the Philippine Autonomy Act, a statute which incorporated most of the provisions of Article I of the United States Constitution. [ Footnote 3/12 ] Page 395 U. S. 567 Because the period of the suspension had expired while the case was pending on certiorari, a unanimous Court, in an opinion by Chief Justice Taft, vacated the judgment and remanded the case with directions to dismiss it as moot. To Alejandrino's claim that his right to back pay kept the case alive, the Court gave the following answer, which, because of its particular pertinency to this case, I quote at length: "It may be suggested, as an objection to our vacating the action of the court below, and directing the dismissal of the petition as having become a moot case, that, while the lapse of time has made unnecessary and futile a writ of mandamus to restore Senator Alejandrino to the Island Senate, there still remains a right on his part to the recovery of his emoluments, which were withheld during his suspension, and that we ought to retain the case for the purpose of determining whether he may not have a mandamus for this purpose. . . . It is difficult for the Court to deal with this feature of the case, which is really only a mere incident to the main question made in the petition and considered in the able and extended brief of counsel for the petitioner, and the only brief before us. That brief is not in any part of it directed to the subject of emoluments, nor does it refer us to any statute or to the rules of the Senate by which the method of paying Senators' salaries is provided, or in a definite way describe the duties of the officer or officers or committee charged with the ministerial function of paying them." " * * * *" ". . . the remedy of the Senator would seem to be by mandamus to compel such official in the discharge of his ministerial duty to pay him the salary due, and the presence of the Senate as a party would be Page 395 U. S. 568 unnecessary. Should that official rely upon the resolution of the Senate as a reason for refusing to comply with his duty to pay Senators, the validity of such a defense and the validity of the resolution might become a judicial question affecting the personal right of the complaining Senator, properly to be disposed of in such action, but not requiring the presence of the Senate as a party for its adjudication. The right of the petitioner to his salary does not therefore involve the very serious issue raised in this petition as to the power of the Philippine Supreme Court to compel by mandamus one of the two legislative bodies constituting the legislative branch of the Government to rescind a resolution adopted by it in asserted lawful discipline of one of its members for disorder and breach of privilege. We think, now that the main question as to the validity of the suspension has become moot, the incidental issue as to the remedy which the suspended Senator may have in recovery of his emoluments, if illegally withheld, should properly be tried in a separate proceeding against an executive officer or officers as described. As we are not able to derive from the petition sufficient information upon which properly to afford such a remedy, we must treat the whole cause as moot, and act accordingly. This action on our part of course is without prejudice to a suit by Senator Alejandrino against the proper executive officer or committee by way of mandamus or otherwise to obtain payment of the salary which may have been unlawfully withheld from him." 271 U.S. at 271 U. S. 533 , 534-535. [ Footnote 3/13 ] Page 395 U. S. 569 Both of the factors on which the Court relied in Alejandrino are present in this case. Indeed, the salary claim is an even more incidental and subordinate aspect of this case than it was of Alejandrino. [ Footnote 3/14 ] And the availability of effective relief for that claim against any of the present respondents is far from certain. As in Alejandrino, the briefs and memoranda submitted by the parties in this case contain virtually no discussion of this question -- the only question of remedy remaining in the case. It appears from relevant provisions of law, however, that the Sergeant at Arms of the House -- an official newly Page 395 U. S. 570 elected by each Congress [ Footnote 3/15 ] -- is responsible for the retention and disbursement to Congressmen of the funds appropriated for their salaries. These funds are payable from the United States Treasury [ Footnote 3/16 ] upon requisitions presented by the Sergeant at Arms, who is entrusted with keeping the books and accounts "for the compensation and mileage of Members." [ Footnote 3/17 ] A Congressman who has presented his credentials and taken the oath of office [ Footnote 3/18 ] is entitled to be paid monthly on the basis of certificates of the Clerk [ Footnote 3/19 ] and Speaker of the House. [ Footnote 3/20 ] Powell's prayer for a mandamus and an injunction against the Sergeant at Arms is presumably based on this statutory scheme. Several important questions remain unanswered, however, on this record. Is the Sergeant at Arms the only necessary defendant? If so, the case is surely moot as to the other respondents, including the House members, and they should be dismissed as parties on that ground, rather than after resolution of difficult constitutional questions under the Speech or Debate Clause. But it is far from clear that Powell has an appropriate or adequate remedy against the remaining respondents. For if the Speaker does not issue the requisite certificates and the House does not rescind Resolution No. 278, can the House agents be enjoined to act in direct contravention of the orders of their employers? Moreover, the office of Sergeant at Arms of the 90th Congress has now expired, and the present Sergeant at Arms serves the 91st Congress. If he were made a party in that capacity, would he have the authority -- or could the 91st Congress Page 395 U. S. 571 confer the authority -- to disburse money for a salary owed to a Representative in the previous Congress, particularly one who never took the oath of office? Presumably funds have not been appropriated to the 91st Congress or requisitioned by its Sergeant at Arms for the payment of salaries to members of prior Congresses. Nor is it ascertainable from this record whether money appropriated for Powell's salary by the 90th Congress, if any, remains at the disposal of the current House and its Sergeant at Arms. [ Footnote 3/21 ] There are, then, substantial questions as to whether, on his salary claim, Powell could obtain relief against any or all of these respondents. On the other hand, if he was entitled to a salary as a member of the 90th Congress, he has a certain and completely satisfactory remedy in an action for a money judgment against the United States in the Court of Claims. [ Footnote 3/22 ] While that court could not have ordered Powell seated or entered a declaratory judgment on the constitutionality of his exclusion, [ Footnote 3/23 ] it Page 395 U. S. 572 is not disputed that the Court of Claims could grant him a money judgment for lost salary on the ground that his discharge from the House violated the Constitution. I would remit Congressman Powell to that remedy, and not simply because of the serious doubts about the availability of the one he now pursues. Even if the mandatory relief sought by Powell is appropriate and could be effective, the Court should insist that the salary claim be litigated in a context that would clearly obviate the need to decide some of the constitutional questions with which the Court grapples today, and might avoid them altogether. [ Footnote 3/24 ] In an action in the Court of Claims for a money judgment against the United States, there would be no question concerning the impact of the Speech or Debate Clause on a suit against members of the House of Representatives and their agents, and questions of jurisdiction and justiciability would, if raised at all, be in a vastly different and more conventional form. In short, dismissal of Powell's action against the legislative branch would not in the slightest prejudice his money claim, [ Footnote 3/25 ] and it would avoid the necessity of deciding Page 395 U. S. 573 constitutional issues which, in the petitioners' words, "touch the bedrock of our political system [and] strike at the very heart of representative government." If the fundamental principles restraining courts from unnecessarily or prematurely reaching out to decide grave and perhaps unsettling constitutional questions retain any vitality, see Ashwander v. TVA, 297 U. S. 288 , 297 U. S. 346 -348 (Brandeis, J., concurring), surely there have been few cases more demanding of their application than this one. And those principles are entitled to special respect in suits, like this suit, for declaratory and injunctive relief, which it is within a court's broad discretion to withhold. "We have cautioned against declaratory judgments on issues of public moment, even falling short of constitutionality, in speculative situations." Public Affairs Press v. Rickover, 369 U. S. 111 , 369 U. S. 112 . "Especially where governmental action is involved, courts should not intervene unless the need for equitable relief is clear, not remote or speculative." Eccles v. Peoples Bank of Lakewood Village, 333 U. S. 426 , 333 U. S. 431 . If this lawsuit is to be prolonged, I would, at the very least, not reach the merits without ascertaining that a decision can lead to some effective relief. The Court's remand for determination of that question implicitly recognizes that there may be no remaining controversy between petitioner Powell and any of these respondents redressable by a court, and that its opinion today may be wholly advisory. But I see no good reason for any court even to pass on the question of the availability Page 395 U. S. 574 of relief against any of these respondents. Because the essential purpose of the action against them is no longer attainable and Powell has a fully adequate and far more appropriate remedy for his incidental backpay claim, I would withhold the discretionary relief prayed for and terminate this lawsuit now. Powell's claim for salary may not be dead, but this case against all these respondents is truly moot. Accordingly, I would vacate the judgment below and remand the case with directions to dismiss the complaint. [ Footnote 3/1 ] See, e.g., United States v. Concentrated Phosphate Export Assn., 393 U. S. 199 , 393 U. S. 202 -304; Carroll v. President and Commissioners of Princess Anne, 393 U. S. 175 , 393 U. S. 178 -179. [ Footnote 3/2 ] See Gojack v. United States, 384 U. S. 702 , 384 U. S. 707 , n. 4 ("Neither the House of Representatives nor its committees are continuing bodies"); McGrain v. Daugherty, 273 U. S. 135 , 273 U. S. 181 . Forty-one of the present members of the House were not members of the 90th Congress, and two of the named defendants in this action, Messrs. Moore and Curtis, are no longer members of the House of Representatives. Moreover, the officer employees of the House, such as the Sergeant at Arms, are reelected by each new Congress. See 395 U.S. 486 fn3/15|>n. 15, infra. [ Footnote 3/3 ] See also United States v. W. T. Grant Co., 345 U. S. 629 , 345 U. S. 633 ; United States v. Aluminum Co. of America, 148 F.2d 416, 448. The Court has only recently concluded that there was no "controversy" in Golden v. Zwickler, 394 U. S. 103 , because of "the fact that it was most unlikely that the Congressman would again be a candidate for Congress." Id. at 394 U. S. 109 . It can hardly be maintained that the likelihood of the House of Representatives' again excluding Powell is any greater. [ Footnote 3/4 ] See also United States v. W. T. Grant Co., 345 U. S. 629 , 345 U. S. 632 -633; Local 74, United Bro. of Carpenters & Joiners v. NLRB, 341 U. S. 707 , 341 U. S. 715 ; Walling v. Helmerich & Payne, Inc., 323 U. S. 37 , 323 U. S. 43 ; Hecht Co. v. Bowles, 321 U. S. 321 , 321 U. S. 327 ; United States v. Trans-Missouri Freight Assn., 166 U. S. 290 , 166 U. S. 307 -310. [ Footnote 3/5 ] With the exception of Gray, the "continuing controversy" cases relied on by the petitioners were actions by the Government or its agencies to halt illegal conduct of the defendants, and, by example, of others engaged in similar conduct. See cases cited supra, nn. 395 U.S. 486 fn3/1|>1, 395 U.S. 486 fn3/3|>3, 395 U.S. 486 fn3/4|>4. The principle that voluntary abandonment of an illegal practice will not make an action moot is especially, if not exclusively, applicable to such public law enforcement suits. "Private parties may settle their controversies at any time, and rights which a plaintiff may have had at the time of the commencement of the action may terminate before judgment is obtained or while the case is on appeal, and, in any such case, the court, being informed of the facts, will proceed no further in the action. Here, however, there has been no extinguishment of the rights . . . of the public, the enforcement of which the Government has endeavored to procure by a judgment of a court. . . . The defendants cannot foreclose those rights, nor prevent the assertion thereof by the Government as a substantial trustee for the public under the act of Congress, by [voluntary cessation of the challenged conduct]." United States v. Trans-Missouri Freight Assn., 166 U.S. at 166 U. S. 309 . The considerations of public enforcement of a statutory or regulatory scheme which inhere in those cases are not present in this litigation. [ Footnote 3/6 ] Certainly, in every decision relied on by the petitioners, the Court did not reject the mootness argument solely on the ground that the illegal practice had been voluntarily terminated. In each, it proceeded to determine that there was, in fact, a continuing controversy. [ Footnote 3/7 ] House Resolution No. 2 provided in pertinent part: "(2) That, as punishment, Adam Clayton Powell be, and he hereby is, fined the sum of $25,000, said sum to be paid to the Clerk to be disposed of by him according to law. The Sergeant at Arms of the House is directed to deduct $1,150 per month from the salary otherwise due the said Adam Clayton Powell, and pay the same to said Clerk until said $25,000 fine is fully paid." "(3) That, as further punishment, the seniority of the said Adam Clayton Powell in the House of Representatives commence as of the date he takes the oath as a Member of the 91st Congress." The petitioners' argument that the case is kept alive by Powell's loss of seniority, see ante at 395 U. S. 496 , is founded on the mistaken assumption that the loss of seniority is attributable to the exclusion from the 90th Congress, and that seniority would automatically be restored if that exclusion were declared unconstitutional. But the fact is that Powell was stripped of seniority by the action of the 91st Congress, action which is not involved in this case and which would not be affected by judicial review of the exclusion from the 90th Congress. Moreover, even if the conduct of the 91st Congress were challenged in this case, the Court would clearly have no power whatsoever to pass upon the propriety of such internal affairs of the House of Representatives. [ Footnote 3/8 ] Article I, § 5, of the Constitution specifically empowers each House to "punish its Members for disorderly Behaviour." [ Footnote 3/9 ] The salary claim is personal to Congressman Powell, and the other petitioners therefore clearly have no further interest in this lawsuit. [ Footnote 3/10 ] The Philippines Senate was composed of 24 Senators, 22 of whom were elected and two of whom were appointed by the Governor General. Alejandrino was one of the two appointees. See 271 U.S. at 271 U. S. 531 -532. [ Footnote 3/11 ] Under the Philippine Autonomy Act, 39 Stat. 545, this Court had jurisdiction to examine by writ of error the final judgments and decrees of the Supreme Court of the Philippine Islands in cases under the Constitution or statutes of the United States. A subsequent statute substituted the writ of certiorari. 39 Stat. 726. [ Footnote 3/12 ] "Section 18 [of the Autonomy Act] provides that the Senate and House respectively shall be the sole judges of the elections, returns and qualifications of their elective members, and each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel an elective member. The Senators and Representatives shall receive an annual compensation for their services to be ascertained by law and paid out of the Treasury of the Philippine Islands. Senators and Representatives shall in all cases except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses and in going to and returning from the same, and for any speech or debate in either House they shall not be questioned in any other place." 271 U.S. at 271 U. S. 532 . [ Footnote 3/13 ] The petitioners rely on the following passage from Bond v. Floyd, 385 U. S. 116 , 385 U. S. 128 , n. 4, as dispositive of their contention that the salary claim prevents this case from being moot: "A question was raised in oral argument as to whether this case might not be moot, since the session of the House which excluded Bond was no longer in existence. The State has not pressed this argument, and it could not do so, because the State has stipulated that, if Bond succeeds on this appeal, he will receive back salary for the term from which he was excluded." I do not believe that this offhand dictum in Bond is determinative of the issue of mootness in this case. In the first place, as the Court in Bond noted, it was not there contended by any party that the case was moot. Moreover, contrary to the implication of the statement, the legislative term from which Bond was excluded had not ended at the time of the Court's decision. (The Court's decision was announced on December 5, 1966; Bond's term of office expired on December 31, 1966.) In any event, he had not been seated in a subsequent term, so the continuing controversy had not been rendered clearly moot by any action of the Georgia House, as it has here by the House of Representatives of the 91st Congress. No one suggested in Bond that the money claim was the only issue left in the case. Furthermore, the considerations which governed the Court's decision in Alejandrino were simply not present in Bond. Because of the State's stipulation, there was no doubt, as there is here, see infra at 395 U. S. 570 -571, that the Court's decision would lead to effective relief with respect to Bond's salary claim. And finally, there was no suggestion that Bond had an alternative remedy, as Powell has here, see infra at 395 U. S. 571 -572, by which he could obtain full relief without requiring the Court to decide novel and delicate constitutional issues. [ Footnote 3/14 ] Alejandrino was the only petitioner in the case, and, since he was an appointed Senator, it appears that there was no group of voters who remained without representation of their choice in the Senate during his suspension. [ Footnote 3/15 ] Act of Oct. 1, 1890, § 6, 26 Stat. 646, 2 U.S.C. § 83. [ Footnote 3/16 ] U.S.Const.Art. I, § 6; 2 U.S.C. § 47. [ Footnote 3/17 ] 2 U.S.C. §§ 80, 78. [ Footnote 3/18 ] 2 U.S.C. § 35. [ Footnote 3/19 ] 2 U.S.C. § 34. [ Footnote 3/20 ] 2 U.S.C. § 48. [ Footnote 3/21 ] The respondents allege without contradiction that the Sergeant at Arms does not have sufficient funds to pay Congressman Powell's back salary claims. Separate appropriations for the salaries of Congressmen are made in each fiscal year, see, e.g., 80 Stat. 354, 81 Stat. 127, 82 Stat. 398, and, according to the respondents, "it is the custom of the Sergeant to turn back to the Treasury all unexpended funds at the end of each fiscal year." Thus, the only funds still held by the Sergeant are said to be those appropriated for the present fiscal year commencing July 1, 1968. [ Footnote 3/22 ] "The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress. . . ." 28 U.S.C. § 1491. The district courts have concurrent jurisdiction over such claims only in amounts less than $10,000. 28 U.S.C. § 1346. [ Footnote 3/23 ] United States v. King, ante, p. 395 U. S. 1 . The petitioners suggest that the inability of the Court of Claims to grant such relief might make any remedy in that court inadequate. But since Powell's only remaining interest in the case is to collect his salary, a money judgment in the Court of Claims would be just as good as, and probably better than, mandatory relief against the agents of the House. The petitioners also suggest that the Court of Claims would be unable to grant relief because of the pendency of Powell's claim in another court, 28 U.S.C. § 1500, but that would, of course, constitute no obstacle if, as I suggest, the Court should order this action dismissed on grounds of mootness. [ Footnote 3/24 ] It is possible, for example, that the United States, in such an action, would not deny Powell's entitlement to the salary, but would seek to offset that sum against the amounts which Powell was found by the House to have appropriated unlawfully from Government coffers to his own use. [ Footnote 3/25 ] Relying on Bank of Mann v. England, 385 U. S. 99 , 385 U. S. 101 , the petitioners complain that it would impose undue hardship on Powell to force him to "start all over again" now that he has come this far in the present suit. In view of the Court's remand of this case for further proceedings with respect to Powell's remedy, it is at least doubtful that remitting him to an action in the Court of Claims would entail much more cost and delay than will be involved in the present case. And the inconvenience to litigants of further delay or litigation has never been deemed to justify departure from the sound principle, rooted in the Constitution, that important issues of constitutional law should be decided only if necessary and in cases presenting concrete and living controversies.

The case of Powell v. McCormack in 1969 dealt with the exclusion of Powell, a duly elected member of the House of Representatives for the 90th Congress, from taking his seat due to charges of misappropriation of funds and abuse of the legal process. Powell and voters from his district sued House members and officials, arguing that the exclusion violated the Constitution. The lower courts dismissed the case, but the Supreme Court held that the case was not moot as Powell had a viable claim for back salary. The Court remanded the case for further proceedings on Powell's remedy, suggesting that a money judgment in the Court of Claims would be a better option than mandatory relief against House agents.

Role of Courts

U.S. v. SCRAP

https://supreme.justia.com/cases/federal/us/412/669/

U.S. Supreme Court United States v. SCRAP, 412 U.S. 669 (1973) United States v. Students Challenging Regulatory Agency Procedures (SCRAP) No. 72-535 Argued February 28, 1973 Decided June 18, 1973 412 U.S. 669 ast|>* 412 U.S. 669 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Syllabus The Interstate Commerce Act permits railroads to file proposed freight rate increases, with at least 30 days' notice to the Interstate Commerce Commission (ICC) and the public before putting the new rates into effect. The ICC may, pursuant to § 15(7) of the Act, suspend the operation of the proposed rates for as long as seven months, in order to investigate the lawfulness of the rates. At the end of the seven-month period, the carrier may put the suspended rates into effect unless the ICC has completed its investigation and found the rates unlawful. Proceeding under the statutory scheme, substantially all the Nation's railroads sought a 2.5% surcharge on nearly all freight rates, as an emergency measure to obtain increased revenues pending adoption of selective rate increases on a permanent basis. Shippers, competing carriers, and other interested persons requested the ICC to suspend the tariff for the statutory seven-month period. Various environmental groups, including Students Challenging Regulatory Agency Procedures (SCRAP) and the Environmental Defense Fund, appellees here, protested that failure to suspend the surcharge would cause their members "economic, recreational and aesthetic harm," and specifically, that the new rate structure would discourage the use of "recyclable" materials and promote the use of raw materials that compete with scrap, thus adversely affecting the environment. On February 1, 1972, the ICC issued an order announcing its decision not to suspend the surcharge for the seven-month period, and on April 24, 1972, ordered the proposed selective increases filed by the carriers to be suspended for the full seven-month period ending November 30, 1972, and permitted the collection of the surcharge until that date. SCRAP filed the Page 412 U. S. 670 present suit seeking, inter alia, an injunction to restrain enforcement of the February 1 and April 24 orders allowing the carriers to collect the surcharge. SCRAP, an unincorporated association formed by five law students to enhance the quality of the environment, claimed that its members "suffered economic, recreational and aesthetic harm directly as a result of the adverse environmental impact of the railroad freight structure," that each of its members was caused to pay more for finished products, that each of its members uses the forests, rivers, mountains, and other natural resources of the Washington, D.C., area, and at his legal residence for camping, hiking, fishing, and other purposes, and that these uses have been adversely affected by increased freight rates. The main thrust of SCRAP's complaint was that the ICC's orders were unlawful for failure to include a detailed environmental impact statement as required by § 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332(2)(C). The three-judge District Court found that appellees had standing to sue. The court held that its power to grant an injunction was not barred by Arrow Transportation Co. v. Southern R. Co., 372 U. S. 658 , because NEPA "implicitly confers authority on the federal courts to enjoin any federal action taken in violation of NEPA's procedural requirements . . . so long as the review is confined to a determination as to whether the procedural requisites of NEPA have been followed." The court concluded that the ICC's decision not to suspend the surcharge for the seven-month period was a "major federal action significantly affecting the quality of the human environment," and granted an injunction prohibiting the ICC "from permitting" and the railroads "from collecting" the surcharge "insofar as that surcharge relates to goods being transported for purposes of recycling." Held: 1. Appellees' pleadings sufficiently alleged that they were "adversely affected" or "aggrieved" within the meaning of § 10 of the Administrative Procedure Act to withstand a motion to dismiss on the ground of lack of standing to sue. Sierra Club v. Morton, 405 U. S. 727 , distinguished. Pp. 412 U. S. 683 -690. (a) Standing is not confined to those who show economic harm, as "[a]esthetic and environmental wellbeing, like economic wellbeing, are important ingredients of the quality of life in our society." Sierra Club, supra, at 405 U. S. 734 . P. 412 U. S. 686 . (b) Here, the appellees claimed that the specific and allegedly illegal action of the ICC would directly harm them in their use of the natural resources of the Washington area. Pp. 412 U. S. 686 -687. Page 412 U. S. 671 (c) Standing is not to be denied because many people suffer the same injury. Pp. 412 U. S. 687 -688. (d) It cannot be said on these pleadings that appellees could not prove their allegations, which, if proved, would place them squarely among those persons injured in fact, by the ICC's action and entitled to review under Sierra Club, supra. Pp. 412 U. S. 688 -690. 2. The District Court lacked jurisdiction to issue the injunction. Pp. 412 U. S. 690 -698. (a) Arrow Transportation, supra, held that Congress, in § 15(7), had vested exclusive jurisdiction in the ICC to suspend rates pending its final decision on their lawfulness, and had deliberately extinguished judicial power to grant such relief; and the factual distinctions between the instant case and Arrow Transportation are inconsequential. Pp. 412 U. S. 690 -692. (b) The alleged noncompliance by the ICC with NEPA did not give the District Court authority to grant the injunction, as NEPA was not intended to repeal by implication any other statute, and the policies identified in Arrow Transportation as the basis for § 15(7) would be substantially undermined if the courts were found to have suspension powers simply because of noncompliance with NEPA. Pp. 412 U. S. 692 -698. 346 F. Supp. 189 , reversed and remanded. STEWART, J., delivered the opinion of the Court, in which BRENNAN and BLACKMUN, JJ., joined; in Parts I and II of which DOUGLAS and MARSHALL, JJ., joined; and in Parts I and III of which BURGER, C.J., and WHITE and REHNQUIST, JJ., joined. BLACKMUN, J., filed a concurring opinion, in which BRENNAN, J., joined, post, p. 412 U. S. 699 . DOUGLAS, J., filed an opinion dissenting in part, post, p. 412 U. S. 699 . WHITE, J., filed an opinion dissenting in part, in which BURGER, C.J., and REHNQUIST, J., joined, post, p. 412 U. S. 722 MARSHALL, J., filed an opinion concurring in part and dissenting in part, post, p. 412 U. S. 724 . POWELL, J., took no part in the consideration or decision of the cases. Page 412 U. S. 672 MR. JUSTICE STEWART delivered the opinion of the Court. Under the Interstate Commerce Act, the initiative for rate increases remains with the railroad. But, in the absence of special permission from the Interstate Commerce Commission, a railroad seeking an increase must provide at least 30 days' notice to the Commission and the public before putting the new rate into effect. 49 U.S.C. § 6(3). [ Footnote 1 ] During that 30-day period, the Commission Page 412 U. S. 673 may suspend the operation of the proposed rate for a maximum of seven months pending an investigation and decision on the lawfulness of the new rates. 49 U.S.C. § 15(7). [ Footnote 2 ] At the end of the seven-month Page 412 U. S. 674 period, the carrier may put the suspended rate into effect unless the Commission has earlier completed its investigation and found the rate unlawful. [ Footnote 3 ] Proceeding under this regulatory scheme, on December 13, 1971, substantially all of the railroads in the United States requested Commission authorization to file on 5 days' notice a 2.5% surcharge on nearly all freight rates. The railroads sought a January 1, 1972, effective date for the new rates. The surcharge was proposed as an interim emergency measure designed to produce some $246 million annually in increased revenues pending adoption of selective rate increases on a permanent basis. As justification for the proposed surcharge, the railroads alleged increasing costs and severely inadequate revenues. In its last general revenue increase case, less than two years earlier, the Commission had found: "[T]he financial condition of the railroad industry as a whole, and the financial status of many individual carriers by rail, must be found to be at a dangerously low level. The precipitous decline in working capital and serious loss of liquidity has reduced many carriers to a truly marginal operation. This has been most clearly demonstrated by the recent bankruptcy application of the Penn Central. We think it undeniable that a number of Page 412 U. S. 675 other roads are approaching a similar financial crisis." Ex parte Nos. 266/267, Increased Freight Rates, 1970 and 1971, 339 I.C.C. 125, 173. The railroads alleged that, since the close of that proceeding, their costs had increased by over $1 billion on an annual basis, including $305 million in increased wages, while economic indicators such as decreased working capital and increased debt obligations pointed toward an ever-worsening financial condition. [ Footnote 4 ] In an order dated December 21, 1971, the Commission acknowledged the need, particularly of some carriers, for increased revenues, but it concluded that five days' notice and a January 1, 172, effective date "would preclude the public from effective participation." Ex parte No. 281, Increased Freight Rates and Charges, 1972, 340 I.C.C. 358, 361. The Commission authorized the railroads to refile the 2.5% surcharge with not less than 30 days' notice, and an effective date no earlier than February 5, 1972. On January 5, 1972, the railroads refiled the surcharge, to become effective on February 5, 1972. Shippers, competing carriers, and other interested persons requested the Commission to suspend the tariff for the statutory seven-month period. Various environmental groups, including Students Challenging Regulatory Agency Procedures (SCRAP) and the Environmental Defense Fund (EDF), two of the appellees here, protested that failure to suspend the surcharge would cause their members "economic, Page 412 U. S. 676 recreational and aesthetic harm." Specifically, they claimed that the rate structure would discourage the use of "recyclable" materials, and promote the use of new raw materials that compete with scrap, thereby adversely affecting the environment by encouraging unwarranted mining, lumbering, and other extractive activities. The members of these environmental groups were allegedly forced to pay more for finished products, and their use of forests and streams was allegedly impaired because of unnecessary destruction of timber and extraction of raw materials, and the accumulation of otherwise recyclable solid and liquid waste materials. The railroads replied that, since this was a general rate increase, recyclable materials would not be made any less competitive relative to other commodities, and that, in the past, general rate increases had not discouraged the movement of scrap materials. The Commission issued an order on February 1, 1972, shortly before the surcharge would have automatically become effective. It recognized that "the railroads have a critical need for additional revenue from their interstate freight rates and charges to offset, in part, recently incurred increased operating costs," and announced its decision not to suspend the 2.5% surcharge for the seven-month statutory period. [ Footnote 5 ] In anticipation of the proposed permanent selective increases to be filed by the railroads, and to avoid further complication of the tariff rates, the Commission specified that its refusal to suspend was conditioned upon the carriers' setting an expiration date for the surcharge of no later than June 5, 1972. [ Footnote 6 ] The Commission ordered the investigation into Page 412 U. S. 677 the railroads' rates which had been instituted by its December 21 order to be held in abeyance until the carriers requested permission to file the indicated permanent rate increases on a selective basis. With respect to the appellees' environmental arguments, the Commission found that "the involved general increase will have no significant adverse effect on the movement of traffic by railway or on the quality of the human environment within the meaning of the [National] Environmental Policy Act of 1969." The proposed permanent selective increases, averaging 4.1%, were subsequently filed with the Commission, and various parties again requested that these proposed rates also be suspended. By order served March 6, 1972, the Commission did not grant the railroads' request to have the selective increases go into effect on April 1, 1972, as they had sought, but it allowed the carriers to republish their rates to become effective on May 1, 1972, upon not less than 45 days' notice to the public. The carriers did republish the rates, and, on April 24, 1972, the Commission entered an order suspending the proposed selective increase for the full seven-month period allowed by statute, or to and including November 30, 1972. [ Footnote 7 ] The investigation into the increased rates was continued. Since the selective increases were to supplant the temporary surcharge, and since they had been suspended, the Commission modified its February 1 order and authorized the railroads to eliminate the June 5 expiration date for Page 412 U. S. 678 the surcharge and to continue collecting the surcharge until November 30, 1972. I On May 12, 1972, SCRAP filed the present suit against the United States and the Commission in the District Court for the District of Columbia seeking, along with other relief, a preliminary injunction to restrain enforcement of the Commission's February 1 and April 24 orders allowing the railroads to collect the 2.5% surcharge. SCRAP stated in its amended complaint that it was "an unincorporated association formed by five law students . . . in September, 1971. Its primary purpose is to enhance the quality of the human environment for its members, and for all citizens. . . ." To establish standing to bring this suit, SCRAP repeated many of the allegations it had made before the Commission in Ex parte 281. It claimed that each of its members "suffered economic, recreational and aesthetic harm directly as a result of the adverse environmental impact of the railroad freight structure, as modified by the Commission's actions to date in Ex Parte 281. " Specifically, SCRAP alleged that each of its members was caused to pay more for finished products, that each of its members "[u]ses the forests, rivers, streams, mountains, and other natural resources surrounding the Washington Metropolitan area and at his legal residence, for camping, hiking, fishing, sightseeing, and other recreational [and] aesthetic purposes," and that these uses have been adversely affected by the increased freight rates, that each of its members breathes the air within the Washington metropolitan area and the area of his legal residence, and that this air has suffered increased pollution caused by the modified rate structure, and that each member has been forced to pay increased taxes because of the sums which must be expended to dispose of otherwise reusable waste materials. Page 412 U. S. 679 The main thrust of SCRAP's complaint was that the Commission's decisions of February 1 and April 24, insofar as they declined to suspend the 2.5% surcharge, were unlawful because the Commission had failed to include a detailed environmental impact statement as required by § 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332(2)(C). NEPA requires such a statement in "every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment. . . ." Ibid. [ Footnote 8 ] SCRAP contended that, because Page 412 U. S. 680 of its alleged adverse impact upon recycling, the Commission's action with respect to the surcharge constituted a major federal action significantly affecting the environment. Three additional environmental groups, also appellees here, were allowed to intervene as plaintiffs, and a group of railroads, appellants here, intervened as defendants to support the 2.5% surcharge. [ Footnote 9 ] After a single district Page 412 U. S. 681 judge had denied the defendants' motion to dismiss and SCRAP's motion for a temporary restraining order, a statutory three-judge district court was convened pursuant to 28 U.S.C. §§ 2284, 2325, to decide the motion for a preliminary injunction and the cross-motion to dismiss the complaint. On July 10, 1972, the District Court filed an opinion, 346 F. Supp. 189 , and entered an injunction prohibiting the Commission "from permitting," and the railroads "from collecting" the 2.5% surcharge "insofar as that surcharge relates to goods being transported for purposes of recycling, pending further order of this court." [ Footnote 10 ] The court first rejected the contention that the appellees were without standing to sue because they allegedly had no more than "a general interest in seeing that the law is enforced," id. at 195, and distinguished our recent decision in Sierra Club v. Morton, 405 U. S. 727 , on the Page 412 U. S. 682 basis that, unlike the petitioner in Sierra Club, the environmental groups here had alleged that their members used the forests, streams, mountains and other resources in the Washington area and that this use was disturbed by the environmental impact caused by nonuse of recyclable goods. Second, the court found that its power to grant an injunction was not barred by our decision in Arrow Transportation Co. v. Southern R. Co., 372 U. S. 658 , 372 U. S. 667 , where we held that, in enacting 49 U.S.C. § 15(7), Congress had intentionally vested "in the Commission the sole and exclusive power to suspend" and withdrew "from the judiciary any preexisting power to grant injunctive relief." The court reasoned that NEPA "implicitly confers authority on the federal courts to enjoin any federal action taken in violation of NEPA's procedural requirements . . . so long as the review is confined to a determination as to whether the procedural requisites of NEPA have been followed." 346 F. Supp. at 197 and n. 11. Finally, turning to the merits, the court concluded that the Commission's April 24 decision not to suspend the surcharge for the statutory seven-month period was a " major Federal action significantly affecting the quality of the human environment.'" Id. at 199. On the premise that an environmental impact statement is required "whenever the action arguably will have an adverse environmental impact," id. at 201, the court held that "the danger of an adverse impact is sufficiently real to require a statement in this case." Ibid. The District Court declined to stay its injunctive order pending appeal to this Court, and on July 19, 1972, THE CHIEF JUSTICE, as Circuit Justice for the District of Columbia Circuit, denied applications to stay the preliminary injunction. 409 U. S. 1207 . On December 18, 1972, we noted probable jurisdiction of the appeals filed by the Page 412 U. S. 683 United States, the Commission, and the railroads. 409 U.S. 1073. [ Footnote 11 ] II The appellants challenge the appellees' standing to sue, arguing that the allegations in the pleadings as to standing Page 412 U. S. 684 were vague, unsubstantiated, and insufficient under our recent decision in Sierra Club v. Morton, supra. The appellees respond that, unlike the petitioner in Sierra Page 412 U. S. 685 Club, their pleadings sufficiently alleged that they were "adversely affected" or "aggrieved" within the meaning of § 10 of the Administrative Procedure Act (APA), 5 U.S.C. § 702, [ Footnote 12 ] and they point specifically to the allegations that their members used the forests, streams, mountains, and other resources in the Washington metropolitan area for camping, hiking, fishing, and sightseeing, and that this use was disturbed by the adverse environmental impact caused by the nonuse of recyclable goods brought about by a rate increase on those commodities. The District Court found these allegations sufficient to withstand a motion to dismiss. We agree. The petitioner in Sierra Club, "large and long-established organization, with a historic commitment to the cause of protecting our Nation's natural heritage from man's depredations," 405 U.S. at 405 U. S. 739 , sought a declaratory judgment and an injunction to restrain federal officials from approving the creation of an extensive ski resort development in the scenic Mineral King Valley of the Sequoia National Forest. The Sierra Club claimed standing to maintain its "public interest" lawsuit because it had " a special interest in the conservation and the sound maintenance of the national parks, game refuges and forests of the country. . . .'" Id. at 405 U. S. 730 . We held those allegations insufficient. Page 412 U. S. 686 Relying upon our prior decisions in Data Processing Service v. Camp, 397 U. S. 150 , and Barlow v. Collins, 397 U. S. 159 , we held that § 10 of the APA conferred standing to obtain judicial review of agency action only upon those who could show "that the challenged action had caused them 'injury in fact,' and where the alleged injury was to an interest 'arguably within the zone of interests to be protected or regulated' by the statutes that the agencies were claimed to have violated." 405 U.S. at 405 U. S. 733 . [ Footnote 13 ] In interpreting "injury in fact," we made it clear that standing was not confined to those who could show "economic harm," although both Data Processing and Barlow had involved that kind of injury. Nor, we said, could the fact that many persons shared the same injury be sufficient reason to disqualify from seeking review of an agency's action any person who had in fact, suffered injury. Rather, we explained: "Aesthetic and environmental wellbeing, like economic wellbeing, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many, rather than the few, does not make them less deserving of legal protection through the judicial process." Id. at 405 U. S. 734 . Consequently, neither the fact that the appellees here claimed only a harm to their use and enjoyment of the natural resources of the Washington area nor the fact that all those who use those Page 412 U. S. 687 resources suffered the same harm, deprives them of standing. In Sierra Club, though, we went on to stress the importance of demonstrating that the party seeking review be himself among the injured, for it is this requirement that gives a litigant a direct stake in the controversy and prevents the judicial process from becoming no more than a vehicle for the vindication of the value interests of concerned bystanders. No such specific injury was alleged in Sierra Club. In that case, the asserted harm "will be felt directly only by those who use Mineral King and Sequoia National Park, and for whom the aesthetic and recreational values of the area will be lessened by the highway and ski resort," id. at 405 U. S. 735 , yet "[t]he Sierra Club failed to allege that it or its members would be affected in any of their activities or pastimes by the . . . development." Ibid. Here, by contrast, the appellees claimed that the specific and allegedly illegal action of the Commission would directly harm them in their use of the natural resources of the Washington Metropolitan Area. Unlike the specific and geographically limited federal action of which the petitioner complained in Sierra Club, the challenged agency action in this case is applicable to substantially all of the Nation's railroads, and thus allegedly has an adverse environmental impact on all the natural resources of the country. Rather than a limited group of persons who used a picturesque valley in California, all persons who utilize the scenic resources of the country, and indeed all who breathe its air, could claim harm similar to that alleged by the environmental groups here. But we have already made it clear that standing is not to be denied simply because many people suffer the same injury. Indeed, some of the cases on which we relied in Sierra Club demonstrated the patent fact that persons Page 412 U. S. 688 across the Nation could be adversely affected by major governmental actions. See, e.g., Environmental Defense Fund v. Hardin, 428 F.2d 1093, 1097 (interests of consumers affected by decision of Secretary of Agriculture refusing to suspend registration of certain pesticides containing DDT); Reade v. Ewing, 205 F.2d 630, 631-632 (interests of consumers of oleomargarine in fair labeling of product regulated by Federal Security Administration). To deny standing to persons who are in fact, injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody. We cannot accept that conclusion. But the injury alleged here is also very different from that at issue in Sierra Club, because here the alleged injury to the environment is far less direct and perceptible. The petitioner there complained about the construction of a specific project that would directly affect the Mineral King Valley. Here, the Court was asked to follow a far more attenuated line of causation to the eventual injury of which the appellees complained -- a general rate increase would allegedly cause increased use of nonrecyclable commodities as compared to recyclable goods, thus resulting in the need to use more natural resources to produce such goods, some of which resources might be taken from the Washington area, and resulting in more refuse that might be discarded in national parks in the Washington area. The railroads protest that the appellees could never prove that a general increase in rates would have this effect, and they contend that these allegations were a ploy to avoid the need to show some injury in fact,. Of course, pleadings must be something more than an ingenious academic exercise in the conceivable. A plaintiff must allege that he has been or will, in fact, be perceptibly harmed by the challenged agency action, Page 412 U. S. 689 not that he can imagine circumstances in which he could be affected by the agency's action. And it is equally clear that the allegations must be true and capable of proof at trial. But we deal here simply with the pleadings in which the appellees alleged a specific and perceptible harm that distinguished them from other citizens who had not used the natural resources that were claimed to be affected. [ Footnote 14 ] If, as the railroads now assert, these allegations were in fact untrue, then the appellants should have moved for summary judgment on the standing issue and demonstrated to the District Court that the allegations were sham and raised no genuine issue of fact. [ Footnote 15 ] We cannot say on these pleadings that the appellees Page 412 U. S. 690 could not prove their allegations which, if proved, would place them squarely among those persons injured in fact, by the Commission's action, and entitled under the clear import of Sierra Club to seek review. The District Court was correct in denying the appellants' motion to dismiss the complaint for failure to allege sufficient standing to bring this lawsuit. III We need not reach the issue whether, under conventional standards of equity, the District Court was justified in issuing a preliminary injunction, because we have concluded that the court lacked jurisdiction to enter an injunction in any event. The District Court enjoined the Commission from "permitting," and the railroads from "collecting," the 2.5% interim surcharge on recyclable commodities. Finding that NEPA implicitly conferred authority "on the federal courts to enjoin any federal action taken in violation of NEPA's procedural requirements," 346 F. Supp. at 197, it concluded that our decision in Arrow Transportation Co. v. Southern R. Co., 372 U. S. 658 , did not affect judicial power to issue an injunction in the circumstances of this case. We cannot agree. In Arrow, the Commission had suspended a railroad's proposed rates for the statutory seven-month period, and the railroad had voluntarily deferred the proposed rate Page 412 U. S. 691 for an additional five months. When the Commission had not reached a final decision within that period, the railroad announced its intent to adopt the new rates. In a suit brought to enjoin the railroad from effectuating that change, we held that the courts were without power to issue such an injunction. From the language and history of § 15(7) of the Interstate Commerce Act, we concluded that Congress had vested exclusive power in the Commission to suspend rates pending its final decision on their lawfulness, and had deliberately extinguished judicial power to grant such relief. The factual distinctions between the present cases and Arrow are inconsequential. It is true that the injunction in Arrow was sought after the statutory seven-month period had expired, and thus represented an attempt to extend judicially the suspension period, while here the injunction was issued during the suspension period. But Arrow was grounded on the lack of power in the courts to grant any injunction before the Commission had finally determined the lawfulness of the rates, and that holding did not depend on the fact that the availability of the Commission's power of suspension had passed. Indeed, the federal court decisions cited and approved in Arrow involved instances where the courts had been asked to enjoin rates during the statutory seven-month period. See, e.g., M. C. Kiser Co. v. Central of Georgia R. Co., 236 F. 573, aff'd, 239 F. 718; Freeport Sulphur Co. v. United States, 199 F. Supp. 913 ; Bison S.S. Corp. v. United States, 182 F. Supp. 63 ; Luckenbach S.S. Co. v. United States, 179 F. Supp. 605 , 609-610, vacated in part as moot, 364 U. S. 280 ; Carlsen v. United States, 107 F. Supp. 398 . Similarly, there is no significance in the fact that, unlike Arrow, the injunction in this litigation ran against the Commission, as well as the railroads. The only Page 412 U. S. 692 way in which the Commission could comply with the court's order would be to exercise its power of suspension and suspend the surcharge. The injunction constitutes a direct interference with the Commission's discretionary decision whether or not to suspend the rates. It would turn Arrow into a sheer formality and effectively amend § 15(7) if a federal court could accomplish by injunction against the Commission what it could not accomplish by injunction directly against the railroads. And, again, the federal court decisions on which Arrow relied were, for the most part, cases in which the court had held that they were without power to compel the Commission to grant a rate suspension. See, e.g., Bison S.S. Corp. v. United States, supra; Luckenbach S.S. Co. v. United States, supra; Carlsen v. United States, supra; cf. Freeport Sulphur Co. v. United States, supra. [ Footnote 16 ] Thus, the only arguably significant distinction between the present litigation and Arrow is that, here, the Commission allegedly failed to comply with NEPA. However, we cannot agree with the District Court that NEPA has amended § 15(7) sub silentio and created an implicit exception to Arrow so that judicial power to grant injunctive Page 412 U. S. 693 relief in this case has been revived. [ Footnote 17 ] NEPA, one of the recent major federal efforts at reversing the deterioration of the country's environment, declares "that it is the continuing policy of the Federal Government . . . to use all practicable means and measures . . . in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans." 42 U.S.C. § 4331. To implement these lofty purposes, Congress imposed a number of responsibilities upon federal agencies, most notably the requirement of producing a detailed environmental impact statement for "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). [ Footnote 18 ] But Page 412 U. S. 694 nowhere, either in the legislative history or the statutory language, is there any indication that Congress intended to restore to the federal courts the power temporarily to suspend railroad rates, a power that had been clearly taken away by § 15(7) of the Interstate Commerce Act. The statutory language, in fact, indicates that NEPA was not intended to repeal by implication any other statute. Thus, 42 U.S.C. § 4335 specifies that "[t]he policies and goals set forth in [NEPA] are supplementary to those set forth in existing authorizations of Federal agencies," and 42 U.S.C. § 4334 instructs that the Act "shall [not] in any way affect the specific statutory obligations of any Federal agency. . . ." Rather than providing for any wholesale overruling of prior law, NEPA requires all federal agencies to review their "present statutory authority, administrative regulations, and current policies and procedures for the purpose of determining whether there are any deficiencies or inconsistencies therein which prohibit full compliance with the purposes and provisions of [NEPA] and shall propose to the President . . . such measures as may be necessary to bring their authority and policies into conformity with the intent, purposes, and procedures set forth in [NEPA]." 42 U.S.C. § 4333. It would be anomalous if Congress had provided at one and the same time that federal agencies, which have the primary responsibility for the implementation of NEPA, [ Footnote 19 ] must comply with present law and ask for any necessary new legislation, but that the courts may simply ignore what Page 412 U. S. 695 we described in Arrow as "a clear congressional purpose to oust judicial power. . . ." 372 U.S. at 372 U. S. 671 n. 22. [ Footnote 20 ] The District Court pointed to nothing either in the language or history of NEPA that suggests a restoration of previously eliminated judicial power. While it relied primarily on the decisions of the Court of Appeals for the District of Columbia Circuit in Calvert Cliffs' Coordinating Comm. v. Atomic Energy Comm'n, 146 U.S.App.D.C. 33, 449 F.2d 1109, and Committee for Nuclear Responsibility, Inc. v. Seaborg, 149 U.S.App.D.C. 380, 463 F.2d 783, neither case supports an injunction under the circumstances of this case. Calvert Cliffs' held that a federal court had power to review rules promulgated by the Atomic Energy Commission, and there, the court ordered further consideration of the rules on the ground that there had not been compliance with NEPA. In Committee for Nuclear Responsibility, it was held that federal courts had jurisdiction to consider whether an executive decision to conduct a nuclear test had satisfied the procedural requirements Page 412 U. S. 696 of NEPA. The question here, however, is not whether there is general judicial power to determine if an agency has complied with NEPA, and to grant equitable relief if it has not, cf. Arrow Transportation Co. v. Southern R. Co., supra, at 372 U. S. 671 n. 22; Scripps-Howard Radio, Inc. v. FCC, 316 U. S. 4 , but, rather, whether, in a specific context, NEPA sub silentio, revived judicial power that had been explicitly eliminated by Congress. Calvert Cliffs' and Committee for Nuclear Responsibility have nothing to say on this issue, for neither was concerned with a specific statute that restricts the power of the federal courts to grant injunctions. [ Footnote 21 ] Our conclusion that the District Court lacked the power to grant the present injunction is confirmed by the fact that each of the policies that we identified in Arrow as the basis for § 15(7) would be substantially undermined if the courts were found to have suspension powers simply because noncompliance with NEPA was alleged. First, Arrow found that the Commission had been granted exclusive suspension powers in order to avoid the diverse results that had previously been reached by the courts. District courts had differed as to the existence and scope of any power to grant interim relief, with the consequence that the uniformity of rates had been jeopardized, and different shippers, carriers, and areas of the country had been subjected to disparate treatment. Similarly, since a suit to enjoin a national rate increase on NEPA grounds could be brought in any federal district court in the country, see 28 U.S.C. §§ 2284, 2321-2325, the result might easily be that the courts would Page 412 U. S. 697 "[reach] diverse results, . . . [engendering] confusion and [producing] competitive inequities." 372 U.S. at 372 U. S. 663 . In short, a rate increase allowed in New York might be disallowed in New Jersey. Second, we stressed in Arrow that § 15(7) represents a careful accommodation of the various interests involved. The suspension period was limited as to time to prevent excessive harm to the carriers, for the revenues lost during that period could not be recouped from the shippers. On the other hand, Congress was aware that, if the Commission did not act within the suspension period, then the new rates would automatically go into effect, and the shippers would have to pay increased rates that might eventually be found unlawful. To mitigate this loss, Congress authorized the Commission to require the carriers to keep detailed accounts, and eventually to repay the increased rates if found unlawful. To allow judicial suspension for noncompliance with NEPA would disturb this careful balance of interests. A railroad may depend for its very financial life on an increased rate, and the rate may be perfectly just and reasonable. Granting an injunction against that rate based on the Commission's alleged noncompliance with NEPA, although the Commission had determined not to suspend the rate, would deprive the railroad of vitally needed revenues and result in an unjustified windfall to shippers. Finally, we found in Arrow that any survival of a judicial power to grant interim injunctive relief would represent an undesirable interference with the orderly exercise of the Commission's power of suspension. Similarly, to grant an injunction in the present context, even though not based upon a substantive consideration of the rates, would directly interfere with the Commission's decision as to when the rates were to go into effect, and would ignore our conclusion in Arrow that "Congress meant to foreclose a judicial power to interfere Page 412 U. S. 698 with the timing of rate changes which would be out of harmony with the uniformity of rate levels fostered by the doctrine of primary jurisdiction." 372 U.S. at 372 U. S. 668 . As the Court of Appeals for the Second Circuit explained in Port of New York Authority v. United States, 451 F.2d 783, 788, where, on the basis of alleged noncompliance with NEPA, an injunction was sought against a Commission order refusing to suspend rates: "The basis of the decision in Arrow -- that to permit judicial interference with the Commission's suspension procedures would invite the very disruption in the orderly review of the lawfulness of proposed tariffs that Congress meant to preclude -- applies with equal force to the issue now before us." Accordingly, because the District Court granted a preliminary injunction suspending railroad rates when it lacked the power to do so, [ Footnote 22 ] its judgment must be reversed, Page 412 U. S. 699 and the cases remanded to that court for further proceedings consistent with this opinion. It s so ordered. MR. JUSTICE POWELL took no part in the consideration or decision of these cases. * Together with No. 72-562, Aberdeen & Rockfish Railroad Co. et al. v. Students Challenging Regulatory Agency Procedures (SCRAP) et al., also on appeal from the same court. [ Footnote 1 ] Title 49 U.S.C. § 6(3) provides: "No change shall be made in the rates, fares, and charges or joint rates, fares, and charges which have been filed and published by any common carrier in compliance with the requirements of this section, except after thirty days' notice to the Commission and to the public published as aforesaid, which shall plainly state the changes proposed to be made in the schedule then in force and the time when the changed rates, fares, or charges will go into effect; and the proposed changes shall be shown by printing new schedules, or shall be plainly indicated upon the schedules in force at the time and kept open to public inspection: Provided, That the Commission may, in its discretion and for good cause shown, allow changes upon less than the notice herein specified, or modify the requirements of this section in respect to publishing, posting, and filing of tariffs, either in particular instances or by a general order applicable to special or peculiar circumstances or conditions: Provided further, That the Commission is authorized to make suitable rules and regulations for the simplification of schedules of rates, fares, charges, and classifications and to permit in such rules and regulations the filing of an amendment of or change in any rate, fare, charge, or classification without filing complete schedules covering rates, fares, charges, or classifications not changed if, in its judgment, not inconsistent with the public interest." [ Footnote 2 ] Title 49 U.S.C. § 15(7) provides in pertinent part: "Whenever there shall be filed with the Commission any schedule stating a new . . . rate, fare, or charge, . . . the Commission shall have . . . authority, either upon complaint or upon its own initiative without complaint, at once, and if it so orders without answer or other formal pleading by the interested carrier or carriers, but upon reasonable notice, to enter upon a hearing concerning the lawfulness of such rate, fare, [or] charge . . . ; and pending such hearing and the decision thereon the Commission, upon filing with such schedule and delivering to the carrier or carriers affected thereby a statement in writing of its reasons for such suspension, may from time to time suspend the operation of such schedule and defer the use of such rate, fare, [or] charge . . . , but not for a longer period than seven months beyond the time when it would otherwise go into effect; and after full hearing, whether completed before or after the rate, fare, [or] charge . . . goes into effect, the Commission may make such order with reference thereto as would be proper in a proceeding initiated after it had become effective. If the proceeding has not been concluded and an order made within the period of suspension, the proposed change of rate, fare, [or] charge . . . shall go into effect at the end of such period; but in case of a proposed increased rate or charge for or in respect to the transportation of property, the Commission may by order require the interested carrier or carriers to keep accurate account in detail of all amounts received by reason of such increase, specifying by whom and in whose behalf such amounts are paid, and upon completion of the hearing and decision may by further order require the interested carrier or carriers to refund, with interest, to the persons in whose behalf such amounts were paid, such portion of such increased rates or charges as by its decision shall be found not justified. At any hearing involving a change in a rate, fare, [or] charge . . . after September 18, 1940, the burden of proof shall be upon the carrier to show that the proposed changed rate, fare, [or] charge . . . is just and reasonable, and the Commission shall give to the hearing and decision of such questions preference over all other questions pending before it and decide the same as speedily as possible." [ Footnote 3 ] Other statutory provisions giving suspension powers to the Commission include 49 U.S.C. §§ 316(g), 318(c) (Motor Carrier Act); 49 U.S.C. §§ 907(g), (i) (Water Carrier Act); 49 U.S.C. § 1006(e) (Freight Forwarders Act). [ Footnote 4 ] Figures reported to the Commission indicated that the net working capital of the Class I railroads for the 12 months ending September 30, 1971, was only $75.4 million, approximately $33.7 million less than the year-end 1970 figure. Long-term debt maturing within one year from September 30, 1971, was $43.6 million higher than on December 31, 1970. Equipment obligations at the end of 1970 were $4,448 million, or almost twice the total in 1960. [ Footnote 5 ] The order of the ICC is unreported. [ Footnote 6 ] The Commission also imposed as a condition on its refusal to suspend the exclusion of increased rates "on freight in trailer bodies, semi-trailers, vehicles or containers on flat cars, on export and import traffic." Since such increases had been proposed only by the western and southern carriers, and not by the eastern carriers, such increases would, in the Commission's view, have disrupted existing port relationships. Finally, the Commission conditioned its action on the provision that the proposed surcharge would not apply to shipments originating prior to February 5, 1972, and moving under transit arrangements. [ Footnote 7 ] The March 6 and April 24 orders of the ICC are unreported. [ Footnote 8 ] Section 102, 42 U.S.C. § 4332, provides in pertinent part: "The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall --" " * * * *" "(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on -- " "(i) the environmental impact of the proposed action," "(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented," "(iii) alternatives to the proposed action," "(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and" "(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented." "Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public . . . , and shall accompany the proposal through the existing agency review processes." [ Footnote 9 ] The Environmental Defense Fund, National Parks and Conservation Association, and Izaak Walton League of America intervened as plaintiffs. The allegations as to standing made by each of these groups were similar to those made by SCRAP. EDF, for example, alleged as follows: "EDF has a nationwide membership of over 32,000 persons composed of scientists, educators, lawyers and other citizens dedicated to the protection of our environment and the wise use of our natural resources. Each of EDF's members has a personal interest in the maintenance of a safe, healthful, productive environment as free from waste substances as is possible. EDF's members have contributed financially to EDF in part so that they may obtain adequate representation of their legally protected environmental interests, which representation they could not otherwise individually afford. Each of EDF's members has, under § 101(c) of NEPA, 'a responsibility to contribute to the preservation and enhancement of the environment,' which responsibility they fulfill in part by becoming a member of and contributing to EDF." "The increased freight rates and charges in Ex Parte 281 and the continuance of the underlying rate structure, which discriminate against movement of secondary (recyclable) materials, will cause EDF members individualized injury and adversely affect them in one or more of their activities and pastimes. Specifically, each EDF member: (i) has been or will be caused to pay more for products in the market place, made more expensive by both the non-use of recycled materials in their manufacture, and the need to use comparatively more energy in processing primary raw materials as opposed to secondary (recyclable) materials; (ii) uses the nation's forests, rivers, streams, mountains, and other natural resources for camping, hiking, fishing, sightseeing, and other recreational and aesthetic purposes. These uses have been and will continue to be adversely affected to the extent that the freight rate structure, as modified thus far in Ex Parte 281, encourages destruction of virgin timber, the unnecessary extraction of nonrenewable resources, and the discharge and accumulation of otherwise recyclable materials." [ Footnote 10 ] The court dismissed as moot that part of the complaint relating to the Commission's February 1 order because that order had expired by its own terms on June 5. Since the environmental groups have not appealed from the judgment below, we have before us for review only the District Court's action with regard to the Commission's April 24 order that allowed the surcharge to continue until November 30, 1972. The court also concluded that, since the Commission had taken no final action with respect to the 4.1% selective increase, the lawfulness of that tariff was not ripe for review. The court did, however, retain jurisdiction over the case to review the final order of the Commission. [ Footnote 11 ] While subsequent events do not bear directly on the validity of the District Court's action in granting the preliminary injunction, they do highlight the problems that hover in the background of this litigation. On October 4, 1972, the Commission served its report and order in Ex parte 281 approving, with some exceptions, the general increases filed by the railroads. Increased Freight Rates and Charges, 1972, 341 I.C.C. 290. In that report, although the Commission gave extensive consideration to environmental aspects of the rate increases, it declined to include a formal environmental impact statement because it concluded that its actions "will neither actually nor potentially significantly affect the quality of the human environment. . . ." Id. at 314. The selective increases were to become effective on October 23, 1972, but the Commission delayed until November 12 the effective date for rate increases on recyclable commodities in order to allow the submission of comments by interested parties. Upon the submission of critical comments, the Commission, in an unreported order served on November 8, reopened the rate proceeding in Ex parte 281 for further evaluation of the rates on recyclable commodities, and ordered the proposed selective tariff increases on those commodities suspended for the full seven-month period authorized by statute -- until June 10, 1973. Accordingly, with respect to recyclable commodities on which the proposed selective increase had been suspended, the Commission extended the expiration date of the 2.5% surcharge until June 10, 1973, the expiration date for the suspension of the selective increases. But the Commission acknowledged that the power to collect the surcharge on these recyclable commodities was barred by the preliminary injunction issued by the District Court in the present case and which is the subject of the present appeals. In short, the temporary 2.5% surcharge would have been in effect throughout this period on recyclable commodities but for the District Court's resilient preliminary injunction. Whether the Commission deliberately continued the surcharge beyond the time it would have been supplanted by the selective increases in order to give the surcharge and the District Court's injunction continuing effect, and thus avoid mooting this litigation, and whether the Commission acted beyond its powers under 49 U.S.C. § 15(7) by suspending the selective increases for a second seven-month period and by treating the District Court's injunction as having continuing effect, are questions not raised here. No party now maintains that these cases are moot. Cf. Southern Pacific Terminal Co. v. ICC, 219 U. S. 498 , 219 U. S. 515 . Both sets of appellees filed motions in the District Court: SCRAP sought a preliminary injunction against the Commission's October 4 order, and EDF and the other intervening plaintiffs sought leave to file an amended and supplemental complaint and requested other relief. On January 9, 1973, the court deferred consideration of the EDF motions and denied SCRAP's request for a preliminary injunction. The court found that, as a result of the Commission's November 8 order, neither the selective rate increases nor the temporary surcharge could be assessed on recyclable commodities. Consequently, the court found, no injunctive relief was justified as to those materials. While the permanent rate increase approved by the Commission in Ex parte 281 was then being collected on shipments of all other commodities, and although the Commission had concededly failed to file an impact statement, the court concluded that "the danger of an adverse impact appears to be sufficiently speculative . . . that it would be unsound to grant preliminary relief." The court continued: "The record indicates that many railroads are in dire financial straits -- some on the verge of bankruptcy -- and badly need the revenues now being obtained under the Commission's rate increase. The increase amounts to some $340 million per year, and, were this revenue flow halted, it could not easily be recouped should it later appear that no NEPA statement was necessary." The merits of neither the Commission's October 4 order nor the District Court's January 9 decision are before us, and we therefore express no opinion on them. On May 7, 1973, the Commission served its final environmental impact statement relating to the selective rate increases on recyclable commodities. It concluded that the proposed increases would have no significant adverse effect on the environment. Contending that the impact statement was inadequate, EDF and SCRAP sought to enjoin collection of the selective rate increases. On June 7, 1973, the District Court temporarily enjoined the railroads from collecting the selective increases on recyclable commodities. On June 8, 1973, THE CHIEF JUSTICE, as Circuit Justice for the District of Columbia Circuit, stayed the District Court's injunction pending further order of this Court. [ Footnote 12 ] Like the petitioner in Sierra Club, the appellees here base their standing to sue upon the APA, 5 U.S.C. § 702, which provides: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." [ Footnote 13 ] As in Sierra Club, it is unnecessary to reach any question concerning the scope of the "zone of interests" test or its application to this case. It is undisputed that the "environmental interest" that the appellees seek to protect is within the interests to be protected by NEPA, and it is unnecessary to consider the various allegations of economic harm on which the appellees also relied in their pleadings and which the Government contends are outside the intended purposes of NEPA. [ Footnote 14 ] The Government urges us to limit standing to those who have been "significantly" affected by agency action. But even if we could begin to define what such a test would mean, we think it fundamentally misconceived. "Injury in fact," reflects the statutory requirement that a person be "adversely affected" or "aggrieved," and it serves to distinguish a person with a direct stake in the outcome of a litigation -- even though small -- from a person with a mere interest in the problem. We have allowed important interests to be vindicated by plaintiffs with no more at stake in the outcome of an action than a fraction of a vote, see Baker v. Carr, 369 U. S. 186 ; a $5 fine and costs, see McGowan v. Maryland, 366 U. S. 420 ; and a $1.50 poll tax, Harper v. Virginia Bd. of Elections, 383 U. S. 663 . While these cases were not dealing specifically with § 10 of the APA, we see no reason to adopt a more restrictive interpretation of "adversely affected" or "aggrieved." As Professor Davis has put it: "The basic idea that comes out in numerous cases is that an identifiable trifle is enough for standing to fight out a question of principle; the trifle is the basis for standing and the principle supplies the motivation." Davis, Standing: Taxpayers and Others, 35 U.Chi.L.Rev. 601, 613. See also K. Davis, Administrative Law Treatise §§ 22.09-5, 22.09-6 (Supp. 1970). [ Footnote 15 ] The railroads object to the fact that the allegations were not more precise -- that no specific "forest" was named, that there was no assertion of the existence of any lumbering camp or other extractive facility in the area. They claim that they had no way to answer such allegations, which were wholly barren of specifics. But if that were really a problem, the railroads could have moved for a more definite statement, see Fed.Rule Civ.Proc. 12(e), and certainly normal civil discovery devices were available to the railroads. Similarly, the District Court cannot be faulted for failing to take evidence on the issue of standing. This case came before the court on motions to dismiss and for a preliminary injunction. If the railroads thought that it was necessary to take evidence, or if they believed summary judgment was appropriate, they could have moved for such relief. [ Footnote 16 ] EDF suggests that the April 24 order of the Commission was, in fact, a final order finding the surcharge "just and reasonable," not simply a refusal to suspend the surcharge. But the Commission's reference to the "just and reasonable" nature of the surcharge was a preliminary assessment commonly made in suspension orders. See, e.g., the suspension orders quoted in Naph-Sol Refining Co. v. United States, 269 F. Supp. 530 , 531; Oscar Mayer & Co. v. United States, 268 F. Supp. 977 , 978-979. It did not represent a final determination by the Commission that any particular rate was just and reasonable. Indeed, the Commission made it clear in its February 1 order that the surcharge was not considered a prescribed rate within the meaning of Arizona Grocery Co. v. Atchison, T. & S.F. R. Co., 284 U. S. 370 , and was subject to complaint and investigation under the Act. [ Footnote 17 ] An alternative ground for avoiding the Arrow decision, which was suggested but not relied on by the District Court, was that the surcharge here was an "agency-made" rate, not a "carrier-made" rate. Moss v. CAB, 430 F.2d 891, which was cited by the court is, however, plainly inapposite. There, the CAB suspended the rates proposed by the carriers, but suggested in their place "a complete and innovative scheme for setting all passenger rates for the continental United States." Id. at 899. It was clear that, when the carriers filed the rates suggested by the Board, they would not be suspended. "Even a cursory reading of the order makes it clear that the Board told the carriers what rates to file; it set forth a step-by-step formula requiring major changes in ratemaking practices and in rates which it expected the carriers to adopt." Id. at 899-900. Here, by contrast, the level and structure of the rates were proposed entirely by the carriers. While the Commission suggested an expiration date for the surcharge, this was simply to make the surcharge expire when the general selective increases went into effect. This expiration date and the other standard conditions attached to the Commission's refusal to suspend the surcharge did not, in any meaningful sense, transform the carrier-made rate into a Commission-made rate. [ Footnote 18 ] See n 8, supra. [ Footnote 19 ] See Greene County Planning Board v. FPC, 455 F.2d 412, 420; Calvert Cliffs' Coordinating Comm. v. Atomic Energy Comm'n, 146 U.S.App.D.C. 33, 43, 449 F.2d 1109, 1119; City of New York v. United States, 337 F. Supp. 150 , 160; Cohen v. Price Comm'n, 337 F. Supp. 1236 , 1241. [ Footnote 20 ] The argument that NEPA implicitly restored to the courts the injunctive power that 15(7) had divested is similar to a contention rejected in Arrow itself. There, the petitioners claimed that congressional adoption of the National Transportation Policy, 54 Stat. 899, had implicitly altered § 15(7). They claimed that the proposed new railroad rates would drive the barge lines out of existence, contrary to the congressional declaration of concern for the protection of water carriers threatened by rail competition. The Court concluded that "nothing in the National Transportation Policy, enacted many years after . . . § 15(7), indicates that Congress intended to revive a judicial power which . . . was extinguished when the suspension power was vested in the Commission." Arrow Transportation Co. v. Southern R. Co., 372 U. S. 658 , 372 U. S. 673 . In addition, the Court noted that, as is also true with NEPA, the mandate was directed not to the courts, but to the Commission. There is nothing about NEPA that makes it any more amenable for finding an implicit amendment of § 15(7) than the National Transportation Policy was. [ Footnote 21 ] Indeed, Calvert Cliffs' indicated that the requirements of § 102 of NEPA, see n 8, supra, did not have to be complied with if such compliance was precluded by another statutory provision. 146 U.S.App.D.C. at 39, 449 F.2d at 1115. And Committee for Nuclear Responsibility, in another context, endorsed a principle, equally applicable here, that "repeal by implication is disfavored." 149 U.S.App.D.C. 380, 382, 463 F.2d 783, 785. [ Footnote 22 ] In view of our conclusion that there was no power to grant the preliminary injunction, it is unnecessary for us to reach the other questions posed by the parties. For example, the Government and the railroads urge that, because of the pressures of time, an environmental impact statement is not required at the suspension stage of a rate proceeding, and, in any event, a decision by the Commission whether or not to suspend rates is not subject to judicial review. See Port of New York Authority v. United States, 451 F.2d 783; Oscar Mayer & Co. v. United States, 268 F. Supp. 977 ; M. C. Kiser Co. v. Central of Georgia R. Co., 236 F. 573; Freeport Sulphur Co. v. United States, 199 F. Supp. 913 ; Luckenbach S.S. Co. v. United States, 179 F. Supp. 605 ; Carlsen v. United States, 107 F. Supp. 398 . The appellees in turn contend that some compliance with NEPA is possible at the suspension stage, and that such compliance is required if the statute is to be enforced "to the fullest extent possible." See 42 U.S.C. § 4332. And they urge that there is, or should be, an exception to the general principle of nonreviewability of suspension decisions for those cases where the Commission has acted beyond its statutory authority, or in violation of a clear statutory command or a procedural requirement, a standard that the appellees view as broad enough to encompass alleged noncompliance with NEPA. See Naph-Sol Refining Co. v. United States, 269 F. Supp. 530 , 532; Oscar Mayer & Co. v. United States, supra, at 982 (Doyle, J., concurring); Long Island R. Co. v. United States, 193 F. Supp. 795 . We express no view on any of these issues. MR. JUSTICE BLACKMUN, with whom MR. JUSTICE BRENNAN joins, concurring. I join the Court's judgment and its opinion, but because of the presence of the first sentence of 412 U. S. and to avoid any misunderstanding as to my posture, I add a few words. For the reasons stated in my dissenting opinion in Sierra Club v. Morton, 405 U. S. 727 , 405 U. S. 755 (1972), I would hold that the appellees here have standing to maintain this action based on their allegations of harm to the environment resulting from the Commission's order of April 24, 1972. And, in evaluating whether injunctive relief is warranted, I would not require that the appellees, in their individual capacities, prove that they, in fact, were injured. Rather, I would require only that appellees, as responsible and sincere representatives of environmental interests, show that the environment would be injured in fact, and that such injury would be irreparable and substantial. MR. JUSTICE DOUGLAS, dissenting in part. I These cases present important environmental problems. They concern ratemaking for the shipment of Page 412 U. S. 700 litter for recycling. Paper, glass, and metals are the main items in today's garbage. [ Footnote 2/1 ] As indicated by the Bureau of Mines in 412 U.S. 669 app1|>Appendix I to this opinion, America's method of disposing of garbage is either to use it for landfill or to put it first through incinerators and then to bury the residue. Sorting and recycling have several environmental impacts: (1) reduction in the use of incinerators lessens air pollution; (2) establishing or encouraging removal of litter from the landscape; (3) recycling saves both renewable and nonrenewable resources. As respects the last, the tons of paper that are recycled, rather than burned, can be translated into the number of standing trees that need not be cut for pulp the next year; the metals recycled protect our remaining nonrenewable supplies of ore, and so on. Rates fixed so as to encourage vast shipments of litter are, therefore, perhaps the most immediate and dramatic illustration of a policy which will encourage protection Page 412 U. S. 701 of the environment against several erosive conditions. [ Footnote 2/2 ] I would, therefore, affirm the eminently responsible decision of the District Court. 346 F. Supp. 189 . The National Environmental Policy Act of 1969, 83 Stat. 852, 42 U.S.C. § 4321 et seq., declares a congressional policy "which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality." 42 U.S.C.§ 4321. That broad policy is further expounded in § 4331(b) to include, inter alia, the objective that "the Nation may . . . (2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings . . . and (6) enhance the quality of renewable resources and . . . depletable resources. " Page 412 U. S. 702 The Government urges that appellees do not have standing to challenge the administrative determination of railroad freight rate increases. SCRAP alleged in its amended complaint that its members suffered environmental and economic injury as a result of the alleged increase, because the increase diminished the total amount of waste recycling in the United States, and made those products, which were in fact, manufactured from the waste materials after the rate increase, more expensive in the marketplace. In addition, SCRAP alleged that each of its members, in fact, used the "forests, rivers, streams, mountains, and other natural resources . . ." for recreational purposes, and these uses were adversely affected because the Commission's rate increases discourage the reuse of recyclable commodities, such as bottles and cans, and encourage the depletion of natural resources. In Sierra Club v. Morton, 405 U. S. 727 , 405 U. S. 734 , this Court stated that "We do not question that [environmental] harm may amount to an 'injury in fact,' sufficient to lay the basis for standing under . . . the APA [5 U.S.C. § 702]. Aesthetic and environmental wellbeing, like economic wellbeing, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many, rather than the few, does not make them less deserving of legal protection through the judicial process." The members of SCRAP have clearly alleged an "injury in fact," to the environment and to their own personal continued use of it. "There is nothing unusual or novel in granting the consuming public standing to challenge administrative actions." Office of Communication of United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 359 F.2d 994. This Court has indicated that, where "statutes are concerned, the trend is toward enlargement of the class of people who may protest administrative action." Data Processing Service v. Camp, 397 U. S. 150 , 397 U. S. 154 . Page 412 U. S. 703 Littering is a commonplace phenomenon that affects every person, almost everywhere. From reports and writings, we know that littering defaces mountain trails, alpine meadows, and even our highest peaks. Those in the valleys are often almost inundated with litter. Where a river is polluted and a person is dependent on it for drinking water, I suppose there would not be the slightest doubt that he would have standing in court to present his claim. I also suppose there is not the slightest doubt that, where smog settles on a city, any person who must breathe that air or feel the sulphuric acid forming in his eyes would have standing in court to present his claim. I think it is equally obvious that any resident of an area whose paths are strewn with litter, whose parks or picnic grounds are defaced by it has standing to tender his complaint to the court. Sierra Club v. Morton, supra, would seem to cover this case, for littering, abetted by the failure to recycle, would clearly seem to implicate residents to whom "the aesthetic and recreational values of the area" are important. Id. at 405 U. S. 735 . For the reasons stated in my opinion in Sierra Club v. Morton, supra, I agree with the Court that appellees have standing, but like MR. JUSTICE BLACKMUN, I would not require appellees, in their individual capacity, to prove injury in fact. As MR. JUSTICE BLACKMUN states, it should be sufficient if appellees, "as responsible and sincere representatives of environmental interests, show that the environment would be injured in fact. . . ." II The Council on Environmental Quality (CEQ), created in the Executive Office of the President, 42 U.S.C. § 4342, estimated in 1969 that this Nation produced more than 4.3 billion tons of solid refuse, including about 30 million tons of paper, 30 million tons of industrial fly ash, 15 million tons of scrap metal, 4 million tons of Page 412 U. S. 704 plastics, 100 million automobile tires, 30 billion bottles, 60 billion cans, and millions of discarded automobiles and appliances. First Annual Report of CEQ, Aug. 1970, pp.107-113. It reported that, while most of the secondary material could be reused as a replacement for virgin material, only a small fraction was recycled. Ibid. One of the reasons for the absence of recycling was the high cost both of collection of the material and the transportation costs. Ibid. As noted, one of the purposes of the Act was to "enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources." 42 U.S.C. § 4331(b)(6). On October 9, 1970, Chairman Russell Train of CEQ wrote the Interstate Commerce Commission as follows: "The Council on Environmental Quality is deeply concerned with all facets of environmental quality. Solid waste disposal is one important aspect of the total pollution problem, and recycling is a new and desirable alternative to solid waste disposal which the Council strongly supports. The degree to which this technique will be used depends almost entirely on economics. Transportation costs, to the degree they increase secondary or scrap materials costs compared to the raw materials with which they compete, act as a disincentive to recycling. The Council believes that several rail haul costs biases currently exist, and would like to discuss these cases with you. . . . In general, across-the-board percentage increases only widen existing price biases against secondary materials. Also, these increases raise the costs of doing business, which can hinder the salvage and reclamation industry." "In light of the President's concern with environmental quality, the growing problems of solid waste Page 412 U. S. 705 and the importance of recycling to alleviating them, I would like to express the Council's hope that the Interstate Commerce Commission's actions on the key issue of scrap material transportation rates will be consistent with the Nation's environmental quality goals." App. 68. In December, 1971, substantially all the railroads filed with the Commission a request to impose a 2.5% surcharge on virtually all freight. The procedural details which followed are not presently material. Suffice it to say that shippers of recyclable materials submitted verified statements in support of their view that rate increases would intensify the disincentives to shipment and use of recyclable materials. Thus, the Institute for Scrap Iron and Steel submitted a study showing: "(1) Present scrap markets are retarded because of transport rates which encourage the usage of iron ore. (2) Future scrap markets are being affected because new investment that would logically be directed to scrap-intensive steelmaking is diverted because of the existing freight rate structure to ore-intensive steelmaking. (3) Iron ore (a limited domestic natural resource) is being exploited when it can and should be conserved. (4) Some scrap iron that should be recycled is unable to move, thus the environment is despoiled by unnecessary accumulations of solid metallic waste." T. Barnes, Impact of Railroad Freight Rates on the Recycling of Ferrous Scrap (Jan. 14, 1972). The Commission instituted a proceeding concerning the guidelines which environmental impact statements required under the Act should follow. 339 I.C.C. 508. A spokesman for the eastern railroads filed an impact statement which said that "any possible adverse environmental impact in the form of reduced movements of commodities Page 412 U. S. 706 by rail will come only if we fail to provide adequate and efficient service," and that the need of the railroads to that end was for increased revenues. Appellees filed a protest and a request for a suspension of the proposed surcharge, alleging that the present railroad rate structure discourages the movement of "recyclable" goods and that the surcharge would further discourage recycling. The Commission, allowing the surcharge for a limited period, found that it would "have no significant adverse effect in the movement of traffic by railway or on the quality of the human environment" within the meaning of the 1969 Act. See 340 I.C.C. 358; 341 I.C.C. 287. Chairman Train of CEQ protested to the Commission on October 30, 1972: "It is understandable that difficulties will be encountered in quantifying the environmental consequences of an incremental freight rate increase on recyclable materials. In our view, however, these consequences must be assessed in the light of the rate disparity between secondary and primary materials that gives rise to the problem in the first place. This disparity is a matter of an entirely different magnitude, calling for a thorough environmental assessment as a precondition to determining whether subsequent incremental increases require additional environmental impact statements. . . . Clearly, at some point, increases which might be individually 'insignificant' become cumulatively 'significant.' In addition, the claim that freight rates on recycled products must be increased to respond to 'emergency' revenue needs pending completion of the required overall environmental evaluation loses much of its force as months turn into years and the basic investigation remains uncompleted. Finally, even the 'emergency' argument itself, however legitimate, in Page 412 U. S. 707 no way forecloses the consideration of alternatives which would both meet revenue needs and at the same time avoid further potential environmental damage while the basic rate structure issue is being resolved. Alternatives of this sort were, in fact, suggested in the partial dissenting opinions of Commissioners Brown and Deason (who would have denied approval of increases for recyclable commodities), with no indication in the Commission's majority report that such measures would not have been sufficient to meet the revenue needs relied on to justify the rate increases. . . . In summary, the Council feels that the basic environmental issues related to the existing freight rate structure and changes thereto, must be evaluated in a logical, analytical and timely fashion in compliance with the requirements of the National Environmental Policy Act. The Commission's actions to date appear to be inconsistent with the objectives of NEPA, and the analyses undertaken to date by the Commission appear to offer an inadequate basis from which to draw conclusions concerning the impact of freight rates on recycling and environmental quality. Our staff is available to discuss the NEPA procedural issues as well as to assist in structuring the analytical work required to assess adequately the environmental impact of freight rates." 3 App. 87-89. [ Footnote 2/3 ] Page 412 U. S. 708 The three-judge District Court held that the conclusion of the Commission that the rate increase would have "no significant adverse effect" on the environment within the meaning of EPA was "transparent," and "a ruse." 346 F. Supp. at 202 01. This leads to an analysis of § 102 of NEPA. [ Footnote 2/4 ] That section is directed to "all agencies of the Federal Government," which of course includes the Interstate Commerce Commission. It directs the agency to interpret and administer "the policies, regulations, and public laws" which it administers "to the fullest extent possible" in accordance with the policies of EPA. It directs the agency [ Footnote 2/5 ] to include in "major Federal actions significantly affecting the quality of the human environment" a detailed statement "by the responsible official on -- (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship Page 412 U. S. 709 between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, . . . and shall accompany the proposal through the existing agency review processes." 83 Stat. 853. Rates affecting litter, like rates affecting other commodities, obviously are relevant to the ease and expedition with which it will be transported. To get the litter to appropriate recycling plants in the quantities needed to protect our fast depleting forests and our nonrenewable resources [ Footnote 2/6 ] and to relieve our landscape of the litter that plagues us may need special incentive rates. The report, H.R.Conf.Rep. No. 91-765, makes clear that no agency of the Federal Government is exempt, and that each should comply unless existing law applicable to the agency "expressly prohibits or makes full compliance Page 412 U. S. 710 with one of the directives impossible." The report states: "The purpose of the new language is to make it clear that each agency of the Federal Government shall comply with the directives set out in such subparagraphs (A) through (H) unless the existing law applicable to such agency's operations expressly prohibits or makes full compliance with one of the directives impossible. If such is found to be the case, then compliance with the particular directive is not immediately required. However, as to other activities of that agency, compliance is required. Thus, it is the intent of the conferees that the provision 'to the fullest extent possible' shall not be used by any Federal agency as a means of avoiding compliance with the directives set out in section 102. Rather, the language in section 102 is intended to assure that all agencies of the Federal Government shall comply with the directives set out in said section 'to the fullest extent possible' under their statutory authorizations, and that no agency shall utilize an excessively narrow construction of its existing statutory authorizations to avoid compliance." Id. at 9-10. The District Court, acting responsibly in light of the broad and clear-cut policy of the Act concluded that it sets a " high standard'" for federal agencies, that there is no "`escape hatch for foot-dragging agencies,'" that the Act does not make the preparation and use of these impact statements "`discretionary,'" that Congress did not intend that this Act be "`a paper tiger.'" 346 F. Supp. at 199. [ Footnote 2/7 ] Page 412 U. S. 711 Arrow Transportation Co. v. Southern R. Co., 372 U. S. 658 , does not preclude review here. In Arrow, there were rates which the Commission had the power to suspend but had not suspended. The power of suspension was entrusted to the Commission only; and we held that the courts should not intrude when the Commission has not acted. Here, the Commission has acted; it has found that "the increases here proposed are just and reasonable, that the revenues derived therefrom will result in earnings Page 412 U. S. 712 and rates of return . . . not in excess of that required to enable" the carriers "to render adequate and efficient transportation at the lowest cost consistent with the furnishing of such service." Ex parte 281, Order of Feb. 1, 1972 (unreported). The Commission said it was not prescribing rates, though it attached conditions on approval of the rates without suspension. It made clear it would suspend the new rates if the conditions were not added. As stated by the three- judge court: "A suspension decision which effectively blackmails the carriers into submitting agency-authored rates is functionally indistinguishable from an agency order setting those rates." 346 F. Supp. at 197. Moreover, as the three-judge court held and as Judge Friendly observed in City of New York v. United States, 337 F. Supp. 150 , 164, "NEPA is a new and unusual statute imposing substantive duties which overlie those imposed on an agency by the statute or statutes for which it has jurisdictional responsibility." The Court today greatly weakens NEPA in a crucially important segment of the federal environmental field. Movement of litter to recycling plants [ Footnote 2/8 ] is critically important, as Chairman Train makes abundantly clear. The alternative is to leave it underfoot or to cart it off as garbage to incinerators that pollute the air or to landfills that are getting more and more difficult to find. [ Footnote 2/9 ] We know that recycled paper, recycled copper, recycled Page 412 U. S. 713 iron, and recycled glass are practical. The Federal Bureau of Mines in its pilot plant at Edmonston, Maryland, boasts that "urban ore," as it calls this debris, costs about $3 a ton and recycled is worth $11 a ton. We know that we deal here with nonrenewable resources. We are told that recycling paper saves thousands of acres of trees a year. [ Footnote 2/10 ] Under the Act, the appraisal by the Council on Environmental Quality, of which Russell Train is the chairman, is a weighty one, for, under § 204 of the Act, it has the responsibility "to appraise the various programs and activities of the Federal Government" in light of the policy of the Act and "to develop and recommend . . . national policies to foster and promote the improvement of environmental quality." 83 Stat. 855; 42 U.S.C. §§ 4344(3), (4). CEQ is, in other words, the expert ombudsman in the environmental area. Page 412 U. S. 714 The apparent tendency among federal agencies, Congressman Dingell says, [ Footnote 2/11 ] is to decide first what they want to do and then prepare an impact statement as an apologia for what they have done. That puts the cart before the horse. That is what the Commission did here. But that is to adopt "an excessively narrow construction" of its statutory power "to avoid compliance" with the new environmental standards -- all as condemned in the Conference report, supra, at 10. That is to say, environmental considerations are, so far as possible, to shape all agency policies and decisions. These cases are, indeed, Exhibit A of the current practice of federal agencies to undermine the policy announced by Congress in NEPA. Rail rates were long discriminatory in retarding the industrial development of the South. New York v. United States, 331 U. S. 284 . The present rates are arguably discriminatory against the removal of the litter which is about to engulf us. The wisdom of Chairman Train, rather than the technical maneuvers of the Commission, should be our guide. I would affirm the judgment of the District Court. | 412 U.S. 669 app1| APPENDIX I TO OPINION OF DOUGLAS, J., DISSENTING IN PART The Bureau of Mines had at Edmonston, Maryland, for several years an incinerator residue processing plant on the basis of which Lowell, Massachusetts, instituted its Resource Recovery Project. The Edmonston project is now engaged in recycling of raw waste, and the following is the Bureau's description of the nature and scope of that project. Page 412 U. S. 715 FACT SHEET Edmonston (Md.) Solid Waste Recycling Project Bureau of Mines DEPARTMENT OF THE INTERIOR An important part of the solid waste utilization research carried on by the Bureau of Mines is to develop methods and processes for recycling mineral materials present in urban refuse. Engineers from the Bureau's College Park (Md.) Metallurgy Research Center operate a pilot plant at Edmonston, Maryland, where they reclaim ferrous metals, nonferrous metals, glass, plastics, and paper from raw unburned refuse. The following facts are pertinent to the research underway at the Edmonston pilot plant. 100 pounds of typical municipal refuse contains: 36.6 pounds of paper and cardboard; 20.2 pounds of garbage; 8.4 pounds of metal; 8.5 pounds of glass; 17.4 pounds of leaves, grass, hedge clippings and tree prunings; 2.6 pounds of scrap wood; 1.1 pound of plastics; and 5.2 pounds of miscellaneous material including leather, rubber, textiles, bricks, stones, and dirt. Urban refuse generated in the U.S. in 1972 totaled 300 million tons, or the equivalent of more than 8 pounds daily for every man, woman, and child. Only 220 million tons of municipal refuse was regularly collected by public agencies and private firms. The remainder (80 million tons) was abandoned, dumped at the point of origin, or hauled to uncontrolled disposal sites. The volume of municipal refuse accumulating in the U.S. in a single year would cover an area half the size of the State of Connecticut (2,500 sq. mi.) with a layer of refuse 1 foot deep. This refuse contains some 12 million tons of iron and steel, 13 million tons of glass, and over a million tons of aluminum, zinc, lead, tin, and copper. Collecting and disposing of refuse costs cities an average of $23 per ton ($18, for collection and $5, for disposal). New York City, at a cost of $40 per ton, spends almost a million dollars each day to collect and dispose of solid waste. Total U.S. bill runs about $6 billion annually. Most municipal refuse is disposed of by dumping, landfill, or incineration. About 30 million tons of municipal refuse is Page 412 U. S. 716 burned annually in more than 300 municipal incinerators. These incinerators generate 7.5 million tons of residues, which are then buried. The process developed by the Bureau to reclaim the values from incinerator residues has attracted worldwide attention. A commercial size plant of this type will soon be under construction in Lowell, Massachusetts, with seventy-five percent of the $3.2 million required being provided by the Environmental Protection Agency. Successful reclamation of mineral values from incinerator residues at the Bureau's pilot plant prompted research to save also that part of municipal refuse that is now being lost during burning. This would reduce the need for building more municipal incinerators, saving their construction and operating costs, and would bring income from salvaged paper and plastics as well as metals and glass. It would also eliminate air pollution problems connected with incineration. Equipment for mechanical separation of metals, glass, paper, and plastics from municipal refuse before incineration has been assembled at Edmonston. The process involves coarse shredding of the refuse, followed with air classification, magnetic separation, screening, optical sorting, electrostatic separation, and gravity concentration -- all proven methods used in the minerals industries. Other refuse recycling schemes have been proposed and some are already under development. The process developed by the Bureau is unique in the following major respects: (1) it is the only process that embodies a complete system, (2) it is the only process capable of capturing and concentrating putrescibles and glass, (3) it is the only process that produces a tin can product suitable for detinning, (4) it is the only process capable of accepting extremely massive pieces of metal, (5) it is the only process that can successfully separate plastics and paper, and (6) energy requirements for the Bureau's process are by far the least of all proposed processes. A plant processing 1,000 tons of raw refuse per day could be expected to reclaim each day enough ferrous metal to make all the iron and steel parts for more than 55 4-door sedans. About 36 billion bottles are discarded each year in the U.S. as solid waste. Each American discards a glass bottle on the average of about one every two days. The average returnable beer bottle used to make 31 round trips from the brewery, to the consumer, and back to the brewery. The average is now Page 412 U. S. 717 19 trips. In some cities, it is only 4. People are discriminating less between returnable and non-returnable bottles. Glass reclaimed from raw refuse can be used in making new glass, or for such salable products as building bricks, mineral wool for insulation, and road surfacing (when ground and mixed with asphalt). Aluminum present in refuse in the form of cans alone amounts to 10 percent of the total primary production. This metal, together with other aluminum recovered from refuse, would find a ready market at existing secondary smelters for conversion to high grade casting alloys. The other heavy nonferrous metals could be used readily in producing brass ingot or the mixture could be further refined and separated into the constituent metals. The rate at which we generate refuse is growing so fast that, within 20 years, even if we are able to recycle 70 percent of our solid wastes, our needs for landfill space will remain the same. And landfill space is, even now, becoming harder and harder to find. [Refuse-disposal and refuse-recovery charts appear on pp. 718 and 719 respectively.] [Charts omitted.] Page 412 U. S. 720 | 412 U.S. 669 app2| APPENDIX II TO OPINION OF DOUGLAS, J., DISSENTING IN PART Section 102 of the National Environmental Policy Act, 42 U.S.C. § 4332 provides: " § 4332. Cooperation of agencies; reports; availability of information; recommendations; international and national coordination of efforts. " "The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall -- " "(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man's environment;" "(B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by subchapter II of this chapter, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations;" "(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on -- " "(i) the environmental impact of the proposed action, " Page 412 U. S. 721 "(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented," "(iii) alternatives to the proposed action," "(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and" "(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented." "Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes; ," "(D) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources;" "(E) recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international Page 412 U. S. 722 cooperation in anticipating and preventing a decline in the quality of mankind's world environment;" "(F) make available to States, counties, municipalities, institutions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment;" "(G) initiate and utilize ecological information in the planning and development of resource-oriented projects; and" "(H) assist the Council on Environmental Quality established by subchapter II of this chapter." Pub.L. 91-190, Title I, § 102, Jan. 1, 1970, 83 Stat. 853. [ Footnote 2/1 ] In a Bureau of Mines' survey, it was established that metals and glass account for approximately 75 percent of the weight of the residues in municipal incinerator waste. Economics of Recycling Metals and Minerals from Urban Refuse, Bureau of Mines Technical Progress Report No. 33, p. 2 (Apr.1971). From these materials, if recycled, familiar products such as bottles, newspapers, iron ingots, paper pulp, fuel oil, and methane gas can be manufactured. In addition, new products are being developed, such as glassphalt for street paving, insulation, glass wool, and glass bricks, in various colors that meet specifications for "severe weather" facing brick. Id. at 7. This project was launched under the Resource Recovery Act of 1970, 84 Stat. 1227, 42 U.S.C. § 3251 et seq., under which the Secretary of HEW was authorized to provide technical and financial assistance in planning and developing resource recovery and solid waste disposal programs. For a detailed account of a Resource Recovery Mill see Ross, How to Succeed in Recycling, Environmental Quality Magazine, June 1973, p. 51. [ Footnote 2/2 ] The necessity of reasonable transportation rates is even more apparent when it is realized that the volume of residue which is processed at a major recycling plant is between 250 and 1,000 tons per day. (Economics of Recycling Metals and Minerals from Urban Refuse, supra, 412 U.S. 669 fn2/1|>n. 1, at 1.) Massive bulk transportation is therefore essential to these plant operations. The problem is even more critical in urban areas, where there is a high concentration of solid waste being generated and transportation to outlying recycling plants is a major cost factor. In 1968, a national survey found that an average of 8.2 pounds of waste per capita was collected daily in urban areas; this figure has now risen to 9 pounds. If present trends continue, this figure could be as high as 12 pounds in another 10 years. In our urban areas as a whole, the solid waste generated is fast approaching a ton a year for each man, woman, and child. Kramer, Energy Conservation and Waste Recycling, Science and Public Affairs 13, 17 (Apr.1973). [ Footnote 2/3 ] In his report before the Senate, Senator Jackson, one of the three legislators most responsible for NEPA, stated: "To insure that the policies and goals defined in this act are infused into the ongoing programs and actions of the Federal Government, the act also establishes some important 'action-forcing' procedures. Section 102 authorizes and directs all Federal agencies, to the fullest extent possible, to administer their existing laws, regulations, and policies in conformance with the policies set forth in this act. It also directs all agencies to assure consideration of the environmental impact of their actions in decisionmaking. It requires agencies which propose actions to consult with appropriate Federal and State agencies having jurisdiction or expertise in environmental matters and to include any comments made by those agencies which outline the environmental considerations involved with such proposals." "Taken together, the provisions of section 102 directs [ sic ] any Federal agency which takes action that it must take into account environmental management and environmental quality considerations." 115 Cong.Rec. 40416 (1969). [ Footnote 2/4 ] The totality of § 102 is so important to this litigation that I have set it forth in 412 U.S. 669 app2|>Appendix II to this dissent. [ Footnote 2/5 ] Senator Jackson was reported as saying: "We expected Section 102 of the act, which requires environmental impact statements and analysis of alternatives for all major federal actions significantly affecting the quality of the human environment, to force the agencies to move. . . . We did not anticipate that it would be private parties, through the courts, that would force the compliance. This is what has made it work." Cahn, Can Federal Law Help Citizens Save Nature's Fragile Beauty?, Christian Science Monitor 12 (Feb. 28, 1973). [ Footnote 2/6 ] Waldo E. Smith, of the American Geophysical Union, recently stated: "The total supply of most metals is sharply limited; even now we must dig deeper, go farther, and use lower grade ores. No optimism is justified here. The supply can be extended substantially by intelligent recycling, which should be an important by-product of our cleaning up to maintain a clean environment." Resources and Long-Forecasts, Science and Public Affairs 21, 22 (May 1973). [ Footnote 2/7 ] When Congress desires exceptions to be made to the impact statement requirement under the NEPA, express exemption is provided. For example, Pub.Law 92-307, 86 Stat.191, provides that the Atomic Energy Commission can grant a temporary operating license for a nuclear power reactor without the completion of an environmental impact statement if the application for the operating license was filed before September 9, 1971, and the Commission holds a hearing which leads to the findings, among others, that the operation of the facility during the period of the temporary operating license in accordance with its terms and conditions will provide adequate protection of the environment during that period and that the operation of the facility is essential toward insuring the power generating capacity of a utility system. The Commission is empowered to impose such terms and conditions as it deems necessary, and its decision is subject to judicial review. Some federal agencies are taking affirmative action to promote the purposes of § 105. Thus, the Securities and Exchange Commission recently adopted amendments to its registration and reporting forms to require more meaningful disclosure of certain items pertaining to the effect on the issuer's business of compliance with federal, state, and local laws and regulations relating to the protection of the environment. The amendments will require as a part of the description of the issuer's business, appropriate disclosures with respect to the material effects which compliance with environmental laws and regulations may have upon the capital expenditures, earnings, and competitive position of the issuer and its subsidiaries. Other amendments describe the extent to which litigation disclosures should contain specific descriptions of environmental proceedings. Securities and Exchange Comm'n Release (Securities Act Rel. No. 5386, Apr. 20, 1973). See Scientists' Institute v. AEC, 156 U.S.App.D.C. 395, 481 F.2d 1079, holding that an impact statement must be filed for the Atomic Energy Commission's liquid metal fast breeder reactor program. [ Footnote 2/8 ] Senator Jackson recently was reported as saying about these impact statements: "We also should be able to get generic environmental impact statements -- updated every six months or so -- for energy policy, transportation policy, and other major policy decisions." Cahn, supra, n. 5. [ Footnote 2/9 ] Most of the Nation's waste is relocated into dumps, with only approximately 10% to 15% finding its way into sanitary landfills. Kramer, supra, 412 U.S. 669 fn2/2|>n. 2, at 17. [ Footnote 2/10 ] Congressman Dingell, another main sponsor of NEPA, recently was reported as saying: "The success of the environmental impact statements is not so much that they were used as we intended they should, but that citizens have been able to use the process as a [way] to get into courts. . . . Some agencies are complying poorly. They decide what they are going to do, and then write an environmental impact statement to support the decision. That is not what Congress had in mind. I am fearful that we are breeding a race of impact statement writers who put all the right words down but don't really get environmental concerns involved in the decisionmaking process. The impact statement itself is not important. The important thing is that proper judgments are made reflecting environmental considerations in the decisionmaking process. The impact statement should be a discipline for this, and also a process by which the public can be informed and brought into the decisionmaking process." Cahn, supra, 412 U.S. 669 fn2/5|>n. 5. For a recent account of impact statements on transportation problems see Robert Cahn (former member of CEQ), Environmentalists Wary of Transport Trend, Christian Science Monitor 12 (Feb. 28, 1973) [ Footnote 2/11 ] See 412 U.S. 669 fn2/11|>n. 10, supra. MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, dissenting in part. I would reverse the judgment of the District Court and order the complaint dismissed because appellees lack standing to bring this suit. None of our cases, including inferences that may be drawn from dicta in Sierra Club v. Morton, 405 U. S. 727 (1972), where we denied standing to petitioner there, are sufficient to confer standing on plaintiffs in circumstances like these. The allegations here do not satisfy the threshold requirement of injury in fact, for constituting a justiciable case or controversy. The injury alleged is that the failure of the Commission to suspend a 2.5% freight rate increase may discourage the transportation of recyclable materials, thus retarding the use of recycled materials, causing further consumption of our forests and natural resources (some of which might be taken from the Washington metropolitan area), and resulting in more refuse and undisposable materials to further pollute the environment. The majority acknowledges that these allegations reflect an "attenuated line of causation," ante at 412 U. S. 688 , but is willing to suspend its judgment in the dim hope that proof at trial will in some unexplained way flesh Page 412 U. S. 723 them out and establish the necessary nexus between these appellees and the across-the-board rate increase they complain of. To me, the alleged injuries are so remote, speculative, and insubstantial in fact that they fail to confer standing. They become no more concrete, real, or substantial when it is added that materials will cost more at the marketplace and that somehow the freight rate increase will increase air pollution. Allegations such as these are no more substantial and direct, and no more qualify these appellees to litigate, than allegations of a taxpayer that governmental expenditures will increase his taxes and have an impact on his pocketbook, Massachusetts v. Mellon, 262 U. S. 447 , 262 U. S. 486 -489 (1923), or allegations that governmental decisions are offensive to reason or morals. The general "right, possessed by every citizen, to require that the Government be administered according to law and that the public moneys be not wasted" does not confer standing to litigate in federal courts. Fairchild v. Hughes, 258 U. S. 126 , 258 U. S. 129 (1922). New York did not have standing to complain when it asserted merely the possible adverse effects of diversion of water from Lake Michigan upon hypothetical power developments in "the indefinite future." New York v. Illinois, 274 U. S. 488 , 274 U. S. 490 (1927). Assumed potential invasions are insufficient bases for a justiciable case or controversy. Arizona v. California, 283 U. S. 423 , 283 U. S. 462 (1931). As I see the allegations in this case, they are, in reality, little different from the general interest allegations found insufficient and too remote in Sierra Club. If they are sufficient here, we are well on our way to permitting citizens at large to litigate any decisions of the Government which fall in an area of interest to them and with which they disagree. Assuming, however, that a majority of the Court adheres to the conclusion that a constitutional case or controversy exists in these circumstances. and that plaintiffs Page 412 U. S. 724 may sue, I would agree that the District Court erred in entering an injunction which Congress quite clearly had long since divested it of the power to enter. Accordingly, I join Part III of the Court's opinion. I add only that failure to maintain this country's railroads even in their present anemic condition will guarantee that recyclable materials will stay where they are -- far beyond the reach of recycling plants that, as a consequence, may not be built at all. MR. JUSTICE MARSHALL, concurring in part and dissenting in part. I fully agree with and join in Part II of the Court's opinion wherein it sustains the District Court's determination that the appellees have standing to challenge the 2.5% interim surcharge on the ground that the Interstate Commerce Commission's order of April 24 permitting the surcharge to take effect was not issued in compliance with the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq. The Court goes on, however, to hold in 412 U. S. The Court's decision in this respect is, to be sure, a very narrow one; the decision clearly concerns only the scope of remedies available to the District Court in the context of a case of this particular character, [ Footnote 3/1 ] that is, an ICC rate suspension case. Page 412 U. S. 725 The Court specifically refrains from deciding whether or not the Commission's alleged failure to comply with NEPA in the suspension stage is a proper subject for judicial review, and, if so, what would constitute adequate compliance with NEPA at that juncture in the administrative process. See ante at 412 U. S. 698 -699, n. 22. Nonetheless, I am unable to join the third portion of the Court's opinion, for I am convinced that there is no lack of judicial power to issue a preliminary injunction against the interim surcharge in the context of these cases. I therefore must respectfully dissent from Part III of the Court's opinion. At the outset, it is essential for purposes of analysis to put the issue upon which the Court disposes of the cases in proper perspective. Since the Court addresses only the issue of the District Court's power to grant preliminary relief, we must, of course, assume for the sake of argument that the issues which the Court does not now reach -- namely, whether the procedural requirements of NEPA [ Footnote 3/2 ] are applicable at the suspension stage and whether the issue of Commission compliance is a proper one for judicial review [ Footnote 3/3 ] -- are to be decided in appellees' favor. In addition, we must accept for the present appellees' assertions that the interim surcharge, by raising Page 412 U. S. 726 the cost of shipping recyclable materials, will further accentuate the allegedly unjustifiable disparity between the cost of shipping those materials and the cost of shipping primary goods, thereby irrationally encouraging the use of primary goods which will lead to a further degradation of our environment. In other words, in considering the question of judicial power, we must accept the correctness of the District Court's determination that there was a "strong likelihood" that the Commission had erred in its conclusion that the interim surcharge "'will have no significant adverse effect on . . . the quality of the human environment within the meaning of the Environmental Policy Act of 1969,'" 346 F. Supp. at 200, 201, a conclusion that had effectively excused the Commission from compliance with the procedural requirements of NEPA in the context of the surcharge, see 42 U.S.C. § 4332(2)(C). Turning then to the issue of judicial power, it must first be recalled that we deal here with the grant of only a preliminary injunction; the District Court did not permanently enjoin enforcement of the interim surcharge upon determining that the Commission had, in all likelihood, failed to comply with NEPA in the suspension stage. Properly viewed, I think the injunction at issue in this case amounts to nothing more than a legitimate effort by the District Court, following the Commission's refusal to suspend the surcharge, to maintain the status quo pending final judicial determination of the legality of the Commission's action at the suspension stage in light of the requirements of NEPA. And by now the equitable power of the federal courts to grant interim injunctive relief pending determination of an appeal is well established. The nature of that power was explored at length by the Court in Scripps-Howard Radio, Inc. v. FCC, 316 U. S. 4 (1942), where it was held that a court of appeals had power, pending determination of an appeal, Page 412 U. S. 727 to stay the Federal Communications Commission's grant of a construction permit although the Federal Communications Act made no provision for such a stay. Speaking for the Court, Mr. Justice Frankfurter explained: "No court can make time stand still. The circumstances surrounding a controversy may change irrevocably during the pendency of an appeal despite anything a court can do. But, within these limits, it is reasonable that an appellate court should be able to prevent irreparable injury to the parties or to the public resulting from the premature enforcement of a determination which may later be found to have been wrong. It has always been held, therefore, that, as a part of its traditional equipment for the administration of justice, a federal court can stay the enforcement of a judgment pending the outcome of an appeal." Id. at 316 U. S. 9 -10. See also FTC v. Dean Foods Co., 384 U. S. 597 , 384 U. S. 604 (1966); Whitney National Bank in Jefferson Parish v. Bank of New Orleans & Trust Co., 379 U. S. 411 , 379 U. S. 425 (1965). This Court has consistently adhered to the view that it will find federal courts to have been deprived of their traditional power to stay orders under review only in the face of the clearest possible evidence of a congressional intent to do so. See Scripps-Howard Radio, Inc. v. FCC, supra, at 316 U. S. 11 , 316 U. S. 15 . No such clear intent is to be found in the Interstate Commerce Act, at least not with respect to a case such as this, where the Commission has already acted on the relevant issue and the issue lies in an area outside the Commission's traditional expertise. [ Footnote 3/4 ] In Arrow Transportation Co. v. Southern R. Page 412 U. S. 728 Co., 372 U. S. 658 , 372 U. S. 664 (1963), this Court specifically acknowledged that "[i]t cannot be said that the legislative history of the grant of the suspension power to the Commission includes unambiguous evidence of a design to extinguish whatever judicial power may have existed prior to [the establishment of suspension powers in the Commission] to suspend proposed rates." The Arrow Court was asked to extend by injunction the statutory seven-month suspension period, see 49 U.S.C. § 15(7), because the Commission had not reached a decision on the lawfulness of the proposed rates at the end of the suspension period and the rail carriers, following a period of voluntary suspension, were threatening to implement the rate change without awaiting final agency action. Despite the ambiguity of the legislative history, the Court, upon careful examination of the character of and reasons for the suspension scheme, concluded that Congress must have intended to deprive the federal courts of the power to suspend rates pending completion of agency action, and thus that the traditional equitable powers of the federal courts had been overridden to that extent. But, as detailed consideration of the factors that motivated the decision in Arrow reveals, this litigation presents a significantly different problem. The Arrow Court felt that an injunction extending the suspension period pending final agency action would involve a serious, unintended intrusion on the primary jurisdiction of the Commission. This problem of primary jurisdiction had two aspects in Arrow. First, where the issue is the reasonableness of proposed rates, an application for an injunction against implementation of Page 412 U. S. 729 those rates pending final agency action would necessarily require a federal court "to pass before final Commission action upon the question of reasonableness of a rate," 372 U.S. at 372 U. S. 671 , thereby providing, in effect, an advisory judicial opinion to the Commission on an issue which Congress intended that the Commission decide in the first instance. Certainly, the Commission's expertise in matters of rail carrier operations and economics is well recognized, and Arrow clearly indicates that the courts should not interfere with the exercise of that expertise. However, the grant of preliminary relief here involves no such interference with the Commission's initial exercise of its particular expertise. So far as I am aware, the Commission has never been deemed especially expert in matters of environmental policy or impact. [ Footnote 3/5 ] It is, of course, true that the Commission must decide in the first instance whether particular proposed action constitutes "major Federal action significantly affecting the quality of the human environment," thus necessitating agency compliance with the detailed requirements of § 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C). But that decision had already been made in this case prior to the time when judicial intervention by the District Court was sought -- in contrast to the situation in Arrow, where the question of the reasonableness of the rates remained unresolved by the Commission. Even assuming that some element of agency expertise is involved in the decision at issue here, the District Court, in granting preliminary relief against the interim surcharge, passed only upon a question of which the Commission had finally disposed, namely, the environmental impact of not suspending the interim surcharge Page 412 U. S. 730 and of permitting it to take effect at once. Thus, for purposes of the particular issue raised here, the District Court was presented with final agency action, [ Footnote 3/6 ] and was not in danger of interfering with the Commission's expertise when it stayed the Commission's order pending final determination of the appeals. [ Footnote 3/7 ] The other aspect of the problem of primary jurisdiction focused upon in Arrow was the timing of the implementation of new rates. The Court concluded that Congress had intended that the Commission should determine when new rates should take effect. See 372 U.S. at 372 U. S. 668 . Insofar as the economic impact of rate increases was concerned, Congress enacted a scheme which permitted the Commission to take into account the interests of both rail carriers and shippers. Thus, Congress recognized that economic necessity might persuade the Commission to permit otherwise questionable rates to go unsuspended while they were being investigated, and, at most, it allowed the Commission to suspend proposed rates for only seven months, see 49 U.S.C. § 15(7). At the same time, Congress attempted to accommodate the economic interests of shippers, for it gave the Commission power, pending final agency action, to require the rail carriers to maintain detailed records of monies received due to the increase and to compel payment of refunds if a rate increase was ultimately found to be unreasonable. [ Footnote 3/8 ] See ibid. Page 412 U. S. 731 But where does the Interstate Commerce Act make provision for an accounting and "refund" to the people of our Nation for the irreversible ecological damage that results from a rate increase which discriminates unreasonably against recyclable materials and has been allowed to take effect without compliance with the procedural requirements of NEPA? [ Footnote 3/9 ] The Court today says that "[t]o allow judicial suspension for noncompliance with NEPA would disturb the careful balance of interests" struck by Congress in the suspension and refund provisions. Ante at 412 U. S. 697 . Yet the simple fact is that, in the Page 412 U. S. 732 carefully designed suspension and refund scheme, no balance was struck with respect to the environmental interests that have been recognized by Congress in NEPA since the introduction of the suspension provisions into the Interstate Commerce Act. Under these circumstances, we can hardly infer an intent on the part of Congress to deprive the federal courts of their traditional responsibility, in passing upon a request for equitable relief, to work an accommodation in each particular case of the competing interests of the relevant parties [ Footnote 3/10 ] -- that is, of a rail carrier's alleged need for increased income that will otherwise be forever lost each day that the new rate is not charged, and of the extent of irreversible environmental damage that might result if the rates are not suspended. The District Court, in its effort to preserve the status quo pending final review of the Commission's April 24 order, gave full consideration to the effects on all parties of either granting or denying preliminary relief against the interim surcharge. [ Footnote 3/11 ] In then temporarily enjoining the surcharge, I believe that the District Court acted within the scope of its legitimate powers. To summarize, then, I obviously cannot agree with the Court's assertion that "each of the policies that we identified in Arrow as the basis for § 15(7) would be substantially undermined if the courts were found to have suspension powers simply because noncompliance with NEPA was alleged." Ante at 412 U. S. 696 . In Arrow itself, the Court was at pains to point out that its decision Page 412 U. S. 733 did not "reflect in any way upon decisions which have recognized a limited judicial power to preserve the court's jurisdiction or maintain the status quo by injunction pending review of an agency's action through the prescribed statutory channels." 372 U.S. at 372 U. S. 671 n. 22. True, the Court went on to say there that "[s]uch power . . . has never been recognized in derogation of such a clear congressional purpose to oust judicial power as that manifested in the Interstate Commerce Act." Ibid. But the import of that remark must be judged with a full understanding of the factors underlying the Arrow Court's finding of "such a clear congressional purpose." As has been seen, close analysis of those factors identified certainly does not compel extension of the Arrow holding to the request for preliminary injunctive relief in this litigation. [ Footnote 3/12 ] The Court would do well to remember Page 412 U. S. 734 that, "[w]here Congress wished to deprive the courts of [their] historic power [to enjoin orders pending review], it knew how to use apt words . . . ." Scripps-Howard Radio, Inc. v. FCC, 316 U.S. at 316 U. S. 17 . Cf. Hecht Co. v. Bowles, 321 U. S. 321 , 321 U. S. 329 (1944). Nothing in the language of the Interstate Commerce Act or in the particular structure of that Act, or even in our decision in Arrow, compels the conclusion that Congress has done so here. I must therefore dissent from the Court's ultimate disposition of these cases. [ Footnote 3/1 ] Given that the Court holds only that the District Court lacked power to grant preliminary injunctive relief, it presumably remains open to appellees to challenge the Commission's alleged failure to comply with NEPA in the suspension stage of the proceedings concerning the interim surcharge in an action for declaratory relief. Nor does anything in the Court's opinion today deny to the district courts power to enjoin the Commission to comply with NEPA in the context of a particular rate proceeding so long as no injunction is issued barring implementation of the rates themselves, cf. Atchison, T. & S. F. R. Co. v. Wichita Board of Trade, post, p. 412 U. S. 800 . [ Footnote 3/2 ] See in particular § 102(2)(C) of the Act, 42 U.S.C. § 4332(2)(C). [ Footnote 3/3 ] Cf., e.g., Upper Pecos Assn. v. Stans, 452 F.2d 1233 (CA10 1971), vacated and remanded for consideration of mootness sub nom. Upper Pecos Assn. v. Peterson, 409 U.S. 1021 (1972); Calvert Cliffs' Coordinating Comm. v. Atomic Energy Comm'n, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971); City of New York v. United States, 337 F. Supp. 150 , 158-160 (EDNY 1972). [ Footnote 3/4 ] Thus, I cannot accept the Court's assertion that the question here is "whether, in a specific context NEPA sub silentio revived judicial power that had been explicitly eliminated by Congress." Ante at 412 U. S. 696 . That is a question which I do not believe need ever be reached here, for -- as shall be seen -- Congress has not, to begin with, deprived the federal courts of their traditional equitable powers in the context of these cases. [ Footnote 3/5 ] Administrative expertise in such matters is surely lodged with the Environmental Protection Agency and the Council on Environmental Quality. [ Footnote 3/6 ] Cf. L. Jaffe, Judicial Control of Administrative Action 688 (1965). [ Footnote 3/7 ] Contrast Atchison, T. & S. F. R. Co. v. Wichita Board of Trade, post, p. 412 U. S. 800 . [ Footnote 3/8 ] Moreover, even if the Commission fails to require recordkeeping and the payment of refunds sua sponte, Congress also provided a mechanism by which shippers may initiate an action before the Commission to seek reparations from a carrier on the ground that particular rates are unreasonable. See 49 U.S.C. § 13(1). Arrow Transportation Co. v. Southern R. Co., 372 U. S. 658 (1963), to be sure, did not involve an economic dispute between shippers and rail carriers, but was, instead, an action brought by water carriers which contended that certain challenged decreases in the rates of competing rail carriers were designed to destroy them, rather than to reach legitimate economic objectives. Obviously, the refund and reparation provisions of the Interstate Commerce Act were of no more value to the water carriers in Arrow than they are to the nonshipper appellees in this case. But, as the Court pointed out in Arrow, "[c]onflicts over rates between competing carriers were familiar to the Commission long before [the enactment of the suspension provisions]. . . . Indeed, in another provision [namely, 49 U.S.C. § 4(2)] of the very same statute [that established the suspension powers], Congress . . . dealt explicitly with the reduction of rates by railroads competing with water carriers. . . . In addition, § 8 of the Act, 49 U.S.C. § 8, creates a private right of action for damages -- based upon conduct violative of the Act -- which might be available. . . ." 372 U.S. at 372 U. S. 669 . Thus, Congress had taken into account, and had provided for, disputes between competing carriers, as well as between shippers and carriers, in enacting the suspension provisions. The same can hardly be said for conflicts between the environmental policies of NEPA and the Commission's suspension power. [ Footnote 3/9 ] Indeed, given the substantial element of public interest at stake in a case such as this, it is appropriate to recall Mr. Justice Stone's oft-quoted admonition: "Courts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved." Virginian R. Co. v. Systems Federation No. 40, 300 U. S. 515 , 300 U. S. 552 (1937). [ Footnote 3/10 ] Cf. Hecht Co. v. Bowles, 321 U. S. 321 , 321 U. S. 329 -330 (1944). [ Footnote 3/11 ] Thus, the District Court, fully recognizing the financial plight of the rail carriers, carefully limited its preliminary injunction to the application of the interim surcharge to recyclable materials, "allowing [the rail carriers] to collect the surcharge on all nonrecyclable good." 346 F. Supp. at 202 . [ Footnote 3/12 ] The Arrow Court also pointed out that experience with judicial injunctions against rates prior to the establishment of the Commission's suspension powers in § 15(7) had "resulted in disparity of treatment as between different shippers, carriers, and sections of the country, causing, in turn, 'discrimination and hardship to the general public.'" 372 U.S. at 372 U. S. 664 . These results were due both to the conflicting views of lower federal courts as to their power to enjoin rates pending agency determination of their lawfulness and conflicting judgments of different courts as to the reasonableness of the same rates. See id. at 372 U. S. 663 -664. But the danger of conflicting judgments concerning the same rates and uneven-handed treatment of shippers and carriers, merely because of the fortuity of the particular judicial district in which they are located, is not present where, as here, the allegation is that the Commission has failed to follow the requirements of a statute -- NEPA -- relevant to the exercise of its regulatory jurisdiction, and the Commission has, as a consequence, been joined in the suit as a defendant. So long as the Commission has been made a party, it is possible to ensure uniformity of treatment by enjoining the Commission to exercise its suspension powers where a failure to comply with NEPA is believed to exist. This is what the District Court did here when it enjoined the Commission "from permitting . . . the 2.5 per cent surcharge" to be collected by the rail carriers "pending further order of this court." See Jurisdictional Statement 30a. It may be that the danger of conflicting results where the Commission has not been made a party would warrant a court staying its hand, but that is not a problem here.

Here is a summary of the United States v. SCRAP case: In 1973, the United States Supreme Court heard United States v. Students Challenging Regulatory Agency Procedures (SCRAP). The case concerned a group of law students (SCRAP) who challenged the Interstate Commerce Commission's (ICC) decision to allow railroads to increase freight rates, arguing that it would cause economic and environmental harm. SCRAP argued that the ICC's decision would lead to higher prices for finished products and negatively impact the environment by discouraging the use of recyclable materials. The District Court agreed and issued a preliminary injunction, limiting the surcharge to non-recyclable goods. The Supreme Court upheld the District Court's decision, recognizing the public interest in environmental protection and the potential for conflicting judgments regarding freight rates. The Court emphasized the importance of ensuring uniformity of treatment by enjoining the ICC to exercise its suspension powers when necessary to comply with the National Environmental Policy Act (NEPA). This case highlights the intersection of environmental policy and regulatory agency procedures, with the Court prioritizing the public interest and potential environmental harm in its decision-making.

Role of Courts

Goldwater v. Carter

https://supreme.justia.com/cases/federal/us/444/996/

U.S. Supreme Court Goldwater v. Carter, 444 U.S. 996 (1979) Goldwater v. Carter No. 79-856 Decided December 13, 1979 444 U.S. 996 ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ORDER The petition for a writ of certiorari is granted. The judgment of the Court of Appeals is vacated and the case is remanded to the District Court with directions to dismiss the complaint. MR. JUSTICE POWELL, concurring. Although I agree with the result reached by the Court, I would dismiss the complaint as not ripe for judicial review. I This Court has recognized that an issue should not be decided if it is not ripe for judicial review. Buckley v. Valeo, 424 U. S. 1 , 424 U. S. 113 -114 (1976) (per curiam). Prudential considerations persuade me that a dispute between Congress and the President is not ready for judicial review unless and until each branch has taken action asserting its constitutional authority. Differences between the President and the Congress are commonplace under our system. The differences should, and almost invariably do, turn on political, rather than legal, considerations. The Judicial Branch should not decide issues affecting the allocation of power between the President and Congress until the political branches reach a constitutional impasse. Otherwise, we would encourage small groups, or even individual Members, of Congress to seek judicial resolution of issues before the normal political process has the opportunity to resolve the conflict. MR. JUSTICE MARSHALL concurs in the result. MR. JUSTICE POWELL concurs in the judgment, Page 444 U. S. 997 and has filed a statement. MR. JUSTICE REHNQUIST concurs in the judgment and has filed a statement in which MR. CHIEF JUSTICE BURGER, MR. JUSTICE STEWART, and MR. JUSTICE STEVENS join. MR. JUSTICE WHITE and MR. JUSTICE BLACKMUN join in the grant of the petition for a writ of certiorari, but would set the case for argument and give it plenary consideration. MR. JUSTICE BLACKMUN has filed a statement in which MR. JUSTICE WHITE joins. MR. JUSTICE BRENNAN would grant the petition for certiorari and affirm the judgment of the Court of Appeals, and has filed a statement. MR. JUSTICE POWELL, concurring. In this case, a few Members of Congress claim that the President's action in terminating the treaty with Taiwan has deprived them of their constitutional role with respect to Page 444 U. S. 998 a change in the supreme law of the land. Congress has taken no official action. In the present posture of this case, we do not know whether there ever will be an actual confrontation between the Legislative and Executive Branches. Although the Senate has considered a resolution declaring that Senate approval is necessary for the termination of any mutual defense treaty, see 125 Cong.Rec. S7015, S7038-S7039 (June 6, 1979), no final vote has been taken on the resolution. See id. at S16683-S16692 (Nov. 15, 1979). Moreover, it is unclear whether the resolution would have retroactive effect. See id. at S7054-S7064 (June 6, 1979); id. at S7862 (June 18, 1979). It cannot be said that either the Senate or the House has rejected the President's claim. If the Congress chooses not to confront the President, it is not our task to do so. I therefore concur in the dismissal of this case. II MR. JUSTICE REHNQUIST suggests, however, that the issue presented by this case is a nonjusticiable political question which can never be considered by this Court. I cannot agree. In my view, reliance upon the political question doctrine is inconsistent with our precedents. As set forth in the seminal case of Baker v. Carr, 369 U. S. 186 , 369 U. S. 217 (1962), the doctrine incorporates three inquiries: (i) does the issue involve resolution of questions committed by the text of the Constitution to a coordinate branch of Government? (ii) would resolution of the question demand that a court move beyond areas of judicial expertise? (iii) do prudential considerations counsel against judicial intervention? In my opinion the answer to each of these inquiries would require us to decide this case if it were ready for review. First, the existence of "a textually demonstrable constitutional commitment of the issue to a coordinate political department," ibid., turns on an examination of the constitutional provisions governing the exercise of the power in question. Page 444 U. S. 999 Powell v. McCormack, 395 U. S. 486 , 395 U. S. 519 (1969). No constitutional provision explicitly confers upon the President the power to terminate treaties. Further, Art. II, § 2, of the Constitution authorizes the President to make treaties with the advice and consent of the Senate. Article VI provides that treaties shall be a part of the supreme law of the land. These provisions add support to the view that the text of the Constitution does not unquestionably commit the power to terminate treaties to the President alone. Cf. Gilligan v. Morgan, 413 U. S. 1 , 413 U. S. 6 (1973); Luther v. Borden , 7 How. 1, 48 U. S. 42 (1849). Second, there is no "lack of judicially discoverable and manageable standards for resolving" this case; nor is a decision impossible "without an initial policy determination of a kind clearly for nonjudicial discretion." Baker v. Carr, supra, at 369 U. S. 217 . We are asked to decide whether the President may terminate a treaty under the Constitution without congressional approval. Resolution of the question may not be easy, but it only requires us to apply normal principles of interpretation to the constitutional provisions at issue. See Powell v. McCormack, supra, at 395 U. S. 548 -549. The present case involves neither review of the President's activities as Commander in Chief nor impermissible interference in the field of foreign affairs. Such a case would arise if we were asked to decide, for example, whether a treaty required the President to order troops into a foreign country. But "it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance." Baker v. Carr, supra, at 369 U. S. 211 . This case "touches" foreign relations, but the question presented to us concerns only the constitutional division of power between Congress and the President. A simple hypothetical demonstrates the confusion that I find inherent in MR. JUSTICE REHNQUIST's opinion concurring in the judgment. Assume that the President signed a mutual defense treaty with a foreign country and announced that it Page 444 U. S. 1000 would go into effect despite its rejection by the Senate. Under MR. JUSTICE REHNQUIST's analysis, that situation would present a political question even though Art. II, § 2, clearly would resolve the dispute. Although the answer to the hypothetical case seems self-evident because it demands textual, rather than interstitial, analysis, the nature of the legal issue presented is no different from the issue presented in the case before us. In both cases, the Court would interpret the Constitution to decide whether congressional approval is necessary to give a Presidential decision on the validity of a treaty the force of law. Such an inquiry demands no special competence or information beyond the reach of the Judiciary. Cf. Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U. S. 103 , 333 U. S. 111 (1948). [ Footnote 1 ] Finally, the political question doctrine rests in part on prudential concerns calling for mutual respect among the three branches of Government. Thus, the Judicial Branch should avoid "the potentiality of embarrassment [that would result] from multifarious pronouncements by various departments on one question." Similarly, the doctrine restrains judicial action where there is an "unusual need for unquestioning adherence to a political decision already made." Baker v. Carr, supra, at 369 U. S. 217 . If this case were ripe for judicial review, see Part I supra, none of these prudential considerations would be present. Page 444 U. S. 1001 Interpretation of the Constitution does not imply lack of respect for a coordinate branch. Powell v. McCormack, supra, at 395 U. S. 548 . If the President and the Congress had reached irreconcilable positions, final disposition of the question presented by this case would eliminate, rather than create, multiple constitutional interpretations. The specter of the Federal Government brought to a halt because of the mutual intransigence of the President and the Congress would require this Court to provide a resolution pursuant to our duty " to say what the law is.'" United States v. Nixon, 418 U. S. 683 , 418 U. S. 703 (1974), quoting Marbury v. Madison , 1 Cranch 137, 5 U. S. 177 (1803). III In my view, the suggestion that this case presents a political question is incompatible with this Court's willingness on previous occasions to decide whether one branch of our Government has impinged upon the power of another. See Buckley v. Valeo, 424 U.S. at 424 U. S. 138 ; United States v. Nixon, supra, at 418 U. S. 707 ; The Pocket Veto Case, 279 U. S. 655 , 279 U. S. 676 -678 (1929); Myers v. United States, 272 U. S. 52 (1926). [ Footnote 2 ] Under the Page 444 U. S. 1002 criteria enunciated in Baker v. Carr, we have the responsibility to decide whether both the Executive and Legislative Branches have constitutional roles to play in termination of a treaty. If the Congress, by appropriate formal action, had challenged the President's authority to terminate the treaty with Taiwan, the resulting uncertainty could have serious consequences for our country. In that situation, it would be the duty of this Court to resolve the issue. [ Footnote 1 ] The Court has recognized that, in the area of foreign policy, Congress may leave the President with wide discretion that otherwise might run afoul of the nondelegation doctrine. United States v. Curtiss-Wright Export Corp., 299 U. S. 304 (1936). As stated in that case, "the President alone has the power to speak or listen as a representative of the Nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates." Id. at 299 U. S. 319 (emphasis in original). Resolution of this case would interfere with neither the President's ability to negotiate treaties nor his duty to execute their provisions. We are merely being asked to decide whether a treaty, which cannot be ratified without Senate approval, continues in effect until the Senate or perhaps the Congress take further action. [ Footnote 2 ] Coleman v. Miller, 307 U. S. 433 (1939), is not relevant here. In that case, the Court was asked to review the legitimacy of a State's ratification of a constitutional amendment. Four Members of the Court stated that Congress has exclusive power over the ratification process. Id. at 307 U. S. 456 -460 (Black, J., concurring, joined by Roberts, Frankfurter, and Douglas, JJ.). Three Members of the Court concluded more narrowly that the Court could not pass upon the efficacy of state ratification. They also found no standards by which the Court could fix a reasonable time for the ratification of a proposed amendment. Id. at 307 U. S. 452 -454. The proposed constitutional amendment at issue in Coleman would have overruled decisions of this Court. Compare id. at 307 U. S. 435 , n. 1, with Child Labor Tax Case, 259 U. S. 20 (1922); Hammer v. Dagenhart, 247 U. S. 251 (1918). Thus, judicial review of the legitimacy of a State's ratification would have compelled this Court to oversee the very constitutional process used to reverse Supreme Court decisions. In such circumstances, it may be entirely appropriate for the Judicial Branch of Government to step aside. See Scharpf, Judicial Review and The Political Question: A Functional Analysis, 75 Yale L.J. 517, 589 (1966). The present case involves no similar principle of judicial nonintervention. MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE STEVENS join, concurring in the judgment. I am of the view that the basic question presented by the petitioners in this case is "political," and therefore nonjusticiable because it involves the authority of the President in the conduct of our country's foreign relations and the extent to which the Senate or the Congress is authorized to negate the action of the President. In Coleman v. Miller, 307 U. S. 433 (1939), a case in which members of the Kansas Legislature brought an action attacking a vote of the State Senate in favor of the ratification of the Child Labor Amendment, Mr. Chief Justice Hughes wrote in what is referred to as the "Opinion of the Court": "We think that . . . the question of the efficacy of ratifications by state legislatures, in the light of previous rejection or attempted withdrawal, should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the Amendment." "The precise question as now raised is whether, when the legislature of the State, as we have found, has actually ratified the proposed amendment, the Court should Page 444 U. S. 1003 restrain the state officers from certifying the ratification to the Secretary of State, because of an earlier rejection, and thus prevent the question from coming before the political departments. We find no basis in either Constitution or statute for such judicial action. Article V, speaking solely of ratification, contains no provision as to rejection. . . ." Id. at 307 U. S. 450 . Thus, Mr. Chief Justice Hughes' opinion concluded that "Congress, in controlling the promulgation of the adoption of a constitutional amendment, has the final determination of the question whether, by lapse of time, its proposal of the amendment had lost its vitality prior to the required ratifications." Id. at 307 U. S. 456 . I believe it follows a fortiori from Coleman that the controversy in the instant case is a nonjusticiable political dispute that should be left for resolution by the Executive and Legislative Branches of the Government. Here, while the Constitution is express as to the manner in which the Senate shall participate in the ratification of a treaty, it is silent as to that body's participation in the abrogation of a treaty. In this respect, the case is directly analogous to Coleman, supra. As stated in Dyer v. Blair, 390 F. Supp. 1291 , 1302 (N.D.Ill.1975) (three-judge court): "A question that might be answered in different ways for different amendments must surely be controlled by political standards, rather than standards easily characterized as judicially manageable." In light of the absence of any constitutional provision governing the termination of a treaty, and the fact that different termination procedures may be appropriate for different treaties ( see, e.g., 444 U.S. 996 fn2/1|>n. 1, infra ), the instant case, in my view, also "must surely be controlled by political standards." I think that the justifications for concluding that the question here is political in nature are even more compelling than in Coleman, because it involves foreign relations -- specifically, Page 444 U. S. 1004 a treaty commitment to use military force in the defense of a foreign government if attacked. In United States v. Curtiss-Wright Corp., 299 U. S. 304 (1936), this Court said: "Whether, if the Joint Resolution had related solely to internal affairs, it would be open to the challenge that it constituted an unlawful delegation of legislative power to the Executive we find it unnecessary to determine. The whole aim of the resolution is to affect a situation entirely external to the United States, and falling within the category of foreign affairs. . . ." Id. at 299 U. S. 315 . The present case differs in several important respects from Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952), cited by petitioners as authority both for reaching the merits of this dispute and for reversing the Court of Appeals. In Youngstown, private litigants brought a suit contesting the President's authority under his war powers to seize the Nation's steel industry, an action of profound and demonstrable domestic impact. Here, by contrast, we are asked to settle a dispute between coequal branches of our Government, each of which has resources available to protect and assert its interests, resources not available to private litigants outside the judicial forum. [ Footnote 2/1 ] Moreover, as in Curtiss-Wright, the Page 444 U. S. 1005 effect of this action, as far as we can tell, is "entirely external to the United States, and [falls] within the category of foreign affairs." Finally, as already noted, the situation presented here is closely akin to that presented in Coleman, where the Constitution spoke only to the procedure for ratification of an amendment, not to its rejection. Having decided that the question presented in this action is nonjusticiable, I believe that the appropriate disposition is for this Court to vacate the decision of the Court of Appeals and remand with instructions for the District Court to dismiss the complaint. This procedure derives support from our practice in disposing of moot actions in federal courts. [ Footnote 2/2 ] For more than 30 years, we have instructed lower courts to vacate any decision on the merits of an action that has become moot prior to a resolution of the case in this Court. United States v. Munsingwear, Inc., 340 U. S. 36 (1950). The Court has required such decisions to be vacated in order to "prevent a judgment, unreviewable because of mootness, from spawning any legal consequences." Id. at 340 U. S. 41 . It is even more imperative that this Court invoke this procedure to ensure that resolution of a "political question," which should not have been decided by a lower court, does not "spawn any legal consequences." An Art. III court's resolution of a question that is "political" in character can create far more disruption Page 444 U. S. 1006 among the three coequal branches of Government than the resolution of a question presented in a moot controversy. Since the political nature of the questions presented should have precluded the lower courts from considering or deciding the merits of the controversy, the prior proceedings in the federal courts must be vacated, and the complaint dismissed. [ Footnote 2/1 ] As observed by Chief Judge Wright in his concurring opinion below: "Congress has initiated the termination of treaties by directing or requiring the President to give notice of termination, without any prior presidential request. Congress has annulled treaties without any presidential notice. It has conferred on the President the power to terminate a particular treaty, and it has enacted statutes practically nullifying the domestic effects of a treaty and thus caused the President to carry out termination. . . ." "Moreover, Congress has a variety of powerful tools for influencing foreign policy decisions that bear on treaty matters. Under Article I, Section 8 of the Constitution, it can regulate commerce with foreign nations, raise and support armies, and declare war. It has power over the appointment of ambassadors and the funding of embassies and consulates. Congress thus retains a strong influence over the President's conduct in treaty matters." "As our political history demonstrates, treaty creation and termination are complex phenomena rooted in the dynamic relationship between the two political branches of our government. We thus should decline the invitation to set in concrete a particular constitutionally acceptable arrangement by which the President and Congress are to share treaty termination." App. to Pet. for Cert. 44A-45A (footnotes omitted). [ Footnote 2/2 ] This Court, of course, may not prohibit state courts from deciding political questions, any more than it may prohibit them from deciding questions that are moot, Doremus v. Board of Education, 342 U. S. 429 , 342 U. S. 434 (1952), so long as they do not trench upon exclusively federal questions of foreign policy. Zschernig v. Miller, 389 U. S. 429 , 389 U. S. 441 (1968). MR. JUSTICE BLACKMUN, with whom MR. JUSTICE WHITE joins, dissenting in part. In my view, the time factor and its importance are illusory; if the President does not have the power to terminate the treaty (a substantial issue that we should address only after briefing and oral argument), the notice of intention to terminate surely has no legal effect. It is also indefensible, without further study, to pass on the issue of justiciability or on the issues of standing or ripeness. While I therefore join in the grant of the petition for certiorari, I would set the case for oral argument and give it the plenary consideration it so obviously deserves. MR. JUSTICE BRENNAN, dissenting. I respectfully dissent from the order directing the District Court to dismiss this case, and would affirm the judgment of the Court of Appeals insofar as it rests upon the President's well established authority to recognize, and withdraw recognition from, foreign governments. App. to Pet. for Cert. 27A-29A. In stating that this case presents a nonjusticiable "political question," MR. JUSTICE REHNQUIST, in my view, profoundly misapprehends the political question principle as it applies to matters of foreign relations. Properly understood, the political question doctrine restrains courts from reviewing an exercise of foreign policy judgment by the coordinate political branch to which authority to make that judgment has been "constitutional[ly] commit[ted]." Baker v. Carr , 369 U.S. Page 444 U. S. 1007 186, 369 U. S. 211 -213 (1962). But the doctrine does not pertain when a court is faced with the antecedent question whether a particular branch has been constitutionally designated as the repository of political decisionmaking power. Cf. Powell v. McCormack, 395 U. S. 486 , 395 U. S. 519 -521 (1969). The issue of decisionmaking authority must be resolved as a matter of constitutional law, not political discretion; accordingly, it falls within the competence of the courts. The constitutional question raised here is prudently answered in narrow terms. Abrogation of the defense treaty with Taiwan was a necessary incident to Executive recognition of the Peking Government, because the defense treaty was predicated upon the now-abandoned view that the Taiwan Government was the only legitimate political authority in China. Our cases firmly establish that the Constitution commits to the President alone the power to recognize, and withdraw recognition from, foreign regimes. See Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398 , 376 U. S. 410 (1964); Baker v. Carr, supra, at 369 U. S. 212 ; United States v. Pink, 315 U. S. 203 , 315 U. S. 228 -230 (1942). That mandate being clear, our judicial inquiry into the treaty rupture can go no further. See Baker v. Carr, supra, at 369 U. S. 212 ; United States v. Pink, supra, at 315 U. S. 229 .

The US Supreme Court case Goldwater v. Carter (1979) concerned a dispute between Congress and the President over the termination of a defense treaty with Taiwan. The Court ruled that the case was not ripe for judicial review and directed the District Court to dismiss the complaint. The key issue was whether the President had the power to unilaterally terminate the treaty without the approval of Congress. The Court's decision rested on the principle of avoiding judicial intervention in political questions unless there is a clear constitutional impasse between the political branches.

Role of Courts

Nixon v. U.S.

https://supreme.justia.com/cases/federal/us/506/224/

OCTOBER TERM, 1992 Syllabus NIXON v. UNITED STATES ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 91-740. Argued October 14, 1992-Decided January 13, 1993 After petitioner Nixon, the Chief Judge of a Federal District Court, was convicted of federal crimes and sentenced to prison, the House of Representatives adopted articles of impeachment against him and presented them to the Senate. Following proceedings pursuant to Senate Rule XI-which allows a committee of Senators to hear evidence against an impeached individual and to report that evidence to the full Senate the Senate voted to convict Nixon, and the presiding officer entered judgment removing him from his judgeship. He then commenced the present suit for a declaratory judgment and reinstatement of his judicial salary and privileges, arguing that, because Senate Rule XI prohibits the whole Senate from taking part in the evidentiary hearings, it violates the first sentence of the Constitution's Impeachment Trial Clause, Art. I, § 3, cl. 6, which provides that the "Senate shall have the sole Power to try all Impeachments." The District Court held that his claim was nonjusticiable, i. e., involved a political question that could not be resolved by the courts. The Court of Appeals affirmed. Held: Nixon's claim that Senate Rule XI violates the Impeachment Trial Clause is nonjusticiable. Pp. 228-238. (a) A controversy is nonjusticiable where there is "a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it .... " Baker v. Carr, 369 U. S. 186 , 217. These two concepts are not completely separate; the lack of judicially manageable standards may strengthen the conclusion that there is a textually demonstrable commitment to a coordinate branch. Pp. 228-229. (b) The language and structure of Art. I, § 3, cl. 6, demonstrate a textual commitment of impeachment to the Senate. Nixon's argument that the use of the word "try" in the Clause's first sentence impliedly requires a judicial-style trial by the full Senate that is subject to judicial review is rejected. The conclusion that "try" lacks sufficient precision to afford any judicially manageable standard of review is compelled by older and modern dictionary definitions, and is fortified by the existence of the three very specific requirements that the Clause's second and third sentences do impose-that the Senate's Members must be under oath or affirmation, that a two-thirds vote is required to convict, and 225 that the Chief Justice presides when the President is tried-the precise nature of which suggests that the Framers did not intend to impose additional limitations on the form of the Senate proceedings. The Clause's first sentence must instead be read as a grant of authority to the Senate to determine whether an individual should be acquitted or convicted, and the commonsense and dictionary meanings of the word "sole" indicate that this authority is reposed in the Senate alone. Nixon's attempts to negate the significance of "sole" are unavailing, while his alternative reading of the word as requiring impeachment only by the full Senate is unnatural and would impose on the Senate additional procedural requirements that would be inconsistent with the three express limitations that the Clause sets out. A review of the Constitutional Convention's history and the contemporary commentary supports a reading of the constitutional language as deliberately placing the impeachment power in the Legislature, with no judicial involvement, even for the limited purpose of judicial review. Pp. 229-236. (c) Justiciability is also refuted by (1) the lack of finality inherent in exposing the country's political life-particularly if the President were impeached-to months, or perhaps years, of chaos during judicial review of Senate impeachment proceedings, or during any retrial that a differently constituted Senate might conduct if its first judgment of conviction were invalidated, and by (2) the difficulty of fashioning judicial relief other than simply setting aside the Senate's judgment of conviction. See Baker, supra, at 210. P. 236. (d) A holding of nonjusticiability is consistent with this Court's opinion in Powell v. McCormack, 395 U. S. 486 . Unlike the situation in that case, there is no separate constitutional provision which could be defeated by allowing the Senate final authority to determine the meaning of the word "try" in Art. I, § 3, cl. 6. While courts possess power to review legislative action that transgresses identifiable textual limits, the word "try" does not provide such a limit on the authority committed to the Senate. Pp. 236-238. 290 U. S. App. D. C. 420, 938 F.2d 239 , affirmed. REHNQUIST, C. J., delivered the opinion of the Court, in which STEVENS, O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. STEVENS, J., filed a concurring opinion, post, p. 238. WHITE, J., filed an opinion concurring in the judgment, in which BLACKMUN, J., joined, post, p. 239. SOUTER, J., filed an opinion concurring in the judgment, post, p. 252. David Overlock Stewart argued the cause for petitioner. With him on the briefs were Peter M. Brody, Thomas B. Smith, Boyce Holleman, and Michael B. Holleman. 226 Solicitor General Starr argued the cause for respondents. With him on the brief were Assistant Attorney General Gerson, Deputy Solicitor General Roberts, Jeffrey P. Minear, Douglas Letter, Michael Davidson, Ken U. Benjamin, Jr., Morgan J. Frankel, and Claire M. Sylvia.* CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. Petitioner Walter L. Nixon, Jr., asks this Court to decide whether Senate Rule XI, which allows a committee of Senators to hear evidence against an individual who has been impeached and to report that evidence to the full Senate, violates the Impeachment Trial Clause, Art. I, § 3, cl. 6. That Clause provides that the "Senate shall have the sole Power to try all Impeachments." But before we reach the merits of such a claim, we must decide whether it is "justiciable," that is, whether it is a claim that may be resolved by the courts. We conclude that it is not. Nixon, a former Chief Judge of the United States District Court for the Southern District of Mississippi, was convicted by a jury of two counts of making false statements before a federal grand jury and sentenced to prison. See United States v. Nixon, 816 F.2d 1022 (CA5 1987). The grand jury investigation stemmed from reports that Nixon had accepted a gratuity from a Mississippi businessman in exchange for asking a local district attorney to halt the prosecution of the businessman's son. Because Nixon refused to resign from his office as a United States District Judge, he continued to collect his judicial salary while serving out his prison sentence. See H. R. Rep. No. 101-36, p. 13 (1989). On May 10, 1989, the House of Representatives adopted three articles of impeachment for high crimes and misde- * Patti A. Goldman and Alan B. Morrison filed a brief for Public Citizen as amicus curiae urging reversal. Joseph P. Galda, Daniel J. Popeo, and Paul D. Kamenar filed a brief for the Washington Legal Foundation et al. as amici curiae urging affirmance. 227 meanors. The first two articles charged Nixon with giving false testimony before the grand jury and the third article charged him with bringing disrepute on the Federal Judiciary. See 135 Congo Rec. H1811. After the House presented the articles to the Senate, the Senate voted to invoke its own Impeachment Rule XI, under which the presiding officer appoints a committee of Senators to "receive evidence and take testimony." Senate Impeachment Rule XI, reprinted in Senate Manual, S. Doc. No. 101-1, p. 186 (1989).1 The Senate committee held four days of hearings, during which 10 witnesses, including Nixon, testified. S. Rep. No. 101-164, p. 4 (1989). Pursuant to Rule XI, the committee presented the full Senate with a complete transcript of the proceeding and a Report stating the uncontested facts and summarizing the evidence on the contested facts. See id., at 3-4. Nixon and the House impeachment managers submitted extensive final briefs to the full Senate 1 Specifically, Rule XI provides: "[I]n the trial of any impeachment the Presiding Officer of the Senate, if the Senate so orders, shall appoint a committee of Senators to receive evidence and take testimony at such times and places as the committee may determine, and for such purpose the committee so appointed and the chairman thereof, to be elected by the committee, shall (unless otherwise ordered by the Senate) exercise all the powers and functions conferred upon the Senate and the Presiding Officer of the Senate, respectively, under the rules of procedure and practice in the Senate when sitting on impeachment trials. "Unless otherwise ordered by the Senate, the rules of procedure and practice in the Senate when sitting on impeachment trials shall govern the procedure and practice of the committee so appointed. The committee so appointed shall report to the Senate in writing a certified copy of the transcript of the proceedings and testimony had and given before such committee, and such report shall be received by the Senate and the evidence so received and the testimony so taken shall be considered to all intents and purposes, subject to the right of the Senate to determine competency, relevancy, and materiality, as having been received and taken before the Senate, but nothing herein shall prevent the Senate from sending for any witness and hearing his testimony in open Senate, or by order of the Senate having the entire trial in open Senate." 228 and delivered arguments from the Senate floor during the three hours set aside for oral argument in front of that body. Nixon himself gave a personal appeal, and several Senators posed questions directly to both parties. 135 Congo Rec. S14493-14517 (Nov. 1, 1989). The Senate voted by more than the constitutionally required two-thirds majority to convict Nixon on the first two articles. Id., at S14635 (Nov. 3, 1989). The presiding officer then entered judgment removing Nixon from his office as United States District Judge. Nixon thereafter commenced the present suit, arguing that Senate Rule XI violates the constitutional grant of authority to the Senate to "try" all impeachments because it prohibits the whole Senate from taking part in the evidentiary hearings. See Art. I, § 3, cl. 6. Nixon sought a declaratory judgment that his impeachment conviction was void and that his judicial salary and privileges should be reinstated. The District Court held that his claim was nonjusticiable, 744 F. Supp. 9 (DC 1990), and the Court of Appeals for the District of Columbia Circuit agreed. 290 U. S. App. D. C. 420, 938 F.2d 239 (1991). We granted certiorari. 502 U. S. 1090 (1992). A controversy is nonjusticiable-i. e., involves a political question-where there is "a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it .... " Baker v. Carr, 369 U. S. 186 , 217 (1962). But the courts must, in the first instance, interpret the text in question and determine whether and to what extent the issue is textually committed. See ibid.; Powell v. McCormack, 395 U. S. 486 , 519 (1969). As the discussion that follows makes clear, the concept of a textual commitment to a coordinate political department is not completely separate from the concept of a lack of judicially discoverable and manageable standards for resolving it; the lack of judicially manageable standards may strengthen the con- 229 clusion that there is a textually demonstrable commitment to a coordinate branch. In this case, we must examine Art. I, § 3, cl. 6, to determine the scope of authority conferred upon the Senate by the Framers regarding impeachment. It provides: "The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present." The language and structure of this Clause are revealing. The first sentence is a grant of authority to the Senate, and the word "sole" indicates that this authority is reposed in the Senate and nowhere else. The next two sentences specify requirements to which the Senate proceedings shall conform: The Senate shall be on oath or affirmation, a two-thirds vote is required to convict, and when the President is tried the Chief Justice shall preside. Petitioner argues that the word "try" in the first sentence imposes by implication an additional requirement on the Senate in that the proceedings must be in the nature of a judicial trial. From there petitioner goes on to argue that this limitation precludes the Senate from delegating to a select committee the task of hearing the testimony of witnesses, as was done pursuant to Senate Rule XI. "'[T]ry' means more than simply 'vote on' or 'review' or 'judge.' In 1787 and today, trying a case means hearing the evidence, not scanning a cold record." Brief for Petitioner 25. Petitioner concludes from this that courts may review whether or not the Senate "tried" him before convicting him. There are several difficulties with this position which lead us ultimately to reject it. The word "try," both in 1787 and later, has considerably broader meanings than those to which petitioner would limit it. Older dictionaries define try as 230 "[t]o examine" or "[t]o examine as a judge." See 2 S. Johnson, A Dictionary of the English Language (1785). In more modern usage the term has various meanings. For example, try can mean "to examine or investigate judicially," "to conduct the trial of," or "to put to the test by experiment, investigation, or trial." Webster's Third New International Dictionary 2457 (1971). Petitioner submits that "try," as contained in T. Sheridan, Dictionary of the English Language (1796), means "to examine as a judge; to bring before a judicial tribunal." Based on the variety of definitions, however, we cannot say that the Framers used the word "try" as an implied limitation on the method by which the Senate might proceed in trying impeachments. "As a rule the Constitution speaks in general terms, leaving Congress to deal with subsidiary matters of detail as the public interests and changing conditions may require .... " Dillon v. Gloss, 256 U. S. 368 , 376 (1921). The conclusion that the use of the word "try" in the first sentence of the Impeachment Trial Clause lacks sufficient precision to afford any judicially manageable standard of review of the Senate's actions is fortified by the existence of the three very specific requirements that the Constitution does impose on the Senate when trying impeachments: The Members must be under oath, a two-thirds vote is required to convict, and the Chief Justice presides when the President is tried. These limitations are quite precise, and their nature suggests that the Framers did not intend to impose additional limitations on the form of the Senate proceedings by the use of the word "try" in the first sentence. Petitioner devotes only two pages in his brief to negating the significance of the word "sole" in the first sentence of Clause 6. As noted above, that sentence provides that "[t]he Senate shall have the sole Power to try all Impeachments." We think that the word "sole" is of considerable significance. Indeed, the word "sole" appears only one other time in the Constitution-with respect to the House of Representatives' 231 "sole Power of Impeachment." Art. I, § 2, cl. 5 (emphasis added). The commonsense meaning of the word "sole" is that the Senate alone shall have authority to determine whether an individual should be acquitted or convicted. The dictionary definition bears this out. "Sole" is defined as "having no companion," "solitary," "being the only one," and "functioning ... independently and without assistance or interference." Webster's Third New International Dictionary 2168 (1971). If the courts may review the actions of the Senate in order to determine whether that body "tried" an impeached official, it is difficult to see how the Senate would be "functioning ... independently and without assistance or interference." Nixon asserts that the word "sole" has no substantive meaning. To support this contention, he argues that the word is nothing more than a mere "cosmetic edit" added by the Committee of Style after the delegates had approved the substance of the Impeachment Trial Clause. There are two difficulties with this argument. First, accepting as we must the proposition that the Committee of Style had no authority from the Convention to alter the meaning of the Clause, see 2 Records of the Federal Convention of 1787, p. 553 (M. Farrand ed. 1966) (hereinafter Farrand), we must presume that the Committee's reorganization or rephrasing accurately captured what the Framers meant in their unadorned language. See Powell v. McCormack, 395 U. S., at 538-539. That is, we must presume that the Committee did its job. This presumption is buttressed by the fact that the Constitutional Convention voted on, and accepted, the Committee of Style's linguistic version. See 2 Farrand 663-667. We agree with the Government that "the word 'sole' is entitled to no less weight than any other word of the text, because the Committee revision perfected what 'had been agreed to.'" Brief for Respondents 25. Second, carrying Nixon's argument to its logical conclusion would constrain us to say that the second to last draft would govern in every instance where the Com- 232 mittee of Style added an arguably substantive word. Such a result is at odds with the fact that the Convention passed the Committee's version, and with the well-established rule that the plain language of the enacted text is the best indicator of intent. Petitioner also contends that the word "sole" should not bear on the question of justiciability because Art. II, § 2, cl. 1, of the Constitution grants the President pardon authority "except in Cases of Impeachment." He argues that such a limitation on the President's pardon power would not have been necessary if the Framers thought that the Senate alone had authority to deal with such questions. But the granting of a pardon is in no sense an overturning of a judgment of conviction by some other tribunal; it is "[a]n executive action that mitigates or sets aside punishment for a crime." Black's Law Dictionary 1113 (6th ed. 1990) (emphasis added). Authority in the Senate to determine procedures for trying an impeached official, unreviewable by the courts, is therefore not at all inconsistent with authority in the President to grant a pardon to the convicted official. The exception from the President's pardon authority of cases of impeachment was a separate determination by the Framers that executive clemency should not be available in such cases. Petitioner finally argues that even if significance be attributed to the word "sole" in the first sentence of the Clause, the authority granted is to the Senate, and this means that "the Senate-not the courts, not a lay jury, not a Senate Committee-shall try impeachments." Brief for Petitioner 42. It would be possible to read the first sentence of the Clause this way, but it is not a natural reading. Petitioner's interpretation would bring into judicial purview not merely the sort of claim made by petitioner, but other similar claims based on the conclusion that the word "Senate" has imposed by implication limitations on procedures which the Senate might adopt. Such limitations would be inconsistent with the construction of the Clause as a whole, which, as we 233 have noted, sets out three express limitations in separate sentences. The history and contemporary understanding of the impeachment provisions support our reading of the constitutional language. The parties do not offer evidence of a single word in the history of the Constitutional Convention or in contemporary commentary that even alludes to the possibility of judicial review in the context of the impeachment powers. See 290 U. S. App. D. C., at 424, 938 F. 2d, at 243; R. Berger, Impeachment: The Constitutional Problems 116 (1973). This silence is quite meaningful in light of the several explicit references to the availability of judicial review as a check on the Legislature's power with respect to bills of attainder, ex post facto laws, and statutes. See The Federalist No. 78, p. 524 (J. Cooke ed. 1961) ("Limitations ... can be preserved in practice no other way than through the medium of the courts of justice"). The Framers labored over the question of where the impeachment power should lie. Significantly, in at least two considered scenarios the power was placed with the Federal Judiciary. See 1 Farrand 21-22 (Virginia Plan); id., at 244 (New Jersey Plan). Indeed, James Madison and the Committee of Detail proposed that the Supreme Court should have the power to determine impeachments. See 2 id., at 551 (Madison); id., at 178-179, 186 (Committee of Detail). Despite these proposals, the Convention ultimately decided that the Senate would have "the sole Power to try all Impeachments." Art. I, § 3, cl. 6. According to Alexander Hamilton, the Senate was the "most fit depositary of this important trust" because its Members are representatives of the people. See The Federalist No. 65, p. 440 (J. Cooke ed. 1961). The Supreme Court was not the proper body because the Framers "doubted whether the members of that tribunal would, at all times, be endowed with so eminent a portion of fortitude as would be called for in the execution of so difficult a task" or whether the Court "would possess the degree of 234 credit and authority" to carry out its judgment if it conflicted with the accusation brought by the Legislature-the people's representative. See id., at 441. In addition, the Framers believed the Court was too small in number: "The awful discretion, which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons." Id., at 441-442. There are two additional reasons why the Judiciary, and the Supreme Court in particular, were not chosen to have any role in impeachments. First, the Framers recognized that most likely there would be two sets of proceedings for individuals who commit impeachable offenses-the impeachment trial and a separate criminal trial. In fact, the Constitution explicitly provides for two separate proceedings. See Art. I, § 3, cl. 7. The Framers deliberately separated the two forums to avoid raising the specter of bias and to ensure independent judgments: "Would it be proper that the persons, who had disposed of his fame and his most valuable rights as a citizen in one trial, should in another trial, for the same offence, be also the disposers of his life and his fortune? Would there not be the greatest reason to apprehend, that error in the first sentence would be the parent of error in the second sentence? That the strong bias of one decision would be apt to overrule the influence of any new lights, which might be brought to vary the complexion of another decision?" The Federalist No. 65, p. 442 (J. Cooke ed. 1961). Certainly judicial review of the Senate's "trial" would introduce the same risk of bias as would participation in the trial itself. Second, judicial review would be inconsistent with the Framers' insistence that our system be one of checks and 235 balances. In our constitutional system, impeachment was designed to be the only check on the Judicial Branch by the Legislature. On the topic of judicial accountability, Hamilton wrote: "The precautions for their responsibility are comprised in the article respecting impeachments. They are liable to be impeached for mal-conduct by the house of representatives, and tried by the senate, and if convicted, may be dismissed from office and disqualified for holding any other. This is the only provision on the point, which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own constitution in respect to our own judges." Id., No. 79, at 532-533 (emphasis added). Judicial involvement in impeachment proceedings, even if only for purposes of judicial review, is counterintuitive because it would eviscerate the "important constitutional check" placed on the Judiciary by the Framers. See id., No. 81, at 545. Nixon's argument would place final reviewing authority with respect to impeachments in the hands of the same body that the impeachment process is meant to regulate.2 Nevertheless, Nixon argues that judicial review is necessary in order to place a check on the Legislature. Nixon fears that if the Senate is given unreviewable authority to interpret the Impeachment Trial Clause, there is a grave risk that the Senate will usurp judicial power. The Framers anticipated this objection and created two constitutional 2 Nixon contends that justiciability should not hang on the mere fact that the Judiciary's interest may be implicated or affected by the legislative action in question. In support, he cites our decisions in Mistretta v. United States, 488 U. S. 361 (1989), and Morrison v. Olson, 487 U. S. 654 (1988). These cases do not advance his argument, however, since neither addressed the issue of justiciability. More importantly, neither case involved a situation in which judicial review would remove the only check placed on the Judicial Branch by the Framers. 236 safeguards to keep the Senate in check. The first safeguard is that the whole of the impeachment power is divided between the two legislative bodies, with the House given the right to accuse and the Senate given the right to judge. Id., No. 66, at 446. This split of authority "avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution from the prevalency of a factious spirit in either of those branches." The second safeguard is the two-thirds supermajority vote requirement. Hamilton explained that "[a]s the concurrence of two-thirds of the senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, will be as complete as itself can desire." Ibid. In addition to the textual commitment argument, we are persuaded that the lack of finality and the difficulty of fashioning relief counsel against justiciability. See Baker v. Carr, 369 U. S., at 210. We agree with the Court of Appeals that opening the door of judicial review to the procedures used by the Senate in trying impeachments would "expose the political life of the country to months, or perhaps years, of chaos." 290 U. S. App. D. C., at 427, 938 F. 2d, at 246. This lack of finality would manifest itself most dramatically if the President were impeached. The legitimacy of any successor, and hence his effectiveness, would be impaired severely, not merely while the judicial process was running its course, but during any retrial that a differently constituted Senate might conduct if its first judgment of conviction were invalidated. Equally uncertain is the question of what relief a court may give other than simply setting aside the judgment of conviction. Could it order the reinstatement of a convicted federal judge, or order Congress to create an additional judgeship if the seat had been filled in the interim? Petitioner finally contends that a holding of nonjusticiability cannot be reconciled with our opinion in Powell v. McCormack, 395 U. S. 486 (1969). The relevant issue in Powell was whether courts could review the House of Representa- 237 tives' conclusion that Powell was "unqualified" to sit as a Member because he had been accused of misappropriating public funds and abusing the process of the N ew York courts. We stated that the question of justiciability turned on whether the Constitution committed authority to the House to judge its Members' qualifications, and if so, the extent of that commitment. Id., at 519, 521. Article I, § 5, provides that "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members." In turn, Art. I, § 2, specifies three requirements for membership in the House: The candidate must be at least 25 years of age, a citizen of the United States for no less than seven years, and an inhabitant of the State he is chosen to represent. We held that, in light of the three requirements specified in the Constitution, the word "qualifications"-of which the House was to be the Judge-was of a precise, limited nature. Id., at 522; see also The Federalist No. 60, p. 409 (J. Cooke ed. 1961) ("The qualifications of the persons who may choose or be chosen, as has been remarked upon another occasion, are defined and fixed in the constitution; and are unalterable by the legislature") (emphasis added) (quoted in Powell, supra, at 539). Our conclusion in Powell was based on the fixed meaning of "[q]ualifications" set forth in Art. I, § 2. The claim by the House that its power to "be the Judge of the Elections, Returns and Qualifications of its own Members" was a textual commitment of unreviewable authority was defeated by the existence of this separate provision specifying the only qualifications which might be imposed for House membership. The decision as to whether a Member satisfied these qualifications was placed with the House, but the decision as to what these qualifications consisted of was not. In the case before us, there is no separate provision of the Constitution that could be defeated by allowing the Senate final authority to determine the meaning of the word "try" in the Impeachment Trial Clause. We agree with Nixon that 238 courts possess power to review either legislative or executive action that transgresses identifiable textual limits. As we have made clear, "whether the action of [either the Legislative or Executive Branch] exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution." Baker v. Carr, supra, at 211; accord, Powell, supra, at 521. But we conclude, after exercising that delicate responsibility, that the word "try" in the Impeachment Trial Clause does not provide an identifiable textual limit on the authority which is committed to the Senate. For the foregoing reasons, the judgment of the Court of Appeals is Affirmed. JUSTICE STEVENS, concurring. For me, the debate about the strength of the inferences to be drawn from the use of the words "sole" and "try" is far less significant than the central fact that the Framers decided to assign the impeachment power to the Legislative Branch. The disposition of the impeachment of Samuel Chase in 1805 demonstrated that the Senate is fully conscious of the profound importance of that assignment, and nothing in the subsequent history of the Senate's exercise of this extraordinary power suggests otherwise. See generally 3 A. Beveridge, The Life of John Marshall 169-222 (1919); W. Rehnquist, Grand Inquests 275-278 (1992). Respect for a coordinate branch of the Government forecloses any assumption that improbable hypotheticals like those mentioned by JUSTICE WHITE and JUSTICE SOUTER will ever occur. Accordingly, the wise policy of judicial restraint, coupled with the potential anomalies associated with a contrary view, see ante, at 234-236, provide a sufficient justification for my agreement with the views of THE CHIEF JUSTICE. 239 JUSTICE WHITE, with whom JUSTICE BLACKMUN joins, concurring in the judgment. Petitioner contends that the method by which the Senate convicted him on two articles of impeachment violates Art. I, § 3, cl. 6, of the Constitution, which mandates that the Senate "try" impeachments. The Court is of the view that the Constitution forbids us even to consider his contention. I find no such prohibition and would therefore reach the merits of the claim. I concur in the judgment because the Senate fulfilled its constitutional obligation to "try" petitioner. I It should be said at the outset that, as a practical matter, it will likely make little difference whether the Court's or my view controls this case. This is so because the Senate has very wide discretion in specifying impeachment trial procedures and because it is extremely unlikely that the Senate would abuse its discretion and insist on a procedure that could not be deemed a trial by reasonable judges. Even taking a wholly practical approach, I would prefer not to announce an unreviewable discretion in the Senate to ignore completely the constitutional direction to "try" impeachment cases. When asked at oral argument whether that direction would be satisfied if, after a House vote to impeach, the Senate, without any procedure whatsoever, unanimously found the accused guilty of being "a bad guy," counsel for the United States answered that the Government's theory "leads me to answer that question yes." Tr. of Oral Arg. 51. Especially in light of this advice from the Solicitor General, I would not issue an invitation to the Senate to find an excuse, in the name of other pressing business, to be dismissive of its critical role in the impeachment process. Practicalities aside, however, since the meaning of a constitutional provision is at issue, my disagreement with the Court should be stated. 240 WHITE, J., concurring in judgment II The majority states that the question raised in this case meets two of the criteria for political questions set out in Baker v. Carr, 369 U. S. 186 (1962). It concludes first that there is "'a textually demonstrable constitutional commitment of the issue to a coordinate political department.''' It also finds that the question cannot be resolved for" 'a lack of judicially discoverable and manageable standards.' " Ante, at 228. Of course the issue in the political question doctrine is not whether the constitutional text commits exclusive responsibility for a particular governmental function to one of the political branches. There are numerous instances of this sort of textual commitment, e. g., Art. I, § 8, and it is not thought that disputes implicating these provisions are nonjusticiable. Rather, the issue is whether the Constitution has given one of the political branches final responsibility for interpreting the scope and nature of such a power. Although Baker directs the Court to search for "a textually demonstrable constitutional commitment" of such responsibility, there are few, if any, explicit and unequivocal instances in the Constitution of this sort of textual commitment. Conferral on Congress of the power to "Judge" qualifications of its Members by Art. I, § 5, may, for example, preclude judicial review of whether a prospective member in fact meets those qualifications. See Powell v. McCormack, 395 U. S. 486 , 548 (1969). The courts therefore are usually left to infer the presence of a political question from the text and structure of the Constitution. In drawing the inference that the Constitution has committed final interpretive authority to one of the political branches, courts are sometimes aided by textual evidence that the Judiciary was not meant to exercise judicial review-a coordinate inquiry expressed in Baker's "lack of judicially discoverable and manageable standards" criterion. See, e. g., Coleman v. Miller, 307 U. S. 433 , 452-454 (1939), where the Court refused to determine 241 the life span of a proposed constitutional amendment given Art. V's placement of the amendment process with Congress and the lack of any judicial standard for resolving the question. See also id., at 457-460 (Black, J., concurring). A The majority finds a clear textual commitment in the Constitution's use of the word "sole" in the phrase "[t]he Senate shall have the sole Power to try all Impeachments." Art. I, § 3, cl. 6. It attributes "considerable significance" to the fact that this term appears in only one other passage in the Constitution. Ante, at 230. See Art. I, § 2, cl. 5 (the House of Representatives "shall have the sole Power of Impeachment"). The Framers' sparing use of "sole" is thought to indicate that its employment in the Impeachment Trial Clause demonstrates a concern to give the Senate exclusive interpretive authority over the Clause. In disagreeing with the Court, I note that the Solicitor General stated at oral argument that "[w]e don't rest our submission on sole power to try." Tr. of Oral Arg. 32; see also id., at 51. The Government was well advised in this respect. The significance of the Constitution's use of the term "sole" lies not in the infrequency with which the term appears, but in the fact that it appears exactly twice, in parallel provisions concerning impeachment. That the word "sole" is found only in the House and Senate Impeachment Clauses demonstrates that its purpose is to emphasize the distinct role of each in the impeachment process. As the majority notes, the Framers, following English practice, were very much concerned to separate the prosecutorial from the adjudicative aspects of impeachment. Ante, at 235-236 (citing The Federalist No. 66, p. 446 (J. Cooke ed. 1961)). Giving each House "sole" power with respect to its role in impeachments effected this division of labor. While the majority is thus right to interpret the term "sole" to indicate that the Senate ought to "'functio[n] independently 242 WHITE, J., concurring in judgment and without assistance or interference,'" ante, at 231, it wrongly identifies the Judiciary, rather than the House, as the source of potential interference with which the Framers were concerned when they employed the term "sole." Even if the Impeachment Trial Clause is read without regard to its companion Clause, the Court's willingness to abandon its obligation to review the constitutionality of legislative acts merely on the strength of the word "sole" is perplexing. Consider, by comparison, the treatment of Art. I, § 1, which grants "All legislative powers" to the House and Senate. As used in that context "all" is nearly synonymous with "sole"-both connote entire and exclusive authority. Yet the Court has never thought it would unduly interfere with the operation of the Legislative Branch to entertain difficult and important questions as to the extent of the legislative power. Quite the opposite, we have stated that the proper interpretation of the Clause falls within the province of the Judiciary. Addressing the constitutionality of the legislative veto, for example, the Court found it necessary and proper to interpret Art. I, § 1, as one of the "[e]xplicit and unambiguous provisions of the Constitution [that] prescribe and define the respective functions of the Congress and of the Executive in the legislative process." INS v. Chadha, 462 U. S. 919 , 945 (1983). The majority also claims support in the history and early interpretations of the Impeachment Clauses, noting the various arguments in support of the current system made at the Constitutional Convention and expressed powerfully by Hamilton in The Federalist Nos. 65 and 66. In light of these materials there can be little doubt that the Framers came to the view at the Convention that the trial of officials' public misdeeds should be conducted by representatives of the people; that the fledgling Judiciary lacked the wherewithal to adjudicate political intrigues; that the Judiciary ought not to try both impeachments and subsequent criminal cases emanating from them; and that the impeachment power must 243 reside in the Legislative Branch to provide a check on the largely unaccountable Judiciary. The majority's review of the historical record thus explains why the power to try impeachments properly resides with the Senate. It does not explain, however, the sweeping statement that the Judiciary was "not chosen to have any role in impeachments." 1 Ante, at 234. Not a single word in the historical materials cited by the majority addresses judicial review of the Impeachment Trial Clause. And a glance at the arguments surrounding the Impeachment Clauses negates the majority's attempt to infer nonjusticiability from the Framers' arguments in support of the Senate's power to try impeachments. What the relevant history mainly reveals is deep ambivalence among many of the Framers over the very institution of impeachment, which, by its nature, is not easily reconciled with our system of checks and balances. As they clearly recognized, the branch of the Federal Government which is possessed of the authority to try impeachments, by having final say over the membership of each branch, holds a potentially unanswerable power over the others. In addition, that branch, insofar as it is called upon to try not only members of other branches, but also its own, will have the advantage of being the judge of its own members' causes. It is no surprise, then, that the question of impeachment greatly vexed the Framers. The pages of the Convention debates reveal diverse plans for resolving this exceedingly difficult issue. See P. Hoffer & N. Hull, Impeachment in America, 1635-1805, pp. 97-106 (1984) (discussing various proposals). Both before and during the Convention, Madison maintained that the Judiciary ought to try impeachments. Id., at 74, 98, 100. Shortly thereafter, however, he devised a quite complicated scheme that involved the partici- 1 This latter contention is belied by the Impeachment Trial Clause itself, which designates the Chief Justice to preside over impeachment trials of the President. 244 WHITE, J., concurring in judgment pation of each branch. Id., at 74-75. Jefferson likewise had attempted to develop an interbranch system for impeachment trials in Virginia. Id., at 71-72. Even Hamilton's eloquent defense of the scheme adopted by the Constitution was based on a pragmatic decision to further the cause of ratification rather than a strong belief in the superiority of a scheme vesting the Senate with the sole power to try impeachments. While at the Convention, Hamilton advocated that impeachment trials be conducted by a court made up of state-court judges. 1 Records of the Federal Convention of 1787, pp. 292-293 (M. Farrand ed. 1966). Four months after publishing The Federalist Nos. 65 and 66, however, he urged the New York Ratifying Convention to amend the Clause he had so ably defended to have the Senate, the Supreme Court, and judges from each State jointly try impeachments. 5 The Papers of Alexander Hamilton 167-168 (H. Syrett ed. 1962). The historical evidence reveals above all else that the Framers were deeply concerned about placing in any branch the "awful discretion, which a court of impeachments must necessarily have." The Federalist No. 65, p. 441 (J. Cooke ed. 1961). Viewed against this history, the discord between the majority's position and the basic principles of checks and balances underlying the Constitution's separation of powers is clear. In essence, the majority suggests that the Framers' conferred upon Congress a potential tool of legislative dominance yet at the same time rendered Congress' exercise of that power one of the very few areas of legislative authority immune from any judicial review. While the majority rejects petitioner's justiciability argument as espousing a view "inconsistent with the Framers' insistence that our system be one of checks and balances," ante, at 234, it is the Court's finding of nonjusticiability that truly upsets the Framers' careful design. In a truly balanced system, impeachments tried by the Senate would serve as a means of 245 controlling the largely unaccountable Judiciary, even as judicial review would ensure that the Senate adhered to a minimal set of procedural standards in conducting impeachment trials. B The majority also contends that the term "try" does not present a judicially manageable standard. It notes that in 1787, as today, the word "try" may refer to an inquiry in the nature of a judicial proceeding, or, more generally, to experimentation or investigation. In light of the term's multiple senses, the Court finds itself unable to conclude that the Framers used the word "try" as "an implied limitation on the method by which the Senate might proceed in trying impeachments." Ante, at 230. Also according to the majority, comparison to the other more specific requirements listed in the Impeachment Trial Clause-that the senators must proceed under oath and vote by two-thirds to convict, and that the Chief Justice must preside over an impeachment trial of the President-indicates that the word "try" was not meant by the Framers to constitute a limitation on the Senate's conduct and further reveals the term's unmanageability. It is apparently on this basis that the majority distinguishes Powell v. McCormack, 395 U. S. 486 (1969). In Powell, the House of Representatives argued that the grant to Congress of the power to "Judge" the qualifications of its members in Art. I, § 5, precluded the Court from reviewing the House's decision that Powell was not fit for membership. We held to the contrary, noting that, although the Constitution leaves the power to "Judge" in the hands of Congress, it also enumerates, in Art. I, § 2, the "qualifications" whose presence or absence Congress must adjudge. It is precisely the business of the courts, we concluded, to determine the nature and extent of these constitutionally specified qualifications. Id., at 522. The majority finds this case different from Powell only on the grounds that, whereas the qualifi- 246 WHITE, J., concurring in judgment cations of Art. I, § 2, are readily susceptible to judicial interpretation, the term "try" does not provide an "identifiable textual limit on the authority which is committed to the Senate." Ante, at 238. This argument comes in two variants. The first, which asserts that one simply cannot ascertain the sense of "try" which the Framers employed and hence cannot undertake judicial review, is clearly untenable. To begin with, one would intuitively expect that, in defining the power of a political body to conduct an inquiry into official wrongdoing, the Framers used "try" in its legal sense. That intuition is borne out by reflection on the alternatives. The third Clause of Art. I, § 3, cannot seriously be read to mean that the Senate shall "attempt" or "experiment with" impeachments. It is equally implausible to say that the Senate is charged with "investigating" impeachments given that this description would substantially overlap with the House of Representatives' "sole" power to draw up articles of impeachment. Art. I, § 2, cl. 5. That these alternatives are not realistic possibilities is finally evidenced by the use of "tried" in the third sentence of the Impeachment Trial Clause ("[w]hen the President of the United States is tried ... "), and by Art. III, § 2, cl. 3 ("[t]he Trial of all Crimes, except in Cases of Impeachment ... "). The other variant of the majority position focuses not on which sense of "try" is employed in the Impeachment Trial Clause, but on whether the legal sense of that term creates a judicially manageable standard. The majority concludes that the term provides no "identifiable textual limit." Yet, as the Government itself conceded at oral argument, the term "try" is hardly so elusive as the majority would have it. See Tr. of Oral Arg. 51-52. Were the Senate, for example, to adopt the practice of automatically entering a judgment of conviction whenever articles of impeachment were delivered from the House, it is quite clear that the Senate 247 will have failed to "try" impeachments.2 See id., at 52. Indeed in this respect, "try" presents no greater, and perhaps fewer, interpretive difficulties than some other constitutional standards that have been found amenable to familiar techniques of judicial construction, including, for example, "Commerce ... among the several States," Art. I, § 8, cl. 3, and "due process of law," Arndt. 5. See Gibbons v. Ogden, 9 Wheat. 1, 189 (1824) ("The subject to be regulated is commerce; and our constitution being ... one of enumeration, and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word"); Mathews v. Eldridge, 424 U. S. 319 , 334 (1976) ('" "[D]ue process," unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances''') (quoting Cafeteria & Restaurant Workers v. McElroy, 367 U. S. 886 , 895 (1961)).3 2 It is not a sufficient rejoinder to this example to say, with one of the Court of Appeals judges below, that it postulates a "monstrous hypothetical abuse." See 290 U. S. App. D. C. 420,427, 938 F.2d 239 , 246 (1991). The unlikelihood of the example being realized does not undermine the point that "try" has a definable meaning and thus ought to be regarded as judicially manageable. 3 The majority's in terrorem argument against justiciability-that judicial review of impeachments might cause national disruption and that the courts would be unable to fashion effective relief-merits only brief attention. In the typical instance, court review of impeachments would no more render the political system dysfunctional than has this litigation. Moreover, the same capacity for disruption was noted and rejected as a basis for not hearing Powell. Powell v. McCormack, 395 U. S. 486 , 549 (1969). The relief granted for unconstitutional impeachment trials would presumably be similar to the relief granted to other unfairly tried public employee-litigants. Finally, as applied to the special case of the President, the majority's argument merely points out that, were the Senate to convict the President without any kind of a trial, a constitutional crisis might well result. It hardly follows that the Court ought to refrain from upholding the Constitution in all impeachment cases. Nor does it follow that, in cases of Presidential impeachment, the Justices ought to abandon their constitutional responsibilities because the Senate has precipitated a crisis. 248 WHITE, J., concurring in judgment III The majority's conclusion that "try" is incapable of meaningful judicial construction is not without irony. One might think that if any class of concepts would fall within the definitional abilities of the Judiciary, it would be that class having to do with procedural justice. Examination of the remaining question-whether proceedings in accordance with Senate Rule XI are compatible with the Impeachment Trial Clause-confirms this intuition. Petitioner bears the rather substantial burden of demonstrating that, simply by employing the word "try," the Constitution prohibits the Senate from relying on a factfinding committee. It is clear that the Framers were familiar with English impeachment practice and with that of the States employing a variant of the English model at the time of the Constitutional Convention. Hence there is little doubt that the term "try" as used in Art. I, § 3, cl. 6, meant that the Senate should conduct its proceedings in a manner somewhat resembling a judicial proceeding. Indeed, it is safe to assume that Senate trials were to follow the practice in England and the States, which contemplated a formal hearing on the charges, at which the accused would be represented by counsel, evidence would be presented, and the accused would have the opportunity to be heard. Petitioner argues, however, that because committees were not used in state impeachment trials prior to the Convention, the word "try" cannot be interpreted to permit their use. It is, however, a substantial leap to infer from the absence of a particular device of parliamentary procedure that its use has been forever barred by the Constitution. And there is textual and historical evidence that undermines the inference sought to be drawn in this case. The fact that Art. III, § 2, cl. 3, specifically exempts impeachment trials from the jury requirement provides some evidence that the Framers were anxious not to have additional specific procedural requirements read into the term 249 "try." Contemporaneous commentary further supports this view. Hamilton, for example, stressed that a trial by so large a body as the Senate (which at the time promised to boast 26 members) necessitated that the proceedings not "be tied down to ... strict rules, either in the delineation of the offence by the prosecutors, or in the construction of it by the Judges .... " The Federalist No. 65, p. 441 (J. Cooke ed. 1961). In his extensive analysis of the Impeachment Trial Clause, Justice Story offered a nearly identical analysis, which is worth quoting at length. "[I]t is obvious, that the strictness of the forms of proceeding in cases of offences at common law is ill adapted to impeachments. The very habits growing out of judicial employments; the rigid manner, in which the discretion of judges is limited, and fenced in on all sides, in order to protect persons accused of crimes by rules and precedents; and the adherence to technical principles, which, perhaps, distinguishes this branch of the law, more than any other, are all ill adapted to the trial of political offences, in the broad course of impeachments. And it has been observed with great propriety, that a tribunal of a liberal and comprehensive character, confined, as little as possible, to strict forms, enabled to continue its session as long as the nature of the law may require, qualified to view the charge in all its bearings and dependencies, and to appropriate on sound principles of public policy the defence of the accused, seems indispensable to the value of the trial. The history of impeachments, both in England and America, justifies the remark. There is little technical in the mode of proceeding; the charges are sufficiently clear, and yet in a general form; there are few exceptions, which arise in the application of the evidence, which grow out of mere technical rules and quibbles. And it has repeatedly been seen, that the functions have been better understood, and more liberally and justly expounded by states- 250 WHITE, J., concurring in judgment men, then by mere lawyers." 1 J. Story, Commentaries on the Constitution of the United States § 765, p. 532 (3d ed. 1858). It is also noteworthy that the delegation of factfinding by judicial and quasi-judicial bodies was hardly unknown to the Framers. Jefferson, at least, was aware that the House of Lords sometimes delegated factfinding in impeachment trials to committees and recommended use of the same to the Senate. T. Jefferson, A Manual of Parliamentary Practice for the Use of the Senate of the United States § LIII (2d ed. 1812) ("The practice is to swear the witnesses in open House, and then examine them there: or a committee may be named, who shall examine them in committee ... "), reprinted in Jefferson's Parliamentary Writings, The Papers of Thomas Jefferson, Second Series 424 (w. Howell ed. 1988). The States also had on occasion employed legislative committees to investigate whether to draw up articles of impeachment. See Hoffer & Hull, Impeachment in America, at 29, 33. More generally, in colonial governments and state legislatures, contemnors appeared before committees to answer the charges against them. See Groppi v. Leslie, 404 U. S. 496 , 501 (1972). Federal courts likewise had appointed special masters and other factfinders "[f]rom the commencement of our Government." Ex parte Peterson, 253 U. S. 300 , 312 (1920). Particularly in light of the Constitution's grant to each House of the power to "determine the Rules of its Proceedings," see Art. I, § 5, cl. 2, the existence of legislative and judicial delegation strongly suggests that the Impeachment Trial Clause was not designed to prevent employment of a factfinding committee. In short, textual and historical evidence reveals that the Impeachment Trial Clause was not meant to bind the hands of the Senate beyond establishing a set of minimal procedures. Without identifying the exact contours of these procedures, it is sufficient to say that the Senate's use of a factfinding committee under Rule XI is entirely compatible with 251 the Constitution's command that the Senate "try all impeachments." Petitioner's challenge to his conviction must therefore fail. IV Petitioner has not asked the Court to conduct his impeachment trial; he has asked instead that it determine whether his impeachment was tried by the Senate. The majority refuses to reach this determination out of a laudable desire to respect the authority of the Legislature. Regrettably, this concern is manifested in a manner that does needless violence to the Constitution.4 The deference that is owed can 4 Although our views might well produce identical results in most cases, the same objection may be raised against the prudential version of political question doctrine presented by JUSTICE SOUTER. According to the prudential view, judicial determination of whether the Senate has conducted an impeachment trial would interfere unacceptably with the Senate's work and should be avoided except where necessitated by the threat of grave harm to the constitutional order. As articulated, this position is missing its premise: No explanation is offered as to why it would show disrespect or cause disruption or embarrassment to review the action of the Senate in this case as opposed to, say, the enactment of legislation under the Commerce Clause. The Constitution requires the courts to determine the validity of statutes passed by Congress when they are challenged, even though such laws are passed with the firm belief that they are constitutional. The exercise of judicial review of this kind, with all of its attendant risk of interference and disrespect, is not conditioned upon a showing in each case that without it the Republic would be at risk. Some account is therefore needed as to why prudence does not counsel against judicial review in the typical case, yet does so in this case. In any event, the prudential view cannot achieve its stated purpose. The judgment it wishes to avoid-and the attendant disrespect and embarrassment-will inevitably be cast because the courts still will be required to distinguish cases on their merits. JUSTICE SOUTER states that the Court ought not to entertain petitioner's constitutional claim because "[i]t seems fair to conclude," post, at 253, that the Senate tried him. In other words, on the basis of a preliminary determination that the Senate has acted within the "broad boundaries" of the Impeachment Trial Clause, it is concluded that we must refrain from making that determination. At best, this approach offers only the illusion of deference and respect by substituting impressionistic assessment for constitutional analysis. 252 SOUTER, J., concurring in judgment be found in the Constitution itself, which provides the Senate ample discretion to determine how best to try impeachments. JUSTICE SOUTER, concurring in the judgment. I agree with the Court that this case presents a nonjusticiable political question. Because my analysis differs somewhat from the Court's, however, I concur in its judgment by this separate opinion. As we cautioned in Baker v. Carr, 369 U. S. 186 , 210-211 (1962), "the 'political question' label" tends "to obscure the need for case-by-case inquiry." The need for such close examination is nevertheless clear from our precedents, which demonstrate that the functional nature of the political question doctrine requires analysis of "the precise facts and posture of the particular case," and precludes "resolution by any semantic cataloguing," id., at 217: "Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question." Ibid. Whatever considerations feature most prominently in a particular case, the political question doctrine is "essentially a function of the separation of powers," ibid., existing to restrain courts "from inappropriate interference in the business of the other branches of Government," United States v. 253 Munoz-Flores, 495 U. S. 385 , 394 (1990), and deriving in large part from prudential concerns about the respect we owe the political departments, see Goldwater v. Carter, 444 U. S. 996 , 1000 (1979) (Powell, J., concurring in judgment); A. Bickel, The Least Dangerous Branch 125-126 (2d ed. 1986); Finkelstein, Judicial Self-Limitation, 37 Harv. L. Rev. 338, 344-345 (1924). Not all interference is inappropriate or disrespectful, however, and application of the doctrine ultimately turns, as Learned Hand put it, on "how importunately the occasion demands an answer." L. Hand, The Bill of Rights 15 (1958). This occasion does not demand an answer. The Impeachment Trial Clause commits to the Senate "the sole Power to try all Impeachments," subject to three procedural requirements: the Senate shall be on oath or affirmation; the Chief Justice shall preside when the President is tried; and conviction shall be upon the concurrence of two-thirds of the Members present. U. S. Const., Art. I, § 3, cl. 6. It seems fair to conclude that the Clause contemplates that the Senate may determine, within broad boundaries, such subsidiary issues as the procedures for receipt and consideration of evidence necessary to satisfy its duty to "try" impeachments. Other significant considerations confirm a conclusion that this case presents a nonjusticiable political question: the "unusual need for unquestioning adherence to a political decision already made," as well as "the potentiality of embarrassment from multifarious pronouncements by various departments on one question." Baker, supra, at 217. As the Court observes, see ante, at 236, judicial review of an impeachment trial would under the best of circumstances entail significant disruption of government. One can, nevertheless, envision different and unusual circumstances that might justify a more searching review of impeachment proceedings. If the Senate were to act in a manner seriously threatening the integrity of its results, convicting, say, upon a coin toss, or upon a summary determination that an officer of the United States was simply" 'a bad 254 SOUTER, J., concurring in judgment guy,'" ante, at 239 (WHITE, J., concurring in judgment), judicial interference might well be appropriate. In such circumstances, the Senate's action might be so far beyond the scope of its constitutional authority, and the consequent impact on the Republic so great, as to merit a judicial response despite the prudential concerns that would ordinarily counsel silence. "The political question doctrine, a tool for maintenance of governmental order, will not be so applied as to promote only disorder." Baker, supra, at 215.

The Supreme Court ruled that the impeachment of a federal judge by the Senate is not subject to judicial review, as the Constitution grants the Senate sole power to try impeachments. The Court found that the word "try" in the Impeachment Trial Clause does not require a judicial-style trial and that the Senate has broad discretion to determine procedures for receiving and considering evidence. The Court also noted potential disruption to the government if impeachment trials were subject to judicial interference. However, Justice Souter suggested that judicial intervention might be warranted if the Senate acted in a manner seriously threatening the integrity of its results.

Role of Courts

Dickerson v. U.S.

https://supreme.justia.com/cases/federal/us/530/428/

OCTOBER TERM, 1999 Syllabus DICKERSON v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 99-5525. Argued April 19, 2000-Decided June 26, 2000 In the wake of Miranda v. Arizona, 384 U. S. 436 , in which the Court held that certain warnings must be given before a suspect's statement made during custodial interrogation could be admitted in evidence, id., at 479, Congress enacted 18 U. S. C. § 3501, which in essence makes the admissibility of such statements turn solely on whether they were made voluntarily. Petitioner, under indictment for bank robbery and related federal crimes, moved to suppress a statement he had made to the Federal Bureau of Investigation, on the ground he had not received "Miranda warnings" before being interrogated. The District Court granted his motion, and the Government took an interlocutory appeal. In reversing, the Fourth Circuit acknowledged that petitioner had not received Miranda warnings, but held that § 3501 was satisfied because his statement was voluntary. It concluded that Miranda was not a constitutional holding, and that, therefore, Congress could by statute have the final say on the admissibility question. Held: Miranda and its progeny in this Court govern the admissibility of statements made during custodial interrogation in both state and federal courts. Pp. 432-444. (a) Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress. Given § 3501's express designation of voluntariness as the touchstone of admissibility, its omission of any warning requirement, and its instruction for trial courts to consider the totality of the circumstances surrounding the giving of the confession, this Court agrees with the Fourth Circuit that Congress intended § 3501 to overrule Miranda. The law is clear as to whether Congress has constitutional authority to do so. This Court has supervisory authority over the federal courts to prescribe binding rules of evidence and procedure. Carlisle v. United States, 517 U. S. 416 , 426. While Congress has ultimate authority to modify or set aside any such rules that are not constitutionally required, e. g., Palermo v. United States, 360 U. S. 343 , 345-348, it may not supersede this Court's decisions interpreting and applying the Constitution, see, e. g., City of Boerne v. Flores, 521 U. S. 507 , 517-521. That Miranda announced a constitutional rule is demonstrated, first and foremost, by the fact that both Miranda and two of its companion cases applied its rule to proceedings in state courts, and that the Court has consistently done 429 so ever since. See, e. g., Stansbury v. California, 511 U. S. 318 (per curiam). The Court does not hold supervisory power over the state courts, e. g., Smith v. Phillips, 455 U. S. 209 , 221, as to which its authority is limited to enforcing the commands of the Constitution, e. g., Mu'Min v. Virginia, 500 U. S. 415 , 422. The conclusion that Miranda is constitutionally based is also supported by the fact that that case is replete with statements indicating that the majority thought it was announcing a constitutional rule, see, e. g., 384 U. S., at 445. Although Miranda invited legislative action to protect the constitutional right against coerced self-incrimination, it stated that any legislative alternative must be "at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it." Id., at 467. A contrary conclusion is not required by the fact that the Court has subsequently made exceptions from the Miranda rule, see, e. g., New York v. Quarles, 467 U. S. 649 . No constitutional rule is immutable, and the sort of refinements made by such cases are merely a normal part of constitutional law. Oregon v. Elstad, 470 U. S. 298 , 306-in which the Court, in refusing to apply the traditional "fruits" doctrine developed in Fourth Amendment cases, stated that Miranda's exclusionary rule serves the Fifth Amendment and sweeps more broadly than that Amendment itself-does not prove that Miranda is a nonconstitutional decision, but simply recognizes the fact that unreasonable searches under the Fourth Amendment are different from unwarned interrogation under the Fifth. Finally, although the Court agrees with the court-appointed amicus curiae that there are more remedies available for abusive police conduct than there were when Miranda was decided--e. g., a suit under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 -it does not agree that such additional measures supplement § 3501's protections sufficiently to create an adequate substitute for the Miranda warnings. Miranda requires procedures that will warn a suspect in custody of his right to remain silent and assure him that the exercise of that right will be honored, see, e. g., 384 U. S., at 467, while § 3501 explicitly eschews a requirement of preinterrogation warnings in favor of an approach that looks to the administration of such warnings as only one factor in determining the voluntariness of a suspect's confession. Section 3501, therefore, cannot be sustained if Miranda is to remain the law. Pp. 432-443. (b) This Court declines to overrule Miranda. Whether or not this Court would agree with Miranda's reasoning and its rule in the first instance, stare decisis weighs heavily against overruling it now. Even in constitutional cases, stare decisis carries such persuasive force that the Court has always required a departure from precedent to be supported by some special justification. E. g., United States v. Inter- 430 Syllabus national Business Machines Corp., 517 U. S. 843 , 856. There is no such justification here. Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture. See Mitchell v. United States, 526 U. S. 314 , 331-332. While the Court has overruled its precedents when subsequent cases have undermined their doctrinal underpinnings, that has not happened to Miranda. If anything, subsequent cases have reduced Miranda's impact on legitimate law enforcement while reaffirming the decision's core ruling. The rule's disadvantage is that it may result in a guilty defendant going free. But experience suggests that § 3501's totalityof-the-circumstances test is more difficult than Miranda for officers to conform to, and for courts to apply consistently. See, e. g., Haynes v. Washington, 373 U. S. 503 , 515. The requirement that Miranda warnings be given does not dispense with the voluntariness inquiry, but cases in which a defendant can make a colorable argument that a selfincriminating statement was compelled despite officers' adherence to Miranda are rare. Pp. 443-444. 166 F.3d 667 , reversed. REHNQUIST, C. J., delivered the opinion of the Court, in which STEVENS, O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined, post, p.444. James W Hundley, by appointment of the Court, 528 U. S. 1072, argued the cause for petitioner. With him on the briefs were Carter G. Phillips, Jeffrey T. Green, and Kurt H. Jacobs. Solicitor General Waxman argued the cause for the United States. With him on the briefs were Attorney General Reno, Assistant Attorney General Robinson, Deputy Solicitor General Dreeben, James A. Feldman, and Lisa S. Blatt. Paul G. Cassell, by invitation of the Court, 528 U. S. 1045, argued the cause as amicus curiae urging affirmance. With him on the brief were Daniel J. Popeo and Paul D. Kamenar.* *Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union by Jonathan L. Abram, Audrey J. Anderson, Steven R. Shapiro, Vivian Berger, Susan N. Herman, and Stephen Schulhofer; 431 CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. In Miranda v. Arizona, 384 U. S. 436 (1966), we held that certain warnings must be given before a suspect's statement made during custodial interrogation could be admitted in for the House Democratic Leadership by Charles Tiefer and Jonathan W Cuneo; for the National Association of Criminal Defense Lawyers et al. by Paul M. Smith, Deanne E. Maynard, Lisa B. Kemler, and John T. Philipsborn; for the National Legal Aid and Defender Association by Charles D. Weisselberg and Michelle Falkoff; for the Rutherford Institute by James Joseph Lynch, Jr., and John W Whitehead; for Griffin B. Bell by Robert S. Litt, John A. Freedman, and Daniel C. Richman; and for Benjamin R. Civiletti by Mr. Civiletti, pro se, Kenneth C. Bass III, and John F. Cooney. Briefs of amici curiae urging affirmance were filed for the State of South Carolina et al. by Charles M. Condon, Attorney General of South Carolina, Treva Ashworth, Deputy Attorney General, Kenneth P. Woodington, Senior Assistant Attorney General, and Travey Colton Green, Assistant Attorney General; for the Maricopa County Attorney's Office by Theodore B. Olson, Douglas R. Cox, and Miguel A. Estrada; for Arizona Voices for Victims et al. by Douglas Beloof; for the Bipartisan Legal Advisory Group of the United States House of Representatives by Geraldine R. Gennet, Kerry W Kircher, and Michael L. Stern; for the Center for the Community Interest et al. by Daniel P. Collins, Kristin Linsley Myles, and Kelly M. Klaus; for the Center for the Original Intent of the Constitution by Michael P. Farris; for Citizens for Law and Order et al. by Theodore M. Cooperstein; for the Criminal Justice Legal Foundation by Kent S. Scheidegger, Charles L. Hobson, and Edwin Meese III; for the Federal Bureau of Investigation Agents Association by Robert F. Hoyt; for the Fraternal Order of Police by Patrick F. Philbin and Thomas T. Rutherford; for the National Association of Police Organizations et al. by Stephen R. McSpadden, Robert J. Cynkar, and Margaret A. Ryan; for the National District Attorneys Association et al. by Lynne Abraham, Ronald Eisenberg, Jeffrey C. Sullivan, John M. Tyson, Jr., Grover Trask, Christine A. Cooke, John B. Dangler, and Richard E. Trodden; for Former Attorneys General of the United States William P. Barr and Edwin Meese III by Andrew G. McBride; for Senator Orrin G. Hatch et al. by Senator Hatch, pro se; and for Manning & Marder, Kass, Ellrod, Ramirez by Davis Wayne W Schmidt, James P. Manak, and Bernard J. Farber filed a brief for Americans for Effective Law Enforcement, Inc., et al. as amici curiae. 432 evidence. In the wake of that decision, Congress enacted 18 U. S. C. § 3501, which in essence laid down a rule that the admissibility of such statements should turn only on whether or not they were voluntarily made. We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves. We therefore hold that Miranda and its progeny in this Court govern the admissibility of statements made during custodial interrogation in both state and federal courts. Petitioner Dickerson was indicted for bank robbery, conspiracy to commit bank robbery, and using a firearm in the course of committing a crime of violence, all in violation of the applicable provisions of Title 18 of the United States Code. Before trial, Dickerson moved to suppress a statement he had made at a Federal Bureau of Investigation field office, on the grounds that he had not received "Miranda warnings" before being interrogated. The District Court granted his motion to suppress, and the Government took an interlocutory appeal to the United States Court of Appeals for the Fourth Circuit. That court, by a divided vote, reversed the District Court's suppression order. It agreed with the District Court's conclusion that petitioner had not received Miranda warnings before making his statement. But it went on to hold that § 3501, which in effect makes the admissibility of statements such as Dickerson's turn solely on whether they were made voluntarily, was satisfied in this case. It then concluded that our decision in Miranda was not a constitutional holding, and that, therefore, Congress could by statute have the final say on the question of admissibility. 166 F.3d 667 (1999). Because of the importance of the questions raised by the Court of Appeals' decision, we granted certiorari, 528 U. S. 1045 (1999), and now reverse. We begin with a brief historical account of the law governing the admission of confessions. Prior to Miranda, we 433 evaluated the admissibility of a suspect's confession under a voluntariness test. The roots of this test developed in the common law, as the courts of England and then the United States recognized that coerced confessions are inherently untrustworthy. See, e. g., King v. Rudd, 1 Leach 115, 117-118, 122-123, 168 Eng. Rep. 160, 161, 164 (K. B. 1783) (Lord Mansfield, C. J.) (stating that the English courts excluded confessions obtained by threats and promises); King v. Warickshall, 1 Leach 262, 263-264, 168 Eng. Rep. 234, 235 (K. B. 1783) ("A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt ... but a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape ... that no credit ought to be given to it; and therefore it is rejected"); King v. Parratt, 4 Car. & P. 570, 172 Eng. Rep. 829 (N. P. 1831); Queen v. Garner, 1 Den. 329, 169 Eng. Rep. 267 (Ct. Crim. App. 1848); Queen v. Baldry, 2 Den. 430, 169 Eng. Rep. 568 (Ct. Crim. App. 1852); Hopt v. Territory of Utah, 110 U. S. 574 (1884); Pierce v. United States, 160 U. S. 355 , 357 (1896). Over time, our cases recognized two constitutional bases for the requirement that a confession be voluntary to be admitted into evidence: the Fifth Amendment right against self-incrimination and the Due Process Clause of the Fourteenth Amendment. See, e. g., Bram v. United States, 168 U. S. 532 , 542 (1897) (stating that the voluntariness test "is controlled by that portion of the Fifth Amendment ... commanding that no person 'shall be compelled in any criminal case to be a witness against himself' "); Brown v. Mississippi, 297 U. S. 278 (1936) (reversing a criminal conviction under the Due Process Clause because it was based on a confession obtained by physical coercion). While Bram was decided before Brown and its progeny, for the middle third of the 20th century our cases based the rule against admitting coerced confessions primarily, if not exclusively, on notions of due process. We applied the 434 due process voluntariness test in "some 30 different cases decided during the era that intervened between Brown and Escobedo v. Illinois, 378 U. S. 478 [(1964)]." Schneckloth v. Bustamonte, 412 U. S. 218 , 223 (1973). See, e. g., Haynes v. Washington, 373 U. S. 503 (1963); Ashcraft v. Tennessee, 322 U. S. 143 (1944); Chambers v. Florida, 309 U. S. 227 (1940). Those cases refined the test into an inquiry that examines "whether a defendant's will was overborne" by the circumstances surrounding the giving of a confession. Schneckloth, 412 U. S., at 226. The due process test takes into consideration "the totality of all the surrounding circumstances-both the characteristics of the accused and the details of the interrogation." Ibid. See also Haynes, supra, at 513; Gallegos v. Colorado, 370 U. S. 49 , 55 (1962); Reck v. Pate, 367 U. S. 433 , 440 (1961) ("[A]ll the circumstances attendant upon the confession must be taken into account"); Malinski v. New York, 324 U. S. 401 , 404 (1945) ("If all the attendant circumstances indicate that the confession was coerced or compelled, it may not be used to convict a defendant"). The determination "depend[s] upon a weighing of the circumstances of pressure against the power of resistance of the person confessing." Stein v. New York, 346 U. S. 156, 185 (1953). We have never abandoned this due process jurisprudence, and thus continue to exclude confessions that were obtained involuntarily. But our decisions in Malloy v. Hogan, 378 U. S. 1 (1964), and Miranda changed the focus of much of the inquiry in determining the admissibility of suspects' incriminating statements. In Malloy, we held that the Fifth Amendment's Self-Incrimination Clause is incorporated in the Due Process Clause of the Fourteenth Amendment and thus applies to the States. 378 U. S., at 6-11. We decided Miranda on the heels of Malloy. In Miranda, we noted that the advent of modern custodial police interrogation brought with it an increased con- 435 cern about confessions obtained by coercion.1 384 U. S., at 445-458. Because custodial police interrogation, by its very nature, isolates and pressures the individual, we stated that "[e]ven without employing brutality, the 'third degree' or [other] specific stratagems, ... custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals." Id., at 455. We concluded that the coercion inherent in custodial interrogation blurs the line between voluntary and involuntary statements, and thus heightens the risk that an individual will not be "accorded his privilege under the Fifth Amendment ... not to be compelled to incriminate himself." Id., at 439. Accordingly, we laid down "concrete constitutional guidelines for law enforcement agencies and courts to follow." Id., at 442. Those guidelines established that the admissibility in evidence of any statement given during custodial interrogation of a suspect would depend on whether the police provided the suspect with four warnings. These warnings (which have come to be known colloquially as "Miranda rights") are: a suspect "has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Id., at 479. Two years after Miranda was decided, Congress enacted § 3501. That section provides, in relevant part: "(a) In any criminal prosecution brought by the United States or by the District of Columbia, a confession ... shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the trial 1 While our cases have long interpreted the Due Process and SelfIncrimination Clauses to require that a suspect be accorded a fair trial free from coerced testimony, our application of those Clauses to the context of custodial police interrogation is relatively recent because the routine practice of such interrogation is itself a relatively new development. See, e. g., Miranda, 384 U. S., at 445-458. 436 judge shall, out of the presence of the jury, determine any issue as to voluntariness. If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances. "(b) The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession, including (1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him, (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel; and (5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession. "The presence or absence of any of the abovementioned factors to be taken into consideration by the judge need not be conclusive on the issue of voluntariness of the confession." Given § 3501's express designation of voluntariness as the touchstone of admissibility, its omission of any warning requirement, and the instruction for trial courts to consider a nonexclusive list of factors relevant to the circumstances of a confession, we agree with the Court of Appeals that Congress intended by its enactment to overrule Miranda. See also Davis v. United States, 512 U. S. 452 , 464 (1994) (SCALIA, J., concurring) (stating that, prior to Miranda, 437 "voluntariness vel non was the touchstone of admissibility of confessions"). Because of the obvious conflict between our decision in Miranda and § 3501, we must address whether Congress has constitutional authority to thus supersede Miranda. If Congress has such authority, § 3501's totalityof-the-circumstances approach must prevail over Miranda's requirement of warnings; if not, that section must yield to Miranda's more specific requirements. The law in this area is clear. This Court has supervisory authority over the federal courts, and we may use that authority to prescribe rules of evidence and procedure that are binding in those tribunals. Carlisle v. United States, 517 U. S. 416 , 426 (1996). However, the power to judicially create and enforce nonconstitutional "rules of procedure and evidence for the federal courts exists only in the absence of a relevant Act of Congress." Palermo v. United States, 360 U. S. 343 , 353, n. 11 (1959) (citing Funk v. United States, 290 U. S. 371 , 382 (1933), and Gordon v. United States, 344 U. S. 414 , 418 (1953)). Congress retains the ultimate authority to modify or set aside any judicially created rules of evidence and procedure that are not required by the Constitution. Palermo, supra, at 345-348; Carlisle, supra, at 426; Vance v. Terrazas, 444 U. S. 252 , 265 (1980). But Congress may not legislatively supersede our decisions interpreting and applying the Constitution. See, e. g., City of Boerne v. Flores, 521 U. S. 507 , 517-521 (1997). This case therefore turns on whether the Miranda Court announced a constitutional rule or merely exercised its supervisory authority to regulate evidence in the absence of congressional direction. Recognizing this point, the Court of Appeals surveyed Miranda and its progeny to determine the constitutional status of the Miranda decision. 166 F. 3d, at 687-692. Relying on the fact that we have created several exceptions to Miranda's warnings requirement and that we have repeatedly referred to the Miranda warnings as "prophylactic," New York v. Quarles, 467 U. S. 649 , 653 438 (1984), and "not themselves rights protected by the Constitution," Michigan v. Tucker, 417 U. S. 433 , 444 (1974),2 the Court of Appeals concluded that the protections announced in Miranda are not constitutionally required. 166 F. 3d, at 687-690. We disagree with the Court of Appeals' conclusion, although we concede that there is language in some of our opinions that supports the view taken by that court. But first and foremost of the factors on the other side-that Miranda is a constitutional decision-is that both Miranda and two of its companion cases applied the rule to proceedings in state courts-to wit, Arizona, California, and New York. See 384 U. S., at 491-494, 497-499. Since that time, we have consistently applied Miranda's rule to prosecutions arising in state courts. See, e. g., Stansbury v. California, 511 U. S. 318 (1994) (per curiam); Minnick v. Mississippi, 498 U. S. 146 (1990); Arizona v. Roberson, 486 U. S. 675 (1988); Edwards v. Arizona, 451 U. S. 477 , 481-482 (1981). It is beyond dispute that we do not hold a supervisory power over the courts of the several States. Smith v. Phillips, 455 U. S. 209 , 221 (1982) ("Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension"); Cicenia v. Lagay, 357 U. S. 504 , 508-509 (1958). With respect to proceedings in state courts, our "authority is limited to enforcing the commands of the United States Constitution." Mu'Min v. Virginia, 500 U. S. 415 , 422 (1991). See also Harris v. Rivera, 454 U. S. 339 , 344-345 (1981) (per curiam) (stating that "[f]ederal judges ... may not require the ob- 2 See also Davis v. United States, 512 U. S. 452 , 457-458 (1994); Withrow v. Williams, 507 U. S. 680 , 690-691 (1993) ("Miranda's safeguards are not constitutional in character"); Duckworth v. Eagan, 492 U. S. 195 , 203 (1989); Connecticut v. Barrett, 479 U. S. 523 , 528 (1987) ("[T]he Miranda Court adopted prophylactic rules designed to insulate the exercise of Fifth Amendment rights"); Oregon v. Elstad, 470 U. S. 298 , 306 (1985); Edwards v. Arizona, 451 U. S. 477 , 492 (1981) (Powell, J., concurring in result). 439 servance of any special procedures" in state courts "except when necessary to assure compliance with the dictates of the Federal Constitution").3 The Miranda opinion itself begins by stating that the Court granted certiorari "to explore some facets of the problems ... of applying the privilege against self-incrimination to in-custody interrogation, and to give concrete constitutional guidelines for law enforcement agencies and courts to follow." 384 U. S., at 441-442 (emphasis added). In fact, the majority opinion is replete with statements indicating that the majority thought it was announcing a constitutional rule.4 Indeed, the Court's ultimate conclusion was that the 3 Our conclusion regarding Miranda's constitutional basis is further buttressed by the fact that we have allowed prisoners to bring alleged Miranda violations before the federal courts in habeas corpus proceedings. See Thompson v. Keohane, 516 U. S. 99 (1995); Withrow, supra, at 690-695. Habeas corpus proceedings are available only for claims that a person "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U. S. C. §2254(a). Since the Miranda rule is clearly not based on federal laws or treaties, our decision allowing habeas review for Miranda claims obviously assumes that Miranda is of constitutional origin. 4 See 384 U. S., at 445 ("The constitutional issue we decide in each of these cases is the admissibility of statements obtained from a defendant questioned while in custody"), 457 (stating that the Miranda Court was concerned with "adequate safeguards to protect precious Fifth Amendment rights"), 458 (examining the "history and precedent underlying the Self-Incrimination Clause to determine its applicability in this situation"), 476 ("The requirement of warnings and waiver ofrights is ... fundamental with respect to the Fifth Amendment privilege and not simply a preliminary ritual to existing methods of interrogation"), 479 ("The whole thrust of our foregoing discussion demonstrates that the Constitution has prescribed the rights of the individual when confronted with the power of government when it provided in the Fifth Amendment that an individual cannot be compelled to be a witness against himself"), 481, n. 52 (stating that the Court dealt with "constitutional standards in relation to statements made"), 490 ("[T]he issues presented are of constitutional dimensions and must be determined by the courts"), 489 (stating that the Miranda Court was dealing "with rights grounded in a specific requirement of the Fifth Amendment of the Constitution"). 440 unwarned confessions obtained in the four cases before the Court in Miranda "were obtained from the defendant under circumstances that did not meet constitutional standards for protection of the privilege." 5 Id., at 491. Additional support for our conclusion that Miranda is constitutionally based is found in the Miranda Court's invitation for legislative action to protect the constitutional right against coerced self-incrimination. After discussing the "compelling pressures" inherent in custodial police interrogation, the Miranda Court concluded that, "[i]n order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored." Id., at 467. However, the Court emphasized that it could not foresee "the potential alternatives for protecting the privilege which might be devised by Congress or the States," and it accordingly opined that the Constitution would not preclude legislative solutions that differed from the prescribed Mi randa warnings but which were "at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it." 6 Ibid. 5 Many of our subsequent cases have also referred to Miranda's constitutional underpinnings. See, e. g., Withrow, supra, at 691 (" 'Prophylactic' though it may be, in protecting a defendant's Fifth Amendment privilege against self-incrimination, Miranda safeguards a 'fundamental trial right' "); Illinois v. Perkins, 496 U. S. 292 , 296 (1990) (describing Miranda's warning requirement as resting on "the Fifth Amendment privilege against self-incrimination"); Butler v. McKellar, 494 U. S. 407 , 411 (1990) ("[T]he Fifth Amendment bars police-initiated interrogation following a suspect's request for counsel in the context of a separate investigation"); Michigan v. Jackson, 475 U. S. 625 , 629 (1986) ("The Fifth Amendment protection against compelled self-incrimination provides the right to counsel at custodial interrogations"); Moran v. Burbine, 475 U. S. 412 , 427 (1986) (referring to Miranda as "our interpretation of the Federal Constitution"); Edwards, supra, at 481-482. 6 The Court of Appeals relied in part on our statement that the Miranda decision in no way "creates a 'constitutional straightjacket.''' See 166 F.3d 667 , 672 (CA4 1999) (quoting Miranda, 384 U. S., at 467). However, a 441 The Court of Appeals also relied on the fact that we have, after our Miranda decision, made exceptions from its rule in cases such as New York v. Quarles, 467 U. S. 649 (1984), and Harris v. New York, 401 U. S. 222 (1971). See 166 F. 3d, at 672, 689-691. But we have also broadened the application of the Miranda doctrine in cases such as Doyle v. Ohio, 426 U. S. 610 (1976), and Arizona v. Roberson, 486 U. S. 675 (1988). These decisions illustrate the principle-not that Miranda is not a constitutional rule-but that no constitutional rule is immutable. No court laying down a general rule can possibly foresee the various circumstances in which counsel will seek to apply it, and the sort of modifications represented by these cases are as much a normal part of constitutional law as the original decision. The Court of Appeals also noted that in Oregon v. Elstad, 470 U. S. 298 (1985), we stated that" '[t]he Miranda exclusionary rule ... serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself.'" 166 F. 3d, at 690 (quoting Elstad, supra, at 306). Our decision in that case-refusing to apply the traditional "fruits" doctrine developed in Fourth Amendment cases-does not prove that Miranda is a nonconstitutional decision, but simply recognizes the fact that unreasonable searches under the Fourth Amendment are different from unwarned interrogation under the Fifth Amendment. As an alternative argument for sustaining the Court of Appeals' decision, the court-invited amicus curiae 7 contends that the section complies with the requirement that a legislative alternative to Miranda be equally as effective in preventing coerced confessions. See Brief for Paul G. Cassell review of our opinion in Miranda clarifies that this disclaimer was intended to indicate that the Constitution does not require police to administer the particular Miranda warnings, not that the Constitution does not require a procedure that is effective in securing Fifth Amendment rights. 7 Because no party to the underlying litigation argued in favor of § 3501's constitutionality in this Court, we invited Professor Paul Cassell to assist our deliberations by arguing in support of the judgment below. 442 as Amicus Curiae 28-39. We agree with the amicus' contention that there are more remedies available for abusive police conduct than there were at the time Miranda was decided, see, e. g., Wilkins v. May, 872 F.2d 190 , 194 (CA71989) (applying Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), to hold that a suspect may bring a federal cause of action under the Due Process Clause for police misconduct during custodial interrogation). But we do not agree that these additional measures supplement § 3501's protections sufficiently to meet the constitutional minimum. Miranda requires procedures that will warn a suspect in custody of his right to remain silent and which will assure the suspect that the exercise of that right will be honored. See, e. g., 384 U. S., at 467. As discussed above, § 3501 explicitly eschews a requirement of preinterrogation warnings in favor of an approach that looks to the administration of such warnings as only one factor in determining the voluntariness of a suspect's confession. The additional remedies cited by amicus do not, in our view, render them, together with § 3501, an adequate substitute for the warnings required by Miranda. The dissent argues that it is judicial overreaching for this Court to hold § 3501 unconstitutional unless we hold that the Miranda warnings are required by the Constitution, in the sense that nothing else will suffice to satisfy constitutional requirements. Post, at 453-454, 465 (opinion of SCALIA, J.). But we need not go further than Miranda to decide this case. In Miranda, the Court noted that reliance on the traditional totality-of-the-circumstances test raised a risk of overlooking an involuntary custodial confession, 384 U. S, at 457, a risk that the Court found unacceptably great when the confession is offered in the case in chief to prove guilt. The Court therefore concluded that something more than the totality test was necessary. See ibid.; see also id., at 467, 490-491. As discussed above, § 3501 reinstates the totality test as 443 sufficient. Section 3501 therefore cannot be sustained if Miranda is to remain the law. Whether or not we would agree with Miranda's reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now. See, e. g., Rhode Island v. Innis, 446 U. S. 291 , 304 (1980) (Burger, C. J., concurring in judgment) ("The meaning of Miranda has become reasonably clear and law enforcement practices have adjusted to its strictures; I would neither overrule Miranda, disparage it, nor extend it at this late date"). While" 'stare decisis is not an inexorable command,'" State Oil Co. v. Khan, 522 U. S. 3, 20 (1997) (quoting Payne v. Tennessee, 501 U. S. 808 , 828 (1991)), particularly when we are interpreting the Constitution, Agostini v. Felton, 521 U. S. 203 , 235 (1997), "even in constitutional cases, the doctrine carries such persuasive force that we have always required a departure from precedent to be supported by some 'special justification.'" United States v. International Business Machines Corp., 517 U. S. 843 , 856 (1996) (quoting Payne, supra, at 842 (SouTER, J., concurring), in turn quoting Arizona v. Rumsey, 467 U. S. 203, 212 (1984)). We do not think there is such justification for overruling Miranda. Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture. See Mitchell v. United States, 526 U. S. 314, 331-332 (1999) (SCALIA, J., dissenting) (stating that the fact that a rule has found "'wide acceptance in the legal culture'" is "adequate reason not to overrule" it). While we have overruled our precedents when subsequent cases have undermined their doctrinal underpinnings, see, e. g., Patterson v. McLean Credit Union, 491 U. S. 164 , 173 (1989), we do not believe that this has happened to the Miranda decision. If anything, our subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement while reaffirming the decision's core ruling that unwarned 444 statements may not be used as evidence in the prosecution's case in chief. The disadvantage of the Miranda rule is that statements which may be by no means involuntary, made by a defendant who is aware of his "rights," may nonetheless be excluded and a guilty defendant go free as a result. But experience suggests that the totality-of-the-circumstances test which § 3501 seeks to revive is more difficult than Miranda for law enforcement officers to conform to, and for courts to apply in a consistent manner. See, e. g., Haynes v. Washington, 373 U. S., at 515 ("The line between proper and permissible police conduct and techniques and methods offensive to due process is, at best, a difficult one to draw"). The requirement that Miranda warnings be given does not, of course, dispense with the voluntariness inquiry. But as we said in Berkemer v. McCarty, 468 U. S. 420 (1984), "[c]ases in which a defendant can make a colorable argument that a self-incriminating statement was 'compelled' despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare." Id., at 433, n. 20. In sum, we conclude that Miranda announced a constitutional rule that Congress may not supersede legislatively. Following the rule of stare decisis, we decline to overrule Miranda ourselves.8 The judgment of the Court of Appeals is therefore Reversed. JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting. Those to whom judicial decisions are an unconnected series of judgments that produce either favored or disfa- 8 Various other contentions and suggestions have been pressed by the numerous amici, but because of the procedural posture of this case we do not think it appropriate to consider them. See United Parcel Service, Inc. v. Mitchell, 451 U. S. 56 , 60, n. 2 (1981); Bell v. Wolfish, 441 U. S. 520 , 531-532, n. 13 (1979); Knetsch v. United States, 364 U. S. 361 , 370 (1960). 445 vored results will doubtless greet today's decision as a paragon of moderation, since it declines to overrule Miranda v. Arizona, 384 U. S. 436 (1966). Those who understand the judicial process will appreciate that today's decision is not a reaffirmation of Miranda, but a radical revision of the most significant element of Miranda (as of all cases): the rationale that gives it a permanent place in our jurisprudence. Marbury v. Madison, 1 Cranch 137 (1803), held that an Act of Congress will not be enforced by the courts if what it prescribes violates the Constitution of the United States. That was the basis on which Miranda was decided. One will search today's opinion in vain, however, for a statement (surely simple enough to make) that what 18 U. S. C. § 3501 prescribes-the use at trial of a voluntary confession, even when a Miranda warning or its equivalent has failed to be given-violates the Constitution. The reason the statement does not appear is not only (and perhaps not so much) that it would be absurd, inasmuch as § 3501 excludes from trial precisely what the Constitution excludes from trial, viz., compelled confessions; but also that Justices whose votes are needed to compose today's majority are on record as believing that a violation of Miranda is not a violation of the Constitution. See Davis v. United States, 512 U. S. 452 , 457-458 (1994) (opinion of the Court, in which KENNEDY, J., joined); Duckworth v. Eagan, 492 U. S. 195 , 203 (1989) (opinion of the Court, in which KENNEDY, J., joined); Oregon v. Elstad, 470 U. S. 298 (1985) (opinion of the Court by O'CONNOR, J.); New York v. Quarles, 467 U. S. 649 (1984) (opinion of the Court by REHNQUIST, J.). And so, to justify today's agreed-upon result, the Court must adopt a significant new, if not entirely comprehensible, principle of constitutional law. As the Court chooses to describe that principle, statutes of Congress can be disregarded, not only when what they prescribe violates the Constitution, but when what they prescribe contradicts a decision of this Court that "announced a constitutional rule," ante, at 437. As I shall discuss in some 446 detail, the only thing that can possibly mean in the context of this case is that this Court has the power, not merely to apply the Constitution but to expand it, imposing what it regards as useful "prophylactic" restrictions upon Congress and the States. That is an immense and frightening antidemocratic power, and it does not exist. It takes only a small step to bring to day's opinion out of the realm of power-judging and into the mainstream of legal reasoning: The Court need only go beyond its carefully couched iterations that "Miranda is a constitutional decision," ante, at 438, that "Miranda is constitutionally based," ante, at 440, that Miranda has "constitutional underpinnings," ante, at 440, n. 5, and come out and say quite clearly: "We reaffirm today that custodial interrogation that is not preceded by Miranda warnings or their equivalent violates the Constitution of the United States." It cannot say that, because a majority of the Court does not believe it. The Court therefore acts in plain violation of the Constitution when it denies effect to this Act of Congress. I Early in this Nation's history, this Court established the sound proposition that constitutional government in a system of separated powers requires judges to regard as inoperative any legislative Act, even of Congress itself, that is "repugnant to the Constitution." "So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case." Marbury, supra, at 178. The power we recognized in Marbury will thus permit us, indeed require us, to "disregar[d]" § 3501, a duly enacted 447 statute governing the admissibility of evidence in the federal courts, only if it "be in opposition to the constitution"-here, assertedly, the dictates of the Fifth Amendment. It was once possible to characterize the so-called Miranda rule as resting (however implausibly) upon the proposition that what the statute here before us permits-the admission at trial of un-Mirandized confessions-violates the Constitution. That is the fairest reading of the Miranda case itself. The Court began by announcing that the Fifth Amendment privilege against self-incrimination applied in the context of extrajudicial custodial interrogation, see 384 U. S., at 460467-itself a doubtful proposition as a matter both of history and precedent, see id., at 510-511 (Harlan, J., dissenting) (characterizing the Court's conclusion that the Fifth Amendment privilege, rather than the Due Process Clause, governed station house confessions as a "trompe l'oeil"). Having extended the privilege into the confines of the station house, the Court liberally sprinkled throughout its sprawling 60-page opinion suggestions that, because of the compulsion inherent in custodial interrogation, the privilege was violated by any statement thus obtained that did not conform to the rules set forth in Miranda, or some functional equivalent. See id., at 458 ("Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice" (emphases added)); id., at 461 ("An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described above cannot be otherwise than under compulsion to speak"); id., at 467 ("We have concluded that without proper safeguards the process of in-custody interrogation ... contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely"); id., at 457, n. 26 (noting 448 the "absurdity of denying that a confession obtained under these circumstances is compelled"). The dissenters, for their part, also understood Miranda's holding to be based on the "premise ... that pressure on the suspect must be eliminated though it be only the subtle influence of the atmosphere and surroundings." Id., at 512 (Harlan, J., dissenting). See also id., at 535 (White, J., dissenting) ("[I]t has never been suggested, until today, that such questioning was so coercive and accused persons so lacking in hardihood that the very first response to the very first question following the commencement of custody must be conclusively presumed to be the product of an overborne will"). And at least one case decided shortly after Miranda explicitly confirmed the view. See Orozco v. Texas, 394 U. S. 324 , 326 (1969) ("[T]he use of these admissions obtained in the absence of the required warnings was a flat violation of the Self-Incrimination Clause of the Fifth Amendment as construed in Miranda"). So understood, Miranda was objectionable for innumerable reasons, not least the fact that cases spanning more than 70 years had rejected its core premise that, absent the warnings and an effective waiver of the right to remain silent and of the (thitherto unknown) right to have an attorney present, a statement obtained pursuant to custodial interrogation was necessarily the product of compulsion. See Crooker v. California, 357 U. S. 433 (1958) (confession not involuntary despite denial of access to counsel); Cicenia v. Lagay, 357 U. S. 504 (1958) (same); Powers v. United States, 223 U. S. 303 (1912) (lack of warnings and counsel did not render statement before United States Commissioner involuntary); Wilson v. United States, 162 U. S. 613 (1896) (same). Moreover, history and precedent aside, the decision in Miranda, if read as an explication of what the Constitution requires, is preposterous. There is, for example, simply no basis in reason for concluding that a response to the very first question asked, by a suspect who already knows all of the rights de- 449 scribed in the Miranda warning, is anything other than a volitional act. See Miranda, supra, at 533-534 (White, J., dissenting). And even if one assumes that the elimination of compulsion absolutely requires informing even the most knowledgeable suspect of his right to remain silent, it cannot conceivably require the right to have counsel present. There is a world of difference, which the Court recognized under the traditional voluntariness test but ignored in Mi randa, between compelling a suspect to incriminate himself and preventing him from foolishly doing so of his own accord. Only the latter (which is not required by the Constitution) could explain the Court's inclusion of a right to counsel and the requirement that it, too, be knowingly and intelligently waived. Counsel's presence is not required to tell the suspect that he need not speak; the interrogators can do that. The only good reason for having counsel there is that he can be counted on to advise the suspect that he should not speak. See Watts v. Indiana, 338 U. S. 49 , 59 (1949) (Jackson, J., concurring in result in part and dissenting in part) ("[A]ny lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances"). Preventing foolish (rather than compelled) confessions is likewise the only conceivable basis for the rules (suggested in Miranda, see 384 U. S., at 444-445, 473-474), that courts must exclude any confession elicited by questioning conducted, without interruption, after the suspect has indicated a desire to stand on his right to remain silent, see Michigan v. Mosley, 423 U. S. 96 , 105-106 (1975), or initiated by police after the suspect has expressed a desire to have counsel present, see Edwards v. Arizona, 451 U. S. 477 , 484485 (1981). Nonthreatening attempts to persuade the suspect to reconsider that initial decision are not, without more, enough to render a change of heart the product of anything other than the suspect's free will. Thus, what is most remarkable about the Miranda decision-and what 450 made it unacceptable as a matter of straightforward constitutional interpretation in the Marbury tradition-is its palpable hostility toward the act of confession per se, rather than toward what the Constitution abhors, compelled confession. See United States v. Washington, 431 U. S. 181 , 187 (1977) ("[F]ar from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable"). The Constitution is not, unlike the Miranda majority, offended by a criminal's commendable qualm of conscience or fortunate fit of stupidity. Cf. Minnick v. Mississippi, 498 U. S. 146 , 166-167 (1990) (SCALIA, J., dissenting). For these reasons, and others more than adequately developed in the Miranda dissents and in the subsequent works of the decision's many critics, any conclusion that a violation of the Miranda rules necessarily amounts to a violation of the privilege against compelled self-incrimination can claim no support in history, precedent, or common sense, and as a result would at least presumptively be worth reconsidering even at this late date. But that is unnecessary, since the Court has (thankfully) long since abandoned the notion that failure to comply with Miranda's rules is itself a violation of the Constitution. II As the Court today acknowledges, since Miranda we have explicitly, and repeatedly, interpreted that decision as having announced, not the circumstances in which custodial interrogation runs afoul of the Fifth or Fourteenth Amendment, but rather only "prophylactic" rules that go beyond the right against compelled self-incrimination. Of course the seeds of this "prophylactic" interpretation of Miranda were present in the decision itself. See Miranda, 384 U. S., at 439 (discussing the "necessity for procedures which assure that the [suspect] is accorded his privilege"); id., at 447 ("[u]nless a proper limitation upon custodial interrogation is achievedsuch as these decisions will advance-there can be no as sur- 451 ance that practices of this nature will be eradicated"); id., at 457 ("[i]n these cases, we might not find the defendants' statements to have been involuntary in traditional terms"); ibid. (noting "concern for adequate safeguards to protect precious Fifth Amendment rights" and the "potentiality for compulsion" in Ernesto Miranda's interrogation). In subsequent cases, the seeds have sprouted and borne fruit: The Court has squarely concluded that it is possible-indeed not uncommon-for the police to violate Miranda without also violating the Constitution. Michigan v. Tucker, 417 U. S. 433 (1974), an opinion for the Court written by then-JusTIcE REHNQUIST, rejected the true-to- Marbury, failure-to- warn-as-constitutional- violation interpretation of Miranda. It held that exclusion of the "fruits" of a Miranda violation-the statement of a witness whose identity the defendant had revealed while in custody-was not required. The opinion explained that the question whether the "police conduct complained of directly infringed upon respondent's right against compulsory selfincrimination" was a "separate question" from "whether it instead violated only the prophylactic rules developed to protect that right." 417 U. S., at 439. The "procedural safeguards" adopted in Miranda, the Court said, "were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected," and to "provide practical reinforcement for the right," 417 U. S., at 444. Comparing the particular facts of the custodial interrogation with the "historical circumstances underlying the privilege," ibid., the Court concluded, unequivocally, that the defendant's statement could not be termed "involuntary as that term has been defined in the decisions of this Court," id., at 445, and thus that there had been no constitutional violation, notwithstanding the clear violation of the "procedural rules later established in Miranda," ibid. Lest there be any confusion on the point, the Court reiterated that the "police conduct at 452 issue here did not abridge respondent's constitutional privilege against compulsory self-incrimination, but departed only from the prophylactic standards later laid down by this Court in Miranda to safeguard that privilege." Id., at 446. It is clear from our cases, of course, that if the statement in Tucker had been obtained in violation of the Fifth Amendment, the statement and its fruits would have been excluded. See Nix v. Williams, 467 U. S. 431 , 442 (1984). The next year, in Oregon v. Hass, 420 U. S. 714 (1975), the Court held that a defendant's statement taken in violation of Miranda that was nonetheless voluntary could be used at trial for impeachment purposes. This holding turned upon the recognition that violation of Miranda is not unconstitutional compulsion, since statements obtained in actual violation of the privilege against compelled self-incrimination, "as opposed to ... taken in violation of Miranda," quite simply "may not be put to any testimonial use whatever against [the defendant] in a criminal trial," including as impeachment evidence. New Jersey v. Portash, 440 U. S. 450 , 459 (1979). See also Mincey v. Arizona, 437 U. S. 385 , 397398 (1978) (holding that while statements obtained in violation of Miranda may be used for impeachment if otherwise trustworthy, the Constitution prohibits "any criminal trial use against a defendant of his involuntary statement"). Nearly a decade later, in New York v. Quarles, 467 U. S. 649 (1984), the Court relied upon the fact that "[t]he prophylactic Miranda warnings ... are 'not themselves rights protected by the Constitution,'" id., at 654 (quoting Tucker, supra, at 444), to create a "public safety" exception. In that case, police apprehended, after a chase in a grocery store, a rape suspect known to be carrying a gun. After handcuffing and searching him (and finding no gun)-but before reading him his Miranda warnings-the police demanded to know where the gun was. The defendant nodded in the direction of some empty cartons and responded that "the gun is over there." The Court held that both the unwarned 453 statement-"the gun is over there"-and the recovered weapon were admissible in the prosecution's case in chief under a "public safety exception" to the "prophylactic rules enunciated in Miranda." 467 U. S., at 653. It explicitly acknowledged that if the Miranda warnings were an imperative of the Fifth Amendment itself, such an exigency exception would be impossible, since the Fifth Amendment's bar on compelled self-incrimination is absolute, and its " 'strictures, unlike the Fourth's are not removed by showing reasonableness,'" 467 U. S., at 653, n. 3. (For the latter reason, the Court found it necessary to note that respondent did not "claim that [his] statements were actually compelled by police conduct which overcame his will to resist," id., at 654.) The next year, the Court again declined to apply the "fruit of the poisonous tree" doctrine to a Miranda violation, this time allowing the admission of a suspect's properly warned statement even though it had been preceded (and, arguably, induced) by an earlier inculpatory statement taken in violation of Miranda. Oregon v. Elstad, 470 U. S. 298 (1985). As in Tucker, the Court distinguished the case from those holding that a confession obtained as a result of an unconstitutional search is inadmissible, on the ground that the violation of Miranda does not involve an "actual infringement of the suspect's constitutional rights," 470 U. S., at 308. Miranda, the Court explained, "sweeps more broadly than the Fifth Amendment itself," and "Miranda's preventive medicine provides a remedy even to the defendant who has suffered no identifiable constitutional harm." 470 U. S., at 306-307. "[E]rrors [that] are made by law enforcement officers in administering the prophylactic Miranda procedures ... should not breed the same irremediable consequences as police infringement of the Fifth Amendment itself." Id., at 308-309. In light of these cases, and our statements to the same effect in others, see, e. g., Davis v. United States, 512 U. S., at 457-458; Withrow v. Williams, 507 U. S. 680 , 690-691 (1993); 454 Eagan, 492 U. S., at 203, it is simply no longer possible for the Court to conclude, even if it wanted to, that a violation of Miranda's rules is a violation of the Constitution. But as I explained at the outset, that is what is required before the Court may disregard a law of Congress governing the admissibility of evidence in federal court. The Court today insists that the decision in Miranda is a "constitutional" one, ante, at 432, 438; that it has "constitutional underpinnings," ante, at 440, n. 5; a "constitutional basis" and a "constitutional origin," ante, at 439, n. 3; that it was "constitutionally based," ante, at 440; and that it announced a "constitutional rule," ante, at 437, 439, 441, 444. It is fine to play these word games; but what makes a decision "constitutional" in the only sense relevant here-in the sense that renders it impervious to supersession by congressional legislation such as § 3501is the determination that the Constitution requires the result that the decision announces and the statute ignores. By disregarding congressional action that concededly does not violate the Constitution, the Court flagrantly offends fundamental principles of separation of powers, and arrogates to itself prerogatives reserved to the representatives of the people. The Court seeks to avoid this conclusion in two ways: First, by misdescribing these post-Miranda cases as mere dicta. The Court concedes only "that there is language in some of our opinions that supports the view" that Miranda's protections are not "constitutionally required." Ante, at 438. It is not a matter of language; it is a matter of holdings. The proposition that failure to comply with Miranda's rules does not establish a constitutional violation was central to the holdings of Tucker, Hass, Quarles, and Elstad. The second way the Court seeks to avoid the impact of these cases is simply to disclaim responsibility for reasoned decisionmaking. It says: "These decisions illustrate the principle-not that Mi randa is not a constitutional rule-but that no constitutional rule is immutable. No court laying down a gen- 455 eral rule can possibly foresee the various circumstances in which counsel will seek to apply it, and the sort of modifications represented by these cases are as much a normal part of constitutional law as the original decision." Ante, at 441. The issue, however, is not whether court rules are "mutable"; they assuredly are. It is not whether, in the light of "various circumstances," they can be "modifi[ed]"; they assuredly can. The issue is whether, as mutated and modified, they must make sense. The requirement that they do so is the only thing that prevents this Court from being some sort of nine-headed Caesar, giving thumbs-up or thumbs-down to whatever outcome, case by case, suits or offends its collective fancy. And if confessions procured in violation of Miranda are confessions "compelled" in violation of the Constitution, the post-Miranda decisions I have discussed do not make sense. The only reasoned basis for their outcome was that a violation of Miranda is not a violation of the Constitution. If, for example, as the Court acknowledges was the holding of Elstad, "the traditional 'fruits' doctrine developed in Fourth Amendment cases" (that the fruits of evidence obtained unconstitutionally must be excluded from trial) does not apply to the fruits of Miranda violations, ante, at 441; and if the reason for the difference is not that Miranda violations are not constitutional violations (which is plainly and flatly what Elstad said); then the Court must come up with some other explanation for the difference. (That will take quite a bit of doing, by the way, since it is not clear on the face of the Fourth Amendment that evidence obtained in violation of that guarantee must be excluded from trial, whereas it is clear on the face of the Fifth Amendment that unconstitutionally compelled confessions cannot be used.) To say simply that "unreasonable searches under the Fourth Amendment are different from unwarned interrogation under the Fifth Amendment," ante, at 441, is true but supremely unhelpful. 456 Finally, the Court asserts that Miranda must be a "constitutional decision" announcing a "constitutional rule," and thus immune to congressional modification, because we have since its inception applied it to the States. If this argument is meant as an invocation of stare decisis, it fails because, though it is true that our cases applying Miranda against the States must be reconsidered if Miranda is not required by the Constitution, it is likewise true that our cases (discussed above) based on the principle that Miranda is not required by the Constitution will have to be reconsidered if it is. So the stare decisis argument is a wash. If, on the other hand, the argument is meant as an appeal to logic rather than stare decisis, it is a classic example of begging the question: Congress's attempt to set aside Miranda, since it represents an assertion that violation of Miranda is not a violation of the Constitution, also represents an assertion that the Court has no power to impose Miranda on the States. To answer this assertion-not by showing why violation of Miranda is a violation of the Constitution-but by asserting that Miranda does apply against the States, is to assume precisely the point at issue. In my view, our continued application of the Miranda code to the States despite our consistent statements that running afoul of its dictates does not necessarily-or even usually-result in an actual constitutional violation, represents not the source of Mi randa's salvation but rather evidence of its ultimate illegitimacy. See generally J. Grano, Confessions, Truth, and the Law 173-198 (1993); Grano, Prophylactic Rules in Criminal Procedure: A Question of Article III Legitimacy, 80 Nw. U. L. Rev. 100 (1985). As JUSTICE STEVENS has elsewhere explained: "This Court's power to require state courts to exclude probative self-incriminatory statements rests entirely on the premise that the use of such evidence violates the Federal Constitution .... If the Court does not accept that premise, it must regard the holding in the Miranda case itself, as well as all of the federal jurisprudence that has 457 evolved from that decision, as nothing more than an illegitimate exercise of raw judicial power." Elstad, 470 U. S., at 370 (dissenting opinion). Quite so. III There was available to the Court a means of reconciling the established proposition that a violation of Miranda does not itself offend the Fifth Amendment with the Court's assertion of a right to ignore the present statute. That means of reconciliation was argued strenuously by both petitioner and the United States, who were evidently more concerned than the Court is with maintaining the coherence of our jurisprudence. It is not mentioned in the Court's opinion because, I assume, a majority of the Justices intent on reversing believes that incoherence is the lesser evil. They may be right. Petitioner and the United States contend that there is nothing at all exceptional, much less unconstitutional, about the Court's adopting prophylactic rules to buttress constitutional rights, and enforcing them against Congress and the States. Indeed, the United States argues that "[p]rophylactic rules are now and have been for many years a feature of this Court's constitutional adjudication." Brief for United States 47. That statement is not wholly inaccurate, if by "many years" one means since the mid-1960's. However, in their zeal to validate what is in my view a lawless practice, the United States and petitioner greatly overstate the frequency with which we have engaged in it. For instance, petitioner cites several cases in which the Court quite simply exercised its traditional judicial power to define the scope of constitutional protections and, relate diy, the circumstances in which they are violated. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 , 436-437 (1982) (holding that a permanent physical occupation constitutes a per se taking); Maine v. Moulton, 474 U. S. 159 , 176 (1985) (holding that the Sixth Amendment right to the assist- 458 ance of counsel is actually "violated when the State obtains incriminating statements by knowingly circumventing the accused's right to have counsel present in a confrontation between the accused and a state agent"). Similarly unsupportive of the supposed practice is Bruton v. United States, 391 U. S. 123 (1968), where we concluded that the Confrontation Clause of the Sixth Amendment forbids the admission of a nontestifying codefendant's facially incriminating confession in a joint trial, even where the jury has been given a limiting instruction. That decision was based, not upon the theory that this was desirable protection "beyond" what the Confrontation Clause technically required; but rather upon the self-evident proposition that the inability to cross-examine an available witness whose damaging out-of-court testimony is introduced violates the Confrontation Clause, combined with the conclusion that in these circumstances a mere jury instruction can never be relied upon to prevent the testimony from being damaging, see Richardson v. Marsh, 481 U. S. 200 , 207-208 (1987). The United States also relies on our cases involving the question whether a State's procedure for appointed counsel's withdrawal of representation on appeal satisfies the State's constitutional obligation to "'affor[d] adequate and effective appellate review to indigent defendants.'" Smith v. Robbins, 528 U. S. 259 , 276 (2000) (quoting Griffin v. Illinois, 351 U. S. 12, 20 (1956)). In Anders v. California, 386 U. S. 738 (1967), we concluded that California's procedure governing withdrawal fell short of the constitutional minimum, and we outlined a procedure that would meet that standard. But as we made clear earlier this Term in Smith, which upheld a procedure different from the one Anders suggested, the benchmark of constitutionality is the constitutional requirement of adequate representation, and not some excrescence upon that requirement decreed, for safety's sake, by this Court. 459 In a footnote, the United States directs our attention to certain overprotective First Amendment rules that we have adopted to ensure "breathing space" for expression. See Gertz v. Robert Welch, Inc., 418 U. S. 323 , 340, 342 (1974) (recognizing that in New York Times Co. v. Sullivan, 376 U. S. 254 (1964), we "extended a measure of strategic protection to defamatory falsehood" of public officials); Freedman v. Maryland, 380 U. S. 51 , 58 (1965) (setting forth "procedural safeguards designed to obviate the dangers of a censorship system" with respect to motion picture obscenity). In these cases, and others involving the First Amendment, the Court has acknowledged that in order to guarantee that protected speech is not "chilled" and thus forgone, it is in some instances necessary to incorporate in our substantive rules a "measure of strategic protection." But that is because the Court has viewed the importation of "chill" as itself a violation of the First Amendment-not because the Court thought it could go beyond what the First Amendment demanded in order to provide some prophylaxis. Petitioner and the United States are right on target, however, in characterizing the Court's actions in a case decided within a few years of Miranda, North Carolina v. Pearce, 395 U. S. 711 (1969). There, the Court concluded that due process would be offended were a judge vindictively to resentence with added severity a defendant who had successfully appealed his original conviction. Rather than simply announce that vindictive sentencing violates the Due Process Clause, the Court went on to hold that "[i]n order to assure the absence of such a [vindictive] motivation, ... the reasons for [imposing the increased sentence] must affirmatively appear" and must "be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." Id., at 726. The Court later explicitly acknowledged Pearce's prophylactic character, see Michigan v. Payne, 412 U. S. 47 , 53 (1973). It is true, therefore, that the 460 case exhibits the same fundamental flaw as does Miranda when deprived (as it has been) of its original (implausible) pretension to announcement of what the Constitution itself required. That is, although the Due Process Clause may well prohibit punishment based on judicial vindictiveness, the Constitution by no means vests in the courts "any general power to prescribe particular devices 'in order to assure the absence of such a motivation,'" 395 U. S., at 741 (Black, J., dissenting). Justice Black surely had the right idea when he derided the Court's requirement as "pure legislation if there ever was legislation," ibid., although in truth Pearce's rule pales as a legislative achievement when compared to the detailed code promulgated in Miranda. 1 The foregoing demonstrates that, petitioner's and the United States' suggestions to the contrary notwithstanding, what the Court did in Miranda (assuming, as later cases hold, that Miranda went beyond what the Constitution actually requires) is in fact extraordinary. That the Court has, on rare and recent occasion, repeated the mistake does not transform error into truth, but illustrates the potential for future mischief that the error entails. Where the Constitution has wished to lodge in one of the branches of the Federal Government some limited power to supplement its guarantees, it has said so. See Arndt. 14, § 5 ("The Congress shall have power to enforce, by appropriate legislation, the provisions of this article"). The power with which the Court would endow itself under a "prophylactic" justification for Miranda goes far beyond what it has permitted Congress to do under authority of that text. Whereas we have in- 1 As for Michigan v. Jackson, 475 U. S. 625 (1986), upon which petitioner and the United States also rely, in that case we extended to the Sixth Amendment, postindictment, context the Miranda-based prophylactic rule of Edwards v. Arizona, 451 U. S. 477 (1981), that the police cannot initiate interrogation after counsel has been requested. I think it less a separate instance of claimed judicial power to impose constitutional prophylaxis than a direct, logic-driven consequence of Miranda itself. 461 sisted that congressional action under § 5 of the Fourteenth Amendment must be "congruent" with, and "proportional" to, a constitutional violation, see City of Boerne v. Flores, 521 U. S. 507 , 520 (1997), the Miranda nontextual power to embellish confers authority to prescribe preventive measures against not only constitutionally prohibited compelled confessions, but also (as discussed earlier) foolhardy ones. I applaud, therefore, the refusal of the Justices in the majority to enunciate this boundless doctrine of judicial empowerment as a means of rendering to day's decision rational. In nonetheless joining the Court's judgment, however, they overlook two truisms: that actions speak louder than silence, and that (in judge-made law at least) logic will out. Since there is in fact no other principle that can reconcile to day's judgment with the post-Miranda cases that the Court refuses to abandon, what today's decision will stand for, whether the Justices can bring themselves to say it or not, is the power of the Supreme Court to write a prophylactic, extraconstitutional Constitution, binding on Congress and the States. IV Thus, while I agree with the Court that § 3501 cannot be upheld without also concluding that Miranda represents an illegitimate exercise of our authority to review state-court judgments, I do not share the Court's hesitation in reaching that conclusion. For while the Court is also correct that the doctrine of stare decisis demands some "special justification" for a departure from longstanding precedent-even precedent of the constitutional variety-that criterion is more than met here. To repeat JUSTICE STEVENS' cogent observation, it is "[o]bviou[s]" that "the Court's power to reverse Miranda's conviction rested entirely on the determination that a violation of the Federal Constitution had occurred." Elstad, 470 U. S., at 367, n. 9 (dissenting opinion) (emphasis added). Despite the Court's Orwellian assertion to the contrary, it is undeniable that later cases (discussed 462 above) have "undermined [Miranda's] doctrinal underpinnings," ante, at 443, denying constitutional violation and thus stripping the holding of its only constitutionally legitimate support. Miranda's critics and supporters alike have long made this point. See Office of Legal Policy, U. S. Dept. of Justice, Report to Attorney General on Law of Pre-Trial Interrogation 97 (Feb. 12, 1986) ("The current Court has repudiated the premises on which Miranda was based, but has drawn back from recognizing the full implications of its decisions"); id., at 78 ("Michigan v. Tucker accordingly repudiated the doctrinal basis of the Miranda decision"); Sonenshein, Miranda and the Burger Court: Trends and Countertrends, 13 Loyola U. Chi. L. J. 405, 407-408 (1982) ("Although the Burger Court has not overruled Miranda, the Court has consistently undermined the rationales, assumptions, and values which gave Miranda life"); id., at 425-426 ("Seemingly, the Court [in Michigan v. Tucker] utterly destroyed both Miranda's rationale and its holding"); Stone, The Miranda Doctrine in the Burger Court, 1977 S. Ct. Rev. 99, 118 ("Mr. Justice Rehnquist's conclusion that there is a violation of the Self-Incrimination Clause only if a confession is involuntary ... is an outright rejection of the core premises of Miranda"). The Court cites Patterson v. McLean Credit Union, 491 U. S. 164, 173 (1989), as accurately reflecting our standard for overruling, see ante, at 443-which I am pleased to accept, even though Patterson was speaking of overruling statutory cases and the standard for constitutional decisions is somewhat more lenient. What is set forth there reads as though it was written precisely with the current status of Miranda in mind: "In cases where statutory precedents have been overruled, the primary reason for the Court's shift in position has been the intervening development of the law, through either the growth of judicial doctrine or further action taken by Congress. Where such changes have 463 removed or weakened the conceptual underpinnings from the prior decision, ... or where the later law has rendered the decision irreconcilable with competing legal doctrines or policies, ... the Court has not hesitated to overrule an earlier decision." 491 U. S., at 173. Neither am I persuaded by the argument for retaining Miranda that touts its supposed workability as compared with the totality-of-the-circumstances test it purported to replace. Miranda's proponents cite ad nauseam the fact that the Court was called upon to make difficult and subtle distinctions in applying the "voluntariness" test in some 30-odd due process "coerced confessions" cases in the 30 years between Brown v. Mississippi, 297 U. S. 278 (1936), and Miranda. It is not immediately apparent, however, that the judicial burden has been eased by the "bright-line" rules adopted in Miranda. In fact, in the 34 years since Miranda was decided, this Court has been called upon to decide nearly 60 cases involving a host of Miranda issues, most of them predicted with remarkable prescience by Justice White in his Miranda dissent. 384 U. S., at 545. Moreover, it is not clear why the Court thinks that the "totality-of-the-circumstances test ... is more difficult than Miranda for law enforcement officers to conform to, and for courts to apply in a consistent manner." Ante, at 444. Indeed, I find myself persuaded by JUSTICE O'CONNOR'S rejection of this same argument in her opinion in Williams, 507 U. S., at 711-712 (O'CONNOR, J., joined by REHNQUIST, C. J., concurring in part and dissenting in part): "Miranda, for all its alleged brightness, is not without its difficulties; and voluntariness is not without its strengths .... " ... Miranda creates as many close questions as it resolves. The task of determining whether a defendant is in 'custody' has proved to be 'a slippery one.' And the supposedly 'bright' lines that separate interrogation 464 from spontaneous declaration, the exercise of a right from waiver, and the adequate warning from the inadequate, likewise have turned out to be rather dim and ill defined .... "The totality-of-the-circumstances approach, on the other hand, permits each fact to be taken into account without resort to formal and dispositive labels. By dispensing with the difficulty of producing a yes-or-no answer to questions that are often better answered in shades and degrees, the voluntariness inquiry often can make judicial decisionmaking easier rather than more onerous." (Emphasis added; citations omitted.) But even were I to agree that the old totality-of-thecircumstances test was more cumbersome, it is simply not true that Miranda has banished it from the law and replaced it with a new test. Under the current regime, which the Court today retains in its entirety, courts are frequently called upon to undertake both inquiries. That is because, as explained earlier, voluntariness remains the constitutional standard, and as such continues to govern the admissibility for impeachment purposes of statements taken in violation of Miranda, the admissibility of the "fruits" of such statements, and the admissibility of statements challenged as unconstitutionally obtained despite the interrogator's compliance with Miranda, see, e. g., Colorado v. Connelly, 479 U. S. 157 (1986). Finally, I am not convinced by petitioner's argument that Miranda should be preserved because the decision occupies a special place in the "public's consciousness." Brief for Petitioner 44. As far as I am aware, the public is not under the illusion that we are infallible. I see little harm in admitting that we made a mistake in taking away from the people the ability to decide for themselves what protections (beyond those required by the Constitution) are reasonably affordable in the criminal investigatory process. And I see much to be gained by reaffirming for the people the wonderful reality 465 that they govern themselves-which means that "[t]he powers not delegated to the United States by the Constitution" that the people adopted, "nor prohibited ... to the States" by that Constitution, "are reserved to the States respectively, or to the people," U. S. Const., Arndt. 10.2 *** Today's judgment converts Miranda from a milestone of judicial overreaching into the very Cheops' Pyramid (or perhaps the Sphinx would be a better analogue) of judicial arrogance. In imposing its Court-made code upon the States, the original opinion at least asserted that it was demanded by the Constitution. Today's decision does not pretend that it is-and yet still asserts the right to impose it against the will of the people's representatives in Congress. Far from believing that stare decisis compels this result, I believe we cannot allow to remain on the books even a celebrated de cision-especially a celebrated decision-that has come to stand for the proposition that the Supreme Court has power to impose extraconstitutional constraints upon Congress and the States. This is not the system that was established by the Framers, or that would be established by any sane supporter of government by the people. I dissent from to day's decision, and, until § 3501 is repealed, will continue to apply it in all cases where there has been a sustainable finding that the defendant's confession was voluntary. 2 The Court cites my dissenting opinion in Mitchell v. United States, 526 U. S. 314 , 331-332 (1999), for the proposition that "the fact that a rule has found 'wide acceptance in the legal culture' is 'adequate reason not to overrule' it." Ante, at 443. But the legal culture is not the same as the "public's consciousness"; and unlike the rule at issue in Mitchell (prohibiting comment on a defendant's refusal to testify), Miranda has been continually criticized by lawyers, law enforcement officials, and scholars since its pronouncement (not to mention by Congress, as § 3501 shows). In Mitchell, moreover, the constitutional underpinnings of the earlier rule had not been demolished by subsequent cases.

The Supreme Court ruled that Miranda warnings are a constitutional right and cannot be overruled by an Act of Congress. The case centered around the admissibility of a statement made by the petitioner during custodial interrogation, who argued that he had not received Miranda warnings prior to interrogation. The Fourth Circuit Court of Appeals initially held that the statement was voluntary and admissible, despite the lack of Miranda warnings, but the Supreme Court disagreed, stating that Miranda is a constitutional decision and Congress does not have the authority to supersede it. The Court's supervisory authority over federal courts allows it to prescribe binding rules of evidence and procedure, but Congress can modify or set aside these rules if they are not constitutionally required. However, Congress cannot override the Court's decisions interpreting and applying the Constitution. The Court's decision in Miranda applied to state courts as well, demonstrating its constitutional nature. The dissent argued that Miranda was a mistake and that the people should have the power to decide on protections during the criminal investigatory process.

Role of Courts

Raines v. Byrd

https://supreme.justia.com/cases/federal/us/521/811/

OCTOBER TERM, 1996 Syllabus RAINES, DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET, ET AL. v. BYRD ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA No. 96-1671. Argued May 27, 1997-Decided June 26, 1997 Appellees, Members of the 104th Congress, voted "nay" when Congress passed the Line Item Veto Act (Act), which gives the President the authority to cancel certain spending and tax benefit measures after he has signed them into law. The day after the Act went into effect, they filed suit against appellants, Executive Branch officials, challenging the Act's constitutionality. The District Court denied appellants' motion to dismiss, finding that appellees' claim that the Act diluted their Article I voting power was sufficient to confer Article III standing; and that their claim was ripe, even though the President had not yet used the Act's cancellation authority, because they found themselves in a position of unanticipated and unwelcome subservience to the President before and after their votes on appropriations bills. The court then granted appellees summary judgment, holding that the Act violated the Presentment Clause, Art. I, § 7, cl. 2, and constituted an unconstitutional delegation of legislative power to the President. Held: Appellees lack standing to bring this suit. Pp. 818-830. (a) The federal courts have jurisdiction over this dispute only if it is a case or controversy. Art. III, § 2. In order to meet the standing element of the case-or-controversy requirement, appellees must allege a personal injury that is particularized, concrete, and otherwise judicially cognizable. Lujan v. Defenders of Wildlife, 504 U. S. 555 , 561; Allen v. Wright, 468 U. S. 737 , 751. This Court insists on strict compliance with the jurisdictional standing requirement, see, e. g., id., at 752, and its standing inquiry is especially rigorous when reaching the merits of a dispute would force it to decide the constitutionality of an action taken by one of the other two branches of the Federal Government. pp. 818-820. (b) This Court has never had occasion to rule on the legislative standing question presented here. Appellees are not helped by Powell v. McCormack, 395 U. S. 486 , 496,512-514, in which the Court held that a Congressman's challenge to the constitutionality of his exclusion from the House of Representatives presented an Article III case or controversy. Appellees have not been singled out for specially unfavorable treatment as opposed to other Members of their respective bodies, but 812 Syllabus claim that the Act causes a type of institutional injury which damages all Members of Congress equally. And their claim is based on a loss of political power, not loss of something to which they are personally entitled, such as their seats as Members of Congress after their constituents elected them. pp.820-821. (c) Appellees' claim also does not fall within the Court's holding in Coleman v. Miller, 307 U. S. 433 , the one case in which standing has been upheld for legislators claiming an institutional injury. There, the Court held that state legislators who had been locked in a tie vote that would have defeated the State's ratification of a proposed federal constitutional amendment, and who alleged that their votes were nullified when the Lieutenant Governor broke the tie by casting his vote for ratification, had "a plain, direct and adequate interest in maintaining the effectiveness of their votes." Id., at 438. In contrast, appellees have not alleged that they voted for a specific bill, that there were sufficient votes to pass the bill, and that the bill was nonetheless deemed defeated. In the vote on the Act, their votes were given full effect; they simply lost that vote. To uphold standing here would require a drastic extension of Coleman, even accepting appellees' argument that the Act has changed the "meaning" and "effectiveness" of their vote on appropriations bills, for there is a vast difference between the level of vote nullification at issue in Coleman and the abstract dilution ofinstitutional power appellees allege. pp.821-826. (d) Historical practice cuts against appellees' position as well. Several episodes in our history show that in analogous confrontations between one or both Houses of Congress and the Executive Branch, no suit was brought on the basis of claimed injury to official authority or power. If appellees' claim were sustained, presumably several Presidents would have had standing to challenge the Tenure of Office Act, which prevented the removal of a Presidential appointee without Congress' consent; the Attorney General could have challenged the oneHouse veto provision because it rendered his authority provisional rather than final; President Ford could have challenged the Federal Election Campaign Act's appointment provisions which were struck down in Buckley v. Valeo, 424 U. S. 1 ; and a Member of Congress could have challenged the validity of President Coolidge's pocket veto that was sustained in The Pocket Veto Case, 279 U. S. 655 . While a system granting such standing would not be irrational, our Constitution's regime contemplates a more restrictive role for Article III courts. See United States v. Richardson, 418 U. S. 166 , 192 (Powell, J., concurring). Pp.826-829. (e) Some importance must be attached to the fact that appellees have not been authorized to represent their respective Houses in this action, 813 and indeed both Houses actively oppose their suit. In addition, the conclusion reached here neither deprives Members of Congress of an adequate remedy-since they may repeal the Act or exempt appropriations bills from its reach-nor forecloses the Act from constitutional challenge by someone who suffers judicially cognizable injury resulting from it. Pp. 829-830. 956 F. Supp. 25, vacated and remanded. REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, THOMAS, and GINSBURG, JJ., joined. SOUTER, J., filed an opinion concurring in the judgment, in which GINSBURG, J., joined, post, p. 830. STEVENS, J., post, p. 835, and BREYER, J., post, p. 838, filed dissenting opinions. Acting Solicitor General Dellinger argued the cause for appellants. With him on the briefs were Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Malcolm L. Stewart, and Douglas N. Letter. Alan B. Morrison argued the cause for appellees. With him on the briefs were Lloyd N. Cutler, Louis R. Cohen, Charles J. Cooper, Michael A. Carvin, David Thompson, and Michael Davidson.* CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.t The District Court for the District of Columbia declared the Line Item Veto Act unconstitutional. On this direct appeal, we hold that appellees lack standing to bring this suit, *Thomas B. Griffith, Morgan J. Frankel, Steven F. Huefner, Geraldine R. Gennet, Kerry W Kircher, and Michael L. Stern filed a brief for the United States Senate et al. as amici curiae urging reversal. Briefs of amicus curiae urging affirmance were filed for the Association of the Bar of the City of New York by David P. Felsher, Louis A. Craco, Jr., and James F. Parver; and for David Schoenbrod et al. by Mr. Schoenbrod, pro se, and Marci A. Hamilton, pro se. G. William Frick filed a brief for the American Petroleum Institute as amicus curiae. tJUSTICE GINSBURG joins this opinion. 814 and therefore direct that the judgment of the District Court be vacated and the complaint dismissed. I The appellees are six Members of Congress, four of whom served as Senators and two of whom served as Congressmen in the 104th Congress (1995-1996).1 On March 27, 1996, the Senate passed a bill entitled the Line Item Veto Act by a vote of 69 to 31. All four appellee Senators voted "nay." 142 Congo Rec. S2995. The next day, the House of Representatives passed the identical bill by a vote of 232 to 177. Both appellee Congressmen voted "nay." Id., at H2986. On April 4, 1996, the President signed the Line Item Veto Act (Act) into law. Pub. L. 104-130, 110 Stat. 1200, codified at 2 U. S. C. § 691 et seq. (1994 ed., Supp. II). The Act went into effect on January 1, 1997. See Pub. L. 104-130, § 5. The next day, appellees filed a complaint in the District Court for the District of Columbia against the two appellants, the Secretary of the Treasury and the Director of the Office of Management and Budget, alleging that the Act was unconstitutional. The provisions of the Act do not use the term "veto." Instead, the President is given the authority to "cancel" certain spending and tax benefit measures after he has signed them into law. Specifically, the Act provides: "[T]he President may, with respect to any bill or joint resolution that has been signed into law pursuant to Article I, section 7, of the Constitution of the United States, cancel in whole-(l) any dollar amount of discretionary budget authority; (2) any item of new direct spending; or (3) any limited tax benefit; if the President- IThree of the Senators-Robert Byrd, Carl Levin, and Daniel Patrick Moynihan-are still Senators. The fourth-Mark Hatfield-retired at the end of the 104th Congress. The two Congressmen-David Skaggs and Henry Waxman-remain Congressmen. 815 "(A) determines that such cancellation will-(i) reduce the Federal budget deficit; (ii) not impair any essential Government functions; and (iii) not harm the national interest; and "(B) notifies the Congress of such cancellation by transmitting a special message ... within five calendar days (excluding Sundays) after the enactment of the law [to which the cancellation applies]." § 691(a) (some indentations omitted). The President's "cancellation" under the Act takes effect when the "special message" notifying Congress of the cancellation is received in the House and Senate. With respect to dollar amounts of "discretionary budget authority," a cancellation means "to rescind." § 691e(4)(A). With respect to "new direct spending" items or "limited tax benefit[s]," a cancellation means that the relevant legal provision, legal obligation, or budget authority is "prevent[ed] ... from having legal force or effect." §§ 691e(4)(B), (C). The Act establishes expedited procedures in both Houses for the consideration of "disapproval bills," § 691d, bills or joint resolutions which, if enacted into law by the familiar procedures set out in Article I, § 7, of the Constitution, would render the President's cancellation "null and void," § 691b(a). "Disapproval bills" may only be one sentence long and must read as follows after the enacting clause: "That Congress The Act provides that "[a]ny Member of Congress or any individual adversely affected by [this Act] may bring an action, in the United States District Court for the District of Columbia, for declaratory judgment and injunctive relief on 816 the ground that any provision of this part violates the Constitution." § 692(a)(1). Appellees brought suit under this provision, claiming that "[t]he Act violates Article I" of the Constitution. Complaint , 17. Specifically, they alleged that the Act "unconstitutionally expands the President's power," and "violates the requirements of bicameral passage and presentment by granting to the President, acting alone, the authority to 'cancel' and thus repeal provisions of federal law." Ibid. They alleged that the Act injured them "directly and concretely ... in their official capacities" in three ways: "The Act ... (a) alter[s] the legal and practical effect of all votes they may cast on bills containing such separately vetoable items, (b) divest[s] the [appellees] of their constitutional role in the repeal of legislation, and (c) alter[s] the constitutional balance of powers between the Legislative and Executive Branches, both with respect to measures containing separately vetoable items and with respect to other matters coming before Congress." Id., , 14. Appellants moved to dismiss for lack of jurisdiction, claiming (among other things) that appellees lacked standing to sue and that their claim was not ripe. Both sides also filed motions for summary judgment on the merits. On April 10, 1997, the District Court (i) denied appellants' motion to dismiss, holding that appellees had standing to bring this suit and that their claim was ripe, and (ii) granted appellees' summary judgment motion, holding that the Act is unconstitutional. 956 F. Supp. 25. As to standing, the court noted that the Court of Appeals for the District of Columbia "has repeatedly recognized Members' standing to challenge measures that affect their constitutionally prescribed lawmaking powers." Id., at 30 (citing, e. g., Michel v. Anderson, 14 F.3d 623 ,625 (CADC 1994); Moore v. U. S. House of Representatives, 733 F.2d 946 , 950-952 (CADC 1984)). See also 956 817 F. Supp., at 31 ("[T]he Supreme Court has never endorsed the [Court of Appeals'] analysis of standing in such cases"). The court held that appellees' claim that the Act "dilute[d] their Article I voting power" was sufficient to confer Article III standing: "[Appellees'] votes mean something different from what they meant before, for good or ill, and [appellees] who perceive it as the latter are thus 'injured' in a constitutional sense whenever an appropriations bill comes up for a vote, whatever the President ultimately does with it .... Under the Act the dynamic of lawmaking is fundamentally altered. Compromises and trade-offs by individuallawmakers must take into account the President's item-by-item cancellation power looming over the end product." Ibid. The court held that appellees' claim was ripe even though the President had not yet used the "cancellation" authority granted him under the Act: "Because [appellees] now find themselves in a position of unanticipated and unwelcome subservience to the President before and after they vote on appropriations bills, Article III is satisfied, and this Court may accede to Congress' directive to address the constitutional cloud over the Act as swiftly as possible." Id., at 32 (referring to § 692(a)(1), the section of the Act granting Members of Congress the right to challenge the Act's constitutionality in court). On the merits, the court held that the Act violated the Presentment Clause, Art. I, § 7, cl. 2, and constituted an unconstitutional delegation of legislative power to the President. 956 F. Supp., at 33, 35, 37-38. The Act provides for a direct, expedited appeal to this Court. § 692(b) (direct appeal to Supreme Court); § 692(c) ("It shall be the duty of ... the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any [suit challenging the Act's constitutionality] brought under [§ 3(a) of the Act]"). On April 18, eight days after the District Court issued its order, appellants filed a jurisdictional statement asking us to note probable jurisdiction, and on April 21, appellees filed a 818 memorandum in response agreeing that we should note probable jurisdiction. On April 23, we did so. 520 U. S. 1194 (1997). We established an expedited briefing schedule and heard oral argument on May 27.2 We now hold that appellees have no standing to bring this suit, and therefore direct that the judgment of the District Court be vacated and the complaint dismissed. II Under Article III, § 2, of the Constitution, the federal courts have jurisdiction over this dispute between appellants and appellees only if it is a "case" or "controversy." This is a "bedrock requirement." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464 , 471 (1982). As we said in Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26 , 37 (1976): "No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies." One element of the case-or-controversy requirement is that appellees, based on their complaint, must establish that they have standing to sue. Lujan v. Defenders of Wildlife, 504 U. S. 555 , 561 (1992) (plaintiff bears burden of establishing standing). The standing inquiry focuses on whether the plaintiff is the proper party to bring this suit, Simon, supra, at 38, although that inquiry "often turns on the nature and source of the claim asserted," Warth v. Seldin, 422 U. S. 490 , 500 (1975). To meet the standing requirements of Article III, "[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, 468 2 The House Bipartisan Legal Advisory Group (made up of the Speaker, the Majority Leader, the Minority Leader, and the two Whips) and the Senate filed a joint brief as amici curiae urging that the District Court be reversed on the merits. Their brief states that they express no position as to appellees' standing. 819 u. S. 737, 751 (1984) (emphasis added). For our purposes, the italicized words in this quotation from Allen are the key ones. We have consistently stressed that a plaintiff's complaint must establish that he has a "personal stake" in the alleged dispute, and that the alleged injury suffered is particularized as to him. See, e. g., Lujan, supra, at 560-561, and n. 1 (to have standing, the plaintiff must have suffered a "particularized" injury, which means that "the injury must affect the plaintiff in a personal and individual way"); Bender v. Williamsport Area School Dist., 475 U. S. 534 , 543-544 (1986) (school board member who "has no personal stake in the outcome of the litigation" has no standing); Simon, supra, at 39 ("The necessity that the plaintiff who seeks to invoke judicial power stand to profit in some personal interest remains an Art. III requirement"). We have also stressed that the alleged injury must be legally and judicially cognizable. This requires, among other things, that the plaintiff have suffered "an invasion of a legally protected interest which is ... concrete and particularized," Lujan, supra, at 560, and that the dispute is "traditionally thought to be capable of resolution through the judicial process," Flast v. Cohen, 392 U. S. 83 , 97 (1968). See also Allen, 468 U. S., at 752 ("Is the injury too abstract, or otherwise not appropriate, to be considered judicially cognizable ?"). We have always insisted on strict compliance with this jurisdictional standing requirement. See, e. g., ibid. (under Article III, "federal courts may exercise power only 'in the last resort, and as a necessity''') (quoting Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339 , 345 (1892)); Muskrat v. United States, 219 U. S. 346 , 356 (1911) ("[F]rom its earliest history this [C]ourt has consistently declined to exercise any powers other than those which are strictly judicial in their nature"). And our standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one 820 of the other two branches of the Federal Government was unconstitutional. See, e. g., Bender, supra, at 542; Valley Forge, supra, at 473-474. As we said in Allen, supra, at 752, "the law of Art. III standing is built on a single basic idea-the idea of separation of powers." In the light of this overriding and time-honored concern about keeping the Judiciary's power within its proper constitutional sphere,3 we must put aside the natural urge to proceed directly to the merits of this important dispute and to "settle" it for the sake of convenience and efficiency. Instead, we must carefully inquire as to whether appellees have met their burden of establishing that their claimed injury is personal, particularized, concrete, and otherwise judicially cognizable. III We have never had occasion to rule on the question of legislative standing presented here.4 In Powell v. McCormack, 395 U. S. 486 , 496, 512-514 (1969), we held that a Member of 3 It is settled that Congress cannot erase Article Ill's standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing. Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91, 100 (1979). We acknowledge, though, that Congress' decision to grant a particular plaintiff the right to challenge an Act's constitutionality (as here, see § 692(a)(1), supra, at 815-816) eliminates any prudential standing limitations and significantly lessens the risk of unwanted conflict with the Legislative Branch when that plaintiff brings suit. See, e. g., Bennett v. Spear, 520 U. S. 154 , 164-166 (1997). 4 Over strong dissent, the Court of Appeals for the District of Columbia Circuit has held that Members of Congress may have standing when (as here) they assert injury to their institutional power as legislators. See, e. g., Kennedy v. Sampson, 511 F.2d 430 , 435-436 (CADC 1974); Moore v. United States House of Representatives, 733 F.2d 946 , 951 (CADC 1984); id., at 956 (Scalia, J., concurring in result); Barnes v. Kline, 759 F.2d 21 , 28-29 (CADC 1985); id., at 41 (Bork, J., dissenting). But see Holtzman v. Schlesinger, 484 F.2d 1307 , 1315 (CA2 1973) (Member of Congress has no standing to challenge constitutionality of American military operations in Vietnam war); Harrington v. Schlesinger, 528 F.2d 455 , 459 (CA4 1975) (same). 821 Congress' constitutional challenge to his exclusion from the House of Representatives (and his consequent loss of salary) presented an Article III case or controversy. But Powell does not help appellees. First, appellees have not been singled out for specially unfavorable treatment as opposed to other Members of their respective bodies. Their claim is that the Act causes a type of institutional injury (the diminution of legislative power), which necessarily damages all Members of Congress and both Houses of Congress equally. See n. 7, infra. Second, appellees do not claim that they have been deprived of something to which they personally are entitled-such as their seats as Members of Congress after their constituents had elected them. Rather, appellees' claim of standing is based on a loss of political power, not loss of any private right, which would make the injury more concrete. Unlike the injury claimed by Congressman Adam Clayton Powell, the injury claimed by the Members of Congress here is not claimed in any private capacity but solely because they are Members of Congress. See Complaint'14 (purporting to sue "in their official capacities"). If one of the Members were to retire tomorrow, he would no longer have a claim; the claim would be possessed by his successor instead. The claimed injury thus runs (in a sense) with the Member's seat, a seat which the Member holds (it may quite arguably be said) as trustee for his constituents, not as a prerogative of personal power. See The Federalist No. 62, p. 378 (J. Madison) (C. Rossiter ed. 1961) ("It is a misfortune incident to republican government, though in a less degree than to other governments, that those who administer it may forget their obligations to their constituents and prove unfaithful to their important trust"). The one case in which we have upheld standing for legislators (albeit state legislators) claiming an institutional injury is Coleman v. Miller, 307 U. S. 433 (1939). Appellees, relying heavily on this case, claim that they, like the state legislators in Coleman, "have a plain, direct and adequate interest 822 in maintaining the effectiveness of their votes," id., at 438, sufficient to establish standing. In Coleman, 20 of Kansas' 40 State Senators voted not to ratify the proposed "Child Labor Amendment" to the Federal Constitution. With the vote deadlocked 20 to 20, the amendment ordinarily would not have been ratified. However, the State's Lieutenant Governor, the presiding officer of the State Senate, cast a deciding vote in favor of the amendment, and it was deemed ratified (after the State House of Representatives voted to ratify it). The 20 State Senators who had voted against the amendment, joined by a 21st State Senator and three State House Members, filed an action in the Kansas Supreme Court seeking a writ of mandamus that would compel the appropriate state officials to recognize that the legislature had not in fact ratified the amendment. That court held that the members of the legislature had standing to bring their mandamus action, but ruled against them on the merits. See id., at 436-437. This Court affirmed. By a vote of 5-4, we held that the members of the legislature had standing.5 In explaining our holding, we repeatedly emphasized that if these legislators (who were suing as a bloc) were correct on the merits, then their votes not to ratify the amendment were deprived of all validity: "Here, the plaintiffs include twenty senators, whose votes against ratification have been overridden and vir- 5 Chief Justice Hughes wrote an opinion styled "the opinion of the Court." Coleman, 307 U. S., at 435. Four Justices concurred in the judgment, partially on the ground that the legislators lacked standing. See id., at 456-457 (opinion of Black, J., joined by Roberts, Frankfurter, and Douglas, JJ.); id., at 460 (opinion of Frankfurter, J., joined by Roberts, Black, and Douglas, JJ.). Two Justices dissented on the merits. See id., at 470 (opinion of Butler, J., joined by McReynolds, J.). Thus, even though there were only two Justices who joined Chief Justice Hughes' opinion on the merits, it is apparent that the two dissenting Justices joined his opinion as to the standing discussion. Otherwise, Justice Frankfurter's opinion denying standing would have been the controlling opinion. 823 tually held for naught although if they are right in their contentions their votes would have been sufficient to defeat ratification. We think that these senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes." Id., at 438 (emphasis added). "[T]he twenty senators were not only qualified to vote on the question of ratification but their votes, if the Lieutenant Governor were excluded as not being a part of the legislature for that purpose, would have been decisive in defeating the ratifying resolution." Id., at 441 (emphasis added). "[WJe find no departure from principle in recognizing in the instant case that at least the twenty senators whose votes, if their contention were sustained, would have been sufficient to defeat the resolution ratifying the proposed constitutional amendment, have an interest in the controversy which, treated by the state court as a basis for entertaining and deciding the federal questions, is sufficient to give the Court jurisdiction to review that decision." Id., at 446 (emphasis added). It is obvious, then, that our holding in Coleman stands (at most, see n. 8, infra) for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.6 6 See also Bender v. Williamsport Area School Dist., 475 U. S. 534 ,544545, n. 7 (1986) (in dicta, suggesting hypothetically that if state law authorized a school board to take action only by unanimous consent, if a school board member voted against a particular action, and if the board nonetheless took the action, the board member "might claim that he was legally entitled to protect 'the effectiveness of [his] vot[e],' Coleman[, 307 U. S., at 438,] ... [b]ut in that event [he] would have to allege that his vote was diluted or rendered nugatory under state law"). 824 It should be equally obvious that appellees' claim does not fall within our holding in Coleman, as thus understood. They have not alleged that they voted for a specific bill, that there were sufficient votes to pass the bill, and that the bill was nonetheless deemed defeated. In the vote on the Act, their votes were given full effect. They simply lost that vote.7 Nor can they allege that the Act will nullify their votes in the future in the same way that the votes of the Coleman legislators had been nullified. In the future, a majority of Senators and Congressmen can pass or reject appropriations bills; the Act has no effect on this process. In addition, a majority of Senators and Congressmen can vote to repeal the Act, or to exempt a given appropriations bill (or a given provision in an appropriations bill) from the Act; again, the Act has no effect on this process. Coleman thus provides little meaningful precedent for appellees' argument.8 7 Just as appellees cannot show that their vote was denied or nullified as in Coleman (in the sense that a bill they voted for would have become law if their vote had not been stripped of its validity), so are they unable to show that their vote was denied or nullified in a discriminatory manner (in the sense that their vote was denied its full validity in relation to the votes of their colleagues). Thus, the various hypotheticals offered by appellees in their briefs and discussed during oral argument have no applicability to this case. See Reply Brief for Appellees 6 (positing hypothetical law in which "first-term Members were not allowed to vote on appropriations bills," or in which "every Member was disqualified on grounds of partiality from voting on major federal projects in his or her own district"); Tr. of Oral Arg. 17 ("QUESTION: But [Congress] might have passed a statute that said the Senators from Iowa on hog-farming matters should have only a half-a-vote. Would they have standing to challenge that?"). 8 Since we hold that Coleman may be distinguished from the instant case on this ground, we need not decide whether Coleman may also be distinguished in other ways. For instance, appellants have argued that Coleman has no applicability to a similar suit brought in federal court, since that decision depended on the fact that the Kansas Supreme Court "treated" the senators' interest in their votes "as a basis for entertaining and deciding the federal questions." 307 U. S., at 446. They have also 825 Nevertheless, appellees rely heavily on our statement in Coleman that the Kansas senators had "a plain, direct and adequate interest in maintaining the effectiveness of their votes." Appellees claim that this statement applies to them because their votes on future appropriations bills (assuming a majority of Congress does not decide to exempt those bills from the Act) will be less "effective" than before, and that the "meaning" and "integrity" of their vote has changed. Brief for Appellees 24, 28. The argument goes as follows. Before the Act, Members of Congress could be sure that when they voted for, and Congress passed, an appropriations bill that included funds for Project X, one of two things would happen: (i) the bill would become law and all of the projects listed in the bill would go into effect, or (ii) the bill would not become law and none of the projects listed in the bill would go into effect. Either way, a vote for the appropriations bill meant a vote for a package of projects that were inextricably linked. After the Act, however, a vote for an appropriations bill that includes Project X means something different. Now, in addition to the two possibilities listed above, there is a third option: The bill will become law and then the President will "cancel" Project X.9 Even taking appellees at their word about the change in the "meaning" and "effectiveness" of their vote for appropriations bills which are subject to the Act, we think their argument pulls Coleman too far from its moorings. Appellees' argued that Coleman has no applicability to a similar suit brought by federal legislators, since the separation-of-powers concerns present in such a suit were not present in Coleman, and since any federalism concerns were eliminated by the Kansas Supreme Court's decision to take jurisdiction over the case. 9 Although Congress could reinstate Project X through a "disapproval bill," it would assumedly take two-thirds of both Houses to do so, since the President could be expected to veto the Project X "disapproval bilL" But see Robinson, Public Choice Speculations on the Item Veto, 74 Va. L. Rev. 403, 411-412 (1988) (political costs that President would suffer in important congressional districts might limit use of line-item veto). 826 use of the word "effectiveness" to link their argument to Coleman stretches the word far beyond the sense in which the Coleman opinion used it. There is a vast difference between the level of vote nullification at issue in Coleman and the abstract dilution of institutional legislative power that is alleged here. To uphold standing here would require a drastic extension of Coleman. We are unwilling to take that step. Not only do appellees lack support from precedent, but historical practice appears to cut against them as well. It is evident from several episodes in our history that in analogous confrontations between one or both Houses of Congress and the Executive Branch, no suit was brought on the basis of claimed injury to official authority or power. The Tenure of Office Act, passed by Congress over the veto of President Andrew Johnson in 1867, was a thorn in the side of succeeding Presidents until it was finally repealed at the behest of President Grover Cleveland in 1887. See generally W. Rehnquist, Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson 210235, 260-268 (1992). It provided that an official whose appointment to an Executive Branch office required confirmation by the Senate could not be removed without the consent of the Senate. 14 Stat. 430, ch. 154. In 1868, Johnson removed his Secretary of War, Edwin M. Stanton. Within a week, the House of Representatives impeached Johnson. 1 Trial of Andrew Johnson, President of the United States, Before the Senate of the United States on Impeachment by the House of Representatives for High Crimes and Misdemeanors 4 (1868). One of the principal charges against him was that his removal of Stanton violated the Tenure of Office Act. Id., at 6-8. At the conclusion of his trial before the Senate, Johnson was acquitted by one vote. 2 id., at 487, 496-498. Surely Johnson had a stronger claim of diminution of his official power as a result of the Tenure of Office Act than do the appellees in the present case. Indeed, if their 827 claim were sustained, it would appear that President Johnson would have had standing to challenge the Tenure of Office Act before he ever thought about firing a cabinet member, simply on the grounds that it altered the calculus by which he would nominate someone to his cabinet. Yet if the federal courts had entertained an action to adjudicate the constitutionality of the Tenure of Office Act immediately after its passage in 1867, they would have been improperly and unnecessarily plunged into the bitter political battle being waged between the President and Congress. Succeeding Presidents-Ulysses S. Grant and Grover Cleveland-urged Congress to repeal the Tenure of Office Act, and Cleveland's plea was finally heeded in 1887. 24 Stat. 500, ch. 353. It occurred to neither of these Presidents that they might challenge the Act in an Article III court. Eventually, in a suit brought by a plaintiff with traditional Article III standing, this Court did have the opportunity to pass on the constitutionality of the provision contained in the Tenure of Office Act. A sort of mini-Tenure of Office Act covering only the Post Office Department had been enacted in 1872, 17 Stat. 284, ch. 335, § 2, and it remained on the books after the Tenure of Office Act's repeal in 1887. In the last days of the Woodrow Wilson administration, Albert Burleson, Wilson's Postmaster General, came to believe that Frank Myers, the Postmaster in Portland, Oregon, had committed fraud in the course of his official duties. When Myers refused to resign, Burleson, acting at the direction of the President, removed him. Myers sued in the Court of Claims to recover lost salary. In Myers v. United States, 272 U. S. 52 (1926), more than half a century after Johnson's impeachment, this Court held that Congress could not require senatorial consent to the removal of a Postmaster who had been appointed by the President with the consent of the Senate. Id., at 106-107, 173, 176. In the course of its opinion, the Court expressed the view that the original Tenure of Office Act was unconstitutional. Id., at 176. See also id., 828 at 173 ("This Court has, since the Tenure of Office Act, manifested an earnest desire to avoid a final settlement of the question until it should be inevitably presented, as it is here"). If the appellees in the present case have standing, presumably President Wilson, or Presidents Grant and Cleveland before him, would likewise have had standing, and could have challenged the law preventing the removal of a Presidential appointee without the consent of Congress. Similarly, in INS v. Chadha, 462 U. S. 919 (1983), the Attorney General would have had standing to challenge the one-House veto provision because it rendered his authority provisional rather than final. By parity of reasoning, President Gerald Ford could have sued to challenge the appointment provisions of the Federal Election Campaign Act which were struck down in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), and a Member of Congress could have challenged the validity of President Coolidge's pocket veto that was sustained in The Pocket Veto Case, 279 U. S. 655 (1929). There would be nothing irrational about a system that granted standing in these cases; some European constitutional courts operate under one or another variant of such a regime. See, e. g., Favoreu, Constitutional Review in Europe, in Constitutionalism and Rights 38, 41 (L. Henkin & A. Rosenthal eds. 1990); Wright Sheive, Central and Eastern European Constitutional Courts and the Antimajoritarian Objection to Judicial Review, 26 Law & Pol'y Int'l Bus. 1201, 1209 (1995); A. Stone, The Birth of Judicial Politics in France 232 (1992); D. Kommers, Judicial Politics in West Germany: A Study of the Federal Constitutional Court 106 (1976). But it is obviously not the regime that has obtained under our Constitution to date. Our regime contemplates a more restricted role for Article III courts, well expressed by Justice Powell in his concurring opinion in United States v. Richardson, 418 U. S. 166 (1974): 829 "The irreplaceable value of the power articulated by Mr. Chief Justice Marshall [in Marbury v. Madison, 1 Cranch 137 (1803),] lies in the protection it has afforded the constitutional rights and liberties of individual citizens and minority groups against oppressive or discriminatory government action. It is this role, not some amorphous general supervision of the operations of government, that has maintained public esteem for the federal courts and has permitted the peaceful coexistence of the countermajoritarian implications of judicial review and the democratic principles upon which our Federal Government in the final analysis rests." Id., at 192. IV In sum, appellees have alleged no injury to themselves as individuals (contra, Powell), the institutional injury they allege is wholly abstract and widely dispersed (contra, Cole man), and their attempt to litigate this dispute at this time and in this form is contrary to historical experience. We attach some importance to the fact that appellees have not been authorized to represent their respective Houses of Congress in this action, and indeed both Houses actively oppose their suit.lO See n. 2, supra. We also note that our conclusion neither deprives Members of Congress of an adequate remedy (since they may repeal the Act or exempt appropriations bills from its reach), nor forecloses the Act from constitutional challenge (by someone who suffers judicially cognizable injury as a result of the Act). Whether the case would 10 Cf. Bender, 475 U. S., at 544 ("Generally speaking, members of collegial bodies do not have standing to perfect an appeal the body itself has declined to take"); United States v. Ballin, 144 U. S. 1 ,7 (1892) ("The two houses of Congress are legislative bodies representing larger constituencies. Power is not vested in anyone individual, but in the aggregate of the members who compose the body, and its action is not the action of any separate member or number of members, but the action of the body as a whole"). 830 SOUTER, J., concurring in judgment be different if any of these circumstances were different we need not now decide. We therefore hold that these individual members of Congress do not have a sufficient "personal stake" in this dispute and have not alleged a sufficiently concrete injury to have established Article III standing.ll The judgment of the District Court is vacated, and the case is remanded with instructions to dismiss the complaint for lack of jurisdiction. It is so ordered. JUSTICE SOUTER, with whom JUSTICE GINSBURG joins, concurring in the judgment. Appellees claim that the Line Item Veto Act, Pub. L. 104130, 110 Stat. 1200, codified at 2 U. S. C. § 691 et seq. (1994 ed., Supp. II), is unconstitutional because it grants the President power, which Article I vests in Congress, to repeal a provision of federal law. As JUSTICE STEVENS points out, appellees essentially claim that, by granting the President power to repeal statutes, the Act injures them by depriving them of their official role in voting on the provisions that become law. See post, at 836-837. Under our precedents, it is fairly debatable whether this injury is sufficiently "personal" and "concrete" to satisfy the requirements of Article IILl There is, first, difficulty in applying the rule that an injury on which standing is predicated be personal, not official. If 11 In addition, it is far from clear that this injury is "fairly traceable" to appellants, as our precedents require, since the alleged cause of appellees' injury is not appellants' exercise of legislative power but the actions of their own colleagues in Congress in passing the Act. Cf. Holtzman v. Schlesinger, 484 F.2d 1307 , 1315 (CA2 1973) ("Representative Holtzman ... has not been denied any right to vote on [the war in Cambodia] by any action of the defendants [Executive Branch officials] .... The fact that her vote was ineffective was due to the contrary votes of her colleagues and not the defendants herein"). 1 While Congress may, by authorizing suit for particular parties, remove any prudential standing barriers, as it has in this case, see ante, at 820, n. 3, it may not reduce the Article III minimums. 831 our standing doctrine recognized this as a distinction with a dispositive effect, the injury claimed would not qualify: the Court is certainly right in concluding that appellees sue not in personal capacities, but as holders of seats in the Congress. See ante, at 821. And yet the significance of this distinction is not so straightforward. In Braxton County Court v. West Virginia ex rel. State Tax Comm'rs, 208 U. S. 192 (1908), it is true, we dismissed a challenge by a county court to a state tax law for lack of jurisdiction, broadly stating that" 'the interest of a [party seeking relief] in this court should be a personal and not an official interest,'" id., at 198 (quoting Smith v. Indiana, 191 U. S. 138 , 149 (1903)); accord, Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U. S. 123 , 151 (1951) (Frankfurter, J., concurring). But the Court found Braxton County "inapplicable" to a challenge by a group of state legislators in Coleman v. Miller, 307 U. S. 433 , 438, and n. 3 (1939), and found the legislators had standing even though they claimed no injury but a deprivation of official voting power, id., at 437-446.2 Thus, it is at least arguable that the official nature of the harm here does not preclude standing. Nor is appellees' injury so general that, under our case law, they clearly cannot satisfy the requirement of concreteness. On the one hand, appellees are not simply claiming 2 As appellants note, it is also possible that the impairment of certain official powers may support standing for Congress, or one House thereof, to seek the aid of the Federal Judiciary. See Brieffor Appellants 26, n. 14 (citing McGrain v. Daugherty, 273 U. S. 135 , 174 (1927)). And, as appellants concede, see Brief for Appellants 20-21, 25-28, an injury to official authority may support standing for a government itself or its duly authorized agents, see, e. g., Diamond v. Charles, 476 U. S. 54 , 62 (1986) (noting that "a State has standing to defend the constitutionality of its statute" in federal court); ICC v. Oregon-Washington R. & Nav. Co., 288 U. S. 14 , 25-27 (1933) (explaining that a federal agency had standing to appeal, because an official or an agency could be designated to defend the interests of the Federal Government in federal court); Coleman v. Miller, 307 U. S. 433 , 441-445 (1939) (discussing cases). 832 SOUTER, J., concurring in judgment harm to their interest in having government abide by the Constitution, which would be shared to the same extent by the public at large and thus provide no basis for suit, see, e. g., Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464 , 482483 (1982); Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208 , 217, 220 (1974); Fairchild v. Hughes, 258 U. S. 126 , 129-130 (1922). Instead, appellees allege that the Act deprives them of an element of their legislative power; as a factual matter they have a more direct and tangible interest in the preservation of that power than the general citizenry has. Cf. Coleman, supra, at 438 (concluding that state legislators had a "plain" and "direct" interest in the effectiveness of their votes); see also Hendrick v. Walters, 865 P. 2d 1232, 1236-1238 (Okla. 1993) (concluding that a legislator had a personal interest in a suit to determine whether the Governor had lawfully assumed office due to substantial interaction between the Governor and legislature); Colorado General Assembly v. Lamm, 704 P. 2d 1371, 1376-1378 (Colo. 1985) (concluding that the legislature had suffered an injury in fact as a result of the Governor's exercise of his line item veto power). On the other hand, the alleged, continuing deprivation of federal legislative power is not as specific or limited as the nullification of the decisive votes of a group of legislators in connection with a specific item of legislative consideration in Coleman, being instead shared by all the members of the official class who could suffer that injury, the Members of Congress.3 Because it is fairly debatable whether appellees' injury is sufficiently personal and concrete to give them standing, it behooves us to resolve the question under more general 3 As the Court explains, Coleman may well be distinguishable on the further ground that it involved a suit by state legislators that did not implicate either the separation-of-powers concerns raised in this case or corresponding federalism concerns (since the Kansas Supreme Court had exercised jurisdiction to decide a federal issue). See ante, at 824-825, n.8. 833 separation-of-powers principles underlying our standing requirements. See Allen v. Wright, 468 U. S. 737 , 752 (1984); United States v. Richardson, 418 U. S. 166 , 188-197 (1974) (Powell, J., concurring). While "our constitutional structure [does not] requir[e] ... that the Judicial Branch shrink from a confrontation with the other two coequal branches," Valley Forge Christian College, 454 U. S., at 474, we have cautioned that respect for the separation of powers requires the Judicial Branch to exercise restraint in deciding constitutional issues by resolving those implicating the powers of the three branches of Government as a "last resort," see ibid. The counsel of restraint in this case begins with the fact that a dispute involving only officials, and the official interests of those, who serve in the branches of the National Government lies far from the model of the traditional common-law cause of action at the conceptual core of the case-or-controversy requirement, see Joint Anti-Fascist Refugee Comm., supra, at 150, 152 (Frankfurter, J., concurring). Although the contest here is not formally between the political branches (since Congress passed the bill augmenting Presidential power and the President signed it), it is in substance an interbranch controversy about calibrating the legislative and executive powers, as well as an intrabranch dispute between segments of Congress itself. Intervention in such a controversy would risk damaging the public confidence that is vital to the functioning of the Judicial Branch, cf. Valley Forge Christian College, supra, at 474 (quoting Richardson, supra, at 188 (Powell, J., concurring)), by embroiling the federal courts in a power contest nearly at the height of its political tension. While it is true that a suit challenging the constitutionality of this Act brought by a party from outside the Federal Government would also involve the Court in resolving the dispute over the allocation of power between the political branches, it would expose the Judicial Branch to a lesser risk. Deciding a suit to vindicate an interest outside the 834 SOUTER, J., concurring in judgment Government raises no specter of judicial readiness to enlist on one side of a political tug-of-war, since "the propriety of such action by a federal court has been recognized since Marbury v. Madison, 1 Cranch 137 (1803)." Valley Forge Christian College, supra, at 473-474. And just as the presence of a party beyond the Government places the Judiciary at some remove from the political forces, the need to await injury to such a plaintiff allows the courts some greater separation in the time between the political resolution and the judicial review. "[B]y connecting the censureship of the laws with the private interests of members of the community, ... the legislation is protected from wanton assailants, and from the daily aggressions of party-spirit." 1 A. de Tocqueville, Democracy in America 105 (Schoken ed. 1961). The virtue of waiting for a private suit is only confirmed by the certainty that another suit can come to us. The parties agree, and I see no reason to question, that if the President "cancels" a conventional spending or tax provision pursuant to the Act, the putative beneficiaries of that provision will likely suffer a cognizable injury and thereby have standing under Article III. See Brief for Appellants 19-20, and n. 10; Brief for Appellees 32-33. By depriving beneficiaries of the money to which they would otherwise be entitled, a cancellation would produce an injury that is "actual," "personal and individual," and involve harm to a "legally protected interest," Lujan v. Defenders of Wildlife, 504 U. S. 555 , 560, and n. 1 (1992) (internal quotation marks omitted); assuming the canceled provision would not apply equally to the entire public, the injury would be "concrete," id., at 560, 573-574; and it would be "fairly trace[able] to the challenged action of the" executive officials involved in the cancellation, id., at 560 (internal quotation marks omitted), as well as probably "redress[able] by a favorable decision," id., at 561 (internal quotation marks and citation omitted). See, e. g., 835 Train v. City of New York, 420 U. S. 35 , 40 (1975) (suit by City of New York seeking proper allotment of federal funds). While the Court has declined to lower standing requirements simply because no one would otherwise be able to litigate a claim, see Valley Forge Christian College, supra, at 489; Schlesinger, 418 U. S., at 227; United States v. Richardson, supra, at 179, the certainty of a plaintiff who obviously would have standing to bring a suit to court after the politics had at least subsided from a full boil is a good reason to resolve doubts about standing against the plaintiff invoking an official interest, cf. Joint Anti-Fascist Refugee Comm., 341 U. S., at 153-154 (Frankfurter, J., concurring) (explaining that the availability of another person to bring suit may affect the standing calculus). I therefore conclude that appellees' alleged injuries are insufficiently personal and concrete to satisfy Article III standing requirements of personal and concrete harm. Since this would be so in any suit under the conditions here, I accordingly find no cognizable injury to appellees. JUSTICE STEVENS, dissenting. The Line Item Veto Act purports to establish a procedure for the creation of laws that are truncated versions of bills that have been passed by the Congress and presented to the President for signature. If the procedure is valid, it will deny every Senator and every Representative any opportunity to vote for or against the truncated measure that survives the exercise of the President's cancellation authority. Because the opportunity to cast such votes is a right guaranteed by the text of the Constitution, I think it clear that the persons who are deprived of that right by the Act have standing to challenge its constitutionality. Moreover, because the impairment of that constitutional right has an immediate impact on their official powers, in my judgment they need not wait until after the President has exercised his cancellation authority to bring suit. Finally, the same reason 836 that the appellees have standing provides a sufficient basis for concluding that the statute is unconstitutional. Article I, § 7, of the Constitution provides that every Senator and every Representative has the power to vote on "Every Bill ... before it become a law" either as a result of its having been signed by the President or as a result of its "Reconsideration" in the light of the President's "Objections." 1 In contrast, the Line Item Veto Act establishes a mechanism by which bills passed by both Houses of Congress will eventually produce laws that have not passed either House of Congress and that have not been voted on by any Senator or Representative. Assuming for the moment that this procedure is constitutionally permissible, and that the President will from time to time exercise the power to cancel portions of a justenacted law, it follows that the statute deprives every Senator and every Representative of the right to vote for or against measures that may become law. The appellees cast their challenge to the constitutionality of the Act in a slightly different way. Their complaint asserted that the Act "alteres] the legal and practical effect of all votes they may cast 1 The full text of the relevant paragraph of § 7 provides: "Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law." U. S. Const., Art. I, § 7. 837 on bills containing such separately vetoable items" and "divest[s] the[m] of their constitutional role in the repeal of legislation." Complaint' 14. These two claimed injuries are at base the same as the injury on which I rest my analysis. The reason the complaint frames the issues in the way that it does is related to the Act's technical operation. Under the Act, the President would receive and sign a bill exactly as it passed both Houses, and would exercise his partial veto power only after the law had been enacted. See 2 U. S. C. § 691(a) (1994 ed., Supp. II). The appellees thus articulated their claim as a combination of the diminished effect of their initial vote and the circumvention of their right to participate in the subsequent repeal. Whether one looks at the claim from this perspective, or as a simple denial of their right to vote on the precise text that will ultimately become law, the basic nature of the injury caused by the Act is the same. In my judgment, the deprivation of this right-essential to the legislator's office-constitutes a sufficient injury to provide every Member of Congress with standing to challenge the constitutionality of the statute. If the dilution of an individual voter's power to elect representatives provides that voter with standing-as it surely does, see, e. g., Baker v. Carr, 369 U. S. 186 , 204-208 (1962)-the deprivation of the right possessed by each Senator and Representative to vote for or against the precise text of any bill before it becomes law must also be a sufficient injury to create Article III standing for them.2 Although, as JUSTICE BREYER demonstrates, see post, at 840-843 (dissenting opinion), the majority's attempt to distinguish Coleman v. Miller, 307 U. S. 433 , 438 (1939), is not persuasive, I need not rely on that case to 2 The appellees' assertion of their right to vote on legislation is not simply a generalized interest in the proper administration of government, cf. Allen v. Wright, 468 U. S. 737 , 754 (1984), and the legislators' personal interest in the ability to exercise their constitutionally ensured power to vote on laws is certainly distinct from the interest that an individual citizen challenging the Act might assert. 838 support my view that the Members of Congress have standing to sue in this instance. In Coleman, the legislators complained that their votes were denied full effectiveness. See ibid.; see also Dyer v. Blair, 390 F. Supp. 1291, 1297, n. 12 (ND Ill. 1975). But the law at issue here does not simply alter the effect of the legislators' votes; it denies them any opportunity at all to cast votes for or against the truncated versions of the bills presented to the President.3 Moreover, the appellees convincingly explain how the immediate, constant threat of the partial veto power has a palpable effect on their current legislative choices. See Brief for Appellees 23-25, 29-31. Because the Act has this immediate and important impact on the powers of Members of Congress, and on the manner in which they undertake their legislative responsibilities, they need not await an exercise of the President's cancellation authority to institute the litigation that the statute itself authorizes. See 2 U. S. C. § 692(a)(1) (1994 ed., Supp. II). Given the fact that the authority at stake is granted by the plain and unambiguous text of Article I, it is equally clear to me that the statutory attempt to eliminate it is invalid. Accordingly, I would affirm the judgment of the District Court. JUSTICE BREYER, dissenting. As the majority points out, Congress has enacted a specific statute (signed by the President) granting the plaintiffs authority to bring this case. Ante, at 815-816, citing 2 U. S. C. 3 The majority's reference to the absence of any similar suit in earlier disputes between Congress and the President, see ante, at 826-828, does not strike me as particularly relevant. First, the fact that others did not choose to bring suit does not necessarily mean the Constitution would have precluded them from doing so. Second, because Congress did not authorize declaratory judgment actions until the federal Declaratory Judgment Act of 1934, 48 Stat. 955, the fact that President Johnson did not bring such an action in 1868 is not entirely surprising. 839 § 692(a)(1) (1994 ed., Supp. II). That statutory authorization "eliminates any prudential standing limitations and significantly lessens the risk of unwanted conflict with the Legislative Branch." Ante, at 820, n. 3. Congress, however, cannot grant the federal courts more power than the Constitution itself authorizes us to exercise. Cf. Hayburn's Case, 2 Dall. 409 (1792). Thus, we can proceed to the merits only if the "judicial Power" of the United States-"extend[ing] to ... Cases, in Law and Equity" and to "Controversies"-covers the dispute before us. U. S. Const., Art. III, §2. I concede that there would be no case or controversy here were the dispute before us not truly adversary, or were it not concrete and focused. But the interests that the parties assert are genuine and opposing, and the parties are therefore truly adverse. Cf. Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339 (1892). Moreover, as JUSTICE STEVENS points out, the harm that the plaintiffs suffer (on their view of the law) consists in part of the systematic abandonment of laws for which a majority voted, in part of the creation of other laws in violation of procedural rights which (they say) the Constitution provides them, and in part of the consequent and immediate impediment to their ability to do the job that the Constitution requires them to do. See ante, at 835-837,838 (dissenting opinion); Complaint' 14; App. 3436, 39-40, 42-46, 54-55, 57-59, 62-64. Since federal courts might well adjudicate cases involving comparable harms in other contexts (such as purely private contexts), the harm at issue is sufficiently concrete. Cf., e. g., Bennett v. Spear, 520 U. S. 154, 167-174 (1997); Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U. S. 656 (1993). See also ante, at 831-832 (SOUTER, J., concurring in judgment). The harm is focused and the accompanying legal issues are both focused and of the sort that this Court is used to deciding. See, e. g., United States v. Munoz-Flores, 495 U. S. 385 , 392-396 (1990). The plaintiffs 840 therefore do not ask the Court "to pass upon" an "abstract, intellectual proble[m]," but to determine "a concrete, living contest between" genuine "adversaries." Coleman v. Miller, 307 U. S. 433 , 460 (1939) (Frankfurter, J., dissenting). Nonetheless, there remains a serious constitutional difficulty due to the fact that this dispute about lawmaking procedures arises between Government officials and is brought by legislators. The critical question is whether or not this dispute, for that reason, is so different in form from those "matters that were the traditional concern of the courts at Westminster" that it falls outside the scope of Article Ill's judicial power. Ibid. Justice Frankfurter explained this argument in his dissent in Coleman, saying that courts traditionally "leave intra-parliamentary controversies to parliaments and outside the scrutiny of law courts. The procedures for voting in legislative assemblies-who are members, how and when they should vote, what is the requisite number of votes for different phases of legislative activity, what votes were cast and how they were countedsurely are matters that not merely concern political action, but are of the very essence of political action, if 'political' has any connotation at all. ... In no sense are they matters of 'private damage.' They pertain to legislators not as individuals but as political representatives executing the legislative process. To open the law courts to such controversies is to have courts sit in judgment on the manifold disputes engendered by procedures for voting in legislative assemblies." Id., at 469-470. Justice Frankfurter dissented because, in his view, the "political" nature of the case, which involved legislators, placed the dispute outside the scope of Article Ill's "case" or "controversy" requirement. Nonetheless, the Coleman court rejected his argument. 841 Although the majority today attempts to distinguish Coleman, ante, at 821-826, I do not believe that Justice Frankfurter's argument or variations on its theme can carry the day here. First, as previously mentioned, the jurisdictional statute before us eliminates all but constitutional considerations, and the circumstances mentioned above remove all but the "political" or "intragovernmental" aspect of the constitutional issue. Supra, at 838-839. Second, the Constitution does not draw an absolute line between disputes involving a "personal" harm and those involving an "official" harm." Cf. ante, at 818, 821. See ante, at 831, n. 2 (SOUTER, J., concurring in judgment). Justice Frankfurter himself said that this Court had heard cases involving injuries suffered by state officials in their official capacities. Coleman, supra, at 466 (citing Blodgett v. Silberman, 277 U. S. 1 (1928), and Boynton v. Hutchinson, 291 U. S. 656, cert. dism'd on other grounds, 292 U. S. 601 (1934)). See also, e. g., Will v. Calvert Fire Ins. Co., 437 U. S. 655 , 661 (1978) (Federal District Judge appealing mandamus issued against him in respect to a docketkeeping matter); Board of Ed. of Central School Dist. No.1 v. Allen, 392 U. S. 236 , 241, n. 5 (1968) (indicating that school board has standing where members must either violate oath or risk loss of school funds and expulsion from office). Coleman itself involved injuries in the plaintiff legislators' official capacity. And the majority in this case, suggesting that legislators might have standing to complain of rules that "denied" them "their vote ... in a discriminatory manner," concedes at least the possibility that any constitutional rule distinguishing "official" from "personal" injury is not absolute. Ante, at 824, n. 7. See also ante, at 821. Third, Justice Frankfurter's views were dissenting views, and the dispute before us, when compared to Coleman, presents a much stronger claim, not a weaker claim, for constitutional justiciability. The lawmakers in Coleman complained of a lawmaking procedure that, at worst, improperly counted 842 Kansas as having ratified one proposed constitutional amendment, which had been ratified by only 5 other States, and rejected by 26, making it unlikely that it would ever become law. Coleman, supra, at 436. The lawmakers in this case complain of a lawmaking procedure that threatens the validity of many laws (for example, all appropriations laws) that Congress regularly and frequently enacts. The systematic nature of the harm immediately affects the legislators' ability to do their jobs. The harms here are more serious, more pervasive, and more immediate than the harm at issue in Coleman. Cf. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464 , 471 (1982), quoting Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S., at 345 (judicial power" 'is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy' "). The majority finds a difference in the fact that the validity of the legislators' votes was directly at issue in Coleman. "[O]ur holding in Coleman stands ... for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified." Ante, at 823. But since many of the present plaintiffs will likely vote in the majority for at least some appropriations bills that are then subject to Presidential cancellation, I think that-on their view of the law-their votes are threatened with nullification too. Cf. ante, at 823, n. 6, 825. The majority also suggests various distinctions arising out of the fact that Coleman involved a state legislature, rather than the federal Congress. Ante, at 824-825, n. 8. See also ante, at 832, n. 3 (SOUTER, J., concurring in judgment). But Justice Frankfurter treated comparable arguments as irrelevant, and the Coleman majority did not disagree. Coleman, 843 307 U. S., at 462, 465-466, and n. 6 (Frankfurter, J., dissenting); id., at 446. While I recognize the existence of potential differences between state and federal legislators, I do not believe that those differences would be determinative here, where constitutional, not prudential, considerations are at issue, particularly given the Constitution's somewhat comparable concerns for state authority and the presence here of a federal statute (signed by the President) specifically authorizing this lawsuit. Cf. ante, at 833 (SOUTER, J., concurring in judgment). And in light of the immediacy of the harm, I do not think that the possibility of a later challenge by a private plaintiff, see ante, at 834-835 (SOUTER, J., concurring in judgment), could be constitutionally determinative. Finally, I do not believe that the majority's historical examples primarily involving the Executive Branch and involving lawsuits that were not brought, ante, at 826-828, are legally determinative. See ante, at 838, n. 3 (STEVENS, J., dissenting). In sum, I do not believe that the Court can find this case nonjusticiable without overruling Coleman. Since it does not do so, I need not decide whether the systematic nature, seriousness, and immediacy of the harm would make this dispute constitutionally justiciable even in Coleman's absence. Rather, I can and would find this case justiciable on Coleman's authority. I add that because the majority has decided that this dispute is not now justiciable and has expressed no view on the merits of the appeal, I shall not discuss the merits either, but reserve them for future argument.

Only the plaintiffs who have been personally injured by an adverse action have standing to sue, and political power loss is not a judicially cognizable injury. The Supreme Court ruled that the Members of Congress who voted against the Line Item Veto Act lacked standing to sue because they did not suffer a personal injury and their votes were not nullified.

Role of Courts

FEC v. Akins

https://supreme.justia.com/cases/federal/us/524/11/

OCTOBER TERM, 1997 Syllabus FEDERAL ELECTION COMMISSION v. AKINS ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 96-1590. Argued January 14, 1998-Decided June 1, 1998 The Federal Election Campaign Act of 1971 (FECA) seeks to remedy corruption of the political process. As relevant here, it imposes extensive recordkeeping and disclosure requirements upon "political committee[s]," which include "any committee, club, association or other group of persons which receives" more than $1,000 in "contributions" or "which makes" more than $1,000 in "expenditures" in any given year, 2 U. S. C. §431(4)(A) (emphasis added), "for the purpose of influencing any election for Federal office," §§ 431(8)(A)(i), (9)(A)(i). Assistance given to help a particular candidate will not count toward the $1,000 "expenditure" ceiling if it takes the form of a "communication" by a "membership organization or corporation" "to its members" -as long as the organization is not "organized primarily for the purpose of influencing [any individual's] nomination ... or election." § 431(9)(B)(iii). Respondents, voters with views often opposed to those of the American Israel Public Mfairs Committee (AIPAC), filed a compliant with petitioner Federal Election Commission (FE C), asking the FEC to find that AIPAC had violated FECA and, among other things, to order AIPAC to make public the information that FECA demands of political committees. In dismissing the complaint, the FEC found that AIPAC's communications fell outside FECA's membership communications exception. Nonetheless, it concluded, AIPAC was not a "political committee" because, as an issue-oriented lobbying organization, its major purpose was not the nomination or election of candidates. The District Court granted the FEC summary judgment when it reviewed the determination, but the en banc Court of Appeals reversed on the ground that the FEC's major purpose test improperly interpreted FECA's definition of a political committee. The case presents this Court with two questions: (1) whether respondents had standing to challenge the FEC's decision, and (2) whether an organization falls outside FECA's definition of a "political committee" because "its major purpose" is not "the nomination or election of candidates." Held: 1. Respondents, as voters seeking information to which they believe FECA entitles them, have standing to challenge the FEC's decision not to bring an enforcement action. Pp. 19-26. 12 Syllabus (a) Respondents satisfy prudential standing requirements. FECA specifically provides that "[a]ny person" who believes FECA has been violated may file a complaint with the FEC, §437g(a)(1), and that "[a]ny party aggrieved" by an FEC order dismissing such party's complaint may seek district court review of the dismissal, § 437g(a)(8)(A). History associates the word "aggrieved" with a congressional intent to cast the standing net broadly-beyond the common-law interests and substantive statutory rights upon which "prudential" standing traditionally rested. E. g., FCC v. Sanders Brothers Radio Station, 309 U. S. 470 . Moreover, respondents' asserted injury-their failure to obtain relevant information-is injury of a kind that FECA seeks to address. Pp.19-20. (b) Respondents also satisfy constitutional standing requirements. Their inability to obtain information that, they claim, FECA requires AIPAC to make public meets the genuine "injury in fact" requirement that helps assure that the court will adjudicate "[a] concrete, living contest between adversaries." Coleman v. Miller, 307 U. S. 433 , 460 (Frankfurter, J., dissenting). United States v. Richardson, 418 U. S. 166 , distinguished. The fact that the harm at issue is widely shared does not deprive Congress of constitutional power to authorize its vindication in the federal courts where the harm is concrete. See Public Citizen v. Department of Justice, 491 U. S. 440 , 449-450. The informational injury here, directly related to voting, the most basic of political rights, is sufficiently concrete. Respondents have also satisfied the remaining two constitutional standing requirements: The harm asserted is "fairly traceable" to the FEC's decision not to issue its complaint, and the courts in this case can "redress" that injury. Pp. 20-25. (c) Finally, FECA explicitly indicates a congressional intent to alter the traditional view that agency enforcement decisions are not subject to judicial review. Heckler v. Chaney, 470 U. S. 821 , 832, distinguished. P. 26. 2. Because of the unusual and complex circumstances in which the case arises, the second question presented cannot be addressed here, and the case must be remanded. After the FEC determined that many persons belonging to AIPAC were not "members" under FEC regulations, the Court of Appeals overturned those regulations in another case, in part because it thought they defined membership organizations too narrowly in light of an organization's First Amendment right to communicate with its members. The FEC's new "membership organization" rules could significantly affect the interpretative issue presented by Question Two. Thus, the FEC should proceed to determine whether or not AIPAC's expenditures qualify as "membership communications" under the new rules, and thereby fall outside the scope of "expendi- 13 tures" that could qualify it as a "political committee." If it decides that the communications here do not qualify, then the lower courts can still evaluate the significance of the communicative context in which the case arises. If, on the other hand, it decides that they do qualify, the matter will become moot. Pp. 26-29. 101 F.3d 731 , vacated and remanded. BREYER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, KENNEDY, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed a dissenting opinion, in which O'CONNOR and THOMAS, JJ., joined, post, p. 29. Solicitor General Waxman argued the cause for the United States. With him on the briefs were Acting Solicitor General Dellinger, Malcolm L. Stewart, Lawrence M. Noble, Richard B. Bader, and David Kolker. Daniel M. Schember argued the cause for respondents. With him on the brief was Abdeen Jabara.* JUSTICE BREYER delivered the opinion of the Court. The Federal Election Commission (FEC) has determined that the American Israel Public Affairs Committee (AlP AC) is not a "political committee" as defined by the Federal Election Campaign Act of 1971 (FECA or Act), 86 Stat. 11, as amended, 2 U. S. C. § 431(4), and, for that reason, the FEC has refused to require AIPAC to make disclosures regarding its membership, contributions, and expenditures that FECA would otherwise require. We hold that respondents, a group of voters, have standing to challenge the *Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by Joel M. Gora, Steven R. Shapiro, and Arthur N. Eisenberg; and for the National Right to Life Committee, Inc., by James Bopp, Jr. A. Stephen Hut, Jr., Roger M. Witten, Jeffrey P. Singdahlsen, and Donald J. Simon filed a brief for Common Cause as amicus curiae urging affirmance. Briefs of amici curiae were filed for the American Israel Public Affairs Committee by Theodore B. Olson, Mel Levine, Thomas G. Hungar, and Philip Friedman; and for the Brennan Center for Justice by Burt Neuborne. 14 Commission's determination in court, and we remand this case for further proceedings. I In light of our disposition of this case, we believe it necessary to describe its procedural background in some detail. As commonly understood, the FECA seeks to remedy any actual or perceived corruption of the political process in several important ways. The Act imposes limits upon the amounts that individuals, corporations, "political committees" (including political action committees), and political parties can contribute to a candidate for federal political office. §§ 441a(a), 441a(b), 441b. The Act also imposes limits on the amount these individuals or entities can spend in coordination with a candidate. (It treats these expenditures as "contributions to" a candidate for purposes of the Act.) § 441a(a)(7)(B)(i). As originally written, the Act set limits upon the total amount that a candidate could spend of his own money, and upon the amounts that other individuals, corporations, and "political committees" could spend independent of a candidate-though the Court found that certain of these last-mentioned limitations violated the First Amendment. Buckley v. Valeo, 424 U. S. 1 , 39-59 (1976) (per curiam); Federal Election Comm'n v. National Conservative Political Action Comm., 470 U. S. 480 , 497 (1985); cf. Colorado Republican Federal Campaign Comm. v. Federal Election Comm'n, 518 U. S. 604 , 613-619 (1996) (opinion of BREYER, J.). This case concerns requirements in the Act that extend beyond these better-known contribution and expenditure limitations. In particular, the Act imposes extensive recordkeeping and disclosure requirements upon groups that fall within the Act's definition of a "political committee." Those groups must register with the FEC, appoint a treasurer, keep names and addresses of contributors, track the amount and purpose of disbursements, and file complex FEC 15 reports that include lists of donors giving in excess of $200 per year (often, these donors may be the group's members), contributions, expenditures, and any other disbursements irrespective of their purposes. §§ 432-434. The Act's use of the word "political committee" calls to mind the term "political action committee," or "PAC," a term that normally refers to organizations that corporations or trade unions might establish for the purpose of making contributions or expenditures that the Act would otherwise prohibit. See §§ 431(4)(B), 441b. But, in fact, the Act's term "political committee" has a much broader scope. The Act states that a "political committee" includes "any committee, club, association or other group of persons which receives" more than $1,000 in "contributions" or "which makes" more than $1,000 in "expenditures" in any given year. § 431(4)(A) (emphasis added). This broad definition, however, is less universally encompassing than at first it may seem, for later definitional subsections limit its scope. The Act defines the key terms "contribution" and "expenditure" as covering only those contributions and expenditures that are made "for the purpose of influencing any election for Federal office." §§ 431(8)(A)(i), (9)(A)(i). Moreover, the Act sets forth detailed categories of disbursements, loans, and assistancein-kind that do not count as a "contribution" or an "expenditure," even when made for election-related purposes. §§ 431(8)(B), (9)(B). In particular, assistance given to help a candidate will not count toward the $1,000 "expenditure" ceiling that qualifies an organization as a "political committee" if it takes the form of a "communication" by an organization "to its members"-as long as the organization at issue is a "membership organization or corporation" and it is not "organized primarily for the purpose of influencing the nomination ... or electio[n] of any individual." § 431(9)(B)(iii). This case arises out of an effort by respondents, a group of voters with views often opposed to those of AlP AC, to 16 persuade the FEC to treat AIPAC as a "political committee." Respondents filed a complaint with the FEC, stating that AIPAC had made more than $1,000 in qualifying "expenditures" per year, and thereby became a "political committee." 1 Record, Exh. B, p. 4. They added that AlP AC had violated the FEC provisions requiring "political committee[sJ" to register and to make public the information about members, contributions, and expenditures to which we have just referred. Id., at 2, 9-17. Respondents also claimed that AIPAC had violated § 441b of FECA, which prohibits corporate campaign "contribution[sJ" and "expenditure[sJ." Id., at 2, 16-17. They asked the FEC to find that AIPAC had violated the Act, and, among other things, to order AlP AC to make public the information that FECA demands of a "political committee." Id., at 33-34. AIPAC asked the FEC to dismiss the complaint. AIPAC described itself as an issue-oriented organization that seeks to maintain friendship and promote goodwill between the United States and Israel. App. 120; see also Brief for AIPAC as Amicus Curiae (AIPAC Brief) 1,3. AIPAC conceded that it lobbies elected officials and disseminates information about candidates for public office. App. 43, 120; see also AlP AC Brief 6. But in responding to the § 441b charge, AlP AC denied that it had made the kinds of "expenditures" that matter for FECA purposes (i. e., the kinds of electionrelated expenditures that corporations cannot make, and which count as the kind of expenditures that, when they exceed $1,000, qualify a group as a "political committee"). To put the matter more specifically: AlP AC focused on certain "expenditures" that respondents had claimed were election related, such as the costs of meetings with candidates, the introduction of AlP AC members to candidates, and the distribution of candidate position papers. AlP AC said that its spending on such activities, even if election related, fell within a relevant exception. They amounted, said AlP AC, 17 to communications by a membership organization with its members, App. 164-166, which the Act exempts from its definition of "expenditures," § 431(9)(B)(iii). In AIPAC's view, these communications therefore did not violate § 441b's corporate expenditure prohibition. 2 Record, Doc. No. 19, pp. 2-6. (And, if AlP AC was right, those expenditures would not count toward the $1,000 ceiling on "expenditures" that might transform an ordinary issue-related group into a "political committee." § 431(4).) The FEC's General Counsel concluded that, between 1983 and 1988, AlP AC had indeed funded communications of the sort described. The General Counsel said that those expenditures were campaign related, in that they amounted to advocating the election or defeat of particular candidates. App. 106-108. He added that these expenditures were "likely to have crossed the $1,000 threshold." Id., at 146. At the same time, the FEC closed the door to AlP AC's invocation of the "communications" exception. The FEC said that, although it was a "close question," these expenditures were not membership communications, because that exception applies to a membership organization's communications with its members, and most of the persons who belonged to AlP AC did not qualify as "members" for purposes of the Act. App. to Pet. for Cert. 97a-98a; see also App. 170-173. Still, given the closeness of the issue, the FEC exercised its discretion and decided not to proceed further with respect to the claimed "corporate contribution" violation. App. to Pet. for Cert. 98a. The FEC's determination that many of the persons who belonged to AIPAC were not "members" effectively foreclosed any claim that AlP AC's communications did not count as "expenditures" for purposes of determining whether it was a "political committee." Since AIPAC's activities fell outside the "membership communications" exception, AlP AC could not invoke that exception as a way of escaping 18 the scope of the Act's term "political committee" and the Act's disclosure provisions, which that definition triggers. The FEC nonetheless held that AlP AC was not subject to the disclosure requirements, but for a different reason. In the FEC's view, the Act's definition of "political committee" includes only those organizations that have as a "major purpose" the nomination or election of candidates. Cf. Buckley v. Valeo, 424 U. S., at 79. AIPAC, it added, was fundamentally an issue-oriented lobbying organization, not a campaign-related organization, and hence AIPAC fell outside the definition of a "political committee" regardless. App. 146. The FEC consequently dismissed respondents' complaint. Respondents filed a petition in Federal District Court seeking review of the FEC's determination dismissing their complaint. See §§ 437g(a)(8)(A), 437g(a)(8)(C). The District Court granted summary judgment for the FEC, and a divided panel of the Court of Appeals affirmed. 66 F.3d 348 (CADC 1995). The en banc Court of Appeals reversed, however, on the ground that the FEC's "major purpose" test improperly interpreted the Act's definition of a "political committee." 101 F.3d 731 (CADC 1997). We granted the FEC's petition for certiorari, which contained the following two questions: "1. Whether respondents had standing to challenge the Federal Election Commission's decision not to bring an enforcement action in this case. "2. Whether an organization that spends more than $1,000 on contributions or coordinated expenditures in a calendar year, but is neither controlled by a candidate nor has its major purpose the nomination or election of candidates, is a 'political committee' within the meaning of the [Act]." Brief for Petitioner I. We shall answer the first of these questions, but not the second. 19 II The Solicitor General argues that respondents lack standing to challenge the FEC's decision not to proceed against AlP AC. He claims that they have failed to satisfy the "prudential" standing requirements upon which this Court has insisted. See, e. g., National Credit Union Admin. v. First Nat. Bank & Trust Co., 522 U. S. 479 , 488 (1998) (NCUA); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150 , 153 (1970) (Data Processing). He adds that respondents have not shown that they "suffe[r] injury in fact," that their injury is "fairly traceable" to the FEC's decision, or that a judicial decision in their favor would "redres[s]" the injury. E. g., Bennett v. Spear, 520 U. S. 154, 162 (1997) (internal quotation marks omitted); Lujan v. Defenders of Wildlife, 504 U. S. 555 , 560-561 (1992). In his view, respondents' District Court petition consequently failed to meet Article Ill's demand for a "case" or "controversy." We do not agree with the FEC's "prudential standing" claim. Congress has specifically provided in FECA that "[a]ny person who believes a violation of this Act ... has occurred, may file a complaint with the Commission." § 437g(a)(1). It has added that "[a]ny party aggrieved by an order of the Commission dismissing a complaint filed by such party ... may file a petition" in district court seeking review of that dismissal. § 437g(a)(8)(A). History associates the word "aggrieved" with a congressional intent to cast the standing net broadly-beyond the common-law interests and substantive statutory rights upon which "prudential" standing traditionally rested. Scripps-Howard Radio, Inc. v. FCC, 316 U. S. 4 (1942); FCC v. Sanders Brothers Radio Station, 309 U. S. 470 (1940); Office of Communication of the United Church of Christ v. FCC, 359 F.2d 994 (CADC 1966) (Burger, J.); Associated Industries of New York State v. Ickes, 134 F.2d 694 (CA2 1943) (Frank, J.). Cf. Administrative Procedure Act, 5 U. S. C. § 702 (stating that those "suf- 20 fering legal wrong" or "adversely affected or aggrieved ... within the meaning of a relevant statute" may seek judicial review of agency action). Moreover, prudential standing is satisfied when the injury asserted by a plaintiff" 'arguably [falls] within the zone of interests to be protected or regulated by the statute ... in question.'" NCUA, supra, at 488 (quoting Data Processing, supra, at 153). The injury of which respondents complaintheir failure to obtain relevant information-is injury of a kind that FECA seeks to address. Buckley, supra, at 6667 ("political committees" must disclose contributors and disbursements to help voters understand who provides which candidates with financial support). We have found nothing in the Act that suggests Congress intended to exclude voters from the benefits of these provisions, or otherwise to restrict standing, say, to political parties, candidates, or their committees. Given the language of the statute and the nature of the injury, we conclude that Congress, intending to protect voters such as respondents from suffering the kind of injury here at issue, intended to authorize this kind of suit. Consequently, respondents satisfy "prudential" standing requirements. Cf. Raines v. Byrd, 521 U. S. 811 , 820, n. 3 (1997) (explicit grant of authority to bring suit "eliminates any prudential standing limitations and significantly lessens the risk of unwanted conflict with the Legislative Branch"). Nor do we agree with the FEC or the dissent that Congress lacks the constitutional power to authorize federal courts to adjudicate this lawsuit. Article III, of course, limits Congress' grant of judicial power to "cases" or "controversies." That limitation means that respondents must show, among other things, an "injury in fact" -a requirement that helps assure that courts will not "pass upon ... abstract, intellectual problems," but adjudicate "concrete, living contestes] between adversaries." Coleman v. Miller, 307 U. S. 433 , 460 (1939) (Frankfurter, J., dissenting); see also Bennett, 21 supra, at 167; Lujan, supra, at 560-561. In our view, respondents here have suffered a genuine "injury in fact." The "injury in fact" that respondents have suffered consists of their inability to obtain information-lists of AlP AC donors (who are, according to AIPAC, its members), and campaign-related contributions and expenditures-that, on respondents' view of the law, the statute requires that AlP AC make public. There is no reason to doubt their claim that the information would help them (and others to whom they would communicate it) to evaluate candidates for public office, especially candidates who received assistance from AlP AC, and to evaluate the role that AlP AC's financial assistance might play in a specific election. Respondents' injury consequently seems concrete and particular. Indeed, this Court has previously held that a plaintiff suffers an "injury in fact" when the plaintiff fails to obtain information which must be publicly disclosed pursuant to a statute. Public Citizen v. Department of Justice, 491 U. S. 440 , 449 (1989) (failure to obtain information subject to disclosure under Federal Advisory Committee Act "constitutes a sufficiently distinct injury to provide standing to sue"). See also Havens Realty Corp. v. Coleman, 455 U. S. 363 , 373-374 (1982) (deprivation of information about housing availability constitutes "specific injury" permitting standing). The dissent refers to United States v. Richardson, 418 U. S. 166 (1974), a case in which a plaintiff sought information (details of Central Intelligence Agency (CIA) expenditures) to which, he said, the Constitution's Accounts Clause, Art. I, § 9, cl. 7, entitled him. The Court held that the plaintiff there lacked Article III standing. 418 U. S., at 179-180. The dissent says that Richardson and this case are "indistinguishable." Post, at 34. But as the parties' briefs suggest-for they do not mention Richardson-that case does not control the outcome here. Richardson's plaintiff claimed that a statute permitting the CIA to keep its expenditures nonpublic violated the Ac- 22 counts Clause, which requires that "a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time." 418 U. S., at 167-169. The Court held that the plaintiff lacked standing because there was "no 'logical nexus' between the [plaintiff's] asserted status of taxpayer and the claimed failure of the Congress to require the Executive to supply a more detailed report of the [CIA's] expenditures." Id., at 175; see also id., at 174 (quoting Flast v. Cohen, 392 U. S. 83 , 102 (1968), for the proposition that in "taxpayer standing" cases, there must be "'a logical nexus between the status asserted and the claim sought to be adjudicated' "). In this case, however, the "logical nexus" inquiry is not relevant. Here, there is no constitutional provision requiring the demonstration of the "nexus" the Court believed must be shown in Richardson and Flast. Rather, there is a statute which, as we previously pointed out, supra, at 19-20, does seek to protect individuals such as respondents from the kind of harm they say they have suffered, i. e., failing to receive particular information about campaign-related activities. Cf. Richardson, 418 U. S., at 178, n. 11. The fact that the Court in Richardson focused upon taxpayer standing, id., at 171-178, not voter standing, places that case at still a greater distance from the case before us. We are not suggesting, as the dissent implies, post, at 32-34, that Richardson would have come out differently if only the plaintiff had asserted his standing to sue as a voter, rather than as a taxpayer. Faced with such an assertion, the Richardson Court would simply have had to consider whether "the Framers ... ever imagined that general directives [of the Constitution] ... would be subject to enforcement by anindividual citizen." 418 U. S., at 178, n. 11 (emphasis added). But since that answer (like the answer to whether there was taxpayer standing in Richardson) would have rested in significant part upon the Court's view of the Accounts Clause, it still would not control our answer in this case. All this is 23 to say that the legal logic which critically determined Richardson's outcome is beside the point here. The FEC's strongest argument is its contention that this lawsuit involves only a "generalized grievance." (Indeed, if Richardson is relevant at all, it is because of its broad discussion of this matter, see id., at 176-178, not its basic rationale.) The FEC points out that respondents' asserted harm (their failure to obtain information) is one which is "'shared in substantially equal measure by all or a large class of citizens.'" Brief for Petitioner 28 (quoting Warth v. Seldin, 422 U. S. 490 , 499 (1975)). This Court, the FEC adds, has often said that "generalized grievance[s]" are not the kinds of harms that confer standing. Brief for Petitioner 28; see also Lujan, 504 U. S., at 573-574; Allen v. Wright, 468 U. S. 737 , 755-756 (1984); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464 , 475-479 (1982); Richardson, supra, at 176-178; Frothingham v. Mellon, decided with Massachusetts v. Mellon, 262 U. S. 447 , 487 (1923); Ex parte Levitt, 302 U. S. 633, 634 (1937) (per curiam). Whether styled as a constitutional or prudential limit on standing, the Court has sometimes determined that where large numbers of Americans suffer alike, the political process, rather than the judicial process, may provide the more appropriate remedy for a widely shared grievance. Warth, supra, at 500; Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208 , 222 (1974); Richardson, 418 U. S., at 179; id., at 188-189 (Powell, J., concurring); see also Flast, supra, at 131 (Harlan, J., dissenting). The kind of judicial language to which the FEC points, however, invariably appears in cases where the harm at issue is not only widely shared, but is also of an abstract and indefinite nature-for example, harm to the "common concern for obedience to law." L. Singer & Sons v. Union Pacific R. Co., 311 U. S. 295 , 303 (1940); see also Allen, supra, at 754; Schlesinger, supra, at 217. Cf. Lujan, supra, at 572-578 (injury to interest in seeing that certain procedures are fol- 24 lowed not normally sufficient by itself to confer standing); Frothingham, supra, at 488 (party may not merely assert that "he suffers in some indefinite way in common with people generally"); Perkins v. Lukens Steel Co., 310 U. S. 113 , 125 (1940) (plaintiffs lack standing because they have failed to show injury to "a particular right of their own, as distinguished from the public's interest in the administration of the law"). The abstract nature of the harm-for example, injury to the interest in seeing that the law is obeyed-deprives the case of the concrete specificity that characterized those controversies which were "the traditional concern of the courts at Westminster," Coleman, 307 U. S., at 460 (Frankfurter, J., dissenting); and which today prevents a plaintiff from obtaining what would, in effect, amount to an advisory opinion. Cf. Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 240-241 (1937). Often the fact that an interest is abstract and the fact that it is widely shared go hand in hand. But their association is not invariable, and where a harm is concrete, though widely shared, the Court has found "injury in fact." See Public Citizen, 491 U. S., at 449-450 ("The fact that other citizens or groups of citizens might make the same complaint after unsuccessfully demanding disclosure ... does not lessen [their] asserted injury"). Thus the fact that a political forum may be more readily available where an injury is widely shared (while counseling against, say, interpreting a statute as conferring standing) does not, by itself, automatically disqualify an interest for Article III purposes. Such an interest, where sufficiently concrete, may count as an "injury in fact." This conclusion seems particularly obvious where (to use a hypothetical example) large numbers of individuals suffer the same common-law injury (say, a widespread mass tort), or where large numbers of voters suffer interference with voting rights conferred by law. Cf. Lujan, supra, at 572; Shaw v. Hunt, 517 U. S. 899 , 905 (1996). We conclude that, similarly, the informational injury at issue here, di- 25 rectly related to voting, the most basic of political rights, is sufficiently concrete and specific such that the fact that it is widely shared does not deprive Congress of constitutional power to authorize its vindication in the federal courts. Respondents have also satisfied the remaining two constitutional standing requirements. The harm asserted is "fairly traceable" to the FEC's decision about which respondents complain. Of course, as the FEC points out, Brief for Petitioner 29-31, it is possible that even had the FEC agreed with respondents' view of the law, it would still have decided in the exercise of its discretion not to require AlP AC to produce the information. Cf. App. to Pet. for Cert. 98a (deciding to exercise prosecutorial discretion, see Heckler v. Chaney, 470 U. S. 821 (1985), and "take no further action" on § 441b allegation against AIPAC). But that fact does not destroy Article III "causation," for we cannot know that the FEC would have exercised its prosecutorial discretion in this way. Agencies often have discretion about whether or not to take a particular action. Yet those adversely affected by a discretionary agency decision generally have standing to complain that the agency based its decision upon an improper legal ground. See, e. g., Abbott Laboratories v. Gardner, 387 U. S. 136 , 140 (1967) (discussing presumption of reviewability of agency action); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402 , 410 (1971). If a reviewing court agrees that the agency misinterpreted the law, it will set aside the agency's action and remand the case-even though the agency (like a new jury after a mistrial) might later, in the exercise of its lawful discretion, reach the same result for a different reason. SEC v. Chenery Corp., 318 U. S. 80 (1943). Thus respondents' "injury in fact" is "fairly traceable" to the FEC's decision not to issue its complaint, even though the FEC might reach the same result exercising its discretionary powers lawfully. For similar reasons, the courts in this case can "redress" respondents' "injury in fact." 26 Finally, the FEC argues that we should deny respondents standing because this case involves an agency's decision not to undertake an enforcement action-an area generally not subject to judicial review. Brief for Petitioner 23, 29. In Heckler, this Court noted that agency enforcement decisions "ha[ve] traditionally been 'committed to agency discretion,'" and concluded that Congress did not intend to alter that tradition in enacting the AP A. 470 U. S., at 832; cf. 5 U. S. C. § 701(a) (courts will not review agency actions where "statutes preclude judicial review," or where the "agency action is committed to agency discretion by law"). We deal here with a statute that explicitly indicates the contrary. In sum, respondents, as voters, have satisfied both prudential and constitutional standing requirements. They may bring this petition for a declaration that the FEC's dismissal of their complaint was unlawful. See 2 U. S. C. § 437 g(a)(8) (A). III The second question presented in the FEC's petition for certiorari is whether an organization that otherwise satisfies the Act's definition of a "political committee," and thus is subject to its disclosure requirements, nonetheless falls outside that definition because "its major purpose" is not "the nomination or election of candidates." The question arises because this Court, in Buckley, said: "To fulfill the purposes of the Act [the term 'political committee'] need only encompass organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate." 424 U. S., at 79. The Court reiterated in Federal Election Comm'n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238 , 252, n. 6 (1986): "[A]n entity subject to regulation as a 'political committee' under the Act is one that is either 'under the control 27 of a candidate or the major purpose of which is the nomination or election of a candidate.'" The FEC here interpreted this language as narrowing the scope of the statutory term "political committee," wherever applied. And, as we have said, the FEC's General Counsel found that AlP AC fell outside that definition because the nomination or election of a candidate was not AlP AC's "major purpose." App. 146. The en banc Court of Appeals disagreed with the FEC. It read this Court's narrowing construction of the term "political committee" as turning on the First Amendment problems presented by regulation of "independent expenditures" (i. e., "an expenditure by a person expressly advocating the election or defeat of a clearly identified candidate which is made without cooperation or consultation with any candidate," § 431(17)). 101 F. 3d, at 741. The Court of Appeals concluded that the language in this Court's prior decisions narrowing the definition of "political committee" did not apply where the special First Amendment "independent expenditure" problem did not exist. Id., at 742-743. The Solicitor General argues that this Court's narrowing definition of "political committee" applies not simply in the context of independent expenditures, but across the board. We cannot squarely address that matter, however, because of the unusual and complex circumstances in which this case arises. As we previously mentioned, supra, at 16-17, the FEC considered a related question, namely, whether AlPAC was exempt from § 441b's prohibition of corporate campaign expenditures, on the grounds that the so-called "expenditures" involved only AlP AC's communications with its members. The FEC held that the statute's exception to the "expenditure" definition for communications by a "membership organization" did not apply because many of the persons who belonged to AlPAC were not "members" as defined by FEC regulation. The FEC acknowledged, however, that this was a "close question." App. to Pet. for Cert. 98a; see also App. 28 144-146, 170-171. In particular, the FEC thought that many of the persons who belonged to AlP AC lacked sufficient control of the organization's policies to qualify as "members" for purposes of the Act. A few months later, however, the Court of Appeals overturned the FEC's regulations defining "members," in part because that court thought the regulations defined membership organizations too narrowly in light of an organization's "First Amendment right to communicate with its 'members.'" Chamber of Commerce v. Federal Election Comm'n, 69 F.3d 600 , 605 (CADC 1995). The FEC has subsequently issued proposed rules redefining "members." Under these rules, it is quite possible that many of the persons who belong to AIPAC would be considered "members." If so, the communications here at issue apparently would not count as the kind of "expenditures" that can turn an organization into a "political committee," and AlP AC would fall outside the definition for that reason, rather than because of the "major purpose" test. 62 Fed. Reg. 66832 (1997) (proposed 11 CFR pts. 100 and 114). The consequence for our consideration of Question Two now is that the FEC's new rules defining "membership organization" could significantly affect the interpretive issue presented by this question. If the Court of Appeals is right in saying that this Court's narrowing interpretation of "political committee" in Buckley reflected First Amendment concerns, 101 F. 3d, at 741, then whether the "membership communications" exception is interpreted broadly or narrowly could affect our evaluation of the Court of Appeals' claim that there is no constitutionally driven need to apply Buckley's narrowing interpretation in this context. The scope of the "membership communications" exception could also affect our evaluation of the Solicitor General's related argument that First Amendment concerns (reflected in Buck ley's narrowing interpretation) are present whenever the Act requires disclosure. In any event, it is difficult to decide the 29 basic issue that Question Two presents without considering the special communicative nature of the "expenditures" here at issue, cf. United States v. CIO, 335 U. S. 106 , 121 (1948) (describing relation between membership communications and constitutionally protected rights of association). And, a considered determination of the scope of the statutory exemption that Congress enacted to address membership communications would helpfully inform our consideration of the "major purpose" test. The upshot, in our view, is that we should permit the FEC to address, in the first instance, the issue presented by Question Two. We can thereby take advantage of the relevant agency's expertise, by allowing it to develop a more precise rule that may dispose of this case, or at a minimum, will aid the Court in reaching a more informed conclusion. In our view, the FEC should proceed to determine whether or not AlP AC's expenditures qualify as "membership communications," and thereby fall outside the scope of "expenditures" that could qualify it as a "political committee." If the FEC decides that despite its new rules, the communications here do not qualify for this exception, then the lower courts, in reconsidering respondents' arguments, can still evaluate the significance of the communicative context in which the case arises. If, on the other hand, the FEC decides that AlP AC's activities fall within the "membership communications" exception, the matter will become moot. For these reasons, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE SCALIA, with whom JUSTICE O'CONNOR and JUSTICE THOMAS join, dissenting. The provision of law at issue in this case is an extraordinary one, conferring upon a private person the ability to bring an Executive agency into court to compel its enforce- 30 ment of the law against a third party. Despite its liberality, the Administrative Procedure Act does not allow such suits, since enforcement action is traditionally deemed "committed to agency discretion by law." 5 U. s. C. § 701(a)(2); Heckler v. Chaney, 470 U. S. 821 , 827-835 (1985). If provisions such as the present one were commonplace, the role of the Executive Branch in our system of separated and equilibrated powers would be greatly reduced, and that of the Judiciary greatly expanded. Because this provision is so extraordinary, we should be particularly careful not to expand it beyond its fair meaning. In my view the Court's opinion does that. Indeed, it expands the meaning beyond what the Constitution permits. I It is clear that the Federal Election Campaign Act of 1971 (FECA or Act) does not intend that all persons filing complaints with the Federal Election Commission have the right to seek judicial review of the rejection of their complaints. This is evident from the fact that the Act permits a complaint to be filed by "[a]ny person who believes a violation of this Act ... has occurred," 2 U. S. C. § 437g(a)(1) (emphasis added), but accords a right to judicial relief only to "[a]ny party aggrieved by an order of the Commission dismissing a complaint filed by such party," § 437 g(a)(8)(A) (emphasis added). The interpretation that the Court gives the latter provision deprives it of almost all its limiting force. Any voter can sue to compel the agency to require registration of an entity as a political committee, even though the "aggrievement" consists of nothing more than the deprivation of access to information whose public availability would have been one of the consequences of registration. This seems to me too much of a stretch. It should be borne in mind that the agency action complained of here is not the refusal to make available information in its possession that the Act requires to be disclosed. A person de- 31 manding provision of information that the law requires the agency to furnish-one demanding compliance with the Freedom of Information Act or the Federal Advisory Committee Act, for example-can reasonably be described as being "aggrieved" by the agency's refusal to provide it. What the respondents complain of in this suit, however, is not the refusal to provide information, but the refusal (for an allegedly improper reason) to commence an agency enforcement action against a third person. That refusal itself plainly does not render respondents "aggrieved" within the meaning of the Act, for in that case there would have been no reason for the Act to differentiate between "person" in subsection (a)(l) and "party aggrieved" in subsection (a)(8). Respondents claim that each of them is elevated to the special status of a "party aggrieved" by the fact that the requested enforcement action (if it was successful) would have had the effect, among others, of placing certain information in the agency's possession, where respondents, along with everyone else in the world, would have had access to it. It seems to me most unlikely that the failure to produce that effect-both a secondary consequence of what respondents immediately seek, and a consequence that affects respondents no more and with no greater particularity than it affects virtually the entire population-would have been meant to set apart each respondent as a "party aggrieved" (as opposed to just a rejected complainant) within the meaning of the statute. This conclusion is strengthened by the fact that this citizen-suit provision was enacted two years after this Court's decision in United States v. Richardson, 418 U. S. 166 (1974), which, as I shall discuss at greater length below, gave Congress every reason to believe that a voter's interest in information helpful to his exercise of the franchise was constitutionally inadequate to confer standing. Richardson had said that a plaintiff's complaint that the Government was unlawfully depriving him of information he needed to 32 "properly fulfill his obligations as a member of the electorate in voting" was "surely the kind of a generalized grievance" that does not state an Article III case or controversy. I d., at 176. And finally, a narrower reading of "party aggrieved" is supported by the doctrine of constitutional doubt, which counsels us to interpret statutes, if possible, in such fashion as to avoid grave constitutional questions. See United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366 , 408 (1909); Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568 , 575 (1988). As I proceed to discuss, it is my view that the Court's entertainment of the present suit violates Article III. Even if one disagrees with that judgment, however, it is clear from Richardson that the question is a close one, so that the statute ought not be interpreted to present it. II In Richardson, we dismissed for lack of standing a suit whose "aggrievement" was precisely the "aggrievement" respondents assert here: the Government's unlawful refusal to place information within the public domain. The only difference, in fact, is that the aggrievement there was more direct, since the Government already had the information within its possession, whereas here respondents seek enforcement action that will bring information within the Government's possession and then require the information to be made public. The plaintiff in Richardson challenged the Government's failure to disclose the expenditures of the Central Intelligence Agency (CIA), in alleged violation of the constitutional requirement, Art. I, § 9, cl. 7, that "a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time." We held that such a claim was a nonjusticiable "generalized grievance" because "the impact on [plaintiff] is plainly undif- 33 ferentiated and common to all members of the public." 418 U. S., at 176-177 (internal quotation marks and citations omitted). It was alleged in Richardson that the Government had denied a right conferred by the Constitution, whereas respondents here assert a right conferred by statute-but of course "there is absolutely no basis for making the Article III inquiry turn on the source of the asserted right." Lujan v. Defenders of Wildlife, 504 U. S. 555 , 576 (1992). The Court today distinguishes Richardson on a different basisa basis that reduces it from a landmark constitutional holding to a curio. According to the Court, "Richardson focused upon taxpayer standing, ... not voter standing." Ante, at 22. In addition to being a silly distinction, given the weighty governmental purpose underlying the "generalized grievance" prohibition-viz., to avoid "something in the nature of an Athenian democracy or a New England town meeting to oversee the conduct of the National Government by means of lawsuits in federal courts," 418 U. S., at 179this is also a distinction that the Court in Richardson went out of its way explicitly to eliminate. It is true enough that the narrow question presented in Richardson was "'[w]hether a federal taxpayer has standing,'" id., at 167, n. 1. But the Richardson Court did not hold only, as the Court today suggests, that the plaintiff failed to qualify for the exception to the rule of no taxpayer standing established by the "logical nexus" test of Flast v. Cohen, 392 U. S. 83 (1968). * The plaintiff's complaint in Richardson had also alleged that he was" 'a member of the electorate,'" 418 U. S., at 167, n. 1, and he asserted injury in that capacity as well. *That holding was inescapable since, as the Court made clear in another case handed down the same day, "the Flast nexus test is not applicable where the taxing and spending power is not challenged" (as in Richardson it was not). Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208 , 225, n. 15 (1974). 34 The Richardson opinion treated that as fairly included within the taxpayer-standing question, or at least as plainly indistinguishable from it: "The respondent's claim is that without detailed information on CIA expenditures-and hence its activitieshe cannot intelligently follow the actions of Congress or the Executive, nor can he properly fulfill his obligations as a member of the electorate in voting for candidates seeking national office. "This is surely the kind of a generalized grievance described in both Frothingham and Flast since the impact on him is plainly undifferentiated and common to all members of the public." Id., at 176-177 (citations and internal quotation marks omitted) (emphasis added). If Richardson left voter standing unaffected, one must marvel at the unaccustomed ineptitude of the American Civil Liberties Union Foundation, which litigated Richardson, in not immediately refiling with an explicit voter-standing allegation. Fairly read, and applying a fair understanding of its important purposes, Richardson is indistinguishable from the present case. The Court's opinion asserts that our language disapproving generalized grievances "invariably appears in cases where the harm at issue is not only widely shared, but is also of an abstract and indefinite nature." Ante, at 23. "Often," the Court says, "the fact that an interest is abstract and the fact that it is widely shared go hand in hand. But their association is not invariable, and where a harm is concrete, though widely shared, the Court has found 'injury in fact.'" Ante, at 24. If that is so-if concrete generalized grievances (like concrete particularized grievances) are OK, and abstract generalized grievances (like abstract particularized grievances) are bad-one must wonder why we ever developed the superfluous distinction between generalized and particularized grievances at all. But of course the Court is 35 wrong to think that generalized grievances have only concerned us when they are abstract. One need go no further than Richardson to prove that-unless the Court believes that deprivation of information is an abstract injury, in which event this case could be disposed of on that much broader ground. What is noticeably lacking in the Court's discussion of our generalized-grievance jurisprudence is all reference to two words that have figured in it prominently: "particularized" and "undifferentiated." See Richardson, supra, at 177; Lujan, 504 U. S., at 560, and n. 1. "Particularized" means that "the injury must affect the plaintiff in a personal and individual way." Id., at 560, n. 1. If the effect is "undifferentiated and common to all members of the public," Richardson, supra, at 177 (internal quotation marks and citations omitted), the plaintiff has a "generalized grievance" that must be pursued by political, rather than judicial, means. These terms explain why it is a gross oversimplification to reduce the concept of a generalized grievance to nothing more than "the fact that [the grievance] is widely shared," ante, at 25, thereby enabling the concept to be dismissed as a standing principle by such examples as "large numbers of individuals suffer[ing] the same common-law injury (say, a widespread mass tort), or ... large numbers of voters suffer[ing] interference with voting rights conferred by law," ante, at 24. The exemplified injuries are widely shared, to be sure, but each individual suffers a particularized and differentiated harm. One tort victim suffers a burnt leg, another a burnt arm-or even if both suffer burnt arms they are different arms. One voter suffers the deprivation of his franchise, another the deprivation of hers. With the generalized grievance, on the other hand, the injury or deprivation is not only widely shared but it is undifferentiated. The harm caused to Mr. Richardson by the alleged disregard of the Statement-of-Accounts Clause was precisely the same as the harm caused to everyone else: unavailability of a de- 36 scription of CIA expenditures. Just as the (more indirect) harm caused to Mr. Akins by the allegedly unlawful failure to enforce FECA is precisely the same as the harm caused to everyone else: unavailability of a description of AIPAC's activities. The Constitution's line of demarcation between the Executive power and the judicial power presupposes a common understanding of the type of interest needed to sustain a "case or controversy" against the Executive in the courts. A system in which the citizenry at large could sue to compel Executive compliance with the law would be a system in which the courts, rather than the President, are given the primary responsibility to "take Care that the Laws be faithfully executed," Art. II, § 3. We do not have such a system because the common understanding of the interest necessary to sustain suit has included the requirement, affirmed in Richardson, that the complained-of injury be particularized and differentiated, rather than common to all the electorate. When the Executive can be directed by the courts, at the instance of any voter, to remedy a deprivation that affects the entire electorate in precisely the same way-and particularly when that deprivation (here, the unavailability of information) is one inseverable part of a larger enforcement scheme-there has occurred a shift of political responsibility to a branch designed not to protect the public at large but to protect individual rights. "To permit Congress to convert the undifferentiated public interest in executive officers' compliance with the law into an 'individual right' vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty .... " Lujan, supra, at 577. If to day's decision is correct, it is within the power of Congress to authorize any interested person to manage (through the courts) the Executive's enforcement of any law that includes a requirement for the filing and public availability of a piece of paper. 37 This is not the system we have had, and is not the system we should desire. *** Because this statute should not be interpreted to confer upon the entire electorate the power to invoke judicial direction of prosecutions, and because if it is so interpreted the statute unconstitutionally transfers from the Executive to the courts the responsibility to "take Care that the Laws be faithfully executed," Art. II, § 3, I respectfully dissent.

The Federal Election Campaign Act of 1971 (FECA) imposes record-keeping and disclosure requirements on "political committees," defined as groups that receive or spend more than $1,000 in a year for the purpose of influencing federal elections. Respondents, voters who disagreed with the American Israel Public Affairs Committee (AIPAC), filed a complaint with the Federal Election Commission (FEC), arguing that AIPAC violated FECA by not disclosing certain information. The FEC dismissed the complaint, finding that AIPAC was not a "political committee" as its major purpose was not the nomination or election of candidates. The Court of Appeals reversed, saying the FEC's interpretation of FECA was incorrect. The Supreme Court ruled that respondents had standing to challenge the FEC's decision as they sought information they believed FECA entitled them to. However, the Court also held that an organization does not fall outside FECA's definition of a "political committee" just because its primary purpose is not the nomination or election of candidates. The case was decided on the voters' standing to challenge the FEC's decision and the interpretation of FECA's definition of a "political committee."

Role of Courts

Allen v. Wright

https://supreme.justia.com/cases/federal/us/468/737/

U.S. Supreme Court Allen v. Wright, 468 U.S. 737 (1984) Allen v. Wright No. 81-757 Argued February 29, 1984 Decided July 3, 1984 468 U.S. 737 ast|>* 468 U.S. 737 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Syllabus The Internal Revenue Service (IRS) denies tax-exempt status under the Internal Revenue Code -- and hence eligibility to receive charitable contributions deductible from income taxes under the Code -- to racially discriminatory private schools, and has established guidelines and procedures for determining whether a particular school is in fact racially nondiscriminatory. Respondents, parents of black children who were attending public schools in seven States in school districts undergoing desegregation, brought a nationwide class action in Federal District Court against petitioner Government officials (petitioner Allen, the head of a private school identified in the complaint, intervened as a defendant), alleging that the IRS has not adopted sufficient standards and procedures to fulfill its obligation to deny tax-exempt status to racially discriminatory private schools, and has thereby harmed respondents directly and interfered with their children's opportunity to receive an education in desegregated public schools. Respondents also alleged that many racially segregated private schools were created or expanded in their communities at the time the public schools were undergoing desegregation, and had received tax exemptions despite the IRS policy and guidelines; and that these unlawful tax exemptions harmed respondents in that they constituted tangible financial aid for racially segregated educational institutions and encouraged the organization and expansion of institutions that provided segregated educational opportunities for white students avoiding attendance in the public schools. Respondents did not allege that their children had ever applied or would ever apply for admission to any private school. They sought declaratory and injunctive relief. The District Court dismissed the complaint on the ground that respondents lacked standing to bring the suit. The Court of Appeals reversed. Held: Respondents do not have standing to bring this suit. Pp. 468 U. S. 750 -766. (a) The "case or controversy" requirement of Art. III of the Constitution defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded, and the Art. III Page 468 U. S. 738 doctrine of "standing" has a core constitutional component that a plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief. The concepts of standing doctrine present questions that must be answered by reference to the Art. III notion that federal courts may exercise power only in the last resort and as a necessity, and only when adjudication is consistent with a system of separated powers and the dispute is one traditionally thought to be capable of resolution through the judicial process. Pp. 468 U. S. 750 -752. (b) Respondents' claim that they are harmed directly by the mere fact of Government financial aid to discriminatory private schools fails because it does not constitute judicially cognizable injury. Insofar as the claim may be interpreted as one simply to have the Government avoid the alleged violation of law in granting the tax exemptions, an asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court. Nor do respondents have standing to litigate their claim based on the stigmatizing injury often caused by racial discrimination. Such injury accords a basis for standing only to those persons who are personally denied equal treatment by the challenged discriminatory conduct, and respondents do not allege a stigmatic injury suffered as a direct result of having personally been denied equal treatment. Pp. 468 U. S. 753 -756. (c) Respondents' claim of injury as to their children's diminished ability to receive an education in a racially integrated school because of the federal tax exemptions granted to some racially discriminatory private schools -- though a judicially cognizable injury -- fails because the alleged injury is not fairly traceable to the Government conduct that is challenged as unlawful. Respondents have not alleged that there were enough racially discriminatory private schools receiving tax exemptions in respondents' communities for withdrawal of those exemptions to make an appreciable difference in public school integration. Moreover, it is entirely speculative whether withdrawal of a particular school's tax exemption would lead the school to change its policies; whether any given parent of a child attending such a private school would decide to transfer the child to public school as a result of any changes in policy of a private school threatened with loss of tax-exempt status; or whether, in a particular community, a large enough number of school officials and parents would reach decisions that collectively would have a significant impact on the racial composition of the public schools. To recognize respondents' standing to seek a restructuring of the apparatus established by the Executive Branch to fulfill its legal duties would run afoul of the idea of separation of powers that underlies standing doctrine. The Page 468 U. S. 739 Constitution assigns to the Executive Branch, not to the Judicial Branch, the duty to take care that the laws be faithfully executed. Pp. 468 U. S. 756 -761. (d) None of the cases relied on by the Court of Appeals and by respondents to establish standing -- Gilmore v. City of Montgomery, 417 U. S. 556 ; Norwood v. Harrison, 413 U. S. 455 ; and Coit v. Green, 404 U.S. 997, summarily aff'g Green v. Connally, 330 F. Supp. 115 -- requires a finding of standing here. Pp. 468 U. S. 761 -766. 211 U.S.App.D.C. 231, 656 F.2d 820, reversed. O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, and REHNQUIST, JJ., joined. BRENNAN, J., filed a dissenting opinion, post, p. 468 U. S. 766 . STEVENS, J., filed a dissenting opinion, in which BLACKMUN, J., joined, post, p. 468 U. S. 783 . MARSHALL, J., took no part in the decision of the cases. JUSTICE O'CONNOR delivered the opinion of the Court. Parents of black public school children allege in this nationwide class action that the Internal Revenue Service (IRS) has not adopted sufficient standards and procedures to fulfill its obligation to deny tax-exempt status to racially discriminatory private schools. They assert that the IRS thereby harms them directly and interferes with the ability of their Page 468 U. S. 740 children to receive an education in desegregated public schools. The issue before us is whether plaintiffs have standing to bring this suit. We hold that they do not. I The IRS denies tax-exempt status under §§ 501(a) and (c)(3) of the Internal Revenue Code, 26 U.S.C. §§ 501(a) and (c)(3) -- and hence eligibility to receive charitable contributions deductible from income taxes under §§ 170(a)(1) and (c)(2) of the Code, 26 U.S.C. §§ 170(a)(1) and (c)(2) -- to racially discriminatory private schools. Rev.Rul. 71-447, 1971-2 Cum.Bull. 230. [ Footnote 1 ] The IRS policy requires that a school applying for tax-exempt status show that it "admits the students of any race to all the rights, privileges, programs, and activities generally accorded or made available to students at that school and that the school does not discriminate on the basis of race in administration of its educational policies, admissions policies, scholarship and loan programs, and athletic and other school-administered programs." Ibid. To carry out this policy, the IRS has established guidelines and procedures for determining whether a particular school is in fact racially nondiscriminatory. Rev.Proc. 75-50, 1975-2 Cum.Bull. 587. [ Footnote 2 ] Failure to comply with the guidelines "will ordinarily result in the proposed revocation of" tax-exempt status. Id. § 4.08, p. 589. Page 468 U. S. 741 The guidelines provide that "[a] school must show affirmatively both that it has adopted a racially nondiscriminatory policy as to students that is made known to the general public and that since the adoption of that policy it has operated in a bona fide manner in accordance therewith." Id. § 2.02. [ Footnote 3 ] The school must state its nondiscrimination policy in its organizational charter, id. § 4.01. pp. 587-588, and in all of its brochures, catalogs, and other advertisements to prospective students, id. § 4.02, p. 588. The school must make its nondiscrimination policy known to the entire community served by the school, and must publicly disavow any contrary representations made on its behalf once it becomes aware of them. Id. § 4.03. [ Footnote 4 ] The school must have nondiscriminatory Page 468 U. S. 742 policies concerning all programs and facilities, id. § 4.04, p. 589, including scholarships and loans, id. § 4.05, [ Footnote 5 ] and the school must annually certify, under penalty of perjury, compliance with these requirements, id. § 4.07. [ Footnote 6 ] The IRS rules require a school applying for tax-exempt status to give a breakdown along racial lines of its student body and its faculty and administrative staff, id. § 5.01-1, as well as of scholarships and loans awarded, id. § 5.01-2. They also require the applicant school to state the year of its organization, id. § 5.01-5, and to list "incorporators, founders, board members, and donors of land or buildings," id. § 5.01-3, and state whether any of the organizations among these have an objective of maintaining segregated public or private school education, id. § 5.01-4. The rules further provide that, once given an exemption, a school must keep specified records to document the extent of compliance with the IRS guidelines. Id. § 7, p. 590. [ Footnote 7 ] Finally, the Page 468 U. S. 743 rules announce that any information concerning discrimination at a tax-exempt school is officially welcomed. Id. § 6. [ Footnote 8 ] In 1976, respondents challenged these guidelines and procedures in a suit filed in Federal District Court against the Secretary of the Treasury and the Commissioner of Internal Revenue. [ Footnote 9 ] The plaintiffs named in the complaint are parents of black children who, at the time the complaint was filed, were attending public schools in seven States in school districts undergoing desegregation. They brought this nationwide class action "on behalf of themselves and their children, and . . . on behalf of all other parents of black children attending public school systems undergoing, or which may in the future undergo, desegregation pursuant to court order [or] HEW regulations and guidelines, under state law, or voluntarily." App. 22-23. They estimated that the class they seek to represent includes several million persons. Id. at 23. Respondents allege in their complaint that many racially segregated private schools were created or expanded in their Page 468 U. S. 744 communities at the time the public schools were undergoing desegregation. Id. at 23-24. According to the complaint, many such private schools, including 17 schools or school systems identified by name in the complaint (perhaps some 30 schools in all), receive tax exemptions either directly or through the tax-exempt status of "umbrella" organizations that operate or support the schools. Id. at 23-38. [ Footnote 10 ] Respondents allege that, despite the IRS policy of denying tax-exempt status to racially discriminatory private schools, and despite the IRS guidelines and procedures for implementing that policy, some of the tax-exempt racially segregated private schools created or expanded in desegregating districts in fact have racially discriminatory policies. Id. at 17-18 (IRS permits "schools to receive tax exemptions merely on the basis of adopting and certifying -- but not implementing -- a policy of nondiscrimination"); id. at 25 (same). [ Footnote 11 ] Respondents Page 468 U. S. 745 allege that the IRS grant of tax exemptions to such racially discriminatory schools is unlawful. [ Footnote 12 ] Respondents allege that the challenged Government conduct harms them in two ways. The challenged conduct "(a) constitutes tangible federal financial aid and other support for racially segregated educational institutions, and" "(b) fosters and encourages the organization, operation and expansion of institutions providing racially segregated educational opportunities for white children avoiding attendance in desegregating public school districts, and thereby interferes with the efforts of federal courts, HEW and local school authorities to desegregate public school districts which have been operating racially dual school systems." Id. at 38-39. Page 468 U. S. 746 Thus, respondents do not allege that their children have been the victims of discriminatory exclusion from the schools whose tax exemptions they challenge as unlawful. Indeed, they have not alleged at any stage of this litigation that their children have ever applied or would ever apply to any private school. See Wright v. Regan, 211 U.S.App.D.C. 231, 238, 656 F.2d 820, 827 (1981) ("Plaintiffs . . . maintain they have no interest whatever in enrolling their children in a private school"). Rather, respondents claim a direct injury from the mere fact of the challenged Government conduct and, as indicated by the restriction of the plaintiff class to parents of children in desegregating school districts, injury to their children's opportunity to receive a desegregated education. [ Footnote 13 ] The latter injury is traceable to the IRS grant of tax exemptions to racially discriminatory schools, respondents allege, chiefly because contributions to such schools are deductible from income taxes under §§ 170(a)(1) and (c)(2) of the Internal Revenue Code and the "deductions facilitate the raising of finds to organize new schools and expand existing schools in order to accommodate white students avoiding attendance in desegregating public school districts." App. 24. [ Footnote 14 ] Respondents request only prospective relief. Id. at 40-41. They ask for a declaratory judgment that the challenged IRS tax-exemption practices are unlawful. They also Page 468 U. S. 747 ask for an injunction requiring the IRS to deny tax exemptions to a considerably broader class of private schools than the class of racially discriminatory private schools. Under the requested injunction, the IRS would have to deny tax-exempt status to all private schools "which have insubstantial or nonexistent minority enrollments, which are located in or serve desegregating public school districts, and which either -- " "(1) were established or expanded at or about the time the public school districts in which they are located or which they serve were desegregating;" "(2) have been determined in adversary judicial or administrative proceedings to be racially segregated; or" "(3) cannot demonstrate that they do not provide racially segregated educational opportunities for white children avoiding attendance in desegregating public school systems. . . ." Id. at 40. Finally, respondents ask for an order directing the IRS to replace its 1975 guidelines with standards consistent with the requested injunction. In May, 1977 the District Court permitted intervention as a defendant by petitioner Allen, the head of one of the private school systems identified in the complaint. Id. at 54-55. Thereafter, progress in the lawsuit was stalled for several years. During this period, the IRS reviewed its challenged policies and proposed new Revenue Procedures to tighten requirements for eligibility for tax-exempt status for private schools. See 43 Fed.Reg. 37296 (1978); 44 Fed.Reg. 9451 (1979). [ Footnote 15 ] In 1979, however, Congress blocked any strengthening Page 468 U. S. 748 of the IRS guidelines at least until October, 1980. [ Footnote 16 ] The District Court thereupon considered and granted the defendants' motion to dismiss the complaint, concluding that respondents lack standing, that the judicial task proposed by respondents is inappropriately intrusive for a federal court, and that awarding the requested relief would be contrary to the will of Congress expressed in the 1979 ban on strengthening IRS guidelines. Wright v. Miller, 480 F. Supp. 790 (DC 1979). The United States Court of Appeals for the District of Columbia Circuit reversed, concluding that respondents have standing to maintain this lawsuit. The court acknowledged that Simon v. Eastern Kentucky Welfare Rights Org., 426 U. S. 26 (1976), "suggests that litigation concerning tax liability is a matter between taxpayer and IRS, with the door Page 468 U. S. 749 barely ajar for third party challenges." 211 U.S.App.D.C. at 239, 656 F.2d at 828. The court concluded, however, that the Simon case is inapposite, because respondents claim no injury dependent on taxpayers' actions: "[t]hey claim indifference as to the course private schools would take." Id. at 240, 656 F.2d at 829. [ Footnote 17 ] Instead, the court observed, "[t]he sole injury [respondents] claim is the denigration they suffer as black parents and schoolchildren when their government graces with tax-exempt status educational institutions in their communities that treat members of their race as persons of lesser worth." Id. at 238, 656 F.2d at 827. The court held this denigration injury enough to give respondents standing, since it was this injury which supported standing in Coit v. Green, 404 U.S. 997 (1971), summarily aff'g Green v. Connally, 330 F. Supp. 1150 (DC); Norwood v. Harrison, 413 U. S. 455 (1973); and Gilmore v. City of Montgomery, 417 U. S. 556 (1974). 211 U.S.App.D.C. at 239-243, 656 F.2d at 828-832. The Court of Appeals also held that the 1979 congressional actions were not intended to preclude judicial remedies, and that the relief requested by respondents could be fashioned "without large-scale judicial intervention in the administrative process," id. at 248, 656 F.2d at 837. [ Footnote 18 ] The court accordingly remanded the case to the District Court for further proceedings, enjoining the defendants meanwhile from granting tax-exempt status to any racially discriminatory school, App. 81-84. Page 468 U. S. 750 The Government defendants and defendant-intervenor Allen filed separate petitions for a writ of certiorari in this Court. They both sought review of the Court of Appeals' holding that respondents have standing to bring this lawsuit. We granted certiorari, 462 U.S. 1130 (1983), and now reverse. II A Article III of the Constitution confines the federal courts to adjudicating actual "cases" and "controversies." As the Court explained in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464 , 454 U. S. 471 -476 (1982), the "case or controversy" requirement defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded. The several doctrines that have grown up to elaborate that requirement are "founded in concern about the proper -- and properly limited -- role of the courts in a democratic society." Warth v. Seldin, 422 U. S. 490 , 422 U. S. 498 (1975). "All of the doctrines that cluster about Article III -- not only standing but mootness, ripeness, political question, and the like -- relate in part, and in different though overlapping ways, to an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government." Vander Jagt v. O'Neill, 226 U.S.App.D.C. 14, 26-27, 699 F.2d 1166, 1178-1179 (1983) (Bork, J., concurring). The case-or-controversy doctrines state fundamental limits on federal judicial power in our system of government. The Art. III doctrine that requires a litigant to have "standing" to invoke the power of a federal court is perhaps the most important of these doctrines. "In essence, the question of standing is whether the litigant is entitled to have the Page 468 U. S. 751 court decide the merits of the dispute or of particular issues." Warth v. Seldin, supra, at 422 U. S. 498 . Standing doctrine embraces several judicially self-imposed limits on the exercise of federal jurisdiction, such as the general prohibition on a litigant's raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked. See Valley Forge, supra, at 454 U. S. 474 -475. The requirement of standing, however, has a core component derived directly from the Constitution. A plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief. 454 U.S. at 454 U. S. 472 . Like the prudential component, the constitutional component of standing doctrine incorporates concepts concededly not susceptible of precise definition. The injury alleged must be, for example, " distinct and palpable,'" Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91 , 441 U. S. 100 (1979) (quoting Warth v. Seldin, supra, at 422 U. S. 501 ), and not "abstract" or "conjectural" or "hypothetical," Los Angeles v. Lyons, 461 U. S. 95 , 461 U. S. 101 -102 (1983); O'Shea v. Littleton, 414 U. S. 488 , 414 U. S. 494 (1974). The injury must be "fairly" traceable to the challenged action, and relief from the injury must be "likely" to follow from a favorable decision. See Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. at 426 U. S. 38 , 426 U. S. 41 . These terms cannot be defined so as to make application of the constitutional standing requirement a mechanical exercise. The absence of precise definitions, however, as this Court's extensive body of case law on standing illustrates, see generally Valley Forge, supra, at 454 U. S. 471 -476, hardly leaves courts at sea in applying the law of standing. Like most legal notions, the standing concepts have gained considerable definition from developing case law. In many cases, the standing question can be answered chiefly by comparing the allegations of the particular complaint to those made in prior standing Page 468 U. S. 752 cases. See, e.g., Los Angeles v. Lyons, supra, at 461 U. S. 102 -105. More important, the law of Art. III standing is built on a single basic idea -- the idea of separation of powers. It is this fact which makes possible the gradual clarification of the law through judicial application. Of course, both federal and state courts have long experience in applying and elaborating in numerous contexts the pervasive and fundamental notion of separation of powers. Determining standing in a particular case may be facilitated by clarifying principles or even clear rules developed in prior cases. Typically, however, the standing inquiry requires careful judicial examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted. Is the injury too abstract, or otherwise not appropriate, to be considered judicially cognizable? Is the line of causation between the illegal conduct and injury too attenuated? Is the prospect of obtaining relief from the injury as a result of a favorable ruling too speculative? These questions and any others relevant to the standing inquiry must be answered by reference to the Art. III notion that federal courts may exercise power only "in the last resort, and as a necessity," Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339 , 143 U. S. 345 (1892), and only when adjudication is "consistent with a system of separated powers and [the dispute is one] traditionally thought to be capable of resolution through the judicial process," Flast v. Cohen, 392 U. S. 83 , 392 U. S. 97 (1968). See Valley Forge, 454 U.S. at 454 U. S. 472 -473. B Respondents allege two injuries in their complaint to support their standing to bring this lawsuit. First, they say that they are harmed directly by the mere fact of Government financial aid to discriminatory private schools. Second, they say that the federal tax exemptions to racially discriminatory private schools in their communities impair Page 468 U. S. 753 their ability to have their public schools desegregated. See supra at 468 U. S. 745 . In the Court of Appeals, respondents apparently relied on the first injury. Thus, the court below asserted that "[t]he sole injury [respondents] claim is the denigration they suffer" as a result of the tax exemptions. 211 U.S.App.D.C. at 238, 656 F.2d at 827. In this Court, respondents have not focused on this claim of injury. Here they stress the effect of the tax exemptions on their "equal educational opportunities," see, e.g., Brief for Respondents 12, 14, renewing reliance on the second injury described in their complaint. Because respondents have not clearly disclaimed reliance on either of the injuries described in their complaint, we address both allegations of injury. We conclude that neither suffices to support respondents' standing. The first fails under clear precedents of this Court because it does not constitute judicially cognizable injury. The second fails because the alleged injury is not fairly traceable to the assertedly unlawful conduct of the IRS. [ Footnote 19 ] 1 Respondents' first claim of injury can be interpreted in two ways. It might be a claim simply to have the Government Page 468 U. S. 754 avoid the violation of law alleged in respondents' complaint. Alternatively, it might be a claim of stigmatic injury, or denigration, suffered by all members of a racial group when the Government discriminates on the basis of race. [ Footnote 20 ] Under neither interpretation is this claim of injury judicially cognizable. This Court has repeatedly held that an asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court. In Schlesinger v. Reservists Committee to Stop the War, 418 U. S. 208 (1974), for example, the Court rejected a claim of citizen standing to challenge Armed Forces Reserve commissions held by Members of Congress as violating the Incompatibility Clause of Art. I, § 6, of the Constitution. As citizens, the Court held, plaintiffs alleged nothing but "the abstract injury in nonobservance of the Constitution. . . ." Id. at 418 U. S. 223 , n. 13. More recently, in Valley Forge, supra, we rejected a claim of standing to challenge a Government conveyance of property to a religious institution. Insofar as the plaintiffs relied simply on " their shared individuated right'" to a Government that made no law respecting an establishment of religion, id. at 454 U. S. 482 (quoting Americans United v. U.S. Dept. of HEW, 619 F.2d 252, 261 (CA3 1980)), we held that plaintiffs had not alleged a judicially cognizable injury. "[A]ssertion of a right to a particular kind of Government conduct, which the Government has violated by acting differently, cannot alone satisfy the requirements of Art. III without draining those requirements of meaning." 454 U.S. at 454 U. S. 483 . See also United States v. Richardson, 418 U. S. 166 (1974); Laird v. Tatum, 408 U. S. 1 (1972); Page 468 U. S. 755 Ex parte Levitt, 302 U.S. 633 (1937). Respondents here have no standing to complain simply that their Government is violating the law. Neither do they have standing to litigate their claims based on the stigmatizing injury often caused by racial discrimination. There can be no doubt that this sort of noneconomic injury is one of the most serious consequences of discriminatory government action, and is sufficient in some circumstances to support standing. See Heckler v. Mathews, 465 U. S. 728 , 465 U. S. 739 -740 (1984). Our cases make clear, however, that such injury accords a basis for standing only to "those persons who are personally denied equal treatment" by the challenged discriminatory conduct, ibid. In Moose Lodge No. 107 v. Irvis, 407 U. S. 163 (1972), the Court held that the plaintiff had no standing to challenge a club's racially discriminatory membership policies, because he had never applied for membership. Id. at 407 U. S. 166 -167. In O'Shea v. Littleton, 414 U. S. 488 (1974), the Court held that the plaintiffs had no standing to challenge racial discrimination in the administration of their city's criminal justice system, because they had not alleged that they had been, or would likely be, subject to the challenged practices. The Court denied standing on similar facts in Rizzo v. Goode, 423 U. S. 362 (1976). In each of those cases, the plaintiffs alleged official racial discrimination comparable to that alleged by respondents here. Yet standing was denied in each case because the plaintiffs were not personally subject to the challenged discrimination. Insofar as their first claim of injury is concerned, respondents are in exactly the same position: unlike the appellee in Heckler v. Mathews, supra, at 465 U. S. 740 -741, n. 9, they do not allege a stigmatic injury suffered as a direct result of having personally been denied equal treatment. The consequences of recognizing respondents' standing on the basis of their first claim of injury illustrate why our cases plainly hold that such injury is not judicially cognizable. If the abstract stigmatic injury were cognizable, standing Page 468 U. S. 756 would extend nationwide to all members of the particular racial groups against which the Government was alleged to be discriminating by its grant of a tax exemption to a racially discriminatory school, regardless of the location of that school. All such persons could claim the same sort of abstract stigmatic injury respondents assert in their first claim of injury. A black person in Hawaii could challenge the grant of a tax exemption to a racially discriminatory school in Maine. Recognition of standing in such circumstances would transform the federal courts into "no more than a vehicle for the vindication of the value interests of concerned bystanders." United States v. SCRAP, 412 U. S. 669 , 412 U. S. 687 (1973). Constitutional limits on the role of the federal courts preclude such a transformation. [ Footnote 21 ] 2 It is in their complaint's second claim of injury that respondents allege harm to a concrete, personal interest that can support standing in some circumstances. The injury they identify -- their children's diminished ability to receive an education in a racially integrated school -- is, beyond any doubt, not only judicially cognizable but, as shown by cases from Brown v. Board of Education, 347 U. S. 483 (1954), to Bob Jones University v. United States, 461 U. S. 574 (1983), one of the most serious injuries recognized in our legal system. Despite the constitutional importance of curing the Page 468 U. S. 757 injury alleged by respondents, however, the federal judiciary may not redress it unless standing requirements are met. In this case, respondents' second claim of injury cannot support standing, because the injury alleged is not fairly traceable to the Government conduct respondents challenge as unlawful. [ Footnote 22 ] The illegal conduct challenged by respondents is the IRS's grant of tax exemptions to some racially discriminatory schools. The line of causation between that conduct and desegregation of respondents' schools is attenuated, at best. From the perspective of the IRS, the injury to respondents is highly indirect, and "results from the independent action of some third party not before the court," Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. at 426 U. S. 42 . As the Court pointed out in Warth v. Seldin, 422 U.S. at 422 U. S. 505 , "the Page 468 U. S. 758 indirectness of the injury . . . may make it substantially more difficult to meet the minimum requirement of Art. III. . . ." The diminished ability of respondents' children to receive a desegregated education would be fairly traceable to unlawful IRS grants of tax exemptions only if there were enough racially discriminatory private schools receiving tax exemptions in respondents' communities for withdrawal of those exemptions to make an appreciable difference in public school integration. Respondents have made no such allegation. It is, first, uncertain how many racially discriminatory private schools are in fact receiving tax exemptions. [ Footnote 23 ] Moreover, it is entirely speculative, as respondents themselves conceded in the Court of Appeals, see n 17, supra, whether withdrawal of a tax exemption from any particular school would lead the school to change its policies. See 480 F. Supp. at 796. It is just as speculative whether any given parent of a child attending such a private school would decide to transfer the child to public school as a result of any changes in educational or financial policy made by the private school once it was threatened with loss of tax-exempt status. It is also pure speculation whether, in a particular community, a large enough number of the numerous relevant school officials and parents would reach decisions that collectively would have a significant impact on the racial composition of the public schools. Page 468 U. S. 759 The links in the chain of causation between the challenged Government conduct and the asserted injury are far too weak for the chain as a whole to sustain respondents' standing. In Simon v. Eastern Kentucky Welfare Rights Org., supra, the Court held that standing to challenge a Government grant of a tax exemption to hospitals could not be founded on the asserted connection between the grant of tax-exempt status and the hospitals' policy concerning the provision of medical services to indigents. [ Footnote 24 ] The causal connection depended on the decisions hospitals would make in response to withdrawal of tax-exempt status, and those decisions were sufficiently uncertain to break the chain of causation between the plaintiffs' injury and the challenged Government action. Id. at 426 U. S. 40 -46. See also Warth v. Seldin, supra. The chain of causation is even weaker in this case. It involves numerous third parties (officials of racially discriminatory schools receiving tax exemptions and the parents of children attending such schools) who may not even exist in respondents' communities and whose independent decisions may not collectively have a significant effect on the ability of public school students to receive a desegregated education. The idea of separation of powers that underlies standing doctrine explains why our cases preclude the conclusion that respondents' alleged injury "fairly can be traced to the challenged action" of the IRS. Simon v. Eastern Kentucky Welfare Rights Org., supra, at 426 U. S. 41 . That conclusion would pave the way generally for suits challenging, not specifically identifiable Government violations of law, but the particular programs agencies establish to carry out their legal obligations. Such suits, even when premised on allegations of Page 468 U. S. 760 several instances of violations of law, are rarely, if ever, appropriate for federal court adjudication. "Carried to its logical end, [respondents'] approach would have the federal courts as virtually continuing monitors of the wisdom and soundness of Executive action; such a role is appropriate for the Congress, acting through its committees and the 'power of the purse;' it is not the role of the judiciary, absent actual present or immediately threatened injury resulting from unlawful governmental action." Laird v. Tatum, 408 U.S. at 408 U. S. 15 . See also Gilligan v. Morgan, 413 U. S. 1 , 413 U. S. 14 (1973) (BLACKMUN, J., concurring). The same concern for the proper role of the federal courts is reflected in cases like O'Shea v. Littleton, 414 U. S. 488 (1974), Rizzo v. Goode, 423 U. S. 362 (1976), and Los Angeles v. Lyons, 461 U. S. 95 (1983). In all three cases, plaintiffs sought injunctive relief directed at certain systemwide law enforcement practices. [ Footnote 25 ] The Court held in each case that, absent an allegation of a specific threat of being subject to the challenged practices, plaintiffs had no standing to ask for an injunction. Animating this Court's holdings was the principle that "[a] federal court . . . is not the proper forum to press" general complaints about the way in which government goes about its business. Id. at 461 U. S. 112 . Case-or-controversy considerations, the Court observed in O'Shea v. Littleton, supra, at 414 U. S. 499 , "obviously shade into those determining whether the complaint states a sound basis for equitable relief." The latter set of considerations should therefore inform our judgment about whether respondents Page 468 U. S. 761 have standing. Most relevant to this case is the principle articulated in Rizzo v. Goode, supra, at 423 U. S. 378 -379: "When a plaintiff seeks to enjoin the activity of a government agency, even within a unitary court system, his case must contend with "the well-established rule that the Government has traditionally been granted the widest latitude in the dispatch of its own internal affairs,' Cafeteria Workers v. McElroy, 367 U. S. 886 , 367 U. S. 896 (1961)," quoted in Sampson v. Murray, 415 U. S. 61 , 415 U. S. 83 (1974)." When transported into the Art. III context, that principle, grounded as it is in the idea of separation of powers, counsels against recognizing standing in a case brought, not to enforce specific legal obligations whose violation works a direct harm, but to seek a restructuring of the apparatus established by the Executive Branch to fulfill its legal duties. The Constitution, after all, assigns to the Executive Branch, and not to the Judicial Branch, the duty to "take Care that the Laws be faithfully executed." U.S.Const., Art. II, § 3. We could not recognize respondents' standing in this case without running afoul of that structural principle. [ Footnote 26 ] C The Court of Appeals relied for its contrary conclusion on Gilmore v. City of Montgomery, 417 U. S. 556 (1974), on Norwood v. Harrison, 413 U. S. 455 (1973), and on Coit v. Green, 404 U.S. 997 (1971), summarily aff'g Green v. Connally, Page 468 U. S. 762 330 F. Supp. 1150 (DC). Respondents in this Court, though stressing a different injury from the one emphasized by the Court of Appeals, see supra at 468 U. S. 752 -753, place principal reliance on those cases as well. None of the cases, however, requires that we find standing in this lawsuit. In Gilmore v. City of Montgomery, supra, the plaintiffs asserted a constitutional right, recognized in an outstanding injunction, to use the city's public parks on a nondiscriminatory basis. They alleged that the city was violating that equal protection right by permitting racially discriminatory private schools and other groups to use the public parks. The Court recognized plaintiffs' standing to challenge this city policy insofar as the policy permitted the exclusive use of the parks by racially discriminatory private schools: the plaintiffs had alleged direct cognizable injury to their right to nondiscriminatory access to the public parks. Id. at 417 U. S. 570 -571, n. 10. [ Footnote 27 ] Standing in Gilmore thus rested on an allegation of direct deprivation of a right to equal use of the parks. Like the plaintiff in Heckler v. Mathews -- indeed, like the plaintiffs having standing in virtually any equal protection case -- the plaintiffs in Gilmore alleged that they were personally being denied equal treatment. 465 U.S. at 465 U. S. 740 -741, n. 9. The Gilmore Court did not rest its finding of standing on an abstract denigration injury, and no problem of attenuated causation attended the plaintiffs' claim of injury. [ Footnote 28 ] Page 468 U. S. 763 In Norwood v. Harrison, supra, parents of public school children in Tunica County, Miss., filed a statewide class action challenging the State's provision of textbooks to students attending racially discriminatory private schools in the State. The Court held the State's practice unconstitutional because it breached "the State's acknowledged duty to establish a unitary school system," id. at 413 U. S. 460 -461. See id. at 413 U. S. 463 -468. The Court did not expressly address the basis for the plaintiffs' standing. In Gilmore, however, the Court identified the basis for standing in Norwood: "The plaintiffs in Norwood were parties to a school desegregation order, and the relief they sought was directly related to the concrete injury they suffered." 417 U.S. at 417 U. S. 571 , n. 10. Through the school desegregation decree, the plaintiffs had acquired a right to have the State "steer clear" of any perpetuation of the racially dual school system that it had once sponsored. 413 U.S. at 413 U. S. 467 . The interest acquired was judicially cognizable because it was a personal interest, created by law, in having the State refrain from taking specific actions. Cf. Warth v. Seldin, 422 U.S. at 422 U. S. 500 (standing may exist by virtue of legal rights created by statute). The plaintiffs' complaint alleged that the State directly injured that interest by aiding racially discriminatory private schools. Respondents in this lawsuit, of course, have no injunctive rights against the IRS that are allegedly being harmed by the challenged IRS action. Unlike Gilmore and Norwood, Coit v. Green, supra, cannot easily be seen to have based standing on an injury different in kind from any asserted by respondents here. The plaintiffs Page 468 U. S. 764 in Coit, parents of black schoolchildren in Mississippi, sued to enjoin the IRS grant of tax exemptions to racially discriminatory private schools in the State. Nevertheless, Coit in no way mandates the conclusion that respondents have standing. First, the decision has little weight as a precedent on the law of standing. This Court's decision in Coit was merely a summary affirmance; for that reason alone, it could hardly establish principles contrary to those set out in opinions issued after full briefing and argument. See Fusari v. Steinberg, 419 U. S. 379 , 419 U. S. 392 (1975) (BURGER, C.J., concurring); see also Tully v. Griffin, Inc., 429 U. S. 68 , 429 U. S. 74 (1976). Moreover, when the case reached this Court, the plaintiffs and the IRS were no longer adverse parties; and the ruling that was summarily affirmed, Green v. Connally, 330 F. Supp. 1150 (DC 1971), did not include a ruling on the issue of standing, which had been briefly considered in a prior ruling of the District Court, Green v. Kennedy, 309 F. Supp. 1127 , 1132 (DC), appeal dism'd sub nom. Cannon v. Green, 398 U.S. 956 (1970). Thus, "the Court's affirmance in Green lacks the precedential weight of a case involving a truly adversary controversy." Bob Jones University v. Simon, 416 U. S. 725 , 416 U. S. 740 , n. 11 (1974). In any event, the facts in the Coit case are sufficiently different from those presented in this lawsuit that the absence of standing here is unaffected by the possible propriety of standing there. In particular, the suit in Coit was limited to the public schools of one State. Moreover, the District Court found, based on extensive evidence before it as well as on the findings in Coffey v. State Educational Finance Comm'n, 296 F. Supp. 1389 (SD Miss.1969), that large numbers of segregated private schools had been established in the State for the purpose of avoiding a unitary public school system, 309 F.Supp. at 1133-1134; that the tax exemptions were critically important to the ability of such schools to succeed, id. at 1134-1136; and that the connection between Page 468 U. S. 765 the grant of tax exemptions to discriminatory schools and desegregation of the public schools in the particular State was close enough to warrant the conclusion that irreparable injury to the interest in desegregated education was threatened if the tax exemptions continued, id. at 1138-1139. [ Footnote 29 ] What made possible those findings was the fact that, when the Mississippi plaintiffs filed their suit, the IRS had a policy of granting tax exemptions to racially discriminatory private schools; thus, the suit was initially brought, not simply to reform Executive Branch enforcement procedures, but to challenge a fundamental IRS policy decision, which affected numerous identifiable schools in the State of Mississippi. See id. at 1130. [ Footnote 30 ] The limited setting, the history of school desegregation in Mississippi at the time of the Coit litigation, the nature of the IRS conduct challenged at the outset of the litigation, and the District Court's particular findings, which were never challenged as clearly erroneous, see Motion to Dismiss or Affirm in Coit v. Green, O.T. 1971, No. 71-425, p. 13, amply distinguish the Coit case from respondents' lawsuit. Thus, we Page 468 U. S. 766 need not consider whether standing was properly found to exist in Coit. Whatever the answer to that question, respondents' complaint, which aims at nationwide relief and does not challenge particular identified unlawful IRS actions, alleges no connection between the asserted desegregation injury and the challenged IRS conduct direct enough to overcome the substantial separation of powers barriers to a suit seeking an injunction to reform administrative procedures. III "The necessity that the plaintiff who seeks to invoke judicial power stand to profit in some personal interest remains an Art. III requirement." Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. at 426 U. S. 39 . Respondents have not met this fundamental requirement. The judgment of the Court of Appeals is accordingly reversed, and the injunction issued by that court is vacated. It is so ordered. JUSTICE MARSHALL took no part in the decision of these cases. * Together with No. 81-970, Regan, Secretary of the Treasury, et al. v. Wright et al., also on certiorari to the same court. [ Footnote 1 ] As the Court explained last Term in Bob Jones University v. United States, 461 U. S. 574 , 461 U. S. 579 (1983), the IRS announced this policy in 1970 and formally adopted it in 1971. Rev.Rul. 71-447, 1971-2 Cum.Bull. 230. This change in prior policy was prompted by litigation over tax exemptions for racially discriminatory private schools in the State of Mississippi, litigation that resulted in the entry of an injunction against the IRS largely, if not entirely, coextensive with the position the IRS had voluntarily adopted. Green v. Kennedy, 309 F. Supp. 1127 (DC) (entering preliminary injunction), appeal dism'd sub nom. Cannon v. Green, 398 U.S. 956 (1970); Green v. Connally, 330 F. Supp. 1150 (DC) (entering permanent injunction), summarily aff'd sub nom. Coit v. Green, 404 U.S. 997 (1971). [ Footnote 2 ] The 1975 guidelines replaced guidelines issued for the same purpose in 1972. Rev.Proc. 72-54, 1972-2 Cum.Bull. 834. [ Footnote 3 ] The definition of "racially nondiscriminatory policy" is qualified in one respect: "A policy of a school that favors racial minority groups with respect to admissions, facilities and programs, and financial assistance will not constitute discrimination on the basis of race when the purpose and effect is to promote the establishment and maintenance of that school's racially nondiscriminatory policy as to students." Rev. Proc. 75-50, § 3.02, 1975-2 Cum.Bull. 587. [ Footnote 4 ] One way a school can satisfy the publication requirement is to disseminate notice of the nondiscrimination policy through the print or broadcast media. Id. § 4.03-1, p. 588. Detailed IRS rules govern what print and broadcast media may be selected, as well as the content of the notice. Ibid. Although the IRS encourages all schools to follow that route, see id. § 4.03-2, p. 589, there are three alternative ways to satisfy the publication requirement. First, a parochial or church-related school at least 75% of whose students in the preceding three years were members of the church satisfies the requirement if it gives notice of its nondiscrimination policy in church publications, unless it advertises in newspapers of general circulation. Id. § 4.03-2(a), p. 588. Second, a school that draws its students from areas larger than the local community satisfies the requirement if it enrolls minority students in meaningful numbers or engages in promotional and recruitment activities reasonably designed to reach all racial segments of the areas from which students are drawn. Id. § 4.03-2(b). Third, a school serving only a local community satisfies the publication requirement if it actually enrolls minority students in meaningful numbers. Id. § 4.03-2(c), pp. 588-589. A school choosing any of these three options "must be prepared to demonstrate" on audit that this choice was justified. Id. § 4.03-2, p. 589. [ Footnote 5 ] Scholarships and loans must generally be available without regard to race, and this fact must be known in the community served by the school. An exception is made, however, consistent with § 3.02 of Rev. Proc. 75-50, 1975-2 Cum.Bull. 587, see n 3, supra, for financial assistance programs favoring minority students that are designed to promote the school's nondiscriminatory policy. A second exception is made for financial assistance programs "favoring members of one or more racial groups that do not significantly derogate from the school's racially nondiscriminatory policy. . . ." Rev. Proc. 75-50, § 4.05, 1975-2 Cum.Bull. 589. [ Footnote 6 ] The regulations also declare that discrimination in the employment of faculty and administrative staff (or its absence) is indicative of discrimination with respect to students (or its absence). Id. § 4.07. [ Footnote 7 ] Records must be kept, and preserved for three years, concerning the racial composition of the student body, the faculty and administrative staff, and the group of students receiving financial assistance. Copies of brochures, catalogs, and advertising must also be kept. Id. § 7.01, p. 590. Although the method of figuring racial composition must be described in the records compiled by the school, the school need not require students, applicants, or staff to furnish information not otherwise required, and the school generally need not release personally identifiable records. Id., § 7.02. Cf. id. § 5.02, pp. 589-590 (information furnished by applicant for tax-exempt status subject to similar qualifications). Reports containing the required information, if filed in accordance with law with a Government agency, may satisfy the recordkeeping requirement if the information is current and the school maintains copies of the reports. Id. § 7.03, p. 590. Failure to maintain the required records gives rise to a presumption of noncompliance with the guidelines. Id. § 7.04. [ Footnote 8 ] The Revenue Procedure expressly notes, id. § 8, that its provisions are superseded by, to the extent they differ from, the injunction concerning Mississippi schools issued in Green v. Connally, 330 F. Supp. 1150 (DC), summarily aff'd sub nom. Coit v. Green, 404 U.S. 997 (1971). [ Footnote 9 ] Shortly before respondents filed this action, the plaintiffs in the Green litigation, concerning the tax-exempt status of private schools in Mississippi, ibid., moved to reopen that suit, making allegations comparable to those in respondents' complaint. See Wright v. Regan, 211 U.S.App.D.C. 231, 236, 656 F.2d 820, 825 (1981). In 1977, the Mississippi litigation was consolidated with this suit. Ibid. The Green litigation was not consolidated with this lawsuit on appeal, however, and it is not before this Court. [ Footnote 10 ] Hereafter, references to a private school's tax exemption embrace both tax-exempt status of the school and tax-exempt status of an "umbrella" organization. We assume, without deciding, that a grant of tax-exempt status to an "umbrella" organization of the sort respondents have in mind is subject to the same legal constraints as a grant of tax-exempt status directly to a school. [ Footnote 11 ] The complaint generally uses the phrase "racially segregated school" to mean simply that no or few minority students attend the school, irrespective of the school's maintenance of racially discriminatory policies or practices. Although the complaint, on its face, alleges that granting tax-exempt status to any "racially segregated" school in a desegregating public school district is unlawful, App. 39, it is clear that respondents premise their allegation of illegality on discrimination, not on segregation alone. The nub of respondents' complaint is that current IRS guidelines and procedures are inadequate to detect false certifications of nondiscrimination policies. See id. at 17-18, 25. This allegation would be superfluous if respondents were claiming that racial segregation even without racial discrimination made the grant of tax-exempt status unlawful. Moreover respondents have noticeably refrained from asserting that the IRS violates the law when it grants a tax exemption to a nondiscriminatory private school that happens to have few minority students. Indeed, respondents' brief in this Court makes a point of noting that their complaint alleges not only segregation, but discrimination, see Brief for Respondents 10, n. 8, and it repeatedly states that the challenged Government conduct is the granting of tax exemptions to racially discriminatory private schools, see, e.g., id. at 9-10 ("Respondents alleged that the federal petitioners are continuing to grant tax-exempt status to racially discriminatory private schools . . ."); id. at 13-14. Since respondents' entire argument is built on the assertion that their rights are violated by IRS grants of tax-exempt status to some number of unidentified racially discriminatory private schools in desegregating districts, we resolve the ambiguity in respondents' complaint by reading it as making that assertion. Contrary to JUSTICE BRENNAN's statement, post at 468 U. S. 768 , the complaint does not allege that each desegregating district in which they reside contains one or more racially discriminatory private schools unlawfully receiving a tax exemption. [ Footnote 12 ] The complaint alleges that the challenged IRS conduct violates several laws: § 501(c)(3) of the Internal Revenue Code, 26 U.S.C. § 501(c)(3); Title VI of the Civil Rights Act of 1964, 78 Stat. 252, as amended, 42 U.S.C. § 2000d et seq.; Rev.Stat. § 1977, 42 U.S.C. § 1981; and the Fifth and Fourteenth Amendments to the United States Constitution. Last Term, in Bob Jones University v. United States, 461 U. S. 574 (1983), the Court concluded that racially discriminatory private schools do not qualify for a tax exemption under § 501(c)(3) of the Internal Revenue Code. [ Footnote 13 ] Respondents did not allege in their 1976 complaint that their children were currently attending racially segregated schools. In 1979, during argument before the District Court, counsel for respondents stated that his clients' children "do go to desegregated schools. . . ." App. 62. [ Footnote 14 ] Several additional tax benefits accrue to an organization receiving a tax exemption under § 501(c)(3) of the Code. Such an organization is exempt not only from income taxes but also from federal social security taxes, 26 U.S.C. § 3121(b)(8)(B), and from federal unemployment taxes, 26 U.S.C. § 3306(c)(8). Moreover, contributions to the organization are deductible not only from income taxes, 26 U.S.C. §§ 170(a)(1) and (c)(2), but also from federal estate taxes, 26 U.S.C. § 2055(a)(2), and from federal gift taxes, 26 U.S.C. § 2522(a)(2). [ Footnote 15 ] The first proposal was made on August 22, 1978. 43 Fed.Reg. 37296. It placed the burden of proving good faith operation on a nondiscriminatory basis, evaluated according to specified factors, on any private school that had an insignificant number of minority students and that had been formed or substantially expanded at a time the public schools in its community were undergoing desegregation. The second proposal was made on February 13, 1979, after public comment and hearings. 44 Fed.Reg. 9451. It afforded private schools "greater flexibility" in proving nondiscriminatory operation, permitting satisfaction of this proof requirement by a showing that the school has "undertaken actions or programs reasonably designed to attract minority students on a continuing basis." Id. at 9452, 9454. [ Footnote 16 ] Treasury, Postal Service, and General Government Appropriations Act of 1980, §§ 103 and 615, 93 Stat. 562, 577. Section 615 of the Act, known as the Dornan Amendment, specifically forbade the use of funds to carry out the IRS's proposed Revenue Procedures. Section 103 of the Act, known as the Ashbrook Amendment, more generally forbade the use of funds to make the requirements for tax-exempt status of private schools more stringent than those in effect prior to the IRS's proposal of its new Revenue Procedures. These provisions expired on October 1, 1980, but Congress maintained its interest in IRS policies regarding tax exemptions for racially discriminatory private schools. The Dornan and Ashbrook Amendments were reinstated for the period December 16, 1980, through September 30, 1981. H.J.Res. 644, Pub.L. 96-536, §§ 101(a)(1) and (4), 94 Stat. 3166, as amended by Supplemental Appropriations and Rescission Act of 1981, § 401, 95 Stat. 95. For fiscal year 1982, Congress specifically denied funding for carrying out not only administrative actions but also court orders entered after the date of the IRS's proposal of its first revised Revenue Procedure. H.J.Res. 325, Pub.L. 97-51, § 101(a)(3), 95 Stat. 958. No such spending restrictions are currently in force. [ Footnote 17 ] Indeed, the Court of Appeals observed that respondents "do not dispute that it is 'speculative,' within the Eastern Kentucky frame, whether any private school would welcome blacks in order to retain tax exemption, or would relinquish exemption to retain current practices." 211 U.S.App.D.C. at 240, 656 F.2d at 829 (footnotes omitted). [ Footnote 18 ] Judge Tamm dissented from the holding of the Court of Appeals. He concluded that standing in the three cases relied on by the majority was based on injury to rights under a court decree, and that respondents in this case asserted nothing more than the abstract interest in securing enforcement of the law against the Government. Id. at 249-259, 656 F.2d at 838-848. [ Footnote 19 ] The "fairly traceable" and "redressability" components of the constitutional standing inquiry were initially articulated by this Court as "two facets of a single causation requirement." C. Wright, Law of Federal Courts § 13, p. 68, n. 43 (4th ed.1983). To the extent there is a difference, it is that the former examines the causal connection between the assertedly unlawful conduct and the alleged injury, whereas the latter examines the causal connection between the alleged injury and the judicial relief requested. Cases such as this, in which the relief requested goes well beyond the violation of law alleged, illustrate why it is important to keep the inquiries separate if the "redressability" component is to focus on the requested relief. Even if the relief respondents request might have a substantial effect on the desegregation of public schools, whatever deficiencies exist in the opportunities for desegregated education for respondents' children might not be traceable to IRS violations of law -- grants of tax exemptions to racially discriminatory schools in respondents' communities. [ Footnote 20 ] We assume, arguendo, that the asserted stigmatic injury may be caused by the Government's grant of tax exemptions to racially discriminatory schools even if the Government is granting those exemptions without knowing or believing that the schools in fact discriminate. That is, we assume, without deciding, that the challenged Government tax exemptions are the equivalent of Government discrimination. [ Footnote 21 ] Cf. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464 , 454 U. S. 489 -490, n. 26 (1982) (citations omitted): "Were we to recognize standing premised on an "injury" consisting solely of an alleged violation of a " personal constitutional right' to a government that does not establish religion," a principled consistency would dictate recognition of respondents' standing to challenge execution of every capital sentence on the basis of a personal right to a government that does not impose cruel and unusual punishment, or standing to challenge every affirmative action program on the basis of a personal right to a government that does not deny equal protection of the laws, to choose but two among as many possible examples as there are commands in the Constitution." [ Footnote 22 ] Respondents' stigmatic injury, though not sufficient for standing in the abstract form in which their complaint asserts it, is judicially cognizable to the extent that respondents are personally subject to discriminatory treatment. See Heckler v. Mathews, 465 U. S. 728 , 465 U. S. 739 -740 (1984). The stigmatic injury thus requires identification of some concrete interest with respect to which respondents are personally subject to discriminatory treatment. That interest must independently satisfy the causation requirement of standing doctrine. In Heckler v. Mathews, for example, the named plaintiff (appellee) was being denied monetary benefits allegedly on a discriminatory basis. We specifically pointed out that the causation component of standing doctrine was satisfied with respect to the claimed benefits. In distinguishing the case from Simon v. Eastern Kentucky Welfare Rights Org., 426 U. S. 26 (1976), we said: "there can be no doubt about the direct causal relationship between the Government's alleged deprivation of appellee's right to equal protection and the personal injury appellee has suffered -- denial of Social Security benefits solely on the basis of his gender." 465 U.S. at 465 U. S. 741 , n. 9. In this litigation, respondents identify only one interest that they allege is being discriminatorily impaired -- their interest in desegregated public school education. Respondents' asserted stigmatic injury, therefore, is sufficient to support their standing in this litigation only if their school desegregation injury independently meets the causation requirement of standing doctrine. [ Footnote 23 ] Indeed, contrary to the suggestion of JUSTICE BRENNAN's dissent, post at 468 U. S. 774 -775, and n. 5, of the schools identified in respondents' complaint, none of those alleged to be directly receiving a tax exemption is alleged to be racially discriminatory, and only four schools -- Delta Christian Academy and Tallulah Academy in Madison Parish, La.; River Oaks School in Monroe, La.; and Bowman Academy in Orangeburg, S.C. -- are alleged to have discriminatory policies that deprive them of direct tax exemptions, yet operate under the umbrella of a tax-exempt organization. These allegations constitute an insufficient basis for the only claim made by respondents -- a claim for a change in the IRS regulations and practices. Cf. Wright v. Miller, 480 F. Supp. 790 , 796 (DC 1979) ("it is purely speculative whether, in the final analysis, any fewer schools would be granted tax exemptions under plaintiffs' system than under the current IRS system"). [ Footnote 24 ] Simon v. Eastern Kentucky Welfare Rights Org., supra, framed its standing discussion in terms of the redressability of the alleged injury. The relief requested by the plaintiffs, however, was simply the cessation of the allegedly illegal conduct. In those circumstances, as the opinion for the Court in Simon itself illustrates, see id. at 426 U. S. 40 -46, the "redressability" analysis is identical to the "fairly traceable" analysis. See n. 19 supra. [ Footnote 25 ] In O'Shea v. Littleton and Rizzo v. Goode, the plaintiffs sought wide-ranging reform of local law enforcement systems. In Los Angeles v. Lyons, by contrast, the plaintiff sought cessation of a particular police practice. The Court concluded in Lyons, however, that this difference did not distinguish the cases for standing purposes as long as the plaintiff could show no realistic threat of being subject to the challenged practice. [ Footnote 26 ] We disagree with JUSTICE STEVENS' suggestions that separation of powers principles merely underlie standing requirements, have no role to play in giving meaning to those requirements, and should be considered only under a distinct justiciability analysis. Post at 468 U. S. 789 -792. Moreover, our analysis of this case does not rest on the more general proposition that no consequence of the allocation of administrative enforcement resources is judicially cognizable. Post at 468 U. S. 792 -793. Rather, we rely on separation of powers principles to interpret the "fairly traceable" component of the standing requirement. [ Footnote 27 ] On the merits, the Court found that permitting such exclusive use by school groups was unlawful, because it violated the city's constitutional obligation, spelled out in an outstanding school desegregation order, to take no action that would impede the integration of the public schools. Exclusive availabililty of the public parks "significantly enhanced the attractiveness of segregated private schools . . . by enabling them to offer complete athletic programs." 417 U.S. at 417 U. S. 569 . [ Footnote 28 ] Indeed, the Court stressed the importance of a particularized factual record when it stated that it was "not prepared, at this juncture and on this record, to assume the standing of these plaintiffs to claim relief against certain nonexclusive uses by private school groups." Id. at 417 U. S. 570 , n. 10. "Without a properly developed record," said the Court, it was not clear that such nonexclusive use "would result in cognizable injury to these plaintiffs." Id. at 417 U. S. 571 , n. 10. The Court said nothing about the plaintiffs' standing to challenge the use of the parks, exclusive or nonexclusive, by racially discriminatory groups other than schools. It was unnecessary to do so, because the Court declined to consider the merits of that challenge on the record before it. Id. at 417 U. S. 570 -574. [ Footnote 29 ] In Norwood v. Harrison, 413 U. S. 455 , 413 U. S. 467 , n. 9 (1973), this Court described the experience of one county in Mississippi: "all white children were withdrawn from public schools and placed in a private academy housed in local church facilities and staffed by the principal and 17 high school teachers of the county system, who resigned in mid-year to accept jobs at the new academy." The Court observed that similar histories in various other localities in Mississippi were recited by the plaintiffs without challenge. Ibid. [ Footnote 30 ] The relatively simple either-or nature of the challenged decision affects the extent to which the initial complaint implicated separation of powers concerns. When the IRS altered its policy concerning the grant of tax exemptions to racially discriminatory schools, see Green v. Connally, 330 F. Supp. at 1156, the plaintiffs were left with an action more closely resembling this lawsuit. We have no occasion to consider here the effect on a plaintiff's standing of a defendant's partial cessation of challenged conduct when that partial cessation leaves the plaintiff with a complaint presenting substantially greater uncertainty about standing than the initial complaint did. JUSTICE BRENNAN, dissenting. Once again, the Court "uses 'standing to slam the courthouse door against plaintiffs who are entitled to full consideration of their claims on the merits.'" Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464 , 454 U. S. 490 (1982) (BRENNAN, J., dissenting) (quoting Barlow v. Collins, 397 U. S. 159 , 397 U. S. 178 (1970) (BRENNAN, J., concurring in result and dissenting)). And once again, the Court does so by "wax[ing] eloquent" on considerations that provide little justification for the decision at hand. See 454 U.S. at 454 U. S. 491 . This time, however, the Court focuses on "the idea of separation of powers," ante at 468 U. S. 750 , 468 U. S. 752 , 468 U. S. 759 , 468 U. S. 761 , as if the mere incantation of that phrase provides an obvious solution to the difficult questions presented by these cases. Page 468 U. S. 767 One could hardly dispute the proposition that Art. III of the Constitution, by limiting the judicial power to "Cases" or "Controversies," embodies the notion that each branch of our National Government must confine its actions to those that are consistent with our scheme of separated powers. But simply stating that unremarkable truism provides little, if any, illumination of the standing inquiry that must be undertaken by a federal court faced with a particular action filed by particular plaintiffs. "The question whether a particular person is a proper party to maintain the action does not, by its own force, raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government." Flast v. Cohen, 392 U. S. 83 , 392 U. S. 100 (1968). The Court's attempt to obscure the standing question must be seen, therefore, as no more than a cover for its failure to recognize the nature of the specific claims raised by the respondents in these cases. By relying on generalities concerning our tripartite system of government, the Court is able to conclude that the respondents lack standing to maintain this action without acknowledging the precise nature of the injuries they have alleged. In so doing, the Court displays a startling insensitivity to the historical role played by the federal courts in eradicating race discrimination from our Nation's schools -- a role that has played a prominent part in this Court's decisions from Brown v. Board of Education, 347 U. S. 483 (1954), through Bob Jones University v. United States, 461 U. S. 574 (1983). Because I cannot join in such misguided decisionmaking, I dissent. I The respondents, suing individually and on behalf of their minor children, are parents of black children attending public schools in various school districts across the Nation. Each of these school districts, the respondents allege, [ Footnote 2/1 ] was once segregated Page 468 U. S. 768 and is now in the process of desegregating pursuant to court order, federal regulations or guidelines, state law, or voluntary agreement. Moreover, each contains one or more private schools that discriminate against black schoolchildren and that operate with the assistance of tax exemptions unlawfully granted to them by the Internal Revenue Service (IRS). See Complaint �� 24-48, App. 26-38. To eliminate this federal financial assistance for discriminating schools, the respondents seek a declaratory judgment that current IRS practices are inadequate both in identifying racially discriminatory schools and in denying requested tax exemptions or revoking existing exemptions for any schools so identified. In particular, they allege that existing IRS guidelines permit schools to receive tax exemptions simply by adopting and certifying -- but not implementing -- a policy of nondiscrimination. Pursuant to these ineffective guidelines, [ Footnote 2/2 ] many private schools that discriminate on the basis of Page 468 U. S. 769 race continue to benefit illegally from their tax-exempt status and the resulting charitable deductions granted to taxpayers who contribute to such schools. The respondents therefore seek a permanent injunction requiring the IRS to deny tax exemptions to any private schools "which have insubstantial or nonexistent minority enrollments, which are located in or serve desegregating school districts, and which either -- " "(a) were established or expanded at or about the time the public school districts in which they are located or which they serve were desegregating;" "(b) have been determined in adversary judicial or administrative proceedings to be racially segregated; or" "(c) cannot demonstrate that they do not provide racially segregated educational opportunities for white children avoiding attendance in desegregating public school systems." Complaint � 4, App.19. This requested relief is substantially similar to the enforcement guidelines promulgated by the IRS itself in 1978 and 1979, before congressional action temporarily stayed, and the agency withdrew, the amended procedures. See 44 Fed.Reg. 9451 (1979); 43 Fed.Reg. 37296 (1978). Cf. ante at 468 U. S. 747 , and nn. 15-16. Page 468 U. S. 770 II Persons seeking judicial relief from an Art. III court must have standing to maintain their cause of action. At a minimum, the standing requirement is not met unless the plaintiff has "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends. . . ." Baker v. Carr, 369 U. S. 186 , 369 U. S. 204 (1962). Under the Court's cases, this "personal stake" requirement is satisfied if the person seeking redress has suffered, or is threatened with, some "distinct and palpable injury," Warth v. Seldin, 422 U. S. 490 , 422 U. S. 501 (1975), and if there is some causal connection between the asserted injury and the conduct being challenged, Simon v. Eastern Kentucky Welfare Rights Org., 426 U. S. 26 , 426 U. S. 41 (1976). See Heckler v. Mathews, 465 U. S. 728 , 465 U. S. 738 (1984); Havens Realty Corp. v. Coleman, 455 U. S. 363 , 455 U. S. 376 (1982); Valley Forge, 454 U.S. at 454 U. S. 472 . A In these cases, the respondents have alleged at least one type of injury that satisfies the constitutional requirement of "distinct and palpable injury." [ Footnote 2/3 ] In particular, they claim Page 468 U. S. 771 that the IRS's grant of tax-exempt status to racially discriminatory private schools directly injures their children's opportunity and ability to receive a desegregated education. As the complaint specifically alleges, the IRS action being challenged "fosters and encourages the organization, operation and expansion of institutions providing racially segregated educational opportunities for white children avoiding attendance in desegregating public school districts, and thereby interferes with the efforts of federal courts, HEW and local school authorities to desegregate public school districts which have been operating racially dual school systems." Complaint � 50(b), App. 39. The Court acknowledges that this alleged injury is sufficient to satisfy constitutional standards. See ante at 468 U. S. 756 . It does so only grudgingly, however, without emphasizing the significance of the harm alleged. Nonetheless, we have consistently recognized throughout the last 30 years that the deprivation of a child's right to receive an education in a desegregated school is a harm of special significance; surely, it satisfies any constitutional requirement of injury in fact. Just last Term, in Bob Jones University v. United States, for example, we acknowledged that "[a]n unbroken line of cases following Brown v. Board of Education establishes beyond doubt this Court's view that racial discrimination in education violates a most fundamental national public policy, as well as rights of individuals. " 461 U.S. at 461 U. S. 593 (1983) (emphasis added). See Gilmore v. City of Montgomery, 417 U. S. 556 , 417 U. S. 568 (1974) ("[T]he constitutional rights of children not to be discriminated against . . . can neither be nullified openly and Page 468 U. S. 772 directly . . . nor nullified indirectly . . . through evasive schemes for segregation whether attempted ingeniously or ingenuously'") (quoting Cooper v. Aaron, 358 U. S. 1 , 358 U. S. 17 (1958)); Norwood v. Harrison, 413 U. S. 455 , 413 U. S. 468 -469 (1973). "The right of a student not to be segregated on racial grounds in schools . . . is indeed so fundamental and pervasive that it is embraced in the concept of due process of law." Cooper v. Aaron, supra, at 358 U. S. 19 ; Brown v. Board of Education, 347 U. S. 483 (1954). In the analogous context of housing discrimination, the Court has similarly recognized that the denial of an opportunity to live in an integrated community is injury sufficient to satisfy the constitutional requirements of standing. In particular, we have recognized that injury is properly alleged when plaintiffs claim a deprivation "of the social and professional benefits of living in an integrated society." Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91 , 441 U. S. 111 -112 (1979). See also Havens Realty Corp. v. Coleman, supra, at 455 U. S. 376 , and n. 17; Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205 (1972). Noting "the importance of the benefits [obtained] from interracial associations'" as well as the oft-stated principle "that noneconomic injuries may suffice to provide standing," we have consistently concluded that such an injury is "sufficient to satisfy the constitutional standing requirement of actual or threatened harm." Gladstone, Realtors, supra, at 441 U. S. 112 (quoting Trafficante, supra, at 409 U. S. 210 , and citing Sierra Club v. Morton, 405 U. S. 727 , 405 U. S. 734 -735 (1972)). There is, of course, no rational basis on which to treat children who seek to be educated in desegregated school districts any differently for purposes of standing than residents who seek to live in integrated housing communities. Indeed, if anything, discriminatory practices by private schools, which "exer[t] a pervasive influence on the entire educational process," Norwood, supra, at 413 U. S. 469 (citing Brown v. Board of Education, supra, and quoted in Bob Jones University, supra, at Page 468 U. S. 773 461 U. S. 595 ), have been more readily recognized to constitute injury redressable in the federal courts. It is therefore beyond peradventure that the denial of the benefits of an integrated education alleged by the respondents in these cases constitutes "distinct and palpable injury." B Fully explicating the injury alleged helps to explain why it is fairly traceable to the governmental conduct challenged by the respondents. As the respondents specifically allege in their complaint: "Defendants have fostered and encouraged the development, operation and expansion of many of these racially segregated private schools by recognizing them as 'charitable' organizations described in Section 501(c)(3) of the Internal Revenue Code, and exempt from federal income taxation under Section 501(a) of the Code. Once the schools are classified as tax-exempt, . . . contributions made to them are deductible from gross income on individual and corporate income tax returns. . . . Moreover, [the] organizations . . . are also exempt from federal social security taxes . . . and from federal unemployment taxes. . . . The resulting exemptions and deductions provide tangible financial aid and other benefits which support the operation of racially segregated private schools. In particular, the resulting deductions facilitate the raising of funds to organize new schools and expand existing schools in order to accommodate white students avoiding attendance in desegregating public school districts. Additionally, the existence of a federal tax exemption amounts to a federal stamp of approval which facilitates fund raising on behalf of racially segregated private schools. Finally, by supporting the development, operation and expansion of institutions providing racially segregated educational opportunities Page 468 U. S. 774 for white children avoiding attendance in desegregating public schools, defendants are thereby interfering with the efforts of courts, HEW and local school authorities to desegregate public school districts which have been operating racially dual school systems." Complaint � 21, App. 24. [ Footnote 2/4 ] Viewed in light of the injuries they claim, the respondents have alleged a direct causal relationship between the Government action they challenge and the injury they suffer: their inability to receive an education in a racially integrated school is directly and adversely affected by the tax-exempt status granted by the IRS to racially discriminatory schools in their respective school districts. Common sense alone would recognize that the elimination of tax-exempt status for racially discriminatory private schools would serve to lessen the impact that those institutions have in defeating efforts to desegregate the public schools. The Court admits that "[t]he diminished ability of respondents' children to receive a desegregated education would be Page 468 U. S. 775 fairly traceable to unlawful IRS grants of tax exemptions . . . if there were enough racially discriminatory private schools receiving tax exemptions in respondents' communities for withdrawal of those exemptions to make an appreciable difference in public school integration," but concludes that "[r]espondents have made no such allegation." Ante at 468 U. S. 758 . With all due respect, the Court has either misread the complaint or is improperly requiring the respondents to prove their case on the merits in order to defeat a motion to dismiss. [ Footnote 2/5 ] For example, the respondents specifically refer by name to at least 32 private schools that discriminate on the basis of race, and yet continue to benefit illegally from tax-exempt status. Eighteen of those schools -- including at least 14 elementary schools, 2 junior high schools, and 1 high school -- are located in the city of Memphis, Tenn., which has been the subject of several court orders to desegregate. See Complaint �� 24-27, 45, App. 26-27, 35-36. Similarly, the respondents cite two private schools in Orangeburg, S.C., that continue to benefit from federal tax exemptions even though they practice race discrimination in school districts that are desegregating pursuant to judicial and administrative orders. See Complaint �� 29, 46, App. 28, 36. At least with respect to these school districts, as well as the others specifically mentioned in the complaint, there can be little doubt that the respondents have identified communities containing "enough racially discriminatory private schools receiving tax exemptions . . . to make an appreciable difference in public school integration," ante at 468 U. S. 758 . [ Footnote 2/6 ] Page 468 U. S. 776 Moreover, the Court has previously recognized the existence, and constitutional significance, of such direct relationships between unlawfully segregated school districts and government support for racially discriminatory private schools in those districts. In Norwood v. Harrison, 413 U. S. 455 (1973), for example, we considered a Mississippi program that provided textbooks to students attending both public and private schools, without regard to whether any participating school had racially discriminatory policies. In declaring that program constitutionally invalid, we noted that "'a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.'" Id. at 413 U. S. 465 . We then spoke directly to the causal relationship between the financial aid provided by the state textbook program and the constitutional rights asserted by the students and their parents: "The District Court laid great stress on the absence of a showing by appellants that" "any child enrolled in private school, if deprived of free textbooks, would withdraw from private school and subsequently enroll in the public schools. . . ." " We do not agree with the District Court in its analysis of the legal consequences of this uncertainty, for the Constitution does not permit the State to aid discrimination even when there is no precise causal relationship between state financial aid to a private school and the continued wellbeing of that school. A State may not grant the type of tangible financial aid here involved if that aid has a significant tendency to facilitate, reinforce, and support private discrimination. " Id. at 413 U. S. 465 -466 (citations omitted) (emphasis added). Page 468 U. S. 777 Thus, Norwood explicitly stands for the proposition that governmental aid to racially discriminatory schools is a direct impediment to school desegregation. The Court purports to distinguish Norwood from the present litigation because " [t]he plaintiffs in Norwood were parties to a school desegregation order,'" and therefore "had acquired a right to have the State 'steer clear' of any perpetuation of the racially dual school system that it had once sponsored," ante at 468 U. S. 763 (quoting Gilmore v. City of Montgomery, 417 U.S. at 417 U. S. 571 , n. 10, and Norwood, supra, at 413 U. S. 467 ), whereas the "[r]espondents in this lawsuit . . . have no injunctive rights against the IRS that are allegedly being harmed," ante at 468 U. S. 763 . There is nothing to suggest, however, that the relevant injunction in Norwood was anything more than an order to desegregate the schools in Tunica County, Miss. [ Footnote 2/7 ] Given that many of the school districts identified in the respondents' complaint have also been the subject of court-ordered integration, the standing inquiry in these cases should not differ. And, although the respondents do not specifically allege that they are named parties to Page 468 U. S. 778 any outstanding desegregation orders, that is undoubtedly due to the passage of time since the orders were issued, and not to any difference in the harm they suffer. Even accepting the relevance of the Court's distinction, moreover, that distinction goes to the injury suffered by the respective plaintiffs, and not to the causal connection between the harm alleged and the governmental action challenged. Cf. ante at 468 U. S. 756 (conceding that the respondents have alleged constitutionally sufficient harm in these cases). The causal relationship existing in Norwood between the alleged harm ( i.e., interference with the plaintiffs' injunctive rights to a desegregated school system) and the challenged governmental action ( i.e., free textbooks provided to racially discriminatory schools) is indistinguishable from the causal relationship existing in the present cases, unless the Court intends to distinguish the lending of textbooks from the granting of tax-exempt status. The Court's express statement on causation in Norwood therefore bears repeating: "the Constitution does not permit the State to aid discrimination even when there is no precise causal relationship between state financial aid to a private school and the continued wellbeing of that school." 413 U.S. at 413 U. S. 465 -466. See Note, The Judicial Role in Attacking Racial Discrimination in Tax-Exempt Private Schools, 93 Harv.L.Rev. 378, 385-386 (1979). [ Footnote 2/8 ] Page 468 U. S. 779 Similarly, although entitled to less weight than a decision after full briefing and oral argument on the merits, see Tully v. Griffin, Inc., 429 U. S. 68 , 429 U. S. 74 (1976), our summary affirmance in Coit v. Green, 404 U.S. 997 (1971), summarily aff'g Green v. Connally, 330 F. Supp. 1150 (DC), is directly relevant to the standing of the respondents in this litigation. The plaintiffs in Coit v. Green were black parents of minor children attending public schools in desegregating school districts. Like the respondents in these cases, the plaintiffs charged that the IRS had failed to confine tax-exempt status to private schools that were not racially discriminatory. And like the present respondents, they sought new IRS procedures as their exclusive remedy. The three-judge District Court expressly concluded that the plaintiffs had standing to maintain their action: "This case is properly maintained as a class action, pursuant to Rule 23 of the Federal Rules of Civil Procedure, by Negro school children in Mississippi and the parents of those children on behalf of themselves and all persons similarly situated. They have standing to attack the constitutionality of statutory provisions which they claim provid[e] an unconstitutional system of benefits and Page 468 U. S. 780 matching grants that fosters and supports a system of segregated private schools as an alternative available to white students seeking to avoid desegregated public schools. We follow the precedent on this point of the three-judge District Court for the Southern District of Mississippi in Coffey v. State Educational Finance Commission, 296 F. Supp. 1389 (1969)." Green v. Kennedy, 309 F. Supp. 1127 , 1132 (DC), appeal dism'd sub nom. Cannon v. Green, 398 U.S. 956 (1970). When the case was properly appealed to this Court, the standing issue was expressly raised in the jurisdictional statement filed by intervenor Coit on behalf of a class of parents and children who supported or attended all-white private schools. Juris. Statement, O.T. 1971, No. 71-425, p. 11. See Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. at 426 U. S. 63 , and n. 11 (BRENNAN, J., concurring in judgment). Nonetheless, the Court summarily affirmed, Coit v. Green, supra, thereby indicating our agreement with the District Court's conclusion. [ Footnote 2/9 ] See also Griffin v. County Page 468 U. S. 781 School Board of Prince Edward County, 377 U. S. 218 , 377 U. S. 224 (1964). Given these precedents, the Court is forced to place primary reliance on our decision in Simon v. Eastern Kentucky Welfare Rights Org., supra. In that case, the Court denied standing to plaintiffs who challenged an IRS Revenue Ruling that granted charitable status to hospitals even though they failed to operate to the extent of their financial ability when refusing medical services for indigent patients. The Court found that the injury alleged was not one "that fairly can be traced to the challenged action of the defendant." Id. at 426 U. S. 41 . In particular, it was "purely speculative" whether the denial of access to hospital services alleged by the plaintiffs fairly could be traced to the Government's grant of tax-exempt status to the relevant hospitals, primarily because the hospitals were likely making their service decisions without regard to the tax implications. Id. at 426 U. S. 42 -43. Even accepting the correctness of the causation analysis included in that decision, however, it is plainly distinguishable from the cases at hand. The respondents in these cases do not challenge the denial of any service by a tax-exempt Page 468 U. S. 782 institution; admittedly, they do not seek access to racially discriminatory private schools. Rather, the injury they allege, and the injury that clearly satisfies constitutional requirements, is the deprivation of their children's opportunity and ability to receive an education in a racially integrated school district. See supra at 468 U. S. 770 -773. This injury, as the Court admits, ante at 468 U. S. 757 -758, and as we have previously held in Norwood v. Harrison, 413 U.S. at 413 U. S. 465 -466, is of a kind that is directly traceable to the governmental action being challenged. The relationship between the harm alleged and the governmental action cannot simply be deemed "purely speculative," as was the causal connection at issue in Simon v. Eastern Kentucky Welfare Rights Org., supra, at 426 U. S. 42 . Indeed, as I have previously explained, supra at 468 U. S. 773 -778, the Court's conclusion to the contrary is based on a unjustifiably narrow reading of the respondents' complaint and an indefensibly limited interpretation of our holding in Norwood. By interposing its own version of pleading formalities between the respondents and the federal courts, the Court not only has denied access to litigants who properly seek vindication of their constitutional rights, but also has ignored the important historical role that the courts have played in the Nation's efforts to eliminate racial discrimination from our schools. III More than one commentator has noted that the causation component of the Court's standing inquiry is no more than a poor disguise for the Court's view of the merits of the underlying claims. [ Footnote 2/10 ] The Court today does nothing to avoid that criticism. What is most disturbing about today's decision, therefore, is not the standing analysis applied, but the indifference Page 468 U. S. 783 evidenced by the Court to the detrimental effects that racially segregated schools, supported by tax-exempt status from the Federal Government, have on the respondents' attempt to obtain an education in a racially integrated school system. I cannot join such indifference, and would give the respondents a chance to prove their case on the merits. [ Footnote 2/1 ] Because the District Court granted a motion to dismiss, see Wright v. Miller, 480 F. Supp. 790 , 793 (DC 1979), we must " accept as true all material allegations of the complaint, and . . . construe the complaint in favor of the complaining party.'" Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91 , 441 U. S. 109 (1979) (quoting Warth v. Seldin, 422 U. S. 490 , 422 U. S. 501 (1975)). See 441 U.S. at 441 U. S. 112 . Cf. Conley v. Gibson, 355 U. S. 41 , 355 U. S. 45 -46 (1957). [ Footnote 2/2 ] As I have recognized in 468 U.S. 737 fn2/1|>n. 1, supra, we must accept as true the factual allegations made by the respondents. It nonetheless should be noted that significant evidence exists to support the respondents' claim that the IRS guidelines are ineffective. Indeed, the Commissioner of Internal Revenue admitted as much in testimony before the Congress: "This litigation prompted the Service once again to review its procedures in this area. It focused our attention on the adequacy of existing policies and procedures as we moved to formulate a litigation position. We concluded that the Service's procedures were ineffective in identifying schools which, in actual operation, discriminate against minority students, even though the schools may profess an open enrollment policy and comply with the yearly publication requirements of Revenue Procedure 75-50." " * * * *" "A clear indication that our rules require strengthening is the fact that a number of private schools continue to hold tax exemption even though they have been held by Federal courts to be racially discriminatory. This position is indefensible. Just last year, the U.S. Commission on Civil Rights criticized the Service's enforcement in this area as inadequate, emphasizing the continuing tax exemption of such adjudicated schools." Tax-Exempt Status of Private Schools: Hearings before the Subcommittee on Oversight of the House Committee on Ways and Means, 96th Cong., 1st Sess., 5 (1979) (statement of Jerome Kurtz, Commissioner of Internal Revenue) (emphasis added). See also id. at 236-251 (letter and memorandum from U.S. Commission on Civil Rights criticizing IRS enforcement policies); id. at 1181-1182, 1187-1191 (statement and letter from Civil Rights Division of the Department of Justice criticizing IRS guidelines). [ Footnote 2/3 ] Because I conclude that the second injury alleged by the respondents is sufficient to satisfy constitutional requirements, I do not need to reach what the Court labels the "stigmatic injury." See ante at 468 U. S. 754 -756, and n. 22. I note, however, that the Court has mischaracterized this claim of injury by misreading the complaint filed by the respondents. In particular, the respondents have not simply alleged that, as blacks, they have suffered the denigration injury "suffered by all members of a racial group when the Government discriminates on the basis of race." Ante at 468 U. S. 754 . Rather, the complaint, fairly read, limits the claim of stigmatic injury from illegal governmental action to black children attending public schools in districts that are currently desegregating, yet contain discriminatory private schools benefiting from illegal tax exemptions. Cf. Havens Realty Corp. v. Coleman, 455 U.S. at 455 U. S. 377 (injury from racial steering practices confined to "relatively compact neighborhood[s]"). Thus, the Court's "parade of horribles" concerning black plaintiffs from Hawaii challenging tax exemptions granted to schools in Maine, see ante, at 468 U. S. 756 , is completely irrelevant for purposes of Art. III standing in this action. Indeed, even if relevant, that criticism would go to the scope of the class certified or the relief granted in the lawsuit, issues that were not reached by the District Court or the Court of Appeals and are not now before this Court. [ Footnote 2/4 ] The substance of these allegations is also summarized in � 2 of the complaint: "Contrary to law and their public responsibility, defendants have fostered and encouraged the development, operation and expansion of these racially segregated private schools by granting them, or the organizations that operate them, exemptions from federal income taxation. . . . Defendants have thereby ensured that these private schools will be exempt from federal income taxation, and that contributions to them will be deductible by corporate and individual donors for federal tax purposes. These federal tax benefits are important to the financial wellbeing of private segregated schools, and significantly support their development, operation and expansion. Moreover, by facilitating the development, operation and expansion of racially segregated schools which provide alternative educational opportunities for white children avoiding attendance in desegregating public school systems, defendants are thereby interfering with the efforts of federal courts, HEW and local school authorities to desegregate public school districts which have operated racially dual school systems." App. 17-18. [ Footnote 2/5 ] The Court's confusion is evident from note 23 of its opinion, ante at 468 U. S. 758 . The Court claims that "none of [the schools] alleged to be directly receiving a tax exemption is alleged to be racially discriminatory." This is directly contradicted not only by the plain language of the complaint, see Complaint �� 2, 22, App. 17-18, 25, but also by the Court's earlier concession that the respondents' complaint alleges "grants of tax-exempt status to . . . racially discriminatory private schools in desegregating districts," ante at 468 U. S. 745 , n. 11. [ Footnote 2/6 ] Even if the Court were correct in its conclusion that there is an insufficient factual basis alleged in the complaint, the proper disposition would be to remand in order to afford the respondents an opportunity to amend their complaint. See Havens Realty Corp. v. Coleman, 455 U. S. 363 , 455 U. S. 377 -378 (1982); Simon v. Eastern. Kentucky Welfare Rights Org., 426 U. S. 26 , 426 U. S. 55 , n. 6 (1976) (BRENNAN, J., concurring in judgment). Cf. Fed.Rule Civ.Proc. 12(e). [ Footnote 2/7 ] In particular, the plaintiffs in Norwood, suing on behalf of a statewide class of black students, characterized the basis for their standing as follows: "The named plaintiffs . . . are black citizens of the United States residing in Tunica County, Mississippi. They are students in attendance at the public schools of the Tunica County School District. Their right to a racially integrated and otherwise nondiscriminatory public school system, vindicated by order of [the District Court] dated January 23, 1970 [ United States and Driver v. Tunica County School District, Civil Action Nos. DC 6718 and 7013], and their right to the elimination of state support for racially segregated schools, has been frustrated and/or abridged by the creation of the racially segregated Tunica County Institute of Learning and the policies and practices of defendants as set forth below." App. 20 and Brief for United States as Amicus Curiae in Norwood v. Harrison, O.T. 1972, No. 72-77, p. 5. For the reasons explained in the text, I find these allegations legally indistinguishable from the allegations in the present litigation. [ Footnote 2/8 ] Our subsequent decision in Gilmore v. City of Montgomery, 417 U. S. 556 (1974), heavily relied on our decision in Norwood. In Gilmore, we considered a challenge to a city policy that permitted racially segregated schools and other segregated private groups and clubs to use city parks and recreational facilities. In affirming an injunction against exclusive access to such facilities, we noted: "Any arrangement, implemented by state officials at any level, which significantly tends to perpetuate a dual school system, in whatever manner, is constitutionally impermissible." "[T]he constitutional rights of children not to be discriminated against . . . can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes for segregation, whether attempted 'ingeniously or ingenuously.'" "This means that any tangible state assistance, outside the generalized services government might provide to private segregated schools in common with other schools and with all citizens, is constitutionally prohibited if it has 'a significant tendency to facilitate, reinforce, and support private discrimination.' The constitutional obligation of the State" "requires it to steer clear not only of operating the old dual system of racially segregated schools, but also of giving significant aid to institutions that practice racial or other invidious discrimination." 417 U.S. at 417 U. S. 568 -569 (citations omitted). The Court notes that the case in Gilmore was remanded to the District Court for development of a more particularized record to ensure that the nonexclusive use of the city's parks " would result in cognizable injury to these plaintiffs.'" Ante at 468 U. S. 763 , n. 28 (quoting Gilmore, supra, at 417 U. S. 570 -571, n. 10). At most, however, this simply suggests that a remand for more particularized pleadings is the proper disposition in the present litigation. Cf. 468 U.S. 737 fn2/6|>n. 6, supra. The Court is therefore no more faithful to the procedures followed in Gilmore than it is to the substance of that decision. [ Footnote 2/9 ] The Court's discussion of our summary affirmance in Coit v. Green simply stretches the imagination beyond its breaking point. The Court concludes that "[t]he limited setting, the history of school desegregation in Mississippi at the time of the Coit litigation, the nature of the IRS conduct challenged at the outset of the litigation, and the District Court's particular findings . . . amply distinguish the Coit case from respondents' lawsuit." Ante at 468 U. S. 765 . With all due respect, none of these criteria should be relevant to the determination of standing in these cases. First, although the Coit litigation was limited to the State of Mississippi, that relates solely to the scope of a properly certified class, and not to the standing of class members to maintain their action. Cf. 468 U.S. 737 fn2/3|>n. 3, supra. Second, although the District Court made extensive findings concerning the importance of tax exemptions to the discriminatory schools involved in the Coit litigation, that only helps to prove the truth of the allegations made by the respondents in these cases. It also demonstrates why the respondents should be given either an opportunity to prove their case on the merits or an opportunity to amend their pleadings with more particularized allegations. Cf. nn. 468 U.S. 737 fn2/6|>6, 468 U.S. 737 fn2/8|>8, supra. Because the respondents in this litigation have never had their day in court, the Court's use of the specific findings made in the Coit litigation to deny the respondents standing in this litigation makes a mockery of the standing inquiry. Third, although it is correct that, before the Coit litigation, the IRS initially followed a policy of granting tax exemptions to racially discriminatory schools, that should have no bearing on the respondents' standing in these cases; indeed, the respondents have alleged that the current IRS enforcement policy is so ineffective as to be the functional equivalent of the Government's policy prior to the Coit litigation. See supra at 468 U. S. 768 , and n. 2. Finally, if the "history of school desegregation in Mississippi at the time of the Coit litigation" is at all relevant to the standing inquiry, it weighs in favor of allowing the respondents to maintain their present lawsuit. From the perspective of black children attending desegregating public schools, and according to the allegations included in their complaint, current IRS policies toward racially discriminatory private schools represent a substantial continuation of the onerous history of school desegregation in the affected school districts. With all respect, therefore, the Court has simply failed to distinguish these cases from our summary affirmance in Coit v. Green. [ Footnote 2/10 ] See, e.g., L. Tribe, American Constitutional Law § 3-21 (1978); Chayes, Foreword: Public Law Litigation and the Burger Court, 96 Harv.L.Rev. 1, 14-22 (1982); Nichol, Causation as a Standing Requirement: The Unprincipled Use of Judicial Restraint, 69 Ky.L.J. 185 (1980-1981); Tushnet, The New Law of Standing: A Plea for Abandonment, 62 Cornell L.Rev. 663 (1977). JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, dissenting. Three propositions are clear to me: (1) respondents have adequately alleged "injury in fact"; (2) their injury is fairly traceable to the conduct that they claim to be unlawful; and (3) the "separation of powers" principle does not create a jurisdictional obstacle to the consideration of the merits of their claim. I Respondents, the parents of black schoolchildren, have alleged that their children are unable to attend fully desegregated schools because large numbers of white children in the areas in which respondents reside attend private schools which do not admit minority children. The Court, JUSTICE BRENNAN, and I all agree that this is an adequate allegation of "injury in fact." The Court is quite correct when it writes: "The injury they identify -- their children's diminished ability to receive an education in a racially integrated school -- is, beyond any doubt, not only judicially cognizable but, as shown by cases from Brown v. Board of Education, 347 U. S. 483 (1954), to Bob Jones University v. United States, 461 U. S. 574 (1983), one of the most serious injuries recognized in our legal system." Ante at 468 U. S. 756 . This kind of injury may be actionable whether it is caused by the exclusion of black children from public schools or by an official policy of encouraging white children to attend nonpublic Page 468 U. S. 784 schools. A subsidy for the withdrawal of a white child can have the same effect as a penalty for admitting a black child. II In final analysis, the wrong respondents allege that the Government has committed is to subsidize the exodus of white children from schools that would otherwise be racially integrated. The critical question in these cases, therefore, is whether respondents have alleged that the Government has created that kind of subsidy. In answering that question, we must, of course, assume that respondents can prove what they have alleged. Furthermore, at this stage of the litigation, we must put to one side all questions about the appropriateness of a nationwide class action. [ Footnote 3/1 ] The controlling issue is whether the causal connection between the injury and the wrong has been adequately alleged. An organization that qualifies for preferential treatment under § 501(c)(3) of the Internal Revenue Code, because it is "operated exclusively for . . . charitable . . . purposes," 26 Page 468 U. S. 785 U.S.C. § 501(C)(3), is exempt from paying federal income taxes, and, under § 170 of the Code, 26 U.S.C. § 170, persons who contribute to such organizations may deduct the amount of their contributions when calculating their taxable income. Only last Term, we explained the effect of this preferential treatment: "Both tax exemptions and tax deductibility are a form of subsidy that is administered through the tax system. A tax exemption has much the same effect as a cash grant to the organization of the amount of tax it would have to pay on its income. Deductible contributions are similar to cash grants of the amount of a portion of the individual's contributions." Regan v. Taxation With Representation of Washington, 461 U. S. 540 , 461 U. S. 544 (1983) (footnote omitted). The purpose of this scheme, like the purpose of any subsidy, is to promote the activity subsidized; the statutes "seek to achieve the same basic goal of encouraging the development of certain organizations through the grant of tax benefits." Bob Jones University v. United States, 461 U. S. 574 , 461 U. S. 587 , n. 10 (1983). If the granting of preferential tax treatment would "encourage" private segregated schools to conduct their "charitable" activities, it must follow that the withdrawal of the treatment would "discourage" them, and hence promote the process of desegregation. [ Footnote 3/2 ] Page 468 U. S. 786 We have held that, when a subsidy makes a given activity more or less expensive, injury can be fairly traced to the subsidy for purposes of standing analysis because of the resulting increase or decrease in the ability to engage in the activity. [ Footnote 3/3 ] Indeed, we have employed exactly this causation analysis in the same context at issue here -- subsidies given private schools that practice racial discrimination. Thus, in Gilmore v. City of Montgomery, 417 U. S. 556 (1974), we easily recognized the causal connection between official policies that enhanced the attractiveness of segregated schools and the failure to bring about or maintain a desegregated public school system. [ Footnote 3/4 ] Similarly, in Norwood v. Harrison , Page 468 U. S. 787 413 U. S. 455 (1973), we concluded that the provision of textbooks to discriminatory private schools "has a significant tendency to facilitate, reinforce, and support private discrimination." Id. at 413 U. S. 466 . The Court itself appears to embrace this reading of Gilmore and Norwood. It describes Gilmore as holding that a city's policy of permitting segregated private schools to use public parks "would impede the integration of the public schools. Exclusive availability of the public parks 'significantly enhanced the attractiveness of segregated private schools . . . by enabling them to offer complete athletic programs.'" Ante at 468 U. S. 762 , n. 27 (quoting 417 U.S. at 417 U. S. 569 ). It characterizes Norwood as having concluded that the provision of textbooks to such schools would impede court-ordered desegregation. Ante at 468 U. S. 763 . Although the form of the subsidy for segregated private schools involved in Gilmore and Norwood was different from the "cash grant" that flows from a tax exemption, the economic effect and causal connection between the subsidy and the impact on the complaining litigants was precisely the same in those cases as it is here. Page 468 U. S. 788 This causation analysis is nothing more than a restatement of elementary economics: when something becomes more expensive, less of it will be purchased. Sections 170 and 501(c)(3) are premised on that recognition. If racially discriminatory private schools lose the "cash grants" that flow from the operation of the statutes, the education they provide will become more expensive, and hence less of their services will be purchased. Conversely, maintenance of these tax benefits makes an education in segregated private schools relatively more attractive by decreasing its cost. Accordingly, without tax-exempt status, private schools will either not be competitive in terms of cost or have to change their admissions policies, hence reducing their competitiveness for parents seeking "a racially segregated alternative" to public schools, which is what respondents have alleged many white parents in desegregating school districts seek. [ Footnote 3/5 ] In either event, the process of desegregation will be advanced in the same way that it was advanced in Gilmore and Norwood -- the withdrawal of the subsidy for segregated schools means the incentive structure facing white parents who seek such schools for their children will be altered. Thus, the laws of economics, not to mention the laws of Congress embodied in §§ 170 and 501(c)(3), compel the conclusion that the injury respondents have alleged -- the increased segregation of their children's schools because of the ready availability of private schools that admit whites only -- will be redressed if these schools' operations are inhibited through the denial of preferential tax treatment. [ Footnote 3/6 ] Page 468 U. S. 789 III Considerations of tax policy, economics, and pure logic all confirm the conclusion that respondents' injury in fact is fairly traceable to the Government's allegedly wrongful conduct. The Court therefore is forced to introduce the concept of "separation of powers" into its analysis. The Court writes that the separation of powers "explains why our cases preclude the conclusion" that respondents' injury is fairly traceable to the conduct they challenge. Ante at 468 U. S. 759 . The Court could mean one of three things by its invocation of the separation of powers. First, it could simply be expressing the idea that, if the plaintiff lacks Art. III standing to bring a lawsuit, then there is no "case or controversy" Page 468 U. S. 790 within the meaning of Art. III, and hence the matter is not within the area of responsibility assigned to the Judiciary by the Constitution. As we have written in the past, through the standing requirement, "Art. III limit[s] the federal judicial power 'to those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process.'" Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464 , 454 U. S. 472 (1982) (quoting Flast v. Cohen, 392 U. S. 83 , 392 U. S. 97 (1968)). [ Footnote 3/7 ] While there can be no quarrel with this proposition, in itself it provides no guidance for determining if the injury respondents have alleged is fairly traceable to the conduct they have challenged. Second, the Court could be saying that it will require a more direct causal connection when it is troubled by the separation of powers implications of the case before it. That approach confuses the standing doctrine with the justiciability of the issues that respondents seek to raise. The purpose of the standing inquiry is to measure the plaintiff's stake in the outcome, not whether a court has the authority to provide it with the outcome it seeks: "[T]he standing question is whether the plaintiff has 'alleged such a personal stake in the outcome of the controversy' as to warrant his invocation of federal court jurisdiction and to justify the exercise of the court's remedial powers on his behalf." Warth v. Seldin, 422 U. S. 490 , 422 U. S. 498 -499 (1975) (emphasis in original) (quoting Baker v. Carr, 369 U. S. 186 , 369 U. S. 204 (1962)). [ Footnote 3/8 ] Page 468 U. S. 791 Thus, the "'fundamental aspect of standing' is that it focuses primarily on the party seeking to get his complaint before the federal court, rather than 'on the issues he wishes to have adjudicated,'" United States v. Richardson, 418 U. S. 166 , 418 U. S. 174 (1974) (emphasis in original) (quoting Flast, 392 U.S. at 392 U. S. 99 ). The strength of the plaintiff's interest in the outcome has nothing to do with whether the relief it seeks would intrude upon the prerogatives of other branches of government; the possibility that the relief might be inappropriate does not lessen the plaintiff's stake in obtaining that relief. If a plaintiff presents a nonjusticiable issue, or seeks relief that a court may not award, then its complaint should be dismissed for those reasons, and not because the plaintiff lacks a stake in obtaining that relief, and hence has no standing. [ Footnote 3/9 ] Imposing an undefined but clearly more rigorous standard for redressability for reasons unrelated to the causal nexus between the injury and the challenged conduct Page 468 U. S. 792 can only encourage undisciplined, ad hoc litigation, a result that would be avoided if the Court straightforwardly considered the justiciability of the issues respondents seek to raise, rather than using those issues to obfuscate standing analysis. [ Footnote 3/10 ] Third, the Court could be saying that it will not treat as legally cognizable injuries that stem from an administrative decision concerning how enforcement resources will be allocated. This surely is an important point. Respondents do seek to restructure the IRS's mechanisms for enforcing the legal requirement that discriminatory institutions not receive tax-exempt status. Such restructuring would dramatically Page 468 U. S. 793 affect the way in which the IRS exercises its prosecutorial discretion. The Executive requires latitude to decide how best to enforce the law, and in general the Court may well be correct that the exercise of that discretion, especially in the tax context, is unchallengeable. However, as the Court also recognizes, this principle does not apply when suit is brought "to enforce specific legal obligations whose violation works a direct harm," ante at 468 U. S. 761 . For example, despite the fact that they were challenging the methods used by the Executive to enforce the law, citizens were accorded standing to challenge a pattern of police misconduct that violated the constitutional constraints on law enforcement activities in Allee v. Medrano, 416 U. S. 802 (1974). [ Footnote 3/11 ] Here, respondents contend that the IRS is violating a specific constitutional limitation on its enforcement discretion. There is a solid basis for that contention. In Norwood, we wrote: "A State's constitutional obligation requires it to steer clear, not only of operating the old dual system of racially segregated schools, but also of giving significant aid to institutions that practice racial or other invidious discrimination." 413 U.S. at 413 U. S. 467 . Gilmore echoed this theme: "[A]ny tangible State assistance, outside the generalized services government might provide to private segregated schools in common with other schools, and with all citizens, is constitutionally prohibited if it has 'a significant tendency to facilitate, reinforce, and support private discrimination.' Norwood v. Harrison, 413 U. S. 455 , 413 U. S. 466 (1973). The constitutional obligation of the State 'requires it to steer clear, not only of operating the old dual system of racially segregated schools, but also of giving significant aid to institutions that practice racial Page 468 U. S. 794 or other invidious discrimination.' Id. at 413 U. S. 467 ." 417 U.S. at 417 U. S. 568 -569. Respondents contend that these cases limit the enforcement discretion enjoyed by the IRS. They establish, respondents argue, that the IRS cannot provide "cash grants" to discriminatory schools through preferential tax treatment without running afoul of a constitutional duty to refrain from "giving significant aid" to these institutions. Similarly, respondents claim that the Internal Revenue Code itself, as construed in Bob Jones, constrains enforcement discretion. [ Footnote 3/12 ] It has been clear since Marbury v. Madison , 1 Cranch 137 (1803), that "[i]t is emphatically the province and duty of the judicial department to say what the law is." Id. at 5 U. S. 177 . Deciding whether the Treasury has violated a specific legal Page 468 U. S. 795 limitation on its enforcement discretion does not intrude upon the prerogatives of the Executive, for, in so deciding, we are merely saying "what the law is." Surely the question whether the Constitution or the Code limits enforcement discretion is one within the Judiciary's competence, and I do not believe that the question whether the law, as enunciated in Gilmore, Norwood, and Bob Jones, imposes such an obligation upon the IRS is so insubstantial that respondents' attempt to raise it should be defeated for lack of subject matter jurisdiction on the ground that it infringes the Executive's prerogatives. [ Footnote 3/13 ] In short, I would deal with the question of the legal limitations on the IRS's enforcement discretion on its merits, rather than by making the untenable assumption that the granting of preferential tax treatment to segregated schools does not make those schools more attractive to white students, and hence does not inhibit the process of desegregation. I respectfully dissent. [ Footnote 3/1 ] The question whether respondents have adequately alleged their standing must be separated from the question whether they can prove what has been alleged. It may be that questions concerning the racial policies of given schools, and the impact of their tax treatment on enrollment, vary widely from school to school, making inappropriate the nationwide class described in respondents' complaint. A case in which it was proved that a segregated private school opened just as a nearby public school system began desegregating pursuant to court order, that the IRS knew the school did not admit blacks, and that the school prospered only as a result of favorable tax treatment, might be very different from one in which the plaintiff attempted to prove a nationwide policy and its effect. However, as JUSTICE BRENNAN observes, ante at 468 U. S. 770 -771, n. 3, 780-781, n. 9, that goes to whether respondents can prove the nationwide policy they have alleged, and whether the factual issues they raise are sufficiently national in scope to justify the certification of a nationwide class. I rather doubt that a nationwide class would be appropriate, but, at this stage, respondents' allegations of injury must be taken as true, see Warth v. Seldin, 422 U. S. 490 , 422 U. S. 501 (1975), and hence we must assume that respondents can prove the existence of a nationwide policy and its alleged effects. [ Footnote 3/2 ] Respondents' complaint is premised on precisely this theory. The complaint, in �� 39-48, describes a number of private schools which receive preferential tax treatment and which allegedly discriminate on the basis of race, providing white children with "a racially segregated alternative to attendance" in the public schools which respondents' children attend. The complaint then states: "There are thousands of other racially segregated private schools which operate or serve desegregating public school districts and which function under the umbrella of organizations which have received, applied for, or will apply for, federal tax exemptions. Moreover, many additional public school districts will, in the future, begin desegregating pursuant to court order or [government] regulations and guidelines, under state law or voluntarily. Additional racially segregated private schools may be organized or expanded, many of which will be operated by organizations which have received, applied for, or will apply for federal tax exemptions. As in the case of those representative organizations and private schools described in paragraphs 39-48, supra, such organizations and schools provide, or will provide, white children with a racially segregated alternative to desegregating public schools. By recognizing these organizations as exempt from federal taxation, defendants facilitate their development, operation and expansion and the provision of racially segregated educational opportunities for white children avoiding attendance in desegregating public school systems. Defendants thereby also interfere with the efforts of federal courts, [the Federal Government] and local school authorities to eliminate racially dual school systems. " App. 38 (emphasis supplied). Thus, like JUSTICE BRENNAN, ante at 468 U. S. 774 -775, I do not understand why the Court states that the complaint contains no allegation that the tax benefits received by private segregated schools "make an appreciable difference in public school integration," ante at 468 U. S. 758 , unless the Court requires "intricacies of pleading that would have gladdened the heart of Baron Parke." Chayes, The Role of the Judge in Public Law Litigation, 89 Harv.L.Rev. 1281, 1305 (1976). [ Footnote 3/3 ] See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59 , 438 U. S. 74 -78 (1978); United States v. SCRAP, 412 U. S. 669 , 412 U. S. 687 -689 (1973); see also Barlow v. Collins, 397 U. S. 159 (1970). [ Footnote 3/4 ] We agreed with the District Court's following reasoning: "Montgomery officials were under an affirmative duty to bring about and to maintain a desegregated public school system. Providing recreational facilities to de facto or de jure segregated private schools was inconsistent with that duty, because such aid enhanced the attractiveness of those schools, generated capital savings that could be used to improve their private educational offerings, and provided means to raise other revenue to support the institutions, all to the detriment of establishing the constitutionally mandated unitary public school system." 417 U.S. at 417 U. S. 563 . We went on to write: "Any arrangement, implemented by state officials at any level, which significantly tends to perpetuate a dual school system, in whatever manner, is constitutionally impermissible." "[T]he constitutional rights of children not to be discriminated against . . . can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted 'ingeniously or ingenuously.'" "This means that any tangible state assistance, outside the generalized services government might provide to private segregated schools in common with other schools, and with all citizens, is constitutionally prohibited if it has 'a significant tendency to facilitate, reinforce, and support private discrimination.'" Id. at 417 U. S. 568 (quoting Cooper v. Aaron, 358 U. S. 1 , 358 U. S. 17 (1958), and Norwood v. Harrison, 413 U. S. 455 , 413 U. S. 466 (1973)). [ Footnote 3/5 ] It is this "racially segregated alternative" to public schools -- the availability of schools that "receive tax exemptions merely on the basis of adopting and certifying -- but not implementing -- a policy of nondiscrimination," App. 17-18, which respondents allege white parents have found attractive, see id. at 23-24, and which would either lose their cost advantage or their character as a segregated alternative if denied tax-exempt status because of their discriminatory admissions policies. [ Footnote 3/6 ] This causation analysis explains the holding in the case on which the Court chiefly relies, Simon v. Eastern Kentucky Welfare Rights Organization, 426 U. S. 26 (1976). There, the plaintiffs -- indigent persons in need of free medical care -- alleged that they were harmed by the Secretary of the Treasury's decision to permit hospitals to retain charitable status while offering a reduced level of free care. However, while here the source of the causal nexus is the price that white parents must pay to obtain a segregated education, which is inextricably intertwined with the school's tax status, in Simon, the plaintiffs were seeking free care, which hospitals could decide not to provide for any number of reasons unrelated to their tax status. See id. at 426 U. S. 42 -43, and n. 23. Moreover, in Simon, the hospitals had to spend money in order to obtain charitable status. Therefore, they had an economic incentive to forgo preferential treatment. As the Court observed: "It is equally speculative whether the desired exercise of the Court's remedial powers in this suit would result in the availability to respondents of such services. So far as the complaint sheds light, it is just as plausible that the hospitals to which respondents may apply for service would elect to forgo favorable tax treatment to avoid the undetermined financial drain of an increase in the level of uncompensated services. . . . [C]onflicting evidence supports the common sense proposition that the dependence upon special tax benefits may vary from hospital to hospital." Id. at 426 U. S. 43 . In contrast, the tax benefits private schools receive here involve no "financial drain," since the schools need not provide "uncompensated services" in order to obtain preferential tax treatment. Thus, the economic effect of the challenged tax treatment in these cases is not "speculative," as the Court concluded it was in Simon. Here the financial incentives run in only one direction. [ Footnote 3/7 ] See also Warth v. Seldin, 422 U.S. at 422 U. S. 498 ; Schlesinger v. Reservists Committee to Stop the War, 418 U. S. 208 , 418 U. S. 222 (1974). [ Footnote 3/8 ] See also Los Angeles v. Lyons, 461 U. S. 95 , 461 U. S. 101 -102 (1983); Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. at 438 U. S. 72 ; Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. at 426 U. S. 38 ; Schlesinger v. Reservists Committee to Stop the War, 418 U.S. at 418 U. S. 220 -221; United States v. Richardson, 418 U. S. 166 , 418 U. S. 179 (1974); O'Shea v. Littleton, 414 U. S. 488 , 414 U. S. 493 -494 (1974); Roe v. Wade, 410 U. S. 113 , 410 U. S. 123 (1973); Sierra Club v. Morton, 405 U. S. 727 , 405 U. S. 731 -732 (1972); Flast v. Cohen, 392 U. S. 83 , 392 U. S. 99 (1968). [ Footnote 3/9 ] The Flast Court made precisely this point: "When the emphasis in the standing problem is placed on whether the person invoking a federal court's jurisdiction is a proper party to maintain the action, the weakness of the Government's argument in this case becomes apparent. The question whether a particular person is a proper party to maintain the action does not, by its own force, raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government. Such problems arise, if at all, only from the substantive issues the individual seeks to have adjudicated. Thus, in terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution. It is for that reason that the emphasis in standing problems is on whether the party invoking federal court jurisdiction has 'a personal stake in the outcome of the controversy,' and whether the dispute touches upon 'the legal relations of parties having adverse legal interests.'" Id. at 392 U. S. 100 -101 (emphasis supplied) (citations omitted) (quoting Baker v. Carr, 369 U. S. 186 , 369 U. S. 204 (1962), and Aetna Life Insurance Co. v. Haworth, 300 U. S. 227 , 300 U. S. 240 -241 (1937)). [ Footnote 3/10 ] The danger of the Court's approach is illustrated by its failure to provide any standards to guide courts in determining when it is appropriate to require a more rigorous redressability showing because of separation of powers concerns, or how redressability can be demonstrated in a case raising separation of power concerns. The only guidance the Court offers is that the separation of powers counsels against recognizing standing when the plaintiff "seek[s] a restructuring of the apparatus established by the Executive Branch to fulfill its legal duties." Ante at 468 U. S. 761 . That cannot be an appropriate test; the separation of powers tolerates quite a bit of "restructuring" in order to eliminate the effects of racial segregation. For example, in Bolling v. Sharpe, 347 U. S. 497 (1954), we held that the Fifth Amendment prohibits the Executive from maintaining a dual school system. We have subsequently made it clear that the courts have authority to restructure both school attendance patterns and curriculum when necessary to eliminate the effects of a dual school system. See, e.g., Columbus Board of Education v. Penick, 443 U. S. 449 (1979); Milliken v. Bradley, 433 U. S. 267 (1977); Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971). At the same time, standing doctrine has never stood as a barrier to such "restructuring." In the seminal case of Baker v. Carr, 369 U. S. 186 (1962), the Court accorded voters standing to challenge population variations between electoral districts despite the fact that the legislative reapportionment sought would, and eventually did, have dramatic "restructuring" effects. Only two Terms ago, in Watt v. Energy Action Educational Foundation, 454 U. S. 151 , 454 U. S. 160 -162 (1981), the Court accorded California standing to challenge the Secretary of the Interior's methods for accepting bids on oil and gas rights despite the fact that this would affect the manner in which the Executive Branch discharged "[its] duty to take Care that the Laws are faithfully executed,'" ante at 468 U. S. 761 . [ Footnote 3/11 ] See also INS v. Delgado, 466 U. S. 210 , 466 U. S. 217 , n. 4 (1984). [ Footnote 3/12 ] In Bob Jones, we clearly indicated that the Internal Revenue Code not only permits, but in fact requires, the denial of tax-exempt status to racially discriminatory private schools: "Few social or political issues in our history have been more vigorously debated and more extensively ventilated than the issue of racial discrimination, particularly in education. Given the stress and anguish of the history of efforts to escape from the shackles of the 'separate but equal' doctrine of Plessy v. Ferguson, 163 U. S. 537 (1896), it cannot be said that educational institutions that, for whatever reasons, practice racial discrimination are institutions exercising 'beneficial and stabilizing influences in community life,' Walz v. Tax Comm'n, 397 U. S. 664 , 397 U. S. 673 (1970), or should be encouraged by having all taxpayers share in their support by way of special tax status." "There can thus be no question that the interpretation of § 170 and § 501(C)(3) announced by the IRS in 1970 was correct. That it may be seen as belated does not undermine its soundness. It would be wholly incompatible with the concepts underlying tax exemption to grant the benefit of tax-exempt status to racially discriminatory educational entities, which 'exer[t] a pervasive influence on the entire educational process.' Norwood V. Harrison, [413 U.S.] at 413 U. S. 469 . Whatever may be the rationale for such private schools' policies, and however sincere the rationale may be, racial discrimination in education is contrary to public policy. Racially discriminatory educational institutions cannot be viewed as conferring a public benefit within the 'charitable' concept discussed earlier, or within the congressional intent underlying § 170 and § 501(C)(3)." 461 U.S. at 461 U. S. 595 -596. [ Footnote 3/13 ] It has long been the rule that, unless a claim is wholly insubstantial, it may not be dismissed for lack of subject matter jurisdiction. See Bell v. Hood, 327 U. S. 678 (1946).

In Allen v. Wright, the United States Supreme Court ruled that parents of black children attending desegregating public schools lacked standing to sue the Internal Revenue Service (IRS) over its tax-exempt status policy for racially discriminatory private schools. The parents argued that the IRS's failure to deny tax-exempt status to these private schools harmed their children's opportunity to receive an education in desegregated public schools. However, the Court held that the parents could not demonstrate a personal injury fairly traceable to the IRS's conduct and likely to be redressed by the requested relief.

Role of Courts

Lujan v. Defenders of Wildlife

https://supreme.justia.com/cases/federal/us/504/555/

OCTOBER TERM, 1991 Syllabus LUJAN, SECRETARY OF THE INTERIOR v. DEFENDERS OF WILDLIFE ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 90-1424. Argued December 3, 1991-Decided June 12, 1992 Section 7(a)(2) of the Endangered Species Act of 1973 divides responsibilities regarding the protection of endangered species between petitioner Secretary of the Interior and the Secretary of Commerce, and requires each federal agency to consult with the relevant Secretary to ensure that any action funded by the agency is not likely to jeopardize the continued existence or habitat of any endangered or threatened species. Both Secretaries initially promulgated a joint regulation extending § 7(a)(2)'s coverage to actions taken in foreign nations, but a subsequent joint rule limited the section's geographic scope to the United States and the high seas. Respondents, wildlife conservation and other environmental organizations, filed an action in the District Court, seeking a declaratory judgment that the new regulation erred as to § 7(a)(2)'s geographic scope and an injunction requiring the Secretary of the Interior to promulgate a new rule restoring his initial interpretation. The Court of Appeals reversed the District Court's dismissal of the suit for lack of standing. Upon remand, on cross-motions for summary judgment, the District Court denied the Secretary's motion, which renewed his objection to standing, and granted respondents' motion, ordering the Secretary to publish a new rule. The Court of Appeals affirmed. Held: The judgment is reversed, and the case is remanded. 911 F.2d 117 , reversed and remanded. JUSTICE SCALIA delivered the opinion of the Court, except as to Part III-B, concluding that respondents lack standing to seek judicial review of the rule. Pp. 559-567,571-578. (a) As the parties invoking federal jurisdiction, respondents bear the burden of showing standing by establishing, inter alia, that they have suffered an injury in fact, i. e., a concrete and particularized, actual or imminent invasion of a legally protected interest. To survive a summary judgment motion, they must set forth by affidavit or other evidence specific facts to support their claim. Standing is particularly difficult to show here, since third parties, rather than respondents, are the object of the Government action or inaction to which respondents object. Pp. 559-562. 556 Syllabus (b) Respondents did not demonstrate that they suffered an injury in fact. Assuming that they established that funded activities abroad threaten certain species, they failed to show that one or more of their members would thereby be directly affected apart from the members' special interest in the subject. See Sierra Club v. Morton, 405 U. S. 727 , 735, 739. Mfidavits of members claiming an intent to revisit project sites at some indefinite future time, at which time they will presumably be denied the opportunity to observe endangered animals, do not suffice, for they do not demonstrate an "imminent" injury. Respondents also mistakenly rely on a number of other novel standing theories. Their theory that any person using any part of a contiguous ecosystem adversely affected by a funded activity has standing even if the activity is located far away from the area of their use is inconsistent with this Court's opinion in Lujan v. National Wildlife Federation, 497 U. S. 871 . And they state purely speculative, nonconcrete injuries when they argue that suit can be brought by anyone with an interest in studying or seeing endangered animals anywhere on the globe and anyone with a professional interest in such animals. pp. 562-567. (c) The Court of Appeals erred in holding that respondents had standing on the ground that the statute's citizen-suit provision confers on all persons the right to file suit to challenge the Secretary's failure to follow the proper consultative procedure, notwithstanding their inability to allege any separate concrete injury flowing from that failure. This Court has consistently held that a plaintiff claiming only a generally available grievance about government, unconnected with a threatened concrete interest of his own, does not state an Article III case or controversy. See, e. g., Fairchild v. Hughes, 258 U. S. 126 , 129-130. Vindicating the public interest is the function of the Congress and the Chief Executive. To allow that interest to be converted into an individual right by a statute denominating it as such and permitting all citizens to sue, regardless of whether they suffered any concrete injury, would authorize Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty, to "take Care that the Laws be faithfully executed," Art. II, § 3. Pp. 571-578. SCALIA, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-A, and IV, in which REHNQUIST, C. J., and WHITE, KENNEDY, SOUTER, and THOMAS, JJ., joined, and an opinion with respect to Part III-B, in which REHNQUIST, C. J., and WHITE and THOMAS, JJ., joined. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment, in which SOUTER, J., joined, post, p. 579. STEVENS, J., filed an opinion concurring in the judgment, post, 557 p. 581. BLACKMUN, J., filed a dissenting opinion, in which O'CONNOR, J., joined, post, p. 589. Edwin S. Kneedler argued the cause for petitioner. With him on the briefs were Solicitor General Starr, Acting Assistant Attorney General Hartman, Deputy Solicitor General Wallace, Robert L. Klarquist, David C. Shilton, Thomas L. Sansonetti, and Michael Young. Brian B. O'Neill argued the cause for respondents. With him on the brief were Steven C. Schroer and Richard A. Duncan. * JUSTICE SCALIA delivered the opinion of the Court with respect to Parts I, II, III-A, and IV; and an opinion with respect to Part III-B, in which THE CHIEF JUSTICE, JusTICE WHITE, and JUSTICE THOMAS join. This case involves a challenge to a rule promulgated by the Secretary of the Interior interpreting § 7 of the Endangered *Terence P. Ross, Daniel J. Popeo, and Richard A. Samp filed a brief for the Washington Legal Foundation et al. as amici curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the City of Austin et al. by William A. Butler, Angus E. Crane, Michael J. Bean, Kenneth Oden, James M. McCormack, and Wm. Robert Irvin; for the American Association of Zoological Parks & Aquariums et al. by Ronald J. Greene and W Hardy Callcott; for the American Institute of Biological Sciences by Richard J. Wertheimer and Charles M. Chambers; and for the Ecotropica Foundation of Brazil et al. by Durwood J. Zaelke. A brief of amici curiae was filed for the State of Texas et al. by Patrick J. Mahoney, Dan Morales, Attorney General of Texas, Will Pryor, First Assistant Attorney General, Mary F. Keller, Deputy Attorney General, and Nancy N. Lynch, Mary Ruth Holder, and Shannon J. Kilgore, Assistant Attorneys General, Grant Woods, Attorney General of Arizona, Winston Bryant, Attorney General of Arkansas, Daniel E. Lungren, Attorney General of California, Robert A. Butterworth, Attorney General of Florida, Michael E. Carpenter, Attorney General of Maine, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, Robert J. Del Tufo, Attorney General of New Jersey, Robert Abrams, Attorney General of New York, Lee Fisher, Attorney General of Ohio, and Jeffrey L. Amestoy, Attorney General of Vermont, Victor A. Kovner, Leonard J. Koerner, Neal M. Janey, and Louise H. Renne. 558 Species Act of 1973 (ESA), 87 Stat. 892, as amended, 16 U. S. C. § 1536, in such fashion as to render it applicable only to actions within the United States or on the high seas. The preliminary issue, and the only one we reach, is whether respondents here, plaintiffs below, have standing to seek judicial review of the rule. I The ESA, 87 Stat. 884, as amended, 16 U. S. C. § 1531 et seq., seeks to protect species of animals against threats to their continuing existence caused by man. See generally TVA v. Hill, 437 U. S. 153 (1978). The ESA instructs the Secretary of the Interior to promulgate by regulation a list of those species which are either endangered or threatened under enumerated criteria, and to define the critical habitat of these species. 16 U. S. C. §§ 1533, 1536. Section 7(a)(2) of the Act then provides, in pertinent part: "Each Federal agency shall, in consultation with and with the assistance of the Secretary [of the Interior], insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical." 16 U. S. C. § 1536(a)(2). In 1978, the Fish and Wildlife Service (FWS) and the N ational Marine Fisheries Service (NMFS), on behalf of the Secretary of the Interior and the Secretary of Commerce respectively, promulgated a joint regulation stating that the obligations imposed by § 7(a)(2) extend to actions taken in foreign nations. 43 Fed. Reg. 874 (1978). The next year, however, the Interior Department began to reexamine its position. Letter from Leo Kuliz, Solicitor, Department of the Interior, to Assistant Secretary, Fish and Wildlife and Parks, Aug. 8, 1979. A revised joint regulation, reinterpret- 559 ing § 7(a)(2) to require consultation only for actions taken in the United States or on the high seas, was proposed in 1983, 48 Fed. Reg. 29990, and promulgated in 1986, 51 Fed. Reg. 19926; 50 CFR 402.01 (1991). Shortly thereafter, respondents, organizations dedicated to wildlife conservation and other environmental causes, filed this action against the Secretary of the Interior, seeking a declaratory judgment that the new regulation is in error as to the geographic scope of § 7(a)(2) and an injunction requiring the Secretary to promulgate a new regulation restoring the initial interpretation. The District Court granted the Secretary's motion to dismiss for lack of standing. Defenders of Wildlife v. Hodel, 658 F. Supp. 43, 47-48 (Minn. 1987). The Court of Appeals for the Eighth Circuit reversed by a divided vote. Defenders of Wildlife v. Hodel, 851 F.2d 1035 (1988). On remand, the Secretary moved for summary judgment on the standing issue, and respondents moved for summary judgment on the merits. The District Court denied the Secretary's motion, on the ground that the Eighth Circuit had already determined the standing question in this case; it granted respondents' merits motion, and ordered the Secretary to publish a revised regulation. Defenders of Wildlife v. Hodel, 707 F. Supp. 1082 (Minn. 1989). The Eighth Circuit affirmed. 911 F.2d 117 (1990). We granted certiorari, 500 U. S. 915 (1991). II While the Constitution of the United States divides all power conferred upon the Federal Government into "legislative Powers," Art. I, § 1, "[t]he executive Power," Art. II, § 1, and "[t]he judicial Power," Art. III, § 1, it does not attempt to define those terms. To be sure, it limits the jurisdiction of federal courts to "Cases" and "Controversies," but an executive inquiry can bear the name "case" (the Hoffa case) and a legislative dispute can bear the name "controversy" (the Smoot-Hawley controversy). Obviously, then, the Constitution's central mechanism of separation of powers de- 560 pends largely upon common understanding of what activities are appropriate to legislatures, to executives, and to courts. In The Federalist No. 48, Madison expressed the view that "[i]t is not infrequently a question of real nicety in legislative bodies whether the operation of a particular measure will, or will not, extend beyond the legislative sphere," whereas "the executive power [is] restrained within a narrower compass and ... more simple in its nature," and "the judiciary [is] described by landmarks still less uncertain." The Federalist No. 48, p. 256 (Carey and McClellan eds. 1990). One of those landmarks, setting apart the "Cases" and "Controversies" that are of the justiciable sort referred to in Article III-"serv[ing] to identify those disputes which are appropriately resolved through the judicial process," Whitmore v. Arkansas, 495 U. S. 149 , 155 (1990)-is the doctrine of standing. Though some of its elements express merely prudential considerations that are part of judicial self-government, the core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III. See, e. g., Allen v. Wright, 468 U. S. 737 , 751 (1984). Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an "injury in fact" -an invasion of a legally protected interest which is (a) concrete and particularized, see id., at 756; Warth v. Seldin, 422 U. S. 490 , 508 (1975); Sierra Club v. Morton, 405 U. S. 727, 740-741, n. 16 (1972); 1 and (b) "actual or imminent, not 'conjectural' or 'hypothetical,'" Whitmore, supra, at 155 (quoting Los Angeles v. Lyons, 461 U. S. 95 ,102 (1983)). Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be "fairly ... trace[able] to the challenged action of the defendant, and not ... thee] result [of] the independent action of some third party not before the court." Simon v. Eastern Ky. Welfare 1 By particularized, we mean that the injury must affect the plaintiff in a personal and individual way. 561 Rights Organization, 426 U. S. 26 , 41-42 (1976). Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision." Id., at 38, 43. The party invoking federal jurisdiction bears the burden of establishing these elements. See FW/PBS, Inc. v. Dallas, 493 U. S. 215 , 231 (1990); Warth, supra, at 508. Since they are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i. e., with the manner and degree of evidence required at the successive stages of the litigation. See Lujan v. National Wildlife Federation, 497 U. S. 871 , 883-889 (1990); Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91 , 114-115, and n. 31 (1979); Simon, supra, at 45, n. 25; Warth, supra, at 527, and n. 6 (Brennan, J., dissenting). At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we "presum[e] that general allegations embrace those specific facts that are necessary to support the claim." National Wildlife Federation, supra, at 889. In response to a summary judgment motion, however, the plaintiff can no longer rest on such "mere allegations," but must "set forth" by affidavit or other evidence "specific facts," Fed. Rule Civ. Proc. 56(e), which for purposes of the summary judgment motion will be taken to be true. And at the final stage, those facts (if controverted) must be "supported adequately by the evidence adduced at trial." Gladstone, supra, at 115, n. 31. When the suit is one challenging the legality of government action or inaction, the nature and extent of facts that must be averred (at the summary judgment stage) or proved (at the trial stage) in order to establish standing depends considerably upon whether the plaintiff is himself an object of the action (or forgone action) at issue. If he is, there is ordinarily little question that the action or inaction has 562 caused him injury, and that a judgment preventing or requiring the action will redress it. When, however, as in this case, a plaintiff's asserted injury arises from the government's allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed. In that circumstance, causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inaction-and perhaps on the response of others as well. The existence of one or more of the essential elements of standing "depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict," ASARCO Inc. v. Kadish, 490 U. S. 605 , 615 (1989) (opinion of KENNEDY, J.); see also Simon, supra, at 41-42; and it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury. E. g., Warth, supra, at 505. Thus, when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily "substantially more difficult" to establish. Allen, supra, at 758; Simon, supra, at 44-45; Warth, supra, at 505. III We think the Court of Appeals failed to apply the foregoing principles in denying the Secretary's motion for summary judgment. Respondents had not made the requisite demonstration of (at least) injury and redressability. A Respondents' claim to injury is that the lack of consultation with respect to certain funded activities abroad "increas[es] the rate of extinction of endangered and threatened species." Complaint' 5, App. 13. Of course, the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of 563 standing. See, e. g., Sierra Club v. Morton, 405 U. S., at 734. "But the 'injury in fact' test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured." Id., at 734-735. To survive the Secretary's summary judgment motion, respondents had to submit affidavits or other evidence showing, through specific facts, not only that listed species were in fact being threatened by funded activities abroad, but also that one or more of respondents' members would thereby be "directly" affected apart from their" 'special interest' in thee] subject." Id., at 735, 739. See generally Hunt v. Washington State Apple Advertising Comm'n, 432 U. S. 333 , 343 (1977). With respect to this aspect of the case, the Court of Appeals focused on the affidavits of two Defenders' membersJoyce Kelly and Amy Skilbred. Ms. Kelly stated that she traveled to Egypt in 1986 and "observed the traditional habitat of the endangered nile crocodile there and intend[s] to do so again, and hope[s] to observe the crocodile directly," and that she "will suffer harm in fact as the result of [the] American ... role ... in overseeing the rehabilitation of the Aswan High Dam on the Nile ... and [in] develop[ing] ... Egypt's ... Master Water Plan." App. 101. Ms. Skilbred averred that she traveled to Sri Lanka in 1981 and "observed thee] habitat" of "endangered species such as the Asian elephant and the leopard" at what is now the site of the Mahaweli project funded by the Agency for International Development (AID), although she "was unable to see any of the endangered species"; "this development project," she continued, "will seriously reduce endangered, threatened, and endemic species habitat including areas that I visited ... [, which] may severely shorten the future of these species"; that threat, she concluded, harmed her because she "intend[s] to return to Sri Lanka in the future and hope[s] to be more fortunate in spotting at least the endangered elephant and leopard." Id., at 145-146. When Ms. Skilbred was asked 564 at a subsequent deposition if and when she had any plans to return to Sri Lanka, she reiterated that "I intend to go back to Sri Lanka," but confessed that she had no current plans: "I don't know [when]. There is a civil war going on right now. I don't know. Not next year, I will say. In the future." Id., at 318. We shall assume for the sake of argument that these affidavits contain facts showing that certain agency-funded projects threaten listed species-though that is questionable. They plainly contain no facts, however, showing how damage to the species will produce "imminent" injury to Mses. Kelly and Skilbred. That the women "had visited" the areas of the projects before the projects commenced proves nothing. As we have said in a related context, "'Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.'" Lyons, 461 U. S., at 102 (quoting O'Shea v. Littleton, 414 U. S. 488 , 495-496 (1974)). And the affiants' profession of an "inten[t]" to return to the places they had visited before-where they will presumably, this time, be deprived of the opportunity to observe animals of the endangered species-is simply not enough. Such "some day" intentions-without any description of concrete plans, or indeed even any specification of when the some day will be-do not support a finding of the "actual or imminent" injury that our cases require. See supra, at 560.2 2 The dissent acknowledges the settled requirement that the injury complained of be, if not actual, then at least imminent, but it contends that respondents could get past summary judgment because "a reasonable finder of fact could conclude ... that ... Kelly or Skilbred will soon return to the project sites." Post, at 591. This analysis suffers either from a factual or from a legal defect, depending on what the "soon" is supposed to mean. If "soon" refers to the standard mandated by our precedentsthat the injury be "imminent," Whitmore v. Arkansas, 495 U. S. 149 , 155 (1990)-we are at a loss to see how, as a factual matter, the standard can be met by respondents' mere profession of an intent, some day, to 565 Besides relying upon the Kelly and Skilbred affidavits, respondents propose a series of novel standing theories. The first, inelegantly styled "ecosystem nexus," proposes that any person who uses any part of a "contiguous ecosystem" adversely affected by a funded activity has standing even if the activity is located a great distance away. This approach, as the Court of Appeals correctly observed, is inconsistent with our opinion in National Wildlife Federation, which held that a plaintiff claiming injury from environmental dam- return. But if, as we suspect, "soon" means nothing more than "in this lifetime," then the dissent has undertaken quite a departure from our precedents. Although "imminence" is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes-that the injury is '" "certainly impending,"'" id., at 158 (emphasis added). It has been stretched beyond the breaking point when, as here, the plaintiff alleges only an injury at some indefinite future time, and the acts necessary to make the injury happen are at least partly within the plaintiff's own control. In such circumstances we have insisted that the injury proceed with a high degree of immediacy, so as to reduce the possibility of deciding a case in which no injury would have occurred at all. See, e. g., id., at 156-160; Los Angeles v. Lyons, 461 U. S. 95 , 102-106 (1983). There is no substance to the dissent's suggestion that imminence is demanded only when the alleged harm depends upon "the affirmative actions of third parties beyond a plaintiff's control," post, at 592. Our cases mention third-party-caused contingency, naturally enough; but they also mention the plaintiff's failure to show that he will soon expose himself to the injury, see, e. g., Lyons, supra, at 105-106; O'Shea v. Littleton, 414 U. S. 488 ,497 (1974); Ashcroft v. Mattis, 431 U. S. 171 , 172-173, n. 2 (1977) (per curiam). And there is certainly no reason in principle to demand evidence that third persons will take the action exposing the plaintiff to harm, while presuming that the plaintiff himself will do so. Our insistence upon these established requirements of standing does not mean that we would, as the dissent contends, "demand ... detailed descriptions" of damages, such as a "nightly schedule of attempted activities" from plaintiffs alleging loss of consortium. Post, at 593. That case and the others posited by the dissent all involve actual harm; the existence of standing is clear, though the precise extent of harm remains to be determined at trial. Where there is no actual harm, however, its imminence (though not its precise extent) must be established. 566 age must use the area affected by the challenged activity and not an area roughly "in the vicinity" of it. 497 U. S., at 887-889; see also Sierra Club, 405 U. S., at 735. It makes no difference that the general-purpose section of the ESA states that the Act was intended in part "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved," 16 U. S. c. § 1531(b). To say that the Act protects ecosystems is not to say that the Act creates (if it were possible) rights of action in persons who have not been injured in fact, that is, persons who use portions of an ecosystem not perceptibly affected by the unlawful action in question. Respondents' other theories are called, alas, the "animal nexus" approach, whereby anyone who has an interest in studying or seeing the endangered animals anywhere on the globe has standing; and the "vocational nexus" approach, under which anyone with a professional interest in such animals can sue. Under these theories, anyone who goes to see Asian elephants in the Bronx Zoo, and anyone who is a keeper of Asian elephants in the Bronx Zoo, has standing to sue because the Director of the Agency for International Development (AID) did not consult with the Secretary regarding the AID-funded project in Sri Lanka. This is beyond all reason. Standing is not "an ingenious academic exercise in the conceivable," United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U. S. 669 , 688 (1973), but as we have said requires, at the summary judgment stage, a factual showing of perceptible harm. It is clear that the person who observes or works with a particular animal threatened by a federal decision is facing perceptible harm, since the very subject of his interest will no longer exist. It is even plausible-though it goes to the outermost limit of plausibility-to think that a person who observes or works with animals of a particular species in the very area of the world where that species is threatened by a federal decision is facing such harm, since some animals that 567 might have been the subject of his interest will no longer exist, see Japan Whaling Assn. v. American Cetacean Society, 478 U. S. 221 , 231, n. 4 (1986). It goes beyond the limit, however, and into pure speculation and fantasy, to say that anyone who observes or works with an endangered species, anywhere in the world, is appreciably harmed by a single project affecting some portion of that species with which he has no more specific connection.3 3 The dissent embraces each of respondents' "nexus" theories, rejecting this portion of our analysis because it is "unable to see how the distant location of the destruction necessarily (for purposes of ruling at summary judgment) mitigates the harm" to the plaintiff. Post, at 594-595. But summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U. S. 317 , 322 (1986). Respondents had to adduce facts, therefore, on the basis of which it could reasonably be found that concrete injury to their members was, as our cases require, "certainly impending." The dissent may be correct that the geographic remoteness of those members (here in the United States) from Sri Lanka and Aswan does not "necessarily" prevent such a finding-but it assuredly does so when no further facts have been brought forward (and respondents have produced none) showing that the impact upon animals in those distant places will in some fashion be reflected here. The dissent's position to the contrary reduces to the notion that distance never prevents harm, a proposition we categorically reject. It cannot be that a person with an interest in an animal automatically has standing to enjoin federal threats to that species of animal, anywhere in the world. Were that the case, the plaintiff in Sierra Club, for example, could have avoided the necessity of establishing anyone's use of Mineral King by merely identifying one of its members interested in an endangered species of flora or fauna at that location. JUSTICE BLACKMUN'S accusation that a special rule is being crafted for "environmental claims," post, at 595, is correct, but he is the craftsman. JUSTICE STEVENS, by contrast, would allow standing on an apparent "animal nexus" theory to all plaintiffs whose interest in the animals is "genuine." Such plaintiffs, we are told, do not have to visit the animals because the animals are analogous to family members. Post, at 583-584, and n. 2. We decline to join JUSTICE STEVENS in this Linnaean leap. It is unclear to us what constitutes a "genuine" interest; how it differs from 568 B Besides failing to show injury, respondents failed to demonstrate redressability. Instead of attacking the separate decisions to fund particular projects allegedly causing them harm, respondents chose to challenge a more generalized level of Government action (rules regarding consultation), the invalidation of which would affect all overseas projects. This programmatic approach has obvious practical advantages, but also obvious difficulties insofar as proof of causation or redressability is concerned. As we have said in another context, "suits challenging, not specifically identifiable Government violations of law, but the particular programs agencies establish to carry out their legal obligations ... [are], even when premised on allegations of several instances of violations of law, ... rarely if ever appropriate for federalcourt adjudication." Allen, 468 U. S., at 759-760. The most obvious problem in the present case is redressability. Since the agencies funding the projects were not parties to the case, the District Court could accord relief only against the Secretary: He could be ordered to revise his regulation to require consultation for foreign projects. But this would not remedy respondents' alleged injury unless the funding agencies were bound by the Secretary's regulation, which is very much an open question. Whereas in other contexts the ESA is quite explicit as to the Secretary's controlling authority, see, e. g., 16 U. S. C. § 1533(a)(1) ("The Secretary shall" promulgate regulations determining endangered species); § 1535(d)(1) ("The Secretary is authorized to provide financial assistance to any State"), with respect to consultation the initiative, and hence arguably the initial responsibility for determining statutory necessity, lies with a "nongenuine" interest (which nonetheless prompted a plaintiff to file suit); and why such an interest in animals should be different from such an interest in anything else that is the subject of a lawsuit. 569 the agencies, see § 1536(a)(2) ("Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any" funded action is not likely to jeopardize endangered or threatened species) (emphasis added). When the Secretary promulgated the regulation at issue here, he thought it was binding on the agencies, see 51 Fed. Reg. 19928 (1986). The Solicitor General, however, has repudiated that position here, and the agencies themselves apparently deny the Secretary's authority. (During the period when the Secretary took the view that § 7(a)(2) did apply abroad, AID and FWS engaged in a running controversy over whether consultation was required with respect to the Mahaweli project, AID insisting that consultation applied only to domestic actions.) Respondents assert that this legal uncertainty did not affect redressability (and hence standing) because the District Court itself could resolve the issue of the Secretary's authority as a necessary part of its standing inquiry. Assuming that it is appropriate to resolve an issue of law such as this in connection with a threshold standing inquiry, resolution by the District Court would not have remedied respondents' alleged injury anyway, because it would not have been binding upon the agencies. They were not parties to the suit, and there is no reason they should be obliged to honor an incidental legal determination the suit produced.4 The 4 We need not linger over the dissent's facially impracticable suggestion, post, at 595-596, that one agency of the Government can acquire the power to direct other agencies by simply claiming that power in its own regulations and in litigation to which the other agencies are not parties. As for the contention that the other agencies will be "collaterally estopped" to challenge our judgment that they are bound by the Secretary of the Interior's views, because of their participation in this suit, post, at 596-597: Whether or not that is true now, it was assuredly not true when this suit was filed, naming the Secretary alone. "The existence of federal jurisdiction ordinarily depends on the facts as they exist when the complaint is filed." Newman-Green, Inc. v. Alfonzo-Larrain, 490 U. S. 826 , 830 (1989) (empha- 570 Opinion of SCALIA, J. Court of Appeals tried to finesse this problem by simply proclaiming that "[w]e are satisfied that an injunction requiring the Secretary to publish [respondents' desired] regulatio[n] ... would result in consultation." Defenders of Wildlife, 851 F. 2d, at 1042,1043-1044. We do not know what would justify that confidence, particularly when the Justice Department (presumably after consultation with the agencies) has taken the position that the regulation is not binding.5 The sis added). It cannot be that, by later participating in the suit, the State Department and AID retroactively created a redress ability (and hence a jurisdiction) that did not exist at the outset. The dissent's rejoinder that redress ability was clear at the outset because the Secretary thought the regulation binding on the agencies, post, at 598-599, n. 4, continues to miss the point: The agencies did not agree with the Secretary, nor would they be bound by a district court holding (as to this issue) in the Secretary's favor. There is no support for the dissent's novel contention, ibid., that Rule 19 of the Federal Rules of Civil Procedure, governing joinder of indispensable parties, somehow alters our longstanding rule that jurisdiction is to be assessed under the facts existing when the complaint is filed. The redressability element of the Article III standing requirement and the "complete relief" referred to by Rule 19 are not identical. Finally, we reach the dissent's contention, post, at 599, n. 4, that by refusing to waive our settled rule for purposes of this case we have made "federal subject-matter jurisdiction ... a one-way street running the Executive Branch's way." That is so, we are told, because the Executive can dispel jurisdiction where it previously existed (by either conceding the merits or by pointing out that nonparty agencies would not be bound by a ruling), whereas a plaintiff cannot retroactively create jurisdiction based on postcomplaint litigation conduct. But any defendant, not just the Government, can dispel jurisdiction by conceding the merits (and presumably thereby suffering a judgment) or by demonstrating standing defects. And permitting a defendant to point out a preexisting standing defect late in the day is not remotely comparable to permitting a plaintiff to establish standing on the basis of the defendant's litigation conduct occurring after standing is erroneously determined. 5 Seizing on the fortuity that the case has made its way to this Court, JUSTICE STEVENS protests that no agency would ignore "an authoritative construction of the [ESA] by this Court." Post, at 585. In that he is probably correct; in concluding from it that plaintiffs have demonstrated redress ability, he is not. Since, as we have pointed out above, standing 571 short of the matter is that redress of the only injury in fact respondents complain of requires action (termination of funding until consultation) by the individual funding agencies; and any relief the District Court could have provided in this suit against the Secretary was not likely to produce that action. A further impediment to redressability is the fact that the agencies generally supply only a fraction of the funding for a foreign project. AID, for example, has provided less than 10% of the funding for the Mahaweli project. Respondents have produced nothing to indicate that the projects they have named will either be suspended, or do less harm to listed species, if that fraction is eliminated. As in Simon, 426 U. S., at 43-44, it is entirely conjectural whether the nonagency activity that affects respondents will be altered or affected by the agency activity they seek to achieve.6 There is no standing. IV The Court of Appeals found that respondents had standing for an additional reason: because they had suffered a "procedural injury." The so-called "citizen-suit" provision of the ESA provides, in pertinent part, that "any person may com- is to be determined as of the commencement of suit; since at that point it could certainly not be known that the suit would reach this Court; and since it is not likely that an agency would feel compelled to accede to the legal view of a district court expressed in a case to which it was not a party; redressability clearly did not exist. 6 The dissent criticizes us for "overlook[ing]" memoranda indicating that the Sri Lankan Government solicited and required AID's assistance to mitigate the effects of the Mahaweli project on endangered species, and that the Bureau of Reclamation was advising the Aswan project. Post, at 600-601. The memoranda, however, contain no indication whatever that the projects will cease or be less harmful to listed species in the absence of AID funding. In fact, the Sri Lanka memorandum suggests just the opposite: It states that AID's role will be to mitigate the" 'negative impacts to the wildlife,'" post, at 600, which means that the termination of AID funding would exacerbate respondents' claimed injury. 572 mence a civil suit on his own behalf (A) to enjoin any person, including the United States and any other governmental instrumentality or agency ... who is alleged to be in violation of any provision of this chapter." 16 U. S. C. § 1540(g). The court held that, because § 7(a)(2) requires interagency consultation, the citizen-suit provision creates a "procedural righ[tJ" to consultation in all "persons"-so that anyone can file suit in federal court to challenge the Secretary's (or presumably any other official's) failure to follow the assertedly correct consultative procedure, notwithstanding his or her inability to allege any discrete injury flowing from that failure. 911 F. 2d, at 121-122. To understand the remarkable nature of this holding one must be clear about what it does not rest upon: This is not a case where plaintiffs are seeking to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs (e. g., the procedural requirement for a hearing prior to denial of their license application, or the procedural requirement for an environmental impact statement before a federal facility is constructed next door to them).7 Nor is it simply a case where concrete injury has been suffered by many persons, as in mass fraud or mass tort situations. Nor, finally, is it the 7 There is this much truth to the assertion that "procedural rights" are special: The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy. Thus, under our case law, one living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agency's failure to prepare an environmental impact statement, even though he cannot establish with any certainty that the statement will cause the license to be withheld or altered, and even though the dam will not be completed for many years. (That is why we do not rely, in the present case, upon the Government's argument that, even if the other agencies were obliged to consult with the Secretary, they might not have followed his advice.) What respondents' "procedural rights" argument seeks, however, is quite different from this: standing for persons who have no concrete interests affected-persons who live (and propose to live) at the other end of the country from the dam. 573 unusual case in which Congress has created a concrete private interest in the outcome of a suit against a private party for the Government's benefit, by providing a cash bounty for the victorious plaintiff. Rather, the court held that the injury-in-fact requirement had been satisfied by congressional conferral upon all persons of an abstract, selfcontained, noninstrumental "right" to have the Executive observe the procedures required by law. We reject this view.8 We have consistently held that a plaintiff raising only a generally available grievance about government-claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that 8The dissent's discussion of this aspect of the case, post, at 601-606, distorts our opinion. We do not hold that an individual cannot enforce procedural rights; he assuredly can, so long as the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing. The dissent, however, asserts that there exist "classes of procedural duties ... so enmeshed with the prevention of a substantive, concrete harm that an individual plaintiff may be able to demonstrate a sufficient likelihood of injury just through the breach of that procedural duty." Post, at 605. If we understand this correctly, it means that the Government's violation of a certain (undescribed) class of procedural duty satisfies the concrete-injury requirement by itself, without any showing that the procedural violation endangers a concrete interest of the plaintiff (apart from his interest in having the procedure observed). We cannot agree. The dissent is unable to cite a single case in which we actually found standing solely on the basis of a "procedural right" unconnected to the plaintiff's own concrete harm. Its suggestion that we did so in Japan Whaling Assn. v. American Cetacean Soc., 478 U. S. 221 (1986), and Robertson v. Methow Valley Citizens Council, 490 U. S. 332 (1989), post, at 602-603, 605, is not supported by the facts. In the former case, we found that the environmental organizations had standing because the "whale watching and studying of their members w[ould] be adversely affected by continued whale harvesting," see 478 U. S., at 230-231, n. 4; and in the latter we did not so much as mention standing, for the very good reason that the plaintiff was a citizens' council for the area in which the challenged construction was to occur, so that its members would obviously be concretely affected, see Methow Valley Citizens Council v. Regional Forester, 833 F.2d 810 , 812-813 (CA9 1987). 574 no more directly and tangibly benefits him than it does the public at large-does not state an Article III case or controversy. For example, in Fairchild v. Hughes, 258 U. S. 126 , 129-130 (1922), we dismissed a suit challenging the propriety of the process by which the Nineteenth Amendment was ratified. Justice Brandeis wrote for the Court: "[This is] not a case within the meaning of ... Article III .... Plaintiff has [asserted] only the right, possessed by every citizen, to require that the Government be administered according to law and that the public moneys be not wasted. Obviously this general right does not entitle a private citizen to institute in the federal courts a suit .... " Ibid. In Massachusetts v. Mellon, 262 U. S. 447 (1923), we dismissed for lack of Article III standing a taxpayer suit challenging the propriety of certain federal expenditures. We said: "The party who invokes the power [of judicial review] must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally .... Here the parties plaintiff have no such case .... [T]heir complaint ... is merely that officials of the executive department of the government are executing and will execute an act of Congress asserted to be unconstitutional; and this we are asked to prevent. To do so would be not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and coequal department, an authority which plainly we do not possess." Id., at 488-489. In Ex parte Levitt, 302 U. S. 633 (1937), we dismissed a suit contending that Justice Black's appointment to this Court violated the Ineligibility Clause, Art. I, § 6, cl. 2. 575 "It is an established principle," we said, "that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public." 302 U. S., at 634. See also Doremus v. Board of Ed. of Hawthorne, 342 U. S. 429 , 433434 (1952) (dismissing taxpayer action on the basis of Mellon). More recent cases are to the same effect. In United States v. Richardson, 418 U. S. 166 (1974), we dismissed for lack of standing a taxpayer suit challenging the Government's failure to disclose the expenditures of the Central Intelligence Agency, in alleged violation of the constitutional requirement, Art. I, § 9, cl. 7, that "a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time." We held that such a suit rested upon an impermissible "generalized grievance," and was inconsistent with "the framework of Article III" because "the impact on [plaintiff] is plainly undifferentiated and 'common to all members of the public.'" Richardson, supra, at 171, 176-177. And in Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208 (1974), we dismissed for the same reasons a citizen-taxpayer suit contending that it was a violation of the Incompatibility Clause, Art. I, § 6, cl. 2, for Members of Congress to hold commissions in the military Reserves. We said that the challenged action, "standing alone, would adversely affect only the generalized interest of all/citizens in constitutional governance .... We reaffirm Levitt in holding that standing to sue may not be predicated upon an interest of th[is] kind .... " Schlesinger, supra, at 217, 220. Since Schlesinger we have on two occasions held that an injury amounting only to the alleged violation of a right to have the Government act in accordance with law was not judicially cognizable because 576 "'assertion of a right to a particular kind of Government conduct, which the Government has violated by acting differently, cannot alone satisfy the requirements of Art. III without draining those requirements of meaning.'" Allen, 468 U. S., at 754; Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464 , 483 (1982). And only two Terms ago, we rejected the notion that Article III permits a citizen suit to prevent a condemned criminal's execution on the basis of "'the public interest protections of the Eighth Amendment'''; once again, "[t]his allegation raise[d] only the 'generalized interest of all citizens in constitutional governance' ... and [was] an inadequate basis on which to grant ... standing." Whitmore, 495 U. S., at 160. To be sure, our generalized-grievance cases have typically involved Government violation of procedures assertedly ordained by the Constitution rather than the Congress. But there is absolutely no basis for making the Article III inquiry turn on the source of the asserted right. Whether the courts were to act on their own, or at the invitation of Congress, in ignoring the concrete injury requirement described in our cases, they would be discarding a principle fundamental to the separate and distinct constitutional role of the Third Branch-one of the essential elements that identifies those "Cases" and "Controversies" that are the business of the courts rather than of the political branches. "The province of the court," as Chief Justice Marshall said in Marbury v. Madison, 1 Cranch 137, 170 (1803), "is, solely, to decide on the rights of individuals." Vindicating the public interest (including the public interest in Government observance of the Constitution and laws) is the function of Congress and the Chief Executive. The question presented here is whether the public interest in proper administration of the laws (specifically, in agencies' observance of a particular, statutorily prescribed procedure) can be converted into an individual right by a statute that denominates it as such, and 577 that permits all citizens (or, for that matter, a subclass of citizens who suffer no distinctive concrete harm) to sue. If the concrete injury requirement has the separation-ofpowers significance we have always said, the answer must be obvious: To permit Congress to convert the undifferentiated public interest in executive officers' compliance with the law into an "individual right" vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty, to "take Care that the Laws be faithfully executed," Art. II, § 3. It would enable the courts, with the permission of Congress, "to assume a position of authority over the governmental acts of another and co-equal department," Massachusetts v. Mellon, 262 U. S., at 489, and to become" 'virtually continuing monitors of the wisdom and soundness of Executive action.'" Allen, supra, at 760 (quoting Laird v. Tatum, 408 U. S. 1 , 15 (1972)). We have always rejected that vision of our role: "When Congress passes an Act empowering administrative agencies to carryon governmental activities, the power of those agencies is circumscribed by the authority granted. This permits the courts to participate in law enforcement entrusted to administrative bodies only to the extent necessary to protect justiciable individual rights against administrative action fairly beyond the granted powers .... This is very far from assuming that the courts are charged more than administrators or legislators with the protection of the rights of the people. Congress and the Executive supervise the acts of administrative agents .... But under Article III, Congress established courts to adjudicate cases and controversies as to claims of infringement of individual rights whether by unlawful action of private persons or by the exertion of unauthorized administrative power." Stark v. Wickard, 321 U. S. 288 , 309-310 (1944) (footnote omitted). 578 "Individual rights," within the meaning of this passage, do not mean public rights that have been legislatively pronounced to belong to each individual who forms part of the public. See also Sierra Club, 405 U. S., at 740-741, n.16. Nothing in this contradicts the principle that "[t]he ... injury required by Art. III may exist solely by virtue of 'statutes creating legal rights, the invasion of which creates standing.'" Warth, 422 U. S., at 500 (quoting Linda R. S. v. Richard D., 410 U. S. 614 , 617, n. 3 (1973)). Both of the cases used by Linda R. S. as an illustration of that principle involved Congress' elevating to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law (namely, injury to an individual's personal interest in living in a racially integrated community, see Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205 , 208-212 (1972), and injury to a company's interest in marketing its product free from competition, see Hardin v. Kentucky Utilities Co., 390 U. S. 1 , 6 (1968)). As we said in Sierra Club, "[Statutory] broadening [of] the categories of injury that may be alleged in support of standing is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury." 405 U. S., at 738. Whether or not the principle set forth in Warth can be extended beyond that distinction, it is clear that in suits against the Government, at least, the concrete injury requirement must remain. *** We hold that respondents lack standing to bring this action and that the Court of Appeals erred in denying the summary judgment motion filed by the United States. The opinion of the Court of Appeals is hereby reversed, and the cause is remanded for proceedings consistent with this opinion. It is so ordered. 579 JUSTICE KENNEDY, with whom JUSTICE SOUTER joins, concurring in part and concurring in the judgment. Although I agree with the essential parts of the Court's analysis, I write separately to make several observations. I agree with the Court's conclusion in Part III-A that, on the record before us, respondents have failed to demonstrate that they themselves are "among the injured." Sierra Club v. Morton, 405 U. S. 727 , 735 (1972). This component of the standing inquiry is not satisfied unless "[p]laintiffs ... demonstrate a 'personal stake in the outcome.' ... Abstract injury is not enough. The plaintiff must show that he 'has sustained or is immediately in danger of sustaining some direct injury' as the result of the challenged official conduct and the injury or threat of injury must be both 'real and immediate,' not 'conjectural' or 'hypothetical.'" Los Angeles v. Lyons, 461 U. S. 95, 101-102 (1983) (citations omitted). While it may seem trivial to require that Mses. Kelly and Skilbred acquire airline tickets to the project sites or announce a date certain upon which they will return, see ante, at 564, this is not a case where it is reasonable to assume that the affiants will be using the sites on a regular basis, see Sierra Club v. Morton, supra, at 735, n. 8, nor do the affiants claim to have visited the sites since the projects commenced. With respect to the Court's discussion of respondents' "ecosystem nexus," "animal nexus," and "vocational nexus" theories, ante, at 565-567, I agree that on this record respondents' showing is insufficient to establish standing on any of these bases. I am not willing to foreclose the possibility, however, that in different circumstances a nexus theory similar to those proffered here might support a claim to standing. See Japan Whaling Assn. v. American Cetacean Society, 478 U. S. 221 , 231, n. 4 (1986) ("[R]espondents ... undoubtedly have alleged a sufficient 'injury in fact' in that 580 the whale watching and studying of their members will be adversely affected by continued whale harvesting"). In light of the conclusion that respondents have not demonstrated a concrete injury here sufficient to support standing under our precedents, I would not reach the issue of redressability that is discussed by the plurality in Part III-B. I also join Part IV of the Court's opinion with the following observations. As Government programs and policies become more complex and far reaching, we must be sensitive to the articulation of new rights of action that do not have clear analogs in our common-law tradition. Modern litigation has progressed far from the paradigm of Marbury suing Madison to get his commission, Marbury v. Madison, 1 Cranch 137 (1803), or Ogden seeking an injunction to halt Gibbons' steamboat operations, Gibbons v. Ogden, 9 Wheat. 1 (1824). In my view, Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before, and I do not read the Court's opinion to suggest a contrary view. See Warth v. Seldin, 422 U. S. 490 , 500 (1975); ante, at 578. In exercising this power, however, Congress must at the very least identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit. The citizen-suit provision of the Endangered Species Act does not meet these minimal requirements, because while the statute purports to confer a right on "any person ... to enjoin ... the United States and any other governmental instrumentality or agency ... who is alleged to be in violation of any provision of this chapter," it does not of its own force establish that there is an injury in "any person" by virtue of any "violation." 16 U. S. C. § 1540(g)(1)(A). The Court's holding that there is an outer limit to the power of Congress to confer rights of action is a direct and necessary consequence of the case and controversy limitations found in Article III. I agree that it would exceed those limitations if, at the behest of Congress and in the ab- 581 sence of any showing of concrete injury, we were to entertain citizen suits to vindicate the public's nonconcrete interest in the proper administration of the laws. While it does not matter how many persons have been injured by the challenged action, the party bringing suit must show that the action injures him in a concrete and personal way. This requirement is not just an empty formality. It preserves the vitality of the adversarial process by assuring both that the parties before the court have an actual, as opposed to professed, stake in the outcome, and that "the legal questions presented ... will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464 , 472 (1982). In addition, the requirement of concrete injury confines the Judicial Branch to its proper, limited role in the constitutional framework of Government. An independent judiciary is held to account through its open proceedings and its reasoned judgments. In this process it is essential for the public to know what persons or groups are invoking the judicial power, the reasons that they have brought suit, and whether their claims are vindicated or denied. The concrete injury requirement helps assure that there can be an answer to these questions; and, as the Court's opinion is careful to show, that is part of the constitutional design. With these observations, I concur in Parts I, II, III-A, and IV of the Court's opinion and in the judgment of the Court. JUSTICE STEVENS, concurring in the judgment. Because I am not persuaded that Congress intended the consultation requirement in § 7(a)(2) of the Endangered Species Act of 1973 (ESA), 16 U. S. C. § 1536(a)(2), to apply to activities in foreign countries, I concur in the judgment of reversal. I do not, however, agree with the Court's conclu- 582 sion that respondents lack standing because the threatened injury to their interest in protecting the environment and studying endangered species is not "imminent." Nor do I agree with the plurality's additional conclusion that respondents' injury is not "redressable" in this litigation. I In my opinion a person who has visited the critical habitat of an endangered species has a professional interest in preserving the species and its habitat, and intends to revisit them in the future has standing to challenge agency action that threatens their destruction. Congress has found that a wide variety of endangered species of fish, wildlife, and plants are of "aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people." 16 U. S. C. § 1531(a)(3). Given that finding, we have no license to demean the importance of the interest that particular individuals may have in observing any species or its habitat, whether those individuals are motivated by esthetic enjoyment, an interest in professional research, or an economic interest in preservation of the species. Indeed, this Court has often held that injuries to such interests are sufficient to confer standing,l and the Court reiterates that holding today. See ante, at 562-563. The Court nevertheless concludes that respondents have not suffered "injury in fact" because they have not shown that the harm to the endangered species will produce "imminent" injury to them. See ante, at 564. I disagree. An injury to an individual's interest in studying or enjoying a species and its natural habitat occurs when someone (whether it be the Government or a private party) takes action that harms that species and habitat. In my judgment, 1 See, e. g., Sierra Club v. Morton, 405 U. S. 727 , 734 (1972); United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U. S. 669 , 686-687 (1973); Japan Whaling Assn. v. American Cetacean Society, 478 U. S. 221 , 230-231, n. 4 (1986). 583 therefore, the "imminence" of such an injury should be measured by the timing and likelihood of the threatened environmental harm, rather than-as the Court seems to suggest, ante, at 564, and n. 2-by the time that might elapse between the present and the time when the individuals would visit the area if no such injury should occur. To understand why this approach is correct and consistent with our precedent, it is necessary to consider the purpose of the standing doctrine. Concerned about "the properand properly limited-role of the courts in a democratic society," we have long held that "Art. III judicial power exists only to redress or otherwise to protect against injury to the complaining party." Warth v. Seldin, 422 U. S. 490 , 498-499 (1975). The plaintiff must have a "personal stake in the outcome" sufficient to "assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult ... questions." Baker v. Carr, 369 U. S. 186 , 204 (1962). For that reason, "[a]bstract injury is not enough. It must be alleged that the plaintiff 'has sustained or is immediately in danger of sustaining some direct injury' as the result of the challenged statute or official conduct .... The injury or threat of injury must be both 'real and immediate,' not 'conjectural,' or 'hypothetical.'" O'Shea v. Littleton, 414 U. S. 488 , 494 (1974) (quoting Golden v. Zwickler, 394 U. S. 103 , 109-110 (1969)). Consequently, we have denied standing to plaintiffs whose likelihood of suffering any concrete adverse effect from the challenged action was speculative. See, e. g., Whitmore v. Arkansas, 495 U. S. 149 , 158-159 (1990); Los Angeles v. Lyons, 461 U. S. 95 , 105 (1983); O'Shea, 414 U. S., at 497. In this case, however, the likelihood that respondents will be injured by the destruction of the endangered species is not speculative. If respondents are genuinely interested in the preservation of the endangered species and intend to study or observe these animals in the future, their injury will occur as soon as the animals are destroyed. Thus the only poten- 584 STEVENS, J., concurring in judgment tial source of "speculation" in this case is whether respondents' intent to study or observe the animals is genuine.2 In my view, Joyce Kelly and Amy Skilbred have introduced sufficient evidence to negate petitioner's contention that their claims of injury are "speculative" or "conjectural." As JUSTICE BLACKMUN explains, post, at 591-592, a reasonable finder of fact could conclude, from their past visits, their professional backgrounds, and their affidavits and deposition testimony, that Ms. Kelly and Ms. Skilbred will return to the project sites and, consequently, will be injured by the destruction of the endangered species and critical habitat. The plurality also concludes that respondents' injuries are not redressable in this litigation for two reasons. First, respondents have sought only a declaratory judgment that the Secretary of the Interior's regulation interpreting § 7(a)(2) to require consultation only for agency actions in the United States or on the high seas is invalid and an injunction requiring him to promulgate a new regulation requiring consultation for agency actions abroad as well. But, the plurality opines, even if respondents succeed and a new regulation is 2 As we recognized in Sierra Club v. Morton, 405 U. S., at 735, the impact of changes in the esthetics or ecology of a particular area does "not fall indiscriminately upon every citizen. The alleged injury will be felt directly only by those who use [the area,] and for whom the aesthetic and recreational values of the area will be lessened .... " Thus, respondents would not be injured by the challenged projects if they had not visited the sites or studied the threatened species and habitat. But, as discussed above, respondents did visit the sites; moreover, they have expressed an intent to do so again. This intent to revisit the area is significant evidence tending to confirm the genuine character of respondents' interest, but I am not at all sure that an intent to revisit would be indispensable in every case. The interest that confers standing in a case of this kind is comparable, though by no means equivalent, to the interest in a relationship among family members that can be immediately harmed by the death of an absent member, regardless of when, if ever, a family reunion is planned to occur. Thus, if the facts of this case had shown repeated and regular visits by the respondents, cf. ante, at 579 (opinion of KENNEDY, J.), proof of an intent to revisit might well be superfluous. 585 promulgated, there is no guarantee that federal agencies that are not parties to this case will actually consult with the Secretary. See ante, at 568-571. Furthermore, the plurality continues, respondents have not demonstrated that federal agencies can influence the behavior of the foreign governments where the affected projects are located. Thus, even if the agencies consult with the Secretary and terminate funding for foreign projects, the foreign governments might nonetheless pursue the projects and jeopardize the endangered species. See ante, at 571. Neither of these reasons is persuasive. We must presume that if this Court holds that § 7(a)(2) requires consultation, all affected agencies would abide by that interpretation and engage in the requisite consultations. Certainly the Executive Branch cannot be heard to argue that an authoritative construction of the governing statute by this Court may simply be ignored by any agency head. Moreover, if Congress has required consultation between agencies, we must presume that such consultation will have a serious purpose that is likely to produce tangible results. As JUSTICE BLACKMUN explains, post, at 599-601, it is not mere speculation to think that foreign governments, when faced with the threatened withdrawal of United States assistance, will modify their projects to mitigate the harm to endangered species. II Although I believe that respondents have standing, I nevertheless concur in the judgment of reversal because I am persuaded that the Government is correct in its submission that § 7(a)(2) does not apply to activities in foreign countries. As with all questions of statutory construction, the question whether a statute applies extraterritorially is one of congressional intent. Foley Bros., Inc. v. Filardo, 336 U. S. 281 , 284-285 (1949). We normally assume that "Congress is primarily concerned with domestic conditions," id., at 285, and therefore presume that "'legislation of Congress, unless a 586 STEVENS, J., concurring in judgment contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States,'" EEOC v. Arabian American Oil Co., 499 U. S. 244 , 248 (1991) (quoting Foley Bros., 336 U. S., at 285). Section 7(a)(2) provides, in relevant part: "Each Federal agency shall, in consultation with and with the assistance of the Secretary [of the Interior or Commerce, as appropriate3], insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an 'agency action') is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical, unless such agency has been granted an exemption for such action by the Committee pursuant to subsection (h) of this section .... " 16 U. S. C. § 1536(a)(2). Nothing in this text indicates that the section applies in foreign countries.4 Indeed, the only geographic reference in 3The ESA defines "Secretary" to mean "the Secretary of the Interior or the Secretary of Commerce as program responsibilities are vested pursuant to the provisions of Reorganization Plan Numbered 4 of 1970." 16 U. S. C. § 1532(15). As a general matter, "marine species are under the jurisdiction of the Secretary of Commerce and all other species are under the jurisdiction of the Secretary of the Interior." 51 Fed. Reg. 19926 (1986) (preamble to final regulations governing interagency consultation promulgated by the Fish and Wildlife Service and the National Marine Fisheries Service on behalf of the Secretary of the Interior and the Secretary of Commerce). 4 Respondents point out that the duties in § 7(a)(2) are phrased in broad, inclusive language: "Each Federal agency" shall consult with the Secretary and ensure that "any action" does not jeopardize "any endangered or threatened species" or destroy or adversely modify the "habitat of such species." See Brief for Respondents 36; 16 U. S. C. § 1536(a)(2). The Court of Appeals correctly recognized, however, that such inclusive language, by itself, is not sufficient to overcome the presumption against the 587 the section is in the "critical habitat" clause,5 which mentions "affected States." The Secretary of the Interior and the Secretary of Commerce have consistently taken the position that they need not designate critical habitat in foreign countries. See 42 Fed. Reg. 4869 (1977) (initial regulations of the Fish and Wildlife Service and the National Marine Fisheries Service on behalf of the Secretary of the Interior and the Secretary of Commerce). Consequently, neither Secretary interprets § 7(a)(2) to require federal agencies to engage in consultations to ensure that their actions in foreign countries will not adversely affect the critical habitat of endangered or threatened species. That interpretation is sound, and, in fact, the Court of Appeals did not question it.6 There is, moreover, no indication that Congress intended to give a different geographic scope to the two clauses in § 7(a)(2). To the contrary, Congress recognized that one of the "major causes" of extinction of extraterritorial application of statutes. 911 F.2d 117 , 122 (CA8 1990); see also Foley Bros., Inc. v. Filardo, 336 U. S. 281 , 282, 287-288 (1949) (statute requiring an 8-hour day provision in "'[e]very contract made to which the United States ... is a party'" is inapplicable to contracts for work performed in foreign countries). 5 Section 7(a)(2) has two clauses which require federal agencies to consult with the Secretary to ensure that their actions (1) do not jeopardize threatened or endangered species (the "endangered species clause"), and (2) are not likely to destroy or adversely affect the habitat of such species (the "critical habitat clause"). 6 Instead, the Court of Appeals concluded that the endangered species clause and the critical habitat clause are "severable," at least with respect to their "geographical scope," so that the former clause applies extraterritorially even if the latter does not. 911 F. 2d, at 125. Under this interpretation, federal agencies must consult with the Secretary to ensure that their actions in foreign countries are not likely to threaten any endangered species, but they need not consult to ensure that their actions are not likely to destroy the critical habitats of these species. I cannot subscribe to the Court of Appeals' strained interpretation, for there is no indication that Congress intended to give such vastly different scope to the two clauses in § 7(a)(2). 588 endangered species is the "destruction of natural habitat." S. Rep. No. 93-307, p. 2 (1973); see also H. Rep. No. 93-412, p. 2 (1973); TVA v. Hill, 437 U. S. 153 , 179 (1978). It would thus be illogical to conclude that Congress required federal agencies to avoid jeopardy to endangered species abroad, but not destruction of critical habitat abroad. The lack of an express indication that the consultation requirement applies extraterritorially is particularly significant because other sections of the ESA expressly deal with the problem of protecting endangered species abroad. Section 8, for example, authorizes the President to provide assistance to "any foreign country (with its consent) ... in the development and management of programs in that country which [are] ... necessary or useful for the conservation of any endangered species or threatened species listed by the Secretary pursuant to section 1533 of this title." 16 U. S. C. § 1537(a). It also directs the Secretary of the Interior, "through the Secretary of State," to "encourage" foreign countries to conserve fish and wildlife and to enter into bilateral or multilateral agreements. § 1537(b). Section 9 makes it unlawful to import endangered species into (or export them from) the United States or to otherwise traffic in endangered species "in interstate or foreign commerce." §§ 1538(a)(1)(A), (E), (F). Congress thus obviously thought about endangered species abroad and devised specific sections of the ESA to protect them. In this context, the absence of any explicit statement that the consultation requirement is applicable to agency actions in foreign countries suggests that Congress did not intend that § 7(a)(2) apply extraterritorially. Finally, the general purpose of the ESA does not evince a congressional intent that the consultation requirement be applicable to federal agency actions abroad. The congressional findings explaining the need for the ESA emphasize that "various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence 589 of economic growth and development untempered by adequate concern and conservation," and that these species "are of aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people." §§ 1531(1), (3) (emphasis added). The lack of similar findings about the harm caused by development in other countries suggests that Congress was primarily concerned with balancing development and conservation goals in this country.7 In short, a reading of the entire statute persuades me that Congress did not intend the consultation requirement in § 7(a)(2) to apply to activities in foreign countries. Accordingly, notwithstanding my disagreement with the Court's disposition of the standing question, I concur in its judgment. JUSTICE BLACKMUN, with whom JUSTICE O'CONNOR joins, dissenting. I part company with the Court in this case in two respects. First, I believe that respondents have raised genuine issues of fact-sufficient to survive summary judgment-both as to injury and as to redressability. Second, I question the Court's breadth of language in rejecting standing for "procedural" injuries. I fear the Court seeks to impose fresh limitations on the constitutional authority of Congress to allow 7 Of course, Congress also found that "the United States has pledged itself as a sovereign state in the international community to conserve to the extent practicable the various species of fish or wildlife and plants facing extinction, pursuant to [several international agreements]," and that "encouraging the States ... to develop and maintain conservation programs which meet national and international standards is a key to meeting the Nation's international commitments .... " 16 U. S. C. §§ 1531(4), (5). The Court of Appeals read these findings as indicative of a congressional intent to make § 7(a)(2)'s consultation requirement applicable to agency action abroad. See 911 F. 2d, at 122-123. I am not persuaded, however, that such a broad congressional intent can be gleaned from these findings. Instead, I think the findings indicate a more narrow congressional intent that the United States abide by its international commitments. 590 citizen suits in the federal courts for injuries deemed "procedural" in nature. I dissent. I Article III of the Constitution confines the federal courts to adjudication of actual "Cases" and "Controversies." To ensure the presence of a "case" or "controversy," this Court has held that Article III requires, as an irreducible minimum, that a plaintiff allege (1) an injury that is (2) "fairly traceable to the defendant's allegedly unlawful conduct" and that is (3) "likely to be redressed by the requested relief." Allen v. Wright, 468 U. S. 737 , 751 (1984). A To survive petitioner's motion for summary judgment on standing, respondents need not prove that they are actually or imminently harmed. They need show only a "genuine issue" of material fact as to standing. Fed. Rule Civ. Proc. 56(c). This is not a heavy burden. A "genuine issue" exists so long as "the evidence is such that a reasonable jury could return a verdict for the nonmoving party [respondents]." Anderson v. Liberty Lobby, Inc., 477 U. S. 242 , 248 (1986). This Court's "function is not [it]self to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id., at 249. The Court never mentions the "genuine issue" standard. Rather, the Court refers to the type of evidence it feels respondents failed to produce, namely, "affidavits or other evidence showing, through specific facts" the existence of injury. Ante, at 563. The Court thereby confuses respondents' evidentiary burden (i. e., affidavits asserting "specific facts") in withstanding a summary judgment motion under Rule 56(e) with the standard of proof (i. e., the existence of a "genuine issue" of "material fact") under Rule 56(c). 591 1 Were the Court to apply the proper standard for summary judgment, I believe it would conclude that the sworn affidavits and deposition testimony of Joyce Kelly and Amy Skilbred advance sufficient facts to create a genuine issue for trial concerning whether one or both would be imminently harmed by the Aswan and Mahaweli projects. In the first instance, as the Court itself concedes, the affidavits contained facts making it at least "questionable" (and therefore within the province of the factfinder) that certain agencyfunded projects threaten listed species.1 Ante, at 564. The only remaining issue, then, is whether Kelly and Skilbred have shown that they personally would suffer imminent harm. I think a reasonable finder of fact could conclude from the information in the affidavits and deposition testimony that either Kelly or Skilbred will soon return to the project sites, thereby satisfying the "actual or imminent" injury standard. The Court dismisses Kelly's and Skilbred's general state- 1 The record is replete with genuine issues of fact about the harm to endangered species from the Aswan and Mahaweli projects. For example, according to an internal memorandum of the Fish and Wildlife Service, no fewer than eight listed species are found in the Mahaweli project area (Indian elephant, leopard, purple-faced langur, toque macaque, red face malkoha, Bengal monitor, mugger crocodile, and python). App. 78. The memorandum recounts that the Sri Lankan Government has specifically requested assistance from the Agency for International Development (AID) in "mitigating the negative impacts to the wildlife involved." Ibid. In addition, a letter from the Director of the Fish and Wildlife Service to AID warns: "The magnitude of the Accelerated Mahaweli Development Program could have massive environmental impacts on such an insular ecosystem as the Mahaweli River system." Id., at 215. It adds: "The Sri Lankan government lacks the necessary finances to undertake any long-term management programs to avoid the negative impacts to the wildlife." Id., at 216. Finally, in an affidavit submitted by petitioner for purposes of this litigation, an AID official states that an AID environmental assessment "showed that the [Mahaweli] project could affect several endangered species." Id., at 159. 592 ments that they intended to revisit the project sites as "simply not enough." Ibid. But those statements did not stand alone. A reasonable finder of fact could conclude, based not only upon their statements of intent to return, but upon their past visits to the project sites, as well as their professional backgrounds, that it was likely that Kelly and Skilbred would make a return trip to the project areas. Contrary to the Court's contention that Kelly's and Skilbred's past visits "prov[e] nothing," ibid., the fact of their past visits could demonstrate to a reasonable factfinder that Kelly and Skilbred have the requisite resources and personal interest in the preservation of the species endangered by the Aswan and Mahaweli projects to make good on their intention to return again. Cf. Los Angeles v. Lyons, 461 U. S. 95 , 102 (1983) ("Past wrongs were evidence bearing on whether there is a real and immediate threat of repeated injury") (internal quotation marks omitted). Similarly, Kelly's and Skilbred's professional backgrounds in wildlife preservation, see App. 100, 144, 309-310, also make it likely-at least far more likely than for the average citizen-that they would choose to visit these areas of the world where species are vanishing. By requiring a "description of concrete plans" or "specification of when the some day [for a return visit] will be," ante, at 564, the Court, in my view, demands what is likely an empty formality. No substantial barriers prevent Kelly or Skilbred from simply purchasing plane tickets to return to the Aswan and Mahaweli projects. This case differs from other cases in which the imminence of harm turned largely on the affirmative actions of third parties beyond a plaintiff's control. See Whitmore v. Arkansas, 495 U. S. 149 , 155-156 (1990) (harm to plaintiff death-row inmate from fellow inmate's execution depended on the court's one day reversing plaintiff's conviction or sentence and considering comparable sentences at resentencing); Los Angeles v. Lyons, 461 U. S., at 105 (harm dependent on police's arresting plaintiff again 593 and subjecting him to chokehold); Rizzo v. Goode, 423 U. S. 362 , 372 (1976) (harm rested upon "what one of a small, unnamed minority of policemen might do to them in the future because of that unknown policeman's perception of departmental disciplinary procedures"); O'Shea v. Littleton, 414 U. S. 488 , 495-498 (1974) (harm from discriminatory conduct of county magistrate and judge dependent on plaintiffs' being arrested, tried, convicted, and sentenced); Golden v. Zwickler, 394 U. S. 103 , 109 (1969) (harm to plaintiff dependent on a former Congressman's (then serving a 14-year term as a judge) running again for Congress). To be sure, a plaintiff's unilateral control over his or her exposure to harm does not necessarily render the harm nonspeculative. Nevertheless, it suggests that a finder of fact would be far more likely to conclude the harm is actual or imminent, especially if given an opportunity to hear testimony and determine credibility. I fear the Court's demand for detailed descriptions of future conduct will do little to weed out those who are genuinely harmed from those who are not. More likely, it will resurrect a code-pleading formalism in federal court summary judgment practice, as federal courts, newly doubting their jurisdiction, will demand more and more particularized showings of future harm. Just to survive summary judgment, for example, a property owner claiming a decline in the value of his property from governmental action might have to specify the exact date he intends to sell his property and show that there is a market for the property, lest it be surmised he might not sell again. A nurse turned down for a job on grounds of her race had better be prepared to show on what date she was prepared to start work, that she had arranged daycare for her child, and that she would not have accepted work at another hospital instead. And a Federal Tort Claims Act plaintiff alleging loss of consortium should make sure to furnish this Court with a "description of concrete plans" for her nightly schedule of attempted activities. 594 The Court also rejects respondents' claim of vocational or professional injury. The Court says that it is "beyond all reason" that a zoo "keeper" of Asian elephants would have standing to contest his Government's participation in the eradication of all the Asian elephants in another part of the world. Ante, at 566. I am unable to see how the distant location of the destruction necessarily (for purposes of ruling 595 at summary judgment) mitigates the harm to the elephant keeper. If there is no more access to a future supply of the animal that sustains a keeper's livelihood, surely there is harm. I have difficulty imagining this Court applying its rigid principles of geographic formalism anywhere outside the context of environmental claims. As I understand it, environmental plaintiffs are under no special constitutional standing disabilities. Like other plaintiffs, they need show only that the action they challenge has injured them, without necessarily showing they happened to be physically near the location of the alleged wrong. The Court's decision today should not be interpreted "to foreclose the possibility ... that in different circumstances a nexus theory similar to those proffered here might support a claim to standing." Ante, at 579 (KENNEDY, J., concurring in part and concurring in judgment). B A plurality of the Court suggests that respondents have not demonstrated redressability: a likelihood that a court ruling in their favor would remedy their injury. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59 , 74-75, and n. 20 (1978) (plaintiff must show "substantiallikelihood" that relief requested will redress the injury). The plurality identifies two obstacles. The first is that the "action agencies" (e. g., AID) cannot be required to undertake consultation with petitioner Secretary, because they are not directly bound as parties to the suit and are otherwise not indirectly bound by being subject to petitioner Secretary's regulation. Petitioner, however, officially and publicly has taken the position that his regulations regarding consultation under § 7 of the Act are binding on action agencies. 50 CFR §402.14(a) (1991).2 And he has previously 2 This section provides in part: "(a) Requirement for formal consultation. Each Federal agency shall review its actions at the earliest possible time to determine whether any 596 taken the same position in this very litigation, having stated in his answer to the complaint that petitioner "admits the Fish and Wildlife Service (FWS) was designated the lead agency for the formulation of regulations concerning section 7 of the [Endangered Species Act]." App. 246. I cannot agree with the plurality that the Secretary (or the Solicitor General) is now free, for the convenience of this appeal, to disavow his prior public and litigation positions. More generally, I cannot agree that the Government is free to play "Three-Card Monte" with its description of agencies' authority to defeat standing against the agency given the lead in administering a statutory scheme. Emphasizing that none of the action agencies are parties to this suit (and having rejected the possibility of their being indirectly bound by petitioner's regulation), the plurality concludes that "there is no reason they should be obliged to honor an incidental legal determination the suit produced." Ante, at 569. I am not as willing as the plurality is to assume that agencies at least will not try to follow the law. Moreover, I wonder if the plurality has not overlooked the extensive involvement from the inception of this litigation by the Department of State and AID.3 Under action may affect listed species or critical habitat. If such a determination is made, formal consultation is required .... " The Secretary's intent to make the regulations binding upon other agencies is even clearer from the discussion accompanying promulgation of the consultation rules. See 51 Fed. Reg. 19928 (1986) ("Several commenters stated that Congress did not intend that the Service interpret or implement section 7, and believed that the Service should recast the regulations as 'nonbinding guidelines' that would govern only the Service's role in consultation .... The Service is satisfied that it has ample authority and legislative mandate to issue this rule, and believes that uniform consultation standards and procedures are necessary to meet its obligations under section 7"). 3 For example, petitioner's motion before the District Court to dismiss the complaint identified four attorneys from the Department of State and AID (an agency of the Department of State) as "counsel" to the attorneys from the Justice Department in this action. One AID lawyer actually 597 principles of collateral estoppel, these agencies are precluded from subsequently relitigating the issues decided in this suit. "[O]ne who prosecutes or defends a suit in the name of another to establish and protect his own right, or who assists in the prosecution or defense of an action in aid of some interest of his own, and who does this openly to the knowledge of the opposing party, is as much bound by the judgment and as fully entitled to avail himself of it as an estoppel against an adverse party, as he would be if he had been a party to the record." Souffront v. Compagnie des Sucreries de Porto Rico, 217 U. S. 475 , 487 (1910). This principle applies even to the Federal Government. In Montana v. United States, 440 U. S. 147 (1979), this Court held that the Government was estopped from relitigating in federal court the constitutionality of Montana's gross receipts tax, because that issue previously had been litigated in state court by an individual contractor whose litigation had been financed and controlled by the Federal Government. "Thus, although not a party, the United States plainly had a sufficient 'laboring oar' in the conduct of the state-court litigation to actuate principles of estoppel." Id., at 155. See also United States v. Mendoza, 464 U. S. 154 , 164, n. 9 (1984) (Federal Government estopped where it "constituted a 'party' in all but a technical sense"). In my view, the action agencies have had sufficient "laboring oars" in this litigation since its inception to be bound from subsequent entered a formal appearance before the District Court on behalf of AID. On at least one occasion petitioner requested an extension of time to file a brief, representing that" '[a]n extension is necessary for the Department of Justice to consult with ... the Department of State [on] the brief.''' See Brief for Respondents 31, n. 8. In addition, AID officials have offered testimony in this action. 598 relitigation of the extraterritorial scope of the § 7 consultation requirement.4 As a result, I believe respondents' injury would likely be redressed by a favorable decision. 4 The plurality now suggests that collateral-estoppel principles can have no application here, because the participation of other agencies in this litigation arose after its inception. Borrowing a principle from this Court's statutory diversity jurisdiction cases and transferring it to the constitutional standing context, the Court observes: "'The existence of federal jurisdiction ordinarily depends on the facts as they exist when the complaint is filed.''' Ante, at 569, n. 4 (quoting Newman-Green, Inc. v. Alfonzo-Larrain, 490 U. S. 826 , 830 (1989)). See also Mollan v. Torrance, 9 Wheat. 537, 539 (1824) (Marshall, C. J.). The plurality proclaims that "[i]t cannot be" that later participation of other agencies in this suit retroactively created a jurisdictional issue that did not exist at the outset. Ante, at 570, n. 4. The plurality, however, overlooks at least three difficulties with this explanation. In the first place, assuming that the plurality were correct that events as of the initiation of the lawsuit are the only proper jurisdictional reference point, were the Court to follow this rule in this case there would be no question as to the compliance of other agencies, because, as stated at an earlier point in the opinion: "When the Secretary promulgated the regulation at issue here, he thought it was binding on the agencies." Ante, at 569. This suit was commenced in October 1986, just three months after the regulation took effect. App. 21; 51 Fed. Reg. 19926 (1986). As the plurality further admits, questions about compliance of other agencies with the Secretary's regulation arose only by later participation of the Solicitor General and other agencies in the suit. Ante, at 569. Thus, it was, to borrow the plurality's own words, "assuredly not true when this suit was filed, naming the Secretary alone," ante, at 569, n. 4, that there was any question before the District Court about other agencies being bound. Second, were the plurality correct that, for purposes of determining redress ability, a court may look only to facts as they exist when the complaint is filed, then the Court by implication would render a nullity part of Rule 19 of the Federal Rules of Civil Procedure. Rule 19 provides in part for the joinder of persons if "in the person's absence complete relief cannot be accorded among those already parties." This presupposes nonredressability at the outset of the litigation. Under the plurality's rationale, a district court would have no authority to join indispensable parties, because it would, as an initial matter, have no jurisdiction for lack of the power to provide redress at the outset of the litigation. Third, the rule articulated in Newman-Green is that the existence of federal jurisdiction "ordinarily" depends on the facts at the initiation of 599 The second redressability obstacle relied on by the plurality is that "the [action] agencies generally supply only a fraction of the funding for a foreign project." Ante, at 571. What this Court might "generally" take to be true does not eliminate the existence of a genuine issue of fact to withstand summary judgment. Even if the action agencies supply only a fraction of the funding for a particular foreign project, it remains at least a question for the finder of fact whether threatened withdrawal of that fraction would affect foreign government conduct sufficiently to avoid harm to listed species. The plurality states that "AID, for example, has provided less than 10% of the funding for the Mahaweli project." Ibid. The plurality neglects to mention that this "fraction" amounts to $170 million, see App. 159, not so paltry a sum for a country of only 16 million people with a gross national product of less than $6 billion in 1986 when respondents filed the lawsuit. This is no ironclad per se rule without exceptions. Had the Solicitor General, for example, taken a position during this appeal that the § 7 consultation requirement does in fact apply extraterritorially, the controversy would be moot, and this Court would be without jurisdiction. In the plurality's view, federal subject-matter jurisdiction appears to be a one-way street running the Executive Branch's way. When the Executive Branch wants to dispel jurisdiction over an action against an agency, it is free to raise at any point in the litigation that other nonparty agencies might not be bound by any determinations of the one agency defendant. When a plaintiff, however, seeks to preserve jurisdiction in the face of a claim of nonredressability, the plaintiff is not free to point to the involvement of nonparty agencies in subsequent parts of the litigation. The plurality does not explain why the street runs only one way-why some actions of the Executive Branch subsequent to initiation of a lawsuit are cognizable for jurisdictional purposes but others simply are not. More troubling still is the distance this one-way street carries the plurality from the underlying purpose of the standing doctrine. The purpose of the standing doctrine is to ensure that courts do not render advisory opinions rather than resolve genuine controversies between adverse parties. Under the plurality's analysis, the federal courts are to ignore their present ability to resolve a concrete controversy if at some distant point in the past it could be said that redress could not have been provided. The plurality perverts the standing inquiry. 600 the complaint in this action. Federal Research Division, Library of Congress, Sri Lanka: A Country Study (Area Handbook Series) xvi-xvii (1990). The plurality flatly states: "Respondents have produced nothing to indicate that the projects they have named will ... do less harm to listed species, if that fraction is eliminated." Ante, at 571. As an initial matter, the relevant inquiry is not, as the plurality suggests, what will happen if AID or other agencies stop funding projects, but what will happen if AID or other agencies comply with the consultation requirement for projects abroad. Respondents filed suit to require consultation, not a termination of funding. Respondents have raised at least a genuine issue of fact that the projects harm endangered species and that the actions of AID and other United States agencies can mitigate that harm. The plurality overlooks an Interior Department memorandum listing eight endangered or threatened species in the Mahaweli project area and recounting that "[t]he Sri Lankan government has requested the assistance of AID in mitigating the negative impacts to the wildlife involved." App. 78. Further, a letter from the Director of the Fish and Wildlife Service to AID states: "The Sri Lankan government lacks the necessary finances to undertake any long-term management programs to avoid the negative impacts to the wildlife. The donor nations and agencies that are financing the [Mahaweli project] will be the key as to how successfully the wildlife is preserved. If wildlife problems receive the same level of attention as the engineering project, then the negative impacts to the environment can be alleviated. This means that there has to be long-term funding in sufficient amounts to stem the negative impacts of this project." Id., at 216. 601 I do not share the plurality's astonishing confidence that, on the record here, a factfinder could only conclude that AID was powerless to ensure the protection of listed species at the Mahaweli project. As for the Aswan project, the record again rebuts the plurality's assumption that donor agencies are without any authority to protect listed species. Kelly asserted in her affidavit-and it has not been disputed-that the Bureau of Reclamation was "overseeing" the rehabilitation of the Aswan project. Id., at 101. See also id., at 65 (Bureau of Reclamation publication stating: "In 1982, the Egyptian government ... requested that Reclamation serve as its engineering advisor for the nine-year [Aswan] rehabilitation project"). I find myself unable to agree with the plurality's analysis of redressability, based as it is on its invitation of executive lawlessness, ignorance of principles of collateral estoppel, unfounded assumptions about causation, and erroneous conclusions about what the record does not say. In my view, respondents have satisfactorily shown a genuine issue of fact as to whether their injury would likely be redressed by a decision in their favor. II The Court concludes that any "procedural injury" suffered by respondents is insufficient to confer standing. It rejects the view that the "injury-in-fact requirement [is] satisfied by congressional conferral upon all persons of an abstract, selfcontained, noninstrumental 'right' to have the Executive observe the procedures required by law." Ante, at 573. Whatever the Court might mean with that very broad language, it cannot be saying that "procedural injuries" as a class are necessarily insufficient for purposes of Article III standing. Most governmental conduct can be classified as "procedural." Many injuries caused by governmental conduct, therefore, are categorizable at some level of generality as 602 "procedural" injuries. Yet, these injuries are not categorically beyond the pale of redress by the federal courts. When the Government, for example, "procedurally" issues a pollution permit, those affected by the permittee's pollutants are not without standing to sue. Only later cases will tell just what the Court means by its intimation that "procedural" injuries are not constitutionally cognizable injuries. In the meantime, I have the greatest of sympathy for the courts across the country that will struggle to understand the Court's standardless exposition of this concept today. The Court expresses concern that allowing judicial enforcement of "agencies' observance of a particular, statutorily prescribed procedure" would "transfer from the President to the courts the Chief Executive's most important constitutional duty, to 'take Care that the Laws be faithfully executed,' Art. II, § 3." Ante, at 576, 577. In fact, the principal effect of foreclosing judicial enforcement of such procedures is to transfer power into the hands of the Executive at the expense-not of the courts-but of Congress, from which that power originates and emanates. Under the Court's anachronistically formal view of the separation of powers, Congress legislates pure, substantive mandates and has no business structuring the procedural manner in which the Executive implements these mandates. To be sure, in the ordinary course, Congress does legislate in black-and-white terms of affirmative commands or negative prohibitions on the conduct of officers of the Executive Branch. In complex regulatory areas, however, Congress often legislates, as it were, in procedural shades of gray. That is, it sets forth substantive policy goals and provides for their attainment by requiring Executive Branch officials to follow certain procedures, for example, in the form of reporting, consultation, and certification requirements. The Court recently has considered two such procedurally oriented statutes. In Japan Whaling Assn. v. American Cetacean Society, 478 U. S. 221 (1986), the Court examined a 603 statute requiring the Secretary of Commerce to certify to the President that foreign nations were not conducting fishing operations or trading which "diminis[h] the effectiveness" of an international whaling convention. Id., at 226. The Court expressly found standing to sue. Id., at 230-231, n. 4. In Robertson v. Methow Valley Citizens Council, 490 U. S. 332, 348 (1989), this Court considered injury from violation of the "action-forcing" procedures of the National Environmental Policy Act (NEPA), in particular the requirements for issuance of environmental impact statements. The consultation requirement of § 7 of the Endangered Species Act is a similar, action-forcing statute. Consultation is designed as an integral check on federal agency action, ensuring that such action does not go forward without full consideration of its effects on listed species. Once consultation is initiated, the Secretary is under a duty to provide to the action agency "a written statement setting forth the Secretary's opinion, and a summary of the information on which the opinion is based, detailing how the agency action affects the species or its critical habitat." 16 U. S. C. § 1536(b)(3)(A). The Secretary is also obligated to suggest "reasonable and prudent alternatives" to prevent jeopardy to listed species. Ibid. The action agency must undertake as well its own "biological assessment for the purpose of identifying any endangered species or threatened species" likely to be affected by agency action. § 1536(c)(1). After the initiation of consultation, the action agency "shall not make any irreversible or irretrievable commitment of resources" which would foreclose the "formulation or implementation of any reasonable and prudent alternative measures" to avoid jeopardizing listed species. § 1536(d). These action-forcing procedures are "designed to protect some threatened concrete interest," ante, at 573, n. 8, of persons who observe and work with endangered or threatened species. That is why I am mystified by the Court's unsupported conclusion that "[t]his is not a case where plaintiffs 604 are seeking to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs." Ante, at 572. Congress legislates in procedural shades of gray not to aggrandize its own power but to allow maximum Executive discretion in the attainment of Congress' legislative goals. Congress could simply impose a substantive prohibition on Executive conduct; it could say that no agency action shall result in the loss of more than 5% of any listed species. Instead, Congress sets forth substantive guidelines and allows the Executive, within certain procedural constraints, to decide how best to effectuate the ultimate goal. See American Power & Light Co. v. SEC, 329 U. S. 90 , 105 (1946). The Court never has questioned Congress' authority to impose such procedural constraints on Executive power. Just as Congress does not violate separation of powers by structuring the procedural manner in which the Executive shall carry out the laws, surely the federal courts do not violate separation of powers when, at the very instruction and command of Congress, they enforce these procedures. To prevent Congress from conferring standing for "procedural injuries" is another way of saying that Congress may not delegate to the courts authority deemed "executive" in nature. Ante, at 577 (Congress may not "transfer from the President to the courts the Chief Executive's most important constitutional duty, to 'take Care that the Laws be faithfully executed,' Art. II, § 3"). Here Congress seeks not to delegate "executive" power but only to strengthen the procedures it has legislatively mandated. "We have long recognized that the nondelegation doctrine does not prevent Congress from seeking assistance, within proper limits, from its coordinate Branches." Touby v. United States, 500 U. S. 160 , 165 (1991). "Congress does not violate the Constitution merely because it legislates in broad terms, leaving a certain degree of discretion to executive or judicial actors." Ibid. (emphasis added). 605 Ironically, this Court has previously justified a relaxed review of congressional delegation to the Executive on grounds that Congress, in turn, has subjected the exercise of that power to judicial review. INS v. Chadha, 462 U. S. 919 , 953954, n. 16 (1983); American Power & Light Co. v. SEC, 329 U. S., at 105-106. The Court's intimation today that procedural injuries are not constitutionally cognizable threatens this understanding upon which Congress has undoubtedly relied. In no sense is the Court's suggestion compelled by our "common understanding of what activities are appropriate to legislatures, to executives, and to courts." Ante, at 560. In my view, it reflects an unseemly solicitude for an expansion of power of the Executive Branch. It is to be hoped that over time the Court will acknowledge that some classes of procedural duties are so enmeshed with the prevention of a substantive, concrete harm that an individual plaintiff may be able to demonstrate a sufficient likelihood of injury just through the breach of that procedural duty. For example, in the context of the NEP A requirement of environmental-impact statements, this Court has acknowledged "it is now well settled that NEPA itself does not mandate particular results [and] simply prescribes the necessary process," but "these procedures are almost certain to affect the agency's substantive decision." Robertson v. Methow Valley Citizens Council, 490 U. S., at 350 (emphasis added). See also Andrus v. Sierra Club, 442 U. S. 347 , 350-351 (1979) ("If environmental concerns are not interwoven into the fabric of agency planning, the 'actionforcing' characteristics of [the environmental-impact statement requirement] would be lost"). This acknowledgment of an inextricable link between procedural and substantive harm does not reflect improper appellate factfinding. It reflects nothing more than the proper deference owed to the judgment of a coordinate branch-Congress-that certain procedures are directly tied to protection against a substantive harm. 606 In short, determining "injury" for Article III standing purposes is a fact-specific inquiry. "Typically ... the standing inquiry requires careful judicial examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted." Allen v. Wright, 468 U. S., at 752. There may be factual circumstances in which a congressionally imposed procedural requirement is so insubstantially connected to the prevention of a substantive harm that it cannot be said to work any conceivable injury to an individual litigant. But, as a general matter, the courts owe substantial deference to Congress' substantive purpose in imposing a certain procedural requirement. In all events, "[o]ur separation-ofpowers analysis does not turn on the labeling of an activity as 'substantive' as opposed to 'procedural.'" Mistretta v. United States, 488 U. S. 361 , 393 (1989). There is no room for a per se rule or presumption excluding injuries labeled "procedural" in nature. III In conclusion, I cannot join the Court on what amounts to a slash-and-burn expedition through the law of environmental standing. In my view, "[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." Marbury v. Madison, 1 Cranch 137, 163 (1803). I dissent.

The Court held that the respondents, wildlife conservation and environmental organizations, lacked standing to challenge a regulation issued by the Secretary of the Interior that interpreted a provision of the Endangered Species Act. The Court found that the respondents had not demonstrated a concrete and particularized injury resulting from the regulation and that their claimed injury was merely a generalized grievance.

Role of Courts

DaimlerChrysler Corp. v. Cuno

https://supreme.justia.com/cases/federal/us/547/332/

OPINION OF THE COURT DAIMLERCHRYSLER CORP. V. CUNO 547 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NOS. 04-1704 AND 04-1724 DAIMLERCHRYSLER CORPORATION, et al., PETITIONERS 04–1704 v. CHARLOTTE CUNO et al. WILLIAM W. WILKINS, TAX COMMISSIONER FOR THE STATE OF OHIO, et al. , PETITIONERS 04–1724 v. CHARLOTTE CUNO et al. on writs of certiorari to the united states court of appeals for the sixth circuit [May 15, 2006] Chief Justice Roberts delivered the opinion of the Court.    Jeeps were first mass-produced in 1941 for the U. S. Army by the Willys-Overland Motor Company in Toledo, Ohio. Nearly 60 years later, the city of Toledo and State of Ohio sought to encourage the current manufacturer of Jeeps—DaimlerChrysler—to expand its Jeep operation in Toledo, by offering local and state tax benefits for new investment. Taxpayers in Toledo sued, alleging that their local and state tax burdens were increased by the tax breaks for DaimlerChrysler, tax breaks that they asserted violated the Commerce Clause. The Court of Appeals agreed that a state tax credit offered under Ohio law violated the Commerce Clause, and state and local officials and DaimlerChrysler sought review in this Court. We are obligated before reaching this Commerce Clause question to determine whether the taxpayers who objected to the credit have standing to press their complaint in federal court. We conclude that they do not, and we therefore can proceed no further. I    Ohio levies a franchise tax “upon corporations for the privilege of doing business in the state, owning or using a part or all of its capital or property in [the] state, or holding a certificate of compliance authorizing it to do business in [the] state.” Wesnovtek Corp. v. Wilkins , 105 Ohio St. 3d 312, 313, 2005–Ohio–1826, ¶2, 825 N. E. 2d 1099, 1100; see Ohio Rev. Code Ann. §5733.01 (Lexis 2005). A taxpayer that purchases “new manufacturing machinery and equipment” and installs it at sites in the State receives a credit against the franchise tax. See §5733.33(B)(1) (Lexis 1999).[ Footnote 1 ] Municipalities in Ohio may also offer partial property tax waivers to businesses that agree to invest in qualifying areas. See §5709.62(C)(1)(a) (Lexis 2005). With consent from local school districts, the partial property tax waiver can be increased to a complete exemption. See §5709.62(D)(1).    In 1998, DaimlerChrysler entered into a contract with the city of Toledo. Under the contract, DaimlerChrysler agreed to expand its Jeep assembly plant at Stickney Avenue in Toledo. In exchange, the city agreed to waive the property tax for the plant, with the consent of the two school districts in which the plant is located. Because DaimlerChrysler undertook to purchase and install “new manufacturing machinery and equipment,” it was also entitled to a credit against the state franchise tax. See §5733.33(B)(1) (Lexis 1999).    Plaintiffs filed suit against various state and local officials and DaimlerChrysler in state court, alleging that these tax benefits violated the Commerce Clause. Most of the plaintiffs were residents of Toledo, who paid taxes to both the city of Toledo and State of Ohio. They claimed that they were injured because the tax breaks for DaimlerChrysler diminished the funds available to the city and State, imposing a “disproportionate burden” on plaintiffs. App. 18a, 23a, 28a.[ Footnote 2 ]    Defendants removed the action to the United States District Court for the Northern District of Ohio. See 28 U. S. C. §1441. Plaintiffs filed motions to remand the case to state court. See §1447(c). One of the grounds on which they sought remand concerned their standing. They professed “substantial doubts about their ability to satisfy either the constitutional or the prudential limitations on standing in the federal court,” and urged the District Court to avoid the issue entirely by remanding. Plaintiffs’ Supplemental Motion for Remand to State Court in No. 3:00cv7247, p. 13, Record Doc. 17 (footnote omitted).    The District Court declined to remand the case, concluding that, “[a]t the bare minimum, the Plaintiffs who are taxpayers have standing to object to the property tax exemption and franchise tax credit statutes under the ‘municipal taxpayer standing’ rule articulated in Massachusetts v. Mellon, 262 U. S. 447 (1923).” App. 78a (citations omitted). On the merits, the District Court found that neither tax benefit violated the Commerce Clause. See 154 F. Supp. 2d 1196 (2001). The Court of Appeals for the Sixth Circuit agreed with the District Court as to the municipal property tax exemption, but held that the state franchise tax credit violated the Commerce Clause. See 386 F. 3d 738 (2004). The Court of Appeals did not address the issue of standing.    Defendants sought certiorari to review the Sixth Circuit’s invalidation of the franchise tax credit and plaintiffs sought certiorari to review the upholding of the property tax exemption. We granted certiorari to consider whether the franchise tax credit violates the Commerce Clause, 545 U. S. ___ (2005); the Michigan Supreme Court had decided a similar question contrary to the Sixth Circuit’s analysis here. See Caterpillar, Inc. v. Dept. of Treasury , 440 Mich. 400, 488 N. W. 2d 182 (1992). We also asked the parties to address whether plaintiffs have standing to challenge the franchise tax credit in this litigation. II    We have “an obligation to assure ourselves” of litigants’ standing under Article III. Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167 , 180 (2000). We therefore begin by addressing plaintiffs’ claims that they have standing as taxpayers to challenge the franchise tax credit. A     Chief Justice Marshall, in Marbury v. Madison, 1 Cranch 137 (1803), grounded the Federal Judiciary’s authority to exercise judicial review and interpret the Constitution on the necessity to do so in the course of carrying out the judicial function of deciding cases. As Marshall explained, “[t]hose who apply the rule to particular cases, must of necessity expound and interpret that rule.” Id., at 177. Determining that a matter before the federal courts is a proper case or controversy under Article III therefore assumes particular importance in ensuring that the Federal Judiciary respects “ ‘the proper—and properly limited—role of the courts in a democratic society,’ ” Allen v. Wright, 468 U. S. 737 , 750 (1984) (quoting Warth v. Seldin, 422 U. S. 490 , 498 (1975)). If a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so.    This Court has recognized that the case-or-controversy limitation is crucial in maintaining the “ ‘tripartite allocation of power’ ” set forth in the Constitution. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464 , 474 (1982) (quoting Flast v. Cohen, 392 U. S. 83 , 95 (1968)). Marshall again made the point early on, this time in a speech in the House of Representatives. “A case in law or equity,” Marshall remarked, “was a term … of limited signification. It was a controversy between parties which had taken a shape for judicial decision. If the judicial power extended to every question under the constitution it would involve almost every subject proper for legislative discussion and decision; if to every question under the laws and treaties of the United States it would involve almost every subject on which the executive could act. The division of power [among the branches of government] could exist no longer, and the other departments would be swallowed up by the judiciary.” 4 Papers of John Marshall 95 (C. Cullen ed. 1984). As this Court has explained, “ ‘[n]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.’ ” Raines v. Byrd, 521 U. S. 811 , 818 (1997) (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26 , 37 (1976)).    The case-or-controversy requirement thus plays a critical role, and “Article III standing … enforces the Constitution’s case-or-controversy requirement.” Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1 , 11 (2004). The “core component” of the requirement that a litigant have standing to invoke the authority of a federal court “is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U. S. 555 , 560 (1992). The requisite elements of this “core component derived directly from the Constitution” are familiar: “A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen , supra, at 751. We have been asked to decide an important question of constitutional law concerning the Commerce Clause. But before we do so, we must find that the question is presented in a “case” or “controversy” that is, in James Madison’s words, “of a Judiciary Nature.” 2 Records of the Federal Convention of 1787, p. 430 (M. Farrand ed. 1966). That requires plaintiffs, as the parties now asserting federal jurisdiction, to carry the burden of establishing their standing under Article III.[ Footnote 3 ] B    Plaintiffs principally claim standing by virtue of their status as Ohio taxpayers, alleging that the franchise tax credit “depletes the funds of the State of Ohio to which the Plaintiffs contribute through their tax payments” and thus “diminish[es] the total funds available for lawful uses and impos[es] disproportionate burdens on” them. App. 28a; see also Brief for Respondents 24. On several occasions, this Court has denied federal taxpayers standing under Article III to object to a particular expenditure of federal funds simply because they are taxpayers. Thus the alleged “deprivation of the fair and constitutional use of [a federal taxpayer’s] tax dollar” cannot support a challenge to the conveyance of Government land to a private religious college, Valley Forge, supra, at 476–482 (internal quotation marks and some brackets omitted), and “the interest of a taxpayer in the moneys of the federal treasury furnishes no basis” to argue that a federal agency’s loan practices are unconstitutional, Alabama Power Co. v. Ickes, 302 U. S. 464 , 478 (1938); see also Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208 (1974); United States v. Richardson, 418 U. S. 166 (1974).    The animating principle behind these cases was announced in their progenitor, Frothingham v. Mellon, decided with Massachusetts v. Mellon , 262 U. S. 447 (1923). In rejecting a claim that improper federal appropriations would “increase the burden of future taxation and thereby take [the plaintiff’s] property without due process of law,” the Court observed that a federal taxpayer’s “interest in the moneys of the Treasury … is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity.” Id., at 486–487. This logic is equally applicable to taxpayer challenges to expenditures that deplete the treasury, and to taxpayer challenges to so-called “tax expenditures,” which reduce amounts available to the treasury by granting tax credits or exemptions. In either case, the alleged injury is based on the asserted effect of the allegedly illegal activity on public revenues, to which the taxpayer contributes.    Standing has been rejected in such cases because the alleged injury is not “concrete and particularized,” Defenders of Wildlife , supra, at 560, but instead a grievance the taxpayer “suffers in some indefinite way in common with people generally,” Frothingham , supra, at 488. In addition, the injury is not “actual or imminent,” but instead “conjectural or hypothetical.” Defenders of Wildlife , supra, at 560 (internal quotation marks and citations omitted). As an initial matter, it is unclear that tax breaks of the sort at issue here do in fact deplete the treasury: The very point of the tax benefits is to spur economic activity, which in turn increases government revenues. In this very action, the Michigan plaintiffs claimed that they were injured because they lost out on the added revenues that would have accompanied DaimlerChrysler’s decision to expand facilities in Michigan. See n. 2, supra .    Plaintiffs’ alleged injury is also “conjectural or hypothetical” in that it depends on how legislators respond to a reduction in revenue, if that is the consequence of the credit. Establishing injury requires speculating that elected officials will increase a taxpayer-plaintiff’s tax bill to make up a deficit; establishing redressability requires speculating that abolishing the challenged credit will redound to the benefit of the taxpayer because legislators will pass along the supposed increased revenue in the form of tax reductions. Neither sort of speculation suffices to support standing. See ASARCO Inc. v. Kadish, 490 U. S. 605 , 614 (1989) (opinion of Kennedy, J.) (“[I]t is pure speculation whether the lawsuit would result in any actual tax relief for respondents”); Warth, 422 U. S., at 509 (criticizing a taxpayer standing claim for the “conjectural nature of the asserted injury”).    A taxpayer-plaintiff has no right to insist that the government dispose of any increased revenue it might experience as a result of his suit by decreasing his tax liability or bolstering programs that benefit him. To the contrary, the decision of how to allocate any such savings is the very epitome of a policy judgment committed to the “broad and legitimate discretion” of lawmakers, which “the courts cannot presume either to control or to predict.” ASARCO , supra, at 615 (opinion of Kennedy, J.). Under such circumstances, we have no assurance that the asserted injury is “imminent”—that it is “certainly impending.” Whitmore v. Arkansas, 495 U. S. 149 , 158 (1990) (internal quotation marks omitted); see Defenders of Wildlife , 504 U. S. , at 564–565, n. 2.    The foregoing rationale for rejecting federal taxpayer standing applies with undiminished force to state taxpayers. We indicated as much in Doremus v. Board of Ed. of Hawthorne, 342 U. S. 429 (1952). In that case, we noted our earlier holdings that “the interests of a taxpayer in the moneys of the federal treasury are too indeterminable, remote, uncertain and indirect” to support standing to challenge “their manner of expenditure.” Id., at 433. We then “reiterate[d]” what we had said in rejecting a federal taxpayer challenge to a federal statute “as equally true when a state Act is assailed: ‘The [taxpayer] must be able to show … that he has sustained … some direct injury … and not merely that he suffers in some indefinite way in common with people generally.’ ” Id., at 433–434 (quoting Frothingham , supra, at 488); see ASARCO , supra, at 613–614 (opinion of Kennedy, J.) (“[W]e have likened state taxpayers to federal taxpayers” for purposes of taxpayer standing (citing Doremus , supra, at 434)).    The allegations of injury that plaintiffs make in their complaint furnish no better basis for finding standing than those made in the cases where federal taxpayer standing was denied. Plaintiffs claim that DaimlerChrysler’s tax credit depletes the Ohio fisc and “impos[es] disproportionate burdens on [them].” App. 28a. This is no different from similar claims by federal taxpayers we have already rejected under Article III as insufficient to establish standing. See, e.g., Frothingham, 262 U. S. , at 486 (allegation of injury that the effect of government spending “will be to increase the burden of future taxation and thereby take [plaintiff’s] property without due process of law”).    State policymakers, no less than their federal counterparts, retain broad discretion to make “policy decisions” concerning state spending “in different ways … depending on their perceptions of wise state fiscal policy and myriad other circumstances.” ASARCO , supra, at 615 (opinion of Kennedy, J.). Federal courts may not assume a particular exercise of this state fiscal discretion in establishing standing; a party seeking federal jurisdiction cannot rely on such “[s]peculative inferences … to connect [his] injury to the challenged actions of [the defendant],” Simon, 426 U. S., at 45; see also Allen , 468 U. S. , at 759. Indeed, because state budgets frequently contain an array of tax and spending provisions, any number of which may be challenged on a variety of bases, affording state taxpayers standing to press such challenges simply because their tax burden gives them an interest in the state treasury would interpose the federal courts as “ ‘virtually continuing monitors of the wisdom and soundness’ ” of state fiscal administration, contrary to the more modest role Article III envisions for federal courts. See id., at 760–761 (quoting Laird v. Tatum, 408 U. S. 1 , 15 (1972)).    For the foregoing reasons, we hold that state taxpayers have no standing under Article III to challenge state tax or spending decisions simply by virtue of their status as taxpayers.[ Footnote 4 ] C    Plaintiffs argue that an exception to the general prohibition on taxpayer standing should exist for Commerce Clause challenges to state tax or spending decisions, analogizing their Commerce Clause claim to the Establishment Clause challenge we permitted in Flast v. Cohen, 392 U. S. 83 . Flast held that because “the Establishment Clause … specifically limit[s] the taxing and spending power conferred by Art. I, §8,” “a taxpayer will have standing consistent with Article III to invoke federal judicial power when he alleges that congressional action under the taxing and spending clause is in derogation of” the Establishment Clause. Id., at 105–106. Flast held out the possibility that “other specific [constitutional] limitations” on Art. I, §8, might surmount the “barrier to suits against Acts of Congress brought by individuals who can assert only the interest of federal taxpayers.” 392 U. S., at 105, 85. But as plaintiffs candidly concede, “only the Establishment Clause” has supported federal taxpayer suits since Flast . Brief for Respondents 12; see Bowen v. Kendrick, 487 U. S. 589 , 618 (1988) (“Although we have considered the problem of standing and Article III limitations on federal jurisdiction many times since [Flast] , we have consistently adhered to Flast and the narrow exception it created to the general rule against taxpayer standing”).    Quite apart from whether the franchise tax credit is analogous to an exercise of congressional power under Art. I, §8, plaintiffs’ reliance on Flast is misguided: Whatever rights plaintiffs have under the Commerce Clause, they are fundamentally unlike the right not to “ ‘contribute three pence … for the support of any one [religious] establishment.’ ” 392 U. S. , at 103 (quoting 2 Writings of James Madison 186 (G. Hunt ed. 1901)). Indeed, plaintiffs compare the Establishment Clause to the Commerce Clause at such a high level of generality that almost any constitutional constraint on government power would “specifically limit” a State’s taxing and spending power for Flast purposes. 392 U. S. , at 105; see Brief for Respondents 14 (“In each case, the harm to be avoided by [the two clauses] is the loss of governmental neutrality”). And even if the two clauses are similar in that they often implicate governments’ fiscal decisions, see id., at 13–14, a finding that the Commerce Clause satisfies the Flast test would leave no principled way of distinguishing those other constitutional provisions that we have recognized constrain governments’ taxing and spending decisions. See, e.g., Arkansas Writers’ Project, Inc. v. Ragland, 481 U. S. 221 (1987) (invalidating state sales tax under the Free Press Clause). Yet such a broad application of Flast ’s exception to the general prohibition on taxpayer standing would be quite at odds with its narrow application in our precedent and Flast ’s own promise that it would not transform federal courts into forums for taxpayers’ “generalized grievances.” 392 U. S. , at 106. Flast is consistent with the principle, underlying the Article III prohibition on taxpayer suits, that a litigant may not assume a particular disposition of government funds in establishing standing. The Flast Court discerned in the history of the Establishment Clause “the specific evils feared by [its drafters] that the taxing and spending power would be used to favor one religion over another or to support religion in general.” Id., at 103 . The Court therefore understood the “injury” alleged in Establishment Clause challenges to federal spending to be the very “extract[ion] and spen[ding]” of “tax money” in aid of religion alleged by a plaintiff. Id., at 106. And an injunction against the spending would of course redress that injury, regardless of whether lawmakers would dispose of the savings in a way that would benefit the taxpayer-plaintiffs personally. See Valley Forge, 454 U. S. , at 514 (Stevens, J., dissenting) (“[T]he plaintiffs’ invocation of the Establishment Clause was of decisive importance in resolving the standing issue in [Flast] ”).    Plaintiffs thus do not have state taxpayer standing on the ground that their Commerce Clause challenge is just like the Establishment Clause challenge in Flast . III    Plaintiffs also claim that their status as municipal taxpayers gives them standing to challenge the state franchise tax credit at issue here. The Frothingham Court noted with approval the standing of municipal residents to enjoin the “illegal use of the moneys of a municipal corporation,” relying on “the peculiar relation of the corporate taxpayer to the corporation” to distinguish such a case from the general bar on taxpayer suits. 262 U. S. , at 486–487; see ASARCO , 490 U. S. , at 613–614 (opinion of Kennedy, J.) (reiterating distinction). Plaintiffs here challenged the municipal property tax exemption as municipal taxpayers. That challenge was rejected by the Court of Appeals on the merits, and no issue regarding plaintiffs’ standing to bring it has been raised. In plaintiffs’ challenge to the state franchise tax credit, however, they identify no municipal action contributing to any claimed injury. Instead, they try to leverage the notion of municipal taxpayer standing beyond challenges to municipal action, in two ways. A    First, plaintiffs claim that because state law requires revenues from the franchise tax to be distributed to local governments, Ohio Rev. Code Ann. §5733.12 (Lexis 2005), the award of a credit to DaimlerChrysler reduced such distributions and thus depleted the funds of “local governments to which Respondents pay taxes.” Brief for Respondents 16. But plaintiffs’ challenge is still to the state law and state decision, not those of their municipality. We have already explained why a state taxpayer lacks standing to challenge a state fiscal decision on the grounds that it might affect his tax liability. All plaintiffs have done in recasting their claims as ones brought by municipal taxpayers whose municipalities receive funding from the State—the level of which might be affected by the same state fiscal decision—is introduce yet another level of conjecture to their already hypothetical claim of injury.    And in fact events have highlighted the peril of assuming that any revenue increase resulting from a taxpayer suit will be put to a particular use. Ohio’s General Assembly suspended the statutory budget mechanism that distributes franchise tax revenues to local governments in 2001 and again in its subsequent biennial budgets. See Amended Substitute H. B. 94, 124th General Assembly §140 (2001), available at http://www.legislature.state. oh.us/BillText124/124_HB_94_ENR.pdf (all Internet ma- terials as visited May 12, 2006, and available in Clerk of Court’s case file); Amended Substitute H. B. 95, 125th General Assembly §139 (2003), available at http:// www.legislature.state.oh.us/BillText125/125_HB_95_EN2_N.pdf; Amended Substitute H. B. 66, 126th Gen- eral Assembly §557.12 (2005), available at http://www. legislature.state.oh.us/BillText126/126_HB_66_EN2d.pdf. Any effect that enjoining DaimlerChrysler’s credit will have on municipal funds, therefore, will not result from automatic operation of a statutory formula, but from a hypothesis that the state government will choose to direct the supposed revenue from the restored franchise tax to municipalities. This is precisely the sort of conjecture we may not entertain in assessing standing. See ASARCO , supra, at 614 (opinion of Kennedy, J.). B    The second way plaintiffs seek to leverage their standing to challenge the municipal property tax exemption into a challenge to the franchise tax credit is by relying on Mine Workers v. Gibbs, 383 U. S. 715 (1966). According to plaintiffs, the “supplemental jurisdiction” recognized in that case supports jurisdiction over all their claims, once the District Court determined they had standing to challenge the property tax exemption. Brief for Respondents 17–18. Gibbs held that federal-question jurisdiction over a claim may authorize a federal court to exercise jurisdiction over state-law claims that may be viewed as part of the same case because they “derive from a common nucleus of operative fact” as the federal claim. 383 U. S., at 725. Plaintiffs assume that Gibbs stands for the proposition that federal jurisdiction extends to all claims sufficiently related to a claim within Article III to be part of the same case, regardless of the nature of the deficiency that would keep the former claims out of federal court if presented on their own.    Our general approach to the application of Gibbs , however, has been markedly more cautious. For example, as a matter of statutory construction of the pertinent jurisidictional provisions, we refused to extend Gibbs to allow claims to be asserted against nondiverse parties when jurisdiction was based on diversity, see Owen Equipment & Erection Co. v. Kroger, 437 U. S. 365 (1978), and we refused to extend Gibbs to authorize supplemental jurisdiction over claims that do not satisfy statutory amount-in-controversy requirements, see Finley v. United States, 490 U. S. 545 (1989). As the Court explained just last Term, “[w]e have not … applied Gibbs ’ expansive interpretive approach to other aspects of the jurisdictional statutes.” Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U. S. ___, ___ (2005) (slip op., at 5) (applying 28 U. S. C. §1367, enacted in 1990, to allow a federal court in a diversity action to exercise supplemental jurisdiction over additional diverse plaintiffs whose claims failed to meet the amount-in-controversy threshold).    What we have never done is apply the rationale of Gibbs to permit a federal court to exercise supplemental jurisdiction over a claim that does not itself satisfy those elements of the Article III inquiry, such as constitutional standing, that “serv[e] to identify those disputes which are appropriately resolved through the judicial process.” Whitmore, 495 U. S., at 155. We see no reason to read the language of Gibbs so broadly, particularly since our standing cases confirm that a plaintiff must demonstrate standing for each claim he seeks to press. See Allen, 468 U. S., at 752 (“[T]he standing inquiry requires careful judicial examination of a complaint’s allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted” (emphasis added)). We have insisted, for instance, that “a plaintiff must demonstrate standing separately for each form of relief sought.” Laidlaw, 528 U. S., at 185; see Los Angeles v. Lyons, 461 U. S. 95 , 109 (1983). But if standing were commutative, as plaintiffs claim, this insistence would make little sense when all claims for relief derive from a “common nucleus of operative fact,” as they certainly appear to have in both Laidlaw , supra, at 175–179, and Lyons , supra, at 97–98.    Plaintiffs’ reading of Gibbs to allow standing as to one claim to suffice for all claims arising from the same “nucleus of operative fact” would have remarkable implications. The doctrines of mootness, ripeness, and political question all originate in Article III’s “case” or “controversy” language, no less than standing does. See, e.g., National Park Hospitality Assn. v. Department of Interior, 538 U. S. 803 , 808 (2003) (ripeness); Arizonans for Official English v. Arizona, 520 U. S. 43 , 67 (1997) (mootness); Reservists Comm. to Stop the War, 418 U. S., at 215 (political question). Yet if Gibbs ’ “common nucleus” formulation announced a new definition of “case” or “controversy” for all Article III purposes, a federal court would be free to entertain moot or unripe claims, or claims presenting a political question, if they “derived from” the same “operative fact[s]” as another federal claim suffering from none of these defects. Plaintiffs’ reading of Gibbs , therefore, would amount to a significant revision of our precedent interpreting Article III.    With federal courts thus deciding issues they would not otherwise be authorized to decide, the “ ‘tripartite allocation of power’ ” that Article III is designed to maintain, Valley Forge , 454 U. S., at 474, would quickly erode; our emphasis on the standing requirement’s role in maintaining this separation would be rendered hollow rhetoric. As we have explained, “[t]he actual-injury requirement would hardly serve the purpose … of preventing courts from undertaking tasks assigned to the political branches[,] if once a plaintiff demonstrated harm from one particular inadequacy in government administration, the court were authorized to remedy all inadequacies in that administration.” Lewis v. Casey, 518 U. S. 343 , 357 (1996). Lewis emphasized that “[t]he remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Ibid. Plaintiffs’ theory of ancillary standing would contravene this principle. Plaintiffs failed to establish Article III injury with respect to their state taxes, and even if they did do so with respect to their municipal taxes, that injury does not entitle them to seek a remedy as to the state taxes. As the Court summed up the point in Lewis , “standing is not dispensed in gross.” Id., at 358, n. 6.[ Footnote 5 ] *  *  *    All the theories plaintiffs have offered to support their standing to challenge the franchise tax credit are unavailing. Because plaintiffs have no standing to challenge that credit, the lower courts erred by considering their claims against it on the merits. The judgment of the Sixth Circuit is therefore vacated in part, and the cases are remanded for dismissal of plaintiffs’ challenge to the franchise tax credit. It is so ordered. Footnote 1 Ohio has begun phasing out the franchise tax and has discontinued offering new credits against the tax like the one DaimlerChrysler received. See §§5733.01(G), 5733.33(B)(1) (Lexis 2005). Where relevant, therefore, the citations in this opinion are to the statutes in effect at the time DaimlerChrysler made its investment. Footnote 2 Other plaintiffs were residents of Toledo who claimed they were injured because they were displaced by the DaimlerChrysler expansion and Michigan residents who claimed injury because DaimlerChrysler would have expanded its operations in Michigan but for the Ohio investment tax credit. Plaintiffs neither identified these allegations as a basis for standing in their merits brief before this Court nor referred to them at oral argument. Any argument based on these allegations is therefore abandoned. See, e.g., United States v. International Business Machines Corp., 517 U. S. 843 , 855, and n. 3 (1996). Footnote 3 Because defendants removed the case from state court to District Court, plaintiffs were not initially the parties that invoked federal jurisdiction. Indeed, plaintiffs initially expressed doubts as to their standing. Nonetheless, because “[w]e presume that federal courts lack jurisdiction unless the contrary appears affirmatively from the record,” Renne v. Geary, 501 U. S. 312 , 316 (1991) (internal quotation marks omitted), the party asserting federal jurisdiction when it is challenged has the burden of establishing it. Whatever the parties’ previous positions on the propriety of a federal forum, plaintiffs, as the parties seeking to establish federal jurisdiction, must make the showings required for standing. Footnote 4 The majority of the Courts of Appeals to have considered the issue have reached a similar conclusion. See, e.g., Booth v. Hvass , 302 F. 3d 849 (CA8 2002); Board of Ed. of Mt. Sinai Union Free School Dist. v. New York State Teachers Retirement System , 60 F. 3d 106 (CA2 1995); Colorado Taxpayers Union, Inc. v. Romer , 963 F. 2d 1394 (CA10 1992); Taub v. Kentucky , 842 F. 2d 912 (CA6 1988); Korioth v. Briscoe , 523 F. 2d 1271 (CA5 1974); but cf. Arakaki v. Lingle , 423 F. 3d 954, 967–969 (CA9 2005) (finding state taxpayer standing in light of Hoohuli v. Ariyoshi , 741 F. 2d 1169 (CA9 1984), but noting that Justice Kennedy’s opinion in ASARCO Inc. v. Kadish, 490 U. S. 605 (1989), would “carry persuasive value” absent Hoohuli ). Footnote 5 In defending the contrary position, plaintiffs rely on three cases from the Courts of Appeals. But two of those cases hold only that, once a litigant has standing to request invalidation of a particular agency action, it may do so by identifying all grounds on which the agency may have “ ‘failed to comply with its statutory mandate.’ ” Sierra Club v. Adams , 578 F. 2d 389, 392 (CADC 1978) (quoting Sierra Club v. Morton, 405 U. S. 727 , 737 (1972)); see also Iowa Independent Bankers v. Board of Governors of Fed. Reserve , 511 F. 2d 1288, 1293–1294 (CADC 1975). They do not establish that the litigant can, by virtue of his standing to challenge one government action, challenge other governmental actions that did not injure him. In the third case, the Court of Appeals relied substantially on the fact that “all courts possess an inherent power to prevent unprofessional conduct by those attorneys who are practicing before them” in allowing the Government to contest the division of a damages award it was ordered to pay between a plaintiff and his attorney. Jackson v. United States , 881 F. 2d 707, 710–711 (CA9 1989). That situation is rather far afield from the question before us. 547 U. S. ____ (2006) 547 U. S. ____ (2006) 547 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NOS. 04-1704 AND 04-1724 DAIMLERCHRYSLER CORPORATION, et al., PETITIONERS 04–1704 v. CHARLOTTE CUNO et al. WILLIAM W. WILKINS, TAX COMMISSIONER FOR THE STATE OF OHIO, et al. , PETITIONERS 04–1724 v. CHARLOTTE CUNO et al. on writs of certiorari to the united states court of appeals for the sixth circuit [May 15, 2006] Justice Ginsburg , concurring in part and concurring in the judgment.    Today’s decision, the Court rightly points out, is solidly grounded in longstanding precedent, Frothingham v. Mellon (decided with Massachusetts v. Mellon ), 262 U. S. 447 (1923), and Doremus v. Board of Ed. of Hawthorne, 342 U. S. 429 (1952), decisions that antedate current jurisprudence on standing to sue. See ante , at 7, 9. Frothingham held nonjusticiable a federal taxpayer’s suit challenging a federal-spending program. See 262 U. S., at 487 (describing taxpayer’s interest as “minute and indeterminable”). Doremus applied Frothingham ’s reasoning to a state taxpayer’s suit. 342 U. S., at 434. These decisions exclude from federal-court cognizance claims, not delineated by Congress, presenting generalized grievances. An exception to Frothingham ’s rule, recognized post- Doremus in Flast v. Cohen, 392 U. S. 83 (1968), covers certain alleged violations of the Establishment Clause. The Flast exception has not been extended to other areas. See Bowen v. Kendrick, 487 U. S. 589 , 618 (1988); cf. Enrich, Saving the States from Themselves: Commerce Clause Constraints on State Tax Incentives for Business, 110 Harv. L. Rev. 377, 417–418 (1996).    One can accept, as I do, the nonjusticiability of Frothingham -type federal and state taxpayer suits in federal court without endorsing as well the limitations on standing later declared in Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26 (1976) (EKWRO) , Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464 (1982), Allen v. Wright, 468 U. S. 737 (1984), and Lujan v. Defenders of Wildlife, 504 U. S. 555 (1992). See EKWRO , 426 U. S., at 54–66 (Brennan, J., concurring in judgment); Valley Forge , 454 U. S., at 513–515 (Stevens, J., dissenting); Allen , 468 U. S., at 783–795 (Stevens, J., dissenting), and the overturned Court of Appeals opinion, Wright v. Regan , 656 F. 2d 820, 828–832 (CADC 1981) (Ginsburg, J.); Defenders of Wildlife , 504 U. S., at 582–585 (Stevens, J., concurring in judgment); Sunstein, What’s Standing after Lujan ? Of Citizen Suits, “Injuries,” and Article III, 91 Mich. L. Rev. 163, 203–205, 228–229 (1992) (contrasting Lujan , Allen , and EKWRO with Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978)); Fletcher, The Structure of Standing, 98 Yale L. J. 221, 267–270 (1988) (commenting on Flast and Valley Forge ). Noting this large reservation, I concur in the judgment, and in the balance of the Court’s opinion.

The Supreme Court ruled that taxpayers in Toledo, Ohio, did not have standing to challenge state and local tax breaks offered to DaimlerChrysler, as they could not demonstrate a direct and personal injury. The Court's decision was based on longstanding precedent that federal and state taxpayer suits are not justiciable in federal court.

Role of Courts

Hein v. Freedom From Religion Foundation, Inc.

https://supreme.justia.com/cases/federal/us/551/587/

OPINION OF ALITO, J. HEIN V. FREEDOM FROM RELIGION FOUNDATION, INC. 551 U. S. ____ (2007) SUPREME COURT OF THE UNITED STATES NO. 06-157 JAY F. HEIN, DIRECTOR, WHITE HOUSE OFFICE OF FAITH-BASED AND COMMUNITY INITIATIVES, et al., PETITIONERS v. FREEDOM FROM RELI- GION FOUNDATION, INC., et al. on writ of certiorari to the united states court of appeals for the seventh circuit [June 25, 2007]    Justice Alito announced the judgment of the Court and delivered an opinion in which The Chief Justice and Justice Kennedy join.    This is a lawsuit in which it was claimed that conferences held as part of the President’s Faith-Based and Community Initiatives program violated the Establishment Clause of the First Amendment because, among other things, President Bush and former Secretary of Education Paige gave speeches that used “religious imagery” and praised the efficacy of faith-based programs in delivering social services. The plaintiffs contend that they meet the standing requirements of Article III of the Constitution because they pay federal taxes.    It has long been established, however, that the payment of taxes is generally not enough to establish standing to challenge an action taken by the Federal Government. In light of the size of the federal budget, it is a complete fiction to argue that an unconstitutional federal expenditure causes an individual federal taxpayer any measurable economic harm. And if every federal taxpayer could sue to challenge any Government expenditure, the federal courts would cease to function as courts of law and would be cast in the role of general complaint bureaus.    In Flast v. Cohen , 392 U. S. 83 (1968), we recognized a narrow exception to the general rule against federal taxpayer standing. Under Flast , a plaintiff asserting an Establishment Clause claim has standing to challenge a law authorizing the use of federal funds in a way that allegedly violates the Establishment Clause. In the present case, Congress did not specifically authorize the use of federal funds to pay for the conferences or speeches that the plaintiffs challenged. Instead, the conferences and speeches were paid for out of general Executive Branch appropriations.    The Court of Appeals, however, held that the plaintiffs have standing as taxpayers because the conferences were paid for with money appropriated by Congress.    The question that is presented here is whether this broad reading of Flast is correct. We hold that it is not. We therefore reverse the decision of the Court of Appeals. I A    In 2001, the President issued an executive order creating the White House Office of Faith-Based and Community Initiatives within the Executive Office of the President. Exec. Order No. 13199, 3 CFR 752 (2001 Comp.). The purpose of this new office was to ensure that “private and charitable community groups, including religious ones … have the fullest opportunity permitted by law to compete on a level playing field, so long as they achieve valid public purposes” and adhere to “the bedrock principles of pluralism, nondiscrimination, evenhandedness, and neutrality.” Ibid . The office was specifically charged with the task of eliminating unnecessary bureaucratic, legislative, and regulatory barriers that could impede such organizations’ effectiveness and ability to compete equally for federal assistance. Id ., at 752–753.    By separate executive orders, the President also created Executive Department Centers for Faith-Based and Community Initiatives within several federal agencies and departments.[ Footnote 1 ] These centers were given the job of ensuring that faith-based community groups would be eligible to compete for federal financial support without impairing their independence or autonomy, as long as they did “not use direct Federal financial assistance to support any inherently religious activities, such as worship, religious instruction, or proselytization.” Exec. Order No. 13279, 3 CFR §2(f), p. 260 (2002 Comp.). To this end, the President directed that “[n]o organization should be discriminated against on the basis of religion or religious belief in the administration or distribution of Federal financial assistance under social service programs,” id. , §2(c), at 260, and that “[a]ll organizations that receive Federal financial assistance under social services programs should be prohibited from discriminating against beneficiaries or potential beneficiaries of the social services programs on the basis of religion or religious belief,” id. , §2(d), at 260. Petitioners, who have been sued in their official capacities, are the directors of the White House Office and various Executive Department Centers.    No congressional legislation specifically authorized the creation of the White House Office or the Executive Department Centers. Rather, they were “created entirely within the executive branch … by Presidential executive order.” Freedom From Religion Foundation, Inc. v. Chao , 433 F. 3d 989, 997 (CA7 2006). Nor has Congress enacted any law specifically appropriating money for these entities’ activities. Instead, their activities are funded through general Executive Branch appropriations. For example, the Department of Education’s Center is funded from money appropriated for the Office of the Secretary of Education, while the Department of Housing and Urban Development’s Center is funded through that Department’s salaries and expenses account. See Government Accountability Office, Faith-Based and Community Initiative: Improvements in Monitoring Grantees and Measuring Performance Could Enhance Accountability, GAO–06–616, p. 21 (June 2006), online at http://www.gao.gov/new.items/d06616.pdf (as visited June 25, 2007, and available in Clerk of Court’s case file); see also Amended Complaint in No. 04–C–381–S (WD Wis.), ¶23, App. to Pet. for Cert. 71a–72a. B    The respondents are Freedom From Religion Foundation, Inc., a nonstock corporation “opposed to government endorsement of religion,” id. , ¶5, App. to Pet. for Cert. 68a, and three of its members. Respondents brought suit in the United States District Court for the Western District of Wisconsin, alleging that petitioners violated the Establishment Clause by organizing conferences at which faith-based organizations allegedly “are singled out as being particularly worthy of federal funding … , and the belief in God is extolled as distinguishing the claimed effectiveness of faith-based social services.” Id. , ¶32, App. to Pet. for Cert. 73a. Respondents further alleged that the content of these conferences sent a message to religious believers “that they are insiders and favored members of the political community” and that the conferences sent the message to nonbelievers “that they are outsiders” and “not full members of the political community.” Id. , ¶37, App. to Pet. for Cert. 76a. In short, respondents alleged that the conferences were designed to promote, and had the effect of promoting, religious community groups over secular ones.    The only asserted basis for standing was that the individual respondents are federal taxpayers who are “opposed to the use of Congressional taxpayer appropriations to advance and promote religion.” Id. , ¶10, App. to Pet. for Cert. 69a; see also id. , ¶¶7–9, App. to Pet. for Cert. 68a–69a. In their capacity as federal taxpayers, respondents sought to challenge Executive Branch expenditures for these conferences, which, they contended, violated the Establishment Clause. C    The District Court dismissed the claims against petitioners for lack of standing. See Freedom From Religion Foundation, Inc. v. Towey , No. 04–C–381–S (WD Wis., Nov. 15, 2004), App. to Pet. for Cert. 27a–35a. It concluded that under Flast , 392 U. S. 83 , federal taxpayer standing is limited to Establishment Clause challenges to the constitutionality of “ ‘exercises of congressional power under the taxing and spending clause of Art. I, §8.’ ” App. to Pet. for Cert. 31a (quoting Flast , supra , at 102). Because petitioners in this case acted “at the President’s request and on the President’s behalf” and were not “charged with the administration of a congressional program,” the District Court concluded that the challenged activities were “not ‘exercises of congressional power’ ” sufficient to provide a basis for taxpayer standing under Flast . App. to Pet. for Cert. 33a–34a.    A divided panel of the United States Court of Appeals for the Seventh Circuit reversed. 433 F. 3d 989. The majority read Flast as granting federal taxpayers standing to challenge Executive Branch programs on Establishment Clause grounds so long as the activities are “financed by a congressional appropriation.” 433 F. 3d, at 997. This was the case, the majority concluded, even where “there is no statutory program” enacted by Congress and the funds are “from appropriations for the general administrative expenses, over which the President and other executive branch officials have a degree of discretionary power.” Id. , at 994. According to the majority, a taxpayer has standing to challenge anything done by a federal agency or officer so long as “the marginal or incremental cost to the taxpaying public of the alleged violation of the establishment clause” is greater than “zero.” Id. , at 995.    In dissent, Judge Ripple opined that the majority’s decision reflected a “dramatic expansion of current standing doctrine,” id. , at 997, that “cuts the concept of taxpayer standing loose from its moorings,” id. , at 998. Noting that “[t]he executive can do nothing without general budget appropriations from Congress,” id. , at 1000, he criticized the majority for overstepping Flast ’s requirement that a “plaintiff must bring an attack against a disbursement of public funds made in the exercise of Congress’ taxing and spending power,” 433 F. 3d, at 1000 (emphasis in original).    The Court of Appeals denied en banc review by a vote of seven to four. 447 F. 3d 988 (CA7 2006). Concurring in the denial of rehearing, Chief Judge Flaum expressed doubt about the panel decision, but noted that “the obvious tension which has evolved in this area of jurisprudence … can only be resolved by the Supreme Court.” Ibid. We granted certiorari to resolve this question, 549 U. S. ___ (2006), and we now reverse. II A    Article III of the Constitution limits the judicial power of the United States to the resolution of “Cases” and “Controversies,” and “ ‘Article III standing … enforces the Constitution’s case-or-controversy requirement.’ ” DaimlerChrysler Corp. v. Cuno , 547 U. S. ___, ___ (2006) (slip op., at 6) (quoting Elk Grove Unified School Dist. v. Newdow , 542 U. S. 1 , 11 (2004)). “ ‘No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.’ ” Raines v. Byrd , 521 U. S. 811 , 818 (1997) (quoting Simon v. Eastern Ky. Welfare Rights Organization , 426 U. S. 26 , 37 (1976)).    “[O]ne of the controlling elements in the definition of a case or controversy under Article III” is standing. ASARCO Inc. v. Kadish , 490 U. S. 605 , 613 (1989) (opinion of Kennedy, J.). The requisite elements of Article III standing are well established: “A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright , 468 U. S. 737 , 751 (1984).    The constitutionally mandated standing inquiry is especially important in a case like this one, in which taxpayers seek “to challenge laws of general application where their own injury is not distinct from that suffered in general by other taxpayers or citizens.” ASARCO , supra , at 613 (opinion of Kennedy, J.) . This is because “[t]he judicial power of the United States defined by Art. III is not an unconditioned authority to determine the constitutionality of legislative or executive acts.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. , 454 U. S. 464 , 471 (1982). The federal courts are not empowered to seek out and strike down any governmental act that they deem to be repugnant to the Constitution. Rather, federal courts sit “solely, to decide on the rights of individuals,” Marbury v. Madison , 1 Cranch 137, 170 (1803), and must “ ‘refrai[n] from passing upon the constitutionality of an act … unless obliged to do so in the proper performance of our judicial function, when the question is raised by a party whose interests entitle him to raise it.’ ” Valley Forge , supra , at 474 (quoting Blair v. United States , 250 U. S. 273 , 279 (1919)). As we held over 80 years ago, in another case involving the question of taxpayer standing: “We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. The question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act… . The party who invokes the power must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.” Frothingham v. Mellon , decided with Massachusetts v. Mellon , 262 U. S. 447 , 488 (1923). B    As a general matter, the interest of a federal taxpayer in seeing that Treasury funds are spent in accordance with the Constitution does not give rise to the kind of redressable “personal injury” required for Article III standing. Of course, a taxpayer has standing to challenge the collection of a specific tax assessment as unconstitutional; being forced to pay such a tax causes a real and immediate economic injury to the individual taxpayer. See, e.g. , Follett v. Town of McCormick , 321 U. S. 573 (1944) (invalidating tax on preaching on First Amendment grounds). But that is not the interest on which respondents assert standing here. Rather, their claim is that, having paid lawfully collected taxes into the Federal Treasury at some point, they have a continuing, legally cognizable interest in ensuring that those funds are not used by the Government in a way that violates the Constitution.    We have consistently held that this type of interest is too generalized and attenuated to support Article III standing. In Frothingham , a federal taxpayer sought to challenge federal appropriations for mothers’ and children’s health, arguing that federal involvement in this area intruded on the rights reserved to the States under the Tenth Amendment and would “increase the burden of future taxation and thereby take [the plaintiff’s] property without due process of law.” 262 U. S., at 486. We concluded that the plaintiff lacked the kind of particularized injury required for Article III standing: “[I]nterest in the moneys of the Treasury … is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity.    “The administration of any statute, likely to produce additional taxation to be imposed upon a vast number of taxpayers, the extent of whose several liability is indefinite and constantly changing, is essentially a matter of public and not of individual concern.” Id. , at 487.    Because the interests of the taxpayer are, in essence, the interests of the public-at-large, deciding a constitutional claim based solely on taxpayer standing “would be[,] not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and co-equal department, an authority which plainly we do not possess.” Id. , at 489; see also Alabama Power Co. v. Ickes , 302 U. S. 464 , 478–479 (1938).    In Doremus v. Board of Ed. of Hawthorne , 342 U. S. 429 , 433 (1952), we reaffirmed this principle, explaining that “the interests of a taxpayer in the moneys of the federal treasury are too indeterminable, remote, uncertain and indirect to furnish a basis for an appeal to the preventive powers of the Court over their manner of expenditure.” We therefore rejected a state taxpayer’s claim of standing to challenge a state law authorizing public school teachers to read from the Bible because “the grievance which [the plaintiff] sought to litigate … is not a direct dollars-and-cents injury but is a religious difference.” Id. , at 434. In so doing, we gave effect to the basic constitutional principle that “a plaintiff raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.” Lujan v. Defenders of Wildlife , 504 U. S. 555 , 573–574 (1992).[ Footnote 2 ] C    In Flast , the Court carved out a narrow exception to the general constitutional prohibition against taxpayer standing. The taxpayer-plaintiff in that case challenged the distribution of federal funds to religious schools under the Elementary and Secondary Education Act of 1965, alleging that such aid violated the Establishment Clause. The Court set out a two-part test for determining whether a federal taxpayer has standing to challenge an allegedly unconstitutional expenditure: “First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, §8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute… . Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, §8.” Flast , 392 U. S., at 102–103.    The Court held that the taxpayer-plaintiff in Flast had satisfied both prongs of this test: The plaintiff’s “constitutional challenge [was] made to an exercise by Congress of its power under Art. I, §8, to spend for the general welfare,” and she alleged a violation of the Establishment Clause, which “operates as a specific constitutional limitation upon the exercise by Congress of the taxing and spending power conferred by Art. I, §8.” Id. , at 103–104. III A    Respondents argue that this case falls within the Flast exception, which they read to cover any “expenditure of government funds in violation of the Establishment Clause.” Brief for Respondents 12. But this broad reading fails to observe “the rigor with which the Flast exception to the Frothingham principle ought to be applied.” Valley Forge , 454 U. S., at 481.    The expenditures at issue in Flast were made pursuant to an express congressional mandate and a specific congressional appropriation. The plaintiff in that case challenged disbursements made under the Elementary and Secondary Education Act of 1965, 79 Stat. 27. That Act expressly appropriated the sum of $100 million for fiscal year 1966, §201(b), id. , at 36, and authorized the disbursement of those funds to local educational agencies for the education of low-income students, see Flast , supra , at 86. The Act mandated that local educational agencies receiving such funds “ma[k]e provision for including special educational services and arrangements (such as dual enrollment, educational radio and television, and mobile educational services and equipment)” in which students enrolled in private elementary and secondary schools could participate, §2, 79 Stat. 30–31. In addition, recipient agencies were required to ensure that “library resources, textbooks, and other instructional materials” funded through the grants “be provided on an equitable basis for the use of children and teachers in private elementary and secondary schools,” §203(a)(3)(B), id. , at 37.    The expenditures challenged in Flast , then, were funded by a specific congressional appropriation and were disbursed to private schools (including religiously affiliated schools) pursuant to a direct and unambiguous congressional mandate.[ Footnote 3 ] Indeed, the Flast taxpayer-plaintiff’s constitutional claim was premised on the contention that if the Government’s actions were “ ‘within the authority and intent of the Act, the Act is to that extent unconstitutional and void.’ ” Flast , 392 U. S., at 90. And the judgment reviewed by this Court in Flast solely concerned the question whether “if [the challenged] expenditures are authorized by the Act the statute constitutes a ‘law respecting an establishment of religion’ and law ‘prohibiting the free exercise thereof’ ” under the First Amendment. Flast v. Gardner , 271 F. Supp. 1, 2 (SDNY 1967).    Given that the alleged Establishment Clause violation in Flast was funded by a specific congressional appropriation and was undertaken pursuant to an express congressional mandate, the Court concluded that the taxpayer-plaintiffs had established the requisite “logical link between [their taxpayer] status and the type of legislative enactment attacked.” In the Court’s words, “[t]heir constitutional challenge [was] made to an exercise by Congress of its power under Art. I, §8, to spend for the general welfare.” 392 U. S., at 90. But as this Court later noted, Flast “ limited taxpayer standing to challenges directed ‘only [at] exercises of congressional power’ ” under the Taxing and Spending Clause. Valley Forge , 454 U. S., at 479. B    The link between congressional action and constitutional violation that supported taxpayer standing in Flast is missing here. Respondents do not challenge any specific congressional action or appropriation; nor do they ask the Court to invalidate any congressional enactment or legislatively created program as unconstitutional. That is because the expenditures at issue here were not made pursuant to any Act of Congress. Rather, Congress provided general appropriations to the Executive Branch to fund its day-to-day activities.[ Footnote 4 ] These appropriations did not expressly authorize, direct, or even mention the expenditures of which respondents complain. Those expenditures resulted from executive discretion, not congressional action.    We have never found taxpayer standing under such circumstances. In Valley Forge , we held that a taxpayer lacked standing to challenge “a decision by [the federal Department of Health, Education and Welfare] to transfer a parcel of federal property” to a religious college because this transfer was “not a congressional action.” 454 U. S., at 479. In fact, the connection to congressional action was closer in Valley Forge than it is here, because in that case, the “particular Executive Branch action” being challenged was at least “arguably authorized” by the Federal Property and Administrative Services Act of 1949, which permitted federal agencies to transfer surplus property to private entities. Id. , at 479, n. 15. Nevertheless, we found that the plaintiffs lacked standing because Flast “limited taxpayer standing to challenges directed ‘only [at] exercises of congressional power’ ” under the Taxing and Spending Clause. 454 U. S., at 479 (quoting Flast , supra , at 102).[ Footnote 5 ]    Similarly, in Schlesinger v. Reservists Comm. to Stop the War , 418 U. S. 208 (1974), the taxpayer-plaintiffs contended that the Incompatibility Clause of Article I prohibited Members of Congress from holding commissions in the Armed Forces Reserve. We held that these plaintiffs lacked standing under Flast because they “did not challenge an enactment under Art. I, §8, but rather the action of the Executive Branch in permitting Members of Congress to maintain their Reserve status.” 418 U. S., at 228. This was the case even though the plaintiffs sought to reclaim reservist pay received by those Members—pay that presumably was funded through Congress’ general appropriations for the support of the Armed Forces: “Such relief would follow from the invalidity of Executive action in paying persons who could not lawfully have been reservists, not from the invalidity of the statutes authorizing pay to those who lawfully were Reservists.” Ibid. , n. 17. See also United States v. Richardson , 418 U. S. 166 , 175 (1974) (denying taxpayers standing to compel publication of accounting for the Central Intelligence Agency because “there is no ‘logical nexus’ between the asserted status of taxpayer and the claimed failure of the Congress to require the Executive to supply a more detailed report of the expenditures of that agency”). Bowen v. Kendrick , 487 U. S. 589 (1988), on which respondents rely heavily, is not to the contrary. In that case, we held that the taxpayer-plaintiffs had standing to mount an as-applied challenge to the Adolescent Family Life Act (AFLA), which authorized federal grants to private community service groups including religious organizations. The Court found “a sufficient nexus between the taxpayer’s standing as a taxpayer and the congressional exercise of taxing and spending power,” notwithstanding the fact that the “the funding authorized by Congress ha[d] flowed through and been administered” by an Executive Branch official. Id. , at 620, 619.    But the key to that conclusion was the Court’s recognition that AFLA was “at heart a program of disbursement of funds pursuant to Congress’ taxing and spending powers,” and that the plaintiffs’ claims “call[ed] into question how the funds authorized by Congress [were] being disbursed pursuant to the AFLA’s statutory mandate .” Id. , at 619–620 (emphasis added). AFLA not only expressly authorized and appropriated specific funds for grant-making, it also expressly contemplated that some of those moneys might go to projects involving religious groups. See id. , at 595–596; see also id. , at 623 (O’Connor, J., concurring) (noting the “partnership between governmental and religious institutions contemplated by the AFLA”).[ Footnote 6 ] Unlike this case, Kendrick involved a “program of disbursement of funds pursuant to Congress’ taxing and spending powers” that “Congress had created,” “authorized,” and “mandate[d].” Id. , at 619–620.    Respondents attempt to paint their lawsuit as a Kendrick -style as-applied challenge, but this effort is unavailing for the simple reason that they can cite no statute whose application they challenge. The best they can do is to point to unspecified, lump-sum “Congressional budget appropriations” for the general use of the Executive Branch—the allocation of which “is a[n] administrative decision traditionally regarded as committed to agency discretion.” Lincoln v. Vigil , 508 U. S. 182 , 192 (1993). Characterizing this case as an “as-applied challenge” to these general appropriations statutes would stretch the meaning of that term past its breaking point. It cannot be that every legal challenge to a discretionary Executive Branch action implicates the constitutionality of the underlying congressional appropriation. When a criminal defendant charges that a federal agent carried out an unreasonable search or seizure, we do not view that claim as an as-applied challenge to the constitutionality of the statute appropriating funds for the Federal Bureau of Investigation. Respondents have not established why the discretionary Executive Branch expenditures here, which are similarly funded by no-strings, lump-sum appropriations, should be viewed any differently.[ Footnote 7 ]    In short, this case falls outside the “the narrow exception” that Flast “created to the general rule against taxpayer standing established in Frothingham .” Kendrick , supra , at 618. Because the expenditures that respondents challenge were not expressly authorized or mandated by any specific congressional enactment, respondents’ lawsuit is not directed at an exercise of congressional power, see Valley Forge , 454 U. S., at 479, and thus lacks the requisite “logical nexus” between taxpayer status “and the type of legislative enactment attacked.” Flast , 392 U. S., at 102. IV A 1    Respondents argue that it is “arbitrary” to distinguish between money spent pursuant to congressional mandate and expenditures made in the course of executive discretion, because “the injury to taxpayers in both situations is the very injury targeted by the Establishment Clause and Flast —the expenditure for the support of religion of funds exacted from taxpayers.” Brief for Respondents 13. The panel majority below agreed, based on its observation that “there is so much that executive officials could do to promote religion in ways forbidden by the establishment clause.” 433 F. 3d, at 995.    But Flast focused on congressional action, and we must decline this invitation to extend its holding to encompass discretionary Executive Branch expenditures. Flast itself distinguished the “incidental expenditure of tax funds in the administration of an essentially regulatory statute,” Flast , supra , at 102, and we have subsequently rejected the view that taxpayer standing “extends to ‘the Government as a whole, regardless of which branch is at work in a particular instance,’ ” Valley Forge , supra , at 484, n. 20. Moreover, we have repeatedly emphasized that the Flast exception has a “narrow application in our precedent,” Cuno , 547 U. S., at ___ (slip op., at 12), that only “slightly lowered” the bar on taxpayer standing, Richardson , 418 U. S., at 173, and that must be applied with “rigor,” Valley Forge , supra , at 481.    It is significant that, in the four decades since its creation, the Flast exception has largely been confined to its facts. We have declined to lower the taxpayer standing bar in suits alleging violations of any constitutional provision apart from the Establishment Clause. See Tilton v. Richardson , 403 U. S. 672 (1971) (no taxpayer standing to sue under Free Exercise Clause of First Amendment); Richardson , 418 U. S., at 175 (no taxpayer standing to sue under Statement and Account Clause of Art. I); Schlesinger , 418 U. S., at 228 (no taxpayer standing to sue under Incompatibility Clause of Art. I); Cuno , supra, at ___ (slip op., at 13) (no taxpayer standing to sue under Commerce Clause). We have similarly refused to extend Flast to permit taxpayer standing for Establishment Clause challenges that do not implicate Congress’ taxing and spending power. See Valley Forge , supra , at 479–482 (no taxpayer standing to challenge Executive Branch action taken pursuant to Property Clause of Art. IV); see also District of Columbia Common Cause v. District of Columbia , 858 F. 2d 1, 3–4 (CADC 1988); In re United States Catholic Conference , 885 F. 2d 1020, 1028 (CA2 1989). In effect, we have adopted the position set forth by Justice Powell in his concurrence in Richardson and have “limit[ed] the expansion of federal taxpayer and citizen standing in the absence of specific statutory authorization to an outer boundary drawn by the results in Flast … .” 418 U. S., at 196. 2    While respondents argue that Executive Branch expenditures in support of religion are no different from legislative extractions, Flast itself rejected this equivalence: “It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute.” 392 U. S., at 102.    Because almost all Executive Branch activity is ultimately funded by some congressional appropriation, extending the Flast exception to purely executive expenditures would effectively subject every federal action—be it a conference, proclamation or speech—to Establishment Clause challenge by any taxpayer in federal court. To see the wide swathe of activity that respondents’ proposed rule would cover, one need look no further than the amended complaint in this action, which focuses largely on speeches and presentations made by Executive Branch officials. See, e.g. , Amended Complaint ¶32, App. to Pet. for Cert. 73a (challenging Executive Branch officials’ “support of national and regional conferences”); id. , ¶33, App. to Pet. for Cert. 73a–75a (challenging content of speech by Secretary of Education); id. , ¶¶35, 36, App. to Pet. for Cert. 76a (challenging content of Presidential speeches); id. , ¶41, App. to Pet. for Cert. 77a (challenging Executive Branch officials’ “public appearances” and “speeches”). Such a broad reading would ignore the first prong of Flast ’s standing test, which requires “a logical link between [taxpayer] status and the type of legislative enactment attacked.” 392 U. S., at 102.    It would also raise serious separation-of-powers concerns. As we have recognized, Flast itself gave too little weight to these concerns. By framing the standing question solely in terms of whether the dispute would be presented in an adversary context and in a form traditionally viewed as capable of judicial resolution, Flast “failed to recognize that this doctrine has a separation-of-powers component, which keeps courts within certain traditional bounds vis-À-vis the other branches, concrete adverseness or not.” Lewis v. Casey , 518 U. S. 343 , 353, n. 3 (1996); see also Valley Forge , 454 U. S., at 471. Respondents’ position, if adopted, would repeat and compound this mistake.    The constitutional requirements for federal-court jurisdiction—including the standing requirements and Article III—“are an essential ingredient of separation and equilibration of powers.” Steel Co. v. Citizens for Better Environment , 523 U. S. 83 , 101 (1998). “Relaxation of standing requirements is directly related to the expansion of judicial power,” and lowering the taxpayer standing bar to permit challenges of purely executive actions “would significantly alter the allocation of power at the national level, with a shift away from a democratic form of government.” Richardson , 418 U. S., at 188 (Powell, J., concurring). The rule respondents propose would enlist the federal courts to superintend, at the behest of any federal taxpayer, the speeches, statements, and myriad daily activities of the President, his staff, and other Executive Branch officials. This would “be quite at odds with … Flast ’s own promise that it would not transform federal courts into forums for taxpayers’ ‘generalized grievances’ ” about the conduct of government, Cuno , 547 U. S., at ___ (slip op., at 12) (quoting Flast , supra , at 106), and would “open the Judiciary to an arguable charge of providing ‘government by injunction,’ ” Schlesinger , 418 U. S., at 222. It would deputize federal courts as “ ‘virtually continuing monitors of the wisdom and soundness of Executive action,’ ” and that, most emphatically, “is not the role of the judiciary.” Allen , 468 U. S., at 760 (quoting Laird v. Tatum , 408 U. S. 1 , 15 (1972)). 3    Both the Court of Appeals and respondents implicitly recognize that unqualified federal taxpayer standing to assert Establishment Clause claims would go too far, but neither the Court of Appeals nor respondents has identified a workable limitation. The Court of Appeals, as noted, conceded only that a taxpayer would lack standing where “the marginal or incremental cost to the taxpaying public of the alleged violation of the establishment clause” is “zero.” 433 F. 3d, at 995. Applying this rule, the Court of Appeals opined that a taxpayer would not have standing to challenge a President’s favorable reference to religion in a State of the Union address because the costs associated with the speech “would be no greater merely because the President had mentioned Moses rather than John Stuart Mill.” Ibid. There is reason to question whether the Court of Appeals’ intended for its zero-marginal-cost test to be taken literally, because the court, without any apparent inquiry into the costs of Secretary Paige’s speech, went on to agree that the plaintiffs lacked standing to challenge that speech. Id. , at 996. But if we take the Court of Appeals’ test literally— i.e. , that any marginal cost greater than zero suffices—taxpayers might well have standing to challenge some (and perhaps many) speeches. As Judge Easterbrook observed: “The total cost of presidential proclamations and speeches by Cabinet officers that touch on religion (Thanksgiving and several other holidays) surely exceeds $500,000 annually; it may cost that much to use Air Force One and send a Secret Service detail to a single speaking engagement.” 447 F. 3d, at 989–990 (concurring in denial of rehearing en banc). At a minimum, the Court of Appeals’ approach (asking whether the marginal cost exceeded zero) would surely create difficult and uncomfortable line-drawing problems. Suppose that it is alleged that a speech writer or other staff member spent extra time doing research for the purpose of including “religious imagery” in a speech. Suppose that a President or a Cabinet officer attends or speaks at a prayer breakfast and that the time spent was time that would have otherwise been spent on secular work.    Respondents take a somewhat different approach, contending that their proposed expansion of Flast would be manageable because they would require that a challenged expenditure be “fairly traceable to the conduct alleged to violate the Establishment Clause.” Brief for Respondents 17. Applying this test, they argue, would “scree[n] out … challenge[s to] the content of one particular speech, for example the State of the Union address, as an Establishment Clause violation.” Id. , at 21.    We find little comfort in this vague and ill-defined test. As an initial matter, respondents fail to explain why the (often substantial) costs that attend, for example, a Presidential address are any less “traceable” than the expenses related to the Executive Branch statements and conferences at issue here. Indeed, respondents concede that even lawsuits involving de minimis amounts of taxpayer money can pass their proposed “traceability” test. Id. , at 20, n. 6.    Moreover, the “traceability” inquiry, depending on how it is framed, would appear to prove either too little or too much. If the question is whether an allegedly unconstitutional executive action can somehow be traced to taxpayer funds in general , the answer will always be yes: Almost all Executive Branch activities are ultimately funded by some congressional appropriation, whether general or specific, which is in turn financed by tax receipts. If, on the other hand, the question is whether the challenged action can be traced to the contributions of a particular taxpayer-plaintiff, the answer will almost always be no: As we recognized in Frothingham , the interest of any individual taxpayer in a particular federal expenditure “is comparatively minute and indeterminable … and constantly changing.” 262 U. S., at 487. B    Respondents set out a parade of horribles that they claim could occur if Flast is not extended to discretionary Executive Branch expenditures. For example, they say, a federal agency could use its discretionary funds to build a house of worship or to hire clergy of one denomination and send them out to spread their faith. Or an agency could use its funds to make bulk purchases of Stars of David, crucifixes, or depictions of the star and crescent for use in its offices or for distribution to the employees or the general public. Of course, none of these things has happened, even though Flast has not previously been expanded in the way that respondents urge. In the unlikely event that any of these executive actions did take place, Congress could quickly step in. And respondents make no effort to show that these improbable abuses could not be challenged in federal court by plaintiffs who would possess standing based on grounds other than taxpayer standing.                                        C    Over the years, Flast has been defended by some and criticized by others. But the present case does not require us to reconsider that precedent. The Court of Appeals did not apply Flast ; it extended Flast . It is a necessary concomitant of the doctrine of stare decisis that a precedent is not always expanded to the limit of its logic. That was the approach that then-Justice Rehnquist took in his opinion for the Court in Valley Forge , and it is the approach we take here. We do not extend Flast , but we also do not overrule it. We leave Flast as we found it.    Justice Scalia says that we must either overrule Flast or extend it to the limits of its logic. His position is not “[in]sane,” inconsistent with the “rule of law,” or “utterly meaningless.” Post , at 1 (opinion concurring in judgment). But it is wrong. Justice Scalia does not seriously dispute either (1) that Flast itself spoke in terms of “legislative enactment[s]” and “exercises of congressional power,” 392 U. S., at 102, or (2) that in the four decades since Flast was decided, we have never extended its narrow exception to a purely discretionary Executive Branch expenditure. We need go no further to decide this case. Relying on the provision of the Constitution that limits our role to resolving the “Cases” and “Controversies” before us, we decide only the case at hand. *  *  *    For these reasons, the judgment of the Court of Appeals for the Seventh Circuit is reversed. It is so ordered. Footnote 1 See, e.g. , Exec. Order No. 13198, 3 CFR 750 (2001 Comp.); Exec. Order No. 13280, 3 CFR 262 (2002 Comp.); Exec. Order No. 13342, 3 CFR 180 (2004 Comp.); Exec. Order No. 13397, 71 Fed. Reg. 12275 (2006). Footnote 2 See also DaimlerChrysler Corp. v. Cuno , 547 U. S. ___, ___ (2006) (slip op., at 8) (“Standing has been rejected” where “the alleged injury is not ‘concrete and particularized,’ … but instead a grievance the taxpayer ‘suffers in some indefinite way in common with people generally’ ” (quoting Defenders of Wildlife , 504 U. S., at 560)); ASARCO Inc. v. Kadish , 490 U. S. 605 , 616 (1989) (opinion of Kennedy, J.) (“[G]eneralized grievances brought by concerned citizens … are not cognizable in the federal courts”); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. , 454 U. S. 464 , 483 (1982) (“[A]ssertion of a right to a particular kind of Government conduct, which the Government has violated by acting differently, cannot alone satisfy the requirements of Art. III”); United States v. Richardson , 418 U. S. 166 , 174 (1974) (“[A] taxpayer may not ‘employ a federal court as a forum in which to air his generalized grievances about the conduct of government or the allocation of power in the Federal System’ ” (quoting Flast v. Cohen , 392 U. S. 83 , 114 (1968) (Stewart, J., concurring); some internal quotation marks omitted); Schlesinger v. Reservists Comm. to Stop the War , 418 U. S. 208 , 217 (1974) (“Respondents seek to have the Judicial Branch compel the Executive Branch to act in conformity with the Incompatibility Clause [of the Constitution], an interest shared by all citizens… . And that claimed nonobservance, standing alone, would adversely affect only the generalized interest of all citizens in constitutional governance, and that is an abstract injury”); Frothingham v. Mellon , decided with Massachusetts v. Mellon , 262 U. S. 447 , 488 (1923) (“The party who invokes the power [of judicial review] must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally”). Footnote 3 At around the time the Act was passed and Flast was decided, the great majority of nonpublic elementary and secondary schools in the United States were associated with a church. In 1965–1966, for example, 91.1 percent of all nonpublic elementary schools and 78.2 percent of all nonpublic secondary schools in the United States were religiously affiliated. Dept. of Health, Education, and Welfare, Statistics of Nonpublic Elementary and Secondary Schools 1965–66, p. 7 (1968). Congress surely understood that much of the aid mandated by the statute would find its way to religious schools. Footnote 4 See, e.g. , 119 Stat. 2472 (appropriating $53,830,000 “to be available for allocation within the Executive Office of the President”). Footnote 5 Valley Forge also relied on a second rationale: that the authorizing Act was an exercise of Congress’ power under the Property Clause of Art. IV, §3, cl. 2, and not the Taxing and Spending Clause of Art. I, §8. 454 U. S., at 480. But this conclusion merely provided an additional—“and perhaps redundan[t],” ibid. —basis for denying a claim of standing that was already foreclosed because it was not based on any congressional action. Footnote 6 For example, the statute noted that the problems of adolescent premarital sex and pregnancy “are best approached through a variety of integrated and essential services provided to adolescents and their families” by “religious and charitable organizations,” among other groups. 42 U. S. C. §300z(a)(8)(B) (1982 ed.). It went on to mandate that federally provided services in that area should “emphasize the provision of support by other family members, religious and charitable organizations, voluntary associations, and other groups.” §300z(a)(10)(c). And it directed that demonstration projects funded by the government “shall … make use of support systems” such as religious organizations, §300z–2(a), and required grant applicants to describe how they would “involve religious and charitable organizations” in their projects, §300z–5(a)(21)(B). Footnote 7 Nor is it relevant that Congress may have informally “earmarked” portions of its general Executive Branch appropriations to fund the offices and centers whose expenditures are at issue here. See, e.g. , H. R. Rep. No. 107–342, p. 108 (2001). “[A] fundamental principle of appropriations law is that where ‘Congress merely appropriates lump-sum amounts without statutorily restricting what can be done with those funds, a clear inference arises that it does not intend to impose legally binding restrictions, and indicia in committee reports and other legislative history as to how the funds should or are expected to be spent do not establish any legal requirements on’ the agency.” Lincoln , 508 U. S., at 192 (quoting In re LTV Aerospace Corp. , 55 Comp. Gen. 307, 319 (1975)); see also TVA v. Hill , 437 U. S. 153 , 191 (1978) (“Expressions of committees dealing with requests for appropriations cannot be equated with statutes enacted by Congress”). KENNEDY, J., CONCURRING HEIN V. FREEDOM FROM RELIGION FOUNDATION, INC. 551 U. S. ____ (2007) SUPREME COURT OF THE UNITED STATES NO. 06-157 JAY F. HEIN, DIRECTOR, WHITE HOUSE OFFICE OF FAITH-BASED AND COMMUNITY INITIATIVES, et al., PETITIONERS v. FREEDOM FROM RELI- GION FOUNDATION, INC., et al. on writ of certiorari to the united states court of appeals for the seventh circuit [June 25, 2007]    Justice Kennedy, concurring.    The separation-of-powers design in the Constitution is implemented, among other means, by Article III’s case-or-controversy limitation and the resulting requirement of standing. See, e.g., Lujan v. Defenders of Wildlife , 504 U. S. 555 , 559–560 (1992). The Court’s decision in Flast v. Cohen , 392 U. S. 83 (1968), and in later cases applying it, must be interpreted as respecting separation-of-powers principles but acknowledging as well that these principles, in some cases, must accommodate the First Amendment’s Establishment Clause. The clause expresses the Constitution’s special concern that freedom of conscience not be compromised by government taxing and spending in support of religion. In my view the result reached in Flast is correct and should not be called into question. For the reasons set forth by Justice Alito, however, Flast should not be extended to permit taxpayer standing in the instant matter. And I join his opinion in full.    Respondents’ amended complaint challenged the religious nature of national and regional conferences that promoted President Bush’s Faith-Based and Community Initiatives. See App. to Pet. for Cert. 73a–77a. To support the allegation respondents pointed to speeches given by the President and other executive officers, speeches with religious references. Id., at 73a–76a. The complaint relies on respondents’ taxpayer status as the sole basis for standing to maintain the suit but points to no specific use of Congress’ taxing and spending power other than general appropriations to fund the administration of the Executive Branch. Id., at 71a–73a. Flast established a “narrow exception” to the rule against taxpayer standing. Bowen v. Kendrick , 487 U. S. 589 , 618 (1988). To find standing in the circumstances of this case would make the narrow exception boundless. The public events and public speeches respondents seek to call in question are part of the open discussion essential to democratic self-government. The Executive Branch should be free, as a general matter, to discover new ideas, to understand pressing public demands, and to find creative responses to address governmental concerns. The exchange of ideas between and among the State and Federal Governments and their manifold, diverse constituencies sustains a free society. Permitting any and all taxpayers to challenge the content of these prototypical executive operations and dialogues would lead to judicial intervention so far exceeding traditional boundaries on the Judiciary that there would arise a real danger of judicial oversight of executive duties. The burden of discovery to ascertain if relief is justified in these potentially innumerable cases would risk altering the free exchange of ideas and information. And were this constant supervision to take place the courts would soon assume the role of speech editors for communications issued by executive officials and event planners for meetings they hold.    The courts must be reluctant to expand their authority by requiring intrusive and unremitting judicial management of the way the Executive Branch performs its duties. The Court has refused to establish a constitutional rule that would require or allow “permanent judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers.” Garcetti v. Ceballos , 547 U. S. ___, ___ (2006) (slip op., at 11); see also Cheney v. United States Dist. Court for D. C. , 542 U. S. 367 , 382 (2004) (noting that “separation-of-powers considerations should inform a court of appeals’ evaluation of a mandamus petition involving the President or the Vice President” and that “mandamus standards are broad enough … to prevent a lower court from interfering with a coequal branch’s ability to discharge its constitutional responsibilities”). In the Article III context the Court explained that concerns based on separation of powers “counsel[ed] against recognizing standing in a case brought … to seek a restructuring of the apparatus established by the Executive Branch to fulfill its legal duties.” Allen v. Wright , 468 U. S. 737 , 761 (1984).    The same principle applies here. The Court should not authorize the constant intrusion upon the executive realm that would result from granting taxpayer standing in the instant case. As Justice Alito explains in detail, the Court’s precedents do not require it to do so. The separation-of-powers concerns implicated by intrusive judicial regulation of day-to-day executive operations reinforce his interpretation of Flast ’s framework. Cf. Allen , supra, at 761, n. 26 (relying “on separation of powers principles to interpret the ‘fairly traceable’ component of the standing requirement”).    It must be remembered that, even where parties have no standing to sue, members of the Legislative and Executive Branches are not excused from making constitutional determinations in the regular course of their duties. Government officials must make a conscious decision to obey the Constitution whether or not their acts can be challenged in a court of law and then must conform their actions to these principled determinations. SCALIA, J., CONCURRING IN JUDGMENT HEIN V. FREEDOM FROM RELIGION FOUNDATION, INC. 551 U. S. ____ (2007) SUPREME COURT OF THE UNITED STATES NO. 06-157 JAY F. HEIN, DIRECTOR, WHITE HOUSE OFFICE OF FAITH-BASED AND COMMUNITY INITIATIVES, et al., PETITIONERS v. FREEDOM FROM RELI- GION FOUNDATION, INC., et al. on writ of certiorari to the united states court of appeals for the seventh circuit [June 25, 2007]    Justice Scalia, with whom Justice Thomas joins, concurring in the judgment.    Today’s opinion is, in one significant respect, entirely consistent with our previous cases addressing taxpayer standing to raise Establishment Clause challenges to government expenditures. Unfortunately, the consistency lies in the creation of utterly meaningless distinctions which separate the case at hand from the precedents that have come out differently, but which cannot possibly be (in any sane world) the reason it comes out differently. If this Court is to decide cases by rule of law rather than show of hands, we must surrender to logic and choose sides: Either Flast v. Cohen , 392 U. S. 83 (1968), should be applied to (at a minimum) all challenges to the governmental expenditure of general tax revenues in a manner alleged to violate a constitutional provision specifically limiting the taxing and spending power, or Flast should be repudiated. For me, the choice is easy. Flast is wholly irreconcilable with the Article III restrictions on federal-court jurisdiction that this Court has repeatedly confirmed are embodied in the doctrine of standing. I A    There is a simple reason why our taxpayer-standing cases involving Establishment Clause challenges to government expenditures are notoriously inconsistent: We have inconsistently described the first element of the “irreducible constitutional minimum of standing,” which minimum consists of (1) a “concrete and particularized” “ ‘injury in fact’ ” that is (2) fairly traceable to the defendant’s alleged unlawful conduct and (3) likely to be redressed by a favorable decision. See Lujan v. Defenders of Wildlife , 504 U. S. 555 , 560–561 (1992). We have alternately relied on two entirely distinct conceptions of injury in fact, which for convenience I will call “Wallet Injury” and “Psychic Injury.”    Wallet Injury is the type of concrete and particularized injury one would expect to be asserted in a taxpayer suit, namely, a claim that the plaintiff’s tax liability is higher than it would be, but for the allegedly unlawful government action. The stumbling block for suits challenging government expenditures based on this conventional type of injury is quite predictable. The plaintiff cannot satisfy the traceability and redressability prongs of standing. It is uncertain what the plaintiff’s tax bill would have been had the allegedly forbidden expenditure not been made, and it is even more speculative whether the government will, in response to an adverse court decision, lower taxes rather than spend the funds in some other manner.    Psychic Injury, on the other hand, has nothing to do with the plaintiff’s tax liability. Instead, the injury consists of the taxpayer’s mental displeasure that money extracted from him is being spent in an unlawful manner. This shift in focus eliminates traceability and redressability problems. Psychic Injury is directly traceable to the improper use of taxpayer funds, and it is redressed when the improper use is enjoined, regardless of whether that injunction affects the taxpayer’s purse. Flast and the cases following its teaching have invoked a peculiarly restricted version of Psychic Injury, permitting taxpayer displeasure over unconstitutional spending to support standing only if the constitutional provision allegedly violated is a specific limitation on the taxing and spending power. Restricted or not, this conceptualizing of injury in fact in purely mental terms conflicts squarely with the familiar proposition that a plaintiff lacks a concrete and particularized injury when his only complaint is the generalized grievance that the law is being violated. As we reaffirmed unanimously just this Term: “ ‘We have consistently held that a plaintiff raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.’ ” Lance v. Coffman , 549 U. S. ___, ___ (2007) (per curiam) (slip op., at 3) (quoting Lujan , supra, at 573–574).    As the following review of our cases demonstrates, we initially denied taxpayer standing based on Wallet Injury, but then found standing in some later cases based on the limited version of Psychic Injury described above. The basic logical flaw in our cases is thus twofold: We have never explained why Psychic Injury was insufficient in the cases in which standing was denied, and we have never explained why Psychic Injury, however limited, is cognizable under Article III. B 1    Two pre- Flast cases are of critical importance. In Frothingham v. Mellon , decided with Massachusetts v. Mellon, 262 U. S. 447 (1923), the taxpayer challenged the constitutionality of the Maternity Act of 1921, alleging in part that the federal funding provided by the Act was not authorized by any provision of the Constitution. See id. , at 476–477 (argument for Frothingham), 479–480 (opinion of the Court). The Court held that the taxpayer lacked standing. After emphasizing that “the effect upon future taxation … of any payment out of [Treasury] funds” was “remote, fluctuating and uncertain,” Frothingham , 262 U. S., at 487, the Court concluded that “[t]he party who invokes the power [of judicial review] must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally,” id. , at 488. The Court was thus describing the traceability and redressability problems with Wallet Injury, and rejecting Psychic Injury as a generalized grievance rather than concrete and particularized harm.    The second significant pre- Flast case is Doremus v. Board of Ed. of Hawthorne , 342 U. S. 429 (1952). There the taxpayers challenged under the Establishment Clause a state law requiring public-school teachers to read the Bible at the beginning of each school day. Id. , at 430, 433.[ Footnote 1 ] Relying extensively on Frothingham , the Court denied standing. After first emphasizing that there was no allegation that the Bible reading increased the plaintiffs’ taxes or the cost of running the schools, 342 U. S., at 433, and then reaffirming that taxpayers must allege more than an indefinite injury suffered in common with people generally, id. , at 434, the Court concluded that the “grievance which [the plaintiffs] sought to litigate here is not a direct dollars-and-cents injury but is a religious difference,” ibid . In addition to reiterating Frothingham ’s description of the unavoidable obstacles to recovery under a taxpayer theory of Wallet Injury, Doremus rejected Psychic Injury in unmistakable terms. The opinion’s deprecation of a mere “religious difference,” in contrast to a real “dollars-and-cents injury,” can only be understood as a flat denial of standing supported only by taxpayer disapproval of the unconstitutional use of tax funds. If the Court had thought that Psychic Injury was a permissible basis for standing, it should have sufficed (as the dissenting Justices in Doremus suggested, see 342 U. S., at 435 (opinion of Douglas, J.)) that public employees were being paid in part to violate the Establishment Clause. 2    Sixteen years after Doremus , the Court took a pivotal turn. In Flast v. Cohen , 392 U. S. 83 (1968), taxpayers challenged the Elementary and Secondary Education Act of 1965, alleging that funds expended pursuant to the Act were being used to support parochial schools. Id. , at 85–87. They argued that either the Act itself proscribed such expenditures or that the Act violated the Establishment Clause. Id. , at 87, 90. The Court held that the taxpayers had standing. Purportedly in order to determine whether taxpayers have the “personal stake and interest” necessary to satisfy Article III, a two-pronged nexus test was invented. Id. , at 101–102.    The first prong required the taxpayer to “establish a logical link between [taxpayer] status and the type of legislative enactment.” Id. , at 102. The Court described what that meant as follows: “[A] taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, §8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute. This requirement is consistent with the limitation imposed upon state-taxpayer standing in federal courts in Doremus … .” Ibid . The second prong required the taxpayer to “establish a nexus between [taxpayer] status and the precise nature of the constitutional infringement alleged.” Ibid . The Court elaborated that this required “the taxpayer [to] show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, §8.” Id ., at 102–103. The Court held that the Establishment Clause was the type of specific limitation on the taxing and spending power that it had in mind because “one of the specific evils feared by” the Framers of that Clause was that the taxing and spending power would be used to favor one religion over another or to support religion generally. Id. , at 103–104 (relying exclusively upon Madison’s famous Memorial and Remonstrance Against Religious Assessments).    Because both prongs of its newly minted two-part test were satisfied, Flast held that the taxpayers had standing. Wallet Injury could not possibly have been the basis for this conclusion, since the taxpayers in Flast were no more able to prove that success on the merits would reduce their tax burden than was the taxpayer in Frothingham . Thus, Flast relied on Psychic Injury to support standing, describing the “injury” as the taxpayer’s allegation that “his tax money is being extracted and spent in violation of specific constitutional protections against such abuses of legislative power.” 392 U. S., at 106.    But that created a problem: If the taxpayers in Flast had standing based on Psychic Injury, and without regard to the effect of the litigation on their ultimate tax liability, why did not the taxpayers in Doremus and Frothingham have standing on a similar basis?    Enter the magical two-pronged nexus test. It has often been pointed out, and never refuted, that the criteria in Flast ’s two-part test are entirely unrelated to the purported goal of ensuring that the plaintiff has a sufficient “stake in the outcome of the controversy.” See Flast , 392 U. S., at 121–124 (Harlan, J., dissenting); see also id. , at 107 (Douglas, J., concurring); United States v. Richardson , 418 U. S. 166 , 183 (1974) (Powell, J., concurring). In truth, the test was designed for a quite different goal. Each prong was meant to disqualify from standing one of the two prior cases that would otherwise contradict the holding of Flast. The first prong distinguished Doremus as involving a challenge to an “incidental expenditure of tax funds in the administration of an essentially regulatory statute,” rather than a challenge to a taxing and spending statute. See 392 U. S., at 102. Did the Court proffer any reason why a taxpayer’s Psychic Injury is less concrete and particularized, traceable, or redressable when the challenged expenditures are incidental to an essentially regulatory statute (whatever that means)? Not at all. Doremus had to be evaded, and so it was. In reality, of course, there is simply no material difference between Flast and Doremus as far as Psychic Injury is concerned: If taxpayers upset with the government’s giving money to parochial schools had standing to sue, so should the taxpayers who disapproved of the government’s paying public-school teachers to read the Bible.[ Footnote 2 ] Flast ’s dispatching of Frothingham via the second prong of the nexus test was only marginally less disingenuous. Not only does the relationship of the allegedly violated provision to the taxing and spending power have no bearing upon the concreteness or particularity of the Psychic Injury, see Part III, infra , but the existence of that relationship does not even genuinely distinguish Flast from Frothingham. It is impossible to maintain that the Establishment Clause is a more direct limitation on the taxing and spending power than the constitutional limitation invoked in Frothingham , which is contained within the very provision creating the power to tax and spend . Article I, §8, cl. 1, provides: “The Congress shall have Power To lay and collect Taxes … , to pay the Debts and provide for the common Defence and general Welfare of the United States.” (Emphasis added.) Though unmentioned in Flast , it was precisely this limitation upon the permissible purposes of taxing and spending upon which Mrs. Frothingham relied. See, e.g., Brief for Appellant in Frothingham, O. T. 1922, No. 962, p. 68 (“[T]he words ‘provide for the common defence and general welfare of the United States’ are used as limitations on the taxing power ”); id. , at 26–81 (discussing the general welfare limitation at length). 3    Coherence and candor have fared no better in our later taxpayer-standing cases. The three of them containing lengthy discussion of the Establishment Clause warrant analysis. Flast was dismissively and unpersuasively distinguished just 13 years later in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. , 454 U. S. 464 (1982). The taxpayers there challenged the decision of the Department of Health, Education, and Welfare to give a 77-acre tract of Government property, worth over half a million dollars, to a religious organization. Id. , at 468. The Court, adhering to the strict letter of Flast ’s two-pronged nexus test, held that the taxpayers lacked standing. Flast ’s first prong was not satisfied: Rather than challenging a congressional taxing and spending statute, the plaintiffs were attacking an agency decision to transfer federal property pursuant to Congress’s power under the Property Clause, Art. IV, §3, cl. 2. 454 U. S., at 479–480.    In distinguishing between the Spending Clause and the Property Clause, Valley Forge achieved the seemingly impossible: It surpassed the high bar for irrationality set by Flast ’s distinguishing of Doremus and Frothingham . Like the dissenters in Valley Forge , see 454 U. S., at 511–512 (opinion of Brennan, J.); id. , at 513–514 (opinion of Stevens, J.), I cannot fathom why Article III standing should turn on whether the government enables a religious organization to obtain real estate by giving it a check drawn from general tax revenues or instead by buying the property itself and then transferring title.    While Valley Forge ’s application of the first prong to distinguish Flast was unpersuasive, the Court was at least not trying to hide the ball. Its holding was forthrightly based on a resounding rejection of the very concept of Psychic Injury: “[Plaintiffs] fail to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees. That is not an injury sufficient to confer standing under Art. III, even though the disagreement is phrased in constitutional terms. It is evident that respondents are firmly committed to the constitutional principle of separation of church and State, but standing is not measured by the intensity of the litigant’s interest or the fervor of his advocacy.” 454 U. S., at 485–486 (emphasis omitted). Of course, in keeping with what was to become the shameful tradition of our taxpayer-standing cases, the Court’s candor about the inadequacy of Psychic Injury was combined with a notable silence as to why Flast itself was not doomed.    A mere six years later, Flast was resuscitated in Bowen v. Kendrick , 487 U. S. 589 (1988). The taxpayers there brought facial and as-applied Establishment Clause challenges to the Adolescent Family Life Act (AFLA), which was a congressional scheme that provided grants to public or nonprofit private organizations to combat premarital adolescent pregnancy and sex. Id. , at 593. The as-applied challenge focused on whether particular grantees selected by the Secretary of Health and Human Services were constitutionally permissible recipients. Id. , at 620–622. The Solicitor General argued that, under Valley Forge ’s application of Flast ’s first prong, the taxpayers lacked standing for their as-applied claim because that claim was really a challenge to executive decisionmaking, not to Congress’s exercise of its taxing and spending power. 487 U. S., at 618–619. The Court rejected this contention, holding that the taxpayers’ as-applied claim was still a challenge to Congress’s taxing and spending power even though disbursement of the funds authorized by Congress had been administered by the Secretary. Id. , at 619. Kendrick , like Flast before it, was obviously based on Psychic Injury: The taxpayers could not possibly make, and did not attempt to make, the showing required for Wallet Injury. But by relying on Psychic Injury, Kendrick perfectly revealed the incompatibility of that concept with the outcome in Doremus . Just as Kendrick did not care whether the appropriated funds would have been spent anyway—given to a different, permissible recipient—so also Doremus should not have cared that the teachers would likely receive the same salary once their classroom activities were limited to secular conduct. Flast and Kendrick ’s acceptance of Psychic Injury is fundamentally at odds with Frothingham , Doremus , and Valley Forge .    Which brings me to the final case worthy of mention. Last Term, in DaimlerChrysler Corp. v. Cuno , 547 U. S. ___ (2006), we concisely confirmed that Flast was based on Psychic Injury. The taxpayers in that case sought to rely on Flast to raise a Commerce Clause challenge to a state franchise tax credit. 547 U. S., at ___ (slip op., at 11). In rejecting the analogy and denying standing, we described Flast as follows: “The Court … understood the ‘injury’ alleged in Establishment Clause challenges to federal spending to be the very ‘extract[ion] and spen[ding]’ of ‘tax money’ in aid of religion alleged by a plaintiff. And an injunction against the spending would of course redress that injury, regardless of whether lawmakers would dispose of the savings in a way that would benefit the taxpayer-plaintiffs personally.” 547 U. S., at ___ (slip op., at 13) (citation omitted; some alterations in original). What Cuno ’s conceptualization of Flast reveals is that there are only two logical routes available to this Court. We must initially decide whether Psychic Injury is consistent with Article III. If it is, we should apply Flast to all challenges to government expenditures in violation of constitutional provisions that specifically limit the taxing and spending power; if it is not, we should overturn Flast . II A    The plurality today avails itself of neither principled option. Instead, essentially accepting the Solicitor General’s primary submission, it limits Flast to challenges to expenditures that are “expressly authorized or mandated by . . . specific congressional enactment.” Ante , at 18. It offers no intellectual justification for this limitation, except that “[i]t is a necessary concomitant of the doctrine of stare decisis that a precedent is not always expanded to the limit of its logic.” Ante, at 24. That is true enough, but since courts purport to be engaged in reasoned decisionmaking, it is only true when (1) the precedent’s logic is seen to require narrowing or readjustment in light of relevant distinctions that the new fact situation brings to the fore; or (2) its logic is fundamentally flawed, and so deserves to be limited to the facts that begot it. Today’s plurality claims neither of these justifications. As to the first, the plurality offers no explanation of why the factual differences between this case and Flast are material . It virtually admits that express congressional allocation vel non has nothing to do with whether the plaintiffs have alleged an injury in fact that is fairly traceable and likely to be redressed. See ante , at 18–19. As the dissent correctly contends and I shall not belabor, see post , at 3–4 (opinion of Souter, J.), Flast is indistinguishable from this case for purposes of Article III. Whether the challenged government expenditure is expressly allocated by a specific congressional enactment has absolutely no relevance to the Article III criteria of injury in fact, traceability, and redressability.    Yet the plurality is also unwilling to acknowledge that the logic of Flast (its Psychic Injury rationale) is simply wrong, and for that reason should not be extended to other cases. Despite the lack of acknowledgment, however, that is the only plausible explanation for the plurality’s indifference to whether the “distinguishing” fact is legally material, and for its determination to limit Flast to its “ ‘ resul[t] ,’ ” ante , at 19.[ Footnote 3 ] Why, then, pick a distinguishing fact that may breathe life into Flast in future cases, preserving the disreputable disarray of our Establishment Clause standing jurisprudence? Why not hold that only taxpayers raising Establishment Clause challenges to expenditures pursuant to the Elementary and Secondary Education Act of 1965 have standing? That, I suppose, would be too obvious a repudiation of Flast , and thus an impediment to the plurality’s pose of minimalism.    Because the express-allocation line has no mooring to our tripartite test for Article III standing, it invites demonstrably absurd results. For example, the plurality would deny standing to a taxpayer challenging the President’s disbursement to a religious organization of a discrete appropriation that Congress had not explicitly allocated to that purpose, even if everyone knew that Congress and the President had informally negotiated that the entire sum would be spent in that precise manner. See ante , at 17, n. 7 (holding that nonstatutory earmarks are insufficient to satisfy the express-allocation requirement). And taxpayers should lack standing to bring Establishment Clause challenges to the Executive Branch’s use of appropriated funds when those expenditures have the added vice of violating congressional restrictions. If, for example, Congress instructs the President to disburse grants to hospitals that he deems worthy, and the President instead gives all of the money to the Catholic Church, “[t]he link between congressional action and constitutional violation that supported taxpayer standing in Flast [would be] missing.” Ante , at 13. Indeed, taking the plurality at its word, Congress could insulate the President from all Flast -based suits by codifying the truism that no appropriation can be spent by the Executive Branch in a manner that violates the Establishment Clause.    Any last pretense of minimalism—of adhering to prior law but merely declining to “extend” it—is swept away by the fact that the Court’s holding flatly contradicts Kendrick . The whole point of the as-applied challenge in Kendrick was that the Secretary, not Congress, had chosen inappropriate grant recipients. 487 U. S., at 620–622. Both Kendrick and this case equally involve, in the relevant sense, attacks on executive discretion rather than congressional decision: Congress generally authorized the spending of tax funds for certain purposes but did not explicitly mandate that they be spent in the unconstitutional manner challenged by the taxpayers. I thus share the dissent’s bewilderment, see post , at 4–5 (opinion of Souter, J.), as to why the plurality fixates on the amount of additional discretion the Executive Branch enjoys under the law beyond the only discretion relevant to the Establishment Clause issue: whether to spend taxpayer funds for a purpose that is unconstitutional. See ante , at 25 (focusing on whether the case involves “a purely discretionary Executive Branch expenditure” (emphasis added)). B    While I have been critical of the Members of the plurality, I by no means wish to give the impression that respondents’ legal position is any more coherent. Respondents argue that Flast did not turn on whether Congress has expressly allocated the funds to the allegedly unconstitutional use, and their case plainly rests on Psychic Injury. They repeatedly emphasize that the injury in Flast was merely the governmental extraction and spending of tax money in aid of religion. See, e.g., Brief for Respondents 28. Respondents refuse to admit that their argument logically implies, for the reasons already discussed, that every expenditure of tax revenues that is alleged to violate the Establishment Clause is subject to suit under Flast .    Of course, such a concession would run headlong into the denial of standing in Doremus . Respondents’ only answer to Doremus is the cryptic assertion that the injury there was not fairly traceable to the unconstitutional conduct. Brief for Respondents 21, and n. 7. This makes no sense. On Flast ’s theory of Psychic Injury, the injury in Doremus was perfectly traceable and not in any way attenuated. It consisted of the psychic frustration that tax funds were being used in violation of the Establishment Clause, which was directly caused by the paying of teachers to read the Bible, and which would have been remedied by prohibition of that expenditure.[ Footnote 4 ] The hollowness of respondents’ traceability argument is perhaps best demonstrated by their counsel’s game submission at oral argument that there would be standing to challenge the hiring of a single Secret Service agent who guarded the President during religious trips, but no standing if those responsibilities (and the corresponding taxpayer-funded compensation) were spread out over the entire Secret Service protective detail. Tr. of Oral Arg. 38–39.    The logical consequence of respondents’ position finds no support in this Court’s precedents or our Nation’s history. Any taxpayer would be able to sue whenever tax funds were used in alleged violation of the Establishment Clause. So, for example, any taxpayer could challenge the fact that the Marshal of our Court is paid, in part, to call the courtroom to order by proclaiming “God Save the United States and this Honorable Court.” As much as respondents wish to deny that this is what Flast logically entails, it blinks reality to conclude otherwise. If respondents are to prevail, they must endorse a future in which ideologically motivated taxpayers could “roam the country in search of governmental wrongdoing and … reveal their discoveries in federal court,” transforming those courts into “ombudsmen of the general welfare” with respect to Establishment Clause issues. Valley Forge , 454 U. S., at 487. C    Ultimately, the arguments by the parties in this case and the opinions of my colleagues serve only to confirm that Flast ’s adoption of Psychic Injury has to be addressed head-on. Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions that hold the sure promise of engendering further meaningless and disingenuous distinctions in the future. The rule of law is ill served by forcing lawyers and judges to make arguments that deaden the soul of the law, which is logic and reason. Either Flast was correct, and must be accorded the wide application that it logically dictates, or it was not, and must be abandoned in its entirety. I turn, finally, to that question. III    Is a taxpayer’s purely psychological displeasure that his funds are being spent in an allegedly unlawful manner ever sufficiently concrete and particularized to support Article III standing? The answer is plainly no.    As I noted at the outset, Lujan explained that the “consisten[t]” view of this Court has been that “a plaintiff raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.” 504 U. S., at 573–574. As evidence of the consistency with which we have affirmed that understanding, Lujan relied on the reasoning in Frothingham , and in several other cases, including Ex parte Lévitt , 302 U. S. 633 (1937) (dismissing suit challenging Justice Black’s appointment to this Court in alleged violation of the Ineligibility Clause, Art. I, §6, cl. 2), United States v. Richardson , 418 U. S. 166 (1974) (denying standing to challenge the Government’s failure to disclose the CIA’s expenditures in alleged violation of the Accounts Clause, Art. I, §9, cl. 7), and Schlesinger v. Reservists Comm. to Stop the War , 418 U. S. 208 (1974) (rejecting challenge to Members of Congress holding commissions in the military Reserves in alleged violation of the Incompatibility Clause, Art. I, §6, cl. 2). See 504 U. S., at 573–577. Just this Term, relying on precisely the same cases and the same reasoning, we held unanimously that suits raising only generalized grievances do not satisfy Article III’s requirement that the injury in fact be concrete and particularized. See Lance , 549 U. S., at ____ (slip op., at 2–4).[ Footnote 5 ]    Nor does Flast ’s limitation on Psychic Injury—the limitation that it suffices only when the two-pronged “nexus” test is met—cure the Article III deficiency. The fact that it is the alleged violation of a specific constitutional limit on the taxing and spending power that produces the taxpayer’s mental angst does not change the fundamental flaw. It remains the case that the taxpayer seeks “relief that no more directly and tangibly benefits him than it does the public at large.” Lujan , supra, at 573–574. And it is of no conceivable relevance to this issue whether the Establishment Clause was originally conceived of as a specific limitation on the taxing and spending power. Madison’s Remonstrance has nothing whatever to say on the question whether suits alleging violations of that limitation are anything other than the generalized grievances that federal courts had always been barred from considering before Flast . Flast was forced to rely on the slim reed of the Remonstrance since there was no better support for its novel conclusion, in 1968, that violation of the Establishment Clause, unique among the provisions of our law, had always inflicted a personalized Psychic Injury upon all taxpayers that federal courts had the power to remedy.    Moreover, Flast is damaged goods, not only because its fanciful two-pronged “nexus” test has been demonstrated to be irrelevant to the test’s supposed objective, but also because its cavalier treatment of the standing requirement rested upon a fundamental underestimation of that requirement’s importance. Flast was explicitly and erroneously premised on the idea that Article III standing does not perform a crucial separation-of-powers function: “The question whether a particular person is a proper party to maintain the action does not, by its own force, raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government. Such problems arise, if at all, only from the substantive issues the individual seeks to have adjudicated. Thus, in terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.” 392 U. S., at 100–101. A perceptive Frenchman, visiting the United States some 135 years before Chief Justice Warren wrote these words, perceived that they were false. “It is true that … judicial censure, exercised by the courts on legislation, cannot extend without distinction to all laws, for there are some of them that can never give rise to the sort of clearly formulated dispute that one calls a case .” A. de Tocqueville, Democracy in America 97 (H. Mansfield & D. Winthrop transls. and eds. 2000) (emphasis added). Flast ’s crabbed (and judge-empowering) understanding of the role Article III standing plays in preserving our system of separated powers has been repudiated:    “To permit a complainant who has no concrete injury to require a court to rule on important constitutional issues in the abstract would create the potential for abuse of the judicial process, distort the role of the Judiciary in its relationship to the Executive and the Legislature and open the Judiciary to an arguable charge of providing ‘government by injunction.’ ” Schlesinger , supra, at 222. See also Richardson , 418 U. S. , at 179–180; Valley Forge , 454 U. S., at 474; Lujan , 504 U. S. , at 576–577. We twice have noted explicitly that Flast failed to recognize the vital separation-of-powers aspect of Article III standing. See Spencer v. Kemna , 523 U. S. 1 , 11–12 (1998); Lewis v. Casey , 518 U. S. 343 , 353, n. 3 (1996). And once a proper understanding of the relationship of standing to the separation of powers is brought to bear, Psychic Injury, even as limited in Flast , is revealed for what it is: a contradiction of the basic propositions that the function of the judicial power “is, solely, to decide on the rights of individuals,” Marbury v. Madison , 1 Cranch 137, 170 (1803), and that generalized grievances affecting the public at large have their remedy in the political process.    Overruling prior precedents, even precedents as disreputable as Flast , is nevertheless a serious undertaking, and I understand the impulse to take a minimalist approach. But laying just claim to be honoring stare decisis requires more than beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive. Even before the addition of the new meaningless distinction devised by today’s plurality, taxpayer standing in Establishment Clause cases has been a game of chance. In the proceedings below, well-respected federal judges declined to hear this case en banc, not because they thought the issue unimportant or the panel decision correct, but simply because they found our cases so lawless that there was no point in, quite literally, second-guessing the panel. See Freedom From Religion Foundation, Inc. v. Chao , 447 F. 3d 988 (CA7 2006) (Flaum, C. J., concurring in denial of rehearing en banc); id. , at 989–990 (Easterbrook, J., concurring in denial of rehearing en banc) (describing our cases as “arbitrary,” “illogical,” and lacking in “comprehensiveness and rationality”). We had an opportunity today to erase this blot on our jurisprudence, but instead have simply smudged it.    My call for the imposition of logic and order upon this chaotic set of precedents will perhaps be met with the snappy epigram that “[t]he life of the law has not been logic: it has been experience.” O. Holmes, The Common Law 1 (1881). But what experience has shown is that Flast ’s lack of a logical theoretical underpinning has rendered our taxpayer-standing doctrine such a jurisprudential disaster that our appellate judges do not know what to make of it. And of course the case has engendered no reliance interests, not only because one does not arrange his affairs with an eye to standing, but also because there is no relying on the random and irrational. I can think of few cases less warranting of stare decisis respect. It is time—it is past time—to call an end. Flast should be overruled. Footnote 1 The text of the statute did not just authorize public-school teachers to read from the Bible, but mandated that they do so: “At least five verses taken from that portion of the Holy Bible known as the Old Testament shall be read , or caused to be read, without comment, in each public school classroom, in the presence of the pupils therein assembled, by the teacher in charge , at the opening of school upon every school day … .” N. J. Rev. Stat. §18:14–77 (1937) (emphasis added). Footnote 2 There is a natural impulse to respond that the portion of the teachers’ salary that corresponded to the time that they were required to read from the Bible was de minimis . But even Flast had the decency not to seize on a de minimis exception to distinguish Doremus: Having relied exclusively on Madison’s Remonstrance to justify the conclusion that the Establishment Clause was a specific limitation on the taxing and spending power, see Flast , 392 U. S., at 103–104, the Court could not simultaneously ignore Madison’s admonition that “ ‘the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever,’ ” id. , at 103 (quoting Madison’s Remonstrance; emphasis added). Footnote 3 This explanation does not suffice with regard to Justice Kennedy, who, unlike the other Members of the plurality, openly and avowedly contends both that Flast was correctly decided and that respondents should nevertheless lose this case. Ante , at 1 (concurring opinion). He thus has the distinction of being the only Justice who affirms both propositions. I cannot begin to comprehend how the amorphous separation-of-powers concerns that motivate him, ante , at 1–3, bear upon whether the express-allocation requirement is grounded in the Article III criteria of injury in fact, traceability, or redressability. Footnote 4 Nor is the dissent’s oblique suggestion that Doremus did not involve an “identifiable amoun[t]” of taxpayer funds, post , at 3 (opinion of Souter, J.), any more persuasive. One need not consult a CPA to realize that the portion of the school day during which the teachers’ educational responsibilities were to read the Bible corresponded to a fraction of the teachers’ taxpayer-funded salaries. And while the amount of money might well have been inconsequential, it was probably greater than three pence. See n. 2, supra . Footnote 5 It is true that this Court has occasionally in dicta described the prohibition on generalized grievances as merely a prudential bar. But the fountainhead of this dicta, Warth v. Seldin , 422 U. S. 490 (1975), supported its statement only by naked citation of Schlesinger , Richardson , and Lévitt . 422 U. S., at 499. But those cases squarely rested on Article III considerations, as the analysis in Lujan and Lance confirms. SOUTER, J., DISSENTING HEIN V. FREEDOM FROM RELIGION FOUNDATION, INC. 551 U. S. ____ (2007) SUPREME COURT OF THE UNITED STATES NO. 06-157 JAY F. HEIN, DIRECTOR, WHITE HOUSE OFFICE OF FAITH-BASED AND COMMUNITY INITIATIVES, et al., PETITIONERS v. FREEDOM FROM RELI- GION FOUNDATION, INC., et al. on writ of certiorari to the united states court of appeals for the seventh circuit [June 25, 2007]    Justice Souter, with whom Justice Stevens, Justice Ginsburg, and Justice Breyer join, dissenting. Flast v. Cohen , 392 U. S. 83 , 102 (1968), held that plaintiffs with an Establishment Clause claim could “demonstrate the necessary stake as taxpayers in the outcome of the litigation to satisfy Article III requirements.” Here, the controlling, plurality opinion declares that Flast does not apply, but a search of that opinion for a suggestion that these taxpayers have any less stake in the outcome than the taxpayers in Flast will come up empty: the plurality makes no such finding, nor could it. Instead, the controlling opinion closes the door on these taxpayers because the Executive Branch, and not the Legislative Branch, caused their injury. I see no basis for this distinction in either logic or precedent, and respectfully dissent. I    We held in Flast , and repeated just last Term, that the “ ‘injury’ alleged in Establishment Clause challenges to federal spending” is “the very ‘extract[ion] and spen[ding]’ of ‘tax money’ in aid of religion.” DaimlerChrysler Corp. v. Cuno , 547 U. S. ___, ___ (2006) (slip op., at 13) (quoting Flast , supra , at 106; alterations in original). As the Court said in Flast , the importance of that type of injury has deep historical roots going back to the ideal of religious liberty in James Madison’s Memorial and Remonstrance Against Religious Assessments, that the government in a free society may not “force a citizen to contribute three pence only of his property for the support of any one establishment” of religion. 2 Writings of James Madison 183, 186 (G. Hunt ed. 1901) (hereinafter Madison), quoted in Flast , supra , at 103. Madison thus translated into practical terms the right of conscience described when he wrote that “[t]he Religion … of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.” Madison 184; see also Zelman v. Simmons-Harris , 536 U. S. 639 , 711, n. 22 (2002) (Souter, J., dissenting) (“As a historical matter, the protection of liberty of conscience may well have been the central objective served by the Establishment Clause”); Locke v. Davey , 540 U. S. 712 , 722 (2004) (“Since the founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders, which was one of the hallmarks of an ‘established’ religion”); N. Feldman, Divided By God: America’s Church-State Problem—And What We Should Do About It 48 (2005) (“The advocates of a constitutional ban on establishment were concerned about paying taxes to support religious purposes that their consciences told them not to support”).    The right of conscience and the expenditure of an identifiable three pence raised by taxes for the support of a religious cause are therefore not to be split off from one another. The three pence implicates the conscience, and the injury from Government expenditures on religion is not accurately classified with the “Psychic Injury” that results whenever a congressional appropriation or executive expenditure raises hackles of disagreement with the policy supported, see ante , at 8 (Scalia, J., concurring in judgment). Justice Stewart recognized this in his concurring opinion in Flast , when he said that “every taxpayer can claim a personal constitutional right not to be taxed for the support of a religious institution,” and thus distinguished the case from one in which a taxpayer sought only to air a generalized grievance in federal court. 392 U. S., at 114.    Here, there is no dispute that taxpayer money in identifiable amounts is funding conferences, and these are alleged to have the purpose of promoting religion. Cf. Doremus v. Board of Ed. of Hawthorne , 342 U. S. 429 , 434 (1952). The taxpayers therefore seek not to “extend” Flast , ante , at 24 (plurality opinion), but merely to apply it. When executive agencies spend identifiable sums of tax money for religious purposes, no less than when Congress authorizes the same thing, taxpayers suffer injury. And once we recognize the injury as sufficient for Article III, there can be no serious question about the other elements of the standing enquiry: the injury is indisputably “traceable” to the spending, and “likely to be redressed by” an injunction prohibiting it. Allen v. Wright , 468 U. S. 737 , 751 (1984); see also Cuno , supra , at ___ (slip op., at 13) (“[A]n injunction against the spending would of course redress that injury”).    The plurality points to the separation of powers to explain its distinction between legislative and executive spending decisions, see ante , at 20–21, but there is no difference on that point of view between a Judicial Branch review of an executive decision and a judicial evaluation of a congressional one. We owe respect to each of the other branches, no more to the former than to the latter, and no one has suggested that the Establishment Clause lacks applicability to executive uses of money. It would surely violate the Establishment Clause for the Department of Health and Human Services to draw on a general appropriation to build a chapel for weekly church services (no less than if a statute required it), and for good reason: if the Executive could accomplish through the exercise of discretion exactly what Congress cannot do through legislation, Establishment Clause protection would melt away.[ Footnote 1 ]    So in Bowen v. Kendrick , 487 U. S. 589 (1988), we recognized the equivalence between a challenge to a congressional spending bill and a claim that the Executive Branch was spending an appropriation, each in violation of the Establishment Clause. We held that the “claim that … funds [were] being used improperly by individual grantees [was no] less a challenge to congressional taxing and spending power simply because the funding authorized by Congress has flowed through and been administered by the Secretary,” and we added that “we have not questioned the standing of taxpayer plaintiffs to raise Establishment Clause challenges, even when their claims raised questions about the administratively made grants.” Id., at 619.    The plurality points out that the statute in Bowen “expressly authorized and appropriated specific funds for grantmaking” and “expressly contemplated that some of those moneys might go to projects involving religious groups.” Ante , at 16. That is all true, but there is no reason to think it should matter, and every indication in Bowen that it did not. In Bowen we already had found the statute valid on its face before we turned to the taxpayers’ as-applied challenge, see 487 U. S., at 618, so the case cannot be read to hold that taxpayers have standing only to claim that congressional action, but not its implementation, violates the Establishment Clause. Thus, after Bowen , the plurality’s distinction between a “congressional mandate” on the one hand and “executive discretion” on the other, ante , at 18, is at once arbitrary and hard to manage: if the statute itself is constitutional, all complaints must be about the exercise of “executive discretion,” so there is no line to be drawn between Bowen and the case before us today.[ Footnote 2 ] II    While Flast standing to assert the right of conscience is in a class by itself, it would be a mistake to think that case is unique in recognizing standing in a plaintiff without injury to flesh or purse. Cognizable harm takes account of the nature of the interest protected, which is the reason that “the constitutional component of standing doctrine incorporates concepts concededly not susceptible of precise definition,” leaving it impossible “to make application of the constitutional standing requirement a mechanical exercise.” Allen , 468 U. S., at 751. The question, ultimately, has to be whether the injury alleged is “too abstract, or otherwise not appropriate, to be considered judicially cognizable.” Id., at 752.[ Footnote 3 ]    In the case of economic or physical harms, of course, the “injury in fact” question is straightforward. But once one strays from these obvious cases, the enquiry can turn subtle. Are esthetic harms sufficient for Article III standing? What about being forced to compete on an uneven playing field based on race (without showing that an economic loss resulted), or living in a racially gerrymandered electoral district? These injuries are no more concrete than seeing one’s tax dollars spent on religion, but we have recognized each one as enough for standing. See Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. , 528 U. S. 167 , 183 (2000) (esthetic injury); Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville , 508 U. S. 656 , 666 (1993) (“[T]he ‘injury in fact’ is the inability to compete on an equal footing in the bidding process, not the loss of a contract”); United States v. Hays , 515 U. S. 737 , 744–745 (1995) (living in a racially gerrymandered electoral district). This is not to say that any sort of alleged injury will satisfy Article III, but only that intangible harms must be evaluated case by case.[ Footnote 4 ]     Thus, Flast speaks for this Court’s recognition (shared by a majority of the Court today) that when the Government spends money for religious purposes a taxpayer’s injury is serious and concrete enough to be “judicially cognizable,” Allen , supra , at 752. The judgment of sufficient injury takes account of the Madisonian relationship of tax money and conscience, but it equally reflects the Founders’ pragmatic “conviction that individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions,” Everson v. Board of Ed. of Ewing , 330 U. S. 1 , 11 (1947), and the realization continuing to the modern day that favoritism for religion “ ‘sends the … message to … nonadherents “that they are outsiders, not full members of the political community,” ’ ” McCreary County v. American Civil Liberties Union of Ky. , 545 U. S. 844 , 860 (2005) (quoting Santa Fe Independent School Dist. v. Doe , 530 U. S. 290 , 309–310 (2000), in turn quoting Lynch v. Donnelly , 465 U. S. 668 , 688 (1984) (O’Connor, J., concurring); omissions in original).[ Footnote 5 ]    Because the taxpayers in this case have alleged the type of injury this Court has seen as sufficient for standing, I would affirm. Footnote 1 The plurality warns that a parade of horribles would result if there were standing to challenge executive action, because all federal activities are “ultimately funded by some congressional appropriation.” Ante , at 20. But even if there is Article III standing in all of the cases posited by the plurality (and the Court of Appeals thought that at least sometimes there is not, 433 F. 3d 989, 996 (CA7 2006)), that does not mean taxpayers will prevail in such suits. If these claims are frivolous on the merits, I fail to see the harm in dismissing them for failure to state a claim instead of for lack of jurisdiction. To the degree the claims are meritorious, fear that there will be many of them does not provide a compelling reason, much less a reason grounded in Article III, to keep them from being heard. Footnote 2 Bowen also indicated that the barrier to standing in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. , 454 U. S. 464 (1982) , was that the taxpayers challenged “an exercise of executive authority pursuant to the Property Clause of Article IV, §3.” Bowen v. Kendrick , 487 U. S. 589 , 619 (1988). In Valley Forge , we had first discussed the executive rather than legislative nature of the action at issue there and then, “perhaps redundantly,” 454 U. S., at 480, pointed to the distinction between the Property Clause and the Taxing and Spending Clause. Although at the time Valley Forge might have been taken to support the distinction the plurality draws today, Bowen said that Valley Forge rested on the distinction between the Property Clause on the one hand and the Taxing and Spending Clause on the other. See also Valley Forge , supra , at 480, n. 17 (noting that the transfer of property to a religious college involved no expenditure of funds). Footnote 3 Although the plurality makes much of the fact that the injury in this case is “generalized,” ante , at 8, and shared with the “public-at-large,” ante , at 9, those properties on their own do not strip a would-be plaintiff of standing. See Federal Election Comm’n v. Akins , 524 U. S. 11 , 24 (1998) (“Often the fact that an interest is abstract and the fact that it is widely shared go hand in hand. But their association is not invariable, and where a harm is concrete, though widely shared, the Court has found ‘injury in fact’ ”). Footnote 4 Outside the Establishment Clause context, as the plurality points out, we have not found the injury to a taxpayer when funds are improperly expended to suffice for standing. See ante , at 19 (citing examples). Footnote 5 There will not always be competitors for the funds who would make better plaintiffs (and indeed there appears to be no such competitor here), so after accepting the importance of the injury there is no reason to refuse standing as a prudential matter.

In *Hein v. Freedom From Religion Foundation, Inc.,* the Supreme Court ruled that federal taxpayers do not have standing to challenge an Executive Branch program that used federal funds in a way that allegedly violated the Establishment Clause of the First Amendment. The Court held that taxpayers must demonstrate a direct and personal injury, which was not established in this case, to have standing to sue.

Role of Courts

Spokeo, Inc. v. Robins

https://supreme.justia.com/cases/federal/us/578/13-1339/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 13–1339 _________________ SPOKEO, INC., PETITIONER v. THOMAS ROBINS on writ of certiorari to the united states court of appeals for the ninth circuit [May 16, 2016] Justice Alito delivered the opinion of the Court. This case presents the question whether respondent Robins has standing to maintain an action in federal court against petitioner Spokeo under the Fair Credit Reporting Act of 1970 (FCRA or Act), 84Stat. 1127, as amended, 15 U. S. C. §1681 et seq. Spokeo operates a “people search engine.” If an individual visits Spokeo’s Web site and inputs a person’s name, a phone number, or an e-mail address, Spokeo conducts a computerized search in a wide variety of databases and provides information about the subject of the search. Spokeo performed such a search for information about Robins, and some of the information it gathered and then disseminated was incorrect. When Robins learned of these inaccuracies, he filed a complaint on his own behalf and on behalf of a class of similarly situated individuals. The District Court dismissed Robins’ complaint for lack of standing, but a panel of the Ninth Circuit reversed. The Ninth Circuit noted, first, that Robins had alleged that “Spokeo violated his statutory rights, not just the statu-tory rights of other people,” and, second, that “Robins’s personal interests in the handling of his credit information are individualized rather than collective.” 742 F. 3d 409, 413 (2014). Based on these two observations, the Ninth Circuit held that Robins had adequately alleged injury in fact, a requirement for standing under Article III of the Constitution. Id., at 413–414. This analysis was incomplete. As we have explained in our prior opinions, the injury-in-fact requirement requires a plaintiff to allege an injury that is both “concrete and particularized.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. , 528 U. S. 167 –181 (2000) (emphasis added). The Ninth Circuit’s analysis focused on the second characteristic (particularity), but it overlooked the first (concreteness). We therefore vacate the decision below and remand for the Ninth Circuit to consider both aspects of the injury-in-fact requirement. I The FCRA seeks to ensure “fair and accurate credit reporting.” §1681(a)(1). To achieve this end, the Act regulates the creation and the use of “consumer report[s]”[ 1 ] by “consumer reporting agenc[ies]”[ 2 ] for certain specified purposes, including credit transactions, insurance, licensing, consumer-initiated business transactions, and employment. See §§1681a(d)(1)(A)–(C); §1681b. Enacted long before the advent of the Internet, the FCRA applies to companies that regularly disseminate information bearing on an individual’s “credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living.” §1681a(d)(1). The FCRA imposes a host of requirements concerning the creation and use of consumer reports. As relevant here, the Act requires consumer reporting agencies to “follow reasonable procedures to assure maximum possible accuracy of” consumer reports, §1681e(b); to notify providers and users of consumer information of their responsibilities under the Act, §1681e(d); to limit the circumstances in which such agencies provide consumer reports “for employment purposes,” §1681b(b)(1); and to post toll-free numbers for consumers to request reports, §1681j(a). The Act also provides that “[a]ny person who willfully fails to comply with any requirement [of the Act] with respect to any [individual[ 3 ]] is liable to that [individual]” for, among other things, either “actual damages” or statutory damages of $100 to $1,000 per violation, costs of the action and attorney’s fees, and possibly punitive damages. §1681n(a). Spokeo is alleged to qualify as a “consumer reporting agency” under the FCRA.[ 4 ] It operates a Web site that allows users to search for information about other individuals by name, e-mail address, or phone number. In response to an inquiry submitted online, Spokeo searches a wide spectrum of databases and gathers and provides information such as the individual’s address, phone number, marital status, approximate age, occupation, hobbies, finances, shopping habits, and musical preferences. App. 7, 10–11. According to Robins, Spokeo markets its services to a variety of users, including not only “employers who want to evaluate prospective employees,” but also “those who want to investigate prospective romantic partners or seek other personal information.” Brief for Respondent 7. Persons wishing to perform a Spokeo search need not disclose their identities, and much information is available for free. At some point in time, someone (Robins’ complaint does not specify who) made a Spokeo search request for information about Robins, and Spokeo trawled its sources and generated a profile. By some means not detailed in Robins’ complaint, he became aware of the contents of that profile and discovered that it contained inaccurate information. His profile, he asserts, states that he is married, has children, is in his 50’s, has a job, is relatively affluent, and holds a graduate degree. App. 14. According to Robins’ complaint, all of this information is incorrect. Robins filed a class-action complaint in the United States District Court for the Central District of California, claiming, among other things, that Spokeo willfully failed to comply with the FCRA requirements enumerated above. The District Court initially denied Spokeo’s motion to dismiss the complaint for lack of jurisdiction, but later reconsidered and dismissed the complaint with prejudice. App. to Pet. for Cert. 23a. The court found that Robins had not “properly pled” an injury in fact, as required by Article III. Ibid. The Court of Appeals for the Ninth Circuit reversed. Relying on Circuit precedent,[ 5 ] the court began by stating that “the violation of a statutory right is usually a sufficient injury in fact to confer standing.” 742 F. 3d, at 412. The court recognized that “the Constitution limits the power of Congress to confer standing.” Id., at 413. But the court held that those limits were honored in this case because Robins alleged that “Spokeo violated his statutory rights, not just the statutory rights of other people,” and because his “personal interests in the handling of his credit information are individualized rather than collective.” Ibid. (emphasis in original). The court thus concluded that Robins’ “alleged violations of [his] statutory rights [were] sufficient to satisfy the injury-in-fact requirement of Article III.” Id., at 413–414. We granted certiorari. 575 U. S. ___ (2015). II A The Constitution confers limited authority on each branch of the Federal Government. It vests Congress with enumerated “legislative Powers,” Art. I, §1; it confers upon the President “[t]he executive Power,” Art. II, §1, cl. 1; and it endows the federal courts with “[t]he judicial Power of the United States,” Art. III, §1. In order to remain faithful to this tripartite structure, the power of the Federal Judiciary may not be permitted to intrude upon the powers given to the other branches. See DaimlerChrysler Corp. v. Cuno , 547 U. S. 332, 341 (2006) ; Lujan v. Defenders of Wildlife , 504 U. S. 555 –560 (1992). Although the Constitution does not fully explain what is meant by “[t]he judicial Power of the United States,” Art. III, § 1, it does specify that this power extends only to “Cases” and “Controversies,” Art. III, §2. And “ ‘[n]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.’ ” Raines v. Byrd , 521 U. S. 811, 818 (1997) . Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy. The doctrine developed in our case law to ensure that federal courts do not exceed their authority as it has been traditionally understood. See id., at 820. The doctrine limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. , 454 U. S. 464, 473 (1982) ; Warth v. Seldin , 422 U. S. 490 –499 (1975). In this way, “[t]he law of Article III standing . . . serves to prevent the judicial process from being used to usurp the powers of the political branches,” Clapper v. Amnesty Int’l USA , 568 U. S. ___, ___ (2013) (slip op., at 9); Lujan , supra , at 576–577, and confines the federal courts to a properly judicial role, see Warth , supra , at 498. Our cases have established that the “irreducible constitutional minimum” of standing consists of three elements. Lujan , 504 U. S. , at 560. The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. Id., at 560–561; Friends of the Earth, Inc. , 528 U. S., at 180–181. The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these elements. FW/PBS, Inc. v. Dallas , 493 U. S. 215, 231 (1990) . Where, as here, a case is at the pleading stage, the plaintiff must “clearly . . . allege facts demonstrating” each element. Warth , supra , at 518.[ 6 ] B This case primarily concerns injury in fact, the “[f ]irst and foremost” of standing’s three elements. Steel Co. v. Citizens for Better Environment , 523 U. S. 83, 103 (1998) . Injury in fact is a constitutional requirement, and “[i]t is settled that Congress cannot erase Article III’s standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.” Raines, supra, at 820, n. 3; see Summers v. Earth Island Institute , 555 U. S. 488, 497 (2009) ; Gladstone, Realtors v. Village of Bellwood , 441 U. S. 91, 100 (1979) (“In no event . . . may Congress abrogate the Art. III minima”). To establish injury in fact, a plaintiff must show that he or she suffered “an invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Lujan , 504 U. S., at 560 (internal quotation marks omitted). We discuss the particularization and concreteness requirements below. 1 For an injury to be “particularized,” it “must affect the plaintiff in a personal and individual way.” Ibid. , n. 1; see also, e.g. , Cuno , supra, at 342 (“ ‘plaintiff must allege personal injury’ ”); Whitmore v. Arkansas , 495 U. S. 149, 155 (1990) (“ ‘distinct’ ”); Allen v. Wright , 468 U. S. 737, 751 (1984) (“personal”); Valley Forge , supra , at 472 (standing requires that the plaintiff “ ‘personally has suffered some actual or threatened injury’ ”); United States v. Richardson , 418 U. S. 166, 177 (1974) (not “undifferenti-ated”); Public Citizen, Inc. v. National Hwy. Traffic Safety Admin. , 489 F. 3d 1279, 1292–1293 (CADC 2007) (collecting cases).[ 7 ] Particularization is necessary to establish injury in fact, but it is not sufficient. An injury in fact must also be “concrete.” Under the Ninth Circuit’s analysis, however, that independent requirement was elided. As previously noted, the Ninth Circuit concluded that Robins’ complaint alleges “concrete, de facto ” injuries for essentially two reasons. 742 F. 3d, at 413. First, the court noted that Robins “alleges that Spokeo violated his statutory rights, not just the statutory rights of other people.” Ibid. Second, the court wrote that “Robins’s personal interests in the handling of his credit information are individualized rather than collective .” Ibid . (emphasis added). Both of these observations concern particularization, not concreteness. We have made it clear time and time again that an injury in fact must be both concrete and particularized. See, e.g. , Susan B. Anthony List v. Driehaus , 573 U. S. ___, ___ (2014) (slip op., at 8); Summers , supra, at 493; Sprint Communications Co. v. APCC Services, Inc. , 554 U. S. 269, 274 (2008) ; Massachusetts v. EPA , 549 U. S. 497, 517 (2007) . A “concrete” injury must be “ de facto ”; that is, it must actually exist. See Black’s Law Dictionary 479 (9th ed. 2009). When we have used the adjective “concrete,” we have meant to convey the usual meaning of the term—“real,” and not “abstract.” Webster’s Third New International Dictionary 472 (1971); Random House Dictionary of the English Language 305 (1967). Concreteness, therefore, is quite different from particularization. 2 “Concrete” is not, however, necessarily synonymous with “tangible.” Although tangible injuries are perhaps easier to recognize, we have confirmed in many of our previous cases that intangible injuries can nevertheless be concrete. See, e.g. , Pleasant Grove City v. Summum , 555 U. S. 460 (2009) (free speech); Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U. S. 520 (1993) (free exercise). In determining whether an intangible harm constitutes injury in fact, both history and the judgment of Congress play important roles. Because the doctrine of standing derives from the case-or-controversy requirement, and because that requirement in turn is grounded in historical practice, it is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts. See Vermont Agency of Natural Resources v. United States ex rel. Stevens , 529 U. S. 765 –777 (2000). In addition, because Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is also instructive and important. Thus, we said in Lujan that Congress may “elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law.” 504 U. S., at 578. Similarly, Justice Kennedy’s concurrence in that case explained that “Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.” Id., at 580 (opinion concurring in part and concurring in judgment). Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation. For that reason, Robins could not, for example, allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III. See Summers , 555 U. S., at 496 (“[D]eprivation of a procedural right without some concrete interest that is affected by the deprivation . . . is insufficient to create Article III standing”); see also Lujan , supra , at 572. This does not mean, however, that the risk of real harm cannot satisfy the requirement of concreteness. See , e.g., Clapper v. Amnesty Int’l USA , 568 U. S. ____. For example, the law has long permitted recovery by certain tort victims even if their harms may be difficult to prove or measure. See, e.g., Restatement (First) of Torts §§569 (libel), 570 (slander per se ) (1938). Just as the common law permitted suit in such instances, the violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact. In other words, a plaintiff in such a case need not allege any additional harm beyond the one Congress has identified. See Federal Election Comm’n v. Akins , 524 U. S. 11 –25 (1998) (confirming that a group of voters’ “inability to obtain information” that Congress had decided to make public is a sufficient injury in fact to satisfy Article III); Public Citizen v. Department of Justice , 491 U. S. 440, 449 (1989) (holding that two advocacy organizations’ failure to obtain information subject to disclosure under the Federal Advisory Committee Act “constitutes a sufficiently distinct injury to provide standing to sue”). In the context of this particular case, these general principles tell us two things: On the one hand, Congress plainly sought to curb the dissemination of false information by adopting procedures designed to decrease that risk. On the other hand, Robins cannot satisfy the demands of Article III by alleging a bare procedural violation. A violation of one of the FCRA’s procedural requirements may result in no harm. For example, even if a consumer reporting agency fails to provide the required notice to a user of the agency’s consumer information, that information regardless may be entirely accurate. In addition, not all inaccuracies cause harm or present any material risk of harm. An example that comes readily to mind is an incorrect zip code. It is difficult to imagine how the dissemination of an incorrect zip code, without more, could work any concrete harm.[ 8 ] Because the Ninth Circuit failed to fully appreciate the distinction between concreteness and particularization, its standing analysis was incomplete. It did not address the question framed by our discussion, namely, whether the particular procedural violations alleged in this case entail a degree of risk sufficient to meet the concreteness requirement. We take no position as to whether the Ninth Circuit’s ultimate conclusion—that Robins adequately alleged an injury in fact—was correct. *  *  * The judgment of the Court of Appeals is vacated, and the case is remanded for proceedings consistent with this opinion. It is so ordered. Notes 1 The Act defines the term “consumer report” as: 2 “The term ‘consumer reporting agency’ means any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports.” §1681a(f ). 3 This statutory provision uses the term “consumer,” but that term is defined to mean “an individual.” §1681a(c). 4 For purposes of this opinion, we assume that Spokeo is a consumer reporting agency. 5 See Edwards v. First American Corp ., 610 F. 3d 514 (CA9 2010), cert. granted sub nom. First American Financial Corp. v. Edwards , 564 U. S. 1018 (2011) , cert. dism’d as improvidently granted, 567 U. S. ___ (2012) ( per curiam ). 6 “That a suit may be a class action . . . adds nothing to the question of standing, for even named plaintiffs who represent a class ‘must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong.’ ” Simon v. Eastern Ky. Welfare Rights Organization , 426 U. S. 26, 40, n. 20 (1976) (quoting Warth , 422 U. S., at 502). 7 The fact that an injury may be suffered by a large number of people does not of itself make that injury a nonjusticiable generalized grievance. The victims’ injuries from a mass tort, for example, are widely shared, to be sure, but each individual suffers a particularized harm. 8 We express no view about any other types of false information that may merit similar treatment. We leave that issue for the Ninth Circuit to consider on remand. SUPREME COURT OF THE UNITED STATES _________________ No. 13–1339 _________________ SPOKEO, INC., PETITIONER v. THOMAS ROBINS on writ of certiorari to the united states court of appeals for the ninth circuit [May 16, 2016] Justice Thomas, concurring. The Court vacates and remands to have the Court of Appeals determine “whether the particular procedural violations alleged in this case entail a degree of risk sufficient to meet the concreteness requirement.” Ante, at 11. In defining what constitutes a concrete injury, the Court explains that “concrete” means “ ‘real,’ ” and “not ‘abstract,’ ” but is not “necessarily synonymous with ‘tan-gible.’ ” Ante , at 8–9. I join the Court’s opinion. I write separately to explain how, in my view, the injury-in-fact requirement applies to different types of rights. The judicial power of common-law courts was historically limited depending on the nature of the plaintiff’s suit. Common-law courts more readily entertained suits from private plaintiffs who alleged a violation of their own rights, in contrast to private plaintiffs who asserted claims vindicating public rights. Those limitations persist in modern standing doctrine. I A Standing doctrine limits the “judicial power” to “ ‘cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process.’ ” Vermont Agency of Natural Resources v. United States ex rel. Stevens , 529 U. S. 765, 774 (2000) (quoting Steel Co. v. Citizens for a Better Environ ment, 523 U. S. 83, 102 (1998) ). To understand the limits that standing imposes on “the judicial Power,” therefore, we must “refer directly to the traditional, fundamental limitations upon the powers of common-law courts.” Honig v. Doe , 484 U. S. 305, 340 (1988) (Scalia, J., dissenting). These limitations preserve separationof powers by preventing the judiciary’s entanglement in disputes that are primarily political in nature. This concern is generally absent when a private plaintiff seeks to enforce only his personal rights against another private party. Common-law courts imposed different limitations on a plaintiff’s right to bring suit depending on the type of right the plaintiff sought to vindicate. Historically,common-law courts possessed broad power to adjudicate suits involving the alleged violation of private rights, even when plaintiffs alleged only the violation of those rights and nothing more. “Private rights” are rights “belonging to individuals, considered as individuals.” 3 W. Blackstone, Commentaries *2 (hereinafter Blackstone). “Private rights” have traditionally included rights of personal security (including security of reputation), property rights, and contract rights. See 1 id. , at *130–*139; Woolhander & Nelson, Does History Defeat Standing Doctrine?, 102 Mich. L. Rev. 689, 693 (2004). In a suit for the violation of a private right, courts historically presumed that the plaintiff suffered a de facto injury merely from having his personal, legal rights invaded. Thus, when one man placed his foot on another’s property, the property owner needed to show nothing more to establish a traditional case or controversy. See Entick v. Carrington, 2 Wils. K. B. 275, 291, 95 Eng. Rep. 807, 817 (1765). Many traditional remedies for private-rights causes of action—such as for trespass, infringement of intellectual property, and unjust enrichment—are not contingent on a plaintiff’s allegation of damages beyond the violation of his private legal right. See Brief for Restitution and Remedies Scholars as Amici Curiae 6–18; see also Webb v. Portland Mfg. Co., 29 F. Cas. 506, 508 (No. 17,322) (Me. 1838) (stating that a legal injury “imports damage in the nature of it” (internal quotation marks omitted)). Common-law courts, however, have required a further showing of injury for violations of “public rights”—rights that involve duties owed “to the whole community, considered as a community, in its social aggregate capacity.” 4 Blackstone *5. Such rights include “free navigation of waterways, passage on public highways, and general compliance with regulatory law.” Woolhander & Nelson, 102 Mich. L. Rev., at 693. Generally, only the government had the authority to vindicate a harm borne by the public at large, such as the violation of the criminal laws. See id., at 695–700. Even in limited cases where private plaintiffs could bring a claim for the violation of public rights, they had to allege that the violation caused them “some extraordinary damage, beyond the rest of the [community].” 3 Blackstone *220 (discussing nuisance); see also Commonwealth v. Webb , 27 Va. 726, 729 (Gen. Ct. 1828).[ 1 ] An action to redress a public nuisance, for example, was historically considered an action to vindicate the violation of a public right at common law, lest “every subject in the kingdom” be able to “harass the offender with separate actions.” 3 Blackstone *219; see also 4 id., at *167 (same). But if the plaintiff could allege “special damage” as the result of a nuisance, the suit could proceed. The existence of special, individualized damage had the effect of creating a private action for compensatory relief to an otherwise public-rights claim. See 3 id., at *220. Similarly, a plaintiff had to allege individual damage in disputes over the use of public lands. E.g. , Robert Marys’s Case , 9 Co. Rep. 111b, 112b, 77 Eng. Rep. 895, 898–899 (K. B. 1613) (commoner must establish not only injuria [legal injury] but also damnum [damage] to challenge another’s overgrazing on the commons). B These differences between legal claims brought by private plaintiffs for the violation of public and private rights underlie modern standing doctrine and explain the Court’s description of the injury-in-fact requirement. “Injury in fact” is the first of three “irreducible” requirements for Article III standing. Lujan v. Defenders of Wildlife , 504 U. S. 555, 560 (1992) . The injury-in-fact requirement often stymies a private plaintiff’s attempt to vindicate the infringement of public rights. The Court has said time and again that, when a plaintiff seeks to vindicate a public right, the plaintiff must allege that he has suffered a “concrete” injury particular to himself. See Schlesinger v. Reservists Comm. to Stop the War , 418 U. S. 208 –223 (1974) (explaining this where plaintiffs sought to enforce the Incompatibility Clause, Art. I, §6, cl. 2, against Members of Congress holding reserve commissions in the Armed Forces); see also Lujan , supra , at 572–573 (evaluating standing where plaintiffs sought to enforce the Endangered Species Act); Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. , 528 U. S. 167 –184 (2000) (Clean Water Act). This requirement applies with special force when a plaintiff files suit to require an executive agency to “follow the law”; at that point, the citizen must prove that he “has sustained or is immediately in danger of sustaining a direct injury as a result of that [challenged] action and it is not sufficient that he has merely a general interest common to all members of the public.” Ex parte Levitt , 302 U. S. 633, 634 (1937) ( per curiam ). Thus, in a case where private plaintiffs sought to compel the U. S. Forest Service to follow certain procedures when it regulated “small fire-rehabilitation and timber-salvage projects,” we held that “deprivation of a procedural right without some concrete interest that is affected by the deprivation . . . is insufficient to create Article III standing,” even if “accorded by Congress.” Summers v. Earth Island Institute , 555 U. S. 488 –497 (2009). But the concrete-harm requirement does not apply as rigorously when a private plaintiff seeks to vindicate his own private rights. Our contemporary decisions have not required a plaintiff to assert an actual injury beyond the violation of his personal legal rights to satisfy the “injury-in-fact” requirement. See, e.g., Carey v. Piphus , 435 U. S. 247, 266 (1978) (holding that nominal damages are appropriate when a plaintiff’s constitutional rights have been infringed but he cannot show further injury). The separation-of-powers concerns underlying our public-rights decisions are not implicated when private indi-viduals sue to redress violations of their own private rights. But, when they are implicated, standing doctrine keeps courts out of political disputes by denying private litigants the right to test the abstract legality of government action. See Schlesinger , supra , at 222. And by limiting Congress’ ability to delegate law enforcement authority to private plaintiffs and the courts, standing doctrine preserves executive discretion. See Lujan , supra , at 577 (“ ‘To permit Congress to convert the undifferenti-ated public interest in executive officers’ compliance with the law into an ‘individual right’ vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive’s most important constitutional duty, to ‘take Care that the Laws be faithfully executed’ ”). But where one private party has alleged that another private party violated his private rights, there is generally no danger that the private party’s suit is an impermissible attempt to police the activity of the political branches or, more broadly, that the legislative branch has impermissibly delegated law enforcement authority from the executive to a private individual. See Hessick, Standing, Injury in Fact, and Private Rights, 93 Cornell L. Rev. 275, 317–321 (2008). C When Congress creates new private causes of action to vindicate private or public rights, these Article III principles circumscribe federal courts’ power to adjudicate a suit alleging the violation of those new legal rights. Congress can create new private rights and authorize private plaintiffs to sue based simply on the violation of those private rights. See Warth v. Seldin , 422 U. S. 490, 500 (1975) . A plaintiff seeking to vindicate a statutorily created private right need not allege actual harm beyond the invasion of that private right. See Havens Realty Corp. v. Coleman , 455 U. S. 363 –374 (1982) (recognizing standing for a violation of the Fair Housing Act); Tennessee Elec. Power Co. v. TVA , 306 U. S. 118 –138 (1939) (recognizing that standing can exist where “the right invaded is a legal right,—one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege”). A plaintiff seeking to vindicate a public right embodied in a federal statute, however, must demonstrate that the violation of that public right has caused him a concrete, individual harm distinct from the general population. See Lujan , supra , at 578 (noting that, whatever the scope of Congress’ power to create new legal rights, “it is clear that in suits against the Government, at least, the concrete injury requirement must remain”). Thus, Congress cannot authorize private plaintiffs to enforce public rights in their own names, absent some showing that the plaintiff has suffered a concrete harm particular to him. II Given these principles, I agree with the Court’s decision to vacate and remand. The Fair Credit Reporting Act creates a series of regulatory duties. Robins has no standing to sue Spokeo, in his own name, for violations of the duties that Spokeo owes to the public collectively, absent some showing that he has suffered concrete and particular harm. See supra, at 4–5. These consumer protection requirements include, for example, the requirement to “post a toll-free telephone number on [Spokeo’s] website through which consumers can request free annual file disclosures.” App. 23, First Amended Complaint ¶74; see 15 U. S. C. §1681j; 16 CFR §610.3(a)(1) (2010). But a remand is required because one claim in Robins’ complaint rests on a statutory provision that could argu-ably establish a private cause of action to vindicate the violation of a privately held right. Section 1681e(b) requires Robins to “follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates. ” §1681e(b) (emphasis added). If Congress has created a private duty owed personally to Robins to protect his information, then the violation of the legal duty suffices for Article III injury in fact. If that provision, however, vests any and all consumers with the power to police the “reasonable procedures” of Spokeo, without more, then Robins has no standing to sue for its violation absent an allegation that he has suffered individualized harm. On remand, the Court of Appeals can consider the nature of this claim. Notes 1 The well-established exception for qui tam actions allows private plaintiffs to sue in the government’s name for the violation of a public right. See Vermont Agency of Natural Resources v. United States ex rel. Stevens , 529 U. S. 765 –774 (2000). SUPREME COURT OF THE UNITED STATES _________________ No. 13–1339 _________________ SPOKEO, INC., PETITIONER v. THOMAS ROBINS on writ of certiorari to the united states court of appeals for the ninth circuit [May 16, 2016] Justice Ginsburg, with whom Justice Sotomayor joins, dissenting. In the Fair Credit Reporting Act of 1970 (FCRA or Act), 15 U. S. C. §1681 et seq. , Congress required consumer reporting agencies, whenever preparing a consumer report, to “follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” §1681e(b). To promote adherence to the Act’s procedural requirements, Congress granted adversely affected consumers a right to sue noncomplying reporting agencies. §1681n (willful noncompliance); §1681o (negligent noncompliance).[ 1 ] Thomas Robins instituted suit against Spokeo, Inc., alleging that Spokeo was a reporting agency governed by the FCRA, and that Spokeo maintains on its Web site an inaccurate consumer report about Robins. App. 13. In particular, Robins alleged that Spokeo posted “a picture . . . purport[ing] to be an image of Robins [that] was not in fact [of him],” and incorrectly reported that Robins “was in his 50s, . . . married, . . . employed in a professional or technical field, and . . . has children.” Id. , at 14. Robins further alleged that Spokeo’s profile of him continues to misrepresent “that he has a graduate degree, that his economic health is ‘Very Strong[,]’ and that his wealth level [is in] the ‘Top 10%.’ ” Ibid. Spokeo displayed that erroneous information, Robins asserts, when he was “out of work” and “actively seeking employment.” Ibid. Because of the misinformation, Robins stated, he encountered “[imminent and ongoing] actual harm to [his] employment prospects.” Ibid. [ 2 ] As Robins elaborated on brief, Spokeo’s report made him appear overqualified for jobs he might have gained, expectant of a higher salary than employers would be willing to pay, and less mobile because of family responsibilities. See Brief for Respondent 44. I agree with much of the Court’s opinion. Robins, the Court holds, meets the particularity requirement for standing under Article III. See ante, at 8, 11 (remanding only for concreteness inquiry). The Court acknowledges that Congress has the authority to confer rights and delineate claims for relief where none existed before. Ante, at 9; see Federal Election Comm’n v. Akins , 524 U. S. 11 –20 (1998) (holding that inability to procure information to which Congress has created a right in the Federal Election Campaign Act of 1971 qualifies as concrete injury satisfying Article III’s standing requirement); Public Citizen v. Department of Justice , 491 U. S. 440, 449 (1989) (holding that plaintiff advocacy organizations’ inability to obtain information that Congress made subject to disclosure under the Federal Advisory Committee Act “constitutes a sufficiently distinct injury to provide standing to sue”); Havens Realty Corp. v. Coleman , 455 U. S. 363, 373 (1982) (identifying, as Article III injury, violation of plaintiff’s right, secured by the Fair Housing Act, to “truthful information concerning the availability of housing”).[ 3 ] Congress’ connection of procedural requirements to the prevention of a substantive harm, the Court appears to agree, is “instructive and important.” Ante, at 9; see Lujan v. Defenders of Wildlife , 504 U. S. 555, 580 (1992) (Kennedy, J., concurring in part and concurring in judgment) (“As Government programs and policies become more complex and far reaching, we must be sensitive to the articulation of new rights of action . . . .”); Brief for Restitution and Remedies Scholars et al. as Amici Curiae 3 (“Congress cannot authorize individual plaintiffs to enforce generalized rights that belong to the whole public. But Congress can create new individual rights, and it can enact effective remedies for those rights.”). See generally Sunstein, Informational Regulation and Informational Standing: Akins and Beyond, 147 U. Pa. L. Rev. 613 (1999). I part ways with the Court, however, on the necessity of a remand to determine whether Robins’ particularized injury was “concrete.” See ante, at 11. Judged by what we have said about “concreteness,” Robins’ allegations carry him across the threshold. The Court’s opinion observes that time and again, our decisions have coupled the words “concrete and particularized.” Ante, at 8 (citing as examples, Susan B. Anthony List v. Driehaus , 573 U. S. ___, ___ (2014) (slip op., at 8); Summers v. Earth Island Institute , 555 U. S. 488, 493 (2009) ; Sprint Communications Co. v. APCC Services, Inc. , 554 U. S. 269, 274 (2008) ; Massachusetts v. EPA , 549 U. S. 497, 517 (2007) ). True, but true too, in the four cases cited by the Court, and many others, opinions do not discuss the separate offices of the terms “concrete” and “particularized.” Inspection of the Court’s decisions suggests that the particularity requirement bars complaints raising generalized grievances, seeking relief that no more benefits the plaintiff than it does the public at large. See, e.g., Lujan , 504 U. S., at 573–574 (a plaintiff “seeking relief that no more directly and tangibly benefits him than it does the public at large does not state an Article III case or controversy” (punctuation omitted)); Perkins v. Lukens Steel Co. , 310 U. S. 113, 125 (1940) (plaintiffs lack standing because they failed to show injury to “a particular right of their own, as distinguished from the public’s interest in the administration of the law”). Robins’ claim does not present a question of that character. He seeks redress, not for harm to the citizenry, but for Spokeo’s spread of misinformation specifically about him. Concreteness as a discrete requirement for standing, the Court’s decisions indicate, refers to the reality of an injury, harm that is real, not abstract, but not necessarily tangible. See ante, at 8–9; ante, at 1 (Thomas, J., concurring). Illustrative opinions include Akins , 524 U. S., at 20 (“[C]ourts will not pass upon abstract, intellectual problems, but adjudicate concrete, living contests between adversaries.” (internal quotation marks and alterations omitted)); Diamond v. Charles , 476 U. S. 54, 67 (1986) (plaintiff’s “abstract concern does not substitute for the concrete injury required by Art[icle] III” (internal quotation marks and ellipsis omitted)); Los Angeles v. Lyons , 461 U. S. 95, 101 (1983) (“Plaintiffs must demonstrate a personal stake in the outcome . . . . Abstract injury is not enough.” (internal quotation marks omitted)); Babbitt v. Farm Workers , 442 U. S. 289 –298 (1979) (“The difference between an abstract question and a ‘case or controversy’ is one of degree, of course, and is not discernable by any precise test. The basic inquiry is whether the conflicting contentions of the parties present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract.” (citation, some internal quotation marks, and ellipsis omitted)); Simon v. Eastern Ky. Welfare Rights Organization , 426 U. S. 26, 40 (1976) (“organization’s abstract concern . . . does not substitute for the concrete injury required by Art. III”); California Bankers Assn. v. Shultz , 416 U. S. 21, 69 (1974) (“There must be . . . concrete adverseness”; “[a]bstract injury is not enough.” (internal quotation marks omitted)); Railway Mail Assn. v. Corsi , 326 U. S. 88, 93 (1945) (controversy must be “definite and concrete, not hypothetical or abstract”); Coleman v. Miller , 307 U. S. 433, 460 (1939) (opinion of Frankfurter, J.) (“[I]t [is] not for courts to pass upon . . . abstract, intellectual problems but only . . . concrete, living contest[s] between adversaries call[ing] for the arbitrament of law.”). Robins would not qualify, the Court observes, if he alleged a “bare” procedural violation, ante, at 10, one that results in no harm, for example, “an incorrect zip code,” ante, at 11. Far from an incorrect zip code, Robins complains of misinformation about his education, family situation, and economic status, inaccurate representations that could affect his fortune in the job market. See Brief for Center for Democracy & Technology et al. as Amici Curiae 13 (Spokeo’s inaccuracies bore on Robins’ “ability to find employment by creating the erroneous impression that he was overqualified for the work he was seeking, that he might be unwilling to relocate for a job due to family commitments, or that his salary demands would exceed what prospective employers were prepared to offer him.”); Brief for Restitution and Remedies Scholars et al. as Amici Curiae 35 (“An applicant can lose [a] job for being over-qualified; a suitor can lose a woman if she reads that he is married.”). The FCRA’s procedural requirements aimed to prevent such harm. See 115 Cong. Rec. 2410–2415 (1969). I therefore see no utility in returning this case to the Ninth Circuit to underscore what Robins’ complaint already conveys concretely: Spokeo’s misinformation “cause[s] actual harm to [his] employment prospects.” App. 14. *  *  * For the reasons stated, I would affirm the Ninth Circuit’s judgment. Notes 1 Congress added the right of action for willful violations in 1996 as part of the Consumer Credit Reporting Reform Act, 110Stat. 3009–426. 2 Because this case remains at the pleading stage, the court of first instance must assume the truth of Robins’ factual allegations. In particular, that court must assume, subject to later proof, that Spokeo is a consumer reporting agency under 15 U. S. C. §1681a(f ) and that, in preparing consumer reports, Spokeo does not employ reasonable procedures to ensure maximum possible accuracy, in violation of the FCRA. 3 Just as the right to truthful information at stake in Havens Realty Corp. v. Coleman , 455 U. S. 363 (1982) , was closely tied to the Fair Housing Act’s goal of eradicating racial discrimination in housing, so the right here at stake is closely tied to the FCRA’s goal of protecting consumers against dissemination of inaccurate credit information about them.

The Supreme Court ruled that incorrect information on a consumer report, in this case, provided by Spokeo, must be both "concrete and particularized" to be considered a valid injury. The case was sent back to the Ninth Circuit to determine whether the incorrect information about Robins' education, family, and economic status was, in fact, harmful to his employment prospects.

Role of Courts

Uzuegbunam v. Preczewski

https://supreme.justia.com/cases/federal/us/592/19-968/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 19–968 _________________ CHIKE UZUEGBUNAM, et al., PETITIONERS v. STANLEY C. PRECZEWSKI, et al. on writ of certiorari to the united states court of appeals for the eleventh circuit [March 8, 2021] Justice Thomas delivered the opinion of the Court. At all stages of litigation, a plaintiff must maintain a personal interest in the dispute. The doctrine of standing generally assesses whether that interest exists at the outset, while the doctrine of mootness considers whether it exists throughout the proceedings. To demonstrate standing, the plaintiff must not only establish an injury that is fairly traceable to the challenged conduct but must also seek a remedy that redresses that injury. And if in the course of litigation a court finds that it can no longer provide a plaintiff with any effectual relief, the case generally is moot. This case asks whether an award of nominal damages by itself can redress a past injury. We hold that it can. I According to the complaint, Chike Uzuegbunam is an evangelical Christian who believes that an important part of exercising his religion includes sharing his faith. In 2016, Uzuegbunam decided to share his faith at Georgia Gwinnett College, a public college where he was enrolled as a student. At an outdoor plaza on campus near the library where students often gather, Uzuegbunam engaged in conversations with interested students and handed out religious literature. A campus police officer soon informed Uzuegbunam that campus policy prohibited distributing written religious materials in that area and told him to stop. Uzuegbunam complied with the officer’s order. To learn more about this policy, he then visited the college’s Director of the Office of Student Integrity, who was directly responsible for promulgating and enforcing the policy. When asked if Uzuegbunam could continue speaking about his religion if he stopped distributing materials, the official said no. The official explained that Uzuegbunam could speak about his religion or distribute materials only in two designated “free speech expression areas,” which together make up just 0.0015 percent of campus. And he could do so only after securing the necessary permit. Uzuegbunam then applied for and received a permit to use the free speech zone. Twenty minutes after Uzuegbunam began speaking on the day allowed by his permit, another campus police officer again told him to stop, this time saying that people had complained about his speech. Campus policy prohibited using the free speech zone to say anything that “disturbs the peace and/or comfort of person(s).” App. to Pet. for Cert. 151(a). The officer told Uzuegbunam that his speech violated this policy because it had led to complaints. The officer threatened Uzuegbunam with disciplinary action if he continued. Uzuegbunam again complied with the order to stop speaking. Another student who shares Uzuegbunam’s faith, Joseph Bradford, decided not to speak about religion because of these events. Both students sued a number of college officials in charge of enforcing the college’s speech policies, arguing that those policies violated the First Amendment. As relevant here, they sought nominal damages and injunctive relief. Respondents initially attempted to defend the policy, stating that Uzuegbunam’s discussion of his religion “arguably rose to the level of ‘fighting words.’ ” Id., at 155(a). But the college officials quickly abandoned that strategy and instead decided to get rid of the challenged policies. They then moved to dismiss, arguing that the suit was moot, because of the policy change. The students agreed that injunctive relief was no longer available, but they disagreed that the case was moot. They contended that their case was still live because they had also sought nominal damages. The District Court dismissed the case, holding that the students’ claim for nominal damages was insufficient by itself to establish standing. The Eleventh Circuit affirmed. 781 Fed. Appx. 824 (2019). It stated that a request for nominal damages can save a case from mootness in certain circumstances, such as where a person pleads but fails to prove an amount of compensatory damages. But, because the students did not request compensatory damages, their plea for nominal damages could not by itself establish standing. We granted certiorari to consider whether a plaintiff who sues over a completed injury and establishes the first two elements of standing (injury and traceability) can establish the third by requesting only nominal damages. 591 U. S. ___ (2020). We now reverse. II To satisfy the “ ‘irreducible constitutional minimum’ ” of Article III standing, a plaintiff must not only establish (1) an injury in fact (2) that is fairly traceable to the challenged conduct, but he must also seek (3) a remedy that is likely to redress that injury. Spokeo, Inc. v. Robins , 578 U.S. 330, 338 (2016); see also Gill v. Whitford , 585 U. S. ___, ___–___ (2018) (slip op., at 13–14). There is no dispute that Uzuegbunam has established the first two elements. The only question is whether the remedy he sought—nominal damages—can redress the constitutional violation that Uzuegbunam alleges occurred when campus officials enforced the speech policies against him. A In determining whether nominal damages can redress a past injury, we look to the forms of relief awarded at common law. “Article III’s restriction of the judicial power to ‘Cases’ and ‘Controversies’ is properly understood to mean ‘cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process.’ ” Vermont Agency of Natural Resources v. United States ex rel. Stevens , 529 U.S. 765 , 774 (2000) (quoting Steel Co. v. Citizens for Better Environment , 523 U.S. 83 , 102 (1998)); cf. Memphis Community School Dist. v. Stachura , 477 U.S. 299 , 306 (1986) (relief for “§1983 plaintiffs . . . is ordinarily determined according to principles derived from the common law of torts”). The parties here agree that courts at common law routinely awarded nominal damages. They, instead, dispute what kinds of harms those damages could redress. Both sides agree that nominal damages historically could provide prospective relief. The award of nominal damages was one way for plaintiffs at common law to “obtain a form of declaratory relief in a legal system with no general declaratory judgment act.” D. Laycock & R. Hasen, Modern American Remedies 636 (5th ed. 2019). For example, a trespass to land or water rights might raise a prospective threat to a property right by creating the foundation for a future claim of adverse possession or prescriptive easement. Blanchard v. Baker , 8 Me. 253, 268 (1832) (“If an unlawful diversion [of water] is suffered for twenty years, it ripens into a right, which cannot be controverted”). By obtaining a declaration of trespass, a property owner could “vindicate his right by action” and protect against those future threats. Ibid. Courts at common law would not declare property boundaries in the abstract, “but the suit for nominal damages allowed them to do so indirectly.” Laycock, supra, at 636. The parties disagree, however, about whether nominal damages alone could provide retrospective relief. Stressing the declaratory function, respondents argue that nominal damages by themselves redressed only continuing or threatened injury, not past injury. But cases at common law paint a different picture. Early courts required the plaintiff to prove actual monetary damages in every case: “[I]njuria & damnum [injury and damage] are the two grounds for the having [of] all actions, and without these, no action lieth.” Cable v. Rogers , 3 Bulst. 311, 312, 81 Eng. Rep. 259 (K. B. 1625). Later courts, however, reasoned that every legal injury necessarily causes damage, so they awarded nominal damages absent evidence of other damages (such as compensatory, statutory, or punitive damages), and they did so where there was no apparent continuing or threatened injury for nominal damages to redress. See, e.g., Barker v. Green , 2 Bing. 317, 130 Eng. Rep. 327 (C. P. 1824) (nominal damages awarded for 1-day delay in arrest because “if there was a breach of duty the law would presume some damage”); Hatch v. Lewis , 2 F. & F. 467, 479, 485–486, 175 Eng. Rep. 1145, 1150, 1153 (N. P. 1861) (ineffective assistance by criminal defense attorney that does not prejudice the client); Dods v. Evans , 15 C. B. N. S. 621, 624, 627, 143 Eng. Rep. 929, 930–931 (C. P. 1864) (breach of contract); Marzetti v. Williams , 1 B. & Ad. 415, 417–418, 423–428, 109 Eng. Rep. 842, 843, 845–847 (K. B. 1830) (bank’s 1-day delay in paying on a check); id., at 424, 109 Eng. Rep., at 845 (recognizing that breach of contract could create a continuing injury but determining that the fact of breach of contract by itself justified nominal damages). The latter approach was followed both before and after ratification of the Constitution. An early case about voting rights effectively illustrates this common-law understanding. Faced with a suit pleading denial of the right to vote, the court rejected the plaintiff ’s claim because, among other reasons, the plaintiff had not established actual damages. Ashby v. White , 2 Raym. Ld. 938, 941–943, 948, 92 Eng. Rep. 126, 129, 130, 133 (K. B. 1703). Dissenting, Lord Holt argued that the common law inferred damages whenever a legal right was violated. Observing that the law recognized “not merely pecuniary” injury but also “personal injury,” Lord Holt stated that “every injury imports a damage” and that a plaintiff could always obtain damages even if he “does not lose a penny by reason of the [violation].” Id. , at 955, 92 Eng. Rep., at 137. Although Lord Holt was in the minority, the House of Lords overturned the majority decision, thus validating Lord Holt’s position, 3 Salk. 17, 91 Eng. Rep. 665 (K. B. 1703), and this principle “laid down . . . by Lord Holt” was followed “in many subsequent cases,” Embrey v. Owen , 6 Exch. 353, 368, 155 Eng. Rep. 579, 585 (1851). The dissent correctly notes that English courts differed in some respects from courts under our system, but Lord Holt’s position also prevailed in courts on this side of the Atlantic. Applying what he called Lord Holt’s “incontrovertible” reasoning, Justice Story explained that a prevailing plaintiff “is entitled to a verdict for nominal damages” whenever “no other [kind of damages] be proved.” Webb v. Portland Mfg. Co. , 29 F. Cas. 506, 508–509 (No. 17,322) (CC Me. 1838). Because the common law recognized that “every violation imports damage,” Justice Story reasoned that “[t]he law tolerates no farther inquiry than whether there has been the violation of a right.” Ibid. Justice Story also made clear that this logic applied to both retrospective and prospective relief. Id., at 507 (stating that nominal damages are available “wherever there is a wrong” and that, “[a] fortiori, this doctrine applies where there is not only a violation of a right of the plaintiff, but the act of the defendant, if continued, may become the foundation, by lapse of time, of an adverse right”). The dissent discounts Justice Story’s statement, saying that he took a potentially contradictory position elsewhere and asserted that both actual damages and a violation of a legal right are required. Post, at 7–8 (opinion of Roberts, C. J.). But in the same source the dissent cites, Justice Story said that nominal damages are “presumed” “[w]here the breach of duty is clear.” Commentaries on the Law of Agency §217, p. 211 (1839). Justice Story adopted the same position a few years later. Whipple v. Cumberland Mfg. Co. , 29 F. Cas. 934, 936 (No. 17,516) (CC Me. 1843) (stating that it is “well-known and well-settled” that “wherever a wrong is done to a right,” at minimum “nominal damages will be given”). And other jurists declared that “[t]he principle that every injury legally imports damage, was decisively settled, in the case of Ashby .” Parker v. Griswold , 17 Conn. *288, *304–*306 (1845) (citing many cases on both sides of the Atlantic, including Webb and Marzetti ). This history is hardly one of “indeterminate sources.” Post, at 8. Admittedly, the rule allowing nominal damages for a violation of any legal right, though “decisively settled,” Parker, 17 Conn., at *304, was not universally followed—as is true for most common-law doctrines. And some courts only followed the rule in part, recognizing the availability of nominal damages but holding that the improper denial of nominal damages could be harmless error. Yet, even among these courts, many adopted the rule in full whenever a person proved that there was a violation of an “important right.” E.g., Hecht v. Harrison , 5 Wyo. 279, 290, 40 P. 306 , 309–310 (1895); accord, Reid v. Johnson , 132 Ind. 416, 419, 31 N.E. 1107, 1108 (1892) (“substantial right”). Nonetheless, the prevailing rule, “well established” at common law, was “that a party whose rights are invaded can always recover nominal damages without furnishing any evidence of actual damage.” 1 T. Sedgwick, Measure of Damages 71, n. a (7th ed. 1880); see also id., at 72 (citing Lord Holt’s opinion in Ashby ). That this rule developed at common law is unsurprising in the light of the noneconomic rights that individuals had at that time. A contrary rule would have meant, in many cases, that there was no remedy at all for those rights, such as due process or voting rights, that were not readily reducible to monetary valuation. See D. Dobbs, Law of Remedies §3.3(2) (3d ed. 2018) (nominal damages are often awarded for a right “not economic in character and for which no substantial non-pecuniary award is available”); see also Carey v. Piphus , 435 U.S. 247 , 266–267 (1978) (awarding nominal damages for a violation of procedural due process). By permitting plaintiffs to pursue nominal damages whenever they suffered a personal legal injury, the common law avoided the oddity of privileging small-dollar economic rights over important, but not easily quantifiable, nonpecuniary rights. B Respondents and the dissent attempt to discount this historical line of cases by contending that something other than nominal damages provided redressability. They argue instead that courts could award nominal damages only when a plaintiff pleaded compensatory damages but failed to prove a specific amount. In those circumstances, they say, the plea for compensatory damages is what satisfied the redressability requirement, and courts awarded nominal damages merely as a technical matter. We do not agree. To begin with, the cases themselves did not require a plea for compensatory damages as a condition for receiving nominal damages. Lord Holt spoke in categorical terms: “[E]very injury imports a damage,” so a plaintiff who proved a legal violation could always obtain some form of damages because he “must of necessity have a means to vindicate and maintain [the right].” Ashby , 2 Raym. Ld., at 953–955, 92 Eng. Rep., at 136–137. Justice Story’s language was no less definitive: “The law tolerates no farther inquiry than whether there has been the violation of a right.” Webb , 29 F. Cas., at 508. When a right is violated, that violation “imports damage in the nature of it” and “the party injured is entitled to a verdict for nominal damages.” Id. , at 508. Respondents and the dissent thus get the relationship between nominal damages and compensatory damages backwards. Nominal damages are not a consolation prize for the plaintiff who pleads, but fails to prove, compensatory damages. They are instead the damages awarded by default until the plaintiff establishes entitlement to some other form of damages, such as compensatory or statutory damages. See, e.g., Dods , 15 C. B. N. S., at 621, 627, 143 Eng. Rep., at 929, 931 (prevailing plaintiff entitled to nominal damages as a matter of law even where jury neglected to find them); see also Stachura , 477 U. S., at 308 (rejecting the argument that courts could presume, without proof, damages greater than nominal). The argument that a claim for compensatory damages is a prerequisite for an award of nominal damages also rests on the flawed premise that nominal damages are purely symbolic, a mere judicial token that provides no actual benefit to the plaintiff. That contention is not without some support. See, e.g., Stanton v . New York & Eastern R. Co. , 59 Conn. 272, 282, 22 A. 300, 303 (1890) (“Nominal damages mean no damages at all. They exist only in name, and not in amount”); but cf. ibid. (still recognizing that nominal damages are appropriate when a right is violated). But this view is against the weight of the history discussed above, and we have already expressly rejected it. Despite being small, nominal damages are certainly concrete. The dissent says that “an award of nominal damages does not change [a plaintiff’s] status or condition at all.” Post, at 3. But we have already held that a person who is awarded nominal damages receives “relief on the merits of his claim” and “may demand payment for nominal damages no less than he may demand payment for millions of dollars in compensatory damages.” Farrar v. Hobby , 506 U.S. 103 , 111, 113 (1992). Because nominal damages are in fact damages paid to the plaintiff, they “affec[t] the behavior of the defendant towards the plaintiff ” and thus independently provide redress. Hewitt v. Helms , 482 U.S. 755 , 761 (1987) (emphasis deleted); accord, Mission Product Holdings, Inc. v. Tempnology, LLC , 587 U. S. ___, ___ (2019) (slip op., at 6) (“If there is any chance of money changing hands, [the] suit remains live”). True, a single dollar often cannot provide full redress, but the ability “to effectuate a partial remedy” satisfies the redressability requirement. Church of Scientology of Cal . v. United States , 506 U.S. 9 , 13 (1992). The next difficulty faced by respondents and the dissent is their inability to square their argument with established principles of standing. Because redressability is an “ ‘irreducible’ ” component of standing, Spokeo , 578 U. S., at 338, no federal court has jurisdiction to enter a judgment unless it provides a remedy that can redress the plaintiff ’s injury. Yet early courts routinely awarded nominal damages alone. Certainly, no one seems to think that those judgments were without legal effect. Those nominal damages necessarily must have provided redress. Respondents contend that a request for compensatory damages at the pleading stage was what provided the basis for nominal damages at the judgment stage. But a plaintiff must maintain a personal interest in the dispute at every stage of litigation, including when judgment is entered, Lujan v. Defenders of Wildlife , 504 U.S. 555 , 561 (1992), and must do so “separately for each form of relief sought,” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. , 528 U.S. 167 , 185 (2000). As soon as a plea for compensatory damages fails at the factfinding stage of litigation, that plea can no longer support jurisdiction for a favorable judgment. The dissent’s contrary assertion is unaccompanied by any citation. Likewise, any analogy to attorney’s fees and costs fails. A request for attorney’s fees or costs cannot establish standing because those awards are merely a “byproduct” of a suit that already succeeded, not a form of redressability. Steel Co. , 523 U. S., at 107; see also Lewis v. Continental Bank Corp. , 494 U.S. 472 , 480 (1990). In contrast, nominal damages are redress, not a byproduct. III Because nominal damages were available at common law in analogous circumstances, we conclude that a request for nominal damages satisfies the redressability element of standing where a plaintiff’s claim is based on a completed violation of a legal right. The dissent worries that after today the Judiciary will be required to weigh in on legal questions “whenever a plaintiff asks for a dollar.” Post, at 9. But petitioners still would have satisfied redressability if instead of one dollar in nominal damages they sought one dollar in compensation for a wasted bus fare to travel to the free speech zone. The dissent “would place a higher value on Article III” than a dollar. Post, at 1; but see Sprint Communications Co. v. APCC Services, Inc. , 554 U.S. 269 , 305 (2008) (Roberts, C. J., dissenting) (“Article III is worth a dollar”). But Congress abolished the statutory amount-in-controversy requirement for federal-question jurisdiction in 1980. Federal Question Jurisdictional Amendments Act, 94Stat. 2369. And we have never held that one applies as a matter of constitutional law. This is not to say that a request for nominal damages guarantees entry to court. Our holding concerns only redressability. It remains for the plaintiff to establish the other elements of standing (such as a particularized injury); plead a cognizable cause of action, Planck v. Anderson , 5 T. R. 37, 41, 101 Eng. Rep. 21, 23 (K. B. 1792) (“if no [actual] damage be sustained, the creditor has no cause of action” for some claims); and meet all other relevant requirements. We hold only that, for the purpose of Article III standing, nominal damages provide the necessary redress for a completed violation of a legal right. Applying this principle here is straightforward. For purposes of this appeal, it is undisputed that Uzuegbunam experienced a completed violation of his constitutional rights when respondents enforced their speech policies against him. Because “every violation [of a right] imports damage,” Webb , 29 F. Cas., at 509, nominal damages can redress Uzuegbunam’s injury even if he cannot or chooses not to quantify that harm in economic terms.[ 1 ]* The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 *We do not decide whether Bradford can pursue nominal damages. Nominal damages go only to redressability and are unavailable where a plaintiff has failed to establish a past, completed injury. The District Court should determine in the first instance whether the enforcement against Uzuegbunam also violated Bradford’s constitutional rights. SUPREME COURT OF THE UNITED STATES _________________ No. 19–968 _________________ CHIKE UZUEGBUNAM, et al., PETITIONERS v. STANLEY C. PRECZEWSKI, et al. on writ of certiorari to the united states court of appeals for the eleventh circuit [March 8, 2021] Justice Kavanaugh, concurring. I agree with the Court that, as a matter of history and precedent, a plaintiff’s request for nominal damages can satisfy the redressability requirement for Article III standing and can keep an otherwise moot case alive. I write separately simply to note that I agree with The Chief Justice and the Solicitor General that a defendant should be able to accept the entry of a judgment for nominal damages against it and thereby end the litigation without a resolution of the merits. Post , at 11 (Roberts, C. J., dissenting); Brief for United States as Amicus Curiae 29–30. SUPREME COURT OF THE UNITED STATES _________________ No. 19–968 _________________ CHIKE UZUEGBUNAM, et al., PETITIONERS v. STANLEY C. PRECZEWSKI, et al. on writ of certiorari to the united states court of appeals for the eleventh circuit [March 8, 2021] Chief Justice Roberts, dissenting. Petitioners Chike Uzuegbunam and Joseph Bradford want to challenge the constitutionality of speech restrictions at Georgia Gwinnett College. There are just a few problems: Uzuegbunam and Bradford are no longer students at the college. The challenged restrictions no longer exist. And the petitioners have not alleged actual damages. The case is therefore moot because a federal court cannot grant Uzuegbunam and Bradford “any effectual relief whatever.” Chafin v. Chafin , 568 U.S. 165 , 172 (2013) (internal quotation marks omitted). The Court resists this conclusion, holding that the petitioners can keep pressing their claims because they have asked for “nominal damages.” In the Court’s view, nominal damages can save a case from mootness because any amount of money—no matter how trivial—“can redress a past injury.” Ante, at 1. But an award of nominal damages does not alleviate the harms suffered by a plaintiff, and is not intended to. If nominal damages can preserve a live controversy, then federal courts will be required to give advisory opinions whenever a plaintiff tacks on a request for a dollar. Because I would place a higher value on Article III, I respectfully dissent. I In urging the ratification of the Constitution, Alexander Hamilton famously wrote that “the judiciary, from the nature of its functions, will always be the least dangerous” of “the different departments of power.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961). This was so, Hamilton explained, because the Judiciary “will be least in a capacity to annoy or injure” “the political rights of the Constitution.” Ibid. Whereas “[t]he executive not only dispenses the honors but holds the sword of the community,” and “[t]he legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated,” the Judiciary “may truly be said to have neither FORCE nor WILL but merely judgment.” Ibid. But that power of judgment can nonetheless bind the Executive and Legislature—and the States. It is modest only if confined to its proper sphere. As John Marshall emphasized during his one term in the House of Representatives, “[i]f the judicial power extended to every question under the constitution” or “to every question under the laws and treaties of the United States,” then “[t]he division of power [among the branches of Government] could exist no longer, and the other departments would be swallowed up by the judiciary.” 4 Papers of John Marshall 95 (C. Cullen ed. 1984) (quoted in DaimlerChrysler Corp. v. Cuno , 547 U.S. 332 , 341 (2006)). To maintain adequate separation between the Judiciary, on the one hand, and the political branches and the States, on the other, Article III of the Constitution authorizes federal courts to decide only “Cases” and “Controversies”—that is, “cases of a Judiciary nature.” 2 Records of the Federal Convention of 1787, p. 430 (M. Farrand ed. 1966) (J. Madison). The case-or-controversy requirement imposes fundamental restrictions on who can invoke federal jurisdiction and what types of disputes federal courts can resolve. As pertinent here, “when it is impossible for a court to grant any effectual relief whatever to the prevailing party,” Chafin , 568 U. S., at 172 (internal quotation marks omitted), the case is moot, and the court has no power to decide it, see Spencer v. Kemna , 523 U.S. 1 , 18 (1998). To decide a moot case would be to give an advisory opinion, in violation of “the oldest and most consistent thread in the federal law of justiciability.” Flast v. Cohen , 392 U.S. 83 , 96 (1968) (internal quotation marks omitted). By insisting that judges be able to provide meaningful redress to litigants, Article III ensures that federal courts exercise their authority only “as a necessity in the determination of real, earnest and vital controversy between individuals.” Chicago & Grand Trunk R. Co. v. Wellman , 143 U.S. 339 , 345 (1892); see Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. , 454 U.S. 464 , 471 (1982) (“The constitutional power of federal courts cannot be defined, and indeed has no substance, without reference to the necessity ‘to adjudge the legal rights of litigants in actual controversies.’ ” (quoting Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration , 113 U.S. 33 , 39 (1885))). When plaintiffs like Uzuegbunam and Bradford allege neither actual damages nor the prospect of future injury, an award of nominal damages does not change their status or condition at all. Such an award instead represents a judicial determination that the plaintiffs’ interpretation of the law is correct—nothing more. The court in such a case is acting not as an Article III court, but as a moot court, deciding cases “in the rarified atmosphere of a debating society.” Director, Office of Workers’ Compensation Programs v. Perini North River Associates , 459 U.S. 297 , 305 (1983) (internal quotation marks omitted). II The Court sees no problem with turning judges into advice columnists. In its view, the common law and (to a lesser extent) our cases require that federal courts open their doors to any plaintiff who asks for a dollar. I part ways with the Court regarding both the framework it applies and the result it reaches. Begin with the framework. The Court’s initial premise is that we must “look to the forms of relief awarded at common law” in order to decide “whether nominal damages can redress a past injury.” Ante, at 4. Because the Court finds that “nominal damages were available at common law in analogous circumstances” to the ones before us, it “conclude[s] that a request for nominal damages satisfies the redressability element of standing where a plaintiff ’s claim is based on a completed violation of a legal right.” Ante, at 11. Any lessons that we learn from the common law, however, must be tempered by differences in constitutional design. The structure and function of 18th-century English courts were in many respects irreconcilable with “the role assigned to the judiciary in a tripartite allocation of power.” Flast, 392 U. S., at 95. Perhaps most saliently, in England “all jurisdictions of courts [were] either mediately or immediately derived from the crown,” 1 W. Blackstone, Commentaries on the Laws of England 257 (1765), an organizational principle the Framers explicitly rejected by separating the Executive from the Judiciary. This difference in organization yielded a difference in operation. To give just one example, “English judicial practice with which early Americans were familiar had long permitted the Crown to solicit advisory opinions from judges.” R. Fallon, J. Manning, D. Meltzer, & D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 52 (7th ed. 2015). We would not look to such practice for guidance today if a plaintiff came into court arguing that advisory opinions were in fact an appropriate form of Article III redress. We would know that they are not. We likewise should know that a bare request for nominal damages is not justiciable because the plaintiff cannot “benefit in a tangible way from the court’s intervention.” Steel Co. v. Citizens for Better Environment , 523 U.S. 83 , 103, n. 5 (1998) (internal quotation marks omitted). We should of course consult founding-era decisions when discerning the boundaries of our jurisdiction, for the Framers sought to limit the judicial power to “Cases” and “Controversies,” as those terms were understood at the time. See Coleman v. Miller , 307 U.S. 433 , 460 (1939) (opinion of Frankfurter, J.). No question. But that does not mean that the requirements of Article III are “satisfied merely because a party requests a court of the United States to declare its legal rights, and has couched that request for forms of relief historically associated with courts of law in terms that have a familiar ring to those trained in the legal process.” Valley Forge , 454 U. S., at 471. A focus on common law analogues cannot obscure the significance of the establishment of an independent Judiciary—a “remarkable transformation” from a system with courts operating as “appendages of crown power.” Gordon S. Wood, The Origins of Judicial Review, 22 Suffolk U. L. Rev. 1293, 1304 (1988). That transformation carries with it the need to cabin the jurisdiction of the Judiciary to ensure it does not trespass on the province of the political branches. It is in any event entirely unclear whether common law courts would have awarded nominal damages in a case like the one before us. There is no dispute that “nominal damages historically could provide prospective relief,” because such awards allowed “plaintiffs at common law to ‘obtain a form of declaratory relief in a legal system with no general declaratory judgment act.’ ” Ante, at 4 (quoting D. Laycock & R. Hasen, Modern American Remedies 636 (5th ed. 2019); emphasis added); see Borchard, The Declaratory Judgment—A Needed Procedural Reform, 28 Yale L. J. 1, 25–29 (1918) (describing the development of declaratory judgments in England in the second half of the 19th century). Yet the petitioners in this case no longer seek prospective relief. Although they initially asked for a declaratory judgment and a preliminary injunction, they abandoned those requests once the college rescinded the challenged policies. The Court is correct to note that plaintiffs at common law often received nominal damages for past violations of their rights. Those awards, however, were generally limited to situations in which prevailing plaintiffs tried and failed to prove actual damages. See 1 D. Dobbs, Law of Remedies §3.3(2), p. 296 (2d ed. 1993) (describing nominal damages awards as “a rescue operation”). Notwithstanding the Court’s protestations to the contrary, nominal damages in such cases were in fact a “consolation prize,” ante, at 9, awarded as a hook to allow prevailing plaintiffs to at least recover attorney’s fees and costs. See W. Hale, Handbook on the Law of Damages 30–31 (1896) (“The importance of the right to recover nominal damages often consists in its effect on costs.”); 1 T. Sedgwick, Measure of Damages §96, p. 164 (9th ed. 1912) (“[T]hey are a mere peg to hang costs on.” (internal quotation marks omitted)). The petitioners in this case have asked to recover their fees and costs, but they never sought actual damages, so the common law provides little relevant support. On this last point, the Court acknowledges in several places that the historical record is mixed as to whether legal violations were actionable at all without a showing of compensable harm. See ante, at 5, 7. And the Court does not cite any case in which plaintiffs sought only nominal damages for purely retrospective injuries. The Court instead relies on several decisions that contained live damages claims, see Barker v. Green , 2 Bing. 317, 130 Eng. Rep. 327 (C. P. 1824) (“actual damage was the gist of the action”); Hatch v. Lewis , 2 F. & F. 467, 469, 175 Eng. Rep. 1145, 1146 (N. P. 1861) (defendants’ ineffective assistance allegedly caused plaintiff to be “deprived of the profits and emoluments he might otherwise have obtained”); Dods v. Evans , 15 C. B. N. S. 621, 143 Eng. Rep. 929 (C. P. 1864) (action for damages), or involved prospective harm to the plaintiff ’s reputation, see Marzetti v. Williams , 1 B. & Ad. 415, 420, 109 Eng. Rep. 842, 844 (K. B. 1830) (bank’s failure to timely pay “was injurious to the character of the plaintiff in his trade”); see also C. Addison, Law of Torts 46–47 (1860) (defamation actionable without proof of damage). The Court also appeals to “categorical” and “definitive” statements by Lord Chief Justice Holt and Justice Story, that “every injury imports a damage,” Ashby v. White , 2 Raym. Ld. 938, 955, 92 Eng. Rep. 126, 137 (K. B. 1703), and that “[t]he law tolerates no farther inquiry than whether there has been the violation of a right,” Webb v. Portland Mfg. Co. , 29 F. Cas. 506, 508 (No. 17,322) (CC Me. 1838). Ante, at 8–9. These statements, however, bear less weight than the Court suggests. Lord Holt was alone in dissent in Ashby (no shame there), and although his opinion has been cited favorably by subsequent cases and commentary, his colleagues disagreed with him. The Court writes that “the House of Lords overturned the majority decision, thus validating Lord Holt’s position,” ante, at 6, but the House of Lords likely paid scant attention to Lord Holt’s analysis. It appears instead that the majority decision was reversed as collateral damage in a Whig-Tory political dispute, and “little weight was given to reasoning or eloquence.” 2 J. Campbell, Lives of the Chief Justices of England 160 (1849). (Ashby had tried to vote for a Whig candidate, and his ballot had been rejected as part of a Tory election-rigging scheme. Id., at 156–157.) Regardless, the House of Lords held that Ashby “should recover his damages assessed by the jury” at trial, suggesting that the fact of injury alone did not “import” them. Ashby v. White , 1 Bro. P. C. 62, 64, 1 Eng. Rep. 417, 418 (1703). Justice Story is no more helpful to the Court—despite the supposedly “definitive” nature of his statement in Webb —as he took the position elsewhere in his writings that a legal violation alone was not sufficient to ground a lawsuit. See Commentaries on the Law of Agency §236, p. 200 (1839) (“[T]he rule applies, that though it is a wrong, it is without any damage; and, to maintain an action, both must concur; for damnum absque injuria , and injuria absque damno , are equally objections to any recovery.”). Perhaps Justice Story’s conflicting statements can be reconciled, see ante, at 7; Hessick, Standing, Injury in Fact, and Private Rights, 93 Cornell L. Rev. 275, 283, n. 38 (2008), but neither his commentary nor Lord Holt’s dissent provides firm footing for the position that a plaintiff could seek nominal damages without alleging actual damages or prospective harm. At bottom, the Court relies on a handful of indeterminate sources to justify a radical expansion of the judicial power. The Court acknowledges that “the rule allowing nominal damages for a violation of any legal right . . . was not universally followed,” ante, at 7, but even this concession understates the equivocal nature of the historical record. I would require more before bursting the bounds of Article III. The Court spends little time trying to reconcile its analysis with modern justiciability principles. It cites in passing our decisions in Carey v. Piphus , 435 U.S. 247 (1978), Memphis Community School Dist. v. Stachura , 477 U.S. 299 (1986), and Farrar v. Hobby , 506 U.S. 103 (1992), but those cases made no mention of Article III, and none involved a standalone claim for nominal damages. The Court also contends that nominal damages must provide redress because courts would otherwise lack jurisdiction to award them, even where a plaintiff tries and fails to prove actual damages. See ante, at 10. But a claim for actual damages preserves a live controversy, see Memphis Light, Gas & Water Div. v. Craft , 436 U.S. 1 , 8–9 (1978), and a court does not lose jurisdiction just because that claim ultimately fails. Finally, the Court argues that nominal damages provide Article III relief because they “affec[t] the behavior of the defendant towards the plaintiff ” by requiring “money changing hands.” Ante, at 10 (internal quotation marks omitted). If this were the standard, then the prospect of attorney’s fees and costs would confer standing at the beginning of a lawsuit and prevent mootness throughout—a proposition we have squarely rejected. See Lewis v. Continental Bank Corp. , 494 U.S. 472 , 480 (1990). The Court posits that “nominal damages are redress,” whereas fees and costs “are merely a byproduct of a suit that already succeeded.” Ante, at 11 (internal quotation marks omitted). This classification just begs the question of what qualifies as redress. To satisfy Article III, redress must alleviate the plaintiff ’s alleged injury in some way, either by compensating the plaintiff for a past loss or by preventing an ongoing or future harm. Nominal damages do not serve these ends where a plaintiff alleges only a completed violation of his rights. They are not intended to approximate the value of tangible or intangible harms, or the deterrent effect required to prevent future misconduct. And they are not calculated with reference to either of these purposes. Because such an award performs no remedial function—and because “[r]elief that does not remedy the injury suffered cannot bootstrap a plaintiff into federal court,” Steel Co. , 523 U. S., at 107—nominal damages cannot preserve a live controversy where a case is otherwise moot. III Today’s decision risks a major expansion of the judicial role. Until now, we have said that federal courts can review the legality of policies and actions only as a necessary incident to resolving real disputes. Going forward, the Judiciary will be required to perform this function whenever a plaintiff asks for a dollar. For those who want to know if their rights have been violated, the least dangerous branch will become the least expensive source of legal advice. In an effort to downplay these consequences, the Court argues that plaintiffs who seek nominal damages will often be able to seek actual damages as well. In this case, for example, the Court notes that Uzuegbunam and Bradford “would have satisfied redressability if instead of one dollar in nominal damages they sought one dollar in compensation for a wasted bus fare to travel to the free speech zone.” Ante, at 11. Maybe they would have, and maybe they should have. The Court is mistaken, however, to equate a small amount of actual damages with the token award of nominal damages. The former redresses a compensable harm and satisfies Article III, while the latter is a legal fiction with “no existence in point of quantity.” J. Mayne, Law of Damages 27 (1856) (internal quotation marks omitted); see Dobbs, Law of Remedies §3.3(2), at 294 (“Nominal damages are damages in name only . . . .”). The Court also insists that not every “request for nominal damages guarantees entry to court.” Ante, at 11. Yet its holding admits of no limiting principle. As then-Judge McConnell remarked in an insightful concurrence on the issue before us, “[i]t is hard to conceive of a case in which a plaintiff would be unable to append a claim for nominal damages, and thus insulate the case from the possibility of mootness.” Utah Animal Rights Coalition v. Salt Lake City Corp. , 371 F.3d 1248 , 1266 (CA10 2004). The Court today reinforces this point by emphasizing that “ every violation of a right imports damage,” ante, at 12 (emphasis added; alterations and internal quotation marks omitted)—even though we have definitively and recently held that a plaintiff must allege a concrete injury even where his rights have been violated, see Thole v. U. S. Bank N. A. , 590 U. S. ___, ___ (2020) (slip op., at 5) (“This Court has rejected the argument that ‘a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.’ ” (quoting Spokeo, Inc. v. Robins , 578 U.S. 330, 341 (2016))). The best that can be said for the Court’s sweeping exception to the case-or-controversy requirement is that it may itself admit of a sweeping exception: Where a plaintiff asks only for a dollar, the defendant should be able to end the case by giving him a dollar, without the court needing to pass on the merits of the plaintiff ’s claims. Although we recently reserved the question whether a defendant can moot a case by depositing the full amount requested by the plaintiff, Campbell-Ewald Co. v. Gomez , 577 U.S. 153, 166 (2016), our cases have long suggested that he can, see, e.g., California v. San Pablo & Tulare R. Co. , 149 U.S. 308 , 313–314 (1893). The United States agrees, arguing in its brief in “support” of the petitioners that “the defendant should be able to end the litigation without a resolution of the constitutional merits, simply by accepting the entry of judgment for nominal damages against him.” Brief for United States as Amicus Curiae 29. The defendant can even file an offer of judgment for one dollar, rendering the plaintiff liable for any subsequent costs if he receives only nominal damages. See Fed. Rule Civ. Proc. 68(d). This is a welcome caveat, and it may ultimately save federal courts from issuing reams of advisory opinions. But it also highlights the flimsiness of the Court’s view of the separation of powers. The scope of our jurisdiction should not depend on whether the defendant decides to fork over a buck. *  *  * Five years after Hamilton wrote Federalist No. 78, Secretary of State Thomas Jefferson sent a letter on behalf of President George Washington to Chief Justice John Jay and the Associate Justices of the Supreme Court, asking for advice about the Nation’s rights and obligations regarding the ongoing war in Europe. Washington’s request must have struck him as reasonable enough, since English sovereigns regularly sought advice from their courts. Yet the Justices declined the entreaty, citing “the lines of separation drawn by the Constitution between the three departments of the government.” 3 Correspondence and Public Papers of John Jay 488 (H. Johnston ed. 1891). For over two centuries, the Correspondence of the Justices has stood as a reminder that federal courts cannot give answers simply because someone asks. The Judiciary is authorized “to say what the law is” only because “[t]hose who apply [a] rule to particular cases, must of necessity expound and interpret the rule.” Marbury v. Madison , 1 Cranch 137, 177 (1803) (emphasis added). Today’s decision abandons that principle. When a plaintiff brings a nominal damages claim in the absence of past damages or future harm, it is not “necessary to give an opinion upon a question of law.” San Pablo , 149 U. S., at 314. It is instead a “gratuitous” exercise of the judicial power, Simon v. Eastern Ky. Welfare Rights Organization , 426 U.S. 26 , 38 (1976), and expanding that power encroaches on the political branches and the States. Perhaps defendants will wise up and moot such claims by paying a dollar, but it is difficult to see that outcome as a victory for Article III. Rather than encourage litigants to fight over farthings, I would affirm the judgment of the Court of Appeals.

The Supreme Court held that a plaintiff can seek nominal damages for a past injury, even if they are no longer suffering harm, and that the case is not rendered moot by the defendant's offer to pay nominal damages.

Role of Courts

Bond v. U.S.

https://supreme.justia.com/cases/federal/us/564/211/

OPINION OF THE COURT BOND V. UNITED STATES 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-1227 CAROL ANNE BOND, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the third circuit [June 16, 2011]    Justice Kennedy delivered the opinion of the Court.    This case presents the question whether a person indicted for violating a federal statute has standing to challenge its validity on grounds that, by enacting it, Congress exceeded its powers under the Constitution, thus intruding upon the sovereignty and authority of the States.    The indicted defendant, petitioner here, sought to ar- gue the invalidity of the statute. She relied on the Tenth Amendment, and, by extension, on the premise that Congress exceeded its powers by enacting it in contravention of basic federalism principles. The statute, 18 U. S. C. §229, was enacted to comply with a treaty; but petitioner contends that, at least in the present instance, the treaty cannot be the source of congressional power to regulate or prohibit her conduct.    The Court of Appeals held that because a State was not a party to the federal criminal proceeding, petitioner had no standing to challenge the statute as an infringement upon the powers reserved to the States. Having concluded that petitioner does have standing to challenge the federal statute on these grounds, this Court now reverses that determination. The merits of petitioner’s challenge to the statute’s validity are to be considered, in the first instance, by the Court of Appeals on remand and are not addressed in this opinion. I    This case arises from a bitter personal dispute, leading to the criminal acts charged here. Petitioner Carol Anne Bond lived outside Philadelphia, Pennsylvania. After dis-covering that her close friend was pregnant and that the father was Bond’s husband, Bond sought revenge. Bond subjected the woman to a campaign of harassing telephone calls and letters, acts that resulted in a crimi-nal conviction on a minor state charge. Bond persisted in her hostile acts, placing caustic substances on objects the woman was likely to touch, including her mailbox, car door handle, and front doorknob. Bond’s victim suffered a minor burn on her hand and contacted federal investigators, who identified Bond as the perpetrator.    Bond was indicted in the United States District Court for the Eastern District of Pennsylvania for, among other offenses, two counts of violating §229. Section 229 forbids knowing possession or use of any chemical that “can cause death, temporary incapacitation or permanent harm to humans or animals” where not intended for a “peaceful purpose.” §§229(a); 229F(1); (7); (8). The statute was en-acted as part of the Chemical Weapons Convention Implementation Act of 1998, 112 Stat. 2681–856, 22 U. S. C. §6701 et seq.; 18 U. S. C. §229 et seq. The Act implements provisions of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, a treaty the United States ratified in 1997.    In the District Court, Bond moved to dismiss the §229 charges, contending the statute was beyond Congress’ constitutional authority to enact. The District Court denied the motion. Bond entered a conditional plea of guilty, reserving the right to appeal the ruling on the validity of the statute. She was sentenced to six years in prison.    In the Court of Appeals for the Third Circuit, Bond renewed her challenge to the statute, citing, among other authorities, the Tenth Amendment to the Constitution. The Court of Appeals asked for supplemental briefs on the question whether Bond had standing to raise the Tenth Amendment as a ground for invalidating a federal statute in the absence of a State’s participation in the proceedings.    In its supplemental brief in the Court of Appeals, the Government took the position that Bond did not have standing. The Court of Appeals agreed. 581 F. 3d 128 (2009).    When Bond sought certiorari, the Government advised this Court that it had changed its position and that, in its view, Bond does have standing to challenge the constitutionality of §229 on Tenth Amendment grounds. See Brief for United States (filed July 9, 2010). The Court granted certiorari, 562 U. S. ___ (2010), and appointed an amicus curiae to defend the judgment of the Court of Appeals. Stephen McAllister, a member of the bar of this Court, filed an amicus brief and presented an oral argument that have been of considerable assistance to the Court. II    To conclude that petitioner lacks standing to challenge a federal statute on grounds that the measure interferes with the powers reserved to States, the Court of Appeals relied on a single sentence from this Court’s opinion in Tennessee Elec. Power Co. v. TVA , 306 U. S. 118 (1939). See 581 F. 3d, at 136–138. As the Court of Appeals noted here, other Courts of Appeals have taken a similar approach. E.g., United States v. Hacker , 565 F.3d 522, 525–527 (CA8 2009); Oregon v. Legal Servs. Corp. , 552 F. 3d 965, 971–972 (CA9 2009); Brooklyn Legal Servs. Corp. v. Legal Servs. Corp ., 462 F. 3d 219, 234–235 (CA2 2006); Medeiros v. Vincent , 431 F. 3d 25, 33–36 (CA1 2005); United States v. Parker , 362 F. 3d 1279, 1284–1285 (CA10 2004). That approach is in tension, if not conflict, with decisions of some other Courts of Appeals. See Gillespie v. Indianapolis , 185 F. 3d 693, 700–704 (CA7 1999); Metrolina Family Practice Group, P. A. v. Sullivan , 767 F. Supp. 1314 (WDNC 1989), aff’d 929 F. 2d 693 (CA4 1991); Atlanta Gas Light Co. v. United States Dept. of Energy , 666 F. 2d 1359, 1368, n. 16 (CA11 1982); see also United States v. Johnson , 632 F. 3d 912, 918–921 (CA5 2011) (reserving issue); Lomont v. O’Neill , 285 F. 3d 9, 14, n. 5 (CADC 2002) (same); Nance v. EPA , 645 F. 2d 701, 716 (CA9 1981) (same). Tennessee Electric is the appropriate place to begin. It should be clear that Tennessee Electric does not cast doubt on Bond’s standing for purposes of Article III’s case-or-controversy requirement. This Court long ago disapproved of the case as authoritative respecting Article III limitations. Association of Data Processing Service Organizations, Inc. v. Camp , 397 U. S. 150 , 152–154 (1970). In the instant case, moreover, it is apparent—and in fact conceded not only by the Government but also by amicus— that Article III poses no barrier. One who seeks to initiate or continue proceedings in federal court must demonstrate, among other requirements, both standing to obtain the relief requested, see Lujan v. Defenders of Wildlife , 504 U. S. 555 , 560–561 (1992), and, in addition, an “ongoing interest in the dispute” on the part of the opposing party that is sufficient to establish “concrete adverseness.” Camreta v. Greene , 563 U. S. ___, ___ (2011) (slip op., at 5) (internal quotation marks omitted). When those conditions are met, Article III does not restrict the opposing party’s ability to object to relief being sought at its expense. The requirement of Article III standing thus had no bearing upon Bond’s capacity to assert defenses in the District Court. As for Bond’s standing to appeal, it is clear Article III’s prerequisites are met. Bond’s challenge to her conviction and sentence “satisfies the case-or-controversy requirement, because the incarceration . . . constitutes a concrete injury, caused by the conviction and redressable by invalidation of the conviction.” Spencer v. Kemna , 523 U. S. 1 , 7 (1998).    To resolve the case, this Court must consider next whether Tennessee Electric is irrelevant with respect to prudential rules of standing as well. The question in Tennessee Electric was whether a group of private power companies could bring suit to enjoin the federally chartered Tennessee Valley Authority (TVA) from producing and selling electric power. It was conceded that competition from the TVA would “inflict substantial damage” upon the power companies. 306 U. S., at 137. According to the companies, the federal statute authorizing the creation and operation of the TVA was invalid because, among other reasons, it exceeded the powers of the National Government in violation of the Tenth Amendment.    Declining to reach the merits, the Court concluded the power companies’ lawsuit should be dismissed. It explained that the suit was premised on the principle that a person threatened with injury by conduct “which, but for statutory authority for its performance, would be a violation of his legal rights” could request an injunction from a court of equity and by this means test the validity of the statute. Ibid. But the Court concluded that the TVA, even if it were shorn of congressional statutory authority, had done nothing more than compete as a supplier of electricity. Id. , at 138. And since state law did not purport to grant any of the power companies a monopoly, there was no basis for a suit in which the TVA might be forced to invoke its congressional authorization. Id. , at 138–143.    In that part of its analysis, and throughout its opinion, the Tennessee Electric Court stated that the problem with the power companies’ suit was a lack of “standing” or a “cause of action.” It treated those concepts as interchangeable. E.g. , id. , at 139 (no “standing” because no “legal cause of complaint”); id. , at 139–140 (no “standing” without “a cause of action or a right to sue”); id. , at 142 (“no standing,” no “right to sue for an injunction”); id. , at 144 (no Tenth Amendment “standing” and no Ninth Amendment “cause of action” for same reasons); see also Bellia, Article III and the Cause of Action, 89 Iowa L. Rev. 777, 826–830 (2004).    Even though decisions since Tennessee Electric have been careful to use the terms “cause of action” and “standing” with more precision, the distinct concepts can be difficult to keep separate. If, for instance, the person alleging injury is remote from the zone of interests a statute protects, whether there is a legal injury at all and whether the particular litigant is one who may assert it can involve similar inquiries. Steel Co. v. Citizens for Better Environment , 523 U. S. 83 , 96–97, and n. 2 (1998) (noting that statutory standing and the existence of a cause of action are “closely connected” and “sometimes identical” questions).    Still, the question whether a plaintiff states a claim for relief “goes to the merits” in the typical case, not the justiciability of a dispute, id. , at 92, and conflation of the two concepts can cause confusion. This is the case with the Tenth Amendment discussion in Tennessee Electric . The Tennessee Electric Court noted that “[a] distinct ground upon which standing to maintain the suit is said to rest is that the acts of the Authority cannot be upheld without permitting federal regulation of purely local matters reserved to the states or the people by the Tenth Amendment.” 306 U. S., at 143. The Court rejected the argument, however, concluding the Tenth Amendment did not give one business a right to keep another from compet- ing. Id. , at 144. (“The sale of government property in competition with others is not a violation of the Tenth Amendment”).    The Court then added the sentence upon which the Court of Appeals relied in the instant case, the sentence that has been the source of disagreement among Courts of Appeals: “As we have seen there is no objection to the Authority’s operations by the states, and, if this were not so, the appellants, absent the states or their officers, have no standing in this suit to raise any question under the amendment.” Ibid . The quoted statement was in the context of a decision which held that business competitors had no legal injury, and the word standing can be interpreted in that sense. On this reading, the statement reiterated an earlier point. The statement explained that the States in which the TVA operated exempted it from their public utilities regulations; and that even if the States had not done so and the TVA had violated those regulations, the regulations were for the States to enforce. See id. , at 141–142. They conferred no private right of action on business competitors. This reading is consistent with the Tennessee Electric Court’s use of the term “standing” elsewhere in its opinion to refer to the existence of a state-law cause of action. A holding that state utilities regulations did not supply a cause of action against a competitor is of no relevance to the instant case, and we need not explore all of its implications. See also Data Processing , 397 U. S., at 157–158 (cause of action under the Administrative Procedure Act, 5 U. S. C. §702, permits suit based on injury from business competition).    Yet the quoted statement also could be read to refer to standing in the sense of whether the power companies were the proper litigants to raise a Tenth Amendment is-sue. To the extent that might have been the intention of the Tennessee Electric Court, it is, for reasons to be explained, inconsistent with our later precedents. The sentence from Tennessee Electric that we have quoted and discussed should be deemed neither controlling nor instructive on the issue of standing as that term is now defined and applied. III Amicus contends that federal courts should not adjudicate a claim like Bond’s because of the prudential rule that a party “generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin , 422 U. S. 490 , 499, 500 (1975); see also Kowalski v. Tesmer , 543 U. S. 125 , 129–130 (2004). In amicus ’ view, to argue that the National Government has interfered with state sovereignty in violation of the Tenth Amendment is to assert the legal rights and interests of States and States alone. That, however, is not so. As explained below, Bond seeks to vindicate her own constitutional interests. The individual, in a proper case, can assert injury from governmental action taken in excess of the authority that federalism defines. Her rights in this regard do not belong to a State. A    The federal system rests on what might at first seem a counterintuitive insight, that “freedom is enhanced by the creation of two governments, not one.” Alden v. Maine , 527 U. S. 706 , 758 (1999). The Framers concluded that allocation of powers between the National Government and the States enhances freedom, first by protecting the integrity of the governments themselves, and second by protecting the people, from whom all governmental powers are derived.    Federalism has more than one dynamic. It is true that the federal structure serves to grant and delimit the prerogatives and responsibilities of the States and the National Government vis-À-vis one another. The allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States. The federal balance is, in part, an end in itself, to ensure that States function as political entities in their own right.    But that is not its exclusive sphere of operation. Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity. “State sovereignty is not just an end in itself: ‘Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’ ” New York v. United States , 505 U. S. 144 , 181 (1992) (quoting Coleman v. Thompson , 501 U. S. 722 , 759 (1991) (Blackmun, J., dissenting)).    Some of these liberties are of a political character. The federal structure allows local policies “more sensitive to the diverse needs of a heterogeneous society,” permits “innovation and experimentation,” enables greater citizen “involvement in democratic processes,” and makes government “more responsive by putting the States in com-petition for a mobile citizenry.” Gregory v. Ashcroft , 501 U. S. 452 , 458 (1991). Federalism secures the freedom of the individual. It allows States to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power. True, of course, these objects cannot be vindicated by the Judiciary in the absence of a proper case or controversy; but the individual liberty secured by federalism is not simply derivative of the rights of the States.    Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. See ibid. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.    The limitations that federalism entails are not therefore a matter of rights belonging only to the States. States are not the sole intended beneficiaries of federalism. See New York , supra , at 181. An individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States when the enforcement of those laws causes injury that is concrete, particular, and redressable. Fidelity to principles of federalism is not for the States alone to vindicate.    The recognition of an injured person’s standing to object to a violation of a constitutional principle that allocates power within government is illustrated, in an analogous context, by cases in which individuals sustain discrete, justiciable injury from actions that transgress separation-of-powers limitations. Separation-of-powers principles are intended, in part, to protect each branch of government from incursion by the others. Yet the dynamic between and among the branches is not the only object of the Constitution’s concern. The structural principles secured by the separation of powers protect the individual as well.    In the precedents of this Court, the claims of individuals—not of Government departments—have been the principal source of judicial decisions concerning separation of powers and checks and balances. For example, the re-quirement that a bill enacted by Congress be presented to the President for signature before it can become law gives the President a check over Congress’ exercise of legislative power. See U. S. Const., Art. I, §7. Yet individuals, too, are protected by the operations of separation of powers and checks and balances; and they are not disabled from relying on those principles in otherwise justiciable cases and controversies. In INS v. Chadha , 462 U. S. 919 (1983), it was an individual who successfully challenged the so-called legislative veto—a procedure that Congress used in an attempt to invalidate an executive determination without presenting the measure to the President. The procedure diminished the role of the Executive, but the challenger sought to protect not the prerogatives of the Presidency as such but rather his own right to avoid deportation under an invalid order. Chadha’s challenge was sustained. A cardinal principle of separation of powers was vindicated at the insistence of an individual, indeed one who was not a citizen of the United States but who still was a person whose liberty was at risk. Chadha is not unique in this respect. Compare Clinton v. City of New York , 524 U. S. 417 , 433–436 (1998) (injured parties have standing to challenge Presidential line-item veto) with Raines v. Byrd , 521 U. S. 811 , 829–830 (1997) (Congress Members do not); see also, e.g. , Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 561 U. S. ___ (2010); Plaut v. Spendthrift Farm, Inc. , 514 U. S. 211 (1995); Bowsher v. Synar , 478 U. S. 714 (1986); Northern Pipeline Constr. Co. v. Marathon Pipe Line Co. , 458 U. S. 50 (1982); Youngstown Sheet & Tube Co. v. Sawyer , 343 U. S. 579 (1952); A. L. A. Schechter Poultry Corp. v. United States , 295 U. S. 495 (1935). If the constitutional structure of our Government that protects individual liberty is compromised, individuals who suffer otherwise justiciable injury may object.    Just as it is appropriate for an individual, in a proper case, to invoke separation-of-powers or checks-and-balances constraints, so too may a litigant, in a proper case, challenge a law as enacted in contravention of constitutional principles of federalism. That claim need not depend on the vicarious assertion of a State’s constitutional interests, even if a State’s constitutional interests are also implicated. B    In this regard it is necessary to address a misconception in the position the Government now urges this Court to adopt. As noted, the Government agrees that petitioner has standing to challenge the validity of §229. That concession, however, depends on describing petitioner’s claim in a narrow way. The Government contends petitioner asserts only that Congress could not enact the challenged statute under its enumerated powers. Were she to argue, the Government insists, that the statute “interferes with a specific aspect of state sovereignty,” either instead of or in addition to her enumerated powers contention, the Court should deny her standing. Brief for United States 18 (filed Dec. 3, 2010).    The premise that petitioner does or should avoid making an “interference-with-sovereignty” argument is flawed. Id. , at 33. Here she asserts, for example, that the conduct with which she is charged is “local in nature” and “should be left to local authorities to prosecute” and that congressional regulation of that conduct “signals a massive and unjustifiable expansion of federal law enforcement into state-regulated domain.” Record in No. 2:07–cr–00528–JG–1 (ED Pa.), Doc. 27, pp. 6, 19. The public policy of the Commonwealth of Pennsylvania, enacted in its capacity as sovereign, has been displaced by that of the National Government. The law to which petitioner is subject, the prosecution she seeks to counter, and the punishment she must face might not have come about if the matter were left for the Commonwealth of Pennsylvania to decide. Indeed, petitioner argues that under Pennsylvania law the expected maximum term of imprisonment she could have received for the same conduct was barely more than a third of her federal sentence.    There is no basis to support the Government’s pro- posed distinction between different federalism arguments for purposes of prudential standing rules. The princi- ples of limited national powers and state sovereignty are intertwined. While neither originates in the Tenth Amendment, both are expressed by it. Impermissible interference with state sovereignty is not within the enumerated powers of the National Government, see New York , 505 U. S., at 155–159, and action that exceeds the National Government’s enumerated powers undermines the sovereign interests of States. See United States v. Lopez , 514 U. S. 549 , 564 (1995). The unconstitutional action can cause concomitant injury to persons in individual cases.    An individual who challenges federal action on these grounds is, of course, subject to the Article III requirements, as well as prudential rules, applicable to all litigants and claims. Individuals have “no standing to complain simply that their Government is violating the law.” Allen v. Wright , 468 U. S. 737 , 755 (1984). It is not enough that a litigant “suffers in some indefinite way in common with people generally.” Frothingham v. Mellon , 262 U. S. 447 , 488 (1923) (decided with Massachusetts v. Mellon ). If, in connection with the claim being asserted, a litigant who commences suit fails to show actual or imminent harm that is concrete and particular, fairly traceable to the conduct complained of, and likely to be redressed by a favorable decision, the Federal Judiciary cannot hear the claim. Lujan , 504 U. S., at 560–561. These requirements must be satisfied before an individual may assert a constitutional claim; and in some instances, the result may be that a State is the only entity capable of demonstrating the requisite injury.    In this case, however, where the litigant is a party to an otherwise justiciable case or controversy, she is not forbidden to object that her injury results from disregard of the federal structure of our Government. Whether the Tenth Amendment is regarded as simply a “ ‘truism,’ ” New York , supra , at 156 (quoting United States v. Darby , 312 U. S. 100 , 124 (1941)), or whether it has independent force of its own, the result here is the same. *  *  *    There is no basis in precedent or principle to deny petitioner’s standing to raise her claims. The ultimate issue of the statute’s validity turns in part on whether the law can be deemed “necessary and proper for carrying into Execution” the President’s Article II, §2 Treaty Power, see U. S. Const., Art. I, §8, cl. 18. This Court expresses no view on the merits of that argument. It can be addressed by the Court of Appeals on remand.    The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. 564 U. S. ____ (2011) BOND V. UNITED STATES 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-1227 CAROL ANNE BOND, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the third circuit [June 16, 2011]    Justice Ginsburg, with whom Justice Breyer joins, concurring.    I join the Court’s opinion and write separately to make the following observation. Bond, like any other defendant, has a personal right not to be convicted under a constitutionally invalid law. See Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1331–1333 (2000); Monaghan, Overbreadth, 1981 Sup. Ct. Rev. 1, 3. See also North Carolina v. Pearce , 395 U. S. 711 , 739 (1969) (Black, J., concurring in part and dissenting in part) (“Due process . . . is a guarantee that a man should be tried and convicted only in accordance with valid laws of the land.”).    In this case, Bond argues that the statute under which she was charged, 18 U. S. C. §229, exceeds Congress’ enumerated powers and violates the Tenth Amendment. Other defendants might assert that a law exceeds Congress’ power because it violates the Ex Post Facto Clause, or the Establishment Clause, or the Due Process Clause. Whatever the claim, success on the merits would require reversal of the conviction. “An offence created by [an unconstitutional law],” the Court has held, “is not a crime.” Ex parte Siebold , 100 U. S. 371 , 376 (1880). “A conviction under [such a law] is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment.” Id. , at 376–377. If a law is invalid as applied to the criminal defendant’s conduct, the defendant is entitled to go free.    For this reason, a court has no “prudential” license to decline to consider whether the statute under which the defendant has been charged lacks constitutional application to her conduct. And that is so even where the constitutional provision that would render the conviction void is directed at protecting a party not before the Court. Our decisions concerning criminal laws infected with discrimination are illustrative. The Court must entertain the objection—and reverse the conviction—even if the right to equal treatment resides in someone other than the de-fendant. See Eisenstadt v. Baird , 405 U. S. 438 , 452–455 (1972) (reversing conviction for distributing contraceptives because the law banning distribution violated the recipi-ent’s right to equal protection); cf. Craig v. Boren , 429 U. S. 190 , 192, 210, and n. 24 (1976) (law penalizing sale of beer to males but not females aged 18 to 20 could not be enforced against vendor). See also Grayned v. City of Rockford , 408 U. S. 104 , 107, n. 2 (1972); Welsh v. United States , 398 U. S. 333 , 361–362 (1970) (Harlan, J., concurring in result) (reversal required even if, going forward, Congress would cure the unequal treatment by extending rather than invalidating the criminal proscription).    In short, a law “beyond the power of Congress,” for any reason, is “no law at all.” Nigro v. United States , 276 U. S. 332 , 341 (1928). The validity of Bond’s conviction depends upon whether the Constitution permits Congress to enact §229. Her claim that it does not must be considered and decided on the merits.

The Supreme Court ruled that Carol Anne Bond, who was indicted for violating a federal statute, has standing to challenge the validity of the statute on the grounds that Congress exceeded its powers under the Constitution and infringed upon state sovereignty. The Court of Appeals had previously denied her standing because a state was not a party to the federal criminal proceeding. The Supreme Court reversed this decision, asserting that Bond has a personal right not to be convicted under an invalid law, and her claim that the statute exceeds Congress' powers must be considered and decided on its merits. The case was remanded to the Court of Appeals to evaluate the merits of Bond's challenge to the statute's validity.

Powers of Congress

McCulloch v. Maryland

https://supreme.justia.com/cases/federal/us/17/316/

U.S. Supreme Court McCulloch v. Maryland, 17 U.S. 4 Wheat. 316 316 (1819) McCulloch v. Maryland 17 U.S. (4 Wheat.) 316 ERROR TO THE COURT OF APPEALS OF THE STATE OF MARYLAND Syllabus Congress has power to incorporate a bank The Act of the 10th of April, 1816, ch. 44, to "incorporate the subscribers to the Bank of the United States" is a law made in pursuance of the Constitution. The Government of the Union, though limited in its powers, is supreme within its sphere of action, and its laws, when made in pursuance of the Constitution, form the supreme law of the land. There is nothing in the Constitution of the United States similar to the Articles of Confederation, which exclude incidental or implied powers. If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect. The power of establishing a corporation is not a distinct sovereign power or end of Government, but only the means of carrying into effect other powers which are sovereign. Whenever it becomes an appropriate means of exercising any of the powers given by the Constitution to the Government of the Union, it may be exercised by that Government. If a certain means to carry into effect of any of the powers expressly given by the Constitution to the Government of the Union be an appropriate measure, not prohibited by the Constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance. The Bank of the United States has, constitutionally, a right to establish its branches or offices of discount and deposit within any state. The State within which such branch may be established cannot, without violating the Constitution, tax that branch. The State governments have no right to tax any of the constitutional means employed by the Government of the Union to execute its constitutional powers. The States have no power, by taxation or otherwise, to retard, impede, burthen, or in any manner control the operations of the constitutional laws enacted by Congress to carry into effect the powers vested in the national Government. This principle does not extend to a tax paid by the real property of the Bank of the United States in common with the other real property in a particular state, nor to a tax imposed on the proprietary interest which the citizens of that State may hold in this institution, in common with other property of the same description throughout the State. This was an action of debt, brought by the defendant in error, John James, who sued as well for himself as for the State of Maryland, in the County Court of Baltimore County, in the said State, against the plaintiff in error, McCulloch, to recover certain penalties, under the act of the Legislature of Maryland hereafter mentioned. Judgment being rendered against the plaintiff in error, upon the following statement of facts agreed and submitted to the court by the parties, was affirmed by the Court of Appeals of the State of Maryland, the highest court of law of said State, and the cause was brought by writ of error to this Court. It is admitted by the parties in this cause, by their counsel, that there was passed, on the 10th day of April, 1816, by the Congress of the United States, an act entitled, "an act to incorporate the subscribers to the Bank of the United States;" and that there was passed on the 11th day of February, 1818, by the General Assembly of Maryland, an act, entitled, "an act to impose a tax on all banks, or branches thereof, in the State of Maryland, not chartered by the legislature, " Page 17 U. S. 318 which said acts are made part of this Statement, and it is agreed, may be read from the statute books in which they are respectively printed. It is further admitted that the President, directors and company of the Bank of the United States, incorporated by the act of Congress aforesaid, did organize themselves, and go into full operation, in the City of Philadelphia, in the State of Pennsylvania, in pursuance of the said act, and that they did on the ___ day of _____ 1817, establish a branch of the said bank, or an office of discount and deposit, in the City of Baltimore, in the State of Maryland, which has, from that time until the first day of May 1818, ever since transacted and carried on business as a bank, or office of discount and deposit, and as a branch of the said Bank of the United States, by issuing bank notes and discounting promissory notes, and performing other operations usual and customary for banks to do and perform, under the authority and by the direction of the said President, directors and company of the Bank of the United States, established at Philadelphia as aforesaid. It is further admitted that the said President, directors and company of the said bank had no authority to establish the said branch, or office of discount and deposit, at the City of Baltimore, from the State of Maryland, otherwise than the said State having adopted the Constitution of the United States and composing one of the States of the Union. It is further admitted that James William McCulloch, the defendant below, being the cashier of the said branch, or office of discount and Page 17 U. S. 319 deposit did, on the several days set forth in the declaration in this cause, issue the said respective bank notes therein described, from the said branch or office, to a certain George Williams, in the City of Baltimore, in part payment of a promissory note of the said Williams, discounted by the said branch or office, which said respective bank notes were not, nor was either of them, so issued on stamped paper in the manner prescribed by the act of assembly aforesaid. It is further admitted that the said President, directors and company of the Bank of the United States, and the said branch, or office of discount and deposit have not, nor has either of them, paid in advance, or otherwise, the sum of $15,000, to the Treasurer of the Western Shore, for the use of the State of Maryland, before the issuing of the said notes, or any of them, nor since those periods. And it is further admitted that the Treasurer of the Western Shore of Maryland, under the direction of the Governor and Council of the said State, was ready, and offered to deliver to the said President, directors and company of the said bank, and to the said branch, or office of discount and deposit, stamped paper of the kind and denomination required and described in the said act of assembly. The question submitted to the Court for their decision in this case is as to the validity of the said act of the General Assembly of Maryland on the ground of its being repugnant to the Constitution of the United States and the act of Congress aforesaid, or to one of them. Upon the foregoing statement of facts and the pleadings in this cause (all errors in Page 17 U. S. 320 which are hereby agreed to be mutually released), if the Court should be of opinion that the plaintiffs are entitled to recover, then judgment, it is agreed, shall be entered for the plaintiffs for $2,500 and costs of suit. B ut if the Court should be of opinion that the plaintiffs are not entitled to recover upon the statement and pleadings aforesaid, then judgment of non pros shall be entered, with costs to the defendant. It is agreed that either party may appeal from the decision of the County Court to the Court of Appeals, and from the decision of the Court of Appeals to the Supreme Court of the United States, according to the modes and usages of law, and have the same benefit of this statement of facts in the same manner as could be had if a jury had been sworn and impanneled in this cause and a special verdict had been found, or these facts had appeared and been stated in an exception taken to the opinion of the Court, and the Court's direction to the jury thereon. Copy of the act of the Legislature of the State of Maryland, referred to in the preceding Statement. " An act to impose a tax on all banks or branches thereof, in the " " State of Maryland not chartered by the legislature " "Be it enacted by the General Assembly of Maryland that if any bank has established or shall, without authority from the State first had and obtained establish any branch, office of discount and Page 17 U. S. 321 deposit, or office of pay and receipt in any part of this State, it shall not be lawful for the said branch, office of discount and deposit, or office of pay and receipt to issue notes, in any manner, of any other denomination than five, ten, twenty, fifty, one hundred, five hundred and one thousand dollars, and no note shall be issued except upon stamped paper of the following denominations; that is to say, every five dollar note shall be upon a stamp of ten cents; every ten dollar note, upon a stamp of twenty cents; every twenty dollar note, upon a stamp of thirty cents; every fifty dollar note, upon a stamp of fifty cents; every one hundred dollar note, upon a stamp of one dollar; every five hundred dollar note, upon a stamp of ten dollars; and every thousand dollar note, upon a stamp of twenty dollars; which paper shall be furnished by the Treasurer of the Western Shore, under the direction of the Governor and Council, to be paid for upon delivery; provided always that any institution of the above description may relieve itself from the operation of the provisions aforesaid by paying annually, in advance, to the Treasurer of the Western Shore, for the use of State, the sum of $15,000." "And be it enacted that the President, cashier, each of the directors and officers of every institution established or to be established as aforesaid, offending against the provisions aforesaid shall forfeit a sum of $500 for each and every offence, and every person having any agency in circulating any note aforesaid, not stamped as aforesaid directed, shall forfeit a sum not exceeding $100, Page 17 U. S. 322 every penalty aforesaid to be recovered by indictment or action of debt in the county court of the county where the offence shall be committed, one-half to the informer and the other half to the use of the State." "And be it enacted that this act shall be in full force and effect from and after the first day of May next. " Page 17 U. S. 400 MARSHALL, Chief Justice, delivered the opinion of the Court. In the case now to be determined, the defendant, a sovereign State, denies the obligation of a law enacted by the legislature of the Union, and the plaintiff, on his part, contests the validity of an act which has been passed by the legislature of that State. The Constitution of our country, in its most interesting and vital parts, is to be considered, the conflicting powers of the Government of the Union and of its members, as marked in that Constitution, are to be discussed, and an opinion given which may essentially influence the great operations of the Government. No tribunal can approach such a question without a deep sense of its importance, and of the awful responsibility involved in its decision. But it must be decided peacefully, or remain a source of Page 17 U. S. 401 hostile legislation, perhaps, of hostility of a still more serious nature; and if it is to be so decided, by this tribunal alone can the decision be made. On the Supreme Court of the United States has the Constitution of our country devolved this important duty. The first question made in the cause is -- has Congress power to incorporate a bank? It has been truly said that this can scarcely be considered as an open question entirely unprejudiced by the former proceedings of the Nation respecting it. The principle now contested was introduced at a very early period of our history, has been recognised by many successive legislatures, and has been acted upon by the Judicial Department, in cases of peculiar delicacy, as a law of undoubted obligation. It will not be denied that a bold and daring usurpation might be resisted after an acquiescence still longer and more complete than this. But it is conceived that a doubtful question, one on which human reason may pause and the human judgment be suspended, in the decision of which the great principles of liberty are not concerned, but the respective powers of those who are equally the representatives of the people, are to be adjusted, if not put at rest by the practice of the Government, ought to receive a considerable impression from that practice. An exposition of the Constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded. The power now contested was exercised by the first Congress elected under the present Constitution. Page 17 U. S. 402 The bill for incorporating the Bank of the United States did not steal upon an unsuspecting legislature and pass unobserved. Its principle was completely understood, and was opposed with equal zeal and ability. After being resisted first in the fair and open field of debate, and afterwards in the executive cabinet, with as much persevering talent as any measure has ever experienced, and being supported by arguments which convinced minds as pure and as intelligent as this country can boast, it became a law. The original act was permitted to expire, but a short experience of the embarrassments to which the refusal to revive it exposed the Government convinced those who were most prejudiced against the measure of its necessity, and induced the passage of the present law. It would require no ordinary share of intrepidity to assert that a measure adopted under these circumstances was a bold and plain usurpation to which the Constitution gave no countenance. These observations belong to the cause; but they are not made under the impression that, were the question entirely new, the law would be found irreconcilable with the Constitution. In discussing this question, the counsel for the State of Maryland have deemed it of some importance, in the construction of the Constitution, to consider that instrument not as emanating from the people, but as the act of sovereign and independent States. The powers of the General Government, it has been said, are delegated by the States, who alone are truly sovereign, and must be exercised in subordination to the States, who alone possess supreme dominion. Page 17 U. S. 403 It would be difficult to sustain this proposition. The convention which framed the Constitution was indeed elected by the State legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation or pretensions to it. It was reported to the then existing Congress of the United States with a request that it might "be submitted to a convention of delegates, chosen in each State by the people thereof, under the recommendation of its legislature, for their assent and ratification." This mode of proceeding was adopted, and by the convention, by Congress, and by the State legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively and wisely, on such a subject -- by assembling in convention. It is true, they assembled in their several States -- and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act in their States. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the State governments. From these conventions the Constitution derives its whole authority. The government proceeds directly from the people; is "ordained and established" in the name of the people, and is declared to be ordained, "in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure Page 17 U. S. 404 the blessings of liberty to themselves and to their posterity." The assent of the States in their sovereign capacity is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it, and their act was final. It required not the affirmance, and could not be negatived, by the State Governments. The Constitution, when thus adopted, was of complete obligation, and bound the State sovereignties. It has been said that the people had already surrendered all their powers to the State sovereignties, and had nothing more to give. But surely the question whether they may resume and modify the powers granted to Government does not remain to be settled in this country. Much more might the legitimacy of the General Government be doubted had it been created by the States. The powers delegated to the State sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty created by themselves. To the formation of a league such as was the Confederation, the State sovereignties were certainly competent. But when, "in order to form a more perfect union," it was deemed necessary to change this alliance into an effective Government, possessing great and sovereign powers and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all. The Government of the Union then (whatever may be the influence of this fact on the case) is, Page 17 U. S. 405 emphatically and truly, a Government of the people. In form and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit. This Government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted. But the question respecting the extent of the powers actually granted is perpetually arising, and will probably continue to arise so long as our system shall exist. In discussing these questions, the conflicting powers of the General and State Governments must be brought into view, and the supremacy of their respective laws, when they are in opposition, must be settled. If any one proposition could command the universal assent of mankind, we might expect it would be this -- that the Government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result necessarily from its nature. It is the Government of all; its powers are delegated by all; it represents all, and acts for all. Though any one State may be willing to control its operations, no State is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts. But this question is not left to mere reason; the people have, in express terms, decided it by saying, Page 17 U. S. 406 "this Constitution, and the laws of the United States, which shall be made in pursuance thereof," "shall be the supreme law of the land," and by requiring that the members of the State legislatures and the officers of the executive and judicial departments of the States shall take the oath of fidelity to it. The Government of the United States, then, though limited in its powers, is supreme, and its laws, when made in pursuance of the Constitution, form the supreme law of the land, "anything in the Constitution or laws of any State to the contrary notwithstanding." Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the Articles of Confederation, excludes incidental or implied powers and which requires that everything granted shall be expressly and minutely described. Even the 10th Amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word "expressly," and declares only that the powers "not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people," thus leaving the question whether the particular power which may become the subject of contest has been delegated to the one Government, or prohibited to the other, to depend on a fair construction of the whole instrument. The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the Articles Page 17 U. S. 407 of Confederation, and probably omitted it to avoid those embarrassments. A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American Constitution is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations found in the 9th section of the 1st article introduced? It is also in some degree warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a Constitution we are expounding. Although, among the enumerated powers of Government, we do not find the word "bank" or "incorporation," we find the great powers, to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation are intrusted to its Government. It can never be pretended Page 17 U. S. 408 that these vast powers draw after them others of inferior importance merely because they are inferior. Such an idea can never be advanced. But it may with great reason be contended that a Government intrusted with such ample powers, on the due execution of which the happiness and prosperity of the Nation so vitally depends, must also be intrusted with ample means for their execution. The power being given, it is the interest of the Nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass its execution by withholding the most appropriate means. Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported. The exigencies of the Nation may require that the treasure raised in the north should be transported to the south that raised in the east, conveyed to the west, or that this order should be reversed. Is that construction of the Constitution to be preferred which would render these operations difficult, hazardous and expensive? Can we adopt that construction (unless the words imperiously require it) which would impute to the framers of that instrument, when granting these powers for the public good, the intention of impeding their exercise, by withholding a choice of means? If, indeed, such be the mandate of the Constitution, we have only to obey; but that instrument does not profess to enumerate the means by which the powers it confers may be executed; nor does it prohibit the creation of a corporation, Page 17 U. S. 409 if the existence of such a being be essential, to the beneficial exercise of those powers. It is, then, the subject of fair inquiry how far such means may be employed. It is not denied that the powers given to the Government imply the ordinary means of execution. That, for example, of raising revenue and applying it to national purposes is admitted to imply the power of conveying money from place to place as the exigencies of the Nation may require, and of employing the usual means of conveyance. But it is denied that the Government has its choice of means, or that it may employ the most convenient means if, to employ them, it be necessary to erect a corporation. On what foundation does this argument rest? O n this alone: the power of creating a corporation is one appertaining to sovereignty, and is not expressly conferred on Congress. This is true. But all legislative powers appertain to sovereignty. The original power of giving the law on any subject whatever is a sovereign power, and if the Government of the Union is restrained from creating a corporation as a means for performing its functions, on the single reason that the creation of a corporation is an act of sovereignty, if the sufficiency of this reason be acknowledged, there would be some difficulty in sustaining the authority of Congress to pass other laws for the accomplishment of the same objects. The Government which has a right to do an act and has imposed on it the duty of performing that act must, according to the dictates of reason, be allowed Page 17 U. S. 410 to select the means, and those who contend that it may not select any appropriate means that one particular mode of effecting the object is excepted take upon themselves the burden of establishing that exception. The creation of a corporation, it is said, appertains to sovereignty. This is admitted. But to what portion of sovereignty does it appertain? Does it belong to one more than to another? In America, the powers of sovereignty are divided between the Government of the Union and those of the States. They are each sovereign with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other. We cannot comprehend that train of reasoning, which would maintain that the extent of power granted by the people is to be ascertained not by the nature and terms of the grant, but by its date. Some State Constitutions were formed before, some since, that of the United States. We cannot believe that their relation to each other is in any degree dependent upon this circumstance. Their respective powers must, we think, be precisely the same as if they had been formed at the same time. Had they been formed at the same time, and had the people conferred on the General Government the power contained in the Constitution, and on the States the whole residuum of power, would it have been asserted that the Government of the Union was not sovereign, with respect to those objects which were intrusted to it, in relation to which its laws were declared to be supreme? If this could not have been asserted, we cannot well comprehend the process of reasoning Page 17 U. S. 411 which maintains that a power appertaining to sovereignty cannot be connected with that vast portion of it which is granted to the General Government, so far as it is calculated to subserve the legitimate objects of that Government. The power of creating a corporation, though appertaining to sovereignty, is not, like the power of making war or levying taxes or of regulating commerce, a great substantive and independent power which cannot be implied as incidental to other powers or used as a means of executing them. It is never the end for which other powers are exercised, but a means by which other objects are accomplished. No contributions are made to charity for the sake of an incorporation, but a corporation is created to administer the charity; no seminary of learning is instituted in order to be incorporated, but the corporate character is conferred to subserve the purposes of education. No city was ever built with the sole object of being incorporated, but is incorporated as affording the best means of being well governed. The power of creating a corporation is never used for its own sake, but for the purpose of effecting something else. No sufficient reason is therefore perceived why it may not pass as incidental to those powers which are expressly given if it be a direct mode of executing them. But the Constitution of the United States has not left the right of Congress to employ the necessary means for the execution of the powers conferred on the Government to general reasoning. To its enumeration of powers is added that of making "all Page 17 U. S. 412 laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States or in any department thereof." The counsel for the State of Maryland have urged various arguments to prove that this clause, though in terms a grant of power, is not so in effect, but is really restrictive of the general right which might otherwise be implied of selecting means for executing the enumerated powers. In support of this proposition, they have found it necessary to contend that this clause was inserted for the purpose of conferring on Congress the power of making laws. That, without it, doubts might be entertained whether Congress could exercise its powers in the form of legislation. But could this be the object for which it was inserted? A Government is created by the people having legislative, executive and judicial powers. Its legislative powers are vested in a Congress, which is to consist of a senate and house of representatives. Each house may determine the rule of its proceedings, and it is declared that every bill which shall have passed both houses shall, before it becomes a law, be presented to the President of the United States. The 7th section describes the course of proceedings by which a bill shall become a law, and then the 8th section enumerates the powers of Congress. Could it be necessary to say that a legislature should exercise legislative powers, in the shape of legislation? After allowing each house to prescribe Page 17 U. S. 413 its own course of proceeding, after describing the manner in which a bill should become a law, would it have entered into the mind of a single member of the convention that an express power to make laws was necessary to enable the legislature to make them? That a legislature, endowed with legislative powers, can legislate is a proposition too self-evident to have been questioned. But the argument on which most reliance is placed is drawn from that peculiar language of this clause. Congress is not empowered by it to make all laws which may have relation to the powers conferred on the Government, but such only as may be "necessary and proper" for carrying them into execution. The word "necessary" is considered as controlling the whole sentence, and as limiting the right to pass laws for the execution of the granted powers to such as are indispensable, and without which the power would be nugatory. That it excludes the choice of means, and leaves to Congress in each case that only which is most direct and simple. Is it true that this is the sense in which the word "necessary" is always used? Does it always import an absolute physical necessity so strong that one thing to which another may be termed necessary cannot exist without that other? We think it does not. If reference be had to its use in the common affairs of the world or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end is generally understood as employing any means calculated to Page 17 U. S. 414 produce the end, and not as being confined to those single means without which the end would be entirely unattainable. Such is the character of human language that no word conveys to the mind in all situations one single definite idea, and nothing is more common than to use words in a figurative sense. Almost all compositions contain words which, taken in a their rigorous sense, would convey a meaning different from that which is obviously intended. It is essential to just construction that many words which import something excessive should be understood in a more mitigated sense -- in that sense which common usage justifies. The word "necessary" is of this description. It has not a fixed character peculiar to itself. It admits of all degrees of comparison, and is often connected with other words which increase or diminish the impression the mind receives of the urgency it imports. A thing may be necessary, very necessary, absolutely or indispensably necessary. To no mind would the same idea be conveyed by these several phrases. The comment on the word is well illustrated by the passage cited at the bar from the 10th section of the 1st article of the Constitution. It is, we think, impossible to compare the sentence which prohibits a State from laying "imposts, or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws," with that which authorizes Congress "to make all laws which shall be necessary and proper for carrying into execution" the powers of the General Government without feeling a conviction that the convention understood itself to change materially Page 17 U. S. 415 the meaning of the word "necessary," by prefixing the word "absolutely." This word, then, like others, is used in various senses, and, in its construction, the subject, the context, the intention of the person using them are all to be taken into view. Let this be done in the case under consideration. The subject is the execution of those great powers on which the welfare of a Nation essentially depends. It must have been the intention of those who gave these powers to insure, so far as human prudence could insure, their beneficial execution. This could not be done by confiding the choice of means to such narrow limits as not to leave it in the power of Congress to adopt any which might be appropriate, and which were conducive to the end. This provision is made in a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs. To have prescribed the means by which Government should, in all future time, execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances. Page 17 U. S. 416 If we apply this principle of construction to any of the powers of the Government, we shall find it so pernicious in its operation that we shall be compelled to discard it. The powers vested in Congress may certainly be carried into execution, without prescribing an oath of office. The power to exact this security for the faithful performance of duty is not given, nor is it indispensably necessary. The different departments may be established; taxes may be imposed and collected; armies and navies may be raised and maintained; and money may be borrowed, without requiring an oath of office. It might be argued with as much plausibility as other incidental powers have been assailed that the convention was not unmindful of this subject. The oath which might be exacted -- that of fidelity to the Constitution -- is prescribed, and no other can be required. Yet he would be charged with insanity who should contend that the legislature might not superadd to the oath directed by the Constitution such other oath of office as its wisdom might suggest. So, with respect to the whole penal code of the United States, whence arises the power to punish in cases not prescribed by the Constitution? All admit that the Government may legitimately punish any violation of its laws, and yet this is not among the enumerated powers of Congress. The right to enforce the observance of law by punishing its infraction might be denied with the more plausibility because it is expressly given in some cases. Congress is empowered "to provide for the punishment Page 17 U. S. 417 of counterfeiting the securities and current coin of the United States," and "to define and punish piracies and felonies committed on the high seas, and offences against the law of nations." The several powers of Congress may exist in a very imperfect State, to be sure, but they may exist and be carried into execution, although no punishment should be inflicted, in cases where the right to punish is not expressly given. Take, for example, the power "to establish post-offices and post-roads." This power is executed by the single act of making the establishment. But from this has been inferred the power and duty of carrying the mail along the post road from one post office to another. And from this implied power has again been inferred the right to punish those who steal letters from the post office, or rob the mail. It may be said with some plausibility that the right to carry the mail, and to punish those who rob it, is not indispensably necessary to the establishment of a post office and post road. This right is indeed essential to the beneficial exercise of the power, but not indispensably necessary to its existence. So, of the punishment of the crimes of stealing or falsifying a record or process of a Court of the United States, or of perjury in such Court. To punish these offences is certainly conducive to the due administration of justice. But Courts may exist, and may decide the causes brought before them, though such crimes escape punishment. The baneful influence of this narrow construction on all the operations of the Government, and the absolute Page 17 U. S. 418 impracticability of maintaining it without rendering the Government incompetent to its great objects, might be illustrated by numerous examples drawn from the Constitution and from our laws. The good sense of the public has pronounced without hesitation that the power of punishment appertains to sovereignty, and may be exercised, whenever the sovereign has a right to act, as incidental to his Constitutional powers. It is a means for carrying into execution all sovereign powers, and may be used although not indispensably necessary. It is a right incidental to the power, and conducive to its beneficial exercise. If this limited construction of the word "necessary" must be abandoned in order to punish, whence is derived the rule which would reinstate it when the Government would carry its powers into execution by means not vindictive in their nature? If the word "necessary" means "needful," "requisite," "essential," "conducive to," in order to let in the power of punishment for the infraction of law, why is it not equally comprehensive when required to authorize the use of means which facilitate the execution of the powers of Government, without the infliction of punishment? In ascertaining the sense in which the word "necessary" is used in this clause of the Constitution, we may derive some aid from that with which it it is associated. Congress shall have power "to make all laws which shall be necessary and proper to carry into execution" the powers of the Government. If the word "necessary" was used in that strict and rigorous sense for which the counsel for the State of Page 17 U. S. 419 Maryland contend, it would be an extraordinary departure from the usual course of the human mind, as exhibited in composition, to add a word the only possible effect of which is to qualify that strict and rigorous meaning, to present to the mind the idea of some choice of means of legislation not strained and compressed within the narrow limits for which gentlemen contend. But the argument which most conclusively demonstrates the error of the construction contended for by the counsel for the State of Maryland is founded on the intention of the convention as manifested in the whole clause. To waste time and argument in proving that, without it, Congress might carry its powers into execution would be not much less idle than to hold a lighted taper to the sun. As little can it be required to prove that, in the absence of this clause, Congress would have some choice of means. That it might employ those which, in its judgment, would most advantageously effect the object to be accomplished. That any means adapted to the end, any means which tended directly to the execution of the Constitutional powers of the Government, were in themselves Constitutional. This clause, as construed by the State of Maryland, would abridge, and almost annihilate, this useful and necessary right of the legislature to select its means. That this could not be intended is, we should think, had it not been already controverted, too apparent for controversy. We think so for the following reasons: 1st. The clause is placed among the powers of Congress, not among the limitations on those powers. Page 17 U. S. 420 2d. Its terms purport to enlarge, not to diminish, the powers vested in the Government. It purports to be an additional power, not a restriction on those already granted. No reason has been or can be assigned for thus concealing an intention to narrow the discretion of the National Legislature under words which purport to enlarge it. The framers of the Constitution wished its adoption, and well knew that it would be endangered by its strength, not by its weakness. Had they been capable of using language which would convey to the eye one idea and, after deep reflection, impress on the mind another, they would rather have disguised the grant of power than its limitation. If, then, their intention had been, by this clause, to restrain the free use of means which might otherwise have been implied, that intention would have been inserted in another place, and would have been expressed in terms resembling these. "In carrying into execution the foregoing powers, and all others," &c., "no laws shall be passed but such as are necessary and proper." Had the intention been to make this clause restrictive, it would unquestionably have been so in form, as well as in effect. The result of the most careful and attentive consideration bestowed upon this clause is that, if it does not enlarge, it cannot be construed to restrain, the powers of Congress, or to impair the right of the legislature to exercise its best judgment in the selection of measures to carry into execution the Constitutional powers of the Government. If no other motive for its insertion can be suggested, a sufficient one is found in the desire to remove all doubts respecting Page 17 U. S. 421 the right to legislate on that vast mass of incidental powers which must be involved in the Constitution if that instrument be not a splendid bauble. We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional. * That a corporation must be considered as a means not less usual, not of higher dignity, not more requiring a particular specification than other means has been sufficiently proved. If we look to the origin of corporations, to the manner in which they have been framed in that Government from which we have derived most of our legal principles and ideas, or to the uses to which they have been applied, we find no reason to suppose that a Constitution, omitting, and wisely omitting, to enumerate all the means for carrying into execution the great powers vested in Government, ought to have specified this. Had it been intended to grant this power as one which should be distinct and independent, to be exercised in any case whatever, it Page 17 U. S. 422 would have found a place among the enumerated powers of the Government. But being considered merely as a means, to be employed only for the purpose of carrying into execution the given powers, there could be no motive for particularly mentioning it. The propriety of this remark would seem to be generally acknowledged by the universal acquiescence in the construction which has been uniformly put on the 3d section of the 4th article of the Constitution. The power to "make all needful rules and regulations respecting the territory or other property belonging to the United States" is not more comprehensive than the power "to make all laws which shall be necessary and proper for carrying into execution" the powers of the Government. Yet all admit the constitutionality of a Territorial Government, which is a corporate body. If a corporation may be employed, indiscriminately with other means, to carry into execution the powers of the Government, no particular reason can be assigned for excluding the use of a bank, if required for its fiscal operations. To use one must be within the discretion of Congress if it be an appropriate mode of executing the powers of Government. That it is a convenient, a useful, and essential instrument in the prosecution of its fiscal operations is not now a subject of controversy. All those who have been concerned in the administration of our finances have concurred in representing its importance and necessity, and so strongly have they been felt that Statesmen of the first class, whose previous opinions Page 17 U. S. 423 against it had been confirmed by every circumstance which can fix the human judgment, have yielded those opinions to the exigencies of the nation. Under the Confederation, Congress, justifying the measure by its necessity, transcended, perhaps, its powers to obtain the advantage of a bank; and our own legislation attests the universal conviction of the utility of this measure. The time has passed away when it can be necessary to enter into any discussion in order to prove the importance of this instrument as a means to effect the legitimate objects of the Government. But were its necessity less apparent, none can deny its being an appropriate measure; and if it is, the decree of its necessity, as has been very justly observed, is to be discussed in another place. Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the Government, to undertake here to inquire into the decree of its necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground. This Court disclaims all pretensions to such a power. Page 17 U. S. 424 After this declaration, it can scarcely be necessary to say that the existence of State banks can have no possible influence on the question. No trace is to be found in the Constitution of an intention to create a dependence of the Government of the Union on those of the States, for the execution of the great powers assigned to it. Its means are adequate to its ends, and on those means alone was it expected to rely for the accomplishment of its ends. To impose on it the necessity of resorting to means which it cannot control, which another Government may furnish or withhold, would render its course precarious, the result of its measures uncertain, and create a dependence on other Governments which might disappoint its most important designs, and is incompatible with the language of the Constitution. But were it otherwise, the choice of means implies a right to choose a national bank in preference to State banks, and Congress alone can make the election. After the most deliberate consideration, it is the unanimous and decided opinion of this Court that the act to incorporate the Bank of the United States is a law made in pursuance of the Constitution, and is a part of the supreme law of the land. The branches, proceeding from the same stock and being conducive to the complete accomplishment of the object, are equally constitutional. It would have been unwise to locate them in the charter, and it would be unnecessarily inconvenient to employ the legislative power in making those subordinate arrangements. The great duties of the bank are prescribed; those duties require branches; and the bank itself Page 17 U. S. 425 may, we think, be safely trusted with the selection of places where those branches shall be fixed, reserving always to the Government the right to require that a branch shall be located where it may be deemed necessary. It being the opinion of the Court that the act incorporating the bank is constitutional, and that the power of establishing a branch in the State of Maryland might be properly exercised by the bank itself, we proceed to inquire: 2. Whether the State of Maryland may, without violating the Constitution, tax that branch? That the power of taxation is one of vital importance; that it is retained by the States; that it is not abridged by the grant of a similar power to the Government of the Union; that it is to be concurrently exercised by the two Governments -- are truths which have never been denied. But such is the paramount character of the Constitution that its capacity to withdraw any subject from the action of even this power is admitted. The States are expressly forbidden to lay any duties on imports or exports except what may be absolutely necessary for executing their inspection laws. If the obligation of this prohibition must be conceded -- if it may restrain a State from the exercise of its taxing power on imports and exports -- the same paramount character would seem to restrain, as it certainly may restrain, a State from such other exercise of this power as is in its nature incompatible with, and repugnant to, the constitutional laws of the Union. A law absolutely repugnant to another as entirely Page 17 U. S. 426 repeals that other as if express terms of repeal were used. On this ground, the counsel for the bank place its claim to be exempted from the power of a State to tax its operations. There is no express provision for the case, but the claim has been sustained on a principle which so entirely pervades the Constitution, is so intermixed with the materials which compose it, so interwoven with its web, so blended with its texture, as to be incapable of being separated from it without rending it into shreds. This great principle is that the Constitution and the laws made in pursuance thereof are supreme; that they control the Constitution and laws of the respective States, and cannot be controlled by them. From this, which may be almost termed an axiom, other propositions are deduced as corollaries, on the truth or error of which, and on their application to this case, the cause has been supposed to depend. These are, 1st. That a power to create implies a power to preserve; 2d. That a power to destroy, if wielded by a different hand, is hostile to, and incompatible with these powers to create and to preserve; 3d. That, where this repugnancy exists, that authority which is supreme must control, not yield to that over which it is supreme. These propositions, as abstract truths, would perhaps never be controverted. Their application to this case, however, has been denied, and both in maintaining the affirmative and the negative, a splendor of eloquence, and strength of argument seldom if ever surpassed have been displayed. Page 17 U. S. 427 The power of Congress to create and, of course, to continue the bank was the subject of the preceding part of this opinion, and is no longer to be considered as questionable. That the power of taxing it by the States may be exercised so as to destroy it is too obvious to be denied. But taxation is said to be an absolute power which acknowledges no other limits than those expressly prescribed in the Constitution, and, like sovereign power of every other description, is intrusted to the discretion of those who use it. But the very terms of this argument admit that the sovereignty of the State, in the article of taxation itself, is subordinate to, and may be controlled by, the Constitution of the United States. How far it has been controlled by that instrument must be a question of construction. In making this construction, no principle, not declared, can be admissible which would defeat the legitimate operations of a supreme Government. It is of the very essence of supremacy to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments as to exempt its own operations from their own influence. This effect need not be stated in terms. It is so involved in the declaration of supremacy, so necessarily implied in it, that the expression of it could not make it more certain. We must, therefore, keep it in view while construing the Constitution. The argument on the part of the State of Maryland is not that the States may directly resist a law of Congress, but that they may exercise their Page 17 U. S. 428 acknowledged powers upon it, and that the Constitution leaves them this right, in the confidence that they will not abuse it. Before we proceed to examine this argument and to subject it to test of the Constitution, we must be permitted to bestow a few considerations on the nature and extent of this original right of taxation, which is acknowledged to remain with the States. It is admitted that the power of taxing the people and their property is essential to the very existence of Government, and may be legitimately exercised on the objects to which it is applicable, to the utmost extent to which the Government may choose to carry it. The only security against the abuse of this power is found in the structure of the Government itself. In imposing a tax, the legislature acts upon its constituents. This is, in general, a sufficient security against erroneous and oppressive taxation. The people of a State, therefore, give to their Government a right of taxing themselves and their property, and as the exigencies of Government cannot be limited, they prescribe no limits to the exercise of this right, resting confidently on the interest of the legislator and on the influence of the constituent over their representative to guard them against its abuse. But the means employed by the Government of the Union have no such security, nor is the right of a State to tax them sustained by the same theory. Those means are not given by the people of a particular State, not given by the constituents of the legislature which claim the right to tax them, but by the people of all the States They are given by all, Page 17 U. S. 429 for the benefit of all -- and, upon theory, should be subjected to that Government only which belongs to all. It may be objected to this definition that the power of taxation is not confined to the people and property of a State. It may be exercised upon every object brought within its jurisdiction. This is true. But to what source do we trace this right? It is obvious that it is an incident of sovereignty, and is coextensive with that to which it is an incident. All subjects over which the sovereign power of a State extends are objects of taxation, but those over which it does not extend are, upon the soundest principles, exempt from taxation. This proposition may almost be pronounced self-evident. The sovereignty of a State extends to everything which exists by its own authority or is introduced by its permission, but does it extend to those means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States? We think it demonstrable that it does not. Those powers are not given by the people of a single State. They are given by the people of the United States, to a Government whose laws, made in pursuance of the Constitution, are declared to be supreme. Consequently, the people of a single State cannot confer a sovereignty which will extend over them. If we measure the power of taxation residing in a State by the extent of sovereignty which the people of a single State possess and can confer on its Government, we have an intelligible standard, applicable Page 17 U. S. 430 to every case to which the power may be applied. We have a principle which leaves the power of taxing the people and property of a State unimpaired; which leaves to a State the command of all its resources, and which places beyond its reach all those powers which are conferred by the people of the United States on the Government of the Union, and all those means which are given for the purpose of carrying those powers into execution. We have a principle which is safe for the States and safe for the Union. We are relieved, as we ought to be, from clashing sovereignty; from interfering powers; from a repugnancy between a right in one Government to pull down what there is an acknowledged right in another to build up; from the incompatibility of a right in one Government to destroy what there is a right in another to preserve. We are not driven to the perplexing inquiry, so unfit for the judicial department, what degree of taxation is the legitimate use and what degree may amount to the abuse of the power. The attempt to use it on the means employed by the Government of the Union, in pursuance of the Constitution, is itself an abuse because it is the usurpation of a power which the people of a single State cannot give. We find, then, on just theory, a total failure of this original right to tax the means employed by the Government of the Union, for the execution of its powers. The right never existed, and the question whether it has been surrendered cannot arise. But, waiving this theory for the present, let us resume the inquiry, whether this power can be exercised Page 17 U. S. 431 by the respective States, consistently with a fair construction of the Constitution? That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on one Government a power to control the constitutional measures of another, which other, with respect to those very measures, is declared to be supreme over that which exerts the control, are propositions not to be denied. But all inconsistencies are to be reconciled by the magic of the word CONFIDENCE. Taxation, it is said, does not necessarily and unavoidably destroy. To carry it to the excess of destruction would be an abuse, to presume which would banish that confidence which is essential to all Government. But is this a case of confidence? Would the people of any one State trust those of another with a power to control the most insignificant operations of their State Government? We know they would not. Why, then, should we suppose that the people of any one State should be willing to trust those of another with a power to control the operations of a Government to which they have confided their most important and most valuable interests? In the Legislature of the Union alone are all represented. The Legislature of the Union alone, therefore, can be trusted by the people with the power of controlling measures which concern all, in the confidence that it will not be abused. This, then, is not a case of confidence, and we must consider it is as it really is. Page 17 U. S. 432 If we apply the principle for which the State of Maryland contends, to the Constitution generally, we shall find it capable of changing totally the character of that instrument. We shall find it capable of arresting all the measures of the Government, and of prostrating it at the foot of the States. The American people have declared their Constitution and the laws made in pursuance thereof to be supreme, but this principle would transfer the supremacy, in fact, to the States. If the States may tax one instrument, employed by the Government in the execution of its powers, they may tax any and every other instrument. They may tax the mail; they may tax the mint; they may tax patent rights; they may tax the papers of the custom house; they may tax judicial process; they may tax all the means employed by the Government to an excess which would defeat all the ends of Government. This was not intended by the American people. They did not design to make their Government dependent on the States. Gentlemen say they do not claim the right to extend State taxation to these objects. They limit their pretensions to property. But on what principle is this distinction made? Those who make it have furnished no reason for it, and the principle for which they contend denies it. They contend that the power of taxation has no other limit than is found in the 10th section of the 1st article of the Constitution; that, with respect to everything else, the power of the States is supreme, and admits of no control. If this be true, the distinction between property and Page 17 U. S. 433 other subjects to which the power of taxation is applicable is merely arbitrary, and can never be sustained. This is not all. If the controlling power of the States be established, if their supremacy as to taxation be acknowledged, what is to restrain their exercising control in any shape they may please to give it? Their sovereignty is not confined to taxation; that is not the only mode in which it might be displayed. The question is, in truth, a question of supremacy, and if the right of the States to tax the means employed by the General Government be conceded, the declaration that the Constitution and the laws made in pursuance thereof shall be the supreme law of the land is empty and unmeaning declamation. In the course of the argument, the Federalist has been quoted, and the opinions expressed by the authors of that work have been justly supposed to be entitled to great respect in expounding the Constitution. No tribute can be paid to them which exceeds their merit; but in applying their opinions to the cases which may arise in the progress of our Government, a right to judge of their correctness must be retained; and to understand the argument, we must examine the proposition it maintains and the objections against which it is directed. The subject of those numbers from which passages have been cited is the unlimited power of taxation which is vested in the General Government. The objection to this unlimited power, which the argument seeks to remove, is stated with fulness and clearness. It is "that an indefinite power of taxation in the latter (the Government Page 17 U. S. 434 of the Union) might, and probably would, in time, deprive the former (the Government of the States) of the means of providing for their own necessities, and would subject them entirely to the mercy of the National Legislature. As the laws of the Union are to become the supreme law of the land; as it is to have power to pass all laws that may be necessary for carrying into execution the authorities with which it is proposed to vest it; the National Government might, at any time, abolish the taxes imposed for State objects upon the pretence of an interference with its own. It might allege a necessity for doing this, in order to give efficacy to the national revenues; and thus, all the resources of taxation might, by degrees, become the subjects of federal monopoly, to the entire exclusion and destruction of the State Governments." The objections to the Constitution which are noticed in these numbers were to the undefined power of the Government to tax, not to the incidental privilege of exempting its own measures from State taxation. The consequences apprehended from this undefined power were that it would absorb all the objects of taxation, "to the exclusion and destruction of the State Governments." The arguments of the Federalist are intended to prove the fallacy of these apprehensions, not to prove that the Government was incapable of executing any of its powers without exposing the means it employed to the embarrassments of State taxation. Arguments urged against these objections and these apprehensions are to be understood as relating to the points they Page 17 U. S. 435 mean to prove. Had the authors of those excellent essays been asked whether they contended for that construction of the Constitution which would place within the reach of the States those measures which the Government might adopt for the execution of its powers, no man who has read their instructive pages will hesitate to admit that their answer must have been in the negative. It has also been insisted that, as the power of taxation in the General and State Governments is acknowledged to be concurrent, every argument which would sustain the right of the General Government to tax banks chartered by the States, will equally sustain the right of the States to tax banks chartered by the General Government. But the two cases are not on the same reason. The people of all the States have created the General Government, and have conferred upon it the general power of taxation. The people of all the States, and the States themselves, are represented in Congress, and, by their representatives, exercise this power. When they tax the chartered institutions of the States, they tax their constituents, and these taxes must be uniform. But when a State taxes the operations of the Government of the United States, it acts upon institutions created not by their own constituents, but by people over whom they claim no control. It acts upon the measures of a Government created by others as well as themselves, for the benefit of others in common with themselves. The difference is that which always exists, and always must exist, between the action of the whole on a Page 17 U. S. 436 part, and the action of a part on the whole -- between the laws of a Government declared to be supreme, and those of a Government which, when in opposition to those laws, is not supreme. But if the full application of this argument could be admitted, it might bring into question the right of Congress to tax the State banks, and could not prove the rights of the States to tax the Bank of the United States. The Court has bestowed on this subject its most deliberate consideration. The result is a conviction that the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the General Government. This is, we think, the unavoidable consequence of that supremacy which the Constitution has declared. We are unanimously of opinion that the law passed by the Legislature of Maryland, imposing a tax on the Bank of the United States is unconstitutional and void. This opinion does not deprive the States of any resources which they originally possessed. It does not extend to a tax paid by the real property of the bank, in common with the other real property within the State, nor to a tax imposed on the interest which the citizens of Maryland may hold in this institution, in common with other property of the same description throughout the State. But this is a tax on the operations of the bank, and is, consequently, a tax on the operation of an instrument employed by the Government Page 17 U. S. 437 of the Union to carry its powers into execution. Such a tax must be unconstitutional. JUDGMENT. This cause came on to be heard, on the transcript of the record of the Court of Appeals of the State of Maryland, and was argued by counsel; on consideration whereof, it is the opinion of this Court that the act of the Legislature of Maryland is contrary to the Constitution of the United States, and void, and therefore that the said Court of Appeals of the State of Maryland erred, in affirming the judgment of the Baltimore County Court, in which judgment was rendered against James W. McCulloch; but that the said Court of Appeals of Maryland ought to have reversed the said judgment of the said Baltimore County Court, and ought to have given judgment for the said appellant, McCulloch. It is, therefore, adjudged and ordered that the said judgment of the said Court of Appeals of the State of Maryland in this case be, and the same hereby is, reversed and annulled. And this Court, proceeding to render such judgment as the said Court of Appeals should have rendered, it is further adjudged and ordered that the judgment of the said Baltimore County Court be reversed and annulled, and that judgment be entered in the said Baltimore County Court for the said James W. McCulloch. * See Montague v. Richardson, 24 Conn. 348.

In McCulloch v. Maryland (1819), the U.S. Supreme Court ruled that Congress has the power to incorporate a national bank and that the states cannot tax or otherwise impede the operations of the national government or its constitutional laws. The Court upheld the constitutionality of the national bank and asserted the supremacy of the federal government within its designated sphere, with state laws yielding when in conflict with federal laws. This decision established the concept of implied powers for the federal government and limited state power over federal institutions.

Role of Courts

Hollingsworth v. Perry

https://supreme.justia.com/cases/federal/us/570/693/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 12–144 _________________ DENNIS HOLLINGSWORTH, et al., PETITIONERS v. KRISTIN M. PERRY et al. on writ of certiorari to the united states court of appeals for the ninth circuit [June 26, 2013]      Chief Justice Roberts delivered the opinion of the Court.      The public is currently engaged in an active political debate over whether same-sex couples should be allowed to marry. That question has also given rise to litigation. In this case, petitioners, who oppose same-sex marriage, ask us to decide whether the Equal Protection Clause “prohibits the State of California from defining marriage as the union of a man and a woman.” Pet. for Cert. i. Respondents, same-sex couples who wish to marry, view the issue in somewhat different terms: For them, it is whether California—having previously recognized the right of same-sex couples to marry—may reverse that decision through a referendum.      Federal courts have authority under the Constitution to answer such questions only if necessary to do so in the course of deciding an actual “case” or “controversy.” As used in the Constitution, those words do not include every sort of dispute, but only those “historically viewed as capable of resolution through the judicial process.” Flast v. Cohen, 392 U. S. 83, 95 (1968) . This is an essential limit on our power: It ensures that we act as judges, and do not engage in policymaking properly left to elected representatives.      For there to be such a case or controversy, it is not enough that the party invoking the power of the court have a keen interest in the issue. That party must also have “standing,” which requires, among other things, that it have suffered a concrete and particularized injury. Because we find that petitioners do not have standing, we have no authority to decide this case on the merits, and neither did the Ninth Circuit. I      In 2008, the California Supreme Court held that limiting the official designation of marriage to opposite-sex couples violated the equal protection clause of the California Constitution. In re Marriage Cases, 43 Cal. 4th 757, 183 P. 3d 384. Later that year, California voters passed the ballot initiative at the center of this dispute, known as Proposition 8. That proposition amended the California Constitution to provide that “[o]nly marriage between a man and a woman is valid or recognized in California.” Cal. Const., Art. I, §7.5. Shortly thereafter, the California Supreme Court rejected a procedural challenge to the amendment, and held that the Proposition was properly enacted under California law. Strauss v. Horton, 46 Cal. 4th 364, 474–475, 207 P. 3d 48, 122 (2009).      According to the California Supreme Court, Proposition 8 created a “narrow and limited exception” to the state constitutional rights otherwise guaranteed to same-sex couples. Id., at 388, 207 P. 3d, at 61. Under California law, same-sex couples have a right to enter into relationships recognized by the State as “domestic partnerships,” which carry “the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law . . . as are granted to and imposed upon spouses.” Cal. Fam. Code Ann. §297.5(a) (West 2004). In In re Marriage Cases, the California Supreme Court concluded that the California Constitution further guarantees same-sex couples “all of the constitutionally based incidents of marriage,” including the right to have that marriage “officially recognized” as such by the State. 43 Cal. 4th, at 829, 183 P. 3d, at 433–434. Proposition 8, the court explained in Strauss, left those rights largely undisturbed, reserving only “the official designation of the term ‘marriage’ for the union of opposite-sex couples as a matter of state constitutional law.” 46 Cal. 4th, at 388, 207 P. 3d, at 61.      Respondents, two same-sex couples who wish to marry, filed suit in federal court, challenging Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Federal Constitution. The complaint named as defendants California’s Governor, attorney general, and various other state and local officials responsible for enforcing California’s marriage laws. Those officials refused to defend the law, although they have continued to enforce it throughout this litigation. The District Court allowed petitioners—the official proponents of the initiative, see Cal. Elec. Code Ann. §342 (West 2003)—to intervene to defend it. After a 12-day bench trial, the District Court declared Proposition 8 uncon-stitutional, permanently enjoining the California officials named as defendants from enforcing the law, and “directing the official defendants that all persons under their control or supervision” shall not enforce it. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1004 (ND Cal. 2010).      Those officials elected not to appeal the District Court order. When petitioners did, the Ninth Circuit asked them to address “why this appeal should not be dismissed for lack of Article III standing.” Perry v. Schwarzenegger, Civ. No. 10–16696 (CA9, Aug. 16, 2010), p. 2. After briefing and argument, the Ninth Circuit certified a question to the California Supreme Court: “Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s valid-ity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.” Perry v. Schwarzenegger, 628 F. 3d 1191, 1193 (2011).      The California Supreme Court agreed to decide the certified question, and answered in the affirmative. Without addressing whether the proponents have a particularized interest of their own in an initiative’s validity, the court concluded that “[i]n a postelection challenge to a voter-approved initiative measure, the official proponents of the initiative are authorized under California law to appear and assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so.” Perry v. Brown, 52 Cal. 4th 1116, 1127, 265 P. 3d 1002, 1007 (2011).      Relying on that answer, the Ninth Circuit concluded that petitioners had standing under federal law to defend the constitutionality of Proposition 8. California, it reasoned, “ ‘has standing to defend the constitutionality of its [laws],’ ” and States have the “prerogative, as independent sovereigns, to decide for themselves who may assert their interests.” Perry v. Brown, 671 F. 3d 1052, 1070, 1071 (2012) (quoting Diamond v. Charles, 476 U. S. 54, 62 (1986) ). “All a federal court need determine is that the state has suffered a harm sufficient to confer standing and that the party seeking to invoke the jurisdiction of the court is authorized by the state to represent its interest in remedying that harm.” 671 F. 3d, at 1072.      On the merits, the Ninth Circuit affirmed the District Court. The court held the Proposition unconstitutional under the rationale of our decision in Romer v. Evans, 517 U. S. 620 (1996) . 671 F. 3d, at 1076, 1095. In the Ninth Circuit’s view, Romer stands for the proposition that “the Equal Protection Clause requires the state to have a legitimate reason for withdrawing a right or benefit from one group but not others, whether or not it was required to confer that right or benefit in the first place.” 671 F. 3d, at 1083–1084. The Ninth Circuit concluded that “taking away the official designation” of “marriage” from same-sex couples, while continuing to afford those couples all the rights and obligations of marriage, did not further any legitimate interest of the State. Id., at 1095. Proposition 8, in the court’s view, violated the Equal Protection Clause because it served no purpose “but to impose on gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships.” Ibid.      We granted certiorari to review that determination, and directed that the parties also brief and argue “Whether petitioners have standing under Article III, §2, of the Constitution in this case.” 568 U. S. ___ (2012). II      Article III of the Constitution confines the judicial power of federal courts to deciding actual “Cases” or “Controversies.” §2. One essential aspect of this requirement is that any person invoking the power of a federal court must demonstrate standing to do so. This requires the litigant to prove that he has suffered a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision. Lujan v. Defenders of Wildlife, 504 U. S. 555 –561 (1992). In other words, for a federal court to have authority under the Constitution to settle a dispute, the party before it must seek a remedy for a personal and tangible harm. “The presence of a disagreement, however sharp and acrimonious it may be, is insufficient by itself to meet Art. III’s requirements.” Diamond, supra, at 62.      The doctrine of standing, we recently explained, “serves to prevent the judicial process from being used to usurp the powers of the political branches.” Clapper v. Amnesty Int’l USA, 568 U. S. ___, ___ (2013) (slip op., at 9). In light of this “overriding and time-honored concern about keeping the Judiciary’s power within its proper constitu- tional sphere, we must put aside the natural urge to proceed directly to the merits of [an] important dispute and to ‘settle’ it for the sake of convenience and effi-ciency.” Raines v. Byrd, 521 U. S. 811, 820 (1997) (footnote omitted).      Most standing cases consider whether a plaintiff has satisfied the requirement when filing suit, but Article III demands that an “actual controversy” persist throughout all stages of litigation. Already, LLC v. Nike, Inc., 568 U. S. ___, ___ (2013) (slip op., at 4) (internal quotation marks omitted). That means that standing “must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.” Arizonans for Official English v. Arizona, 520 U. S. 43, 64 (1997) . We therefore must decide whether petitioners had standing to appeal the District Court’s order.      Respondents initiated this case in the District Court against the California officials responsible for enforcing Proposition 8. The parties do not contest that respondents had Article III standing to do so. Each couple expressed a desire to marry and obtain “official sanction” from the State, which was unavailable to them given the declaration in Proposition 8 that “marriage” in California is solely between a man and a woman. App. 59.      After the District Court declared Proposition 8 unconstitutional and enjoined the state officials named as defendants from enforcing it, however, the inquiry under Article III changed. Respondents no longer had any injury to redress—they had won—and the state officials chose not to appeal.      The only individuals who sought to appeal that order were petitioners, who had intervened in the District Court. But the District Court had not ordered them to do or refrain from doing anything. To have standing, a litigant must seek relief for an injury that affects him in a “personal and individual way.” Defenders of Wildlife, supra, at 560, n. 1. He must possess a “direct stake in the outcome” of the case. Arizonans for Official English, supra, at 64 (internal quotation marks omitted). Here, however, petitioners had no “direct stake” in the outcome of their appeal. Their only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California law.      We have repeatedly held that such a “generalized grievance,” no matter how sincere, is insufficient to confer standing. A litigant “raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.” Defenders of Wildlife, supra, at 573–574; see Lance v. Coffman, 549 U. S. 437, 439 (2007) (per curiam) (“Our refusal to serve as a forum for generalized grievances has a lengthy pedigree.”); Allen v. Wright, 468 U. S. 737, 754 (1984) (“an asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court”); Massachusetts v. Mellon, 262 U. S. 447, 488 (1923) (“The party who invokes the [judicial] power must be able to show . . . that he has sustained or is immediately in danger of sustaining some direct injury . . . and not merely that he suffers in some indefinite way in common with people generally.”).      Petitioners argue that the California Constitution and its election laws give them a “ ‘unique,’ ‘special,’ and ‘distinct’ role in the initiative process—one ‘involving both authority and responsibilities that differ from other supporters of the measure.’ ” Reply Brief 5 (quoting 52 Cal. 4th, at 1126, 1142, 1160, 265 P. 3d, at 1006, 1017–1018, 1030). True enough—but only when it comes to the process of enacting the law. Upon submitting the proposed initiative to the attorney general, petitioners became the official “proponents” of Proposition 8. Cal. Elec. Code Ann. §342 (West 2003). As such, they were responsible for collecting the signatures required to qualify the measure for the ballot. §§9607–9609. After those signatures were collected, the proponents alone had the right to file the measure with election officials to put it on the ballot. §9032. Petitioners also possessed control over the arguments in favor of the initiative that would appear in California’s ballot pamphlets. §§9064, 9065, 9067, 9069.      But once Proposition 8 was approved by the voters, the measure became “a duly enacted constitutional amendment or statute.” 52 Cal. 4th, at 1147, 265 P. 3d, at 1021. Petitioners have no role—special or otherwise—in the enforcement of Proposition 8. See id., at 1159, 265 P. 3d, at 1029 (petitioners do not “possess any official authority . . . to directly enforce the initiative measure in question”). They therefore have no “personal stake” in defending its enforcement that is distinguishable from the general interest of every citizen of California. Defenders of Wildlife, supra, at 560–561.      Article III standing “is not to be placed in the hands of ‘concerned bystanders,’ who will use it simply as a ‘vehicle for the vindication of value interests.’ ” Diamond, 476 U. S., at 62. No matter how deeply committed petitioners may be to upholding Proposition 8 or how “zealous [their] advocacy,” post, at 4 (Kennedy, J., dissenting), that is not a “particularized” interest sufficient to create a case or controversy under Article III. Defenders of Wildlife, 504 U. S., at 560, and n. 1; see Arizonans for Official English, 520 U. S., at 65 (“Nor has this Court ever identified ini-tiative proponents as Article-III-qualified defenders of the measures they advocated.”); Don’t Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U. S. 1077 (1983) (summarily dismissing, for lack of standing, appeal by an initiative proponent from a decision holding the initiative unconstitutional). III A      Without a judicially cognizable interest of their own, petitioners attempt to invoke that of someone else. They assert that even if they have no cognizable interest in appealing the District Court’s judgment, the State of California does, and they may assert that interest on the State’s behalf. It is, however, a “fundamental restriction on our authority” that “[i]n the ordinary course, a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or inter-ests of third parties.” Powers v. Ohio, 499 U. S. 400, 410 (1991) . There are “certain, limited exceptions” to that rule. Ibid. But even when we have allowed litigants to assert the interests of others, the litigants themselves still “must have suffered an injury in fact, thus giving [them] a sufficiently concrete interest in the outcome of the issue in dispute.” Id., at 411 (internal quotation marks omitted).      In Diamond v. Charles, for example, we refused to allow Diamond, a pediatrician engaged in private practice in Illinois, to defend the constitutionality of the State’s abortion law. In that case, a group of physicians filed a con-stitutional challenge to the Illinois statute in federal court. The State initially defended the law, and Diamond, a professed “conscientious object[or] to abortions,” in-tervened to defend it alongside the State. 476 U. S., at 57–58.      After the Seventh Circuit affirmed a permanent injunction against enforcing several provisions of the law, the State chose not to pursue an appeal to this Court. But when Diamond did, the state attorney general filed a “ ‘letter of interest,’ ” explaining that the State’s interest in the proceeding was “ ‘essentially co-terminous with the position on the issues set forth by [Diamond].’ ” Id., at 61. That was not enough, we held, to allow the appeal to proceed. As the Court explained, “[e]ven if there were cir-cumstances in which a private party would have stand- ing to defend the constitutionality of a challenged statute, this [was] not one of them,” because Diamond was not able to assert an injury in fact of his own. Id., at 65 (footnote omitted). And without “any judicially cognizable interest,” Diamond could not “maintain the litigation abandoned by the State.” Id., at 71.      For the reasons we have explained, petitioners have likewise not suffered an injury in fact, and therefore would ordinarily have no standing to assert the State’s interests. B      Petitioners contend that this case is different, because the California Supreme Court has determined that they are “authorized under California law to appear and assert the state’s interest” in the validity of Proposition 8. 52 Cal. 4th, at 1127, 265 P. 3d, at 1007. The court below agreed: “All a federal court need determine is that the state has suffered a harm sufficient to confer standing and that the party seeking to invoke the jurisdiction of the court is authorized by the state to represent its interest in remedying that harm.” 671 F. 3d, at 1072. As petitioners put it, they “need no more show a personal injury, separate from the State’s indisputable interest in the validity of its law, than would California’s Attorney General or did the legislative leaders held to have standing in Karcher v. May, 484 U. S. 72 (1987) .” Reply Brief 6.      In Karcher, we held that two New Jersey state legis-lators—Speaker of the General Assembly Alan Karcher and President of the Senate Carmen Orechio—could intervene in a suit against the State to defend the constitutionality of a New Jersey law, after the New Jersey attorney general had declined to do so. 484 U. S., at 75, 81–82. “Since the New Jersey Legislature had authority under state law to represent the State’s interests in both the District Court and the Court of Appeals,” we held that the Speaker and the President, in their official capacities, could vindicate that interest in federal court on the legislature’s behalf. Id., at 82.      Far from supporting petitioners’ standing, however, Karcher is compelling precedent against it. The legislators in that case intervened in their official capacities as Speaker and President of the legislature. No one doubts that a State has a cognizable interest “in the continued enforceability” of its laws that is harmed by a judicial decision declaring a state law unconstitutional. Maine v. Taylor, 477 U. S. 131, 137 (1986) . To vindicate that interest or any other, a State must be able to designate agents to represent it in federal court. See Poindexter v. Greenhow, 114 U. S. 270, 288 (1885) (“The State is a political corporate body [that] can act only through agents”). That agent is typically the State’s attorney general. But state law may provide for other officials to speak for the State in federal court, as New Jersey law did for the State’s presiding legislative officers in Karcher. See 484 U. S., at 81–82.      What is significant about Karcher is what happened after the Court of Appeals decision in that case. Karcher and Orechio lost their positions as Speaker and President, but nevertheless sought to appeal to this Court. We held that they could not do so. We explained that while they were able to participate in the lawsuit in their official capacities as presiding officers of the incumbent legislature, “since they no longer hold those offices, they lack authority to pursue this appeal.” Id., at 81.      The point of Karcher is not that a State could authorize private parties to represent its interests; Karcher and Orechio were permitted to proceed only because they were state officers, acting in an official capacity. As soon as they lost that capacity, they lost standing. Petitioners here hold no office and have always participated in this litigation solely as private parties.      The cases relied upon by the dissent, see post, at 11–12, provide petitioners no more support. The dissent’s primary authorities, in fact, do not discuss standing at all. See Young v. United States ex rel. Vuitton et Fils S. A., 481 U. S. 787 (1987) ; United States v. Providence Journal Co., 485 U. S. 693 (1988) . And none comes close to establishing that mere authorization to represent a third party’s interests is sufficient to confer Article III standing on private parties with no injury of their own.      The dissent highlights the discretion exercised by special prosecutors appointed by federal courts to pursue contempt charges. See post, at 11 (citing Young, supra, at 807). Such prosecutors do enjoy a degree of independence in carrying out their appointed role, but no one would suppose that they are not subject to the ultimate au-thority of the court that appointed them. See also Prov-idence Journal, supra, at 698–707 (recognizing further control exercised by the Solicitor General over special prosecutors).      The dissent’s remaining cases, which at least consider standing, are readily distinguishable. See Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765 –778 (2000) (justifying qui tam actions based on a partial assignment of the Government’s damages claim and a “well nigh conclusive” tradition of such actions in English and American courts dating back to the 13th century); Whitmore v. Arkansas, 495 U. S. 149 –164 (1989) (justifying “next friend” standing based on a similar history dating back to the 17th century, requiring the next friend to prove a disability of the real party in interest and a “significant relationship” with that party); Gollust v. Mendell, 501 U. S. 115 –125 (1990) (requiring plaintiff in shareholder-derivative suit to maintain a financial stake in the outcome of the litigation, to avoid “serious constitutional doubt whether that plaintiff could demonstrate the standing required by Article III’s case-or-controversy limitation”). C      Both petitioners and respondents seek support from dicta in Arizonans for Official English v. Arizona, 520 U. S. 43 . The plaintiff in Arizonans for Official English filed a constitutional challenge to an Arizona ballot initiative declaring English “ ‘the official language of the State of Arizona.’ ” Id., at 48. After the District Court declared the initiative unconstitutional, Arizona’s Governor announced that she would not pursue an appeal. Instead, the principal sponsor of the ballot initiative—the Arizonans for Official English Committee—sought to defend the measure in the Ninth Circuit. Id., at 55–56, 58. Analogizing the sponsors to the Arizona Legislature, the Ninth Circuit held that the Committee was “qualified to defend [the initiative] on appeal,” and affirmed the District Court. Id., at 58, 61.      Before finding the case mooted by other events, this Court expressed “grave doubts” about the Ninth Circuit’s standing analysis. Id., at 66. We reiterated that “[s]tanding to defend on appeal in the place of an original defendant . . . demands that the litigant possess ‘a direct stake in the outcome.’ ” Id., at 64 (quoting Diamond, 476 U. S., at 62). We recognized that a legislator authorized by state law to represent the State’s interest may satisfy standing requirements, as in Karcher, supra, at 82, but noted that the Arizona committee and its members were “not elected representatives, and we [we]re aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.” Arizonans for Official English, supra, at 65.      Petitioners argue that, by virtue of the California Supreme Court’s decision, they are authorized to act “ ‘as agents of the people’ of California.” Brief for Petitioners 15 (quoting Arizonans for Official English, supra, at 65). But that Court never described petitioners as “agents of the people,” or of anyone else. Nor did the Ninth Circuit. The Ninth Circuit asked—and the California Supreme Court answered—only whether petitioners had “the authority to assert the State’s interest in the initiative’s validity.” 628 F. 3d, at 1193; 52 Cal. 4th, at 1124, 265 P. 3d, at 1005. All that the California Supreme Court decision stands for is that, so far as California is concerned, petitioners may argue in defense of Proposition 8. This “does not mean that the proponents become de facto public officials”; the authority they enjoy is “simply the authority to participate as parties in a court action and to assert legal arguments in defense of the state’s interest in the validity of the initiative measure.” Id., at 1159, 265 P. 3d, at 1029. That interest is by definition a generalized one, and it is precisely because proponents assert such an interest that they lack standing under our precedents.      And petitioners are plainly not agents of the State—“formal” or otherwise, see post, at 7. As an initial matter, petitioners’ newfound claim of agency is inconsistent with their representations to the District Court. When the proponents sought to intervene in this case, they did not purport to be agents of California. They argued instead that “no other party in this case w[ould] adequately rep-resent their interests as official proponents.” Motion to Intervene in No. 09–2292 (ND Cal.), p. 6 (emphasis added). It was their “unique legal status” as official proponents—not an agency relationship with the people of California—that petitioners claimed “endow[ed] them with a significantly protectable interest” in ensuring that the District Court not “undo[ ] all that they ha[d] done in obtaining . . . enactment” of Proposition 8. Id., at 10, 11.      More to the point, the most basic features of an agency relationship are missing here. Agency requires more than mere authorization to assert a particular interest. “An essential element of agency is the principal’s right to control the agent’s actions.” 1 Restatement (Third) of Agency §1.01, Comment f (2005) (hereinafter Restatement). Yet petitioners answer to no one; they decide for themselves, with no review, what arguments to make and how to make them. Unlike California’s attorney general, they are not elected at regular intervals—or elected at all. See Cal. Const., Art. V, §11. No provision provides for their removal. As one amicus explains, “the proponents apparently have an unelected appointment for an unspecified period of time as defenders of the initiative, however and to whatever extent they choose to defend it.” Brief for Walter Dellinger 23.      “If the relationship between two persons is one of agency . . . , the agent owes a fiduciary obligation to the principal.” 1 Restatement §1.01, Comment e. But petitioners owe nothing of the sort to the people of California. Unlike California’s elected officials, they have taken no oath of office. E.g., Cal. Const., Art. XX, §3 (prescribing the oath for “all public officers and employees, executive, legislative, and judicial”). As the California Supreme Court explained, petitioners are bound simply by “the same ethical constraints that apply to all other parties in a legal proceeding.” 52 Cal. 4th, at 1159, 265 P. 3d, at 1029. They are free to pursue a purely ideological commit- ment to the law’s constitutionality without the need to take cognizance of resource constraints, changes in public opinion, or potential ramifications for other state priorities.      Finally, the California Supreme Court stated that “[t]he question of who should bear responsibility for any attorney fee award . . . is entirely distinct from the question” before it. Id., at 1161, 265 P. 3d, at 1031. (emphasis added). But it is hornbook law that “a principal has a duty to indem-nify the agent against expenses and other losses incurred by the agent in defending against actions brought by third parties if the agent acted with actual authority in taking the action challenged by the third party’s suit.” 2 Restatement §8.14, Comment d. If the issue of fees is entirely distinct from the authority question, then authority cannot be based on agency.      Neither the California Supreme Court nor the Ninth Circuit ever described the proponents as agents of the State, and they plainly do not qualify as such. IV      The dissent eloquently recounts the California Supreme Court’s reasons for deciding that state law authorizes petitioners to defend Proposition 8. See post, at 3–5. We do not “disrespect[ ]” or “disparage[ ]” those reasons. Post, at 12. Nor do we question California’s sovereign right to maintain an initiative process, or the right of initiative proponents to defend their initiatives in California courts, where Article III does not apply. But as the dissent acknowledges, see post, at 1, standing in federal court is a question of federal law, not state law. And no matter its reasons, the fact that a State thinks a private party should have standing to seek relief for a generalized grievance cannot override our settled law to the contrary.      The Article III requirement that a party invoking the jurisdiction of a federal court seek relief for a personal, particularized injury serves vital interests going to the role of the Judiciary in our system of separated powers. “Refusing to entertain generalized grievances ensures that . . . courts exercise power that is judicial in nature,” Lance, 549 U. S., at 441, and ensures that the Federal Judiciary respects “the proper—and properly limited—role of the courts in a democratic society,” DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 341 (2006) (internal quotation marks omitted). States cannot alter that role simply by issuing to private parties who otherwise lack standing a ticket to the federal courthouse. *  *  *      We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.      Because petitioners have not satisfied their burden to demonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal. The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction. It is so ordered. SUPREME COURT OF THE UNITED STATES _________________ No. 12–144 _________________ DENNIS HOLLINGSWORTH, et al., PETITIONERS v. KRISTIN M. PERRY et al. on writ of certiorari to the united states court of appeals for the ninth circuit [June 26, 2013]      Justice Kennedy, with whom Justice Thomas, Jus- tice Alito, and Justice Sotomayor join, dissenting.      The Court’s opinion is correct to state, and the Supreme Court of California was careful to acknowledge, that a proponent’s standing to defend an initiative in federal court is a question of federal law. Proper resolution of the justiciability question requires, in this case, a threshold determination of state law. The state-law question is how California defines and elaborates the status and authority of an initiative’s proponents who seek to intervene in court to defend the initiative after its adoption by the electorate. Those state-law issues have been addressed in a metic- ulous and unanimous opinion by the Supreme Court of California.      Under California law, a proponent has the authority to appear in court and assert the State’s interest in defending an enacted initiative when the public officials charged with that duty refuse to do so. The State deems such an appearance essential to the integrity of its initiative process. Yet the Court today concludes that this state-defined status and this state-conferred right fall short of meeting federal requirements because the proponents cannot point to a formal delegation of authority that tracks the requirements of the Restatement of Agency. But the State Supreme Court’s definition of proponents’ powers is binding on this Court. And that definition is fully sufficient to establish the standing and adversity that are requisites for justiciability under Article III of the United States Constitution.      In my view Article III does not require California, when deciding who may appear in court to defend an initiative on its behalf, to comply with the Restatement of Agency or with this Court’s view of how a State should make its laws or structure its government. The Court’s reasoning does not take into account the fundamental principles or the practical dynamics of the initiative system in California, which uses this mechanism to control and to bypass pub- lic officials—the same officials who would not defend the initiative, an injury the Court now leaves unremedied. The Court’s decision also has implications for the 26 other States that use an initiative or popular referendum system and which, like California, may choose to have initiative proponents stand in for the State when public officials decline to defend an initiative in litigation. See M. Waters, Initiative and Referendum Almanac 12 (2003). In my sub- mission, the Article III requirement for a justiciable case or controversy does not prevent proponents from having their day in court.      These are the premises for this respectful dissent. I      As the Court explains, the State of California sustained a concrete injury, sufficient to satisfy the requirements of Article III, when a United States District Court nullified a portion of its State Constitution. See ante, at 11 (citing Maine v. Taylor, 477 U. S. 131, 137 (1986) ). To determine whether justiciability continues in appellate proceedings after the State Executive acquiesced in the District Court’s adverse judgment, it is necessary to ascertain what persons, if any, have “authority under state law to represent the State’s interests” in federal court. Karcher v. May, 484 U. S. 72, 82 (1987) ; see also Arizonans for Official English v. Arizona, 520 U. S. 43, 65 (1997) .      As the Court notes, the California Elections Code does not on its face prescribe in express terms the duties or rights of proponents once the initiative becomes law. Ante, at 8. If that were the end of the matter, the Court’s analysis would have somewhat more force. But it is not the end of the matter. It is for California, not this Court, to determine whether and to what extent the Elections Code provisions are instructive and relevant in determining the authority of proponents to assert the State’s interest in postenactment judicial proceedings. And it is likewise not for this Court to say that a State must determine the substance and meaning of its laws by statute, or by judicial decision, or by a combination of the two. See Sweezy v. New Hampshire, 354 U. S. 234, 255 (1957) (plurality opinion); Dreyer v. Illinois, 187 U. S. 71, 84 (1902) . That, too, is for the State to decide.      This Court, in determining the substance of state law, is “bound by a state court’s construction of a state statute.” Wisconsin v. Mitchell, 508 U. S. 476, 483 (1993) . And the Supreme Court of California, in response to the certified question submitted to it in this case, has determined that State Elections Code provisions directed to initiative proponents do inform and instruct state law respecting the rights and status of proponents in postelection judicial proceedings. Here, in reliance on these statutes and the California Constitution, the State Supreme Court has held that proponents do have authority “under California law to appear and assert the state’s interest in the initiative’s validity and appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so.” Perry v. Brown, 52 Cal. 4th 1116, 1127, 265 P. 3d 1002, 1007 (2011).      The reasons the Supreme Court of California gave for its holding have special relevance in the context of determining whether proponents have the authority to seek a federal-court remedy for the State’s concrete, substantial, and continuing injury. As a class, official proponents are a small, identifiable group. See Cal. Elec. Code Ann. §9001(a) (West Cum. Supp. 2013). Because many of their decisions must be unanimous, see §§9001(b)(1), 9002(b), they are necessarily few in number. Their identities are public. §9001(b)(2). Their commitment is substantial. See §§9607–9609 (West Cum. Supp. 2013) (obtaining pe- tition signatures); §9001(c) (monetary fee); §§9065(d), 9067, 9069 (West 2003) (drafting arguments for official ballot pamphlet). They know and understand the purpose and operation of the proposed law, an important requisite in defending initiatives on complex matters such as taxation and insurance. Having gone to great lengths to convince voters to enact an initiative, they have a stake in the outcome and the necessary commitment to provide zealous advocacy.      Thus, in California, proponents play a “unique role . . . in the initiative process.” 52 Cal. 4th, at 1152, 265 P. 3d, at 1024. They “have a unique relationship to the voter-approved measure that makes them especially likely to be reliable and vigorous advocates for the measure and to be so viewed by those whose votes secured the initiative’s enactment into law.” Ibid.; see also id., at 1160, 265 P. 3d, at 1030 (because of “their special relationship to the ini- tiative measure,” proponents are “the most obvious and logical private individuals to ably and vigorously defend the validity of the challenged measure on behalf of the interests of the voters who adopted the initiative into law”). Proponents’ authority under state law is not a contrivance. It is not a fictional construct. It is the product of the California Constitution and the California Elections Code. There is no basis for this Court to set aside the California Supreme Court’s determination of state law.      The Supreme Court of California explained that its holding was consistent with recent decisions from other States. Id., at 1161–1165, 265 P. 3d, at 1031–1033. In Sportsmen for I–143 v. Fifteenth Jud. Ct., 2002 MT 18, 308 Mont. 189, 40 P. 3d 400, the Montana Supreme Court unanimously held that because initiative sponsors “may be in the best position to defend their interpretation” of the initiative and had a “direct, substantial, legally protectable interest in” the lawsuit challenging that interpretation, they were “entitled to intervene as a matter of right.” Id., at 194–195, 40 P. 3d, at 403. The Alaska Supreme Court reached a similar unanimous result in Alaskans for a Common Language Inc., v. Kritz, 3 P. 3d 906 (2000). It noted that, except in extraordinary cases, “a sponsor’s direct interest in legislation enacted through the initiative process and the concomitant need to avoid the appearance of [a conflict of interest] will ordinarily preclude courts from denying intervention as of right to a sponsoring group.” Id., at 914.      For these and other reasons, the Supreme Court of California held that the California Elections Code and Article II, §8, of the California Constitution afford proponents “the authority . . . to assert the state’s interest in the validity of the initiative” when State officials decline to do so. 52 Cal. 4th, at 1152, 265 P. 3d, at 1024. The court repeated this unanimous holding more than a half-dozen times and in no uncertain terms. See id., at 1126, 1127, 1139, 1149, 1151, 1152, 1165, 256 P. 3d, at 1006, 1007, 1015, 1022, 1024, 1025, 1033; see also id., at 1169–1170, 265 P. 3d, at 1036–1037 (Kennard, J., concurring). That should suffice to resolve the central issue on which the federal question turns. II A      The Court concludes that proponents lack sufficient ties to the state government. It notes that they “are not elected,” “answer to no one,” and lack “ ‘a fiduciary obligation’ ” to the State. Ante, at 15 (quoting 1 Restatement (Third) of Agency §1.01, Comments e, f (2005)). But what the Court deems deficiencies in the proponents’ connection to the State government, the State Supreme Court saw as essential qualifications to defend the initiative system. The very object of the initiative system is to establish a lawmaking process that does not depend upon state officials. In California, the popular initiative is necessary to implement “the theory that all power of government ultimately resides in the people.” 52 Cal. 4th, at 1140, 265 P. 3d, at 1016 (internal quotation marks omitted). The right to adopt initiatives has been described by the California courts as “one of the most precious rights of [the State’s] democratic process.” Ibid. (internal quotation marks omitted). That historic role for the initiative system “grew out of dissatisfaction with the then governing public officials and a widespread belief that the people had lost control of the political process.” Ibid. The initiative’s “primary purpose,” then, “was to afford the people the ability to propose and to adopt constitutional amendments or statutory provisions that their elected public officials had refused or declined to adopt.” Ibid.      The California Supreme Court has determined that this purpose is undermined if the very officials the initiative process seeks to circumvent are the only parties who can defend an enacted initiative when it is challenged in a legal proceeding. See id., at 1160, 265 P. 3d, at 1030; cf. Alaskans for a Common Language, supra, at 914 (noting that proponents must be allowed to defend an enacted initiative in order to avoid the perception, correct or not, “that the interests of [the proponents] were not being defended vigorously by the executive branch”). Giving the Governor and attorney general this de facto veto will erode one of the cornerstones of the State’s governmental structure. See 52 Cal. 4th, at 1126–1128, 265 P. 3d, at 1006–1007. And in light of the frequency with which initiatives’ opponents resort to litigation, the impact of that veto could be substantial. K. Miller, Direct Democracy and the Courts 106 (2009) (185 of the 455 initiatives approved in Arizona, California, Colorado, Oregon, and Washington between 1900 and 2008 were challenged in court). As a consequence, California finds it necessary to vest the re- sponsibility and right to defend a voter-approved initiative in the initiative’s proponents when the State Executive declines to do so.      Yet today the Court demands that the State follow the Restatement of Agency. See ante, at 15–16. There are reasons, however, why California might conclude that a conventional agency relationship is inconsistent with the history, design, and purpose of the initiative process. The State may not wish to associate itself with proponents or their views outside of the “extremely narrow and limited” context of this litigation, 52 Cal. 4th, at 1159, 265 P. 3d, at 1029, or to bear the cost of proponents’ legal fees. The State may also wish to avoid the odd conflict of having a formal agent of the State (the initiative’s proponent) arguing in favor of a law’s validity while state officials (e.g., the attorney general) contend in the same proceeding that it should be found invalid.      Furthermore, it is not clear who the principal in an agency relationship would be. It would make little sense if it were the Governor or attorney general, for that would frustrate the initiative system’s purpose of circumventing elected officials who fail or refuse to effect the public will. Id., at 1139–1140, 265 P. 3d, at 1016. If there is to be a principal, then, it must be the people of California, as the ultimate sovereign in the State. See ibid., 265 P. 3d, at 1015–1016 (quoting Cal. Const., Art. II, §1) (“ ‘All political power is inherent in the people’ ”). But the Restatement may offer no workable example of an agent representing a principal composed of nearly 40 million residents of a State. Cf. 1 Restatement (Second) of Agency, p. 2, Scope Note (1957) (noting that the Restatement “does not state the special rules applicable to public officers”); 1 Restatement (First) of Agency, p. 4, Scope Note (1933) (same).      And if the Court’s concern is that the proponents are unaccountable, that fear is neither well founded nor suf- ficient to overcome the contrary judgment of the State Supreme Court. It must be remembered that both elected officials and initiative proponents receive their authority to speak for the State of California directly from the people. The Court apparently believes that elected officials are acceptable “agents” of the State, see ante, at 11–12, but they are no more subject to ongoing supervision of their principal—i.e., the people of the State—than are initiative proponents. At most, a Governor or attorney general can be recalled or voted out of office in a subsequent election, but proponents, too, can have their authority terminated or their initiative overridden by a subsequent ballot measure. Finally, proponents and their attor- neys, like all other litigants and counsel who appear before a federal court, are subject to duties of candor, deco- rum, and respect for the tribunal and co-parties alike, all of which guard against the possibility that initiative proponents will somehow fall short of the appropriate stan- dards for federal litigation. B      Contrary to the Court’s suggestion, this Court’s precedents do not indicate that a formal agency relationship is necessary. In Karcher v. May, 484 U. S. 72 (1987) , the Speaker of the New Jersey Assembly (Karcher) and President of the New Jersey Senate (Orechio) intervened in support of a school moment-of-silence law that the State’s Governor and attorney general declined to defend in court. In considering the question of standing, the Court looked to New Jersey law to determine whether Karcher and Orechio “had authority under state law to represent the State’s interest in both the District Court and Court of Appeals.” Id., at 82. The Court concluded that they did. Because the “New Jersey Supreme Court ha[d] granted applications of the Speaker of the General Assembly and the President of the Senate to intervene as parties-respondent on behalf of the legislature in defense of a legislative enactment,” the Karcher Court held that standing had been proper in the District Court and Court of Appeals. Ibid. By the time the case arrived in this Court, Karcher and Orechio had lost their presiding legislative offices, without which they lacked the authority to represent the State under New Jersey law. This, the Court held, deprived them of standing. Id., at 81. Here, by contrast, proponents’ authority under California law is not contingent on officeholder status, so their standing is unaffected by the fact that they “hold no office” in California’s Government. Ante, at 12.      Arizonans for Official English v. Arizona, 520 U. S. 43 (1997) , is consistent with the premises of this dissent, not with the rationale of the Court’s opinion. See ante, at 13–14. There, the Court noted its serious doubts as to the aspiring defenders’ standing because there was “no Ari- zona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.” 520 U. S., at 65. The Court did use the word “agents”; but, read in context, it is evident that the Court’s intention was not to demand a formal agency relationship in compliance with the Restatement. Rather, the Court used the term as shorthand for a party whom “state law authorizes” to “represent the State’s interests” in court. Ibid.      Both the Court of Appeals and the Supreme Court of California were mindful of these precedents and sought to comply with them. The state court, noting the importance of Arizonans for Official English, expressed its understanding that “the high court’s doubts as to the official initiative proponents’ standing in that case were based, at least in substantial part, on the fact that the court was not aware of any ‘Arizona law appointing initiative sponsors as agents of the people of Arizona to defend . . . the constitutionality of initiatives made law of the State.’ ” 52 Cal. 4th, at 1136–1137, 265 P. 3d, at 1013–1014 (quoting 520 U. S., at 65). Based on this passage, it concluded that “nothing in [Arizonans for Official English] indicates that if a state’s law does authorize the official proponents of an initiative to assert the state’s interest in the validity of a challenged state initiative when the public officials who ordinarily assert that interest have declined to do so, the proponents would not have standing to assert the state’s interest in the initiative’s validity in a federal lawsuit.” Id., at 1137, 265 P. 3d, at 1014.      The Court of Appeals, too, was mindful of this requirement. Perry v. Brown, 671 F. 3d 1052, 1072–1073 (CA9 2012). Although that panel divided on the proper resolution of the merits of this case, it was unanimous in concluding that proponents satisfy the requirements of Article III. Compare id., at 1070–1075 (majority opinion), with id., at 1096–1097 (N. R. Smith, J., concurring in part and dissenting in part). Its central premise, ignored by the Court today, was that the “State’s highest court [had] held that California law provides precisely what the Arizonans Court found lacking in Arizona law: it confers on the official proponents of an initiative the authority to assert the State’s interests in defending the constitutionality of that initiative, where state officials who would ordinarily assume that responsibility choose not to do so.” Id., at 1072 (majority opinion). The Court of Appeals and the State Supreme Court did not ignore Arizonans for Official English; they were faithful to it. C      The Court’s approach in this case is also in tension with other cases in which the Court has permitted individuals to assert claims on behalf of the government or others. For instance, Federal Rule of Criminal Procedure 42(a)(2) allows a court to appoint a private attorney to investigate and prosecute potential instances of criminal contempt. Under the Rule, this special prosecutor is not the agent of the appointing judge; indeed, the prosecutor’s “determination of which persons should be targets of the investigation, what methods of investigation should be used, what information will be sought as evidence,” whom to charge, and other “decisions . . . critical to the conduct of a prosecution, are all made outside the supervision of the court.” Young v. United States ex rel. Vuitton et Fils S. A., 481 U. S. 787, 807 (1987) . Also, just as proponents have been authorized to represent the State of California, “ ‘[p]rivate attorneys appointed to prosecute a criminal contempt action represent the United States,’ ” United States v. Providence Journal Co., 485 U. S. 693, 700 (1988) . They are “appointed solely to pursue the public interest in vindication of the court’s authority,” Young, supra, at 804, an interest that—like California’s interest in the validity of its laws—is “unique to the sovereign,” Providence Journal Co., supra, at 700. And, although the Court dismisses the proponents’ standing claim because initiative proponents “are not elected” and “decide for themselves, with no review, what arguments to make and how to make them” in defense of the enacted initiative, ante, at 15, those same charges could be leveled with equal if not greater force at the special prosecutors just discussed. See Young, supra, at 807.      Similar questions might also arise regarding qui tam actions, see, e.g., Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765 –778 (2000); suits involving “next friends” litigating on behalf of a real party in interest, see, e.g., Whitmore v. Arkansas, 495 U. S. 149 –166 (1990); or shareholder-derivative suits, see, e.g., Gollust v. Mendell, 501 U. S. 115 –126 (1991). There is no more of an agency relationship in any of these settings than in the instant case, yet the Court has nonetheless permitted a party to assert the interests of another. That qui tam actions and “next friend” litigation may have a longer historical pedigree than the initiative process, see ante, at 12–13, is no basis for finding Article III’s standing requirement met in those cases but lacking here. In short, the Court today unsettles its longtime understanding of the basis for jurisdiction in representative-party litigation, leaving the law unclear and the District Court’s judgment, and its accompanying state- wide injunction, effectively immune from appellate review. III      There is much irony in the Court’s approach to justiciability in this case. A prime purpose of justiciability is to ensure vigorous advocacy, yet the Court insists upon litigation conducted by state officials whose preference is to lose the case. The doctrine is meant to ensure that courts are responsible and constrained in their power, but the Court’s opinion today means that a single district court can make a decision with far-reaching effects that cannot be reviewed. And rather than honor the principle that justiciability exists to allow disputes of public policy to be resolved by the political process rather than the courts, see, e.g., Allen v. Wright, 468 U. S. 737 –752 (1984), here the Court refuses to allow a State’s authorized representatives to defend the outcome of a democratic election.      The Court’s opinion disrespects and disparages both the political process in California and the well-stated opinion of the California Supreme Court in this case. The California Supreme Court, not this Court, expresses concern for vigorous representation; the California Supreme Court, not this Court, recognizes the necessity to avoid conflicts of interest; the California Supreme Court, not this Court, comprehends the real interest at stake in this litigation and identifies the most proper party to defend that interest. The California Supreme Court’s opinion reflects a better understanding of the dynamics and principles of Article III than does this Court’s opinion.      Of course, the Court must be cautious before entering a realm of controversy where the legal community and society at large are still formulating ideas and approaches to a most difficult subject. But it is shortsighted to misconstrue principles of justiciability to avoid that subject. As the California Supreme Court recognized, “the question before us involves a fundamental procedural issue that may arise with respect to any initiative measure, without regard to its subject matter.” 52 Cal. 4th, at 1124, 265 P. 3d, at 1005 (emphasis in original). If a federal court must rule on a constitutional point that either confirms or rejects the will of the people expressed in an initiative, that is when it is most necessary, not least necessary, to insist on rules that ensure the most committed and vigorous adversary arguments to inform the rulings of the courts. *  *  *      In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century. “Through the structure of its government, and the character of those who exercise government authority, a State defines itself as sovereign.” Gregory v. Ashcroft, 501 U. S. 452, 460 (1991) . In California and the 26 other States that permit initiatives and popular referendums, the people have exercised their own inherent sovereign right to govern themselves. The Court today frustrates that choice by nullifying, for failure to comply with the Restatement of Agency, a State Supreme Court decision holding that state law authorizes an enacted initiative’s proponents to defend the law if and when the State’s usual legal advocates decline to do so. The Court’s opinion fails to abide by precedent and misapplies basic principles of justiciability. Those errors necessitate this respectful dissent.

The Supreme Court dismissed the case, finding that the petitioners did not have legal standing to bring the case to federal court. The Court did not rule on the constitutionality of same-sex marriage, leaving the lower court's decision in place and allowing same-sex marriage in California.

Powers of Congress

Gibbons v. Ogden

https://supreme.justia.com/cases/federal/us/22/1/

U.S. Supreme Court Gibbons v. Ogden, 22 U.S. 9 Wheat. 1 1 (1824) Gibbons v. Ogden 22 U.S. (9 Wheat.) 1 APPEAL FROM THE COURT FOR THE TRIAL OF IMPEACHMENTS AND CORRECTION OF ERRORS OF THE STATE OF NEW YORK Syllabus The laws of New York granting to Robert R. Livingston and Robert Fulton the exclusive right of navigating the waters of that State with steamboats are in collision with the acts of Congress regulating the coasting trade, which, being made in pursuance of the Constitution, are supreme, and the State laws must yield to that supremacy, even though enacted in pursuance of powers acknowledged to remain in the States. The power of regulating commerce extends to the regulation of navigation. The power to regulate commerce extends to every species of commercial intercourse between the United States and foreign nations, and among the several States. It does not stop at the external boundary of a State. But it does not extend to a commerce which is completely internal. The power to regulate commerce is general, and has no limitations but such as are prescribed in the Constitution itself. The power to regulate commerce, so far as it extends, is exclusively bested in Congress, and no part of it can be exercised by a State. A license under the acts of Congress for regulating the coasting trade gives a permission to carry on that trade. State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress. The license is not merely intended to confer the national character. The power of regulating commerce extends to navigation carried on by vessels exclusively employed in transporting passengers. The power of regulating commerce extends to vessels propelled by steam or fire as well as to those navigated by the instrumentality of wind and sails. Aaron Ogden filed his bill in the Court of Chancery of that State, against Thomas Gibbons, setting forth the several acts of the Legislature thereof, enacted for the purpose of securing to Robert R. Livingston and Robert Fulton the Page 22 U. S. 2 exclusive navigation of all the waters within the jurisdiction of that State, with boats moved by fire or steam, for a term of years which has not yet expired, and authorizing the Chancellor to award an injunction restraining any person whatever from navigating those waters with boats of that description. The bill stated an assignment from Livingston and Fulton to one John R. Livingston, and from him to the complainant, Ogden, of the right to navigate the waters between Elizabethtown, and other places in New Jersey, and the City of New York, and that Gibbons, the defendant below, was in possession of two steamboats, called the Stoudinger and the Bellona, which were actually employed in running between New York and Elizabethtown, in violation of the exclusive privilege conferred on the complainant, and praying an injunction to restrain the said Gibbons from using the said boats, or any other propelled by fire or steam, in navigating the waters within the territory of New York. The injunction having been awarded, the answer of Gibbons was filed, in which he stated that the boats employed by him were duly enrolled and licensed to be employed in carrying on the coasting trade under the Act of Congress, passed the 18th of February, 1793, c. 3. entitled, "An act for enrolling and licensing ships and vessels to be employed in the coasting trade and fisheries, and for regulating the same." And the defendant insisted on his right, in virtue of such licenses, to navigate the waters between Elizabethtown and the City of New York, the said acts of the Legislature of the Page 22 U. S. 3 State of New York to the contrary notwithstanding. At the hearing, the Chancellor perpetuated the injunction, being of the opinion that the said acts were not repugnant to the Constitution and laws of the United States, and were valid. This decree was affirmed in the Court for the Trial of Impeachments and Correction of Errors, which is the highest Court of law and equity in the State, before which the cause could be carried, and it was thereupon brought to this Court by appeal. Page 22 U. S. 186 Mr. Chief Justice MARSHALL delivered the opinion of the Court, and, after stating the case, proceeded as follows: The appellant contends that this decree is erroneous because the laws which purport to give the exclusive privilege it sustains are repugnant to the Constitution and laws of the United States. They are said to be repugnant: 1st. To that clause in the Constitution which authorizes Congress to regulate commerce. 2d. To that which authorizes Congress to promote the progress of science and useful arts. The State of New York maintains the Constitutionality of these laws, and their Legislature, their Council of Revision, and their Judges, have repeatedly concurred in this opinion. It is supported by great names -- by names which have all the titles to consideration that virtue, intelligence, and office can bestow. No tribunal can approach the decision of this question without feeling a just and real respect for that opinion which is sustained by such authority, but it is the province of this Court, while it respects, not to bow to it implicitly, and the Judges must exercise, in the examination of the subject, that understanding which Providence has bestowed upon them, with that independence which the people of the United Page 22 U. S. 187 States expect from this department of the government. As preliminary to the very able discussions of the Constitution which we have heard from the bar, and as having some influence on its construction, reference has been made to the political situation of these States anterior to its formation. It has been said that they were sovereign, were completely independent, and were connected with each other only by a league. This is true. But, when these allied sovereigns converted their league into a government, when they converted their Congress of Ambassadors, deputed to deliberate on their common concerns and to recommend measures of general utility, into a Legislature, empowered to enact laws on the most interesting subjects, the whole character in which the States appear underwent a change, the extent of which must be determined by a fair consideration of the instrument by which that change was effected. This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the Constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants expressly the means for carrying all others into execution, Congress is authorized "to make all laws which shall be necessary and proper" for the purpose. But this limitation on the means which may be used is not extended to the powers which are conferred, nor is there one sentence in Page 22 U. S. 188 the Constitution which has been pointed out by the gentlemen of the bar or which we have been able to discern that prescribes this rule. We do not, therefore, think ourselves justified in adopting it. What do gentlemen mean by a "strict construction?" If they contend only against that enlarged construction, which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support or some theory not to be found in the Constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for that narrow construction which would cripple the government and render it unequal to the object for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the Constitution is to be expounded. As men whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said. If, from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well settled rule that the objects Page 22 U. S. 189 for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction. We know of no reason for excluding this rule from the present case. The grant does not convey power which might be beneficial to the grantor if retained by himself, or which can enure solely to the benefit of the grantee, but is an investment of power for the general advantage, in the hands of agents selected for that purpose, which power can never be exercised by the people themselves, but must be placed in the hands of agents or lie dormant. We know of no rule for construing the extent of such powers other than is given by the language of the instrument which confers them, taken in connexion with the purposes for which they were conferred. The words are, "Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." The subject to be regulated is commerce, and our Constitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial Page 22 U. S. 190 intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse. The mind can scarcely conceive a system for regulating commerce between nations which shall exclude all laws concerning navigation, which shall be silent on the admission of the vessels of the one nation into the ports of the other, and be confined to prescribing rules for the conduct of individuals in the actual employment of buying and selling or of barter. If commerce does not include navigation, the government of the Union has no direct power over that subject, and can make no law prescribing what shall constitute American vessels or requiring that they shall be navigated by American seamen. Yet this power has been exercised from the commencement of the government, has been exercised with the consent of all, and has been understood by all to be a commercial regulation. All America understands, and has uniformly understood, the word "commerce" to comprehend navigation. It was so understood, and must have been so understood, when the Constitution was framed. The power over commerce, including navigation, was one of the primary objects for which the people of America adopted their government, and must have been contemplated in forming it. The convention must have used the word in that sense, because all have understood it in that sense, and the attempt to restrict it comes too late. If the opinion that "commerce," as the word is used in the Constitution, comprehends navigation Page 22 U. S. 191 also, requires any additional confirmation, that additional confirmation is, we think, furnished by the words of the instrument itself. It is a rule of construction acknowledged by all that the exceptions from a power mark its extent, for it would be absurd, as well as useless, to except from a granted power that which was not granted -- that which the words of the grant could not comprehend. If, then, there are in the Constitution plain exceptions from the power over navigation, plain inhibitions to the exercise of that power in a particular way, it is a proof that those who made these exceptions, and prescribed these inhibitions, understood the power to which they applied as being granted. The 9th section of the 1st article declares that "no preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another." This clause cannot be understood as applicable to those laws only which are passed for the purposes of revenue, because it is expressly applied to commercial regulations, and the most obvious preference which can be given to one port over another in regulating commerce relates to navigation. But the subsequent part of the sentence is still more explicit. It is, "nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties, in another." These words have a direct reference to navigation. The universally acknowledged power of the government to impose embargoes must also be considered as showing that all America is united Page 22 U. S. 192 in that construction which comprehends navigation in the word commerce. Gentlemen have said in argument that this is a branch of the war-making power, and that an embargo is an instrument of war, not a regulation of trade. That it may be, and often is, used as an instrument of war cannot be denied. An embargo may be imposed for the purpose of facilitating the equipment or manning of a fleet, or for the purpose of concealing the progress of an expedition preparing to sail from a particular port. In these, and in similar cases, it is a military instrument, and partakes of the nature of war. But all embargoes are not of this description. They are sometimes resorted to without a view to war, and with a single view to commerce. In such case, an embargo is no more a war measure than a merchantman is a ship of war because both are vessels which navigate the ocean with sails and seamen. When Congress imposed that embargo which, for a time, engaged the attention of every man in the United States, the avowed object of the law was the protection of commerce, and the avoiding of war. By its friends and its enemies, it was treated as a commercial, not as a war, measure. The persevering earnestness and zeal with which it was opposed in a part of our country which supposed its interests to be vitally affected by the act, cannot be forgotten. A want of acuteness in discovering objections to a measure to which they felt the most deep-rooted hostility will not be imputed to those who were arrayed in opposition Page 22 U. S. 193 to this. Yet they never suspected that navigation was no branch of trade, and was therefore not comprehended in the power to regulate commerce. They did, indeed, contest the constitutionality of the act, but, on a principle which admits the construction for which the appellant contends. They denied that the particular law in question was made in pursuance of the Constitution not because the power could not act directly on vessels, but because a perpetual embargo was the annihilation, and not the regulation, of commerce. In terms, they admitted the applicability of the words used in the Constitution to vessels, and that in a case which produced a degree and an extent of excitement calculated to draw forth every principle on which legitimate resistance could be sustained. No example could more strongly illustrate the universal understanding of the American people on this subject. The word used in the Constitution, then, comprehends, and has been always understood to comprehend, navigation within its meaning, and a power to regulate navigation is as expressly granted as if that term had been added to the word "commerce." To what commerce does this power extend? The Constitution informs us, to commerce "with foreign nations, and among the several States, and with the Indian tribes." It has, we believe, been universally admitted that these words comprehend every species of commercial intercourse between the United States and foreign nations. No sort of trade can be Page 22 U. S. 194 carried on between this country and any other to which this power does not extend. It has been truly said that "commerce," as the word is used in the Constitution, is a unit every part of which is indicated by the term. If this be the admitted meaning of the word in its application to foreign nations, it must carry the same meaning throughout the sentence, and remain a unit, unless there be some plain intelligible cause which alters it. The subject to which the power is next applied is to commerce "among the several States." The word "among" means intermingled with. A thing which is among others is intermingled with them. Commerce among the States cannot stop at the external boundary line of each State, but may be introduced into the interior. It is not intended to say that these words comprehend that commerce which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States. Such a power would be inconvenient, and is certainly unnecessary. Comprehensive as the word "among" is, it may very properly be restricted to that commerce which concerns more States than one. The phrase is not one which would probably have been selected to indicate the completely interior traffic of a State, because it is not an apt phrase for that purpose, and the enumeration of the particular classes of commerce to which the power was to be extended would not have been made had the intention Page 22 U. S. 195 been to extend the power to every description. The enumeration presupposes something not enumerated, and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a State. The genius and character of the whole government seem to be that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally, but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere for the purpose of executing some of the general powers of the government. The completely internal commerce of a State, then, may be considered as reserved for the State itself. But, in regulating commerce with foreign nations, the power of Congress does not stop at the jurisdictional lines of the several States. It would be a very useless power if it could not pass those lines. The commerce of the United States with foreign nations is that of the whole United States. Every district has a right to participate in it. The deep streams which penetrate our country in every direction pass through the interior of almost every State in the Union, and furnish the means of exercising this right. If Congress has the power to regulate it, that power must be exercised whenever the subject exists. If it exists within the States, if a foreign voyage may commence or terminate at a port within a State, then the power of Congress may be exercised within a State. This principle is, if possible, still more clear, when Page 22 U. S. 196 applied to commerce "among the several States." They either join each other, in which case they are separated by a mathematical line, or they are remote from each other, in which case other States lie between them. What is commerce "among" them, and how is it to be conducted? Can a trading expedition between two adjoining States, commence and terminate outside of each? And if the trading intercourse be between two States remote from each other, must it not commence in one, terminate in the other, and probably pass through a third? Commerce among the States must, of necessity, be commerce with the States. In the regulation of trade with the Indian tribes, the action of the law, especially when the Constitution was made, was chiefly within a State. The power of Congress, then, whatever it may be, must be exercised within the territorial jurisdiction of the several States. The sense of the nation on this subject is unequivocally manifested by the provisions made in the laws for transporting goods by land between Baltimore and Providence, between New York and Philadelphia, and between Philadelphia and Baltimore. We are now arrived at the inquiry -- What is this power? It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. These are expressed in plain terms, and do not affect the Page 22 U. S. 197 questions which arise in this case, or which have been discussed at the bar. If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its Constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States. The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often they solely, in all representative governments. The power of Congress, then, comprehends navigation, within the limits of every State in the Union, so far as that navigation may be in any manner connected with "commerce with foreign nations, or among the several States, or with the Indian tribes." It may, of consequence, pass the jurisdictional line of New York and act upon the very waters to which the prohibition now under consideration applies. But it has been urged with great earnestness that, although the power of Congress to regulate commerce with foreign nations and among the several States be coextensive with the subject itself, and have no other limits than are prescribed in the Constitution, yet the States may severally Page 22 U. S. 198 exercise the same power, within their respective jurisdictions. In support of this argument, it is said that they possessed it as an inseparable attribute of sovereignty, before the formation of the Constitution, and still retain it except so far as they have surrendered it by that instrument; that this principle results from the nature of the government, and is secured by the tenth amendment; that an affirmative grant of power is not exclusive unless in its own nature it be such that the continued exercise of it by the former possessor is inconsistent with the grant, and that this is not of that description. The appellant, conceding these postulates except the last, contends that full power to regulate a particular subject implies the whole power, and leaves no residuum; that a grant of the whole is incompatible with the existence of a right in another to any part of it. Both parties have appealed to the Constitution, to legislative acts, and judicial decisions, and have drawn arguments from all these sources to support and illustrate the propositions they respectively maintain. The grant of the power to lay and collect taxes is, like the power to regulate commerce, made in general terms, and has never been understood to interfere with the exercise of the same power by the State, and hence has been drawn an argument which has been applied to the question under consideration. But the two grants are not, it is conceived, similar in their terms or their nature. Although many of the powers formerly Page 22 U. S. 199 exercised by the States are transferred to the government of the Union, yet the State governments remain, and constitute a most important part of our system. The power of taxation is indispensable to their existence, and is a power which, in its own nature, is capable of residing in, and being exercised by, different authorities at the same time. We are accustomed to see it placed, for different purposes, in different hands. Taxation is the simple operation of taking small portions from a perpetually accumulating mass, susceptible of almost infinite division, and a power in one to take what is necessary for certain purposes is not, in its nature, incompatible with a power in another to take what is necessary for other purposes. Congress is authorized to lay and collect taxes, &c. to pay the debts and provide for the common defence and general welfare of the United States. This does not interfere with the power of the States to tax for the support of their own governments, nor is the exercise of that power by the States an exercise of any portion of the power that is granted to the United States. In imposing taxes for State purposes, they are not doing what Congress is empowered to do. Congress is not empowered to tax for those purposes which are within the exclusive province of the States. When, then, each government exercises the power of taxation, neither is exercising the power of the other. But, when a State proceeds to regulate commerce with foreign nations, or among the several States, it is exercising the very power that is granted to Congress, Page 22 U. S. 200 and is doing the very thing which Congress is authorized to do. There is no analogy, then, between the power of taxation and the power of regulating commerce. In discussing the question whether this power is still in the States, in the case under consideration, we may dismiss from it the inquiry whether it is surrendered by the mere grant to Congress, or is retained until Congress shall exercise the power. We may dismiss that inquiry because it has been exercised, and the regulations which Congress deemed it proper to make are now in full operation. The sole question is can a State regulate commerce with foreign nations and among the States while Congress is regulating it? The counsel for the respondent answer this question in the affirmative, and rely very much on the restrictions in the 10th section as supporting their opinion. They say very truly that limitations of a power furnish a strong argument in favour of the existence of that power, and that the section which prohibits the States from laying duties on imports or exports proves that this power might have been exercised had it not been expressly forbidden, and consequently that any other commercial regulation, not expressly forbidden, to which the original power of the State was competent may still be made. That this restriction shows the opinion of the Convention that a State might impose duties on exports and imports, if not expressly forbidden, will be conceded, but that it follows as a consequence Page 22 U. S. 201 from this concession that a State may regulate commerce with foreign nations and among the States cannot be admitted. We must first determine whether the act of laying "duties or imposts on imports or exports" is considered in the Constitution as a branch of the taxing power, or of the power to regulate commerce. We think it very clear that it is considered as a branch of the taxing power. It is so treated in the first clause of the 8th section: "Congress shall have power to lay and collect taxes, duties, imposts, and excises;" and, before commerce is mentioned, the rule by which the exercise of this power must be governed is declared. It is that all duties, imposts, and excises shall be uniform. In a separate clause of the enumeration, the power to regulate commerce is given, as being entirely distinct from the right to levy taxes and imposts and as being a new power, not before conferred. The Constitution, then, considers these powers as substantive, and distinct from each other, and so places them in the enumeration it contains. The power of imposing duties on imports is classed with the power to levy taxes, and that seems to be its natural place. But the power to levy taxes could never be considered as abridging the right of the States on that subject, and they might, consequently, have exercised it by levying duties on imports or exports, had the Constitution contained no prohibition on this subject. This prohibition, then, is an exception from the acknowledged power of the States Page 22 U. S. 202 to levy taxes, not from the questionable power to regulate commerce. "A duty of tonnage" is as much a tax as a duty on imports or exports, and the reason which induced the prohibition of those taxes extends to this also. This tax may be imposed by a State, with the consent of Congress, and it may be admitted that Congress cannot give a right to a State in virtue of its own powers. But a duty of tonnage being part of the power of imposing taxes, its prohibition may certainly be made to depend on Congress, without affording any implication respecting a power to regulate commerce. It is true that duties may often be, and in fact often are, imposed on tonnage with a view to the regulation of commerce, but they may be also imposed with a view to revenue, and it was therefore a prudent precaution to prohibit the States from exercising this power. The idea that the same measure might, according to circumstances, be arranged with different classes of power was no novelty to the framers of our Constitution. Those illustrious statesmen and patriots had been, many of them, deeply engaged in the discussions which preceded the war of our revolution, and all of them were well read in those discussions. The right to regulate commerce, even by the imposition of duties, was not controverted, but the right to impose a duty for the purpose of revenue produced a war as important, perhaps, in its consequences to the human race as any the world has ever witnessed. These restrictions, then, are on the taxing power, Page 22 U. S. 203 not on that to regulate commerce, and presuppose the existence of that which they restrain, not of that which they do not purport to restrain. But the inspection laws are said to be regulations of commerce, and are certainly recognised in the Constitution as being passed in the exercise of a power remaining with the States. That inspection laws may have a remote and considerable influence on commerce will not be denied, but that a power to regulate commerce is the source from which the right to pass them is derived cannot be admitted. The object of inspection laws is to improve the quality of articles produced by the labour of a country, to fit them for exportation, or, it may be, for domestic use. They act upon the subject before it becomes an article of foreign commerce or of commerce among the States, and prepare it for that purpose. They form a portion of that immense mass of legislation which embraces everything within the territory of a State not surrendered to the General Government; all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c., are component parts of this mass. No direct general power over these objects is granted to Congress, and, consequently, they remain subject to State legislation. If the legislative power of the Union can reach them, it must be for national purposes, it must be where the Page 22 U. S. 204 power is expressly given for a special purpose or is clearly incidental to some power which is expressly given. It is obvious that the government of the Union, in the exercise of its express powers -- that, for example, of regulating commerce with foreign nations and among the States -- may use means that may also be employed by a State in the exercise of its acknowledged powers -- that, for example, of regulating commerce within the State. If Congress license vessels to sail from one port to another in the same State, the act is supposed to be necessarily incidental to the power expressly granted to Congress, and implies no claim of a direct power to regulate the purely internal commerce of a State or to act directly on its system of police. So, if a State, in passing laws on subjects acknowledged to be within its control, and with a view to those subjects, shall adopt a measure of the same character with one which Congress may adopt, it does not derive its authority from the particular power which has been granted, but from some other, which remains with the State and may be executed by the same means. All experience shows that the same measures, or measures scarcely distinguishable from each other, may flow from distinct powers, but this does not prove that the powers themselves are identical. Although the means used in their execution may sometimes approach each other so nearly as to be confounded, there are other situations in which they are sufficiently distinct to establish their individuality. In our complex system, presenting the rare and difficult scheme of one General Government whose Page 22 U. S. 205 action extends over the whole but which possesses only certain enumerated powers, and of numerous State governments which retain and exercise all powers not delegated to the Union, contests respecting power must arise. Were it even otherwise, the measures taken by the respective governments to execute their acknowledged powers would often be of the same description, and might sometimes interfere. This, however, does not prove that the one is exercising, or has a right to exercise, the powers of the other. The acts of Congress passed in 1796 and 1799, 2 U.S.L. 345, 3 U.S.L. 126, empowering and directing the officers of the General Government to conform to and assist in the execution of the quarantine and health laws of a State proceed, it is said, upon the idea that these laws are constitutional. It is undoubtedly true that they do proceed upon that idea, and the constitutionality of such laws has never, so far as we are informed, been denied. But they do not imply an acknowledgment that a State may rightfully regulate commerce with foreign nations or among the States, for they do not imply that such laws are an exercise of that power, or enacted with a view to it. On the contrary, they are treated as quarantine and health laws, are so denominated in the acts of Congress, and are considered as flowing from the acknowledged power of a State to provide for the health of its citizens. But as it was apparent that some of the provisions made for this purpose and in virtue of this power might Page 22 U. S. 206 interfere with and be affected by the laws of the United States made for the regulation of commerce, Congress, in that spirit of harmony and conciliation which ought always to characterize the conduct of governments standing in the relation which that of the Union and those of the States bear to each other, has directed its officers to aid in the execution of these laws, and has, in some measure, adapted its own legislation to this object by making provisions in aid of those of the States. But, in making these provisions, the opinion is unequivocally manifested that Congress may control the State laws so far as it may be necessary to control them for the regulation of commerce. The act passed in 1803, 3 U.S.L. 529, prohibiting the importation of slaves into any State which shall itself prohibit their importation, implies, it is said, an admission that the States possessed the power to exclude or admit them, from which it is inferred that they possess the same power with respect to other articles. If this inference were correct, if this power was exercised not under any particular clause in the Constitution, but in virtue of a general right over the subject of commerce, to exist as long as the Constitution itself, it might now be exercised. Any State might now import African slaves into its own territory. But it is obvious that the power of the States over this subject, previous to the year 1808, constitutes an exception to the power of Page 22 U. S. 207 Congress to regulate commerce, and the exception is expressed in such words, as to manifest clearly the intention to continue the preexisting right of the States to admit or exclude, for a limited period. The words are "the migration or importation of such persons as any of the States, now existing, shall think proper to admit shall not be prohibited by the Congress prior to the year 1808." The whole object of the exception is to preserve the power to those States which might be disposed to exercise it, and its language seems to the Court to convey this idea unequivocally. The possession of this particular power, then, during the time limited in the Constitution, cannot be admitted to prove the possession of any other similar power. It has been said that the act of August 7, 1789, acknowledges a concurrent power in the States to regulate the conduct of pilots, and hence is inferred an admission of their concurrent right with Congress to regulate commerce with foreign nations and amongst the States. But this inference is not, we think, justified by the fact. Although Congress cannot enable a State to legislate, Congress may adopt the provisions of a State on any subject. When the government of the Union was brought into existence, it found a system for the regulation of its pilots in full force in every State. The act which has been mentioned adopts this system, and gives it the same validity as if its provisions had been specially made by Congress. But the act, it may be said, is prospective also, and the adoption of laws to be made Page 22 U. S. 208 in future presupposes the right in the maker to legislate on the subject. The act unquestionably manifests an intention to leave this subject entirely to the States until Congress should think proper to interpose, but the very enactment of such a law indicates an opinion that it was necessary, that the existing system would not be applicable to the new state of things unless expressly applied to it by Congress. But this section is confined to pilots within the "bays, inlets, rivers, harbours, and ports of the United States," which are, of course, in whole or in part, also within the limits of some particular state. The acknowledged power of a State to regulate its police, its domestic trade, and to govern its own citizens may enable it to legislate on this subject to a considerable extent, and the adoption of its system by Congress, and the application of it to the whole subject of commerce, does not seem to the Court to imply a right in the States so to apply it of their own authority. But the adoption of the State system being temporary, being only "until further legislative provision shall be made by Congress," shows conclusively an opinion that Congress could control the whole subject, and might adopt the system of the States or provide one of its own. A State, it is said, or even a private citizen, may construct light houses. But gentlemen must be aware that if this proves a power in a State to regulate commerce, it proves that the same power is in the citizen. States or individuals who own lands may, if not forbidden by law, Page 22 U. S. 209 erect on those lands what buildings they please, but this power is entirely distinct from that of regulating commerce, and may, we presume, be restrained if exercised so as to produce a public mischief. These acts were cited at the bar for the purpose of showing an opinion in Congress that the States possess, concurrently with the Legislature of the Union, the power to regulate commerce with foreign nations and among the States. Upon reviewing them, we think they do not establish the proposition they were intended to prove. They show the opinion that the States retain powers enabling them to pass the laws to which allusion has been made, not that those laws proceed from the particular power which has been delegated to Congress. It has been contended by the counsel for the appellant that, as the word "to regulate" implies in its nature full power over the thing to be regulated, it excludes necessarily the action of all others that would perform the same operation on the same thing. That regulation is designed for the entire result, applying to those parts which remain as they were, as well as to those which are altered. It produces a uniform whole which is as much disturbed and deranged by changing what the regulating power designs to leave untouched as that on which it has operated. There is great force in this argument, and the Court is not satisfied that it has been refuted. Since, however, in exercising the power of regulating their own purely internal affairs, whether Page 22 U. S. 210 of trading or police, the States may sometimes enact laws the validity of which depends on their interfering with, and being contrary to, an act of Congress passed in pursuance of the Constitution, the Court will enter upon the inquiry whether the laws of New York, as expounded by the highest tribunal of that State, have, in their application to this case, come into collision with an act of Congress and deprived a citizen of a right to which that act entitles him. Should this collision exist, it will be immaterial whether those laws were passed in virtue of a concurrent power "to regulate commerce with foreign nations and among the several States" or in virtue of a power to regulate their domestic trade and police. In one case and the other, the acts of New York must yield to the law of Congress, and the decision sustaining the privilege they confer against a right given by a law of the Union must be erroneous. This opinion has been frequently expressed in this Court, and is founded as well on the nature of the government as on the words of the Constitution. In argument, however, it has been contended that, if a law passed by a State, in the exercise of its acknowledged sovereignty, comes into conflict with a law passed by Congress in pursuance of the Constitution, they affect the subject and each other like equal opposing powers. But the framers of our Constitution foresaw this state of things, and provided for it by declaring the supremacy not only of itself, but of the laws made in pursuance of it. The nullity of any act Page 22 U. S. 211 inconsistent with the Constitution is produced by the declaration that the Constitution is the supreme law. The appropriate application of that part of the clause which confers the same supremacy on laws and treaties is to such acts of the State Legislatures as do not transcend their powers, but, though enacted in the execution of acknowledged State powers, interfere with, or are contrary to, the laws of Congress made in pursuance of the Constitution or some treaty made under the authority of the United States. In every such case, the act of Congress or the treaty is supreme, and the law of the State, though enacted in the exercise of powers not controverted, must yield to it. In pursuing this inquiry at the bar, it has been said that the Constitution does not confer the right of intercourse between State and State. That right derives its source from those laws whose authority is acknowledged by civilized man throughout the world. This is true. The Constitution found it an existing right, and gave to Congress the power to regulate it. In the exercise of this power, Congress has passed "an act for enrolling or licensing ships or vessels to be employed in the coasting trade and fisheries, and for regulating the same." The counsel for the respondent contend that this act does not give the right to sail from port to port, but confines itself to regulating a preexisting right so far only as to confer certain privileges on enrolled and licensed vessels in its exercise. It will at once occur that, when a Legislature Page 22 U. S. 212 attaches certain privileges and exemptions to the exercise of a right over which its control is absolute, the law must imply a power to exercise the right. The privileges are gone if the right itself be annihilated. It would be contrary to all reason, and to the course of human affairs, to say that a State is unable to strip a vessel of the particular privileges attendant on the exercise of a right, and yet may annul the right itself; that the State of New York cannot prevent an enrolled and licensed vessel, proceeding from Elizabethtown, in New Jersey, to New York, from enjoying, in her course, and on her entrance into port, all the privileges conferred by the act of Congress, but can shut her up in her own port, and prohibit altogether her entering the waters and ports of another State. To the Court, it seems very clear that the whole act on the subject of the coasting trade, according to those principles which govern the construction of statutes, implies unequivocally an authority to licensed vessels to carry on the coasting trade. But we will proceed briefly to notice those sections which bear more directly on the subject. The first section declares that vessels enrolled by virtue of a previous law, and certain other vessels enrolled as described in that act, and having a license in force, as is by the act required, "and no others, shall be deemed ships or vessels of the United States, entitled to the privileges of ships or vessels employed in the coasting trade." This section seems to the Court to contain a positive enactment that the the vessels it describes shall Page 22 U. S. 213 be entitled to the privileges of ships or vessels employed in the coasting trade. These privileges cannot be separated from the trade and cannot be enjoyed unless the trade may be prosecuted. The grant of the privilege is an idle, empty form, conveying nothing, unless it convey the right to which the privilege is attached and in the exercise of which its whole value consists. To construe these words otherwise than as entitling the ships or vessels described to carry on the coasting trade would be, we think, to disregard the apparent intent of the act. The fourth section directs the proper officer to grant to a vessel qualified to receive it, "a license for carrying on the coasting trade," and prescribes its form. After reciting the compliance of the applicant with the previous requisites of the law, the operative words of the instrument are, "license is hereby granted for the said steamboat Bellona to be employed in carrying on the coasting trade for one year from the date hereof, and no longer." These are not the words of the officer, they are the words of the legislature, and convey as explicitly the authority the act intended to give, and operate as effectually, as if they had been inserted in any other part of the act, than in the license itself. The word "license" means permission or authority, and a license to do any particular thing is a permission or authority to do that thing, and if granted by a person having power to grant it, transfers to the grantee the right to do whatever it purports to authorize. It certainly transfers to Page 22 U. S. 214 him all the right which the grantor can transfer, to do what is within the terms of the license. Would the validity or effect of such an instrument be questioned by the respondent, if executed by persons claiming regularly under the laws of New York? The license must be understood to be what it purports to be, a legislative authority to the steamboat Bellona "to be employed in carrying on the coasting trade, for one year from this date." It has been denied that these words authorize a voyage from New Jersey to New York. It is true that no ports are specified, but it is equally true that the words used are perfectly intelligible, and do confer such authority as unquestionably as if the ports had been mentioned. The coasting trade is a term well understood. The law has defined it, and all know its meaning perfectly. The act describes with great minuteness the various operations of a vessel engaged in it, and it cannot, we think, be doubted that a voyage from New Jersey to New York is one of those operations. Notwithstanding the decided language of the license, it has also been maintained that it gives no right to trade, and that its sole purpose is to confer the American character. The answer given to this argument that the American character is conferred by the enrollment, and not by the license, is, we think, founded too clearly in the words of the law to require the support of any additional observations. The enrollment of vessels designed for the coasting trade corresponds precisely with the registration of vessels Page 22 U. S. 215 designed for the foreign trade, and requires every circumstance which can constitute the American character. The license can be granted only to vessels already enrolled, if they be of the burthen of twenty tons and upwards, and requires no circumstance essential to the American character. The object of the license, then, cannot be to ascertain the character of the vessel, but to do what it professes to do -- that is, to give permission to a vessel already proved by her enrollment to be American, to carry on the coasting trade. But if the license be a permit to carry on the coasting trade, the respondent denies that these boats were engaged in that trade, or that the decree under consideration has restrained them from prosecuting it. The boats of the appellant were, we are told, employed in the transportation of passengers, and this is no part of that commerce which Congress may regulate. If, as our whole course of legislation on this subject shows, the power of Congress has been universally understood in America to comprehend navigation, it is a very persuasive, if not a conclusive, argument to prove that the construction is correct, and if it be correct, no clear distinction is perceived between the power to regulate vessels employed in transporting men for hire and property for hire. The subject is transferred to Congress, and no exception to the grant can be admitted which is not proved by the words or the nature of the thing. A coasting vessel employed in the transportation of passengers is as much a portion of the American marine as one employed Page 22 U. S. 216 in the transportation of a cargo, and no reason is perceived why such vessel should be withdrawn from the regulating power of that government which has been thought best fitted for the purpose generally. The provisions of the law respecting native seamen and respecting ownership are as applicable to vessels carrying men as to vessels carrying manufactures, and no reason is perceived why the power over the subject should not be placed in the same hands. The argument urged at the bar rests on the foundation that the power of Congress does not extend to navigation as a branch of commerce, and can only be applied to that subject incidentally and occasionally. But if that foundation be removed, we must show some plain, intelligible distinction, supported by the Constitution or by reason, for discriminating between the power of Congress over vessels employed in navigating the same seas. We can perceive no such distinction. If we refer to the Constitution, the inference to be drawn from it is rather against the distinction. The section which restrains Congress from prohibiting the migration or importation of such persons as any of the States may think proper to admit until the year 1808 has always been considered as an exception from the power to regulate commerce, and certainly seems to class migration with importation. Migration applies as appropriately to voluntary as importation does to involuntary arrivals, and, so far as an exception from a power proves its existence, this section proves that the power to regulate commerce applies equally Page 22 U. S. 217 to the regulation of vessels employed in transporting men, who pass from place to place voluntarily, and to those who pass involuntarily. If the power reside in Congress, as a portion of the general grant to regulate commerce, then acts applying that power to vessels generally must be construed as comprehending all vessels. If none appear to be excluded by the language of the act, none can be excluded by construction. Vessels have always been employed to a greater or less extent in the transportation of passengers, and have never been supposed to be, on that account, withdrawn from the control or protection of Congress. Packets which ply along the coast, as well as those which make voyages between Europe and America, consider the transportation of passengers as an important part of their business. Yet it has never been suspected that the general laws of navigation did not apply to them. The duty act, sections 23 and 46, contains provisions respecting passengers, and shows that vessels which transport them have the same rights, and must perform the same duties, with other vessels. They are governed by the general laws of navigation. In the progress of things, this seems to have grown into a particular employment, and to have attracted the particular attention of government. Congress was no longer satisfied with comprehending vessels engaged specially in this business, within those provisions which were intended for vessels generally, and, on the 2d of March, 1819, passed "an act regulating passenger ships and Page 22 U. S. 218 vessels." This wise and humane law provides for the safety and comfort of passengers, and for the communication of everything concerning them which may interest the government, to the Department of State, but makes no provision concerning the entry of the vessel or her conduct in the waters of the United States. This, we think, shows conclusively the sense of Congress (if, indeed, any evidence to that point could be required) that the preexisting regulations comprehended passenger ships among others, and, in prescribing the same duties, the Legislature must have considered them as possessing the same rights. If, then, it were even true that the Bellona and the Stoudinger were employed exclusively in the conveyance of passengers between New York and New Jersey, it would not follow that this occupation did not constitute a part of the coasting trade of the United States, and was not protected by the license annexed to the answer. But we cannot perceive how the occupation of these vessels can be drawn into question in the case before the Court. The laws of New York, which grant the exclusive privilege set up by the respondent, take no notice of the employment of vessels, and relate only to the principle by which they are propelled. Those laws do not inquire whether vessels are engaged in transporting men or merchandise, but whether they are moved by steam or wind. If by the former, the waters of New York are closed against them, though their cargoes be dutiable goods, which the laws of the Page 22 U. S. 219 United States permit them to enter and deliver in New York. If by the latter, those waters are free to them though they should carry passengers only. In conformity with the law is the bill of the plaintiff in the State Court. The bill does not complain that the Bellona and the Stoudinger carry passengers, but that they are moved by steam. This is the injury of which he complains, and is the sole injury against the continuance of which he asks relief. The bill does not even allege specially that those vessels were employed in the transportation of passengers, but says generally that they were employed "in the transportation of passengers, or otherwise." The answer avers only that they were employed in the coasting trade, and insists on the right to carry on any trade authorized by the license. No testimony is taken, and the writ of injunction and decree restrain these licensed vessels not from carrying passengers, but from being moved through the waters of New York by steam for any purpose whatever. The questions, then, whether the conveyance of passengers be a part of the coasting trade and whether a vessel can be protected in that occupation by a coasting license are not, and cannot be, raised in this case. The real and sole question seems to be whether a steam machine in actual use deprives a vessel of the privileges conferred by a license. In considering this question, the first idea which presents itself is that the laws of Congress for the regulation of commerce do not look to the Page 22 U. S. 220 principle by which vessels are moved. That subject is left entirely to individual discretion, and, in that vast and complex system of legislative enactment concerning it, which embraces everything that the Legislature thought it necessary to notice, there is not, we believe, one word respecting the peculiar principle by which vessels are propelled through the water, except what may be found in a single act granting a particular privilege to steamboats. With this exception, every act, either prescribing duties or granting privileges, applies to every vessel, whether navigated by the instrumentality of wind or fire, of sails or machinery. The whole weight of proof, then, is thrown upon him who would introduce a distinction to which the words of the law give no countenance. If a real difference could be admitted to exist between vessels carrying passengers and others, it has already been observed that there is no fact in this case which can bring up that question. And, if the occupation of steamboats be a matter of such general notoriety that the Court may be presumed to know it, although not specially informed by the record, then we deny that the transportation of passengers is their exclusive occupation. It is a matter of general history that, in our western waters, their principal employment is the transportation of merchandise, and all know that, in the waters of the Atlantic, they are frequently so employed. But all inquiry into this subject seems to the Court to be put completely at rest by the act already Page 22 U. S. 221 mentioned, entitled, "An act for the enrolling and licensing of steamboats." This act authorizes a steamboat employed, or intended to be employed, only in a river or bay of the United States, owned wholly or in part by an alien, resident within the United States, to be enrolled and licensed as if the same belonged to a citizen of the United States. This act demonstrates the opinion of Congress that steamboats may be enrolled and licensed, in common with vessels using sails. They are, of course, entitled to the same privileges, and can no more be restrained from navigating waters and entering ports which are free to such vessels than if they were wafted on their voyage by the winds, instead of being propelled by the agency of fire. The one element may be as legitimately used as the other for every commercial purpose authorized by the laws of the Union, and the act of a State inhibiting the use of either to any vessel having a license under the act of Congress comes, we think, in direct collision with that act. As this decides the cause, it is unnecessary to enter in an examination of that part of the Constitution which empowers Congress to promote the progress of science and the useful arts. The Court is aware that, in stating the train of reasoning by which we have been conducted to this result, much time has been consumed in the attempt to demonstrate propositions which may have been thought axioms. It is felt that the tediousness inseparable from the endeavour to prove that which is already clear is imputable to Page 22 U. S. 222 a considerable part of this opinion. But it was unavoidable. The conclusion to which we have come depends on a chain of principles which it was necessary to preserve unbroken, and although some of them were thought nearly self-evident, the magnitude of the question, the weight of character belonging to those from whose judgment we dissent, and the argument at the bar demanded that we should assume nothing. Powerful and ingenious minds, taking as postulates that the powers expressly granted to the government of the Union are to be contracted by construction into the narrowest possible compass and that the original powers of the States are retained if any possible construction will retain them may, by a course of well digested but refined and metaphysical reasoning founded on these premises, explain away the Constitution of our country and leave it a magnificent structure indeed to look at, but totally unfit for use. They may so entangle and perplex the understanding as to obscure principles which were before thought quite plain, and induce doubts where, if the mind were to pursue its own course, none would be perceived. In such a case, it is peculiarly necessary to recur to safe and fundamental principles to sustain those principles, and when sustained, to make them the tests of the arguments to be examined. Mr. Justice JOHNSON. The judgment entered by the Court in this cause, has my entire approbation, but, having adopted my conclusions on views Page 22 U. S. 223 of the subject materially different from those of my brethren, I feel it incumbent on me to exhibit those views. I have also another inducement: in questions of great importance and great delicacy, I feel my duty to the public best discharged by an effort to maintain my opinions in my own way. In attempts to construe the Constitution, I have never found much benefit resulting from the inquiry whether the whole or any part of it is to be construed strictly or literally. The simple, classical, precise, yet comprehensive language in which it is couched leaves, at most, but very little latitude for construction, and when its intent and meaning is discovered, nothing remains but to execute the will of those who made it in the best manner to effect the purposes intended. The great and paramount purpose was to unite this mass of wealth and power, for the protection of the humblest individual, his rights, civil and political, his interests and prosperity, are the sole end; the rest are nothing but the means. But the principal of those means, one so essential as to approach nearer the characteristics of an end, was the independence and harmony of the States that they may the better subserve the purposes of cherishing and protecting the respective families of this great republic. The strong sympathies, rather than the feeble government, which bound the States together during a common war dissolved on the return of peace, and the very principles which gave rise to the war of the revolution began to threaten the Page 22 U. S. 224 Confederacy with anarchy and ruin. The States had resisted a tax imposed by the parent State, and now reluctantly submitted to, or altogether rejected, the moderate demands of the Confederation. Everyone recollects the painful and threatening discussions which arose on the subject of the five percent. duty. Some States rejected it altogether; others insisted on collecting it themselves; scarcely any acquiesced without reservations, which deprived it altogether of the character of a national measure; and at length, some repealed the laws by which they had signified their acquiescence. For a century, the States had submitted, with murmurs, to the commercial restrictions imposed by the parent State; and now, finding themselves in the unlimited possession of those powers over their own commerce which they had so long been deprived of and so earnestly coveted, that selfish principle which, well controlled, is so salutary, and which, unrestricted, is so unjust and tyrannical, guided by inexperience and jealousy, began to show itself in iniquitous laws and impolitic measures from which grew up a conflict of commercial regulations destructive to the harmony of the States and fatal to their commercial interests abroad. This was the immediate cause that led to the forming of a convention. As early as 1778, the subject had been pressed upon the attention of Congress by a memorial from the State of New Jersey, and in 1781, we find a resolution presented to that body by one of Page 22 U. S. 225 the most enlightened men of his day, Dr. Witherspoon, affirming that "it is indispensably necessary that the United States, in Congress assembled, should be vested with a right of superintending the commercial regulations of every State that none may take place that shall be partial or contrary to the common interests." The resolution of Virginia, January 21, 1781, appointing her commissioners to meet commissioners from other States, expresses their purpose to be "to take into consideration the trade of the United States, to consider how far an uniform system in their commercial regulations may be necessary to their common interests and their permanent harmony." And Mr. Madison's resolution, which led to that measure, is introduced by a preamble entirely explicit to this point: "Whereas, the relative situation of the United States has been found, on trial, to require uniformity in their commercial regulations as the only effectual policy for obtaining, in the ports of foreign nations, a stipulation of privileges reciprocal to those enjoyed by the subjects of such nations in the ports of the United States, for preventing animosities, which cannot fail to arise among the several States, from the interference of partial and separate regulations," &c. "therefore, resolved," &c. The history of the times will therefore sustain the opinion that the grant of power over commerce, if intended to be commensurate with the evils existing and the purpose of remedying those Page 22 U. S. 226 evils, could be only commensurate with the power of the States over the subject. And this opinion is supported by a very remarkable evidence of the general understanding of the whole American people when the grant was made. There was not a State in the Union in which there did not at that time exist a variety of commercial regulations; concerning which it is too much to suppose that the whole ground covered by those regulations was immediately assumed by actual legislation under the authority of the Union. But where was the existing statute on this subject that a State attempted to execute? or by what State was it ever thought necessary to repeal those statutes? By common consent, those laws dropped lifeless from their statute books for want of the sustaining power that had been relinquished to Congress. And the plain and direct import of the words of the grant is consistent with this general understanding. The words of the Constitution are, "Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." It is not material, in my view of the subject, to inquire whether the article a or the should be prefixed to the word "power." Either or neither will produce the same result: if either, it is clear that the article "the" would be the proper one, since the next preceding grant of power is certainly exclusive, to-wit: "to borrow money on the credit Page 22 U. S. 227 of the United States." But mere verbal criticism I reject. My opinion is founded on the application of the words of the grant to the subject of it. The "power to regulate commerce" here meant to be granted was that power to regulate commerce which previously existed in the States. But what was that power? The States were unquestionably supreme, and each possessed that power over commerce which is acknowledged to reside in every sovereign State. The definition and limits of that power are to be sought among the features of international law, and, as it was not only admitted but insisted on by both parties in argument that, "unaffected by a state of war, by treaties, or by municipal regulations, all commerce among independent States was legitimate," there is no necessity to appeal to the oracles of the jus commune for the correctness of that doctrine. The law of nations, regarding man as a social animal, pronounces all commerce legitimate in a state of peace until prohibited by positive law. The power of a sovereign state over commerce therefore amounts to nothing more than a power to limit and restrain it at pleasure. And since the power to prescribe the limits to its freedom necessarily implies the power to determine what shall remain unrestrained, it follows that the power must be exclusive; it can reside but in one potentate, and hence the grant of this power carries with it the whole subject, leaving nothing for the State to act upon. And such has been the practical construction of Page 22 U. S. 228 the act. Were every law on the subject of commerce repealed tomorrow, all commerce would be lawful, and, in practice, merchants never inquire what is permitted, but what is forbidden commerce. Of all the endless variety of branches of foreign commerce now carried on to every quarter of the world, I know of no one that is permitted by act of Congress any otherwise than by not being forbidden. No statute of the United States that I know of was ever passed to permit a commerce unless in consequence of its having been prohibited by some previous statute. I speak not here of the treaty-making power, for that is not exercised under the grant now under consideration. I confine my observation to laws properly so called. And even where freedom of commercial intercourse is made a subject of stipulation in a treaty, it is generally with a view to the removal of some previous restriction, or the introduction of some new privilege, most frequently, is identified with the return to a state of peace. But another view of the subject leads directly to the same conclusion. Power to regulate foreign commerce is given in the same words, and in the same breath, as it were, with that over the commerce of the States and with the Indian tribes. But the power to regulate foreign commerce is necessarily exclusive. The States are unknown to foreign nations, their sovereignty exists only with relation to each other and the General Government. Whatever regulations foreign commerce should be subjected to in the ports of the Union, the General Government would be Page 22 U. S. 229 held responsible for them, and all other regulations but those which Congress had imposed would be regarded by foreign nations as trespasses and violations of national faith and comity. But the language which grants the power as to one description of commerce grants it as to all, and, in fact, if ever the exercise of a right or acquiescence in a construction could be inferred from contemporaneous and continued assent, it is that of the exclusive effect of this grant. A right over the subject has never been pretended to in any instance except as incidental to the exercise of some other unquestionable power. The present is an instance of the assertion of that kind, as incidental to a municipal power; that of superintending the internal concerns of a State, and particularly of extending protection and patronage, in the shape of a monopoly, to genius and enterprise. The grant to Livingston and Fulton interferes with the freedom of intercourse, and on this principle, its constitutionality is contested. When speaking of the power of Congress over navigation, I do not regard it as a power incidental to that of regulating commerce; I consider it as the thing itself, inseparable from it as vital motion is from vital existence. Commerce, in its simplest signification, means an exchange of goods, but in the advancement of society, labour, transportation, intelligence, care, and various mediums of exchange become commodities, and enter into commerce, the subject, Page 22 U. S. 230 the vehicle, the agent, and their various operations become the objects of commercial regulation. Shipbuilding, the carrying trade, and propagation of seamen are such vital agents of commercial prosperity that the nation which could not legislate over these subjects would not possess power to regulate commerce. That such was the understanding of the framers of the Constitution is conspicuous from provisions contained in that instrument. The first clause of the 9th section not only considers the right of controlling personal ingress or migration, as implied in the powers previously vested in Congress over commerce, but acknowledges it as a legitimate subject of revenue. And, although the leading object of this section undoubtedly was the importation of slaves, yet the words are obviously calculated to comprise persons of all descriptions, and to recognise in Congress a power to prohibit where the States permit, although they cannot permit when the States prohibit. The treaty-making power undoubtedly goes further. So the fifth clause of the same section furnishes an exposition of the sense of the Convention as to the power of Congress over navigation: "nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties in another." But it is almost labouring to prove a self-evident proposition, since the sense of mankind, the practice of the world, the contemporaneous assumption and continued exercise of the power, and universal acquiescence, have so clearly established Page 22 U. S. 231 the right of Congress over navigation, and the transportation of both men and their goods, as not only incidental to, but actually of the essence of, the power to regulate commerce. As to the transportation of passengers, and passengers in a steamboat, I consider it as having been solemnly recognised by the State of New York as a subject both of commercial regulation and of revenue. She has imposed a transit duty upon steamboat passengers arriving at Albany, and unless this be done in the exercise of her control over personal intercourse, as incident to internal commerce, I know not on what principle the individual has been subjected to this tax. The subsequent imposition upon the steamboat itself appears to be but a commutation, and operates as an indirect, instead of a direct, tax upon the same subject. The passenger pays it at last. It is impossible, with the views which I entertain of the principle on which the commercial privileges of the people of the United States among themselves rests, to concur in the view which this Court takes of the effect of the coasting license in this cause. I do not regard it as the foundation of the right set up in behalf of the appellant. If there was any one object riding over every other in the adoption of the Constitution, it was to keep the commercial intercourse among the States free from all invidious and partial restraints. And I cannot overcome the conviction that, if the licensing act was repealed tomorrow, the rights of the appellant to a reversal of the decision complained of would be as Page 22 U. S. 232 strong as it is under this license. One half the doubts in life arise from the defects of language, and if this instrument had been called an exemption instead of a license, it would have given a better idea of its character. Licensing acts, in fact, in legislation, are universally restraining acts, as, for example, acts licensing gaming houses, retailers of spiritous liquors, &c. The act in this instance is distinctly of that character, and forms part of an extensive system the object of which is to encourage American shipping and place them on an equal footing with the shipping of other nations. Almost every commercial nation reserves to its own subjects a monopoly of its coasting trade, and a countervailing privilege in favour of American shipping is contemplated in the whole legislation of the United States on this subject. It is not to give the vessel an American character that the license is granted; that effect has been correctly attributed to the act of her enrollment. But it is to confer on her American privileges, as contradistinguished from foreign, and to preserve the government from fraud by foreigners in surreptitiously intruding themselves into the American commercial marine, as well as frauds upon the revenue in the trade coastwise, that this whole system is projected. Many duties and formalities are necessarily imposed upon the American foreign commerce which would be burdensome in the active coasting trade of the States, and can be dispensed with. A higher rate of tonnage also is imposed, and this license entitles the vessels that take it to those exemptions, but to nothing more. Page 22 U. S. 233 A common register equally entitles vessels to carry on the coasting trade, although it does not exempt them from the forms of foreign commerce or from compliance with the 16th and 17th sections of the enrolling act. And even a foreign vessel may be employed coastwise upon complying with the requisitions of the 24th section. I consider the license therefore as nothing more than what it purports to be, according to the first section of this act, conferring on the licensed vessel certain privileges in that trade not conferred on other vessels; but the abstract right of commercial intercourse, stripped of those privileges, is common to all. Yet there is one view in which the license may be allowed considerable influence in sustaining the decision of this Court. It has been contended that the grants of power to the United States over any subject do not necessarily paralyze the arm of the States or deprive them of the capacity to act on the same subject. The this can be the effect only of prohibitory provisions in their own Constitutions, or in that of the General Government. The vis vitae of power is still existing in the States, if not extinguished by the Constitution of the United States. That, although as to all those grants of power which may be called aboriginal, with relation to the Government, brought into existence by the Constitution, they, of course, are out of the reach of State power, yet, as to all concessions of powers which previously existed in the States, it was otherwise. The practice of our Government certainly Page 22 U. S. 234 has been, on many subjects, to occupy so much only of the field opened to them as they think the public interests require. Witness the jurisdiction of the Circuit Courts, limited both as to cases and as to amount, and various other instances that might to cited. But the license furnishes a full answer to this objection, for, although one grant of power over commerce, should not be deemed a total relinquishment of power over the subject, but amounting only to a power to assume, still the power of the States must be at an end, so far as the United States have, by their legislative act, taken the subject under their immediate superintendence. So far as relates to the commerce coastwise, the act under which this license is granted contains a full expression of Congress on this subject. Vessels, from five tons upwards, carrying on the coasting trade are made the subject of regulation by that act. And this license proves that this vessel has complied with that act, and been regularly ingrafted into one class of the commercial marine of the country. It remains, to consider the objections to this opinion, as presented by the counsel for the appellee. On those which had relation to the particular character of this boat, whether as a steamboat or a ferry boat, I have only to remark that, in both those characters, she is expressly recognised as an object of the provisions which relate to licenses. The 12th section of the Act of 1793 has these words: "That when the master of any ship or vessel, ferry boats excepted, shall be changed," &c. And the act which exempts licensed steamboats Page 22 U. S. 235 from the provisions against alien interests shows such boats to be both objects of the licensing act and objects of that act when employed exclusively within our bays and rivers. But the principal objections to these opinions arise, 1st. From the unavoidable action of some of the municipal powers of the States upon commercial subjects. 2d. From passages in the Constitution which are supposed to imply a concurrent power in the States in regulating commerce. It is no objection to the existence of distinct, substantive powers that, in their application, they bear upon the same subject. The same bale of goods, the same cask of provisions, or the same ship that may be the subject of commercial regulation may also be the vehicle of disease. And the health laws that require them to be stopped and ventilated are no more intended as regulations on commerce than the laws which permit their importation are intended to innoculate the community with disease. Their different purposes mark the distinction between the powers brought into action, and while frankly exercised, they can produce no serious collision. As to laws affecting ferries, turnpike roads, and other subjects of the same class, so far from meriting the epithet of commercial regulations, they are, in fact, commercial facilities for which, by the consent of mankind, a compensation is paid upon the same principle that the whole commercial world submit to pay light money to the Danes. Inspection laws are of a more equivocal nature, and it is obvious that Page 22 U. S. 236 the Constitution has viewed that subject with much solicitude. But so far from sustaining an inference in favour of the power of the States over commerce, I cannot but think that the guarded provisions of the 10th section on this subject furnish a strong argument against that inference. It was obvious that inspection laws must combine municipal with commercial regulations, and, while the power over the subject is yielded to the States, for obvious reasons, an absolute control is given over State legislation on the subject, as far as that legislation may be exercised, so as to affect the commerce of the country. The inferences to be correctly drawn from this whole article appear to me to be altogether in favour of the exclusive grants to Congress of power over commerce, and the reverse of that which the appellee contends for. This section contains the positive restrictions imposed by the Constitution upon State power. The first clause of it specifies those powers which the States are precluded from exercising, even though the Congress were to permit them. The second, those which the States may exercise with the consent of Congress. And here the sedulous attention to the subject of State exclusion from commercial power is strongly marked. Not satisfied with the express grant to the United States of the power over commerce, this clause negatives the exercise of that power to the States as to the only two objects which could ever tempt them to assume the exercise of that power, to-wit, the collection of a revenue from imposts and duties on imports and exports, or from a tonnage duty. As Page 22 U. S. 237 to imposts on imports or exports, such a revenue might have been aimed at directly, by express legislation, or indirectly, in the form of inspection laws, and it became necessary to guard against both. Hence, first, the consent of Congress to such imposts or duties is made necessary, and, as to inspection laws, it is limited to the minimum of expenses. Then the money so raised shall be paid into the Treasury of the United States, or may be sued for, since it is declared to be for their use. And lastly, all such laws may be modified or repealed by an act of Congress. It is impossible for a right to be more guarded. As to a tonnage duty that could be recovered in but one way, and a sum so raised, being obviously necessary for the execution of health laws and other unavoidable port expenses, it was intended that it should go into the State treasuries, and nothing more was required therefore than the consent of Congress. But this whole clause, as to these two subjects, appears to have been introduced ex abundanti cautela, to remove every temptation to an attempt to interfere with the powers of Congress over commerce, and to show how far Congress might consent to permit the States to exercise that power. Beyond those limits, even by the consent of Congress, they could not exercise it. And thus we have the whole effect of the clause. The inference which counsel would deduce from it is neither necessary nor consistent with the general purpose of the clause. But instances have been insisted on with much confidence in argument in which, by municipal Page 22 U. S. 238 laws, particular regulations respecting their cargoes have been imposed upon shipping in the ports of the United States, and one in which forfeiture was made the penalty of disobedience. Until such laws have been tested by exceptions to their constitutionality, the argument certainly wants much of the force attributed to it; but, admitting their constitutionality, they present only the familiar case of punishment inflicted by both governments upon the same individual. He who robs the mail may also steal the horse that carries it, and would unquestionably be subject to punishment at the same time under the laws of the State in which the crime is committed and under those of the United States. And these punishments may interfere, and one render it impossible to inflict the other, and yet the two governments would be acting under powers that have no claim to identity. It would be in vain to deny the possibility of a clashing and collision between the measures of the two governments. The line cannot be drawn with sufficient distinctness between the municipal powers of the one and the commercial powers of the other. In some points, they meet and blend so as scarcely to admit of separation. Hitherto, the only remedy has been applied which the case admits of -- that of a frank and candid cooperation for the general good. Witness the laws of Congress requiring its officers to respect the inspection laws of the States and to aid in enforcing their health laws, that which surrenders to the States the superintendence of pilotage, and the Page 22 U. S. 239 many laws passed to permit a tonnage duty to be levied for the use of their ports. Other instances could be cited abundantly to prove that collision must be sought to be produced, and when it does arise, the question must be decided how far the powers of Congress are adequate to put it down. Wherever the powers of the respective governments are frankly exercised, with a distinct view to the ends of such powers, they may act upon the same object, or use the same means, and yet the powers be kept perfectly distinct. A resort to the same means therefore is no argument to prove the identity of their respective powers. I have not touched upon the right of the States to grant patents for inventions or improvements generally, because it does not necessarily arise in this cause. It is enough for all the purposes of this decision if they cannot exercise it so as to restrain a free intercourse among the States. DECREE. This cause came on to be heard on the transcript of the record of the Court for the Trial of Impeachments and Correction of Errors of the State of New York, and was argued by counsel. On consideration whereof, this Court is of opinion that the several licenses to the steamboats the Stoudinger and the Bellona to carry on the coasting trade, which are set up by the appellant Thomas Gibbons in his answer to the bill of the respondent, Aaron Ogden, filed in the Court of Chancery for the State of New York, which were granted under an act of Congress, passed in pursuance of the Constitution of the Page 22 U. S. 240 United States, gave full authority to those vessels to navigate the waters of the United States, by steam or otherwise, for the purpose of carrying on the coasting trade, any law of the State of New York to the contrary notwithstanding, and that so much of the several laws of the State of New York as prohibits vessels, licensed according to the laws of the United States, from navigating the waters of the State of New York by means of fire or steam is repugnant to the said Constitution, and void. This Court is therefore of opinion that the decree of the Court of New York for the Trial of Impeachments and the Correction of Errors affirming the decree of the Chancellor of that State, which perpetually enjoins the said Thomas Gibbons, the appellant, from navigating the waters of the State of New York with the steamboats the Stoudinger and the Bellona by steam or fire, is erroneous, and ought to be reversed, and the same is hereby reversed and annulled, and this Court doth further DIRECT, ORDER, and DECREE that the bill of the said Aaron Ogden be dismissed, and the same is hereby dismissed accordingly.

The Supreme Court's decision in Gibbons v. Ogden (1824) ruled that federal law regulating interstate commerce takes precedence over state law, specifically regarding steamboat navigation. The Court affirmed that the power to regulate commerce between states rests solely with Congress and that state laws cannot restrict it. This case established the principle of federal supremacy in regulating interstate commerce, ensuring uniform rules across states and preventing state laws from hindering the flow of trade and travel between states.

Role of Courts

TransUnion LLC v. Ramirez

https://supreme.justia.com/cases/federal/us/594/20-297/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 20–297 _________________ TRANSUNION LLC, PETITIONER v. SERGIO L. RAMIREZ on writ of certiorari to the united states court of appeals for the ninth circuit [June 25, 2021] Justice Kavanaugh delivered the opinion of the Court. To have Article III standing to sue in federal court, plaintiffs must demonstrate, among other things, that they suffered a concrete harm. No concrete harm, no standing. Central to assessing concreteness is whether the asserted harm has a “close relationship” to a harm traditionally recognized as providing a basis for a lawsuit in American courts—such as physical harm, monetary harm, or various intangible harms including (as relevant here) reputational harm. Spokeo, Inc. v. Robins , 578 U.S. 330, 340–341 (2016). In this case, a class of 8,185 individuals sued TransUnion, a credit reporting agency, in federal court under the Fair Credit Reporting Act. The plaintiffs claimed that TransUnion failed to use reasonable procedures to ensure the accuracy of their credit files, as maintained internally by TransUnion. For 1,853 of the class members, TransUnion provided misleading credit reports to third-party businesses. We conclude that those 1,853 class members have demonstrated concrete reputational harm and thus have Article III standing to sue on the reasonable-procedures claim. The internal credit files of the other 6,332 class members were not provided to third-party businesses during the relevant time period. We conclude that those 6,332 class members have not demonstrated concrete harm and thus lack Article III standing to sue on the reasonable-procedures claim. In two other claims, all 8,185 class members complained about formatting defects in certain mailings sent to them by TransUnion. But the class members other than the named plaintiff Sergio Ramirez have not demonstrated that the alleged formatting errors caused them any concrete harm. Therefore, except for Ramirez, the class members do not have standing as to those two claims. Over Judge McKeown’s dissent, the U. S. Court of Appeals for the Ninth Circuit ruled that all 8,185 class members have standing as to all three claims. The Court of Appeals approved a class damages award of about $40 million. In light of our conclusion that (i) only 1,853 class members have standing for the reasonable-procedures claim and (ii) only Ramirez himself has standing for the two formatting claims relating to the mailings, we reverse the judgment of the Ninth Circuit and remand the case for further proceedings consistent with this opinion. I In 1970, Congress passed and President Nixon signed the Fair Credit Reporting Act. 84Stat. 1127, as amended, 15 U. S. C. §1681 et seq . The Act seeks to promote “fair and accurate credit reporting” and to protect consumer privacy. §1681(a). To achieve those goals, the Act regulates the consumer reporting agencies that compile and disseminate personal information about consumers. The Act “imposes a host of requirements concerning the creation and use of consumer reports.” Spokeo, Inc. v. Robins , 578 U.S. 330, 335 (2016). Three of the Act’s requirements are relevant to this case. First , the Act requires consumer reporting agencies to “follow reasonable procedures to assure maximum possible accuracy” in consumer reports. §1681e(b). Second , the Act provides that consumer reporting agencies must, upon request, disclose to the consumer “[a]ll information in the consumer’s file at the time of the request.” §1681g(a)(1). Third , the Act compels consumer reporting agencies to “provide to a consumer, with each written disclosure by the agency to the consumer,” a “summary of rights” prepared by the Consumer Financial Protection Bureau. §1681g(c)(2). The Act creates a cause of action for consumers to sue and recover damages for certain violations. The Act provides: “Any person who willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer” for actual damages or for statutory damages not less than $100 and not more than $1,000, as well as for punitive damages and attorney’s fees. §1681n(a). TransUnion is one of the “Big Three” credit reporting agencies, along with Equifax and Experian. As a credit reporting agency, TransUnion compiles personal and financial information about individual consumers to create consumer reports. TransUnion then sells those consumer reports for use by entities such as banks, landlords, and car dealerships that request information about the creditworthiness of individual consumers. Beginning in 2002, TransUnion introduced an add-on product called OFAC Name Screen Alert. OFAC is the U. S. Treasury Department’s Office of Foreign Assets Control. OFAC maintains a list of “specially designated nationals” who threaten America’s national security. Individuals on the OFAC list are terrorists, drug traffickers, or other serious criminals. It is generally unlawful to transact business with any person on the list. 31 CFR pt. 501, App. A (2020). TransUnion created the OFAC Name Screen Alert to help businesses avoid transacting with individuals on OFAC’s list. When this litigation arose, Name Screen worked in the following way: When a business opted into the Name Screen service, TransUnion would conduct its ordinary credit check of the consumer, and it would also use third-party software to compare the consumer’s name against the OFAC list. If the consumer’s first and last name matched the first and last name of an individual on OFAC’s list, then TransUnion would place an alert on the credit report indicating that the consumer’s name was a “potential match” to a name on the OFAC list. TransUnion did not compare any data other than first and last names. Unsurprisingly, TransUnion’s Name Screen product generated many false positives. Thousands of law-abiding Americans happen to share a first and last name with one of the terrorists, drug traffickers, or serious criminals on OFAC’s list of specially designated nationals. Sergio Ramirez learned the hard way that he is one such individual. On February 27, 2011, Ramirez visited a Nissan dealership in Dublin, California, seeking to buy a Nissan Maxima. Ramirez was accompanied by his wife and his father-in-law. After Ramirez and his wife selected a color and negotiated a price, the dealership ran a credit check on both Ramirez and his wife. Ramirez’s credit report, produced by TransUnion, contained the following alert: “***OFAC ADVISOR ALERT - INPUT NAME MATCHES NAME ON THE OFAC DATABASE.” App. 84. A Nissan salesman told Ramirez that Nissan would not sell the car to him because his name was on a “ ‘terrorist list.’ ” Id., at 333. Ramirez’s wife had to purchase the car in her own name. The next day, Ramirez called TransUnion and requested a copy of his credit file. TransUnion sent Ramirez a mailing that same day that included his credit file and the statutorily required summary of rights prepared by the CFPB. The mailing did not mention the OFAC alert in Ramirez’s file. The following day, TransUnion sent Ramirez a second mailing—a letter alerting him that his name was considered a potential match to names on the OFAC list. The second mailing did not include an additional copy of the summary of rights. Concerned about the mailings, Ramirez consulted a lawyer and ultimately canceled a planned trip to Mexico. TransUnion eventually removed the OFAC alert from Ramirez’s file. In February 2012, Ramirez sued TransUnion and alleged three violations of the Fair Credit Reporting Act. First , he alleged that TransUnion, by using the Name Screen product, failed to follow reasonable procedures to ensure the accuracy of information in his credit file. See §1681e(b). Second , he claimed that TransUnion failed to provide him with all the information in his credit file upon his request. In particular, TransUnion’s first mailing did not include the fact that Ramirez’s name was a potential match for a name on the OFAC list. See §1681g(a)(1). Third , Ramirez asserted that TransUnion violated its obligation to provide him with a summary of his rights “with each written disclosure,” because TransUnion’s second mailing did not contain a summary of Ramirez’s rights. §1681g(c)(2). Ramirez requested statutory and punitive damages. Ramirez also sought to certify a class of all people in the United States to whom TransUnion sent a mailing during the period from January 1, 2011, to July 26, 2011, that was similar in form to the second mailing that Ramirez received. TransUnion opposed certification. The U. S. District Court for the Northern District of California rejected TransUnion’s argument and certified the class. 301 F.R.D. 408 (2014). Before trial, the parties stipulated that the class contained 8,185 members, including Ramirez. The parties also stipulated that only 1,853 members of the class (including Ramirez) had their credit reports disseminated by TransUnion to potential creditors during the period from January 1, 2011, to July 26, 2011. The District Court ruled that all 8,185 class members had Article III standing. 2016 WL 6070490, *5 (Oct. 17, 2016). At trial, Ramirez testified about his experience at the Nissan dealership. But Ramirez did not present evidence about the experiences of other members of the class. After six days of trial, the jury returned a verdict for the plaintiffs. The jury awarded each class member $984.22 in statutory damages and $6,353.08 in punitive damages for a total award of more than $60 million. The District Court rejected all of TransUnion’s post-trial motions. The U. S. Court of Appeals for the Ninth Circuit affirmed in relevant part. 951 F.3d 1008 (2020). The court held that all members of the class had Article III standing to recover damages for all three claims. The court also concluded that Ramirez’s claims were typical of the class’s claims for purposes of Rule 23 of the Federal Rules of Civil Procedure. Finally, the court reduced the punitive damages award to $3,936.88 per class member, thus reducing the total award to about $40 million. Judge McKeown dissented in relevant part. As to the reasonable-procedures claim, she concluded that only the 1,853 class members whose reports were actually disseminated by TransUnion to third parties had Article III standing to recover damages. In her view, the remaining 6,332 class members did not suffer a concrete injury sufficient for standing. As to the two claims related to the mailings, Judge McKeown would have held that none of the 8,185 class members other than the named plaintiff Ramirez had standing as to those claims. We granted certiorari. 592 U. S. ___ (2020). II The question in this case is whether the 8,185 class members have Article III standing as to their three claims. In Part II, we summarize the requirements of Article III standing—in particular, the requirement that plaintiffs demonstrate a “concrete harm.” In Part III, we then apply the concrete-harm requirement to the plaintiffs’ lawsuit against TransUnion. A The “law of Art. III standing is built on a single basic idea—the idea of separation of powers.” Raines v. Byrd , 521 U.S. 811 , 820 (1997) (internal quotation marks omitted). Separation of powers “was not simply an abstract generalization in the minds of the Framers: it was woven into the document that they drafted in Philadelphia in the summer of 1787.” INS v. Chadha , 462 U.S. 919 , 946 (1983) (internal quotation marks omitted). Therefore, we start with the text of the Constitution. Article III confines the federal judicial power to the resolution of “Cases” and “Controversies.” For there to be a case or controversy under Article III, the plaintiff must have a “ ‘personal stake’ ” in the case—in other words, standing. Raines , 521 U. S., at 819. To demonstrate their personal stake, plaintiffs must be able to sufficiently answer the question: “ ‘What’s it to you?’ ” Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 882 (1983). To answer that question in a way sufficient to establish standing, a plaintiff must show (i) that he suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial relief. Lujan v. Defenders of Wildlife , 504 U.S. 555 , 560–561 (1992). If “the plaintiff does not claim to have suffered an injury that the defendant caused and the court can remedy, there is no case or controversy for the federal court to resolve.” Casillas v. Madison Avenue Assocs., Inc. , 926 F.3d 329, 333 (CA7 2019) (Barrett, J.). Requiring a plaintiff to demonstrate a concrete and particularized injury caused by the defendant and redressable by the court ensures that federal courts decide only “the rights of individuals,” Marbury v. Madison , 1 Cranch 137, 170 (1803), and that federal courts exercise “their proper function in a limited and separated government,” Roberts, Article III Limits on Statutory Standing, 42 Duke L. J. 1219, 1224 (1993). Under Article III, federal courts do not adjudicate hypothetical or abstract disputes. Federal courts do not possess a roving commission to publicly opine on every legal question. Federal courts do not exercise general legal oversight of the Legislative and Executive Branches, or of private entities. And federal courts do not issue advisory opinions. As Madison explained in Philadelphia, federal courts instead decide only matters “of a Judiciary Nature.” 2 Records of the Federal Convention of 1787, p. 430 (M. Farrand ed. 1966). In sum, under Article III, a federal court may resolve only “a real controversy with real impact on real persons.” American Legion v. American Humanist Assn. , 588 U. S. ___, ___ (2019) (Gorsuch, J., concurring in judgment) (slip op., at 10). B The question in this case focuses on the Article III requirement that the plaintiff ’s injury in fact be “concrete”—that is, “real, and not abstract.” Spokeo, Inc. v. Robins , 578 U.S. 330, 340 (2016) (internal quotation marks omitted); see Susan B. Anthony List v. Driehaus , 573 U.S. 149 , 158 (2014); Summers v. Earth Island Institute , 555 U.S. 488 , 493 (2009); Lujan , 504 U. S., at 560; Schlesinger v. Reservists Comm. to Stop the War , 418 U.S. 208 , 220–221 (1974). What makes a harm concrete for purposes of Article III? As a general matter, the Court has explained that “history and tradition offer a meaningful guide to the types of cases that Article III empowers federal courts to consider.” Sprint Communications Co. v. APCC Services, Inc. , 554 U.S. 269 , 274 (2008); see also Steel Co. v. Citizens for Better Environment , 523 U.S. 83 , 102 (1998). And with respect to the concrete-harm requirement in particular, this Court’s opinion in Spokeo v. Robins indicated that courts should assess whether the alleged injury to the plaintiff has a “close relationship” to a harm “traditionally” recognized as providing a basis for a lawsuit in American courts. 578 U. S., at 341. That inquiry asks whether plaintiffs have identified a close historical or common-law analogue for their asserted injury. Spokeo does not require an exact duplicate in American history and tradition. But Spokeo is not an open-ended invitation for federal courts to loosen Article III based on contemporary, evolving beliefs about what kinds of suits should be heard in federal courts. As Spokeo explained, certain harms readily qualify as concrete injuries under Article III. The most obvious are traditional tangible harms, such as physical harms and monetary harms. If a defendant has caused physical or monetary injury to the plaintiff, the plaintiff has suffered a concrete injury in fact under Article III. Various intangible harms can also be concrete. Chief among them are injuries with a close relationship to harms traditionally recognized as providing a basis for lawsuits in American courts. Id. , at 340–341. Those include, for example, reputational harms, disclosure of private information, and intrusion upon seclusion. See, e.g., Meese v. Keene , 481 U.S. 465 , 473 (1987) (reputational harms); Davis v. Federal Election Comm’n , 554 U.S. 724 , 733 (2008) (disclosure of private information); see also Gadelhak v. AT&T Services, Inc. , 950 F.3d 458, 462 (CA7 2020) (Barrett, J.) (intrusion upon seclusion). And those traditional harms may also include harms specified by the Constitution itself. See, e.g., Spokeo , 578 U. S., at 340 (citing Pleasant Grove City v. Summum , 555 U.S. 460 (2009) (abridgment of free speech), and Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U.S. 520 (1993) (infringement of free exercise)). In determining whether a harm is sufficiently concrete to qualify as an injury in fact, the Court in Spokeo said that Congress’s views may be “instructive.” 578 U. S., at 341. Courts must afford due respect to Congress’s decision to impose a statutory prohibition or obligation on a defendant, and to grant a plaintiff a cause of action to sue over the defendant’s violation of that statutory prohibition or obligation. See id., at 340–341. In that way, Congress may “elevate to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law.” Id., at 341 (alterations and internal quotation marks omitted); see Lujan , 504 U. S., at 562–563, 578; cf., e.g., Allen v. Wright , 468 U.S. 737 , 757, n. 22 (1984) (discriminatory treatment). But even though “Congress may ‘elevate’ harms that ‘exist’ in the real world before Congress recognized them to actionable legal status, it may not simply enact an injury into existence, using its lawmaking power to transform something that is not remotely harmful into something that is.” Hagy v. Demers & Adams , 882 F.3d 616, 622 (CA6 2018) (Sutton, J.) (citing Spokeo , 578 U. S., at 341). Importantly, this Court has rejected the proposition that “a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” Spokeo , 578 U. S., at 341. As the Court emphasized in Spokeo , “Article III standing requires a concrete injury even in the context of a statutory violation.” Ibid. Congress’s creation of a statutory prohibition or obligation and a cause of action does not relieve courts of their responsibility to independently decide whether a plaintiff has suffered a concrete harm under Article III any more than, for example, Congress’s enactment of a law regulating speech relieves courts of their responsibility to independently decide whether the law violates the First Amendment. Cf. United States v. Eichman , 496 U.S. 310 , 317–318 (1990). As Judge Katsas has rightly stated, “we cannot treat an injury as ‘concrete’ for Article III purposes based only on Congress’s say-so.” Trichell v. Midland Credit Mgmt., Inc. , 964 F.3d 990, 999, n. 2 (CA11 2020) (sitting by designation); see Marbury , 1 Cranch, at 178; see also Raines , 521 U. S., at 820, n. 3; Simon v. Eastern Ky. Welfare Rights Organization , 426 U.S. 26 , 41, n. 22 (1976); Muskrat v. United States , 219 U.S. 346 , 361–362 (1911). For standing purposes, therefore, an important difference exists between (i) a plaintiff ’s statutory cause of action to sue a defendant over the defendant’s violation of federal law, and (ii) a plaintiff ’s suffering concrete harm because of the defendant’s violation of federal law. Congress may enact legal prohibitions and obligations. And Congress may create causes of action for plaintiffs to sue defendants who violate those legal prohibitions or obligations. But under Article III, an injury in law is not an injury in fact. Only those plaintiffs who have been concretely harmed by a defendant’s statutory violation may sue that private defendant over that violation in federal court. As then-Judge Barrett succinctly summarized, “Article III grants federal courts the power to redress harms that defendants cause plaintiffs, not a freewheeling power to hold defendants accountable for legal infractions.” Casillas , 926 F. 3d, at 332. To appreciate how the Article III “concrete harm” principle operates in practice, consider two different hypothetical plaintiffs. Suppose first that a Maine citizen’s land is polluted by a nearby factory. She sues the company, alleging that it violated a federal environmental law and damaged her property. Suppose also that a second plaintiff in Hawaii files a federal lawsuit alleging that the same company in Maine violated that same environmental law by polluting land in Maine. The violation did not personally harm the plaintiff in Hawaii. Even if Congress affords both hypothetical plaintiffs a cause of action (with statutory damages available) to sue over the defendant’s legal violation, Article III standing doctrine sharply distinguishes between those two scenarios. The first lawsuit may of course proceed in federal court because the plaintiff has suffered concrete harm to her property. But the second lawsuit may not proceed because that plaintiff has not suffered any physical, monetary, or cognizable intangible harm traditionally recognized as providing a basis for a lawsuit in American courts. An uninjured plaintiff who sues in those circumstances is, by definition, not seeking to remedy any harm to herself but instead is merely seeking to ensure a defendant’s “compliance with regulatory law” (and, of course, to obtain some money via the statutory damages). Spokeo, 578 U. S., at 345 (Thomas, J., concurring) (internal quotation marks omitted); see Steel Co. , 523 U. S., at 106–107. Those are not grounds for Article III standing.[ 1 ] As those examples illustrate, if the law of Article III did not require plaintiffs to demonstrate a “concrete harm,” Congress could authorize virtually any citizen to bring a statutory damages suit against virtually any defendant who violated virtually any federal law. Such an expansive understanding of Article III would flout constitutional text, history, and precedent. In our view, the public interest that private entities comply with the law cannot “be converted into an individual right by a statute that denominates it as such, and that permits all citizens (or, for that matter, a subclass of citizens who suffer no distinctive concrete harm) to sue.” Lujan , 504 U. S., at 576–577.[ 2 ] A regime where Congress could freely authorize unharmed plaintiffs to sue defendants who violate federal law not only would violate Article III but also would infringe on the Executive Branch’s Article II authority. We accept the “displacement of the democratically elected branches when necessary to decide an actual case.” Roberts, 42 Duke L. J. , at 1230. But otherwise, the choice of how to prioritize and how aggressively to pursue legal actions against defendants who violate the law falls within the discretion of the Executive Branch, not within the purview of private plaintiffs (and their attorneys). Private plaintiffs are not accountable to the people and are not charged with pursuing the public interest in enforcing a defendant’s general compliance with regulatory law. See Lujan , 504 U. S., at 577. In sum, the concrete-harm requirement is essential to the Constitution’s separation of powers. To be sure, the concrete-harm requirement can be difficult to apply in some cases. Some advocate that the concrete-harm requirement be ditched altogether, on the theory that it would be more efficient or convenient to simply say that a statutory violation and a cause of action suffice to afford a plaintiff standing. But as the Court has often stated, “the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution.” Chadha , 462 U. S., at 944. So it is here.[ 3 ] III We now apply those fundamental standing principles to this lawsuit. We must determine whether the 8,185 class members have standing to sue TransUnion for its alleged violations of the Fair Credit Reporting Act. The plaintiffs argue that TransUnion failed to comply with statutory obligations (i) to follow reasonable procedures to ensure the accuracy of credit files so that the files would not include OFAC alerts labeling the plaintiffs as potential terrorists; and (ii) to provide a consumer, upon request, with his or her complete credit file, including a summary of rights. Some preliminaries: As the party invoking federal jurisdiction, the plaintiffs bear the burden of demonstrating that they have standing. See Lujan v. Defenders of Wildlife , 504 U.S. 555 , 561 (1992). Every class member must have Article III standing in order to recover individual damages. “Article III does not give federal courts the power to order relief to any uninjured plaintiff, class action or not.” Tyson Foods, Inc. v. Bouaphakeo , 577 U.S. 442, 466 (2016) (Roberts, C. J., concurring).[ 4 ] Plaintiffs must maintain their personal interest in the dispute at all stages of litigation. Davis v. Federal Election Comm’n , 554 U.S. 724 , 733 (2008). A plaintiff must demonstrate standing “with the manner and degree of evidence required at the successive stages of the litigation.” Lujan , 504 U. S., at 561. Therefore, in a case like this that proceeds to trial, the specific facts set forth by the plaintiff to support standing “must be supported adequately by the evidence adduced at trial.” Ibid. (internal quotation marks omitted). And standing is not dispensed in gross; rather, plaintiffs must demonstrate standing for each claim that they press and for each form of relief that they seek (for example, injunctive relief and damages). Davis , 554 U. S., at 734; Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. , 528 U.S. 167 , 185 (2000). A We first address the plaintiffs’ claim that TransUnion failed to “follow reasonable procedures to assure maximum possible accuracy” of the plaintiffs’ credit files maintained by TransUnion. 15 U. S. C. §1681e(b). In particular, the plaintiffs argue that TransUnion did not do enough to ensure that OFAC alerts labeling them as potential terrorists were not included in their credit files. Assuming that the plaintiffs are correct that TransUnion violated its obligations under the Fair Credit Reporting Act to use reasonable procedures in internally maintaining the credit files, we must determine whether the 8,185 class members suffered concrete harm from TransUnion’s failure to employ reasonable procedures.[ 5 ] 1 Start with the 1,853 class members (including the named plaintiff Ramirez) whose reports were disseminated to third-party businesses. The plaintiffs argue that the publication to a third party of a credit report bearing a misleading OFAC alert injures the subject of the report. The plaintiffs contend that this injury bears a “close relationship” to a harm traditionally recognized as providing a basis for a lawsuit in American courts—namely, the reputational harm associated with the tort of defamation. Spokeo, Inc. v. Robins , 578 U.S. 330, 341 (2016). We agree with the plaintiffs. Under longstanding American law, a person is injured when a defamatory statement “that would subject him to hatred, contempt, or ridicule” is published to a third party. Milkovich v. Lorain Journal Co. , 497 U.S. 1 , 13 (1990) (internal quotation marks omitted); Gertz v. Robert Welch, Inc. , 418 U.S. 323 , 349 (1974); see also Restatement of Torts §559 (1938). TransUnion provided third parties with credit reports containing OFAC alerts that labeled the class members as potential terrorists, drug traffickers, or serious criminals. The 1,853 class members therefore suffered a harm with a “close relationship” to the harm associated with the tort of defamation. We have no trouble concluding that the 1,853 class members suffered a concrete harm that qualifies as an injury in fact. TransUnion counters that those 1,853 class members did not suffer a harm with a “close relationship” to defamation because the OFAC alerts on the disseminated credit reports were only misleading and not literally false. See id. , §558. TransUnion points out that the reports merely identified a consumer as a “ potential match” to an individual on the OFAC list—a fact that TransUnion says is not technically false. In looking to whether a plaintiff ’s asserted harm has a “close relationship” to a harm traditionally recognized as providing a basis for a lawsuit in American courts, we do not require an exact duplicate. The harm from being labeled a “potential terrorist” bears a close relationship to the harm from being labeled a “terrorist.” In other words, the harm from a misleading statement of this kind bears a sufficiently close relationship to the harm from a false and defamatory statement. In short, the 1,853 class members whose reports were disseminated to third parties suffered a concrete injury in fact under Article III. 2 The remaining 6,332 class members are a different story. To be sure, their credit files, which were maintained by TransUnion, contained misleading OFAC alerts. But the parties stipulated that TransUnion did not provide those plaintiffs’ credit information to any potential creditors during the class period from January 2011 to July 2011. Given the absence of dissemination, we must determine whether the 6,332 class members suffered some other concrete harm for purposes of Article III. The initial question is whether the mere existence of a misleading OFAC alert in a consumer’s internal credit file at TransUnion constitutes a concrete injury. As Judge Tatel phrased it in a similar context, “if inaccurate information falls into” a consumer’s credit file, “does it make a sound?” Owner-Operator Independent Drivers Assn., Inc. v. United States Dept. of Transp. , 879 F.3d 339, 344 (CADC 2018). Writing the opinion for the D. C. Circuit in Owner-Operator , Judge Tatel answered no. Publication is “essential to liability” in a suit for defamation. Restatement of Torts §577, Comment a , at 192. And there is “no historical or common-law analog where the mere existence of inaccurate information, absent dissemination, amounts to concrete injury.” Owner-Operator , 879 F. 3d, at 344–345. “Since the basis of the action for words was the loss of credit or fame, and not the insult, it was always necessary to show a publication of the words.” J. Baker, An Introduction to English Legal History 474 (5th ed. 2019). Other Courts of Appeals have similarly recognized that, as Judge Colloton summarized, the “retention of information lawfully obtained, without further disclosure, traditionally has not provided the basis for a lawsuit in American courts,” meaning that the mere existence of inaccurate information in a database is insufficient to confer Article III standing. Braitberg v. Charter Communications, Inc. , 836 F.3d 925, 930 (CA8 2016); see Gubala v. Time Warner Cable, Inc. , 846 F.3d 909, 912 (CA7 2017). The standing inquiry in this case thus distinguishes between (i) credit files that consumer reporting agencies maintain internally and (ii) the consumer credit reports that consumer reporting agencies disseminate to third-party creditors. The mere presence of an inaccuracy in an internal credit file, if it is not disclosed to a third party, causes no concrete harm. In cases such as these where allegedly inaccurate or misleading information sits in a company database, the plaintiffs’ harm is roughly the same, legally speaking, as if someone wrote a defamatory letter and then stored it in her desk drawer. A letter that is not sent does not harm anyone, no matter how insulting the letter is. So too here.[ 6 ] Because the plaintiffs cannot demonstrate that the misleading information in the internal credit files itself constitutes a concrete harm, the plaintiffs advance a separate argument based on an asserted risk of future harm . They say that the 6,332 class members suffered a concrete injury for Article III purposes because the existence of misleading OFAC alerts in their internal credit files exposed them to a material risk that the information would be disseminated in the future to third parties and thereby cause them harm. The plaintiffs rely on language from Spokeo where the Court said that “the risk of real harm” (or as the Court otherwise stated, a “material risk of harm”) can sometimes “satisfy the requirement of concreteness.” 578 U. S., at 341–342 (citing Clapper v. Amnesty Int’l USA , 568 U.S. 398 (2013)). To support its statement that a material risk of future harm can satisfy the concrete-harm requirement, Spokeo cited this Court’s decision in Clapper . But importantly, Clapper involved a suit for injunctive relief . As this Court has recognized, a person exposed to a risk of future harm may pursue forward-looking, injunctive relief to prevent the harm from occurring, at least so long as the risk of harm is sufficiently imminent and substantial. See Clapper , 568 U. S., at 414, n. 5; Los Angeles v. Lyons , 461 U.S. 95 , 102 (1983); see also Gubala , 846 F. 3d, at 912. But a plaintiff must “demonstrate standing separately for each form of relief sought.” Friends of the Earth , 528 U. S., at 185. Therefore, a plaintiff ’s standing to seek injunctive relief does not necessarily mean that the plaintiff has standing to seek retrospective damages. TransUnion advances a persuasive argument that in a suit for damages, the mere risk of future harm, standing alone, cannot qualify as a concrete harm—at least unless the exposure to the risk of future harm itself causes a separate concrete harm. Brief for Petitioner 39, n. 4; Tr. of Oral Arg. 36.[ 7 ] TransUnion contends that if an individual is exposed to a risk of future harm, time will eventually reveal whether the risk materializes in the form of actual harm. If the risk of future harm materializes and the individual suffers a concrete harm, then the harm itself, and not the pre-existing risk, will constitute a basis for the person’s injury and for damages. If the risk of future harm does not materialize, then the individual cannot establish a concrete harm sufficient for standing, according to TransUnion. Consider an example. Suppose that a woman drives home from work a quarter mile ahead of a reckless driver who is dangerously swerving across lanes. The reckless driver has exposed the woman to a risk of future harm, but the risk does not materialize and the woman makes it home safely. As counsel for TransUnion stated, that would ordinarily be cause for celebration, not a lawsuit. Id., at 8. But if the reckless driver crashes into the woman’s car, the situation would be different, and (assuming a cause of action) the woman could sue the driver for damages. The plaintiffs note that Spokeo cited libel and slander per se as examples of cases where, as the plaintiffs see it, a mere risk of harm suffices for a damages claim. But as Judge Tatel explained for the D. C. Circuit, libel and slander per se “require evidence of publication .” Owner-Operator , 879 F. 3d, at 345. And for those torts, publication is generally presumed to cause a harm, albeit not a readily quantifiable harm. As Spokeo noted, “the law has long permitted recovery by certain tort victims even if their harms may be difficult to prove or measure .” 578 U. S., at 341 (emphasis added). But there is a significant difference between (i) an actual harm that has occurred but is not readily quantifiable, as in cases of libel and slander per se , and (ii) a mere risk of future harm. By citing libel and slander per se , Spokeo did not hold that the mere risk of future harm, without more, suffices to demonstrate Article III standing in a suit for damages. Here, the 6,332 plaintiffs did not demonstrate that the risk of future harm materialized—that is, that the inaccurate OFAC alerts in their internal TransUnion credit files were ever provided to third parties or caused a denial of credit. Nor did those plaintiffs present evidence that the class members were independently harmed by their exposure to the risk itself—that is, that they suffered some other injury (such as an emotional injury) from the mere risk that their credit reports would be provided to third-party businesses. Therefore, the 6,332 plaintiffs’ argument for standing for their damages claims based on an asserted risk of future harm is unavailing. Even apart from that fundamental problem with their argument based on the risk of future harm, the plaintiffs did not factually establish a sufficient risk of future harm to support Article III standing. As Judge McKeown explained in her dissent, the risk of future harm that the 6,332 plaintiffs identified—the risk of dissemination to third parties—was too speculative to support Article III standing. 951 F.3d 1008, 1040 (2020); see Whitmore v. Arkansas , 495 U.S. 149 , 157 (1990). The plaintiffs claimed that TransUnion could have divulged their misleading credit information to a third party at any moment. But the plaintiffs did not demonstrate a sufficient likelihood that their individual credit information would be requested by third-party businesses and provided by TransUnion during the relevant time period. Nor did the plaintiffs demonstrate that there was a sufficient likelihood that TransUnion would otherwise intentionally or accidentally release their information to third parties. “Because no evidence in the record establishes a serious likelihood of disclosure, we cannot simply presume a material risk of concrete harm.” 951 F. 3d, at 1040 (opinion of McKeown, J.). Moreover, the plaintiffs did not present any evidence that the 6,332 class members even knew that there were OFAC alerts in their internal TransUnion credit files. If those plaintiffs prevailed in this case, many of them would first learn that they were “injured” when they received a check compensating them for their supposed “injury.” It is difficult to see how a risk of future harm could supply the basis for a plaintiff ’s standing when the plaintiff did not even know that there was a risk of future harm. Finally, the plaintiffs advance one last argument for why the 6,332 class members are similarly situated to the other 1,853 class members and thus should have standing. The 6,332 plaintiffs note that they sought damages for the entire 46-month period permitted by the statute of limitations, whereas the stipulation regarding dissemination covered only 7 of those months. They argue that the credit reports of many of those 6,332 class members were likely also sent to third parties outside of the period covered by the stipulation because all of the class members requested copies of their reports, and consumers usually do not request copies unless they are contemplating a transaction that would trigger a credit check. That is a serious argument, but in the end, we conclude that it fails to support standing for the 6,332 class members. The plaintiffs had the burden to prove at trial that their reports were actually sent to third-party businesses. The inferences on which the argument rests are too weak to demonstrate that the reports of any particular number of the 6,332 class members were sent to third-party businesses. The plaintiffs’ attorneys could have attempted to show that some or all of the 6,332 class members were injured in that way. They presumably could have sought the names and addresses of those individuals, and they could have contacted them. In the face of the stipulation, which pointedly failed to demonstrate dissemination for those class members, the inferences on which the plaintiffs rely are insufficient to support standing. Cf. Interstate Circuit, Inc. v. United States , 306 U.S. 208 , 226 (1939) (“The production of weak evidence when strong is available can lead only to the conclusion that the strong would have been adverse”). In sum, the 6,332 class members whose internal TransUnion credit files were not disseminated to third-party businesses did not suffer a concrete harm. By contrast, the 1,853 class members (including Ramirez) whose credit reports were disseminated to third-party businesses during the class period suffered a concrete harm. B We next address the plaintiffs’ standing to recover damages for two other claims in the complaint: the disclosure claim and the summary-of-rights claim. Those two claims are intertwined. In the disclosure claim, the plaintiffs alleged that TransUnion breached its obligation to provide them with their complete credit files upon request. According to the plaintiffs, TransUnion sent the plaintiffs copies of their credit files that omitted the OFAC information, and then in a second mailing sent the OFAC information. See §1681g(a)(1). In the summary-of-rights claim, the plaintiffs further asserted that TransUnion should have included another summary of rights in that second mailing—the mailing that included the OFAC information. See §1681g(c)(2). As the plaintiffs note, the disclosure and summary-of-rights requirements are designed to protect consumers’ interests in learning of any inaccuracies in their credit files so that they can promptly correct the files before they are disseminated to third parties. In support of standing, the plaintiffs thus contend that the TransUnion mailings were formatted incorrectly and deprived them of their right to receive information in the format required by statute. But the plaintiffs have not demonstrated that the format of TransUnion’s mailings caused them a harm with a close relationship to a harm traditionally recognized as providing a basis for a lawsuit in American courts. See Spokeo , 578 U. S., at 341. In fact, they do not demonstrate that they suffered any harm at all from the formatting violations. The plaintiffs presented no evidence that, other than Ramirez, “a single other class member so much as opened the dual mailings,” “nor that they were confused, distressed, or relied on the information in any way.” 951 F. 3d, at 1039, 1041 (opinion of McKeown, J.) (emphasis added). The plaintiffs put forth no evidence, moreover, that the plaintiffs would have tried to correct their credit files—and thereby prevented dissemination of a misleading report—had they been sent the information in the proper format. Ibid. Without any evidence of harm caused by the format of the mailings, these are “bare procedural violation[s], divorced from any concrete harm.” Spokeo , 578 U. S., at 341. That does not suffice for Article III standing.[ 8 ] The plaintiffs separately argue that TransUnion’s formatting violations created a risk of future harm. Specifically, the plaintiffs contend that consumers who received the information in this dual-mailing format were at risk of not learning about the OFAC alert in their credit files. They say that they were thus at risk of not being able to correct their credit files before TransUnion disseminated credit reports containing the misleading information to third-party businesses. As noted above, the risk of future harm on its own does not support Article III standing for the plaintiffs’ damages claim. In any event, the plaintiffs made no effort here to explain how the formatting error prevented them from contacting TransUnion to correct any errors before misleading credit reports were disseminated to third-party businesses. To reiterate, there is no evidence that “a single other class member so much as opened the dual mailings,” “nor that they were confused, distressed, or relied on the information in any way.” 951 F. 3d, at 1039, 1041 (opinion of McKeown, J.). For its part, the United States as amicus curiae , but not the plaintiffs, separately asserts that the plaintiffs suffered a concrete “informational injury” under several of this Court’s precedents. See Federal Election Comm’n v. Akins , 524 U.S. 11 (1998); Public Citizen v. Department of Justice , 491 U.S. 440 (1989). We disagree. The plaintiffs did not allege that they failed to receive any required information. They argued only that they received it in the wrong format . Therefore, Akins and Public Citizen do not control here. In addition, those cases involved denial of information subject to public-disclosure or sunshine laws that entitle all members of the public to certain information. This case does not involve such a public-disclosure law. See Casillas v. Madison Avenue Assocs., Inc. , 926 F.3d 329, 338 (CA7 2019); Trichell v. Midland Credit Mgmt., Inc. , 964 F.3d 990, 1004 (CA11 2020). Moreover, the plaintiffs have identified no “downstream consequences” from failing to receive the required information. Trichell , 964 F. 3d, at 1004. They did not demonstrate, for example, that the alleged information deficit hindered their ability to correct erroneous information before it was later sent to third parties. An “asserted informational injury that causes no adverse effects cannot satisfy Article III.” Ibid. *  *  * No concrete harm, no standing. The 1,853 class members whose credit reports were provided to third-party businesses suffered a concrete harm and thus have standing as to the reasonable-procedures claim. The 6,332 class members whose credit reports were not provided to third-party businesses did not suffer a concrete harm and thus do not have standing as to the reasonable-procedures claim. As for the claims pertaining to the format of TransUnion’s mailings, none of the 8,185 class members other than the named plaintiff Ramirez suffered a concrete harm. We reverse the judgment of the U. S. Court of Appeals for the Ninth Circuit and remand the case for further proceedings consistent with this opinion. In light of our conclusion about Article III standing, we need not decide whether Ramirez’s claims were typical of the claims of the class under Rule 23. On remand, the Ninth Circuit may consider in the first instance whether class certification is appropriate in light of our conclusion about standing. It is so ordered. Notes 1 The lead dissent notes that the terminology of injury in fact became prevalent only in the latter half of the 20th century. That is unsurprising because until the 20th century, Congress did not often afford federal “citizen suit”-style causes of action to private plaintiffs who did not suffer concrete harms. For example, until the 20th century, Congress generally did not create “citizen suit” causes of action for private plaintiffs to sue the Government. See Magill, Standing for the Public, 95 Va. L. Rev. 1131, 1186–1187 (2009). Moreover, until Abbott Laboratories v. Gardner , 387 U.S. 136 (1967), a plaintiff often could not bring a pre-enforcement suit against a Government agency or official under the Administrative Procedure Act arguing that an agency rule was unlawful; instead, a party could raise such an argument only in an enforcement action. Likewise, until the 20th century, Congress rarely created “citizen suit”-style causes of action for suits against private parties by private plaintiffs who had not suffered a concrete harm. All told, until the 20th century, this Court had little reason to emphasize the injury-in-fact requirement because, until the 20th century, there were relatively few instances where litigants without concrete injuries had a cause of action to sue in federal court. The situation has changed markedly, especially over the last 50 years or so. During that time, Congress has created many novel and expansive causes of action that in turn have required greater judicial focus on the requirements of Article III. See, e.g., Spokeo, Inc. v. Robins , 578 U.S. 330 (2016); Summers v. Earth Island Institute , 555 U.S. 488 (2009); Lujan v. Defenders of Wildlife , 504 U.S. 555 (1992). 2 A plaintiff must show that the injury is not only concrete but also particularized. But if there were no concrete-harm requirement, the requirement of a particularized injury would do little or nothing to constrain Congress from freely creating causes of action for vast classes of unharmed plaintiffs to sue any defendants who violate any federal law. (Congress might, for example, provide that everyone has an individual right to clean air and can sue any defendant who violates any air-pollution law.) That is one reason why the Court has been careful to emphasize that concreteness and particularization are separate requirements. See Spokeo , 578 U. S., at 339–340; see generally Bayefsky, Constitutional Injury and Tangibility, 59 Wm. & Mary L. Rev. 2285, 2298–2300, 2368 (2018). 3 The lead dissent would reject the core standing principle that a plaintiff must always have suffered a concrete harm, and would cast aside decades of precedent articulating that requirement, such as Spokeo , Summers , and Lujan . Post, at 9–11 (opinion of Thomas, J.). As we see it, the dissent’s theory would largely outsource Article III to Congress. As we understand the dissent’s theory, a suit seeking to enforce “general compliance with regulatory law” would not suffice for Article III standing because such a suit seeks to vindicate a duty owed to the whole community. Spokeo , 578 U. S., at 345 (Thomas, J., concurring) (internal quotation marks omitted). But under the dissent’s theory, so long as Congress frames a defendant’s obligation to comply with regulatory law as an obligation owed to individuals , any suit to vindicate that obligation suddenly suffices for Article III. Suppose, for example, that Congress passes a law purporting to give all American citizens an individual right to clean air and clean water, as well as a cause of action to sue and recover $100 in damages from any business that violates any pollution law anywhere in the United States. The dissent apparently would find standing in such a case. We respectfully disagree. In our view, unharmed plaintiffs who seek to sue under such a law are still doing no more than enforcing general compliance with regulatory law. And under Article III and this Court’s precedents, Congress may not authorize plaintiffs who have not suffered concrete harms to sue in federal court simply to enforce general compliance with regulatory law. 4 We do not here address the distinct question whether every class member must demonstrate standing before a court certifies a class. See, e.g., Cordoba v. DIRECTV, LLC , 942 F.3d 1259, 1277 (CA11 2019). 5 For purposes of this case, the parties have assumed that TransUnion violated the statute even with respect to those plaintiffs whose OFAC alerts were never disseminated to third-party businesses. But see Washington v. CSC Credit Servs. Inc. , 199 F.3d 263 , 267 (CA5 2000). We take no position on that issue. 6 For the first time in this Court, the plaintiffs also argue that TransUnion “published” the class members’ information internally—for example, to employees within TransUnion and to the vendors that printed and sent the mailings that the class members received. That new argument is forfeited. In any event, it is unavailing. Many American courts did not traditionally recognize intra-company disclosures as actionable publications for purposes of the tort of defamation. See, e.g., Chalkley v. Atlantic Coast Line R. Co. , 150 Va. 301, 326–328, 143 S.E. 631, 638–639 (1928). Nor have they necessarily recognized disclosures to printing vendors as actionable publications. See, e.g., Mack v. Delta Air Lines , Inc. , 639 Fed. Appx. 582, 586 (CA11 2016). Moreover, even the plaintiffs’ cited cases require evidence that the defendant actually “brought an idea to the perception of another,” Restatement of Torts §559, Comment a , p. 140 (1938), and thus generally require evidence that the document was actually read and not merely processed, cf. Ostrowe v. Lee , 256 N.Y. 36, 38–39, 175 N.E. 505, 505–506 (1931) (Cardozo, C. J.). That evidence is lacking here. In short, the plaintiffs’ internal publication theory circumvents a fundamental requirement of an ordinary defamation claim—publication—and does not bear a sufficiently “close relationship” to the traditional defamation tort to qualify for Article III standing. 7 For example, a plaintiff ’s knowledge that he or she is exposed to a risk of future physical, monetary, or reputational harm could cause its own current emotional or psychological harm. We take no position on whether or how such an emotional or psychological harm could suffice for Article III purposes—for example, by analogy to the tort of intentional infliction of emotional distress. See Reply Brief 14; Tr. of Oral Arg. 30. The plaintiffs here have not relied on such a theory of Article III harm. They have not claimed an emotional distress injury from the risk that a misleading credit report might be sent to a third-party business. Nor could they do so, given that the 6,332 plaintiffs have not established that they were even aware of the misleading information in the internal credit files maintained at TransUnion. 8 The District Court and the Court of Appeals concluded that Ramirez (in addition to the other 8,184 class members) had standing as to those two claims. In this Court, TransUnion has not meaningfully contested Ramirez’s individual standing as to those two claims. We have no reason or basis to disturb the lower courts’ conclusion on Ramirez’s individual standing as to those two claims. SUPREME COURT OF THE UNITED STATES _________________ No. 20–297 _________________ TRANSUNION LLC, PETITIONER v. SERGIO L. RAMIREZ on writ of certiorari to the united states court of appeals for the ninth circuit [June 25, 2021] Justice Thomas, with whom Justice Breyer, Justice Sotomayor, and Justice Kagan join, dissenting. TransUnion generated credit reports that erroneously flagged many law-abiding people as potential terrorists and drug traffickers. In doing so, TransUnion violated several provisions of the Fair Credit Reporting Act (FCRA) that entitle consumers to accuracy in credit-reporting procedures; to receive information in their credit files; and to receive a summary of their rights. Yet despite Congress’ judgment that such misdeeds deserve redress, the majority decides that TransUnion’s actions are so insignificant that the Constitution prohibits consumers from vindicating their rights in federal court. The Constitution does no such thing. I For decades, the Treasury Department’s Office of Foreign Assets Control (OFAC) has compiled a list of “Specially Designated Nationals.” The list largely includes terrorists and drug traffickers, among other unseemly types. And, as a general matter, Americans are barred from doing business with those listed. In the wake of the September 11 attacks, TransUnion began to sell a new (and more expensive) type of credit report that flagged whether an individual’s name matched a name found on that list. The system TransUnion used to decide which individuals to flag was rather rudimentary. It compared only the consumer’s first and last name with the names on the OFAC list. If the names were identical or similar, TransUnion included in the consumer’s report an “OFAC ADVISOR ALERT,” explaining that the consumer’s name matches a name on the OFAC database. See, e.g., 951 F.3d 1008, 1017, 1019 (CA9 2020) (“ ‘Cortez’ would match with ‘Cortes’ ”). TransUnion did not compare birth dates, middle initials, Social Security numbers, or any other available identifier routinely used to collect and verify credit-report data. Id. , at 1019, n. 2. In 2005, a consumer sued. TransUnion had sold an OFAC credit report about this consumer to a car dealership. The report flagged her—Sandra Jean Cortez, born in May 1944—as a match for a person on the OFAC list: Sandra Cortes Quintero, born in June 1971. TransUnion withheld this OFAC alert from the credit report that Cortez had requested. And despite Cortez’s efforts to have the alert removed, TransUnion kept the alert in place for years. After a trial, the jury returned a verdict in the consumer’s favor on four FCRA claims, two of which are similar to claims at issue here: (1)  TransUnion failed to follow reasonable procedures that would ensure maximum possible accuracy, 15 U. S. C. §1681e(b); and (2)  TransUnion failed to provide Cortez all information in her file despite her requests, §1681g(a). See Cortez v. Trans Union, LLC , 617 F.3d 688, 696–706 (CA3 2010). The jury awarded $50,000 in actual damages and $750,000 in punitive damages, and it also took the unusual step of including on the verdict form a handwritten note urging TransUnion to “completely revam[p]” its business practices. App. to Brief for Respondent 2a. The District Court reduced the punitive damages award to $100,000, which the Third Circuit affirmed on appeal, stressing that TransUnion’s failure to, “at the very least, compar[e] birth dates when they are available,” was “reprehensible.” 617 F. 3d, at 723. But TransUnion “made surprisingly few changes” after this verdict. 951 F. 3d, at 1021. It did not begin comparing birth dates. Or middle initials. Or citizenship. In fact, TransUnion did not compare any new piece of information. Instead, it hedged its language saying a consumer was a “ ‘potential match’ ” rather than saying the person was a “ ‘match.’ ” Ibid. And instead of listing matches for similar names, TransUnion required that the first and last names match exactly. Unsurprisingly, these reports kept flagging law-abiding Americans as potential terrorists and drug traffickers. And equally unsurprising, someone else sued. That brings us to this case. Sergio Ramirez visited a car dealership, offered to buy a car, and negotiated the terms. The dealership then ran a joint credit check on Ramirez and his wife. The salesperson said that the check revealed that Ramirez was on “ ‘a terrorist list,’ ” so the salesperson refused to close the deal with him. Id., at 1017. Ramirez requested and received a copy of his credit report from TransUnion. The report purported to be “complete and reliable,” but it made no mention of the OFAC alert. See App. 88–91. TransUnion later sent a separate “ ‘courtesy’ ” letter, which informed Ramirez that his “TransUnion credit report” had “been mailed to [him] separately.” Id. , at 92. That letter informed Ramirez that he was a potential match to someone in the OFAC database, but it never revealed that any OFAC information was present on his credit report. See id. , at 92–94. TransUnion opted not to include with this letter a description of Ramirez’s rights under the FCRA or any information on how to dispute the OFAC match. 951 F. 3d, at 1018. The letter merely directed Ramirez to visit the Department of Treasury’s website or to call or write TransUnion if Ramirez had any additional questions or concerns. Ramirez sued, asserting three claims under the FCRA: TransUnion willfully failed to follow reasonable procedures to assure maximum possible accuracy of the information concerning him, §1681e(b); TransUnion willfully failed to disclose to him all the information in his credit file by withholding the true version of his credit report, §1681g(a)(1); and TransUnion willfully failed to provide a summary of rights when it sent him the courtesy letter, §1681g(c)(2). Ramirez also sought to represent a class of individuals who had received a similar OFAC letter from TransUnion. “[E]veryone in the class: (1) was falsely labeled . . . a potential OFAC match; (2) requested a copy of his or her credit report from TransUnion; and (3) in response, received a credit-report mailing with the OFAC alert redacted and a separate OFAC Letter mailing with no summary of rights.” Id. , at 1022. The jury found in favor of the class on all three claims. And because it also determined that TransUnion’s misconduct was “willfu[l],” §1681n(a), the jury awarded each class member $984.22 in statutory damages (about $8 million total) and $6,353.08 in punitive damages (about $52 million total). TransUnion appealed, arguing that the class members lacked standing. The Ninth Circuit disagreed, explaining that “TransUnion’s reckless handling of OFAC information exposed every class member to a real risk of harm to their concrete privacy, reputational, and informational interests protected by the FCRA.” Id., at 1037.[ 1 ] II A Article III vests “[t]he judicial Power of the United States” in this Court “and in such inferior Courts as the Congress may from time to time ordain and establish.” §1. This power “shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” §2 (emphasis added). When a federal court has jurisdiction over a case or controversy, it has a “virtually unflagging obligation” to exercise it. Colorado River Water Conservation Dist. v. United States , 424 U.S. 800 , 817 (1976). The mere filing of a complaint in federal court, however, does not a case (or controversy) make. Article III “does not extend the judicial power to every violation of the constitution” or federal law “which may possibly take place.” Cohens v. Virginia , 6 Wheat. 264, 405 (1821) . Rather, the power extends only “to ‘a case in law or equity,’ in which a right , under such law, is asserted.” Ibid. (emphasis added). Key to the scope of the judicial power, then, is whether an individual asserts his or her own rights. At the time of the founding, whether a court possessed judicial power over an action with no showing of actual damages depended on whether the plaintiff sought to enforce a right held privately by an individual or a duty owed broadly to the community. See Spokeo, Inc. v. Robins , 578 U.S. 330, 344–346 (2016) (Thomas, J., concurring); see also Thole v. U. S. Bank N. A. , 590 U. S. ___, ___–___ (2020) (same) (slip op., at 1–2); 3 W. Blackstone, Commentaries on the Laws of England 2 (J. Chitty ed. 1826); 4 id., at 5. Where an individual sought to sue someone for a violation of his private rights, such as trespass on his land, the plaintiff needed only to allege the violation. See Entick v. Carrington , 2 Wils. K. B. 275, 291, 95 Eng. Rep. 807, 817 (K. B. 1765). Courts typically did not require any showing of actual damage. See Uzuegbunam v. Preczewski , 592 U. S. ___, ___–___ (2021) (slip op., at 5–6). But where an individual sued based on the violation of a duty owed broadly to the whole community, such as the overgrazing of public lands, courts required “not only injuria [legal injury] but also damnum [damage].” Spokeo , 578 U. S., at 346 (Thomas, J., concurring) (citing Robert Marys’s Case , 9 Co. Rep. 111b, 112b, 77 Eng. Rep. 895, 898–899 (K. B. 1613); brackets in original). This distinction mattered not only for traditional common-law rights, but also for newly created statutory ones. The First Congress enacted a law defining copyrights and gave copyright holders the right to sue infringing persons in order to recover statutory damages, even if the holder “could not show monetary loss.” Muransky v. Godiva Chocolatier, Inc. , 979 F.3d 917, 972 (CA11 2020) (Jordan, J., dissenting) (citing Act of May 31, 1790, §2, 1Stat. 124–125). In the patent context, a defendant challenged an infringement suit brought under a similar law. Along the lines of what TransUnion argues here, the infringer contended that “the making of a machine cannot be an offence, because no action lies, except for actual damage, and there can be no actual damages, or even a rule for damages, for an infringement by making a machine.” Whittemore v. Cutter , 29 F. Cas. 1120, 1121 (No. 17,600) (CC Mass. 1813). Riding circuit, Justice Story rejected that theory, noting that the plaintiff could sue in federal court merely by alleging a violation of a private right: “[W]here the law gives an action for a particular act, the doing of that act imports of itself a damage to the party” because “[e]very violation of a right imports some damage.” Ibid. ; cf. Gayler v. Wilder , 10 How. 477, 494 (1851) (patent rights “did not exist at common law”).[ 2 ] The principle that the violation of an individual right gives rise to an actionable harm was widespread at the founding, in early American history, and in many modern cases. See Uzuegbunam , 592 U. S., at ___–___ (slip op., at 5–8) (collecting cases); Havens Realty Corp. v. Coleman , 455 U.S. 363 , 373 (1982) (“[T]he actual or threatened injury required by Art. III may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing” (citing cases; brackets and internal quotation marks omitted)). And this understanding accords proper respect for the power of Congress and other legislatures to define legal rights. No one could seriously dispute, for example, that a violation of property rights is actionable, but as a general matter, “[p]roperty rights are created by the State.” Palazzolo v. Rhode Island , 533 U.S. 606 , 626 (2001). In light of this history, tradition, and common practice, our test should be clear: So long as a “statute fixes a minimum of recovery . . . , there would seem to be no doubt of the right of one who establishes a technical ground of action to recover this minimum sum without any specific showing of loss.” T. Cooley, Law of Torts *271.[ 3 ] While the Court today discusses the supposed failure to show “injury in fact,” courts for centuries held that injury in law to a private right was enough to create a case or controversy. B Here, each class member established a violation of his or her private rights. The jury found that TransUnion violated three separate duties created by statute. See App. 690. All three of those duties are owed to individuals, not to the community writ large. Take §1681e(b), which requires a consumer reporting agency to “follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” This statute creates a duty: to use reasonable procedures to assure maximum possible accuracy. And that duty is particularized to an individual: the subject of the report. Section 1681g does the same. It requires an agency to “clearly and accurately disclose” to a consumer, upon his request, “[a]ll information in the consumer’s file at the time of the request” and to include a written “summary of rights” with that “written disclosure.” §§1681g(a), (c)(2). Those directives likewise create duties: provide all information in the consumer’s file and accompany the disclosure with a summary of rights. And these too are owed to a single person: the consumer who requests the information. Were there any doubt that consumer reporting agencies owe these duties to specific individuals—and not to the larger community—Congress created a cause of action providing that “[a]ny person who willfully fails to comply” with an FCRA requirement “with respect to any consumer is liable to that consumer .” §1681n(a) (emphasis added). If a consumer reporting agency breaches any FCRA duty owed to a specific consumer, then that individual (not all consumers) may sue the agency. No one disputes that each class member possesses this cause of action. And no one disputes that the jury found that TransUnion violated each class member’s individual rights. The plaintiffs thus have a sufficient injury to sue in federal court. C The Court chooses a different approach. Rejecting this history, the majority holds that the mere violation of a personal legal right is not —and never can be—an injury sufficient to establish standing. What matters for the Court is only that the “injury in fact be ‘concrete.’ ” Ante, at 8. “No concrete harm, no standing.” Ante, at 1, 27. That may be a pithy catchphrase, but it is worth pausing to ask why “concrete” injury in fact should be the sole inquiry. After all, it was not until 1970—“180 years after the ratification of Article III”—that this Court even introduced the “injury in fact” (as opposed to injury in law) concept of standing. Sierra v. Hallandale Beach , 996 F.3d 1110, 1117 (CA11 2021) (Newsom, J., concurring). And the concept then was not even about constitutional standing; it concerned a statutory cause of action under the Administrative Procedure Act. See Association of Data Processing Service Organizations, Inc. v. Camp , 397 U.S. 150 , 153 (1970) (explaining that the injury-in-fact requirement “concerns, apart from the ‘case’ or ‘controversy’ test, the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question”). The Court later took this statutory requirement and began to graft it onto its constitutional standing analysis. See, e.g., Warth v. Seldin , 422 U.S. 490 (1975). But even then, injury in fact served as an additional way to get into federal court. Article III injury still could “exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing.’ ” Id. , at 500 (quoting Linda R. S. v. Richard D. , 410 U.S. 614 , 617, n. 3 (1973)). So the introduction of an injury-in-fact requirement, in effect, “represented a substantial broadening of access to the federal courts.” Simon v. Eastern Ky. Welfare Rights Organization , 426 U.S. 26 , 39 (1976). A plaintiff could now invoke a federal court’s judicial power by establishing injury by virtue of a violated legal right or by alleging some other type of “personal interest.” Ibid. In the context of public rights, the Court continued to require more than just a legal violation. In Lujan v. Defenders of Wildlife , 504 U.S. 555 (1992), for example, the Court concluded that several environmental organizations lacked standing to challenge a regulation about interagency communications, even though the organizations invoked a citizen-suit provision allowing “ ‘any person [to] commence a civil suit . . . to enjoin any person . . . who is alleged to be in violation of ’ ” the law. See id., at 558, 571–572; 16 U. S. C. §1540(g). Echoing the historical distinction between duties owed to individuals and those owed to the community, the Court explained that a plaintiff must do more than raise “a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws.” 504 U. S., at 573. “Vindicating the public interest (including the public interest in Government observance of the Constitution and laws) is the function of Congress and the Chief Executive.” Id., at 576. “ ‘The province of the court,’ ” in contrast, “ ‘is, solely, to decide on the rights of individuals.’ ” Ibid. (quoting Marbury v. Madison , 1 Cranch 137, 170 (1803)). The same public-rights analysis prevailed in Summers v. Earth Island Institute , 555 U.S. 488 (2009). There, a group of organizations sought to prevent the United States Forest Service from enforcing regulations that exempt certain projects from notice and comment. Id. , at 490. The Court, again, found that the mere violation of the law “without some concrete interest that is affected by the deprivation—a procedural right in vacuo —is insufficient to create Article III standing.” Id ., at 496. But again, this was rooted in the context of public rights: “ ‘It would exceed Article III’s limitations if, at the behest of Congress and in the absence of any showing of concrete injury, we were to entertain citizen suits to vindicate the public’s nonconcrete interest in the proper administration of the laws.’ ” Id. , at 497 (emphasis added; brackets omitted). In Spokeo , the Court built on this approach. Based on a few sentences from Lujan and Summers , the Court concluded that a plaintiff does not automatically “satisf[y] the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” Spokeo , 578 U. S., at 341. But the Court made clear that “Congress is well positioned to identify intangible harms that meet minimum Article III requirements” and explained that “the violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact.” Id., at 341, 342 (emphasis added). Reconciling these statements has proved to be a challenge. See Sierra , 996 F. 3d, at 1116–1117 (Newsom, J., concurring) (collecting examples of inconsistent decisions). But “[t]he historical restrictions on standing” offer considerable guidance. Thole , 590 U. S., at ___ (Thomas, J., concurring) (slip op., at 1). A statute that creates a public right plus a citizen-suit cause of action is insufficient by itself to establish standing. See Lujan , 504 U. S., at 576.[ 4 ] A statute that creates a private right and a cause of action, however, does gives plaintiffs an adequate interest in vindicating their private rights in federal court. See Thole , 590 U. S., at ___ (Thomas, J., concurring); Spokeo , 578 U. S., at ___–___ (same); see also Muransky , 979 F. 3d, at 970–972 (Jordan, J., dissenting); Huff v. TeleCheck Servs ., Inc. , 923 F.3d 458, 469 (CA6 2019) (“Article III standing may draw a line between private and public rights”); Bryant v. Compass Group USA, Inc. , 958 F. 3d, 617, 624 (CA7 2020) (the Spokeo concurrence “drew a useful distinction between two types of injuries”). The majority today, however, takes the road less traveled: “[U]nder Article III, an injury in law is not an injury in fact.” Ante, at 11; but see Webb v. Portland Mfg. Co. , 29 F. Cas. 506, 508 (No. 17,322) (CC Me. 1838) (“The law tolerates no farther inquiry than whether there has been the violation of a right”). No matter if the right is personal or if the legislature deems the right worthy of legal protection, legislatures are constitutionally unable to offer the protection of the federal courts for anything other than money, bodily integrity, and anything else that this Court thinks looks close enough to rights existing at common law. See ante , at 9. The 1970s injury-in-fact theory has now displaced the traditional gateway into federal courts. This approach is remarkable in both its novelty and effects. Never before has this Court declared that legal injury is inherently insufficient to support standing.[ 5 ] And never before has this Court declared that legislatures are constitutionally precluded from creating legal rights enforceable in federal court if those rights deviate too far from their common-law roots. According to the majority, courts alone have the power to sift and weigh harms to decide whether they merit the Federal Judiciary’s attention. In the name of protecting the separation of powers, ante , at 7, 14, this Court has relieved the legislature of its power to create and define rights. III Even assuming that this Court should be in the business of second-guessing private rights, this is a rather odd case to say that Congress went too far. TransUnion’s misconduct here is exactly the sort of thing that has long merited legal redress. As an initial matter, this Court has recognized that the unlawful withholding of requested information causes “a sufficiently distinct injury to provide standing to sue.” Public Citizen v. Department of Justice , 491 U.S. 440 , 449 (1989); see also Havens Realty Corp. , 455 U. S., at 374. Here, TransUnion unlawfully withheld from each class member the OFAC version of his or her credit report that the class member requested. And TransUnion unlawfully failed to send a summary of rights. The majority’s response is to contend that the plaintiffs actually did not allege that they failed to receive any required information; they alleged only that they received it in the “ wrong format .” Ante , at 26. That reframing finds little support in the complaint, which alleged that TransUnion “fail[ed] to include the OFAC alerts . . . in the consumer’s own files which consumers, as of right, may request and obtain,” and that TransUnion did “not advise consumers that they may dispute inaccurate OFAC alerts.” Class Action Complaint in No. 3:12–cv–00632, ECF Doc. 1 (ND Cal.), p. 5. It also finds no footing in the record. Neither the mailed credit report nor separate letter provide any indication that a person’s report is marked with an OFAC alert. See, e.g., App. 88–94. Were there any doubt about the facts below, we have the helpful benefit of a jury verdict. The jury found that “Defendant TransUnion, LLC willfully fail[ed] to clearly and accurately disclose OFAC information in the written disclosures it sent to members of the class.” Id. , at 690. And the jury found that “Defendant TransUnion, LLC willfully fail[ed] to provide class members a summary of their FCRA rights with each written disclosure made to them.” Ibid. I would not be so quick as to recharacterize these jury findings as mere “formatting” errors. Ante , at 2, 25–26; see also U. S. Const., Amdt. 7 (“no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law”). Moreover, to the extent this Court privileges concrete, financial injury for standing purposes, recall that TransUnion charged its clients extra to receive credit reports with the OFAC designation. According to TransUnion, these special OFAC credit reports are valuable. Even the majority must admit that withholding something of value from another person—that is, “monetary harm”—falls in the heartland of tangible injury in fact. Ante , at 1, 9. Recognizing as much, TransUnion admits that its clients would have standing to sue if they, like the class members, did not receive the OFAC credit reports they had requested. Tr. of Oral Arg. 9. And then there is the standalone harm caused by the rather extreme errors in the credit reports. The majority (rightly) decides that having one’s identity falsely and publically associated with terrorism and drug trafficking is itself a concrete harm. Ante , at 16–17. For good reason. This case is a particularly grave example of the harm this Court identified as central to the FCRA: “curb[ing] the dissemination of false information.” Spokeo , 578 U. S., at 342. And it aligns closely with a “harm that has traditionally been regarded as providing a basis for a lawsuit.” Id. , at 341. Historically, “[o]ne who falsely, and without a privilege to do so, publishes matter defamatory to another in such a manner as to make the publication a libel is liable to the other,” even though “no special harm or loss of reputation results therefrom.” Restatement of Torts §569, p. 165 (1938). The question this Court has identified as key, then, is whether a plaintiff established “a degree of risk” that is “sufficient to meet the concreteness requirement.” Spokeo, 578 U. S., at 343. Here, in a 7-month period, it is undisputed that nearly 25 percent of the class had false OFAC-flags sent to potential creditors. Twenty-five percent over just a 7-month period seems, to me, “a degree of risk sufficient to meet the concreteness requirement.” Ibid. If 25 percent is insufficient, then, pray tell, what percentage is? The majority deflects this line of analysis by all but eliminating the risk-of-harm analysis. According to the majority, an elevated risk of harm simply shows that a concrete harm is imminent and thus may support only a claim for injunctive relief. Ante , at 20, 26. But this reworking of Spokeo fails for two reasons. First, it ignores what Spokeo said: “[Our opinion] does not mean . . . that the risk of real harm cannot satisfy the requirement of concreteness.” Spokeo , 578 U. S., at 341. Second, it ignores what Spokeo did. The Court in Spokeo remanded the respondent’s claims for statutory damages to the Ninth Circuit to consider “whether the . . . violations alleged in this case entail a degree of risk sufficient to meet the concreteness requirement.” Id., at 342–343. The theory that risk of harm matters only for injunctive relief is thus squarely foreclosed by Spokeo itself. But even if risk of harm is out, the Ninth Circuit indicated that every class member may have had an OFAC alert disclosed. According to the court below, TransUnion not only published this information to creditors for a quarter of the class but also “communicated about the database information and OFAC matches” with a third party. 951 F. 3d, at 1026; cf. Cortez , 617 F. 3d, at 711 (TransUnion cannot avoid FCRA liability “by simply contracting with a third party to store and maintain information”). Respondent adds to this by pointing out that TransUnion published this information to vendors that printed and sent the mailings. See Brief for Respondent 16; see also App. 161 (deposition testimony explaining that “a printed credit report . . . would have been sent through our print vendor through the mail and delivered to the consumer requesting the file disclosure); id., at 545 (trial testimony identifying three different print-vendor companies that worked with TransUnion during the relevant time period). In the historical context of libel, publication to even a single other party could be enough to give rise to suit. This was true, even where the third party was a telegraph company,[ 6 ] an attorney,[ 7 ] or a stenographer who merely writes the information down.[ 8 ] Surely with a harm so closely paralleling a common-law harm, this is an instance where a plaintiff “need not allege any additional harm beyond the one Congress has identified.” Spokeo , 578 U. S., at 342 (emphasis deleted). But even setting aside everything already mentioned—the Constitution’s text, history, precedent, financial harm, libel, the risk of publication, and actual disclosure to a third party—one need only tap into common sense to know that receiving a letter identifying you as a potential drug trafficker or terrorist is harmful. All the more so when the information comes in the context of a credit report, the entire purpose of which is to demonstrate that a person can be trusted. And if this sort of confusing and frustrating communication is insufficient to establish a real injury, one wonders what could rise to that level. If, instead of falsely identifying Ramirez as a potential drug trafficker or terrorist, TransUnion had flagged him as a “potential” child molester, would that alone still be insufficient to open the courthouse doors? What about falsely labeling a person a racist? Including a slur on the report? Or what about openly reducing a person’s credit score by several points because of his race? If none of these constitutes an injury in fact, how can that possibly square with our past cases indicating that the inability to “observe an animal species, even for purely esthetic purposes, . . . undeniably” is? Lujan , 504 U. S., at 562; see also Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. , 528 U.S. 167 , 183 (2000) (“plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened” (internal quotation marks omitted)); Summers , 555 U. S., at 494 (“[I]f . . . harm in fact affects the recreational or even the mere esthetic interests of the plaintiff, that will suffice”). Had the class members claimed an aesthetic interest in viewing an accurate report, would this case have come out differently? And if some of these examples do cause sufficiently “concrete” and “real”—though “intangible”—harms, how do we go about picking and choosing which ones do and which do not? I see no way to engage in this “inescapably value-laden” inquiry without it “devolv[ing] into [pure] policy judgment.” Sierra , 996 F. 3d, at 1129 (Newsom, J., concurring). Weighing the harms caused by specific facts and choosing remedies seems to me like a much better fit for legislatures and juries than for this Court. Finally, it is not just the harm that is reminiscent of a constitutional case or controversy. So too is the remedy. Although statutory damages are not necessarily a proxy for unjust enrichment, they have a similar flavor in this case. TransUnion violated consumers’ rights in order to create and sell a product to its clients. Reckless handling of consumer information and bungled responses to requests for information served a means to an end. And the end was financial gain. “TransUnion could not confirm that a single OFAC alert sold to its customers was accurate.” 951 F. 3d, at 1021, n. 4. Yet thanks to this Court, it may well be in a position to keep much of its ill-gotten gains. [ 9 ] *  *  * Ultimately, the majority seems to pose to the reader a single rhetorical question: Who could possibly think that a person is harmed when he requests and is sent an incomplete credit report, or is sent a suspicious notice informing him that he may be a designated drug trafficker or terrorist, or is not sent anything informing him of how to remove this inaccurate red flag? The answer is, of course, legion: Congress, the President, the jury, the District Court, the Ninth Circuit, and four Members of this Court. I respectfully dissent. Notes 1 TransUnion also contends that Ramirez’s claims and defenses are not typical of those of the class. The Court declines to reach that question because its jurisdictional holding is dispositive. Ante , at 27. In my view, the District Court did not abuse its discretion in certifying the class given the similarities among the claims and defenses at issue. 2 The “public rights” terminology has been used to refer to two different concepts. In one context, these rights are “ ‘take[n] from the public’ ”—like the right to make, use, or sell an invention—and “ ‘bestow[ed] . . . upon the’ ” individual, like a “decision to grant a public franchise.” Oil States Energy Services, LLC v. Greene’s Energy Group, LLC , 584 U. S. ___, ___–___ (2018) (slip op., at 6–7). Disputes with the Government over these rights generally can be resolved “outside of an Article III court.” Id., at ___–___ (slip op., at 9–10). Here, in contrast, the term “public rights” refers to duties owed collectively to the community. For example, Congress owes a duty to all Americans to legislate within its constitutional confines. But not every single American can sue over Congress’ failure to do so. Only individuals who, at a minimum, establish harm beyond the mere violation of that constitutional duty can sue. Cf. Fairchild v. Hughes , 258 U.S. 126 , 129–130 (1922) (“Plaintiff has only the right, possessed by every citizen, to require that the Government be administered according to law and that the public moneys be not wasted. Obviously this general right does not entitle a private citizen to institute in the federal courts a suit to secure by indirection a determination whether a statute, if passed, or a constitutional amendment, about to be adopted, will be valid”). 3 Etymology is also a helpful guide. The word “injury” stems from the Latin “ injuria ,” which combines “in” (expressing negation) and “jus” (right, law, justice). See Barnhart Dictionary of Etymology 529 (1988). 4 But see Caminker, Comment, The Constitutionality of Qui Tam Actions, 99 Yale L. J. 341, 342, n. 3 (1989) (“Six statutes [enacted by the First Congress] imposed penalties and/or forfeitures for conduct injurious to the general public and expressly authorized suits by private informers, with the recovery being shared between the informer and the United States”); McCulloch v. Maryland , 4 Wheat. 316, 317, 321–322 (1819) (reviewing “an action of debt brought by the defendant in error . . . who sued as well for himself as for the State of Maryland . . . to recover certain penalties”). 5 See, e.g., Lujan v. Defenders of Wildlife , 504 U.S. 555 , 578 (1992) (“Nothing in this contradicts the principle that the injury required by Art. III may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing” (internal quotation marks, brackets, and ellipsis omitted)); Warth v. Seldin , 422 U.S. 490 , 514 (1975) (“Congress may create a statutory right or entitlement the alleged deprivation of which can confer standing to sue even where the plaintiff would have suffered no judicially cognizable injury in the absence of statute”); Linda R. S. v. Richard D ., 410 U.S. 614 , 617, n. 3 (1973) (“Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute”). 6 Munson v. Lathrop , 96 Wis. 386, 389, 71 N.W. 596, 597 (1897) (“The writing of the message, and the delivery of it by him to the [telegraph] company for transmission, as mentioned, was a publication of the same”). 7 Hedgepeth v. Coleman , 183 N. C. 309, 312–313, 111 S.E. 517, 519 (1922) (“[I]t has been held that the publication was sufficient where the defendant had communicated the defamatory matter to the plaintiff ’s agent, or attorney; or had read it to a friend before posting it to the plaintiff; or had procured it to be copied, or sealed in the form of a letter addressed to the plaintiff and left in the house of a neighbor by whom it was read; or had caused it to be delivered to and read by a member of the plaintiff ’s family”). 8 Rickbeil v. Grafton Deaconess Hospital , 74 N. D. 525, 542 (1946) (“We hold that the dictating of this letter by the manager to the stenographer and her transcription of her notes into the written instrument constitutes publication within the purview of the law of libel: whether the relationship be that of master and servant or of coemployees of a corporation”); see also Larimore v. Blaylock , 259 Va. 568, 573, 528 S.E.2d 119, 122 (2000) (rejecting an argument of “absolute protection of the ‘intracorporate immunity doctrine’ ” for defamatory statements); but see Swindle v. State , 10 Tenn. 581, 582 (1831) (“ ‘A personal libel is published when it arrives to the person against whom it is written , pursuant to the design of the author, or is made known to any other person, by any means to which the dissent of the author is not necessarily implied’ ” (emphasis added)). 9 Today’s decision might actually be a pyrrhic victory for TransUnion. The Court does not prohibit Congress from creating statutory rights for consumers; it simply holds that federal courts lack jurisdiction to hear some of these cases. That combination may leave state courts—which “are not bound by the limitations of a case or controversy or other federal rules of justiciability even when they address issues of federal law,” ASARCO Inc. v. Kadish , 490 U.S. 605 , 617 (1989)—as the sole forum for such cases, with defendants unable to seek removal to federal court. See also Bennett, The Paradox of Exclusive State-Court Jurisdiction Over Federal Claims, 105 Minn. L. Rev. 1211 (2021). By declaring that federal courts lack jurisdiction, the Court has thus ensured that state courts will exercise exclusive jurisdiction over these sorts of class actions. SUPREME COURT OF THE UNITED STATES _________________ No. 20–297 _________________ TRANSUNION LLC, PETITIONER v. SERGIO L. RAMIREZ on writ of certiorari to the united states court of appeals for the ninth circuit [June 25, 2021] Justice Kagan, with whom Justice Breyer and Justice Sotomayor join, dissenting. The familiar story of Article III standing depicts the doctrine as an integral aspect of judicial restraint. The case-or-controversy requirement of Article III, the account runs, is “built on a single basic idea—the idea of separation of powers.” Allen v. Wright , 468 U.S. 737 , 752 (1984). Rigorous standing rules help safeguard that separation by keeping the courts away from issues “more appropriately addressed in the representative branches.” Id. , at 751 . In so doing, those rules prevent courts from overstepping their “proper—and properly limited—role” in “a democratic society.” Warth v. Seldin , 422 U.S. 490 , 498 (1975); see ante , at 7–8 (Thomas, J., dissenting). After today’s decision, that story needs a rewrite. The Court here transforms standing law from a doctrine of judicial modesty into a tool of judicial aggrandizement. It holds, for the first time, that a specific class of plaintiffs whom Congress allowed to bring a lawsuit cannot do so under Article III. I join Justice Thomas’s dissent, which explains why the majority’s decision is so mistaken. As he recounts, our Article III precedents teach that Congress has broad “power to create and define rights.” Ante , at 13; see Spokeo , Inc. v. Robins , 578 U.S. 330, 341 (2016); Lujan v. Defenders of Wildlife , 504 U.S. 555 , 578 (1992); Warth , 422 U. S., at 500. And Congress may protect those rights by authorizing suits not only for past harms but also for the material risk of future ones. See Spokeo , 578 U. S., at 341–343; ante , at 15 (Thomas, J., dissenting). Under those precedents, this case should be easy. In the Fair Credit Reporting Act, Congress determined to protect consumers’ reputations from inaccurate credit reporting. TransUnion willfully violated that statute’s provisions by preparing credit files that falsely called the plaintiffs potential terrorists, and by obscuring that fact when the plaintiffs requested copies of their files. To say, as the majority does, that the resulting injuries did not “ ‘exist’ in the real world” is to inhabit a world I don’t know. Ante , at 10. And to make that claim in the face of Congress’s contrary judgment is to exceed the judiciary’s “proper—and properly limited—role.” Warth , 422 U. S., at 498; see ante , at 12–13 (Thomas, J., dissenting). I add a few words about the majority’s view of the risks of harm to the plaintiffs. In addressing the claim that TransUnion failed to maintain accurate credit files, the majority argues that the “risk of dissemination” of the plaintiffs’ credit information to third parties is “too speculative.” Ante , at 22. But why is it so speculative that a company in the business of selling credit reports to third parties will in fact sell a credit report to a third party? See also ante , at 15 (Thomas, J., dissenting) (noting that “nearly 25% of the class” already had false reports “sent to potential creditors”). And in addressing the claims of faulty disclosure to the plaintiffs, the majority makes a set of curious assumptions. According to the majority, people who specifically request a copy of their credit report may not even “ open[ ] ” the envelope. Ante , at 25 (emphasis in original). And people who receive multiple opaque mailings are not likely to be “confused.” Ibid. ; but see Niz-Chavez v. Garland , 593 U. S. ___, ___ (2021) (slip op., at 14) (explaining that a “series of letters,” “each containing a new morsel of vital information,” is likely to perplex recipients). And finally, people who learn that their credit files label them potential terrorists would not “have tried to correct” the error. Ante , at 25. Rather than accept those suppositions, I sign up with Justice Thomas: “[O]ne need only tap into common sense to know that receiving a letter identifying you as a potential drug trafficker or terrorist is harmful.” Ante , at 17. I differ with Justice Thomas on just one matter, unlikely to make much difference in practice. In his view, any “violation of an individual right” created by Congress gives rise to Article III standing. Ante , at 7. But in Spokeo , this Court held that “Article III requires a concrete injury even in the context of a statutory violation.” 578 U. S., at 341. I continue to adhere to that view, but think it should lead to the same result as Justice Thomas’s approach in all but highly unusual cases. As Spokeo recognized, “Congress is well positioned to identify [both tangible and] intangible harms” meeting Article III standards. Ibid. Article III requires for concreteness only a “real harm” (that is, a harm that “actually exist[s]”) or a “risk of real harm.” Ibid. And as today’s decision definitively proves, Congress is better suited than courts to determine when something causes a harm or risk of harm in the real world. For that reason, courts should give deference to those congressional judgments. Overriding an authorization to sue is appropriate when but only when Congress could not reasonably have thought that a suit will contribute to compensating or preventing the harm at issue. Subject to that qualification, I join Justice Thomas’s dissent in full.

The Supreme Court ruled that only 1,853 class members who had their misleading credit reports provided to third-party businesses suffered concrete reputational harm and have standing to sue TransUnion. The remaining 6,332 class members whose internal credit files were not provided to third parties during the relevant time period lacked concrete harm and thus standing to sue. On two other claims regarding formatting defects in TransUnion's mailings, only the named plaintiff Sergio Ramirez had standing as the other class members did not demonstrate concrete harm. The Court of Appeals approved a class damages award of about $40 million, but the Supreme Court's ruling limited standing and reduced the number of plaintiffs with valid claims.

Role of Courts

U.S. v. Texas

https://supreme.justia.com/cases/federal/us/599/22-58/

NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors. SUPREME COURT OF THE UNITED STATES _________________ No. 22–58 _________________ UNITED STATES, et al., PETITIONERS v. TEXAS, et al. on writ of certiorari before judgment to the united states court of appeals for the fifth circuit [June 23, 2023] Justice Kavanaugh delivered the opinion of the Court. In 2021, after President Biden took office, the Department of Homeland Security issued new Guidelines for immigration enforcement. The Guidelines prioritize the arrest and removal from the United States of noncitizens who are suspected terrorists or dangerous criminals, or who have unlawfully entered the country only recently, for example. Texas and Louisiana sued the Department of Homeland Security. According to those States, the Department’s new Guidelines violate federal statutes that purportedly require the Department to arrest more criminal noncitizens pending their removal. The States essentially want the Federal Judiciary to order the Executive Branch to alter its arrest policy so as to make more arrests. But this Court has long held “that a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.” Linda R. S. v. Richard D. , 410 U.S. 614 , 619 (1973). Consistent with that fundamental Article III principle, we conclude that the States lack Article III standing to bring this suit. I In 2021, Secretary of Homeland Security Mayorkas promulgated new “Guidelines for the Enforcement of Civil Immigration Law.” The Guidelines prioritize the arrest and removal from the United States of noncitizens who are suspected terrorists or dangerous criminals, or who have unlawfully entered the country only recently, for example. Texas and Louisiana sued the Department of Homeland Security, as well as other federal officials and agencies. According to those States, the Guidelines contravene two federal statutes that purportedly require the Department to arrest more criminal noncitizens pending their removal. First, the States contend that for certain noncitizens, such as those who are removable due to a state criminal conviction, §1226(c) of Title 8 says that the Department “shall” arrest those noncitizens and take them into custody when they are released from state prison. Second, §1231(a)(2), as the States see it, provides that the Department “shall” arrest and detain certain noncitizens for 90 days after entry of a final order of removal. In the States’ view, the Department’s failure to comply with those statutory mandates imposes costs on the States. The States assert, for example, that they must continue to incarcerate or supply social services such as healthcare and education to noncitizens who should be (but are not being) arrested by the Federal Government. The U. S. District Court for the Southern District of Texas found that the States would incur costs as a result of the Department’s Guidelines. Based on those costs, the District Court determined that the States have standing. On the merits, the District Court ruled that the Guidelines are unlawful, and vacated the Guidelines. 606 F. Supp. 3d 437, 502 (SD Tex. 2022); see 5 U. S. C. §706(2). The U. S. Court of Appeals for the Fifth Circuit declined to stay the District Court’s judgment. 40 F. 4th 205 (2022). This Court granted certiorari before judgment. 597 U. S. ___ (2022). II Article III of the Constitution confines the federal judicial power to “Cases” and “Controversies.” Under Article III, a case or controversy can exist only if a plaintiff has standing to sue—a bedrock constitutional requirement that this Court has applied to all manner of important disputes. See, e.g., TransUnion LLC v. Ramirez , 594 U. S. ___, ___ (2021) (slip op., at 7); California v. Texas , 593 U. S. ___, ___ (2021) (slip op., at 4); Carney v. Adams , 592 U. S. ___, ___–___ (2020) (slip op., at 4–5); Hollingsworth v. Perry , 570 U.S. 693 , 704 (2013); Clapper v. Amnesty Int’l USA , 568 U.S. 398 , 408 (2013); Raines v. Byrd , 521 U.S. 811 , 818 (1997); Lujan v. Defenders of Wildlife , 504 U.S. 555 , 559–560 (1992); Allen v. Wright , 468 U.S. 737 , 750 (1984); Schlesinger v. Reservists Comm. to Stop the War , 418 U.S. 208 , 215 (1974); United States v. Richardson , 418 U.S. 166 , 171 (1974). As this Court’s precedents amply demonstrate, Article III standing is “not merely a troublesome hurdle to be overcome if possible so as to reach the ‘merits’ of a lawsuit which a party desires to have adjudicated; it is a part of the basic charter promulgated by the Framers of the Constitution at Philadelphia in 1787.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. , 454 U.S. 464 , 476 (1982). The principle of Article III standing is “built on a single basic idea—the idea of separation of powers.” Allen , 468 U. S., at 752. Standing doctrine helps safeguard the Judiciary’s proper—and properly limited—role in our constitutional system. By ensuring that a plaintiff has standing to sue, federal courts “prevent the judicial process from being used to usurp the powers of the political branches.” Clapper , 568 U. S., at 408. A According to Texas and Louisiana, the arrest policy spelled out in the Department of Homeland Security’s 2021 Guidelines does not comply with the statutory arrest mandates in §1226(c) and §1231(a)(2). The States want the Federal Judiciary to order the Department to alter its arrest policy so that the Department arrests more noncitizens.[ 1 ] The threshold question is whether the States have standing under Article III to maintain this suit. The answer is no. To establish standing, a plaintiff must show an injury in fact caused by the defendant and redressable by a court order. See Lujan , 504 U. S., at 560–561. The District Court found that the States would incur additional costs because the Federal Government is not arresting more noncitizens. Monetary costs are of course an injury. But this Court has “also stressed that the alleged injury must be legally and judicially cognizable.” Raines , 521 U. S., at 819. That “requires, among other things,” that the “dispute is traditionally thought to be capable of resolution through the judicial process”—in other words, that the asserted injury is traditionally redressable in federal court. Ibid. (internal quotation marks omitted); accord Valley Forge , 454 U. S., at 472. In adhering to that core principle, the Court has examined “history and tradition,” among other things, as “a meaningful guide to the types of cases that Article III empowers federal courts to consider.” Sprint Communications Co. v. APCC Services, Inc. , 554 U.S. 269 , 274 (2008); see TransUnion LLC , 594 U. S., at ___–___ (slip op., at 8–9). The States have not cited any precedent, history, or tradition of courts ordering the Executive Branch to change its arrest or prosecution policies so that the Executive Branch makes more arrests or initiates more prosecutions. On the contrary, this Court has previously ruled that a plaintiff lacks standing to bring such a suit. The leading precedent is Linda R. S. v. Richard D. , 410 U.S. 614 (1973). The plaintiff in that case contested a State’s policy of declining to prosecute certain child-support violations. This Court decided that the plaintiff lacked standing to challenge the State’s policy, reasoning that in “American jurisprudence at least,” a party “lacks a judicially cognizable interest in the prosecution . . . of another.” Id . , at 619. The Court concluded that “a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.” Ibid. The Court’s Article III holding in Linda R. S. applies to challenges to the Executive Branch’s exercise of enforcement discretion over whether to arrest or prosecute. See id., at 617, 619; Castle Rock v. Gonzales , 545 U.S. 748 , 760–761, 767, n. 13 (2005); cf. Sure-Tan, Inc. v. NLRB , 467 U.S. 883 , 897 (1984) (citing Linda R. S. principle in immigration context and stating that the petitioners there had “no judicially cognizable interest in procuring enforcement of the immigration laws” by the Executive Branch). And importantly, that Article III standing principle remains the law today; the States have pointed to no case or historical practice holding otherwise. A “telling indication of the severe constitutional problem” with the States’ assertion of standing to bring this lawsuit “is the lack of historical precedent” supporting it. Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 561 U.S. 477 , 505 (2010) (internal quotation marks omitted); see also Raines , 521 U. S., at 826 (“Not only do appellees lack support from precedent, but historical practice appears to cut against them as well”). In short, this Court’s precedents and longstanding historical practice establish that the States’ suit here is not the kind redressable by a federal court. B Several good reasons explain why, as Linda R. S. held, federal courts have not traditionally entertained lawsuits of this kind. To begin with, when the Executive Branch elects not to arrest or prosecute, it does not exercise coercive power over an individual’s liberty or property, and thus does not infringe upon interests that courts often are called upon to protect. See Lujan , 504 U. S., at 561–562. And for standing purposes, the absence of coercive power over the plaintiff makes a difference: When “a plaintiff ’s asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed” to establish standing. Id., at 562 (emphasis deleted).[ 2 ] Moreover, lawsuits alleging that the Executive Branch has made an insufficient number of arrests or brought an insufficient number of prosecutions run up against the Executive’s Article II authority to enforce federal law. Article II of the Constitution assigns the “executive Power” to the President and provides that the President “shall take Care that the Laws be faithfully executed.” U. S. Const., Art. II, §1, cl. 1; §3. Under Article II, the Executive Branch possesses authority to decide “how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.” TransUnion LLC , 594 U. S., at ___ (slip op., at 13); see Lujan , 504 U. S., at 576–578; Allen , 468 U. S., at 760–761. The Executive Branch—not the Judiciary—makes arrests and prosecutes offenses on behalf of the United States. See United States v. Nixon , 418 U.S. 683 , 693 (1974) (“the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case”); Printz v. United States , 521 U.S. 898 , 922–923 (1997) (Brady Act provisions held unconstitutional because, among other things, they transferred power to execute federal law to state officials); United States v. Armstrong , 517 U.S. 456 , 464 (1996) (decisions about enforcement of “the Nation’s criminal laws” lie within the “special province of the Executive” (internal quotation marks omitted)); Buckley v. Valeo , 424 U.S. 1 , 138 (1976) (“A lawsuit is the ultimate remedy for a breach of the law, and it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to ‘take Care that the Laws be faithfully executed’ ” (quoting U. S. Const., Art. II, §3)); see also United States v. Cox , 342 F.2d 167, 171 (CA5 1965). That principle of enforcement discretion over arrests and prosecutions extends to the immigration context, where the Court has stressed that the Executive’s enforcement discretion implicates not only “normal domestic law enforcement priorities” but also “foreign-policy objectives.” Reno v. American-Arab Anti-Discrimination Comm. , 525 U.S. 471 , 490–491 (1999). In line with those principles, this Court has declared that the Executive Branch also retains discretion over whether to remove a noncitizen from the United States. Arizona v. United States , 567 U.S. 387 , 396 (2012) (“Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all”). In addition to the Article II problems raised by judicial review of the Executive Branch’s arrest and prosecution policies, courts generally lack meaningful standards for assessing the propriety of enforcement choices in this area. After all, the Executive Branch must prioritize its enforcement efforts. See Wayte v. United States , 470 U.S. 598 , 607–608 (1985). That is because the Executive Branch (i) invariably lacks the resources to arrest and prosecute every violator of every law and (ii) must constantly react and adjust to the ever-shifting public-safety and public-welfare needs of the American people. This case illustrates the point. As the District Court found, the Executive Branch does not possess the resources necessary to arrest or remove all of the noncitizens covered by §1226(c) and §1231(a)(2). That reality is not an anomaly—it is a constant. For the last 27 years since §1226(c) and §1231(a)(2) were enacted in their current form, all five Presidential administrations have determined that resource constraints necessitated prioritization in making immigration arrests. In light of inevitable resource constraints and regularly changing public-safety and public-welfare needs, the Executive Branch must balance many factors when devising arrest and prosecution policies. That complicated balancing process in turn leaves courts without meaningful standards for assessing those policies. Cf. Heckler v. Chaney , 470 U.S. 821 , 830–832 (1985); Lincoln v. Vigil , 508 U.S. 182 , 190–192 (1993). Therefore, in both Article III cases and Administrative Procedure Act cases, this Court has consistently recognized that federal courts are generally not the proper forum for resolving claims that the Executive Branch should make more arrests or bring more prosecutions. See Linda R. S. , 410 U. S., at 619; cf. Heckler , 470 U. S., at 831 (recognizing the “general unsuitability for judicial review of agency decisions to refuse enforcement”); ICC v. Locomotive Engineers , 482 U.S. 270 , 283 (1987) (“it is entirely clear that the refusal to prosecute cannot be the subject of judicial review”).[ 3 ] All of those considerations help explain why federal courts have not traditionally entertained lawsuits of this kind. By concluding that Texas and Louisiana lack standing here, we abide by and reinforce the proper role of the Federal Judiciary under Article III. The States’ novel standing argument, if accepted, would entail expansive judicial direction of the Department’s arrest policies. If the Court green-lighted this suit, we could anticipate complaints in future years about alleged Executive Branch under-enforcement of any similarly worded laws—whether they be drug laws, gun laws, obstruction of justice laws, or the like. We decline to start the Federal Judiciary down that uncharted path. Our constitutional system of separation of powers “contemplates a more restricted role for Article III courts.” Raines , 521 U. S., at 828. C In holding that Texas and Louisiana lack standing, we do not suggest that federal courts may never entertain cases involving the Executive Branch’s alleged failure to make more arrests or bring more prosecutions. First , the Court has adjudicated selective-prosecution claims under the Equal Protection Clause. In those cases, however, a party typically seeks to prevent his or her own prosecution, not to mandate additional prosecutions against other possible defendants. See, e.g., Wayte , 470 U. S., at 604; Armstrong , 517 U. S., at 459, 463. Second , as the Solicitor General points out, the standing analysis might differ when Congress elevates de facto injuries to the status of legally cognizable injuries redressable by a federal court. See Brief for Petitioners 20, n. 3; cf. TransUnion LLC , 594 U. S., at ___–___ (slip op., at 10–11); Federal Election Comm’n v. Akins , 524 U.S. 11 , 20 (1998); Raines , 521 U. S., at 820, n. 3; Lujan , 504 U. S., at 578; Linda R. S. , 410 U. S., at 617, n. 3. For example, Congress might (i) specifically authorize suits against the Executive Branch by a defined set of plaintiffs who have suffered concrete harms from executive under-enforcement and (ii) specifically authorize the Judiciary to enter appropriate orders requiring additional arrests or prosecutions by the Executive Branch. Here, however, the relevant statutes do not supply such specific authorization. The statutes, even under the States’ own reading, simply say that the Department “shall” arrest certain noncitizens. Given the “deep-rooted nature of law-enforcement discretion,” a purported statutory arrest mandate, without more, does not entitle any particular plaintiff to enforce that mandate in federal court. Castle Rock , 545 U. S., at 761, 764–765, 767, n. 13; cf. Heckler , 470 U. S., at 835. For an arrest mandate to be enforceable in federal court, we would need at least a “stronger indication” from Congress that judicial review of enforcement discretion is appropriate—for example, specific authorization for particular plaintiffs to sue and for federal courts to order more arrests or prosecutions by the Executive. Castle Rock , 545 U. S., at 761. We do not take a position on whether such a statute would suffice for Article III purposes; our only point is that no such statute is present in this case.[ 4 ] Third , the standing calculus might change if the Executive Branch wholly abandoned its statutory responsibilities to make arrests or bring prosecutions. Under the Administrative Procedure Act, a plaintiff arguably could obtain review of agency non-enforcement if an agency “has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.” Heckler , 470 U. S., at 833, n. 4 (internal quotation marks omitted); see id., at 839 (Brennan, J., concurring); cf. 5 U. S. C. §706(1). So too, an extreme case of non-enforcement arguably could exceed the bounds of enforcement discretion and support Article III standing. But the States have not advanced a Heckler -style “abdication” argument in this case or argued that the Executive has entirely ceased enforcing the relevant statutes. Therefore, we do not analyze the standing ramifications of such a hypothetical scenario. Fourth , a challenge to an Executive Branch policy that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status could lead to a different standing analysis. That is because the challenged policy might implicate more than simply the Executive’s traditional enforcement discretion. Cf. Department of Homeland Security v. Regents of Univ. of Cal. , 591 U. S. ___, ___–___ (2020) (slip op., at 11–12) (benefits such as work authorization and Medicare eligibility accompanied by non-enforcement meant that the policy was “more than simply a non-enforcement policy”); Texas v. United States , 809 F.3d 134, 154 (CA5 2015) ( Linda R. S. “concerned only nonprosecution,” which is distinct from “both nonprosecution and the conferral of benefits”), aff ’d by an equally divided Court, 579 U.S. 547 (2016). Again, we need not resolve the Article III consequences of such a policy. Fifth , policies governing the continued detention of noncitizens who have already been arrested arguably might raise a different standing question than arrest or prosecution policies. Cf. Biden v. Texas , 597 U. S. ___ (2022). But this case does not concern a detention policy, so we do not address the issue here.[ 5 ] D The discrete standing question raised by this case rarely arises because federal statutes that purport to require the Executive Branch to make arrests or bring prosecutions are rare—not surprisingly, given the Executive’s Article II authority to enforce federal law and the deeply rooted history of enforcement discretion in American law. Indeed, the States cite no similarly worded federal laws. This case therefore involves both a highly unusual provision of federal law and a highly unusual lawsuit. To be clear, our Article III decision today should in no way be read to suggest or imply that the Executive possesses some freestanding or general constitutional authority to disregard statutes requiring or prohibiting executive action. Moreover, the Federal Judiciary of course routinely and appropriately decides justiciable cases involving statutory requirements or prohibitions on the Executive. See, e.g., American Hospital Assn. v. Becerra , 596 U. S. ___, ___–___ (2022) (slip op., at 9–14); Weyerhaeuser Co. v. United States Fish and Wildlife Serv. , 586 U. S. ___, ___–___ (2018) (slip op., at 8–15); Zivotofsky v. Clinton , 566 U.S. 189 , 196–201 (2012); Hamdan v. Rumsfeld , 548 U.S. 557 , 592–595, 613–615, 635 (2006); id., at 636–646 (Kennedy, J., concurring); Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579 , 637–638, 640 (1952) (Jackson, J., concurring). This case is categorically different, however, because it implicates only one discrete aspect of the executive power—namely, the Executive Branch’s traditional discretion over whether to take enforcement actions against violators of federal law. And this case raises only the narrow Article III standing question of whether the Federal Judiciary may in effect order the Executive Branch to take enforcement actions against violators of federal law—here, by making more arrests. Under this Court’s Article III precedents and the historical practice, the answer is no.[ 6 ] It bears emphasis that the question of whether the federal courts have jurisdiction under Article III is distinct from the question of whether the Executive Branch is complying with the relevant statutes—here, §1226(c) and §1231(a)(2). In other words, the question of reviewability is different from the question of legality. We take no position on whether the Executive Branch here is complying with its legal obligations under §1226(c) and §1231(a)(2). We hold only that the federal courts are not the proper forum to resolve this dispute. On that point, even though the federal courts lack Article III jurisdiction over this suit, other forums remain open for examining the Executive Branch’s arrest policies. For example, Congress possesses an array of tools to analyze and influence those policies—oversight, appropriations, the legislative process, and Senate confirmations, to name a few. Cf. Raines , 521 U. S., at 829; Lincoln , 508 U. S., at 193. And through elections, American voters can both influence Executive Branch policies and hold elected officials to account for enforcement decisions. In any event, those are political checks for the political process. We do not opine on whether any such actions are appropriate in this instance. The Court’s standing decision today is narrow and simply maintains the longstanding jurisprudential status quo. See Linda R. S. , 410 U. S., at 619. The Court’s decision does not alter the balance of powers between Congress and the Executive, or change the Federal Judiciary’s traditional role in separation of powers cases. *  *  * In sum, the States have brought an extraordinarily unusual lawsuit. They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests. Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no precedent for a lawsuit like this. The States lack Article III standing because this Court’s precedents and the “historical experience” preclude the States’ “attempt to litigate this dispute at this time and in this form.” Raines , 521 U. S., at 829. And because the States lack Article III standing, the District Court did not have jurisdiction. We reverse the judgment of the District Court. It is so ordered. Notes 1 The States may want the Department to arrest all of the noncitizens it is now arresting plus other noncitizens—or instead to arrest some of the noncitizens it is now arresting plus other noncitizens. Either way, the States seek a court order that would alter the Department’s arrest policy so that the Department arrests more noncitizens. 2 By contrast, when “the plaintiff is himself an object of the action (or forgone action) at issue,” “there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it.” Lujan , 504 U. S., at 561–562. 3 Also, the plaintiffs here are States, and federal courts must remain mindful of bedrock Article III constraints in cases brought by States against an executive agency or officer. To be sure, States sometimes have standing to sue the United States or an executive agency or officer. See, e.g., New York v. United States , 505 U.S. 144 (1992). But in our system of dual federal and state sovereignty, federal policies frequently generate indirect effects on state revenues or state spending. And when a State asserts, for example, that a federal law has produced only those kinds of indirect effects, the State’s claim for standing can become more attenuated. See Massachusetts v. Laird , 400 U.S. 886 (1970); Florida v. Mellon , 273 U.S. 12 , 16–18 (1927); cf. Lujan , 504 U. S., at 561–562. In short, none of the various theories of standing asserted by the States in this case overcomes the fundamental Article III problem with this lawsuit. 4 As the Solicitor General noted, those kinds of statutes, by infringing on the Executive’s enforcement discretion, could also raise Article II issues. See Tr. of Oral Arg. 24–25. 5 This case concerns only arrest and prosecution policies, and we therefore address only that issue. As to detention, the Solicitor General has represented that the Department’s Guidelines do not affect continued detention of noncitizens already in federal custody. See Brief for Petitioners 24; Tr. of Oral Arg. 40 (Solicitor General: “the Guidelines govern only decisions about apprehension and removal, whether to charge a non-citizen in the first place. . . . the Guidelines don’t have anything to do with continued detention”); Guidelines Memorandum, App. 111 (“This memorandum provides guidance for the apprehension and removal of noncitizens”); id., at 113 (“We will prioritize for apprehension and removal noncitizens who are a threat to our national security, public safety, and border security”). 6 As part of their argument for standing, the States also point to Massachusetts v. EPA , 549 U.S. 497 (2007). Putting aside any disagreements that some may have with Massachusetts v. EPA , that decision does not control this case. The issue there involved a challenge to the denial of a statutorily authorized petition for rulemaking, not a challenge to an exercise of the Executive’s enforcement discretion. Id., at 520, 526; see also id., at 527 (noting that there are “key differences between a denial of a petition for rulemaking and an agency’s decision not to initiate an enforcement action” and that “an agency’s refusal to initiate enforcement proceedings is not ordinarily subject to judicial review”). SUPREME COURT OF THE UNITED STATES _________________ No. 22–58 _________________ UNITED STATES, et al., PETITIONERS v. TEXAS, et al. on writ of certiorari to the united states court of appeals for the fifth circuit [June 23, 2023] Justice Gorsuch, with whom Justice Thomas and Justice Barrett join, concurring in the judgment. The Court holds that Texas and Louisiana lack Article III standing to challenge the Department of Homeland Security’s Guidelines for the Enforcement of Civil Immigration Law. I agree. But respectfully, I diagnose the jurisdictional defect differently. The problem here is redressability. I Article III vests federal courts with the power to decide “Cases” and “Controversies.” Standing doctrine honors the limitations inherent in this assignment by ensuring judges attend to actual harms rather than abstract grievances. “If individuals and groups could invoke the authority of a federal court to forbid what they dislike for no more reason than they dislike it, we would risk exceeding the judiciary’s limited constitutional mandate and infringing on powers committed to other branches of government.” American Legion v. American Humanist Assn ., 588 U. S. ___, ___ (2019) (Gorsuch, J., concurring in judgment) (slip op., at 3). To establish standing to sue in federal court, a plaintiff must show that it has suffered a concrete and particularized injury, one that is both traceable to the defendant and redressable by a court order. See Lujan v. Defenders of Wildlife , 504 U.S. 555 , 560–561 (1992). If a plaintiff fails at any step, the court cannot reach the merits of the dispute. See Steel Co. v. Citizens for Better Environment , 523 U.S. 83 , 102–104 (1998). This is true whether the plaintiff is a private person or a State. After all, standing doctrine derives from Article III, and nothing in that provision suggests a State may have standing when a similarly situated private party does not. See Massachusetts v. EPA , 549 U.S. 497 , 536–538 (2007) (Roberts, C. J., dissenting). The Court holds that Texas and Louisiana lack standing to challenge the Guidelines because “a party lacks a judicially cognizable interest in the prosecution . . . of another.” Ante , at 5 (internal quotation marks omitted). To be sure, the district court found that the Guidelines have led to an increase in the number of aliens with criminal convictions and final orders of removal who are released into the States. 606 F. Supp. 3d 437, 459–463, 467 (SD Tex. 2022). The district court also found that, thanks to this development, the States have spent, and continue to spend, more money on law enforcement, incarceration, and social services. Id., at 463–465, 467. Still, the Court insists, “[s]everal good reasons explain why” these harms are insufficient to afford the States standing to challenge the Guidelines. Ante , at 6. I confess to having questions about each of the reasons the Court offers. Start with its observation that the States have not pointed to any “historical practice” of courts ordering the Executive Branch to change its arrest or prosecution policies. Ante , at 5, 6. The Court is right, of course, that “history and tradition offer a meaningful guide to the types of cases that Article III empowers federal courts to consider.” TransUnion LLC v. Ramirez , 594 U. S. ___, ___ (2021) (slip op., at 8) (internal quotation marks omitted). But, again, the district court found that the Guidelines impose “significant costs” on the States. 606 F. Supp. 3d, at 495. The Court today does not set aside this finding as clearly erroneous. Nor does anyone dispute that even one dollar’s worth of harm is traditionally enough to “qualify as concrete injur[y] under Article III.” TransUnion , 594 U. S., at ___ (slip op., at 9); see also Uzuegbunam v. Preczewski , 592 U. S. ___, ___ (2021) (slip op., at 11). Indeed, this Court has allowed other States to challenge other Executive Branch policies that indirectly caused them monetary harms. See, e.g., Department of Commerce v. New York , 588 U. S. ___, ___–___ (2019) (slip op., at 9–10). So why are these States now forbidden from doing the same? Next, the Court contends that, “when the Executive Branch elects not to arrest or prosecute, it does not exercise coercive power over an individual’s liberty or property.” Ante , at 6. Here again, in principle, I agree. But if an exercise of coercive power matters so much to the Article III standing inquiry, how to explain decisions like Massachusetts v. EPA ? There the Court held that Massachusetts had standing to challenge the federal government’s decision not to regulate greenhouse gas emissions from new motor vehicles. See 549 U. S., at 516–526. And what could be less coercive than a decision not to regulate? In Massachusetts v. EPA , the Court chose to overlook this difficulty in part because it thought the State’s claim of standing deserved “special solicitude.” Id., at 520. I have doubts about that move. Before Massachusetts v. EPA , the notion that States enjoy relaxed standing rules “ha[d] no basis in our jurisprudence.” Id. , at 536 (Roberts, C. J., dissenting). Nor has “special solicitude” played a meaningful role in this Court’s decisions in the years since. Even so, it’s hard not to wonder why the Court says nothing about “special solicitude” in this case. And it’s hard not to think, too, that lower courts should just leave that idea on the shelf in future ones. Finally, the Court points to the fact that Article II vests in the President considerable enforcement discretion. Ante , at 6–8. So much so that “courts generally lack meaningful standards for assessing the propriety of [the Executive Branch’s] enforcement choices.” Ante , at 7. But almost as soon as the Court announces this general rule, it adds a caveat, stressing that “[t]his case concerns only arrest and prosecution policies.” Ante, at 12, n. 5. It’s a curious qualification. Article II does not have an Arrest and Prosecution Clause. It endows the President with the “executive Power,” §1, cl. 1, and charges him with “tak[ing] Care” that federal laws are “faithfully executed,” §3. These provisions give the President a measure of discretion over the enforcement of all federal laws, not just those that can lead to arrest and prosecution. So if the Court means what it says about Article II, can it mean what it says about the narrowness of its holding? There’s another curious qualification in the Court’s opinion too. “[T]he standing calculus might change,” we are told, “if the Executive Branch wholly abandoned its statutory responsibilities to make arrests or bring prosecutions.” Ante , at 11. But the Court declines to say more than that because “the States have not advanced” such an argument. Ibid. Is that true, though? The States have pleaded a claim under the Take Care Clause. App. 106. Is that not an abdication argument? Did they fail to plead it properly? Or is the Court simply ignoring it? II As I see it, the jurisdictional problem the States face in this case isn’t the lack of a “judicially cognizable” interest or injury. Ante, at 5 (internal quotation marks omitted). The States proved that the Guidelines increase the number of aliens with criminal convictions and final orders of removal released into the States. They also proved that, as a result, they spend more money on everything from law enforcement to healthcare. The problem the States face concerns something else altogether—a lack of redressability. To establish redressability, a plaintiff must show from the outset of its suit that its injuries are capable of being remedied “ ‘by a favorable decision.’ ” Lujan , 504 U. S., at 561; see also id., at 570, n. 5 (plurality opinion). Ordinarily, to remedy harms like those the States demonstrated in this suit, they would seek an injunction. The injunction would direct federal officials to detain aliens consistent with what the States say the immigration laws demand. But even assuming an injunction like that would redress the States’ injuries, that form of relief is not available to them. It is not available because of 8 U. S. C. §1252(f )(1). There, Congress provided that “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of ” certain immigration laws, including the very laws the States seek to have enforced in this case. If there were any doubt about how to construe this command, we resolved it in Garland v. Aleman Gonzalez , 596 U. S. ___ (2022). In that case, we held that §1252(f )(1) “prohibits lower courts from . . . order[ing] federal officials to take or to refrain from taking actions to enforce, implement, or otherwise carry out the specified statutory provisions.” Id., at ___ (slip op., at 5). Put simply, the remedy that would ordinarily have the best chance of redressing the States’ harms is a forbidden one in this case. The district court thought it could sidestep §1252(f )(1). Instead of issuing an injunction, it purported to “vacate” the Guidelines pursuant to §706(2) of the Administrative Procedure Act (APA), 5 U. S. C. §706(2). 606 F. Supp. 3d, at 498–501, and n. 71. Vacatur, as the district court understood it, is a distinct form of relief that operates directly on agency action, depriving it of legal force or effect. See id. , at 499–500 . And vacatur, the district court reasoned, does not offend §1252(f )(1), because it does not entail an order directing any federal official to do anything. See id., at 501, n. 71. The States embrace this line of argument before us. Brief for Respondents 43–47; Tr. of Oral Arg. 75–82. It’s a clever workaround, but it doesn’t succeed. Start with perhaps the simplest reason. Assume for the moment the district court was right that §1252(f )(1) does not bar vacatur orders and that §706(2) authorizes courts to issue them. Even so, a vacatur order still does nothing to redress the States’ injuries. The Guidelines merely advise federal officials about how to exercise their prosecutorial discretion when it comes to deciding which aliens to prioritize for arrest and removal. A judicial decree rendering the Guidelines a nullity does nothing to change the fact that federal officials possess the same underlying prosecutorial discretion. Nor does such a decree require federal officials to change how they exercise that discretion in the Guidelines’ absence. It’s a point even the States have acknowledged. Tr. of Oral Arg. 82–83; see also id., at 75–77, 125. Faced with that difficulty, the States offer this reply. As a practical matter, they say, we can expect federal officials to alter their arrest and prosecution priorities in light of a judicial opinion reasoning that the Guidelines are unlawful. See id., at 80, 82–83. But this doesn’t work either. Whatever a court may say in an opinion does no more to compel federal officials to change how they exercise their prosecutorial discretion than an order vacating the Guidelines. Nor do we measure redressability by asking whether a court’s legal reasoning may inspire or shame others into acting differently. We measure redressability by asking whether a court’s judgment will remedy the plaintiff ’s harms. As this Court recently put it: “It is a federal court’s judgment, not its opinion, that remedies an injury; thus it is the judgment, not the opinion, that demonstrates redressability.” Haaland v. Brackeen , 599 U. S. ___, ___ (2023) (slip op., at 32). If the rule were otherwise, and courts could “simply assume that everyone . . . will honor the legal rationales that underlie their decrees, then redressability [would] always exist.” Franklin v. Massachusetts , 505 U.S. 788 , 825 (1992) (Scalia, J., concurring in part and concurring in judgment). Perhaps sensing they have run into yet another roadblock, the States try one last way around it. Fleetingly, they direct us to the parenthetical in §1252(f)(1): “(other than the Supreme Court).” That language, they say, allows this Court to invoke the All Writs Act, 28 U. S. C. §1651, to fashion its own injunction. And the possibility that this Court might award them relief, the States suggest, makes their injuries redressable after all. See Brief for Respondents 47; cf. post, at 12 (Alito, J., dissenting). It’s an argument that yields more questions than answers. The parenthetical the States cite is a “curious” provision, one that “does not appear to have an analogue elsewhere in the United States Code.” Biden v. Texas , 597 U. S. ___, ___ (2022) (Barrett, J., dissenting) (slip op., at 4). Even assuming it permits this Court to award an injunction when a case comes to us on review, it does not obviously solve the States’ redressability problem. Normally, after all, a plaintiff must establish redressability from the outset of the suit. See Lujan , 504 U. S., at 561; see also id., at 570, n. 5 (plurality opinion). Not only that, a plaintiff must show a favorable decision is “ ‘likely’ ” to provide effectual relief. Id., at 561. When the States filed this suit, however, the possibility that it might find its way to this Court was speculative at best. See id. , at 570, n. 5 (plurality opinion) (rejecting an argument that redressability could depend on “the fortuity that [a] case has made its way to this Court”). Nor is that the only complication. Ordinarily, to win an injunction from any court, a party must satisfy several factors. See eBay Inc. v. MercExchange, L. L. C. , 547 U.S. 388 , 391 (2006). The States relegate any mention of these factors to a short, formulaic paragraph tacked onto the end of their brief. See Brief for Respondents 48. Worse, the only injunction they seek is one barring “implementation and enforcement” of the Guidelines—essentially an injunction imitating a vacatur order. Id ., at 47. And as we have seen, an order like that would leave officials with their prosecutorial discretion intact. See supra, at 6. So, even if this Court were to take the unusual step of issuing and superintending its own injunction, giving the States the very order they seek is hardly sure to redress the injuries they assert. III Beyond these redressability problems may lie still another. Recall the essential premise on which the district court proceeded—that the APA empowers courts to vacate agency action. The federal government vigorously disputes this premise, arguing that the law does not contemplate this form of relief. The reasons the government offers are plenty and serious enough to warrant careful consideration. A Traditionally, when a federal court finds a remedy merited, it provides party-specific relief, directing the defendant to take or not take some action relative to the plaintiff. If the court’s remedial order affects nonparties, it does so only incidentally. See, e.g., Doran v. Salem Inn, Inc. , 422 U.S. 922 , 931 (1975) (“[N]either declaratory nor injunctive relief can directly interfere with the enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs.”); Alemite Mfg. Corp. v. Staff , 42 F.2d 832 (CA2 1930) (L. Hand, J.) (“[A] court of equity . . . cannot lawfully enjoin the world at large.”); see also Trump v. Hawaii , 585 U. S. ___, ___ (2018) (Thomas, J., concurring) (slip op., at 6). This tracks the founding-era understanding that courts “render a judgment or decree upon the rights of the litigant[s].” Rhode Island v. Massachusetts , 12 Pet. 657, 718 (1838). It also ensures that federal courts respect the limits of their Article III authority to decide cases and controversies and avoid trenching on the power of the elected branches to shape legal rights and duties more broadly. After all, the “judicial Power” is the power to “decide cases for parties, not questions for everyone.” S. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 421 (2017). Despite these foundational principles, in recent years a number of lower courts have asserted the authority to issue decrees that purport to define the rights and duties of sometimes millions of people who are not parties before them. Three years ago, I reflected on the rise of the “universal injunctio[n]” and raised questions about its consistency with the separation of powers and our precedents. Department of Homeland Security v. New York , 589 U. S. ___, ___ (2020) (opinion concurring in grant of stay) (slip op., at 3). I observed, too, that “the routine issuance of universal injunctions” has proven “unworkable, sowing chaos for litigants, the government, courts, and all those affected by these [sometimes] conflicting” decrees. Ibid . Matters have not improved with time. Universal injunctions continue to intrude on powers reserved for the elected branches. They continue to deprive other lower courts of the chance to weigh in on important questions before this Court has to decide them. They continue to encourage parties to engage in forum shopping and circumvent rules governing class-wide relief. Recent events have highlighted another problem too. Sometimes, the government may effectively submit to a universal decree running against it in order to avoid “the usual and important requirement, under the [APA], that a regulation originally promulgated using notice and comment . . . may only be repealed through notice and comment.” Arizona v. City and County of San Francisco , 596 U. S. ___, ___ (2022) (Roberts, C. J., concurring) (slip op., at 2). It is a strategy that amounts to little more than “ ‘rulemaking-by-collective-acquiescence.’ ” Ibid. ; see also Danco Laboratories, LLC v. Alliance for Hippocratic Medicine , 598 U. S. ___, ___ (2023) (Alito, J., dissenting from grant of application for stays) (slip op., at 3); Arizona v. Mayorkas , 598 U. S. ___, ___–___ (2023) (statement of Gorsuch, J.) (slip op., at 1–4). Today’s case presents a variation on the theme. The district court ordered “wholesale vacatur” of the Guidelines, rendering them inoperable with respect to any person anywhere. 606 F. Supp. 3d, at 499, 502. As authority for its course, the district court cited §706(2) of the APA. That provision does not say anything about “vacating” agency action (“wholesale” or otherwise). Instead, it authorizes a reviewing court to “set aside” agency action. Still, from those two words alone, the district court thought the power to nullify the Guidelines with respect to anyone anywhere surely follows. See 606 F. Supp. 3d, at 498–500. Color me skeptical. If the Congress that unanimously passed the APA in 1946 meant to overthrow the “bedrock practice of case-by-case judgments with respect to the parties in each case” and vest courts with a “new and far-reaching” remedial power, it surely chose an obscure way to do it. Arizona v. Biden , 40 F. 4th 375, 396 (CA6 2022) (Sutton, C. J., concurring). At the very least, it is worth a closer look. B Begin with the words “set aside” in isolation. If they might suggest to some a power to “vacate” agency action in the sense of rendering it null and void, just as naturally they might mean something else altogether. They might simply describe what a court usually does when it finds a federal or state statute unconstitutional, or a state law preempted by a federal one. Routinely, a court will disregard offensive provisions like these and proceed to decide the parties’ dispute without respect to them. In Dennis v. United States , 341 U.S. 494 (1951), for example, Justice Frankfurter observed that “[w]e are to set aside the judgment of those whose duty it is to legislate only if ” the Constitution requires it. Id ., at 525 (concurring opinion). Justice Frankfurter hardly meant to suggest the Court had the power to erase statutes from the books. See id ., at 525–526. Instead, he used the phrase to mean that a court should disregard—refuse to apply—an unconstitutional law. It is a usage that was common at the time of the APA’s adoption and that remains so today. See Webster’s New International Dictionary 2291 (2d ed. 1954) (defining “set aside” as “to put to one side; discard; dismiss” and “to reject from consideration; overrule”); Webster’s New World College Dictionary 1329 (5th ed. 2016) (defining “set aside” as “to set apart” and “to discard; dismiss; reject”). There are many reasons to think §706(2) uses “set aside” to mean “disregard” rather than “vacate.” For one thing, at the time of the APA’s adoption, conventional wisdom regarded agency rules as “quasi-legislative” in nature. See Humphrey’s Executor v. United States , 295 U.S. 602 , 624, 628 (1935); see also D. Currie & F. Goodman, Judicial Review of Federal Administrative Action: Quest for the Optimum Forum, 75 Colum. L. Rev. 1, 40 (1975). And federal courts have never enjoyed the power to “vacate” legislation. Instead, they possess “little more than the negative power to disregard an unconstitutional enactment.” Massachusetts v. Mellon , 262 U.S. 447 , 488 (1923) . Reading “set aside” to mean “disregard” ensures parallel judicial treatment of statutes and rules. For another thing, the term “set aside” appears in §706 of the APA. That section is titled “Scope of review,” a title it has borne since the law’s enactment in 1946. 60Stat. 243. And ordinarily, when we think about the scope of a court’s review, we do not think about the remedies the court may authorize after reaching its judgment on the merits. Instead, we think about the court’s decisional process leading up to that judgment. Understanding “set aside” as a command to disregard an unlawful rule in the decisional process fits perfectly within this design. Understanding the phrase as authorizing a remedy does not. What follows in §706 appears to confirm the point. The statute begins by providing that, “[t]o the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning and applicability of the terms of an agency action.” Exactly as expected, we find an instruction about the decisional process—one requiring the court to apply “de novo review on questions of law” as it considers the parties’ arguments in the course of reaching its judgment. Kisor v. Wilkie , 588 U. S. ___, ___ (2019) (Gorsuch, J., concurring in judgment) (slip op., at 15) (internal quotation marks omitted). Nothing here speaks to remedies. The remaining statutory language is more of the same. Section 706 goes on to instruct that “[t]he reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be,” among other things, “arbitrary,” “capricious,” “contrary to constitutional right,” “in excess of ” statutory authority, or “unsupported by substantial evidence.” §706(2). Looking at the provision as a whole, rather than focusing on two words in isolation, we see further evidence that it governs a court’s scope of review or decisional process. The statute tells judges to resolve the cases that come to them without regard to deficient agency action, findings, or conclusions—an instruction entirely consistent with the usual “negative power” of courts “to disregard” that which is unlawful. Mellon , 262 U. S., at 488. Other details are telling too. Consider the latter part of §706(2)’s directive to “set aside agency action, findings, and conclusions.” The APA defines “agency action” to include “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U. S. C. §551(13). A court can disregard any of those things. But what would it even mean to say a court must render null and void an agency’s failure to act? Notice, too, the language about “findings.” Often, judges disregard factual findings unsupported by record evidence and resolve the case at hand without respect to them. See Fed. Rule Civ. Proc. 52(a)(6) (“Findings of fact . . . must not be set aside unless clearly erroneous.”). None of that means we may pretend to rewrite history and scrub any trace of faulty findings from the record. Consider as well the larger statutory context. Section 702 restricts judicial review to “person[s]” who have “suffer[ed] legal wrong because of agency action, or [been] adversely affected or aggrieved by agency action.” The provision also instructs that “any mandatory or injunctive decree shall specify the Federal officer or officers . . . personally responsible for compliance.” Here, it seems, Congress nodded to traditional standing rules and remedial principles. Yet under the district court’s reading, we must suppose Congress proceeded just a few paragraphs later to plow right through those rules and empower a single judge to award a novel form of relief affecting parties and nonparties alike. Then there is §703. That is where the APA most clearly discusses remedies. Section 703 authorizes aggrieved persons to bring “any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus.” Conspicuously missing from the list is vacatur. And what exactly would a “form of legal action” seeking vacatur look like anyway? Would it be a creature called a “writ of vacatur”? Nobody knows (or bothers to tell us). Nor is it apparent why Congress would have listed most remedies in §703 only to bury another (and arguably the most powerful one) in a later section addressed to the scope of review. Cf. J. Harrison, Section 706 of the Administrative Procedure Act Does Not Call for Universal Injunctions or Other Universal Remedies, 37 Yale J. Reg. Bull. 37, 37, 45–46 (2020). The district court’s reading of “set aside” invites still other anomalies. Section 706(2) governs all proceedings under the APA. Any interpretation of “set aside” therefore must make sense in the context of an enforcement proceeding, an action for a declaratory judgment, a suit for an injunction, or habeas. See §703. This poses a problem for the district court’s interpretation, for no one thinks a court adjudicating a declaratory action or a habeas petition “vacates” agency action along the way. See Brief for United States 41–42; Harrison, 37 Yale J. Reg. Bull., at 46. The anomaly dissipates, however, if we read §706(2) as instructing courts about when they must disregard agency action in the process of deciding a case. Imagine what else it would mean if §706(2) really did authorize vacatur. Ordinary joinder and class-action procedures would become essentially irrelevant in administrative litigation. Why bother jumping through those hoops when a single plaintiff can secure a remedy that rules the world? See Bray, 131 Harv. L. Rev., at 464–465. Surely, too, it is odd that leading scholars who wrote extensively about the APA after its adoption apparently never noticed this supposed remedy. See J. Harrison, Vacatur of Rules Under the Administrative Procedure Act, 40 Yale J. Reg. Bull. 119, 127–128 (2023) (discussing scholarship of Professors Kenneth Culp Davis and Louis Jaffe); see also Department of Justice, Attorney General’s Manual on the Administrative Procedure Act 108 (1947) (offering the Executive Branch’s view that §706 simply “restates the present law as to the scope of judicial review”). These are not people who would have missed such a major development in their field. C As always, there are arguments on the other side of the ledger, and the States tee up several. They first reply that §706(2) must allow vacatur of agency action because the APA models judicial review of agency action on appellate review of judgments, and appellate courts sometimes vacate judgments. Brief for Respondents 40. But just because “Congress may sometimes refer to collateral judicial review of executive action as ‘an appeal’ . . . does not make it an ‘appeal’ akin to that taken from the district court to the court of appeals.” Garland v. Ming Dai , 593 U. S. ___, ___ (2021) (slip op., at 9). Nor does any of that tell us in which respects the APA models judicial review of agency action on appellate review of lower court judgments. According to one scholar, the “salient” similarities between appellate review and judicial review of agency action concern the standards of review—in both types of proceedings, a reviewing court engages in a more rigorous review of legal questions and a more deferential review of factual findings. T. Merrill, Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law, 111 Colum. L. Rev. 939, 940–941 (2011). None of that has to do with remedies; once again, it concerns a court’s scope of review or decisional process. The States next invoke §706(1) and §705. The former provides that courts shall “compel agency action unlawfully withheld or unreasonably delayed.” The latter says courts “may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.” The States insist that “[i]t would be illogical” for the APA to authorize these remedies but not vacatur. Brief for Respondents 40. Is it so clear, though, that §706(1) and §705 authorize remedies? Section 706(1) does seem to contemplate a remedy. But it’s one §703 mentions—mandatory injunctions. So §706(1) might not authorize a remedy as much as confirm the availability of a traditional remedy to address agency in action. The same could be said about §705; it might just confirm courts’ authority to issue traditional equitable relief pending judicial review. Cf. Sampson v. Murray , 415 U.S. 61 , 69, n. 15 (1974) (explaining that §705 was “primarily intended to reflect existing law”). The States also direct us to scholarship that in turn purports to identify a few instances of federal courts “setting aside” agency action in the years leading up to the APA. See Brief for Respondents 41; see also Brief for State of Florida as Amicus Curiae 17. It is not obvious, however, that these few cases stand for so much. In two of them, this Court upheld the agency action in question and thus had no occasion to opine on appropriate relief. See Houston v. St. Louis Independent Packing Co. , 249 U.S. 479 , 486–487 (1919); The Assigned Car Cases , 274 U.S. 564 , 584 (1927). In a third case, the plaintiff sought “to enjoin enforcement of ” an order of the Federal Communications Commission. Columbia Broadcasting System, Inc. v. United States , 316 U.S. 407 , 408 (1942). That is a claim for traditional equitable relief, and indeed, the Court held that the complaint “state[d] a cause of action in equity” and remanded for further proceedings. Id., at 425. A fourth case, involving an order of the Interstate Commerce Commission, seems of a piece. There, a district court held the Commission’s order invalid and “restrain[ed] . . . enforcement” of it. Baltimore & Ohio R. Co. v. United States , 5 F. Supp. 929, 936 (ND Ohio 1933). This Court affirmed. See United States v. Baltimore & Ohio R. Co. , 293 U.S. 454 (1935). True, this Court described the case as an “appeal from [a] decree . . . setting aside” the Commission’s order. Id., at 455. But the fact that the lower court had only restrained enforcement of the order goes to show that “set aside” did not then (and does not now) necessarily translate to “vacate.” At the end of the day, the States fall back on other lower court decisions. “For more than 30 years,” they say, “vacatur has been the ordinary result when the D. C. Circuit determines that agency regulations are unlawful.” Brief for Respondents 42 (internal quotation marks omitted). Doubtless, to the extent those decisions are carefully reasoned, they merit respectful consideration. But, equally, they do not bind us. Cf. post, at 14, n. 7 (Alito, J., dissenting) (observing that this Court has only ever “assumed” that the APA authorizes vacatur). In raising questions about the district court’s claim that §706(2) authorizes vacatur of agency action, I do not pretend that the matter is open and shut. Thoughtful arguments and scholarship exist on both sides of the debate. Nor do I mean to equate vacatur of agency action with universal injunctions. Despite some similarities, courts can at least arguably trace their authority to order vacatur to language in a statute and practice in some lower courts. But the questions here are serious ones. And given the volume of litigation under the APA, this Court will have to address them sooner or later. Until then, we would greatly benefit from the considered views of our lower court colleagues. D Suppose my doubts about vacatur are unfounded. Suppose the APA really does authorize both traditional forms of equitable relief (in §703) and a more expansive equitable power to vacate agency action (in §706). Even if that were true, a district court should “think twice—and perhaps twice again—before granting” such sweeping relief. Arizona v. Biden , 40 F. 4th, at 396 (Sutton, C. J., concurring). After all, this Court has long instructed that equitable relief “must be limited to the inadequacy that produced [the] injury in fact.” Gill v. Whitford , 585 U. S. ___, ___ (2018) (slip op., at 14) (internal quotation marks omitted). Any remedy a judge authorizes must not be ‘‘more burdensome [to the defendant] than necessary to redress the complaining parties.’’ Califano v. Yamasaki , 442 U.S. 682 , 702 (1979). And faithful application of those principles suggests that an extraordinary remedy like vacatur would demand truly extraordinary circumstances to justify it. Cf. S. Bray & P. Miller, Getting Into Equity, 97 N. D. L. Rev. 1763, 1797 (2022) (“[I]n equity it all connects—the broader and deeper the remedy the plaintiff wants, the stronger the plaintiff ’s story needs to be.”). The temptations a single district judge may face when invited to vacate agency rules are obvious. Often, plaintiffs argue that everyone deserves to benefit from their effort to litigate the case and the court’s effort to decide it. Judges may think efficiency and uniformity favor the broadest possible relief. But there are serious countervailing considerations. As with universal injunctions, vacatur can stymie the orderly review of important questions, lead to forum shopping, render meaningless rules about joinder and class actions, and facilitate efforts to evade the APA’s normal rulemaking processes. Vacatur can also sweep up nonparties who may not wish to receive the benefit of the court’s decision. Exactly that happened here. Dozens of States, counties, and cities tell us they did not seek and do not want the “benefit” of the district court’s vacatur order in this case. See Brief for New York et al. as Amici Curiae 1–2; Brief for 21 Cities, Counties, and Local Government Organizations as Amici Curiae 2–3. More importantly still, universal relief, whether by way of injunction or vacatur, strains our separation of powers. It exaggerates the role of the Judiciary in our constitutional order, allowing individual judges to act more like a legislature by decreeing the rights and duties of people nationwide. This Court has warned that “[f]ew exercises of the judicial power are more likely to undermine public confidence in the neutrality and integrity of the Judiciary than one which casts [courts] in the role of a Council of Revision, conferring on [themselves] the power to invalidate laws at the behest of anyone who disagrees with them.” Arizona Christian School Tuition Organization v. Winn , 563 U.S. 125 , 145–146 (2011). At a minimum, then, district courts must carefully consider all these things before doling out universal relief. And courts of appeals must do their part, too, asking whether party-specific relief can adequately protect the plaintiff ’s interests. If so, an appellate court should not hesitate to hold that broader relief is an abuse of discretion. Cf. Kentucky v. Biden , 57 F. 4th 545, 556–557 (CA6 2023) (Larsen, J.). * In our system of government, federal courts play an important but limited role by resolving cases and controversies. Standing doctrine honors this limitation at the front end of every lawsuit. It preserves a forum for plaintiffs seeking relief for concrete and personal harms while filtering out those with generalized grievances that belong to a legislature to address. Traditional remedial rules do similar work at the back end of a case. They ensure successful plaintiffs obtain meaningful relief. But they also restrain courts from altering rights and obligations more broadly in ways that would interfere with the power reserved to the people’s elected representatives. In this case, standing and remedies intersect. The States lack standing because federal courts do not have authority to redress their injuries. Section 1252(f )(1) denies the States any coercive relief. A vacatur order under §706(2) supplies them no effectual relief. And such an order itself may not even be legally permissible. The States urge us to look past these problems, but I do not see how we might. The Constitution affords federal courts considerable power, but it does not establish “government by lawsuit.” R. Jackson, The Struggle for Judicial Supremacy 286–287 (1941). SUPREME COURT OF THE UNITED STATES _________________ No. 22–58 _________________ UNITED STATES, et al., PETITIONERS v. TEXAS, et al. on writ of certiorari to the united states court of appeals for the fifth circuit [June 23, 2023] Justice Barrett, with whom Justice Gorsuch joins, concurring in the judgment. I agree with the Court that the States lack standing to challenge the Federal Government’s Guidelines for the enforcement of immigration law. But I reach that conclusion for a different reason: The States failed to show that the District Court could order effective relief. Justice Gorsuch ably explains why that is so. Ante , p. 1 (opinion concurring in judgment). And because redressability is an essential element of Article III standing, the District Court did not have jurisdiction. The Court charts a different path. In its view, this case can be resolved based on what it calls the “fundamental Article III principle” that “ ‘a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.’ ” Ante , at 1 (quoting Linda R. S. v. Richard D. , 410 U.S. 614 , 619 (1973)). In other words, the Court says, the States have not asserted a “ ‘judicially cognizable interest’ ” in this case. Ante , at 5. Respectfully, I would not take this route. I To begin with, I am skeptical that Linda R. S. suffices to resolve this dispute. First, the Court reads that decision too broadly. Consider the facts. The “mother of an illegitimate child” sued in federal court, “apparently seek[ing] an injunction running against the district attorney forbidding him from declining prosecution” of the child’s father for failure to pay child support. 410 U. S., at 614–616. She objected, on equal protection grounds, to the State’s view that “fathers of illegitimate children” were not within the ambit of the relevant child-neglect statute. Id. , at 616. We agreed that the plaintiff “suffered an injury stemming from the failure of her child’s father to contribute support payments.” Id. , at 618. But if the plaintiff “were granted the requested relief, it would result only in the jailing of the child’s father.” Ibid . Needless to say, the prospect that prosecution would lead to child-support payments could, “at best, be termed only speculative.” Ibid. For this reason, we held that the plaintiff lacked standing. Only then, after resolving the standing question on redressability grounds, did we add that “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” Id. , at 619. In short, we denied standing in Linda R. S. because it was speculative that the plaintiff ’s requested relief would redress her asserted injury, not because she failed to allege one. See Duke Power Co. v. Carolina Environmental Study Group, Inc. , 438 U.S. 59 , 79, n. 24 (1978). Viewed properly, Linda R. S. simply represents a specific application of the general principle that “when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish” given the causation and redressability issues that may arise. Lujan v. Defenders of Wildlife , 504 U.S. 555 , 562 (1992). That is true for the States here. I see little reason to seize on the case’s bonus discussion of whether “a private citizen” has a “judicially cognizable interest in the prosecution or nonprosecution of another” to establish a broad rule of Article III standing. Linda R. S. , 410 U. S., at 619. Second, even granting the broad principle the Court takes from Linda R. S. , I doubt that it applies with full force in this case. Unlike the plaintiff in Linda R. S. , the States do not seek the prosecution of any particular individual—or even any particular class of individuals. See ASARCO Inc. v. Kadish , 490 U.S. 605 , 624 (1989) (“[F]ederal standing ‘often turns on the nature and source of the claim asserted’ ”). In fact, they disclaim any interest in the prosecution or nonprosecution of noncitizens. See Brief for Respondents 15; Tr. of Oral Arg. 124–125. They acknowledge that 8 U. S. C. §1226(c)(1)’s detention obligation “only applies until” the Government makes “a decision whether or not to prosecute.” Tr. of Oral Arg. 100. And they readily concede that if the Government decides not to prosecute, any detention obligation imposed by §1226(c)(1) “immediately ends.” Ibid . The States make similar concessions with respect to §1231(a)(2). They maintain, for example, that §1231(a)(2) applies “only where the United States has used its prosecutorial discretion to bring a notice to appear, to prosecute that all the way to a final . . . order of removal.” Id ., at 130. But if the Government for any reason “choose[s] to discontinue proceedings,” the alleged detention obligation does not attach. Id. , at 131. The upshot is that the States do not dispute that the Government can prosecute whomever it wants. They seek, instead, the temporary detention of certain noncitizens during elective removal proceedings of uncertain duration. And the States’ desire to remove the Guidelines’ influence on the Government’s admittedly broad discretion to enforce immigration law meaningfully differs from the Linda R. S. plaintiff ’s desire to channel prosecutorial discretion toward a particular target. Given all of this, I would not treat Linda R. S. as the “leading precedent” for resolving this case. Ante , at 5. In my view, the Court is striking new ground rather than applying settled principles. II In addition to its reliance on Linda R. S. , the Court offers several reasons why “federal courts have not traditionally entertained lawsuits of this kind.” Ante , at 6. I am skeptical that these reasons are rooted in Article III standing doctrine. Take, for example, the Court’s discussion of Castle Rock v. Gonzales , 545 U.S. 748 (2005). Ante , at 10. There, we reasoned that given “[t]he deep-rooted nature of law-enforcement discretion,” a “true mandate of police action would require some stronger indication” from the legislature than, for example, the bare use of the word “ ‘shall’ ” in a statutory directive. Castle Rock , 545 U. S., at 761. The Court today concludes that “no such statute is present in this case.” Ante , at 10. But Castle Rock is not a case about Article III standing. It addressed “whether an individual who has obtained a state-law restraining order has a constitutionally protected property interest” under the Fourteenth Amendment “in having the police enforce the restraining order when they have probable cause to believe it has been violated.” 545 U. S., at 750–751. I see no reason to opine on Castle Rock ’s application here, especially given that the parties (correctly) treat Castle Rock as relevant to the merits of their statutory claims rather than to the States’ standing to bring them. See Brief for Petitioners 8; Brief for Respondents 30. The Court also invokes “the Executive’s Article II authority to enforce federal law.” Ante , at 6. I question whether the President’s duty to “take Care that the Laws be faithfully executed,” Art. II, §3, is relevant to the standing analysis. While it is possible that Article II imposes justiciability limits on federal courts, it is not clear to me why any such limit should be expressed through Article III’s definition of a cognizable injury. Moreover, the Court works the same magic on the Take Care Clause that it does on Castle Rock : It takes an issue that entered the case on the merits and transforms it into one about standing. See ante , at 4 (opinion of Gorsuch, J.) The Court leans, too, on principles set forth in Heckler v. Chaney , 470 U.S. 821 (1985). Ante , at 8, 11. But, again, Heckler was not about standing. It addressed a different question: “the extent to which a decision of an administrative agency to exercise its ‘discretion’ not to undertake certain enforcement actions is subject to judicial review under the Administrative Procedure Act.” 470 U. S., at 823; see also 5 U. S. C. §701(a)(2) (the APA’s judicial-review provisions do not apply “to the extent” that “agency action is committed to agency discretion by law”). Heckler held that “an agency’s decision not to take enforcement action should be presumed immune from judicial review under” the APA. 470 U. S., at 832. But such a decision “is only presumptively unreviewable; the presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.” Id. , at 832–833. Whatever Heckler ’s relevance to cases like this one, it does not establish a principle of Article III standing. And elevating it to the status of a constitutional rule would transform it from a case about statutory provisions (that Congress is free to amend) to one about a constitutional principle (that lies beyond Congress’s domain). Although the Court notes that Heckler involved the APA, its conflation of Heckler with standing doctrine is likely to cause confusion. See ante , at 8 (analogizing “Article III cases” to “Administrative Procedure Act cases”). *  *  * The Court weaves together multiple doctrinal strands to create a rule that is not only novel, but also in tension with other decisions. See ante, at 2–4 (opinion of Gorsuch, J.). In my view, this case should be resolved on the familiar ground that it must be “ ‘likely,’ as opposed to merely ‘speculative,’ ” that any injury “will be ‘redressed by a favorable decision.’ ” Lujan , 504 U. S., at 561. I respectfully concur only in the judgment. SUPREME COURT OF THE UNITED STATES _________________ No. 22–58 _________________ UNITED STATES, et al., PETITIONERS v. TEXAS, et al. on writ of certiorari to the united states court of appeals for the fifth circuit [June 23, 2023] Justice Alito, dissenting. The Court holds Texas lacks standing to challenge a federal policy that inflicts substantial harm on the State and its residents by releasing illegal aliens with criminal convictions for serious crimes. In order to reach this conclusion, the Court brushes aside a major precedent that directly controls the standing question, refuses to apply our established test for standing, disregards factual findings made by the District Court after a trial, and holds that the only limit on the power of a President to disobey a law like the important provision at issue is Congress’s power to employ the weapons of inter-branch warfare—withholding funds, impeachment and removal, etc. I would not blaze this unfortunate trail. I would simply apply settled law, which leads ineluctably to the conclusion that Texas has standing. This Court has long applied a three-part test to determine whether a plaintiff has standing to sue. Under that test, a plaintiff must plead and ultimately prove that it has been subjected to or imminently faces an injury that is: (1) “concrete and particularized,” (2) “fairly traceable to the challenged action,” and (3) “likely” to be “redressed by a favorable decision.” Lujan v. Defenders of Wildlife , 504 U.S. 555 , 560–561 (1992) (internal quotation marks and alterations omitted). Under that familiar test, Texas clearly has standing to bring this suit.[ 1 ] Nevertheless, the United States (the defendant in this case) has urged us to put this framework aside and adopt a striking new rule. At argument, the Solicitor General was asked whether it is the position of the United States that the Constitution does not allow any party to challenge a President’s decision not to enforce laws he does not like. What would happen, the Solicitor General was asked, if a President chose not to enforce the environmental laws or the labor laws? Would the Constitution bar an injured party from bringing suit? She responded: “ That’s correct under this Court’s precedent , but the framers intended political checks in that circumstance. You know, if—if an administration did something that extreme and said we’re just not going to enforce the law at all, then the President would be held to account by the voters, and Congress has tools at its disposal as well.” Tr. of Oral Arg. 50 (emphasis added). Thus, according to the United States, even if a party clearly meets our three-part test for Article III standing, the Constitution bars that party from challenging a President’s decision not to enforce the law. Congress may wield what the Solicitor General described as “political . . . tools”—which presumably means such things as withholding funds, refusing to confirm Presidential nominees, and impeachment and removal—but otherwise Congress and the American people must simply wait until the President’s term in office expires. The Court—at least for now—does not fully embrace this radical theory and instead holds only that, with some small and equivocal limitations that I will discuss, no party may challenge the Executive’s “arrest and prosecution policies.” Ante , at 12, n. 5. But the Court provides no principled explanation for drawing the line at this point, and that raises the concern that the Court’s only reason for framing its rule as it does is that no more is needed to dispose of this case. In future cases, Presidential power may be extended even further. That disturbing possibility is bolstered by the Court’s refusal to reject the Government’s broader argument. As I will explain, nothing in our precedents even remotely supports this grossly inflated conception of “executive Power,” U. S. Const., Art. II, §1, which seriously infringes the “legislative Powers” that the Constitution grants to Congress, Art. I, §1. At issue here is Congress’s authority to control immigration, and “[t]his Court has repeatedly emphasized that ‘over no conceivable subject is the legislative power of Congress more complete than it is over’ the admission of aliens.” Fiallo v. Bell , 430 U.S. 787 , 792 (1977). In the exercise of that power, Congress passed and President Clinton signed a law that commands the detention and removal of aliens who have been convicted of certain particularly dangerous crimes. The Secretary of Homeland Security, however, has instructed his agents to disobey this legislative command and instead follow a different policy that is more to his liking. And the Court now says that no party injured by this policy is allowed to challenge it in court. That holding not only violates the Constitution’s allocation of authority among the three branches of the Federal Government; it also undermines federalism. This Court has held that the Federal Government’s authority in the field of immigration severely restricts the ability of States to enact laws or follow practices that address harms resulting from illegal immigration. See Arizona v. United States , 567 U.S. 387 , 401 (2012). If States are also barred from bringing suit even when they satisfy our established test for Article III standing, they are powerless to defend their vital interests. If a President fails or refuses to enforce the immigration laws, the States must simply bear the consequences. That interpretation of executive authority and Article III’s case or controversy requirement is deeply and dangerously flawed. I The Court’s opinion omits much that is necessary to understand the significance of its decision, and I therefore begin by summarizing the relevant statutory provisions, the challenged Department of Homeland Security (DHS) action, and the District Court’s findings of fact regarding the injury faced by the State of Texas as the result of what DHS has done. A The relevant statutory provisions have figured in several prior decisions, and in those cases we have recounted how they came to be enacted and have clearly described what they require. These provisions were part of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA), which was adopted “against a backdrop of wholesale failure by the [Immigration and Naturalization Service] to deal with increasing rates of criminal activity by aliens.” Demore v. Kim , 538 U.S. 510 , 518 (2003).[ 2 ] Congress concluded that a central cause of that failure was the Attorney General’s “broad discretion to conduct individualized bond hearings and to release criminal aliens from custody during their removal proceedings.” Id. , at 519. To remedy this problem, Congress “ subtract[ed] some of that discretion when it comes to the arrest and release of criminal aliens.” Nielsen v. Preap , 586 U. S. ___, ___ (2019) (slip op., at 15) (emphasis in original). Two such limits are important here. First, 8 U. S. C. §1226(c) directs the Government to “take into custody any alien” inadmissible or deportable on certain criminal or terrorist grounds “when the alien is released” from criminal custody, including when such an alien is released on “parole, supervised release, or probation.” Second, §1231(a) imposes a categorical detention mandate. Section 1231(a)(2) provides that the Government “shall detain [an] alien” “[d]uring the removal period,” which often begins either when an “order of removal becomes administratively final” or when an “alien is released from detention or confinement” not arising from immigration process, §1231(a)(1)(B). This requirement is reinforced by the direction that “[u]nder no circumstance during the removal period shall the [Government] release an alien” found inadmissible or deportable under almost any of the grounds relevant under §1226(c). §1231(a)(2). And §1231(a)(1)(A) commands that the Government “shall remove the alien” within the removal period. All of our recent decisions interpreting these provisions confirm that, for covered aliens, shall means shall ; it does not mean “may.” See Johnson v. Guzman Chavez , 594 U. S. ___, ___–___, and n. 2 (2021) (slip op., at 2–3, and n. 2); Nielsen , 586 U. S., at ___–___ (slip op., at 16–17). Until quite recently, that was the Government’s understanding as well. See Biden v. Texas , 597 U. S. ___, ___–___ (2022) (slip op., at 8–9) (Alito, J., dissenting). Actions taken by Congress when IIRIRA was enacted underscore this conclusion. Because the provisions described above left the Executive with no discretion to refrain from arresting and detaining covered aliens, even during the time immediately after IIRIRA’s enactment when the Executive was still “expand[ing] its capacities” to enforce the new law, Congress passed “transition rules [that] delayed the onset of the Secretary’s obligation to begin making arrests as soon as covered aliens were released from criminal custody.” Nielsen , 586 U. S., at ___ (slip op., at 21). If the Executive had possessed the discretion to decline to enforce the new mandates in light of “resource constraints,” see ante , at 8, those transition rules would have been entirely “superfluous.” Nielsen , 586 U. S., at ___ (slip op., at 21). Despite this clear text and background, the majority now claims that the President’s “enforcement discretion” survived these mandates, ante , at 7, but there is no basis for that conclusion. Certainly it is not supported by the cases it cites. They either underscore the general rule that the Executive possesses enforcement discretion, see Reno v. American-Arab Anti-Discrimination Comm. , 525 U.S. 471 , 490–491 (1999), or pair that general rule with the observation that the States cannot limit the Government’s discretion in pursuing removal, see Arizona , 567 U. S., at 396, 409. Nothing in those decisions is inconsistent with Congress’s power to displace executive discretion, and the fact that “five Presidential administrations” sometimes neglected the mandates is likewise irrelevant. See ante , at 8. As I have stressed before, the Executive cannot “acquire authority forbidden by law through a process akin to adverse possession,” Biden v. Texas , 597 U. S., at ___ (dissenting opinion) (slip op., at 15), and that is true even if the adverse possession is bipartisan. B The events that gave rise to this case began on January 20, 2021, when the Acting Secretary of DHS issued a memorandum with “enforcement priorities” for the detention and removal of aliens found to be in this country illegally. This memorandum prioritized: (1) aliens “whose apprehension” implicated “national security,” (2) aliens not present “before November 1, 2020,” and (3) aliens due to be released from criminal confinement who had both been “convicted of an ‘aggravated felony’ ” and were “determined to pose a threat to public safety.” 606 F. Supp. 3d 437, 454 (SD Tex. 2022) (internal quotation marks omitted); see §1101(a)(43) (defining “aggravated felony”). This prioritization was inconsistent with the §1226(c) arrest mandate, which extends to all aliens convicted of any crime within a long list of statutory categories. 606 F. Supp. 3d, at 454–455. In February, Immigrations and Customs Enforcement (ICE), an arm of DHS, issued a second memorandum that slightly modified the earlier priorities and stated that “ ‘preapproval’ ” would generally be required “for enforcement actions” against persons outside these priority groups. Id. , at 455–456. This memorandum was also inconsistent with the relevant statutes. After some litigation regarding these two memoranda, a new DHS Secretary issued a Final Memorandum instructing that even aliens in priority groups need not necessarily be apprehended and removed. App. 113–115. Rather, the Final Memorandum directed DHS personnel to consider non-statutory “aggravating and mitigating factors” in deciding whether to detain an alien. Id. , at 114–115. It further stated that DHS “personnel should not rely on the fact of [a qualifying] conviction” when exercising “prosecutorial discretion.” Id ., at 115 . Thus, the Final Memorandum did not simply permit deviations from the statutory mandates; it flatly contradicted those mandates by stating that qualifying convictions were insufficient grounds for initiating arrest, detention, and removal. C Texas and Louisiana challenged this Final Memorandum in federal court under the Administrative Procedure Act (APA). After a 2-day bench trial, the District Court found in favor of the States and made detailed findings of fact that bear on the issue of standing. Much of the District Court’s analysis of that issue focused on the Final Memorandum’s effect on the “detainer” system, 606 F. Supp. 3d, at 459–463, and it is therefore important to understand how that system works in relation to the relevant statutory provisions. When an alien in state custody for a criminal offense is identified as falling within a category of aliens whose apprehension and detention is required by §§1226(a) and (c), the Government should lodge a “detainer” with the State so that the Government can take the alien into custody when he or she is released by the State. Then, when an alien is about to be released, a cooperative State will notify DHS so that it can be ready to assume its obligation under §§1226(a) and (c) to take the alien into federal custody. When that occurs, the State is spared the burdens it would have to bear if the alien, after release, had been placed under state law on probation, parole, or supervised release. But if DHS rescinds a detainer before such an alien is released (or never lodges a detainer in the first place), those burdens fall on the State. After reviewing the parties’ evidence, the District Court found that in the first month after the substantive policy change brought about by the January 2021 DHS memorandum, ICE had rescinded 141 detainers in Texas.[ 3 ] Ninety-five of the criminal aliens whose detainers were rescinded were then released on a form of state supervision. Seventeen of them went on to violate their terms of supervision, and four committed new crimes. Id. , at 459. The court then examined what had taken place during just the time “since the Final Memorandum became effective” and found that “because of the Final Memorandum,” “ICE ha[d] continued to rescind detainers placed on criminal aliens in [Texas’s] custody,” and the court identified 15 specific cases in which this had occurred. Id. , at 460. Rejecting the Government’s claim that these dropped detainers were necessary in light of “limited resources,” the court found that “the Government . . . persistently underutilized existing detention facilities” during the relevant time and that the average daily detained population in April 2022 was less than 40% of the 3-year high in August 2019. Id. , at 453, 481, 488. Based on these findings of fact and historical data, the District Court identified four categories of costs that Texas had suffered and would continue to bear as a result of the relevant DHS actions. First, the court calculated the dollars-and-cents cost that Texas had to bear in order to supervise criminal aliens who were released in violation of §§1226(a), (c). Id. , at 463. Second, it noted the costs associated with criminal recidivism. Id. , at 464. Third, it found that some juvenile offenders who “are not detained by ICE because of the Final Memorandum” will attend Texas public schools (and at least one juvenile due to be released will do so). Ibid. Fourth, it concluded that the hundreds of millions of dollars that Texas annually spends on healthcare for illegal aliens would increase when some criminal aliens not detained “because of the Final Memorandum” make use of those services. Id. , at 465. Concluding that these costs established Texas’s injury for standing purposes, the District Court went on to hold that the Final Memorandum was contrary to law and that Texas had therefore established a violation of the APA.[ 4 ] As I will explain, it is a common practice for courts in APA cases to set aside an improper final agency action, and that is what the District Court did here. It vacated the Final Memorandum pending further action by DHS, id. , at 499, but it declined to issue injunctive or declaratory relief, id. , at 501–502. The Government asked the Court of Appeals to stay the District Court’s order vacating the Final Memorandum, but that court refused to do so and observed that the Government had not “come close” to showing “ ‘clear error’ ” in the District Court’s factual findings on the injuries that Texas had already incurred and would continue to incur because of the Final Memorandum. 40 F. 4th 205, 216–217 (CA5 2022). II Before I address the Court’s inexplicable break from our ordinary standing analysis, I will first explain why Texas easily met its burden to show a concrete, particularized injury that is traceable to the Final Memorandum and redressable by the courts. Lujan , 504 U. S., at 560–561. A Injury in fact. The District Court’s factual findings, which must be accepted unless clearly erroneous, quantified the cost of criminal supervision of aliens who should have been held in DHS custody and also identified other burdens that Texas had borne and would continue to bear going forward. These findings sufficed to establish a concrete injury that was specific to Texas. TransUnion LLC v. Ramirez , 594 U. S. ___, ___ (2021) (slip op., at 9); see ante , at 4 (conceding that such costs are “of course an injury”). Traceability. The District Court found that each category of cost would increase “ because of the Final Memorandum,” rather than decisions that DHS personnel would make irrespective of the directions that memorandum contains. 606 F. Supp. 3d, at 460, 464, 465 (emphasis added). The majority does not hold—and in my judgment, could not plausibly hold—that these findings are clearly erroneous. Instead, it observes only that a “State’s claim for standing can become more attenuated” when based on the “indirect effects” of federal policies “on state revenues or state spending.” Ante , at 9, n. 3. But while it is certainly true that indirect injuries may be harder to prove, an indirect financial injury that is proved at trial supports standing. And that is what happened here. As Justice Gorsuch notes, just a few years ago, we found in a very important case that a State had standing based in part on indirect financial injury. Ante , at 3 (opinion concurring in judgment) (citing Department of Commerce v. New York , 588 U. S. ___, ___–___ (2019) (slip op., at 9–10)). There is no justification for a conflicting holding here. In any event, many of the costs in this case are not indirect. When the Federal Government refuses or fails to comply with §§1226(a) and (c) as to criminal aliens, the direct result in many cases is that the State must continue its supervision. As noted, the District Court made specific findings about the financial cost that Texas incurred as a result of DHS’s failure to assume custody of aliens covered by §§1226(a) and (c). And the costs that a State must bear when it is required to assume the supervision of criminal aliens who should be kept in federal custody are not only financial. Criminal aliens whom DHS unlawfully refuses to detain may be placed on state probation, parole, or supervised release, and some will commit new crimes and end up in a state jail or prison. Probation, parole, and corrections officers are engaged in dangerous work that can put their lives on the line. Redressability. A court order that forecloses reliance on the memorandum would likely redress the States’ injuries. If, as the District Court found, DHS personnel rescind detainers “because of ” the Final Memorandum, then vacating that memorandum would likely lead to those detainers’ remaining in place. B While the majority does not contest redressability, Justice Gorsuch’s concurrence does, citing two reasons. But the first is contrary to precedent, and the second should not be addressed in this case. The first asserted reason is based on the inability of the lower courts to issue a broad injunction forbidding enforcement of the Final Memorandum. See §1252(f )(1).[ 5 ] In this case, the District Court did not issue injunctive relief. Instead, it vacated the Final Memorandum, and Justice Gorsuch argues that this relief did not redress Texas’s injuries because it does not “require federal officials to change how they exercise [their prosecutorial] discretion in the [Final Memorandum’s] Guidelines’ absence.” Ante , at 6. There are two serious problems with this argument. First, §1252(f )(1) bars injunctive relief by courts “ other than the Supreme Court.” (Emphasis added.) As a result, redress in the form of an injunction can be awarded by this Court. According to the Court’s decision last Term in Biden v. Texas , our authority to grant such relief “le[ft] no doubt” as to our jurisdiction even if §1252(f )(1) precluded the lower courts from setting aside an administrative action under the APA. 597 U. S., at ___ (slip op., at 10). We have not been asked to revisit this holding, see id. , at ___–___ (Barrett, J., dissenting) (slip op., at 3–4), and I would not do so here. Second, even if Biden v. Texas could be distinguished and no injunctive relief can be awarded by any court, setting aside the Final Memorandum satisfies the redressability requirement. Our decision in Franklin v. Massachusetts , 505 U.S. 788 (1992), settles that question. There, the Court held that a declaratory judgment regarding the lawfulness of Executive Branch action satisfied redressability because “it [was] substantially likely that the President and other executive . . . officials would abide by an authoritative interpretation” of the law “even though they would not be directly bound by such a determination.” Id ., at 803 (opinion of O’Connor, J.).[ 6 ] Here, we need not speculate about how DHS officers would respond to vacatur of the Final Memorandum because the District Court found that the DHS personnel responsible for detainers were rescinding them “because of ” the Final Memorandum. 606 F. Supp. 3d, at 460. This point was effectively conceded by the Government’s application for an emergency stay pending our decision in this case. The Government argued that the Final Memorandum was needed to guide prosecutorial discretion, Application 38–39, and if the District Court’s order were ineffectual, that would not be true. For these reasons, the harm resulting from the Final Memorandum is redressed by setting aside the Final Memorandum. As to the concurrence’s second argument—that the APA’s “set aside” language may not permit vacatur—the concurrence acknowledges that this would be a sea change in administrative law as currently practiced in the lower courts. Ante , at 16 (opinion of Gorsuch, J.); see, e.g. , Data Marketing Partnership, LP v. United States Dept. of Labor , 45 F. 4th 846, 859 (CA5 2022) (“The default rule is that vacatur is the appropriate remedy” under the APA); United Steel v. Mine Safety and Health Admin. , 925 F.3d 1279, 1287 (CADC 2019) (“The ordinary practice is to vacate unlawful agency action”).[ 7 ] We did not grant review on this very consequential question, and I would not reach out to decide it in a case in which Biden v. Texas resolves the issue of redressability. To be clear, I would be less troubled than I am today if Justice Gorsuch’s concurrence had commanded a majority. At least then, Congress would be free to amend §1252(f ). But the majority reaches out and redefines our understanding of the constitutional limits on otherwise-available lawsuits. It is to this misunderstanding that I now turn. III The majority adopts the remarkable rule that injuries from an executive decision not to arrest or prosecute, even in a civil case, are generally not “cognizable.” Ante , at 4 (internal quotation marks omitted). Its reasoning has three failings. First, it fails to engage with contrary precedent that is squarely on point. Second, it lacks support in the cases on which it relies. Third, the exceptions (or possible exceptions) that it notes do nothing to allay concern about the majority’s break from our established test for Article III standing. I address each of these problems in turn. A Prior to today’s decision, it was established law that plaintiffs who suffer a traditional injury resulting from an agency “decision not to proceed” with an enforcement action have Article III standing. Federal Election Comm’n v. Akins , 524 U.S. 11 , 19 (1998). The obvious parallel to the case before us is Massachusetts v. EPA , 549 U.S. 497 (2007), which has been called “the most important environmental law case ever decided by the Court.” R. Lazarus, The Rule of Five: Making Climate History at the Supreme Court 1 (2020). In that prior case, Massachusetts challenged the Environmental Protection Agency’s failure to use its civil enforcement powers to regulate greenhouse gas emissions that allegedly injured the Commonwealth. Massachusetts argued that it was harmed because the accumulation of greenhouse gases would lead to higher temperatures; higher temperatures would cause the oceans to rise; and rising sea levels would cause the Commonwealth to lose some of its dry land. The Court noted that Massachusetts had a “quasi-sovereign interes[t]” in avoiding the loss of territory and that our federalist system had stripped the Commonwealth of “certain sovereign prerogatives” that it could have otherwise employed to defend its interests. Massachusetts , 549 U. S., at 519–520. Proclaiming that Massachusetts’ standing claim was entitled to “special solicitude,” the Court held that the Commonwealth had standing. Id. , at 520. The reasoning in that case applies with at least equal force in the case at hand. In Massachusetts v. EPA , the Court suggested that allowing Massachusetts to protect its sovereign interests through litigation compensated for its inability to protect those interests by the means that would have been available had it not entered the Union. In the present case, Texas’s entry into the Union stripped it of the power that it undoubtedly enjoyed as a sovereign nation to police its borders and regulate the entry of aliens. The Constitution and federal immigration laws have taken away most of that power, but the statutory provisions at issue in this case afford the State at least some protection—in particular by preventing the State and its residents from bearing the costs, financial and non-financial, inflicted by the release of certain dangerous criminal aliens. Our law on standing should not deprive the State of even that modest protection. We should not treat Texas less favorably than Massachusetts. And even if we do not view Texas’s standing argument with any “special solicitude,” we should at least refrain from treating it with special hostility by failing to apply our standard test for Article III standing. Despite the clear parallel with this case and the States’ heavy reliance on Massachusetts throughout their briefing, the majority can only spare a passing footnote for that important precedent. Ante , at 13, n. 6; see Brief for Respondents 11, 12, 14, 16–18, 23; see also Brief for Arizona and 17 Other States as Amici Curiae 7–12. It first declines to say Massachusetts was correctly decided and references the “disagreements that some may have” with that decision. Ante , at 13, n. 6. But it then concludes that Massachusetts “does not control” since the decision itself refers to “ ‘key differences between a denial of a petition for rulemaking and an agency’s decision not to initiate an enforcement action,’ ” with the latter “ ‘not ordinarily subject to judicial review.’ ” Ante , at 13, n. 6 (quoting 549 U. S., at 527) (emphasis added). The problem with this argument is that the portion of M assachusetts to which the footnote refers deals not with its key Article III holding, but with the scope of review that is “ordinarily” available under the statutory scheme. Importantly, Massachusetts frames its statement about declining enforcement as restating the rule of Heckler v. Chaney , 470 U.S. 821 (1985). See 549 U. S., at 527. And as the Court acknowledges when it invokes Heckler directly, that decision is not about standing; it is about the interpretation of the statutory exception to APA review for actions “committed to agency discretion by law.” 5 U. S. C. §701(a)(2); see 470 U. S., at 823; ante , at 11. And even in that context, Heckler expressly contemplates that any “presumption” of discretion to withhold enforcement can be rebutted by an express statutory limitation of discretion—which is exactly what we have here. 470 U. S., at 832–833. So rather than answering questions about this case, the majority’s footnote on Massachusetts raises more questions about Massachusetts itself—most importantly, has this monumental decision been quietly interred? Cf. ante , at 3 (Gorsuch, J., concurring in judgment). Massachusetts v. EPA is not the only relevant precedent that the Court brushes aside. “[I]t is well established that [this Court] has an independent obligation to assure that standing exists, regardless of whether it is challenged by any of the parties.” Summers v. Earth Island Institute , 555 U.S. 488 , 499 (2009). Yet in case after case, with that obligation in mind, we have not questioned the standing of States that brought suit under the APA to compel civil enforcement. In Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania , 591 U. S. ___ (2020), two States sued under the APA and sought to compel the Department of Health and Human Services to cease exercising regulatory enforcement discretion that exempted certain religious employers from compliance with a contraceptive-coverage mandate. Id. , at ___–___ (slip op., at 11–12). The issue of the States’ standing was discussed at length in the decision below, see Pennsylvania v. President United States , 930 F.3d 543, 561–565 (CA3 2019), and in this Court, no Justice suggested that the Constitution foreclosed standing simply because the States were complaining of “the Executive Branch’s . . . enforcement choices” regarding third parties. Ante , at 7. Just last Term in Biden v. Texas , two States argued that their spending on the issuance of driver’s licenses and the provision of healthcare for illegal immigrants sufficed to establish Article III standing and thus enabled them to sue to compel enforcement of a detain-or-return mandate. See Texas v. Biden , 20 F. 4th 928, 970–971 (CA5 2021). The Court of Appeals held that the States had standing, ibid ., and the majority in this Court, despite extended engagement with other jurisdictional questions, never hinted that Article III precluded the States’ suit. 597 U. S., at ___–___ (slip op., at 8–12). If the new rule adopted by the Court in this case is sound, these decisions and others like them were all just wasted ink. I understand that what we have called “ ‘drive-by jurisdictional rulings’ ” are not precedents, see Arbaugh v. Y & H Corp. , 546 U.S. 500 , 511 (2006), but the Court should not use a practice of selective silence to accept or reject prominently presented standing arguments on inconsistent grounds. B Examination of the precedents the majority invokes only underscores the deficiencies in its analysis.[ 8 ] The majority says that the “leading precedent” supporting its holding is Linda R. S. v. Richard D. , 410 U.S. 614 (1973). Ante , at 5. But as Justice Barrett notes, this Court has already definitively explained that the suit to compel prosecution in Linda R. S. was rejected “because of the unlikelihood that the relief requested would redress appellant’s claimed injury.” Duke Power Co. v. Carolina Environmental Study Group, Inc. , 438 U.S. 59 , 79, n. 24 (1978); see ante , at 2 (opinion concurring in judgment). The Court notes in a quick parenthetical that the “ Linda R. S. principle” was once “cit[ed] . . . in [the] immigration context” in Sure-Tan, Inc. v. NLRB , 467 U.S. 883 , 897 (1984), ante , at 5. But Sure-Tan ’s single “[c]f.” cite to Linda R. S. provides the Court no help. 467 U. S., at 897. Sure-Tan only rejected (quite reasonably) any standalone “cognizable interest in procuring enforcement of the immigration laws” by a party who lacked any “ personal interest.” Ibid. (emphasis added). And it did so, not as part of a standing analysis, but as part of its explanation for rejecting two employers’ attempt to assert that seeking to have employees deported as retaliation for union activity was “an aspect of their First Amendment right ‘to petition the Government for a redress of grievances.’ ” Id. , at 896. After these two inapposite precedents, the majority’s authority gets even weaker. I agree with Justice Barrett that neither Heckler , nor Castle Rock v. Gonzales , 545 U.S. 748 (2005), has real relevance here. Ante , at 4–5. Castle Rock considered the “deep-rooted nature of law-enforcement discretion” as a tool for interpreting a statute, not as a constitutional standing rule. 545 U. S., at 761. And as explained above, Heckler is not about standing and only states a presumptive rule. The Court’s remaining authorities are likewise consistent with the understanding that prosecution decisions are “ generally committed to an agency’s absolute discretion” unless the relevant law rebuts the “presumption.” Heckler , 470 U. S., at 831 (emphasis added). For example, TransUnion states that it is only when “unharmed plaintiffs” are before the Court that Article III forecloses interference with the “discretion of the Executive Branch.” 594 U. S., at ___ (slip op., at 13) (emphasis deleted). In sum, all of these authorities point, not to the majority’s new rule, but to the same ordinary questions we ask in every case—whether the plaintiff has a concrete, traceable, and redressable injury. C Despite the majority’s capacious understanding of executive discretion, today’s opinion assures the reader that the decision “do[es] not suggest that federal courts may never entertain cases involving the Executive Branch’s alleged failure to make more arrests or bring more prosecutions,” despite its otherwise broad language covering the “exercise of enforcement discretion over whether to arrest or prosecute.” Ante , at 5, 9. The majority lists five categories of cases in which a court would—or at least might—have Article III jurisdiction to entertain a challenge to arrest or prosecution policies, but this list does nothing to allay concern about the Court’s new path. The Court does not identify any characteristics that are shared by all these categories and that distinguish them from cases in which it would not find standing. In addition, the Court is unwilling to say that cases in four of these five categories are actually exempted from its general rule, and the one remaining category is exceedingly small. I will discuss these categories one by one. First , the majority distinguishes “selective-prosecution” suits by a plaintiff “to prevent his or her own prosecution,” ante , at 9. But such claims are ordinarily brought as defenses in ongoing prosecutions, as in the cases the Court cites, and are rarely brought in standalone actions where a plaintiff must prove standing. This category is therefore little more than a footnote to the Court’s general rule. Second , the majority grants that “the standing analysis might differ when Congress elevates de facto injuries to the status of legally cognizable injuries,” and it hypothesizes a situation in which Congress “(i) specifically authorize[s] suits against the Executive Branch by a defined set of plaintiffs who have suffered concrete harms from executive under-enforcement and (ii) specifically authorize[s] the Judiciary to enter appropriate orders requiring additional arrests or prosecutions by the Executive Branch.” Ante, at 10 (emphasis added). It is puzzling why the presence or absence of such a statute should control the question of standing under the Constitution. We have said that the enactment of a statute may help us to determine in marginal cases whether an injury is sufficiently concrete and particularized to satisfy the first prong of our three-part standing test. Spokeo, Inc. v. Robins , 578 U.S. 330, 341 (2016). But once it is posited that a plaintiff has personally suffered a “ de facto ” injury, i.e. , an injury in fact, it is hard to see why the presence or absence of a statute authorizing suit has a bearing on the question whether the court has Article III jurisdiction as opposed to the question whether the plaintiff has a cause of action. In the end, however, none of this may matter because the majority suggests that such a statute might be unconstitutional. Ante , at 10, and n. 4. Third , the majority tells us that the standing outcome “ might change” if the Federal Government “ wholly abandoned its statutory responsibilities,” but that statement is both equivocal and vague. Ante , at 11 (emphasis added). Under what circumstances might the Court say that the Federal Government has “wholly abandoned” its enforcement duties? Suppose the Federal Government announced that it would obey 80% of the immigration laws or 70% of the environmental laws. Would the Court say that it had “wholly abandoned” enforcement of these bodies of law? What would happen if the Final Memorandum in this case had directed DHS agents not to arrest anyone convicted of any covered crime other than murder? DHS would still be enforcing the arrest mandate as to one of the many covered crimes. Would this only-murder policy qualify as complete abandonment? And why should the ability of a particular party to seek legal redress for an injury turn on the number of others harmed by the challenged enforcement policy? Standing is assessed plaintiff by plaintiff. The majority has no answers, and in the end, it cannot even bring itself to commit to this complete-abandonment exception. It says only that “the standing calculus might ” or “arguably could ” change. Ibid. (emphasis added). Fourth , the Court says that a plaintiff might have standing to challenge an “Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status . . . because the challenged policy might implicate more than simply the Executive’s traditional enforcement discretion.” Ibid. Exactly what this means is not easy to ascertain. One possibility is that the majority is talking about a complaint that asserts separate claims based on the grant or denial of benefits, the grant or denial of legal status, and harms resulting from non-enforcement of a statutory mandate. In that event, standing with respect to each claim would have to be analyzed separately. Another possibility is that the majority is referring to a claim asserting that non-enforcement of a statutory requirement requiring the arrest or prosecution of third parties resulted in the plaintiff ’s loss of benefits or legal status. Such a situation is not easy to imagine, and the majority cites no case that falls within this category. But if such a case were to arise, there is no reason why it should not be analyzed under our standard three-pronged test. Fifth , and finally, the majority states that “policies governing the continued detention of noncitizens who have already been arrested arguably might raise a different standing question than arrest or prosecution policies.” Ante , at 12 (emphasis added). The majority provides no explanation for this (noncommittal) distinction, and in any event, as the majority acknowledges, the States in this case challenged noncompliance with the §1231(a)(2) detention mandate in addition to the §1226(c) arrest requirement. Ante , at 2, 13. The Court points to what it sees as a “represent[ation]” by the Solicitor General that the Final Memorandum does not affect “continued detention of noncitizens already in federal custody.” Ante , at 12, n. 5. But as Justice Barrett notes, the Government argued that when it chooses not to remove someone under the Final Memorandum’s guidance, its mandatory detention obligation ends—meaning it is asserting discretion over continued detention. Ante , at 3 (opinion concurring in judgment). In any event, arrest policy cannot be divided from detention policy in this case. When a person is arrested, he or she is detained for at least some period of time, and under the detainer system involved here, “arrest” often simply means transferring an immigrant from state custody to federal custody. As best I can tell, the majority’s distinction between arrest and detention is made solely to avoid the obvious inference that our decision last Term in Biden v. Texas should have dismissed the case for lack of standing, without analyzing “the Government’s detention obligations.” 597 U. S., at ___ (slip op., at 14). In sum, with the exception of cases in the first (very small) category (civil cases involving selective-prosecution claims), the majority does not identify any category of cases that it would definitely except from its general rule. In addition, category two conflates the question of constitutional standing with the question whether the plaintiff has a cause of action; category three is hopelessly vague; category four is incomprehensible; and category five actually encompasses the case before us. IV The Court declares that its decision upholds “[o]ur constitutional system of separation of powers,” ante , at 9, but as I said at the outset, the decision actually damages that system by improperly inflating the power of the Executive and cutting back the power of Congress and the authority of the Judiciary. And it renders States already laboring under the effects of massive illegal immigration even more helpless. Our Constitution gives the President important powers, and the precise extent of some of them has long been the subject of contention, but it has been widely accepted that “the President’s power reaches ‘its lowest ebb’ when he contravenes the express will of Congress, ‘for what is at stake is the equilibrium established by our constitutional system.’ ” Zivotofsky v. Kerry , 576 U.S. 1, 61 (2015) (Roberts, C. J., dissenting) (quoting Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579 , 637–638 (1952) (Jackson, J., concurring)). That is the situation here. To put the point simply, Congress enacted a law that requires the apprehension and detention of certain illegal aliens whose release, it thought, would endanger public safety. The Secretary of DHS does not agree with that categorical requirement. He prefers a more flexible policy. And the Court’s answer today is that the Executive’s policy choice prevails unless Congress, by withholding funds, refusing to confirm Presidential nominees, threatening impeachment and removal, etc., can win a test of strength. Relegating Congress to these disruptive measures radically alters the balance of power between Congress and the Executive, as well as the allocation of authority between the Congress that enacts a law and a later Congress that must go to war with the Executive if it wants that law to be enforced.[ 9 ] What the majority has done is to apply Oliver Wendell Holmes’s bad-man theory of the law to the separation of powers. Under Holmes’s theory, as popularly understood, the law consists of those things that a bad man cannot get away with.[ 10 ] Similarly, the majority’s understanding of the “executive Power” seems to be that a President can disobey statutory commands unless Congress, by flexing its muscles, forces capitulation. That is not the Constitution’s conception of “the executive Power.” Art. II, §1. The Constitution, instead, requires a President to “take Care that the Laws be faithfully executed.” §3 (emphasis added). Neither the Solicitor General nor the majority has cited any support for the proposition that a President has the power to disobey statutes that require him to take enforcement actions, and there is strong historical evidence to the contrary.[ 11 ] The majority’s conception of Presidential authority smacks of the powers that English monarchs claimed prior to the “Glorious Revolution” of 1688, namely, the power to suspend the operation of existing statutes, and to grant dispensations from compliance with statutes.[ 12 ] After James II was deposed, that changed. The English Bill of Rights of 1689 emphatically rejected “the pretended Power of Suspending of Laws or the Execution of Laws by Rega[l] Authority without Consent of Parl[i]ament” and “the pretended Power of Dispensing with Laws or the Execution of Laws by Rega[l] Authorit[y] as it ha[s] bee[n] assumed and exercised of late.”[ 13 ] By the time of the American Revolution, British monarchs had long abandoned the power to resist laws enacted by Parliament,[ 14 ] but the Declaration of Independence charged George III with exercising those powers with respect to colonial enactments. One of the leading charges against him was that he had “forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, . . . ha[d] utterly neglected to attend to them.”[ 15 ] By 1787, six State Constitutions contained provisions prohibiting the suspension of laws,[ 16 ] and at the Constitutional Convention, a proposal to grant the President suspending authority was unanimously defeated.[ 17 ] Many scholars have concluded that the Take Care Clause was meant to repudiate that authority.[ 18 ] See 1 Works of James Wilson 399, 440 (R. McCloskey ed. 1967) (describing Clause as providing that the President holds “authority, not to make, or alter, or dispense with the laws, but to execute and act the laws”). Early decisions are inconsistent with the understanding of Executive Power that appears to animate the majority. In 1806, Justice Patterson, while presiding over a criminal trial, rejected the argument that the President could authorize the defendant to violate the law. United States v. Smith , 27 F. Cas. 1192, 1201 (No. 16,342) (CC NY 1806). He concluded: “The president of the United States cannot control the statute, nor dispense with its execution, and still less can he authorize a person to do what the law forbids. If he could, it would render the execution of the laws dependent on his will and pleasure; which is a doctrine that has not been set up, and will not meet with any supporters in our government. In this particular, the law is paramount.” Id. , at 1230. In Kendall v. United States ex rel. Stokes , 12 Pet. 524 (1838), the full Court rejected the President’s claim that he had the authority to disregard a statutory duty to pay certain sums to a government contractor: “To contend that the obligations imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and is entirely inadmissible.” Id ., at 613. This Court made the obvious connection to the separation of powers: “vesting in the President a dispensing power” would result in “clothing the President with a power entirely to control the legislation of congress, and paralyze the administration of justice.” Ibid. ; see also Office of Personnel Management v. Richmond , 496 U.S. 414 , 435 (1990) (White, J., concurring) (citing Kendall to explain that the “Executive Branch does not have the dispensing power on its own” and “should not be granted such a power by judicial authorization”). The original understanding of the scope of the Executive’s prosecutorial discretion was not briefed in this case, and I am reluctant to express a firm position on the question. But it is indisputable that we have been provided with no historical support for the position taken by the Solicitor General or the majority. *  *  * This sweeping Executive Power endorsed by today’s decision may at first be warmly received by champions of a strong Presidential power, but if Presidents can expand their powers as far as they can manage in a test of strength with Congress, presumably Congress can cut executive power as much as it can manage by wielding the formidable weapons at its disposal. That is not what the Constitution envisions. I end with one final observation. The majority suggests that its decision rebuffs an effort to convince us to “ ‘usurp’ ” the authority of the other branches, but that is not true. Ante , at 3. We exercise the power conferred by Article III of the Constitution, and we must be vigilant not to exceed the limits of our constitutional role. But when we have jurisdiction, we have a “virtually unflagging obligation” to exercise that authority . Colorado River Water Conservation Dist. v. United States , 424 U.S. 800 , 817 (1976). Because the majority shuns that duty, I must respectfully dissent. Notes 1 In a case with multiple plaintiffs, Article III permits us to reach the merits if any plaintiff has standing. Rumsfeld v. Forum for Academic and Institutional Rights, Inc. , 547 U.S. 47 , 52, n. 2 (2006). Because Texas clearly meets our test for Article III standing, it is not necessary to consider whether the other plaintiff, the State of Louisiana, also satisfies that test. 2 The Immigration and Naturalization Service was merged into DHS in 2003. 3 This figure excludes instances where a detainer was withdrawn but then reissued, or where an alien previously subject to a withdrawn detainer was taken into federal custody. 4 The District Court also concluded that the Final Memorandum was “arbitrary and capricious,” and had not undergone “notice and comment,” resulting in separate APA violations. 606 F. Supp. 3d, at 492, 495. Because the majority’s standing analysis applies equally to any APA violation, I focus only on the contrary-to-law claim and express no opinion on these further claims. 5 Section 1252(f )(1) reads in full: “Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.” 6 While only four of eight Justices finding standing in Franklin formally joined this explanation, see 505 U. S., at 824, n. 1 (Scalia, J., concurring in part and concurring in judgment), the Court subsequently ratified this reasoning. See Utah v. Evans , 536 U.S. 452 , 460, 463–464 (2002). 7 Our decision three years ago in Department of Homeland Security v. Regents of Univ. of Cal. , 591 U. S. ___ (2020), appears to have assumed that the APA authorizes this common practice. We held that the rescission of the Deferred Action for Childhood Arrivals program had to be “vacated” because DHS had violated the procedures required by the APA. Id. , at ___ (slip op., at 2). If the court in that case had lacked the authority to set aside the rule adopting the program, there would have been no need to examine the sufficiency of DHS’s procedures. 8 The Court also appeals to “historical experience” and “longstanding historical practice.” Ante , at 6, 14 (internal quotation marks omitted). I do not take this to be an argument independent from the case law cited, since no history is discussed apart from those cases (all but one from after 1964). 9 The majority suggests that any law that constrains an Executive’s “enforcement discretion” is “highly unusual,” and notes that the States cite no “similarly worded federal laws” that “ require the Executive Branch to make arrests or bring prosecutions” in other, non-immigration contexts. Ante , at 12. But there is nothing peculiar about Congress’s reserving its mandates for an area—immigration—where it both exercises particularly broad authority, Fiallo v. Bell , 430 U.S. 787 , 792 (1977), and identifies a unique “wholesale failure” by the enforcement authority, Demore v. Kim , 538 U.S. 510 , 518 (2003). 10 See O. Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 459–460 (1897). 11 See Z. Price, Enforcement Discretion and Executive Duty, 67 Vand. L. Rev. 671, 689–696 (2014); R. Delahunty & J. Yoo, Dream On: The Obama Administration’s Nonenforcement of Immigration Laws, the DREAM Act, and the Take Care Clause, 91 Texas L. Rev. 781, 797–804 (2013) (Delahunty & Yoo, Dream On); see also E. Biber, Two Sides of the Same Coin: Judicial Review of Administrative Agency Action and Inaction, 26 Va. Env. L. J. 461, 472–474 (2008). 12 See R. Reinstein, The Limits of Executive Power, 59 Am. U. L. Rev. 259, 277–281 (2009) (Reinstein, Limits). 13 An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown (Bill of Rights), 1 W. & M., Sess. 2, c. 2 (1689). 14 The last time a British monarch withheld assent to a bill enacted by Parliament was in 1708. 18 HL J. 506 (Mar. 11, 1708). 15 Declaration of Independence ¶4; In 1774, Jefferson had addressed the subject of this charge, explaining that British monarchs “for several ages past” had “declined the exercise of this power in that part of [the] empire called Great Britain” but had resumed the practice in the American Colonies and had “rejected laws of the most salutary tendency,” such as one forbidding the importation of slaves. T. Jefferson, A Summary View of the Rights of British America (1774), https://avalon.law.yale.edu/18th_century/jeffsumm.asp. See G. Wills, Inventing America: Jefferson’s Declaration of Independence 69 (1978). 16 See generally S. Calabresi, S. Agudo, & K. Dore, State Bills of Rights in 1787 and 1791: What Individual Rights Are Really Deeply Rooted in American History and Tradition? 85 S. Cal. L. Rev. 1451, 1534–1535 (2012) (reporting that six State Constitutions had such provisions in 1787, rising to eight by 1791). 17 1 The Records of the Federal Convention of 1787, pp. 103–104 (M. Farrand ed. 1966). See generally R. Beeman, Plain, Honest Men: The Making of the American Constitution 140 (2009) (describing debate over the executive veto). 18 See, e.g. , Delahunty & Yoo, Dream On 803–804 (2013); Reinstein, Limits 281; S. Prakash, The Essential Meaning of Executive Power, 2003 U. Ill. L. Rev. 701, 726, n. 113 (2003); C. May, Presidential Defiance of “Unconstitutional” Laws: Reviving the Royal Prerogative 16 and n. 58 (1998); R. Reinstein, An Early View of Executive Powers and Privilege: The Trial of Smith and Ogden, 2 Hastings Const. L. Q. 309, 320–321, n. 50 (1975).

The Supreme Court ruled that Texas and Louisiana did not have standing to challenge the Department of Homeland Security's 2021 Guidelines for immigration enforcement, which prioritize the arrest and removal of certain noncitizens. The Court held that citizens lack standing to contest the policies of prosecuting authorities when they are not directly affected by those policies.

Powers of Congress

Cooley v. Board of Wardens

https://supreme.justia.com/cases/federal/us/53/299/

U.S. Supreme Court Cooley v. Board of Wardens, 53 U.S. 12 How. 299 299 (1851) Cooley v. Board of Wardens 53 U.S. (12 How.) 299 Syllabus A law of the State of Pennsylvania that a vessel which neglects or refuses to take a pilot shall forfeit and pay to the master warden of the pilots, for the use of the Society for the Relief of Distressed and Decayed Pilots, their widows and children, one-half the regular amount of pilotage, is an appropriate part of a general system of regulations on the subject of pilotage, and cannot be considered as a covert attempt to legislate upon another subject under the appearance of legislating on this one. Nor can the exemption of American vessels engaged in the Pennsylvania coal trade from the necessity of paying half pilotage be declared to be other than a fair exercise of legislative discretion acting upon the subject of the regulation of the pilotage of the port of Philadelphia. The law of Pennsylvania is therefore not inconsistent with the second and third clauses of the tenth section of the first article of the Constitution of the United States, Imposts and duties on imports, exports, and tonnage were understood, when the Constitution was formed, to mean totally distinct things from fees of pilotage. Nor is the law repugnant to the first clause of the eighth section of the first article of the Constitution, because, as the charge is not a duty, import, or excise, there is no necessity for its being uniform throughout the United States. Neither is the law repugnant to the fifth clause of the ninth section of the first article of the Constitution, because it neither gives a preference of one port over another nor does it require a vessel to pay duties. Upon this point, the act of Congress passed in 1789, 1 Stat. at Large 54, recognizing the pilot laws of the States is entitled to great weight as showing that these laws neither levied duties nor gave a preference of one port over another. Moreover, the law is not inconsistent with the third clause of the eighth section of the first article of the Constitution. It is true that the power to regulate commerce includes the regulation of navigation, and that pilot laws are regulations of navigation, and, therefore, of commerce, within the grant to Congress of the commercial power. But the mere grant of the commercial power to Congress does not forbid the States from passing laws to regulate pilotage. The power to regulate commerce includes various subject, upon some of which there should be a uniform rule and upon Page 53 U. S. 300 others different rules in different localities. The power is exclusive in Congress in the former, but not so in the latter class. Although Congress may legislate upon the subject of pilotage throughout the United States, yet they have manifested an intention not to overrule the State laws except in one instance. The law of Pennsylvania, not being overruled, is not repugnant to the Constitution of the United States. These two cases were brought up from the Supreme Court of Pennsylvania by writs of error issued under the twenty-fifth section of the Judiciary Act. They both depended upon the same principle, were argued and decided together, and will be treated as one. The only difference between them was that the pilotage was demanded from two different vessels, the Undine and the Consel. Cooley was the consignee of both vessels. The twenty-ninth section of the act passed by the Legislature of Pennsylvania on the 2d of March, 1803, is set forth at length in the opinion of the court, and need not be repeated. The board of wardens brought an action of debt before Alderman Smith against Cooley for half-pilotage, due by a vessel which sailed from Philadelphia without a pilot when one might have been had. The magistrate gave judgment for the plaintiffs, and the defendant appealed to the Court of Common Pleas. In that court, a declaration in debt was filed by the plaintiff below. In the case of the Undine, the defendant demurred, and upon the demurrer, judgment was given for the plaintiff. In the case of the Consul, the defendant put in two pleas. 1. That the Consul was engaged in the coasting trade, sailing under a coasting license from the United States. 2. That the said schooner was bound from the port of Philadelphia, in the state of Pennsylvania, to the port of New York, in the state of New York. To both of which pleas there was a demurrer and a joinder in demurrer, and a judgment for the plaintiff. The case was then carried to the Supreme Court of Pennsylvania, which, in January, 1850, passed the following judgment: That "the judgment of the Court of Common Pleas for the city and county of Philadelphia be affirmed because this court is of opinion that the twenty-ninth section of the act of the state of Pennsylvania, of the 29th of March, A.D. 1803, entitled An act to establish a Board of Wardens for the port of Philadelphia, and for the regulation of pilots and pilotages, and for other purposes therein mentioned, is not, in any of its provisions involved in this cause, at variance with any of the provisions of the Constitution or laws of the United States, but is a constitutional and legal enactment." Cooley then brought the case up to this court. Page 53 U. S. 311 Mr. Justice CURTIS delivered the opinion of the court. These cases are brought here by writs of error to the Supreme Court of the Commonwealth of Pennsylvania. They are actions to recover half pilotage fees under the 29th section of the act of the Legislature of Pennsylvania, passed on the second day of March, 1803. The plaintiff in error alleges that the highest court of the state has decided against a right claimed by him under the Constitution of the United States. That right is to be exempted from the payment of the sums of money demanded, pursuant to the State law above referred to, because that law contravenes several provisions of the Constitution of the United States. The particular section of the state law drawn in question is as follows: "That every ship or vessel arriving from or bound to any foreign port or place, and every ship or vessel of the burden of seventy-five tons or more, sailing from or bound to any port not within the river Delaware, shall be obliged to receive a pilot. And it shall be the duty of the master of every such ship or vessel, within thirty-six hours next after the arrival of such ship or vessel at the city of Philadelphia, to make report to the master-warden of the name of such ship or vessel, her draught of water, and the name of the pilot who shall have conducted her to the port. And when any such vessel shall be outward-bound, the master of such vessel shall make known to the wardens the name of such vessel, and of the pilot who is to conduct her to the capes, and her draught of water at that time. And it shall be the duty of the wardens to enter every such vessel in a book to be by them kept for that purpose, without fee or reward. And if the master of any ship or vessel shall neglect to make such report, he shall forfeit and pay the sum of sixty dollars. And if the master of any such ship or vessel shall refuse or neglect to take a pilot, the master, owner or consignee of such vessel shall forfeit and pay to the warden aforesaid, a sum equal to the half-pilotage of such ship or vessel, to the use of the Society for the Relief, &c., to be recovered as pilotage in the manner hereinafter directed: Provided always, that where it shall appear to the warden that, in case of an inward-bound vessel, a pilot did Page 53 U. S. 312 not offer before she had reached Reedy Island, or, in case of an outward-bound vessel, that a pilot could not be obtained for twenty-four hours after such vessel was ready to depart, the penalty aforesaid, for not having a pilot, shall not be incurred." It constitutes one section of "An act to establish a Board of Wardens for the port of Philadelphia, and for the regulation of Pilots and Pilotages, &c.," and the scope of the act is in conformity with the title to regulate the whole subject of the pilotage of that port. We think this particular regulation concerning half-pilotage fees is an appropriate part of a general system of regulations of this subject. Testing it by the practice of commercial states and countries legislating on this subject, we find it has usually been deemed necessary to make similar provisions. Numerous laws of this kind are cited in the learned argument of the counsel for the defendant in error, and their fitness as a part of the system of pilotage in many places may be inferred from their existence in so many different states and countries. Like other laws, they are framed to meet the most usual cases quae frequentius accidunt; they rest upon the propriety of securing lives and property exposed to the perils of a dangerous navigation by taking on board a person peculiarly skilled to encounter or avoid them, upon the policy of discouraging the commanders of vessels from refusing to receive such persons on board at the proper times and places, and upon the expediency, and even intrinsic justice, of not suffering those who have incurred labor and expense and danger to place themselves in a position to render important service generally necessary to go unrewarded because the master of a particular vessel either rashly refuses their proffered assistance or, contrary to the general experience, does not need it. There are many cases, in which an offer to perform, accompanied by present ability to perform, is deemed by law equivalent to performance. The laws of commercial states and countries have made an offer of pilotage service one of those cases, and we cannot pronounce a law which does this to be so far removed from the usual and fit scope of laws for the regulation of pilots and pilotage as to be deemed, for this cause, a covert attempt to legislate upon another subject under the appearance of legislating on this one. It is urged that the second section of the act of the Legislature of Pennsylvania, of the 11th of June, 1832, proves that the state had other objects in view than the regulation of pilotage. That section is as follows: "And be it further enacted, by the authority aforesaid, that from and after the first day of July next, no health fee or half-pilotage shall be charged on any vessel engaged in the Pennsylvania coal trade. " Page 53 U. S. 313 It must be remembered that the fair objects of a law imposing half-pilotage when a pilot is not received may be secured and at the same time some classes of vessels exempted from such charge. Thus, the very section of the act of 1803 now under consideration does not apply to coasting vessels of less burden than seventy-five tons, not to those bound to, or sailing from, a port in the river Delaware. The purpose of the law being to cause masters of such vessels as generally need a pilot to employ one, and to secure to the pilots a fair remuneration for cruising in search of vessels or waiting for employment in port, there is an obvious propriety in having reference to the number, size, and nature of employment of vessels frequenting the port, and it will be found by an examination of the different systems of these regulations which have from time to time been made in this and other countries that the legislative discretion has been constantly exercised in making discriminations founded on differences both in the character of the trade and the tonnage of vessels engaged therein. We do not perceive anything in the nature or extent of this particular discrimination in favor of vessels engaged in the coal trade which would enable us to declare it to be other than a fair exercise of legislative discretion, acting upon the subject of the regulation of the pilotage of this port of Philadelphia with a view to operate upon the masters of those vessels who, as a general rule, ought to take a pilot, and with the further view of relieving from the charge of half-pilotage such vessels as, from their size or the nature of their employment, should be exempted from contributing to the support of pilots except so far as they actually receive their services. In our judgment, though this law of 1832 has undoubtedly modified the 29th section of the act of 1803, and both are to be taken together as giving the rule on this subject of half-pilotage, yet this change in the rule has not changed the nature of the law nor deprived it of the character and attributes of a law for the regulation of pilotage. Nor do we consider that the appropriation of the sums received under this section of the act to the use of the society for the relief of distressed and decayed pilots, their widows and children, has any legitimate tendency to impress on it the character of a revenue law. Whether these sums shall go directly to the use of the individual pilots by whom the service is tendered or shall form a common fund to be administered by trustees for the benefit of such pilots and their families as may stand in peculiar need of it is a matter resting in legislative discretion, in the proper exercise of which the pilots alone are interested. For these reasons, we cannot yield our assent to the argument that this provision of law is in conflict with the second Page 53 U. S. 314 and third clauses of the tenth section of the first article of the Constitution, which prohibit a state, without the assent of Congress, from laying any imposts or duties, on imports or exports or tonnage. This provision of the Constitution was intended to operate upon subjects actually existing and well understood when the Constitution was formed. Imposts and duties on imports, exports, and tonnage were then known to the commerce of a civilized world to be as distinct from fees and charges for pilotage, and from the penalties by which commercial states enforced their pilot-laws, as they were from charges for wharfage or towage, or any other local port-charges for services rendered to vessels or cargoes, and to declare that such pilot fees or penalties are embraced within the words imposts or duties on imports, exports, or tonnage would be to confound things essentially different, and which must have been known to be actually different by those who used this language. It cannot be denied that a tonnage duty or an impost on imports or exports may be levied under the name of pilot dues or penalties, and certainly it is the thing, and not the name, which is to be considered. But, having previously stated that, in this instance, the law complained of does not pass the appropriate line which limits laws for the regulation of pilots and pilotage, the suggestion that this law levies a duty on tonnage or on imports or exports is not admissible, and, if so, it also follows that this law is not repugnant to the first clause of the eighth section of the first article of the Constitution, which declares that all duties, imposts, and excises shall be uniform throughout the United States, for if it is not to be deemed a law levying a duty, impost, or excise, the want of uniformity throughout the United States is not objectionable. Indeed, the necessity of conforming regulations of pilotage to the local peculiarities of each port, and the consequent impossibility of having its charges uniform throughout the United States, would be sufficient of itself to prove that they could not have been intended to be embraced within this clause of the Constitution, for it cannot be supposed uniformity was required when it must have been known to be impracticable. It is further objected that this law is repugnant to the fifth clause of the ninth section of the first article of the Constitution, viz. "No preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another, nor shall vessels to or from one state be obliged to enter, clear, or pay duties in another." But, as already stated, pilotage fees are not duties within the meaning of the Constitution, and certainly Pennsylvania does not give a preference to the port of Philadelphia by requiring Page 53 U. S. 315 the masters, owners, or consigness of vessels sailing to or from that port to pay the charges imposed by the twenty-ninth section of the act of 1803. It is an objection to, and not a ground of preference of, a port that a charge of this kind must be borne by vessels entering it, and, accordingly, the interests of the port require, and generally produce, such alleviations of these charges as its growing commerce from time to time renders consistent with the general policy of the pilot laws. This state, by its act of the 24th of March, 1851, has essentially modified the law of 1803, and further exempted many vessels from the charge now in question. Similar changes may be observed in the laws of New York, Massachusetts, and other commercial states, and they undoubtedly spring from the conviction that burdens of this kind, instead of operating to give a preference to a port, tend to check its commerce, and that sound policy requires them to be lessened and removed as early as the necessities of the system will allow. In addition to what has been said respecting each of these constitutional objections to this law, it may be observed that similar laws have existed and been practised on in the states since the adoption of the federal Constitution; that, by the act of the 7th of August, 1789, 1 Stat. at L. 54, Congress declared that all pilots in the bays, inlets, rivers, harbors and ports of the United States, shall continue to be regulated in conformity with the existing laws of the states, &c., and that this contemporaneous construction of the Constitution, since acted on with such uniformity in a matter of much public interest and importance, is entitled to great weight in determining whether such a law is repugnant to the Constitution as levying a duty not uniform throughout the United States, or as giving a preference to the ports of one state over those of another, or as obliging vessels to or from one state to enter, clear, or pay duties in another. Stuart v. Laird , 1 Cranch 299; Martin v. Hunter , 1 Wheat. 304; Cohens v. The Commonwealth of Virginia , 6 id. 264; Prigg v. The Commonwealth of Pennsylvania , 16 Pet. 621. The opinion of the court is that the law now in question is not repugnant to either of the above-mentioned clauses of the Constitution. It remains to consider the objection that it is repugnant to the third clause of the eighth section of the first article: "The Congress shall have power to regulate commerce with foreign nations and among the several states, and with the Indian tribes." That the power to regulate commerce includes the regulation of navigation we consider settled. And when we look to the Page 53 U. S. 316 nature of the service performed by pilots, to the relations which that service and its compensations bear to navigation between the several states and between the ports of the United States and foreign countries, we are brought to the conclusion that the regulation of the qualifications of pilots, of the modes and times of offering and rendering their services, of the responsibilities which shall rest upon them, of the powers they shall possess, of the compensation they may demand, and of the penalties by which their rights and duties may be enforced, do constitute regulations of navigation, and consequently of commerce, within the just meaning of this clause of the Constitution. The power to regulate navigation is the power to prescribe rules in conformity with which navigation must be carried on. It extends to the persons who conduct it as well as to the instruments used. Accordingly, the first Congress assembled under the Constitution passed laws requiring the masters of ships and vessels of the United States to be citizens of the United States, and established many rules for the government and regulation of officers and seamen. 1 Stat. at L. 55, 131. These have been from time to time added to and changed, and we are not aware that their validity has been questioned. Now a pilot, so far as respects the navigation of the vessel in that part of the voyage which is his pilotage ground, is the temporary master charged with the safety of the vessel and cargo, and of the lives of those on board, and intrusted with the command of the crew. He is not only one of the persons engaged in navigation, but he occupies a most important and responsible place among those thus engaged. And if Congress has power to regulate the seamen who assist the pilot in the management of the vessel, a power never denied, we can perceive no valid reason why the pilot should be beyond the reach of the same power. It is true that, according to the usages of modern commerce on the ocean, the pilot is on board only during a part of the voyage between ports of different states, or between ports of the United States and foreign countries, but if he is on board for such a purpose and during so much of the voyage as to be engaged in navigation, the power to regulate navigation extends to him while thus engaged as clearly as it would if he were to remain on board throughout the whole passage, from port to port. For it is a power which extends to every part of the voyage, and may regulate those who conduct or assist in conducting navigation in one part of a voyage as much as in another part, or during the whole voyage. Nor should it be lost sight of that this subject of the regulation of pilots and pilotage has an intimate connection with, and an important relation to, the general subject of commerce with Page 53 U. S. 317 foreign nations and among the several states over which it was one main object of the Constitution to create a national control. Conflicts between the laws of neighboring states and discriminations favorable or adverse to commerce with particular foreign nations might be created by state laws regulating pilotage, deeply affecting that equality of commercial rights and that freedom from state interference which those who formed the Constitution were so anxious to secure and which the experience of more than half a century has taught us to value so highly. The apprehension of this danger is not speculative merely. For, in 1837, Congress actually interposed to relieve the commerce of the country from serious embarrassment arising from the laws of different states situate upon waters which are the boundary between them. This was done by an enactment of the 2d of March, 1837, in the following words: "Be it enacted, that it shall and may be lawful for the master or commander of any vessel coming into or going out of any port situate upon waters which are the boundary between two states, to employ any pilot duly licensed or authorized by the laws of either of the states bounded on the said waters, to pilot said vessel to or from said port, any law, usage, or custom, to the contrary, notwithstanding." The act of 1789, 1 Stat. at L. 54, already referred to, contains a clear legislative exposition of the Constitution by the first Congress, to the effect that the power to regulate pilots was conferred on Congress by the Constitution, as does also the act of March the 2d, 1837, the terms of which have just been given. The weight to be allowed to this contemporaneous construction, and the practice of Congress under it, have, in another connection, been adverted to. And a majority of the court are of opinion that a regulation of pilots is a regulation of commerce within the grant to Congress of the commercial power contained in the third clause of the eighth section of the first article of the Constitution. It becomes necessary therefore to consider whether this law of Pennsylvania, being a regulation of commerce, is valid. The act of Congress of the 7th of August, 1789, sect. 4, is as follows: "That all pilots in the bays, inlets, rivers, harbors, and ports of the United States shall continue to be regulated in conformity with the existing laws of the states, respectively, wherein such pilots may be, or with such laws as the states may respectively hereafter enact for the purpose, until further legislative provision shall be made by Congress." If the law of Pennsylvania now in question had been in existence at the date of this act of Congress, we might hold it to Page 53 U. S. 318 have been adopted by Congress, and thus made a law of the United States, and so valid. Because this act does, in effect, give the force of an act of Congress, to the then existing state laws on this subject, so long as they should continue unrepealed by the state which enacted them. But the law on which these actions are founded was not enacted till 1803. What effect then can be attributed to so much of the act of 1789 as declares that pilots shall continue to be regulated in conformity, "with such laws as the states may respectively hereafter enact for the purpose until further legislative provision shall be made by Congress?" If the states were divested of the power to legislate on this subject by the grant of the commercial power to Congress, it is plain this act could not confer upon them power thus to legislate. If the Constitution excluded the states from making any law regulating commerce, certainly Congress cannot re-grant, or in any manner re-convey to the states that power. And yet this act of 1789 gives its sanction only to laws enacted by the states. This necessarily implies a constitutional power to legislate, for only a rule created by the sovereign power of a state acting in its legislative capacity can be deemed a law enacted by a state, and if the state has so limited its sovereign power that it no longer extends to a particular subject, manifestly it cannot, in any proper sense, be said to enact laws thereon. Entertaining these views, we are brought directly and unavoidably to the consideration of the question whether the grant of the commercial power to Congress did per se deprive the states of all power to regulate pilots. This question has never been decided by this court, nor, in our judgment, has any case depending upon all the considerations which must govern this one come before this court. The grant of commercial power to Congress does not contain any terms which expressly exclude the states from exercising an authority over its subject matter. If they are excluded, it must be because the nature of the power thus granted to Congress requires that a similar authority should not exist in the states. If it were conceded, on the one side, that the nature of this power, like that to legislate for the District of Columbia, is absolutely and totally repugnant to the existence of similar power in the states, probably no one would deny that the grant of the power to Congress as effectually and perfectly excludes the states from all future legislation on the subject as if express words had been used to exclude them. And, on the other hand, if it were admitted that the existence of this power in Congress, like the power of taxation, is compatible with the existence of a similar power in the states, then it would be in conformity with the contemporary exposition of the Constitution (Federalist, No. 32), Page 53 U. S. 319 and with the judicial construction given from time to time by this court, after the most deliberate consideration, to hold that the mere grant of such a power to Congress did not imply a prohibition on the states to exercise the same power, that it is not the mere existence of such a power, but its exercise by Congress, which may be incompatible with the exercise of the same power by the states, and that the states may legislate in the absence of congressional regulations. Sturges v. Crowninshield , 4 Wheat. 193; Moore v. Houston , 5 id. 1; Wilson v. Blackbird Creek Co. , 2 Pet. 251. The diversities of opinion, therefore, which have existed on this subject have arisen from the different views taken of the nature of this power. But when the nature of a power like this is spoken of, when it is said that the nature of the power requires that it should be exercised exclusively by Congress, it must be intended to refer to the subjects of that power, and to say they are of such a nature as to require exclusive legislation by Congress. Now the power to regulate commerce embraces a vast field containing not only many but exceedingly various subjects quite unlike in their nature, some imperatively demanding a single uniform rule operating equally on the commerce of the United States in every port and some, like the subject now in question, as imperatively demanding that diversity which alone can meet the local necessities of navigation. Either absolutely to affirm or deny that the nature of this power requires exclusive legislation by Congress is to lose sight of the nature of the subjects of this power and to assert concerning all of them what is really applicable but to a part. Whatever subjects of this power are in their nature national, or admit only of one uniform system or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress. That this cannot be affirmed of laws for the regulation of pilots and pilotage is plain. The act of 1789 contains a clear and authoritative declaration by the first Congress that the nature of this subject is such that, until Congress should find it necessary to exert its power, it should be left to the legislation of the states, that it is local and not national, that it is likely to be the best provided for not by one system or plan of regulations, but by as many as the legislative discretion of the several states should deem applicable to the local peculiarities of the ports within their limits. Viewed in this light, so much of this act of 1789 as declares that pilots shall continue to be regulated "by such laws as the states may respectively hereafter enact for that purpose," instead of being held to be inoperative as an attempt to confer on the states a power to legislate of which the Constitution had deprived Page 53 U. S. 320 them, is allowed an appropriate and important signification. It manifests the understanding of Congress, at the outset of the government, that the nature of this subject is not such as to require its exclusive legislation. The practice of the states and of the national government has been in conformity with this declaration from the origin of the national government to this time, and the nature of the subject, when examined, is such as to leave no doubt of the superior fitness and propriety, not to say the absolute necessity, of different systems of regulation, drawn from local knowledge and experience and conformed to local wants. How then can we say that, by the mere grant of power to regulate commerce, the states are deprived of all the power to legislate on this subject because, from the nature of the power, the legislation of Congress must be exclusive. This would be to affirm that the nature of the power is, in any case, something different from the nature of the subject to which, in such case, the power extends, and that the nature of the power necessarily demands, in all cases, exclusive legislation by Congress, while the nature of one of the subjects of that power not only does not require such exclusive legislation, but may be best provided for by many different systems enacted by the states, in conformity with the circumstances of the ports within their limits. In construing an instrument designed for the formation of a government, and in determining the extent of one of its important grants of power to legislate, we can make no such distinction between the nature of the power and the nature of the subject on which that power was intended practically to operate, nor consider the grant more extensive by affirming of the power what is not true of its subject now in question. It is the opinion of a majority of the court that the mere grant to Congress of the power to regulate commerce did not deprive the states of power to regulate pilots, and that, although Congress has legislated on this subject, its legislation manifests an intention, with a single exception, not to regulate this subject, but to leave its regulation to the several states. To these precise questions, which are all we are called on to decide, this opinion must be understood to be confined. It does not extend to the question what other subjects, under the commercial power are within the exclusive control of Congress, or may be regulated by the states in the absence of all congressional legislation, nor to the general question how far any regulation of a subject by Congress may be deemed to operate as an exclusion of all legislation by the states upon the same subject. We decide the precise questions before us, upon what we deem sound principles, applicable to this particular subject in the state in which the legislation of Congress has left it. We go no further. Page 53 U. S. 321 We have not adverted to the practical consequences of holding that the states possess no power to legislate for the regulation of pilots, though, in our apprehension, these would be of the most serious importance. For more than sixty years, this subject has been acted on by the states, and the systems of some of them created and of others essentially modified during that period. To hold that pilotage fees and penalties demanded and received during that time have been illegally exacted under color of void laws would work an amount of mischief which a clear conviction of constitutional duty, if entertained, must force us to occasion, but which could be viewed by no just mind without deep regret. Nor would the mischief be limited to the past. If Congress were now to pass a law adopting the existing state laws, if enacted without authority, and in violation of the Constitution, it would seem to us to be a new and questionable mode of legislation. If the grant of commercial power in the Constitution has deprived the states of all power to legislate for the regulation of pilots, if their laws on this subject are mere usurpations upon the exclusive power of the general government, and utterly void, it may be doubted whether Congress could, with propriety, recognize them as laws and adopt them as its own acts; and how are the legislatures of the states to proceed in future, to watch over and amend these laws, as the progressive wants of a growing commerce will require, when the members of those legislatures are made aware that they cannot legislate on this subject without violating the oaths they have taken to support the Constitution of the United States? We are of opinion that this state law was enacted by virtue of a power residing in the state to legislate; that it is not in conflict with any law of Congress; that it does not interfere with any system which Congress has established by making regulations, or by intentionally leaving individuals to their own unrestricted action; that this law is therefore valid, and the judgment of the Supreme Court of Pennsylvania in each case must be affirmed. Mr. Justice McLean and Mr. Justice Wayne dissented, and Mr. Justice Daniel, although he concurred in the judgment of the court, yet dissented from its reasoning. Mr. Justice McLEAN. It is with regret that I feel myself obliged to dissent from the opinion of a majority of my brethren in this case. As expressing my views on the question involved, I will copy a few sentences from the opinion of Chief Justice Marshall in the opinion in Gibbons v. Ogden. "It has been said," says that Page 53 U. S. 322 illustrious judge, "that the act of August 7th, 1789, acknowledges a concurrent power in the states to regulate the conduct of pilots, and hence is inferred an admission of their concurrent right with Congress to regulate commerce with foreign nations and amongst the states." But this inference is not, we think, justified by the fact. "Although Congress," he continues, "cannot enable a state to legislate, Congress may adopt the provisions of a state on any subject. When the government of the Union was brought into existence, it found a system for the regulation of its pilots in full force in every state. The act which has been mentioned adopts this system, and gives it the same validity as if its provisions had been specially made by Congress. But the act, it may be said, is prospective also, and the adoption of laws to be in future presupposes the right in the maker to legislate on the subject." "The act unquestionably manifests an intention to leave this subject entirely to the states, until Congress should think proper to interpose, but the very enactment of such a law indicates an opinion that it was necessary; that the existing system would not be applicable to the new state of things unless expressly applied to it by Congress. But this section is confined to pilots within the bays, inlets, rivers, harbors, and ports of the United States, which are, of course, in whole or in part, also within the limits of some particular state. The acknowledged power of a state to regulate its police, its domestic trade, and to govern its own citizens, may enable it to legislate on this subject to a considerable extent, and the adoption of its system by Congress, and the application of it to the whole subject of commerce, does not seem to the court to imply a right in the states so to apply it of their own authority. But the adoption of the state system being temporary, being only 'until further legislative provision shall be made by Congress,' shows conclusively an opinion that Congress could control the whole subject, and might adopt the system of the states or provide one of its own." Why did Congress pass the act of 1789, adopting the pilot laws of the respective states? Laws they unquestionably were, having been enacted by the states before the adoption of the Constitution. But were they laws under the Constitution? If they had been so considered by Congress, they would not have been adopted by a special act. There is believed to be no instance in the legislation of Congress where a state law has been adopted which, before its adoption, applied to federal powers. To suppose such a case would be an imputation of ignorance as to federal powers least of all chargeable against the men who formed the Constitution and who best understood it. Congress adopted the pilot laws of the states because it was Page 53 U. S. 323 well understood they could have had no force, as regulations of foreign commerce or of commerce among the states, if not so adopted. By their adoption, they were made acts of Congress, and ever since they have been so considered and enforced. Each state regulates the commerce within its limits, which is not within the range of federal powers. So far, and no farther, could effect have been given to the pilot laws of the states under the Constitution. But those laws were only adopted "until further legislative provisions shall be made by Congress." This shows that Congress claimed the whole commercial power on this subject by adopting the pilot laws of the states, making them acts of Congress, and also by declaring that the adoption was only until some further legislative provision could be made by Congress. Can Congress annul the acts of a state passed within its admitted sovereignty? No one, I suppose, could sustain such a proposition. State sovereignty can neither be enlarged nor diminished by an act of Congress. It is not known that Congress has ever claimed such a power. If the states had not the power to enact pilot laws as connected with foreign commerce in 1789, when did they get it? It is an exercise of sovereign power to legislate. In this respect, the Constitution is the same now as in 1789, and also the power of a state is the same. Whence, then, this enlargement of state power.? Is it derived from the act of 1789 that pilots shall continue to be regulated "in conformity with such laws as the states may respectively hereafter enact?" In the opinion of the Chief Justice above cited, it is said Congress may adopt the laws of a state, but it cannot enable a state to legislate. In other words, it cannot transfer to a state legislative powers. And the court also say that the states cannot apply the pilot laws of their own authority. We have here, then, the deliberate action of Congress showing that the states have no inherent power to pass these laws, which is affirmed by the opinion of this court. Ought not this to be considered as settling this question? What more of authority can be brought to bear upon it? But it is said that Congress is incompetent to legislate on this subject. Is this so? Did not Congress, in 1789, legislate on the subject by adopting the state laws, and may it not do so again? Was not that a wise and politic act of legislation? This is admitted. But it is said that Congress cannot legislate on this matter in detail. The act of 1789 shows that it is unnecessary for Congress so to legislate. A single section covers the whole legislation of the states in regard to pilots. Where, then, is the necessity of recognizing this power to exist in the states? There is no such necessity, and if there were, it would not make the Page 53 U. S. 324 act of the state constitutional, for it is admitted that the power is in Congress. That a state may regulate foreign commerce, or commerce among the states is a doctrine which has been advanced by individual judges of this court, but never before, I believe, has such a power been sanctioned by the decision of this court. In this case, the power to regulate pilots is admitted to belong to the commercial power of Congress, and yet it is held that a state, by virtue of its inherent power, may regulate the subject until such regulation shall be annulled by Congress. This is the principle established by this decision. Its language is guarded in order to apply the decision only to the case before the court. But such restriction can never operate so as to render the principle inapplicable to other cases. And it is in this light that the decision is chiefly to be regretted. The power is recognised in the state, because the subject is more appropriate for state than federal action, and consequently it must be presumed the Constitution cannot have intended to inhibit state action. This is not a rule by which the Constitution is to be construed. It can receive but little support from the discussions which took place on the adoption of the Constitution, and none at all from the earlier decisions of this court. It will be found that the principle in this case, if carried out, will deeply affect the commercial prosperity of the country. If a state has power to regulate foreign commerce, such regulation must be held valid until Congress shall repeal or annul it. But the present case goes further than this. Congress regulated pilots by the act of 1789, which made the acts of the state on that subject the acts of Congress. In 1803, Pennsylvania passed the law in question, which materially modified the act adopted by Congress, and this act of 1803 is held to be constitutional. This, then, asserts the right of a state not only to regulate foreign commerce, but to modify and consequently to repeal a prior regulation of Congress. Is there a mistake in this statement? There is none if an adopted act of a state is thereby made an act of Congress, and if the regulation of pilots in regard to foreign commerce be a regulation of commerce. The latter position is admitted in the opinion of the court, and no one will controvert the former. I speak of the principle of the opinion, and not of the restricted application given to it by the learned judge who delivered it. The noted Blackbird Creek case shows what little influence the facts and circumstances of a case can have in restraining the principle it is supposed to embody. How can the unconstitutional acts of Louisiana, or of any other state which has ports on the Mississippi or the Ohio or Page 53 U. S. 325 on any of our other rivers, be corrected without the action of Congress? And when Congress shall act, the state has only to change its ground in order to enact and enforce its regulations. Louisiana now imposes a duty upon vessels for mooring in the river opposite the city of New Orleans, which is called a levee tax and which, on some boats performing weekly trips to that city, amounts to from $3,000 to $4,000 annually. What is there to prevent the thirteen or fourteen states bordering upon the two rivers first-named from regulating navigation on those rivers, although Congress may have regulated the same at some prior period? I speak not of the effect of this doctrine theoretically in this matter, but practically. And if the doctrine be true, how can this court say that such regulations of commerce are invalid? If this doctrine be sound, the passenger cases were erroneously decided. In those cases, there was no direct conflict between the acts of the states taxing passengers and the acts of Congress. From this race of legislation between Congress and the states, and between the states, if this principle be maintained, will arise a conflict similar to that which existed before the adoption of the Constitution. The states favorably situated, as Louisiana, may levy a contribution upon the commerce of other states which shall be sufficient to meet the expenditures of the states. The application of the money exacted under this act of Pennsylvania, it is said, shows that it is not raised for revenue. The application of the money cannot be relied on as showing an act of a state to be constitutional. If the state has power to pass the act, it may apply the money raised in its discretion. I think the charge of half-pilotage is correct under the circumstances, and I only object to the power of the state to pass the law. Congress, to whom the subject peculiarly belongs, should have been applied to, and no doubt it would have adopted the act of the state. Mr. Justice DANIEL. I agree with the majority in their decision that the judgments of the Supreme Court of Pennsylvania in these cases should be affirmed, though I cannot go with them in the process or argument by which their conclusion has been reached. The power and the practice of enacting pilot laws, which has been exercised by the states from the very origin of their existence, although it is one in some degree connected with commercial intercourse, does not come essentially and regularly within that power of commercial regulation vested by the Constitution in Congress, and which, by the Constitution, must, when exercised by Congress, be enforced with perfect equality, and without any kind of discrimination, Page 53 U. S. 326 local or otherwise in its application. The power delegated to Congress by the Constitution relates properly to the terms on which commercial engagements may be prosecuted, the character of the articles which they may embrace, the permission or terms according to which they may be introduced, and do not necessarily nor even naturally extend to the means of precaution and safety adopted within the waters or limits of the states by the authority of the latter for the preservation of vessels and cargoes and the lives of navigators or passengers. These last subjects are essentially local -- they must depend upon local necessities which call them into existence, must differ according to the degrees of that necessity. It is admitted on all hands that they cannot be uniform, or even general, but must vary so as to meet the purposes to be accomplished. They have no connection with contract, or traffic, or with the permission to trade in any subject, or upon any conditions. They belong to the same conservative power which undertakes to guide the track of the vessel over the rocks or shallows of a coast or river, which directs her mooring or her position in port for the safety of life and property, whether in reference to herself or to other vessels, their cargoes and crews, which for security against pestilence subjects vessels to quarantine, and may order the total destruction of the cargoes they contain. This is a power which is deemed indispensable to the safety and existence of every community. It may well be made a question, therefore, whether it could, under any circumstances, be surrendered, but certainly it is one which cannot be supposed to have been given by mere implication, and as incidental to another to the exercise of which it is not indispensable. It is not just nor philosophical to argue from the possibility of abuse against the rightful existence of this power in the states; such an argument would, if permitted go to the overthrow of all power in either the states or in the federal government, since there is no power which may not be abused. The true question here is whether the power to enact pilot laws is appropriate and necessary, or rather most appropriate and necessary, to the state or the federal governments. It being conceded that this power has been exercised by the states from their very dawn of existence; that it can be practically and beneficially applied by the local authorities only; it being conceded, as it must be, that the power to pass pilot laws, as such, has not been in any express terms delegated to Congress, and does not necessarily conflict with the right to establish commercial regulations, I am forced to conclude that this is an original and inherent power in the states, and not one to be merely tolerated, or held subject to the sanction of the federal government. Page 53 U. S. 327 Order This cause came on to be heard on the transcript of the record from the Supreme Court of Pennsylvania for the Eastern District, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Supreme Court in this cause be, and the same is hereby, affirmed with costs.

The Supreme Court upheld a Pennsylvania law requiring vessels to pay a fee to the master warden of pilots if they neglect or refuse pilot services, deeming it a valid exercise of the state's power to regulate pilotage and navigation within its waters. The Court found that the law was not a covert attempt to legislate on other subjects and did not violate the Constitution's provisions on imposts, duties, or tonnage. While recognizing Congress's power to regulate commerce and navigation, the Court held that states retain the authority to pass laws on local subjects like pilotage, which vary according to local necessities and are essential for community safety.

Powers of Congress

Veazie Bank v. Fenno

https://supreme.justia.com/cases/federal/us/75/533/

U.S. Supreme Court Veazie Bank v. Fenno, 75 U.S. 8 Wall. 533 533 (1869) Veazie Bank v. Fenno 75 U.S. (8 Wall.) 533 ON CERTIFICATE OF DIVISION FOR THE CIRCUIT COURT FOR MAINE Syllabus 1. The 9th section of the Act of July 13, 1866, amendatory of prior internal revenue acts and which provides that every national banking association, state bank, or state banking association shall pay a tax of ten percentum on the amounts of the notes of any state hank or state banking association paid out by them after the 1st day of August, 1866, does not lay a direct tax within the meaning of that clause of the Constitution which ordains that "direct taxes shall be apportioned among the several states, according to their respective numbers." 2. Congress having undertaken, in the exercise of undisputed constitutional power, to provide a currency for the whole country, may constitutionally secure the benefit of it to the people by appropriate legislation, and to that end may restrain, by suitable enactments, the circulation of any notes not issued under its own authority. Page 75 U. S. 534 3. The tax of ten percentum imposed by the Act of July 13, 1866, on the notes of state banks paid out after the 1st of August, 1866, is warranted by the Constitution. The Constitution ordains that: "The Congress shall have power:" "To lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States." "To regulate commerce with foreign nations, and among the several states, and with the Indian tribes." "To coin money, regulate the value thereof, and of foreign coin." It also ordains that: "Direct taxes shall be apportioned among the several states . . . according to their respective numbers." "No capitation or other direct tax shall be laid unless in proportion to the census or enumeration hereinbefore directed to be made." "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." With these provisions in force as fundamental law, Congress passed, July 13, 1866, [ Footnote 1 ] an act, the second clause of the 9th section of which enacts: "That every national banking association, state bank, or state banking association shall pay a tax of ten percentum on the amount of notes of any person, state bank, or state banking association used for circulation and paid out by them after the 1st day of August, 1866, and such tax shall be assessed and paid in such manner as shall be prescribed by the Commissioner of Internal Revenue." Under this act, a tax of ten percent was assessed upon the Veazie Bank for its bank notes issued for circulation after the day named in the act. Page 75 U. S. 535 The Veazie Bank was a corporation chartered by the State of Maine, with authority to issue bank notes for circulation, and the notes on which the tax imposed by the act was collected were issued under this authority. There was nothing in the case showing that the bank sustained any relation to the state as a financial agent or that its authority to issue notes was conferred or exercised with any special reference to other than private interests. The bank declined to pay the tax, alleging it to be unconstitutional, and the collector of internal revenue, one Fenno, was proceeding to make a distraint in order to collect it with penalty and costs when, in order to prevent this, the bank paid it under protest. An unsuccessful claim having been made on the Commissioner of Internal Revenue for reimbursement, suit was brought by the bank against the collector in the court below. The case was presented to that court upon an agreed statement of facts, and, upon a prayer for instructions to the jury, the judges found themselves opposed in opinion on three questions, the first of which -- the two others differing from it in form only, and not needing to be recited -- was this: "Whether the second clause of the 9th section of the Act of Congress of the 13th of July, 1866, under which the tax in his case was levied and collected, is a valid and constitutional law. " Page 75 U. S. 536 THE CHIEF JUSTICE delivered the opinion of the Court. The necessity of adequate provision for the financial exigencies created by the late rebellion suggested to the administrative and legislative departments of the government important changes in the systems of currency and taxation which had hitherto prevailed. These changes, more or less distinctly shown in administrative recommendations, took form and substance in legislative acts. We have now to consider, within a limited range, those which relate to circulating notes and the taxation of circulation. At the beginning of the rebellion, the circulating medium consisted almost entirely of bank notes issued by numerous independent corporations variously organized under state legislation, of various degrees of credit, and very unequal resources, administered often with great and not unfrequently with little skill, prudence, and integrity. The acts of Congress then in force prohibiting the receipt or disbursement, Page 75 U. S. 537 in the transactions of the national government, of anything except gold and silver, and the laws of the states requiring the redemption of bank notes in coin on demand, prevented the disappearance of gold and silver from circulation. There was, then, no national currency except coin; there was no general [ Footnote 2 ] regulation of any other by national legislation, and no national taxation was imposed in any form on the state bank circulation. The first act authorizing the emission of notes by the Treasury Department for circulation was that of July 17, 1861. [ Footnote 3 ] The notes issued under this act were Treasury notes, payable on demand in coin. The amount authorized by it was $50,000,000, and was increased by the Act of February 12, 1862, [ Footnote 4 ] to $60,000,000. On the 31st of December, 1861, the state banks suspended specie payment. Until this time, the expenses of the war had been paid in coin or in the demand notes just referred to, and for some time afterwards they continued to be paid in these notes, which, if not redeemed in coin, were received as coin in the payment of duties. Subsequently, on the 25th of February, 1862, [ Footnote 5 ] a new policy became necessary in consequence of the suspension and of the condition of the country, and was adopted. The notes hitherto issued, as has just been stated, were called Treasury notes, and were payable on demand in coin. The act now passed authorized the issue of bills for circulation under the name of United States notes, made payable to bearer but not expressed to be payable on demand, to the amount of $150,000,000, and this amount was increased by subsequent acts to $450,000,000, of which $50,000,000 were to be held in reserve, and only to be issued for a special purpose and under special directions as to their withdrawal from circulation. [ Footnote 6 ] These notes, until after the close of the war, were always convertible into, or receivable at par for Page 75 U. S. 538 bonds payable in coin, and bearing coin interest, at a rate not less than five percent, and the acts by which they were authorized declared them to be lawful money and a legal tender. This currency, issued directly by the government for the disbursement of the war and other expenditures, could not, obviously, be a proper object of taxation. But on the 25th of February, 1863, the act authorizing national banking associations [ Footnote 7 ] was passed, in which for the first time during many years Congress recognized the expediency and duty of imposing a tax upon currency. By this act a tax of two percent annually was imposed on the circulation of the associations authorized by it. Soon after, by the Act of March 3, 1863, [ Footnote 8 ] a similar but lighter tax of one percent annually was imposed on the circulation of state banks in certain proportions to their capital, and of two percent on the excess, and the tax on the national associations was reduced to the same rates. Both acts also imposed taxes on capital and deposits, which need not be noticed here. At a later date, by the Act of June 3, 1864, [ Footnote 9 ] which was substituted for the Act of February 25, 1863, authorizing national banking associations, the rate of tax on circulation was continued and applied to the whole amount of it, and the shares of their stockholders were also subjected to taxation by the states; and a few days afterwards, by the Act of June 30, 1864, [ Footnote 10 ] to provide ways and means for the support of the government, the tax on the circulation of the state banks was also continued at the same annual rate of one percent as before, but payment was required in monthly installments of one-twelfth of one percent, with monthly reports from each state bank of the amount in circulation. It can hardly be doubted that the object of this provision was to inform the proper authorities of the exact amount of paper money in circulation, with a view to its regulation by law. Page 75 U. S. 539 The first step taken by Congress in that direction was by the Act of July 17, 1862, [ Footnote 11 ] prohibiting the issue and circulation of notes under one dollar by any person or corporation. The act just referred to was the next, and it was followed some months later by the act of March 3, 1865, amendatory of the prior internal revenue acts, the sixth section of which provides "That every national banking association, state bank, or state banking association shall pay a tax of ten percentum on the amount of the notes of any state bank or state banking association paid out by them after the 1st day of July, 1866. [ Footnote 12 ]" The same provision was reenacted, with a more extended application, on the 13th of July, 1866, in these words: "Every national banking association, state bank, or state banking association shall pay a tax of ten percentum on the amount of notes of any person, state bank, or state banking association used for circulation and paid out by them after the first day of August, 1866, and such tax shall be assessed and paid in such manner as shall be prescribed by the Commissioner of Internal Revenue. [ Footnote 13 ]" The constitutionality of this last provision is now drawn in question, and this brief statement of the recent legislation of Congress has been made for the purpose of placing in a clear light its scope and bearing, especially as developed in the provisions just cited. It will be seen that when the policy of taxing bank circulation was first adopted in 1863, Congress was inclined to discriminate for, rather than against, the circulation of the state banks, but that when the country had been sufficiently furnished with a national currency by the issues of United States notes and of national bank notes, the discrimination was turned, and very decidedly turned, in the opposite direction. The general question now before us is whether or not the tax of ten percent, imposed on state banks of national banks paying out the notes of individuals or state banks Page 75 U. S. 540 used for circulation, is repugnant to the Constitution of the United States. In support of the position that the act of Congress, so far as it provides for the levy and collection of this tax, is repugnant to the Constitution, two propositions have been argued with much force and earnestness. The first is that the tax in question is a direct tax, and has not been apportioned among the states agreeably to the Constitution. The second is that the act imposing the tax impairs a franchise granted by the state, and that Congress has no power to pass any law with that intent or effect. The first of these propositions will be first examined. The difficulty of defining with accuracy the terms used in the clause of the Constitution which confers the power of taxation upon Congress was felt in the Convention which framed that instrument, and has always been experienced by courts when called upon to determine their meaning. The general intent of the Constitution, however, seems plain. The general government, administered by the Congress of the Confederation, had been reduced to the verge of impotency by the necessity of relying for revenue upon requisitions on the states, and it was a leading object in the adoption of the Constitution to relieve the government to be organized under it from this necessity and confer upon it ample power to provide revenue by the taxation of persons and property. And nothing is clearer from the discussions in the Convention and the discussions which preceded final ratification by the necessary number of states than the purpose to give this power to Congress as to the taxation of everything except exports in its fullest extent. This purpose is apparent also from the terms in which the taxing power is granted. The power is "to lay and collect taxes, duties, imposts, and excises, to pay the debt and provide for the common defense and general welfare of the United States." More comprehensive words could not have been used. Exports only are by another provision excluded from its application. Page 75 U. S. 541 There are indeed certain virtual limitations arising from the principles of the Constitution itself. It would undoubtedly be an abuse of the power if so exercised as to impair the separate existence and independent self-government [ Footnote 14 ] of the states, or if exercised for ends inconsistent with the limited grants of power in the Constitution. And there are directions as to the mode of exercising the power. If Congress sees fit to impose a capitation, or other direct tax, it must be laid in proportion to the census; if Congress determines to impose duties, imposts, and excises, they must be uniform throughout the United States. These are not strictly limitations of power. They are rules prescribing the mode in which it shall be exercised. It still extends to every object of taxation except exports, and may be applied to every object of taxation, to which it extends, in such measure as Congress may determine. The comprehensiveness of the power thus given to Congress may serve to explain at least the absence of any attempt by members of the Convention to define, even in debate, the terms of the grant. The words used certainly describe the whole power, and it was the intention of the Convention that the whole power should be conferred. The definition of particular words therefore became unimportant. It may be said indeed that this observation, however just in its application to the general grant of power, cannot be applied to the rules by which different descriptions of taxes are directed to be laid and collected. Direct taxes must be laid and collected by the rule of apportionment; duties, imposts, and excises must be laid and collected under the rule of uniformity. Must diversity of opinion has always prevailed upon the question what are direct taxes? Attempts to answer it by reference to the definitions of political economists have been frequently made, but without satisfactory results. The enumeration of the different kinds of taxes which Congress was Page 75 U. S. 542 authorized to impose was probably made with very little reference to their speculations. The great work of Adam Smith, the first comprehensive treatise on political economy in the English language, had then been recently published, but in this work, though there are passages which refer to the characteristic difference between direct and indirect taxation, there is nothing which affords any valuable light on the use of the words "direct taxes" in the Constitution. We are obliged, therefore, to resort to historical evidence and to seek the meaning of the words in the use and in the opinion of those whose relations to the government, and means of knowledge, warranted them in speaking with authority. And considered in this light, the meaning and application of the rule as to direct taxes appears to us quite clear. It is, as we think, distinctly shown in every act of Congress on the subject. In each of these acts, a gross sum was laid upon the United States, and the total amount was apportioned to the several states according to their respective numbers of inhabitants, as ascertained by the last preceding census. Having been apportioned, provision was made for the imposition of the tax upon the subjects specified in the act, fixing its total sum. In 1798, when the first direct tax was imposed, the total amount was fixed at two millions of dollars; [ Footnote 15 ] in 1813, the amount of the second direct tax was fixed at three millions; [ Footnote 16 ] in 1815, the amount of the third at six millions, and it was made an annual tax; [ Footnote 17 ] in 1816, the provision making the tax annual was repealed by the repeal of the first section of the act of 1815, and the total amount was fixed for that year at three millions of dollars. [ Footnote 18 ] No other direct tax was imposed until 1861, when a direct tax of twenty millions of dollars was laid and made annual; [ Footnote 19 ] but the provision Page 75 U. S. 543 making it annual was suspended, and no tax except that first laid was ever apportioned. In each instance, the total sum was apportioned among the states by the constitutional rule, and was assessed at prescribed rates on the subjects of the tax. These subjects, in 1798, [ Footnote 20 ] 1813, [ Footnote 21 ] 1815, [ Footnote 22 ] 1816, [ Footnote 23 ] were lands, improvements, dwelling houses, and slaves; and in 1861 lands, improvements, and dwelling houses only. Under the act of 1798, slaves were assessed at fifty cents on each; under the other acts, according to valuation by assessors. This review shows that personal property, contracts, occupations, and the like have never been regarded by Congress as proper subjects of direct tax. It has been supposed that slaves must be considered as an exception to this observation. But the exception is rather apparent than real. As persons, slaves were proper subjects of a capitation tax, which is described in the Constitution as a direct tax; as property, they were, by the laws of some if not most of the states, classed as real property, descendible to heirs. Under the first view, they would be subject to the tax of 1798 as a capitation tax; under the latter, they would be subject to the taxation of the other years as realty. That the latter view was that taken by the framers of the acts after 1798, becomes highly probable, when it is considered, that in the states where slaves were held, must of the value which would possessed within the land passed into the slaves. If, indeed, the land only had been valued without the slaves, the land would have been subject to much heavier proportional imposition in those states than in states where there were no slaves, for the proportion of tax imposed on each state was determined by population, without reference to the subjects on which it was to be assessed. The fact, then, that slaves were valued, under the acts referred to, far from showing, as some have supposed, that Congress regarded personal property as a proper object of Page 75 U. S. 544 direct taxation under the Constitution, shows only that Congress, after 1798, regarded slaves, for the purposes of taxation, as realty. It may be rightly affirmed, therefore, that in the practical construction of the Constitution by Congress, direct taxes have been limited to taxes on land and appurtenances and taxes on polls or capitation taxes. And this construction is entitled to great consideration, especially in the absence of anything adverse to it in the discussions of the Convention which framed and of the conventions which ratified the Constitution. What does appear in those discussions, on the contrary, supports the construction. Mr. Madison informs us, [ Footnote 24 ] that Mr. King asked what was the precise meaning of direct taxation, and no one answered. On another day, when the question of proportioning representation to taxation and both to the white and three-fifths of the slave inhabitants was under consideration, Mr. Ellsworth said: "In case of a poll tax, there would be no difficulty," and, speaking doubtless of direct taxation, he went on to observe: "The sum allotted to a state may be levied without difficulty according to the plan used in the state for raising its own supplies." All this doubtless shows uncertainty as to the true meaning of the term direct tax, but it indicates also an understanding that direct taxes were such as may be levied by capitation and on lands and appurtenances, or perhaps by valuation and assessment of personal property upon general lists. For these were the subjects from which the states at that time usually raised their principal supplies. This view received the sanction of this Court two years before the enactment of the first law imposing direct taxes eo nomine. During the February Term 1796, the constitutionality of the act of 1794 imposing a duty on carriages came under consideration in the case of Hylton v. United States. [ Footnote 25 ] Suit was brought by the United States against Daniel Hylton Page 75 U. S. 545 to recover the penalty imposed by the act for not returning and paying duty on a number of carriages for the conveyance of persons kept by the defendant for his own use. The law did not provide for the apportionment of the tax, and, if it was a direct tax, the law was confessedly unwarranted by the Constitution. The only question in the case, therefore, was whether or not the tax was a direct tax. The case was one of great expectation, and a general interest was felt in its determination. It was argued, in support of the tax, by Lee, Attorney General, and Hamilton, recently Secretary of the Treasury; in opposition to the tax by Campbell, Attorney for the Virginia District, and Ingersoll, Attorney General of Pennsylvania. Of the Justices who then filled this bench, Ellsworth, Paterson, and Wilson had been members, and conspicuous members, of the Constitutional Convention, and each of the three had taken part in the discussions relating to direct taxation. Ellsworth, the Chief Justice, sworn into office that morning, not having heard the whole argument, declined taking part in the decision. Cushing, Senior Associate Justice, having been prevented by indisposition from attending to the argument, also refrained from expressing an opinion. The other judges delivered their opinions in succession, the youngest in commission delivering the first, and the oldest the last. They all held that the tax on carriages was not a direct tax within the meaning of the Constitution. Chase, Justice, was inclined to think that the direct taxes contemplated by the Constitution are only two: a capitation or poll tax, and a tax on land. He doubted whether a tax by a general assessment of personal property can be included within the term direct tax. Paterson, who had taken a leading part in the Constitutional Convention, went more fully into the sense in which the words, giving the power of taxation, were used by that body. In the course of this examination he said: "Whether direct taxes in the sense of the Constitution comprehend any other tax than a capitation tax and tax on Page 75 U. S. 546 land is a questionable point. If Congress, for instance, should tax, in the aggregate or mass, things that generally pervade all the states in the Union, then perhaps the rule of apportionment would be the most proper, especially if an assessment was to intervene. This appears from the practice of some of the states to have been considered as a direct tax. Whether it be so under the Constitution of the United States is a matter of some difficulty, but as it is not before the Court, it would be improper to give any decisive opinion upon it. I never entertained a doubt that the principal -- I will not say the only -- objects that the framers of the Constitution contemplated as falling within the rule of apportionment were a capitation tax and a tax on land. [ Footnote 26 ]" Iredell J., delivering his opinion at length, concurred generally in the views of Justices Chase and Paterson. Wilson had expressed his opinion to the same general effect when giving the decision upon the circuit, and did not now repeat them. Neither Chief Justice Ellsworth nor Justice Cushing expressed any dissent, and it cannot be supposed if, in a case so important, their judgments had differed from those announced, that an opportunity would not have been given them by an order for reargument to participate in the decision. It may be safely assumed, therefore, as the unanimous judgment of the Court that a tax on carriages is not a direct tax. And it may further be taken as established upon the testimony of Paterson that the words "direct taxes," as used in the Constitution, comprehended only capitation taxes and taxes on land, and perhaps taxes on personal property by general valuation and assessment of the various descriptions possessed with the several states. It follows necessarily that the power to tax without apportionment extends to all other objects. Taxes on other objects are included under the heads of taxes not direct, duties, imposts, and excises, and must be laid and collected by the rule of uniformity. The tax under consideration is a tax on bank Page 75 U. S. 547 circulation, and may very well be classed under the head of duties. Certainly it is not, in the sense of the Constitution, a direct tax. It may be said to come within the same category of taxation as the tax on incomes of insurance companies, which this Court, at the last term, in the case of Pacific Insurance Company v. Soule, [ Footnote 27 ] held not to be a direct tax. Is it, then, a tax on a franchise granted by a state, which Congress, upon any principle exempting the reserved powers of the states from impairment by taxation, must be held to have no authority to lay and collect? We do not say that there may not be such a tax. It may be admitted that the reserved rights of the states, such as the right to pass laws, to give effect to laws through executive action, to administer justice through the courts, and to employ all necessary agencies for legitimate purposes of state government, are not proper subjects of the taxing power of Congress. But it cannot be admitted that franchises granted by a state are necessarily exempt from taxation, for franchises are property, often very valuable and productive property, and when not conferred for the purpose of giving effect to some reserved power of a state, seem to be as properly objects of taxation as any other property. But in the case before us, the object of taxation is not the franchise of the bank, but property created, or contracts made and issued under the franchise, or power to issue bank bills. A railroad company, in the exercise of its corporate franchises, issues freight receipts, bills of lading, and passenger tickets, and it cannot be doubted that the organization of railroads is quite as important to the state as the organization of banks. But it will hardly be questioned that these contracts of the company are objects of taxation within the powers of Congress, and not exempted by any relation to the state which granted the charter of the railroad. And it seems difficult to distinguish the taxation of notes issued for circulation from the taxation of these railroad contracts. Both descriptions of contracts are means Page 75 U. S. 548 of profit to the corporations which issue them, and both, as we think, may properly be made contributory to the public revenue. It is insisted, however, that the tax in the case before us is excessive, and so excessive as to indicate a purpose on the part of Congress to destroy the franchise of the bank, and is therefore beyond the constitutional power of Congress. The first answer to this is that the judicial cannot prescribe to the legislative departments of the government limitations upon the exercise of its acknowledged powers. The power to tax may be exercised oppressively upon persons, but the responsibility of the legislature is not to the courts, but to the people by whom its members are elected. So if a particular tax bears heavily upon a corporation or a class of corporations, it cannot for that reason only be pronounced contrary to the Constitution. But there is another answer which vindicates equally the wisdom and the power of Congress. It cannot be doubted that under the Constitution, the power to provide a circulation of coin is given to Congress. And it is settled by the uniform practice of the government and by repeated decisions that Congress may constitutionally authorize the emission of bills of credit. It is not important here to decide whether the quality of legal tender, in payment of debts, can be constitutionally imparted to these bills; it is enough to say that there can be no question of the power of the government to emit them, to make them receivable in payment of debts to itself, to fit them for use by those who see fit to use them in all the transactions of commerce, to provide for their redemption, to make them a currency, uniform in value and description, and convenient and useful for circulation. These powers until recently were only partially and occasionally exercised. Lately, however, they have been called into full activity, and Congress has undertaken to supply a currency for the entire country. The methods adopted for the supply of this currency were briefly explained in the first part of this opinion. It now Page 75 U. S. 549 consists of coin, of United States notes, and of the notes of the national banks. Both descriptions of notes may be properly described as bills of credit, for both are furnished by the government, both are issued on the credit of the government, and the government is responsible for the redemption of both, primarily as to the first description, and immediately upon default of the bank as to the second. When these bills shall be made convertible into coin at the will of the holder, this currency will perhaps satisfy the wants of the community in respect to a circulating medium as perfectly as any mixed currency that can be devised. Having thus, in the exercise of undisputed constitutional powers, undertaken to provide a currency for the whole country, it cannot be questioned that Congress may constitutionally secure the benefit of it to the people by appropriate legislation. To this end, Congress has denied the quality of legal tender to foreign coins, and has provided by law against the imposition of counterfeit and base coin on the community. To the same end, Congress may restrain by suitable enactments the circulation as money of any notes not issued under its own authority. Without this power, indeed, its attempts to secure a sound and uniform currency for the country must be futile. Viewed in this light as well as in the other light of a duty on contracts or property, we cannot doubt the constitutionality of the tax under consideration. The three questions certified from the Circuit Court of the District of Maine must therefore, be answered affirmatively. [ Footnote 1 ] 14 Stat. at Large 146. [ Footnote 2 ] See the act of December 27th, 1854, to suppress small notes in the District of Columbia, 10 Stat. at Large 599. [ Footnote 3 ] 12 Stat. at Large 259. [ Footnote 4 ] Ib., 338. [ Footnote 5 ] Ib., 345. [ Footnote 6 ] Act of July 11, 1862, ib., 532; Act of March 3, 1863, ib., 710. [ Footnote 7 ] Act of March 3, 1863, 12 Stat. at Large 670. [ Footnote 8 ] id., 712. [ Footnote 9 ] 13 ib., 111. [ Footnote 10 ] id., 277. [ Footnote 11 ] Act of March 3d, 1863, 12 Stat. at Large 592. [ Footnote 12 ] 13 id. 484. [ Footnote 13 ] 14 id. 146. [ Footnote 14 ] Lane County v. Oregon , 7 Wall. 73. [ Footnote 15 ] Act of July 14, 1798, 1 Stat. at Large 597. [ Footnote 16 ] Act of August 2, 1813, 3 id. 53. [ Footnote 17 ] Act of July 9, 1815, ib., 164. [ Footnote 18 ] Act of March 5, 1816, ib. 255. [ Footnote 19 ] Act of August 5, 1861, 12 id. 294. [ Footnote 20 ] Act of July 9, 1798, 1 Stat. at Large 586. [ Footnote 21 ] Act of July 22, 1813, 3 id. 26. [ Footnote 22 ] Ib., 166. [ Footnote 23 ] Ib., 255. [ Footnote 24 ] 3 Madison Papers 1337. [ Footnote 25 ] 3 Dall. 3 U. S. 171 . [ Footnote 26 ] 3 Dall. 3 U. S. 177 . [ Footnote 27 ] 74 U. S. 7 Wall. 434. MR. JUSTICE NELSON, with whom concurred MR. JUSTICE DAVIS, dissenting. I am unable to concur in the opinion of a majority of the Court in this case. The Veazie Bank was incorporated by the Legislature of the State of Maine in 1848 with a capital of $200,000, and was invested with the customary powers of a banking institution, and, among others, the power of receiving deposits, Page 75 U. S. 550 discounting paper, and issuing notes or bills for circulation. The constitutional authority of the state to create these institutions, and to invest them with full banking powers is hardly denied. But, it may be useful to recur for a few moments to the source of this authority. The Tenth Amendment to the Constitution is as follows: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." On looking into the Constitution, it will be found that there is no clause or provision which either expressly, or by reasonable implication, delegates this power to the federal Government which originally belonged to the states, nor which prohibits it to them. In the discussions on the subject of the creation of the first Bank of the United States in the first Congress and in the Cabinet of Washington in 1790 and 1791, no question was made as to the constitutionality of the state banks. The only doubt that existed and which divided the opinion of the most eminent statesmen of the day, many of whom had just largely participated in the formation of the Constitution, the government under which they were then engaged in organizing, was whether or not Congress possessed a concurrent power to incorporate a banking institution of the United States. Mr. Hamilton, in his celebrated report on a national bank to the House of Representatives, discusses at some length the question whether or not it would be expedient to substitute the Bank of North America, located in Philadelphia, and which had accepted a charter from the Legislature of Pennsylvania in the place of organizing a new bank. And although he finally came to the conclusion to organize a new one, there is not a suggestion or intimation as to the illegality or unconstitutionality of this state bank. The act incorporating this bank, passed February 25, 1791, prohibited the establishment of any other by Congress during its charter, but said nothing as to the state banks. A like prohibition is contained in the act incorporating the Bank of the United States of 1816. The constitutionality of a Page 75 U. S. 551 bank incorporated by Congress was first settled by the judgment of this Court in McCulloch v. State of Maryland [ Footnote 2/1 ] in 1819. In that case, both the counsel and the Court recognize the legality and constitutionality of banks incorporated by the states. The constitutionality of the Bank of the United States was again discussed, and decided in the case of Osborn v. United States Bank. [ Footnote 2/2 ] And in connection with this was argued and decided a point in the case of The United States Bank v. Planters' Bank of Georgia, which was common to both cases. The question was whether the circuit courts of the United States had jurisdiction of a suit brought by the United States Bank against the Planters' Bank of Georgia, incorporated by that state, and in which the state was a stockholder. [ Footnote 2/3 ] The Court held in both cases that it had. Since the adoption of the Constitution down to the present act of Congress and the case now before us, the question in Congress and in the courts has been not whether the state banks were constitutional institutions, but whether Congress had the power, conferred on it by the states, to establish a national bank. As we have said, that question was closed by the judgment of this Court in McCulloch v. State of Maryland. At the time of the adoption of the Constitution, there were four state banks in existence and in operation -- one in each of the States of Pennsylvania, New York, Massachusetts, and Maryland. The one in Philadelphia had been originally chartered by the Confederation, but subsequently took a charter under the State of Pennsylvania. The framers of the Constitution were therefore familiar with these state banks and the circulation of their paper as money, and were also familiar with the practice of the states that was so common to issue bills of credit, which were bills issued by the state exclusively on its own credit and intended to circulate as currency, redeemable at a future day. They guarded the people against the evils of this practice of the state governments Page 75 U. S. 552 by the provision in the tenth section of the first article "that no state shall" "emit bills of credit," and, in the same section, guard against any abuse of paper money of the state banks in the following words: "nor make anything but gold and silver coin a tender in payment of debts." As bills of credit were thus entirely abolished, the paper money of the state banks was the only currency or circulating medium to which this prohibition could have had any application, and was the only currency, except gold and silver, left to the states. The prohibition took from this paper all coercive circulation and left it to stand alone upon the credit of the banks. It was no longer an irredeemable currency, as the banks were under obligation, including, frequently, that of its stockholders, to redeem their paper in circulation in gold or silver at the counter. The state banks were left in this condition by the Constitution untouched by any other provision. As a consequence, they were gradually established in most or all of the states, and had not been encroached upon or legislated against or in any other way interfered with by acts of Congress for more than three-quarters of a century -- from 1787 to 1864. But, in addition to the above recognition of the state banks, the question of their constitutionality came directly before this Court in the case of Briscoe v. Bank of the Commonwealth of Kentucky. [ Footnote 2/4 ] The case was most elaborately discussed, both by counsel and the Court. The Court, after the fullest consideration, held that the states possessed the power to grant charters to state banks, that the power was incident to sovereignty, and that there was no limitation in the federal Constitution on its exercise by the states. The Court observed that the Bank of North America and of Massachusetts, and some others, were in operation at the time of the adoption of the Constitution, and that it could not be supposed the notes of these banks were intended to be inhibited by that instrument, or that Page 75 U. S. 553 they were considered as bills of credit within its meaning. All the judges concurred in this judgment, except Mr. Justice Story. The decision in this case was affirmed in Woodruff v. Trapnall, [ Footnote 2/5 ] in Darrington v. Bank of Alabama, [ Footnote 2/6 ] and in Curran v. State of Arkansas. [ Footnote 2/7 ] Chancellor Kent observes that Mr. Justice Story in his Commentaries on the Constitution, [ Footnote 2/8 ] seems to be of opinion that independent of the long-continued practice, from the time of the adoption of the Constitution, the states would not, upon a sound construction of the Constitution, if the question was res integra, be authorized to incorporate banks with a power to circulate bank paper as currency, inasmuch as they are expressly prohibited from coining money. He cites the opinions of Mr. Webster, of the Senate of the United States, and of Mr. Dexter, formerly Secretary of War, on the same side. But the Chancellor observes that the equal if not the greater authority of Mr. Hamilton, the earliest Secretary of the Treasury, may be cited in support of a different opinion, and the contemporary sense and uniform practice of the nation are decisive of the question. He further observes the prohibition (of bills of credit) does not extend to bills emitted by individuals, singly or collectively, whether associated under a private agreement for banking purposes, as was the case with the Bank of New York prior to its earliest charter, which was in the winter of 1791, or acting under a charter of incorporation, so long as the state lends not its credit, or obligation, or coercion to sustain the circulation. In the case of Briscoe v. Bank of the Commonwealth of Kentucky, he observes that this question was put at rest by the opinion of the Court that there was no limitation in the Constitution on the power of the states to incorporate banks, and their notes were not intended nor were considered as bills of credit. [ Footnote 2/9 ] The constitutional power of the states being thus established Page 75 U. S. 554 by incontrovertible authority to create state banking institutions, the next question is whether or not the tax in question can be upheld consistently with the enjoyment of this power. The Act of Congress, July 13, 1866, [ Footnote 2/10 ] declares, that the state banks shall pay ten percentum on the amount of their notes or the notes of any person, or other state bank used for circulation and paid out by them after the 1st of August, 1866. In addition to this tax, there is also a tax of five percentum per annum, upon all dividends to stockholders, [ Footnote 2/11 ] besides a duty of one twenty-fourth of one percentum monthly upon all deposits, and the same monthly duty upon the capital of the bank. [ Footnote 2/12 ] This makes an aggregate of some sixteen percent imposed annually upon these banks. It will be observed the tax of ten percentum upon the bills in circulation is not a tax on the property of the institutions. The bills in circulation are not the property, but the debts, of the bank, and in their account of debits and credits are placed to the debit side. Certainly no government has yet made the discovery of taxing both sides of this account, debit and credit, as the property of a taxable person or corporation. If both these items could be made available for this purpose, a heavy national debt need not create any very great alarm, neither as it respects its pressure on the industry of the country, for the time being, or of its possible duration. There is nothing in the debts of a bank to distinguish them in this respect from the debts of individuals or persons. The discounted paper received for the notes in circulation is the property of the bank, and is taxed as such, as is the property of individuals received for their notes that may be outstanding. The imposition upon the banks cannot be upheld as a tax upon property; neither could it have been so intended. It is simply a mode by which the powers or faculties of the states to incorporate banks are subjected to taxation, and which, if maintainable, may annihilate those powers. Page 75 U. S. 555 No person questions the authority of Congress to tax the property of the banks, and of all other corporate bodies of a state, the same as that of individuals. They are artificial bodies, representing the associated pecuniary means of real persons, which constitute their business capital, and the property thus invested is open and subject to taxation with all the property, real and personal, of the state. A tax upon this property, and which, by the Constitution, is to be uniform, affords full scope to the taxing power of the federal government, and is consistent with the power of the states to create the banks, and, in our judgment, is the only subject of taxation, by this government, to which these institutions are liable. As we have seen in the forepart of this opinion, the power to incorporate banks was not surrendered to the federal Government, but reserved to the states, and it follows that the Constitution itself protects them, or should protect them, from any encroachment upon this right. As to the powers thus reserved, the states are as supreme as before they entered into the Union, and are entitled to the unrestrained exercise of them. The question as to the taxation of the powers and faculties belonging to governments is not new in this Court. The bonds of the federal Government have been held to be exempt from state taxation. Why? Because they were issued under the power in the Constitution to borrow money, and the tax would be a tax upon this power, and, as there can be no limitation to the extent of the tax, the power to borrow might be destroyed. So, in the instance of the United States notes, or legal tenders, as they are called, issued under a constructive power to issue bills of credit, as no express power is given in the Constitution, they are exempt from state taxation for a like reason as in the case of government bonds, and we learn from the opinion of the Court in this case that one step further is taken, and that is that the notes of the national banks are to be regarded as bills of credit, issued indirectly by the government; and it follows, of course, from this that the banks used as instruments to issue and put in circulation Page 75 U. S. 556 these notes are also exempt. We are not complaining of this. Our purpose is to show how important it is to the proper protection of the reserved rights of the states, that these powers and prerogatives should be exempt from federal taxation and how fatal to their existence if permitted. And also that even if this tax could be regarded as one upon property, still, under the decisions above referred to, it would be a tax upon the powers and faculties of the states to create these banks, and therefore unconstitutional. It is true that the present decision strikes only at the power to create banks, but no person can fail to see that the principle involved affects the power to create any other description of corporations, such as railroads, turnpikes, manufacturing companies, and others. This taxation of the powers and faculties of the state governments which are essential to their sovereignty and to the efficient and independent management and administration of their internal affairs is, for the first time, advanced as an attribute of federal authority. It finds no support or countenance in the early history of the government or in the opinions of the illustrious statesmen who founded it. These statesmen scrupulously abstained from any encroachment upon the reserved rights of the states, and within these limits sustained and supported them as sovereign states. We say nothing as to the purpose of this heavy tax of some sixteen percentum upon the banks, ten of which we cannot but regard as imposed upon the power of the states to create them. Indeed, the purpose is scarcely concealed, in the opinion of the Court -- namely to encourage the national banks. It is sufficient to add that the burden of the tax, while it has encouraged these banks, has proved fatal to those of the states, and if we are at liberty to judge of the purpose of an act from the consequences that have followed, it is not, perhaps, going too far to say that these consequences were intended. [ Footnote 2/1 ] 17 U. S. 4 Wheat. 316. [ Footnote 2/2 ] 22 U. S. 9 Wheat. 738. [ Footnote 2/3 ] Ib., 804 [argument of counsel -- omitted]. [ Footnote 2/4 ] 36 U. S. 11 Pet. 257. [ Footnote 2/5 ] 51 U. S. 10 How. 205. [ Footnote 2/6 ] 54 U. S. 13 How. 12. [ Footnote 2/7 ] 56 U. S. 15 How. 317. [ Footnote 2/8 ] Vol. 3, p. 19. [ Footnote 2/9 ] 1 Kent's Commentaries p. 409, marg. note A, 10th ed. [ Footnote 2/10 ] 14 Stat. at Large 146, § 9. [ Footnote 2/11 ] 13 id. p. 283, § 120. [ Footnote 2/12 ] Ib., 277, § 110.

In Veazie Bank v. Fenno (1869), the Supreme Court upheld a federal tax on state bank notes, finding that it was not a direct tax requiring apportionment among states as per the Constitution. The Court ruled that Congress had the power to regulate currency and secure its benefits for the people, including restraining circulation of non-federally issued notes. The tax was deemed constitutional under Congress's taxation and commerce powers. The decision also touched on the impact of federal taxation on state powers, with the Court acknowledging the tax's detrimental effect on state banks but not finding it unconstitutional.

Powers of Congress

New York v. Miln

https://supreme.justia.com/cases/federal/us/36/102/

U.S. Supreme Court New York v. Miln, 36 U.S. 11 Pet. 102 102 (1837) New York v. Miln 36 U.S. (11 Pet.) 102 ON CERTIFICATE OF DIVISION IN OPINION OF THE JUDGES OF THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK Syllabus In February, 1824, the Legislature of New York passed "an act concerning passengers in vessels arriving in the port of New York." By one of the provisions of the law, the master of every vessel arriving in New York from any foreign port or from a port of any of the states of the United States other than New York is required, under certain penalties prescribed in the law, within twenty-four hours after his arrival, to make a report in writing containing the names, ages, and last legal settlement of every person who shall have been on board the vessel commanded by him during the voyage, and if any of the passengers shall have gone on board any other vessel or shall, during the voyage, have been landed at any place with a view to proceed to New fork, the same shall be stated in the report. The Corporation of the City of New York instituted an action of debt under this law against the master of the ship Emily for the recovery of certain penalties imposed by this act, and the declaration alleged that the Emily, of which William Thompson was the master, arrived in New Fork in August, 1829, from a country out of the United States, and that one hundred passengers were brought in the ship in the voyage, and that the master did not make the report required by the statute referred to. The defendant demurred to the declaration, and the judges of the circuit court being divided in opinion on the following point, it was certified to the Supreme Court. "That the act of the Legislature of New York mentioned in the plaintiff's declaration assumes to regulate trade and commerce between the port of New York and foreign ports, and is unconstitutional and void." The Supreme Court directed it to be certified to the Circuit Court of New York that so much of the section of the act of the Legislature of New York as applies to the breaches assigned in the declaration does not assume to regulate commerce between the port of New York and foreign ports, and that so much of the said act is constitutional. The act of the Legislature of New York is not a regulation of commerce, but of police, and, being so, it was passed in the exercise of a power which rightfully belonged to the state. The State of New York possessed the power to pass this law before the adoption of the Constitution of the United States. The law was "intended to prevent the state's being burdened with an influx of foreigners and to prevent their becoming paupers, and who would be chargeable as such." The end and means here used are within the competency of the states, since a portion of their powers were surrendered to the federal government. The case of Gibbons v. Ogden , 9 Wheat. 203, and Brown v. State of Maryland , 12 Wheat. 419, cited. The section of the act of the Legislature of New York on which this action is brought falls within the limits of the powers of state laws drawn by the Court in the case of Gibbons v. Ogden, and there is no aspect in which the powers exercised by it transcends these limits. There is not the least likeness between the case of Brown v. State of Maryland and the case before the Court. In the case of Brown v. State of Maryland, this Court did indeed extend the power to regulate commerce, so as to protect the goods imported from a state tax, Page 36 U. S. 103 after they were landed and were yet in bulk, because they were the subjects of commerce and because, as the power to regulate commerce, under which the importation was made, implied a right to sell whilst the bales or packages were in their original form. This does not apply to persons. They are not the subjects of commerce. There is a portion of the reasoning of the Court in the cases of Ogden v. Saunders and Brown v. State of Maryland, which would justify measures on the part of the state not only approaching the line which separates regulations of commerce from those of police, but even those which are almost identical with the former class if adopted in the exercise of their acknowledged powers. 22 U. S. 9 Wheat. 204, 22 U. S. 209 . From the language of the Court in these cases it appears that whilst a state is acting within the scope of its legitimate power as to the end to be attained, it may use whatever means, being appropriate to the end, it may think fit, although they may be the same or nearly the same as scarcely to be distinguished from those adopted by Congress acting under a different power, subject only, the Court said, to this limitation -- that in the event of collision, the law of the state must yield to the law of Congress. The Court must be understood, of course, as meaning that the law of Congress is passed upon a subject within the sphere of its power. Even then, if the section of the act of New York under consideration in this case would be considered as partaking of the nature of a commercial regulation, the principle laid down in Gibbons v. Ogden would save it from condemnation if no such collision existed. There is no collision between the provisions of the section of the law of New York on which this suit has been brought and the provisions of the laws of the United States of 1799, or 1819, relating to passengers. It is obvious that the passengers laws of the United States only affect, through the power over navigation, the passengers whilst on their voyage and until they shall have landed; after that, and when they shall have ceased to have any connection with the ship, and when therefore they have ceased to be passengers, the acts of Congress applying to them as such, and only professing to legislate in relation to them as such, have then performed their office, and can with no propriety of language be said to come into conflict with the law of a state, whose operation only begins where that of the laws of Congress end, whose operation is not even on the same subject, because although the person on whom it operates is the same, yet, having ceased to be a passenger, he no longer stands in the only relation in which the laws of Congress either professed or intended to act upon him. A state has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation when that jurisdiction is not surrendered or restrained by the Constitution of the United States. It is not only the right but the bounden and solemn duty of a state to advance the safety, happiness, and prosperity of its people and to provide for its general welfare by any and every act of legislation which it may deem to be conducive to these ends where the power over the particular subject or the manner of its exercise are not surrendered or restrained by the Constitution of the United States. All those powers which relate to merely municipal legislation or which may more properly be called internal police are not surrendered or restrained, and consequently in relation to these the authority of a state is complete, unqualified, and exclusive. It is at all times difficult to define any subject with precision and accuracy. If this be so in general, it is emphatically so in relation to a subject so diversified and Page 36 U. S. 104 various as that under the consideration of the Court in this case. If the Court were to attempt it, it would say that every law came within the description of a regulation of police, which concerned the welfare of the whole people of a state or any individual within it, whether it related to their rights or their duties, whether it respected them as men or as citizens of the state in their public or private relations, whether it related to the rights of persons or of property, of the whole people of a state or of any individual within it, and whose operation was within the territorial limits of the state and upon the persons and things within its jurisdiction. An example of the application of these principles is the right of a state to punish persons who commit offenses against its criminal laws within its territory. Persons are not the subjects of commerce, and not being imported goods, they do not fall within the reasoning founded upon the construction of a power given to Congress to regulate commerce and the prohibition of the states from imposing a duty on imported goods. In the Superior Court of the City of New York, the plaintiffs instituted an action of debt for the recovery of $15,000, the amount of certain penalties alleged to have been incurred by the defendant under the provisions of an Act of the Legislature of the State of New York passed February 11, 1824, entitled "an act concerning passengers in vessels coming to the port of New York." The defendant, being an alien, removed the cause into the Circuit Court of the United States, and the pleadings in the case were carried on to issue in that court. The act of the Legislature of New York provides, in the first section, that the master of any ship or vessel arriving in the port of New York from any country of the United States, or from any other state of the United States, shall, within twenty-four hours after his arrival, make a report, in writing, to the Mayor of the City of New York or, in his absence, to the recorder, on oath or affirmation, of the name, place of birth, and last legal settlement, age and occupation of every person brought as a passenger in the ship or vessel or on board of her on her last voyage from any country out of the United States or from any of the United States into the port of New York or into any of the United States, and of all persons landed from the ship, during the voyage at any place, or put on board, or suffered to go on board any other vessel, with intention of proceeding to the City of New York, under a penalty, on the master and commander, the owner, consignee or consignees, of $75 for each passenger not Page 36 U. S. 105 reported and for every person whose name, place of birth, last legal settlement, age and occupation shall be falsely reported. The second section authorizes the mayor, &c., to require from every master of such vessel that he be bound with sureties in such sum as the mayor, &c., shall think proper in a sum not to exceed $300 for every passenger, to indemnify and save harmless the mayor, &c., of the City of New York and the overseers of the poor of the city from all expenses of the maintenance of such person or of the child or children of such person born after such importation in case such person, child, or children shall become chargeable to the city within two years, and if, for three days after arrival, the master of the vessel shall neglect to give such security, the master of the vessels and the owners shall, severally and respectively, be liable to a penalty of $500 for each and every person not a citizen of the United States for whom the mayor or recorder shall determine that bonds should have been given. The third section enacts that whenever any person brought in such vessel, not being a citizen of the United States, shall, by the mayor, &c., be deemed liable to become chargeable on the city, the master of the vessel shall, on an order of the mayor, &c., remove such person without delay to the place of his last settlement, and in default shall incur all the expenses attending the removal of such person and of his maintenance. The fourth section provides that every person, not being a citizen of the United States, entering the City of New York with an intention of residing therein shall within twenty-four hours make a report of himself to the mayor stating his age, occupation, and the name of the ship or vessel in which he arrived, the place where he landed, and the name of the commander of the vessel. The sixth section subjects the ship or vessel in which such passengers shall have arrived to the penalties imposed by the former sections for any neglect of the provisions of the law by the master or owner, and authorizes proceedings by attachment against the ship or vessel for the same in the courts of New York. The declaration set forth the several provisions of the act and alleged breaches of the same, claiming that the amount of the penalties stated had become due in consequence of such breaches. To this declaration the defendant entered a demurrer, and the plaintiffs joined in the same. Page 36 U. S. 130 BARBOUR, Justice, delivered the opinion of the Court. This case comes before this Court upon a certificate of division of the Circuit Court of the United States for the Southern District of New York. It was an action of debt brought in that court by the plaintiff to recover of the defendant as consignee of the ship called the Emily, the amount of certain penalties imposed by a statute of New York passed February 11, 1824, entitled, "an act concerning passengers in vessels coming to the port of New York." The statute, amongst other things, enacts that every master or commander of any ship or other vessel arriving at the port of New York from any country out of the United States or from any other of the United States than the State of New York, shall, within twenty-four hours after the arrival of such ship or vessel in the said port, make a report in writing, on oath or affirmation, to the Mayor of the City of New York, or, in case of his sickness or absence, to the recorder of the said city, of the name, place of birth, and last legal settlement, age and occupation, of every person who shall have been brought as a passenger in such ship or vessel on her last voyage from any country out of the United States into the Page 36 U. S. 131 port of New York or any of the United States and from any of the United States other than the State of New York, to the City of New York, and of all passengers who shall have landed or been suffered or permitted to land from such ship or vessel at any place during such her last voyage or have been put on board or suffered or permitted to go on board of any other ship or vessel with the intention of proceeding to the said city, under the penalty on such master or commander, and the owner or owners, consignee or consignees of such ship or vessel, severally and respectively, of $75 for every person neglected to be reported as aforesaid, and for every person whose name, place of birth, and last legal settlement, age and occupation, or either or any of such particulars, shall be falsely reported as aforesaid, to be used for and recovered as therein provided. The declaration alleges that the defendant was consignee of the ship Emily, of which a certain William Thompson was master, and that in the month of August, 1829, said Thompson, being master of such ship, did arrive with the same in the port of New York from a country out of the United States, and that one hundred passengers were brought in said ship, on her then last voyage from a country out of the United States into the port of New York, and that the said master did not make the report required by the statute, as before recited. The defendant demurred to the declaration. The plaintiff joined in the demurrer, and the following point, on a division of the court, was thereupon certified to this Court, viz., "That the act of the Legislature of New York mentioned in the plaintiff's declaration assumes to regulate trade and commerce between the port of New York and foreign ports, and is unconstitutional and void." It is contended by the counsel for the defendant that the act in question is a regulation of commerce; that the power to regulate commerce is, by the Constitution of the United States, granted to Congress; that this power is exclusive, and that consequently the act is a violation of the Constitution of the United States. On the part of the plaintiff it is argued that an affirmative grant of power previously existing in the states to Congress is not exclusive except 1st, where it is so expressly declared in terms by the clause giving the power, or 2d where a similar power is prohibited to the states, or 3d, where the power in the states would be Page 36 U. S. 132 repugnant to and incompatible with a similar power in Congress; that this power falls within neither of these predicaments; that it is not in terms declared to be exclusive; that it is not prohibited to the states, and that it is not repugnant to nor incompatible with a similar power in Congress, and that having preexisted in the states, they therefore have a concurred power in relation to the subject, and that the act in question would be valid, even if it were a regulation of commerce, it not contravening any regulation made by Congress. But they deny that it is a regulation of commerce; on the contrary, they assert that it is a mere regulation of internal police, a power over which is not granted to Congress, and which, therefore, as well upon the true construction of the Constitution as by force of the Tenth Amendment to that instrument, is reserved to and resides in the several states. We shall not enter into any examination of the question whether the power to regulate commerce be or be not exclusive of the states, because the opinion which we have formed renders it unnecessary. In other words, we are of opinion that the act is not a regulation of commerce, but of police, and that being thus considered, it was passed in the exercise of a power which rightfully belonged to the states. That the State of New York possessed power to pass this law before the adoption of the Constitution of the United States might probably be taken as a truism, without the necessity of proof. But as it may tend to present it in a clearer point of view, we will quote a few passages from a standard writer upon public law showing the origin and character of this power. Vattel, book 2, ch. 7, § 94. "The sovereign may forbid the entrance of his territory either to foreigners in general or in particular cases or to certain persons or for certain particular purposes, according as he may think it advantageous to the state." Ibid., ch. 8, § 100. "Since the lord of the territory may, whenever he thinks proper, forbid its being entered, he has no doubt a power to annex what conditions he pleases, to the permission to enter." The power, then, of New York to pass this law having undeniably existed at the formation of the Constitution, the simple inquiry is whether by that instrument is was taken from the states and granted to Congress, for if it were not, it yet remains with them. If, as we think, it be a regulation not of commerce, but police, Page 36 U. S. 133 then it is not taken from the states. To decide this, let us examine its purpose, the end to be attained, and the means of its attainment. It is apparent from the whole scope of the law that the object of the legislature was to prevent New York from being burdened by an influx of persons brought thither in ships, either from foreign countries or from any other of the states, and for that purpose a report was required of the names, places of birth, &c., of all passengers, that the necessary steps might be taken by the city authorities to prevent them from becoming chargeable as paupers. Now we hold that both the end and the means here used are within the competency of the states, since a portion of their powers were surrendered to the federal government. Let us see what powers are left with the states. The Federalist, No 45, speaking of this subject, says the powers reserved to the several states all extend to all the objects which in the ordinary course of affairs concern the lives, liberties, and properties of the people and the internal order, improvement and prosperity of the state. And this Court, in the case of Gibbons v. Ogden , 9 Wheat. 203, which will hereafter be more particularly noticed, in speaking of the inspection laws of the states, say they form a portion of that immense mass of legislation which embraces everything within the territory of a state not surrendered to the general government, all which can be most advantageously exercised by the states themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a state and those which respect turnpike roads, ferries, &c., are component parts of this mass. Now if the act in question be tried by reference to the delineation of power laid down in the preceding quotations, it seems to us that we are necessarily brought to the conclusion that it falls within its limits. There is no aspect in which it can be viewed in which it transcends them. If we look at the place of its operation, we find it to be within the territory and therefore within the jurisdiction of New York. If we look at the person on whom it operates, he is found within the same territory and jurisdiction. If we look at the persons for whose benefit it was passed, they are the people of New York, for whose protection and welfare the Legislature of that state are authorized and in duty bound to provide. If we turn our attention to the purpose to be attained, it is to secure that very protection, and to provide for that very welfare. If Page 36 U. S. 134 we examine the means by which these ends are proposed to be accomplished, they bear a just, natural and appropriate relation to those ends. But we are told that it violates the Constitution of the United States, and to prove this we have been referred to two cases in this Court -- the first, that of Gibbons v. Ogden , 9 Wheat. 1, and the other that of Brown v. State of Maryland , 12 Wheat. 419. The point decided in the first of these cases is that the acts of the Legislature of New York granting to certain individuals the exclusive navigation of all the waters within the jurisdiction of that state with boats moved by steam for a term of years are repugnant to the clause of the Constitution of the United States which authorizes Congress to regulate commerce so far as the said acts prohibit vessels licensed according to the laws of the United States for carrying on the coasting trade from navigating said waters by means of steam. In coming to that conclusion, this Court in its reasoning laid down several propositions, such as that the power over commerce included navigation, that it extended to the navigable waters of the states, that it extended to navigation carried on by vessels exclusively employed in transporting passengers. Now all this reasoning was intended to prove that a steam vessel licensed for the coasting trade was lawfully licensed by virtue of an act of Congress, and that as the exclusive right to navigate the waters of New York, granted by the law of that state, if suffered to operate, would be in collision with the right of the vessel licensed under the act of Congress to navigate the same waters, and that as when that collision occurred, the law of the states must yield to that of the United States when lawfully enacted, therefore the act of the State of New York was in that case void. The second case, to-wit that of Brown v. State of Maryland , 12 Wheat. 419, decided that the act of the State of Maryland requiring all importers of foreign goods by the bale or package and other persons selling the same by wholesale, bale or package, &c., to take out a license for which they should pay fifty dollars, and in case of neglect or refusal to take out such license subjecting them to certain forfeitures and penalties, was repugnant first to that provision of the Constitution of the United States which declares that "No state shall, without the consent of Congress, lay any impost or duty on imports or exports except what may be absolutely necessary for executing its inspection laws," and secondly Page 36 U. S. 135 to that which declares that Congress shall have power "to regulate commerce with foreign nations, among the several states and with the Indian tribes." Now it is apparent from this short analysis of these two cases that the question involved in this case is not the very point which was decided in either of those which have been referred to. Let us examine whether in the reasoning of the Court there is any principle laid down in either of them which will go to prove that the section of the law of New York on which this prosecution is founded is a violation of the Constitution of the United States. In Gibbons v. Ogden, the law of the state assumed to exercise authority over the navigable waters of the state; to do so by granting a privilege to certain individuals and by excluding all others from navigating them by vessels propelled by steam, and in the particular case this law was brought to bear in its operation directly upon a vessel sailing under a coasting license from the United States. The Court was of opinion that as the power to regulate commerce embraced within its scope that of regulating navigation also, as the power over navigation extended to all the navigable waters of the United States, as the waters on which Gibbons' vessel was sailing were navigable, and as his vessel was sailing under the authority of an act of Congress, the law of the state, which assumed, by its exclusive privilege granted to others, to deprive a vessel thus authorized of the right of navigating the same waters, was a violation of the Constitution of the United States because it directly conflicted with the power of Congress to regulate commerce. Now there is not in this case one of the circumstances which existed in that of Gibbons v. Ogden, which, in the opinion of the Court, rendered it obnoxious to the charge of unconstitutionality. On the contrary, the prominent facts of this case are in striking contrast with those which characterized that. In that case, the theater on which the law operated was navigable water, over which the Court said that the power to regulate commerce extended; in this, it was the territory of New York, over which that state possesses an acknowledged an undisputed jurisdiction for every purpose of internal regulation; in that, the subject matter on which it operated, was a vessel claiming the right of navigation, a right which the Court said is embraced in the power to regulate commerce; in this, the subjects on which it operates are Page 36 U. S. 136 persons whose rights and whose duties are rightfully prescribed and controlled by the laws of the respective states within whose territorial limits they are found -- in that, said the Court, the act of a state came into direct collision with an act of the United States; in this, no such collision exists. Nor is there the least likeness between the facts of this case and those of Brown v. State of Maryland. The great grounds upon which the Court put that case were that sale is the object of all importation of goods; that therefore the power to allow importation implied the power to authorize the sale of the thing imported; that a penalty inflicted for selling an article in the character of importer was in opposition to the act of Congress which authorized importation under the authority to regulate commerce; that a power to tax an article in the hands of the importer the instant it was landed was the same in effect as a power to tax it whilst entering the port; that consequently the law of Maryland was obnoxious to the charge of unconstitutionality on the ground of its violating the two provisions of the Constitution, the one giving to Congress to power to regulate commerce, the other forbidding the states from taxing imports. In this case it will be seen that the discussion of the Court had reference to the extent of the power given no Congress to regulate commerce, and to the extent of the prohibition upon the states from imposing any duty upon imports. Now it is difficult to perceive what analogy there can be between a case where the right of the state was inquired into in relation to a tax imposed upon the sale of imported goods and one where, as in this case, the inquiry is as to its right over persons within its acknowledged jurisdiction; the goods are the subject of commerce, the persons are not; the Court did indeed extend the power to regulate commerce, so as to protect the goods imported from a state tax after they were landed and were yet in bulk, but why? Because they were the subjects of commerce and because, as the power to regulate commerce under which the importation was made implied a right to sell; that right was complete without paying the state for a second right to sell whilst the bales or packages were in their original form. But how can this apply to persons? They are not the subject of commerce, and not being imported goods, cannot fall within a train of reasoning founded upon the construction of a power given to Congress to regulate Page 36 U. S. 137 commerce and the prohibition to the states from imposing a duty on imported goods. Whilst, however, neither of the points decided in the cases thus referred to is the same with that now under consideration, and whilst the general scope of the reasoning of the Court in each of them applies to questions of a different nature, there is a portion of that reasoning in each which has a direct bearing upon the present subject and which would justify measures on the part of states not only approaching the line which separates regulations of commerce from those of police, but even those which are almost identical with the former class if adopted in the exercise of one of their acknowledged powers. In Gibbons v. Ogden , 9 Wheat. 204, the Court said if a state, in passing laws on a subject acknowledged to be within its control and with a view to those subjects, shall adopt a measure of the same character with one which Congress may adopt, it does not derive its authority from the particular power which has been granted, but from some other which remains with the state and may be executed by the same means. All experience shows that the same measures, or measures scarcely distinguishable from each other, may flow from distinct powers, but this does not prove that the powers are identical. Although the means used in their execution may sometimes approach each other so nearly as to be confounded, there are other situations in which they are sufficiently distinct to establish their individuality. In page 22 U. S. 209 , the Court said since, however, in regulating their own purely internal affairs, whether of trading or of police, the states may sometimes, enact laws the validity of which depends on their interfering with and being contrary to, an act of Congress passed in pursuance of the Constitution, it would inquire whether there was such collision in that case, and it came to the conclusion that there was. From this it appears that whilst a state is acting within the legitimate scope of its power, as to the end to be attained it may use whatsoever means, being appropriate to that end, it may think fit, although they may be the same, or so nearly the same, as scarcely to be distinguishable from those adopted by Congress, acting under a different power, subject only, said the Court, to this limitation -- that in the event of collision, the law of the state must yield to the law of Congress. The Court must be understood, of course, as meaning Page 36 U. S. 138 that the law of Congress is passed upon a subject within the sphere of its power. Even, then, if the section of the act in question could be considered as partaking of the nature of a commercial regulation, the principle here laid down would save it from condemnation if no such collision exist. It has been contended at the bar that there is that collision, and in proof of it we have been referred to the revenue act of 1799 and to the act of 1819, relating to passengers. The whole amount of the provision in relation to this subject in the first of these acts is to require in the manifest of a cargo of goods a statement of the names of the passengers, with their baggage, specifying the number and description of packages belonging to each respectively; now it is apparent as well from the language of this provision as from the context that the purpose was to prevent goods being imported without paying the duties required by law under the pretext of being the baggage of passengers. The act of 1819 contains regulations obviously designed for the comfort of the passengers themselves; for this purpose, it prohibits the bringing more than a certain number, proportioned to the tonnage of the vessel, and prescribes the kind and quality of provisions, or sea stores, and their quantity, in a certain proportion to the number of the passengers. Another section requires the master to report to the collector a list of all passengers, designating the age, sex, occupation, the country to which they belong, &c., which list is required to be delivered to the Secretary of State, and which he is directed to lay before Congress. The object of this clause, in all probability, was to enable the government of the United States to form an accurate estimate of the increase of population by emigration, but whatsoever may have been its purpose, it is obvious that these laws only affect, through the power over navigation, the passengers whilst on their voyage and until they shall have landed. After that, and when they have ceased to have any connection with the ship, and when therefore they have ceased to be passengers, we are satisfied that acts of Congress, applying to them as such and only professing to legislate in relation to them as such, have then performed their office, and can with no propriety of language be said to come into conflict with the law of a state whose operation only begins when that of the laws of Congress ends; whose operation is not even on the same subject, because, although Page 36 U. S. 139 the person on whom it operates is the same, yet, having ceased to be a passenger, he no longer stands in the only relation in which the laws of Congress either professed or intended to act upon him. There is then no collision between the law in question and the acts of Congress just commented on, and therefore, if the state law were to be considered as partaking of the nature of a commercial regulation, it would stand the test of the most rigid scrutiny if tried by the standard laid down in the reasoning of the Court quoted from the case of Gibbons v. Ogden. But we do not place our opinion on this ground. We choose rather to plant ourselves on what we consider impregnable positions. They are these: That a state has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation where that jurisdiction is not surrendered or restrained by the Constitution of the United States. That, by virtue of this, it is not only the right but the bounden and solemn duty of a state to advance the safety, happiness, and prosperity of its people and to provide for its general welfare by any and every act of legislation which it may deem to be conducive to these ends where the power over the particular subject or the manner of its exercise is not surrendered or restrained in the manner just stated. That all those powers which relate to merely municipal legislation, or what may perhaps more properly be called internal police, are not thus surrendered or restrained, and that consequently, in relation to these, the authority of a state is complete, unqualified, and exclusive. We are aware that it is at all times difficult to define any subject with proper precision and accuracy; if this be so in general, it is emphatically so in relation to a subject so diversified and multifarious as the one which we are now considering. If we were to attempt it, we should say that every law came within this description which concerned the welfare of the whole people of a state or any individual within it, whether it related to their rights or their duties; whether it respected them as men, or as citizens of the state; whether in their public or private relations; whether it related to the rights of persons or of property, of the whole people of a state or of any individual within it, and whose operation was within the territorial limits of the state and upon the persons and things within its jurisdiction. But we will endeavor to illustrate our meaning rather by exemplification than by definition. No one will deny that a state has a right to punish Page 36 U. S. 140 any individual found within its jurisdiction who shall have committed an offense within its jurisdiction against its criminal laws. We speak not here of foreign ambassadors, as to whom the doctrines of public law apply. We suppose it to be equally clear that a state has as much right to guard by anticipation against the commission of an offense against its laws as to inflict punishment upon the offender after it shall have been committed. The right to punish or to prevent crime does in no degree depend upon the citizenship of the party who is obnoxious to the law. The alien who shall just have set his foot upon the soil of the state is just as subject to the operation of the law as one who is a native citizen. In this very case, if either the master or one of the crew of the Emily, or one of the passengers who were landed, had, the next hour after they came on shore, committed an offense or indicated a disposition to do so, he would have been subject to the criminal law of New York either by punishment for the offense committed or by prevention from its commission, where good ground for apprehension was shown, by being required to enter into a recognizance, with surety, either to keep the peace or be of good behavior, as the case might be, and if he failed to give it, by liability to be imprisoned in the discretion of the competent authority. Let us follow this up to its possible results. If every officer and every seaman belonging to the Emily, had participated in the crime, they would all have been liable to arrest and punishment, although thereby the vessel would have been left without either commander or crew. Now why is this? For no other reason than this -- simply that being within the territory and jurisdiction of New York, they were liable to the laws of that state, and amongst others, to its criminal laws, and this too not only for treason, murder and other crimes of that degree of atrocity, but for the most petty offense which can be imagined. It would have availed neither officer, seaman, nor passenger to have alleged either of these several relations in the recent voyage across the Atlantic. The short but decisive answer would have been that we know you now only as offenders against the criminal laws of New York, and being now within her jurisdiction, you are now liable to the cognizance of those laws. Surely the officers and seamen of the vessel have not only as much, but more, concern with navigation than a passenger, and yet in the case here put, any and every one of them would be held liable. There would be the same liability, and for the same reasons, on the part of the officers, seamen, Page 36 U. S. 141 and passengers to the civil process of New York in a suit for the most trivial sum, and if, according to the laws of that state, the party might be arrested and held to bail in the event of his failing to give it, he might be prisoned until discharged by law. Here, then, are the officers and seamen, the very agents of navigation, liable to be arrested and imprisoned under civil process and to arrest and punishment under the criminal law. But the instrument of navigation -- that is, the vessel -- when within the jurisdiction of the state, is also liable by its laws to execution. If the state has a right to vindicate its criminal justice against the officers, seamen and passengers who are within its jurisdiction, and also, in the administration of its civil justice, to cause process of execution to be served on the body of the very agents of navigation, and also on the instrument of navigation, under which it may be sold because they are within its jurisdiction and subject to its laws, the same reasons precisely equally subject the master, in the case before the Court, to liability for failure to comply with the requisitions of the section of the statute sued upon. Each of these laws depends upon the same principle for its support, and that is that it was passed by the State of New York by virtue of her power to enact such laws for internal policy as it deemed best, which laws operate upon the persons and things within her territorial limits, and therefore within her jurisdiction. Now in relation to the section in the act immediately before us, that is obviously passed with a view to prevent her citizens from being oppressed by the support of multitudes of poor persons who come from foreign countries without possessing the means of supporting themselves. There can be no mode in which the power to regulate internal police could be more appropriately exercised. New York, from her particular situation, is perhaps more than any other city in the Union exposed to the evil of thousands of foreign emigrants arriving there, and the consequent danger of her citizens being subjected to a heavy charge in the maintenance of those who are poor. It is the duty of the state to protect its citizens from this evil; they have endeavored to do so by passing, amongst other things, the section of the law in question. We should upon principle, say that it had a right to do so. Let us compare this power with a mass of power, said by this Court in Gibbons v. Ogden not to be surrendered to the general government. They are inspection laws, quarantine laws, health Page 36 U. S. 142 laws of every description, as well as laws for regulating the internal commerce of a state, &c. To which it may be added that this Court, in Brown v. State of Maryland, admits the power of a state to direct the removal of gunpowder as a branch of the police power which unquestionably remains, and ought to remain, with the states. It is easy to show that if these powers, as is admitted, remain with the states, they are stronger examples than the one now in question. The power to pass inspection laws involves the right to examine articles which are imported, and are therefore directly the subject of commerce, and if any of them are found to be unsound or infectious, to cause them to be removed or even destroyed. But the power to pass these inspection laws is itself a branch of the general power to regulate internal police. Again, the power to pass quarantine laws operates on the ship which arrives, the goods which it brings, and all persons in it, whether the officers and crew or the passengers; now the officers and crew are not agents of navigation; the ship is an instrument of it, and the cargo on board is the subject of commerce, and yet it is not only admitted that this power remains with the states, but the laws of the United States expressly sanction the quarantines and other restraints which shall be required and established by the health laws of any state and declare that they shall be duly observed by the collectors and all other revenue officers of the United States. We consider it unnecessary to pursue this comparison further, because we think that if the stronger powers, under the necessity of the case, by inspection laws and quarantine laws, to delay the landing of a ship and cargo, which are the subjects of commerce and navigation, and to remove or even to destroy unsound and infectious articles, also the subject of commerce, can be rightfully exercised, then that it must follow as a consequence that powers less strong, such as the one in question, which operates upon no subject either of commerce or navigation, but which operates alone within the limits and jurisdiction of New York upon a person at the time not even engaged in navigation, is still more clearly embraced within the general power of the states to regulate their own internal police and to take care that no detriment come to the commonwealth. We think it as competent and as necessary for a state to provide precautionary measures against the moral pestilence of paupers, vagabonds, and possibly convicts as it is to guard against the physical pestilence which may arise from unsound and infections articles Page 36 U. S. 143 imported or from a ship the crew of which may be laboring under an infectious disease. As to any supposed conflict between this provision and certain treaties of the United States by which reciprocity as to trade and intercourse is granted to the citizens of the governments with which those treaties were made, it is obvious to remark that the record does not show that any person in this case was a subject or citizen of a country to which treaty stipulation applies; but moreover, those which we have examined stipulate that the citizens and subjects of the contracting parties shall submit themselves to the laws, decrees, and usages to which native citizens and subjects are subjected. We are therefore of opinion, and do direct it to be certified to the circuit court for the Southern District of New York, that so much of the section of the act of the Legislature of New York as applies to the breaches assigned in the declaration does not assume to regulate commerce between the port of New York and foreign ports, and that so much of said section is constitutional. We express no opinion on any other part of the act of the Legislature of New York, because no question could arise in the case in relation to any part of the act except that declared upon. THOMPSON, Justice. This case comes up from the Supreme Court for the Southern District of New York upon a certificate of a division of opinion of the judges upon a question which arose upon the trial of the cause. The action is founded upon an act of the Legislature of the State of New York concerning passengers in vessels coming to the port of New York, and is brought against the defendant, being consignee of the ship Emily, to recover certain penalties given in the act for the neglect of the master of the ship to make a report to the Mayor of New York of the name and description of the passengers who had been brought in the ship on her last voyage. The declaration sets out in part, the law on which the action is founded, and avers that on 27 August, in the year 1829, William Thompson, being master or commander of said ship, did arrive with the said ship or vessel in the port of New York from a country out of the United States, to-wit, from Liverpool, in England, or from one of the United States other than this state (New York), to-wit, from the State of New Jersey, at the city and within the county of New York, and it is further averred that one hundred Page 36 U. S. 144 persons were brought as passengers in the said ship on her last voyage from a country out of the United States, to-wit, from Liverpool aforesaid, into the port of New York or into one of the United States other than the State of New York, to-wit, into the State of New Jersey, and from thence to the City of New York, and that the said master of the vessel did not, within twenty-four hours after the arrival of the ship in the port of New York, made a report in writing to the mayor or recorder of the said city of the name, place of birth, and last legal settlement, age, and occupation of the several persons so brought as passengers in said ship pursuant to the provisions of the act in part hereinbefore recited, but that a large number of the said persons, to-wit, one hundred, were neglected to be reported, contrary to the directions and provisions of the said act, whereby an action hath accrued to the plaintiff, to demand and have from the defendant, the consignee of the said ship, the sum of $7,500. To this declaration there is a general demurrer and joinder. The certificate then states that the cause was continued from term to term until the last Monday in October in the year 1829, at which term, the following point was presented on the part of the defendant, viz., that the act of the Legislature of the State of New York mentioned in the plaintiff's declaration assumes to regulate trade and commerce between the port of New York and foreign ports and is unconstitutional and void. And upon the question thus occurring, the opinions of the two judges were opposed, and the point upon which the disagreement happened is certified to this Court. Although the point as here stated is general, and might embrace the whole of the act referred to in the plaintiff's declaration, yet its validity cannot come under consideration here any further than it applied to the question before the circuit court. The question arose upon a general demurrer to the declaration, and the certificate under which the cause is sent here contains the pleadings upon which the question arose and shows that no part of the act was drawn in question except that which relates to the neglect of the master to report to the mayor or recorder an account of his passengers according to the requisition of the act. No other part of the act could have been brought under the consideration of the circuit court or could now be passed upon by this Court was it even presented in a separate and distinct point. For this Court will not entertain any abstract question upon a certificate of division of opinion which does not Page 36 U. S. 145 arise in the cause. The question must occur before the circuit court according to the express terms of the act of Congress in order to come here upon such division of opinion. And if the only cause of action alleged in the declaration was the neglect of the master to report his passengers to the mayor or recorder, no other part of the act could have been drawn in question, and although the question, as stated, may be broader than was necessary, yet as the declaration and demurrer are embraced in the certificate, the question in the circuit court cannot be mistaken. The certificate might have been sent back for a more specific statement of the point, but as the breach is assigned under this part of the act only, and as we see that no other part of the act could have been drawn in question in the circuit court, it is not deemed necessary to send the cause back for more specific statement of the point. I shall accordingly confine my inquiries simply to that part of the act of the Legislature of the State of New York which requires the master, within twenty-four hours after the arrival of the vessel in the port of New York, to make a report in writing to the mayor or recorder of the name, place of birth, and last legal settlement, age and occupation of every person who shall have been brought as a passenger in such ship or vessel on her last voyage. I do not mean, however, to intimate that any other part of the act is unconstitutional, but confine my inquiries to the part here referred to, because it is the only part that can arise in this case. And any opinion expressed upon other parts, would be extrajudicial. This act is alleged to be unconstitutional on the ground that it assumes to regulate trade and commerce between the port of New York and foreign ports and is a violation of that part of the Constitution of the United States which gives to Congress the power to regulate commerce with foreign nations. This clause in the Constitution has repeatedly been drawn in question before this Court and has undergone elaborate discussion both at the bar and upon the bench, and so far as any points have been settled, I do not consider them now open for examination. In the leading cases upon this question where the state law has been held to be unconstitutional, there was an actual conflict between the legislation of Congress and that of the states upon the right drawn in question. 22 U. S. 9 Wheat. 195; 25 U. S. 12 Wheat. 446; 31 U. S. 6 Pet. 515. And in all such cases, the law of Congress is supreme, and the state law, though enacted in the exercise of powers not controverted, must yield to it. Page 36 U. S. 146 But in the case now before the Court, no such conflict arises. Congress has not legislated on this subject in any manner to affect this question. By the 23d section of the duty act of 1799, 1 Stat. 644, it is required that the manifest shall contain the names of the several passengers, distinguishing whether cabin or steerage passengers, or both, with their baggage, specifying the number and description of packages belonging to each, respectively; but this is a mere revenue law, having no relation to the passengers after they have landed. Nor does the act regulating passenger ships and vessels, 3 Stat. 488, at all conflict with this state law. Its principal object is to provide for the comfort and safety of passengers on the voyage; it requires the captain or master of the vessel to deliver a list or manifest of all passengers with the manifest of the cargo, and the collector is directed to return, quarterly, to the Secretary of State copies of such list of passengers, by whom statements of the same are required to be laid before Congress at every session, by which it is evident that some statistical or political object was in view by this provision. It is not necessary in this case to fix any limits upon the legislation of Congress and of the states on this subject or to say how far Congress may, under the power to regulate commerce, control state legislation in this respect. It is enough to say that whatever the power of Congress may be, it has not been exercised so as in any manner to conflict with the state law, and if the mere grant of the power to Congress does not necessarily imply a prohibition of the states to exercise the power until Congress assumes to exercise it, no objection on that ground can arise to this law. Nor is it necessary to decide, definitively whether the provisions of this law may be considered as at all embraced within the power to regulate commerce. Under either view of the case, the law of New York, so far at least as it is drawn in question in the present suit, is entirely unobjectionable. This law does not in any respect interfere with the entry of the vessel or cargo. It requires the report of the master to be made within twenty-four hours after the arrival of the vessel. In the case of Gibbons v. Ogden , 9 Wheat. 195, it is said the genius and character of the whole government seems to be that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the states generally, but not to those which are completely within a particular state which do not affect other states Page 36 U. S. 147 and with which it is not necessary to interfere for the purpose of executing some of the general powers of the government. The completely internal commerce of a state may then be considered as reserved for the state itself. To test the present case by this rule. The duly here imposed arises after the master and passengers have arrived within the limits of the state, and is applied to the purely internal concerns of the state. This provision does not affect other states, nor any subject necessary for the purpose of executing any of the general powers of the government of the Union. For although commerce, within the sense of the Constitution, may mean intercourse, and the power to regulate it be coextensive with the subject on which it acts, and cannot be stopped at the external boundary of a state, according to the language of this Court in the case of Brown v. Maryland , 12 Wheat. 446, it cannot be claimed that the master or the passengers are exempted from any duty imposed by the laws of a state after their arrival within its jurisdiction, or have a right to wander uncontrolled after they become mixed with the general population of the state, or that any greater rights or privileges attach to them because they come in through the medium of navigation than if they come by land from an adjoining state, and if the state had a right to guard against paupers' becoming chargeable to the city, it would seem necessarily to follow that it had the power to prescribe the means of ascertaining who they were, and a list of their names is indispensable to effect that object. The purposes intended to be answered by this law fall within that internal police of the state, which, throughout the whole case of Gibbons v. Ogden, is admitted to remain with the states. The Court there, in speaking of inspection laws, said they form a portion of that immense mass of legislation which embraces everything within the territory of a state not surrendered to the general government, all which can be most advantageously exercised by the states themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a state and those which respect turnpike roads, ferries, &c., are component parts of this mass. No direct general power over these objects is granted to Congress, and consequently they remain subject to state legislation. If the legislative power of the state can reach them, it must be for national purposes; it must be, when the power is expressly given for a special purpose, or is clearly incidental to some power which is expressly Page 36 U. S. 148 given. Again, in speaking of the law relative to the regulation of pilots, it is said that when the government of the Union was brought into existence, it found a system for the regulation of its pilots in full force in every state, and that the adoption of these laws, as also the prospective legislation of the states, manifests an intention to leave this subject entirely to the states until Congress should think proper to interpose, but that the section of the law under consideration is confined to pilots within the bays, inlets, rivers, harbors and ports of the United States, which are, of course, in whole or in part, within the limits of some particular state, and that the acknowledged power of a state to regulate its police, its domestic trade, and to govern its own citizens may enable it to legislate on this subject to a considerable extent. But that the adoption of the state system, being temporary, until further legislative provision shall be made by Congress, shows conclusively an opinion that Congress could control the whole subject, and might adopt the system of the states or provide one of its own. Here seems to be a full recognition of the right of a state to legislate on a subject coming confessedly within the power to regulate commerce until Congress adopts a system of its own. And again, in the case of Brown v. State of Maryland, the Court, in speaking of state laws in relation to gunpowder, said the power to direct the removal of gunpowder is a branch of the police power which unquestionably remains, and ought to remain, with the states. The state law here is brought to act directly upon the article imported, and may even prevent its landing because it might endanger the public safety, Can anything fall more directly within the police power and internal regulation of a state than that which concerns the care and management of paupers or convicts or any other class or description of persons that may be thrown into the country and likely to endanger its safety, or become chargeably for their maintenance? It is not intended by this remark to cast any reproach upon foreigners who may arrive in this country. But if all power to guard against these mischiefs is taken away, the safety and welfare of the community may be very much endangered. A resolution of the old Congress, passed on 16f September 1788, has an important bearing on this subject; 13 vol. Journals of Congress 142. It is as follows: "Resolved that it be and it is hereby recommended to the several states to pass proper laws for Page 36 U. S. 149 preventing the transportation of convicted malefactors from foreign countries into the United States." Although this resolution is confined to a certain description of persons, the principle involved in it must embrace every description which may be thought to endanger the safety and security of the country. But the more important bearing which this resolution has upon the question now before the Court relates to the source of the power which is to interpose this protection. It was passed, after the adoption of the Constitution by the convention, which was on 17 September 1787. It was moved by Mr. Baldwin and seconded by Mr. Williamson, both distinguished members of the convention which formed the Constitution, and is a strong contemporaneous expression, not only of their opinion but that of Congress, that this was a power resting with the states, and not only not relinquished by the states, or embraced in any powers granted to the general government, but still remains exclusively in the states. The case of Willson v. Blackbird Creek Marsh Company , 2 Pet. 251, is a strong case to show that a power admitted to fall within the power to regulate commerce may be exercised by the states, until Congress assumes the exercise. The state law under consideration in that case authorized the erection of a dam across a creek up which the tide flowed for some distance, and thereby abridged the right of navigation by those who had been accustomed to use it. The Court said "The counsel for the plaintiff in error insist that it comes in conflict with the power of the United States to regulate commerce with foreign nations and among the several states. If Congress had passed any act which bore upon the case, any act in execution of the power to regulate commerce the object of which was to control state legislation over those small navigable creeks into which the tide flows and which abound throughout the lower country of the middle and southern states, we should not have much difficulty in saying that a state law, coming in conflict with such act, would be void. But Congress has passed no such act; the repugnancy of the law of Delaware to the Constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations and among the several states -- a power which has not been so exercised as to affect the question. We do not think that the act empowering the Blackbird Creek Marsh Company to place a dam across the creek can, under all the circumstances of the case, be considered as repugnant to the power to regulate Page 36 U. S. 150 commerce in its dormant state, or as being in conflict with any law passed on the subject." The state law here operated upon the navigation of waters over which the power to regulate commerce confessedly extends, and yet the state law, not coming in conflict with any act of Congress, was held not to be unconstitutional, and was not affected by the dormant power to regulate commerce. By the same rule of construction, the law of New York, not coming in conflict with any act of Congress, is not void by reason of the dormant power to regulate commerce, even if it should be admitted that the subject embraced in that law fell within such power. This principle is fully recognized by the whole Court in the case of Houston v. Moore , 5 Wheat. 1. The validity of a law of the State of Pennsylvania relative to the militia of that state came under the consideration of the Court, and Mr. Justice Washington, who spoke for a majority of the Court, said: "It may be admitted at once that the militia belongs to the states respectively in which they are enrolled, and that they are subject both in their civil and military capacities to the jurisdiction and laws of such state except so far as those laws are controlled by acts of Congress, constitutionally made. Congress has power to provide for organizing, arming, and disciplining the militia, and it is presumable that the framers of the Constitution contemplated a full exercise of this power. Nevertheless if Congress had declined to exercise them, it was competent for the state governments to provide for organizing, arming and disciplining their respective militia in such manner as they may think proper." And Mr. Justice Johnson, who dissented from the Court in the result of the judgment, when speaking on this point says: "It is contended that if the states do possess this power over the militia, they may abuse it. This, says he, is a branch of the exploded doctrine that within the scope in which Congress may legislate, the states shall not legislate. That they cannot, when legislating within that wide region of power, run counter to the laws of Congress is denied by no one. When instances of this opposition occur, it will be time enough to meet them." And MR. JUSTICE STORY, who also dissented from the result of the judgment, is still more full and explicit on this point. "The Constitution," said he, "containing a grant of powers, in many instances similar to those already existing in the state governments, and some of these being of vital importance also to state authority and state legislation, it is not to be admitted that a mere grant of such powers in affirmative terms to Congress does per se transfer an exclusive Page 36 U. S. 151 sovereignty on such subjects to the latter. On the contrary, a reasonable interpretation of that instrument necessarily leads to the conclusion that the powers so granted are never exclusive of similar powers existing in the states, unless when the Constitution has expressly, in terms, given an exclusive power to Congress, or the exercise of a like power is prohibited to the states, or where there is a direct repugnancy, or incompatibility in the exercise of it by the states. The example of the first class is to be found in the exclusive legislation delegated to Congress over places purchased by the consent of the Legislature of the state in which the same shall be, for forts, arsenals, dockyards, &c.; of the second class, the prohibition of a state to coin money, or emit bills of credit; of the third class, as this Court has already held, the power to establish a uniform rule of naturalization and the delegation of admiralty and maritime jurisdiction. In all other cases not falling within the classes already mentioned, it seems unquestionable that the states retain concurrent authority with Congress, not only upon the letter and spirit of the Eleventh Amendment of the Constitution, but upon the soundest principle of reasoning. There is this reserve, however, that in cases of concurrent authority, when the laws of a state and of the Union are in direct and manifest collision on the same subject, those of the Union, being the supreme law of the land, are of paramount authority, and the state laws so far, and so far only, as such incompatibility exists, must necessarily yield." Whether therefore the law of New York, so far as it is drawn in question in this case, be considered as relating purely to the police and internal government of the state, and as part of the system of poor laws in the City of New York, and in this view belonging exclusively to the legislation of the state, or whether the subject matter of the law be considered as belonging concurrently to the state and to Congress, but never having been exercised by the latter, no constitutional objection can be made to it. Although the law, as set out in the record appears to have been recently passed, 11 February, 1824, yet a similar law has been in force in that state for nearly forty years, 1 Rev.Laws 1801, 556, and from the references at the argument to the legislation of other states, especially those bordering on the Atlantic, similar laws exist in those states. To pronounce all such laws unconstitutional would be productive of the most serious and alarming consequences, and ought not to be done Page 36 U. S. 152 unless demanded by the most clear and unquestioned construction of the Constitution. It has been argued at the bar that this law violates certain treaties between the United States and foreign nations, and the treaties with Brazil, Prussia and Austria, 8 Stat. 378, 390, 398, have been referred to as being in conflict with it. It would be a sufficient answer to this objection that the national character of the defendant or of the master or vessel do not appear upon the record accompanying the certificate, so as to enable the Court to inquire whether the law conflicts with any treaty stipulation. But there is nothing in the law, so far, at all events, as it relates to the present case, which is at all at variance with any of the treaties referred to. These treaties were entered into for the purpose of establishing a reciprocity of commercial intercourse between the contracting parties, but give no privileges or exemptions to the citizens or subjects of the one country over those of the other. But in some of them, particularly in the treaty with Brazil, it is expressly provided that the citizens and subjects of each of the contracting parties shall enjoy all the rights, privileges, and exemptions in navigation and commerce which native citizens or subjects do or shall enjoy, submitting themselves to the laws, decrees, and usages there established, to which native citizens or subjects are subjected. And the other treaties referred to have substantially the same provision. Whether the law of New York, so far as it applies to the case now before the Court, be considered as a mere police regulation and the exercise of a power belonging exclusively to the state, or whether it be considered as legislating on a subject falling within the power to regulate commerce, but which still remains dormant, Congress not having exercised any power conflicting with the law in this respect, no constitutional objection can, in my judgment, arise against it. I have chosen to consider this question under this double aspect because I do not find, as yet laid down by this Court, and certain and defined limits to the exercise of this power to regulate commerce, or what shall be considered commerce with foreign nations and what the regulations of domestic trade and police. And when it is denied that a state law, in requiring a list of the passengers arriving in the port of New York from a foreign country to be reported to the police authority of the city, is unconstitutional and void because embraced within that power, I am at a loss to say where its limits are to be found. It becomes therefore a very important Page 36 U. S. 153 principle to establish that the states retain the exercise of powers which, although they may in some measure partake of the character of commercial regulations, until Congress asserts the exercise of the power under the grant of the power to regulate commerce. MR. JUSTICE STORY, dissenting. The present case comes before the court upon a certificate of division of opinion of the judges of the Circuit Court of the Southern District of New York. Of course, according to the well known practice of this Court and the mandates of the law, we can look only to the question certified to us and to it in the very form in which it is certified. In the circuit court, the following point was presented on the part of the defendant, viz., that the act of the Legislature of the State of New York, mentioned in the plaintiff's declaration assumes to regulate trade and commerce between the port of New York and foreign ports, and is unconstitutional and void. And this point constitutes the matter of division in the circuit court and that upon which our opinion is now required. The act of New York here referred to, was passed on 11 February 1824, and is entitled "an act concerning passengers in vessels coming to the port of New York." By the first section it requires the master of any ship arriving at the port of New York from any country out of the United States or from any other of the United States than New York, within twenty-four hours after the arrival, to make a report in writing, on oath or affirmation, to the mayor of the city, &c., of the name, place of birth, and last legal settlement, age and occupation of every passenger brought in the ship on her last voyage, from any foreign country or from any other of the United States to the City of New York, and of all passengers landed or suffered or permitted to land at any place during her last voyage or put on board or suffered or permitted to go on board of any other ship with an intention of proceeding to the said city, under the penalty of $75 for every passenger not so reported, to be paid by the master, owner or consignee. The second section makes it lawful for the mayor, &c., to require every such master to give bond, with two sufficient sureties, in a sum not exceeding $300 for each passenger, not being a citizen of the United States, to indemnity and save harmless the mayor, &c., and overseers of the poor, from all expense and charge Page 36 U. S. 154 which may be incurred for the maintenance and support of every such passenger, &c., under a penalty of $500. The third section provides, that whenever any person brought in such ship, and being a citizen of the United States, shall be, by the mayor, &c., deemed likely to become chargeable to the city, the master or owner shall, upon an order for this purpose, remove every such person without delay to the place of his last settlement, and in default shall be chargeable with the expenses of the maintenance and removal of such person. The fourth section requires persons not citizens entering into the city with the intention of residing there to make a report prescribed by the act under the penalty of $100. The fifth section provides for the manner of recovering the penalties; the sixth section makes the ship liable to attachment and seizure for the penalties. The seventh section repeals former acts, and the eighth and last section declares persons swearing or affirming falsely in the premises guilty of perjury and punishable accordingly. Such is the substance of the act. It is apparent that it applies to all vessels coming from foreign ports and to all coasting vessels and steam boats from other states, and to all foreigners, and to all citizens who are passengers, whether they come from foreign ports or from other states. It applies also not only to passengers who arrive at New York, but to all passengers landed in other states or put on board of other vessels, although not within the territorial jurisdiction or limits of New York. The questions then presented for our consideration under these circumstances are: 1st. Whether this act assumes to regulate trade and commerce between the port of New York and foreign ports? 2d. If it does, whether it is unconstitutional and void. The counsel for the plaintiff assert the negative; the counsel for the defendant maintain the affirmative, on both points. In considering the first point, we are spared even the necessity of any definition or interpretation of the words of the Constitution by which power is given to Congress "to regulate commerce with foreign nations and among the several states," for the subject was most elaborately considered in Gibbons v. Ogden , 9 Wheat. 1. On that occasion, Mr. Chief Justice Marshall, in delivering the opinion of the Court, said "Commerce undoubtedly is traffic, but it is something more; it is intercourse; it describes the commercial intercourse between nations, and parts of nations in all its branches, Page 36 U. S. 155 and is regulated by prescribing rules for carrying on that intercourse." 22 U. S. 9 Wheat. 189. And again, "These words comprehend every species of commercial intercourse between the United States and foreign nations; no sort of trade can be carried on between this country and any other to which this power does not extend." 22 U. S. 9 Wheat. 193-194. "In regulating commerce with foreign nations, the power of Congress does not stop at the jurisdictional lines of the several states; it would be a very useless power if it could not pass those lines. . . . If Congress has the power to regulate it, that power must be exercised wherever the subject exists; if it exists within the states, if a foreign voyage may commerce or terminate at a port within a state, then the power of Congress may be exercised within a state." 22 U. S. 9 Wheat. 195. "The power of Congress then comprehends navigation within the limits of every state in the Union, so far as that navigation may be connected with commerce, with foreign nations or among the several states." 22 U. S. 9 Wheat. 197. And again, "it is the power to regulate, that is, to prescribe the rule, by which commerce is governed." 22 U. S. 9 Wheat. 196. But, what is most important to the point now under consideration, it was expressly decided in that case that vessels engaged in carrying passengers were as much within the constitutional power of Congress to regulate commerce as vessels engaged in the transportation of goods. "Vessels [said the Chief Justice] have always been employed, to a greater or less extent in the transportation of passengers, and have never been supposed to be on that account withdrawn from the control or protection of Congress. Packets which ply along the coast, as well as those which make voyages between Europe and America, consider the transportation of passengers as an important part of their business, yet it has never been suspected that the general laws of navigation did not apply to them." And again, "a coasting vessel employed in the transportation of passengers is as much a portion of the American marine as one employed in the transportation of a cargo." 22 U. S. 9 Wheat. 215-216. And this language is the more impressive because the case then before the Court was that of a steamboat, whose principal business was the transportation of passengers. If, then, the regulation of passenger ships be in truth a regulation of trade and commerce, it seems very difficult to escape from the conclusion that the act in controversy is, in the sense of the objection, an act which assumes to regulate trade and commerce between the port of New York and foreign ports. It requires a Page 36 U. S. 156 report not only of passengers who arrive at New York, but of all who have been landed at any places out of the territorial limits of New York, whether in foreign ports or in the ports of other states. It requires bonds to be given by the master or owner for all passengers, not citizens, and it compels them to remove or pay the expenses of removal of all passengers who are citizens and are deemed likely to become chargeable to the city, under severe penalties. If these enactments had been contained in any act passed by Congress, it would not have been doubted that they were regulations of passenger ships engaged in foreign commerce? Is their character changed by their being found in the laws of a state? I admit in the most unhesitating manner that the states have a right to pass health laws and quarantine laws and other police laws not contravening the laws of Congress rightfully passed under their constitutional authority. I admit that they have a right to pass poor laws and laws to prevent the introduction of paupers into the state under the like qualifications. I go further and admit that in the exercise of their legitimate authority over any particular subject, the states may generally use the same means which are used by Congress if these means are suitable to the end. But I cannot admit that the states have authority to enact laws which act upon subjects beyond their territorial limits, or within those limits and which trench upon the authority of Congress in its power to regulate commerce. It was said by this Court in the case of Brown v. State of Maryland , 12 Wheat. 419, that even the acknowledged power of taxation by a state cannot be so exercised as to interfere with any regulation of commerce by Congress. It has been argued that the act of New York is not a regulation of commerce, but is a mere police law upon the subject of paupers, and it has been likened to the cases of health laws, quarantine laws, ballast laws, gunpowder laws, and others of a similar nature. The nature and character of these laws were fully considered and the true answer given to them in the case of Gibbons v. Ogden , 9 Wheat. 1, and though the reasoning there given might be expanded, it cannot, in its grounds and distinctions, be more pointedly illustrated or better expounded. I have already said that I admit the power of the states to pass such laws and to use the proper means to effectuate the objects of them, but it is with this reserve -- that these means are not exclusively vested in Congress. A state cannot make a regulation of commerce to enforce its health laws, because it is a Page 36 U. S. 157 means withdrawn from its authority. It may be admitted that it is a means adapted to the end, but it is quite a different question whether it be a means within the competency of the state jurisdiction. The states have a right to borrow money, and borrowing by the issue of bills of credit would certainly be an appropriate means; but we all know that the emission of bills of credit by a state is expressly prohibited by the Constitution. If the power to regulate commerce be exclusive in Congress, then there is no difference between an express and an implied prohibition upon the states. But how can it be truly said that the act of New York is not a regulation of commerce? No one can well doubt that if the same act had been passed by Congress, it would have been a regulation of commerce, and in that way and in that only would it be a constitutional act of Congress. The right of Congress to pass such an act has been expressly conceded at the argument. The act of New York purports on its very face to regulate the conduct of masters and owners and passengers in foreign trade and in foreign ports and places. Suppose the act had required that the master and owner of ships should make report of all goods taken on board or landed in foreign ports, and of the nature, qualities and value of such goods; could there be a doubt that it would have been a regulation of commerce? If not, in what essential respect does the requirement of a report of the passengers taken or landed in a foreign port or place differ from the case put? I profess not to be able to see any. I listened with great attention to the argument to ascertain upon what ground the act of New York was to be maintained not to be a regulation of commerce. I confess that I was unable to ascertain any from the reasoning of either of the learned counsel who spoke for the plaintiff. Their whole argument on this point seemed to me to amount to this, that if it were a regulation of commerce, still it might also be deemed a regulation of police and a part of the system of poor laws, and therefore justifiable as a means to attain the end. In my judgment, for the reasons already suggested, that is not a just consequence or a legitimate deduction. If the act is a regulation of commerce and that subject belongs exclusively to Congress, it is a means cut off from the range of state sovereignty and state legislation. And this leads me more distinctly to the consideration of the other point in question, and that is whether, if the act of New York be a regulation of commerce, it is void and unconstitutional? If the power of Congress to regulate commerce be an exclusive power or Page 36 U. S. 158 if the subject matter has been constitutionally regulated by Congress so as to exclude all additional or conflicting legislation by the states, then and in either case it is clear, that the act of New York is void and unconstitutional. Let us consider the question under these aspects. It has been argued that the power of Congress to regulate commerce is not exclusive, but concurrent with that of the states. If this were a new question in this Court, wholly untouched by doctrine or decision, I should not hesitate to go into a full examination of all the grounds upon which concurrent authority is attempted to be maintained. But in point of fact the whole argument on this very question, as presented by the learned counsel on the present occasion, was presented by the learned counsel who argued the case of Gibbons v. Ogden , 9 Wheat. 1, and it was then deliberately examined and deemed inadmissible by the Court. Mr. Chief Justice Marshall, with his accustomed accuracy and fullness of illustration, reviewed at that time the whole grounds of the controversy, and from that time to the present the question has been considered (so far as I know) to be at rest. The power given to Congress to regulate commerce with foreign nations and among the states has been deemed exclusive from the nature and objects of the power and the necessary implications growing out of its exercise. Full power to regulate a particular subject implies the whole power, and leaves no residuum, and a grant of the whole to one is incompatible with a grant to another of a part. When a state proceeds to regulate commerce with foreign nations or among the states, it is doing the very thing which Congress is authorized to do. Gibbons v. Ogden , 9 Wheat. 198-199. And it has been remarked with great cogency and accuracy that the regulation of a subject indicates and designates the entire result, applying to those parts which remain as they were as well as to those parts which are altered. It produces a uniform whole, which is as much disturbed and deranged by changing what the regulating power designs to leave untouched as that upon which it has operated. Gibbons v. Ogden , 9 Wheat. 209. This last suggestion is peculiarly important in the present case, for Congress has, by the Act of 2 March 1819, ch. 170, regulated passenger ships and vessels. Subject to the regulations therein provided, passengers may be brought into the United States from foreign ports. These regulations, being all which Congress have chosen to enact, amount, upon the reasoning already stated, to a Page 36 U. S. 159 complete exercise of its power over the whole subject, as well in what is omitted as what is provided for. Unless, then, we are prepared to say that wherever Congress has legislated upon this subject clearly within its constitutional authority and made all such regulations as in its own judgment and discretion were deemed expedient, the states may step in and supply all other regulations which they may deem expedient as complementary to those of Congress, thus subjecting all our trade, commerce and navigation and intercourse with foreign nations to the double operations of distinct and independent sovereignties, it seems to me impossible to maintain the doctrine that the states have a concurrent jurisdiction with Congress on the regulation of commerce, whether Congress has or has not legislated upon the subject; a fortiori when it has legislated. There is another consideration which ought not to be overlooked in discussing this subject. It is that Congress, by its legislation, has in fact authorized not only the transportation but the introduction of passengers into the country. The act of New York imposes restraints and burdens upon this right of transportation and introduction. It goes even further and authorizes the removal of passengers, under certain circumstances, out of the state, and at the expense of the master and owner in whose ship they have been introduced, and this though they are citizens of the United States and were brought from other states. Now if this act be constitutional to this extent, it will justify the states in regulating, controlling, and, in effect, interdicting the transportation of passengers from one state to another in steamboats and packets. They may levy a tax upon all such passengers; they may require bonds from the master that no such passengers shall become chargeable to the state; they may require such passengers to give bonds that they shall not become so chargeable; they may authorize the immediate removal of such passengers back to the place from which they came. These would be most burdensome and inconvenient regulations respecting passengers, and would entirely defeat the object of Congress in licensing the trade or business. And yet if the argument which we have heard be well founded, it is a power strictly within the authority of the states, and may be exerted at the pleasure of all or any of them, to the ruin and perhaps annihilation of our passenger navigation. It is no answer to the objection to say, that the states will have too much wisdom and prudence to exercise the authority to so great an extent. Laws were actually passed of a retaliatory nature by the States of New York, New Jersey, and Page 36 U. S. 160 Connecticut during the steamboat controversy which threatened the safety and security of the Union and demonstrated the necessity that the power to regulate commerce among the states should be exclusive in the Union in order to prevent the most injurious restraints upon it. In the case of Brown v. State of Maryland , 12 Wheat. 419, the state had by an act required that every importer of foreign goods selling the same by wholesale should, before he was authorized to sell the same, take out a license for which he should pay fifty dollars, and in default the importer was subjected to a penalty. The question was whether the state legislature could constitutionally require the importer of foreign goods to take out such a license before he should be permitted to sell the same in the imported package. The Court held that the act was unconstitutional and void as laying a duty on imports, and also as interfering with the power of Congress to regulate commerce. On that occasion, arguments were addressed to the court on behalf of the State of Maryland by their learned counsel similar to those which have been addressed to us on the present occasion, and in a particular manner the arguments that the act did not reach the property until after its arrival within the territorial limits of the state; that it did not obstruct the importation, but only the sale of goods, after the importation. The Court said "There is no difference in effect between the power to prohibit the sale of an article and the power to prohibit its introduction into the country; the one would be a necessary consequence of the other; none would be imported if none could be sold. . . . It is obvious that the same power which imposes a light duty can impose a heavy one, which amounts to a prohibition. Questions of power do not depend on the degree to which it may be exercised; if it may be exercised at all, it must be exercised at the will of those in whose hands it is placed. . . . The power claimed by the state is in its nature in conflict with that given to Congress [to regulate commerce], and the greater or less extent to which it may be exercised, does not enter into the inquiry concerning its existence. . . . Any charge on the introduction and incorporation of the articles into and with the mass of property in the country must be hostile to the power given to Congress to regulate commerce, since an essential part of that regulation, and principal object of it, is to prescribe the regular means of accomplishing that introduction and incorporation." This whole reasoning is directly applicable to the present case if, Page 36 U. S. 161 instead of the language respecting the introduction and importation of goods, we merely substitute the words, respecting the introduction and importation of passengers, we shall instantly perceive its full purpose and effect. The result of the whole reasoning is that whatever restrains or prevents the introduction or importation of passengers or goods into the country, authorized and allowed by Congress, whether in the shape of a tax or other charge or whether before or after their arrival in port, interferes with the exclusive right of Congress to regulate commerce. Such is a brief view of the grounds upon which my judgment is that the act of New York is unconstitutional and void. In this opinion I have the consolation to know that I had the entire concurrence, upon the same grounds, of that great constitutional jurist, the late Mr. Chief Justice Marshall. Having heard the former arguments, his deliberate opinion was that the act of New York was unconstitutional and that the present case fell directly within the principles established in the case of Gibbons v. Ogden , 9 Wheat. 1, and Brown v. State of Maryland , 12 Wheat. 419. MR. JUSTICE BALDWIN. The direct question on which this case turns is whether a law of New York directing the commanders of passenger vessels arriving from foreign ports, to make a report of their numbers, &c., and to give security that they shall not become chargeable to the city as paupers, before they shall be permitted to land, is repugnant to that provision of the Constitution of the United States, which gives to Congress power "to regulate commerce with foreign nations," &c. In considering this question, I shall not inquire whether this power is exclusive in Congress or may be, to a certain extent, concurrent in the states, but shall confine myself to an inquiry as to its extent and objects. That the regulation of commerce in all its branches was exclusively in the several colonies and states from April 1776, and that it remained so, subject to the ninth Article of Confederation, till and adoption of the Constitution (one great object of which was to confer on Congress such portion of this power as was necessary for federal purposes), is most apparent from the political history of the country, from the peace of 1782 till 1787. 1 Laws U.S. 28-58. It was indispensable to the efficiency of any federal government that it should have the power of regulating foreign commerce, and between the states, by laws of uniform operation throughout the United States, but it was one of the most delicate subjects which could be touched on account of the difficulty of imposing restraints upon the extension of the power to matters not directly appertaining to commercial regulation. "This idea that the same measure might, according to circumstances, be arranged with different classes of powers was no novelty to the framers of the Constitution. Those illustrious patriots and statesmen had been, many of them, deeply engaged in the discussions which preceded the war of our revolution, and all of them were well read in those discussions. The right to regulate commerce, even by the imposition of duties, was not controverted, but the right to impose a duty for the purpose of revenue produced a war perhaps as important in its consequences to the human race as any the world has ever witnessed." Gibbons v. Ogden , 9 Wheat. 202. In the declaration of rights in 1774, Congress expressly admitted the authority of such acts of Parliament "as are bona fide restrained to the regulation of our external commerce, for the purpose of securing the commercial advantages of the whole empire to the mother country, and the commercial benefits of its respective members, excluding every idea of taxation, internal or external, for raising a revenue on the subject in America, without their consent." But in admitting this right, they asserted the free and exclusive power of "legislation in their several provincial legislatures in all cases of taxation and internal polity, subject only to the negative of their sovereign, as has been heretofore used and accustomed." Taxation was not the only fear of the colonies, as an incident or means of regulating external commerce; it was the practical consequences of making it the pretext of assuming the power of interfering with their "internal polity," changing their "internal police," the "regulation thereof," "of intermeddling with our provisions for the support of civil government, or the administration of justice." See Journ.Cong. 28, 98, 147, 177. The states were equally afraid of entrusting their delegates in Congress with any powers which should be so extended, by implication or construction, of which the instructions of Rhode Island in May, 1776, are a specimen. "Taking the greatest care to secure to this colony in the strongest and most perfect manner its present form and all the powers of government so far as it relates to its internal police and conduct of our own officers, civil and religious." 2 Journ.Cong. 163. In consenting to a declaration of independence, the convention of Pennsylvania added this proviso: that "the forming the government, and regulating the internal police of the colony, be always reserved to the people of the colony." In the 3d Article of Confederation, the states guarantee to each other their freedom, &c., and against all attacks on their sovereignty and trade; in the treaty of alliance with France, the latter guarantees to the states their sovereignty "in matters of commerce," absolute and unlimited. In the 9th Article of Confederation, the same feeling is manifest in the restriction on the treatymaking power by reserving the legislative power of the states over commerce with foreign nations. It also appears in the cautious and guarded language of the Constitution in the grant of the power of taxation and the regulation of commerce, which give them, in the most express terms, yet in such as admit of no extension to other subjects of legislation, which are not included in the enumeration of powers. In giving power to Congress "to lay and collect taxes, duties, imposts and excises," the objects are defined "to pay the debts, and provide for the common defense and general welfare of the United States;" this does not interfere with the power of the states to tax for the support of their own government, nor is the exercise of that power by the states an exercise of any portion of the power that is granted to the United States. 22 U. S. 9 Wheat. 199. "That the power of taxation is retained by the states, is not abridged by the grant to Congress, and may be exercised concurrently are truths which have never been denied." 4 id. 425. It results from the nature and objects of taxation that it must be concurrent, as the power of raising revenue for the purposes of each government is equally indispensable, though the extent of taxation is a matter which must depend on their discretion. Id., 428; 29 U. S. 4 Pet. 561-563. The objects of taxation depend, of course, on those to which the proceeds are to be applied. Congress is limited to those which are defined in the terms of the grant, but the states have no other limitations imposed on them than are found in their constitutions and such as necessarily result from the powers of Congress, which states cannot annul or obstruct by taxation. 17 U. S. 4 Wheat. 400; 22 U. S. 9 Wheat. 816; 27 U. S. 2 Pet. 463. In other respects, the taxing power of Congress leads to no collision with the laws of the states. But the power to regulate commerce had been a subject of more difficulty, from the time the Constitution was framed, owing to the peculiar situation of the country. In other nations, commerce is only of two descriptions, foreign and domestic; in a confederated government, there is necessarily a third -- "commerce between the constituent members of the confederacy;" in the United States there was a fourth kind, which was carried on with the numerous Indian tribes, which occupied a vast portion of the territory. Each description of commerce was in its nature distinct from the other in the mode of conducting it, the subjects of operation, and its regulation; from its nature, there was only one kind which could be regulated by state law -- that commerce which was confined to its own boundaries, between its own citizens or between them and the Indians. All objects of uniformity would have been defeated if any state had been left at liberty to make its own laws on any of the other subjects of commerce, but the people of the states would never surrender their own control of that portion of their commerce which was purely internal. Hence the grant is confined "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes," which restricts the term "commerce" to that which concerns more states than one, and the enumeration of the particular classes to which the power was to be extended, presupposes something to which it does not extend. "The completely internal commerce of a state, then, may be considered as reserved for the state itself." 22 U. S. 9 Wheat. 194-195. This government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge. This principle is now universally admitted. 17 U. S. 4 Wheat. 405. Another principle is equally so: that all powers not granted to the United States or prohibited to the states remain as they were before the adoption of the Constitution, by the express reservation of the 10th Amendment, 14 U. S. 1 Wheat. 325; 17 U. S. 4 Wheat. 193, and that an exception presupposes the existence of the power excepted. 25 U. S. 12 Wheat. 438. Though these principles have been universally adopted, their application presents questions which perpetually arise, as to the extent of the powers which are granted or prohibited, "and will probably continue to arise as long as our system shall exist;" 17 U. S. 4 Wheat. 405. It would seem that the term "commerce," in its ordinary sense and as defined by this Court, would by this time have become intelligible; it has been held to embrace every species of commercial intercourse, trade, traffic and navigation; "all foreign commerce," and "all commerce among the states," 22 U. S. 9 Wheat. 193; 25 U. S. 12 Wheat. 446, the regulation of which has been surrendered. But it has been at the same time held that as to those subjects of legislation "which are not surrendered to the general government," inspection, quarantine, health laws of every description, the internal commerce and police of a state, turnpike roads, ferries, &c., "no direct general power over these objects is granted to Congress; consequently they remain subject to state legislation," 22 U. S. 9 Wheat. 203, and "ought to remain with the states." 25 U. S. 12 Wheat. 443. In the broad definition given in these two cases, "to commerce with foreign nations, and among the several states," it has been applied, in the most cautious and guarded language, to three kinds of commerce which are placed under the jurisdiction of Congress, expressly excluding the fourth kind, the internal commerce of a state. The Court very properly call these branches of commerce, units, 22 U. S. 9 Wheat. 194, each of distinct subject matter of regulation, which the states might delegate or reserve. It would contradict every principle laid down by the Court to contend that a grant of the power "to regulate commerce with foreign nations" would carry with it the power to regulate commerce "among the several states, or with the Indian tribes," either by implication, construction, or as a means of carrying the first power into execution. It would be equally so to contend that the grant of the three powers could embrace the fourth, which is as distinct from all the others as they are from each other; as units, they cannot be blended, but must remain as distinct as any other powers over other subjects which have not been surrendered by the states. If, then, the power of regulating internal commerce has not been granted to Congress, it remains with the states as fully as if the Constitution had not been adopted, and every reason which leads to this result applies with still greater force to the internal polity of a state, over which there is no pretense of any jurisdiction by Congress. No subtlety of reasoning, no refinement of construction or ingenuity of supposition can make commerce embrace police or pauperism which would not, by parity of reasoning, include the whole code of state legislation. Quarantine, health, and inspection laws come much nearer to regulations of commerce than those which relate to paupers only; if the latter are prohibited by the Constitution, the former are certainly so, for they operate directly on the subjects of commerce -- the ship, the cargo, crew and passengers -- whereas, poor laws operate only on passengers who come within their purview. On the same principle by which a state may prevent the introduction of infected persons or goods and articles dangerous to the persons or property of its citizens, it may exclude paupers who will add to the burdens of taxation, or convicts who will corrupt the morals of the people, threatening them with more evils than gunpowder or disease. The whole subject is necessarily connected with the internal police of a state, no item of which has to any extent been delegated to Congress, every branch of which has been excepted from the prohibitions on the states, and is, of course, included among their reserved powers. If there is any one case to which the following remark of this Court is peculiarly applicable, it is this: "It does not appear to be a violent construction of the Constitution, and is certainly a convenient one, to consider the power of the states as existing over such cases as the laws of the Union may not reach." 17 U. S. 4 Wheat. 195. Let this case be tested by this rule, and let it be shown that any clause in the Constitution empowers Congress to pass a law which can reach the subject of pauperism, or the case of pauper imported from a foreign nation or another state. They are not articles of merchandise or traffic, imports or exports. Congress cannot compel the states to receive and maintain them, nor establish a system of poor laws for their benefit or support, and there can be found in no decision of this Court any color for the proposition that they are in any respect placed under the regulation of the laws of the Union or that the states have not plenary power over them. The utmost extent to which they have held the power of regulating commerce by Congress to operate as a prohibition on states has been in the cases of Gibbons v. Ogden, to the vessel in which goods or passengers were transported from one state to another, and in Brown v. Maryland, to the importation of goods from foreign ports to the United States. In the former case, the only question was whether a state law was valid which prohibited a vessel propelled with steam from navigating the waters of New York, though she had a coasting license; in the latter, the question was whether a state law "could compel an importer of foreign articles to take out a license from the state before he shall be permitted to sell a bale or package so imported." Both laws were held void on account of their direct repugnance to the Constitution and existing laws of Congress, the Court holding that they comprehended vessels of all descriptions, however propelled and whether employed in the transportation of goods or passengers, and that an importer of goods on which he had paid or secured the duties could not be prevented from selling them as he pleased before the packages were broken up. In the New York case, the whole reasoning of the Court was to show that "a coasting vessel employed in the transportation of passengers is as much a portion of the American marine as one employed in the transportation of a cargo," and they referred to the provisions of the law regulating the coasting trade, to the Constitution respecting the migration or importation of certain persons, to the duty acts containing provisions respecting passengers, and the act of 1819 for regulating passenger ships for the same purpose. 22 U. S. 9 Wheat. 215-219, &c. Nothing more was decided or was intended to be decided than that the power to regulate commerce, including navigation, comprehended all vessels, and "the language of the laws excluding none, none can be excluded by construction." "The question, then, whether the conveyance of passengers be a part of the coasting trade and whether a vessel can be protected in that occupation by a coasting license are not and cannot be raised in this case. The real and sole question seems to be whether a steam machine in actual use deprives a vessel of the privilege conferred by a license." 22 U. S. 9 Wheat. 219. It is evident, therefore, that there is nothing in the cases then before the Court in their reasoning or judgment which can operate unfavorably on the present law; on the contrary, there is much (in my opinion) which directly affirms its validity, not merely negatively, but positively, as the necessary result of the principles declared in these and other cases. Taking it as a settled principle that those subjects of legislation which are not enumerated in the surrender to the general government remain subject to state regulation, it follows that the sovereignty of the states over them, not having been abridged, impaired, or altered by the Constitution, is as perfect as if it had not been adopted. Having referred to the cases in which this Court has defined the nature and extent of state sovereignty, "in all cases where its action is not restrained by the Constitution," it is unnecessary to make a second quotation from their opinions, the inevitable conclusion from which is that, independently of the grants and prohibitions of the Constitution, each state was and is "a single sovereign power," a nation over whom no external power can operate, whose jurisdiction is necessarily exclusive and absolute, within its own boundaries, and susceptible of no limitation not imposed by itself by a grant or cession to the government of the Union. The same conclusion results from the nature of an exception or reservation in a grant; the thing excepted or reserved always is in the grantor, and always was; of consequence, the reserved powers of a state remain, as stated in the treaty of alliance with France, and the Confederation. The states severally bound themselves to assist each other against all attacks on account of sovereignty, trade or any other pretext whatever. France guaranteed to them their liberty, sovereignty and independence, absolute and unlimited, as well in matters of government as commerce. So the states remain in all respects where the Constitution has not abridged their powers; the original jurisdiction of the state adheres to its territory as a portion of sovereignty not yet given away, and subject to the grant of power, the residuary powers of legislation remain in the state. If the power of regulating trade had not been given to the general government, each state would have yet had the power of regulating the trade within its territory, 16 U. S. 3 Wheat. 386, 16 U. S. 389 , and this power yet adheres to it, subject to the grant, the only question then is to what trade or commerce that grant extends. This Court has held that it does not extend to the internal commerce of a state, to its system of police, to the subjects of inspection, quarantine, health, roads, ferries, &c., which is a direct negation of any power in Congress. They have also held that "consequently, they remain subject to state legislation," which is a direct affirmation that those subjects are within the powers reserved, and not those granted or prohibited. We must then ascertain what is commerce and what is police, so that when there arises a collision between an act of Congress regulating commerce or imposing a duty on goods and a state law which prohibits or subjects the landing of such goods to state regulations, we may know which shall give way to the other; which is supreme and which is subordinate, the law of the Union or the law of the state. On this subject, this Court seems to me to have been very explicit. In Brown v. Maryland, they held that an importer of foreign goods may land them and hold them free from any state taxation till he sells them or mixes them with the general property of the state by breaking up his packages, &c. Up to this point, then, the goods remained under the protection of the power to regulate foreign commerce, to the exclusion of any state power to tax them as articles of domestic commerce. This drew a definite line between the powers of the two governments, as to the regulation of what was commerce or trade, and it cannot be questioned that it was the true one; the power of Congress was held supreme and that of the state subordinate. But the conclusion of the Court was very different when it contemplated a conflict between the laws which authorized the importation and landing of ordinary articles of merchandise and the police laws of a state, which imposed restrictions on the importation of gunpowder or articles injurious to the public health. In considering the extent of the prohibition on states against imposing a tax on imports or exports, this Court use this language: "The power to direct the removal of gunpowder is a branch of the police power, which unquestionably remains and ought to remain with the states. If the possessor stores it himself, out of town, the removal cannot be a duty on imports, because it contributes nothing to the revenue. If he prefers placing it in a public magazine, it is because he stores it there, in his own opinion, more advantageously than elsewhere. We are not sure that this may not be classed among inspection laws. The removal or destruction of infectious or unsound articles is undoubtedly an exercise of that power and forms an express exception to the prohibition we are considering. Indeed, the laws of the United States expressly sanction the health laws of a state. The principle, then, that the importer acquires a right not only to bring the articles into the country, but to mix them with the common mass of property does not interfere with the necessary power of taxation, which is acknowledged to reside in the states to that dangerous extent which is apprehended. It carries the prohibition in the Constitution no further than to prevent the states from doing that which it was the great object of the Constitution." 25 U. S. 12 Wheat. 442-444. Now as it is acknowledged that the right of the importer, so secured by the Constitution and acts of Congress, is subject to the restraints and limitations of the police laws of a state and the removal and destruction of dangerous, infectious, and unsound articles is an undoubted exercise of the power of a state to pass inspection laws, the consequence is obvious. The power of Congress is and must be subordinate to that of the states whenever commerce reaches that point at which the vessel, the cargo, the crew, or the passengers on board become subject to the police laws of a state; the importer must submit to inspection, health and quarantine laws, and can land nothing contrary to their provisions. For such purposes they are an express exception to the prohibitions on the states against imposing duties on exports and imports, which power might have been exercised by the states had it not been forbidden, 22 U. S. 9 Wheat. 200; the restriction presupposes the existence of the power restrained, and the Constitution certainly recognizes inspection laws as the exercise of a power remaining in the state. 22 U. S. 9 Wheat. 203; 25 U. S. 12 Wheat. 438-442. The Constitution thus has made such laws an exception to the prohibition. The prohibition was a restriction on the preexisting power of the state, and being removed as to all police laws and those of inspection, the effect thereof is, by all the principles of this Court as to exceptions, the same as by the rules of the common law. "An exception out of an exception leaves the thing unexcepted." 4 Day's Com.Dig. 290. It may therefore, U.S. be taken as an established rule of constitutional law that whenever anything which is the subject of foreign commerce is brought within the jurisdiction of a state, it becomes subject to taxation and regulation by the laws of a state so far as is necessary for enforcing the inspection and all analogous laws, which are a part of its internal police. And as these laws are passed in virtue of an original inherent right in the people of each state to an exclusive and absolute jurisdiction and legislative power, which the Constitution has neither granted to the general government nor prohibited to the states, the authority of these laws is supreme and incapable of any limitation or control by Congress. In the emphatic language of this Court, this power "adheres to the territory of the state as a portion of sovereignty not yet given away." It is a part of its soil, of both of which the state is tenant in fee till she makes an alienation. No opinions could be in more perfect conformity with the spirit and words of the Constitution than those delivered in the two cases. They assert and maintain the power of Congress over the three kinds of commerce which are committed to their regulation, extend it to all its ratifications, so as to meet the objects of the grant to their fullest extent, and prevent the states from interposing any obstructions to its legitimate exercise within their jurisdiction. But having done this -- having vindicated the supremacy of the laws of the Union over foreign commerce wherever it exists and for all the purposes of the Constitution -- the Court most strictly adhered to that line which separated the powers of Congress from those of the states, and is drawn too plainly to be mistaken when there is a desire to find it. By the Constitution, "The Congress shall have power . . . to regulate commerce with foreign nations, and to pass all laws which may be necessary and proper for carrying into execution the foregoing power . . . as to regulate commerce," &c. By inherent original right, as a single sovereign power, each state has the exclusive and absolute power of regulating its internal police and of passing inspection, health, and quarantine laws, and by the Constitution, as construed by this Court, may lay any imposts and duties on imports and exports, which may be absolutely necessary for executing its inspection laws and those which relate to analogous subjects. Here are two powers in Congress by a grant from states -- one to regulate, the other to enforce, execute, or carry its regulations into effect; there are also two powers in a state, one to pass inspection laws, the other to lay duties and imposts on exports and imports, for the purpose of executing such laws. The power of the state is original, that of Congress is derivative by the grant of the state; both powers are brought to bear on an article imported after it has been brought within the state, so that each government has jurisdiction over the article for different purposes, and there is no constitutional objection to the exercise of the powers of either by their respective laws. The framers of the Constitution foresaw and guarded against the conflict by first providing against the imposition of taxes, by a state, on the articles of commerce, for the purposes of revenue and next securing to the states the execution of their inspection laws, by this provision: "No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports except what may be absolutely necessary for executing its inspection laws, and the net produce of all duties and imposts laid by any state on imports or exports shall be for the use of the Treasury of the Treasury of the United States, and all such laws shall be subject to the revision and control of the Congress." There can be no plainer or better defined line of power; a state can, by its reserved power, tax imports and exports to execute its inspection laws; it can tax them for no other purpose without the consent of Congress, and if it is even by an inspection law, it is subject to two restrictions -- the United States is to receive the net produce, and Congress may revise and control the law. If the inspection law imposes no duty or impost, Congress has no power of revision or control over it, and its regulations of commerce must be subject to its provisions; no restraints were imposed on this reserved power in the states, because its exercise would neither defeat nor obstruct any of the powers of Congress, and these are the reasons of the Court for the construction of the Constitution which they have given. "It carries the prohibition in the Constitution no further than to prevent the states from doing that which it was the great object of the Constitution to prevent." This object is clearly pointed out in the clause above quoted by the nature of the prohibition, with its qualifications; it was not to wholly deny to the states the power of taxing imports or exports, it only imposed, as a condition, the consent of Congress. In this respect it left to the states a greater power over exports than Congress had, for by the ninth section of the first article, they were prohibited from taxing exports without any qualification, even by the consent of the states, whereas, with the consent of Congress, any state can impose such a tax by a law, subject to the conditions prescribed. But if the state law imposes no tax on imports or exports, the prohibition does not touch it, either by requiring the consent of Congress, or making the law subject to its revision or control; consequently an inspection law which consists merely of regulations as to matters appropriate to such subjects is no more subject to any control than any other law relating to police. If the law imposes a tax, it then becomes so far subject to revision; but this power to revise and control extends only to the tax, and as to that Congress cannot go so far as to prevent a state from imposing such as "may be absolutely necessary for executing its inspection laws." Thus far the power of the state is incapable of control, and as this Court has declared that health, police, and quarantine laws come within the same principle as inspection laws, the same rule must apply to them; the powers of the states over these subjects are absolute if they impose no tax or duty on imports or exports. If they impose such a tax, the law is valid by the original authority of the state, and if not altered by Congress, by its supervisory power, is as binding as it would have been before the Constitution, because it has conferred no original jurisdiction over such subjects to Congress. Taken in this view, the object of this prohibition is apparent, and when carefully examined will be found materially different from the prohibitions in the next sentence, which relate to matters wholly distinct, and are as different in their nature as their object. Among them is a prohibition on the states, against laying a duty on tonnage without the consent of Congress, but it imposes no other condition, so that if this consent is once given, no revision or control over the law exists. This provision would apply to a law regulating pilots, which has never been considered by Congress as a regulation of commerce and has been left to the states, whose laws have been adopted from the beginning of the government, such adoption being the consent required by the Constitution. When the Constitution thus gives Congress a revising and controlling power over state laws which impose a tax or duty on imports or exports or in any case makes their consent necessary to give validity to any law or act of a state, the meaning, object and intention is to declare that no other restriction exists. Any case, therefore, which does not come within the prohibition or in which the prohibition is removed by the performance of the condition can be no more reached by any act of Congress than if no jurisdiction over it had been granted. The reserved power of the state, when thus disencumbered of all restraints, embraces the case as one appropriate to its exclusive power of legislation, which Congress cannot interfere with, though it may tax or regulate the same thing for federal purposes, it cannot impair the power of the states to do either for such purposes and objects as are recognized or authorized by the Constitution. Thus the states, by inspection and analogous laws, may regulate the importation and exportation of the subject of foreign commerce so far as is necessary for the execution of such laws; for all other purposes, the power of Congress over them is exclusive until they are mixed with the common mass of the property in a state by a package sale. Thus, all the objects of the Constitution having been effected, the state has the same power over the articles imported as over those which had never been subject to the regulation of Congress. In applying these plain deductions from the provisions of the Constitution, as expounded by this Court, to the present case, it comes within none of the prohibitions. The law in question encroaches on no power of Congress, it imposes no tax for any purpose; it is a measure necessary for the protection of the people of a state against taxation for the support of paupers from abroad or from other states, which Congress has no power to impose by direct assessment or as a consequence of its power over commerce. The constitutional restraints on state laws which bear on imports, exports or tonnage were intended and are applicable only to cases where they would injuriously affect the regulations of commerce prescribed by Congress, not the execution of inspection or analogous laws, with which the Constitution interferes no further than to prevent them from being perverted to the raising money for the use of the state and subjecting them to the revision and control of Congress. In this view of the respective powers of the general and state governments, they operate without any collision. Commerce is unrestricted by any state laws which assume the obstruction of navigation by any vessels authorized by law to navigate from state to state, or from foreign ports to those of a state, whether to transport goods or passengers. Imported articles remain undisturbed, under the protection of Congress, after they are landed, until by a package sale they become incorporated into the common mass of property within a state, subject to its powers of taxation and general jurisdiction. But neither vessels nor goods are protected from the operation of those laws and regulations of internal police, over which the states have a acknowledged power, unaffected by any grant or prohibition which impairs its plenitude, the consequence of which is Congress has no jurisdiction of the subject matter, can pass no laws for its regulation, nor make any exemption from their provisions. In any other view, collisions between the laws of the states and Congress would be at inevitable as interminable. The powers of a state to execute its inspection laws is as constitutional as that of Congress to carry into execution its regulations of commerce; if Congress can exercise police powers as a means of regulating commerce, a state can, by the same parity of reasoning, assume the regulation of commerce with foreign nations as the means of executing and enforcing its police and inspection laws. There is no warrant in the Constitution to authorize Congress to encroach upon the reserved rights of the states by the assumption that it is necessary and proper for carrying its enumerated powers into execution, or to authorize a state, under color of its reserved powers or the power of executing its inspection or police regulations, to touch upon the powers granted to Congress or prohibited to the states. Implied or constructive powers of either description are as wholly unknown to the Constitution as they are utterly incompatible with its spirit and provisions. "The Constitution unavoidably deals in general language," 14 U. S. 1 Wheat. 326; "it marks only its great outlines and designates its important objects," 17 U. S. 4 Wheat. 407; but these outlines and objects are all enumerated; none can be added or taken away; what is so marked and designated in general terms comprehends the subject matter in its detail. A grant of legislative power over any given subject comprehends the whole subject -- the corpus, the body, and all its constituent parts; so does a prohibition to legislate; yet the framers of the Constitution could not have intended to leave it in the power of Congress to so extend the details of a granted power as to embrace any part of the corpus of a reserved power. A power reserved or excepted in general terms, as internal police, is reserved as much in detail and in all its ramifications as the granted power to regulate commerce with foreign nations; the parts or subdivisions of the one cannot be carried into the other by any assumed necessity of carrying the given power in one case into execution which could not be done in the other. "Necessary" is but another word for "discretionary" when there is a desire to assume power; let it once be admitted as a constitutional apology for the assumption by a state of any portion of a granted power, or by Congress of any portion of a reserved power, the same reasoning will authorize the assumption of the entire power. States have the same right of deciding when a necessity exists and legislating on its assumption as Congress has. The Constitution has put them on the same footing in this respect, but its framers have not left their great work subject to be mangled and mutilated by any construction or implication which depends on discretion or actual or assumed necessity. Its grants, exceptions, and reservations are of entire powers, unless there are some expressed qualifications or limitations; if either are extended or contracted by mere implication, there are no limits which can be assigned, and there can be no certainty in any provision in the Constitution or its amendments. If one power can be incorporated into and amalgamated with another distinct power, or if substantive and distinct powers, which are vested in one legislative body, can be infused by construction into another legislature as the means of carrying into execution some other power, the consequences are obvious. Any enumeration or specification of legislative powers is useless if those which are omitted are inserted on the ground of necessity; this would be supplying the defects of the Constitution by assuming the organic powers of conventions of the people in the several states; so it would be if constructive restrictions on the states were made in cases where none had been imposed, or none resulted from the granted powers which were enumerated. When an implied power or restriction would thus be added as a constructive provision of the Constitution, it would have the same force and effect as if it was expressed in words, or was apparent on inspection; as a power which was necessary and proper, it must also be construed to carry with it the proper means of carrying it into effect by a still further absorption by Congress of specific powers reserved to the states or by the states of those enumerated in the grant to Congress. Let, then, this principle be once incorporated in the Constitution, the federal government becomes one of consolidated powers or its enumerated powers will be usurped by the states. When the line of power between them is drawn by construction, and substantive powers are used as necessary means to enforce other distinct powers, the powers, the nature and character of the federal and state governments must necessarily depend on the mere opinions of the constituent members of the tribunal which expounds the Constitution from time to time, according to their views of an existing necessity. No case can arise in which the doctrine of construction has been attempted to be carried further than in this; the law of New York, on which this case turns, has but one object, the prevention of foreign paupers from becoming chargeable on the city or other parts of the state; it is a part of the system of internal police prescribing laws in relation to paupers. The state asserts as a right of self-protection the exclusion of foreigners who are attempted to be forced upon them under the power of the laws for the regulation of commerce, which the defendant contends protects all passengers from foreign countries till they are landed, and puts it out of the power of a state to prevent it. On the same principle, convicts from abroad may be forced into the states without limitation; so of paupers from other states, if once put in a vessel with a coasting license; so that all police regulations on these subjects by states must be held unconstitutional. One of two consequences must follow. There can be no poor laws applicable to foreigners; they must be admitted into the state and be supported by a tax on its citizens, or Congress must take the subject into its own hands as a means of carrying into execution its power to regulate commerce. Its laws must not be confined to the seaports in the states into which foreign paupers are introduced; they must extend to every part of the state to which paupers from other states can be brought, for the power to regulate commerce among the several states is as broad in all respects as to do it with foreign nations. "It has been truly said that commerce, as the word is used in the Constitution, is a unit every part of which is indicated by the term. . . . If this be the admitted meaning of the word, in its application to foreign nations, it must carry the same meaning throughout the sentence, and remain a unit unless there be some plain intelligible cause which alters it." 22 U. S. 9 Wheat. 194. To my mind there can be no such cause for discriminating between an imported and a domestic pauper; one is as much an article of commerce as another, and the same power which can force them into a state from a vessel can do it from a wagon and regulate their conveyance on the roads or canals of a state, as well as on its rivers, havens or arms of the sea. In following out these principles to their consequences, Congress may, and to be consistent ought, to go further. Poor laws are analogous to health, quarantine, and inspection laws, all being parts of a system of internal police to prevent the introduction of what is dangerous to the safety or health of the people, and health and quarantine laws extend to the vessel, the cargo, and passengers. Laws excluding convicts and paupers are as necessary to preserve the morals of the people from corruption and their property from taxation as any laws of the other description can be; nor do they interfere any further with the regulations of commerce; as laws in pari materia they must stand or fall together or some arbitrary unintelligible distinction must be made between them, which is neither to be found in the Constitution nor decisions of this Court. If the principle on which health and quarantine laws are sustained is applied to this case, the validity of the law in question is not to be doubted; if this principle is not so applied, then it is an unsound one, which must be abandoned, whereby the reserved powers of the states over their internal police, must devolve on Congress as an incident to or the means of regulating, "commerce with foreign nations" and "among the several states." There is no middle ground on which health and quarantine laws can be supported which will not equally support poor laws; nor can poor laws be declared void on any ground that will not prostrate the others; all must be included within or excepted from the prohibition. When we recur to the political history of the country from 1774 to the adoption of the Constitution, we find the people and the states uniformly opposing any interference with their internal polity by Parliament or Congress; it is not a little strange that they should have adopted a Constitution which has taken from the states the power of regulating pauperism within their territory. They little thought that, in the grant of a power to regulate commerce with foreign nations and among the states, they also granted, as a means, the regulation of internal police; they little feared that the powers which were cautiously reserved to themselves by an amendment could be taken from them by construction, or that any reasoning would prevail, by which the grant would be so stretched as to embrace them. We should never have had a federal government if there had been a declaration in its frame that Congress could pass poor laws or interfere to revise or control those passed by the states, or that Congress could legislate on any subject of legislation over which no jurisdiction was granted to them and which was reserved to the states or people in the same plenitude as they held it before they surrendered any portion of their power. The Constitution gives no color for such doctrines, nor can they be infused into it by any just rule of interpretation; the Tenth Amendment becomes a dead letter if the Constitution does not point to the powers which are "delegated to the United States," or "prohibited to the states," and reserve all other powers "to the states respectively or the people." Any enumeration of powers granted, any specific prohibitions on the states, will not only become wholly unmeaning, if new subjects may be brought within their scope, as means of enforcing the given powers, or the prohibitions on the states extended beyond those which are specified, but the implied powers and implied prohibitions must be more illimitable than those which are express. When the Constitution grants a power, it makes exceptions to such as were not intended to be absolute; but from the nature of those which are assumed, they are not included in the enumeration and cannot be controlled by the exceptions, which apply only to what is granted. When prohibitions are imposed on the states, the Constitution uses terms which denote their character, whether they are intended to be absolute or qualified. In the first clause of the tenth section of the first article, the prohibitions are positive and absolute; no power can dispense with them; those in the second are qualified; "no state shall, without the consent of Congress" is merely a conditional prohibition; when the consent is given, the condition is performed, and the power of the state remains as if no condition had ever been exacted. See Poole v. Fleeger, post, 36 U. S. 212 . But if a state lays a tax on imports or exports, then two other conditions are imposed, the produce goes to the United States, and Congress may revise and control the state law; Congress can, however, do no more than consent or dissent or revise or control the law of the state; it has no power to pass a distinct law embracing the same subject in detail. The original primary power is in the state, and, subject to the consent and supervision of Congress, it admits of no other restriction. Now when a law which imposes no tax on imports, exports, or tonnage is brought within a prohibition by construction, it cannot be validated by the consent of Congress, and if it can take jurisdiction of the subject, it cannot be confined to mere revision or control; the power must be coextensive with its opinion of the necessity of using it as the means of effecting the object. This seems to me utterly inconsistent with the Constitution, which has imposed only a qualified prohibition on the power of states to tax the direct subjects of foreign commerce, imports, and exports. I cannot think that it intended or can be construed to impose an unqualified prohibition on a state to prevent the introduction of convicts or paupers, who are entitled to no higher protection than the vessel or goods on board, which are subject to state taxation with the assent of Congress, and to health, inspection and quarantine laws without their consent. I can discriminate no line of power between the different subjects of internal police, nor find any principle in the Constitution or rule of construing it by this Court that places any part of a police system within any jurisdiction except that of a state, or which can revise or in any way control its exercise except as specified. Police regulations are not within any grant of powers to the federal government for federal purposes; Congress may make them in the territories, this District, and other places where they have exclusive powers of legislation, but cannot interfere with the police of any part of a state. As a power excepted and reserved by the states, it remains in them in full and unimpaired sovereignty, as absolutely as their soil, which has not been granted to individuals or ceded to the United States; as a right of jurisdiction over the land and waters of a state, it adheres to both, so as to be incapable of exercise by any other power, without cession or usurpation. Congress had the same power of exclusive legislation in this District, without a cession from Maryland and Virginia; they have the same power over the sites of forts, arsenals and navy yards, without a cession from a state or purchase with its consent as they have to interfere with its internal police. It is the highest and most sovereign jurisdiction, indispensable to the separate existence of a state; it a power vested by original inherent right, existing before the Constitution, remaining in its plenitude, incapable of any abridgment by any of its provisions. The law in question is confined to matters of police, it affects no regulations of commerce, it impairs no rights of any persons engaged in its pursuits; and while such laws are not extended beyond the legitimate objects of police, there is in my opinion no power under the Constitution which can impair its force or by which Congress can assume any portion or part of this power under any pretext whatever. By every sound rule of constitutional and common law, a power excepted or reserved by a grantor "always is with him and always was," and whatever is a part of it is the thing reserved, which must remain with the grantor. If it be doubtful whether the power is granted, prohibited, or reserved, then, by the settled rules and course of this Court, its decision must be in favor of the validity of the state law. 10 U. S. 6 Cranch 128; 25 U. S. 12 Wheat. 436. That such a course of decision is called for by the highest considerations no one can doubt; in a complicated system of government like ours, in which the powers of legislation by state and federal government are defined by written Constitutions ordained by the same people, the great object to be effected in their exposition is harmony in their movements. If a plain collision arises, the subordinate law must yield to that which is paramount, but this collision must not be sought by the exercise of ingenuity or refinement of reasoning; it ought to be avoided, whenever reason or authority will authorize such a construction of a law, "ut magis valeat quam pereat." While this remains, as it has been, the governing rule of this Court, its opinions will be respected, its judgments will control public opinion, and tend to give perpetuity to the institutions of the country. But if state laws are adjudged void on slight or doubtful grounds when they are not manifestly repugnant to the Constitution, there is great reason to fear that the people, or the legislatures of the states may feel it necessary to provide some additional protection to their reserved powers, remove some of the restrictions on their exercise, and abridge those delegated to Congress. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of New York and on the question and point on which the judges of the said circuit court were opposed in opinion and which was certified to this Court for its opinion agreeable to the act of Congress in such case made and provided, and was argued by counsel. On consideration whereof it is the opinion of this Court that so much of the section of the act of the Legislature of New York as applies to the breaches assigned in the declaration does not assume to regulate commerce between the port of New York and foreign ports, and that so much of said section is constitutional. Whereupon it is now here ordered and adjudged by this Court that it be so certified to the said circuit court.

In New York v. Miln, the Supreme Court upheld a New York state law requiring ship masters to provide a report with the names, ages, and last legal settlement of all passengers arriving in New York from foreign ports or other US states. The Court ruled that the law was a valid exercise of the state's police power and did not unconstitutionally regulate interstate or foreign commerce. The Court emphasized the importance of harmony between state and federal laws and cautioned against invalidating state laws on slight or doubtful grounds.

Powers of Congress

Houston East and West Texas Railway Co. v. U.S.

https://supreme.justia.com/cases/federal/us/234/342/

U.S. Supreme Court Houston E. & W. Tex. Ry. Co. v. United States, 234 U.S. 342 (1914) Houston East and West Texas Railway Company v. United States Nos. 567, 568 Argued October 28, 29, 1913 Decided June 8, 1914 234 U.S. 342 APPEALS FROM THE COMMERCE COURT Syllabus The object of the commerce clause was to prevent interstate trade from being destroyed or impeded by the rivalries of local governments, and it is the essence of the complete and paramount power confided Page 234 U. S. 343 to Congress to regulate interstate commerce that, wherever it exists, it dominates. Wherever the interstate and intrastate transactions of carriers are so related that the government of the one involves the control of the other, it is Congress, and not the State, that is entitled to prescribe the final and dominant rule; otherwise the Nation would not be supreme within the National field. While Congress does not possess authority to regulate the internal commerce of a State, as such, it does possess power to foster and protect interstate commerce, although, in taking necessary measures so to do, it may be necessary to control intrastate transactions of interstate carriers. The use by the State of an instrument of interstate commerce in a discriminatory manner so as to inflict injury on any part of that commerce is a ground for Federal intervention; nor can a State authorize a carrier to do that which Congress may forbid and has forbidden. In removing injurious discriminations against interstate traffic arising from the relation of intrastate to interstate rates, Congress is not bound to reduce the latter to the level of the former. Congress, having the power to control intrastate charges of an interstate carrier to the extent necessary to prevent injurious discrimination against interstate commerce, may provide for its execution through the aid of a subordinate body. By § 3 of the Act to Regulate Commerce, 24 Stat. 379, 380, Congress has delegated to the Interstate Commerce Commission power to prevent all discriminations against interstate commerce by interstate carriers, subject to the Act, which it is within the power of Congress to condemn. Where the Interstate Commerce Commission has found after due investigation that unjust discrimination against localities exists under substantially similar conditions of transportation, the Commission has power to correct it, and this notwithstanding the limitations contained in the proviso to § 1 of the Act to Regulate Commerce. The earlier action of the Interstate Commerce Commission was not of such controlling character as to preclude the Commission from giving effect to the Act to Regulate Commerce, and in this case having, after examination of the question of its authority, decided to make a remedial order to prevent unjust discrimination and the Commerce Court having sustained that authority of the Commission, this court should not reverse unless, as is not the case, the law has been misapplied. Page 234 U. S. 344 No local rule can nullify the lawful exercise of Federal authority, and after the Interstate Commerce Commission has made an order within its jurisdiction, there is no compulsion on the carrier to comply with any inconsistent local requirement. Although there is gravity in any question presented when state and Federal news conflict, it has been recognized from the beginning that this Nation could not prosper if interstate and foreign trade were governed by many masters, and where the freedom of such commerce is involved, the judgment of Congress and the agencies it lawfully establishes must control. An order made by the Interstate Commerce Commission that, in order to correct discrimination found to exist against specified localities, interstate carriers should desist from charging higher rates for transportation between certain specified interstate points than between certain specified intrastate points, held to be within the power delegated by Congress to the Commission; also held that, so far as the carriers' interstate rates conformed to what was found to be reasonable by the Commission, they were entitled to maintain them, and that they were free to comply with the order by so adjusting their intrastate rates, to which the order related, as to remove the forbidden discrimination. 205 Fed.Rep. 380, affirmed. The facts, which involve the validity of an order of the Interstate Commerce Commission relating to rates between Shreveport, Louisiana, and points within the State of Texas, and the effect of orders of the Railroad Commission of the State of Texas in regard to rates wholly within that State, are stated in the opinion. Page 234 U. S. 345 MR. JUSTICE HUGHES delivered the opinion of the court. These suits were brought in the Commerce Court by the Houston, East & West Texas Railway Company, and the Houston & Shreveport Railroad Company, and by the Texas & Pacific Railway Company, respectively, to set aside an order of the Interstate Commerce Commission, dated March 11, 1912, upon the ground that it exceeded the Commission's authority. Other railroad companies [ Footnote 1 ] intervened in support of the petitions, and the Interstate Commerce Commission and the Railroad Commission of Louisiana intervened in opposition. The petitions were dismissed. 205 Fed.Rep. 380. The order of the Interstate Commerce Commission was made in a proceeding initiated in March, 1911, by the Railroad Commission of Louisiana. The complaint was that the appellants, and other interstate carriers, maintained unreasonable rates from Shreveport, Louisiana, to various points in Texas, and, further, that these carriers in the adjustment of rates over their respective lines unjustly discriminated in favor of traffic within the State of Texas and against similar traffic between Louisiana and Texas. The carriers filed answers; numerous pleas of intervention by shippers and commercial bodies were allowed; testimony was taken and arguments were heard. The gravamen of the complaint, said the Interstate Page 234 U. S. 346 Commerce Commission, was that the carriers made rates out of Dallas and other Texas points into eastern Texas which were much lower than those which they extended into Texas from Shreveport. The situation may be briefly described: Shreveport, Louisiana, is about 40 miles from the Texas state line, and 231 miles from Houston, Texas, on the line of the Houston, East & West Texas and Houston & Shreveport Companies (which are affiliated in interest); it is 189 miles from Dallas, Texas, on the line of the Texas & Pacific. Shreveport competes with both cities for the trade of the intervening territory. The rates on these lines from Dallas and Houston, respectively, eastward to intermediate points in Texas were much less, according to distance, than from Shreveport westward to the same points. It is undisputed that the difference was substantial, and injuriously affected the commerce of Shreveport. It appeared, for example, that a rate of 60 cents carried first class traffic a distance of 160 miles to the eastward from Dallas, while the same rate would carry the same class of traffic only 55 miles into Texas from Shreveport. The first class rate from Houston to Lufkin, Texas, 118.2 miles, was 50 cents per 100 pounds, while the rate from Shreveport to the same point, 112.5 miles, was 69 cents. The rate on wagons from Dallas to Marshall, Texas, 147.7 miles was 36.8 cents, and from Shreveport to Marshall, 42 miles, 56 cents. The rate on furniture from Dallas to Longview, Texas, 124 miles, was 24.8 cents, and that from Shreveport to Longview, 65.7 miles, was 35 cents. These instances of differences in rates are merely illustrative; they serve to indicate the character of the rate adjustment. The Interstate Commerce Commission found that the interstate class rates out of Shreveport to named Texas points were unreasonable, and it established maximum class rates for this traffic. These rates, we understand, were substantially the same as the class rates fixed by the Page 234 U. S. 347 Railroad Commission of Texas, and charged by the carriers, for transportation for similar distances in that State. The Interstate Commerce Commission also found that the carriers maintained "higher rates from Shreveport to points in Texas" than were in force "from cities in Texas to such points under substantially similar conditions and circumstances," and that thereby "an unlawful and undue preference and advantage" was given to the Texas cities and a "discrimination" that was "undue and unlawful" was effected against Shreveport. In order to correct this discrimination, the carriers were directed to desist from charging higher rates for the transportation of any commodity from Shreveport to Dallas and Houston, respectively, and intermediate points, than were contemporaneously charged for the carriage of such commodity from Dallas and Houston toward Shreveport for equal distances, as the Commission found that relation of rates to be reasonable. 23 I.C.C. 31, 46-48. The order in question is set forth in the margin. [ Footnote 2 ] The Page 234 U. S. 348 report states that, under this order, it will be the duty of the companies "to duly and justly equalize the terms and conditions" upon which they will extend "transportation to traffic of a similar character moving into Texas from Page 234 U. S. 349 Shreveport with that moving wholly within Texas," but that, in effecting such equalization, the class scale rates as prescribed shall not be exceeded. In their petition in the Commerce Court, the appellants assailed the order in its entirety, but subsequently they withdrew their opposition to the fixing of maximum class rates, and these rates were put in force by the carriers in May, 1912. The attack was continued upon that portion of the order which prohibited the charge of higher rates for carrying articles from Shreveport into Texas than those charged for eastward traffic from Dallas and Houston, respectively, for equal distances. There are, it appears, commodity rates fixed by the Railroad Commission of Texas for intrastate hauls which are substantially less than the class, or standard, rates prescribed by that Commission, and thus the commodity rates charged by the carriers from Dallas and Houston eastward to Texas points are less than the rates which they demand for the transportation of the same articles for like distances from Shreveport into Texas. The present controversy relates to these commodity rates. The point of the objection to the order is that, as the discrimination found by the Commission to be unjust arises out of the relation of intrastate rates, maintained under state authority, to interstate rates that have been upheld as reasonable, its correction was beyond the Commission's power. Manifestly, the order might be complied with, and the discrimination avoided, either by reducing the interstate rates from Shreveport to the level of the competing intrastate rates, or by raising these intrastate Page 234 U. S. 350 rates to the level of the interstate rates, or by such reduction in the one case and increase in the other as would result in equality. But it is urged that, so far as the interstate rates were sustained by the Commission as reasonable, the Commission was without authority to compel their reduction in order to equalize them with the lower intrastate rates. The holding of the Commerce Court was that the order relieved the appellants from further obligation to observe the intrastate rates, and that they were at liberty to comply with the Commission's requirements by increasing these rates sufficiently to remove the forbidden discrimination. The invalidity of the order in this aspect is challenged upon two grounds: (1) That Congress is impotent to control the intrastate charges of an interstate carrier even to the extent necessary to prevent injurious discrimination against interstate traffic; and (2) That, if it be assumed that Congress has this power, still it has not been exercised, and hence the action of the Commission exceeded the limits of the authority which has been conferred upon it. First. It is unnecessary to repeat what has frequently been said by this court with respect to the complete and paramount character of the power confided to Congress to regulate commerce among the several States. It is of the essence of this power that, where it exists, it dominates. Interstate trade was not left to be destroyed or impeded by the rivalries of local governments. The purpose was to make impossible the recurrence of the evils which had overwhelmed the Confederation and to provide the necessary basis of national unity by insuring "uniformity of regulation against conflicting and discriminating state legislation." By virtue of the comprehensive terms of the grant, the authority of Congress is at all times adequate to meet the varying exigencies that arise and to protect the national interest by securing the freedom of interstate Page 234 U. S. 351 commercial intercourse from local control. Gibbons v. Ogden , 9 Wheat. 1, 22 U. S. 196 , 22 U. S. 224 ; Brown v. Maryland , 12 Wheat. 419, 25 U. S. 446 ; County of Mobile v. Kimball, 102 U. S. 691 , 102 U. S. 696 , 102 U. S. 697 ; Smith v. Alabama, 124 U. S. 45 , 124 U. S. 473 ; Second Employers' Liability Cases, 223 U. S. 1 , 223 U. S. 47 , 223 U. S. 53 , 223 U. S. 54 ; Minnesota Rate Cases, 230 U. S. 352 , 230 U. S. 398 , 230 U. S. 399 . Congress is empowered to regulate -- that is, to provide the law for the government of interstate commerce; to enact "all appropriate legislation" for its "protection and advancement" ( The Daniel Ball , 10 Wall. 557, 77 U. S. 564 ); to adopt measures "to promote its growth and insure its safety" ( County of Mobile v. Kimball, supra ); "to foster, protect, control and restrain" ( Second Employers' Liability Cases, supra ). Its authority, extending to these interstate carriers as instruments of interstate commerce, necessarily embraces the right to control their operations in all matters having such a close and substantial relation to interstate traffic that the control is essential or appropriate to the security of that traffic, to the efficiency of the interstate service, and to the maintenance of conditions under which interstate commerce may be conducted upon fair terms and without molestation or hindrance. As it is competent for Congress to legislate to these ends, unquestionably it may seek their attainment by requiring that the agencies of interstate commerce shall not be used in such manner as to cripple, retard or destroy it. The fact that carriers are instruments of intrastate commerce, as well as of interstate commerce, does not derogate from the complete and paramount authority of Congress over the latter or preclude the Federal power from being exerted to prevent the intrastate operations of such carriers from being made a means of injury to that which has been confided to Federal care. Wherever the interstate and intrastate transactions of carriers are so related that the government of the one involves the control of the other, it is Congress, and not the State, that is entitled to prescribe Page 234 U. S. 352 the final and dominant rule, for otherwise Congress would be denied the exercise of its constitutional authority and the State, and not the Nation, would be supreme within the national field. Baltimore & Ohio Railroad Co. v. Interstate Commerce Commission, 221 U. S. 612 , 221 U. S. 618 ; Southern Railway Co. v. United States, 222 U. S. 20 , 222 U. S. 26 , 222 U. S. 27 ; Second Employers' Liability Cases, supra, pp. 223 U. S. 48 , 223 U. S. 51 ; Interstate Commerce Commission v. Goodrich Transit Co., 224 U. S. 194 , 224 U. S. 205 , 224 U. S. 213 ; Minnesota Rate Cases, supra, p. 230 U. S. 431 ; Illinois Central Railroad Co. v. Behrens, 233 U. S. 473 . In Baltimore & Ohio Railroad Co. v. Interstate Commerce Commission, supra, the argument against the validity of the Hours of Service Act (March 4, 1907, c. 2939, 34 Stat. 1415) involved the consideration that the interstate and intrastate transactions of the carriers were so interwoven that it was utterly impracticable for them to divide their employes so that those who were engaged in interstate commerce should be confined to that commerce exclusively. Employes dealing with the movement of trains were employed in both sorts of commerce; but the court held that this fact did not preclude the exercise of Federal power. As Congress could limit the hours of labor of those engaged in interstate transportation, it necessarily followed that its will could not be frustrated by prolonging the period of service through other requirements of the carriers or by the commingling of duties relating to interstate and intrastate operations. Again, in Southern Railway Co. v. United States, supra, the question was presented whether the amendment to the Safety Appliance Act (March 2, 1903, c. 976, 32 Stat. 943) was within the power of Congress in view of the fact that the statute was not confined to vehicles that were used in interstate traffic, but also embraced those used in intrastate traffic. The court answered affirmatively, because there was such a close relation between the two classes of traffic moving over the same railroad as to make it certain that the safety Page 234 U. S. 353 of the interstate traffic, and of those employed in its movement, would be promoted in a real and substantial sense by applying the requirements of the act to both classes of vehicles. So, in the Second Employers' Liability Cases, supra, it was insisted that, while Congress had the authority to regulate the liability of a carrier for injuries sustained by one employee through the negligence of another, where all were engaged in interstate commerce, that power did not embrace instances where the negligent employee was engaged in intrastate commerce. The court said that this was a mistaken theory, as the causal negligence, when operating injuriously upon an employee engaged in interstate commerce, had the same effect with respect to that commerce as if the negligent employee were also engaged therein. The decision in Employers' Liability Cases, 207 U. S. 463 , is not opposed, for the statute there in question (June 11, 1906, c. 3073, 34 Stat. 232) sought to regulate the liability of interstate carriers for injuries to any employee even though his employment had no connection whatever with interstate commerce. ( See Illinois Central R.R. Co. v. Behrens, supra. ) While these decisions sustaining the Federal power relate to measures adopted in the interest of the safety of persons and property, they illustrate the principle that Congress, in the exercise of its paramount power, may prevent the common instrumentalities of interstate and intrastate commercial intercourse from being used in their intrastate operations to the injury of interstate commerce. This is not to say that Congress possesses the authority to regulate the internal commerce of a State, as such, but that it does possess the power to foster and protect interstate commerce, and to take all measures necessary or appropriate to that end, although intrastate transactions of interstate carriers may thereby be controlled. This principle is applicable here. We find no reason to doubt that Congress is entitled to keep the highways of Page 234 U. S. 354 interstate communication open to interstate traffic upon fair and equal terms. That an unjust discrimination in the rates of a common carrier, by which one person or locality is unduly favored as against another under substantially similar conditions of traffic, constitutes an evil is undeniable, and where this evil consists in the action of an interstate carrier in unreasonably discriminating against interstate traffic over its line, the authority of Congress to prevent it is equally clear. It is immaterial, so far as the protecting power of Congress is concerned, that the discrimination arises from intrastate rates, as compared with interstate rates. The use of the instrument of interstate commerce in a discriminatory manner so as to inflict injury upon that commerce, or some part thereof, furnishes abundant ground for Federal intervention. Nor can the attempted exercise of state authority alter the matter, where Congress has acted, for a State may not authorize the carrier to do that which Congress is entitled to forbid and has forbidden. It is also to be noted -- as the Government has well said in its argument in support of the Commission's order -- that the power to deal with the relation between the two kinds of rates, as a relation, lies exclusively with Congress. It is manifest that the State cannot fix the relation of the carrier's interstate and intrastate charges without directly interfering with the former, unless it simply follows the standard set by Federal authority. This question was presented with respect to the long and short haul provision of the Kentucky constitution, adopted in 1891, which the court had before it in Louisville & Nashville R.R. Co. v. Eubank, 184 U. S. 27 . The state court had construed this provision as embracing a long haul, from a place outside to one within the State, and a shorter haul on the same line and in the same direction between points within the State. This court held that, so construed, the provision was invalid as being a regulation of interstate commerce Page 234 U. S. 355 because "it linked the interstate rate to the rate for the shorter haul, and thus the interstate charge was directly controlled by the state law." See 230 U.S. pp. 230 U. S. 428 , 230 U. S. 429 . It is for Congress to supply the needed correction where the relation between intrastate and interstate rates presents the evil to be corrected, and this it may do completely by reason of its control over the interstate carrier in all matters having such a close and substantial relation to interstate commerce that it is necessary or appropriate to exercise the control for the effective government of that commerce. It is also clear that, in removing the injurious discriminations against interstate traffic arising from the relation of intrastate to interstate rates, Congress is not bound to reduce the latter below what it may deem to be a proper standard fair to the carrier and to the public. Otherwise, it could prevent the injury to interstate commerce only by the sacrifice of its judgment as to interstate rates. Congress is entitled to maintain its own standard as to these rates, and to forbid any discriminatory action by interstate carriers which will obstruct the freedom of movement of interstate traffic over their lines in accordance with the terms it establishes. Having this power, Congress could provide for its execution through the aid of a subordinate body, and we conclude that the order of the Commission now in question cannot be held invalid upon the ground that it exceeded the authority which Congress could lawfully confer. Second. The remaining question is with regard to the scope of the power which Congress has granted to the Commission. Section three of the Act to Regulate Commerce provides (February 4, 1887, c. 104, 24 Stat. 379, 380): "SEC. 3. That it shall be unlawful for any common carrier subject to the provisions of this act to make or give any undue or unreasonable preference or advantage to Page 234 U. S. 356 any particular person, company, firm, corporation, or locality, or any particular description of traffic, in any respect whatsoever, or to subject any particular person, company, firm, corporation, or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever." This language is certainly sweeping enough to embrace all the discriminations of the sort described which it was within the power of Congress to condemn. There is no exception or qualification with respect to an unreasonable discrimination against interstate traffic produced by the relation of intrastate to interstate rates as maintained by the carrier. It is apparent from the legislative history of the act that the evil of discrimination was the principal thing aimed at, and there is no basis for the contention that Congress intended to exempt any discriminatory action or practice of interstate carriers affecting interstate commerce which it had authority to reach. The purpose of the measure was thus emphatically stated in the elaborate report of the Senate Committee on Interstate Commerce which accompanied it: "The provisions of the bill are based upon the theory that the paramount evil chargeable against the operation of the transportation system of the United States as now conducted is unjust discrimination between persons, places, commodities, or particular descriptions of traffic. The underlying purpose and aim of the measure is the prevention of these discriminations. . . ." (Senate Report No. 46, 49th Cong., 1st Sess., p. 215). The opposing argument rests upon the proviso in the first section of the act which, in its original form, was as follows: "Provided, however, that the provisions of this act shall not apply to the transportation of passengers or property, or to the receiving, delivering, storage, or handling of property, wholly within one State, and not shipped to or from a foreign country from or to any State or Territory Page 234 U. S. 357 as aforesaid." When the act was amended so as to confer upon the Commission the authority to prescribe maximum interstate rates, this proviso was reenacted, and when the act was extended to include telegraph, telephone and cable companies engaged in interstate business, an additional clause was inserted so as to exclude intrastate messages. See acts of June 29, 1906, c. 3591, 34 Stat. 584; June 18, 1910, c. 309, 36 Stat. 539, 545. Congress thus defined the scope of its regulation and provided that it was not to extend to purely intrastate traffic. It did not undertake to authorize the Commission to prescribe intrastate rates, and thus to establish a unified control by the exercise of the ratemaking power over both descriptions of traffic. Undoubtedly -- in the absence of a finding by the Commission of unjust discrimination -- intrastate rates were left to be fixed by the carrier and subject to the authority of the States or of the agencies created by the States. This was the question recently decided by this court in the Minnesota Rate Cases, supra. There, the State of Minnesota had established reasonable rates for intrastate transportation throughout the State, and it was contended that, by reason of the passage of the Act to Regulate Commerce, the State could no longer exercise the statewide authority for this purpose which it had formerly enjoyed, and the court was asked to hold that an entire scheme of intrastate rates, otherwise validly established, was null and void because of its effect upon interstate rates. There had been no finding by the Interstate Commerce Commission of any unjust discrimination. The present question, however, was reserved, the court saying (230 U.S. p. 230 U. S. 419 ): " It is urged, however, that the words of the proviso" (referring to the proviso above-mentioned) "are susceptible of a construction which would permit the provisions of section three of the act, prohibiting carriers from giving an undue or unreasonable preference or advantage to any locality, to apply to unreasonable discriminations Page 234 U. S. 358 between localities in different States, as well when arising from an intrastate rate as compared with an interstate rate as when due to interstate rates exclusively. If it be assumed that the statute should be so construed, and it is not necessary now to decide the point, it would inevitably follow that the controlling principle governing the enforcement of the act should be applied to such cases as might thereby be brought within its purview, and the question whether the carrier, in such a case, was giving an undue or unreasonable preference or advantage to one locality as against another, or subjecting any locality to an undue or unreasonable prejudice or disadvantage, would be primarily for the investigation and determination of the Interstate Commerce Commission and not for the courts." Here, the Commission expressly found that unjust discrimination existed under substantially similar conditions of transportation and the inquiry is whether the Commission had power to correct it. We are of the opinion that the limitation of the proviso in section one does not apply to a case of this sort. The Commission was dealing with the relation of rates injuriously affecting, through an unreasonable discrimination, traffic that was interstate. The question was thus not simply one of transportation that was "wholly within one State." These words of the proviso have appropriate reference to exclusively intrastate traffic, separately considered; to the regulation of domestic commerce, as such. The powers conferred by the act are not thereby limited where interstate commerce itself is involved. This is plainly the case when the Commission finds that unjust discrimination against interstate trade arises from the relation of intrastate to interstate rates as maintained by a carrier subject to the act. Such a matter is one with which Congress alone is competent to deal, and, in view of the aim of the act and the comprehensive terms of the provisions against unjust discrimination, Page 234 U. S. 359 there is no ground for holding that the authority of Congress was unexercised, and that the subject was thus left without governmental regulation. It is urged that the practical construction of the statute has been the other way. But, in assailing the order, the appellants ask us to override the construction which has been given to the statute by the authority charged with its execution, and it cannot be said that the earlier action of the Commission was of such a controlling character as to preclude it from giving effect to the law. The Commission, having before it a plain case of unreasonable discrimination on the part of interstate carriers against interstate trade, carefully examined the question of its authority and decided that it had the power to make this remedial order. The Commerce Court sustained the authority of the Commission, and it is clear that we should not reverse the decree unless the law has been misapplied. This we cannot say; on the contrary, we are convinced that the authority of the Commission was adequate. The further objection is made that the prohibition of section three is directed against unjust discrimination or undue preference only when it arises from the voluntary act of the carrier and does not relate to acts which are the result of conditions wholly beyond its control. East Tennessee &c. Rwy. Co. v. Interstate Commerce Commission, 181 U. S. 1 , 181 U. S. 18 . The reference is not to any inherent lack of control arising out of traffic conditions, but to the requirements of the local authorities which are assumed to be binding upon the carriers. The contention is thus merely a repetition in another form of the argument that the Commission exceeded its power; for it would not be contended that local rules could nullify the lawful exercise of Federal authority. In the view that the Commission was entitled to make the order, there is no longer compulsion upon the carriers by virtue of any inconsistent local requirement. We are not unmindful of the gravity of the Page 234 U. S. 360 question that is presented when state and federal views conflict. But it was recognized at the beginning that the Nation could not prosper if interstate and foreign trade were governed by many masters, and, where the interests of the freedom of interstate commerce are involved, the judgment of Congress and of the agencies it lawfully establishes must control. In conclusion: reading the order in the light of the report of the Commission, it does not appear that the Commission attempted to require the carriers to reduce their interstate rates out of Shreveport below what was found to be a reasonable charge for that service. So far as these interstate rates conformed to what was found to be reasonable by the Commission, the carriers are entitled to maintain them, and they are free to comply with the order by so adjusting the other rates to which the order relates as to remove the forbidden discrimination. But this result they are required to accomplish. The decree of the Commerce Court is affirmed in each case. Affirmed. [ Footnote 1 ] The Missouri, Kansas & Texas Railway Company of Texas, the St. Louis Southwestern Railway Company, and the St. Louis Southwestern Railway Company of Texas. [ Footnote 2 ] "This case being at issue upon complaint and answers on file, and having been duly heard and submitted by the parties, and full investigation of the matters and things involved having been had, and the Commission having, on the date hereof, made and filed a report containing its findings of fact and conclusions thereon, which said report is hereby referred to and made a part hereof:" "It is ordered, That defendants The Texas & Pacific Railway Company, The Houston, East & West Texas Railway Company, and Houston & Shreveport Railroad Company be, and they are hereby, notified and required to cease and desist, on or before the 1st day of May, 1912, and for a period of not less than two years thereafter abstain, from exacting their present class rates for the transportation of traffic from Shreveport, La., to the points in Texas hereinafter mentioned on their respective lines, as the Commission in said report finds such rates to be unjust and unreasonable." "It is further ordered, That defendant The Texas & Pacific Railway Company be, and it is hereby, notified and required to establish and put in force, on or before the 1st day of May, 1912, and maintain in force thereafter during a period of not less than two years, and apply to the transportation of traffic from Shreveport, La. to the below-named points in Texas, class rates which shall not exceed the following, in cents per 100 pounds, which rates are found by the Commission in its report to be reasonable, to-wit: (rates inserted)." "It is further ordered, That defendants The Houston, East & West Texas Railway Company and Houston & Shreveport Railroad Company be, and they are hereby, notified and required to establish and put in force, on or before the 1st day of May, 1912, and maintain in force thereafter during a period of not less than two years, and apply to the transportation of traffic from Shreveport, La. to the below-named points in Texas, class rates which shall not exceed the following, in cents per 100 pounds, which rates are found by the Commission in its report to be reasonable, to wit: (rates inserted)." "It is further ordered, That defendant The Texas & Pacific Railway Company be, and it is hereby, notified and required to cease and desist, on or before the 1st day of May, 1912, and for a period of not less than two years thereafter abstain, from exacting any higher rates for the transportation of any article from Shreveport, La. to Dallas, Tex. and points on its line intermediate thereto, than are contemporaneously exacted for the transportation of such article from Dallas, Tex. toward said Shreveport for an equal distance, as said relation of rates has been found by the Commission in said report to be reasonable." "It is further ordered, That defendants The Houston, East & West Texas Railway Company and Houston & Shreveport Railroad Company be, and they are hereby, notified and required to cease and desist, on or before the 1st day of May, 1912, and for a period of not less than two years thereafter abstain, from exacting any higher rates for the transportation of any article from Shreveport, La., to Houston, Tex., and points on its line intermediate thereto, than are contemporaneously exacted for the transportation of such article from Houston, Tex. toward said Shreveport for an equal distance, as said relation of rates has been found by the Commission in said report to be reasonable." "And it is further ordered, That said defendants be, and they are hereby, notified and required to establish and put in force, on or before the 1st day of May, 1912, and maintain in force thereafter during a period of not less than two years, substantially similar practices respecting the concentration of interstate cotton at Shreveport, La. to those which are contemporaneously observed by said defendants respecting the concentration of cotton within the state of Texas, provided the practices adopted shall be justifiable under the act to regulate commerce and applicable fairly under like conditions elsewhere on the lines of such defendants."

The case of Houston E. & W. Tex. Ry. Co. v. United States (1914) affirmed the power of Congress to regulate intrastate commerce when necessary to protect and foster interstate commerce, even if it involves controlling the actions of interstate carriers. The Supreme Court upheld the Interstate Commerce Commission's authority to prevent unjust discrimination against localities with similar conditions of transportation, ensuring fair rates for all. This decision reinforced the federal government's role in maintaining a balanced and efficient national economy, free from local biases.

Powers of Congress

Lone Wolf v. Hitchcock

https://supreme.justia.com/cases/federal/us/187/553/

U.S. Supreme Court Lone Wolf v. Hitchcock, 187 U.S. 553 (1903) Lone Wolf v. Hitchcock No. 275 Argued October 23, 1902 Decided January 5, 1903 187 U.S. 553 APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA Syllabus The provisions in article 12 of the Medicine Lodge Treaty of 1867 with the Kiousa and Comanche Indians to the effect that no treaty for the cession of any part of the reservation therein described, which may be held in common, shall be of any force or validity as against the Indians unless executed and signed by at least three-fourths of all the adult male Indians occupying the same, cannot be adjudged to materially limit and qualify the controlling authority of Congress in respect to the care and protection of the Indians and to deprive Congress, in a possible emergency, when the necessity might be urgent for a partition and disposal of the tribal lands, of all power to act if the assent of three-fourths of all the male Indians could not be obtained. Congress has always exercised plenary authority over the tribal relations of the Indians and the power has always been deemed a political one not subject to be controlled by the courts. In view of the legislative power possessed by Congress over treaties with the Indians and Indian tribal property, even if a subsequent agreement or treaty purporting to be signed by three-fourths of all the male Indians was not signed and amendments to such subsequent treaty were not submitted to the Indians, as all these matters were solely within the domain of the legislative authority, the action of Congress is conclusive upon the courts. As the Act of June 6, 1900, as to the disposition of these lands was enacted at a time when the tribal relations between the confederated tribes of the Kiowas, Comanches, and Apaches still existed, and that statute and the statutes Page 187 U. S. 554 supplementary thereto dealt with the disposition of tribal property and purported to give an adequate consideration for the surplus lands not allotted among the Indians or reserved for their benefit, such legislation was constitutional, and this Court will presume that Congress acted in perfect good faith and exercised its best judgment in the premises, and as Congress possessed full power in the matter, the judiciary cannot question or inquire into the motives which prompted the enactment of such legislation. In 1867, a treaty was concluded with the Kiousa and Comanche tribes of Indians, and such other friendly tribes as might be united with them, setting apart a reservation for the use of such Indians. By a separate treaty, the Apache tribe of Indians was incorporated with the two former-named, and became entitled to share in the benefits of the reservation. 15 Stat. 581, 589. The first named treaty is usually called the Medicine Lodge Treaty. By the sixth article thereof, it was provided that heads of families might select a tract of land within the reservation, not exceeding 320 acres in extent, which should thereafter cease to be held in common, and should be for the exclusive possession of the Indian making the selection, so long as he or his family might continue to cultivate the land. The twelfth article of the treaty was as follows: "Article 12. No treaty for the cession of any portion or part of the reservation herein described which may be held in common shall be of any validity or force as against the said Indians unless executed and signed by at least three-fourths of all the adult male Indians occupying the same, and no cession by the tribe shall be understood or construed in such manner as to deprive, without his consent, any individual member of the tribe of his rights to any tract of land selected by him as provided in article III (VI) of this treaty." The three tribes settled under the treaties upon the described land. On October 6, 1892, 456 male adult members of the confederated tribes signed, with three commissioners representing the United States, an agreement concerning the reservation. The Indian agent, in a certificate appended to the agreement, represented that there were then 562 male adults in the three tribes. Senate Ex.Doc. No. 27, 52d Congress, second session, Page 187 U. S. 555 page 17. Four hundred and fifty-six male adults therefore constituted more than three-fourths of the certified number of total male adults in the three tribes. In form, the agreement was a proposed treaty, the terms of which, in substance, provided for a surrender to the United States of the rights of the tribes in the reservation, for allotments out of such lands to the Indians in severalty, the fee simple title to be conveyed to the allottees or their heirs after the expiration of twenty-five years, and the payment or setting apart for the benefit of the tribes of two million dollars as the consideration for the surplus of land over and above the allotments which might be made to the Indians. It was provided that sundry named friends of the Indians (among such persons being the Indian agent and an army officer) "should each be entitled to all the benefits, in land only conferred under this agreement, the same as if members of said tribes." Eliminating 350,000 acres of mountainous land, the quantity of surplus lands suitable for farming and grazing purposes was estimated at 2,150,000 acres. Concerning the payment to be made for these surplus lands, the commission, in their report to the President announcing the termination of the negotiations, said (Senate Ex.Doc. No. 17, second session, 52d Congress): "In this connection, it is proper to add that the commission agreed with the Indians to incorporate the following in their report, which is now done:" "The Indians upon this reservation seem to believe (but whether from an exercise of their own judgment or from the advice of others the commission cannot determine) that their surplus land is worth two and one-half million dollars, and Congress may be induced to give them that much for it. Therefore, in compliance with their request, we report that they desire to be heard through an attorney and a delegation to Washington upon that question, the agreement signed, however, to be effective upon ratification no matter what Congress may do with their appeal for the extra half million dollars." In transmitting the agreement to the Secretary of the Interior, the Commissioner of Indian Affairs said: "The price paid, while considerably in excess of that paid Page 187 U. S. 556 to the Cheyennes and Arapahoes, seems to be fair and reasonable, both to the government and the Indians, the land being doubtless of better quality than that in the Cheyenne and Arapahoe reservation." Attention was directed to the provision in the agreement in favor of the Indian agent and an army officer, and it was suggested that to permit them to avail thereof would establish a bad precedent. Soon after the signing of the foregoing agreement it was claimed by the Indians that their assent had been obtained by fraudulent misrepresentations of its terms by the interpreters, and it was asserted that the agreement should not be held binding upon the tribes because three-fourths of the adult male members had not assented thereto, as was required by the twelfth article of the Medicine Lodge treaty. Obviously, in consequence of the policy embodied in section 2079 of the Revised Statutes, departing from the former custom of dealing with Indian affairs by treaty and providing for legislative action on such subjects, various bills were introduced in both Houses of Congress designed to give legal effect to the agreement made by the Indians in 1892. These bills were referred to the proper committee, and before such committees the Indians presented their objections to the propriety of giving effect to the agreement. (H.R.Doc. No. 431, 55th Congress, second session.) In 1898, the Committee on Indian Affairs of the House of Representatives unanimously reported a bill for the execution of the agreement made with the Indians. The report of the committee recited that a favorable conclusion had been reached by the committee "after the fullest hearings from delegations of the Indian tribes and all parties at interest." (H.R.Doc. No. 419, first session, 56th Congress, p. 5.) The bill thus reported did not exactly conform to the agreement as signed by the Indians. It modified the agreement by changing the time for making the allotments, and it also provided that the proceeds of the surplus lands remaining after allotments to the Indians should be held to await the judicial decision of a claim asserted by the Choctaw and Chickasaw Page 187 U. S. 557 tribes of Indians to the surplus lands. This claim was based upon a treaty made in 1866, by which the two tribes ceded the reservation in question, it being contended that the lands were impressed with a trust in favor of the ceding tribes, and that, whenever the reservation was abandoned, so much of it as was not allotted to the confederated Indians of the Comanche, Kiousa, and Apache tribes reverted to the Choctaws and Chickasaws. The bill just referred to passed the House of Representatives on May 16, 1898. (31st Cong.Rec. p. 4947.) When the bill reached the Senate that body, on January 25, 1899, adopted a resolution calling upon the Secretary of the Interior for information as to whether the signatures attached to the agreement comprised three-fourths of the male adults of the tribes. In response the Secretary of the Interior informed the Senate, under date of January 28, 1899, that the records of the department "failed to show a census of these Indians for the year 1892," but that "from a roll used in making a payment to them in January and February, 1893, it appeared that there were 725 males over eighteen years of age, of whom 639 were twenty-one years and over." The Secretary further called attention to the fact that, by the agreement of 1892 a right of selection was conferred upon each member of the tribes over eighteen years of age, and observed: "If 18 years and over be held to be the legal age of those who were authorized to sign the agreement, the number of persons who actually signed was 87 less than three-fourths of the adult male membership of the tribes, and if 21 years be held to be the minimum age, then 23 less than three-fourths signed the agreement. In either event, less than three-fourths of the male adults appear to have so signed." With this information before it, the bill was favorably reported by the Committee on Indian Affairs of the Senate, but did not pass that body. At the first session of the following Congress (the Fifty-sixth), bills were introduced in both the Senate and House of Representatives substantially like that which has just been noticed. (Senate, 1352; H.R. 905.) Page 187 U. S. 558 In the meanwhile, about October, 1899, the Indians had at a general council at which 571 male adults of the tribes purported to be present, protested against the execution of the provisions of the agreement of 1892, and adopted a memorial to Congress praying that that body should not give effect to the agreement. This memorial was forwarded to the Secretary of the Interior by the Commissioner of Indian Affairs with lengthy comments, pointing out the fact that the Indians claimed that their signatures to the agreement had been procured by fraud, and that the legal number of Indians had not signed the agreement, and that the previous bills and bills then pending contemplated modification of the agreement in important particulars without the consent of the Indians. This communication from the Commissioner of Indian Affairs, together with the memorial of the Indians, were transmitted by the Secretary of the Interior to Congress. Senate Doc. No. 76; H.R.Doc. No. 333; first session, Fifty-sixth Congress. Attention was called to the fact that, although by the agreement of October 6, 1892, one-half of each allotment was contemplated to be agricultural land, there was only sufficient agricultural land in the entire reservation to average thirty acres per Indian. After setting out the charges of fraud and complaints respecting the proposed amendments designed to be made to the agreement, as above stated, particular complaint was made of the provision in the agreement of 1892 as to allotments in severalty among the Indians of lands for agricultural purposes. After reciting that the tribal lands were not adapted to such purposes, but were suitable for grazing, the memorial proceeded as follows: "We submit that the provision for lands to be allotted to us under this treaty are insufficient, because it is evident we cannot, on account of the climate of our section, which renders the maturity of crops uncertain, become a successful farming community; that we or whoever else occupies these lands will have to depend upon the cattle industry for revenue and support. And we therefore pray, if we cannot be granted the privilege of keeping our reservation under the treaty made with us in 1868, and known as the Medicine Lodge treaty, that authority Page 187 U. S. 559 be granted for the consideration of a new treaty that will make the allowance of land to be allotted to us sufficient for us to graze upon it enough stock cattle, the increase from which we can market for support of ourselves and families." With the papers just referred to before it, the House Committee on Indian Affairs, in February, 1900, favorably reported a bill to give effect to the agreement of 1892. On January 19, 1900, an act was passed by the Senate entitled "An Act to Ratify an Agreement Made with the Indians of the Fort Hall Indian Reservation in Idaho, and Making an Appropriation to Carry the Same into Effect." In February, 1900, the House Committee on Indian Affairs, having before it the memorial of the Indians transmitted by the Secretary of the Interior, and also having for consideration the Senate bill just alluded to, reported that bill back to the House favorably, with certain amendments. (H.R.Doc. No. 419, 56th Congress, first session.) One of such amendments consisted in adding to the bill in question, as section 6, a provision to execute the agreement made with the Kiousa, Comanche, and Apache Indians in 1892. Although the bill thus reported embodied the execution of the agreement last referred to, the title of the bill was not changed, and consequently referred only to the execution of the agreement made with the Indians of the Fort Hall reservation in Idaho. The provisions thus embodied in section 6 of the bill in question substantially conformed to those contained in the bill which had previously passed the House, except that the previous enactment on this subject was changed so as to do away with the necessity for making to each Indian one-half of his allotment in agricultural land and the other half in grazing land. In addition, a clause was inserted in the bill providing for the setting apart of a large amount of grazing land to be used in common by the Indians. The provision in question was as follows: "That in addition to the allotment of lands to said Indians as provided for in this agreement, the Secretary of the Interior shall set aside for the use in common for said Indian tribes four hundred and eighty thousand acres of grazing lands, to be Page 187 U. S. 560 selected by the Secretary of the Interior, either in one or more tracts as will best subserve the interest of said Indians." The provision of the agreement in favor of the Indian agent and army officer was also eliminated. The bill, moreover, exempted the money consideration for the surplus lands from all claims for Indian depredations, and expressly provided that in the event the claim of the Choctaws and Chickasaws was ultimately sustained, the consideration referred to should be subject to the further action of Congress. In this bill, as in previous ones, provision was made for allotments to the Indians, the opening of the surplus land for settlement, etc. The bill became a law by concurrence of the Senate in the amendments adopted by the House as just stated. Thereafter, by acts approved on January 4, 1901, 31 Stat. 727, c. 8, March 3, 1901, 31 Stat. 1078, c. 832, and March 3, 1901, 31 Stat. 1093, c. 846, authority was given to extend the time for making allotments and opening of the surplus land for settlement for a period not exceeding eight months from December 6, 1900; appropriations were made for surveys in connection with allotments and setting apart of grazing lands, and authority was conferred to establish counties and county seats, townsites, etc., and proclaim the surplus lands open for settlement by white people. On June 6, 1901, a bill was filed on the equity side of the Supreme Court of the District of Columbia, wherein Lone Wolf (one of the appellants herein) was named as complainant, suing for himself as well as for all other members of the confederated tribes of the Kiousa, Comanche, and Apache Indians, residing in the Territory of Oklahoma. The present appellees (the Secretary of the Interior, the Commissioner of Indian Affairs and the Commissioner of the General Land Office) were made respondents to the bill. Subsequently, by an amendment to the bill, members of the Kiousa, Comanche, and Apache tribes were joined with Lone Wolf as parties complainant. The bill recited the establishing and occupancy of the reservation in Oklahoma by the confederated tribes of Kiousas, Comanches, and Apaches, the signing of the agreement of October 6, 1892, and the subsequent proceedings which have been detailed, Page 187 U. S. 561 culminating in the passage of the Act of June 6, 1900, and the act of Congress supplementary to said act. In substance, it was further charged in the bill that the agreement had not been signed as required by the Medicine Lodge treaty -- that is, by three-fourths of the male adult members of the bribe -- and that the signatures thereto had been obtained by fraudulent misrepresentations and concealment, similar to those recited in the memorial signed at the 1899 council. In addition to the grievance previously stated in the memorial, the charge was made that the interpreters falsely represented, when the said treaty was being considered by the Indians, that the treaty provided "for the sale of their surplus lands at some time in the future at the price of $2.50 per acre," whereas, in truth and in fact "by the terms of said treaty, only $1.00 an acre is allowed for said surplus lands," which sum, it was charged, was an amount far below the real value of said lands. It was also averred that portions of the signed agreement had been changed by Congress without submitting such changes to the Indians for their consideration. Based upon the foregoing allegations, it was alleged that so much of said act of Congress of June 6, 1900, and so much of said acts supplementary thereto and amendatory thereof as provided for the taking effect of said agreement, the allotment of certain lands mentioned therein to members of said Indian tribes, the surveying, laying out, and platting townsites and locating county seats on said lands, and the ceding to the United States and the opening to settlement by white men of two million acres of said lands, were enacted in violation of the property rights of the said Kiousa, Comanche, and Apache Indians, and if carried into effect would deprive said Indians of their lands without due process of law, and that said parts of said acts were contrary to the Constitution of the United States, and were void, and conferred no right, power, or duty upon the respondents to do or perform any of the acts or things enjoined or required by the acts of Congress in question. Alleging the intention of the respondents to carry into effect the aforesaid claimed unconstitutional and void acts, and asking discovery by answers to interrogatories propounded to the respondents, the allowance of a temporary restraining order, and a final decree Page 187 U. S. 562 awarding a perpetual injunction, was prayed, to restrain the commission by the respondents of the alleged unlawful acts by them threatened to be done. General relief was also prayed. On January 6, 1901, a rule to show cause why a temporary injunction should not be granted was issued. In response to this rule, an affidavit of the Secretary of the Interior was filed in which, in substance, it was averred that the complainant (Lone Wolf) and his wife and daughter had selected allotments under the Act of June 6, 1900, and the same had been approved by the Secretary of the Interior, and that all other members of the tribes excepting twelve had also accepted and retained allotments in severalty, and that the greater part thereof had been approved before the bringing of this suit. It was also averred that the 480,000 acres of grazing land provided to be set apart, in the Act of June 6, 1900, for the use by the Indians in common, had been so set apart prior to the institution of the suit, "with the approval of a council composed of chiefs and headmen of said Indians." Thereupon an affidavit verified by Lone Wolf was filed in which in effect he denied that he had accepted an allotment of lands under the Act of June 6, 1900, and the acts supplementary to and amendatory thereof. Thereafter, on June 17, 1901, leave was given to amend the bill and the same was amended, as heretofore stated, by adding additional parties complainant and by providing a substituted first paragraph of the bill, in which was set forth, among other things, that the three tribes at a general council held on June 7, 1901, had voted to institute all legal and other proceedings necessary to be taken, to prevent the carrying into effect of the legislation complained of. The Supreme Court of the District, on June 21, 1901, denied the application for a temporary injunction. The cause was thereafter submitted to the court on a demurrer to the bill as amended. The demurrer was sustained, and the complainants electing of appeals of the District. While this appeal was pending, the President issued a proclamation, dated July 4, 1901 (32 Stat.Appx. Proclamations, 11), in which it was Page 187 U. S. 563 ordered that the surplus lands ceded by the Comanche, Kiousa, and Apache and other tribes of Indians should be opened to entry and settlement on August 6, 1901. Among other things, it was recited in the proclamation that all the conditions required by law to be performed prior to the opening of the lands to settlement and entry had been performed. It was also therein recited that, in pursuance of the act of Congress ratifying the agreement, allotments of land in severalty had been regularly made to each member of the Comanche, Kiousa, and Apache tribes of Indians; the lands occupied by religious societies or other organizations for religious or educational work among the Indians had been regularly allotted and confirmed to such societies and organizations, respectively, and the Secretary of the Interior, out of the lands ceded by the agreement, had regularly selected and set aside for the use in common for said Comanche, Kiousa, and Apache tribes of Indians four hundred and eighty acres of grazing lands. The Court of Appeals (without passing on a motion which had been made to dismiss the appeal) affirmed the decree of the court below, and overruled a motion for reargument. 19 App.D.C. 315. An appeal was allowed, and the decree of affirmance is now here for review. MR. JUSTICE WHITE delivered the opinion of the Court. By the sixth article of the first of the two treaties referred to in the preceding statement, proclaimed on August 25, 1868, 15 Stat. 581, it was provided that heads of families of the tribes affected by the treaty might select, within the reservation, a tract of land of not exceeding 320 acres in extent, which should thereafter cease to be held in common, and should be for the exclusive possession of the Indian making the selection Page 187 U. S. 564 so long as he or his family might continue to cultivate the land. The twelfth article reads as follows: "Article 12. No treaty for the cession of any portion or part of the reservation herein in described, which may be held in common, shall be of any validity or force as against the said Indians unless executed and signed by at least three-fourths of all the adult male Indians occupying the same, and no cession by the tribe shall be understood or construed in such manner as to deprive, without his consent, any individual member of the tribe of his rights to any tract of land selected by him as provided in article III (VI) of this treaty." The appellants base their right to relief on the proposition that, by the effect of the article just quoted, the confederated tribes of Kiousas, Comanches, and Apaches were vested with an interest in the lands held in common within the reservation, which interest could not be divested by Congress in any other mode than that specified in the said twelfth article, and that, as a result of the said stipulation, the interest of the Indians in the common lands fell within the protection of the Fifth Amendment to the Constitution of the United States, and such interest -- indirectly, at least -- came under the control of the judicial branch of the government. We are unable to yield our assent to this view. The contention in effect ignores the status of the contracting Indians and the relation of dependency they bore and continue to bear towards the government of the United States. To uphold the claim would be to adjudge that the indirect operation of the treaty was to materially limit and qualify the controlling authority of Congress in respect to the care and protection of the Indians, and to deprive Congress, in a possible emergency, when the necessity might be urgent for a partition and disposal of the tribal lands, of all power to act, if the assent of the Indians could not be obtained. Now it is true that, in decisions of this Court, the Indian right of occupancy of tribal lands, whether declared in a treaty or otherwise created, has been stated to be sacred, or, as sometimes expressed, as sacred as the fee of the United States in the same lands. Johnson v. McIntosh , (1823) 8 Wheat. 543, 21 U. S. 574 ; Page 187 U. S. 565 Cherokee Nation v. Georgia , (1831) 5 Pet. 1, 30 U. S. 48 ; Worcester v. Georgia , (1832) 6 Pet. 515, 31 U. S. 581 ; United States v. Cook , (1873) 19 Wall. 591, 86 U. S. 592 ; Leavenworth &c. R. Co. v. United States, (1875) 92 U. S. 733 , 92 U. S. 755 ; Beecher v. Wetherby, (1877) 95 U. S. 525 . But in none of these cases was there involved a controversy between Indians and the government respecting the power of Congress to administer the property of the Indians. The questions considered in the cases referred to, which either directly or indirectly had relation to the nature of the property rights of the Indians, concerned the character and extent of such rights as respected states or individuals. In one of the cited cases, it was clearly pointed out that Congress possessed a paramount power over the property of the Indians by reason of its exercise of guardianship over their interests, and that such authority might be implied, even though opposed to the strict letter of a treaty with the Indians. Thus, in Beecher v. Wetherby, 95 U. S. 525 , discussing the claim that there had been a prior reservation of land by treaty to the use of a certain tribe of Indians, the Court said (p. 95 U. S. 525 ): "But the right which the Indians held was only that of occupancy. The fee was in the United States, subject to that right, and could be transferred by them whenever they chose. The grantee, it is true, would take only the naked fee, and could not disturb the occupancy of the Indians; that occupancy could only be interfered with or determined by the United States. It is to be presumed that in this matter the United States would be governed by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race. Be that is it may, the propriety or justice of their action towards the Indians with respect to their lands is a question of governmental policy, and is not a matter open to discussion in a controversy between third parties, neither of whom derives title from the Indians." Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government. Until the year 1871, the policy was pursued of dealing with the Page 187 U. S. 566 Indian tribes by means of treaties, and, of course, a moral obligation rested upon Congress to act in good faith in performing the stipulations entered into on its behalf. But, as with treaties made with foreign nations, Chinese Exclusion Case, 130 U. S. 581 , 130 U. S. 600 , the legislative power might pass laws in conflict with treaties made with the Indians. Thomas v. Gay, 169 U. S. 264 , 169 U. S. 270 ; Ward v. Race Horse, 163 U. S. 504 , 163 U. S. 511 ; Spalding v. Chandler, 160 U. S. 394 , 160 U. S. 405 ; Missouri, Kansas & Texas Ry. Co. v. Roberts, 152 U. S. 114 , 152 U. S. 117 ; Cherokee Tobacco , 11 Wall. 616. The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so. When, therefore, treaties were entered into between the United States and a tribe of Indians, it was never doubted that the power to abrogate existed in Congress, and that, in a contingency, such power might be availed of from considerations of governmental policy, particularly if consistent with perfect good faith towards the Indians. In United States v. Kagama, (1885) 118 U. S. 375 , speaking of the Indians, the Court said (p. 118 U. S. 382 ): "After an experience of a hundred years of the treatymaking system of government Congress has determined upon a new departure -- to govern them by acts of Congress. This is seen in the Act of March 3, 1871, embodied in section 2079 of the Revised Statutes:" "No Indian nation or tribe, within the territory of the United States, shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty; but no obligation of any treaty lawfully made and ratified with any such Indian nation or tribe prior to March third, eighteen hundred and seventy-one, shall be hereby invalidated or impaired." In upholding the validity of an act of Congress which conferred jurisdiction upon the courts of the United States for certain crimes committed on an Indian reservation within a state, the Court said (p. 118 U. S. 383 ): Page 187 U. S. 567 "It seems to us that this is within the competency of Congress. These Indian tribes are the wards of the nation. They are communities dependent on the United States. Dependent largely for their daily food. Dependent for their political rights. They own no allegiance to the states, and receive from them no protection. Because of the local ill feeling, the people of the states where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the federal government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the executive and by Congress, and by this Court, whenever the question has arisen." " * * * *" "The power of the general government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. It must exist in that government, because it never has existed anywhere else, because the theater of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes." That Indians who had not been fully emancipated from the control and protection of the United States are subject at least so far as the tribal lands were concerned, to be controlled by direct legislation of Congress, is also declared in Choctaw Nation v. United States, 119 U. S. 1 , 119 U. S. 27 , and Stephens v. Choctaw Nation, 174 U. S. 445 , 174 U. S. 483 . In view of the legislative power possessed by Congress over treaties with the Indians and Indian tribal property, we may not specially consider the contentions pressed upon our notice that the signing by the Indians of the agreement of October 6, 1892, was obtained by fraudulent misrepresentations, and concealment, that the requisite three-fourths of adult male Indians had not signed, as required by the twelfth article of the treaty of 1867, and that the treaty as signed had been amended by Congress without submitting such amendments to the action Page 187 U. S. 568 of the Indians since all these matters, in any event, were solely within the domain of the legislative authority, and its action is conclusive upon the courts. The Act of June 6, 1900, which is complained of in the bill, was enacted at a time when the tribal relations between the confederated tribes of Kiousas, Comanches, and Apaches still existed, and that statute and the statutes supplementary thereto dealt with the disposition of tribal property, and purported to give an adequate consideration for the surplus lands not allotted among the Indians or reserved for their benefit. Indeed, the controversy which this case presents is concluded by the decision in Cherokee Nation v. Hitchcock, 187 U. S. 294 , where it was held that full administrative power was possessed by Congress over Indian tribal property. In effect, the action of Congress now complained of was but an exercise of such power, a mere change in the form of investment of Indian tribal property, the property of those who, as we have held, were in substantial effect the wards of the government. We must presume that Congress acted in perfect good faith in the dealings with the Indians of which complaint is made, and that the legislative branch of the government exercised its best judgment in the premises. In any event, as Congress possessed full power in the matter, the judiciary cannot question or inquire into the motives which prompted the enactment of this legislation. If injury was occasioned, which we do not wish to be understood as implying, by the use made by Congress of its power, relief must be sought by an appeal to that body for redress, and not to the courts. The legislation in question was constitutional, and the demurrer to the bill was therefore rightly sustained. The motion to dismiss does not challenge jurisdiction over the subject matter. Without expressly referring to the propositions of fact upon which it proceeds, suffice it to say that we think it need not be further adverted to, since, for the reasons previously given and the nature of the controversy, we think the decree below should be Affirmed. MR. JUSTICE HARLAN concurs in the result.

In Lone Wolf v. Hitchcock, the Supreme Court ruled that Congress has plenary power over Native American tribal relations and lands, and that its actions are not subject to judicial review. The Court found that the legislative branch has full authority to deal with treaties and tribal property, and its decisions are presumed to be made in good faith. In this case, Congress's disposition of tribal lands through the 1900 Act was deemed constitutional, even though it did not meet the requirements of a previous treaty. The Court affirmed the dismissal of the bill, upholding Congress's power in matters relating to Native American tribes and their property.

Powers of Congress

Selective Draft Law Cases

https://supreme.justia.com/cases/federal/us/245/366/

U.S. Supreme Court Selective Draft Law Cases, 245 U.S. 366 (1918) Selective Draft Law Cases Nos. 663, 664, 665, 666, 681, 769 Argued December 13, 14, 1917 Decided January 7, 1918 245 U.S. 366 |>* 245 U.S. 366 ERROR TO THE DISTRICT COURTS OF THE UNITED STATES FOR THE DISTRICT OF MINNESOTA AND THE SOUTHERN DISTRICT OF NEW YORK Syllabus The grant to Congress of power to raise and support armies, considered in conjunction with the grants of the powers to declare war, to make rules for the government and regulation of the land and naval forces, and to make laws necessary and proper for executing granted powers (Constitution, Art. I, § 8), includes the power to compel military service, exercised by the Selective Draft Law of May 18, 1917, c. 15, 40 Stat. 76. This conclusion, obvious upon the face of the Constitution, is confirmed by an historical examination of the subject. The army power, combining the powers vested in the Congress and the States under the Confederation, embraces the complete military power of government, as is manifested not only by the grant made, but by the express limitation of Art. I, § 10, prohibiting the States, without the consent of Congress, from keeping troops in time of peace or engaging in war. The militia power reserved to the States by the militia clause (Art. I, § 8), while separate and distinct in its field, and while serving to diminish occasion for exercising the army power, is subject to be restricted in, or even deprived of, its area of operation through the army power, according to the extent to which Congress, in its discretion, finds necessity for calling the latter into play. The service which may be exacted of the citizen under the army power is not limited to the specific purposes for which Congress is Page 245 U. S. 367 expressly authorized, by the militia clause, to call the militia; the presence in the Constitution of such express regulations affords no basis for an inference that the army power, when exerted, is not complete and dominant to the extent of its exertion. Compelled military service is neither repugnant to a free government nor in conflict with the constitutional guaranties of individual liberty. Indeed, it may not be doubted that the very conception of a just government and its duty to the citizen includes the duty of the citizen to render military service in case of need, and the right of the government to compel it. The power of Congress to compel military service as in the Selective Draft Law, clearly sustained by the original Constitution, is even more manifest under the Fourteenth Amendment, which, as frequently has been pointed out, broadened the national scope of the government by causing citizenship of the United States to be paramount and dominant, instead of being subordinate and derivative, thus operating generally upon the powers conferred by the Constitution. The constitutionality of the Selective Draft Law also is upheld against the following objections: (1) That, by some of its administrative features, it delegates federal power to state officials; (2) that it vests both legislative and judicial power in administrative officers; (3) that, by exempting ministers of religion and theological students under certain conditions and by relieving from strictly military service members of certain religious sects whose tenets deny the moral right to engage in war, it is repugnant to the First Amendment, as establishing or interfering with religion, and (4) that it creates involuntary servitude in violation of the Thirteenth Amendment. Affirmed. The cases are stated in the opinion. Page 245 U. S. 375 MR. CHIEF JUSTICE WHITE delivered the opinion of the court. We are here concerned with some of the provisions of the Act of May 18, 1917, c. 15, 40 Stat. 76, entitled "An Act to authorize the President to increase temporarily the Military Establishment of the United States." The law, as its opening sentence declares, was intended to supply temporarily the increased military force which was required by the existing emergency, the war then and now flagrant. The clauses we must pass upon and those which will throw light on their significance are briefly summarized: The act proposed to raise a national army, first by increasing the regular force to its maximum strength and there maintaining it; second, by incorporating into such army the members of the National Guard and National Guard Reserve already in the service of the United States (Act of Congress of June 3, 1916, c. 134, 39 Stat. 211) and maintaining their organizations to their full strength; third, by giving the President power, in his discretion, to organize by volunteer enlistment four divisions of infantry; fourth, by subjecting all male citizens between the ages of twenty-one and thirty to duty in the national army for the period of the existing emergency after the proclamation of the President announcing the necessity for their service, and, fifth, by providing for Page 245 U. S. 376 selecting from the body so called, on the further proclamation of the President, 500,000 enlisted men and a second body of the same number, should the President in his discretion deem it necessary. To carry out its purposes, the act made it the duty of those liable to the call to present themselves for registration on the proclamation of the President, so as to subject themselves to the terms of the act, and provided full federal means for carrying out the selective draft. It gave the President, in his discretion, power to create local boards to consider claims for exemption for physical disability or otherwise made by those called. The act exempted from subjection to the draft designated United States and state officials, as well as those already in the military or naval service of the United States, regular or duly ordained ministers of religion and theological students under the conditions provided for, and, while relieving from military service in the strict sense the members of religious sects as enumerated whose tenets excluded the moral right to engage in war, nevertheless subjected such persons to the performance of service of a noncombatant character to be defined by the President. The proclamation of the President calling the persons designated within the ages described in the statute was made, and the plaintiffs in error, who were in the class and, under the statute, were obliged to present themselves for registration and subject themselves to the law, failed to do so, and were prosecuted under the statute for the penalties for which it provided. They all defended by denying that there had been conferred by the Constitution upon Congress the power to compel military service by a selective draft, and asserted that, even if such power had been given by the Constitution to Congress, the terms of the particular act for various reasons caused it to be beyond the power and repugnant to the Constitution. The cases are here for review because of the constitutional Page 245 U. S. 377 questions thus raised, convictions having resulted from instructions of the courts that the legal defences were without merit, and that the statute was constitutional. The possession of authority to enact the statute must be found in the clauses of the Constitution giving Congress power "to declare war; . . . to raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; . . . to make rules for the government and regulation of the land and naval forces." Article I, § 8. And, of course, the powers conferred by these provisions, like all other powers given, carry with them, as provided by the Constitution, the authority "to make ah laws which shall be necessary and proper for carrying into execution the foregoing powers." Article I, § 8. As the mind cannot conceive an army without the men to compose it, on the face of the Constitution, the objection that it does not give power to provide for such men would seem to be too frivolous for further notice. It is said, however, that since, under the Constitution as originally framed, state citizenship was primary, and United States citizenship but derivative and dependent thereon, therefore the power conferred upon Congress to raise armies was only coterminous with United States citizenship, and could not be exerted so as to cause that citizenship to lose its dependent character and dominate state citizenship. But the proposition simply denies to Congress the power to raise armies which the Constitution gives. That power, by the very terms of the Constitution being delegated, is supreme. Article VI. In truth, the contention simply assails the wisdom of the framers of the Constitution in conferring authority on Congress, and in not retaining it as it was under the Confederation in the several States. Further, it is said, the right to provide is not denied by calling for volunteer enlistments, but it does not and Page 245 U. S. 378 cannot include the power to exact enforced military duty by the citizen. This however but challenges the existence of all power, for a governmental power which has no sanction to it and which therefore can only be exercised provided the citizen consents to its exertion is in no substantial sense a power. It is argued, however, that, although this is abstractly true, it is not concretely so, because, as compelled military service is repugnant to a free government and in conflict with all the great guarantees of the Constitution as to individual liberty, it must be assumed that the authority to raise armies was intended to be limited to the right to call an army into existence counting alone upon the willingness of the citizen to do his duty in time of public need, that is, in time of war. But the premise of this proposition is so devoid of foundation that it leaves not even a shadow of ground upon which to base the conclusion. Let us see if this is not at once demonstrable. It may not be doubted that the very conception of a just government and its duty to the citizen includes the reciprocal obligation of the citizen to render military service in case of need, and the right to compel it. Vattel, Law of Nations, Book III, c. 1 & 2. To do more than state the proposition is absolutely unnecessary in view of the practical illustration afforded by the almost universal legislation to that effect now in force. [ Footnote 1 ] In England, it is certain that, before the Page 245 U. S. 379 Norman Conquest, the duty of the great militant body of the citizens was recognized and enforceable. Blackstone, Book I, c. 13. It is unnecessary to follow the long controversy between Crown and Parliament as to the branch of the government in which the power resided, since there never was any doubt that it somewhere resided. So also, it is wholly unnecessary to explore the situation for the purpose of fixing the sources whence, in England, it came to be understood that the citizen or the force organized from the militia as such could not, without their consent, be compelled to render service in a foreign country, since there is no room to contend that such principle ever rested upon any challenge of the right of Parliament to impose compulsory duty upon the citizen to perform military duty wherever the public exigency exacted, whether at home or abroad. This is exemplified by the present English Service Act. [ Footnote 2 ] In the Colonies before the separation from England, there cannot be the slightest doubt that the right to enforce military service was unquestioned, and that practical effect was given to the power in many cases. Indeed, Page 245 U. S. 380 the brief of the Government contains a list of Colonial acts manifesting the power and its enforcement in more than two hundred cases. And this exact situation existed also after the separation. Under the Articles of Confederation, it is true Congress had no such power, as its authority was absolutely limited to making calls upon the States for the military forces needed to create and maintain the army, each State being bound for its quota as called. But it is indisputable that the States, in response to the calls made upon them, met the situation when they deemed it necessary by directing enforced military service on the part of the citizens. In fact, the duty of the citizen to render military service and the power to compel him against his consent to do so was expressly sanctioned by the constitutions of at least nine of the States, an illustration being afforded by the following provision of the Pennsylvania constitution of 1776. "That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expense of that protection, and yield his personal service when necessary, or an equivalent thereto." Art. 8, (Thorpe, American Charters, Constitutions and Organic Laws, vol. 5, pp. 3081, 3083). [ Footnote 3 ] While it is true that the States were sometimes slow in exerting the power in order to fill their quotas -- a condition shown by resolutions of Congress calling upon them to comply by exerting their compulsory power to draft and by earnest requests by Washington to Congress that a demand be made upon the States to Page 245 U. S. 381 resort to drafts to fill their quotas [ Footnote 4 ] -- that fact serves to demonstrate, instead of to challenge, the existence of the authority. A default in exercising a duty may not be resorted to as a reason for denying its existence. When the Constitution came to be formed, it may not be disputed that one of the recognized necessities for its adoption was the want of power in Congress to raise an army and the dependence upon the States for their quotas. In supplying the power, it was manifestly intended to give it all, and leave none to the States, since, besides the delegation to Congress of authority to raise armies, the Constitution prohibited the States, without the consent of Congress, from keeping troops in time of peace or engaging in war. Article I, § 10. To argue that, as the state authority over the militia prior to the Constitution embraced every citizen, the right of Congress to raise an army should not be considered as granting authority to compel the citizen's service in the army is but to express in a different form the denial of the right to call any citizen to the army. Nor is this met by saying that it does not exclude the right of Congress to organize an army by voluntary enlistments, that is, by the consent of the citizens, for, if the proposition be true, the right of the citizen to give consent would be controlled by the same prohibition which would deprive Congress of the right to compel unless it can be said that, although Congress had not the right to call because of state authority, the citizen had a right to obey the call and set aside state authority if he pleased to do so. And a like conclusion demonstrates the want of foundation for the contention that, although it be within the power to call the citizen into the army without his consent, the army into which he enters after the call is to be limited Page 245 U. S. 382 in some respects to services for which the militia, it is assumed, may only be used, since this admits the appropriateness of the call to military service in the army and the power to make it, and yet destroys the purpose for which the call is authorized -- the raising of armies to be under the control of the United States. The fallacy of the argument results from confounding the constitutional provisions concerning the militia with that conferring upon Congress the power to raise armies. It treats them as one, while they are different. This is the militia clause: "The Congress shall have power . . . To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions; To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress." Article I, § 8. The line which separates it from the army power is not only inherently plainly marked by the text of the two clauses, but will stand out in bolder relief by considering the condition before the Constitution was adopted and the remedy which it provided for the military situation with which it dealt. The right, on the one hand, of Congress under the Confederation to call on the States for forces, and the duty, on the other, of the States to furnish when called, embraced the complete power of government over the subject. When the two were combined and were delegated to Congress, all governmental power on that subject was conferred, a result manifested not only by the grant made, but by the limitation expressly put upon the States on the subject. The army sphere therefore embraces such complete authority. But the duty of exerting the power thus conferred in all its plenitude was not Page 245 U. S. 383 made at once obligatory, but was wisely left to depend upon the discretion of Congress as to the arising of the exigencies which would call it in part or in whole into play. There was left, therefore, under the sway of the States undelegated, the control of the militia to the extent that such control was not taken away by the exercise by Congress of its power to raise armies. This did not diminish the military power or curb the full potentiality of the right to exert it, but left an area of authority requiring to be provided for (the militia area) unless and until, by the exertion of the military power of Congress, that area had been circumscribed or totally disappeared. This, therefore, is what was dealt with by the militia provision. It diminished the occasion for the exertion by Congress of its military power beyond the strict necessities for its exercise by giving the power to Congress to direct the organization and training of the militia (evidently to prepare such militia in the event of the exercise of the army power), although leaving the carrying out of such command to the States. It further conduced to the same result by delegating to Congress the right to call, on occasions which were specified, for the militia force, thus again obviating the necessity for exercising the army power to the extent of being ready for every conceivable contingency. This purpose is made manifest by the provision preserving the organization of the militia so far as formed when called for such special purposes, although subjecting the militia when so called to the paramount authority of the United States. Tarble's Case , 13 Wallace, 397, 80 U. S. 408 . But because, under the express regulations, the power was given to call for specified purposes without exerting the army power, it cannot follow that the latter power, when exerted, was not complete to the extent of its exertion and dominant. Because the power of Congress to raise armies was not required to be exerted to its full limit, but only as in the discretion of Congress it was deemed the public Page 245 U. S. 384 interest required, furnishes no ground for supposing that the complete power was lost by its partial exertion. Because, moreover, the power granted to Congress to raise armies in its potentiality was susceptible of narrowing the area over which the militia clause operated affords no ground for confounding the two areas which were distinct and separate to the end of confusing both the powers, and thus weakening or destroying both. And, upon this understanding of the two powers, the legislative and executive authority has been exerted from the beginning. From the act of the first session of Congress carrying over the army of the Government under the Confederation to the United States under the Constitution (Act of September 29, 1789, c. 25, 1 Stat. 95) down to 1812, the authority to raise armies was regularly exerted as a distinct and substantive power, the force being raised and recruited by enlistment. Except for one act formulating a plan by which the entire body of citizens (the militia) subject to military duty was to be organized in every State (Act of May 8, 1792, c. 33, 1 Stat. 271) which was never carried into effect, Congress confined itself to providing for the organization of a specified number distributed among the States according to their quota, to be trained as directed by Congress and to be called by the President as need might require. [ Footnote 5 ] When the War of 1812 came, the result of these two forces composed the army to be relied upon by Congress to carry on the war. Either because it proved to be weak in numbers or because of insubordination developed among the forces called and manifested by their refusal to cross the border, [ Footnote 6 ] Page 245 U. S. 385 the Government determined that the exercise of the power to organize an army by compulsory draft was necessary, and Mr. Monroe, the Secretary of War (Mr. Madison being President), in a letter to Congress, recommended several plans of legislation on that subject. It suffices to say that by each of them it was proposed that the United States deal directly with the body of citizens subject to military duty, and call a designated number out of the population between the ages of 18 and 45 for service in the army. The power which it was recommended be exerted was clearly an unmixed federal power dealing with the subject from the sphere of the authority given to Congress to raise armies, and not from the sphere of the right to deal with the militia as such, whether organized or unorganized. A bill was introduced giving effect to the plan. Opposition developed, but we need not stop to consider it, because it substantially rested upon the incompatibility of compulsory military service with free government, a subject which, from what we have said, has been disposed of. Peace came before the bill was enacted. Down to the Mexican War, the legislation exactly portrayed the same condition of mind which we have previously stated. In that war, however, no draft was suggested, because the army created by the United States immediately resulting from the exercise by Congress of its power to raise armies, that organized under its direction from the militia and the volunteer commands which were furnished, proved adequate to carry the war to a successful conclusion. So the course of legislation from that date to 1861 affords no ground for any other than the same conception of legislative power which we have already stated. In that year, when the mutterings of the dread conflict which was to come began to be heard and the Proclamation of the President calling a force into existence was issued, it Page 245 U. S. 386 was addressed to the body organized out of the militia and trained by the States in accordance with the previous acts of Congress. (Proclamation of April 15, 1861, 12 Stat. 1258.) That force being inadequate to meet the situation, an act was passed authorizing the acceptance of 500,000 volunteers by the President to be by him organized into a national army. (Act of July 22, 1861, c. 9, 12 Stat. 268.) This was soon followed by another act increasing the force of the militia to be organized by the States for the purpose of being drawn upon when trained under the direction of Congress (Act of July 29, 1861, c. 25, 12 Stat. 281), the two acts, when considered together, presenting in the clearest possible form the distinction between the power of Congress to raise armies and its authority under the militia clause. But it soon became manifest that more men were required. As a result, the Act of March 3, 1863, c. 75, 12 Stat. 731, was adopted, entitled "An Act for enrolling and calling out the National Forces and for other purposes." By that act, which was clearly intended to directly exert upon all the citizens of the United States the national power which it had been proposed to exert in 1814 on the recommendation of the then Secretary of War, Mr. Monroe, every male citizen of the United States between the ages of twenty and forty-five was made subject by the direct action of Congress to be called by compulsory draft to service in a national army at such time and in such numbers as the President in his discretion might find necessary. In that act, as in the one of 1814 and in this one, the means by which the act was to be enforced were directly federal, and the force to be raised as a result of the draft was therefore typically national, as distinct from the call into active service of the militia as such. And under the power thus exerted, four separate calls for draft were made by the President and enforced, that of July, 1863, of February and March, 1864, of July and December, Page 245 U. S. 387 1864, producing a force of about a quarter of a million men. [ Footnote 7 ] It is undoubted that the men thus raised by draft were treated as subject to direct national authority and were used either in filling the gaps occasioned by the vicissitudes of war in the ranks of the existing national forces or for the purpose of organizing such new units as were deemed to be required. It would be childish to deny the value of the added strength which was thus afforded. Indeed, in the official report of the Provost Marshal General, just previously referred to in the margin, reviewing the whole subject, it was stated that it was the efficient aid resulting from the forces created by the draft at a very critical moment of the civil strife which obviated a disaster which seemed impending, and carried that struggle to a complete and successful conclusion. Brevity prevents doing more than to call attention to the fact that the organized body of militia within the States as trained by the States under the direction of Congress became known as the National Guard (Act of January 21, 1903, c. 196, 32 Stat. 775; National Defense Act of June 3, 1916, c. 134, 39 Stat. 211). And, to make further preparation from among the great body of the citizens, an additional number to be determined by the President was directed to be organized and trained by the States as the National Guard Reserve. (National Defense Act, supra. ) Thus, sanctioned as is the act before us by the text of the Constitution and by its significance as read in the light of the fundamental principles with which the subject is concerned, by the power recognized and carried into effect in many civilized countries, by the authority and practice of the colonies before the Revolution, of the States under the Confederation, and of the Government Page 245 U. S. 388 since the formation of the Constitution, the want of merit in the contentions that the act in the particulars which we have been previously called upon to consider was beyond the constitutional power of Congress is manifest. Cogency, however, if possible, is added to the demonstration by pointing out that, in the only case to which we have been referred where the constitutionality of the Act of 1863 was contemporaneously challenged on grounds akin to, if not absolutely identical with, those here urged, the validity of the act was maintained for reasons not different from those which control our judgment. ( Kneedler v. Lane, 45 Pa.St. 238.) And as further evidence that the conclusion we reach is but the inevitable consequence of the provisions of the Constitution as effect follows cause, we briefly recur to events in another environment. The seceding States wrote into the constitution which was adopted to regulate the government which they sought to establish, in identical words, the provisions of the Constitution of the United States which we here have under consideration. And when the right to enforce under that instrument a selective draft law which was enacted, not differing in principle from the one here in question, was challenged, its validity was upheld, evidently after great consideration, by the courts of Virginia, of Georgia, of Texas, of Alabama, of Mississippi, and of North Carolina, the opinions in some of the cases copiously and critically reviewing the whole grounds which we have stated. Burroughs v. Peyton, 16 Gratt. 470; Jeffers v. Fair, 33 Georgia, 347; Daly and Fitzgerald v. Harris, 33 Ga. (Supp.) 38, 54; Barber v. Irwin, 34 Georgia, 27; Parker v. Kaughman, 34 Georgia, 136; Ex parte Coupland, 26 Texas, 386; Ex parte Hill, 38 Alabama, 429; In re Emerson, 39 Alabama, 437; In re Pille, 39 Alabama, 459; Simmons v. Miller, 40 Mississippi 19; Gatlin v. Walton, 60 N.Car. 333, 408. In reviewing the subject, we have hitherto considered Page 245 U. S. 389 it, as it has been argued, from the point of view of the Constitution as it stood prior to the adoption of the Fourteenth Amendment. But to avoid all misapprehension, we briefly direct attention to that Amendment for the purpose of pointing out, as has been frequently done in the past, [ Footnote 8 ] how completely it broadened the national scope of the Government under the Constitution by causing citizenship of the United States to be paramount and dominant, instead of being subordinate and derivative, and therefore, operating as it does upon all the powers conferred by the Constitution, leaves no possible support for the contentions made, if their want of merit was otherwise not so clearly made manifest. It remains only to consider contentions which, while not disputing power, challenge the act because of the repugnancy to the Constitution supposed to result from some of its provisions. First, we are of opinion that the contention that the act is void as a delegation of federal power to state officials because of some of its administrative features is too wanting in merit to require further notice. Second, we think that the contention that the statute is void because vesting administrative officers with legislative discretion has been so completely adversely settled as to require reference only to some of the decided cases. Field v. Clark, 143 U. S. 649 ; Buttfield v. Stranahan, 192 U. S. 470 ; Intermountain Rate Cases, 234 U. S. 476 ; First National Bank v. Union Trust Co., 244 U. S. 416 . A like conclusion also adversely disposes of a similar claim concerning the conferring of judicial power. Buttfield v. Stranahan, 192 U. S. 470 , 192 U. S. 497 ; West v. Hitchcock, 205 U. S. 80 ; Oceanic Steam Navigation Co. v. Stranahan, 214 U. S. 320 , 214 U. S. 338 -340; Zakonaite v. Wolf, 226 U. S. 272 , 226 U. S. 275 . And we pass without anything but statement Page 245 U. S. 390 the proposition that an establishment of a religion or an interference with the free exercise thereof repugnant to the First Amendment resulted from the exemption clauses of the act to which we at the outset referred, because we think its unsoundness is too apparent to require us to do more. Finally, as we are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation, as the result of a war declared by the great representative body of the people, can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment, we are constrained to the conclusion that the contention to that effect is refuted by its mere statement. Affirmed. | 245 U.S. 366 | * The docket titles of these cases are: Arver v. United States, No. 663, Grahl v. United States, No. 664, Otto Wangerin v. United States, No. 665, Walter Wangerin v. United States, No. 666, in error to the District Court of the United States for the District of Minnesota; Kramer v. United States, No. 681, Graubard v. United States, No. 769, in error to the District Court of the United States for the Southern District of New York. [ Footnote 1 ] In the argument of the Government, it is stated: "The Stateman's Year-book for 1917 cites the following governments as enforcing military service: Argentine Republic, p. 656; Austria-Hungary, p. 667; Belgium, p. 712; Brazil, p. 738; Bulgaria, p. 747; Bolivia, p. 728; Colombia, p. 790; Chile, p. 754; China, p. 770; Denmark, p. 811; Ecuador, p. 820; France, p. 841; Greece, p. 1001; Germany, p. 914; Guatemala, p. 1009; Honduras, p. 1018; Italy, p. 1036; Japan, p. 1064; Mexico, p. 1090; Montenegro, p. 1098; Netherlands, p. 1119; Nicaragua, p. 1142; Norway, p. 1152; Peru, p. 1191; Portugal, p. 1201; Roumania, p. 1220; Russia, p. 1240; Serbia, p. 1281; Siam, p. 1288; Spain, p. 1300; Switzerland, p. 1337; Salvador, p. 1270; Turkey, p. 1353." See also the recent Canadian conscription act, entitled, "Military Service Act" of August 27, 1917, expressly providing for service abroad (printed in the Congressional Record of September 20, 1917, 55th Cong.Rec. p. 7959); the Conscription Law of the Orange Free State, Law No. 10, 1899, Military Service and Commando Law, sections 10 and 28, Laws of Orange River Colony, 1901, p. 855; of the South African Republic, "De Locale Wetten en Volksraadsbesluiten der Zuid-Afr. Republick," 1898, Law No. 20, pp. 230, 233, article 6, 28; Constitution, German Empire, April 16, 1871, Art. 57, 59, Dodd, 1 Modern Constitutions, p. 344; Gesetz, betreffend Aenderungen der Wehrpflicht, vom 11 Feb. 1888, No. 1767, Reichs-Gesetzblatt, p. 11, amended by law of July 22, 1913, No. 4264, RGBI., p. 593; Loi sur le recrutement de l'armee of 15 July, 1889 (Duvergier, vol. 89, p. 440), modified by act of 21 March, 1905 (Duvergier, vol. 105, p. 133). [ Footnote 2 ] Military Service Act, January 27, 1916, 5 and 6 George V, c. 104, p. 367, amended by the Military Service Act of May 25, 1916, 2nd session, 6 and 7, George V, c. 15, p. 33. [ Footnote 3 ] See also Constitution of Vermont, 1777, c. 1, Art. 9 (Thorpe, vol. 6, pp. 4747, 3740); New York, 1777, Art. 40 ( id., vol. 5, p. 2637); Massachusetts Bill of Rights, 1780, Art. 10 ( id., vol. 3, p. 1891); New Hampshire, 1784, pt. 1, Bill of Rights, Art. 12 ( id., vol. 4, p. 2455); Delaware, 1776, Art. 9 ( id., vol. 1, pp. 562, 564); Maryland, 1776, Art. 33 ( id., vol. 3, pp. 1686, 1696); Virginia, 1776, Militia ( id., vol. 7, p. 3817); Georgia, 1777, Art. 33, 35 ( id., vol. 2, pp. 777, 782). [ Footnote 4 ] Journals of Congress, Ford's ed., Library of Congress, vol. 7, pp. 262, 263; vol. 10, pp. 199, 200; vol. 13, p. 299. 7 Sparks, Writings of Washington, pp. 162, 167, 442, 444. [ Footnote 5 ] Act of May 9, 1794, c. 27, 1 Stat. 367; Act of February 28, 1795, c. 36, 1 Stat. 424; Act of June 24, 1797, c. 4, 1 Stat. 522; Act of March 3, 1803, c. 32, 2 Stat. 241; Act of April 18, 1806, c. 32, 2 Stat. 383; Act of March 30, 1808, c. 39, 2 Stat. 478; Act of April 10, 1812, c. 55, 2 Stat. 705. [ Footnote 6 ] Upton, Military Policy of the United States, pp. 99 ct seq. [ Footnote 7 ] Historical Report, Enrollment Branch, Provost Marshal General's Bureau, March 17, 1866. [ Footnote 8 ] Slaughter House Cases , 16 Wall. 36, 83 U. S. 72 -74, 83 U. S. 94 -95, 112-113; United States v. Cruikshank, 92 U. S. 542 , 92 U. S. 549 ; Boyd v. Thayer, 143 U. S. 135 , 143 U. S. 140 ; McPherson v. Blacker, 146 U. S. 1 , 146 U. S. 37 .

The Selective Draft Law Cases (1918) upheld the constitutionality of the Selective Draft Law of 1917, which allowed the federal government to compel military service. The Supreme Court ruled that the power to raise and support armies, granted to Congress by the Constitution, includes the authority to require citizens to serve in the military during times of need. This power, known as the "army power," is separate and distinct from the "militia power" reserved to the states and can restrict or override the latter when necessary. The Court also noted that compelled military service is consistent with the principles of a free government and individual liberty, and that citizenship carries with it the duty to render military service when required. This decision affirmed the federal government's authority to draft citizens into military service during times of national emergency or war.

Powers of Congress

Hammer v. Dagenhart

https://supreme.justia.com/cases/federal/us/247/251/

U.S. Supreme Court Hammer v. Dagenhart, 247 U.S. 251 (1918) Hammer v. Dagenhart No. 704 Argued April 15, 16, 1918 Decided June 3, 1918 247 U.S. 251 APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF NORTH CAROLINA Syllabus The Act of September 1, 1916, c. 432, 39 Stat. 675, prohibits transportation in interstate commerce of goods made at a factory in which, within thirty days prior to their removal therefrom, children under the age of 14 years have been employed or permitted to work, or children between the ages of 14 and 16 years have been employed or permitted to work more than eight hours in any day, or more than six days in any week, or after the hour of 7 P.M. or before the hour of 6 A.M. Held, unconstitutional as exceeding the commerce power of Congress and invading the powers reserved to the States. The power to regulate interstate commerce is the power to prescribe the rule by which the commerce is to be governed; in other words, to control the means by which it is carried on. The court has never sustained a right to exclude save in cases where the character of the particular things excluded was such as to bring them peculiarly within the governmental authority of the State or Nation and render their exclusion, in effect, but a regulation of interstate transportation, necessary to prevent the accomplishment through that means of the evils inherent in them. The manufacture of goods is not commerce, nor do the facts that they are intended for, and are afterwards shipped in, interstate commerce make their production a part of that commerce subject to the control of Congress. The power to regulate interstate commerce was not intended as a means of enabling Congress to equalize the economic conditions in the States for the prevention of unfair competition among them by forbidding the interstate transportation of goods made under conditions which Congress deems productive of unfairness. It was not intended as an authority to Congress to control the States in the exercise of their police power over local trade and manufacture, always existing and expressly reserved to them by the Tenth Amendment. Affirmed. Page 247 U. S. 252 The case is stated in the opinion. Page 247 U. S. 268 MR. JUSTICE DAY delivered the opinion of the court. A bill was filed in the United States District Court for the Western District of North Carolina by a father in his own behalf and as next friend of his two minor sons, one under the age of fourteen years and the other between the ages of fourteen and sixteen years, employees in a cotton mill at Charlotte, North Carolina, to enjoin the enforcement of the act of Congress intended to prevent interstate commerce in the products of child labor. Act of Sept. 1, 1916, c. 432, 39 Stat. 675. The District Court held the act unconstitutional and entered a decree enjoining its enforcement. This appeal brings the case here. The first section of the act is in the margin. * Page 247 U. S. 269 Other sections of the act contain provisions for its enforcement and prescribe penalties for its violation. The attack upon the act rests upon three propositions: first: it is not a regulation of interstate and foreign commerce; second: it contravenes the Tenth Amendment to the Constitution; third: it conflicts with the Fifth Amendment to the Constitution. The controlling question for decision is: is it within the authority of Congress in regulating commerce among the States to prohibit the transportation in interstate commerce of manufactured goods, the product of a factory in which, within thirty days prior to their removal therefrom, children under the age of fourteen have been employed or permitted to work, or children between the ages of fourteen and sixteen years have been employed or permitted to work more than eight hours in any day, or more than six days in any week, or after the hour of seven o'clock P.M. or before the hour of 6 o'clock A.M.? The power essential to the passage of this act, the Government contends, is found in the commerce clause of the Constitution, which authorizes Congress to regulate commerce with foreign nations and among the States. In Gibbons v. Ogden , 9 Wheat. 1, Chief Justice Marshall, speaking for this court and defining the extent and nature of the commerce power, said, "It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed." In other words, the power is one to control the means by which commerce is carried on, which is Page 247 U. S. 270 directly the contrary of the assumed right to forbid commerce from moving, and thus destroy it as to particular commodities. But it is insisted that adjudged cases in this court establish the doctrine that the power to regulate given to Congress incidentally includes the authority to prohibit the movement of ordinary commodities, and therefore that the subject is not open for discussion. The cases demonstrate the contrary. They rest upon the character of the particular subjects dealt with, and the fact that the scope of governmental authority, state or national, possessed over them is such that the authority to prohibit is as to them but the exertion of the power to regulate. The first of these cases is Champion v. Ames, 188 U. S. 321 , the so-called Lottery Case, in which it was held that Congress might pass a law having the effect to keep the channels of commerce free from use in the transportation of tickets used in the promotion of lottery schemes. In Hipolite Egg Co. v. United States, 220 U. S. 45 , this court sustained the power of Congress to pass the Pure Food and Drug Act, which prohibited the introduction into the States by means of interstate commerce of impure foods and drugs. In Hoke v. United States, 227 U. S. 308 , this court sustained the constitutionality of the so-called "White Slave Traffic Act," whereby the transportation of a woman in interstate commerce for the purpose of prostitution was forbidden. In that case, we said, having reference to the authority of Congress, under the regulatory power, to protect the channels of interstate commerce: "If the facility of interstate transportation can be taken away from the demoralization of lotteries, the debasement of obscene literature, the contagion of diseased cattle or persons, the impurity of food and drugs, the like facility can be taken away from the systematic enticement to and the enslavement in prostitution and debauchery of women, and, more insistently, of girls. " Page 247 U. S. 271 In Caminetti v. United States, 242 U. S. 470 , we held that Congress might prohibit the transportation of women in interstate commerce for the purposes of debauchery and kindred purposes. In Clark Distilling Co. v. Western Maryland Ry. Co., 242 U. S. 311 , the power of Congress over the transportation of intoxicating liquors was sustained. In the course of the opinion, it was said: "The power conferred is to regulate, and the very terms of the grant would seem to repel the contention that only prohibition of movement in interstate commerce was embraced. And the cogency of this is manifest, since, if the doctrine were applied to those manifold and important subjects of interstate commerce as to which Congress from the beginning has regulated, not prohibited, the existence of government under the Constitution would be no longer possible." And, concluding the discussion which sustained the authority of the Government to prohibit the transportation of liquor in interstate commerce, the court said: ". . . the exceptional nature of the subject here regulated is the basis upon which the exceptional power exerted must rest, and affords no ground for any fear that such power may be constitutionally extended to things which it may not, consistently with the guarantees of the Constitution, embrace." In each of these instances, the use of interstate transportation was necessary to the accomplishment of harmful results. In other words, although the power over interstate transportation was to regulate, that could only be accomplished by prohibiting the use of the facilities of interstate commerce to effect the evil intended. This element is wanting in the present case. The thing intended to be accomplished by this statute is the denial of the facilities of interstate commerce to those manufacturers in the States who employ children within the prohibited ages. The act, in its effect, does not regulate Page 247 U. S. 272 transportation among the States, but aims to standardize the ages at which children may be employed in mining and manufacturing within the States. The goods shipped are, of themselves, harmless. The act permits them to be freely shipped after thirty days from the time of their removal from the factory. When offered for shipment, and before transportation begins, the labor of their production is over, and the mere fact that they were intended for interstate commerce transportation does not make their production subject to federal control under the commerce power. Commerce "consists of intercourse and traffic, and includes the transportation of persons land property, as well as the purchase, sale and exchange of commodities." The making of goods and the mining of coal are not commerce, nor does the fact that these things are to be afterwards shipped or used in interstate commerce make their production a part thereof. Delaware, Lackawanna & Western R.R. Co. v. Yurkonis, 238 U. S. 439 . Over interstate transportation or its incidents, the regulatory power of Congress is ample, but the production of articles intended for interstate commerce is a matter of local regulation. "When the commerce begins is determined not by the character of the commodity, nor by the intention of the owner to transfer it to another state for sale, nor by his preparation of it for transportation, but by its actual delivery to a common carrier for transportation, or the actual commencement of its transfer to another state." (Mr. Justice Jackson in In re Green, 52 Fed.Rep. 113.) This principle has been recognized often in this court. Coe v. Errol, 116 U. S. 517 ; Bacon v. Illinois, 227 U. S. 504 , and cases cited. If it were otherwise, all manufacture intended for interstate shipment would be brought under federal control to the practical exclusion of the authority of the States, a result certainly not contemplated by the Page 247 U. S. 273 framers of the Constitution when they vested in Congress the authority to regulate commerce among the States. Kidd v. Pearson, 128 U. S. 1 , 128 U. S. 21 . It is further contended that the authority of Congress may be exerted to control interstate commerce in the shipment of child-made goods because of the effect of the circulation of such goods in other States where the evil of this class of labor has been recognized by local legislation, and the right to thus employ child labor has been more rigorously restrained than in the State of production. In other words, that the unfair competition thus engendered may be controlled by closing the channels of interstate commerce to manufacturers in those States where the local laws do not meet what Congress deems to be the more just standard of other States. There is no power vested in Congress to require the States to exercise their police power so as to prevent possible unfair competition. Many causes may cooperate to give one State, by reason of local laws or conditions, an economic advantage over others. The Commerce Clause was not intended to give to Congress a general authority to equalize such conditions. In some of the States, laws have been passed fixing minimum wages for women, in others, the local law regulates the hours of labor of women in various employments. Business done in such States may be at an economic disadvantage when compared with States which have no such regulations; surely, this fact does not give Congress the power to deny transportation in interstate commerce to those who carry on business where the hours of labor and the rate of compensation for women have not been fixed by a standard in use in other States and approved by Congress. The grant of power to Congress over the subject of interstate commerce was to enable it to regulate such commerce, and not to give it authority to control the Page 247 U. S. 274 States in their exercise of the police power over local trade and manufacture. The grant of authority over a purely federal matter was not intended to destroy the local power always existing and carefully reserved to the States in the Tenth Amendment to the Constitution. Police regulations relating to the internal trade and affairs of the States have been uniformly recognized as within such control. "This," said this court in United States v. Dewitt , 9 Wall. 41, 76 U. S. 45 , "has been so frequently declared by this court, results so obviously from the terms of the Constitution, and has been so fully explained and supported on former occasions that we think it unnecessary to enter again upon the discussion." See Keller v. United States, 213 U. S. 138 , 213 U. S. 144 , 213 U. S. 145 , 213 U. S. 146 . Cooley's Constitutional Limitations, 7th ed., p. 11. In the judgment which established the broad power of Congress over interstate commerce, Chief Justice Marshall said (9 Wheat. 22 U. S. 203 ): "They [inspection laws] act upon the subject before it becomes an article of foreign commerce, or of commerce among the states, and prepare it for that purpose. They form a portion of that immense mass of legislation which embraces everything within the territory of a state not surrendered to the general government, all which can be most advantageously exercised by the states themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a state and those which respect turnpike roads, ferries, &c., are component parts of this mass." And in Dartmouth College v. Woodward , 4 Wheat. 518, 17 U. S. 629 , the same great judge said: "That the framers of the constitution did not intend to restrain the states in the regulation of their civil institutions, adopted for internal government, and that Page 247 U. S. 275 the instrument they have given us is not to be so construed may be admitted." That there should be limitations upon the right to employ children in mines and factories in the interest of their own and the public welfare, all will admit. That such employment is generally deemed to require regulation is shown by the fact that the brief of counsel states that every State in the Union has a law upon the subject, limiting the right to thus employ children. In North Carolina, the State wherein is located the factory in which the employment was had in the present case, no child under twelve years of age is permitted to work. It may be desirable that such laws be uniform, but our Federal Government is one of enumerated powers; "this principle," declared Chief Justice Marshall in McCulloch v. Maryland , 4 Wheat. 316, "is universally admitted." A statute must be judged by its natural and reasonable effect. Collins v. New Hampshire, 171 U. S. 30 , 171 U. S. 33 , 171 U. S. 34 . The control by Congress over interstate commerce cannot authorize the exercise of authority not entrusted to it by the Constitution. Pipe Line Cases, 234 U. S. 548 , 234 U. S. 560 . The maintenance of the authority of the States over matters purely local is as essential to the preservation of our institutions, as is the conservation of the supremacy of the federal power in all matters entrusted to the Nation by the Federal Constitution. In interpreting the Constitution, it must never be forgotten that the Nation is made up of States to which are entrusted the powers of local government. And to them and to the people the powers not expressly delegated to the National Government are reserved. Lane County v. Oregon , 7 Wall. 71, 74 U. S. 76 . The power of the States to regulate their purely internal affairs by such laws as seem wise to the local authority is inherent, and has never been surrendered to the general government. Page 247 U. S. 276 New York v. Miln , 11 Pet. 102, 36 U. S. 139 ; Slaughter House Cases , 16 Wall. 36, 83 U. S. 63 ; Kidd v. Pearson, supra. To sustain this statute would not be, in our judgment, a recognition of the lawful exertion of congressional authority over interstate commerce, but would sanction an invasion by the federal power of the control of a matter purely local in its character, and over which no authority has been delegated to Congress in conferring the power to regulate commerce among the States. We have neither authority nor disposition to question the motives of Congress in enacting this legislation. The purposes intended must be attained consistently with constitutional limitations, and not by an invasion of the powers of the States. This court has no more important function than that which devolves upon it the obligation to preserve inviolate the constitutional limitations upon the exercise of authority, federal and state, to the end that each may continue to discharge, harmoniously with the other, the duties entrusted to it by the Constitution. In our view, the necessary effect of this act is, by means of a prohibition against the movement in interstate commerce of ordinary commercial commodities, to regulate the hours of labor of children in factories and mines within the States, a purely state authority. Thus, the act in a two-fold sense is repugnant to the Constitution. It not only transcends the authority delegated to Congress over commerce, but also exerts a power as to a purely local matter to which the federal authority does not extend. The far-reaching result of upholding the act cannot be more plainly indicated than by pointing out that, if Congress can thus regulate matters entrusted to local authority by prohibition of the movement of commodities in interstate commerce, all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and, thus, our system of government be practically destroyed. Page 247 U. S. 277 For these reasons, we hold that this law exceeds the constitutional authority of Congress. It follows that the decree of the District Court must be Affirmed. * "That no producer, manufacturer, or dealer shall ship or deliver for shipment in interstate or foreign commerce any article or commodity the product of any mine or quarry, situated in the United States, in which within thirty days prior to the time of the removal of such product therefrom children under the age of sixteen years have been employed or permitted to work, or any article or commodity the product of any mill, cannery, workshop, factory, or manufacturing establishment, situated in the United States, in which within thirty days prior to the removal of such product therefrom children under the age of fourteen years have been employed or permitted to work, or children between the ages of fourteen years and sixteen years have been employed or permitted to work more than eight hours in any day, or more than six days in any week, or after the hour of seven o'clock postmeridian, or before the hour of six o'clock antemeridian." MR. JUSTICE HOLMES, dissenting. The single question in this case is whether Congress has power to prohibit the shipment in interstate or foreign commerce of any product of a cotton mill situated in the United States in which, within thirty days before the removal of the product, children under fourteen have been employed or children between fourteen and sixteen have been employed more than eight hours in a day, or more than six days in any week, or between seven in the evening and six in the morning. The objection urged against the power is that the States have exclusive control over their methods of production, and that Congress cannot meddle with them, and, taking the proposition in the sense of direct intermeddling, I agree to it, and suppose that no one denies it. But if an act is within the powers specifically conferred upon Congress, it seems to me that it is not made any less constitutional because of the indirect effects that it may have, however obvious it may be that it will have those effects, and that we are not at liberty upon such grounds to hold it void. The first step in my argument is to make plain what no one is likely to dispute -- that the statute in question is within the power expressly given to Congress if considered only as to its immediate effects, and that, if invalid, it is so only upon some collateral ground. The statute confines itself to prohibiting the carriage of certain goods in interstate or foreign commerce. Congress is given power to regulate such commerce in unqualified terms. It would not be argued today that the power to regulate does not include the power to prohibit. Regulation means the prohibition of something, and when interstate Page 247 U. S. 278 commerce is the matter to be regulated, I cannot doubt that the regulation may prohibit any part of such commerce that Congress sees fit to forbid. At all events, it is established by the Lottery Case and others that have followed it that a law is not beyond the regulative power of Congress merely because it prohibits certain transportation out and out. Champion v. Ames, 188 U. S. 321 , 188 U. S. 355 , 188 U. S. 359 , et seq. So I repeat that this statute, in its immediate operation, is clearly within the Congress' constitutional power. The question, then, is narrowed to whether the exercise of its otherwise constitutional power by Congress can be pronounced unconstitutional because of its possible reaction upon the conduct of the States in a matter upon which I have admitted that they are free from direct control. I should have thought that that matter had been disposed of so fully as to leave no room for doubt. I should have thought that the most conspicuous decisions of this Court had made it clear that the power to regulate commerce and other constitutional powers could not be cut down or qualified by the fact that it might interfere with the carrying out of the domestic policy of any State. The manufacture of oleomargarine is as much a matter of state regulation as the manufacture of cotton cloth. Congress levied a tax upon the compound when colored so as to resemble butter that was so great as obviously to prohibit the manufacture and sale. In a very elaborate discussion, the present Chief Justice excluded any inquiry into the purpose of an act which, apart from that purpose, was within the power of Congress. McCray v. United States, 195 U. S. 27 . As to foreign commerce see Weber v. Freed, 239 U. S. 325 , 239 U. S. 329 ; Brolan v. United States, 236 U. S. 216 , 236 U. S. 217 ; Buttfield v. Stranahan, 192 U. S. 470 . Fifty years ago, a tax on state banks the obvious purpose and actual effect of which was to drive them, or at least Page 247 U. S. 279 their circulation, out of existence was sustained although the result was one that Congress had no constitutional power to require. The Court made short work of the argument as to the purpose of the act. "The judicial cannot prescribe to the legislative department of the government limitations upon the exercise of its acknowledged powers." Veazie Bank v. Fenno , 8 Wall. 533. So it well might have been argued that the corporation tax was intended, under the guise of a revenue measure, to secure a control not otherwise belonging to Congress, but the tax was sustained, and the objection, so far as noticed, was disposed of by citing McCray v. United States. Flint v. Stone Tracy Co., 220 U. S. 107 . And to come to cases upon interstate commerce, notwithstanding United States v. E. C. Knight Co., 156 U. S. 1 , the Sherman Act has been made an instrument for the breaking up of combinations in restraint of trade and monopolies, using the power to regulate commerce as a foothold, but not proceeding because that commerce was the end actually in mind. The objection that the control of the States over production was interfered with was urged again and again, but always in vain. Standard Oil Co. v. United States, 221 U. S. 1 , 221 U. S. 68 , 221 U. S. 69 . United States v. American Tobacco Co., 221 U. S. 1 06, 221 U. S. 184 . Hoke v. United States, 227 U. S. 308 , 227 U. S. 321 , 227 U. S. 322 . See finally and especially Seven Cases of Eckman's Alterative v. United States, 239 U. S. 510 , 239 U. S. 514 , 239 U. S. 515 . The Pure Food and Drug Act which was sustained in Hipolite Egg Co. v. United States, 220 U. S. 45 , with the intimation that "no trade can be carried on between the States to which it [the power of Congress to regulate commerce] does not extend," 220 U. S. 57 , applies not merely to articles that the changing opinions of the time condemn as intrinsically harmful, but to others innocent in themselves, simply on the ground that the order for them was induced by a preliminary fraud. Weeks v. United States, 245 U. S. 618 . It does not matter whether the supposed Page 247 U. S. 280 evil precedes or follows the transportation. It is enough that, in the opinion of Congress, the transportation encourages the evil. I may add that, in the cases on the so-called White Slave Act, it was established that the means adopted by Congress as convenient to the exercise of its power might have the character of police regulations. Hoke v. United States, 227 U. S. 308 , 227 U. S. 323 . Caminetti v. United States, 242 U. S. 470 , 242 U. S. 492 . In Clark Distilling Co. v. Western Maryland R. Co., 242 U. S. 311 , 242 U. S. 328 , Leisy v. Hardin, 135 U. S. 100 , 135 U. S. 108 , is quoted with seeming approval to the effect that "a subject matter which has been confided exclusively to Congress by the Constitution is not within the jurisdiction of the police power of the State unless placed there by congressional action. I see no reason for that proposition not applying here." The notion that prohibition is any less prohibition when applied to things now thought evil I do not understand. But if there is any matter upon which civilized countries have agreed -- far more unanimously than they have with regard to intoxicants and some other matters over which this country is now emotionally aroused -- it is the evil of premature and excessive child labor. I should have thought that, if we were to introduce our own moral conceptions where in my opinion they do not belong, this was preeminently a case for upholding the exercise of all its powers by the United States. But I had thought that the propriety of the exercise of a power admitted to exist in some cases was for the consideration of Congress alone, and that this Court always had disavowed the right to intrude its judgment upon questions of policy or morals. It is not for this Court to pronounce when prohibition is necessary to regulation -- if it ever may be necessary -- to say that it is permissible as against strong drink, but not as against the product of ruined lives. Page 247 U. S. 281 The act does not meddle with anything belonging to the States. They may regulate their internal affairs and their domestic commerce as they like. But when they seek to send their products across the state line, they are no longer within their rights. If there were no Constitution and no Congress, their power to cross the line would depend upon their neighbors. Under the Constitution, such commerce belongs not to the States, but to Congress to regulate. It may carry out its views of public policy whatever indirect effect they may have upon the activities of the States. Instead of being encountered by a prohibitive tariff at her boundaries, the State encounters the public policy of the United States, which it is for Congress to express. The public policy of the United States is shaped with a view to the benefit of the nation as a whole. If, as has been the case within the memory of men still living, a State should take a different view of the propriety of sustaining a lottery from that which generally prevails, I cannot believe that the fact would require a different decision from that reached in Champion v. Ames. Yet, in that case, it would be said with quite as much force as in this that Congress was attempting to intermeddle with the State's domestic affairs. The national welfare, as understood by Congress, may require a different attitude within its sphere from that of some self-seeking State. It seems to me entirely constitutional for Congress to enforce its understanding by all the means at its command. MR. JUSTICE McKENNA MR. JUSTICE BRANDEIS and MR. JUSTICE CLARKE concur in this opinion.

In Hammer v. Dagenhart (1918), the U.S. Supreme Court ruled that a federal law prohibiting the interstate commerce of goods produced by child labor was unconstitutional. The Court held that the power to regulate interstate commerce does not extend to controlling the means of production and that the manufacture of goods is not commerce itself, even if those goods are later shipped across state lines. The Court also asserted that Congress's power to regulate interstate commerce was not intended to allow it to equalize economic conditions among states or to control state police power over local trade and manufacture, which are reserved to the states under the Tenth Amendment.

Powers of Congress

Prigg v. Pennsylvania

https://supreme.justia.com/cases/federal/us/41/539/

U.S. Supreme Court Prigg v. Pennsylvania, 41 U.S. 16 Pet. 539 539 (1842) Prigg v. Pennsylvania 41 U.S. (16 Pet.) 539 ERROR TO THE SUPREME COURT OF PENNSYLVANIA Syllabus A writ of error to the Supreme Court of Pennsylvania, brought under the twenty-fifth section of the Judiciary Act of 1789, to revise the judgment of that Court on a case involving the construction of the Constitution and laws of the United States. Edward Prigg, a citizen of the State of Maryland, was indicted for kidnapping in the Court of Oyer and Terminer of York County, Pennsylvania, for having forcibly taken and carried away from that county to the State of Maryland a negro woman named Margaret Morgan with the design and intention of her being held, sold, and disposed of as a slave for life, contrary to a statute of Pennsylvania passed on the twenty-sixth day of March, 1826. Edward Prigg pleaded not guilty, and the jury found a special verdict on which judgment was rendered for the Commonwealth of Pennsylvania. The case was removed to the Supreme Court of the State, and the judgment of the Court of Oyer and Terminer was pro forma affirmed, and the case was carried to the Supreme Court of the United States, the constitutionality of the law under which the indictment was found being denied by the counsel of the State of Maryland, which State had undertaken the defense for Edward Prigg and prosecuted the writ of error. The cause was brought to the Supreme Court, with the sanction of both the States of Maryland and Pennsylvania, with a view to have the questions in the case settled. Margaret Morgan was the slave for life, under the laws of Maryland, of Margaret Ashmore, a citizen of that State. In 1832, she escaped and fled from the State into Pennsylvania. Edward Prigg, having been duly appointed the agent and attorney of Margaret Ashmore and having obtained a warrant from a justice of the peace of York County, caused Margaret Morgan to be taken, as a fugitive from labor, by a constable of the State of Pennsylvania, before the magistrate, who refused to take cognizance of the case, and thereupon Edward Prigg carried her and her children into Maryland and delivered them to Margaret Ashmore. The children were born in Pennsylvania, one of them more than a year after Margaret Morgan had fled and escaped from Maryland. By the first section of the act of Assembly of Pennsylvania of 25th March, 1826, it is provided that if any person shall, by force and violence, take and carry away, or shall by fraud or false pretence attempt to take, carry away, or seduce any negro or mulatto from any part of the Commonwealth, with a design or intention of selling and disposing of, or keeping or detaining, such negro or mulatto as a slave or servant for life, or for any other term whatsoever, such person, and all persons aiding and abetting him, shall, on conviction thereof, be deemed guilty of a felony, and shall forfeit and pay a sum not less than five hundred nor more than three thousand dollars, and shall be sentenced to undergo a servitude for any term or terms of years not less than seven years nor exceeding twenty-one years, and shall be confined and kept at hard labor, &c. Other provisions are contained in the act, and it was passed in 1826, as declared in its title, to aid in carrying into effect the Constitution and laws of the United States relating to fugitives from labor, and, on the application to the legislature by commissioners from the State of Maryland, Page 41 U. S. 540 with a view to meet the supposed wishes of the State of Maryland on the subject of fugitive slaves, but it had failed to produce the good effects intended. By the Court: It will probably be found, when we look to the character of the Constitution of the United States itself, the objects which it seeks to attain, the powers which it confers, the duties which it enjoins, and the rights which it secures, as well as to the known historical fact that many of its provisions were matters of compromise of opposing interests and opinions, that no uniform rule of interpretation can be applied which may not allow, even if it does not positively demand, many modifications in its actual application to particular clauses. Perhaps the safest rule of interpretation, after all, will be found to be to look to the nature and objects of the particular powers, duties, and rights, with all the light and aids of contemporary history, and to give to the words of each just such operation, consistent with their legitimate meaning, as may fairly secure and attain the ends proposed. It is historically well known that the object of the clause in the Constitution of the United States relating to persons owing service and labor in one state escaping into other states was to secure to the citizens of the slaveholding States the complete right and title of ownership in their slaves as property in every State in the Union into which they might escape from the State where they were held in servitude. The full recognition of this right and title was indispensable to the security of this species of property in all the slaveholding States, and indeed was so vital to the preservation of their domestic interests and institutions that it cannot be doubted that it constituted a fundamental article without the adoption of which the Union could not have been formed. Its true design was to guard against the doctrines and principles prevailing in the non-slaveholding States by preventing them from intermeddling with or obstructing or abolishing the rights of the owners of slaves. By the general law of nations, no nation is bound to recognize the state of slavery as to foreign slaves within its territorial dominions when it is opposed to its own policy and institutions in favor of the subjects of other nations where slavery is recognized. If it does it, it is as a matter of comity, and not as a matter of international right. The state of slavery is deemed to be a mere municipal regulation founded upon and limited to the range of the territorial laws. The clause of the Constitution of the United States relating to fugitives from labor manifestly contemplates the existence of a positive unqualified right on the part of the owner of the slave which no state law or regulation can in any way qualify, regulate, control, or restrain. Any state law or regulation which interrupts, limits, delays, or postpones the rights of the owner to the immediate command of his service or labor operates pro tanto a discharge of the slave therefrom. The question can never be how much he is discharged from, but whether he is discharged from any by the natural or necessary operation of the state laws or state regulations. The question is not one of quantity or degree, but of withholding or controlling the incidents of a positive right. The owner of a fugitive slave has the same right to seize and take him in a State to which he has escaped or fled that he had in the State from which he escaped, and it is well known that this right to seizure or recapture is universally acknowledged in all the slaveholding States. The Court have not the slightest hesitation in holding that, under and in virtue of the Constitution, the owner of the slave is clothed with Page 41 U. S. 541 the authority in every State of the Union to seize and recapture his slave wherever he can do it without any breach of the peace or illegal violence. In this sense and to this extent, this clause in the Constitution may properly be said to execute itself, and to require no aid from legislation, state or national. The Constitution does not stop at a mere annunciation of the rights of the owner to seize his absconding or fugitive slave in the State to which he may have fled. If it had done so, it would have left the owner of the slave, in many cases, utterly without any adequate redress. The Constitution declares that the fugitive slave shall be delivered up on claim of the party to whom service or labor may be due. It is exceedingly difficult, if not impracticable, to read this language and not to feel that it contemplated some further remedial redress than that which might be administered at the hand of the owner himself. "A claim" is to be made. "A claim," in a just juridical sense, is a demand of some matter as of right, made by one person upon another to do or to forbear to do some act or thing as a matter of duty. It cannot well be doubted that the Constitution requires the delivery of the fugitive on the claim of the master, and the natural inference certainly is that the National Government is clothed with the appropriate authority and functions to enforce it. The fundamental principle applicable to all cases of this sort would seem to be that, where the end is required, the means are given, and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause relating to fugitive slaves is found in the national Constitution, and not in that of any State. It might well be deemed an unconstitutional exercise of the power of interpretation to insist that the States are bound to provide means to carry into effect the duties of the National Government nowhere delegated or entrusted to them by the Constitution. On the contrary, the natural, if not the necessary, conclusion is that the National Government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments, legislative, executive, or judiciary, as the case may require, to carry into effect all the rights and duties imposed upon it by the Constitution. A claim to a fugitive slave is a controversy in a case "arising under the Constitution of the United States" under the express delegation of judicial power given by that instrument. Congress, then, may call that power into activity for the very purpose of giving effect to the right, and, if so, then it may prescribe the mode and extent to which it shall be applied, and how and under what circumstances the proceedings shall afford a complete protection and guaranty of the right. The provisions of the sections of the act of Congress of 12th February, 1793, on the subject of fugitive slaves, as well as relative to fugitives from justice, cover both the subjects not because they exhaust the remedies which may be applied by Congress to enforce the rights if the provisions shall be found, in practice, not to attain the objects of the Constitution, but because they point out all the modes of attaining those objects which Congress have as yet deemed expedient and proper. If this is so, it would seem upon just principles of construction that the legislation of Congress, if constitutional, must supersede all state legislation upon the same subject, and, by necessary implication, prohibit it. For, if Congress have a constitutional power to regulate a particular subject, and they do actually regulate it is a given manner, Page 41 U. S. 542 and in a certain form, it cannot be that the state legislatures have a right to interfere. This doctrine was fully recognized in the case of Houston v. Moore , 5 Wheat. 1, 18 U. S. 21 -22. Where Congress have exclusive power over a subject, it is not competent for state legislation to add to the provisions of Congress on that subject. Congress have, on various occasions, exercised powers which were necessary and proper as means to carry into effect rights expressly given and duties expressly enjoined by the Constitution. The end being required, it has been deemed a just and necessary implication that the means to accomplish it are given also, or, in other words, that the power flows as a necessary means to accomplish the ends. The constitutionality of the act of Congress relating to fugitives from labor has been affirmed by the adjudications of the state tribunals, and by those of the Courts of the United States. If the question of the constitutionality of the law were one of doubtful construction, such long acquiescence in it, such contemporaneous expositions of it, and such extensive and uniform recognitions would, in the judgment of the Court, entitle the question to be considered at rest. Congress, the Executive, and the Judiciary have, upon various occasions, acted upon this as a sound and reasonable doctrine. Cited, Stuart v. Laird , 1 Cranch 299; Martin v. Hunter's Lessee , 1 Wheat. 304; Cohens v. Virginia , 6 Wheat. 264. The provisions of the act of 12th February, 1793, relative to fugitive slaves is clearly constitutional in all its leading provisions, and, indeed, with the exception of that part which confers authority on state magistrates, is free from reasonable doubt or difficulty. As to the authority so conferred on state magistrates, while a difference of opinion exists, and may exist on this point in different States, whether state magistrates are bound to act under it, none is entertained by the Court that state magistrates may, if they choose, exercise the authority unless prohibited by state legislation. The power of legislation in relation to fugitives from labor is exclusive in the National Legislature. Cited, Sturgis v. Crowninshield , 4 Wheat. 122, 17 U. S. 193 . The right to seize and retake fugitive slaves, and the duty to deliver them up, in whatever State of the Union they may be found is, under the Constitution, recognized as an absolute positive right and duty pervading the whole Union with an equal and supreme force uncontrolled and uncontrollable by state sovereignty or state legislation. The right and duty are coextensive and uniform in remedy and operation throughout the whole Union. The owner has the same security, and the same remedial justice, and the same exemption from state regulations and control, through however many State he may pass with the fugitive slave in his possession in transitu to his domicile. The Court are by no means to be understood in any manner whatever to doubt or to interfere with the police power belonging to the States in virtue of their general sovereignty. That police power extends over all subjects within the territorial limits of the States, and has never been conceded to the United States. It is wholly distinguishable from the right and duty secured by the provision of the Constitution relating to fugitive slaves, which is exclusively derived from the Constitution and obtains its whole efficiency therefrom. The Court entertain no doubt whatsoever that the States, in virtue of their general police power, possess full jurisdiction to arrest and restrain runaway slaves, and to remove them from their borders and otherwise to secure themselves against their depredations Page 41 U. S. 543 and evil example, as they certainly may do in cases of idlers, vagabonds, and paupers. The rights of the owners of fugitive slaves are in no just sense interfered with or regulated by such a course, and, in many cases, they may be promoted by the exercise of the police power. Such regulations can never be permitted to interfere with or obstruct the just rights of the owner to reclaim his slave derived from the Constitution of the United States or with the remedies prescribed by Congress to aid and enforce the same. The act of the Legislature of Pennsylvania upon which the indictment against Edward Prigg is founded is unconstitutional and void. It purports to punish as a public offense against the State the very act of seizing and removing a slave by his master which the Constitution of the United States was designed to justify and uphold. The defendant in error, Edward Prigg, with Nathan S. Bemis, Jacob Forward, and Stephen Lewis, Jr., were indicted by the grand jury of York county, Pennsylvania, for that, on the first day of April 1837, upon a certain negro woman, named Margaret Morgan, with force and violence, they made an assault, and with force and violence, feloniously did take and carry her away from the County of York, within the Commonwealth of Pennsylvania, to the State of Maryland, with a design and intention there to sell and dispose of the said Margaret Morgan, as and for a slave and servant for life. Edward Prigg, one of the defendants, having been arraigned, pleaded not guilty. The cause was tried before the court of quarter sessions of York county, on the 22d day of May 1839; and the jury found the following special verdict: "That, at a session of the General Assembly of the Commonwealth of Pennsylvania, holden at the City of Philadelphia, on the first day of March, 1780, the following law was passed and enacted, to-wit," " An act for the gradual abolition of slavery:" " 1. Sec. III. All persons, as well negroes and mulattoes, as others, who shall be born within this State shall not be deemed and considered as servants for life or slaves, and all servitude for life, or slavery of children, in consequence of slavery of their mothers, in the case of all children born within this State, from and after the passing of this act as aforesaid shall be and hereby is utterly taken away, extinguished and forever abolished." " 2. Sec. IV. Provided always, that every negro and mulatto Page 41 U. S. 544 child, born within this State, after the passing of this act as aforesaid (who would, in case this act had not been made, have been born a servant for years, or life, or a slave) shall be deemed to be, and shall be, by virtue of this act, the servant of such persons, or her or his assigns, who would, in such case, have been entitled to like relief, in case he or she shall be evilly treated by his or her master or mistress, and to like freedom dues and other privileges, as servants bound by indenture for four years are or may be entitled, unless the person to whom the service of any such child shall belong, shall abandon his or her claim to the same, in which case, the overseers of the poor of the city, or township or district, respectively, where such child shall be so abandoned shall, by indenture, bind out every child so abandoned as an apprentice for a time not exceeding the age hereinbefore limited for the service of such children." " 3. Sec. V. Every person who is, or shall be, the owner of any negro or mulatto slave or servants for life, or till the age of thirty-one years, now within this State, or his lawful attorney, shall, on or before the first day of November next, deliver or cause to be delivered in writing to the clerk of the peace of the county, or to the clerk of the court of sessions of the City of Philadelphia, in which he or she shall respectively inhabit, the name and surname, and occupation or profession, of such owner, and the name of the county and township, district or ward wherein he or she resideth; and also the name and names of any such slave and slaves, and servant and servants for life, and till the age of thirty-one years, within this State, who shall be such on the said first day of November next, from all other persons; which particulars shall, by said clerk of the sessions and clerk of the said city court, be entered in books to be provided for that purpose by the said clerks; and no negro or mulatto now within this State shall, from and after the said first day of November, be deemed a slave or servant for life, or till the age of thirty-one years, unless his or her name shall be entered as aforesaid on such records, except such negro or mulatto slaves and servants as are hereinafter excepted; the said clerk to be entitled to a fee of two dollars for each slave or servant so entered as aforesaid, from the treasury of the county, to be allowed to him in his accounts." " 4. Sec. VI. Provided always, that any person in whom the Page 41 U. S. 545 ownership or right to the service of any negro or mulatto shall be vested at the passing of this act, other than such as are hereinbefore excepted, his or her heirs, executors, administrators and assigns, and all and every of them, severally, shall be liable to the overseers of the poor of the city, township or district to which any such negro or mulatto shall become chargeable, for such necessary expense, with costs of suit thereon, as such overseers may be put to, through the neglect of the owner, master or mistress of such negro or mulatto, notwithstanding the name and other descriptions of such negro or mulatto shall not be entered and recorded as aforesaid, unless his or her master or owner shall, before such slave or servant obtain his or her twenty-eighth year, execute and record in the proper county, a deed or instrument securing to such slave or servant his or her freedom." " 6. Sec. VIII. In all cases wherein sentence of death shall be pronounced against a slave, the jury before whom he or she shall be tried shall appraise and declare the value of such slave, and in case such sentence be executed, the court shall make an order on the state treasurer, payable to the owner for the same, and for the costs of prosecution, but in case of remission or mitigation, for the costs only." " 7. Sec. IX. The reward for taking up runaway and absconding negro and mulatto slaves and servants, and the penalties for enticing away, dealing with, or harboring, concealing or employing negro and mulatto slaves and servants, shall be the same, and shall be recovered in like manner, as in case of servants bound for four years." " 8. Sec. X. No man or woman of any nation or color, except the negroes or mulattoes who shall be registered as aforesaid, shall at any time hereafter be deemed adjudged or holden within the territories of this Commonwealth as slaves or servants for life, but as free men and free women; except the domestic slaves attending upon delegates in Congress from the other American States, foreign ministers and consuls, and persons passing through or sojourning in this State, and not becoming resident therein, and seamen employed in ships not belonging to any inhabitant of this State, nor employed in any ship owned by any such inhabitant; provided, such domestic slaves shall not be alienated or sold to any inhabitant, nor (except in the case of members of Congress, Page 41 U. S. 546 foreign ministers and consuls) retained in this State longer than six months." " 9. Sec. XI. (Repealed 25th March, 1826.)" " Sec. XII. And whereas, attempts may be made to evade this act by introducing into this State negroes and mulattoes bound by covenant to serve for long and unreasonable terms of years if the same be not prevented: Therefore --" " 10. Sec. XIII. No covenant of personal servitude or apprenticeship whatsoever shall be valid or binding on a negro or mulatto for a longer time than seven years, unless such servant apprentice were at the commencement of such servitude or apprenticeship under the age of twenty-one years, in which case such negro or mulatto may be holden as a servant or apprentice, respectively, according to the covenant, as the case shall be, until he or she shall attain the age of twenty-eight years, but no longer." " Sec. XIV. That this act, or anything herein contained, shall not give any relief or shelter to any absconding or runaway negro or mulatto slave or servant who has absconded himself, or shall abscond himself, from his or her owner, master or mistress residing in any other State or country, but such owner, master or mistress shall have like right and aid to demand, claim, and take away his slave or servant as he might have had in case this act had not been made, and that all negro and mulatto slaves now owned and heretofore resident in other States who have absconded themselves or been clandestinely carried away, or who may be employed abroad as seamen, and have not absconded or been brought back to their owners, masters, or mistresses before the passing of this act may, within five years, be registered as effectually as is ordered by this act concerning those who are not within this State, on producing such slave before any two justices of the peace, and satisfying the said justices, by due proof, of his former residence, absconding, running away, or absence of such slaves as aforesaid, who thereupon shall direct and order the said slaves to be entered on the record as aforesaid." And the jurors further found, that, at a session of the General Assembly of the Commonwealth of Pennsylvania, holden at the City of Philadelphia, on the 29th day of March 1788, the Page 41 U. S. 547 following law was passed and enacted, "An act to explain and amend 'an act for the gradual abolition of slavery,'" "Sec. I. For preventing many evils and abuses arising from ill-disposed persons availing themselves of certain defects in the act for the gradual abolition of slavery, passed on the first day of March, in the year of our Lord 1780, be it enacted:" "Sec. II. The exception contained in the tenth section of the act of the first of March, 1780, relative to domestic slaves, attending upon persons passing through or sojourning in this State and not becoming resident therein, shall not be deemed or taken to extend to the slaves of such persons as are inhabitants of, or resident in, this State, or who shall come here, with an intention to settle and reside; but all and every slave or slaves who shall be brought into this State by persons inhabiting or residing therein or intending to inhabit or reside therein shall be immediately considered, deemed, and taken to be free to all intents and purposes." "Sec. III. No negro or mulatto slave, or servant for term of years (except as in the last exception of the tenth section of the said act, is excepted), shall be removed out of this State, with the design and intention that the place of abode or residence of such slave or servant shall be thereby altered or changed, or with the design and intention that such slave or servant, if a female and pregnant, shall be detained and kept out of this State till her delivery of the child of which she is or shall be pregnant, or with the design and intention that such slave or servant shall be brought again into this State, after the expiration of six months from the time of such slave or servant having been first brought into this State, without his or her consent, if of full age, testified upon a private examination, before two justices of the peace of the city or county in which he or she shall reside, or being under the age of twenty-one years, without his or her consent, testified in manner aforesaid, and also without the consent of his or her parents, if any such there be, to be testified in like manner aforesaid, whereof the said justices, or one of them, shall make a record, and deliver to the said slave or servant a copy thereof, containing the name, age, condition and the place of abode of such slave or servant, the reason of such removal, and the place to which he Page 41 U. S. 548 or she is about to go; and if any person or persons whatsoever shall sell or dispose of any such slave or servant, to any person out of this State, or shall send or carry, or cause to be sent or carried, any such slave or servant, out of this State for any of the purposes aforesaid, whereby such slave or servant would lose those benefits and privileges which by the laws of this State are secured to him or her, and shall not have obtained all such consent as by this act is required, testified in the manner before mentioned, every such person and persons, his and their aiders and abettors, shall severally forfeit and pay, for every such offense, the sum of seventy-five pounds, to be recovered in any court of record, by an action of debt, bill, plaint or information at the suit of any person who will sue for the same; one moiety thereof, when recovered, for the use of the plaintiff, the other moiety for the use of the poor of the city, township or place from which such slave or servant shall be taken and removed." "Sec. IV. All persons who now are, or hereafter shall be, possessed of any child or children, born after the first day of March, 1780, who would, by the said act, be liable to serve till the age of twenty-eight years, shall on or before the first day of April, 1789, or within six months next after the birth of any such child, deliver or cause to be delivered, in writing, to the clerk of the peace of the county, or the clerk of the court of record of the City of Philadelphia, in which they shall respectively inhabit, the name, surname, and occupation or profession of such possessor, and of the county, township, district or ward in which they reside, and also the age (to the best of his or her knowledge), name and sex of every such child or children, under the pain and penalty of forfeiting and losing all right and title to every such child and children, and of him, her or them immediately becoming free; which said return or account in writing shall be verified by the oath or affirmation of the party, which the said clerks are hereby respectively authorized and required to administer, and the said clerks shall make and preserve records thereof, copies and extracts of which shall be good evidence in all courts of justice, when certified under their hands and seals of office; for which oath or affirmation, and entry or extract, the said clerks shall be respectively entitled to one shilling and six-pence, and no more, Page 41 U. S. 549 to be paid by him or her, who shall so as aforesaid make such entry, or demand the extract aforesaid." "And whereas it has been represented to this House that vessels have been fitted out and equipped in this port for the iniquitous purpose of receiving and transporting the natives of Africa to places where they are held in bondage, and it is just and proper to discourage, as far as possible, such proceedings in future:" "Sec. V. If any person or persons shall build, fit, equip, man or otherwise prepare any such ship or vessel within any port of this State, or shall cause any ship or other vessel to sail from any port of this State for the purpose of carrying on a trade or traffic in slaves to, from, or between Europe, Asia, Africa, or America, or any place or countries whatsoever, or of transporting slaves to or from one port or place to another in any part or parts of the world, such ship or vessel, her tackle, furniture, apparel, and other appurtenances shall be forfeited to the Commonwealth, and shall be liable to be seized and prosecuted by any officer of the customs or other person, by information in rem, in the supreme court or in the county court of common pleas for the county wherein such seizure shall be made, whereupon such proceedings shall be had, both unto and after judgment, as in and by the impost laws of this Commonwealth in case of seizure is directed. And moreover, all and every person and persons so building, fitting out, manning, equipping, or otherwise preparing or sending away any ship or vessel, knowing or intending that the same shall be employed in such trade or business contrary to the true intent and meaning of this act, or in any wise aiding or abetting therein, shall severally forfeit and pay the sum of one thousand pounds, one moiety thereof to the use of the Commonwealth and the other moiety thereof to the use of him or her who will sue for the same, by action, debt, bill, plaint, or information." "And whereas, the practice of separating, which is too often exercised by the masters and mistresses of negro and mulatto slaves, or servants for term of years, in separating husbands and wives, and parents and children, requires to be checked so far as the same may be done without prejudice to such masters or mistresses:" "Sec. VI. If any owner or possessor of any negro, mulatto slave or slaves, or servant or servants for term of years, shall, from and Page 41 U. S. 550 after the first day of July next separate or remove, or cause to be separated or removed, a husband from his wife, or wife from her husband, a child from his or her parents, or a parent from a child, or any or either of the descriptions aforesaid, to a greater distance than ten miles, with the design and intention of changing the habitation or place of abode of such husband or wife, parent or child, unless such child shall be above the age of four years, without the consent of such slave or servant for life or years shall have been obtained and testified in the manner hereinbefore described, such person or persons shall severally forfeit and pay the sum of fifty pounds, with costs of suit, for every such offense, to be recovered by action of debt, bill, plaint, or information in the supreme court or in any court of common pleas at the suit of any person who will sue for the same, one moiety thereof, when recovered, for the use of the plaintiffs, the other moiety for the use of the poor of the city, township, or place from which said husband or wife, parent or child, shall have been taken and removed." (Sec. VII. Repealed 27th March, 1820, and 25th March, 1826.) And the jurors further found, that, at a session of the General Assembly of the Commonwealth of Pennsylvania, holden at Harrisburg, on the 25th day of March, 1826, the following law was passed, "An act to give effect to the provisions of the Constitution of the United States relative to fugitives from labor, for the protection of free people of color, and prevent kidnapping." "Sec. I. If any person or persons shall, from and after the passing of this act, by force and violence, take and carry away, or cause to be taken or carried away, and shall, by fraud or false pretence, seduce, or cause to be seduced, or shall attempt so to take, carry away or seduce, any negro or mulatto, from any part or parts of this Commonwealth, to any other place or places whatsoever, out of this Commonwealth, with a design and intention of selling and disposing of, or of causing to be sold, or of keeping and detaining, or of causing to be kept and detained, such negro or mulatto, as a slave or servant for life, or for any term whatsoever, every such person or persons, his or their aiders or abettors, shall on conviction thereof, in any court of this Commonwealth having competent jurisdiction, be deemed guilty of a felony, and shall forfeit and pay at the discretion of the court Page 41 U. S. 551 passing the sentence, a sum not less than five hundred, nor more than one thousand dollars, one-half whereof shall be paid to the person or persons who shall prosecute for the same, and the other half to this Commonwealth, and moreover shall be sentenced to undergo a servitude for any term or terms not less than seven years nor exceeding twenty-one years, and shall be confined and kept to hard labor, fed, and clothed in the manner as is directed by the penal laws of this Commonwealth for persons convicted of robbery." "Sec. II. If any person or persons shall, hereafter, knowingly sell, transfer or assign, or shall, knowingly, purchase, take or transfer an assignment of any negro or mulatto for the purpose of fraudulently removing, exporting or carrying said negro or mulatto out of this State, with the design or intent, by fraud or false pretences, of making him or her a slave or servant for life, or for any term whatsoever, every person so offending shall be deemed guilty of a felony, and on conviction thereof, shall forfeit and pay a fine of not less than five hundred dollars nor more than two thousand dollars, one-half whereof shall be paid to the person or persons who shall prosecute for the same, and the other half to the Commonwealth, and moreover shall be sentenced, at the discretion of the court, to undergo a servitude for any term or time not less than seven years, nor exceeding twenty-one years, and shall be confined, kept to hard labor, fed and clothed in the same manner as is directed by the penal laws of this Commonwealth for persons convicted of robbery." "Sec. III. When a person held to labor or servitude in any of the United States, or in either of the territories thereof, under the laws thereof, shall escape into this Commonwealth, the person to whom such labor or service is due, his or her duly authorized agent or attorney, constituted in writing, is hereby authorized to apply to any judge, justice of the peace or alderman, who, on such application, supported by the oath or affirmation of such claimant, or authorized agent or attorney as aforesaid, that the said fugitive hath escaped from his or her service, or from the service of the person for whom he is duly constituted agent or attorney, shall issue his warrant, under his hand and seal, and directed to the sheriff, or any constable of the proper city or county, authorizing and empowering said sheriff or constable, to Page 41 U. S. 552 arrest and seize the said fugitive, who shall be named in said warrant, and to bring said fugitive before a judge of the proper county, which said warrant shall be in the form or to the following effect:" "State of Pennsylvania, _____ county, ss." " The Commonwealth of Pennsylvania, to the sheriff or any constable of _____ county, greeting: Whereas, it appears by the oath, or solemn affirmation, of _____ _____, that _____ _____, was held to labor or service to _____ _____, of _____ county, in the State of _____, and the said _____ _____ hath escaped from the labor and service of the said _____ _____: You are therefore commanded, to arrest and seize the body of the said _____ _____, if he be found in your county, and bring him forthwith before the person issuing the warrant, if a judge (or if a justice of the peace or alderman) before a judge of the court of common pleas, or of the district court, as the case may be, of your proper county, or recorder of a city, so that the truth of the matter may be inquired into, and the said _____ _____ be dealt with as the Constitution of the United States, and the laws of this Commonwealth direct." " Witness our said judge (or alderman, or justice, as the case may be) at this ___ day of _____, in the year of our Lord one thousand eight hundred and _____." "By virtue of such warrant the person named therein may be arrested by the proper sheriff or constable to whom the same shall be delivered, within the proper city or county." "Sec. IV. No judge, justice of the peace or alderman shall issue a warrant on the application of any agent or attorney, as provided in the said third section, unless the said agent or attorney shall, in addition to his own oath or affirmation, produce the affidavit of the claimant of the fugitive, taken before and certified by a justice of the peace or other magistrate authorized to administer oaths, in the State or territory in which such claimant shall reside, and accompanied by the certificate of the authority of such justice or other magistrate, to administer oaths, signed by the clerk or prothonotary, and authenticated by the seal of a court of record, in such State or territory; which affidavit shall state the Page 41 U. S. 553 said claimant's title to the service of such fugitive and also the name, age and description of the person of such fugitive." "Sec. V. It shall be the duty of any judge, justice of the peace, or alderman, when he grants or issues any warrant under the provisions of the third section of this act, to make a fair record on his docket of the same in which he shall enter the name and place of residence of the person on whose oath or affirmation the said warrant may be granted, and also, if an affidavit shall have been produced under the provisions of the fourth section of this act, the name and place of residence of the person making such affidavit, and the age and description of the person of the alleged fugitive contained in such affidavit, and shall, within ten days thereafter, file a certified copy thereof in the office of the clerk of the court of general quarter sessions of the peace, or mayor's court of the proper city or county; and any judge, justice of the peace or alderman who shall refuse or neglect to comply with the provisions of this section shall be deemed guilty of a misdemeanor in office, and shall, on conviction thereof, be sentenced to pay, at the discretion of the court, any sum not exceeding one thousand dollars, one-half to the party prosecuting for the same, and the other half to the Commonwealth. And any sheriff or constable, receiving and executing the said warrant shall, without unnecessary delay, carry the person arrested before the judge, according to the exigency of the warrant. And any sheriff or constable who shall refuse or wilfully neglect so to do shall, on conviction thereof, be sentenced to pay at the discretion of the court any sum not exceeding five hundred dollars, one-half to the party prosecuting for the same and the other half to the Commonwealth, or shall also be sentenced to imprisonment at hard labor for a time not exceeding six months, or both." "Sec. VI. The said fugitive from labor or service, when so arrested, shall be brought before a judge as aforesaid and, upon proof to the satisfaction of such judge that the person so seized or arrested doth, under the laws of the State or authority from which she or he fled from service or labor, to the person claiming him or her, it shall be the duty of such judge to give a certificate thereof to such claimant, his or her duly authorized agent or attorney, which shall be sufficient warrant for removing the said fugitive to the State or territory from which she or he fled: Page 41 U. S. 554 Provided, that the oath of the owner or owners, or other person interested, shall in no case be received in evidence before the judge, on the hearing of the case." "Sec. VII. When the fugitive shall be brought before the judge, agreeably to the provisions of this act, and either party allege and prove to the satisfaction of the said judge that he or she is not prepared for trial, and have testimony material to the matter in controversy that can be obtained in a reasonable time, it shall and may be lawful, unless security satisfactory to the said judge be given for the appearance of the said fugitive on a day certain, to commit the said fugitive to the common jail for safekeeping, there to be detained at the expense of the owner, agent, or attorney for such time as the judge shall think reasonable and just, and to a day certain, when the said fugitive shall be brought before him by habeas corpus in the courthouse of the proper county, or in term-time at the chamber of the said judge, for final hearing and adjudication: Provided, that if the adjournment of the hearing be requested by the claimant, his agent or attorney, such adjournment shall not be granted unless the said claimant, his agent or attorney, shall give security satisfactory to the judge to appear and prosecute his claim on the day to which the hearing shall be adjourned: Provided that, on the hearing last mentioned, if the judge committing the said fugitive or taking the security as aforesaid should be absent, sick, or otherwise unable to attend, it shall be the duty of either of the other judges, on notice given, to attend to the said hearing and to decide thereon." "Sec. VIII. The officer which may or shall be employed in the execution of the duties of this act shall be allowed the same fees for service of process that sheriffs within this Commonwealth are now allowed for serving process in criminal cases, and two dollars and fifty cents per day for each and every day necessarily spent in performing the duties enjoined on them by this acts to be paid by the owner, agent, or attorney immediately on the performance of the duties aforesaid." "Sec. IX. No alderman or justice of the peace of this Commonwealth shall have jurisdiction or take cognizance of the case of any fugitive from labor from any of the United States or territories, under a certain act of Congress, passed on the tenth day of February 1793, Page 41 U. S. 555 entitled 'an act respecting fugitives from justice, and persons escaping from the service of their masters;' nor shall any alderman or justice of the peace of this Commonwealth issue or grant any certificate or warrant of removal of any such fugitive from labor as aforesaid, except in the manner and to the effect provided in the third section of this act, upon the application, affidavit or testimony of any person or persons whatsoever, under the said act of Congress, or under any other law, authority or act of the Congress of the United States; and if any alderman or justice of the peace of this Commonwealth shall, contrary to the provision of this act, take cognizance or jurisdiction of the case of any such fugitive as aforesaid except in the manner hereinbefore provided, or shall grant or issue any certificate or warrant of removal as aforesaid, then and in either case he shall be deemed guilty of a misdemeanor in office and shall, on conviction thereof, be sentenced to pay at the discretion of the court any sum not less than five hundred dollars nor exceeding one thousand dollars, one-half thereof to the party prosecuting for the same and the other half to the use of the Commonwealth." "Sec. X. It shall be the duty of the judge or recorder of any court of record in this Commonwealth, when he grants or issues any certificate or warrant of removal of any negro or mulatto claimed to be a fugitive from labor to the State or territory from which he or she fled, in pursuance of an act of Congress passed the 12th day of February 1793 entitled 'an act respecting fugitives from justice and persons escaping from the service of their masters,' and of this act, to make a fair record of the same in which he shall enter the age, name, sex, and general description of the person of the negro or mulatto for whom he shall grant such certificate or warrant of removal, together with the evidence and the name of the places of residence of the witnesses, and the party claiming such negro or mulatto, and shall, within ten days thereafter, file a certified copy thereof in the office of the clerk of the court of general quarter sessions of the peace, or mayor's court of the city or county in which he may reside." "Sec. XI. Nothing in this act contained shall be construed as a repeal or alteration of any part of an act of assembly passed the first day of March, 1780, Page 41 U. S. 556 entitled 'an act for the gradual abolition of slavery,' except the eleventh section of said act, which is hereby repealed and supplied, nor of any part of an act of assembly passed on the 28th day of March 1788, entitled 'an act to explain and amend an act for the gradual abolition of slavery,' except the 7th section of this last-mentioned act, which is hereby supplied and repealed." And the jurors further found that the negro woman, Margaret Morgan, in the within indictment mentioned, came into the State of Pennsylvania from the State of Maryland, some time in the year 1832; that, at that time, and for a long period before that time, she was a slave for life, held to labor, and owing service or labor, under and according to the laws of the said State of Maryland, one of the United States, to a certain Margaret Ashmore, a citizen of the State of Maryland, residing in Harford county; and that the said negro woman, Margaret Morgan, escaped and fled from the State of Maryland, without the knowledge and consent of the said Margaret Ashmore; that, in the month of February, 1837, the within-named defendant, Edward Prigg, was duly and legally constituted and appointed by the said Margaret Ashmore her agent or attorney to seize and arrest the said negro woman, Margaret Morgan, as a fugitive from labor, and to remove, take, and carry her from this State into the State of Maryland, and there deliver her to the said Margaret Ashmore; that, as such agent or attorney, the said Edward Prigg, afterwards and in the same month of February, 1837, before a certain Thomas Henderson, Esquire, then being a justice of the peace in and for the county of York in this State, made oath that the said negro woman Margaret Morgan had fled and escaped from the State of Maryland, owing service or labor for life, under the laws thereof to the said Margaret Ashmore; that the said Thomas Henderson, so being such justice of the peace as aforesaid, thereupon issued his warrant, directed to one William McCleary, then and there being a regularly appointed constable in and for York county, commanding him to take the said negro woman, Margaret Morgan, and her children, and bring them before the said Thomas Henderson, or some other justice of the peace for said county; that the said McCleary, in obedience Page 41 U. S. 557 to said warrant, did accordingly take and apprehend the said negro woman, Margaret Morgan, and her children, in York county aforesaid, and did bring her and them before the said Thomas Henderson; that the said Henderson thereupon refused to take further cognizance of said case, and that the said Prigg afterwards, and without complying with the provisions of the said act of the General Assembly of the Commonwealth of Pennsylvania, passed the 25th of March 1826, entitled "an act to give effect to the provisions of the Constitution of the United States relative to fugitives from labor, for the protection of free people of color, and to prevent kidnapping," did take, remove and carry away the said negro woman, Margaret Morgan, and her children, mentioned in said warrant, out of this State, into the State of Maryland, and did there deliver the said woman and children into the custody and possession of the said Margaret Ashmore. And further say, that one of the said children so taken, removed and carried away, was born in this State, more than one year after the said negro woman, Margaret Morgan, had fled and escaped from the State of Maryland as aforesaid. But whether or not, upon the whole matter aforesaid, by the jurors aforesaid in form aforesaid found, the said Edward Prigg be guilty in manner and form as he stands indicted, the jurors aforesaid are altogether ignorant, and therefore, pray the advice of the court; and if, upon the whole matter aforesaid, it shall seem to the said court that the said Edward Prigg is guilty, then the jurors aforesaid, upon their oaths aforesaid, say that the said Edward Prigg is guilty in manner and form as he stands indicted. But if, upon the whole matter aforesaid, it shall seem to the said court that the said Edward Prigg is not guilty, then the jurors aforesaid, upon their oaths aforesaid, say that the said Edward Prigg is not guilty in manner and form as he stands indicted. This special verdict was, under an agreement between Messrs. Meredith and Nelson, counsel for Edward Prigg, and Mr. Johnson, Attorney-General of Pennsylvania, taken under the provision of an act of the Assembly of Pennsylvania passed 22d of May, 1839, and, by agreement, the court gave judgment Page 41 U. S. 558 against Edward Prigg on the finding of the jury and the indictment. The defendant prosecuted a writ of error to the Supreme Court of Pennsylvania, to May Term, 1840. On the 23d May, 1840, the following errors were assigned before the Court by Mr. Meredith and Mr. Nelson, who represented the State of Maryland, as well as the defendant. The plaintiff in error suggests to the Supreme Court here that the judgment rendered in the Court of Oyer and Terminer of York county in this case should be reversed for the reason following, viz: That the Act of Assembly of the Commonwealth of Pennsylvania set out in the record in the said cause is repugnant to the provisions of the Constitution of the United States, and is therefore void. The Supreme Court affirmed pro forma the judgment of the Court of Oyer and Terminer, and the defendant Edward Prigg prosecuted this writ of error. Page 41 U. S. 608 MR. JUSTICE STORY delivered the opinion of the court. This is a writ of error to the Supreme Court of Pennsylvania, brought under the 25th section of the Judiciary Act of 1789, ch. 20, for the purpose of revising the judgment of that court, in a case involving the construction of the Constitution and laws of the United States. The facts are briefly these: The plaintiff in error was indicted in the Court of Oyer and Terminer for York County, for having, with force and violence, taken and carried away from that county, to the State of Maryland, a certain negro woman, named Margaret Morgan, with a design and intention of selling and disposing of, and keeping her, as a slave or servant for life, contrary to a statute of Pennsylvania, passed on the 26th of March, 1826. That statute, in the first section, in substance provides that, if any person or persons shall, from and after the passing of the act, by force and violence, take and carry away, or cause to be taken and carried away, and shall, by fraud or false pretence, seduce, or cause to be seduced, or shall attempt to take, carry away or seduce, any negro or mulatto from any part of that Commonwealth, with a design and intention of selling and disposing of, or causing to be sold, or of keeping and detaining, or of causing to be kept and detained, such negro or mulatto, as a slave or servant for life, or for any term whatsoever, every such person or persons, his or their aiders or abettors, shall, on conviction thereof, be deemed guilty of felony, and shall forfeit and pay a sum not less than five hundred, nor more than one thousand dollars, and moreover shall be sentenced to undergo servitude for any term or terms of years, not less than seven years nor exceeding twenty-one years, and shall be confined and kept to hard labor, &c. There are many other provisions in the statute, which is recited at large in the record but to which it is in our view unnecessary to advert upon the present occasion. The plaintiff in error pleaded not guilty to the indictment, and, at the trial, the jury found a special verdict which in substance states that the negro woman, Margaret Morgan, was a slave for life, and held to labor and service under and according to the Page 41 U. S. 609 laws of Maryland, to a certain Margaret Ashmore, a citizen of Maryland; that the slave escaped and fled from Maryland into Pennsylvania in 1832; that the plaintiff in error, being legally constituted the agent and attorney of the said Margaret Ashmore, in 1837 caused the said negro woman to be taken and apprehended as a fugitive from labor by a state constable under a warrant from a Pennsylvania magistrate; that the said negro woman was thereupon brought before the said magistrate, who refused to take further cognizance of the case; and thereupon the plaintiff in error did remove, take and carry away the said negro woman and her children out of Pennsylvania into Maryland, and did deliver the said negro woman and her children into the custody and possession of the said Margaret Ashmore. The special verdict further finds that one of the children was born in Pennsylvania more than a year after the said negro woman had fled and escaped from Maryland. Upon this special verdict, the Court of Oyer and Terminer of York County adjudged that the plaintiff in error was guilty of the offense charged in the indictment. A writ of error was brought from that judgment to the Supreme Court of Pennsylvania, where the judgment was, pro forma, affirmed. From this latter judgment, the present writ of error has been brought to this Court. Before proceeding to discuss the very important and interesting questions involved in this record, it is fit to say that the cause has been conduced in the court below, and has been brought here by the cooperation and sanction, both of the State of Maryland and the State of Pennsylvania in the most friendly and courteous spirit, with a view to have those questions finally disposed of by the adjudication of this Court so that the agitations on this subject in both States, which have had a tendency to interrupt the harmony between them, may subside, and the conflict of opinion be put at rest. It should also be added that the statute of Pennsylvania of 1826 was (as has been suggested at the bar) passed with a view of meeting the supposed wishes of Maryland on the subject of fugitive slaves, and that, although it has failed to produce the good effects intended in its practical construction, the result was unforeseen and undesigned. 1. The question arising in the case as to the constitutionality of the statute of Pennsylvania, has been most elaborately argued at the Page 41 U. S. 610 bar. The counsel for the plaintiff in error have contended that the statute of Pennsylvania is unconstitutional, first, because Congress has the exclusive power of legislation upon the subject matter under the Constitution of the United States and under the act of the 12th of February 1793, ch. 51, which was passed in pursuance thereof; secondly, that, if this power is not exclusive in Congress, still the concurrent power of the state legislatures is suspended by the actual exercise of the power of Congress; and thirdly, that, if not suspended, still the statute of Pennsylvania, in all its provisions applicable to this case, is in direct collision with the act of Congress, and therefore, is unconstitutional and void. The counsel for Pennsylvania maintain the negative of all those points. Few questions which have ever come before this Court involve more delicate and important considerations, and few upon which the public at large may be presumed to feel a more profound and pervading interest. We have accordingly given them our most deliberate examination, and it has become my duty to state the result to which we have arrived, and the reasoning by which it is supported. Before, however, we proceed to the points more immediately before us, it may be well, in order to clear the case of difficulty, to say that, in the exposition of this part of the Constitution, we shall limit ourselves to those considerations which appropriately and exclusively belong to it, without laying down any rules of interpretation of a more general nature. It will indeed probably be found, when we look to the character of the Constitution itself, the objects which it seeks to attain, the powers which it confers, the duties which it enjoins, and the rights which it secures, as well as the known historical fact, that many of its provisions were matters of compromise of opposing interests and opinions, that no uniform rule of interpretation can be applied to it which may not allow, even if it does not positively demand, many modifications in its actual application to particular clauses. And perhaps the safest rule of interpretation, after all, will be found to be to look to the nature and objects of the particular powers, duties, and rights with all the lights and aids of contemporary history, and to give to the words of each just such operation Page 41 U. S. 611 and force, consistent with their legitimate meaning, as may fairly secure and attain the ends proposed. There are two clauses in the Constitution upon the subject of fugitives, which stands in juxtaposition with each other and have been thought mutually to illustrate each other. They are both contained in the second section of the fourth Article, and are in the following words: "A person charged in any State with treason, felony, or other crime who shall flee from justice and be found in another State shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime." "No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due." The last clause is that the true interpretation whereof is directly in judgment before us. Historically, it is well known that the object of this clause was to secure to the citizens of the slave-holding States the complete right and title of ownership in their slaves, as property, in every State in the Union into which they might escape from the State where they were held in servitude. The full recognition of this right and title was indispensable to the security of this species of property in all the slave-holding States, and indeed was so vital to the preservation of their domestic interests and institutions that it cannot be doubted that it constituted a fundamental article without the adoption of which the Union could not have been formed. Its true design was to guard against the doctrines and principles prevalent in the non-slaveholding States, by preventing them from intermeddling with, or obstructing, or abolishing the rights of the owners of slaves. By the general law of nations, no nation is bound to recognize the state of slavery as to foreign slaves found within its territorial dominions, when it is in opposition to its own policy and institutions, in favor of the subjects of other nations where slavery is recognized. If it does it, it is as a matter of comity, and not as a matter of international right. The state of slavery is deemed to be a mere municipal regulation, founded upon and limited to the range of the territorial laws. This was fully recognized in Somerset's Case, Page 41 U. S. 612 Lofft 1; S.C. 11 State Trials, by Harg. 340, S.C. 20 How. State Trials 79, which decided before the American revolution. It is manifest from this consideration that, if the Constitution had not contained this clause, every non-slaveholding State in the Union would have been at liberty to have declared free all runaway slaves coming within its limits, and to have given them entire immunity and protection against the claims of their masters -- a course which would have created the most bitter animosities and engendered perpetual strife between the different States. The clause was therefore of the last importance to the safety and security of the southern States, and could not have been surrendered by them, without endangering their whole property in slaves. The clause was accordingly adopted into the Constitution by the unanimous consent of the framers of it -- a proof at once of its intrinsic and practical necessity. How then are we to interpret the language of the clause? The true answer is in such a manner as, consistently with the words, shall fully and completely effectuate the whole objects of it. If, by one mode of interpretation, the right must become shadowy and unsubstantial, and without any remedial power adequate to the end, and, by another mode, it will attain its just end and secure its manifest purpose, it would seem, upon principles of reasoning, absolutely irresistible, that the latter ought to prevail. No court of justice can be authorized so to construe any clause of the Constitution as to defeat its obvious ends when another construction, equally accordant with the words and sense thereof, will enforce and protect them. The clause manifestly contemplates the existence of a positive, unqualified right on the part of the owner of the slave which no state law or regulation can in any way qualify, regulate, control, or restrain. The slave is not to be discharged from service or labor in consequence of any state law or regulation. Now certainly, without indulging in any nicety of criticism upon words, it may fairly and reasonably be said that any state law or state regulation which interrupts, limits, delays, or postpones the right of the owner to the immediate possession of the slave and the immediate command of his service and labor operates pro tanto a discharge of the slave therefrom. The question can never be how much the slave is discharged from, but whether he is Page 41 U. S. 613 discharged from any, by the natural or necessary operation of state laws or state regulations. The question is not one of quantity or degree, but of withholding or controlling the incidents of a positive and absolute right. We have said that the clause contains a positive and unqualified recognition of the right of the owner in the slave, unaffected by any state law or legislation whatsoever, because there is no qualification or restriction of it to be found therein, and we have no right to insert any which is not expressed and cannot be fairly implied. Especially are we estopped from so doing when the clause puts the right to the service or labor upon the same ground, and to the same extent, in every other State as in the State from which the slave escaped and in which he was held to the service or labor. If this be so, then all the incidents to that right attach also. The owner must, therefore, have the right to seize and repossess the slave, which the local laws of his own State confer upon him, as property, and we all know that this right of seizure and recaption is universally acknowledged in all the slaveholding States. Indeed, this is no more than a mere affirmance of the principles of the common law applicable to this very subject. Mr. Justice Blackstone (3 Bl. Com. 4) lays it down as unquestionable doctrine. "Recaption or reprisal [says he] is another species of remedy by the mere act of the party injured. This happens when anyone hath deprived another of his property in goods or chattels personal, or wrongfully detains one's wife, child or servant, in which case the owner of the goods, and the husband, parent or master, may lawfully claim and retake them wherever he happens to find them, so it be not in a riotous manner or attended with a breach of the peace." Upon this ground, we have not the slightest hesitation in holding that, under and in virtue of the Constitution, the owner of a slave is clothed with entire authority, in every State in the Union, to seize and recapture his slave whenever he can do it without any breach of the peace or any illegal violence. In this sense and to this extent, this clause of the Constitution may properly be said to execute itself, and to require no aid from legislation, state or national. But the clause of the Constitution does not stop here, nor, indeed, consistently with its professed objects, could it do so. Many Page 41 U. S. 614 cases must arise in which, if the remedy of the owner were confined to the mere right of seizure and recaption, he would be utterly without any adequate redress. He may not be able to lay his hands upon the slave. He may not be able to enforce his rights against persons who either secrete or conceal or withhold the slave. He may be restricted by local legislation as to the mode of proofs of his ownership, as to the courts in which he shall sue, and as to the actions which he may bring or the process be may use to compel the delivery of the slave. Nay, the local legislation may be utterly inadequate to furnish the appropriate redress, by authorizing no process in rem, or no specific mode of repossessing the slave, leaving the owner, at best, not that right which the Constitution designed to secure, a specific delivery and repossession of the slave, but a mere remedy in damages, and that, perhaps, against persons utterly insolvent or worthless. The state legislation may be entirely silent on the whole subject, and its ordinary remedial process framed with different views and objects, and this may be innocently, as well as designedly, done, since every State is perfectly competent, and has the exclusive right, to prescribe the remedies in its own judicial tribunals, to limit the time as well as the mode of redress, and to deny jurisdiction over cases which its own policy and its own institutions either prohibit or discountenance. If, therefore, the clause of the Constitution had stopped at the mere recognition of the right, without providing or contemplating any means by which it might be established and enforced, in cases where it did not execute itself, it is plain that it would have been, in a great variety of cases, a delusive and empty annunciation. If it did not contemplate any action, either through state or national legislation, as auxiliaries to its more perfect enforcement in the form of remedy, or of protection, then, as there would be no duty on either to aid the right, it would be left to the mere comity of the States to act as they should please, and would depend for its security upon the changing course of public opinion, the mutations of public policy, and the general adaptations of remedies for purposes strictly according to the lex fori. And this leads us to the consideration of the other part of the clause, which implies at once a guarantee and duty. It says, "but he [the slave] shall be delivered up on claim of the party to Page 41 U. S. 615 whom such service or labor may be due." Now we think it exceedingly difficult, if not impracticable, to read this language and not to feel that it contemplated some further remedial redress than that which might be administered at the hands of the owner himself. A claim is to be made! What is a claim? It is, in a just juridical sense, a demand of some matter, as of right, made by one person upon another, to do or to forbear to do some act or thing as a matter of duty. A more limited but, at the same time, an equally expressive, definition was given by Lord Dyer, as cited in Stowel v. Zouch, 1 Plowd. 359, and it is equally applicable to the present case: that "a claim is a challenge by a man of the propriety or ownership of a thing which he has not in possession, but which is wrongfully detained from him." The slave is to be delivered up on the claim. By whom to be delivered up? In what mode to be delivered up? How, if a refusal takes place, is the right of delivery to be enforced? Upon what proofs? What shall be the evidence of a rightful recaption or delivery? When and under what circumstances shall the possession of the owner, after it is obtained, be conclusive of his right, so as to preclude any further inquiry or examination into it by local tribunals or otherwise, while the slave, in possession of the owner, is in transitu to the State from which he fled? These and many other questions will readily occur upon the slightest attention to the clause; and it is obvious that they can receive but one satisfactory answer. They require the aid of legislation to protect the right, to enforce the delivery, and to secure the subsequent possession of the slave. If, indeed, the Constitution guaranties the right, and if it requires the delivery upon the claim of the owner (as cannot well be doubted), the natural inference certainly is that the National Government is clothed with the appropriate authority and functions to enforce it. The fundamental principle, applicable to all cases of this sort, would seem to be that, where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the National Constitution, and not in that of any State. It does not point out any state functionaries, or any state action, to carry its provisions into effect . The States cannot, therefore, be compelled to enforce them, and Page 41 U. S. 616 it might well be deemed an unconstitutional exercise of the power of interpretation to insist that the States are bound to provide means to carry into effect the duties of the National Government, nowhere delegated or entrusted to them by the Constitution. On the contrary, the natural, if not the necessary, conclusion is, that the National Government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments, legislative, judicial or executive, as the case may require, to carry into effect all the rights and duties imposed upon it by the Constitution. The remark of Mr. Madison, in the Federalist (No. 43), would seem in such cases to apply with peculiar force. "A right [says he] implies a remedy, and where else would the remedy be deposited than where it is deposited by the Constitution?" -- meaning, as the context shows, in the Government of the United States. It is plain, then, that where a claim is made by the owner, out of possession, for the delivery of a slave, it must be made, if at all, against some other person; and, inasmuch as the right is a right of property, capable of being recognized and asserted by proceedings before a court of justice, between parties adverse to each other, it constitutes, in the strictest sense, a controversy between the parties, and a case "arising under the Constitution" of the United States within the express delegation of judicial power given by that instrument. Congress, then, may call that power into activity for the very purpose of giving effect to that right; and, if so, then it may prescribe the mode and extent in which it shall be applied, and how and under what circumstances the proceedings shall afford a complete protection and guarantee to the right. Congress has taken this very view of the power and duty of the National Government. As early as the year 1791, the attention of Congress was drawn to it (as we shall hereafter more fully see) in consequence of some practical difficulties arising under the other clause respecting fugitives from justice escaping into other States. The result of their deliberations was the passage of the act of the 12th of February 1793, ch. 51, which, after having, in the first and second sections, provided by the case of fugitives from justice, by a demand to be made of the delivery, through the executive authority of the State where they are found, Page 41 U. S. 617 proceeds, in the third section, to provide that, when a person held to labor or service in any of the United States, shall escape into any other of the States or territories, the person to whom such labor or service may be due, his agent or attorney, is hereby empowered to seize or arrest such fugitive from labor, and take him or her before any judge of the circuit or district courts of the United States, residing or being within the State, or before any magistrate of a county, city or town corporate, wherein such seizure or arrest shall be made; and, upon proof to the satisfaction of such judge or magistrate, either by oral evidence or affidavit, &c., that the person so seized or arrested, doth, under the laws of the State or territory from which he or she fled, owe service or labor to the person claiming him or her, it shall be the duty of such judge or magistrate to give a certificate thereof to such claimant, his agent or attorney which shall be sufficient warrant for removing the said fugitive from labor to the State or territory from which he or she fled. The fourth section provides a penalty against any person who shall knowingly and willingly obstruct or hinder such claimant, his agent, or attorney in so seizing or arresting such fugitive from labor, or rescue such fugitive from the claimant, or his agent or attorney when so arrested, or who shall harbor or conceal such fugitive after notice that he is such; and it also saves to the person claiming such labor or service his right of action for or on account of such injuries. In a general sense, this act may be truly said to cover the whole ground of the Constitution, both as to fugitives from justice and fugitive slaves -- that is, it covers both the subjects in its enactments, not because it exhausts the remedies which may be applied by Congress to enforce the rights if the provisions of the act shall in practice be found not to attain the object of the Constitution; but because it points out fully all the modes of attaining those objects which Congress, in their discretion, have as yet deemed expedient or proper to meet the exigencies of the Constitution. If this be so, then it would seem, upon just principles of construction, that the legislation of Congress, if constitutional, must supersede all state legislation upon the same subject and, by necessary implication, prohibit it. For, if Congress have a constitutional power to regulate a particular subject, and they do actually regulate it in a given manner, and in a certain form, it cannot Page 41 U. S. 618 be that the state legislatures have a right to interfere and, as it were, by way of complement to the legislation of Congress, to prescribe additional regulations and what they may deem auxiliary provisions for the same purpose. In such a case, the legislation of Congress, in what it does prescribe, manifestly indicates that it does not intend that there shall be any further legislation to act upon the subject matter. Its silence as to what it does not do is as expressive of what its intention is as the direct provisions made by it. This doctrine was fully recognized by this Court, in the case of Houston v. Moore , 5 Wheat. 1, 18 U. S. 21 -22, where it was expressly held that, where Congress have exercised a power over a particular subject given them by the Constitution, it is not competent for state legislation to add to the provisions of Congress upon that subject, for that the will of Congress upon the whole subject is as clearly established by what it has not declared as by what it has expressed. But it has been argued that the act of Congress is unconstitutional because it does not fall within the scope of any of the enumerated powers of legislation confided to that body, and therefore it is void. Stripped of its artificial and technical structure, the argument comes to this -- that although rights are exclusively secured by, or duties are exclusively imposed upon, the National Government, yet, unless the power to enforce these rights or to execute these duties can be found among the express powers of legislation enumerated in the Constitution, they remain without any means of giving them effect by any act of Congress, and they must operate solely proprio vigore, however defective may be their operation -- nay! even although, in a practical sense, they may become a nullity from the want of a proper remedy to enforce them or to provide against their violation. If this be the true interpretation of the Constitution, it must in a great measure fail to attain many of its avowed and positive objects as a security of rights and a recognition of duties. Such a limited construction of the Constitution has never yet been adopted as correct either in theory or practice. No one has ever supposed that Congress could constitutionally, by its legislation, exercise powers or enact laws beyond the powers delegated to it by the Constitution. But it has on various occasions exercised powers which were necessary and proper as means to carry into effect rights expressly Page 41 U. S. 619 given and duties expressly enjoined thereby. The end being required, it has been deemed a just and necessary implication that the means to accomplish it are given also, or, in other words, that the power flows as a necessary means to accomplish the end. Thus, for example, although the Constitution has declared that representatives shall be apportioned among the States according to their respective federal numbers and, for this purpose, it has expressly authorized Congress by law to provide for an enumeration of the population every ten years, yet the power to apportion representatives after this enumeration is made is nowhere found among the express powers given to Congress, but it has always been acted upon as irresistibly flowing from the duty positively enjoined by the Constitution. Treaties made between the United States and foreign powers often contain special provisions which do not execute themselves, but require the interposition of Congress to carry them into effect, and Congress has constantly, in such cases, legislated on the subject; yet, although the power is given to the executive, with the consent of the senate, to make treaties, the power is nowhere in positive terms conferred upon Congress to make laws to carry the stipulations of treaties into effect; it has been supposed to result from the duty of the National Government to fulfill all the obligations of treaties. The senators and representatives in Congress are, in all cases except treason, felony and breach of the peace, exempted from arrest during their attendance at the sessions thereof, and in going to and returning from the same. May not Congress enforce this right by authorizing a writ of habeas corpus to free them from an illegal arrest in violation of this clause of the Constitution? If it may not, then the specific remedy to enforce it must exclusively depend upon the local legislation of the States, and may be granted or refused according to their own varying policy or pleasure. The Constitution also declares that the privilege of the writ of habeas corpus shall not be suspended, unless, when in cases of rebellion or invasion, the public safety may require it. No express power is given to Congress to secure this invaluable right in the nonenumerated cases, or to suspend the writ in cases of rebellion or invasion. And yet it would be difficult to say, since this great writ of liberty is usually provided for by the ordinary functions of legislation, and can be effectually Page 41 U. S. 620 provided for only in this way, that it ought not to be deemed, by necessary implication, within the scope of the legislative power of Congress. These cases are put merely by way of illustration, to show that the rule of interpretation, insisted upon at the argument, is quite too narrow to provide for the ordinary exigencies of the National Government in cases where rights are intended to be absolutely secured and duties are positively enjoined by the Constitution. The very Act of 1793 now under consideration affords the most conclusive proof that Congress has acted upon a very different rule of interpretation, and has supposed that the right, as well as the duty, of legislation on the subject of fugitives from justice and fugitive slaves was within the scope of the constitutional authority conferred on the national legislature. In respect to fugitives from justice, the Constitution, although it expressly provides that the demand shall be made by the executive authority of the State from which the fugitive has fled, is silent as to the party upon whom the demand is to be made and as to the mode in which it shall be made. This very silence occasioned embarrassments in enforcing the right and duty at an early period after the adoption of the Constitution; and produced a hesitation on the part of the executive authority of Virginia to deliver up a fugitive from justice upon the demand of the executive of Pennsylvania in the year 1791; and, as we historically know from the message of President Washington and the public documents of that period, it was the immediate cause of the passing of the Act of 1793, which designated the person (the state executive) upon whom the demand should be made, and the mode and proofs upon and in which it should be made. From that time down to the present hour, not a doubt has been breathed upon the constitutionality of this part of the act, and every executive in the Union has constantly acted upon and admitted its validity. Yet the right and the duty are dependent, as to their mode of execution, solely on the act of Congress, and, but for that, they would remain a nominal right and passive duty the execution of which being entrusted to and required of no one in particular, all persons might be at liberty to disregard it. This very acquiescence, under such circumstances, of the highest state functionaries is a most decisive proof of the universality of the opinion that the Page 41 U. S. 621 act is founded in a just construction of the Constitution independent of the vast influence which it ought to have as a contemporaneous exposition of the provisions by those who were its immediate framers or intimately connected with its adoption. The same uniformity of acquiescence in the validity of the Act of 1793 upon the other part of the subject matter that of fugitive slaves has prevailed throughout the whole Union until a comparatively recent period. Nay, being from its nature and character more readily susceptible of being brought into controversy in courts of justice than the former, and of enlisting in opposition to it the feelings, and it may be, the prejudices, of some portions of the non-slaveholding States, it has naturally been brought under adjudication in several States in the Union, and particularly in Massachusetts, New York, and Pennsylvania, and, on all these occasions, its validity has been affirmed. The cases cited at the bar, of Wright v. Deacon, 5 Serg. & Rawle 62; Glen v. Hodges, 9 Johns. 67; Jack v. Martin, 12 Wend. 311; S.C. 12 ibid. 507; and Commonwealth v. Griffin, 2 Pick. 11, are directly in point. So far as the judges of the courts of the United States have been called upon to enforce it, and to grant the certificate required by it, it is believed that it has been uniformly recognized as a binding and valid law, and as imposing a constitutional duty. Under such circumstances, if the question were one of doubtful construction, such long acquiescence in it, such contemporaneous expositions of it, and such extensive and uniform recognition of its validity would, in our judgment, entitle the question to be considered at rest unless, indeed, the interpretation of the Constitution is to be delivered over to interminable doubt throughout the whole progress of legislation and of national operations. Congress, the executive, and the judiciary have, upon various occasions, acted upon this as a sound and reasonable doctrine. Especially did this Court, in the cases of Stuart v. Laird , 1 Cranch 299, and Martin v. Hunter's Lessee , 1 Wheat. 304, and in Cohens v. Virginia , 6 Wheat. 264, rely upon contemporaneous expositions of the Constitution, and long acquiescence in it, with great confidence in the discussion of questions of a highly interesting and important nature. But we do not wish to rest our present opinion upon the ground Page 41 U. S. 622 either of contemporaneous exposition or long acquiescence, or even practical action; neither do we mean to admit the question to be of a doubtful nature, and therefore as properly calling for the aid of such considerations. On the contrary, our judgment would be the same if the question were entirely new and the act of Congress were of recent enactment. We hold the act to be clearly constitutional in all its leading provisions and, indeed, with the exception of that part which confers authority upon state magistrates, to be free from reasonable doubt and difficulty upon the grounds already stated. As to the authority so conferred upon state magistrates, while a difference of opinion has existed, and may exist still, on the point in different States, whether state magistrates are bound to act under it, none is entertained by this Court that state magistrates may, if they choose, exercise that authority unless prohibited by state legislation. The remaining question is whether the power of legislation upon this subject is exclusive in the National Government or concurrent in the States until it is exercised by Congress. In our opinion, it is exclusive, and we shall now proceed briefly to state our reasons for that opinion. The doctrine stated by this Court in Sturgis v. Crowninshield , 4 Wheat. 122, 17 U. S. 193 , contains the true, although not the sole, rule or consideration which is applicable to this particular subject. "Wherever," said Mr. Chief Justice Marshall in delivering the opinion of the Court, "the terms in which a power is granted to Congress, or the nature of the power, require that it should be exercised exclusively by Congress, the subject is as completely taken from the state legislatures, as if they had been forbidden to act." The nature of the power, and the true objects to be attained by it, are then as important to be weighed, in considering the question of its exclusiveness, as the words in which it is granted. In the first place, it is material to state (what has been already incidentally hinted at) that the right to seize and retake fugitive slaves and the duty to deliver them up, in whatever State of the Union they may be found, and, of course, the corresponding power in Congress to use the appropriate means to enforce the right and duty, derive their whole validity and obligation exclusively from the Constitution of the United States, and are there, for the first time, recognized and established in that peculiar character. Page 41 U. S. 623 Before the adoption of the Constitution, no State had any power whatsoever over the subject except within its own territorial limits, and could not bind the sovereignty or the legislation of other States. Whenever the right was acknowledged, or the duty enforced, in any State, it was as a matter of comity, and not as a matter of strict moral, political, or international obligation or duty. Under the Constitution, it is recognized as an absolute, positive right and duty, pervading the whole Union with an equal and supreme force, uncontrolled and uncontrollable by state sovereignty or state legislation. It is, therefore, in a just sense, a new and positive right, independent of comity, confined to no territorial limits, and bounded by no state institutions or policy. The natural inference deductible from this consideration certainly is, in the absence of any positive delegation of power to the state legislatures that it belongs to the Legislative Department of the National Government, to which it owes its origin and establishment. It would be a strange anomaly and forced construction to suppose that the National Government meant to rely for the due fulfillment of its own proper duties, and the rights it intended to secure, upon state legislation, and not upon that of the Union. A fortiori, it would be more objectionable to suppose that a power which was to be the same throughout the Union should be confided to state sovereignty, which could not rightfully act beyond its own territorial limits. In the next place, the nature of the provision and the objects to be attained by it require that it should be controlled by one and the same will, and act uniformly by the same system of regulations throughout the Union. If, then, the States have a right, in the absence of legislation by Congress, to act upon the subject, each State is at liberty to prescribe just such regulations as suit its own policy, local convenience, and local feelings. The legislation of one State may not only be different from, but utterly repugnant to and incompatible with, that of another. The time and mode and limitation of the remedy, the proofs of the title, and all other incidents applicable thereto may be prescribed in one State which are rejected or disclaimed in another. One State may require the owner to sue in one mode, another in a different mode. One State may make a statute of limitations as to the remedy, in its own tribunals, short and summary; another Page 41 U. S. 624 may prolong the period and yet restrict the proofs. Nay, some States may utterly refuse to act upon the subject of all, and others may refuse to open its courts to any remedies in rem because they would interfere with their own domestic policy, institutions, or habits. The right, therefore, would never, in a practical sense, be the same in all the States. It would have no unity of purpose or uniformity of operation. The duty might be enforced in some States, retarded or limited in others, and denied as compulsory in many, if not in all. Consequences like these must have been foreseen as very likely to occur in the non-slaveholding States where legislation, if not silent on the subject and purely voluntary, could scarcely be presumed to be favorable to the exercise of the rights of the owner. It is scarcely conceivable that the slaveholding States would have been satisfied with leaving to the legislation of the non-slaveholding States a power of regulation, in the absence of that of Congress, which would or might practically amount to a power to destroy the rights of the owner. If the argument, therefore, of a concurrent power in the States to act upon the subject matter, in the absence of legislation by Congress, be well founded, then, if Congress had never acted at all, or if the act of Congress should be repealed without providing a substitute, there would be a resulting authority in each of the States to regulate the whole subject at its pleasure, and to dole out its own remedial justice or withhold it at its pleasure and according to its own views of policy and expediency. Surely such a state of things never could have been intended under such a solemn guarantee of right and duty. On the other hand, construe the right of legislation as exclusive in Congress, and every evil and every danger vanishes. The right and the duty are then coextensive and uniform in remedy and operation throughout the whole Union. The owner has the same security, and the same remedial justice, and the same exemption from state regulation and control through however many States he may pass with his fugitive slave in his possession in transitu to his own domicile. But, upon the other supposition, the moment he passes the state line, he becomes amenable to the laws of another sovereignty whose regulations may greatly embarrass or delay the exercise of his rights, and even be repugnant to those of the State where he first arrested the fugitive. Consequences like these show that Page 41 U. S. 625 the nature and objects of the provisions imperiously require that, to make it effectual, it should be construed to be exclusive of state authority. We adopt the language of this Court in Sturgis v. Crowninshield , 4 Wheat. 193, and say that "it has never been supposed that the concurrent power of legislation extended to every possible case in which its exercise by the States has not been expressly prohibited; the confusion of such a practice would be endless." And we know no case in which the confusion and public inconvenience and mischiefs thereof could be more completely exemplified than the present. These are some of the reasons, but by no means all, upon which we hold the power of legislation on this subject to be exclusive in Congress. To guard, however, against any possible misconstruction of our views, it is proper to state that we are by no means to be understood in any manner whatsoever to doubt or to interfere with the police power belonging to the States in virtue of their general sovereignty. That police power extends over all subjects within territorial limits of the States, and has never been conceded to the United States. It is wholly distinguishable from the right and duty secured by the provision now under consideration, which is exclusively derived from and secured by the Constitution of the United States and owes its whole efficacy thereto. We entertain no doubt whatsoever that the States, in virtue of their general police power, possesses full jurisdiction to arrest and restrain runaway slaves, and remove them from their borders, and otherwise to secure themselves against their depredations and evil example, as they certainly may do in cases of idlers, vagabonds and paupers. The rights of the owners of fugitive slaves are in no just sense interfered with or regulated by such a course, and, in many cases, the operations of this police power, although designed generally for other purposes -- for protection, safety and peace of the State -- may essentially promote and aid the interests of the owners. But such regulations can never be permitted to interfere with or to obstruct the just rights of the owner to reclaim his slave, derived from the Constitution of the United States, or with the remedies prescribed by Congress to aid and enforce the same. Upon these grounds, we are of opinion that the act of Pennsylvania upon which this indictment is founded is unconstitutional Page 41 U. S. 626 and void. It purports to punish as a public offense against that State the very act of seizing and removing a slave by his master which the Constitution of the United States was designed to justify and uphold. The special verdict finds this fact, and the state courts have rendered judgment against the plaintiff in error upon that verdict. That judgment must, therefore, be reversed, and the cause remanded to the Supreme Court of Pennsylvania with directions to carry into effect the judgment of this Court rendered upon the special verdict, in favor of the plaintiff in error. MR. CHIEF JUSTICE TANEY. I concur in the opinion pronounced by the Court that the law of Pennsylvania, under which the plaintiff in error was indicted, is unconstitutional and void, and that the judgment against him must be reversed. But, as the questions before us arise upon the construction of the Constitution of the United States, and as I do not assent to all the principles contained in the opinion just delivered, it is proper to state the points on which I differ. I agree entirely in all that is said in relation to the right of the master, by virtue of the third clause of the second section of the Fourth Article of the Constitution of the United States, to arrest his fugitive slave in any State wherein he may find him. He has a right peaceably to take possession of him and carry him away without any certificate or warrant from a judge of the district or circuit court of the United States, or from any magistrate of the State, and whoever resists or obstructs him is a wrongdoer, and every state law which proposes directly or indirectly to authorize such resistance or obstruction is null and void, and affords no justification to the individual or the officer of the State who acts under it. This right of the master being given by the Constitution of the United States, neither Congress nor a state legislature can, by any law or regulation, impair it or restrict it. I concur also in all that is contained in the opinion concerning the power of Congress to protect the citizens of the slaveholding States in the enjoyment of this right, and to provide by law an effectual remedy to enforce it, and to inflict penalties upon those who shall violate its provisions, and no State is authorized to pass any law that comes in conflict in any respect with the remedy provided by Congress. Page 41 U. S. 627 The act of February 12th, 1793, is a constitutional exercise of this power, and every state law which requires the master, against his consent, to go before any state tribunal or officer before he can take possession of his property, or which authorizes a state officer to interfere with him when he is peaceably removing it from the State, is unconstitutional and void. But, as I understand the opinion of the Court, it goes further, and decides that the power to provide a remedy for this right is vested exclusively in Congress, and that all laws upon the subject passed by a State since the adoption of the Constitution of the United States are null and void, even although they were intended in good faith to protect the owner in the exercise of his rights of property, and do not conflict in any degree with the act of Congress. I do not consider this question as necessarily involved in the case before us, for the law of Pennsylvania under which the plaintiff in error was prosecuted is clearly in conflict with the Constitution of the United States, as well as with the law of 1793. But, as the question is discussed in the opinion of the Court, and as I do not assent either to the doctrine or the reasoning by which it is maintained, I proceed to state very briefly my objections. The opinion of the Court maintains that the power over this subject is so exclusively vested in Congress that no State, since the adoption of the Constitution, can pass any law in relation to it. In other words, according to the opinion just delivered, the state authorities are prohibited from interfering for the purpose of protecting the right of the master and aiding him in the recovery of his property. I think the States are not prohibited, and that, on the contrary, it is enjoined upon them as a duty to protect and support the owner when he is endeavoring to obtain possession of his property found within their respective territories. The language used in the Constitution does not, in my judgment, justify this construction given to it by the court. It contains no words prohibiting the several States from passing laws to enforce this right. They are, in express terms, forbidden to make any regulation that shall impair it, but there the prohibition stops. And, according to the settled rules of construction for all written instruments, the prohibition being confined to laws injurious Page 41 U. S. 628 to the right, the power to pass laws to support and enforce it is necessarily implied. And the words of the article which direct that the fugitive "shall be delivered up" seem evidently designed to impose it as a duty upon the people of the several States to pass laws to carry into execution, in good faith, the compact into which they thus solemnly entered with each other. The Constitution of the United States, and every article and clause in it, is a part of the law of every State in the Union, and is the paramount law. The right of the master, therefore, to seize his fugitive slave is the law of each State, and no State has the power to abrogate or alter it. And why may not a State protect a right of property acknowledged by its own paramount law? Besides, the laws of the different States in all other cases constantly protect the citizens of other States in their rights of property when it is found within their respective territories, and no one doubts their power to do so. And, in the absence of any express prohibition, I perceive no reason for establishing by implication a different rule in this instance where, by the national compact, this right of property is recognized as an existing right in every State of the Union. I do not speak of slaves whom their masters voluntarily take into a non-slaveholding State. That case is not before us. I speak of the case provided for in the Constitution -- that is to say, the case of a fugitive who has escaped from the service of his owner and who has taken refuge and is found in another State. Moreover, the clause of the Constitution of which we are speaking does not purport to be a distribution of the rights of sovereignty by which certain enumerated powers of Government and legislation are exclusively confided to the United States. It does not deal with that subject. It provides merely for the rights of individual citizens of different States, and places them under the protection of the General Government in order more effectually to guard them from invasion by the States. There are other clauses in the Constitution in which other individual rights are provided for and secured in like manner, and it never has been suggested that the States could not uphold and maintain them because they were guarantied by the Constitution of the United States. On the contrary, it has always been held to be the duty Page 41 U. S. 629 of the States to enforce them, and the action of the General Government has never been deemed necessary, except to resist and prevent their violation. Thus, for example, the Constitution provides that no State shall pass any law impairing the obligation of contracts. This, like the right in question, is an individual right placed under the protection of the General Government. And, in order to secure it, Congress have passed a law authorizing a writ of error to the Supreme Court whenever the right thus secured to the individual is drawn in question, and denied to him in a state court, and all state laws impairing this right are admitted to be void. Yet no one has ever doubted that a State may pass laws to enforce the obligation of a contract, and may give to the individual the full benefit of the right so guarantied to him by the Constitution, without waiting for legislation on the part of Congress. Why may not the same thing be done in relation to the individual right now under consideration? Again, the Constitution of the United States declares that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States. And, although the privileges and immunities, for greater safety, are placed under the guardianship of the General Government, still the States may, by their laws and in their tribunals, protect and enforce them. They have not only the power, but it is a duty enjoined upon them by this provision in the Constitution. The individual right now in question stands on the same grounds, and is given by similar words, and ought to be governed by the same principles. The obligation to protect rights of this description is imposed upon the several States as a duty which they are bound to perform, and the prohibition extends to those laws only which violate the right intended to be secured. I cannot understand the rule of construction by which a positive and express stipulation for the security of certain individual rights of property in the several States is held to imply a prohibition to the States to pass any laws to guard and protect them. The course pursued by the General Government after the adoption of the Constitution confirms my opinion as to its true construction. No law was passed by Congress to give a remedy for this right Page 41 U. S. 630 until nearly four years after the Constitution went into operation. Yet, during that period of time, the master was undoubtedly entitled to take possession of his property wherever he might find it, and the protection of this right was left altogether to the state authorities. In attempting to exercise it, he was continually liable to be resisted by superior force, or the fugitive might be harbored in the house of someone who would refuse to deliver him. And if a State could not authorize its officers, upon the master's application, to come to his aid, the guarantee contained in the Constitution was of very little practical value. It is true, he might have sued for damages. But, as he would most commonly be a stranger in the place where the fugitive was found, he might not be able to learn even the names of the wrongdoers; and if he succeeded in discovering them, they might prove to be unable to pay damages. At all events, he would be compelled to encounter the costs and expenses of a suit, prosecuted at a distance from his own home, and to sacrifice, perhaps, the value of his property in endeavoring to obtain compensation. This is not the mode in which the Constitution intended to guard this important right, nor is this the kind of remedy it intended to give. The delivery of the property itself -- its prompt and immediate delivery -- is plainly required, and was intended to be secured. Indeed, if the state authorities are absolved from all obligation to protect this right, and may stand by and see it violated without an effort to defend it, the act of Congress of 1793 scarcely deserves the name of a remedy. The state officers mentioned in the law are not bound to execute the duties imposed upon them by Congress unless they choose to do so or are required to do so by a law of the State, and the state legislature has the power, if it thinks proper, to prohibit them. The Act of 1793, therefore, must depend altogether for its execution upon the officers of the United States named in it. And the master must take the fugitive, after he has seized him, before a judge of the district or circuit court, residing in the State, and exhibit his proofs, and procure from the judge his certificate of ownership, in order to obtain the protection in removing his property which this act of Congress profess to give. Now, in many of the States, there is but one district judge, and Page 41 U. S. 631 there are only nine States which have judges of the Supreme Court residing within them. The fugitive will frequently be found by his owner in a place very distant from the residence of either of these judges, and would certainly be removed beyond his reach before a warrant could be procured from the judge to arrest him, even if the act of Congress authorized such a warrant. But it does not authorize the judge to issue a warrant to arrest the fugitive, but evidently relied on the state authorities to protect the owner in making the seizure. And it is only when the fugitive is arrested and brought before the judge that he is directed to take the proof and give the certificate of ownership. It is only necessary to state the provisions of this law in order to show how ineffectual and delusive is the remedy provided by Congress if state authority is forbidden to come to its aid. But it is manifest from the face of the law that an effectual remedy was intended to be given by the Act of 1793. It never designed to compel the master to encounter the hazard and expense of taking the fugitive, in all cases, to the distant residence of one of the judges of the courts of the United States, for it authorized him also to go before any magistrate of the county, city, or town corporate wherein the seizure should be made. And Congress evidently supposed that it had provided a tribunal at the place of the arrest capable of furnishing the master with the evidence of ownership, to protect him more effectually from unlawful interruption. So far from regarding the state authorities as prohibited from interfering in cases of this description, the Congress of that day must have counted upon their cordial cooperation; they legislated with express reference to state support. And it will be remembered that, when this law was passed, the Government of the United States was administered by the men who had but recently taken a leading part in the formation of the Constitution. And the reliance obviously placed upon state authority for the purpose of executing this law proves that the construction now given to the Constitution by the Court had not entered into their minds. Certainly it is not the construction which it received in the States most interested in its faithful execution. Maryland, for example, which is substantially one of the parties to this case, has continually passed laws, ever since the adoption of the Constitution of the United States, for the arrest Page 41 U. S. 632 of fugitive slaves from other States as well as her own. Her officers are, by law, required to arrest them when found within her territory, and her magistrates are required to commit them to the public prison in order to keep them safely until the master has an opportunity to reclaiming them. And if the owner is not known, measures are directed to be taken by advertisement to apprise him of the arrest, and, if known, personal notice to be given. And as fugitives from the more southern States, when endeavoring to escape into Canada, very frequently pass through her territory, these laws have been almost daily in the course of execution in some part of the State. But if the States are forbidden to legislate on this subject, and the power is exclusively in Congress, then these state laws are unconstitutional and void, and the fugitive can only be arrested according to the provisions of the act of Congress. By that law, the power to seize is given to no one but the owner, his agent, or attorney. And if the officers of the State are not justified in acting under the state laws, and cannot arrest the fugitive and detain him in prison without having first received an authority from the owner, the territory of the State must soon become an open pathway for the fugitives escaping from other states. For they are often in the act of passing through it by the time that the owner first discovers that they have absconded, and, in almost every instance, they would be beyond its borders (if they were allowed to pass through without interruption) before the master would be able to learn the road they had taken. I am aware that my brethren of the majority do not contemplate these consequences, and do not suppose that the opinion they have given will lead to them. And it seems to be supposed that laws nearly similar to those I have mentioned might be passed by the State in the exercise of her powers over her internal police, and by virtue of her right to remove from her territory disorderly and evil-disposed persons or those who, from the nature of her institutions, are dangerous to her peace and tranquillity. But it would be difficult, perhaps, to bring all the laws I have mentioned within the legitimate scope of the internal powers of police. The fugitive is not always arrested in order to prevent a dangerous or evil-disposed person from remaining in her territory. He is himself most commonly anxious to escape Page 41 U. S. 633 from it, and it often happens that he is seized near the borders of the State when he is endeavoring to leave it, and is brought back and detained until he can be delivered to his owner. He may sometimes be found traveling peaceably along the public highway on his road to another State, in company with and under the protection of a white man who is abetting his escape. And it could hardly be maintained that the arrest and confinement of the fugitive in the public prison, under such circumstances, until he could be delivered to his owner was necessary for the internal peace of the State, and, therefore, a justifiable exercise of its powers of police. It has not heretofore been supposed necessary, in order to justify these laws, to refer them to such questionable powers of internal and local police. They were believed to stand upon surer and firmer grounds. They were passed not with reference merely to the safety and protection of the State itself, but in order to secure the delivery of the fugitive slave to his lawful owner. They were passed by the State in the performance of a duty believed to be enjoined upon it by the Constitution of the United States. It is true that Maryland, as well as every other slaveholding State, has a deep interest in the faithful execution of the clause in question. But the obligation of the compact is not confined to them; it is equally binding upon the faith of every State in the Union, and has heretofore, in my judgment, been justly regarded as obligatory upon all. I dissent, therefore, upon these grounds, from that part of the opinion of the Court which denies the obligation and the right of the state authorities to protect the master when he is endeavoring to seize a fugitive from his service in pursuance of the right given to him by the Constitution of the United States, provided the state law is not in conflict with the remedy provided by Congress. MR. JUSTICE THOMPSON. I concur in the judgment given by the Court in this case. But, not being able to yield my assent to all the doctrines embraced in the opinion, I will very briefly state the grounds on which my judgment is placed. Page 41 U. S. 634 The provision in the Constitution upon which the present question arises is as follows: "No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up, on claim of the party to whom such service or labor may be due." Art. 4, § 2. We know historically that this provision was the result of a compromise between the slaveholding and non-slaveholding States; and it is the indispensable duty of all to carry it faithfully into execution according to its real object and intention. This provision naturally divides itself into two distinct considerations. First, the right affirmed, and secondly, the mode and manner in which that right is to be asserted and carried into execution. The right is secured by the Constitution, and requires no law to fortify or strengthen it. It affirms in the most unequivocal manner the right of the master to the service of his slave according to the laws of the State under which he is so held. And it prohibits the States from discharging the slave from such service by any law or regulation therein. The second branch of the provision, in my judgment, requires legislative regulations, pointing out the mode and manner in which the right is to be asserted. It contemplates the delivery of the person of the slave to the owner, and does not leave the owner to his ordinary remedy at law to recover damages on a refusal to deliver up the property of the owner. Legislative provision, in this respect, is essential for the purpose of preserving peace and good order in the community. Such cases, in some parts of our country, are calculated to excite feelings which, if not restrained by law, might lead to riots and breaches of the peace. This legislation, I think, belongs more appropriately to Congress than to the States, for the purpose of having the regulation uniform throughout the United States, as the transportation of the slave may be through several States, but there is nothing in the subject matter that renders state legislation unfit. It is no objection to the right of the States to pass laws on the subject that there is no power anywhere given to compel them to do it; neither is there to compel Congress to pass any law Page 41 U. S. 635 on the subject; the legislation must be voluntary in both, and governed by a sense of duty. But I cannot concur in that part of the opinion of the Court which asserts that the power of legislation by Congress is exclusive, and that no State can pass any law to carry into effect the constitutional provision on this subject although Congress had passed no law in relation to it. Congress, by the Act of 1793, has legislated on the subject, and any state law in conflict with that would be void according to the provisions of the Constitution which declares that the laws of the United States, which shall be made in pursuance of the Constitution, shall be the supreme law of the land, anything in the laws of any State to the contrary notwithstanding. This provision meets the case of a conflict between Congressional and state legislation, and implies that such cases may exist, growing out of the concurrent powers of the two Governments. The provision in the Constitution under consideration is one under which such conflicting legislation may arise, and harmony is produced by making the state law yield to that of the United States. But to assert that the States cannot legislate on the subject at all in the absence of all legislation by Congress is, in my judgment, not warranted by any fair and reasonable construction of the provision. There is certainly nothing in the terms used in this article, nor in the nature of the power to surrender the slave, that makes legislation by Congress exclusive. And if, as seems to be admitted, legislation is necessary to carry into effect the object of the Constitution, what becomes of the right where there is no law on the subject? Should Congress repeal the law of 1793, and pass no other law on the subject, I can entertain no doubt that state legislation, for the purpose of restoring the slave to his master and faithfully to carry into execution the provision of the Constitution, would be valid. I can see nothing in the provision itself, nor discover any principle of sound public policy, upon which such a law would be declared unconstitutional and void. The Constitution protects the master in the right to the possession and service of his slave, and, of course, makes void all state legislation impairing that right, but does not make void state legislation in affirmance of the right. I forbear enlarging upon this question, but have barely stated the general grounds upon which my opinion rests, and principally to guard against the conclusion that, Page 41 U. S. 636 by my silence, I assent to the doctrine that all legislation on this subject is vested exclusively in Congress, and that all state legislation in the absence of any law of Congress is unconstitutional and void. Baldwin, Justice, concurred with the court in reversing the judgment of the Supreme Court of Pennsylvania on the ground that the act of the legislature was unconstitutional inasmuch as the slavery of the person removed was admitted, the removal could not be kidnaping. But he dissented from the principles laid down by the court as the grounds of their opinion. MR. JUSTICE WAYNE. I concur altogether in the opinion of the court, as it has been given by my brother Story. In that opinion it is decided: 1. That the provision in the second section of the Fourth Article of the Constitution, relative to fugitives from service or labor, confers upon the owner of a fugitive slave the right, by himself or his agent, to seize and arrest, without committing a breach of the peace, his fugitive slave, as property, in any State of the Union, and that no state law is constitutional which interferes with such right. 2. That the provision authorizes and requires legislation by Congress to guard that right of seizure and arrest against all state and other interference, to make the delivery of fugitive slaves more effectual when the claims of owners are contested, and to insure to owners the unmolested transportation of fugitive slaves, through any of the States, to the State from which they may have fled. 3. That the legislation by Congress upon the provision, as the supreme law of the land, excludes all state legislation upon the same subject, and that no State can pass any law or regulation, or interpose such as may have been a law or regulation when the Constitution of the United States was ratified, to superadd to, control, qualify, or impede a remedy enacted by Congress for the delivery of fugitive slaves to the parties to whom their service or labor is due. Page 41 U. S. 637 4. That the power of legislation by Congress upon the provision is exclusive, and that no State can pass any law as a remedy upon the subject, whether Congress had or had not legislated upon it. 5. That the act of Congress of the 12th February, 1793, entitled "an act respecting fugitives from justice, and persons escaping from the service of their masters," gives a remedy, but does not exhaust the remedies which Congress may legislate upon the subject. 6. That the points so decided are not intended to interfere in any way, nor do they interfere in any manner, with the police power in the States to arrest and imprison fugitive slaves, to guard against their misconduct and depredations, or to punish them for offenses and crimes committed in the States to which they may have fled. 7. These points being so decided and applied to the case before the Court it follows that the law of Pennsylvania, upon which the plaintiff is indicted, is unconstitutional, and that the judgment given by the Supreme Court of Pennsylvania against the plaintiff must be reversed. All of the judges of the Court concur in the opinion that the law under which the plaintiff in error was indicted is unconstitutional. All of them concur also in the declaration that the provision in the Constitution was a compromise between the slaveholding and the non-slaveholding States to secure to the former fugitive slaves as property. All of the members of the court, too, except my brother Baldwin, concur in the opinion that legislation by Congress to carry the provision into execution is constitutional, and he contends that the provision gives to the owners of fugitive slaves all the rights of seizure and removal which legislation could give, but he concurs in the opinion, if legislation by Congress be necessary, that the right to legislate is exclusively in Congress. There is no difference, then, among the judges as to the reversal of the judgment; none in respect to the origin and object of the provision, or the obligation to exercise it. But differences do exist as to the mode of execution. Three of the judges have expressed the opinion that the States may legislate upon the provision in aid of the object it was intended to secure, and that Page 41 U. S. 638 such legislation is constitutional when it does not conflict with the remedy which Congress may enact. I believe that the power to legislate upon the provision is exclusively in Congress. The provision is that "no person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up, on claim of the party to whom such service or labor is due." The clause contains four substantive declarations, or two conditions, a prohibition, and a direction. First, the fugitive must owe service or labor under the law of the State from which he had escaped; second, he must have fled from it. The prohibition is that he cannot be discharged from service in consequence of any law or regulation of the State in which he may be, and the direction is affirmative of an obligation upon the States and declarative of a right in the party to whom the service or labor of a fugitive is due. My object, and the only object which I have in view in what I am about to say, is to establish the position that Congress has the exclusive right to legislate upon this provision of the Constitution. I shall endeavor to prove it by the condition of the States when the Constitution was formed, by references to the provision itself, and to the Constitution generally. Let it be remembered that the conventioners who formed the Constitution were the representatives of equal sovereignties; that they were assembled to form a more perfect union than then existed between the States under the confederacy; that they cooperated to the same end; but that they were divided into two parties, having antagonist interests in respect to slavery. One of these parties, consisting of several States, required as a condition, upon which any Constitution should be presented to the States for ratification, a full and perfect security for their slaves as property when they fled into any of the States of the Union; the fact is not more plainly stated by me than it was put in the convention. The representatives from the non-slaveholding States assented to the condition. The provision under review was proposed and adopted by the unanimous vote of the convention. It, with an allowance of a certain portion of slaves with Page 41 U. S. 639 the whites for representative population in Congress, and the importation of slaves from abroad for a number of years, were the great obstacles in the way of forming a Constitution. Each of them was equally insisted upon by the representatives from the slaveholding States; and, without all of them being provided for, it was well understood that the convention would have been dissolved without a Constitution's being formed. I mention the facts as they were; they cannot be denied. I have nothing to do, judicially, with what a part of the world may think of the attitude of the different parties upon this interesting topic. I am satisfied with what was done, and revere the men, and their motives for insisting, politically, upon what was done. When the three points relating to slaves had been accomplished, every impediment in they way of forming a Constitution was removed. The agreement concerning them was called, in the convention, a compromise; the provision in respect to fugitives from service or labor was called a guarantee of a right of property in fugitive slaves, wherever they might be found in the Union. The Constitution was presented to the States for adoption with the understanding that the provisions in it relating to slaves were a compromise and guarantee, and, with such an understanding, in every State it was adopted by all of them. Not a guarantee merely in the professional acceptation of the word, but a great national engagement in which the States surrendered a sovereign right, making it a part of that instrument which was intended to make them one nation within the sphere of its action. The provision, then, must be interpreted by those rules of construction assented to by all civilized nations as obligatory in ascertaining the rights growing out of these agreements. We shall see directly how these rules bear upon the question of the power of legislation upon this subject's being exclusively in Congress, and why the States are excluded from legislating upon it. The prohibition upon the States to discharge fugitive slaves is absolute. The provision, however, does not contain, in detail, the manner of asserting the right it was meant to secure. Nor is there in it any expressed power of legislation, nor any expressed prohibition of state legislation. But it does provide that delivery of a fugitive shall be made on the claim of the owner -- that the fugitive Page 41 U. S. 640 slave, owing service and labor in the State from which he fled and escaping therefrom, shall be decisive of the owner's right to a delivery. It does not, however, provide the mode of proving that service and labor is due, in a contested case, nor for any such evidence of the right, when it has been established, as will insure to an owner the unmolested transportation of the fugitive, through other States, to the State from which he fled. But the right to convey is the necessary consequence of a right to delivery; the latter would be good for nothing without the former. Proof of ownership gives both, if it gives either or anything, and yet the right might be, in the larger number of instances, unavailing if it were not certified by some official document that the right had been established. A certificate from an officer authorized to inquire into the facts is the easiest way to secure the right to its contemplated intent. It was foreseen that claims would be made which would be contested; some tribunal was necessary to decide them, and to authenticate the fact that a claim had been established. Without such authentication, the contest might be renewed in other tribunals of the State in which the fact had been established and in those of the other States through which the fugitive might be carried on his way to the State from which he fled. Such a certificate too, being required, protects persons who are not fugitives from being seized and transported; it has the effect of securing the benefit of a lawful claim and of preventing the accomplishment of one that is false. Such a certificate, to give a right to transport a fugitive slave through another State, a State cannot give; its operation would be confined to its own boundaries, and would be useless to assert the right in another sovereignty. This analysis of the provision is given to show that legislation was contemplated to carry it fully into effect in many of the cases that might occur, and to prevent its abuse when attempts might be made to apply it to those who were not fugitives. And it brings me to the point I have asserted -- that Congress has the exclusive right to legislate upon the provision. Those who contend that the States may legislate in aid of the object of the provision, admit that Congress can legislate to the full extent to carry it into execution. There is, then, no necessity for the States to legislate. This is a good reason why they should not Page 41 U. S. 641 legislate, and that is was intended that they should not do so, for legislation by Congress makes the mode of asserting the right uniform throughout the Union, and legislation by the States would be as various as the separate legislative will and policy of the different States might choose to make it. Certainly such an interest as the Constitution was intended to secure we may well think the framers of the Constitution intended to provide for by a uniform law. I admit, however, that such considerations do not necessarily exclude the right of the States to legislate. The argument in favor of the right is that the States are not, in express terms, prohibited from legislating, and that the exclusion is not necessarily implied. I further admit, if it be not necessarily implied, that the right exists. Such is the rule in respect to the right of legislation by the States in all cases under the Constitution when the question of a right to legislate in merely such. My first remark is, and I wish it to be particularly observed, that the question is not one only of the right of the States to legislate in aid of this provision, unconnected with other considerations bearing directly upon the question. The true question in the case is by what rules shall the compromise or guarantee be construed so that the obligations and rights of the States under the provision may be ascertained and secured. It is admitted that the provision raises what is properly termed a perfect obligation upon all of the States to abstain from doing anything which may interfere with the rights secured. Will this be so if any part of what may be necessary to discharge the obligation is reserved by each State, to be done as each may think proper? The obligation is common to all of them to the same extent. Its object is to secure the property of some of the States, and the individual rights of their citizens in that property. Shall, then, each State be permitted to legislate in its own way, according to its own judgment and their separate notions, in what manner the obligation shall be discharged to those States to which it is due? To permit some of the States to say to the others how the property included in the provision was to be secured by legislation, without the assent of the latter, would certainly be to destroy the equality and force of the guarantee and the equality of the States by which it was made. This was Page 41 U. S. 642 not anticipated by the representatives of the slaveholding States in the convention, nor could it have been intended by the framers of the Constitution. Is it not more reasonable to infer, as the States were forming a government for themselves, to the extent of the powers conceded in the Constitution, to which legislative power was given to make all laws necessary and proper to carry into execution all powers vested in it -- that they meant that the right for which some of the States stipulated, and to which all acceded, should, from the peculiar nature of the property in which only some of the States were interested, be carried into execution by that department of the General Government in which they were all to be represented -- the Congress of the United States. But is not this power of legislation by the States upon this provision a claim for each to use its discretion in interpreting the manner in which the guarantee shall be fulfilled? Are there no rules of interpretation, founded upon reason and nature, to settle this question and to secure the rights given by the provision better than the discretion of the parties to the obligation? Has not experience shown that those rules must be applied to conventions between nations in order that justice may be done? All civilized nations have consented to be bound by them, and they are a part of the laws of nations. Is not one of those rules the maxim that neither one or the other of the interested or contracting powers has a right to interpret his act or treaty at his pleasure? Such is the rule in respect to the treaties and conventions of nations foreign to each other. It applies with equal necessity and force to States united in one General Government. Especially to States making a provision in respect to property peculiar to some of them which has become so interwoven with their institutions and their representation in the General Government of all of them that the right to such property must be maintained and guarded in order to preserve their separate existence and to keep up their constitutional representation in Congress. Such cannot be the case unless there is uniformity in the law for asserting the right to fugitive slaves, and if the States can legislate, as each of them may think it should be done, a remedy by which the right of property in fugitive slaves is to be ascertained and finally concluded. Nor does it matter that the Page 41 U. S. 643 rule to which I have adverted as being exclusive of the right of the States to legislate upon the provision does not appear in it. It is exactly to such cases that the rule applies, and it must be so applied unless the contrary has been expressly provided. The mode of its application is as authoritative as the rule. The rule, too, applies to the provision, without any conflict with the other rule that the States may legislate in all cases when they are not expressly or impliedly prohibited by the Constitution. The latter rule is in no way trenched upon by excluding the States from legislating in this case. This provision is the only one in the Constitution in which a security for a particular kind of property is provided -- provided, too, expressly against the interference by the States in their sovereign character. The surrender of a sovereign right carries with it all its incidents. It differs from yielding a participation to another government in a sovereign right. In the latter, both may have jurisdiction. The State yielding the right, retaining jurisdiction to the extent of doing nothing repugnant to the exercise of the right by the government to which it has been yielded. But it is said, all that is contended for is that the States may legislate to aid the object, and that such legislation will be constitutional if it does not conflict with the remedies which Congress may enact. This is a cautious way of asserting the right in the States, and it seems to impose a limitation which makes it unobjectionable. But the reply to it is that the right to legislate a remedy implies so much indefinite power over the subject, and such protracted continuance as to the mode of finally determining whether a fugitive owes service and labor that the requirements of the remedy, without being actually in conflict with the provision or the enactments of Congress, might be oppressive to those most interested in the provision, by interposing delays and expenses more costly than the value of the fugitive sought to be reclaimed. Ordinarily, and when rightly understood, it is true that the abuse of a thing is no argument against its correctness or its use; but that suggestion can only be correctly made, in cases in support of a right or power abstractly and positively right, and which had been abused under the pretence of using it, or where the proper use has been mistaken. In matters of government, however, a power liable to be abused is always a good reason Page 41 U. S. 644 for withholding it. It is the reason why the powers of the United States, under the Constitution, are so cautiously given; why the express prohibitions upon the States not to legislate in certain cases were expressed; why the limitation upon the former that the powers not granted are reserved to the States, as it is expressed in the amendment to the Constitution. But, in truth, any additional legislation in this case by a State, acting as a remedy, in aid of the remedy given by the Constitution and by Congress, would be, in practice, in conflict with the latter if it be a process differing from it, though it might make the mode of recovering a fugitive easier than the former, and much more so when it made it more difficult. The right to legislate a remedy implies the ability to do either, and it is because it does so, and may be the latter, that I deny all right in the States to legislate upon this subject unless it be to aid, by mere ministerial acts, the protection of an owner's right to a fugitive slave, the prevention of all interference with it by the officers of a State or its citizens or an authority to its magistrates to execute the law of Congress, and such legislation over fugitives as may be strictly of a police character. Admit the States to legislate remedies in this case, besides such as are given by Congress, and there will be no security for the delivery of fugitive slaves in half of the States of the Union. Such was the case when the Constitution was adopted. The States might legislate in good faith, according to their notions how such a right of property should be tried. They have already done so, and the act of Pennsylvania now under consideration shows that the assertion of a right to a fugitive slave is burdened by provisions entailing expenses disproportioned to his value, and that it is only to be asserted by arraying against the claim all of those popular prejudices which, under other circumstances, would be proper feelings against slavery. But the propriety of the rule of interpretation which I have invoked to exclude the States from legislating upon this provision of the Constitution becomes more obvious when it is remembered that the provision was not intended only to secure the property of individuals, but that, through their rights, the institutions of the States should be preserved so long as any one of the States chose to continue slavery as a part of its policy. Page 41 U. S. 645 The subject has usually been argued as if the rights of individuals only were intended to be secured, and as if the legislation by the States would only act upon such rights. The framers of the Constitution did not act upon such narrow grounds; they were engaged in forming a government for all of the States, by concessions of sovereign rights from all, without impairing the actual sovereignty of any one, except within the sphere of what was conceded. One great object was that all kinds of property, as well that which was common in all of the States as that which was peculiar to any of them, should be protected in all of the States as well from any interference with it by the United States as by the States. Experience had shown that, under the Confederacy, the reclamation of fugitive slaves was embarrassed and uncertain, and that they were yielded to by the States only from comity; it was intended that it should be no longer so. The policy of the different States, some of them contiguous, had already become marked and decided upon the subject of slavery; there was no doubt it would become more so. It was foreseen that, unless the delivery of fugitive slaves was made a part of the Constitution, and the right of the States to discharge them from service was taken away, that some of the States would become the refuge of runaways, and, of course that, in proportion to the facility and certainty of any State's being a refuge, so would the right of individuals and the institutions of the slaveholding States be impaired. The latter were bound, when forming a General Government with the other States, under which there was to be a community of rights and privileges for all citizens in the several States, to protect that property of their citizens which was essential to the preservation of their state Constitutions. If this had not been done, all of the property of the citizens would have been protected in every State except that which was the most valuable in a number of them. In such a case, the States would have become members of the Union upon unequal terms. Besides, the property of an individual is not the less his because it is in another State than that in which he lives; it continues to be his, and forms a part of the wealth of his State. The provision, then, in respect to fugitive slaves only comprehended within the general rule a species of property not within it before. By doing so, the right of individuals, and that of the Page 41 U. S. 646 States in which slavery was continued were preserved. It remained in the States as a part of that wealth from which contributions were to be raised by taxes laid with the consent of the owners to meet the wants of the State as a body politic. If this be so, upon what principle shall the States act by their legislation upon property which is national as well as individual, and direct the mode, when it is within their jurisdiction, without the consent of the owners, and without the fault of the States where the owners reside, how the right of property should be ascertained and determined. The case of a fugitive slave is not like that of a contest for other property, to be determined between two claimants by the remedy given by the tribunals of the State where the property may be. It is not a controversy between two persons, claiming the right to a thing, but the assertion by one person of a right of property in another, to be determined upon principles peculiar to such relation. If the provision had not been introduced into the Constitution, the States might have adjudged the right in the way they pleased; but, having surrendered the right to discharge, they are not now to be allowed to assume a right to legislate, to try the obligation of a fugitive to servitude, in any other way than in conformity to the principles peculiar to the relation of master and slave. Their legislation, in the way of remedy, would bear upon state as well as individual rights, and I am sure, when the Constitution was formed, the States never intended to give any such right to each other. If it has such an effect, I think I may rightly conclude that legislation in the case before us is forbidden to the States. But I have a further reason for the conclusion to which I have come upon this point to which I cannot see that an answer can be given. The provision contemplates, besides the right of seizure by the owner, that a claim may be made, when a seizure has not been effected or afterwards, if his right shall be contested; that the claim shall be good upon the showing by the claimant that the person charged as a fugitive owes service or labor under the laws of the State from which he fled. The prohibition in the provision is that he shall not be "discharged in consequence of any law or regulation of a State" where he may be. If then, in a controverted case, a person Page 41 U. S. 647 claimed as a fugitive shall be discharged, under a remedy legislated by a State, to try the fact of his owing service or labor, is he not discharged under a law or regulation of a State? It is no answer to this question to say that the discharge was not made in virtue of any law discharging the fugitive from servitude, and that the discharge occurred only from the mode of trial to ascertain if he owed service and labor. For that is to assume that provision only prevented discharges from being made by the States by enactment or law declaring that fugitive slaves might be discharged. The provision will not admit of such an interpretation. Nor is it any answer to say that state regulations to ascertain whether a fugitive owes service or labor are distinguishable from such as, directly or by construction, would lead to his discharge; for if a discharge be made under one or the other -- whether the discharge be right or wrong -- it is a discharge under the regulation of a State. I understood the provision to mean, and when its object and the surrender by the States of the right to discharge are kept in mind, its obvious meaning to everyone must be, that the States are not only prohibited from discharging a fugitive from service by a law, but that they shall not make or apply regulations to try the question of the fugitive owing service. The language of the provision, is, "no person, &c., shall, in consequence of any law or regulation therein," be discharged from such service or labor. The words "in consequence," meaning the effect of a cause, certainly embrace regulations to try the right of property as well as laws directly discharging a fugitive from service. If this be not so, the States may regulate the mode of an owner's seizing of a fugitive slave, prohibiting it from being done except by warrant and by an officer, thus denying to an owner the right to use a casual opportunity to repossess himself of this kind of property, which there is a right to do in respect to all other kinds of property where not in the possession of some one else. It may regulate the quantity and quality of the proof to establish the right of an owner to a fugitive, and give compensatory and punitory damages against a claimant, if his right be not established according to such proof. It might limit the trial to particular times and courts, give appeals from one to other courts, and protract the ultimate decision until the value in controversy Page 41 U. S. 648 was exceeded by the cost of establishing it. Such rights of legislation in the States to try a right of property in a fugitive slave are surely inconsistent with that security which Judge Iredell told the people of North Carolina in the convention that the Constitution gave to them for their slaves when they fled into other States. Speaking of this clause of the Constitution, he says, "In some of the northern States, they have emancipated all of their slaves; if any one of our slaves go there and remain there a certain time, they would, by the present laws, be entitled to their freedom, so that their masters could not get them again; this would be extremely prejudicial to the inhabitants of the southern States; and, to prevent it, this clause is inserted in the Constitution." To the same purpose, and with more positiveness, Charles Cotesworth Pinckney said to the people of South Carolina, in the convention of that State, "we have obtained a right to recover our slaves in whatever part of America they may take refuge; which is a right we had not before." But, further, does not the language of this provision, in the precise terms used, "shall not be discharged from such service or labor," show that the State surrendering the right to discharge, meant to exclude themselves from legislating a mode of trial, which, from the time it would take, would be a qualified or temporary discharge to the injury of the owner? Would not a postponement of the trial of a fugitive owing service or labor for one month be a loss to the owner of his service, equivalent to a discharge for that time? And if a State can postpone, by legislation, the trial for one month, may it not do so for a longer time? And whether it be for a longer or a shorter time, is it not a discharge from service for whatever time it may be? It is no answer to this argument to say that time is necessarily involved in the prosecution of all rights. The question here is not as to a time being more or less necessary, but as to the right of a State, by regulations to try the obligation of a fugitive to service or labor, to fix in its discretion the time it may take. The subject might be further discussed and illustrated by arguments equally cogent with those already given. But I forbear. For the foregoing reasons, in addition to those given in the opinion of the Court, I am constrained to come to the conclusion that the right of legislating upon that clause in the Constitution Page 41 U. S. 649 preventing the States from discharging fugitive slaves is exclusively in the Congress of the United States. I am as little inclined as anyone can be, to deny, in a doubtful case, a right of legislation in the States; but I cannot concede that it exists, under the Constitution, in a case relating to the property of some of the States in which the others have no interest, and whose legislators, from the nature of the subject and the human mind in relation to it, cannot be supposed to be best fitted to secure the right guarantied by the Constitution. I had intended to give an account of the beginning and progress of the legislation of the States upon this subject, but my remarks are already so much extended that I must decline doing so. It would have shown, perhaps, as much as any other instance, how a mistaken, doubtful, and hesitating exercise of power, in the commencement becomes, by use, a conviction of its correctness. It would also have shown that the legislation of the States in respect to fugitive slaves, and particularly that which has most embarrassed the recovery of fugitive slaves, has been in opposition to an unbroken current of decisions in the courts of the States and those of the United States. Not a point has been decided in the cause now before this Court which has not been ruled in the courts of Massachusetts, New York, and Pennsylvania, and in other state courts. Judges have differed as to some of them, but the courts of the States have announced all of them with the consideration and solemnity of judicial conclusion. In cases, too, in which the decisions were appropriate, because the points were raised by the record. I consider the point I have been maintaining more important than any other in the opinion of the Court. It removes those causes which have contributed more than any other to disturb that harmony which is essential to the continuance of the Union. The framers of the Constitution knew it to be so, and inserted the provision in it. Hereafter, they cannot occur, if the judgment of this Court in this cause shall meet with the same patriotic acquiescence which the tribunals of the States and the people of the States have heretofore accorded to its decisions. The recovery of fugitive slaves will hereafter be exclusively regulated by the Constitution of the United States, and the acts of Congress. Page 41 U. S. 650 Apart from the position that the States may legislate in all cases where they are not expressly prohibited or by necessary implication, the claim for the States to legislate is mainly advocated upon the ground that they are bound to protect free blacks and persons of color residing in them from being carried into slavery by any summary process. The answer to this is that legislation may be confined to that end, and be made effectual, without making such a remedy applicable to fugitive slaves. There is no propriety in making a remedy to protect those who are free the probable means of freeing those who are not so. It is also said the States may aid, by remedies, the acts of Congress when they are not in conflict with them. I reply, Congress has full power to enact all that such aid could give, and if experience shows any deficiency in its enactments, Congress will no doubt supply it. If there are not now agencies enough to make the assertion of the right to fugitives convenient to their owners, Congress can multiply them. But if it should not be done, better is it that the inconvenience should be borne than that the States should be brought into collision upon this subject, as they have been, and that they should attempt to supply deficiencies upon their separate views of what the remedies should be to recover fugitive slaves within their jurisdictions. I have heard it suggested also, as a reason why the States should legislate upon this subject, that Congress may repeal the remedy it has given, and leave the provision unaided by legislation, and that then the States might carry it into execution. Be it so, but the latter is not needed, for though legislation by Congress supports the rights intended to be secured, there is energy enough in the Constitution, without legislation upon this subject, to protect and enforce what it gives. MR. JUSTICE DANIEL. Concurring entirely, as I do, with the majority of the Court in the conclusions they have reached relative to the effect and validity of the statute of Pennsylvania now under review, it is with unfeigned regret that I am constrained to dissent from some of the principles and reasonings which that majority, in passing to our common conclusions, have believed themselves called on to affirm. Page 41 U. S. 651 In judicial proceedings, generally that has been deemed a safe and prudent rule of action which involves no rights or questions not necessary to be considered, but leaves these for adjudication where and when only they shall be presented directly and unavoidably, and when surrounded with every circumstance which can best illustrate their character. If, in ordinary questions of private interest, this rule is recommended by considerations of prudence and accuracy and justice, it is surely much more to be observed when the subject to which it is applicable is the great fundamental law of the Confederacy, every clause and article of which affects the polity and the acts of States. Guided by the rule just mentioned, it seems to me that the regular action of the Court in this case is limited to an examination of the Pennsylvania statute, to a comparison of its provisions with the third clause of the Fourth Article of the Constitution, and with the act of Congress of 1793, with which the law of Pennsylvania is alleged to be in conflict, and that, to accomplish these purposes, a general definition or contrast of the powers of the state and Federal Governments was neither requisite nor proper. The majority of my brethren, in the conscientious discharge of their duty, have thought themselves bound to pursue a different course, and it is in their definition and distribution of state and federal powers, and in the modes and times they have assigned for the exercising those powers, that I find myself compelled to differ with them. That portion of the Constitution which provides for the recovery of fugitive shares is the third clause of the second section of the Fourth Article, and is in these words: "No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation herein, be discharged from such service or labor, but shall be delivered up, on claim of the party to whom such service or labor may be due." The paramount authority of this clause in the Constitution to guarantee to the owner the right of property in his slave, and the absolute nullity of any state power, directly or indirectly, openly or covertly, aimed to impair that right, or to obstruct its enjoyment, I admit, nay, insist upon, to the fullest extent. I contend, moreover that the Act of 1793, made in aid of this clause of the Constitution and for its enforcement, so far as it conforms to the Constitution, is the supreme law to the States; and cannot Page 41 U. S. 652 be contravened by them without a violation of the Constitution. But the majority of my brethren, proceeding beyond these positions, assume the ground that the clause of the Constitution above quoted, as an affirmative power granted by the Constitution, is essentially an exclusive power in the Federal Government, and consequently that any and every exercise of authority by the States at any time, though undeniably in aid of the guarantee thereby give, is absolutely null and void. Whilst I am free to admit the powers which are exclusive in the Federal Government, some of them became so denominated by the express terms of the Constitution, some because they are prohibited to the States, and others because their existence, and much more, their practical exertion by the two governments, would be repugnant, and would neutralize, if they did not conflict with and destroy, each other; I cannot regard the third clause of the Fourth Article as falling either within the definition or meaning of an exclusive power. Such a power I consider as originally and absolutely and at all times incompatible with partition or association; it excludes everything but itself. There is a class of powers, originally vested in the States, which, by the theory of the Federal Government, have been transferred to the latter; powers which the Constitution of itself does not execute, and which Congress may or may not enforce, either in whole or in part, according to its views of policy or necessity, or as it may find them for the time beneficially executed or otherwise under the state authorities. These are not properly concurrent, but may be denominated dormant powers in the Federal Government; they may at any time be awakened into efficient action by Congress, and from that time, so far as they are called into activity, will, of course, displace the powers of the States. But should they again be withdrawn or rendered dormant, or should their primitive exercise by the States never be interfered with by Congress, could it be properly said that, because they potentially existed in Congress, they were therefore denied to the States? The prosperity, the necessities, of the country and the soundest rules of constitutional construction appear to me to present a decided negative to this inquiry. Nay, I am prepared to affirm that, even in instances wherein Congress may have legislated, legislation by a State which is strictly ancillary would not be unconstitutional or improper. Page 41 U. S. 653 The interpretation for which I contend cannot be deemed a novelty in this Court, but rests upon more than one of its decisions upon the constitutional action of state authorities. In the case of Sturgis v. Crowninshield, which brought in question the right of the States to pass insolvent or bankrupt laws, Chief Justice Marshall holds the following doctrine (4 Wheat. 17 U. S. 192 -3): "The counsel for the plaintiff contend that the grant of this power to Congress, without limitation, takes it entirely from the States. In support of this proposition, they argue that every power given to Congress is necessarily supreme, and if, from its nature or from the words of the grant, it is apparently intended to be exclusive, it is as much so as if they were expressly forbidden to exercise it. These propositions have been enforced and illustrated by many arguments drawn from different parts of the Constitution. That the power is both unlimited and supreme is not questioned; that its is exclusive is denied by the counsel for the defendant. In considering this question, it must be recollected that, previous to the formation of the new Constitution, we were divided into independent States, united for some purposes, but in most respects sovereign. These States could exercise almost every legislative power, and, amongst others, that of passing bankrupt laws. When the American people created a National Legislature with certain enumerated powers, it was neither necessary nor proper to define the powers retained by the States. These powers remain as they were before the adoption of the Constitution, except so far as they may be abridged by that instrument. In some instances, as in making treaties, we find an express prohibition, and this shows the sense of the convention to have been that the mere grant of a power to Congress did not imply a prohibition on the States to the exercise of the same power." Again, p. 17 U. S. 198 , "it does not appear to be a violent construction of the Constitution, and is certainly a convenient one, to consider the powers of the States as existing over such cases as the laws of the Union do not reach. Be this as it may, the power of Congress may be exercised or declined as the wisdom of that body shall decide. It is not the mere existence of the power, but its exercise, which is incompatible with the exercise of the same power by the States. It has been said that Congress has exercised this power, and, by doing so, has extinguished the power of the States, which cannot Page 41 U. S. 654 be revived by repealing the law of Congress. We do not think so. If the right of the States is not taken away by the mere grant of that power to Congress, it cannot be extinguished; it can only be suspended by enacting a general bankrupt law. The repeal of that cannot, it is true, confer the power on the States, but it removes a disability to its exercise which was created by the act of Congress." In the case of Houston v. Moore , 6 Wheat. 1, 18 U. S. 48 , the following doctrine was held by Mr. Justice Story, and in accordance with the opinion of the Court in that case. "The Constitution containing a grant of powers, in many instances similar to those already existing in the state governments, and some of these being of vital importance also to state authority and state legislation, it is not to be admitted that a mere grant of powers in affirmative terms to Congress, does per se transfer an exclusive sovereignty in such subjects to the latter; on the contrary, a reasonable interpretation of that instrument necessarily leads to the conclusion that the powers so granted are never exclusive of similar powers existing in the States except where the Constitution has, in express terms, given an exclusive power to Congress, or the exercise of a like power is prohibited to the States. The example of the first class is to be found in the exclusive legislation delegated to Congress over places purchased by the consent of the legislature of the State in which the same shall be, for forts, arsenals, dock-yards, &c.; of the second class, the prohibition of a State to coin money or emit bills of credit; of the third class, as this Court have already held, is the power to establish an uniform rule of naturalization, and the delegation of admiralty and maritime jurisdiction. In all other cases not falling within the classes already mentioned, it seems unquestionable that the States retain concurrent authority with Congress not only under the Eleventh Amendment of the Constitution, but upon the soundest principles of general reasoning. There is this reserve, however, that, in cases of concurrent authority, where the laws of the States and of the Union are in direct and manifest collision on the same subject, those of the Union, being the supreme law of the land, are of paramount authority, and the state laws, so far, and so far only, as such incompatibility exists, must necessarily yield. Such are the general principles by which my judgment is guided in Page 41 U. S. 655 every investigation of constitutional points. They commend themselves by their intrinsic equity, and have been amply justified by the great men under whose guidance the Constitution was framed, as well as by the practice of the government of the Union. To desert them would be to deliver ourselves over to endless doubts and difficulties, and probably to hazard the existence of the Constitution itself." In the case or the City of New York v. Miln , 11 Pet. 102, Mr. Justice Barbour, in the delivering the opinion of the Court, lays down the following position (p. 36 U. S. 137 ), as directly deducible from the decision in Gibbons v. Ogden , 7 Wheat. 204, and Brown v. Maryland , 12 Wheat. 419: "Whilst a State is acting within the legitimate scope of its power as to the end to be attained, it may use whatever means, being appropriate to that end it may think fit, although they be the same, or so nearly the same as scarcely to be distinguished from those adopted by Congress acting under a different power, subject only to this limitation -- that, in the event of collision, the law of the State must yield to the law of Congress. The Court must be understood, of course, as meaning that the law of Congress is passed upon a subject within the sphere of its power." In the same case, the following language is held by Mr. Justice Thompson (p. 25 U. S. 145 ): "In the leading cases upon this question where the state law has been held to be constitutional, there has been an actual conflict between the legislation of Congress and that of the States upon the right drawn in question, and in all such cases, the law of Congress is supreme. But in the case now before the Court, no such conflict arises; Congress has not legislated on this subject in any manner to affect the question." And again (p. 25 U. S. 146 ), it is said by the same judge: "It is not necessary in this case to fix any limits upon the legislation of Congress and of the States on this subject or to say how far Congress may, under the power to regulate commerce, control state legislation in this respect. It is enough to say that, whatever the power of Congress may be, it has not been exercised so as in any manner to conflict with the state law, and if the mere grant of the power to Congress does not necessarily imply a prohibition of the States to exercise the power, until Congress assumes the power to exercise it, no objection on that ground can arise to this law. " Page 41 U. S. 656 Here, then, are recognitions, repeated and explicit, of the propriety, utility and regularity of state action, in reference to powers confessedly vested in the General Government, so long as the latter remains passive or shall embrace within its own action only a portion of its powers, and that portion not comprised in the proceedings of the state government, and so long as the States shall neither conflict with the measures of the Federal Government, nor contravene its policy. From these recognitions, it must follow by necessary consequence that powers vested in the Federal Government which are compatible with the modes of execution just adverted to cannot be essentially and originally, nor practically, exclusive powers, for whatever is exclusive utterly forbids, as has been previously observed, all partition or association. I hold, then that the States can establish proceedings which are in their nature calculated to secure the rights of the slaveholder guarantied to him by the Constitution; as I shall attempt to show that those rights can never be so perfectly secured as when the States shall, in good faith, exert their authority to assist in effectuating the guarantee given by the Constitution. Fugitives from service, in attempting to flee either to the non-slaveholding States or into the Canadas, must, in many instances, pass the intermediate States before they can attain to the point they aim at. If there is a power in the States to authorize and order their arrest and detention for delivery to their owners, not only will the probabilities of recovery be increased by the performance of duties enjoined by law upon the citizens of those States, as well private persons as those who are officers of the law, but the incitements of interest, under the hope of reward, will, in a certain class of persons, powerfully cooperate to the same ends. But let it be declared that the rights of arrest and detention, with a view of restoration to the owner, belong solely to the Federal Government, exclusive of the individual right of the owner to seize his property, and what are to be the consequences? In the first place, whenever the master, attempting to enforce his right of seizure under the Constitution, shall meet with resistance, the inconsiderable number of federal officers in a State and their frequent remoteness from the theatre of action must in numerous instances at once defeat his right of property and deprive him Page 41 U. S. 657 also of personal protection and security. By the removal of every incentive of interest in state officers or individuals, and by the inculcation of a belief that any cooperation with the master becomes a violation of law, the most active and efficient auxiliary which he could possibly call to his aid is entirely neutralized. Again, suppose that a fugitive from service should have fled to a State where slavery does not exist, and in which the prevalent feeling is hostile to that institution; there might nevertheless in such a community be a disposition to yield something to an acknowledged constitutional right -- something to national comity, too, in the preservation of that right; but let it once be proclaimed from this tribunal that any concession by the States towards the maintenance of such a right is a positive offense, the violation of a solemn duty, and I ask what pretext more plausible could be offered to those who are disposed to protect the fugitive, or to defeat the rights of the master? The Constitution and the act of Congress would thus be converted into instruments for the destruction of that which they were designed especially to protect. But it is said that, if the States can legislate at all upon the subject of fugitives from service, they may, under the guise of regulations for securing the master's right, enact laws which, in reality, impair or destroy them. This, like every other argument drawn from the possible abuse of power, is deemed neither fair nor logical. It is equally applicable to the exercise of power by the federal as by the state governments, and might be used in opposition to all power and all government, as it is undeniable that there is no power and no government which is not susceptible of great abuses. But those who argue from such possible or probable abuses against all regulations by the States touching this matter should dismiss their apprehensions under the recollection that, should those abuses be attempted, the corrective may be found, as it is now about to be applied to some extent, in the controlling constitutional authority of this Court. It has been said that the States, in the exercise of their police powers, may arrest and imprison vagrants or fugitives who may endanger the peace and good order of society; and by that means contribute to the recovery by the master of his fugitive slave. It should be recollected, however that the police power of a State has no natural affinity with her exterior relations, nor with those Page 41 U. S. 658 which she sustains to her sister States, but is confined to matters strictly belonging to her internal order and quiet. The arrest or confinement or restoration of a fugitive, merely because he is such, falls not regularly within the objects of police regulations, for such a person may be obnoxious to no charge of violence or disorder; he may be merely passing through the State peaceably and quietly, or he may be under the care and countenance of some person affecting ownership over him with the very view of facilitating his escape. Under such circumstances, he would not be a proper subject for the exertion of the police power, and, if not to be challenged under a different power in the State, his escape would be inevitable, however strong might be the evidences of his being a fugitive. But let it be supposed that, either on account of some offense actually committed or threatened or from some internal regulation forbidding the presence of such persons within a State, they may be deemed subjects for the exertion of the police power proper, to what end would the exercise of that power naturally lead? Fugitives might be arrested for punishment, or they might be expelled or deported from the State. Nothing beyond these could be legally accomplished, and thus the invocation of this police power, so far from securing the rights of the master, would be made an engine to insure the deprivation of his property. Such are a portion of the consequences which, in my opinion, must flow from the doctrines affirmed by the majority of the court -- doctrines, in my view, not warranted by the Constitution nor by the interpretation heretofore given of that instrument, and the assertion whereof seemed not to have been necessarily involved in the adjudication of this cause. With the convictions predominating in my mind as to the nature and tendencies of these doctrines, whilst I cherish the profoundest respect for the wisdom and purity of those who maintain them, it would be a dereliction of duty in me to yield to them a direct or a tacit acquiescence; I therefore declare my dissent from them. MR. JUSTICE McLEAN. As this case involves questions deeply interesting, if not vital, to the permanency of the Union of these States, and as I differ on one point from the opinion of the court, I deem it proper to state my own views on the subject. Page 41 U. S. 659 The plaintiff, Edward Prigg, was indicted under the first section of an act of Pennsylvania, entitled "An act to give effect to the provisions of the Constitution of the United States relative to fugitives from labor, for the protection of free people of color, and to prevent kidnapping." It provides, "If any person or persons shall, from and after the passing of this act, by force and violence, take and carry away, or cause to be taken or carried away, and shall, by fraud or false pretence seduce, or cause to be seduced, or shall attempt to take, carry away or seduce, any negro or mulatto, from any part or parts of this Commonwealth, to any other place or places whatsoever, out of this Commonwealth, with a design and intention of selling and disposing of, or of causing to be sold, or of keeping and detaining, or of causing to be kept and detained, such negro or mulatto, as a slave or servant for life, or for any term whatsoever; every such person or persons, his or their aiders or abettors, shall, on conviction thereof, be deemed guilty of felony, and shall be fined in a sum not less than five hundred nor more than one thousand dollars, and shall be sentenced to imprisonment and hard labor not less than seven nor more than twenty-one years." The plaintiff, being a citizen of Maryland, with others, took Margaret Morgan, a colored woman and a slave, by force and violence, without the certificate required by the act of Congress, from the State of Pennsylvania, and brought her to the State of Maryland. By an amicable arrangement between the two States, judgment was entered against the defendant in the court where the indictment was found, and, on the cause's being removed to the Supreme Court of the State, that judgment, pro forma, was affirmed. And the case is now here for our examination and decision. The last clause of the second section of the Fourth Article of the Constitution of the United States declares that "No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up, on claim of the party to whom such service or labor may be due." This clause of the Constitution is now for the first time brought before this Court for consideration. Page 41 U. S. 660 That the Constitution was adopted in a spirit of compromise is matter of history. And all experience shows that, to attain the great objects of this fundamental law, it must be construed and enforced in a spirit of enlightened forbearance and justice. Without adverting to other conflicting views and interests of the States represented in the general convention, the subject of slavery was then, as it is now, a most delicate and absorbing consideration. In some of the States, it was considered an evil, and a strong opposition to it, in all its forms, was felt and expressed. In others, it was viewed as a cherished right, incorporated into the social compact and sacredly guarded by law. Opinions so conflicting, and which so deeply pervaded the elements of society, could be brought to a reconciled action only by an exercise of exalted patriotism. Fortunately for the country, this patriotism was not wanting in the convention and in the States. The danger of discord and ruin was seen and felt and acknowledged, and this led to the formation of the Confederacy. The Constitution, as it is, cannot be said to have embodied in all its parts the peculiar views of any great section of the Union, but it was adopted by a wise and far-reaching conviction that it was the best which, under the circumstances, could be devised, and that its imperfections would be lost sight of, if not forgotten, in the national prosperity and glory which it would secure. A law is better understood by a knowledge of the evils which led to its adoption, and this applies most strongly to a fundamental law. At an early period of our history, slavery existed in all the colonies, and fugitives from labor were claimed and delivered up under a spirit of comity or conventional law among the colonies. The articles of confederation contained no provision on the subject, and there can be no doubt that the provision introduced into the Constitution was the result of experience and manifest necessity. A matter so delicate, important, and exciting was very properly introduced into the organic law. Does the provision in regard to the reclamation of fugitive slaves vest the power exclusively in the Federal Government? This must be determined from the language of the Constitution and the nature of the power. The language of the provision is general; it covers the whole Page 41 U. S. 661 ground, not in detail, but in principle. The States are inhibited from passing "any law or regulation which shall discharge a fugitive slave from the service of his master," and a positive duty is enjoined on them to deliver him up, "on claim of the party to whom his service may be due." The nature of the power shows that it must be exclusive. It was designed to protect the rights of the master, and against whom? Not against the State, nor the people of the State in which he resides, but against the people and the legislative action of other States where the fugitive from labor might be found. Under the Confederation, the master had no legal means of enforcing his rights in a State opposed to slavery. A disregard of rights thus asserted was deeply felt in the South; it produced great excitement, and would have led to results destructive of the Union. To avoid this, the constitutional guarantee was essential. The necessity for this provision was found in the views and feelings of the people of the States opposed to slavery, and who, under such an influence, could not be expected favorably to regard the rights of the master. Now, by whom is this paramount law to be executed? It is contended that the power to execute it rests with the States. The law was designed to protect the rights of the slaveholder against the States opposed to those rights, and yet, by this argument, the effective power is in the hands of those on whom it is to operate. This would produce a strange anomaly in the history of legislation; it would show an inexperience and folly in the venerable framers of the Constitution from which, of all public bodies that ever assembled, they were perhaps most exempt. The clause of the Constitution under consideration declares that no fugitive from labor shall be discharged from such labor by any law or regulation of the State into which he may have fled. Is the State to judge of this? Is it left for the State to determine what effect shall be given to this and other parts of the provision? This power is not susceptible of division; it is a part of the fundamental law, and pervades the Union; the rule of action which it prescribes was intended to be the same in all the States. This is essential to the attainment of the objects of the Page 41 U. S. 662 law; if the effect of it depended in any degree upon the construction of a State, by legislation or otherwise, its spirit, if not its letter, would be disregarded. This would not proceed from any settled determination in any State to violate the fundamental rule, but from habits and modes of reasoning on the subject; such is the diversity of human judgment that opposite conclusions, equally honest, are often drawn from the same premises. It is, therefore, essential to the uniform efficacy of his constitutional provision that it should be considered exclusively a federal power. It is, in its nature, as much so as the power to regulate commerce, or that of foreign intercourse. To give full effect to this provision, was legislation necessary? Congress, by the passage of the Act of 1793, legislated on the subject, and this shows how this provision was construed shortly after its adoption, and the reasons which were deliberately considered, and which led to the passage of the act, show clearly that it was necessary. These reasons will be more particularly referred to under another head of the argument. But looking only at the Constitution, the propriety, if not the necessity, of legislation is seen. The Constitution provides that the fugitive from labor shall be delivered up, on claim being made by the person entitled to such labor, but it is silent as to how and on whom this claim shall be made; the act of Congress provides for this defect and uncertainty by establishing the mode of procedure. It is contended that the power to legislate on this subject is concurrently in the States and Federal Government; that the act of the latter are paramount, but the acts of the former must be regarded as of authority until abrogated by the federal power. How a power exercised by one sovereignty can be called concurrent which may be abrogated by another, I cannot comprehend; a concurrent power, from its nature, I had supposed must be equal. If the Federal Government, by legislating on the subject, annuls all state legislation on the same subject, it must follow that the power is in the Federal Government, and not in the State. Taxation is a power common to a State and the General Government, and it is exercised by each, independently of the other; and this must be the character of all concurrent powers. It is said that a power may be vested in the Federal Government Page 41 U. S. 663 which remains dormant, and that, in such case, a State may legislate on the subject. In the case supposed, whence does the legislature derive its power? Is it derived from the Constitution of the State, or the Constitution of the United States? If the power is given by the state Constitution, it must follow that it may be exercised independently of the federal power, for it is presumed no one will sanction the doctrine that Congress, by legislation, may abridge the constitutional power of a State. How can the power of the State be derived from the federal Constitution? Is it assumed on the ground that Congress, having the power, have failed to exercise it? Where is such an assumption to end? May it not be applied with equal force and propriety to the whole ground of federal legislation, excepting only the powers inhibited to the States? Congress have not legislated upon a certain subject, but this does not show that they may not have duly considered it; or they may have acted without exhausting the power. Now, in my judgment, it is illogical and unconstitutional to hold that, in either of these cases, a State may legislate. Is this a vagrant power of the State, like a floating land warrant to be located on the first vacant spot that shall be found? May a State occupy a fragment of federal power which has not been exercised, and like a tenant at will, continue to occupy it until it shall have notice to quit? No such power is derived by implication from the federal Constitution. It defines the powers of the General Government, and imposes certain restrictions and duties on the States; but, beyond this, it in no degree affects the powers of the States. The powers which belong to a State are exercised independently; in its sphere of sovereignty, it stands on an equality with the Federal Government, and is not subject to its control. It would be as dangerous as humiliating to the rights of a State to hold that its legislative powers were exercised, to any extent and under any circumstances, subject to the paramount action of Congress; such a doctrine would lead to serious and dangerous conflicts of power. The Act of 1793 seems to cover the whole constitutional ground. The third section provides, "that when a person held to labor in any State or territory of the United States, under the laws Page 41 U. S. 664 thereof, shall escape into any other of the said States or territories, the person to whom such labor or service may be due, his agent or attorney, is empowered to seize or arrest such fugitive from labor, and to take him or her before any judge of the circuit or district courts of the United States, residing or being within the State, or before any magistrate of a county, city or town corporate, wherein such seizure or arrest shall be made, and upon proof, to the satisfaction of such judge or magistrate, either by oral testimony or affidavit, &c. that the person so seized or arrested, doth, under the laws of the State or territory from which he or she fled, owe service or labor to the person claiming him or her, it shall be the duty of such judge or magistrate, to give a certificate thereof to such claimant, his agent or attorney, which shall be sufficient warrant for removing said fugitive to the State from which he or she fled." The fourth section imposes a penalty on any person who shall obstruct or hinder such claimant, his agent or attorney, &c., or shall rescue such fugitive, when so arrested, &c. It seems to be taken as a conceded point in the argument that Congress had no power to impose duties on state officers as provided in the above act. As a general principle, this is true, but does not the case under consideration form an exception? Congress can no more regulate the jurisdiction of the state tribunals than a State can define the judicial power of the Union. The officers of each government are responsible only to the respective authorities under which they are commissioned. But do not the clauses in the Constitution in regard to fugitives from labor and from justice give Congress a power over state officers, on these subjects? The power in both the cases is admitted or proved to be exclusively in the Federal Government. The clause in the Constitution preceding the one in relation to fugitives from labor declares that, "a person charged in any State with treason, felony or other crime who shall flee from justice and be found in another State shall, on demand of the executive authority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the crime." In the first section of the Act of 1793, Congress have provided that, on demand being made as above, "it shall be the duty of Page 41 U. S. 665 the executive authority to cause the person demanded to be arrested," &c. The constitutionality of this law, it is believed, has never been questioned. It has been obeyed by the governors of States, who have uniformly acknowledged its obligation. To some demands, surrenders have not been made, but the refusals have in no instance been on the ground that the Constitution and act of Congress were of no binding force. Other reasons have been assigned. Now if Congress may, by legislation, require this duty to be performed by the highest state officer, may they not, on the same principle, require appropriate duties in regard to the surrender of fugitives from labor, by other state officers? Over these subjects, the constitutional power is the same. In both cases, the Act of 1793 defines on what evidence the delivery shall be made; this was necessary as the Constitution is silent on the subject. The act provides that, on claim's being made of a fugitive from labor, "it shall be the duty of such judge or magistrate to give a certificate that the person claimed owes services to the claimant." The Constitution requires "that such person shall be delivered up, on claim of the party to whom the service is due." Here is a positive duty imposed; and Congress have said in what mode this duty shall be performed. Had they not power to do so? If the Constitution was designed in this respect to require not a negative, but a positive, duty on the State and the people of the State where the fugitive from labor may be found (of which, it would seem, there can be no doubt), it must be equally clear that Congress may prescribe in what manner the claim and surrender shall be made. I am therefore brought to the conclusion that, although, as a general principle, Congress cannot impose duties on state officers, yet, in the cases of fugitives from labor and from justice, they have the power to do so. In the case of Martin v. Hunter's Lessee , 1 Wheat. 304, this Court say, "The language of the Constitution is imperative on the States as to the performance of many duties. It is imperative on the state legislatures to make laws prescribing the time, place and manner of holding elections for senators and representatives, and for electors of President and Vice-President. And in these as Page 41 U. S. 666 well as in other cases, Congress have a right to revise, amend or supersede the laws which may be passed by the state legislatures." Now I do not insist on the exercise of the federal power to the extent as here laid down. I go no further than to say that, where the Constitution imposes a positive duty on a State or its officers to surrender fugitives, Congress may prescribe the mode of proof and the duty of the state officers. This power may be resisted by a State, and there is no means of coercing it. In this view, the power may be considered an important one. So, the supreme court of a State may refuse to certify its record on a writ of error to the Supreme Court of the Union under the 25th section of the Judiciary Act. But resistance to a constitutional authority by any of the state functionaries should not be anticipated, and if made, the Federal Government may rely upon its own agency in giving effect to the laws. I come now to a most delicate and important inquiry in this case, and that is whether the claimant of a fugitive from labor may seize and remove him by force out of the State in which he may be found, in defiance of its laws. I refer not to laws which are in conflict with the Constitution, or the Act of 1793. Such state laws, I have already said, are void. But I have reference to those laws which regulate the police of the State, maintain the peace of its citizens, and preserve its territory and jurisdiction from acts of violence. About the time of the adoption of the Constitution, a colored man was seized by several persons in the State of Pennsylvania, and forcibly removed out of it with the intent, as charged, to enslave him. This act was then, as it is now, a criminal offense by the law of Pennsylvania. Certain persons were indicted for this offense, and, in the year 1791, the Governor of Pennsylvania demanded of the Governor of Virginia the persons indicted, as fugitives from justice. The Governor of Virginia submitted the case to the Attorney General of that State, who decided that the offense charged in the indictment was not such a crime as, under the Constitution, required a surrender. He also held "that control over the persons charged ought not to be acquired by any force not specified and delegated by positive law." The Governor of Virginia refused Page 41 U. S. 667 to arrest the defendants and deliver them to the authorities of Pennsylvania. The correspondence between the Governors, and the opinion of the Attorney General of Virginia, with other papers relating to the case, were transmitted to the President of the United States, who laid them before Congress. And there can be no doubt that this correspondence, and the forcible removal of the colored person which gave rise to it, led to the passage of the Act of 1793. It is not unworthy of remark that a controversy on this subject should first have arisen, after the adoption of the Constitution, in Pennsylvania, and that, after a lapse of more than half a century, a controversy involving a similar act of violence should be brought before this Court, for the first time, from the same State. Both the Constitution and the Act of 1793 require the fugitive from labor to be delivered up on claim being made by the party or his agent to whom the service is due. Not that a suit should be regularly instituted; the proceeding authorized by the law is summary and informal. The fugitive is seized by the claimant, and taken before a judge or magistrate within the State, and on proof, parol or written that he owes labor to the claimant, it is made the duty of the judge or magistrate to give the certificate which authorizes the removal of the fugitive to the State from whence he absconded. The counsel inquire of whom the claim shall be made. And they represent that the fugitive, being at large in the State, is in the custody of no one, nor under the protection of the State, so that the claim cannot be made, and consequently that the claimant may seize the fugitive and remove him out of the State. A perusal of the act of Congress obviates this difficulty and the consequence which is represented as growing out of it. The act is framed to meet the supposed case. The fugitive is presumed to be at large, for the claimant is authorized to seize him; after seizure, he is in custody; before it, he was not; and the claimant is required to take him before a judicial officer of the State; and it is before such officer his claim is to be made. To suppose that the claim is not to be made, and indeed, cannot be, unless the fugitive be in the custody or possession of some public officer or individual is to disregard the letter and spirit of the Act of 1793. There is no act in the statute book more precise Page 41 U. S. 668 in its language and, as it would seem, less liable to misconstruction. In my judgment, there is not the least foundation in the act for the right asserted in the argument, to take the fugitive by force and remove him out of the State. Such a proceeding can receive no sanction under the act, for it is in express violation of it. The claimant, having seized the fugitive, is required by the act to take him before a federal judge within the State, or a state magistrate within the county, city or town corporate, within which the seizure was made. Nor can there be any pretence that, after the seizure under the statute, the claimant may disregard the other express provision of it by taking the fugitive, without claim, out of the State. But it is said, the master may seize his slave wherever he finds him, if by doing so he does not violate the public peace; that the relation of master and slave is not affected by the laws of the State to which the slave may have fled and where he is found. If the master has a right to seize and remove the slave without claim, he can commit no breach of the peace by using all the force necessary to accomplish his object. It is admitted that the rights of the master, so far at regards the services of the slave, are not impaired by this change, but the mode of asserting them, in my opinion, is essentially modified. In the State where the service is due, the master needs no other law than the law of force to control the action of the slave. But can this law be applied by the master in a State which makes the act unlawful? Can the master seize his slave and remove him out of the State, in disregard of its laws, as he might take his horse which is running at large? This ground is taken in the argument. Is there no difference in principle in these cases? The slave, as a sensible and human being, is subject to the local authority into whatsoever jurisdiction he may go; he is answerable under the laws for his acts, and he may claim their protection; the State may protect him against all the world except the claim of his master. Should anyone commit lawless violence on the slave, the offender may unquestionably be punished; and should the slave commit murder, he may be detained and punished for it by the State in disregard of the claim of the Page 41 U. S. 669 master. Being within the jurisdiction of a State, a slave bears a very different relation to it from that of mere property. In a State where slavery is allowed, every colored person is presumed to be a slave, and, on the same principle, in a non-slaveholding State, every person is presumed to be free, without regard to color. On this principle, the States, both slaveholding and non-slaveholding, legislate. The latter may prohibit, as Pennsylvania has done, under a certain penalty, the forcible removal of a colored person out of the State. Is such law in conflict with the Act of 1793? The Act of 1793 authorizes a forcible seizure of the slave by the master not to take him out of the State, but to take him before some judicial officer within it. The law of Pennsylvania punishes a forcible removal of a colored person out of the State. Now here is no conflict between the law of the State and the law of Congress; the execution of neither law can, by any just interpretation, in my opinion, interfere with the execution of the other; the laws in this respect stand in harmony with each other. It is very clear that no power to seize and forcibly remove the slave, without claim, is given by the act of Congress. Can it be exercised under the Constitution? Congress have legislated on the constitutional power, and have directed the mode in which it shall be executed. The act, it is admitted, covers the whole ground, and that it is constitutional there seems to be no reason to doubt. Now, under such circumstances, can the provisions of the act be disregarded, and an assumed power set up under the Constitution? This is believed to be wholly inadmissible by any known rule of construction. The terms of the Constitution are general, and, like many other powers in that instrument, require legislation. In the language of this Court in Martin v. Hunter's Lessee , 1 Wheat. 304, "the powers of the Constitution are expressed in general terms, leaving to the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers as its own wisdom and the public interests should require." This Congress have done by the Act of 1793. It gives a summary and effectual mode of redress to the master, and is he not Page 41 U. S. 670 bound to pursue it? It is the legislative construction of the Constitution, and is it not a most authoritative construction? I was not prepared to hear the counsel contend that, notwithstanding this exposition of the Constitution, and ample remedy provided in the act, the master might disregard the act and set up his right under the Constitution. And, having taken this step, it was easy to take another and say that this right may be asserted by a forcible seizure and removal of the fugitive. This would be a most singular constitutional provision. It would extend the remedy by recaption into another sovereignty, which is sanctioned neither by the common law nor the law of nations. If the master may lawfully seize and remove the fugitive out of the State where he may be found, without an exhibition of his claim, he may lawfully resist any force, physical or legal, which the State, or the citizens of the State, may interpose. To hold that he must exhibit his claim in case of resistance is to abandon the ground assumed. He is engaged, it is said, in the lawful prosecution of a constitutional right; all resistance, then, by whomsoever made or in whatsoever form, must be illegal. Under such circumstances, the master needs no proof of his claim, though he might stand in need of additional physical power; having appealed to his power, he has only to collect a sufficient force to put down all resistance and attain his object; having done this, he not only stands acquitted and justified, but he has recourse for any injury he may have received in overcoming the resistance. If this be a constitutional remedy, it may not always be a peaceful one. But if it be a rightful remedy that it may be carried to this extent no one can deny. And if it may be exercised without claim of right, why may it not be resorted to after the unfavorable decision of the judge or magistrate? This would limit the necessity of the exhibition of proof by the master to the single case where the slave was in the actual custody of some public officer. How can this be the true construction of the Constitution? That such a procedure is not sanctioned by the Act of 1793 has been shown. That act was passed expressly to guard against acts of force and violence. I cannot perceive how anyone can doubt that the remedy Page 41 U. S. 671 given in the Constitution, if, indeed, it give any remedy, without legislation, was designed to be a peaceful one; a remedy sanctioned by judicial authority; a remedy guarded by the forms of law. But the inquiry is reiterated, is not the master entitled to his property? I answer that he is. His right is guarantied by the Constitution, and the most summary means for its enforcement is found in the act of Congress, and neither the State nor its citizens can obstruct the prosecution of this right. The slave is found in a State where every man, black or white, is presumed to be free, and this State, to preserve the peace of its citizens, and its soil and jurisdiction from acts of violence, has prohibited the forcible abduction of persons of color. Does this law conflict with the Constitution? It clearly does not, in its terms. The conflict is supposed to arise out of the prohibition against the forcible removal of persons of color generally, which may include fugitive slaves. Prima facie it does not include slaves, as every man within the State is presumed to be free, and there is no provision in the act which embraces slaves. Its language clearly shows that it was designed to protect free persons of color within the State. But it is admitted there is no exception as to the forcible removal of slaves, and here the important and most delicate question arises between the power of the State and the assumed but not sanctioned power of the Federal Government. No conflict can arise between the act of Congress and this State law; the conflict can only arise between the forcible acts of the master and the law of the State. The master exhibits no proof of right to the services of the slave, but seizes him and is about to remove him by force. I speak only of the force exerted on the slave. The law of the State presumes him to be free and prohibits his removal. Now, which shall give way, the master or the State? The law of the State does in no case discharge, in the language of the Constitution, the slave from the service of his master. It is a most important police regulation. And if the master violate it, is he not amenable? The offense consists in the abduction of a person of color, and this is attempted to be justified upon the simple ground that the slave is property. That a Page 41 U. S. 672 slave is property must be admitted. The state law is not violated by the seizure of the slave by the master, for this is authorized by the act of Congress, but by removing him out of the State by force and without proof of right, which the act does not authorize. Now, is not this an act which a State may prohibit? The presumption, in a non-slaveholding State, is against the right of the master, and in favor of the freedom of the person he claims. This presumption may be rebutted, but until it is rebutted by the proof required in the Act of 1793, and also, in my judgment, by the Constitution, must not the law of the State be respected and obeyed? The seizure which the master has a right to make under the act of Congress, is for the purpose of taking the slave before an officer. His possession the subject for which it was made. The certificate of right to the service the subject for which it was made. The certificate of right to the service of the slave is undoubtedly for the protection of the master, but it authorizes the removal of the slave out of the State where he was found to the State from whence he fled, and, under the Constitution, this authority is valid in all the States. The important point is shall the presumption of right set up by the master, unsustained by any proof or the presumption which arises from the laws and institutions of the State, prevail; this is the true issue. The sovereignty of the State is on one side, and the asserted interest of the master on the other; that interest is protected by the paramount law, and a special, a summary, and an effectual, mode of redress is given. But this mode is not pursued, and the remedy is taken into his own hands by the master. The presumption of the State that the colored person is free may be erroneous in fact, and, if so, there can be no difficulty in proving it. But may not the assertion of the master be erroneous also, and, if so, how is his act of force to be remedied? The colored person is taken and forcibly conveyed beyond the jurisdiction of the State. This force, not being authorized by the act of Congress nor by the Constitution, may be prohibited by the State. As the act covers the whole power in the Constitution and carries out, by special enactments, its provisions, we are, in my judgment, Page 41 U. S. 673 bound by the act. We can no more, under such circumstances, administer a remedy under the Constitution in disregard of the act than we can exercise a commercial or other power in disregard of an act of Congress on the same subject. This view respects the rights of the master and the rights of the State; it neither jeopards nor retards the reclamation of the slave; it removes all state action prejudicial to the rights of the master; and recognizes in the State a power to guard and protect its own jurisdiction and the peace of its citizen. It appears in the case under consideration that the state magistrate before whom the fugitive was brought refused to act. In my judgment, he was bound to perform the duty required of him by a law paramount to any act, on the same subject, in his own State. But this refusal does not justify the subsequent action of the claimant; he should have taken the fugitive before a judge of the United States, two of whom resided within the State. It may be doubted, whether the first section of the act of Pennsylvania under which the defendant was indicted, by a fair construction, applies to the case under consideration. The decision of the Supreme Court of that State was pro forma, and, of course, without examination. Indeed, I suppose, the case has been made up merely to bring the question before this Court. My opinion, therefore, does not rest so much upon the particular law of Pennsylvania as upon the inherent and sovereign power of a State to protect its jurisdiction and the peace of its citizens in any and every mode which its discretion shall dictate, which shall not conflict with a defined power of the Federal Government. This cause came on to be heard on the transcript of the record from the Supreme Court of Pennsylvania, and was argued by counsel, on consideration whereof it is the opinion of this Court that the act of the Commonwealth of Pennsylvania upon which the indictment in this case is founded is repugnant to the Constitution and laws of the United States, and therefore, void, and that the judgment of the Supreme Court of Pennsylvania upon the special verdict found in the case ought to have been that the said Edward Prigg was not guilty. It is, therefore, ordered and adjudged by this Court that the judgment of the said Supreme Court of Pennsylvania be, and the same is hereby, reversed. Page 41 U. S. 674 And this Court proceeding to render such judgment in the premises as the said Supreme Court of Pennsylvania ought to have rendered, do hereby order and adjudge that judgment upon the special verdict aforesaid be here entered that the said Edward Prigg is not guilty in manner and form as is charged against him in the said indictment, and that he go thereof quit, without day; and that this cause be remanded to the Supreme Court of Pennsylvania with directions accordingly, so that such other proceeding may be had therein as to law and justice shall appertain.

In the case of Prigg v. Pennsylvania (1842), the U.S. Supreme Court ruled that a Pennsylvania state law prohibiting the kidnapping of free Black people and returning them to slavery was unconstitutional. The Court held that the Fugitive Slave Clause of the U.S. Constitution gave Congress exclusive power over fugitive slave legislation, thus invalidating any conflicting state laws. The Court's decision prioritized the rights of slaveowners and federal authority over state efforts to protect free Black individuals from kidnapping and enslavement.

Powers of Congress

Missouri v. Holland

https://supreme.justia.com/cases/federal/us/252/416/

U.S. Supreme Court State of Missouri v. Holland, 252 U.S. 416 (1920) State of Missouri v. Holland No. 609 Argued March 2, 1920 Decided April 19, 1920 252 U.S. 416 APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MISSOURI Syllabus Protection of its quasi -sovereign right to regulate the taking of game is a sufficient jurisdictional basis, apart from any pecuniary interest, for a bill by a State to enjoin enforcement of federal regulations over the subject alleged to be unconstitutional. P. 252 U. S. 431 . The Treaty of August 16, 1916, 39 Stat. 1702, with Great Britain, providing for the protection, by close seasons and in other ways, of migratory birds in the United States and Canada, and binding each power to take and propose to their lawmaking bodies the necessary measures for carrying it out, is within the treaty-making power conferred by Art. II, § 2, of the Constitution; the Act of July 3, 1918, c. 128, 40 Stat. 755, which prohibits the killing, capturing or selling any of the migratory birds included in the terms of the treaty, except as permitted by regulations compatible with those terms to be made by the Secretary of Agriculture, is valid under Art. I, § 8, of the Constitution, as a necessary and proper means of effectuating the treaty, and the treaty and statute, by bringing such birds within the paramount protection and regulation of the Government do not infringe property rights or sovereign powers respecting such birds reserved to the States by the Tenth Amendment. P. 252 U. S. 432 . Page 252 U. S. 417 With respect to right reserved to the State, the treaty-making power is not limited to what may be done by an unaided act of Congress. P. 252 U. S. 432 . 258 Fed. Rep. 479, affirmed. The case is stated in the opinion. Page 252 U. S. 430 MR. JUSTICE HOLMES delivered the opinion of the court. This is a bill in equity brought by the State of Missouri to prevent a game warden of the United States from attempting to enforce the Migratory Bird Treaty Act of Page 252 U. S. 431 July 3, 1918, c. 128, 40 Stat. 755, and the regulations made by the Secretary of Agriculture in pursuance of the same. The ground of the bill is that the statute is an unconstitutional interference with the rights reserved to the States by the Tenth Amendment, and that the acts of the defendant done and threatened under that authority invade the sovereign right of the State and contravene its will manifested in statutes. The State also alleges a pecuniary interest, as owner of the wild birds within its borders and otherwise, admitted by the Government to be sufficient, but it is enough that the bill is a reasonable and proper means to assert the alleged quasi sovereign rights of a State. Kansas v. Colorado, 185 U. S. 125 , 185 U. S. 142 . Georgia v. Tennessee Copper Co., 206 U. S. 230 , 206 U. S. 237 . Marshall Dental Manufacturing Co. v. Iowa, 226 U. S. 460 , 226 U. S. 462 . A motion to dismiss was sustained by the District Court on the ground that the act of Congress is constitutional. 258 Fed. Rep. 479. Acc., United States v. Thompson, 258 Fed. Rep. 257; United States v. Rockefeller, 260 Fed.Rep. 346. The State appeals. On December 8, 1916, a treaty between the United States and Great Britain was proclaimed by the President. It recited that many species of birds in their annual migrations traversed certain parts of the United States and of Canada, that they were of great value as a source of food and in destroying insects injurious to vegetation, but were in danger of extermination through lack of adequate protection. It therefore provided for specified close seasons and protection in other forms, and agreed that the two powers would take or propose to their lawmaking bodies the necessary measures for carrying the treaty out. 39 Stat. 1702. The above mentioned Act of July 3, 1918, entitled an act to give effect to the convention, prohibited the killing, capturing or selling any of the migratory birds included in the terms of the treaty except as permitted by regulations compatible with those terms, to be made by Page 252 U. S. 432 the Secretary of Agriculture. Regulations were proclaimed on July 31, and October 25, 1918. 40 Stat. 1812; 1863. It is unnecessary to go into any details because, as we have said, the question raised is the general one whether the treaty and statute are void as an interference with the rights reserved to the States. To answer this question, it is not enough to refer to the Tenth Amendment, reserving the powers not delegated to the United States, because, by Article II, § 2, the power to make treaties is delegated expressly, and by Article VI treaties made under the authority of the United States, along with the Constitution and laws of the United States made in pursuance thereof, are declared the supreme law of the land. If the treaty is valid, there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government. The language of the Constitution as to the supremacy of treaties being general, the question before us is narrowed to an inquiry into the ground upon which the present supposed exception is placed. It is said that a treaty cannot be valid if it infringes the Constitution, that there are limits, therefore, to the treaty-making power, and that one such limit is that what an act of Congress could not do unaided, in derogation of the powers reserved to the States, a treaty cannot do. An earlier act of Congress that attempted by itself and not in pursuance of a treaty to regulate the killing of migratory birds within the States had been held bad in the District Court. United States v. Shauver, 214 Fed.Rep. 154. United States v. McCullagh, 221 Fed.Rep. 288. Those decisions were supported by arguments that migratory birds were owned by the States in their sovereign capacity for the benefit of their people, and that, under cases like Geer v. Connecticut, 161 U. S. 519 , this control was one that Congress had no power to displace. The same argument is supposed to apply now with equal force. Page 252 U. S. 433 Whether the two cases cited were decided rightly or not, they cannot be accepted as a test of the treaty power. Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention. We do not mean to imply that there are no qualifications to the treaty-making power, but they must be ascertained in a different way. It is obvious that there may be matters of the sharpest exigency for the national wellbeing that an act of Congress could not deal with, but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, "a power which must belong to and somewhere reside in every civilized government" is not to be found. Andrews v Andrews, 188 U. S. 14 , 188 U. S. 33 . What was said in that case with regard to the powers of the States applies with equal force to the powers of the nation in cases where the States individually are incompetent to act. We are not yet discussing the particular case before us, but only are considering the validity of the test proposed. With regard to that we may add that, when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience, and not merely in that of what was said a hundred years ago. The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether Page 252 U. S. 434 it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that Amendment has reserved. The State, as we have intimated, founds its claim of exclusive authority upon an assertion of title to migratory birds, an assertion that is embodied in statute. No doubt it is true that, as between a State and its inhabitants, the State may regulate the killing and sale of such birds, but it does not follow that its authority is exclusive of paramount powers. To put the claim of the State upon title is to lean upon a slender reed. Wild birds are not in the possession of anyone, and possession is the beginning of ownership. The whole foundation of the State's rights is the presence within their jurisdiction of birds that yesterday had not arrived, tomorrow may be in another State, and, in a week, a thousand miles away. If we are to be accurate, we cannot put the case of the State upon higher ground than that the treaty deals with creatures that, for the moment are within the state borders, that it must be carried out by officers of the United States within the same territory, and that, but for the treaty, the State would be free to regulate this subject itself. As most of the laws of the United States are carried out within the States and as many of them deal with matters which, in the silence of such laws, the State might regulate, such general grounds are not enough to support Missouri's claim. Valid treaties, of course, "are as binding within the territorial limits of the States as they are elsewhere throughout the dominion of the United States." Baldwin v. Franks, 120 U. S. 678 , 120 U. S. 683 . No doubt the great body of private relations usually fall within the control of the State, but a treaty may override its power. We do not have to invoke the later developments of constitutional law for this proposition; it was recognized as early as Hopkirk v. Bell , 3 Cranch 454, with regard to statutes Page 252 U. S. 435 of limitation, and even earlier, as to confiscation, in Ware v. Hylton , 3 Dall.199. It was assumed by Chief Justice Marshall with regard to the escheat of land to the State in Chirac v. Chirac , 2 Wheat. 259, 15 U. S. 275 . Haguenstein v. Lynham, 100 U. S. 483 . Geofroy v. Riggs, 133 U. S. 258 . Blythe v. Hinckley, 180 U. S. 333 , 180 U. S. 340 . So as to a limited jurisdiction of foreign consuls within a State. Wildenhus' Case, 120 U. S. 1 . See Ross v. McIntyre, 140 U. S. 453 . Further illustration seems unnecessary, and it only remains to consider the application of established rules to the present case. Here, a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. The subject matter is only transitorily within the State, and has no permanent habitat therein. But for the treaty and the statute, there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed. It is not sufficient to rely upon the States. The reliance is vain, and were it otherwise, the question is whether the United States is forbidden to act. We are of opinion that the treaty and statute must be upheld. Carey v. South Dakota, 250 U. S. 118 . Decree affirmed. MR. JUSTICE VAN DEVANTER and MR. JUSTICE PITNEY dissent.

In *State of Missouri v. Holland*, the Supreme Court upheld the validity of a treaty between the United States and Great Britain for the protection of migratory birds, along with a federal statute enacted to implement the treaty. The Court ruled that the treaty-making power of the federal government under the Constitution allowed it to enter into such agreements, even if they impact areas typically regulated by states. The Court further asserted that the federal government has a "national interest" in protecting migratory birds, which are only temporarily within state borders and face the risk of extinction without coordinated action. This decision established the precedence of federal treaties and statutes over state regulations when addressing issues of national significance.

Powers of Congress

Steward Machine Co. v. Davis

https://supreme.justia.com/cases/federal/us/301/548/

U.S. Supreme Court Steward Mach. Co. v. Collector, 301 U.S. 548 (1937) Steward Machine Co. v. Collector of Internal Revenue No. 837 Argued April 8, 9, 1937 Decided May 24, 1937 301 U.S. 548 CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT Syllabus 1. The tax imposed by Title IX of the Social Security Act of August 14, 1935, upon the employer of labor, described as "an excise tax with respect to having individuals in his employ," and which is measured by prescribed percentages of the total wages payable by the employer during the calendar year, is either an "excise," a "duty," or an "impost," within the intent of Art. I, Sec. 8, of the Constitution, and complies with the requirement of uniformity throughout the United States. Pp. 301 U. S. 578 , 301 U. S. 583 . 2. The enjoyment of common rights, such as the right to employ labor, may constitutionally be taxed. P. 301 U. S. 578 . Such taxation was practiced in England and among the Colonies before the adoption of the Constitution. P. 301 U. S. 579 . 3. The fact that the Social Security Act, Title IX, supra, exempts from the tax employers of less than eight, and does not apply in respect of agricultural labor, domestic service in private homes, and some other classes of employment does not render it obnoxious to the Fifth Amendment. P. 301 U. S. 584 . A classification supported by considerations of public policy and practical convenience, which would be valid under the equal protection clause of the Fourteenth Amendment if adopted by a State, is lawful, a fortiori, in the legislation of Congress, since the Fifth Amendment contains no equal protection clause. 4. The proceeds of the tax imposed on employers by Title IX of the Social Security Act, supra, go into the Treasury of the United States without earmark, like internal revenue collections generally. The taxpayer is entitled to credit against the federal tax (up to 90% thereof) what he has contributed during the tax year under a state unemployment law, provided that the state law shall have been certified by the Federal Social Security Board to the Secretary of the Treasury as satisfying certain conditions designed to assure that the state law is genuinely an unemployment compensation law and that contributions will Page 301 U. S. 549 be used solely in the payment of compensation and be protected against loss after the payment to the State. To these ends, Title IX provides, among other things, that, to be approved by the federal Commission, the state law shall direct that all money received in the state unemployment fund shall immediately upon such receipt be paid over to the Secretary of the Treasury to the credit of an "Unemployment Trust Fund," and that all money withdrawn from the Unemployment Trust Fund by the state agency shall be used solely in the payment of compensation, exclusive of expenses of administration. The Secretary is empowered to invest in Government securities any portion of this fund which, in his judgment, is not required to meet current withdrawals, and out of it he is directed to pay to any competent state agency such sums as it may duly requisition from the amount standing to its credit. The taxpayer's credit against the federal tax depends on compliance with these statutory conditions; the State, however, is under no contractual obligation to comply, but, at its pleasure, may repeal its unemployment law, and withdraw its deposit from the federal Treasury. Held: (1) Assuming that the federal tax cannot be treated as a revenue provision standing apart, but must be tested in combination with the 90% credit provision, the tax is not void as involving an unconstitutional attempt to coerce the States to adopt unemployment compensation legislation approved by the Federal Government. P. 301 U. S. 585 . (2) The problem of unemployment is national as well as local, and in promotion of the general welfare moneys of the Nation may be used to relieve the unemployed and their dependents in economic depressions and to guard against such disasters. P. 301 U. S. 586 . (3) Title IX may be sustained as a cooperative plan whereby States may be set free to provide unemployment compensation without subjecting themselves to economic disadvantages resulting from the absence of such provision in other States, and whereby, through the assumption of such burdens by the States generally, the financial burden of tho Nation due to unemployment may be correspondingly decreased. P. 301 U. S. 587 . Duplicated taxes, or burdens that approach them, are hardships that government, state or national, may properly avoid. P. 301 U. S. 589 . (4) Every rebate from a tax, when conditioned upon conduct, is in some measure a temptation; but motive or temptation is not equivalent to coercion. P. 301 U. S. 589 . Page 301 U. S. 550 (5) If it be true to say that a power akin to undue influence may be exerted by the national Government on the States, the location of the point at which pressure turns into compulsion, and ceases to be inducement, would be a question of degree -- at times, perhaps, of fact. The point had not been reached when Alabama, by passing her unemployment compensation law, evinced her choice to have relief administered under laws of her own making, by agents of her own selection, instead of under federal laws, administered by federal officers. P. 301 U. S. 589 . It is one thing to impose a federal tax dependent upon the conduct of the taxpayers, or of the State in which they live, where the conduct to be stimulated or discouraged is unrelated to the fiscal need subserved by the tax in its normal operation, or to any other end legitimately national. It is quite another thing to say that a tax will be abated upon the doing of an act that will satisfy the fiscal need, the tax and the alternative being approximate equivalents. In such circumstances, if in no others, inducement or persuasion does not go beyond the bounds of power. P. 301 U. S. 591 . 5. No surrender of powers essential to the quasi -sovereign existence of States is required by § 903 of Title IX of the Social Security Act, which defines the minimum criteria to which a state compensation system is required to conform if it is to be accepted by the Social Security Board as the basis for credits against the taxes laid on employers by that Title; nor by § 904, which deals with the deposit, investment and withdrawal of the moneys credited. P. 301 U. S. 593 . 6. Semble that the States may constitutionally make with Congress such agreements as do not impair the essence of their statehood. P. 301 U. S. 597 . 7. Title III of the Social Security Act, which appropriates no money but authorizes the making of future appropriations for the purpose of assisting the States in the administration of their unemployment compensation laws, is severable from Title IX, and its validity is not in issue. P. 598. 89 F.2d 207, affirmed. This was a review, on certiorari, 300 U.S. 652, of a judgment of the court below affirming the dismissal of the complaint in an action for the recovery of money paid by the plaintiff as a tax under Title IX of the Social Security Act. Page 301 U. S. 573 MR. JUSTICE CARDOZO delivered the opinion of the Court. The validity of the tax imposed by the Social Security Act on employers of eight or more is here to be determined. Petitioner, an Alabama corporation, paid a tax in accordance with the statute, filed a claim for refund with the Commissioner of Internal Revenue, and sued to recover the payment ($46.14), asserting a conflict between the statute and the Constitution of the United States. Upon demurrer the District Court gave judgment for the defendant dismissing the complaint, and the Circuit Court of Appeals for the Fifth Circuit affirmed. 89 F.2d 207. The decision is in accord with judgments of the Supreme Judicial Court of Massachusetts ( Howes Brothers Co. v. Massachusetts Unemployment Compensation Comm'n, December 30, 1936, 5 N.E.2d 720), the Supreme Court of California ( Gillum v. Johnson, 7 Cal. 2d 744 , 62 P.2d 1037), and the Supreme Court of Alabama ( Beeland Wholesale Co. v. Kaufman, 174 So. 516). It is in conflict with a judgment of the Circuit Court of Appeals for the First Circuit, from which one judge dissented. Davis v. Boston & Maine R. Co., 89 F.2d 368. An important question of constitutional law being involved, we granted certiorari. Page 301 U. S. 574 The Social Security Act (Act of August 14, 1935, c. 531, 49 Stat. 620, 42 U.S.C. c. 7 (Supp.)) Is divided into eleven separate titles, of which only Titles IX and III are so related to this case as to stand in need of summary. The caption of Title IX is "Tax on Employers of Eight or More." Every employer (with stated exceptions) is to pay for each calendar year "an excise tax, with respect to having individuals in his employ," the tax to be measured by prescribed percentages of the total wages payable by the employer during the calendar year with respect to such employment. § 901. One is not, however, an "employer" within the meaning of the act unless he employs eight persons or more. § 907(a). There are also other limitations of minor importance. The term "employment" too has its special definition, excluding agricultural labor, domestic service in a private home and some other smaller classes. § 907(c). The tax begins with the year 1936, and is payable for the first time on January 31, 1937. During the calendar year 1936, the rate is to be one percent, during 1937 two percent, and three percent thereafter. The proceeds, when collected, go into the Treasury of the United States like internal revenue collections generally. § 905(a). They are not earmarked in any way. In certain circumstances, however, credits are allowable. § 902. If the taxpayer has made contributions to an unemployment fund under a state law, he may credit such contributions against the federal tax, provided, however, that the total credit allowed to any taxpayer shall not exceed 90 percentum of the tax against which it is credited, and provided also that the state law shall have been certified to the Secretary of the Treasury by the Social Security Board as satisfying certain minimum criteria. § 902. The provisions of § 903 defining those criteria are stated in the Page 301 U. S. 575 margin. [ Footnote 1 ] Some of the conditions thus attached to the allowance of a credit are designed to give assurance that the state unemployment compensation law shall be one in substance as well as name. Others are designed to give assurance that the contributions shall be protected against loss after payment to the state. To this last end, there Page 301 U. S. 576 are provisions that, before a state law shall have the approval of the Board it must direct that the contributions to the state fund be paid over immediately to the Secretary of the Treasury to the credit of the "Unemployment Trust Fund." Section 904 establishing this fund is quoted below. [ Footnote 2 ] For the moment, it is enough to say that the Fund is to be held by the Secretary of the Treasury, who is to invest in government securities any portion not required in his judgment to meet current withdrawals. He is authorized and directed to pay out of the Fund to any competent state agency such sums as it may duly requisition from the amount standing to its credit. § 904(f). Page 301 U. S. 577 Title III, which is also challenged as invalid, has the caption "Grants to States for Unemployment Compensation Administration." Under this title, certain sums of money are "authorized to be appropriated" for the purpose of assisting the states in the administration of their unemployment compensation laws, the maximum for the fiscal year ending June 30, 1936, to be $4,000,000, and $49,000,000 for each fiscal year thereafter. § 301. No present appropriation is made to the extent of a single dollar. All that the title does is to authorize future appropriations. Actually only $2,250,000 of the $4,000,000 authorized was appropriated for 1936 (Act of Feb. 11, Page 301 U. S. 578 1936, c. 49, 49 Stat. 1109, 1113) and only $29,000,000 of the $49,000,000 authorized for the following year. Act of June 22, 1936, c. 689, 49 Stat. 1597, 1605. The appropriations, when made, were not specifically out of the proceeds of the employment tax, but out of any moneys in the Treasury. Other sections of the title prescribe the method by which the payments are to be made to the state (§ 302) and also certain conditions to be established to the satisfaction of the Social Security Board before certifying the propriety of a payment to the Secretary of the Treasury. § 303. They are designed to give assurance to the Federal Government that the moneys granted by it will not be expended for purposes alien to the grant, and will be used in the administration of genuine unemployment compensation laws. The assault on the statute proceeds on an extended front. Its assailants take the ground that the tax is not an excise; that it is not uniform throughout the United States, as excises are required to be; that its exceptions are so many and arbitrary as to violate the Fifth Amendment; that its purpose was not revenue, but an unlawful invasion of the reserved powers of the states, and that the states, in submitting to it, have yielded to coercion and have abandoned governmental functions which they are not permitted to surrender. The objections will be considered seriatim, with such further explanation as may be necessary to make their meaning clear. First. The tax, which is described in the statute as an excise, is laid with uniformity throughout the United States as a duty, an impost or an excise upon the relation of employment. 1. We are told that the relation of employment is one so essential to the pursuit of happiness that it may not be burdened with a tax. Appeal is made to history. From the precedents of colonial days, we are supplied with Page 301 U. S. 579 illustrations of excises common in the colonies. They are said to have been bound up with the enjoyment of particular commodities. Appeal is also made to principle or the analysis of concepts. An excise, we are told, imports a tax upon a privilege; employment, it is said, is a right, not a privilege, from which it follows that employment is not subject to an excise. Neither the one appeal nor the other leads to the desired goal. As to the argument from history: doubtless there were many excises in colonial days and later that were associated, more or less intimately, with the enjoyment or the use of property. This would not prove, even if no others were then known, that the forms then accepted were not subject to enlargement. Cf. Pensacola Telegraph Co. v. Western Union, 96 U. S. 1 , 96 U. S. 9 ; In re Debs, 158 U. S. 564 , 158 U. S. 591 ; South Carolina v. United States, 199 U. S. 437 , 199 U. S. 448 , 199 U. S. 449 . But, in truth, other excises were known, and known since early times. Thus, in 1695 (6 & 7 Wm. III, c. 6), Parliament passed an act which granted "to His Majesty certain Rates and Duties upon Marriage, Births and Burials," all for the purpose of "carrying on the War against France with Vigour." See Opinion of the Justices, 196 Mass. 603, 609, 85 N.E. 545. No commodity was affected there. The industry of counsel has supplied us with an apter illustration where the tax was not different in substance from the one now challenged as invalid. In 1777, before our Constitutional Convention, Parliament laid upon employers an annual "duty" of 21 shillings for "every male Servant" employed in stated forms of work. [ Footnote 3 ] Page 301 U. S. 580 Revenue Act of 1777, 17 George III, c. 39. [ Footnote 4 ] The point is made as a distinction that a tax upon the use of male servants was thought of as a tax upon a luxury. Davis v. Boston & Maine R. Co., supra. It did not touch employments in husbandry or business. This is to throw over the argument that historically an excise is a tax upon the enjoyment of commodities. But the attempted distinction, whatever may be thought of its validity, is inapplicable to a statute of Virginia passed in 1780. There, a tax of three pounds, six shillings and eight pence was to be paid for every male tithable above the age of twenty-one years (with stated exceptions), and a like tax for "every white servant whatsoever, except apprentices under the age of twenty one years." 10 Hening's Statutes of Virginia, p. 244. Our colonial forbears knew more about ways of taxing than some of their descendants seem to be willing to concede. [ Footnote 5 ] The historical prop failing, the prop or fancied prop of principle remains. We learn that employment for lawful gain is a "natural" or "inherent" or "inalienable" right, and not a "privilege" at all. But natural rights, so called, are as much subject to taxation as rights of less importance. [ Footnote 6 ] An excise is not limited to vocations or activities Page 301 U. S. 581 that may be prohibited altogether. It is not limited to those that are the outcome of a franchise. It extends to vocations or activities pursued as of common right. What the individual does in the operation of a business is amenable to taxation just as much as what he owns, at all events if the classification is not tyrannical or arbitrary. "Business is as legitimate an object of the taxing powers as property." Newton v. Atchison, 31 Kan. 151, 154 (per Brewer, J.), 1 Pac. 288. Indeed, ownership itself, as we had occasion to point out the other day, is only a bundle of rights and privileges invested with a single name. Henneford v. Silas Mason Co., 300 U. S. 577 . "A state is at liberty, if it pleases, to tax them all collectively, or to separate the faggots and lay the charge distributively." Ibid. Employment is a business relation, if not itself a business. It is a relation without which business could seldom be carried on effectively. The power to tax the activities and relations that constitute a calling considered as a unit is the power to tax any of them. The whole includes the parts. Nashville, C. & St.L. Ry. Co. v. Wallace, 288 U. S. 249 , 288 U. S. 267 , 288 U. S. 268 . The subject matter of taxation open to the power of the Congress is as comprehensive as that open to the power of the states, though the method of apportionment may at times be different. "The Congress shall have power to lay and collect taxes, duties, imposts and excises." Art. 1, § 8. If the tax is a direct one, it shall be apportioned according to the census or enumeration. If it is a duty, impost, or excise, it shall be uniform throughout the United States. Together, these classes include every form of tax appropriate to sovereignty. Cf. Burnet v. Brooks, 288 U. S. 378 , 288 U. S. 403 , 288 U. S. 405 ; Brushaber v. Union Pacific R. Co., 240 U. S. 1 , 240 U. S. 12 . Whether the tax is to be Page 301 U. S. 582 classified as an "excise" is in truth not of critical importance. If not that, it is an "impost" ( Pollock v. Farmers' Loan & Trust Co., 158 U. S. 601 , 158 U. S. 622 , 158 U. S. 625 ; Pacific Insurance Co. v. Soble , 7 Wall. 433, 74 U. S. 445 ), or a "duty" ( Veazie Bank v. Fenno , 8 Wall. 533, 75 U. S. 546 , 75 U. S. 547 ; Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429 , 157 U. S. 570 ; Knowlton v. Moore, 178 U. S. 41 , 178 U. S. 46 ). A capitation or other "direct" tax it certainly is not. "Although there have been from time to time intimations that there might be some tax which was not a direct tax nor included under the words 'duties, imposts and excises,' such a tax for more than one hundred years of national existence has as yet remained undiscovered, notwithstanding the stress of particular circumstances has invited thorough investigation into sources of powers." Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429 , 157 U. S. 557 . There is no departure from that thought in later cases, but rather a new emphasis of it. Thus, in Thomas v. United States, 192 U. S. 363 , 192 U. S. 370 , it was said of the words "duties, imposts and excises" that "they were used comprehensively to cover customs and excise duties imposed on importation, consumption, manufacture and sale of certain commodities, privileges, particular business transactions, vocations, occupations and the like." At times taxpayers have contended that the Congress is without power to lay an excise on the enjoyment of a privilege created by state law. The contention has been put aside as baseless. Congress may tax the transmission of property by inheritance or will, though the states and not Congress have created the privilege of succession. Knowlton v. Moore, supra, p. 178 U. S. 58 . Congress may tax the enjoyment of a corporate franchise, though a state and not Congress has brought the franchise into being. Flint v. Stone Tracy Co., 220 U. S. 107 , 220 U. S. 155 . The statute books of the states are strewn with illustrations of taxes laid on Page 301 U. S. 583 occupations pursued of common right. [ Footnote 7 ] We find no basis for a holding that the power in that regard which belongs by accepted practice to the legislatures of the states, has been denied by the Constitution to the Congress of the nation. 2. The tax being an excise, its imposition must conform to the canon of uniformity. There has been no departure from this requirement. According to the settled doctrine the uniformity exacted is geographical, not intrinsic. Knowlton v. Moore, supra, p. 178 U. S. 83 ; Flint v. Stone Tracy Co., supra, p. 220 U. S. 158 ; Billings v. United States, 232 U. S. 261 , 232 U. S. 282 ; Stellwagen v. Clum, 245 U. S. 605 , 245 U. S. 613 ; LaBelle Iron Works v. United States, 256 U. S. 377 , 256 U. S. 392 ; Poe v. Seaborn, 282 U. S. 101 , 282 U. S. 117 ; Wright v. Vinton Branch Mountain Trust Bank, 300 U. S. 440 . "The rule of liability shall be the same in all parts of the United States." Florida v. Mellon, 273 U. S. 12 , 273 U. S. 17 . Second. The excise is not invalid under the provisions of the Fifth Amendment by force of its exemptions. Page 301 U. S. 584 The statute does not apply, as we have seen, to employers of less than eight. It does not apply to agricultural labor, or domestic service in a private home or to some other classes of less importance. Petitioner contends that the effect of these restrictions is an arbitrary discrimination vitiating the tax. The Fifth Amendment, unlike the Fourteenth, has no equal protection clause. LaBelle Iron Works v. United States, supra; Brushaber v. Union Pacific R. Co., supra, p. 240 U. S. 24 . But even the states, though subject to such a clause, are not confined to a formula of rigid uniformity in framing measures of taxation. Swiss Oil Corp. v. Shanks, 273 U. S. 407 , 273 U. S. 413 . They may tax some kinds of property at one rate, and others at another, and exempt others altogether. Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232 ; Stebbins v. Riley, 268 U. S. 137 , 268 U. S. 142 ; Ohio Oil Co. v. Conway, 281 U. S. 146 , 281 U. S. 150 . They may lay an excise on the operations of a particular kind of business, and exempt some other kind of business closely akin thereto. Quong Wing v. Kirkendall, 223 U. S. 59 , 223 U. S. 62 ; American Sugar Refining Co. v. Louisiana, 179 U. S. 89 , 179 U. S. 94 ; Armour Packing Co. v. Lacy, 200 U. S. 226 , 200 U. S. 235 ; Brown-Forman Co. v. Kentucky, 217 U. S. 563 , 217 U. S. 573 ; Heisler v. Thomas Colliery Co., 260 U. S. 245 , 260 U. S. 255 ; State Board of Tax Comm'rs v. Jackson, 283 U. S. 527 , 283 U. S. 537 , 283 U. S. 538 . If this latitude of judgment is lawful for the states, it is lawful, a fortiori, in legislation by the Congress, which is subject to restraints less narrow and confining. Quong Wing v. Kirkendall, supra. The classifications and exemptions directed by the statute now in controversy have support in considerations of policy and practical convenience that cannot be condemned as arbitrary. The classifications and exemption would therefore be upheld if they had been adopted by a state and the provisions of the Fourteenth Amendment were invoked to annul them. This is held in two cases Page 301 U. S. 585 passed upon today in which precisely the same provisions were the subject of attack, the provisions being contained in the Unemployment Compensation Law of the State of Alabama. Carmichael v. Southern Coal & Coke Co., and Carmichael v. Gulf States Paper Corp., ante, p. 301 U. S. 495 . The opinion rendered in those cases covers the ground fully. It would be useless to repeat the argument. The act of Congress is therefore valid, so far at least as its system of exemptions is concerned, and this though we assume that discrimination, if gross enough, is equivalent to confiscation, and subject under the Fifth Amendment to challenge and annulment. Third. The excise is not void as involving the coercion of the States in contravention of the Tenth Amendment or of restrictions implicit in our federal form of government. The proceeds of the excise when collected are paid into the Treasury at Washington, and thereafter are subject to appropriation like public moneys generally. Cincinnati Soap Co. v. United States, ante, p. 301 U. S. 308 . No presumption can be indulged that they will be misapplied or wasted. [ Footnote 8 ] Even if they were collected in the hope or expectation that some other and collateral good would be furthered as an incident, that, without more, would not make the act invalid. Sonzinsky v. United States, 300 U. S. 506 . This indeed is hardly questioned. The case for the petitioner is built on the contention that, here, an ulterior aim is wrought into the very structure of the act, and what is Page 301 U. S. 586 even more important that the aim is not only ulterior, but essentially unlawful. In particular, the 90 percent credit is relied upon as supporting that conclusion. But before the statute succumbs to an assault upon these lines, two propositions must be made out by the assailant. Cincinnati Soap Co. v. United States, supra. There must be a showing in the first place that separated from the credit the revenue provisions are incapable of standing by themselves. There must be a showing in the second place that the tax and the credit in combination are weapons of coercion, destroying or impairing the autonomy of the states. The truth of each proposition being essential to the success of the assault, we pass for convenience to a consideration of the second, without pausing to inquire whether there has been a demonstration of the first. To draw the line intelligently between duress and inducement there is need to remind ourselves of facts as to the problem of unemployment that are now matters of common knowledge. West Coast Hotel Co. v. Parrish, 300 U. S. 379 . The relevant statistics are gathered in the brief of counsel for the Government. Of the many available figures a few only will be mentioned. During the years 1929 to 1936, when the country was passing through a cyclical depression, the number of the unemployed mounted to unprecedented heights. Often the average was more than 10 million; at times a peak was attained of 16 million or more. Disaster to the breadwinner meant disaster to dependents. Accordingly, the roll of the unemployed, itself formidable enough, was only a partial roll of the destitute or needy. The fact developed quickly that the states were unable to give the requisite relief. The problem had become national in area and dimensions. There was need of help from the nation if the people were not to starve. It is too late today for the argument to be heard with tolerance that, in a crisis so extreme, the use of the moneys of the nation to relieve the unemployed Page 301 U. S. 587 and their dependents is a use for any purpose narrower than the promotion of the general welfare. Cf. United States v. Butler, 297 U. S. 1 , 297 U. S. 65 , 297 U. S. 66 , Helvering v. Davis, decided herewith, post, p. 301 U. S. 619 . The nation responded to the call of the distressed. Between January 1, 1933 and July 1, 1936, the states (according to statistics submitted by the Government) incurred obligations of $689,291,802 for emergency relief; local subdivisions an additional $775,675,366. In the same period, the obligations for emergency relief incurred by the national government were $2,929,307,125, or twice the obligations of states and local agencies combined. According to the President's budget message for the fiscal year 1938, the national government expended for public works and unemployment relief for the three fiscal years 1934, 1935, and 1936 the stupendous total of $8,681,000,000. The parens patriae has many reasons -- fiscal and economic as well as social and moral -- for planning to mitigate disasters that bring these burdens in their train. In the presence of this urgent need for some remedial expedient, the question is to be answered whether the expedient adopted has overlept the bounds of power. The assailants of the statute say that its dominant end and aim is to drive the state legislatures under the whip of economic pressure into the enactment of unemployment compensation laws at the bidding of the central government. Supporters of the statute say that its operation is not constraint, but the creation of a larger freedom, the states and the nation joining in a cooperative endeavor to avert a common evil. Before Congress acted, unemployment compensation insurance was still, for the most part, a project, and no more. Wisconsin was the pioneer. Her statute was adopted in 1931. At times, bills for such insurance were introduced elsewhere, but they did not reach the stage of law. In 1935, four states (California, Massachusetts, New Hampshire and New York) passed unemployment Page 301 U. S. 588 laws on the eve of the adoption of the Social Security Act, and two others did likewise after the federal act and later in the year. The statutes differed to some extent in type, but were directed to a common end. In 1936, twenty-eight other states fell in line, and eight more the present year. But if states had been holding back before the passage of the federal law, inaction was not owing, for the most part, to the lack of sympathetic interest. Many held back through alarm lest, in laying such a toll upon their industries, they would place themselves in a position of economic disadvantage as compared with neighbors or competitors. See House Report No. 615, 74th Congress, 1st session, p. 8; Senate Report No. 628, 74th Congress, 1st session, p. 11. [ Footnote 9 ] Two consequences ensued. One was that the freedom of a state to contribute its fair share to the solution of a national problem was paralyzed by fear. The other was that, insofar as there was failure by the states to contribute relief according to the measure of their capacity, a disproportionate burden, and a mountainous one, was laid upon the resources of the Government of the nation. The Social Security Act is an attempt to find a method by which all these public agencies may work together to a common end. Every dollar of the new taxes will continue in all likelihood to be used and needed by the Page 301 U. S. 589 nation as long as states are unwilling, whether through timidity or for other motives, to do what can be done at home. At least the inference is permissible that Congress so believed, though retaining undiminished freedom to spend the money as it pleased. On the other hand, fulfillment of the home duty will be lightened and encouraged by crediting the taxpayer upon his account with the Treasury of the nation to the extent that his contributions under the laws of the locality have simplified or diminished the problem of relief and the probable demand upon the resources of the fisc. Duplicated taxes, or burdens that approach them, are recognized hardships that government, state or national, may properly avoid. Henneford v. Silas Mason Co., supra; Kidd v. Alabama, 188 U. S. 730 , 188 U. S. 732 ; Watson v. State Comptroller, 254 U. S. 122 , 254 U. S. 125 . If Congress believed that the general welfare would better be promoted by relief through local units than by the system then in vogue, the cooperating localities ought not, in all fairness, to pay a second time. Who then is coerced through the operation of this statute? Not the taxpayer. He pays in fulfillment of the mandate of the local legislature. Not the state. Even now, she does not offer a suggestion that, in passing the unemployment law, she was affected by duress. See Carmichael v. Southern Coal & Coke Co., and Carmichael v. Gulf States Paper Corp., supra. For all that appears, she is satisfied with her choice, and would be sorely disappointed if it were now to be annulled. The difficulty with the petitioner's contention is that it confuses motive with coercion. "Every tax is in some measure regulatory. To some extent, it interposes an economic impediment to the activity taxed as compared with others not taxed." Sonzinsky v. United States, supra. In like manner, every rebate from a tax when conditioned upon conduct is in some measure a temptation. But to hold that motive Page 301 U. S. 590 or temptation is equivalent to coercion is to plunge the law in endless difficulties. The outcome of such a doctrine is the acceptance of a philosophical determinism by which choice becomes impossible. Till now, the law has been guided by a robust common sense which assumes the freedom of the will as a working hypothesis in the solution of its problems. The wisdom of the hypothesis has illustration in this case. Nothing in the case suggests the exertion of a power akin to undue influence, if we assume that such a concept can ever be applied with fitness to the relations between state and nation. Even on that assumption, the location of the point at which pressure turns into compulsion, and ceases to be inducement, would be a question of degree -- at times, perhaps, of fact. The point had not been reached when Alabama made her choice. We cannot say that she was acting, not of her unfettered will, but under the strain of a persuasion equivalent to undue influence, when she chose to have relief administered under laws of her own making, by agents of her own selection, instead of under federal laws, administered by federal officers, with all the ensuing evils, at least to many minds, of federal patronage and power. There would be a strange irony indeed if her choice were now to be annulled on the basis of an assumed duress in the enactment of a statute which her courts have accepted as a true expression of her will. Beeland Wholesale Co. v. Kaufman, supra. We think the choice must stand. In ruling as we do, we leave many questions open. We do not say that a tax is valid, when imposed by act of Congress, if it is laid upon the condition that a state may escape its operation through the adoption of a statute unrelated in subject matter to activities fairly within the scope of national policy and power. No such question is before us. In the tender of this credit Congress, does not intrude upon fields foreign to its function. The purpose Page 301 U. S. 591 of its intervention, as we have shown, is to safeguard its own treasury and, as an incident to that protection, to place the states upon a footing of equal opportunity. Drains upon its own resources are to be checked; obstructions to the freedom of the states are to be leveled. It is one thing to impose a tax dependent upon the conduct of the taxpayers, or of the state in which they live, where the conduct to be stimulated or discouraged is unrelated to the fiscal need subserved by the tax in its normal operation, or to any other end legitimately national. The Child Labor Tax Case, 259 U. S. 20 , and Hill v. Wallace, 259 U. S. 44 , were decided in the belief that the statutes there condemned were exposed to that reproach. Cf. United States v. Constantine, 296 U. S. 287 . It is quite another thing to say that a tax will be abated upon the doing of an act that will satisfy the fiscal need, the tax and the alternative being approximate equivalents. In such circumstances, if in no others, inducement or persuasion does not go beyond the bounds of power. We do not fix the outermost line. Enough for present purposes that, wherever the line may be, this statute is within it. Definition more precise must abide the wisdom of the future. Florida v. Mellon, 273 U. S. 12 , supplies us with a precedent, if precedent be needed. What was in controversy there was § 301 of the Revenue Act of 1926, which imposes a tax upon the transfer of a decedent's estate while at the same time permitting a credit, not exceeding 80 percent, for "the amount of any estate, inheritance, legacy, or succession taxes actually paid to any State or Territory." Florida challenged that provision as unlawful. Florida had no inheritance taxes, and alleged that, under its constitution, it could not levy any. 273 U. S. 273 U.S. 12, 273 U. S. 15 . Indeed, by abolishing inheritance taxes, it had hoped to induce wealthy persons to become its citizens. See 67 Cong.Rec. Part 1, pp. 735, 752. It argued at our bar that "the Estate Tax provision was not passed for the purpose Page 301 U. S. 592 of raising federal revenue" ( 273 U. S. 273 U.S. 12, 14 [argument of counsel -- omitted]), but rather "to coerce States into adopting estate or inheritance tax laws." 273 U. S. 273 U.S. 12, 13 [argument of counsel -- omitted]. In fact, as a result of the 80 percent credit, material changes of such laws were made in 36 states. [ Footnote 10 ] In the face of that attack, we upheld the act as valid. Cf. Massachusetts v. Mellon, 262 U. S. 447 , 262 U. S. 482 ; also Act of August 5, 1861, c. 45, 12 Stat. 292; Act of May 13, 1862, c. 66, 12 Stat. 384. United States v. Butler, supra, is cited by petitioner as a decision to the contrary. There, a tax was imposed on processors of farm products, the proceeds to be paid to farmers who would reduce their acreage and crops under agreements with the Secretary of Agriculture, the plan of the act being to increase the prices of certain farm products by decreasing the quantities produced. The court held (1) that the so-called tax was not a true one (pp. 297 U.S. 297 U. S. 56 , 297 U. S. 61 ), the proceeds being earmarked for the benefit of farmers complying with the prescribed conditions, (2) that there was an attempt to regulate production without the consent of the state in which production was affected, and (3) that the payments to farmers were coupled with coercive contracts (p. 297 U. S. 73 ), unlawful in their aim and oppressive in their consequences. The decision was by a divided court, a minority taking the view that the objections were untenable. None of them is applicable to the situation here developed. (a) The proceeds of the tax in controversy are not earmarked for a special group. (b) The unemployment compensation law which is a condition of the credit has had the approval of the state and could not be a law without it. (c) The condition is not linked to an irrevocable agreement, for the state, at its pleasure, may repeal its unemployment law, § 903(a)(6), terminate the credit, Page 301 U. S. 593 and place itself where it was before the credit was accepted. (d) The condition is not directed to the attainment of an unlawful end, but to an end, the relief of unemployment, for which nation and state may lawfully cooperate. Fourth. The statute does not call for a surrender by the states of powers essential to their quasi -sovereign existence. Argument to the contrary has its source in two sections of the act. One section (903 [ Footnote 11 ]) defines the minimum criteria to which a state compensation system is required to conform if it is to be accepted by the Board as the basis for a credit. The other section (904 [ Footnote 12 ]) rounds out the requirement with complementary rights and duties. Not all the criteria or their incidents are challenged as unlawful. We will speak of them first generally, and then more specifically insofar as they are questioned. A credit to taxpayers for payments made to a State under a state unemployment law will be manifestly futile in the absence of some assurance that the law leading to the credit is, in truth, what it professes to be. An unemployment law framed in such a way that the unemployed who look to it will be deprived of reasonable protection is one in name, and nothing more. What is basic and essential may be assured by suitable conditions. The terms embodied in these sections are directed to that end. A wide range of Judgment is given to the several states as to the particular type of statute to be spread upon their books. For anything to the contrary in the provisions of this act they may use the pooled unemployment form, which is in effect with variations in Alabama, California, Michigan, New York, and elsewhere. They may establish a system of merit ratings applicable at Page 301 U. S. 594 once or to go into effect later on the basis of subsequent experience. Cf. §§ 909, 910. They may provide for employee contributions, as in Alabama and California, or put the entire burden upon the employer, as in New York. They may choose a system of unemployment reserve accounts by which an employer is permitted, after his reserve has accumulated, to contribute at a reduced rate, or even not at all. This is the system which had its origin in Wisconsin. What they may not do, if they would earn the credit, is to depart from those standards which, in the judgment of Congress, are to be ranked as fundamental. Even if opinion may differ as to the fundamental quality of one or more of the conditions, the difference will not avail to vitiate the statute. In determining essentials, Congress must have the benefit of a fair margin of discretion. One cannot say with reason that this margin has been exceeded, or that the basic standards have been determined in any arbitrary fashion. In the event that some particular condition shall be found to be too uncertain to be capable of enforcement, it may be severed from the others, and what is left will still be valid. We are to keep in mind steadily that the conditions to be approved by the Board as the basis for a credit are not provisions of a contract, but terms of a statute, which may be altered or repealed. § 903(a)(6). The state does not bind itself to keep the law in force. It does not even bind itself that the moneys paid into the federal fund will be kept there indefinitely, or for any stated time. On the contrary, the Secretary of the Treasury will honor a requisition for the whole or any part of the deposit in the fund whenever one is made by the appropriate officials. The only consequence of the repeal or excessive amendment of the statute, or the expenditure of the money, when requisitioned, for other than compensation uses or administrative expenses, is Page 301 U. S. 595 that approval of the law will end, and with it the allowance of a credit, upon notice to the state agency and an opportunity for hearing. § 903(b)(c). These basic considerations are, in truth, a solvent of the problem. Subjected to their test, the several objections on the score of abdication are found to be unreal. Thus, the argument is made that, by force of an agreement, the moneys, when withdrawn, must be "paid through public employment offices in the State or through such other agencies as the Board may approve." § 903(a)(1). But, in truth, there is no agreement as to the method of disbursement. There is only a condition which the state is free at pleasure to disregard or to fulfill. Moreover, approval is not requisite if public employment offices are made the disbursing instruments. Approval is to be a check upon resort to "other agencies" that may, perchance, be irresponsible. A state looking for a credit must give assurance that her system has been organized upon a base of rationality. There is argument again that the moneys, when withdrawn, are to be devoted to specific uses, the relief of unemployment, and that, by agreement for such payment, the quasi -sovereign position of the state has been impaired, if not abandoned. But, again, there is confusion between promise and condition. Alabama is still free, without breach of an agreement, to change her system overnight. No officer or agency of the national Government can force a compensation law upon her or keep it in existence. No officer or agency of that Government, either by suit or other means, can supervise or control the application of the payments. Finally and chiefly, abdication is supposed to follow from § 904 of the statute and the parts of § 903 that are complementary thereto. § 903(a)(3). By these, the Secretary of the Treasury is authorized and directed to receive and hold in the Unemployment Trust Fund all Page 301 U. S. 596 moneys deposited therein by a state agency for a state unemployment fund and to invest in obligations of the United States such portion of the Fund as is not in his judgment required to meet current withdrawals. We are told that Alabama, in consenting to that deposit, has renounced the plenitude of power inherent in her statehood. The same pervasive misconception is in evidence again. All that the state has done is to say, in effect, through the enactment of a statute, that her agents shall be authorized to deposit the unemployment tax receipts in the Treasury at Washington. Alabama Unemployment Act of September 14, 1935, § 10(i). The statute may be repealed. § 903(a)(6). The consent may be revoked. The deposits may be withdrawn. The moment the state commission gives notice to the depositary that it would like the moneys back, the Treasurer will return them. To find state destruction there is to find it almost anywhere. With nearly as much reason, one might say that a state abdicates its functions when it places the state moneys on deposit in a national bank. There are very good reasons of fiscal and governmental policy why a State should be willing to make the Secretary of the Treasury the custodian of the fund. His possession of the moneys and his control of investments will be an assurance of stability and safety in times of stress and strain. A report of the Ways and Means Committee of the House of Representatives, quoted in the margin, develops the situation clearly. [ Footnote 13 ] Nor is there risk of loss Page 301 U. S. 597 or waste. The credit of the Treasury is at all times back of the deposit, with the result that the right of withdrawal will be unaffected by the fate of any intermediate investments, just as if a checking account in the usual form had been opened in a bank. The inference of abdication thus dissolves in thinnest air when the deposit is conceived of as dependent upon a statutory consent, and not upon a contract effective to create a duty. By this we do not intimate that the conclusion would be different if a contract were discovered. Even sovereigns may contract without derogating from their sovereignty. Perry v. United States, 294 U. S. 330 , 294 U. S. 353 ; 1 Oppenheim, International Law, 4th ed., §§ 493, 494; Hall, International Law, 8th ed., § 107; 2 Hyde, International Law, § 489. The states are at liberty, upon obtaining the consent of Congress, to make agreements with one another. Constitution, Art. I, § 10, par. 3. Poole v. Fleeger , 11 Pet. 185, 36 U. S. 209 ; Rhode Island v. Massachusetts , 12 Pet. 657, 37 U. S. 725 . We find no room for doubt that they may do the like with Congress if the essence of their statehood is maintained without impairment. [ Footnote 14 ] Alabama Page 301 U. S. 598 is seeking and obtaining a credit of many millions in favor of her citizens out of the Treasury of the nation. Nowhere in our scheme of government -- in the limitations express or implied of our federal constitution -- do we find that she is prohibited from assenting to conditions that will assure a fair and just requital for benefits received. But we will not labor the point further. An unreal prohibition directed to an unreal agreement will not vitiate an act of Congress, and cause it to collapse in ruin. Fifth. Title III of the act is separable from Title IX, and its validity is not at issue. The essential provisions of that title have been stated in the opinion. As already pointed out, the title does not appropriate a dollar of the public moneys. It does no more than authorize appropriations to be made in the future for the purpose of assisting states in the administration of their laws, if Congress shall decide that appropriations are desirable. The title might be expunged, and Title IX would stand intact. Without a severability clause, we should still be led to that conclusion. The presence of such a clause (§ 1103) makes the conclusion even clearer. Williams v. Standard Oil Co., 278 U. S. 235 , 278 U. S. 242 ; Utah Power & Light Co. v. Pfost, 286 U. S. 165 , 286 U. S. 184 ; Carter v. Carter Coal Co., 298 U. S. 238 , 298 U. S. 312 . The judgment is Affirmed. [ Footnote 1 ] "Sec. 903. (a) The Social Security Board shall approve any State law submitted to it, within thirty days of such submission, which it finds provides that --" "(1) All compensation is to be paid through public employment offices in the State or such other agencies as the Board may approve:" "(2) No compensation shall be payable with respect to any day of unemployment occurring within two years after the first day of the first period with respect to which contributions are required;" "(3) All money received in the unemployment fund shall immediately upon such receipt be paid over to the Secretary of the Treasury to the credit of the Unemployment Trust Fund established by Section 904;" "(4) All money withdrawn from the Unemployment Trust Fund by the State agency shall be used solely in the payment of compensation, exclusive of expenses of administration;" "(5) Compensation shall not be denied in such State to any otherwise eligible individual for refusing to accept new work under any of the following conditions: (A) If the position offered is vacant due directly to a strike, lockout, or other labor dispute; (B) if the wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality; (C) if as a condition of being employed the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization;" "(6) All the rights, privileges, or immunities conferred by such law or by acts done pursuant thereto shall exist subject to the power of the legislature to amend or repeal such law at any time." "The Board shall, upon approving such law, notify the Governor of the State of its approval." "(b) On December 31 in each taxable year the Board shall certify to the Secretary of the Treasury each State whose law it has previously approved, except that it shall not certify any State which, after reasonable notice and opportunity for hearing to the State agency, the Board finds has changed its law so that it no longer contains the provisions specified in subsection (a) or has with respect to such taxable year failed to comply substantially with any such provision." "(c) If, at any time during the taxable year, the Board has reason to believe that a State whose law it has previously approved, may not be certified under subsection (b), it shall promptly so notify the Governor of such State." [ Footnote 2 ] "Sec. 904. (a) There is hereby established in the Treasury of the United States a trust fund to be known as the 'Unemployment Trust Fund,' hereinafter in this title called the 'Fund.' The Secretary of the Treasury is authorized and directed to receive and hold in the Fund all moneys deposited therein by a State agency from a State unemployment fund. Such deposit may be made directly with the Secretary of the Treasury or with any Federal reserve bank or member bank of the Federal Reserve System designated by him for such purpose." "(b) It shall be the duty of the Secretary of the Treasury to invest such portion of the Fund as is not, in his judgment, required to meet current withdrawals. Such investment may be made only in interest-bearing obligations of the United.States or in obligations guaranteed as to both principal and interest by the United States. For such purpose such obligations may be acquired (1) on original issue at par, or (2) by purchase of outstanding obligations at the market price. The purposes for which obligations of the United States may be issued under the Second Liberty Bond Act, as amended, are hereby extended to authorize the issuance at par of special obligations exclusively to the Fund. Such special obligations shall bear interest at a rate equal to the average rate of interest, computed as of the end of the calendar month next preceding the date of such issue, borne by all interest-bearing obligations of the United States then forming part of the public debt; except that, where such average rate is not a multiple of one-eighth of 1 percentum, the rate of interest of such special obligations shall be the multiple of one-eighth of 1 percentum next lower than such average rate. Obligations other than such special obligations may be acquired for the Fund only on such terms as to provide an investment yield not less than the yield which would be required in the case of special obligations if issued to the Fund upon the date of such acquisition." "(c) Any obligations acquired by the Fund (except special obligations issued exclusively to the Fund) may be sold at the market price, and such special obligations may be redeemed at par plus accrued interest." "(d) The interest on, and the proceeds from the sale or redemption of, any obligations held in the Fund shall be credited to and form a part of the Fund." "(e) The Fund shall be invested as a single fund, but the Secretary of the Treasury shall maintain a separate book account for each State agency and shall credit quarterly on March 31, June 30, September 30, and December 31, of each year, to each account, on the basis of the average daily balance of such account, a proportionate part of the earnings of the Fund for the quarter ending on such date." "(f) The Secretary of the Treasury is authorized and directed to pay out of the Fund to any State agency such amount as it may duly requisition, not exceeding the amount standing to the account of such State agency at the time of such payment." [ Footnote 3 ] The list of services is comprehensive. It included: "Maitre d'Hotel, House-steward, Master of the Horse, Groom of the Chamber, Valet de Chambre, Butler, Under-butler, Clerk of the Kitchen, Confectioner, Cook, House-porter, Footman, Running-footman, Coachman, Groom, Postillion, Stable-boy, and the respective Helpers in the Stables of such Coachman, Groom, or Postillion, or in the Capacity of Gardener (not being a Day-labourer), Park-keeper, Gamekeeper, Huntsman, Whipper-in. . . ." [ Footnote 4 ] The statute, amended from time to time, but with its basic structure unaffected, is on the statute books today. Act of 1803, 43 George III, c. 161; Act of 1812, 52 George III, c. 93; Act of 1853, 16 & 17 Vict., c. 90; Act of 1869, 32 & 33 Vict., c. 14. 24 Halsbury's Laws of England, 1st ed., pp. 692 et seq. [ Footnote 5 ] See also the following laws imposing occupation taxes: 12 Hening's Statutes of Virginia, p. 285, Act of 1786; Chandler, The Colonial Records of Georgia, vol.19, Part 2, p. 88, Act of 1778; 1 Potter, Taylor and Yancey, North Carolina Revised Laws, p. 501, Act of 1784. [ Footnote 6 ] The cases are brought together by Professor John MacArthur Maguire in an essay, "Taxing the Exercise of Natural Rights" (Harvard Legal Essays, 1934, pp. 273, 322). The Massachusetts decisions must be read in the light of the particular definitions and restrictions of the Massachusetts Constitution. Opinion of the Justices, 282 Mass. 619, 622, 186 N.E. 490, 266 Mass. 590, 593, 165 N.E. 904. And see Howes Brothers Co. v. Massachusetts Unemployment Compensation Comm'n, supra, pp. 730, 731. [ Footnote 7 ] Alabama General Acts, 1935, c.194, Art. XIII (flat license tax on occupations); Arizona Revised Code, Supplement (1936) § 3138a et seq. (general gross receipts tax); Connecticut General Statutes, Supplement (1935) §§ 457c, 458c (gross receipts tax on unincorporated businesses); Revised Code of Delaware (1935) §§ 192-197 (flat license tax on occupations); Compiled Laws of Florida, Permanent Supplement (1936) Vol. I, § 1279 (flat license tax on occupations); Georgia Laws, 1935, p. 11 (flat license tax on occupations); Indiana Statutes Ann. (1933) § 64 2601 et seq. (general gross receipts tax); Louisiana Laws, 3rd Extra Session, 1934, Act No. 15, 1st Extra Session, 1935, Acts Nos. 5, 6 (general gross receipts tax); Mississippi Laws, 1934, c. 119 (general gross receipts tax); New Mexico Laws, 1935, c. 73 (general gross receipts tax); South Dakota Laws, 1933, c. 184 (general gross receipts tax, expired June 30, 1935); Washington Laws, 1935, c. 180, Title II (general gross receipts tax); West Virginia Code, Supplement (1935) § 960 (general gross receipts tax). [ Footnote 8 ] The total estimated receipts without taking into account the 90 percent deduction, range from $225,000,000 in the first year to over $900,000,000 seven years later. Even if the maximum credits are available to taxpayers in all states, the maximum estimated receipts from Title IX will range between $22,000,000, at one extreme, to $90,000,000 at the other. If some of the states hold out in their unwillingness to pass statutes of their own, the receipts will be still larger. [ Footnote 9 ] The attitude of Massachusetts is significant. Her act became a law August 12, 1935, two days before the federal act. Even so, she prescribed that its provisions should not become operative unless the federal bill became a law, or unless eleven of the following states (Alabama, Connecticut, Delaware, Georgia, Illinois, Indiana, Iowa, Maine, Maryland, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, North Carolina, Ohio, Rhode Island, South Carolina, Tennessee, Vermont) should impose on their employers burdens substantially equivalent. Acts of 1935, c. 479, p. 655. Her fear of competition is thus forcefully attested. See also California Laws, 1935, c. 352, Art. I, § 2; Idaho Laws, 1936 (Third Extra Session) c. 12, § 26; Mississippi Laws, 1936, c. 176, § 2-a. [ Footnote 10 ] Perkins, State action under the Federal Estate Tax Credit Clause, 13 North Carolina L.Rev. 271, 280. [ Footnote 11 ] See note 1 supra. [ Footnote 12 ] See note 2 supra. [ Footnote 13 ] "This last provision will not only afford maximum safety for these funds, but is very essential to insure that they will operate to promote the stability of business, rather than the reverse. Unemployment reserve funds have the peculiarity that the demands upon them fluctuate considerably, being heaviest when business slackens. If, in such times, the securities in which these funds are invested are thrown upon the market for liquidation, the net effect is likely to be increased deflation. Such a result is avoided in this bill through the provision that all reserve funds are to be held by the United States Treasury, to be invested and liquidated by the Secretary of the Treasury in a manner calculated to promote business stability. When business conditions are such that investment in securities purchased on the open market is unwise, the Secretary of the Treasury may issue special nonnegotiable obligations exclusively to the unemployment trust fund. When a reverse situation exists and heavy drains are made upon the fund for payment of unemployment benefits, the Treasury does not have to dispose of the securities belonging to the fund in open market, but may assume them itself. With such a method of handling the reserve funds, it is believed that this bill will solve the problem often raised in discussions of unemployment compensation, regarding the possibility of transferring purchasing power from boom periods to depression periods. It will, in fact, operate to sustain purchasing power at the onset of a depression without having any counteracting deflationary tendencies." House Report No. 615, 74th Congress, 1st session, p. 9. [ Footnote 14 ] Cf. 12 Stat. 503; 26 Stat. 417. Separate opinion of MR. JUSTICE McREYNOLDS. That portion of the Social Security legislation here under consideration, I think, exceeds the power granted to Congress. It unduly interferes with the orderly government of the State by her own people and otherwise offends the Federal Constitution. In Texas v. White , 7 Wall. 700, 74 U. S. 725 (1869), a cause of momentous importance, this Court, through Chief Justice Chase, declared -- Page 301 U. S. 599 "But the perpetuity and indissolubility of the Union by no means implies the loss of distinct and individual existence, or of the right of self-government, by the States. Under the Articles of Confederation, each State retained its sovereignty, freedom, and independence and every power, jurisdiction, and right not expressly delegated to the United States. Under the Constitution, though the powers of the States were much restricted, still all powers not delegated to the United States, nor prohibited to the States, are reserved to the States respectively, or to the people. And we have already had occasion to remark at this term that" "the people of each State compose a State, having its own government and endowed with all the functions essential to separate and independent existence," "and that, 'without the States in union, there could be no such political body as the United States.' [ Lane County v. Oregon , 7 Wall. 71, 74 U. S. 76 .] Not only, therefore, can there be no loss of separate and independent autonomy to the States through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States." The doctrine thus announced and often repeated, I had supposed was firmly established. Apparently the States remained really free to exercise governmental powers, not delegated or prohibited, without interference by the Federal Government through threats of punitive measures or offers of seductive favors. Unfortunately, the decision just announced opens the way for practical annihilation of this theory, and no cloud of words or ostentatious parade of irrelevant statistics should be permitted to obscure that fact. Page 301 U. S. 600 The invalidity, also the destructive tendency, of legislation like the Act before us were forcefully pointed out by President Franklin Pierce in a veto message sent to the Senate May 3, 1854. * He was a scholarly lawyer of distinction, and enjoyed the advice and counsel of a rarely able Attorney General -- Caleb Cushing of Massachusetts. This message considers with unusual lucidity points here specially important. I venture to set out pertinent portions of it which must appeal to all who continue to respect both the letter and spirit of our great charter. " To the Senate of the United States: " "The bill entitled 'An Act making a grant of public lands to the several States for the benefit of indigent insane persons,' which was presented to me on the 27th ultimo, has been maturely considered, and is returned to the Senate, the House in which it originated, with a statement of the objections which have required me to withhold from it my approval." " * * * *" "If, in presenting my objections to this bill, I should say more than strictly belongs to the measure or is required for the discharge of my official obligation, let it be attributed to a sincere desire to justify my act before those whose good opinion I so highly value and to that earnestness which springs from my deliberate conviction that a strict adherence to the terms and purposes of the federal compact offers the best, if not the only, security for the preservation of our blessed inheritance of representative liberty." "The bill provides in substance:" "First. That 10,000,000 acres of land be granted to the several States, to be apportioned among them in the compound ratio of the geographical area and representation of said States in the House of Representatives. " Page 301 U. S. 601 "Second. That wherever there are public lands in a State subject to sale at the regular price of private entry, the proportion of said 10,000,000 acres falling to such State shall be selected from such lands within it, and that, to the States in which there are no such public lands land scrip shall be issued to the amount of their distributive shares, respectively, said scrip not to be entered by said States, but to be sold by them and subject to entry by their assignees: Provided, That none of it shall be sold at less than $1 per acre, under penalty of forfeiture of the same to the United States." "Third. That the expenses of the management and superintendence of said lands and of the moneys received therefrom shall be paid by the States to which they may belong out of the treasury of said States." "Fourth. That the gross proceeds of the sales of such lands or land scrip so granted shall be invested by the several States in safe stocks, to constitute a perpetual fund, the principal of which shall remain forever undiminished, and the interest to be appropriated to the maintenance of the indigent insane within the several States." "Fifth. That annual returns of lands or scrip sold shall be made by the States to the Secretary of the Interior, and the whole grant be subject to certain conditions and limitations prescribed in the bill, to be assented to by legislative acts of said States." "This bill therefore proposes that the Federal Government shall make provision to the amount of the value of 10,000,000 acres of land for an eleemosynary object within the several States, to be administered by the political authority of the same, and it presents at the threshold the question whether any such act on the part of the Federal Government is warranted and sanctioned by the Constitution, the provisions and principles of which are to be protected and sustained as a first and paramount duty. " Page 301 U. S. 602 "It cannot be questioned that, if Congress has power to make provision for the indigent insane without the limits of this District, it has the same power to provide for the indigent who are not insane, and thus to transfer to the Federal Government the charge of all the poor in all the States. It has the same power to provide hospitals and other local establishments for the care and cure of every species of human infirmity, and thus to assume all that duty of either public philanthropy or public necessity to the dependent, the orphan, the sick, or the needy which is now discharged by the States themselves or by corporate institutions or private endowments existing under the legislation of the States. The whole field of public beneficence is thrown open to the care and culture of the Federal Government. Generous impulses no longer encounter the limitations and control of our imperious fundamental law; for however worthy may be the present object in itself, it is only one of a class. It is not exclusively worthy of benevolent regard. Whatever considerations dictate sympathy for this particular object apply in like manner, if not in the same degree, to idiocy, to physical disease, to extreme destitution. If Congress may and ought to provide for any one of these objects, it may and ought to provide for them all. And if it be done in this case, what answer shall be given when Congress shall be called upon, as it doubtless will be, to pursue a similar course of legislation in the others? It will obviously be vain to reply that the object is worthy, but that the application has taken a wrong direction. The power will have been deliberately assumed, the general obligation will by this act have been acknowledged, and the question of means and expediency will alone be left for consideration. The decision upon the principle in any one case determines it for the whole class. The question presented, therefore, clearly is upon the constitutionality and propriety of the Federal Government's Page 301 U. S. 603 assuming to enter into a novel and vast field of legislation, namely that of providing for the care and support of all those among the people of the United States who, by any form of calamity, become fit objects of public philanthropy." "I readily and, I trust, feelingly acknowledge the duty incumbent on us all as men and citizens, and as among the highest and holiest of our duties, to provide for those who, in the mysterious order of Providence, are subject to want and to disease of body or mind; but I cannot find any authority in the Constitution for making the Federal Government the great almoner of public charity throughout the United States. To do so would, in my judgment, be contrary to the letter and spirit of the Constitution, and subversive of the whole theory upon which the Union of these States is founded. And if it were admissible to contemplate the exercise of this power for any object whatever, I cannot avoid the belief that it would, in the end, be prejudicial, rather than beneficial, in the noble offices of charity to have the charge of them transferred from the States to the Federal Government. Are we not too prone to forget that the Federal Union is the creature of the States, not they of the Federal Union? We were the inhabitants of colonies distinct in local government one from the other before the revolution. By that Revolution, the colonies each became an independent State. They achieved that independence and secured its recognition by the agency of a consulting body which, from being an assembly of the ministers of distinct sovereignties instructed to agree to no form of government which did not leave the domestic concerns of each State to itself, was appropriately denominated a Congress. When, having tried the experiment of the Confederation, they resolved to change that, for the present Federal Union, and thus to confer on the Federal Government more ample authority, they scrupulously measured such of the Page 301 U. S. 604 functions of their cherished sovereignty as they chose to delegate to the General Government. With this aim and to this end, the fathers of the Republic framed the Constitution, in and by which the independent and sovereign States united themselves for certain specified objects and purposes, and for those only, leaving all powers not therein set forth as conferred on one or another of the three great departments -- the legislative, the executive, and the judicial -- indubitably with the States. And when the people of the several States had in their State conventions, and thus alone, given effect and force to the Constitution, not content that any doubt should in future arise as to the scope and character of this act, they ingrafted thereon the explicit declaration that" "the powers not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States respectively or to the people." "Can it be controverted that the great mass of the business of Government -- that involved in the social relations, the internal arrangements of the body politic, the mental and moral culture of men, the development of local resources of wealth, the punishment of crimes in general, the preservation of order, the relief of the needy or otherwise unfortunate members of society -- did in practice remain with the States; that none of these objects of local concern are by the Constitution expressly or impliedly prohibited to the States, and that none of them are by any express language of the Constitution transferred to the United States? Can it be claimed that any of these functions of local administration and legislation are vested in the Federal Government by any implication? I have never found anything in the Constitution which is susceptible of such a construction. No one of the enumerated powers touches the subject, or has even a remote analogy to it. The powers conferred upon the United States have reference to federal relations, or to the means of accomplishing Page 301 U. S. 605 or executing things of federal relation. So also of the same character are the powers taken away from the States by enumeration. In either case, the powers granted and the powers restricted were so granted or so restricted only where it was requisite for the maintenance of peace and harmony between the States or for the purpose of protecting their common interests and defending their common sovereignty against aggression from abroad or insurrection at home." "I shall not discuss at length the question of power sometimes claimed for the General Government under the clause of the eighth section of the Constitution, which gives Congress the power" "to lay and collect taxes, duties, imposts, and excises, to pay debts and provide for the common defense and general welfare of the United States," "because if it has not already been settled upon sound reason and authority, it never will be. I take the received and just construction of that article, as if written to lay and collect taxes, duties, imposts, and excises in order to pay the debts and in order to provide for the common defense and general welfare. It is not a substantive general power to provide for the welfare of the United States, but is a limitation on the grant of power to raise money by taxes, duties, and imposts. If it were otherwise, all the rest of the Constitution, consisting of carefully enumerated and cautiously guarded grants of specific powers, would have been useless, if not delusive. It would be impossible in that view to escape from the conclusion that these were inserted only to mislead for the present, and, instead of enlightening and defining the pathway of the future, to involve its action in the mazes of doubtful construction. Such a conclusion the character of the men who framed that sacred instrument will never permit us to form. Indeed, to suppose it susceptible of any other construction would be to consign all the rights of the States and of the people of the States to the mere discretion Page 301 U. S. 606 of Congress, and thus to clothe the federal Government with authority to control the sovereign States, by which they would have been dwarfed into provinces or departments and all sovereignty vested in an absolute consolidated central power, against which the spirit of liberty has so often and in so many countries struggled in vain." "In my judgment, you cannot by tributes to humanity make any adequate compensation for the wrong you would inflict by removing the sources of power and political action from those who are to be thereby affected. If the time shall ever arrive when, for an object appealing, however strongly, to our sympathies, the dignity of the States shall bow to the dictation of Congress by conforming their legislation thereto, when the power and majesty and honor of those who created shall become subordinate to the thing of their creation, I but feebly utter my apprehensions when I express my firm conviction that we shall see 'the beginning of the end.'" "Fortunately, we are not left in doubt as to the purpose of the Constitution any more than as to its express language, for although the history of its formation, as recorded in the Madison Papers, shows that the Federal Government in its present form emerged from the conflict of opposing influences which have continued to divide statesmen from that day to this, yet the rule of clearly defined powers and of strict construction presided over the actual conclusion and subsequent adoption of the Constitution. President Madison, in the Federalist, says:" " The powers delegated by the proposed Constitution are few and defined. Those which are to remain in the State governments are numerous and indefinite. . . . Its [the General Government's] jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. " Page 301 U. S. 607 "In the same spirit, President Jefferson invokes" "the support of the State governments in all their rights as the most competent administrations for our domestic concerns and the surest bulwarks against anti-republican tendencies," "and President Jackson said that our true strength and wisdom are not promoted by invasions of the rights and powers of the several States, but that, on the contrary, they consist 'not in binding the States more closely to the center, but in leaving each more unobstructed in its proper orbit.'" "The framers of the Constitution, in refusing to confer on the Federal Government any jurisdiction over these purely local objects, in my judgment, manifested a wise forecast and broad comprehension of the true interests of these objects themselves. It is clear that public charities within the States can be efficiently administered only by their authority. The bill before me concedes this, for it does not commit the funds it provides to the administration of any other authority." "I cannot but repeat what I have before expressed, that, if the several States, many of which have already laid the foundation of munificent establishments of local beneficence, and nearly all of which are proceeding to establish them, shall be led to suppose, as, should this bill become a law, they will be, that Congress is to make provision for such objects, the fountains of charity will be dried up at home, and the several States, instead of bestowing their own means on the social wants of their own people, may themselves, through the strong temptation which appeals to states as to individuals, become humble suppliants for the bounty of the Federal Government, reversing their true relations to this Union." " * * * *" "I have been unable to discover any distinction on constitutional grounds or grounds of expediency between an appropriation of $10,000,000 directly from the money in Page 301 U. S. 608 the Treasury for the object contemplated and the appropriation of lands presented for my sanction, and yet I cannot doubt that, if the bill proposed $10,000,000 from the Treasury of the United States for the support of the indigent insane in the several States, that the constitutional question involved in the act would have attracted forcibly the attention of Congress." "I respectfully submit that, in a constitutional point of view, it is wholly immaterial whether the appropriation be in money or in land." " * * * *" "To assume that the public lands are applicable to ordinary State objects, whether of public structures, police, charity, or expenses of State administration, would be to disregard to the amount of the value of the public lands all the limitations of the Constitution and confound to that extent all distinctions between the rights and powers of the States and those of the United States; for if the public lands may be applied to the support of the poor, whether sane or insane, if the disposal of them and their proceeds be not subject to the ordinary limitations of the Constitution, then Congress possesses unqualified power to provide for expenditures in the States by means of the public lands, even to the degree of defraying the salaries of governors, judges, and all other expenses of the government and internal administration within the several States." "The conclusion from the general survey of the whole subject is to my mind irresistible, and closes the question both of right and of expediency so far as regards the principle of the appropriation proposed in this bill. Would not the admission of such power in Congress to dispose of the public domain work the practical abrogation of some of the most important provisions of the Constitution?" " * * * * Page 301 U. S. 609 " "The general result at which I have arrived is the necessary consequence of those views of the relative rights, powers, and duties of the States and of the Federal Government which I have long entertained and often expressed and in reference to which my convictions do but increase in force with time and experience." No defense is offered for the legislation under review upon the basis of emergency. The hypothesis is that hereafter it will continuously benefit unemployed members of a class. Forever, so far as we can see, the States are expected to function under federal direction concerning an internal matter. By the sanction of this adventure, the door is open for progressive inauguration of others of like kind under which it can hardly be expected that the States will retain genuine independence of action. And without independent States a Federal Union as contemplated by the Constitution becomes impossible. At the bar, counsel asserted that, under the present Act, the tax upon residents of Alabama during the first year will total $9,000,000. All would remain in the Federal Treasury but for the adoption by the State of measures agreeable to the National Board. If continued, these will bring relief from the payment of $8,000,000 to the United States. Ordinarily, I must think, a denial that the challenged action of Congress and what has been done under it amount to coercion and impair freedom of government by the people of the State would be regarded as contrary to practical experience. Unquestionably our federate plan of government confronts an enlarged peril. * "Messages and Papers of the President" by James D. Richardson, Vol. V, pp. 247-256. Separate opinion of MR. JUSTICE SUTHERLAND. With most of what is said in the opinion just handed down, I concur. I agree that the payroll tax levied is an excise within the power of Congress; that the devotion of Page 301 U. S. 610 not more than 90% of it to the credit of employers in states which require the payment of a similar tax under so-called unemployment tax laws is not an unconstitutional use of the proceeds of the federal tax; that the provision making the adoption by the state of an unemployment law of a specified character a condition precedent to the credit of the tax does not render the law invalid. I agree that the states are not coerced by the federal legislation into adopting unemployment legislation. The provisions of the federal law may operate to induce the state to pass an employment law if it regards such action to be in its interest. But that is not coercion. If the act stopped here, I should accept the conclusion of the court that the legislation is not unconstitutional. But the question with which I have difficulty is whether the administrative provisions of the act invade the governmental administrative powers of the several states reserved by the Tenth Amendment. A state may enter into contracts; but a state cannot, by contract or statute, surrender the execution, or a share in the execution, of any of its governmental powers either to a sister state or to the federal government, any more than the federal government can surrender the control of any of its governmental powers to a foreign nation. The power to tax is vital and fundamental, and, in the highest degree, governmental in character. Without it, the state could not exist. Fundamental also, and no less important, is the governmental power to expend the moneys realized from taxation, and exclusively to administer the laws in respect of the character of the tax and the methods of laying and collecting it and expending the proceeds. The people of the United States, by their Constitution, have affirmed a division of internal governmental powers between the federal government and the governments of the several states -- committing to the first its powers by express grant and necessary implication; to the latter, or Page 301 U. S. 611 to the people, by reservation, "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States." The Constitution thus affirms the complete supremacy and independence of the state within the field of its powers. Carter v. Carter Coal Co., 298 U. S. 238 , 298 U. S. 295 . The federal government has no more authority to invade that field than the state has to invade the exclusive field of national governmental powers; for, in the oft-repeated words of this court in Texas v. White , 7 Wall. 700, 74 U. S. 725 , "the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National Government." The necessity of preserving each from every form of illegitimate intrusion or interference on the part of the other is so imperative as to require this court, when its judicial power is properly invoked, to view with a careful and discriminating eye any legislation challenged as constituting such an intrusion or interference. See South Carolina v. United States, 199 U. S. 437 , 199 U. S. 448 . The precise question, therefore, which we are required to answer by an application of these principles is whether the congressional act contemplates a surrender by the state to the federal government, in whole or in part, of any state governmental power to administer its own unemployment law or the state payroll tax funds which it has collected for the purposes of that law. An affirmative answer to this question, I think, must be made. I do not, of course, doubt the power of the state to select and utilize a depository for the safekeeping of its funds; but it is quite another thing to agree with the selected depository that the funds shall be withdrawn for certain stipulated purposes, and for no other. Nor do I doubt the authority of the federal government and a state government to cooperate to a common end, provided Page 301 U. S. 612 each of them is authorized to reach it. But such cooperation must be effectuated by an exercise of the powers which they severally possess, and not by an exercise, through invasion or surrender, by one of them of the governmental power of the other. An illustration of what I regard as permissible cooperation is to be found in Title I of the act now under consideration. By that title, federal appropriations for old-age assistance are authorized to be made to any state which shall have adopted a plan for old-age assistance conforming to designated requirements. But the state is not obliged, as a condition of having the federal bounty, to deposit in the federal treasury funds raised by the state. The state keeps its own funds and administers its own law in respect of them, without let or hindrance of any kind on the part of the federal government; so that we have simply the familiar case of federal aid upon conditions which the state, without surrendering any of its powers, may accept or not as it chooses. Massachusetts v. Mellon, 262 U. S. 447 , 262 U. S. 480 , 262 U. S. 482 -483. But this is not the situation with which we are called upon to deal in the present case. For here, the state must deposit the proceeds of its taxation in the federal treasury, upon terms which make the deposit suspiciously like a forced loan to be repaid only in accordance with restrictions imposed by federal law. Title IX, §§ 903(a)(3), 904(a), (b), (e). All moneys withdrawn from this fund must be used exclusively for the payment of compensation. § 903(a)(4). And this compensation is to be paid through public employment offices in the state or such other agencies as a federal board may approve. § 903(a)(1). The act, it is true, recognizes [§ 903(a)(6)] the power of the legislature to amend or repeal its compensation law at any time. But there is nothing in the act, as I read it, which justifies the conclusion that the state may, in that event, unconditionally withdraw its Page 301 U. S. 613 funds from the federal treasury. Section 903(b) provides that the board shall certify in each taxable year to the Secretary of the Treasury each state whose law has been approved. But the board is forbidden to certify any state which the board finds has so changed its law that it no longer contains the provisions specified in subsection (a), "or has with respect to such taxable year failed to comply substantially with any such provision." The federal government, therefore, in the person of its agent, the board, sits not only as a perpetual overseer, interpreter and censor of state legislation on the subject, but, as lord paramount, to determine whether the state is faithfully executing its own law -- as though the state were a dependency under pupilage * and not to be trusted. The foregoing, taken in connection with the provisions that money withdrawn can be used only in payment of compensation and that it must be paid through an agency approved by the federal board, leaves it, to say the least, highly uncertain whether the right of the state to withdraw any part of its own funds exists, under the act otherwise than upon these various statutory conditions. It is true also that subsection (f) of § 904 authorizes the Secretary of the Treasury to pay to any state agency "such amount as it may duly requisition, not exceeding the amount standing to the account of such State agency at the time of such payment." But it is to be observed that the payment is to be made to the state agency, and only such amount as that agency may duly requisition. It is hard to find in this provision any extension of the right of the state to withdraw its funds except in the manner and for the specific purpose prescribed by the act. By these various provisions of the act, the federal agencies are authorized to supervise and hamper the administrative powers of the state to a degree which not only does not comport with the dignity of a quasi -sovereign Page 301 U. S. 614 state a matter with which we are not judicially concerned -- but which denies to it that supremacy and freedom from external interference in respect of its affairs which the Constitution contemplates -- a matter of very definite judicial concern. I refer to some, though by no means all, of the cases in point. In the License Cases , 5 How. 504, 46 U. S. 588 , Mr. Justice McLean said that the federal government was supreme within the scope of its delegated powers, and the state governments equally supreme in the exercise of the powers not delegated by nor inhibited to them; that the states exercise their powers over everything connected with their social and internal condition, and that, over these subjects, the federal government had no power. "They appertain to the State sovereignty as exclusively as powers exclusively delegated appertain to the general government." In Tarble's Case , 13 Wall. 397, Mr. Justice Field, after pointing out that the general government and the state are separate and distinct sovereignties, acting separately and independently of each other within their respective spheres, said that, except in one particular, they stood in the same independent relation to each other as they would if their authority embraced distinct territories. The one particular referred to is that of the supremacy of the authority of the United States in case of conflict between the two. In Farrington v. Tennessee, 95 U. S. 679 , 95 U. S. 685 , this court said, "Yet every State has a sphere of action where the authority of the national government may not intrude. Within that domain, the State is as if the union were not. Such are the checks and balances in our complicated but wise system of State and national polity." "The powers exclusively given to the federal government," it was said in Worcester v. Georgia , 6 Pet. 515, 31 U. S. 570 , "are limitations upon the state authorities. But, Page 301 U. S. 615 with the exception of these limitations, the states are supreme, and their sovereignty can be no more invaded by the action of the general government than the action of the state governments can arrest or obstruct the course of the national power." The force of what has been said is not broken by an acceptance of the view that the state is not coerced by the federal law. The effect of the dual distribution of powers is completely to deny to the states whatever is granted exclusively to the nation, and, conversely, to deny to the nation whatever is reserved exclusively to the states. "The determination of the Framers Convention and the ratifying conventions to preserve complete and unimpaired state self-government in all matters not committed to the general government is one of the plainest facts which emerge from the history of their deliberations. And adherence to that determination is incumbent equally upon the federal government and the states. State powers can neither be appropriated, on the one hand, nor abdicated, on the other." Carter v. Carter Coal Co., supra, p. 298 U. S. 295 . The purpose of the Constitution in that regard does not admit of doubt or qualification, and it can be thwarted no more by voluntary surrender from within than by invasion from without. Nor may the constitutional objection suggested be overcome by the expectation of public benefit resulting from the federal participation authorized by the act. Such expectation, if voiced in support of a proposed constitutional enactment, would be quite proper for the consideration of the legislative body. But, as we said in the Carter case, supra, p. 298 U. S. 291 -- "nothing is more certain than that beneficent aims, however great or well directed, can never serve in lieu of constitutional power." Moreover, everything which the act seeks to do for the relief of unemployment might have been accomplished, as is done by this same act for the relief of the misfortunes of old age, without Page 301 U. S. 616 obliging the state to surrender, or share with another government, any of its powers. If we are to survive as the United States, the balance between the powers of the nation and those of the states must be maintained. There is grave danger in permitting it to dip in either direction, danger -- if there were no other -- in the precedent thereby set for further departures from the equipoise. The threat implicit in the present encroachment upon the administrative functions of the states is that greater encroachments, and encroachments upon other functions, will follow. For the foregoing reasons, I think the judgment below should be reversed. MR. JUSTICE VAN DEVANTER joins in this opinion. * Compare 85 U. S. United States, 18 Wall. 317, 85 U. S. 319 -320. MR. JUSTICE BUTLER, dissenting. I think that the objections to the challenged enactment expressed in the separate opinions of MR. JUSTICE McREYNOLDS and MR. JUSTICE SUTHERLAND are well taken. I am also of opinion that, in principle and as applied to bring about and to gain control over state unemployment compensation, the statutory scheme is repugnant to the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The Constitution grants to the United States no power to pay unemployed persons or to require the States to enact laws or to raise or disburse money for that purpose. The provisions in question, if not amounting to coercion in a legal sense, are manifestly designed and intended directly to affect state action in the respects specified. And, if valid as so employed, this "tax and credit" device may be made effective to enable federal authorities to induce, if not indeed to compel, state enactments for any purpose within the realm of Page 301 U. S. 617 state power, and generally to control state administration of state laws. The Act creates a Social Security Board and imposes upon it the duty of studying and making recommendations as to legislation and as to administrative policies concerning unemployment compensation and related subjects. § 702. It authorizes grants of money by the United States to States for old age assistance, for administration of unemployment compensation, for aid to dependent children, for maternal and child welfare and for public health. Each grant depends upon state compliance with conditions prescribed by federal authority. The amounts given being within the discretion of the Congress, it may at any time make available federal money sufficient effectively to influence state policy, standards and details of administration. The excise laid by § 901 is limited to specified employers. It is not imposed to raise money to pay unemployment compensation. But it is imposed having regard to that subject; for, upon enactment of state laws for that purpose in conformity with federal requirements specified in the Act, each of the employers subject to the federal tax becomes entitled to credit for the amount he pays into an unemployment fund under a state law up to 90 percent. of the federal tax. The amounts yielded by the remaining 10 percent., not assigned to any specific purpose, may be applied to pay the federal contributions and expenses in respect of state unemployment compensation. It is not yet possible to determine more closely the sums that will be needed for these purposes. When the federal Act was passed, Wisconsin was the only State paying unemployment compensation. Though her plan then in force is by students of the subject generally deemed the best yet devised, she found it necessary to change her law in order to secure federal approval. In the absence of that, Wisconsin employers subject to the Page 301 U. S. 618 federal tax would not have been allowed any deduction on account of their contribution to the state fund. Any State would be moved to conform to federal requirements, not utterly objectionable, in order to save its taxpayers from the federal tax imposed in addition to the contributions under state laws. Federal agencies prepared and took draft bills to state legislatures to enable and induce them to pass laws providing for unemployment compensation in accordance with federal requirements, and thus to obtain relief for the employers from the impending federal exaction. Obviously the Act creates the peril of federal tax not to raise revenue, but to persuade. Of course, each State was free to reject any measure so proposed. But, if it failed to adopt a plan acceptable to federal authority, the full burden of the federal tax would be exacted. And, as federal demands similarly conditioned may be increased from time to time as Congress shall determine, possible federal pressure in that field is without limit. Already at least 43 States, yielding to the inducement resulting immediately from the application of the federal tax and credit device, have provided for unemployment compensation in form to merit approval of the Social Security Board. Presumably the remaining States will comply whenever convenient for their legislatures to pass the necessary laws. The terms of the measure make it clear that the tax and credit device was intended to enable federal officers virtually to control the exertion of powers of the States in a field in which they alone have jurisdiction and from which the United States is by the Constitution excluded. I am of opinion that the judgment of the Circuit Court of Appeals should be reversed.

In *Steward Machine Co. v. Collector of Internal Revenue* (1937), the Supreme Court upheld the federal government's power to impose an "excise tax" on employers with respect to having individuals in their employ, with the tax amount based on a percentage of total wages. This tax was part of the Social Security Act and was uniform across the United States. The Court also ruled that exemptions and credits provided to employers who contributed to state unemployment compensation funds did not violate the Constitution, as they were based on valid policy considerations and practical convenience. The tax was deemed a valid exercise of Congress's taxing power, and the Court rejected arguments that it infringed on state powers or violated the Fifth Amendment.

Powers of Congress

U.S. v. Butler

https://supreme.justia.com/cases/federal/us/297/1/

U.S. Supreme Court United States v. Butler, 297 U.S. 1 (1936) United States v. Butler No. 401 Argued December 9, 10, 1935 Decided January 6, 1936 297 U.S. 1 CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT Syllabus 1. Processors of farm products have a standing to question the constitutionality of the "processing and floor-stock taxes" sought to be laid upon them by the Agricultural Adjustment Act of May 12, 1933, 48 Stat. 31. Massachusetts v. Mellon, 262 U. S. 447 , distinguished. P. 297 U. S. 57 . 2. A tax, in the general understanding and in the strict constitutional sense, is an exaction for the support of Government; the term does not connote the expropriation of money from one group to be expended for another, as a necessary means in a plan of regulation, such as the plan for regulating agricultural production set up in the Agricultural Adjustment Act. P. 297 U. S. 61 . 3. In testing the validity of the "processing tax," it is impossible to wrest it from its setting and treat it apart as a mere excise for raising revenue. P. 297 U. S. 58 . 4. From the conclusion that the exaction is not a true tax it does not necessarily follow that the statute is void and the exaction uncollectible if the regulation, of which the exaction is a part, is within any of the powers granted to Congress. P. 297 U. S. 61 . 5. The Constitution is the supreme law of the land, ordained and established by the people, and all legislation must conform to the principles it lays down. P. 297 U. S. 62 . 6. It is a misconception to say that, in declaring an Act of Congress unconstitutional, the Court assumes a power to overrule or control the action of the people's representatives. P. 297 U. S. 62 . Page 297 U. S. 2 7. When an Act of Congress is appropriately challenged in a Court, it is the duty of the court to compare it with the article of the Constitution which is invoked and decide whether it conforms to that article. P. 297 U. S. 62 . 8. All that the court does or can do in such cases is to announce its considered judgment upon the question; it can neither approve nor condemn any legislative policy; it can merely ascertain and declare whether the legislation is in accordance with, or in contravention of, the provisions of the Constitution. P. 297 U. S. 62 . 9. The question in such cases is not what powers the Federal Government ought to have, but what powers have, in fact, been given it by the people. P. 297 U. S. 63 . 10. Ours is a dual form of government; in every State there are two Governments -- the State and the United States; each State has all governmental powers save such as the people, by the Constitution, have conferred upon the United States, denied to the States, or reserved to themselves. P. 297 U. S. 63 . 11. The Government of the United States is a Government of delegated powers; it has only such powers as are expressly conferred upon it by the Constitution and such as are reasonably to be implied from those expressly granted. P. 297 U. S. 63 . 12. The Agricultural Adjustment Act does not purport to regulate transactions in interstate or foreign commerce, and the Government in this case does not attempt to sustain it under the commerce clause of the Constitution. P. 297 U. S. 63 . 13. In Article I, § 8, cl. 1 of the Constitution, which provides that Congress shall have power "to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States," the phrase "to provide for the general welfare" is not an independent provision empowering Congress generally to provide for the general welfare, but is a qualification defining and limiting the power "to lay and collect taxes," etc. P. 297 U. S. 64 . 14. The power to appropriate money from the Treasury (Constitution, Art. I, § 9, cl. 7) is as broad as the power to tax, and the power to lay taxes to provide for the general welfare of the United States implies the power to appropriate public funds for that purpose. P. 297 U. S. 65 . 15. The power to tax and spend is a separate and distinct power; its exercise is not confined to the fields committed to Congress by the other enumerated grants of power, but it is limited by the requirement that it shall be exercised to provide for the general welfare of the United States. P. 297 U. S. 65 . Page 297 U. S. 3 16. The Court is not required in this case to ascertain the scope of the phrase "general welfare of the United States," or to determine whether an appropriation in aid of agriculture falls within it. P. 297 U. S. 68 . 17. The plan of the Agricultural Adjustment Act is to increase the prices of certain farm products for the farmer by decreasing the quantities produced; the decrease is to be attained by making payments of money to farmers who, under agreements with the Secretary of Agriculture, reduce their acreage and crops, and the money for this purpose is exacted, as a tax, from those who first process the commodities. Held: (1) The Act invades the reserved powers of the States. P. 297 U. S. 68 . (2) Regulation and control of agricultural production are beyond the powers delegated to the Federal Government. P. 297 U. S. 68 . (3) The tax, the appropriation of the funds raised, and the direction for their disbursement, are but parts of the plan -- the means to an unconstitutional end. P. 297 U. S. 68 . (4) The power of taxation, which is expressly granted to Congress, may be adopted as a means to carry into operation another power also expressly granted, but not to effectuate an end which is not within the scope of the Constitution. P. 297 U. S. 69 . (5) The regulation of the farmer's activities under the statute, though in form subject to his own will, is, in fact, coercion through economic pressure; his right of choice is illusory. P. 297 U. S. 70 . (6) Even if the farmer's consent were purely voluntary, the Act would stand no better. At best, it is a scheme for purchasing with federal funds submission to federal regulation of a subject reserved to the States. P. 297 U. S. 72 . (7) The right to appropriate and spend money under contracts or proper governmental purposes cannot justify contracts that are not within federal power. P. 297 U. S. 72 . (8) Congress cannot invade state jurisdiction by purchasing the action of individuals any more than by compelling it. P. 297 U. S. 73 . (9) There is an obvious difference between a statute stating the conditions upon which moneys shall be expended and one effective only upon the assumption of a contractual obligation to submit to a regulation which otherwise could not be enforced. P. 297 U. S. 73 . (10) Owing to the supremacy of the United States, if the contracts with farmers contemplated by the Agricultural Adjustment Act were within the federal power to make, the States could not declare them void or prevent compliance with their terms. P. 297 U. S. 74 . (11) Existence of a situation of national concern resulting from similar and widespread local conditions cannot enable Congress Page 297 U. S. 4 to ignore the constitutional limitations upon its own powers and usurp those reserved to the States. P. 297 U. S. 74 . (12) If the novel view of the General Welfare Clause now advanced in support of the tax were accepted, that clause would not only enable Congress to supplant the States in the regulation of agriculture and of all other industries as well, but would furnish the means whereby all of the other provisions of the Constitution, sedulously framed to define and limit the power of the United States and preserve the powers of the States, could be broken down, the independence of the individual States obliterated, and the United States converted into a central government exercising uncontrolled police power throughout the Union superseding all local control over local concerns. P. 297 U. S. 75 . (13) Congress, being without power to impose the contested exaction, could not lawfully ratify the acts of an executive officer in assessing it. P. 297 U. S. 78 . 78 F.2d 1 affirmed. CERTIORARI, 296 U.S. 561, to review a decree which reversed an order of the District Court ( Franklin Process Co. v. Hoosac Mills Corp., 8 F.Supp. 552), directing the receivers of Hoosac Mills, a cotton milling corporation, to pay claims of the United States for processing and floor taxes on cotton, levied under §§ 9 and 16 of the Agricultural Adjustment Act of May 12, 1933. The opinion of this Court begins on p. 297 U. S. 53 , post; the dissenting opinion on p. 297 U. S. 78 . Page 297 U. S. 53 MR. JUSTICE ROBERTS delivered the opinion of the Court. In this case, we must determine whether certain provisions of the Agricultural Adjustment Act, 1933, [ Footnote 1 ] conflict with the Federal Constitution. Title I of the statute is captioned "Agricultural Adjustment." Section 1 recites that an economic emergency has arisen, due to disparity between the prices of agricultural and other commodities, with consequent destruction of farmers' purchasing power and breakdown in orderly exchange, which, in turn, have affected transactions in agricultural commodities with a national public interest and burdened and obstructed the normal currents of commerce, calling for the enactment of legislation. Page 297 U. S. 54 Section 2 declares it to be the policy of Congress: "To establish and maintain such balance between the production and consumption of agricultural commodities, and such marketing conditions therefor, as will reestablish prices to farmers at a level that will give agricultural commodities [ Footnote 2 ] a purchasing power with respect to articles that farmers buy equivalent to the purchasing power of agricultural commodities in the base period." The base period, in the case of cotton and all other commodities except tobacco, is designated as that between August, 1909, and July, 1914. The further policies announced are an approach to the desired equality by gradual correction of present inequalities "at as rapid a rate as is deemed feasible in view of the current consumptive demand in domestic and foreign markets," and the protection of consumers' interest by readjusting farm production at such level as will not increase the percentage of the consumers' retail expenditures for agricultural commodities or products derived therefrom, which is returned to the farmer, above the percentage returned to him in the base period. Section 8 provides, amongst other things, that, "In order to effectuate the declared policy," the Secretary of Agriculture shall have power "(1) To provide for reduction in the acreage or reduction in the production for market, or both, of any basic agricultural commodity, through agreements with producers or by other voluntary methods, and to provide for rental or benefit payments in connection therewith or upon that part of the production of any basic agricultural commodity required for domestic consumption, in such amounts as the Secretary deems fair and reasonable, to Page 297 U. S. 55 be paid out of any moneys available for such payments. . . ." "(2) To enter into marketing agreements with processors, associations of producers, and others engaged in the handling, in the current of interstate or foreign commerce of any agricultural commodity or product thereof, after due notice and opportunity for hearing to interested parties. . . ." "(3) To issue licenses permitting processors, associations of producers, and others to engage in the handling, in the current of interstate or foreign commerce, of any agricultural commodity or product thereof, or any competing commodity or product thereof." It will be observed that the Secretary is not required, but is permitted, if, in his uncontrolled judgment, the policy of the act will so be promoted, to make agreements with individual farmers for a reduction of acreage or production upon such terms as he may think fair and reasonable. Section 9(a) enacts: "To obtain revenue for extraordinary expenses incurred by reason of the national economic emergency, there shall be levied processing taxes as hereinafter provided. When the Secretary of Agriculture determines that rental on benefit payments are to be made with respect to any basic agricultural commodity, he shall proclaim such determination, and a processing tax shall be in effect with respect to such commodity from the beginning of the marketing year therefor next following the date of such proclamation. The processing tax shall be levied, assessed, and collected upon the first domestic processing of the commodity, whether of domestic production or imported, and shall be paid by the processor. . . ." The Secretary may from time to time, if he finds it necessary for the effectuation of the policy of the act, readjust the amount of the exaction to meet the requirements Page 297 U. S. 56 of subsection (b). The tax is to terminate at the end of any marketing year if the rental or benefit payments are discontinued by the Secretary with the expiration of that year. Section 9(b) fixes the tax "at such rate as equals the difference between the current average farm price for the commodity and the fair exchange value," with power in the Secretary, after investigation, notice, and hearing, to readjust the tax so as to prevent the accumulation of surplus stocks and depression of farm prices. Section 9(c) directs that the fair exchange value of a commodity shall be such a price as will give that commodity the same purchasing power with respect to articles farmers buy as it had during the base period and that the fair exchange value and the current average farm price of a commodity shall be ascertained by the Secretary from available statistics in his department. Section 12(a) appropriates $100,000,000 "to be available to the Secretary of Agriculture for administrative expenses under this title and for rental and benefit payments . . .", and § 12(b) appropriates the proceeds derived from all taxes imposed under the act "to be available to the Secretary of Agriculture for expansion of markets and removal of surplus agricultural products. . . administrative expenses, rental and benefit payments, and refunds on taxes." Section 15(d) permits the Secretary, upon certain conditions, to impose compensating taxes on commodities in competition with those subject to the processing tax. By § 16, a floor tax is imposed upon the sale or other disposition of any article processed wholly or in chief value from any commodity with respect to which a processing tax is to be levied in amount equivalent to that of the processing tax which would be payable with respect to the commodity from which the article is processed if the processing had occurred on the date when the processing tax becomes effective. Page 297 U. S. 57 On July 14, 1933, the Secretary of Agriculture, with the approval of the President, proclaimed that he had determined rental and benefit payments should be made with respect to cotton; that the marketing year for that commodity was to begin August 1, 1933, and calculated and fixed the rates of processing and floor taxes on cotton in accordance with the terms of the act. The United States presented a claim to the respondents as receivers of the Hoosac Mills Corporation for processing and floor taxes on cotton levied under § 9 and 16 of the act. The receivers recommended that the claim be disallowed. The District Court found the taxes valid, and ordered them paid. [ Footnote 3 ] Upon appeal, the Circuit Court of Appeals reversed the order. [ Footnote 4 ] The judgment under review was entered prior to the adoption of the amending act of August 24, 1935, [ Footnote 5 ] and we are therefore concerned only with the original act. First. At the outset, the United States contends that the respondents have no standing to question the validity of the tax. The position is that the act is merely a revenue measure levying an excise upon the activity of processing cotton -- a proper subject for the imposition of such a tax -- the proceeds of which go into the federal treasury, and thus become available for appropriation for any purpose. It is said that what the respondents are endeavoring to do is to challenge the intended use of the money pursuant to Congressional appropriation when, by confession, that money will have become the property of the Government and the taxpayer will no longer have any interest in it. Massachusetts v. Mellon, 262 U. S. 447 , is claimed to foreclose litigation by the respondents or other taxpayers, as such, looking to restraint of the expenditure of government funds. That case might be an authority Page 297 U. S. 58 in the petitioners' favor if we were here concerned merely with a suit by a taxpayer to restrain the expenditure of the public moneys. It was there held that a taxpayer of the United States may not question expenditures from its treasury on the ground that the alleged unlawful diversion will deplete the public funds, and thus increase the burden of future taxation. Obviously the asserted interest of a taxpayer in the federal government's funds and the supposed increase of the future burden of taxation is minute and indeterminable. But here, the respondents, who are called upon to pay moneys as taxes, resist the exaction as a step in an unauthorized plan. This circumstance clearly distinguishes the case. The Government, in substance and effect, asks us to separate the Agricultural Adjustment Act into two statutes, the one levying an excise on processors of certain commodities, the other appropriating the public moneys independently of the first. Passing the novel suggestion that two statutes enacted as parts of a single scheme should be tested as if they were distinct and unrelated, we think the legislation now before us is not susceptible of such separation and treatment. The tax can only be sustained by ignoring the avowed purpose and operation of the act and holding it a measure merely laying an excise upon processors to raise revenue for the support of government. Beyond cavil, the sole object of the legislation is to restore the purchasing power of agricultural products to a parity with that prevailing in an earlier day; to take money from the processor and bestow it upon farmers [ Footnote 6 ] who will reduce their acreage for Page 297 U. S. 59 the accomplishment of the proposed end, and, meanwhile to aid these farmers during the period required to bring the prices of their crops to the desired level. The tax plays an indispensable part in the plan of regulation. As stated by the Agricultural Adjustment Administrator, it is " the heart of the law "; a means of " accomplishing one or both of two things intended to help farmers attain parity prices and purchasing power." [ Footnote 7 ] A tax automatically goes into effect for a commodity when the Secretary of Agriculture determines that rental or benefit payments are to be made for reduction of production of that commodity. The tax is to cease when rental or benefit payments cease. The rate is fixed with the purpose of bringing about crop reduction and price-raising. It is to equal the difference between the " current average farm price " and " fair exchange value." It may be altered to such amount as will prevent accumulation of surplus stocks. If the Secretary finds the policy of the act will not be promoted by the levy of the tax for a given commodity, he may exempt it. (§ 11.) The whole revenue from the levy is appropriated in aid of crop control; none of it is made available for general governmental use. The entire agricultural adjustment program embodied in Title I of the act is to become inoperative when, in the judgment of the President, the national economic emergency ends, and as to any commodity, he may terminate the provisions of the law if he finds them no longer requisite to carrying out the declared policy with respect to such commodity. (§ 13.) The statute not only avows an aim foreign to the procurement of revenue for the support of government, but, by its operation, shows the exaction laid upon processors to be the necessary means for the intended control of agricultural production. Page 297 U. S. 60 In these aspects the tax, so-called, closely resembles that laid by the Act of August 3, 1882, entitled "An Act to Regulate Immigration," which came before this court in the Head Money Cases, 112 U. S. 580 . The statute directed that there should be levied, collected and paid a duty of fifty cents for each alien passenger who should come by vessel from a foreign port to one in the United States. Payment was to be made to the collector of the port by the master, owner, consignee or agent of the ship; the money was to be paid into the Treasury, was to be called the immigrant fund, and to be used by the Secretary of the Treasury to defray the expense of regulating immigration, for the care of immigrants and relieving those in distress, and for the expenses of effectuating the act. Various objections to the act were presented. In answering them the court said (p. 595): "But the true answer to all these objections is that the power exercised in this instance is not the taxing power. The burden imposed on the ship owner by this statute is the mere incident of the regulation of commerce -- of that branch of foreign commerce which is involved in immigration. . . ." "It is true not much is said about protecting the ship owner. But he is the man who reaps the profit from the transaction, . . . The sum demanded of him is not, therefore, strictly speaking, a tax or duty within the meaning of the Constitution. The money thus raised, though paid into the Treasury, is appropriated in advance to the uses of the statute, and does not go to the general support of the government." While there, the exaction was sustained as an appropriate element in a plan within the power of Congress "to regulate commerce with foreign nations," no question was made of the standing of the shipowner to raise the question Page 297 U. S. 61 of the validity of the scheme, and consequently of the exaction which was an incident of it. It is inaccurate and misleading to speak of the exaction from processors prescribed by the challenged act as a tax, or to say that as a tax it is subject to no infirmity. A tax, in the general understanding of the term, and as used in the Constitution, signifies an exaction for the support of the Government. The word has never been thought to connote the expropriation of money from one group for the benefit of another. We may concede that the latter sort of imposition is constitutional when imposed to effectuate regulation of a matter in which both groups are interested and in respect of which there is a power of legislative regulation. But manifestly no justification for it can be found unless as an integral part of such regulation. The exaction cannot be wrested out of its setting, denominated an excise for raising revenue, and legalized by ignoring its purpose as a mere instrumentality for bringing about a desired end. To do this would be to shut our eyes to what all others than we can see and understand. Child Labor Tax Case, 259 U. S. 20 , 259 U. S. 37 . We conclude that the act is one regulating agricultural production, that the tax is a mere incident of such regulation, and that the respondents have standing to challenge the legality of the exaction. It does not follow that, as the act is not an exertion of the taxing power and the exaction not a true tax, the statute is void or the exaction uncollectible. For, to paraphrase what was said in the Head Money Cases (supra), p. 112 U. S. 596 , if this is an expedient regulation by Congress, of a subject within one of its granted powers, "and the end to be attained is one falling within that power, the act is not void because, within a loose and more extended sense than was used in the Constitution," the exaction is called a tax. Page 297 U. S. 62 Second. The Government asserts that, even if the respondents may question the propriety of the appropriation embodied in the statute, their attack must fail because Article I, § 8 of the Constitution authorizes the contemplated expenditure of the funds raised by the tax. This contention presents the great and the controlling question in the case. [ Footnote 8 ] We approach its decision with a sense of our grave responsibility to render judgment in accordance with the principles established for the governance of all three branches of the Government. There should be no misunderstanding as to the function of this court in such a case. It is sometimes said that the court assumes a power to overrule or control the action of the people's representatives. This is a misconception. The Constitution is the supreme law of the land ordained and established by the people. All legislation must conform to the principles it lays down. When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the Government has only one duty -- to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former. All the court does, or can do, is to announce its considered judgment upon the question. Page 297 U. S. 63 The only power it has, if such it may be called, is the power of judgment. This court neither approves nor condemns any legislative policy. Its delicate and difficult office is to ascertain and declare whether the legislation is in accordance with, or in contravention of, the provisions of the Constitution; and, having done that, its duty ends. [ Footnote 9 ] The question is not what power the Federal Government ought to have, but what powers, in fact, have been given by the people. It hardly seems necessary to reiterate that ours is a dual form of government; that in every state there are two governments -- the state and the United States. Each State has all governmental powers save such as the people, by their Constitution, have conferred upon the United States, denied to the States, or reserved to themselves. The federal union is a government of delegated powers. It has only such as are expressly conferred upon it and such as are reasonably to be implied from those granted. In this respect, we differ radically from nations where all legislative power, without restriction or limitation, is vested in a parliament or other legislative body subject to no restrictions except the discretion of its members. Article I, § 8, of the Constitution vests sundry powers in the Congress. But two of its clauses have any bearing upon the validity of the statute under review. The third clause endows the Congress with power "to regulate Commerce . . . among the several States." Despite a reference in its first section to a burden upon, and an obstruction of the normal currents of commerce, the act under review does not purport to regulate transactions in interstate or foreign [ Footnote 10 ] commerce. Its stated purpose Page 297 U. S. 64 is the control of agricultural production, a purely local activity, in an effort to raise the prices paid the farmer. Indeed, the Government does not attempt to uphold the validity of the act on the basis of the commerce clause, which, for the purpose of the present case, may be put aside as irrelevant. The clause thought to authorize the legislation -- the first -- confers upon the Congress power "to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States. . . ." It is not contended that this provision grants power to regulate agricultural production upon the theory that such legislation would promote the general welfare. The Government concedes that the phrase "to provide for the general welfare" qualifies the power "to lay and collect taxes." The view that the clause grants power to provide for the general welfare, independently of the taxing power, has never been authoritatively accepted. Mr. Justice Story points out that, if it were adopted, "it is obvious that, under color of the generality of the words, to 'provide for the common defence and general welfare,' the government of the United States is, in reality, a government of general and unlimited powers, notwithstanding the subsequent enumeration of specific powers. [ Footnote 11 ]" The true construction undoubtedly is that the only thing granted is the power to tax for the purpose of providing funds for payment of the nation's debts and making provision for the general welfare. Nevertheless the Government asserts that warrant is found in this clause for the adoption of the Agricultural Adjustment Act. The argument is that Congress may appropriate and authorize the spending of moneys for the "general welfare"; that the phrase should be liberally Page 297 U. S. 65 construed to cover anything conducive to national welfare; that decision as to what will promote such welfare rests with Congress alone, and the courts may not review its determination, and finally that the appropriation under attack was, in fact, for the general welfare of the United States. The Congress is expressly empowered to lay taxes to provide for the general welfare. Funds in the Treasury as a result of taxation may be expended only through appropriation. (Art. I, § 9, cl. 7.) They can never accomplish the objects for which they were collected unless the power to appropriate is as broad as the power to tax. The necessary implication from the terms of the grant is that the public funds may be appropriated "to provide for the general welfare of the United States." These words cannot be meaningless, else they would not have been used. The conclusion must be that they were intended to limit and define the granted power to raise and to expend money. How shall they be construed to effectuate the intent of the instrument? Since the foundation of the Nation, sharp differences of opinion have persisted as to the true interpretation of the phrase. Madison asserted it amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section; that, as the United States is a government of limited and enumerated powers, the grant of power to tax and spend for the general national welfare must be confined to the enumerated legislative fields committed to the Congress. In this view, the phrase is mere tautology, for taxation and appropriation are, or may be, necessary incidents of the exercise of any of the enumerated legislative powers. Hamilton, on the other hand, maintained the clause confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, Page 297 U. S. 66 limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. Each contention has had the support of those whose views are entitled to weight. This court has noticed the question, but has never found it necessary to decide which is the true construction. Mr. Justice Story, in his Commentaries, espouses the Hamiltonian position. [ Footnote 12 ] We shall not review the writings of public men and commentators or discuss the legislative practice. Study of all these leads us to conclude that the reading advocated by Mr. Justice Story is the correct one. While, therefore, the power to tax is not unlimited, its confines are set in the clause which confers it, and not in those of § 8 which bestow and define the legislative powers of the Congress. It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution. But the adoption of the broader construction leaves the power to spend subject to limitations. As Story says: "The Constitution was, from its very origin, contemplated to be the frame of a national government, of special and enumerated powers, and not of general and unlimited powers. [ Footnote 13 ]" Again, he says: "A power to lay taxes for the common defence and general welfare of the United States is not, in common sense, a general power. It is limited to those objects. It cannot constitutionally transcend them. [ Footnote 14 ]" That the qualifying phrase must be given effect all advocates of broad construction admit. Hamilton, in his Page 297 U. S. 67 well known Report on Manufactures, states that the purpose must be "general, and not local." [ Footnote 15 ] Monroe, an advocate of Hamilton's doctrine, wrote: "Have Congress a right to raise and appropriate the money to any and to every purpose according to their will and pleasure? They certainly have not. [ Footnote 16 ]" Story says that, if the tax be not proposed for the common defence or general welfare, but for other objects wholly extraneous, it would be wholly indefensible upon constitutional principles. [ Footnote 17 ] And he makes it clear that the powers of taxation and appropriation extend only to matters of national, as distinguished from local, welfare. As elsewhere throughout the Constitution, the section in question lays down principles which control the use of the power, and does not attempt meticulous or detailed directions. Every presumption is to be indulged in favor of faithful compliance by Congress with the mandates of the fundamental law. Courts are reluctant to adjudge any statute in contravention of them. But, under our frame of government, no other place is provided where the citizen may be heard to urge that the law fails to conform to the limits set upon the use of a granted power. When such a contention comes here, we naturally require a showing that by no reasonable possibility can the challenged legislation fall within the wide range of discretion permitted to the Congress. How great is the extent of that range when the subject is the promotion of the general welfare of the United States we hardly need remark. But, despite the breadth of the legislative discretion, our duty to hear and to render judgment remains. If the statute plainly violates the stated principle of the Constitution, we must so declare. Page 297 U. S. 68 We are not now required to ascertain the scope of the phrase "general welfare of the United States," or to determine whether an appropriation in aid of agriculture falls within it. Wholly apart from that question, another principle embedded in our Constitution prohibits the enforcement of the Agricultural Adjustment Act. The act invades the reserved rights of the states. It is a statutory plan to regulate and control agricultural production, a matter beyond the powers delegated to the federal government. The tax, the appropriation of the funds raised, and the direction for their disbursement are but parts of the plan. They are but means to an unconstitutional end. From the accepted doctrine that the United States is a government of delegated powers, it follows that those not expressly granted, or reasonably to be implied from such as are conferred, are reserved to the states, or to the people. To forestall any suggestion to the contrary, the Tenth Amendment was adopted. [ Footnote 18 ] The same proposition, otherwise stated, is that powers not granted are prohibited. None to regulate agricultural production is given, and therefore legislation by Congress for that purpose is forbidden. It is an established principle that the attainment of a prohibited end may not be accomplished under the pretext of the exertion of powers which are granted. "Should Congress, in the execution of its powers, adopt measures which are prohibited by the constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government, it would become the painful duty of this tribunal, should a case requiring such a decision Page 297 U. S. 69 come before it, to say that such an act was not the law of the land." McCulloch v. Maryland , 4 Wheat. 316, 17 U. S. 423 . "Congress cannot, under the pretext of executing delegated power, pass laws for the accomplishment of objects not entrusted to the Federal Government. And we accept as established doctrine that any provision of an act of Congress ostensibly enacted under power granted by the Constitution, not naturally and reasonably adapted to the effective exercise of such power but solely to the achievement of something plainly within power reserved to the States, is invalid and cannot be enforced." Linder v. United States, 268 U. S. 5 , 268 U. S. 17 . These principles are as applicable to the power to lay taxes as to any other federal power. Said the court, in McCulloch v. Maryland, supra, 17 U. S. 421 : "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." The power of taxation, which is expressly granted, may, of course, be adopted as a means to carry into operation another power also expressly granted. But resort to the taxing power to effectuate an end which is not legitimate, not within the scope of the Constitution, is obviously inadmissible. "Congress is not empowered to tax for those purposes which are within the exclusive province of the States." Gibbons v. Ogden , 9 Wheat. 1, 22 U. S. 199 . "There are, indeed, certain virtual limitations, arising from the principles of the Constitution itself. It would undoubtedly be an abuse of the [taxing] power if so exercised as to impair the separate existence and independent self-government of the States or if exercised for ends Page 297 U. S. 70 inconsistent with the limited grants of power in the Constitution." Veazie Bank v. Fenno , 8 Wall. 533, 75 U. S. 541 . In the Child Labor Tax Case, 259 U. S. 20 , and in Hill v. Wallace, 259 U. S. 44 , this court had before it statutes which purported to be taxing measures. But their purpose was found to be to regulate the conduct of manufacturing and trading not in interstate commerce, but in the states -- matters not within any power conferred upon Congress by the Constitution -- and the levy of the tax a means to force compliance. The court held this was not a constitutional use, but an unconstitutional abuse, of the power to tax. In Linder v. United States, supra, we held that the power to tax could not justify the regulation of the practice of a profession, under the pretext of raising revenue. In United States v. Constantine, 296 U. S. 287 , we declared that Congress could not, in the guise of a tax, impose sanctions for violation of state law respecting the local sale of liquor. These decisions demonstrate that Congress could not, under the pretext of raising revenue, lay a tax on processors who refuse to pay a certain price for cotton, and exempt those who agree so to do, with the purpose of benefiting producers. Third. If the taxing power may not be used as the instrument to enforce a regulation of matters of state concern with respect to which the Congress has no authority to interfere, may it, as in the present case, be employed to raise the money necessary to purchase a compliance which the Congress is powerless to command? The Government asserts that whatever might be said against the validity of the plan if compulsory, it is constitutionally sound because the end is accomplished by voluntary cooperation. There are two sufficient answers to the contention. The regulation is not, in fact, voluntary. The farmer, of course, may refuse to comply, but the price of such refusal is the loss of benefits. The amount offered is intended to be sufficient to exert pressure on him to Page 297 U. S. 71 agree to the proposed regulation. [ Footnote 19 ] The power to confer or withhold unlimited benefits is the power to coerce or destroy. If the cotton grower elects not to accept the benefits, he will receive less for his crops; those who receive payments will be able to undersell him. The result may well be financial ruin. The coercive purpose and intent of the statute is not obscured by the fact that it has not been perfectly successful. It is pointed out that, because there still remained a minority whom the rental and benefit payments were insufficient to induce to surrender their independence of action, the Congress has gone further and, in the Bankhead Cotton Act, used the taxing power in a more directly minatory fashion to compel submission. This progression only serves more fully to expose the coercive purpose of the so-called tax imposed by the present act. It is clear that the Department of Agriculture has properly described the plan as one to keep a noncooperating minority in line. This is coercion by economic pressure. The asserted power of choice is illusory. In Frost Trucking Co. v. Railroad Comm'n, 271 U. S. 583 , a state act was considered which provided for supervision and regulation of transportation for hire by automobile on the public highways. Certificates of convenience and necessity were to be obtained by persons desiring to use the highways for this purpose. The regulatory Page 297 U. S. 72 commission required that a private contract carrier should secure such a certificate as a condition of its operation. The effect of the commission's action was to transmute the private carrier into a public carrier. In other words, the privilege of using the highways as a private carrier for compensation was conditioned upon his dedicating his property to the quasi -public use of public transportation. While holding that the private carrier was not obliged to submit himself to the condition, the commission denied him the privilege of using the highways if he did not do so. The argument was, as here, that the carrier had a free choice. This court said, in holding the act as construed unconstitutional: "If so, constitutional guaranties, so carefully safeguarded against direct assault, are open to destruction by the indirect but no less effective process of requiring a surrender which, though in form voluntary, in fact lacks none of the elements of compulsion. Having regard to form alone, the act here is an offer to the private carrier of a privilege, which the state may grant or deny, upon a condition, which the carrier is free to accept or reject. In reality, the carrier is given no choice, except a choice between the rock and the whirlpool -- an option to forego a privilege which may be vital to his livelihood or submit to a requirement which may constitute an intolerable burden." (P. 593.) But if the plan were one for purely voluntary cooperation, it would stand no better so far as federal power is concerned. At best, it is a scheme for purchasing with federal funds submission to federal regulation of a subject reserved to the states. It is said that Congress has the undoubted right to appropriate money to executive officers for expenditure under contracts between the government and individuals; that much of the total expenditures is so made. But appropriations and expenditures under contracts for proper Page 297 U. S. 73 governmental purposes cannot justify contracts which are not within federal power. And contracts for the reduction of acreage and the control of production are outside the range of that power. An appropriation to be expended by the United States under contracts calling for violation of a state law clearly would offend the Constitution. Is a statute less objectionable which authorizes expenditure of federal moneys to induce action in a field in which the United States has no power to intermeddle? The Congress cannot invade state jurisdiction to compel individual action; no more can it purchase such action. We are referred to numerous types of federal appropriation which have been made in the past, and it is asserted no question has been raised as to their validity. We need not stop to examine or consider them. As was said in Massachusetts v. Mellon, supra, (p. 262 U. S. 487 ): ". . . as an examination of the acts of Congress will disclose, a large number of statutes appropriating or involving the expenditure of moneys for nonfederal purposes have been enacted and carried into effect." As the opinion points out, such expenditures have not been challenged because no remedy was open for testing their constitutionality in the courts. We are not here concerned with a conditional appropriation of money, nor with a provision that, if certain conditions are not complied with, the appropriation shall no longer be available. By the Agricultural Adjustment Act, the amount of the tax is appropriated to be expended only in payment under contracts whereby the parties bind themselves to regulation by the Federal Government. There is an obvious difference between a statute stating the conditions upon which moneys shall be expended and one effective only upon assumption of a contractual obligation to submit to a regulation which otherwise could not be enforced. Many examples pointing the distinction might be cited. We are referred to appropriations in aid Page 297 U. S. 74 of education, and it is said that no one has doubted the power of Congress to stipulate the sort of education for which money shall be expended. But an appropriation to an educational institution which, by its terms, is to become available only if the beneficiary enters into a contract to teach doctrines subversive of the Constitution is clearly bad. An affirmance of the authority of Congress so to condition the expenditure of an appropriation would tend to nullify all constitutional limitations upon legislative power. But it is said that there is a wide difference in another respect between compulsory regulation of the local affairs of a state's citizens and the mere making of a contract relating to their conduct: that, if any state objects, it may declare the contract void, and thus prevent those under the state's jurisdiction from complying with its terms. The argument is plainly fallacious. The United States can make the contract only if the federal power to tax and to appropriate reaches the subject matter of the contract. If this does reach the subject matter, its exertion cannot be displaced by state action. To say otherwise is to deny the supremacy of the laws of the United States; to make them subordinate to those of a State. This would reverse the cardinal principle embodied in the Constitution, and substitute one which declares that Congress may only effectively legislate as to matters within federal competence when the States do not dissent. Congress has no power to enforce its commands on the farmer to the ends sought by the Agricultural Adjustment Act. It must follow that it may not indirectly accomplish those ends by taxing and spending to purchase compliance. The Constitution and the entire plan of our government negative any such use of the power to tax and to spend as the act undertakes to authorize. It does not help to declare that local conditions throughout the nation have created a situation of national concern, for this Page 297 U. S. 75 is but to say that, whenever there is a widespread similarity of local conditions, Congress may ignore constitutional limitations upon its own powers and usurp those reserved to the states. If, in lieu of compulsory regulation of subjects within the states' reserved jurisdiction, which is prohibited, the Congress could invoke the taxing and spending power as a means to accomplish the same end, clause 1 of § 8 of Article I would become the instrument for total subversion of the governmental powers reserved to the individual states. If the act before us is a proper exercise of the federal taxing power, evidently the regulation of all industry throughout the United States may be accomplished by similar exercises of the same power. It would be possible to exact money from one branch of an industry and pay it to another branch in every field of activity which lies within the province of the states. The mere threat of such a procedure might well induce the surrender of rights and the compliance with federal regulation as the price of continuance in business. A few instances will illustrate the thought. Let us suppose Congress should determine that the farmer, the miner, or some other producer of raw materials is receiving too much for his products, with consequent depression of the processing industry and idleness of its employes. Though, by confession, there is no power vested in Congress to compel by statute a lowering of the prices of the raw material, the same result might be accomplished, if the questioned act be valid, by taxing the producer upon his output and appropriating the proceeds to the processors, either with or without conditions imposed as the consideration for payment of the subsidy. We have held in Schechter Poultry Corp. v. United States, 295 U. S. 495 , that Congress has no power to regulate wages and hours of labor in a local business. If the petitioner is right, this very end may be accomplished by Page 297 U. S. 76 appropriating money to be paid to employers from the federal treasury under contracts whereby they agree to comply with certain standards fixed by federal law or by contract. Should Congress ascertain that sugar refiners are not receiving a fair profit, and that this is detrimental to the entire industry, and in turn has its repercussions in trade and commerce generally, it might, in analogy to the present law, impose an excise of two cents a pound on every sale of the commodity, and pass the funds collected to such refiners, and such only, as will agree to maintain a certain price. Assume that too many shoes are being manufactured throughout the nation; that the market is saturated, the price depressed, the factories running half-time, the employes suffering. Upon the principle of the statute in question, Congress might authorize the Secretary of Commerce to enter into contracts with shoe manufacturers providing that each shall reduce his output, and that the United States will pay him a fixed sum proportioned to such reduction, the money to make the payments to be raised by a tax on all retail shoe dealers or their customers. Suppose that there are too many garment workers in the large cities; that this results in dislocation of the economic balance. Upon the principle contended for, an excise might be laid on the manufacture of all garments manufactured, and the proceeds paid to those manufacturers who agree to remove their plants to cities having not more than a hundred thousand population. Thus, through the asserted power of taxation, the federal government, against the will of individual states, might completely redistribute the industrial population. A possible result of sustaining the claimed federal power would be that every business group which thought itself underprivileged might demand that a tax be laid on its vendors or vendees, the proceeds to be appropriated to the redress of its deficiency of income. Page 297 U. S. 77 These illustrations are given not to suggest that any of the purposes mentioned are unworthy, but to demonstrate the scope of the principle for which the Government contends; to test the principle by its applications; to point out that, by the exercise of the asserted power, Congress would, in effect, under the pretext of exercising the taxing power, in reality accomplish prohibited ends. It cannot be said that they envisage improbable legislation. The supposed cases are no more improbable than would the present act have been deemed a few years ago. Until recently, no suggestion of the existence of any such power in the Federal Government has been advanced. The expressions of the framers of the Constitution, the decisions of this court interpreting that instrument, and the writings of great commentators will be searched in vain for any suggestion that there exists in the clause under discussion, or elsewhere in the Constitution, the authority whereby every provision and every fair implication from that instrument may be subverted, the independence of the individual states obliterated, and the United States converted into a central government exercising uncontrolled police power in every state of the Union, superseding all local control or regulation of the affairs or concerns of the states. Hamilton himself, the leading advocate of broad interpretation of the power to tax and to appropriate for the general welfare, never suggested that any power granted by the Constitution could be used for the destruction of local self-government in the states. Story countenances no such doctrine. It seems never to have occurred to them, or to those who have agreed with them, that the general welfare of the United States (which has aptly been termed " an indestructible Union, composed of indestructible States") might be served by obliterating the constituent members of the Union. But to this fatal conclusion Page 297 U. S. 78 the doctrine contended for would inevitably lead. And its sole premise is that, though the makers of the Constitution, in erecting the federal government, intended sedulously to limit and define its powers so as to reserve to the states and the people sovereign power, to be wielded by the states and their citizens and not to be invaded by the United States, they nevertheless, by a single clause, gave power to the Congress to tear down the barriers, to invade the states' jurisdiction, and to become a parliament of the whole people, subject to no restrictions save such as are self-imposed. The argument, when seen in its true character and in the light of its inevitable results, must be rejected. Since, as we have pointed out, there was no power in the Congress to impose the contested exaction, it could not lawfully ratify or confirm what an executive officer had done in that regard. Consequently the Act of 1935 does not affect the rights of the parties. The judgment is Affirmed. [ Footnote 1 ] May 12, 1933, c. 25, 48 Stat. 31. [ Footnote 2 ] Section 11 denominates wheat, cotton, field corn, hogs, rice, tobacco, and milk and its products, "basic agricultural commodities," to which the act is to apply. Others have been added by later legislation. [ Footnote 3 ] Franklin Process Co. v. Hoosac Mills Corp., 8 F. Supp. 552 . [ Footnote 4 ] Butler v. United States, 78 F . (2d) 1. [ Footnote 5 ] 49 Stat. 750, c. 641. [ Footnote 6 ] U.S. Department of Agriculture, Achieving A Balanced Agriculture, p. 38: "Farmers should not forget that all the processing tax money ends up in their own pockets. Even in those cases where they pay part of the tax, they get it all back. Every dollar collected in processing taxes goes to the farmer in benefit payments." U.S. Dept. of Agriculture, The Processing Tax, p. 1: " Proceeds of processing taxes are passed to farmers as benefit payments." [ Footnote 7 ] U.S. Department of Agriculture, Agricultural Adjustment, p. 9. [ Footnote 8 ] Other questions were presented and argued by counsel, but we do not consider or decide them. The respondents insist that the act in numerous respects delegates legislative power to the executive contrary to the principles announced in Panama Refining Co. v. Ryan, 293 U. S. 388 , and Schechter Corp. v. United States, 295 U. S. 495 ; that this unlawful delegation is not cured by the amending act of August 24, 1935; that the exaction is in violation of the due process clause of the Fifth Amendment, since the legislation takes their property for a private use; that the floor tax is a direct tax, and therefore void for lack of apportionment amongst the states, as required by Article I, § 9, and that the processing tax is wanting in uniformity, and so violates Article I, § 8, clause one, of the Constitution. [ Footnote 9 ] Compare Adkins v. Children's Hospital, 261 U. S. 525 , 261 U. S. 544 ; Massachusetts v. Mellon, 262 U. S. 447 , 262 U. S. 488 . [ Footnote 10 ] The enactment of protective tariff laws has its basis in the power to regulate foreign commerce. See Board of Trustees of the University of Illinois v. United States, 289 U. S. 48 , 289 U. S. 58 . [ Footnote 11 ] Story, Commentaries on the Constitution of the United States 5th ed., Vol. I, § 907. [ Footnote 12 ] Loc. cit. Chapter XIV, passim. [ Footnote 13 ] Loc. cit., § 909. [ Footnote 14 ] Loc. cit., § 922. [ Footnote 15 ] Works, Vol. III, p. 250. [ Footnote 16 ] Richardson, Messages and Papers of the Presidents, Vol. II, p. 167. [ Footnote 17 ] Loc. cit., p. 673. [ Footnote 18 ] The Tenth Amendment declares: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people." [ Footnote 19 ] U.S. Dept. of Agriculture, Agricultural Adjustment, p. 9. "Experience of cooperative associations and other groups has shown that, without such Government support, the efforts of the farmers to band together to control the amount of their product sent to market are nearly always brought to nothing. Almost always, under such circumstances, there has been a noncooperating minority, which, refusing to go along with the rest, has stayed on the outside and tried to benefit from the sacrifices the majority has made. . . . It is to keep this noncooperating minority in line, or at least prevent it from doing harm to the majority, that the power of the Government has been marshaled behind the adjustment programs." MR. JUSTICE STONE, dissenting. I think the judgment should be reversed. The present stress of widely held and strongly expressed differences of opinion of the wisdom of the Agricultural Adjustment Act makes it important, in the interest of clear thinking and sound result, to emphasize at the outset certain propositions which should have controlling influence in determining the validity of the Act. They are: 1. The power of courts to declare a statute unconstitutional is subject to two guiding principles of decision which ought never to be absent from judicial consciousness. One is that courts are concerned only with the power to enact statutes, not with their wisdom. The other is that, while unconstitutional exercise of power Page 297 U. S. 79 by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint. For the removal of unwise laws from the statute books appeal lies not to the courts, but to the ballot and to the processes of democratic government. 2. The constitutional power of Congress to levy an excise tax upon the processing of agricultural products is not questioned. The present levy is held invalid not for any want of power in Congress to lay such a tax to defray public expenditures, including those for the general welfare, but because the use to which its proceeds are put is disapproved. 3. As the present depressed state of agriculture is nationwide in its extent and effects, there is no basis for saying that the expenditure of public money in aid of farmers is not within the specifically granted power of Congress to levy taxes to " provide for the . . . general welfare." The opinion of the Court does not declare otherwise. 4. No question of a variable tax fixed from time to time by fiat of the Secretary of Agriculture, or of unauthorized delegation of legislative power, is now presented. The schedule of rates imposed by the Secretary in accordance with the original command of Congress has since been specifically adopted and confirmed by Act of Congress, which has declared that it shall be the lawful tax. Act of August 24, 1935, 49 Stat. 750. That is the tax which the government now seeks to collect. Any defects there may have been in the manner of laying the tax by the Secretary have now been removed by the exercise of the power of Congress to pass a curative statute validating an intended, though defective, tax. United States v. Heinszen & Co., 206 U. S. 370 ; Graham & Foster v. Goodcell, 282 U. S. 409 ; cf. Milliken v. United States, 283 U. S. 15 . The Agricultural Adjustment Act, as thus amended, declares Page 297 U. S. 80 that none of its provisions shall fail because others are pronounced invalid. It is with these preliminary and hardly controverted matters in mind that we should direct our attention to the pivot on which the decision of the Court is made to turn. It is that a levy unquestionably within the taxing power of Congress may be treated as invalid because it is a step in a plan to regulate agricultural production, and is thus a forbidden infringement of state power. The levy is not any the less an exercise of taxing power because it is intended to defray an expenditure for the general welfare, rather than for some other support of government. Nor is the levy and collection of the tax pointed to as effecting the regulation. While all federal taxes inevitably have some influence on the internal economy of the states, it is not contended that the levy of a processing tax upon manufacturers using agricultural products as raw material has any perceptible regulatory effect upon either their production or manufacture. The tax is unlike the penalties which were held invalid in the Child Labor Tax Case, 259 U. S. 20 , in Hill v. Wallace, 259 U. S. 44 , in Linder v. United States, 268 U. S. 5 , 268 U. S. 17 , and in United States v. Constantine, 296 U. S. 287 , because they were themselves the instruments of regulation by virtue of their coercive effect on matters left to the control of the states. Here regulation, if any there be, is accomplished not by the tax, but by the method by which its proceeds are expended, and would equally be accomplished by any like use of public funds, regardless of their source. The method may be simply stated. Out of the available fund payments are made to such farmers as are willing to curtail their productive acreage, who, in fact, do so, and who, in advance, have filed their written undertaking to do so with the Secretary of Agriculture. In saying that this method of spending public moneys is an invasion of the reserved powers of the states, the Court does not assert Page 297 U. S. 81 that the expenditure of public funds to promote the general welfare is not a substantive power specifically delegated to the national government, as Hamilton and Story pronounced it to be. It does not deny that the expenditure of funds for the benefit of farmers and in aid of a program of curtailment of production of agricultural products, and thus of a supposedly better ordered national economy, is within the specifically granted power. But it is declared that state power is nevertheless infringed by the expenditure of the proceeds of the tax to compensate farmers for the curtailment of their cotton acreage. Although the farmer is placed under no legal compulsion to reduce acreage, it is said that the mere offer of compensation for so doing is a species of economic coercion which operates with the same legal force and effect as though the curtailment were made mandatory by Act of Congress. In any event, it is insisted that, even though not coercive, the expenditure of public funds to induce the recipients to curtail production is itself an infringement of state power, since the federal government cannot invade the domain of the states by the "purchase" of performance of acts which it has no power to compel. Of the assertion that the payments to farmers are coercive it is enough to say that no such contention is pressed by the taxpayer, and no such consequences were to be anticipated or appear to have resulted from the administration of the Act. The suggestion of coercion finds no support in the record or in any data showing the actual operation of the Act. Threat of loss, not hope of gain, is the essence of economic coercion. Members of a long depressed industry have undoubtedly been tempted to curtail acreage by the hope of resulting better prices and by the proffered opportunity to obtain needed ready money. But there is nothing to indicate that those who accepted benefits were impelled by fear of lower prices if they did not accept, or that, at any stage in the operation Page 297 U. S. 82 of the plan a farmer could say whether, apart from the certainty of cash payments at specified times, the advantage would lie with curtailment of production plus compensation, rather than with the same or increased acreage plus the expected rise in prices which actually occurred. Although the Agricultural Adjustment Act was put into operation in June, 1933, the official reports of the Department of Agriculture show that 6,343,000 acres of productive cotton land, 14% of the total, did not participate in the plan in 1934, and 2,790,000 acres, 6% of the total, did not participate in 1935. Of the total number of farms growing cotton, estimated at 1,500,000, 33% in 1934 and 13% in 1935 did not participate. It is significant that, in the congressional hearings on the bill that became the Bankhead Act, 48 Stat. 598, as amended by Act of June 20, 1934, 48 Stat. 1184, which imposes a tax of 50% on all cotton produced in excess of limits prescribed by the Secretary of Agriculture, there was abundant testimony that the restriction of cotton production attempted by the Agricultural Adjustment Act could not be secured without the coercive provisions of the Bankhead Act. See Hearing before Committee on Agriculture, U.S. Senate, on S.1974, 73rd Cong., 2nd Sess.; Hearing before Committee on Agriculture, U.S. House of Representatives, on H.R. 8402, 73rd Cong., 2nd Sess. The Senate and House Committees so reported, Senate Report No. 283, 73rd Cong., 2nd Sess., p. 3; House Report No. 867, 73rd Cong., 2nd Sess., p. 3. The Report of the Department of Agriculture on the administration of the Agricultural Adjustment Act (February 15, 1934 to December 31, 1934), p. 50, points out that the Bankhead Act was passed in response to a strong sentiment in favor of mandatory production control "that would prevent noncooperating farmers from increasing their own plantings in order to capitalize upon the price advances that had resulted from the reductions made by contract Page 297 U. S. 83 signers. * " The presumption of constitutionality of a statute is not to be overturned by an assertion of its coercive effect which rests on nothing more substantial than groundless speculation. It is upon the contention that state power is infringed by purchased regulation of agricultural production that chief reliance is placed. It is insisted that, while the Constitution gives to Congress, in specific and unambiguous terms, the power to tax and spend, the power is subject to limitations which do not find their origin in any express provision of the Constitution and to which other expressly delegated powers are not subject. The Constitution requires that public funds shall be spent for a defined purpose, the promotion of the general welfare. Their expenditure usually involves payment on terms which will insure use by the selected recipients within the limits of the constitutional purpose. Expenditures would fail of their purpose, and thus lose their constitutional sanction, if the terms of payment were not such that, by their influence on the action of the recipients, the permitted end would be attained. The power of Congress to spend is inseparable from persuasion to action over which Congress has no legislative control. Congress may not command that the science of agriculture be taught in state universities. But if it would aid the teaching of that science by grants to state institutions, it is appropriate, if not necessary, that the grant be on the condition, incorporated in the Morrill Act, 12 Stat. 503, 26 Stat. 417, that it be used for the intended purpose. Similarly, it would seem to be compliance with the Constitution, not violation of it, for the government to take and the university to give a contract that the grant would be so used. It makes no difference Page 297 U. S. 84 that there is a promise to do an act which the condition is calculated to induce. Condition and promise are alike valid, since both are in furtherance of the national purpose for which the money is appropriated. These effects upon individual action, which are but incidents of the authorized expenditure of government money, are pronounced to be themselves a limitation upon the granted power, and so the time-honored principle of constitutional interpretation that the granted power includes all those which are incident to it is reversed. "Let the end be legitimate," said the great Chief Justice, "let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional." McCulloch v. Maryland , 4 Wheat. 316, 17 U. S. 421 . This cardinal guide to constitutional exposition must now be rephrased so far as the spending power of the federal government is concerned. Let the expenditure be to promote the general welfare, still, if it is needful in order to insure its use for the intended purpose to influence any action which Congress cannot command because within the sphere of state government, the expenditure is unconstitutional. And taxes otherwise lawfully levied are likewise unconstitutional if they are appropriated to the expenditure whose incident is condemned. Congress, through the Interstate Commerce Commission, has set aside intrastate railroad rates. It has made and destroyed intrastate industries by raising or lowering tariffs. These results are said to be permissible because they are incidents of the commerce power and the power to levy duties on imports. See Minnesota Rate Cases, 230 U. S. 352 ; Shreveport Case, 234 U. S. 342 ; Board of Trustees of the University of Illinois v. United States, 289 U. S. 48 . The only conclusion to be drawn is that results Page 297 U. S. 85 become lawful when they are incidents of those powers, but unlawful when incident to the similarly granted power to tax and spend. Such a limitation is contradictory and destructive of the power to appropriate for the public welfare, and is incapable of practical application. The spending power of Congress is in addition to the legislative power, and not subordinate to it. This independent grant of the power of the purse, and its very nature, involving in its exercise the duty to insure expenditure within the granted power, presuppose freedom of selection among divers ends and aims, and the capacity to impose such conditions as will render the choice effective. It is a contradiction in terms to say that there is power to spend for the national welfare while rejecting any power to impose conditions reasonably adapted to the attainment of the end which alone would justify the expenditure. The limitation now sanctioned must lead to absurd consequences. The government may give seeds to farmers, but may not condition the gift upon their being planted in places where they are most needed, or even planted at all. The government may give money to the unemployed, but may not ask that those who get it shall give labor in return, or even use it to support their families. It may give money to sufferers from earthquake, fire, tornado, pestilence or flood, but may not impose conditions -- health precautions designed to prevent the spread of disease, or induce the movement of population to safer or more sanitary areas. All that, because it is purchased regulation infringing state powers, must be left for the states, who are unable or unwilling to supply the necessary relief. The government may spend its money for vocational rehabilitation, 48 Stat. 389, but it may not, with the consent of all concerned, supervise the process which it undertakes to aid. It may spend its money for the suppression of the boll weevil, but may Page 297 U. S. 86 not compensate the farmers for suspending the growth of cotton in the infected areas. It may aid state reforestation and forest fire prevention agencies, 43 Stat. 653, but may not be permitted to supervise their conduct. It may support rural schools, 39 Stat. 929, 45 Stat. 1151, 48 Stat. 792, but may not condition its grant by the requirement that certain standards be maintained. It may appropriate moneys to be expended by the Reconstruction Finance Corporation "to aid in financing agriculture, commerce and industry," and to facilitate "the exportation of agricultural and other products." Do all its activities collapse because, in order to effect the permissible purpose, in myriad ways the money is paid out upon terms and conditions which influence action of the recipients within the states, which Congress cannot command? The answer would seem plain. If the expenditure is for a national public purpose, that purpose will not be thwarted because payment is on condition which will advance that purpose. The action which Congress induces by payments of money to promote the general welfare, but which it does not command or coerce, is but an incident to a specifically granted power, but a permissible means to a legitimate end. If appropriation in aid of a program of curtailment of agricultural production is constitutional, and it is not denied that it is, payment to farmers on condition that they reduce their crop acreage is constitutional. It is not any the less so because the farmer, at his own option, promises to fulfill the condition. That the governmental power of the purse is a great one is not now for the first time announced. Every student of the history of government and economics is aware of its magnitude and of its existence in every civilized government. Both were well understood by the framers of the Constitution when they sanctioned the grant of the spending power to the federal government, and both were recognized by Hamilton and Story, whose views of the Page 297 U. S. 87 spending power as standing on a parity with the other powers specifically granted have hitherto been generally accepted. The suggestion that it must now be curtailed by judicial fiat because it may be abused by unwise use hardly rises to the dignity of argument. So may judicial power be abused. "The power to tax is the power to destroy," but we do not, for that reason, doubt its existence, or hold that its efficacy is to be restricted by its incidental or collateral effects upon the states. See Veazie Bank v. Fenno , 8 Wall. 533; McCray v. United States, 195 U. S. 27 ; compare Magnano Co. v. Hamilton, 292 U. S. 40 . The power to tax and spend is not without constitutional restraints. One restriction is that the purpose must be truly national. Another is that it may not be used to coerce action left to state control. Another is the conscience and patriotism of Congress and the Executive. "It must be remembered that legislators are the ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts." Justice Holmes, in Missouri, Kansas & Texas Ry. Co. v. May, 194 U. S. 267 , 194 U. S. 270 . A tortured construction of the Constitution is not to be justified by recourse to extreme examples of reckless congressional spending which might occur if courts could not prevent -- expenditures which, even if they could be thought to effect any national purpose, would be possible only by action of a legislature lost to all sense of public responsibility. Such suppositions are addressed to the mind accustomed to believe that it is the business of courts to sit in judgment on the wisdom of legislative action. Courts are not the only agency of government that must be assumed to have capacity to govern. Congress and the courts both unhappily may falter or be mistaken in the performance of their constitutional duty. But interpretation of our great charter of government which proceeds on any assumption that the responsibility for the preservation of our institutions is the exclusive Page 297 U. S. 88 concern of any one of the three branches of government, or that it alone can save them from destruction is far more likely, in the long run, "to obliterate the constituent members" of "an indestructible union of indestructible states" than the frank recognition that language, even of a constitution, may mean what it says: that the power to tax and spend includes the power to relieve a nationwide economic maladjustment by conditional gifts of money. MR. JUSTICE BRANDEIS and MR. JUSTICE CARDOZO join in this opinion. * Whether coercion was the sole or the dominant purpose of the Bankhead Act, or whether the act was designed also for revenue or other legitimate ends there is no occasion to consider now.

In United States v. Butler (1936), the Supreme Court ruled that the "processing tax" imposed by the Agricultural Adjustment Act was not a true tax, but rather an unconstitutional regulation of agricultural production. The Court emphasized the distinction between a tax for the support of the government and the expropriation of money from one group to benefit another, which is outside the taxing power of Congress. The Court also reaffirmed the principle that the Constitution is the supreme law, and that the judiciary has a duty to declare Acts of Congress unconstitutional if they violate constitutional principles, regardless of legislative intent or policy goals. The decision highlighted the limited nature of federal power in a dual system of government, where powers not granted to the federal government are retained by the states or the people.

Powers of Congress

NLRB v. Jones & Laughlin Steel Corp.

https://supreme.justia.com/cases/federal/us/301/1/

U.S. Supreme Court NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) National Labor Relations Board v. Jones & Laughlin Steel Corp. No. 419 Argued February 10, 11, 1937 Decided April 12, 1937 301 U.S. 1 ast|>* 301 U.S. 1 CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT Syllabus 1. The distinction between what is national and what is local in the activities of commerce is vital to the maintenance of our federal form of government. P. 301 U. S. 29 . 2. The validity of provisions which, considered by themselves, are constitutional, held not affected by general and ambiguous declarations in the same statute. P. 301 U. S. 30 . 3. An interpretation which conforms a statute to the Constitution must be preferred to another which would render it unconstitutional or of doubtful validity. P. 301 U. S. 30 . 4. Acts which directly burden or obstruct interstate or foreign commerce, or its free flow, are within the reach of the congressional Page 301 U. S. 2 power, and this includes acts, having that effect, which grow out of labor disputes. P. 301 U. S. 31 . 5. Employees in industry have a fundamental right to organize and select representatives of their own choosing for collective bar gaining, and discrimination or coercion upon the part of their employer to prevent the free exercise of this right is a proper subject for condemnation by competent legislative authority. P. 301 U. S. 33 . 6. The congressional authority to protect interstate commerce from burdens and obstructions is not limited to transactions which can be deemed to be an essential part of a "flow" of such commerce. Pp. 301 U. S. 34 -36. 7. Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential, or appropriate, to protect that commerce from burdens and obstructions, Congress has the power to exercise that control. P. 301 U. S. 37 . 8. This power must be considered in the light of our dual system of government, and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them would, in view of our complex society, effectually obliterate the distinction between what is national and what is local and create a completely centralized government. The question is necessarily one of degree. P. 301 U. S. 37 . 9. Whatever amounts to more or less constant practice, and threatens to obstruct or unduly to burden the freedom of interstate commerce, is within the regulatory power of Congress under the commerce clause, and it is primarily for Congress to consider and decide the fact of the danger and meet it. P. 301 U. S. 37 . 10. The close and intimate effect which brings the subject within the reach of federal power may be due to activities in relation to productive industry, although the industry when separately viewed is local. P. 301 U. S. 38 . 11. The relation to interstate commerce of the manufacturing enterprise involved in this case was such that a stoppage of its operations by industrial strife would have an immediate, direct and paralyzing effect upon interstate commerce. Therefore, Congress had constitutional authority, for the protection of interstate commerce, to safeguard the right of the employees in the manufacturing plant to self-organization and free choice of their representatives for collective bargaining. P. 301 U. S. 41 . Page 301 U. S. 3 Judicial notice is taken of the facts that the recognition of the right of employees to self-organization and to have representatives of their own choosing for the purpose of collective bargaining is often an essential condition of industrial peace, and that refusal to confer and negotiate has been one of the most prolific causes of strife. 12. The National Labor Relations Act of July 5, 1935, empowers the National Labor Relations Board to prevent any person from engaging in unfair labor practices "affecting commerce"; its definition of "commerce" (aside from commerce within a territory or the District of Columbia) is such as to include only interstate and foreign commerce, and the term "affecting commerce" it defines as meaning "in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce." The "unfair labor practices," as defined by the Act and involved in this case, are restraint or coercion of employees in their rights to self-organization and to bargain collectively through representatives of their own choosing, and discrimination against them in regard to hire or tenure of employment for the purpose of encouraging or discouraging membership in any labor organization. §§ 7 and 8. The Act (§ 9a) declares that representatives, for the purpose of collective bargaining, of the majority of the employees in an appropriate unit shall be the exclusive representatives of all the employees in that unit; but that any individual employee or a group of employees shall have the right at any time to present grievances to their employer. Held: (1) That in safeguarding rights of employees and empowering the Board, the statute, insofar as involved in the present case, confines itself to such control of the industrial relationship as may be constitutionally exercised by Congress to prevent burden or obstruction to interstate or foreign commerce arising from industrial disputes. P. 301 U. S. 43 . (2) The Act imposes upon the employer the duty of conferring and negotiating with the authorized representatives of the employees for the purpose of settling a labor dispute, but it does not preclude such individual contracts as the employer may elect to make directly with individual employees. P. 301 U. S. 44 . (3) The Act does not compel agreements between employers and employees. Its theory is that free opportunity for negotiation Page 301 U. S. 4 with accredited representatives of employees is likely to promote industrial peace, and may bring about the adjustments and agreements which the Act, in itself, does not attempt to compel. P. 301 U. S. 45 . (4) The Act does not interfere with the normal right of the employer to hire, or with the right of discharge when exercised for other reasons than intimidation and coercion, and what is the true reason in this regard is left the subject of investigation in each case, with full opportunity to show the facts. P. 301 U. S. 45 . 13. A corporation which manufactured iron and steel products in its factories in Pennsylvania from raw materials, most of which it brought in from other States, and which shipped 75% of the manufactured products out of Pennsylvania and disposed of them throughout this country and in Canada, was required by orders of the National Labor Relations Board to tender reinstatement to men who had been employed in one of the factories but were discharged because of their union activities and for the purpose of discouraging union membership. The orders further required that the company make good the pay the men had lost through their discharge, and that it desist from discriminating against members of the union, with regard to hire and tenure of employment, and from interfering by coercion with the self-organization of its employees in the plant. Held that the orders were authorized by the National Labor Relations Act, and that the Act is constitutional as thus applied to the company. Pp. 301 U. S. 30 , 301 U. S. 32 , 301 U. S. 34 , 301 U. S. 41 . 14. The right of employers to conduct their own business is not arbitrarily restrained by regulations that merely protect the correlative rights of their employees to organize for the purpose of securing the redress of grievances and of promoting agreements with employers relating to rates of pay and conditions of work. P. 301 U. S. 43 . 15. The fact that the National Labor Relations Act subjects the employer to supervision and restraint and leaves untouched the abuses for which employees may be responsible, and fails to provide a more comprehensive plan, with better assurance of fairness to both sides and with increased chances of success in bringing about equitable solutions of industrial disputes affecting interstate commerce, does not affect its validity. The question is as to the power of Congress, not as to its policy, and legislative authority, exerted within its proper field, need not embrace all the evils within its reach. P. 301 U. S. 46 . Page 301 U. S. 5 16. The National Labor Relations Act establishes standards to which the Board must conform. There must be complaint, notice and hearing. The Board must receive evidence and make findings. These findings as to the facts are to be conclusive, but only if supported by evidence. The order of the Board is subject to review by the designated court, and only when sustained by the court may the order be enforced. Upon that review, all questions of the jurisdiction of the Board and the regularity of its proceedings, all questions of constitutional right or statutory authority, are open to examination by the court. These procedural provisions afford adequate opportunity to secure judicial protection against arbitrary action, in accordance with the well settled rules applicable to administrative agencies set up by Congress to aid in the enforcement of valid legislation. P. 301 U. S. 47 . 17. The provision of the National Labor Relations Act, § 10(c), authorizing the Board to require the reinstatement of employees found to have been discharged because of their union activity or for the purpose of discouraging membership in the union, is valid. P. 301 U. S. 47 . 18. The provision of the Act, § 10(c), that the Board, in requiring reinstatement, may direct the payment of wages for the time lost by the discharge, less amounts earned by the employee during that period, does not contravene the provisions of the Seventh Amendment with respect to jury trial in suits at common law. P. 301 U. S. 48 . 83 F.2d 998, reversed. CERTIORARI, 299 U.S. 534, to review a decree of the Circuit Court of Appeals declining to enforce an order of the National Labor Relations Board. Page 301 U. S. 22 MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court. In a proceeding under the National Labor Relations Act of 1935, [ Footnote 1 ] the National Labor Relations Board found that the respondent, Jones & Laughlin Steel Corporation, had violated the Act by engaging in unfair labor practices affecting commerce. The proceeding was instituted by the Beaver Valley Lodge No. 200, affiliated with the Amalgamated Association of Iron, Steel and Tin Workers of America, a labor organization. The unfair labor practices charged were that the corporation was discriminating against members of the union with regard to hire and tenure of employment, and was coercing and intimidating its employees in order to interfere with their self-organization. The discriminatory and coercive action alleged was the discharge of certain employees. The National Labor Relations Board, sustaining the charge, ordered the corporation to cease and desist from such discrimination and coercion, to offer reinstatement to ten of the employees named, to make good their losses in pay, and to post for thirty days notices that the corporation would not discharge or discriminate against members, or those desiring to become members, of the labor union. As the corporation failed to comply, the Board petitioned the Circuit Court of Appeals to enforce the order. The court denied the petition, holding that the order lay beyond the range of federal power. 83 F.2d 998. We granted certiorari. The scheme of the National Labor Relations Act -- which is too long to be quoted in full -- may be briefly stated. The first section sets forth findings with respect to the injury to commerce resulting from the denial by employers of the right of employees to organize and from the refusal of employers to accept the procedure of collective Page 301 U. S. 23 bargaining. There follows a declaration that it is the policy of the United States to eliminate these causes of obstruction to the free flow of commerce. [ Footnote 2 ] The Act Page 301 U. S. 24 then defines the terms it uses, including the terms "commerce" and "affecting commerce." § 2. It creates the National Labor Relations Board, and prescribes its organization. §§ 6. It sets forth the right of employees to self-organization and to bargain collectively through representatives of their own choosing. § 7. It defines "unfair labor practices." § 8. It lays down rules as to the representation of employees for the purpose of collective bargaining. § 9. The Board is empowered to prevent the described unfair labor practices affecting commerce and the Act prescribes the procedure to that end. The Board is authorized to petition designated courts to secure the enforcement of its orders. The findings of the Board as to the facts, if supported by evidence, are to be conclusive. If either party, on application to the court, shows that additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the hearings before the Board, the court may order the additional evidence to be taken. Any person aggrieved by a final order of the Board may obtain a review in the designated courts with the same procedure as in the case of an application by the Board for the enforcement of its order. § 10. The Board has broad powers of investigation. § 11. Interference with members of the Board or its agents in the performance of their duties is punishable by fine and imprisonment. § 12. Nothing in the Act is to be construed, to interfere with the right to strike. § 13. There is a separability clause to the effect that, if any provision of the Act or its application to any person or circumstances shall be held invalid, the remainder of the Act or its application to other persons or circumstances shall not be affected. § 15. The particular provisions which are involved in the instant case will be considered more in detail in the course of the discussion. The procedure in the instant case followed the statute. The labor union filed with the Board its verified charge. Page 301 U. S. 25 The Board thereupon issued its complaint against the respondent alleging that its action in discharging the employees in question constituted unfair labor practices affecting commerce within the meaning of § 8, subdivisions (1) and (3), and § 2, subdivisions (6) and (7) of the Act. Respondent, appearing specially for the purpose of objecting to the jurisdiction of the Board, filed its answer. Respondent admitted the discharges, but alleged that they were made because of inefficiency or violation of rule or for other good reasons, and were not ascribable to union membership or activities. As an affirmative defense, respondent challenged the constitutional validity of the statute and its applicability in the instant case. Notice of hearing was given, and respondent appeared by counsel. The Board first took up the issue of jurisdiction, and evidence was presented by both the Board and the respondent. Respondent then moved to dismiss the complaint for lack of jurisdiction, and, on denial of that motion, respondent, in accordance with its special appearance, withdrew from further participation in the hearing. The Board received evidence upon the merits, and, at its close, made its findings and order. Contesting the ruling of the Board, the respondent argues (1) that the Act is in reality a regulation of labor relations, and not of interstate commerce; (2) that the Act can have no application to the respondent's relations with its production employees, because they are not subject to regulation by the federal government, and (3) that the provisions of the Act violate § 2 of Article III and the Fifth and Seventh Amendments of the Constitution of the United States. The facts as to the nature and scope of the business of the Jones & Laughlin Steel Corporation have been found by the Labor Board, and, so far as they are essential to the determination of this controversy, they are not in dispute. The Labor Board has found: the corporation is Page 301 U. S. 26 organized under the laws of Pennsylvania and has its principal office at Pittsburgh. It is engaged in the business of manufacturing iron and steel in plants situated in Pittsburgh and nearby Aliquippa, Pennsylvania. It manufactures and distributes a widely diversified line of steel and pig iron, being the fourth largest producer of steel in the United States. With its subsidiaries -- nineteen in number -- it is a completely integrated enterprise, owning and operating ore, coal and limestone properties, lake and river transportation facilities, and terminal railroads located at its manufacturing plants. It owns or controls mines in Michigan and Minnesota. It operates four ore steamships on the Great Lakes, used in the transportation of ore to its factories. It owns coal mines in Pennsylvania. It operates towboats and steam barges used in carrying coal to its factories. It owns limestone properties in various places in Pennsylvania and West Virginia. It owns the Monongahela connecting railroad which connects the plants of the Pittsburgh works and forms an interconnection with the Pennsylvania, New York Central, and Baltimore and Ohio Railroad systems. It owns the Aliquippa and Southern Railroad Company, which connects the Aliquippa works with the Pittsburgh and Lake Erie, part of the New York Central system. Much of its product is shipped to its warehouses in Chicago, Detroit, Cincinnati and Memphis -- to the last two places by means of its own barges and transportation equipment. In Long Island City, New York, and in New Orleans, it operates structural steel fabricating shops in connection with the warehousing of semi-finished materials sent from its works. Through one of its wholly owned subsidiaries, it owns, leases and operates stores, warehouses and yards for the distribution of equipment and supplies for drilling and operating oil and gas wells and for pipelines, refineries, and pumping stations. It has sales offices in Page 301 U. S. 27 twenty cities in the United States and a wholly owned subsidiary which is devoted exclusively to distributing its product in Canada. Approximately 75 percent. of its product is shipped out of Pennsylvania. Summarizing these operations, the Labor Board concluded that the works in Pittsburgh and Aliquippa "might be likened to the heart of a self-contained, highly integrated body. They draw in the raw materials from Michigan, Minnesota, West Virginia, Pennsylvania, in part through arteries and by means controlled by the respondent; they transform the materials and then pump them out to all parts of the nation through the vast mechanism which the respondent has elaborated." To carry on the activities of the entire steel industry, 33,000 men mine ore, 44,000 men mine coal, 4,000 men quarry limestone, 16,000 men manufacture coke, 343,000 men manufacture steel, and 83,000 men transport its product. Respondent has about 10,000 employees in its Aliquippa plant, which is located in a community of about 30,000 persons. Respondent points to evidence that the Aliquippa plant, in which the discharged men were employed, contains complete facilities for the production of finished and semi-finished iron and steel products from raw materials; that its works consist primarily of a byproduct coke plant for the production of coke; blast furnaces for the production of pig iron; open hearth furnaces and Bessemer converters for the production of steel; blooming mills for the reduction of steel ingots into smaller shapes, and a number of finishing mills such as structural mills, rod mills, wire mills, and the like. In addition, there are other buildings, structures and equipment, storage yards, docks and an intra-plant storage system. Respondent's operations at these works are carried on in two distinct stages, the first being the conversion of raw materials into pig Page 301 U. S. 28 iron and the second being the manufacture of semi-finished and finished iron and steel products, and, in both cases, the operations result in substantially changing the character, utility and value of the materials wrought upon, which is apparent from the nature and extent of the processes to which they are subjected and which respondent fully describes. Respondent also directs attention to the fact that the iron ore which is procured from mines in Minnesota and Michigan and transported to respondent's plant is stored in stockpiles for future use, the amount of ore in storage varying with the season, but usually being enough to maintain operations from nine to ten months; that the coal which is procured from the mines of a subsidiary located in Pennsylvania and taken to the plant at Aliquippa is there, like ore, stored for future use, approximately two to three months' supply of coal being always on hand, and that the limestone which is obtained in Pennsylvania and West Virginia is also stored in amounts usually adequate to run the blast furnaces for a few weeks. Various details of operation, transportation, and distribution are also mentioned which, for the present purpose, it is not necessary to detail. Practically all the factual evidence in the case, except that which dealt with the nature of respondent's business, concerned its relations with the employees in the Aliquippa plant whose discharge was the subject of the complaint. These employees were active leaders in the labor union. Several were officers, and others were leaders of particular groups. Two of the employees were motor inspectors; one was a tractor driver; three were crane operators; one was a washer in the coke plant, and three were laborers. Three other employees were mentioned in the complaint, but it was withdrawn as to one of them and no evidence was heard on the action taken with respect to the other two. Page 301 U. S. 29 While respondent criticizes the evidence and the attitude of the Board, which is described as being hostile toward employers and particularly toward those who insisted upon their constitutional rights, respondent did not take advantage of its opportunity to present evidence to refute that which was offered to show discrimination and coercion. In this situation, the record presents no ground for setting aside the order of the Board so far as the facts pertaining to the circumstances and purpose of the discharge of the employees are concerned. Upon that point, it is sufficient to say that the evidence supports the findings of the Board that respondent discharged these men "because of their union activity and for the purpose of discouraging membership in the union." We turn to the questions of law which respondent urges in contesting the validity and application of the Act. First. The scope of the Act. -- The Act is challenged in its entirety as an attempt to regulate all industry, thus invading the reserved powers of the States over their local concerns. It is asserted that the references in the Act to interstate and foreign commerce are colorable, at best; that the Act is not a true regulation of such commerce or of matters which directly affect it, but, on the contrary, has the fundamental object of placing under the compulsory supervision of the federal government all industrial labor relations within the nation. The argument seeks support in the broad words of the preamble (section one [ Footnote 3 ]) and in the sweep of the provisions of the Act, and it is further insisted that its legislative history shows an essential universal purpose in the light of which its scope cannot be limited by either construction or by the application of the separability clause. If this conception of terms, intent, and consequent inseparability were sound, the Act would necessarily fall Page 301 U. S. 30 by reason of the limitation upon the federal power which inheres in the constitutional grant, as well as because of the explicit reservation of the Tenth Amendment. Schechter Corp. v. United States, 295 U. S. 495 , 295 U. S. 549 , 295 U. S. 550 , 295 U. S. 554 . The authority of the federal government may not be pushed to such an extreme as to destroy the distinction, which the commerce clause itself establishes, between commerce "among the several States" and the internal concerns of a State. That distinction between what is national and what is local in the activities of commerce is vital to the maintenance of our federal system. Id. But we are not at liberty to deny effect to specific provisions, which Congress has constitutional power to enact, by superimposing upon them inferences from general legislative declarations of an ambiguous character, even if found in the same statute. The cardinal principle of statutory construction is to save, and not to destroy. We have repeatedly held that, as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the act. Even to avoid a serious doubt, the rule is the same. Federal Trade Comm'n v. American Tobacco Co., 264 U. S. 298 307; Panama R. Co. v. Johnson, 264 U. S. 375 , 264 U. S. 390 ; Missouri Pacific R. Co. v. Boone, 270 U. S. 466 , 270 U. S. 472 ; Blodgett v. Holden, 275 U. S. 142 , 275 U. S. 148 ; Richmond Screw Anchor Co. v. United States, 275 U. S. 331 , 275 U. S. 346 . We think it clear that the National Labor Relations Act may be construed so as to operate within the sphere of constitutional authority. The jurisdiction conferred upon the Board, and invoked in this instance, is found in § 10(a), which provides: "SEC. 10(a). The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 8) affecting commerce. " Page 301 U. S. 31 The critical words of this provision, prescribing the limits of the Board's authority in dealing with he labor practices, are "affecting commerce." The Act specifically defines the "commerce" to which it refers (§ 2(6)): "The term 'commerce' means trade, traffic, commerce, transportation, or communication among the several States, or between the District of Columbia or any Territory of the United States and any State or other Territory, or between any foreign country and any State, Territory, or the District of Columbia, or within the District of Columbia or any Territory, or between points in the same State but through any other State or any Territory or the District of Columbia or any foreign country." There can be no question that the commerce thus contemplated by the Act (aside from that within a Territory or the District of Columbia) is interstate and foreign commerce in the constitutional sense. The Act also defines the term "affecting commerce" (§ 2(7)): "The term 'affecting commerce' means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce." This definition is one of exclusion as well as inclusion. The grant of authority to the Board does not purport to extend to the relationship between all industrial employees and employers. Its terms do not impose collective bargaining upon all industry regardless of effects upon interstate or foreign commerce. It purports to reach only what may be deemed to burden or obstruct that commerce, and, thus qualified, it must be construed as contemplating the exercise of control within constitutional bounds. It is a familiar principle that acts which directly burden or obstruct interstate or foreign commerce, or its free flow, are within the reach of the congressional power. Acts having that effect are not Page 301 U. S. 32 rendered immune because they grow out of labor disputes. See Texas & N.O. R . Co. v. Railway Clerks, 281 U. S. 548 , 281 U. S. 570 ; Schechter Corp. v. United States, supra, pp. 295 U. S. 544 , 295 U. S. 545 ; Virginian Railway v. System Federation, No. 40, 300 U. S. 515 . It is the effect upon commerce, not the source of the injury, which is the criterion. Second Employers' Liability Cases, 223 U. S. 1 , 223 U. S. 51 . Whether or not particular action does affect commerce in such a close and intimate fashion as to be subject to federal control, and hence to lie within the authority conferred upon the Board, is left by the statute to be determined as individual cases arise. We are thus to inquire whether, in the instant case, the constitutional boundary has been passed. Second. The fair labor practices in question. -- The unfair labor practices found by the Board are those defined in § 8, subdivisions (1) and (3). These provide: "Sec. 8. It shall be an unfair labor practice for an employer --" "(1) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7." "(3) By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization. . . . [ Footnote 4 ] " Page 301 U. S. 33 Section 8, subdivision (1), refers to § 7, which is as follows: "Sec. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection." Thus, in its present application, the statute goes no further than to safeguard the right of employees to self-organization and to select representatives of their own choosing for collective bargaining or other mutual protection without restraint or coercion by their employer. That is a fundamental right. Employees have as clear a right to organize and select their representatives for lawful purposes as the respondent has to organize its business and select its own officers and agents. Discrimination and coercion to prevent the free exercise of the right of employees to self-organization and representation is a proper subject for condemnation by competent legislative authority. Long ago we stated the reason for labor organizations. We said that they were organized out of the necessities of the situation; that a single employee was helpless in dealing with an employer; that he was dependent ordinarily on his daily wage for the maintenance of himself and family; that, if the employer refused to pay him the wages that he thought fair, he was nevertheless unable to leave the employ and resist arbitrary and unfair treatment; that union was essential to give laborers opportunity to deal on an equality with their employer. American Steel Foundries v. Tri-City Central Trades Council, 257 U. S. 184 , 257 U. S. 209 . We reiterated these views when we had under consideration the Railway Labor Act of 1926. Fully recognizing the legality of collective action on the part of employees in Page 301 U. S. 34 order to safeguard their proper interests, we said that Congress was not required to ignore this right, but could safeguard it. Congress could seek to make appropriate collective action of employees an instrument of peace, rather than of strife. We said that such collective action would be a mockery if representation were made futile by interference with freedom of choice. Hence, the prohibition by Congress of interference with the selection of representatives for the purpose of negotiation and conference between employers and employees, "instead of being an invasion of the constitutional right of either, was based on the recognition of the rights of both." Texas & N.O. R. Co. v. Railway Clerks, supra. We have reasserted the same principle in sustaining the application of the Railway Labor Act as amended in 1934. Virginian Railway Co. v. System Federation, No. 40, supra. Third. The application of the Act to employees engaged in production. -- The principle involved. -- Respondent says that whatever may be said of employees engaged in interstate commerce, the industrial relations and activities in the manufacturing department of respondent's enterprise are not subject to federal regulation. The argument rests upon the proposition that manufacturing, in itself, is not commerce. Kidd v. Pearson, 128 U. S. 1 , 128 U. S. 20 , 21; United Mine Workers v. Coronado Coal Co., 259 U. S. 344 , 259 U. S. 407 , 259 U. S. 408 ; Oliver Iron Co. v. Lord, 262 U. S. 172 , 262 U. S. 178 ; United Leather Workers v. Herkert & Meisel Trunk Co., 265 U. S. 457 , 265 U. S. 465 ; Industrial Association v. United States, 268 U. S. 64 , 268 U. S. 82 ; Coronado Coal Co. v. United Mine Workers, 268 U. S. 295 , 268 U. S. 310 ; Schechter Corp. v. United States, supra, p. 295 U. S. 547 ; Carter v. Carter Coal Co., 298 U. S. 238 , 298 U. S. 304 , 298 U. S. 317 , 298 U. S. 327 . The Government distinguishes these cases. The various parts of respondent's enterprise are described as interdependent and as thus involving "a great movement of Page 301 U. S. 35 iron ore, coal and limestone along well defined paths to the steel mills, thence through them, and thence in the form of steel products into the consuming centers of the country -- a definite and well understood course of business." It is urged that these activities constitute a "stream" or "flow" of commerce, of which the Aliquippa manufacturing plant is the focal point, and that industrial strife at that point would cripple the entire movement. Reference is made to our decision sustaining the Packers and Stockyards Act. [ Footnote 5 ] Stafford v. Wallace, 258 U. S. 495 . The Court found that the stockyards were but a "throat" through which the current of Commerce flowed and the transactions which there occurred could not be separated from that movement. Hence, the sales at the stockyards were not regarded as merely local transactions, for, while they created "a local change of title," they did not "stop the flow," but merely changed the private interests in the subject of the current. Distinguishing the cases which upheld the power of the State to impose a nondiscriminatory tax upon property which the owner intended to transport to another State, but which was not in actual transit and was held within the State subject to the disposition of the owner, the Court remarked: "The question, it should be observed, is not with respect to the extent of the power of Congress to regulate interstate commerce, but whether a particular exercise of state power in view of its nature and operation must be deemed to be in conflict with this paramount authority." Id., p. 258 U. S. 526 . See Minnesota v. Blasius, 290 U. S. 1 , 290 U. S. 8 . Applying the doctrine of Stafford v. Wallace, supra, the Court sustained the Grain Futures Act of 1922 [ Footnote 6 ] with respect to transactions on the Chicago Board of Trade, although these transactions were "not in and of themselves interstate commerce." Congress had found Page 301 U. S. 36 that they had become "a constantly recurring burden and obstruction to that commerce." Chicago Board of Trade v. Olsen, 262 U. S. 1 , 262 U. S. 32 ; compare Hill v. Wallace, 259 U. S. 44 , 259 U. S. 69 . See also Tagg Bros. & Moorhead v. United States, 280 U. S. 420 . Respondent contends that the instant case presents material distinctions. Respondent says that the Aliquippa plant is extensive in size and represents a large investment in buildings, machinery and equipment. The raw materials which are brought to the plant are delayed for long periods and, after being subjected to manufacturing processes, "are changed substantially as to character, utility and value." The finished products which emerge "are to a large extent manufactured without reference to preexisting orders and contracts, and are entirely different from the raw materials which enter at the other end." Hence, respondent argues that, "If importation and exportation in interstate commerce do not singly transfer purely local activities into the field of congressional regulation, it should follow that their combination would not alter the local situation." Arkadelphia Milling Co. v. St. Louis Southwestern Ry. Co., 249 U. S. 134 , 249 U. S. 151 ; Oliver Iron Co. v. Lord, supra. We do not find it necessary to determine whether these features of defendant's business dispose of the asserted analogy to the "stream of commerce" cases. The instances in which that metaphor has been used are but particular, and not exclusive, illustrations of the protective power which the Government invokes in support of the present Act. The congressional authority to protect interstate commerce from burdens and obstructions is not limited to transactions which can be deemed to be an essential part of a "flow" of interstate or foreign commerce. Burdens and obstructions may be due to injurious action springing from other sources. The fundamental principle is that the power to regulate commerce is Page 301 U. S. 37 the power to enact "all appropriate legislation" for "its protection and advancement" ( The Daniel Ball , 10 Wall. 557, 77 U. S. 564 ); to adopt measures "to promote its growth and insure its safety" ( Mobile County v. Kimball, 102 U. S. 691 , 102 U. S. 696 , 102 U. S. 697 ); "to foster, protect, control and restrain." Second Employers' Liability Cases, supra, p. 223 U. S. 47 . See Texas & N.O. R. Co. v. Railway Clerks, supra. That power is plenary, and may be exerted to protect interstate commerce "no matter what the source of the dangers which threaten it." Second Employers' Liability Cases, p. 223 U. S. 51 ; Schechter Corp. v. United States, supra. Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control. Schechter Corp. v. United States, supra. Undoubtedly the scope of this power must be considered in the light of our dual system of government, and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government. Id. The question is necessarily one of degree. As the Court said in Chicago Board of Trade v. Olsen, supra, p. 262 U. S. 37 , repeating what had been said in Stafford v. Wallace, supra: "Whatever amounts to more or less constant practice, and threatens to obstruct or unduly to burden the freedom of interstate commerce is within the regulatory power of Congress under the commerce clause and it is primarily for Congress to consider and decide the fact of the danger and meet it." That intrastate activities, by reason of close and intimate relation to interstate commerce, may fall within federal control is demonstrated in the case of carriers who Page 301 U. S. 38 are engaged in both interstate and intrastate transportation. There federal control has been found essential to secure the freedom of interstate traffic from interference or unjust discrimination and to promote the efficiency of the interstate service. Shreveport Case, 234 U. S. 342 , 234 U. S. 351 , 234 U. S. 352 ; Wisconsin Railroad Comm'n v. Chicago, B. & Q. R. Co., 257 U. S. 563 , 257 U. S. 588 . It is manifest that intrastate rates deal primarily with a local activity. But, in ratemaking, they bear such a close relation to interstate rates that effective control of the one must embrace some control over the other. Id. Under the Transportation Act, 1920, [ Footnote 7 ] Congress went so far as to authorize the Interstate Commerce Commission to establish a statewide level of intrastate rates in order to prevent an unjust discrimination against interstate commerce. Wisconsin Railroad Comm'n v. Chicago, B. & Q. R. Co., supra; Florida v. United States, 282 U. S. 194 , 282 U. S. 210 , 282 U. S. 211 . Other illustrations are found in the broad requirements of the Safety Appliance Act and the Hours of Service Act. Southern Railway Co. v. United States, 222 U. S. 20 ; Baltimore & Ohio R. Co. v. Interstate Commerce Comm'n, 221 U. S. 612 . It is said that this exercise of federal power has relation to the maintenance of adequate instrumentalities of interstate commerce. But the agency is not superior to the commerce which uses it. The protective power extends to the former because it exists as to the latter. The close and intimate effect which brings the subject within the reach of federal power may be due to activities in relation to productive industry although the industry, when separately viewed, is local. This has been abundantly illustrated in the application of the federal Anti-Trust Act. In the Standard Oil and American Tobacco cases, 221 U. S. 221 U.S. 1, 221 U. S. 106 , that statute was applied to combinations of employers engaged in productive industry. Page 301 U. S. 39 Counsel for the offending corporations strongly urged that the Sherman Act had no application because the acts complained of were not acts of interstate or foreign commerce, nor direct and immediate in their effect on interstate or foreign commerce, but primarily affected manufacturing and not commerce. 221 U.S. pp. 5, 125 [argument of counsel omitted in electronic version]. Counsel relied upon the decision in United States v. Knight Co., 156 U. S. 1 . The Court stated their contention as follows: "That the act, even if the averments of the bill be true, cannot be constitutionally applied, because to do so would extend the power of Congress to subjects dehors the reach of its authority to regulate commerce, by enabling that body to deal with mere questions of production of commodities within the States." And the Court summarily dismissed the contention in these words: "But all the structure upon which this argument proceeds is based upon the decision in United States v. E. C. Knight Co., 156 U. S. 1 . The view, however, which the argument takes of that case and the arguments based upon that view have been so repeatedly pressed upon this court in connection with the interpretation and enforcement of the Anti-trust Act, and have been so necessarily and expressly decided to be unsound as to cause the contentions to be plainly foreclosed and to require no express notice" (citing cases). 221 U.S. pp. 221 U. S. 68 , 221 U. S. 69 . Upon the same principle, the Anti-Trust Act has been applied to the conduct of employees engaged in production. Loewe v.Lawlor, 208 U. S. 274 ; Coronado Coal Co. v. United Mine Workers, supra; Bedford Cut Stone Co. v. Stone Cutters' Assn., 274 U. S. 37 . See also Local 16 v. United States, 291 U. S. 293 , 291 U. S. 397 ; Schechter Corp. v. United States, supra. The decisions dealing with the question of that application illustrate both the principle and its limitation. Thus, in the first Coronado case, the Court held that mining was not interstate commerce, that the power of Congress did not extend to its regulation as such, Page 301 U. S. 40 and that it had not been shown that the activities there involved -- a local strike -- brought them within the provisions of the Anti-Trust Act, notwithstanding the broad terms of that statute. A similar conclusion was reached in United Leather Workers v. Herkert & Meisel Trunk Co., supra, Industrial Association v. United States, supra, and Levering & Garrigues Co. v. Morrin, 289 U. S. 103 , 289 U. S. 107 . But, in the first Coronado case, the Court also said that "if Congress deems certain recurring practices, though not really part of interstate commerce, likely to obstruct, restrain or burden it, it has the power to subject them to national supervision and restraint." 259 U.S. p. 259 U. S. 408 . And, in the second Coronado case, the Court ruled that, while the mere reduction in the supply of an article to be shipped in interstate commerce by the illegal or tortious prevention of its manufacture or production is ordinarily an indirect and remote obstruction to that commerce, nevertheless when the "intent of those unlawfully preventing the manufacture or production is shown to be to restrain or control the supply entering and moving in interstate commerce, or the price of it in interstate markets, their action is a direct violation of the Anti-Trust Act." 268 U.S. p. 268 U. S. 310 . And the existence of that intent may be a necessary inference from proof of the direct and substantial effect produced by the employees' conduct. Industrial Association v. United States, 268 U.S. p. 268 U. S. 81 . What was absent from the evidence in the first Coronado case appeared in the second, and the Act was accordingly applied to the mining employees. It is thus apparent that the fact that the employees here concerned were engaged in production is not determinative. The question remains as to the effect upon interstate commerce of the labor practice involved. In the Schechter case, supra, we found that the effect there was so remote as to be beyond the federal power. To find "immediacy or directness" there was to find it "almost Page 301 U. S. 41 everywhere," a result inconsistent with the maintenance of our federal system. In the Carter case, supra, the Court was of the opinion that the provisions of the statute relating to production were invalid upon several grounds -- that there was improper delegation of legislative power, and that the requirements not only went beyond any sustainable measure of protection of interstate commerce, but were also inconsistent with due process. These cases are not controlling here. Fourth. Effects of the unfair labor practice in respondent's enterprise. -- Giving full weight to respondent's contention with respect to a break in the complete continuity of the "stream of commerce" by reason of respondent's manufacturing operations, the fact remains that the stoppage of those operations by industrial strife would have a most serious effect upon interstate commerce. In view of respondent's far-flung activities, it is idle to say that the effect would be indirect or remote. It is obvious that it would be immediate, and might be catastrophic. We are asked to shut our eyes to the plainest facts of our national life, and to deal with the question of direct and indirect effects in an intellectual vacuum. Because there may be but indirect and remote effects upon interstate commerce in connection with a host of local enterprises throughout the country, it does not follow that other industrial activities do not have such a close and intimate relation to interstate commerce as to make the presence of industrial strife a matter of the most urgent national concern. When industries organize themselves on a national scale, making their relation to interstate commerce the dominant factor in their activities, how can it be maintained that their industrial labor relations constitute a forbidden field into which Congress may not enter when it is necessary to protect interstate commerce from the paralyzing consequences of industrial war? We have often said that interstate commerce itself is a practical Page 301 U. S. 42 conception. It is equally true that interferences with that commerce must be appraised by a judgment that does not ignore actual experience. Experience has abundantly demonstrated that the recognition of the right of employees to self-organization and to have representatives of their own choosing for the purpose of collective bargaining is often an essential condition of industrial peace. Refusal to confer and negotiate has been one of the most prolific causes of strife. This is such an outstanding fact in the history of labor disturbances that it is a proper subject of judicial notice, and requires no citation of instances. The opinion in the case of Virginian Railway Co. v. System Federation, No. 40, supra, points out that, in the case of carriers, experience has shown that, before the amendment of 1934 of the Railway Labor Act, "when there was no dispute as to the organizations authorized to represent the employees and when there was a willingness of the employer to meet such representative for a discussion of their grievances, amicable adjustment of differences had generally followed, and strikes had been avoided." That, on the other hand, "a prolific source of dispute had been the maintenance by the railroad of company unions and the denial by railway management of the authority of representatives chosen by their employees." The opinion in that case also points to the large measure of success of the labor policy embodied in the Railway Labor Act. But, with respect to the appropriateness of the recognition of self-organization and representation in the promotion of peace, the question is not essentially different in the case of employees in industries of such a character that interstate commerce is put in jeopardy from the case of employees of transportation companies. And of what avail is it to protect the facility of transportation if interstate commerce is throttled with respect to the commodities to be transported! Page 301 U. S. 43 These questions have frequently engaged the attention of Congress, and have been the subject of many inquiries. [ Footnote 8 ] The steel industry is one of the great basic industries of the United States, with ramifying activities affecting interstate commerce at every point. The Government aptly refers to the steel strike of 1919-1920, with its far-reaching consequences. [ Footnote 9 ] The fact that there appears to have been no major disturbance in that industry in the more recent period did not dispose of the possibilities of future and like dangers to interstate commerce which Congress was entitled to foresee and to exercise its protective power to forestall. It is not necessary again to detail the facts as to respondent's enterprise. Instead of being beyond the pale, we think that it presents in a most striking way the close and intimate relation which a manufacturing industry may have to interstate commerce, and we have no doubt that Congress had constitutional authority to safeguard the right of respondent's employees to self-organization and freedom in the choice of representatives for collective bargaining. Fifth. The means which the Act employs. -- Questions under the due process clause and other constitutional restrictions. -- Respondent asserts its right to conduct its business in an orderly manner without being subjected to arbitrary restraints. What we have said points to the fallacy in the argument. Employees have their correlative Page 301 U. S. 44 right to organize for the purpose of securing the redress of grievances and to promote agreements with employers relating to rates of pay and conditions of work. Texas & N.O. R. Co. v. Railway Clerks, supra; Virginian Railway Co. v. System Federation, No. 40. Restraint for the purpose of preventing an unjust interference with that right cannot be considered arbitrary or capricious. The provision of § 9(a) [ Footnote 10 ] that representatives, for the purpose of collective bargaining, of the majority of the employees in an appropriate unit shall be the exclusive representatives of all the employees in that unit imposes upon the respondent only the duty of conferring and negotiating with the authorized representatives of its employees for the purpose of settling a labor dispute. This provision has its analogue in § 2, Ninth, of the Railway Labor Act, which was under consideration in Virginian Railway Co. v. System Federation, No. 40, supra. The decree which we affirmed in that case required the Railway Company to treat with the representative chosen by the employees and also to refrain from entering into collective labor agreements with anyone other than their true representative as ascertained in accordance with the provisions of the Act. We said that the obligation to treat with the true representative was exclusive, and hence imposed the negative duty to treat with no other. We also pointed out that, as conceded by the Government, [ Footnote 11 ] the injunction Page 301 U. S. 45 against the Company's entering into any contract concerning rules, rates of pay and working conditions except with a chosen representative was "designed only to prevent collective bargaining with anyone purporting to represent employees" other than the representative they had selected. It was taken "to prohibit the negotiation of labor contracts generally applicable to employees" in the described unit with any other representative than the one so chosen, "but not as precluding such individual contracts" as the Company might "elect to make directly with individual employees." We think this construction also applies to § 9(a) of the National Labor Relations Act. The Act does not compel agreements between employers and employees. It does not compel any agreement whatever. It does not prevent the employer "from refusing to make a collective contract and hiring individuals on whatever terms" the employer "may by unilateral action determine." [ Footnote 12 ] The Act expressly provides in § 9(a) that any individual employee or a group of employees shall have the right at any time to present grievances to their employer. The theory of the Act is that free opportunity for negotiation with accredited representatives of employees is likely to promote industrial peace, and may bring about the adjustments and agreements which the Act, in itself, does not attempt to compel. As we said in Texas & N.O. R. Co. v. Railway Clerks, supra, and repeated in Virginian Railway Co. v. System Federation, No. 40, supra, the cases of Adair v. United States, 208 U. S. 161 , and Coppage v. Kansas, 236 U. S. 1 , are inapplicable to legislation of this character. The Act does not interfere with the normal exercise of the right of the employer to select its employees or to discharge them. The employer may not, under cover of that right, intimidate or coerce its employees with respect to their Page 301 U. S. 46 self-organization and representation, and, on the other hand, the Board is not entitled to make its authority a pretext for interference with the right of discharge when that right is exercised for other reasons than such intimidation and coercion. The true purpose is the subject of investigation with full opportunity to show the facts. It would seem that, when employers freely recognize the right of their employees to their own organizations and their unrestricted right of representation, there will be much less occasion for controversy in respect to the free and appropriate exercise of the right of selection and discharge. The Act has been criticized as one-sided in its application; that it subjects the employer to supervision and restraint and leaves untouched the abuses for which employees may be responsible; that it fails to provide a more comprehensive plan -- with better assurances of fairness to both sides and with increased chances of success in bringing about, if not compelling, equitable solutions of industrial disputes affecting interstate commerce. But we are dealing with the power of Congress, not with a particular policy or with the extent to which policy should go. We have frequently said that the legislative authority, exerted within its proper field, need not embrace all the evils within its reach. The Constitution does not forbid "cautious advance, step by step," in dealing with the evils which are exhibited in activities within the range of legislative power. Carroll v. Greenwich Insurance Co., 199 U. S. 401 , 199 U. S. 411 ; Keokee Coke Co. v. Taylor, 234 U. S. 224 , 234 U. S. 227 ; Miller v. Wilson, 236 U. S. 373 , 236 U. S. 384 ; Sproles v. Binford, 286 U. S. 374 , 286 U. S. 396 . The question in such cases is whether the legislature, in what it does prescribe, has gone beyond constitutional limits. The procedural provisions of the Act are assailed. But these provisions, as we construe them, do not offend against the constitutional requirements governing the Page 301 U. S. 47 creation and action of administrative bodies. See Interstate Commerce Comm'n v. Louisville & Nashville R. Co., 227 U. S. 88 , 227 U. S. 91 . The Act establishes standards to which the Board must conform. There must be complaint, notice and hearing. The Board must receive evidence and make findings. The findings as to the facts are to be conclusive, but only if supported by evidence. The order of the Board is subject to review by the designated court, and only when sustained by the court may the order be enforced. Upon that review, all questions of the jurisdiction of the Board and the regularity of its proceedings, all questions of constitutional right or statutory authority, are open to examination by the court. We construe the procedural provisions as affording adequate opportunity to secure judicial protection against arbitrary action in accordance with the well settled rules applicable to administrative agencies set up by Congress to aid in the enforcement of valid legislation. It is not necessary to repeat these rules which have frequently been declared. None of them appears to have been transgressed in the instant case. Respondent was notified and heard. It had opportunity to meet the charge of unfair labor practices upon the merits, and, by withdrawing from the hearing, it declined to avail itself of that opportunity. The facts found by the Board support its order, and the evidence supports the findings. Respondent has no just ground for complaint on this score. The order of the Board required the reinstatement of the employees who were found to have been discharged because of their "union activity" and for the purpose of "discouraging membership in the union." That requirement was authorized by the Act. § 10(c). In Texas & N.O. R. Co. v. Railway Clerks, supra, a similar order for restoration to service was made by the court in contempt proceedings for the violation of an injunction issued by the court to restrain an interference with Page 301 U. S. 48 the right of employees as guaranteed by the Railway Labor Act of 1926. The requirement of restoration to service of employees discharged in violation of the provisions of that Act was thus a sanction imposed in the enforcement of a judicial decree. We do not doubt that Congress could impose a like sanction for the enforcement of its valid regulation. The fact that, in the one case, it was a judicial sanction, and, in the other, a legislative one, is not an essential difference in determining its propriety. Respondent complains that the Board not only ordered reinstatement but directed the payment of wages for the time lost by the discharge, less amounts earned by the employee during that period. This part of the order was also authorized by the Act. § 10(c). It is argued that the requirement is equivalent to a money judgment and hence contravenes the Seventh Amendment with respect to trial by jury. The Seventh Amendment provides that, "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." The Amendment thus preserves the right which existed under the common law when the Amendment was adopted. Shields v. Thomas , 18 How. 253, 59 U. S. 262 ; In re Wood, 210 U. S. 246 , 210 U. S. 258 ; Dimick v. Schiedt, 293 U. S. 474 , 293 U. S. 476 ; Baltimore & Carolina Line v. Redman, 295 U. S. 654 , 295 U. S. 657 . Thus, it has no application to cases where recovery of money damages is an incident to equitable relief even though damages might have been recovered in an action at law. Clark v. Wooster, 119 U. S. 322 , 119 U. S. 325 ; Pease v. Rathbun-Jones Engineering Co., 243 U. S. 273 , 243 U. S. 279 . It does not apply where the proceeding is not in the nature of a suit at common law. Guthrie National Bank v. Guthrie, 173 U. S. 528 , 173 U. S. 537 . The instant case is not a suit at common law or in the nature of such a suit. The proceeding is one unknown to the common law. It is a statutory proceeding. Reinstatement of the employee and payment for time lost are Page 301 U. S. 49 requirements imposed for violation of the statute, and are remedies appropriate to its enforcement. The contention under the Seventh Amendment is without merit. Our conclusion is that the order of the Board was within its competency, and that the Act is valid as here applied. The judgment of the Circuit Court of Appeals is reversed, and the cause is remanded for further proceedings in conformity with this opinion. Reversed. For dissenting opinion, see p. 301 U. S. 76 . * No. 419, National Labor Relations Board v. Jones & Laughlin Steel Corp.; Nos. 420 and 421, National Labor Relations Board v. Fruehauf Trailer Co., post, p. 301 U. S. 49 ; Nos. 422 and 423, National Labor Relations Board v. Friedman-Harry Marks Clothing Co., post, p. 301 U. S. 58 ; No. 365, Associated Press v. National Labor Relations Board, post, p. 301 U. S. 103 , and No. 469, Washington, Virginia & Maryland Coach Co. v. National Labor Relations Board, post, p. 301 U. S. 142 , which are known as the "Labor Board Cases," were disposed of in five separate opinions. The dissenting opinion, post, p. 301 U. S. 76 , applies to Nos. 419, 420 and 421, and 422 and 423. The dissenting opinion, post, p. 301 U. S. 133 , applies to No. 365. The opinion in No. 469 was unanimous. [ Footnote 1 ] Act of July 5, 1935, 49 Stat. 449, 29 U.S.C. 151. [ Footnote 2 ] This section is as follows: "Section 1. The denial by employers of the right of employees to organize and the refusal by employers to accept the procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest, which have the intent or the necessary effect of burdening or obstructing commerce by (a) impairing the efficiency, safety, or operation of the instrumentalities of commerce; (b) occurring in the current of commerce; (c) materially affecting, restraining, or controlling the flow of raw materials or manufactured or processed goods from or into the channels of commerce, or the prices of such materials or goods in commerce; or (d) causing diminution of employment and wages in such volume as substantially to impair or disrupt the market for goods flowing from or into the channels of commerce." "The inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers who are organized in the corporate or other forms of ownership association substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between industries." "Experience has proved that protection by law of the right of employees to organize and bargain collectively safeguards commerce from injury, impairment, or interruption, and promotes the flow of commerce by removing certain recognized sources of industrial strife and unrest, by encouraging practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions, and by restoring equality of bargaining power between employers and employees." "It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection." [ Footnote 3 ] See Note 2 supra, p. 23. [ Footnote 4 ] What is quoted above is followed by this proviso -- not here involved -- " Provided, That nothing in this Act, or in the National Industrial Recovery Act (U.S.C. Supp. VII, title 15, secs. 701-712), as amended from time to time, or in any code or agreement approved or prescribed thereunder, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this Act as an unfair labor practice) to require as a condition of employment membership therein, if such labor organization is the representative of the employees as provided in section 9(a), in the appropriate collective bargaining unit covered by such agreement when made." [ Footnote 5 ] 42 Stat. 159. [ Footnote 6 ] 42 Stat. 998. [ Footnote 7 ] §§ 416, 422, 41 Stat. 484, 488; Interstate Commerce Act, § 13(4). [ Footnote 8 ] See, for example, Final Report of the Industrial Commission (1902), vol.19, p. 844; Report of the Anthracite Coal Strike Commission (1902), Sen.Doc. No. 6, 58th Cong., spec. sess.; Final Report of Commission on Industrial Relations (1916), Sen.Doc. No. 415, 64th Cong., 1st sess., vol. I; National War Labor Board, Principles and Rules of Procedure (1919), p. 4; Bureau of Labor Statistics, Bulletin No. 287 (1921), pp. 52-64; History of the Shipbuilding Labor Adjustment Board, U.S. Bureau of Labor Statistics, Bulletin No. 283. [ Footnote 9 ] See Investigating Strike in Steel Industries, Sen.Rep. No. 289, 66th Cong., 1st sess. [ Footnote 10 ] The provision is as follows: "SEC. 9. (a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer." [ Footnote 11 ] See Virginian Railway Co. v. System Federation, No. 40, 300 U. S. 515 . [ Footnote 12 ] See Note 11

In NLRB v. Jones & Laughlin Steel Corp. (1937), the U.S. Supreme Court upheld the constitutionality of the National Labor Relations Act, recognizing employees' fundamental right to organize and engage in collective bargaining. The Court affirmed Congress's power to regulate activities that substantially affect interstate commerce, even if those activities are intrastate in nature. This decision established a significant precedent for federal labor law and expanded congressional power under the Commerce Clause.

Powers of Congress

U.S. v. Darby

https://supreme.justia.com/cases/federal/us/312/100/

U.S. Supreme Court United States v. Darby, 312 U.S. 100 (1941) United States v. Darby No. 82 Argued December 19, 20, 1940 Decided February 3, 1941 312 U.S. 100 APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF GEORGIA Syllabus 1. The Fair Labor Standards Act of 1938 provides for fixing minimum wages and maximum hours for employees engaged in the production of goods for interstate commerce, with increased compensation for overtime, and forbids, under pain of fine and imprisonment: (1) violation by an employer of such wage and hour provisions; (2) shipment by him in interstate commerce of any goods in the production of which any employee was employed in violation of such provisions, and (3) failure of the employer to keep such records of his employees and of their wages and hours, as shall be prescribed by administrative regulation or order. Held within the commerce power and consistent with the Fifth and Tenth Amendments. P. 312 U. S. 111 . 2. While manufacture is not of itself interstate commerce, the shipment of manufactured goods interstate is such commerce, and the prohibition of such shipment by Congress is a regulation of interstate commerce. P. 312 U. S. 113 . 3. Congress, following its own conception of public policy concerning the restrictions which may appropriately be imposed on interstate commerce, is free to exclude from it articles whose use in the State for which they are destined it may conceive to be injurious to the public health, morals or welfare, even though the State has not sought to regulate their use. P. 312 U. S. 114 . 4. Such regulation is not a forbidden invasion of state power merely because either its motive or its consequence is to restrict the use of articles of commerce within the States of destination, and is valid unless prohibited by other Constitutional provisions. P. 312 U. S. 114 . 5. The motive and purpose of the present regulation are plainly to make effective the Congressional conception of public policy that interstate commerce should not be made the instrument of competition in the distribution of goods produced under substandard labor conditions, which competition is injurious to the commerce and to the States from and to which it flows. P. 312 U.S. 115 . 6. The motive and purpose of a regulation of interstate commerce are matters for the legislative judgment upon the exercise of which the Constitution places no restriction, and over which the courts are given no control. P. 312 U.S. 115 . Page 312 U. S. 101 7. In prohibiting interstate shipment of goods produced under the forbidden substandard labor conditions, the Act is within the authority of Congress, if no Constitutional provision forbids. P. 312 U.S. 115 . 8. Hammer v. Dagenhart, 247 U. S. 251 , overruled; Carter v. Carter Coal Co., 298 U. S. 238 , declared to have been limited. Pp. 312 U.S. 115 , 312 U. S. 123 . 9. The "production for interstate commerce" intended by the Act includes, at least, production of goods, which, at the time of production, the employer, according to the normal course of his business, intends or expects to move in interstate commerce although, through the exigencies of the business, all of the goods may not thereafter actually enter interstate commerce. P. 312 U. S. 117 . 10. The power of Congress over interstate commerce extends to those intrastate activities which so affect interstate commerce or the exercise of the power of Congress over it as to make their regulation an appropriate means to the attainment of a legitimate end -- the exercise of the granted power of Congress to regulate interstate commerce. P. 312 U. S. 118 . 11. Congress, having by the present Act adopted the policy of excluding from interstate commerce all goods produced for that commerce which do not conform to the specified labor standards, it may choose the means reasonably adapted to the attainment of the permitted end, even though they involve control of intrastate activities. P. 312 U. S. 121 . 12. Independently of the prohibition of shipment or transportation of the proscribed goods, the provision of the Act for the suppression of their production for interstate commerce is within the commerce power. P. 312 U. S. 122 . 13. The Tenth Amendment is not a limitation upon the authority of the National Government to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end. P. 312 U. S. 123 . 14. The requirements of the Act as to the keeping of records are valid as incidental to the wage and hour requirements. P. 312 U. S. 124 . 15. The wage and hour provisions of the Act do not violate the due process clause of the Fifth Amendment. P. 312 U. S. 125 . 16. In its criminal aspect, the Act is sufficiently definite to meet constitutional demands. P. 312 U. S. 125 . 32 F. Supp. 734 , reversed. APPEAL, under the Criminal Appeals Act, from a judgment quashing an indictment. Page 312 U. S. 108 MR. JUSTICE STONE delivered the opinion of the Court. The two principal questions raised by the record in this case are, first, whether Congress has constitutional power to prohibit the shipment in interstate commerce of lumber manufactured by employees whose wages are less than a prescribed minimum or whose weekly hours of labor at that wage are greater than a prescribed maximum, and, second, whether it has power to prohibit the employment of workmen in the production of goods "for interstate commerce" at other than prescribed wages and hours. A subsidiary question is whether, in connection with such prohibitions, Congress can require the employer subject to them to keep records showing the hours worked each day and week by each of his employees including those engaged "in the production and manufacture of goods, to-wit, lumber, for interstate commerce.'" Appellee demurred to an indictment found in the district court for southern Georgia charging him with violation of § 15(a)(1)(2) and (5) of the Fair Labor Standards Act of 1938; 52 Stat. 1060, 29 U.S.C. § 201, et seq. The district court sustained the demurrer and quashed the indictment, and the case comes here on direct appeal under § 238 of the Judicial Code as amended, 28 Page 312 U. S. 109 U.S.C. § 345, and § 682, Title 18 U.S.C. 34 Stat. 1246, which authorizes an appeal to this Court when the judgment sustaining the demurrer "is based upon the invalidity or construction of the statute upon which the indictment is founded." The Fair Labor Standards Act set up a comprehensive legislative scheme for preventing the shipment in interstate commerce of certain products and commodities produced in the United States under labor conditions as respects wages and hours which fail to conform to standards set up by the Act. Its purpose, as we judicially know from the declaration of policy in § 2(a) of the Act, [ Footnote 1 ] and the reports of Congressional committees proposing the legislation, S.Rept. No. 884, 75th Cong. 1st Sess.; H.Rept. No. 1452, 75th Cong. 1st Sess.; H.Rept. No. 2182, 75th Cong.3d Sess., Conference Report, H.Rept. No. 2738, 75th Cong.3d Sess., is to exclude from interstate commerce goods produced for the commerce and to prevent their production for interstate commerce under conditions detrimental to the maintenance of the minimum standards of living necessary for health and general wellbeing, and to prevent the use of interstate Page 312 U. S. 110 commerce as the means of competition in the distribution of goods so produced, and as the means of spreading and perpetuating such substandard labor conditions among the workers of the several states. The Act also sets up an administrative procedure whereby those standards may from time to time be modified generally as to industries subject to the Act or within an industry in accordance with specified standards, by an administrator acting in collaboration with "Industry Committees" appointed by him. Section 15 of the statute prohibits certain specified acts, and § 16(a) punishes willful violation of it by a fine of not more than $10,000, and punishes each conviction after the first by imprisonment of not more than six months or by the specified fine, or both. Section 15(1) makes unlawful the shipment in interstate commerce of any goods "in the production of which any employee was employed in violation of section 6 or section 7," which provide, among other things, that, during the first year of operation of the Act, a minimum wage of 25 cents per hour shall be paid to employees "engaged in [interstate] commerce or the production of goods for [interstate] commerce," § 6, and that the maximum hours of employment for employees "engaged in commerce or the production of goods for commerce" without increased compensation for overtime, shall be forty-four hours a week. § 7. Section 15(a)(2) makes it unlawful to violate the provisions of §§ 6 and 7, including the minimum wage and maximum hour requirements just mentioned for employees engaged in production of goods for commerce. Section 15(a)(5) makes it unlawful for an employer subject to the Act to violate § 11(c), which requires him to keep such records of the persons employed by him and of their wages and hours of employment as the administrator shall prescribe by regulation or order. Page 312 U. S. 111 The indictment charges that appellee is engaged, in the State of Georgia, in the business of acquiring raw materials, which he manufactures into finished lumber with the intent, when manufactured, to ship it in interstate commerce to customers outside the state, and that he does, in fact, so ship a large part of the lumber so produced. There are numerous counts charging appellee with the shipment in interstate commerce from Georgia to points outside the state of lumber in the production of which, for interstate commerce, appellee has employed workmen at less than the prescribed minimum wage or more than the prescribed maximum hours without payment to them of any wage for overtime. Other counts charge the employment by appellee of workmen in the production of lumber for interstate commerce at wages at less than 25 cents an hour or for more than the maximum hours per week without payment to them of the prescribed overtime wage. Still another count charges appellee with failure to keep records showing the hours worked each day a week by each of his employees as required by § 11(c) and the regulation of the administrator, Title 29, Ch. 5, Code of Federal Regulations, Part 516, and also that appellee unlawfully failed to keep such records of employees engaged "in the production and manufacture of goods, to-wit lumber, for interstate commerce." The demurrer, so far as now relevant to the appeal, challenged the validity of the Fair Labor Standards Act under the Commerce Clause and the Fifth and Tenth Amendments. The district court quashed the indictment in its entirety upon the broad grounds that the Act, which it interpreted as a regulation of manufacture within the states, is unconstitutional. It declared that manufacture is not interstate commerce, and that the regulation by the Fair Labor Standards Act of wages and hours of employment of those engaged in the manufacture Page 312 U. S. 112 of goods which it is intended at the time of production "may or will be" after production "sold in interstate commerce in part or in whole" is not within the congressional power to regulate interstate commerce. The effect of the court's decision and judgment is thus to deny the power of Congress to prohibit shipment in interstate commerce of lumber produced for interstate commerce under the proscribed substandard labor conditions of wages and hours, its power to penalize the employer for his failure to conform to the wage and hour provisions in the case of employees engaged in the production of lumber which he intends thereafter to ship in interstate commerce in part or in whole according to the normal course of his business, and its power to compel him to keep records of hours of employment as required by the statute and the regulations of the administrator. The case comes here on assignments by the Government that the district court erred insofar as it held that Congress was without constitutional power to penalize the acts set forth in the indictment, and appellee seeks to sustain the decision below on the grounds that the prohibition by Congress of those Acts is unauthorized by the Commerce Clause and is prohibited by the Fifth Amendment. The appeal statute limits our jurisdiction on this appeal to a review of the determination of the district court so far only as it is based on the validity or construction of the statute. United States v. Borden Co., 308 U. S. 188 , 308 U. S. 193 -195, and cases cited. Hence, we accept the district court's interpretation of the indictment and confine our decision to the validity and construction of the statute. The prohibition of shipment of the proscribed goods in interstate commerce. Section 15(a)(1) prohibits, and the indictment charges, the shipment in interstate commerce, of goods produced for interstate commerce by employees whose wages and hours of employment do not Page 312 U. S. 113 conform to the requirements of the Act. Since this section is not violated unless the commodity shipped has been produced under labor conditions prohibited by § 6 and § 7, the only question arising under the commerce clause with respect to such shipments is whether Congress has the constitutional power to prohibit them. While manufacture is not, of itself, interstate commerce, the shipment of manufactured goods interstate is such commerce, and the prohibition of such shipment by Congress is indubitably a regulation of the commerce. The power to regulate commerce is the power "to prescribe the rule by which commerce is governed." Gibbons v. Ogden , 9 Wheat. 1, 22 U. S. 196 . It extends not only to those regulations which aid, foster and protect the commerce, but embraces those which prohibit it. Reid v. Colorado, 187 U. S. 137 ; Lottery Case, 188 U. S. 321 ; United States v. Delaware & Hudson Co., 213 U. S. 366 ; Hoke v. United States, 227 U. S. 308 ; Clark Distilling Co. v. Western Maryland Ry. Co., 242 U. S. 311 ; United States v. Hill, 248 U. S. 420 ; McCormick & Co. v. Brown, 286 U. S. 131 . It is conceded that the power of Congress to prohibit transportation in interstate commerce includes noxious articles, Lottery Case, supra; Hipolite Egg Co. v. United States, 220 U. S. 45 ; cf. Hoke v. United States, supra; stolen articles, Brooks v. United States, 267 U. S. 432 ; kidnapped persons, Gooch v. United States, 297 U. S. 124 , and articles, such as intoxicating liquor or convict made goods, traffic in which is forbidden or restricted by the laws of the state of destination. Kentucky Whip & Collar Co. v. Illinois Central R. Co., 299 U. S. 334 . But it is said that the present prohibition falls within the scope of none of these categories; that, while the prohibition is nominally a regulation of the commerce, its motive or purpose is regulation of wages and hours of persons engaged in manufacture, the control of which has been reserved to the states and upon which Georgia Page 312 U. S. 114 and some of the states of destination have placed no restriction; that the effect of the present statute is not to exclude the proscribed articles from interstate commerce in aid of state regulation, as in Kentucky Whip & Collar Co. v. Illinois Central R. Co., supra, but instead, under the guise of a regulation of interstate commerce, it undertakes to regulate wages and hours within the state contrary to the policy of the state which has elected to leave them unregulated. The power of Congress over interstate commerce "is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution." Gibbons v. Ogden, supra, 22 U. S. 196 . That power can neither be enlarged nor diminished by the exercise or nonexercise of state power. Kentucky Whip & Collar Co. v. Illinois Central R. Co., supra. Congress, following its own conception of public policy concerning the restrictions which may appropriately be imposed on interstate commerce, is free to exclude from the commerce articles whose use in the states for which they are destined it may conceive to be injurious to the public health, morals or welfare, even though the state has not sought to regulate their use. Reid v. Colorado, supra; Lottery Case, supra; Hipolite Egg Co. v. United States, supra; Hoke v. United States, supra. Such regulation is not a forbidden invasion of state power merely because either its motive or its consequence is to restrict the use of articles of commerce within the states of destination, and is not prohibited unless by other Constitutional provisions. It is no objection to the assertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states. Seven Cases v. United States, 239 U. S. 510 , 239 U. S. 614 ; Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U. S. 146 , 251 U. S. 156 ; United States v. Carolene Products Co. , 304 U.S. Page 312 U. S. 115 144, 304 U. S. 147 ; United States v. Appalachian Electric Power Co., 311 U. S. 377 . The motive and purpose of the present regulation are plainly to make effective the Congressional conception of public policy that interstate commerce should not be made the instrument of competition in the distribution of goods produced under substandard labor conditions, which competition is injurious to the commerce and to the states from and to which the commerce flows. The motive and purpose of a regulation of interstate commerce are matters for the legislative judgment upon the exercise of which the Constitution places no restriction, and over which the courts are given no control. McCray v. United States, 195 U. S. 27 ; Sonzinsky v. United States, 300 U. S. 506 , 300 U. S. 513 , and cases cited. "The judicial cannot prescribe to the legislative department of the government limitations upon the exercise of its acknowledged power." Veazie Bank v. Fenno , 8 Wall. 533. Whatever their motive and purpose, regulations of commerce which do not infringe some constitutional prohibition are within the plenary power conferred on Congress by the Commerce Clause. Subject only to that limitation, presently to be considered, we conclude that the prohibition of the shipment interstate of goods produced under the forbidden substandard labor conditions is within the constitutional authority of Congress. In the more than a century which has elapsed since the decision of Gibbons v. Ogden, these principles of constitutional interpretation have been so long and repeatedly recognized by this Court as applicable to the Commerce Clause that there would be little occasion for repeating them now were it not for the decision of this Court twenty-two years ago in Hammer v. Dagenhart, 247 U. S. 251 . In that case, it was held by a bare majority of the Court, over the powerful and now classic dissent of Mr. Justice Holmes setting forth the fundamental issues involved, Page 312 U. S. 116 that Congress was without power to exclude the products of child labor from interstate commerce. The reasoning and conclusion of the Court's opinion there cannot be reconciled with the conclusion which we have reached, that the power of Congress under the Commerce Clause is plenary to exclude any article from interstate commerce subject only to the specific prohibitions of the Constitution. Hammer v. Dagenhart has not been followed. The distinction on which the decision was rested, that Congressional power to prohibit interstate commerce is limited to articles which in themselves have some harmful or deleterious property -- a distinction which was novel when made and unsupported by any provision of the Constitution -- has long since been abandoned. Brooks v. United States, supra; Kentucky Whip & Collar Co. v. Illinois Central R. Co., supra; Electric Bond & Share Co. v. Securities & Exchange Comm'n, 303 U. S. 419 ; Mulford v. Smith, 307 U. S. 38 . The thesis of the opinion -- that the motive of the prohibition or its effect to control in some measure the use or production within the states of the article thus excluded from the commerce can operate to deprive the regulation of its constitutional authority -- has long since ceased to have force. Reid v. Colorado, supra; Lottery Case, supra; Hipolite Egg Co. v. United States, supra; Seven Cases v. United States, supra, 239 U. S. 514 ; Hamilton v. Kentucky Distilleries & Warehouse Co., supra, 251 U. S. 156 ; United States v. Carolene Products Co., supra, 304 U. S. 147 . And finally, we have declared "The authority of the federal government over interstate commerce does not differ in extent or character from that retained by the states over intrastate commerce." United States v. Rock Royal Cooperative, 307 U. S. 533 , 307 U. S. 569 . The conclusion is inescapable that Hammer v. Dagenhart was a departure from the principles which have prevailed in the interpretation of the Commerce Clause both Page 312 U. S. 117 before and since the decision, and that such vitality, as a precedent, as it then had, has long since been exhausted. It should be, and now is, overruled. Validity of the wage and hour requirements. Section 15(a)(2) and §§ 6 and 7 require employers to conform to the wage and hour provisions with respect to all employees engaged in the production of goods for interstate commerce. As appellee's employees are not alleged to be "engaged in interstate commerce," the validity of the prohibition turns on the question whether the employment, under other than the prescribed labor standards, of employees engaged in the production of goods for interstate commerce is so related to the commerce, and so affects it, as to be within the reach of the power of Congress to regulate it. To answer this question, we must at the outset determine whether the particular acts charged in the counts which are laid under § 15(a)(2) as they were construed below constitute "production for commerce" within the meaning of the statute. As the Government seeks to apply the statute in the indictment, and as the court below construed the phrase "produced for interstate commerce," it embraces at least the case where an employer engaged, as is appellee, in the manufacture and shipment of goods in filling orders of extrastate customers, manufactures his product with the intent or expectation that, according to the normal course of his business, all or some part of it will be selected for shipment to those customers. Without attempting to define the precise limits of the phrase, we think the acts alleged in the indictment are within the sweep of the statute. The obvious purpose of the Act was not only to prevent the interstate transportation of the proscribed product, but to stop the initial step toward transportation, production with the purpose of so transporting it. Congress was not unaware that Page 312 U. S. 118 most manufacturing businesses shipping their product in interstate commerce make it in their shops without reference to its ultimate destination, and then, after manufacture, select some of it for shipment interstate and some intrastate, according to the daily demands of their business, and that it would be practically impossible, without disrupting manufacturing businesses, to restrict the prohibited kind of production to the particular pieces of lumber, cloth, furniture or the like which later move in interstate, rather than intrastate, commerce. Cf. United States v. New York Central R. Co., 272 U. S. 457 , 272 U. S. 464 . The recognized need of drafting a workable statute and the well known circumstances in which it was to be applied are persuasive of the conclusion, which the legislative history supports, S.Rept. No. 884, 75th Cong. 1st Sess., pp. 7 and 8; H.Rept. No. 2738, 75th Cong.3d Sess., p. 17, that the "production for commerce" intended includes at least production of goods which, at the time of production, the employer, according to the normal course of his business, intends or expects to move in interstate commerce although, through the exigencies of the business, all of the goods may not thereafter actually enter interstate commerce. [ Footnote 2 ] There remains the question whether such restriction on the production of goods for commerce is a permissible exercise of the commerce power. The power of Congress over interstate commerce is not confined to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate commerce. See McCulloch Page 312 U. S. 119 v. Maryland, 4 Wheat. 316, 17 U. S. 421 . Cf. United States v. Ferger, 250 U. S. 199 . While this Court has many times found state regulation of interstate commerce, when uniformity of its regulation is of national concern, to be incompatible with the Commerce Clause even though Congress has not legislated on the subject, the Court has never implied such restraint on state control over matters intrastate not deemed to be regulations of interstate commerce or its instrumentalities even though they affect the commerce. Minnesota Rate Cases, 230 U. S. 352 , 230 U. S. 398 et seq., and case cited; 230 U. S. 410 et seq., and cases cited. In the absence of Congressional legislation on the subject, state laws which are not regulations of the commerce itself or its instrumentalities are not forbidden, even though they affect interstate commerce. Kidd v. Pearson, 128 U. S. 1 ; Bacon v. Illinois, 227 U. S. 504 ; Heisler v. Thomas Colliery Co., 260 U. S. 245 ; Oliver Iron Co. v. Lord, 262 U. S. 172 . But it does not follow that Congress may not, by appropriate legislation, regulate intrastate activities where they have a substantial effect on interstate commerce. See Santa Cruz Fruit Packing Co. v. National Labor Relations Board, 303 U. S. 453 , 303 U. S. 466 . A recent example is the National Labor Relations Act for the regulation of employer and employee relations in industries in which strikes, induced by unfair labor practices named in the Act, tend to disturb or obstruct interstate commerce. See National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U. S. 1 , 301 U. S. 38 , 301 U. S. 40 ; National Labor Relations Board v. Fainblatt, 306 U. S. 601 , 306 U. S. 604 , and cases cited. But, long before the adoption of the National Labor Relations Act, this Court had many times held that the power of Congress to regulate interstate commerce extends to the regulation through legislative action of activities intrastate Page 312 U. S. 120 which have a substantial effect on the commerce or the exercise of the Congressional power over it. [ Footnote 3 ] In such legislation, Congress has sometimes left it to the courts to determine whether the intrastate activities have the prohibited effect on the commerce, as in the Sherman Act. It has sometimes left it to an administrative board or agency to determine whether the activities sought to be regulated or prohibited have such effect, as in the case of the Interstate Commerce Act and the National Labor Relations Act, or whether they come within the statutory definition of the prohibited Act, as in the Federal Trade Commission Act. And sometimes Congress itself has said that a particular activity affects the commerce, as it did in the present Act, the Safety Appliance Act, and the Railway Labor Act. In passing on the validity of legislation of the class last mentioned, the only function of courts is to determine whether the particular activity regulated or prohibited is within the reach Page 312 U. S. 121 of the federal power. See United States v. Ferger, supra; Virginian Ry. Co. v. Federation, 300 U. S. 515 , 300 U. S. 553 . Congress having by the present Act adopted the policy of excluding from interstate commerce all goods produced for the commerce which do not conform to the specified labor standards, it may choose the means reasonably adapted to the attainment of the permitted end even though they involve control of intrastate activities. Such legislation has often been sustained with respect to powers other than the commerce power granted to the national government when the means chosen, although not themselves within the granted power, were nevertheless deemed appropriate aids to the accomplishment of some purpose within an admitted power of the national government. See Jacob Ruppert, Inc. v. Caffey, 251 U. S. 264 ; Everard's Breweries v. Day, 265 U. S. 545 , 265 U. S. 560 ; Westfall v. United States, 274 U. S. 256 , 274 U. S. 259 . As to state power under the Fourteenth Amendment, compare Otis v. Parker, 187 U. S. 606 , 187 U. S. 609 ; St. John v. New York, 201 U. S. 633 ; Purity Extract & Tonic Co. v. Lynch, 226 U. S. 192 , 226 U. S. 201 -202. A familiar like exercise of power is the regulation of intrastate transactions which are so commingled with or related to interstate commerce that all must be regulated if the interstate commerce is to be effectively controlled. Shreveport Case, 234 U. S. 342 ; Railroad Commission of Wisconsin v. Chicago, B. & Q. R. Co., 257 U. S. 563 ; United States v. New York Central R. Co., supra, 272 U. S. 464 ; Currin v. Wallace, 306 U. S. 1 ; Mulford v. Smith, supra. Similarly, Congress may require inspection and preventive treatment of all cattle in a disease infected area in order to prevent shipment in interstate commerce of some of the cattle without the treatment. Thornton v. United States, 271 U. S. 414 . It may prohibit the removal, at destination, of labels required by the Pure Food & Drugs Act to be affixed to articles Page 312 U. S. 122 transported in interstate commerce. McDermott v. Wisconsin, 228 U. S. 115 . And we have recently held that Congress, in the exercise of its power to require inspection and grading of tobacco shipped in interstate commerce, may compel such inspection and grading of all tobacco sold at local auction rooms from which a substantial part, but not all, of the tobacco sold is shipped in interstate commerce. Currin v. Wallace, supra, 306 U. S. 11 , and see, to the like effect, United States v. Rock Royal Co-op., supra, 307 U. S. 568 , note 37. We think also that § 15(a)(2), now under consideration, is sustainable independently of § 15(a)(1), which prohibits shipment or transportation of the proscribed goods. As we have said, the evils aimed at by the Act are the spread of substandard labor conditions through the use of the facilities of interstate commerce for competition by the goods so produced with those produced under the prescribed or better labor conditions, and the consequent dislocation of the commerce itself caused by the impairment or destruction of local businesses by competition made effective through interstate commerce. The Act is thus directed at the suppression of a method or kind of competition in interstate commerce which it has, in effect, condemned as "unfair," as the Clayton Act has condemned other "unfair methods of competition" made effective through interstate commerce. See Van Camp & Sons Co. v. American Can Co., 278 U. S. 245 ; Federal Trade Comm'n v. Keppel & Bro., 291 U. S. 304 . The Sherman Act and the National Labor Relations Act are familiar examples of the exertion of the commerce power to prohibit or control activities wholly intrastate because of their effect on interstate commerce. See, as to the Sherman Act, Northern Securities Co. v. United States, 193 U. S. 197 ; Swift & Co. v. United States, 196 U. S. 375 ; United States v. Patten, 226 U. S. 525 ; United Mine Workers v. Coronado Coal Co., 259 U. S. 344 ; Local Page 312 U. S. 123 No. 167 v. United States, 291 U. S. 293 ; Stevens Co. v. Foster & Kleiser Co., 311 U. S. 255 . As to the National Labor Relations Act, see National Labor Relations Board v. Fainblatt, supra, and cases cited. The means adopted by § 15(a)(2) for the protection of interstate commerce by the suppression of the production of the condemned goods for interstate commerce is so related to the commerce, and so affects it, as to be within the reach of the commerce power. See Currin v. Wallace, supra, 306 U. S. 11 . Congress, to attain its objective in the suppression of nationwide competition in interstate commerce by goods produced under substandard labor conditions, has made no distinction as to the volume or amount of shipments in the commerce or of production for commerce by any particular shipper or producer. It recognized that, in present day industry, competition by a small part may affect the whole, and that the total effect of the competition of many small producers may be great. See H.Rept. No. 2182, 75th Cong. 1st Sess., p. 7. The legislation, aimed at a whole, embraces all its parts. Cf. National Labor Relations Board v. Fainblatt, supra, 306 U. S. 606 . So far as Carter v. Carter Coal Co., 298 U. S. 238 , is inconsistent with this conclusion, its doctrine is limited in principle by the decisions under the Sherman Act and the National Labor Relations Act, which we have cited and which we follow. See also Sunshine Anthracite Coal Co. v. Adkins, 310 U. S. 381 ; Currin v. Wallace, supra; Mulford v. Smith, supra; United States v. Rock Royal Co-op., supra; Clover Fork Coal Co. v. National Labor Relations Board, 97 F.2d 331; National Labor Relations Board v. Crowe Coal Co., 104 F.2d 633; National Labor Relations Board v. Good Coal Co., 110 F.2d 501. Our conclusion is unaffected by the Tenth Amendment. which provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the Page 312 U. S. 124 States, are reserved to the States respectively, or to the people." The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment, or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers. See e.g., II Elliot's Debates, 123, 131; III id. 450, 464, 600; IV id. 140, 149; I Annals of Congress, 432, 761, 767-768; Story, Commentaries on the Constitution, §§ 1907-1908. From the beginning and for many years, the amendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end. Martin v. Hunter's Lessee , 1 Wheat. 304, 14 U. S. 324 , 14 U. S. 325 ; McCulloch v. Maryland, supra, 17 U. S. 405 , 17 U. S. 406 ; Gordon v. United States, 117 U.S.Appx 697, 705; Lottery Case, supra; Northern Securities Co. v. United States, supra, 193 U. S. 344 -345; Everard's Breweries v. Day, supra, 265 U. S. 558 ; United States v. Sprague, 282 U. S. 716 , 282 U. S. 733 ; see United States v. The Brigantine William, 28 Fed.Cas. No. 16,700, p. 622. Whatever doubts may have arisen of the soundness of that conclusion, they have been put at rest by the decisions under the Sherman Act and the National Labor Relations Act which we have cited. See also Ashwander v. Tennessee Valley Authority, 297 U. S. 288 , 297 U. S. 330 -331; Wright v. Union Central Ins. Co., 304 U. S. 502 , 304 U. S. 516 . Validity of the requirement of records of wages and hours. § 15(a)(5) and § 11(c). These requirements are incidental to those for the prescribed wages and Page 312 U. S. 125 hours, and hence validity of the former turns on validity of the latter. Since, as we have held, Congress may require production for interstate commerce to conform to those conditions, it may require the employer, as a means of enforcing the valid law, to keep a record showing whether he has, in fact, complied with it. The requirement for records even of the intrastate transaction is an appropriate means to the legitimate end. See Baltimore & Ohio R. Co. v. Interstate Commerce Comm'n, 221 U. S. 612 ; Interstate Commerce Comm'n v. Goodrich Transit Co., 224 U. S. 194 ; Chicago Board of Trade v. Olsen, 262 U. S. 1 , 262 U. S. 42 . Validity of the wage and hour provisions under the Fifth Amendment. Both provisions are minimum wage requirements compelling the payment of a minimum standard wage with a prescribed increased wage for overtime of "not less than one and one-half times the regular rate" at which the worker is employed. Since our decision in West Coast Hotel Co. v. Parrish, 300 U. S. 379 , it is no longer open to question that the fixing of a minimum wage is within the legislative power, and that the bare fact of its exercise is not a denial of due process under the Fifth more than under the Fourteenth Amendment. Nor is it any longer open to question that it is within the legislative power to fix maximum hours. Holden v. Hardy, 169 U. S. 366 ; Muller v. Oregon, 208 U. S. 412 ; Bunting v. Oregon, 243 U. S. 426 ; Baltimore & Ohio R. Co. v. Interstate Commerce Comm'n, supra. Similarly, the statute is not objectionable because applied alike to both men and women. Cf. Bunting v. Oregon, 243 U. S. 426 . The Act is sufficiently definite to meet constitutional demands. One who employs persons, without conforming to the prescribed wage and hour conditions, to work on goods which he ships or expects to ship across state Page 312 U. S. 126 lines is warned that he may be subject to the criminal penalties of the Act. No more is required. Nash v. United States, 229 U. S. 373 , 229 U. S. 377 . We have considered, but find it unnecessary to discuss other contentions. Reversed. [ Footnote 1 ] "Sec. 2. (a) The Congress hereby finds that the existence, in industries engaged in commerce or in the production of goods for commerce, of labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general wellbeing of workers (1) causes commerce and the channels and instrumentalities of commerce to be used to spread and perpetuate such labor conditions among the workers of the several States; (2) burdens commerce and the free flow of goods in commerce; (3) constitutes an unfair method of competition in commerce; (4) leads to labor disputes burdening and obstructing commerce and the free flow of goods in commerce, and (5) interferes with the orderly and fair marketing of goods in commerce." Section 3(b) defines "commerce" as "trade, commerce, transportation, transmission, or communication among the several States or from any State to any place outside thereof." [ Footnote 2 ] Cf. Administrator's Opinion, Interpretative Bulletin No. 5, 1940 Wage and Hour Manual, p. 131 et seq. [ Footnote 3 ] It may prohibit wholly intrastate activities which, if permitted, would result in restraint of interstate commerce. Coronado Coal Co. v. United Mine Workers, 268 U. S. 295 , 268 U. S. 310 ; Local 167 v. United States, 291 U. S. 293 , 291 U. S. 297 . It may regulate the activities of a local grain exchange shown to have an injurious effect on interstate commerce. Chicago Board of Trade v. Olsen, 262 U. S. 1 . It may regulate intrastate rates of interstate carriers where the effect of the rates is to burden interstate commerce. Houston, E. & W. Texas Ry. Co. v. United States, 234 U. S. 342 ; Railroad Commission of Wisconsin v. Chicago, B. & Q. R. Co., 257 U. S. 563 ; United States v. Louisiana, 290 U. S. 70 , 290 U. S. 74 ; Florida v. United States, 292 U. S. 1 . It may compel the adoption of safety appliances on rolling stock moving intrastate because of the relation to and effect of such appliances upon interstate traffic moving over the same railroad. Southern Ry. Co. v. United States, 222 U. S. 20 . It may prescribe maximum hours for employees engaged in intrastate activity connected with the movement of any train, such as train dispatchers and telegraphers. Baltimore & Ohio R. Co. v. Interstate Commerce Comm'n, 221 U. S. 612 , 221 U. S. 619 .

In United States v. Darby, the Supreme Court upheld the constitutionality of the Fair Labor Standards Act of 1938, which set minimum wages and maximum hours for employees engaged in producing goods for interstate commerce. The Court ruled that Congress has the power to regulate interstate commerce, including prohibiting the shipment of goods produced under substandard labor conditions. This decision overruled Hammer v. Dagenhart and limited Carter v. Carter Coal Co., asserting that Congress can exclude articles from interstate commerce if their use within states is deemed injurious to public health, morals, or welfare. The Court found the Act sufficiently definite, warning employers who violate wage and hour provisions that they may face criminal penalties. The case established Congress's broad authority to regulate activities that affect interstate commerce, even if those activities are purely intrastate.

Powers of Congress

Katzenbach v. McClung

https://supreme.justia.com/cases/federal/us/379/294/

U.S. Supreme Court Katzenbach v. McClung, 379 U.S. 294 (1964) Katzenbach v. McClung No. 543 Argued October 5, 1964 Decided December 14, 1964 379 U.S. 294 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA Syllabus Appellees, whose restaurant in Birmingham, Alabama, caters to local white customers with take-out service for Negroes, serving food a substantial portion of which has moved in interstate commerce, sued to enjoin appellants from enforcing against their restaurant and others Title II of the Civil Rights Act of 1964, which they claimed was unconstitutional. A three-judge District Court granted an injunction, holding that there was no demonstrable connection between food purchased in interstate commerce and sold in a restaurant and Congress' conclusion that discrimination in the restaurant would affect commerce so as to warrant regulation of local activities to protect interstate commerce. Held: 1. Since interference with governmental action has occurred and the constitutionality of Title II is before the Court in a companion case, the Court reaches the merits of this case by considering the complaint as an application for declaratory judgment, instead of denying relief for want of equity jurisdiction as it would ordinarily do on the ground that appellees should have waited to pursue the statutory procedures for adjudication of their rights. Pp. 379 U. S. 295 -296. 2. Congress acted within its power to protect and foster commerce in extending coverage of Title II to restaurants serving food a substantial portion of which has moved in interstate commerce, since it had ample basis to conclude that racial discrimination by such restaurants burdened interstate trade. Pp. 383 U. S. 300 -305. 233 F. Supp. 815 , reversed Page 379 U. S. 295 MR. JUSTICE CLARK delivered the opinion of the Court. This case was argued with No. 515, Heart of Atlanta Motel v. United States, decided this date, ante, p. 383 U. S. 241 , in which we upheld the constitutional validity of Title II of the Civil Rights Act of 1964 against an attack by hotels, motels, and like establishments. This complaint for injunctive relief against appellants attacks the constitutionality of the Act as applied to a restaurant. The case was heard by a three-judge United States District Court and an injunction was issued restraining appellants from enforcing the Act against the restaurant. 233 F. Supp. 815 . On direct appeal, 28 U.S.C. §§ 1252, 1253 (1958 ed.), we noted probable jurisdiction. 379 U. S. 802 . We now reverse the judgment. 1. The Motion to Dismiss The appellants moved in the District Court to dismiss the complaint for want of equity jurisdiction and that claim is pressed here. The grounds are that the Act authorizes only preventive relief; that there has been no threat of enforcement against the appellees and that they have alleged no irreparable injury. It is true that ordinarily equity will not interfere in such cases. However, we may and do consider this complaint as an application for a declaratory judgment under 28 U.S.C. §§ 2201 and 2202 (1958 ed.). In this case, of course, direct appeal to this Court would still lie under 28 U.S.C. § 1252 (1958 Page 379 U. S. 296 ed.). But even though Rule 57 of the Federal Rules of Civil Procedure permits declaratory relief although another adequate remedy exists, it should not be granted where a special statutory proceeding has been provided. See Notes on Rule 57 of Advisory Committee on Rules, 28 U.S.C.App. 5178 (1958 ed.). Title II provides for such a statutory proceeding for the determination of rights and duties arising thereunder, §§ 204-207, and courts should, therefore, ordinarily refrain from exercising their jurisdiction in such cases. The present case, however, is in a unique position. The interference with governmental action has occurred and the constitutional question is before us in the companion case of Heart of Atlanta Motel as well as in this case. It is important that a decision on the constitutionality of the Act as applied in these cases be announced as quickly as possible. For these reasons, we have concluded, with the above caveat, that the denial of discretionary declaratory relief is not required here. 2. The Facts Ollie's Barbecue is a family owned restaurant in Birmingham, Alabama, specializing in barbecued meats and homemade pies, with a seating capacity of 220 customers. It is located on a state highway 11 blocks from an interstate one and a somewhat greater distance from railroad and bus stations. The restaurant caters to a family and white-collar trade with a take-out service for Negroes. It employs 36 persons, two-thirds of whom are Negroes. In the 12 months preceding the passage of the Act, the restaurant purchased locally approximately $150,000 worth of food, $69,683 or 46% of which was meat that it bought from a local supplier who had procured it from outside the State. The District Court expressly found that a substantial portion of the food served in the restaurant Page 379 U. S. 297 had moved in interstate commerce. The restaurant has refused to serve Negroes in its dining accommodations since its original opening in 1927, and, since July 2, 1964, it has been operating in violation of the Act. The court below concluded that, if it were required to serve Negroes, it would lose a substantial amount of business. On the merits, the District Court held that the Act could not be applied under the Fourteenth Amendment because it was conceded that the State of Alabama was not involved in the refusal of the restaurant to serve Negroes. It was also admitted that the Thirteenth Amendment was authority neither for validating nor for invalidating the Act. As to the Commerce Clause, the court found that it was "an express grant of power to Congress to regulate interstate commerce, which consists of the movement of persons, goods or information from one state to another," and it found that the clause was also a grant of power "to regulate intrastate activities, but only to the extent that action on its part is necessary or appropriate to the effective execution of its expressly granted power to regulate interstate commerce." There must be, it said, a close and substantial relation between local activities and interstate commerce which requires control of the former in the protection of the latter. The court concluded, however, that the Congress, rather than finding facts sufficient to meet this rule, had legislated a conclusive presumption that a restaurant affects interstate commerce if it serves or offers to serve interstate travelers or if a substantial portion of the food which it serves has moved in commerce. This, the court held, it could not do, because there was no demonstrable connection between food purchased in interstate commerce and sold in a restaurant and the conclusion of Congress that discrimination in the restaurant would affect that commerce. Page 379 U. S. 298 The basic holding in Heart of Atlanta Motel answers many of the contentions made by the appellees. [ Footnote 1 ] There, we outlined the overall purpose and operational plan of Title II, and found it a valid exercise of the power to regulate interstate commerce insofar as it requires hotels and motels to serve transients without regard to their race or color. In this case, we consider its application to restaurants which serve food a substantial portion of which has moved in commerce. 3. The Act As Applied Section 201(a) of Title II commands that all persons shall be entitled to the full and equal enjoyment of the goods and services of any place of public accommodation without discrimination or segregation on the ground of race, color, religion, or national origin, and § 201(b) defines establishments as places of public accommodation if their operations affect commerce or segregation by them is supported by state action. Sections 201(b)(2) and (c) place any "restaurant . . . principally engaged in selling food for consumption on the premises" under the Act "if . . . it serves or offers to serve interstate travelers or a substantial portion of the food which it serves . . . has moved in commerce." Ollie's Barbecue admits that it is covered by these provisions of the Act. The Government makes no contention that the discrimination at the restaurant was supported by the State of Alabama. There is no claim that interstate travelers frequented the restaurant. The sole question, therefore, narrows down to whether Title II, as applied to a restaurant annually receiving about $70,000 worth of food which has moved in commerce, is a valid exercise of the power of Congress. The Government Page 379 U. S. 299 has contended that Congress had ample basis upon which to find that racial discrimination at restaurants which receive from out of state a substantial portion of the food served does, in fact, impose commercial burdens of national magnitude upon interstate commerce. The appellees' major argument is directed to this premise. They urge that no such basis existed. It is to that question that we now turn. 4. The Congressional Hearings As we noted in Heart of Atlanta Motel, both Houses of Congress conducted prolonged hearings on the Act. And, as we said there, while no formal findings were made, which, of course, are not necessary, it is well that we make mention of the testimony at these hearings the better to understand the problem before Congress and determine whether the Act is a reasonable and appropriate means toward its solution. The record is replete with testimony of the burdens placed on interstate commerce by racial discrimination in restaurants. A comparison of per capita spending by Negroes in restaurants, theaters, and like establishments indicated less spending, after discounting income differences, in areas where discrimination is widely practiced. This condition, which was especially aggravated in the South, was attributed in the testimony of the Under Secretary of Commerce to racial segregation. See Hearings before the Senate Committee on Commerce on S. 1732, 88th Cong., 1st Sess., 695. This diminutive spending springing from a refusal to serve Negroes and their total loss as customers has, regardless of the absence of direct evidence, a close connection to interstate commerce. The fewer customers a restaurant enjoys, the less food it sells, and consequently the less it buys. S.Rep. No. 872, 88th Cong., 2d Sess., at 19; Senate Commerce Committee Hearings at 207. In addition, the Attorney General testified that this type of discrimination imposed "an artificial restriction on the market," and interfered Page 379 U. S. 300 with the flow of merchandise. Id. at 18-19; also, on this point, see testimony of Senator Magnuson, 110 Cong.Rec. 7402-7403. In addition, there were many references to discriminatory situations causing wide unrest and having a depressant effect on general business conditions in the respective communities. See, e.g., Senate Commerce Committee Hearings at 623-630, 695-700, 1384-1385. Moreover, there was an impressive array of testimony that discrimination in restaurants had a direct and highly restrictive effect upon interstate travel by Negroes. This resulted, it was said, because discriminatory practices prevent Negroes from buying prepared food served on the premises while on a trip, except in isolated and unkempt restaurants and under most unsatisfactory and often unpleasant conditions. This obviously discourages travel and obstructs interstate commerce, for one can hardly travel without eating. Likewise, it was said that discrimination deterred professional as well as skilled people from moving into areas where such practices occurred, and thereby caused industry to be reluctant to establish there. S.Rep. No. 872, supra, at 18-19. We believe that this testimony afforded ample basis for the conclusion that established restaurants in such areas sold less interstate goods because of the discrimination, that interstate travel was obstructed directly by it, that business in general suffered, and that many new businesses refrained from establishing there as a result of it. Hence, the District Court was in error in concluding that there was no connection between discrimination and the movement of interstate commerce. The court's conclusion that such a connection is outside "common experience" flies in the face of stubborn fact. It goes without saying that, viewed in isolation, the volume of food purchased by Ollie's Barbecue from sources supplied from out of state was insignificant when Page 379 U. S. 301 compared with the total foodstuffs moving in commerce. But, as our late Brother Jackson said for the Court in Wickard v. Filburn, 317 U. S. 111 (1942): "That appellee's own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial." At 317 U. S. 127 -128. We noted in Heart of Atlanta Motel that a number of witnesses attested to the fact that racial discrimination was not merely a state or regional problem, but was one of nationwide scope. Against this background, we must conclude that, while the focus of the legislation was on the individual restaurant's relation to interstate commerce, Congress appropriately considered the importance of that connection with the knowledge that the discrimination was but "representative of many others throughout the country, the total incidence of which, if left unchecked, may well become far-reaching in its harm to commerce." Polish Alliance v. Labor Board, 322 U. S. 643 , 322 U. S. 648 (1944). With this situation spreading as the record shows, Congress was not required to await the total dislocation of commerce. As was said in Consolidated Edison Co. v. Labor Board, 305 U. S. 197 (1938): "But it cannot be maintained that the exertion of federal power must await the disruption of that commerce. Congress was entitled to provide reasonable preventive measures and that was the object of the National Labor Relations Act." At 305 U. S. 222 . 5. The Power of Congress to Regulate Local Activities Article I, § 8, cl. 3, confers upon Congress the power "[t]o regulate Commerce . . . among the several States" and Clause 18 of the same Article grants it the power Page 379 U. S. 302 "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers. . . ." This grant, as we have pointed out in Heart of Atlanta Motel, "extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce." United States v. Wrightwood Dairy Co., 315 U. S. 110 , 315 U. S. 119 (1942). Much is said about a restaurant business being local, but, "even if appellee's activity be local, and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce. . . ." Wickard v. Filburn, supra, at 317 U. S. 125 . The activities that are beyond the reach of Congress are "those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government." Gibbons v. Ogden , 9 Wheat. 1, 22 U. S. 195 (1824). This rule is as good today as it was when Chief Justice Marshall laid it down almost a century and a half ago. This Court has held time and again that this power extends to activities of retail establishments, including restaurants, which directly or indirectly burden or obstruct interstate commerce. We have detailed the cases in Heart of Atlanta Motel, and will not repeat them here. Nor are the cases holding that interstate commerce ends when goods come to rest in the State of destination apposite here. That line of cases has been applied with reference to state taxation or regulation, but not in the field of federal regulation. The appellees contend that Congress has arbitrarily created a conclusive presumption that all restaurants Page 379 U. S. 303 meeting the criteria set out in the Act "affect commerce." Stated another way, they object to the omission of a provision for a case-by-case determination -- judicial or administrative -- that racial discrimination in a particular restaurant affects commerce. But Congress' action in framing this Act was not unprecedented. In United States v. Darby, 312 U. S. 100 (1941), this Court held constitutional the Fair Labor Standards Act of 1938. [ Footnote 2 ] There, Congress determined that the payment of substandard wages to employees engaged in the production of goods for commerce, while not itself commerce, so inhibited it as to be subject to federal regulation. The appellees in that case argued, as do the appellees here, that the Act was invalid because it included no provision for an independent inquiry regarding the effect on commerce of substandard wages in a particular business. (Brief for appellees, pp. 76-77, United States v. Darby, 312 U. S. 100 .) But the Court rejected the argument, observing that: "[S]ometimes Congress itself has said that a particular activity affects the commerce, as it did in the present Act, the Safety Appliance Act, and the Railway Labor Act. In passing on the validity of legislation of the class last mentioned the only function of courts is to determine whether the particular activity regulated or prohibited is within the reach of the federal power." At 312 U. S. 120 -121. Here, as there, Congress has determined for itself that refusals of service to Negroes have imposed burdens both upon the interstate flow of food and upon the movement of products generally. Of course, the mere fact that Congress has said when particular activity shall be deemed to affect commerce does not preclude further examination by this Court. But where we find that the legislators, in Page 379 U. S. 304 light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, oar investigation is at an end. The only remaining question -- one answered in the affirmative by the court below -- is whether the particular restaurant either serves or offers to serve interstate travelers or serves food a substantial portion of which has moved in interstate commerce. The appellees urge that Congress, in passing the Fair Labor Standards Act and the National Labor Relations Act, [ Footnote 3 ] made specific findings which were embodied in those statutes. Here, of course, Congress has included no formal findings. But their absence is not fatal to the validity of the statute, see United States v. Carolene Products Co., 304 U. S. 144 , 304 U. S. 152 (1938), for the evidence presented at the hearings fully indicated the nature and effect of the burdens on commerce which Congress meant to alleviate. Confronted as we are with the facts laid before Congress, we must conclude that it had a rational basis for finding that racial discrimination in restaurants had a direct and adverse effect on the free flow of interstate commerce. Insofar as the sections of the Act here relevant are concerned, §§ 201(b)(2) and (c), Congress prohibited discrimination only in those establishments having a close tie to interstate commerce, i.e., those, like the McClungs', serving food that has come from out of the State. We think, in so doing, that Congress acted well within its power to protect and foster commerce in extending the coverage of Title II only to those restaurants offering to serve interstate travelers or serving food, a substantial portion of which has moved in interstate commerce. The absence of direct evidence connecting discriminatory restaurant service with the flow of interstate food, Page 379 U. S. 305 a factor on which the appellees place much reliance, is not, given the evidence as to the effect of such practices on other aspects of commerce, a crucial matter. The power of Congress in this field is broad and sweeping; where it keeps within its sphere and violates no express constitutional limitation it has been the rule of this Court, going back almost to the founding days of the Republic, not to interfere. The Civil Rights Act of 1964, as here applied, we find to be plainly appropriate in the resolution of what the Congress found to be a national commercial problem of the first magnitude. We find it in no violation of any express limitations of the Constitution and we therefore declare it valid. The judgment is therefore Reversed. [For concurring opinion of MR. JUSTICE BLACK, see ante, p. 383 U. S. 268 .] [For concurring opinion of MR. JUSTICE Douglas, see ante, p. 383 U. S. 279 .] [For concurring opinion of MR. JUSTICE GOLDBERG, see ante, p. 383 U. S. 291 .] [ Footnote 1 ] That decision disposes of the challenges that the appellees base on the Fifth, Ninth, Tenth, and Thirteenth Amendments, and on the Civil Rights Case, 109 U. S. 3 (1883). [ Footnote 2 ] 52 Stat. 1060, 29 U.S.C. § 201 et seq. (1958 ed.). [ Footnote 3 ] 49 Stat. 449, as amended, 29 U.S.C. § 151 et seq. (1958 ed.).

In *Katzenbach v. McClung*, the Supreme Court ruled that Congress acted within its constitutional power to regulate interstate commerce by extending the Civil Rights Act of 1964 to cover restaurants serving food that has traveled across state lines, even if there is no direct evidence linking discriminatory restaurant service to the flow of interstate food. The Court found that Congress had a rational basis for concluding that racial discrimination in restaurants burdened interstate trade and upheld the Act's validity.

Powers of Congress

Wickard v. Filburn

https://supreme.justia.com/cases/federal/us/317/111/

U.S. Supreme Court Wickard v. Filburn, 317 U.S. 111 (1942) Wickard v. Filburn No. 59 Argued May 4, 1942 Reargued October 13, 1942 Decided November 9, 1942 317 U.S. 111 APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO Syllabus 1. Pending a referendum vote of farmers upon wheat quotas proclaimed by the Secretary of Agriculture under the Agricultural Adjustment Act of 1938, the Secretary made a radio address in which he advocated approval of the quotas and called attention to the recent enactment by Congress of the amendatory act, later approved Page 317 U. S. 112 May 26, 1941. The speech mentioned the provisions of the amendment for increase of loans on wheat, but not the fact that it also increased the penalty on excess production, and added that, because of the uncertain world situation, extra acreages of wheat had been deliberately planted, and "farmers should not be penalized because they have provided insurance against shortages of food." There was no evidence that the subsequent referendum vote approving the quotas was influenced by the speech. Held, that, in any event, and even assuming that the penalties referred to in the speech were those prescribed by the Act, the validity of the vote was not thereby affected. P. 317 U. S. 117 . 2. The wheat marketing quota and attendant penalty provisions of the Agricultural Adjustment Act of 1938, as amended by the Act of May 26, 1941, when applied to wheat not intended in any part for commerce but wholly for consumption on the farm, are within the commerce power of Congress. P. 317 U. S. 118 . 3. The effect of the Act is to restrict the amount of wheat which may be produced for market and the extent as well to which one may forestall resort to the market by producing for his own needs. P. 317 U. S. 127 . 4. That the production of wheat for consumption on the farm may be trivial in the particular case is not enough to remove the grower from the scope of federal regulation where his contribution, taken with that of many others similarly situated, is far from trivial. P. 317 U. S. 127 . 5. The power to regulate interstate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices. P. 317 U. S. 128 . 6. A factor of such volume and variability as wheat grown for home consumption would have a substantial influence on price conditions on the wheat market, both because such wheat, with rising prices, may flow into the market and check price increases and, because, though never marketed, it supplies the need of the grower which would otherwise be satisfied by his purchases in the open market. P. 317 U. S. 128 . 7. The amendatory Act of May 26, 1941, which increased the penalty upon "farm marketing excess" and included in that category wheat which previously had not been subject to penalty, held not invalid as retroactive legislation repugnant to the Fifth Amendment when applied to wheat planted and growing before it was enacted, but harvested and threshed thereafter. P. 317 U. S. 131 . 43 F. Supp. 1017 , reversed. Page 317 U. S. 113 APPEAL from a decree of the District Court of three judges which permanently enjoined the Secretary of Agriculture and other appellants from enforcing certain penalties against the appellee, a farmer, under the Agricultural Adjustment Act. MR. JUSTICE JACKSON delivered the opinion of the Court. The appellee filed his complaint against the Secretary of Agriculture of the United States, three members of the County Agricultural Conservation Committee for Montgomery County, Ohio, and a member of the State Agricultural Conservation Committee for Ohio. He sought to enjoin enforcement against himself of the marketing penalty imposed by the amendment of May 26, 1941, [ Footnote 1 ] to the Agricultural Adjustment Act of 1938, [ Footnote 2 ] upon that part of his 1941 wheat crop which was available for marketing in excess of the marketing quota established for his farm. He also sought a declaratory judgment that the wheat marketing quota provisions of the Act, as amended and applicable to him, were unconstitutional because not sustainable Page 317 U. S. 114 under the Commerce Clause or consistent with the Due Process Clause of the Fifth Amendment. The Secretary moved to dismiss the action against him for improper venue, but later waived his objection and filed an answer. The other appellants moved to dismiss on the ground that they had no power or authority to enforce the wheat marketing quota provisions of the Act, and, after their motion was denied, they answered, reserving exceptions to the ruling on their motion to dismiss. [ Footnote 3 ] The case was submitted for decision on the pleadings and upon a stipulation of facts. The appellee for many years past has owned and operated a small farm in Montgomery County, Ohio, maintaining a herd of dairy cattle, selling milk, raising poultry, and selling poultry and eggs. It has been his practice to raise a small acreage of winter wheat, sown in the Fall and harvested in the following July; to sell a portion of the crop; to feed part to poultry and livestock on the farm, some of which is sold; to use some in making flour for home consumption, and to keep the rest for the following seeding. The intended disposition of the crop here involved has not been expressly stated. In July of 1940, pursuant to the Agricultural Adjustment Act of 1938, as then amended, there were established for the appellee's 1941 crop a wheat acreage allotment of 11.1 acres and a normal yield of 20.1 bushels of wheat an acre. He was given notice of such allotment in July of 1940, before the Fall planting of his 1941 crop of wheat, and again in July of 1941, before it was harvested. He sowed, however, 23 acres, and harvested from his 11.9 acres of excess acreage 239 bushels, which, under the terms of the Act as amended on May 26, 1941, constituted farm Page 317 U. S. 115 marketing excess, subject to a penalty of 49 cents a bushel, or $117.11 in all. The appellee has not paid the penalty, and he has not postponed or avoided it by storing the excess under regulations of the Secretary of Agriculture, or by delivering it up to the Secretary. The Committee, therefore, refused him a marketing card, which was, under the terms of Regulations promulgated by the Secretary, necessary to protect a buyer from liability to the penalty and upon its protecting lien. [ Footnote 4 ] The general scheme of the Agricultural Adjustment Act of 1938 as related to wheat is to control the volume moving in interstate and foreign commerce in order to avoid surpluses and shortages and the consequent abnormally low or high wheat prices and obstructions to commerce. [ Footnote 5 ] Within prescribed limits and by prescribed standards, the Secretary of Agriculture is directed to ascertain and proclaim each year a national acreage allotment for the next crop of wheat, which is then apportioned to the states and their counties, and is eventually broken up into allotments for individual farms. [ Footnote 6 ] Loans and payments to wheat farmers are authorized in stated circumstances. [ Footnote 7 ] The Act further provides that, whenever it appears that the total supply of wheat as of the beginning of any marketing year, beginning July 1, will exceed a normal year's domestic consumption and export by more than 35 percent, the Secretary shall so proclaim not later than May 15 prior to the beginning of such marketing year, and that, during the marketing year, a compulsory national marketing quota shall be in effect with respect to the marketing Page 317 U. S. 116 of wheat. [ Footnote 8 ] Between the issuance of the proclamation and June 10, the Secretary must, however, conduct a referendum of farmers who will be subject to the quota, to determine whether they favor or oppose it; and, if more than one-third of the farmers voting in the referendum do oppose, the Secretary must, prior to the effective date of the quota, by proclamation suspend its operation. [ Footnote 9 ] On May 19, 1941, the Secretary of Agriculture made a radio address to the wheat farmers of the United States in which he advocated approval of the quotas and called attention to the pendency of the amendment of May 26, 1941, which had at the time been sent by Congress to the White House, and pointed out its provision for an increase in the loans on wheat to 85 percent of parity. He made no mention of the fact that it also increased the penalty from 15 cents a bushel to one-half of the parity loan rate of about 98 cents, but stated that, "Because of the uncertain world situation, we deliberately planted several million extra acres of wheat. . . . Farmers should not be penalized because they have provided insurance against shortages of food." Pursuant to the Act, the referendum of wheat growers was held on May 31, 1941. According to the required published statement of the Secretary of Agriculture, 81 percent of those voting favored the marketing quota, with 19 percent opposed. The court below held, with one judge dissenting, that the speech of the Secretary invalidated the referendum, and that the amendment of May 26, 1941, "insofar as it increased the penalty for the farm marketing excess over the fifteen cents per bushel prevailing at the time of planting and subjected the entire crop to a lien for the payment thereof," should not be applied to the appellee because, Page 317 U. S. 117 as so applied, it was retroactive, and in violation of the Fifth Amendment, and, alternatively, because the equities of the case so required. 43 F. Supp. 1017 . Its Judgment permanently enjoined appellants from collecting a marketing penalty of more than 15 cents a bushel on the farm marketing excess of appellee's 1941 wheat crop, from subjecting appellee's entire 1941 crop to a lien for the payment of the penalty, and from collecting a 15-cent penalty except in accordance with the provisions of § 339 of the Act as that section stood prior to the amendment of May 26, 1941. [ Footnote 10 ] The Secretary and his codefendants have appealed. [ Footnote 11 ] I The holding of the court below that the Secretary's speech invalidated the referendum is manifest error. Read as a whole and in the context of world events that constituted his principal theme, the penalties of which he spoke were more likely those in the form of ruinously low prices resulting from the excess supply, rather than the penalties prescribed in the Act. But, under any interpretation, the speech cannot be given the effect of invalidating the referendum. There is no evidence that any voter put upon the Secretary's words the interpretation that impressed the court below or was in any way misled. There is no showing that the speech influenced the outcome of the referendum. The record, in fact, does not show that any, and does not suggest a basis for even a guess as to how many, of the voting farmers dropped work to listen to "Wheat Farmers and the Battle for Page 317 U. S. 118 Democracy" at 11:30 in the morning of May 19th, which was a busy hour in one of the busiest of seasons. If this discourse intended reference to this legislation at all, it was, of course, a public Act, whose terms were readily available, and the speech did not purport to be an exposition of its provisions. To hold that a speech by a Cabinet officer, which failed to meet judicial ideals of clarity, precision, and exhaustiveness, may defeat a policy embodied in an Act of Congress would invest communication between administrators and the people with perils heretofore unsuspected. Moreover, we should have to conclude that such an officer is able to do by accident what he has no power to do by design. Appellee's complaint, insofar as it is based on this speech, is frivolous, and the injunction, insofar as it rests on this ground, is unwarranted. United States v. Rock Royal Cooperative, 307 U. S. 533 . II It is urged that, under the Commerce Clause of the Constitution, Article I, § 8, clause 3, Congress does not possess the power it has in this instance sought to exercise. The question would merit little consideration, since our decision in United States v. Darby, 312 U. S. 100 , [ Footnote 12 ] sustaining the federal power to regulate production of goods for commerce, except for the fact that this Act extends federal regulation to production not intended in any part for commerce, but wholly for consumption on the farm. The Act includes a definition of "market" and its derivatives, so that, as related to wheat, in addition to its conventional meaning, it also means to dispose of "by feeding (in any Page 317 U. S. 119 form) to poultry or livestock which, or the products of which, are sold, bartered, or exchanged, or to be so disposed of. [ Footnote 13 ]" Hence, marketing quotas not only embrace all that may be sold without penalty, but also what may be consumed on the premises. Wheat produced on excess acreage is designated as "available for marketing" as so defined, and the penalty is imposed thereon. [ Footnote 14 ] Penalties do not depend upon whether any part of the wheat, either within or without the quota, is sold or intended to be sold. The sum of this is that the Federal Government fixes a quota including all that the farmer may harvest for sale or for his own farm needs, and declares that wheat produced on excess acreage may neither be disposed of nor used except upon payment of the penalty, or except it is stored as required by the Act or delivered to the Secretary of Agriculture. Appellee says that this is a regulation of production and consumption of wheat. Such activities are, he urges, beyond the reach of Congressional power under the Commerce Clause, since they are local in character, and their effects upon interstate commerce are, at most, "indirect." In answer, the Government argues that the statute regulates neither production nor consumption, but only marketing, and, in the alternative, that, if the Act does go beyond the regulation of marketing, it is sustainable as a "necessary and proper" [ Footnote 15 ] implementation of the power of Congress over interstate commerce. The Government's concern lest the Act be held to be a regulation of production or consumption, rather than of marketing, is attributable to a few dicta and decisions of this Court which might be understood to lay it down that activities such as "production," "manufacturing," and Page 317 U. S. 120 "mining" are strictly "local" and, except in special circumstances which are not present here, cannot be regulated under the commerce power because their effects upon interstate commerce are, as matter of law, only "indirect." [ Footnote 16 ] Even today, when this power has been held to have great latitude, there is no decision of this Court that such activities may be regulated where no part of the product is intended for interstate commerce or intermingled with the subjects thereof. We believe that a review of the course of decision under the Commerce Clause will make plain, however, that questions of the power of Congress are not to be decided by reference to any formula which would give controlling force to nomenclature such as "production" and "indirect" and foreclose consideration of the actual effects of the activity in question upon interstate commerce. At the beginning, Chief Justice Marshall described the federal commerce power with a breadth never yet exceeded. Gibbons v. Ogden , 9 Wheat. 1, 22 U. S. 194 -195. He made emphatic the embracing and penetrating nature of this power by warning that effective restraints on its exercise must proceed from political, rather than from judicial, processes. Id. at 22 U. S. 197 . Page 317 U. S. 121 For nearly a century, however, decisions of this Court under the Commerce Clause dealt rarely with questions of what Congress might do in the exercise of its granted power under the Clause, and almost entirely with the permissibility of state activity which it was claimed discriminated against or burdened interstate commerce. During this period, there was perhaps little occasion for the affirmative exercise of the commerce power, and the influence of the Clause on American life and law was a negative one, resulting almost wholly from its operation as a restraint upon the powers of the states. In discussion and decision, the point of reference, instead of being what was "necessary and proper" to the exercise by Congress of its granted power, was often some concept of sovereignty thought to be implicit in the status of statehood. Certain activities such as "production," "manufacturing," and "mining" were occasionally said to be within the province of state governments and beyond the power of Congress under the Commerce Clause. [ Footnote 17 ] It was not until 1887, with the enactment of the Interstate Commerce Act, [ Footnote 18 ] that the interstate commerce power began to exert positive influence in American law and life. This first important federal resort to the commerce power was followed in 1890 by the Sherman Anti-Trust Act [ Footnote 19 ] and, thereafter, mainly after 1903, by many others. These statutes ushered in new phases of adjudication, which required the Court to approach the interpretation of the Commerce Clause in the light of an actual exercise by Congress of its power thereunder. When it first dealt with this new legislation, the Court adhered to its earlier pronouncements, and allowed but Page 317 U. S. 122 little scope to the power of Congress. United States v. Knight Co., 156 U. S. 1 . [ Footnote 20 ] These earlier pronouncements also played an important part in several.of the five cases in which this Court later held that Acts of Congress under the Commerce Clause were in excess of its power. [ Footnote 21 ] Even while important opinions in this line of restrictive authority were being written, however, other cases called forth broader interpretations of the Commerce Clause destined to supersede the earlier ones, and to bring about a return to the principles first enunciated by Chief Justice Marshall in Gibbons v. Ogden, supra. Not long after the decision of United States v. Knight Co., supra, Mr. Justice Holmes, in sustaining the exercise of national power over intrastate activity, stated for the Court that "commerce among the States is not a technical legal conception, but a practical one, drawn from the course of business." Swift & Co. v. United States, 196 U. S. 375 , 196 U. S. 398 . It was soon demonstrated that the effects of many kinds of intrastate activity upon interstate commerce were such as to make them a proper subject of federal regulation. [ Footnote 22 ] In some cases sustaining the exercise of federal power over intrastate matters, the term "direct" Page 317 U. S. 123 was used for the purpose of stating, rather than of reaching, a result; [ Footnote 23 ] in others, it was treated as synonymous with "substantial" or "material"; [ Footnote 24 ] and in others it was not used at all. [ Footnote 25 ] Of late, its use has been abandoned in cases dealing with questions of federal power under the Commerce Clause. In the Shreveport Rate Cases, 234 U. S. 342 , the Court held that railroad rates of an admittedly intrastate character and fixed by authority of the state might, nevertheless, be revised by the Federal Government because of the economic effects which they had upon interstate commerce. The opinion of Mr. Justice Hughes found federal intervention constitutionally authorized because of "matters having such a close and substantial relation to interstate traffic that the control is essential or appropriate to the security of that traffic, to the efficiency of the interstate service, and to the maintenance of conditions under which interstate commerce may be conducted upon fair terms and without molestation or hindrance." Id. at 234 U. S. 351 . The Court's recognition of the relevance of the economic effects in the application of the Commerce Clause, exemplified Page 317 U. S. 124 by this statement, has made the mechanical application of legal formulas no longer feasible. Once an economic measure of the reach of the power granted to Congress in the Commerce Clause is accepted, questions of federal power cannot be decided simply by finding the activity in question to be "production," nor can consideration of its economic effects be foreclosed by calling them "indirect." The present Chief Justice has said in summary of the present state of the law: "The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce. . . . The power of Congress over interstate commerce is plenary and complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. . . . It follows that no form of state activity can constitutionally thwart the regulatory power granted by the commerce clause to Congress. Hence, the reach of that power extends to those intrastate activities which in a substantial way interfere with or obstruct the exercise of the granted power." United States v. Wrightwood Dairy Co., 315 U. S. 110 , 315 U. S. 119 . Whether the subject of the regulation in question was "production," "consumption," or "marketing" is, therefore, not material for purposes of deciding the question of federal power before us. That an activity is of local character may help in a doubtful case to determine whether Congress intended to reach it. [ Footnote 26 ] The same consideration might help in determining whether, in the absence of Congressional action, it would be permissible for the state Page 317 U. S. 125 to exert its power on the subject matter, even though, in so doing, it to some degree affected interstate commerce. But even if appellee's activity be local, and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as "direct" or "indirect." The parties have stipulated a summary of the economics of the wheat industry. Commerce among the states in wheat is large and important. Although wheat is raised in every state but one, production in most states is not equal to consumption. Sixteen states, on average, have had a surplus of wheat above their own requirements for feed, seed, and food. Thirty-two states and the District of Columbia, where production has been below consumption, have looked to these surplus-producing states for their supply, as well as for wheat for export and carry-over. The wheat industry has been a problem industry for some years. Largely as a result of increased foreign production and import restrictions, annual exports of wheat and flour from the United States during the ten-year period ending in 1940 averaged less than 10 percent of total production, while, during the 1920's, they averaged more than 25 percent. The decline in the export trade has left a large surplus in production which, in connection with an abnormally large supply of wheat and other grains in recent years, caused congestion in a number of markets; tied up railroad cars, and caused elevators in some instances to turn away grains, and railroads to institute embargoes to prevent further congestion. Many countries, both importing and exporting, have sought to modify the impact of the world market conditions on their own economy. Importing countries have taken measures to stimulate production and self-sufficiency. The four large exporting countries of Argentina, Page 317 U. S. 126 Australia, Canada, and the United States have all undertaken various programs for the relief of growers. Such measures have been designed, in part at least, to protect the domestic price received by producers. Such plans have generally evolved towards control by the central government. [ Footnote 27 ] In the absence of regulation, the price of wheat in the United States would be much affected by world conditions. During 1941, producers who cooperated with the Agricultural Adjustment program received an average price on the farm of about $1.16 a bushel, as compared with the world market price of 40 cents a bushel. Differences in farming conditions, however, make these benefits mean different things to different wheat growers. There are several large areas of specialization in wheat, and the concentration on this crop reaches 27 percent of the crop land, and the average harvest runs as high as Page 317 U. S. 127 155 acres. Except for some use of wheat as stock feed and for seed, the practice is to sell the crop for cash. Wheat from such areas constitutes the bulk of the interstate commerce therein. On the other hand, in some New England states, less than one percent of the crop land is devoted to wheat, and the average harvest is less than five acres per farm. In 1940, the average percentage of the total wheat production that was sold in each state, as measured by value ranged from 29 percent thereof in Wisconsin to 90 percent in Washington. Except in regions of large-scale production, wheat is usually grown in rotation with other crops; for a nurse crop for grass seeding, and as a cover crop to prevent soil erosion and leaching. Some is sold, some kept for seed, and a percentage of the total production much larger than in areas of specialization is consumed on the farm and grown for such purpose. Such farmers, while growing some wheat, may even find the balance of their interest on the consumer's side. The effect of consumption of home-grown wheat on interstate commerce is due to the fact that it constitutes the most variable factor in the disappearance of the wheat crop. Consumption on the farm where grown appears to vary in an amount greater than 20 percent of average production. The total amount of wheat consumed as food varies but relatively little, and use as seed is relatively constant. The maintenance by government regulation of a price for wheat undoubtedly can be accomplished as effectively by sustaining or increasing the demand as by limiting the supply. The effect of the statute before us is to restrict the amount which may be produced for market and the extent, as well, to which one may forestall resort to the market by producing to meet his own needs. That appellee's own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the Page 317 U. S. 128 scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial. Labor Board v. Fairblatt, 306 U. S. 601 , 306 U. S. 606 et seq.; United States v. Darby supra at 312 U. S. 123 . It is well established by decisions of this Court that the power to regulate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices. [ Footnote 28 ] One of the primary purposes of the Act in question was to increase the market price of wheat, and, to that end, to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market, and, if induced by rising prices, tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. This record leaves us in no doubt that Congress Page 317 U. S. 129 may properly have considered that wheat consumed on the farm where grown, if wholly outside the scheme of regulation, would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices. It is said, however, that this Act, forcing some farmers into the market to buy what they could provide for themselves, is an unfair promotion of the markets and prices of specializing wheat growers. It is of the essence of regulation that it lays a restraining hand on the self-interest of the regulated, and that advantages from the regulation commonly fall to others. The conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process. [ Footnote 29 ] Such conflicts rarely lend themselves to judicial determination. And with the wisdom, workability, or fairness, of the plan of regulation, we have nothing to do. III The statute is also challenged as a deprivation of property without due process of law contrary to the Fifth Amendment, both because of its regulatory effect on the appellee and because of its alleged retroactive effect. The court below sustained the plea on the ground of forbidden retroactivity, "or, in the alternative, that the equities of the case as shown by the record favor the plaintiff." 43 F. Supp. 1017 , 1019. An Act of Congress is not to be refused application by the courts as arbitrary and capricious and forbidden by the Due Process Clause merely Page 317 U. S. 130 because it is deemed in a particular case to work an inequitable result. Appellee's claim that the Act works a deprivation of due process even apart from its allegedly retroactive effect is not persuasive. Control of total supply, upon which the whole statutory plan is based, depends upon control of individual supply. Appellee's claim is not that his quota represented less than a fair share of the national quota, but that the Fifth Amendment requires that he be free from penalty for planting wheat and disposing of his crop as he sees fit. We do not agree. In its effort to control total supply, the Government gave the farmer a choice which was, of course, designed to encourage cooperation and discourage noncooperation. The farmer who planted within his allotment was, in effect, guaranteed a minimum return much above what his wheat would have brought if sold on a world market basis. Exemption from the applicability of quotas was made in favor of small producers. [ Footnote 30 ] The farmer who produced in excess of his quota might escape penalty by delivering his wheat to the Secretary, or by storing it with the privilege of sale without penalty in a later year to fill out his quota, or irrespective of quotas if they are no longer in effect, and he could obtain a loan of 60 percent of the rate for cooperators, or about 59 cents a bushel, on so much of his wheat as would be subject to penalty if marketed. [ Footnote 31 ] Finally, he might make other disposition of his wheat, subject to the penalty. It is agreed Page 317 U. S. 131 that, as the result of the wheat programs, he is able to market his wheat at a price "far above any world price based on the natural reaction of supply and demand." We can hardly find a denial of due process in these circumstances, particularly since it is even doubtful that appellee's burdens under the program outweigh his benefits. It is hardly lack of due process for the Government to regulate that which it subsidizes. The amendment of May 26, 1941, is said to be invalidly retroactive in two respects: first, in that it increased the penalty from 15 cents to 49 cents a bushel; secondly, in that, by the new definition of "farm marketing excess," it subjected to the penalty wheat which had theretofore been subject to no penalty at all, i.e., wheat not "marketed" as defined in the Act. It is not to be denied that, between seed time and harvest, important changes were made in the Act which affected the desirability and advantage of planting the excess acreage. The law, as it stood when the appellee planted his crop, made the quota for his farm the normal or the actual production of the acreage allotment, whichever was greater, plus any carry-over wheat that he could have marketed without penalty in the preceding marketing year. [ Footnote 32 ] The Act also provided that the farmer who, while quotas were in effect, marketed wheat in excess of the quota for the farm on which it was produced should be subject to a penalty of 15 cents a bushel on the excess so marketed. [ Footnote 33 ] Marketing of wheat was defined as including disposition "by feeding (in any form) to poultry or livestock which, or the products of which, are sold, bartered, or exchanged, . . ." [ Footnote 34 ] The amendment of May 26, Page 317 U. S. 132 1941, made before the appellee had harvested the growing crop, changed the quota and penalty provisions. The quota for each farm became the actual production of acreage planted to wheat, less the normal or the actual production, whichever was smaller, of any excess acreage. [ Footnote 35 ] Wheat in excess of this quota, known as the "farm marketing excess" and declared by the amendment to be "regarded as available for marketing," was subjected to a penalty fixed at 50 percent of the basic loan rate for cooperators, [ Footnote 36 ] or 49 cents, instead of the penalty of 15 cents which obtained at the time of planting. At the same time, there was authorized an increase in the amount of the loan which might be made to noncooperators such as the appellee upon wheat which "would be subject to penalty if marketed" from about 34 cents per bushel to about 59 cents. [ Footnote 37 ] The entire crop was subjected by the amendment to a lien for the payment of the penalty. The penalty provided by the amendment can be postponed or avoided only by storing the farm marketing excess according to regulations promulgated by the Secretary or by delivering it to him without compensation; Page 317 U. S. 133 and the penalty is incurred and becomes due on threshing. [ Footnote 38 ] Thus, the penalty was contingent upon an act which appellee committed not before, but after, the enactment of the statute, and, had he chosen to cut his excess and cure it or feed it as hay, or to reap and feed it with the head and straw together, no penalty would have been demanded. Such manner of consumption is not uncommon. Only when he threshed, and thereby made it a part of the bulk of wheat overhanging the market, did he become subject to penalty. He has made no effort to show that the value of his excess wheat consumed without threshing was less than it would have been had it been threshed while subject to the statutory provisions in force at the time of planting. Concurrently with the increase in the amount of the penalty, Congress authorized a substantial increase in the amount of the loan which might be made to cooperators upon stored farm marketing excess wheat. That appellee is the worse off for the aggregate of this legislation does not appear; it only appears that, if he could get all that the Government gives and do nothing that the Government asks, he would be better off than this law allows. To deny him this is not to deny him due process of law. Cf. Mulford v. Smith, 307 U. S. 38 . Reversed. [ Footnote 1 ] 55 Stat. 203, 7 U.S.C. (Supp. No. I) § 1340. [ Footnote 2 ] 52 Stat. 31, as amended, 7 U.S.C. § 1281 et seq. [ Footnote 3 ] Because of the conclusion reached as to the merits, we need not consider the question whether these appellants would be proper if our decision were otherwise. [ Footnote 4 ] Wheat -- 507, §§ 728.240, 728.248, 6 Federal Register 2695, 2699-2701. [ Footnote 5 ] § 331, 7 U.S.C. § 1331. [ Footnote 6 ] § 335, 7 U.S.C. § 1335. [ Footnote 7 ] §§ 302(b)(h), 303, 7 U.S.C. §§ 1302(b)(h), 1303; § 10 of the amendment of May 26, 1941, 7 U.S.C. (Supp. I), § 1340(10). [ Footnote 8 ] § 335(a), 7 U.S.C. § 1335(a). [ Footnote 9 ] § 336, 7 U.S.C. § 1336. [ Footnote 10 ] 7 U.S.C. § 1339. This imposed a penalty of 15� per bushel upon wheat marketed in excess of the farm marketing quota while such quota was in effect. See also amendments of July 26, 1939, 53 Stat. 1126, 7 U.S.C. § 1335(c), and of July 2, 1940, 54 Stat. 727, 7 U.S.C. § 1301(b)(6)(A), (B). [ Footnote 11 ] 50 Stat. 752-753, § 3, 28 U.S.C. § 380a. [ Footnote 12 ] See also Gray v. Powell, 314 U. S. 402 ; United States v. Wrightwood Dairy Co., 315 U. S. 110 ; Cloverleaf Co. v. Patterson, 315 U. S. 148 ; Kirschbaum Co. v. Walling, 316 U. S. 517 ; Overnight Transportation Co. v. Missel, 316 U. S. 572 . [ Footnote 13 ] 54 Stat. 727, 7 U.S.C. § 1301(b)(6)(A), (B). [ Footnote 14 ] §§ 1, 2, of the amendment of May 26, 1941; Wheat -- 507, § 728.251, 6 Federal Register 2695, 2701. [ Footnote 15 ] Constitution, Article I, § 8, cl. 18. [ Footnote 16 ] After discussing and affirming the cases stating that such activities were "local," and could be regulated under the Commerce Clause only if by virtue of special circumstances their effects upon interstate commerce were "direct," the opinion of the Court in Carter v. Carter Coal Co., 298 U. S. 238 , 298 U. S. 308 , stated that: "The distinction between a direct and an indirect effect turns not upon the magnitude of either the cause or the effect, but entirely upon the manner in which the effect has been brought about. . . . the matter of degree has no bearing upon the question here, since that question is not what is the extent of the local activity or condition, or the extent of the effect produced upon interstate commerce? but what is the relation between the activity or condition and the effect?" See also cases cited infra, notes 17 and | 17 and S. 111fn21|>21. [ Footnote 17 ] Veazie v. Moor , 14 How. 568, 55 U. S. 573 -574; Kidd v. Pearson, 128 U. S. 222 . [ Footnote 18 ] 24 Stat. 379, 49 U.S.C. § 1, et seq. [ Footnote 19 ] 26 Stat. 209, 15 U.S.C. § 1, et seq. [ Footnote 20 ] See also Hopkins v. United States, 171 U. S. 578 ; Anderson v. United States, 171 U. S. 604 . [ Footnote 21 ] Employers' Liability Cases, 207 U. S. 463 ; Hammer v. Dagenhart, 247 U. S. 251 ; Railroad Retirement Board v. Alton R. Co., 295 U. S. 330 ; Schechter Corp. v. United States, 295 U. S. 495 ; Carter v. Carter Coal Co., 298 U. S. 238 ; cf. 76 U. S. Dewitt, 9 Wall. 41; Trade-Mark Cases, 100 U. S. 82 ; Hill v. Wallace, 259 U. S. 44 ; Heisler v. Thomas Colliery Co., 260 U. S. 245 , 260 U. S. 259 -260; Oliver Iron Co. v. Lord, 262 U. S. 172 , 262 U. S. 178 -179; Utah Power & Light Co. v. Pfost, 286 U. S. 165 . [ Footnote 22 ] Northern Securities Co. v. United States, 193 U. S. 197 ; Swift & Co. v. United States, supra; Loewe v.Lawlor, 208 U. S. 274 ; Baltimore & Ohio R. Co. v. Interstate Commerce Commission, 221 U. S. 612 ; Southern Ry. Co. v. United States, 222 U. S. 20 ; Second Employers' Liability Cases, 223 U. S. 1 ; United States v. Patten, 226 U. S. 525 . [ Footnote 23 ] United Leather Workers v. Herkert Co., 265 U. S. 457 , 265 U. S. 471 ; cf. Apex Hosiery Co. v. Leader, 310 U. S. 469 , 310 U. S. 511 ; Di Santo v. Pennsylvania, 273 U. S. 34 , 273 U. S. 44 (dissent); Northern Securities Co. v. United States, 193 U. S. 197 , 193 U. S. 395 ; Standard Oil Co. v. United States, 221 U. S. 1 , 221 U. S. 66 -69. [ Footnote 24 ] In Santa Cruz Co. v. Labor Board, 303 U. S. 453 , 303 U. S. 466 -467, Chief Justice Hughes said: "'direct' has been contrasted with 'indirect,' and what is 'remote' or 'distant' with what is 'close and substantial.' Whatever terminology is used, the criterion is necessarily one of degree, and must be so defined. This does not satisfy those who seek for mathematical or rigid formulas. But such formulas are not provided by the great concepts of the Constitution such as 'interstate commerce,' 'due process,' 'equal protection.'" [ Footnote 25 ] Baltimore & Ohio R. Co. v. Interstate Commerce Commission, 221 U. S. 612 ; Second Employers' Liability Cases, 223 U. S. 1 ; Interstate Commerce Commission v. Goodrich Transit Co., 224 U. S. 194 . [ Footnote 26 ] Cf. Federal Trade Commission v. Bunte Bros., 312 U. S. 349 . [ Footnote 27 ] It is interesting to note that all of these have federated systems of government, not, of course, without important differences. In all of them, wheat regulation is by the national government. In Argentina, wheat may be purchased only from the national Grain Board. A condition of sale to the Board, which buys at pegged prices, is the producer's agreement to become subject to restrictions on planting. See Nolan, Argentine Grain Price Guaranty, Foreign Agriculture (Office of Foreign Agricultural Relations, Department of Agriculture) May, 1942, pp. 185, 202. The Australian system of regulation includes the licensing of growers, who may not sow more than the amount licensed, and who may be compelled to cut part of their crops for hay if a heavy crop is in prospect. See Wright, Australian Wheat Stabilization, Foreign Agriculture (Office of Foreign Agricultural Relations, Depart ment of Agriculture) September, 1942, pp. 329, 336. The Canadian Wheat Board has wide control over the marketing of wheat by the individual producer. 4 Geo. VI, c. 25, § 5. Canadian wheat has also been the subject of numerous Orders in Council. E.g., 6 Proclamations and Orders in Council (1942) 183, which gives the Wheat Board full control of sale, delivery, milling and disposition by any person or individual. See also Wheat Acreage Reduction Act, 1942, 6 Geo. VI, c. 10. [ Footnote 28 ] Swift & Co. v. United States, 196 U. S. 375 ; Stafford v. Wallace, 258 U. S. 495 ; Chicago Board of Trade v. Olsen, 262 U. S. 1 ; Coronado Coal Co. v. United Mine Workers, 268 U. S. 295 ; United States v. Trenton Potteries Co., 273 U. S. 392 ; Tagg Bros. & Moorhead v. United States, 280 U. S. 420 ; Standard Oil Co. of Indiana v. United States, 283 U. S. 163 ; Currin v. Wallace, 306 U. S. 1 ; Mulford v. Smith, 307 U. S. 38 ; United States v. Rock Royal Cooperative, supra; United States v. Socony-Vacuum Oil Co., 310 U. S. 150 ; Sunshine Anthracite Coal Co. v. Adkins, 310 U. S. 381 ; United States v. Darby, supra; United States v. Wrightwood Dairy Co., supra; Federal Power Commission v. Pipeline Co., 315 U. S. 575 . [ Footnote 29 ] Cf. 17 U. S. Maryland, 4 Wheat. 316, 17 U. S. 413 -415, 17 U. S. 435 -436; Gibbons v. Ogden, supra at 22 U. S. 197 ; Stafford v. Wallace, 258 U. S. 495 , 258 U. S. 521 ; Chicago Board of Trade v. Olsen, 262 U. S. 1 , 262 U. S. 37 ; Helvering v. Gerhardt, 304 U. S. 405 , 304 U. S. 412 . [ Footnote 30 ] Section 7 of the amendment of May 26, 1941 provided that a farm marketing quota should not be applicable to any farm on which the acreage planted to wheat is not in excess of fifteen acres. When the appellee planted his wheat the quota was inapplicable to any farm on which the normal production of the acreage planted to wheat was less than 200 bushels. § 335(d) of the Agricultural Adjustment Act of 1938, as amended by 54 Stat. 232. [ Footnote 31 ] §§ 6, 10(c) of the amendment of May 26, 1941. [ Footnote 32 ] § 335(c) as amended July 26, 1939, 53 Stat. 1126, 7 U.S.C. § 1335(c). [ Footnote 33 ] § 339, 7 U.S.C. § 1339. [ Footnote 34 ] § 301(b)(6)(A), (B), as amended July 2, 1940, 54 Stat. 727, 7 U.S.C. § 1301(b)(6)(A), (B). [ Footnote 35 ] By an amendment of December 26, 1941, 55 Stat. 872, effective as of May 26, 1941, it was provided that the farm marketing excess should not be larger than the amount by which the actual production exceeds the normal production of the farm wheat acreage allotment, if the producer establishes such actual production to the satisfaction of the Secretary, provision being made for adjustment of the penalty in the event of a downward adjustment in the amount of the farm marketing excess. [ Footnote 36 ] §§ 1, 2, 3 of the amendment of May 26, 1941. [ Footnote 37 ] Section 302(b) had provided for a loan to noncooperators of 60% of the basic loan rate for cooperators, which in 1940 was 64�. See United States Department of Agriculture Press Release, May 20, 1940. The same percentage was employed in § 10(c) of the amendment of May 26, 1941, and the increase in the amount of the loan is the result of an increase in the basic loan rate effected by § 10(a) of the amendment. [ Footnote 38 ] Wheat -- 507, § 728.251(b), 6 Federal Register 2695, 2701.

Here is a summary of the case: Wickard v. Filburn (1942): - The case concerned a farmer, Roscoe Filburn, who exceeded the wheat production quota set by the Agricultural Adjustment Act of 1938, and the subsequent referendum vote to approve the quotas. - The Supreme Court upheld the validity of the vote and the constitutionality of the Act, even when applied to wheat produced for consumption on the farmer's own farm and not for interstate commerce. - The Court reasoned that wheat grown for home consumption could impact the wheat market and affect prices, as it could either flow into the market or reduce the farmer's need to purchase wheat. - This decision expanded the Congress's power to regulate interstate commerce and the ability to regulate prices and practices that affect interstate commerce. Please note that the provided text appears to be incomplete, and the summary is based on the available information.