1338 objective. Bullock, supra, at 144, 92 S.Ct. at 856. All 50 States are required by the First and Fourteenth Amendments to mai tain a separation between church and state, and yet all of the States other than Tennes- see are able to achieve this objective with- out burdening ministers’ rights to candida- cy. This suggests that the underlying as- sumption on which the Tennessee statute is based—that a minister's duty to the superi- ‘ors of his church will interfere with his governmental service—is unfounded. Moreover, the rationale of the Tennessee statute is undermined by the fact that it is both underinelusive and overinelusive While the State asserts an interest in keep- ing religious and governmental interests separate, the disqualification of ministers applies only to legislative positions, and not to executive and judi other hand, the statute's sweep is so overly broad, for it applies with equal force to those ministers whose religious beliefs ‘would not prevent them from properly dis- charging their duties as constitutional con- vention delegates. “Ae facts of this ease show that the voters ‘of MeDanic’s distri desired to have hi represent them at the limited constitutional convention. Because I conclude that the State's justification for frustrating the de- sires of these voters and for depriving McDaniel and all other ministers of the right to seek this position is insufficient, T would hold § 4 unconstitutional as a viola- tion of the Equal Protection Clause. 98 SUPREME COURT REPORTER, 438 US. 445 435 US. 647, 85 LEd.2d 614 Wilson H. ELKINS, President, University ‘of Maryland, Petitioner, Juan Carlos MORENO et al. No. 71-154. Argued Feb. 22, 1978. Decided April 19, 1978. Nonimmigrant alien students, each of whom was dependent on a parent who held a “G-4 visa”, i. e, a nonimmigrant visa granted to all officers or employees of in- ternational treaty organizations and mem- bers of their immediate family, and each of ‘whom was named in that visa, brought suit against the University of Maryland and its president, alleging that the university's re- fusal to grant them “in-state” status for tuition purposes violated the Fourteenth Amendment's due process and equal protec- tion clauses. The United States Distriet Court for the District of Maryland, 420 F Supp. 541, granted relief, but limited it to 1 declaration and injunction restraining the jent from denying plaintiffs the oppor- in-state status solely be- eause of an “irrebuttable presumption of nondomicile”, and defendants appealed. ‘The Court of Appeals, Fourth Cireuit, 856 F.2d 575, affirmed and certiorari was grant- ed. The Supreme Court, Mr. Justice Bren- nan, held, inter alia, that: (1) under federal law, G-4 aliens have the legal capacity to change domicile, and (2) the question whether G-4 aliens can become domiciliar- jes of Maryland is potentially dispositive of the ease and, since such question is purely a matter of state law on which there is no ‘controlling precedent, the question would be certified to the Maryland Court of Ap- peals for determination. Question certified. Mr. Justice Rehnquist filed a dissenting, opinion in which Mr. Chief Justice Burger joined,435 US. 447 ELKINS v. MORENO ‘Ce as 98 S.Ct 1388 1978) 1. Colleges and Universities 9 Although university, which refused “in- state” status to nonimmigrant alien stu- dents, each of whom was dependent on @ parent who held a “G-4 visa,” might eon- sider factors other than domicile in grant ing in-state status, the record showed that respondents were denied such status be- cause of the university's determination that G-4 aliens could not form the intent needed to acquire Maryland domicile; therefore, the instant ease was controlled by principles announced in Viandis, as limited by Salfi, to ‘those situations in which a state purports to be concerned with domicile but denies to fone secking to meet its test the opportunity to show facts clearly bearing: on that issue. Immigration and Nationality Act, § 101(a)(15)(GXiv) as amended 8 USCA. § 1101(@X15\GViv). 2. Constitutional Law ©=46(1) Before considering, in action brought by children of resident nonimmigrant aliens to have university's “in-state” tuition policy declared unconstitutional as applied to them, whether Viandis should be overruled or further limited, proper concern for stare Aevisis as well as the Supreme Court’s long standing poliey of avoiding unnecessary constitutional decisions required that the necessity of a constitutional decision be shown; but no such showing was presently made, since a potentially dispositive issue, the determination whether university's irre- bouttable presumption of nondomicile was universally true, turned on federal statuto- ry law and state common law as to which there were no controlling precedents. Im- migration and Nationality Act, § 101(a)(15)(GYXiv) as amended 8 USCA. § 1101(@X15\GXiv). 3. Federal Courts <=392 In a federal system, it is obviously de- sirable that questions of law whieh, like domicile, are both intensely local and im- mensely important to a wide spectrum of state government activities be decided in the first instance by state courts. 4. Domicile ©=4(1) “G-4 visa," i.e, a nonimmigrant visa ‘granted to officers or employees or interna- tional treaty organizations and members of their immediate families, have the legal ca- pacity to change domicile, since Congress, in the Immigration and Nationality Act, ex- pressly required that an immigrant seeking admission under certain nonimmigrant elas- sifications maintain a permanent residence abroad which he has no intention of aban- dining, but Congress didnot impose this restriction on G-4 aliens, and since the con- clusion was inescapable that Congress’ fale ure to impose such restriction was deliber- ate and manifested a willingness to allow G-+4 aliens to adopt the United States as their domicile. Immigration and Nationali- ty Act, §§ 101 et seq, 101(a\15), (2\15NGXiv), 201 as amended 8 USCA. $6 1101 et seq, 1101(aX15), (a) I5KGXiY), 1151 5. Aliens e=44, 58.4 Under federal law, a “G-4” alien will not violate the Immigration and Nationality Act, INS regulations, or the terms of his visa if he develops a subjective intent to stay in the United States indefinitely; moreover, although a G-4 visa lapses on termination of employment with the inter- national treaty organization, a G-4 alien would not necessarily have’ to leave the United States. Immigration and National- ty Act, §§ 101 et seg, 101(a)(15), (@X15NGXiv), 201 as amended 8 USCA. $6 IOI et seq, 1101(a}I5), (aX A5KGXIW), 1151. 6. Federal Courts <=392 Since, in suit brought by nonimmigrant alien students, each of whom was depend- ent on a parent who held a “G-4 visa,” challenging the University of Maryland's refusal to grant them “in-state” status, the question whether G-4 aliens ean become domiciiaries of Maryland was potentially dispositive of the case, and since such ques- tion was purely a matter of state law on Which there was no controlling precedent, the question would be certified to the Mary-‘ourt of Appeals for determination. gration and Nationality Act, § 101(a)15XGXiv) as amended 8 USCA. § 1101(a)15\GXiv); Md.Code, Courts and Sudieial Proceedings, §§ 12-601 to 12-608, Syllabus * It is the policy of the University of Maryland to grant “in-state” status for ad- mission, tuition, and charge-differential purposes only to students who are domiciled in Maryland or, if a student is financially dependent on his parents, whose parents are domiciled in Maryland,’ In addition, the University may in some cases deny in-state status to students who do not pay the full spectrum of Maryland state taxes. Pursu- fant to this poliey the University refused to ‘grant in-state status to respondent nonim- ‘migrant alien students, each of whom was dependent on a parent who held a "G4 visa” (a nonimmigrant visa granted to offi- cers or employees of international treaty organizations and members of their imme- diate families) and each of whom was named in that visa, on the ground that the holder of a G-4 visa cannot acquire Mary- land domicile because such a visa holder is incapable of demonstrating an essential ele- ‘ment of domicile—the intent to live perma- rently or indefinitely in Maryland. After unsuccessful appeals through University channels, respondents brought a class action in the Federal District Court for declarato- ry and injunctive relief against the Univer- sity and ite President (petitioner), alleging that the University’s refusal to grant them in-state status violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. ‘The Distriet Court granted relief, but limited it to a declaration and injunction restraining the President from denying respondents the opportunity to es- tablish in-state status solely because of an ““irrebuttable presumption of non-domicile.’ ‘The court held that such an irrebuttable presumption violated the Due Process Clause, finding that reasonable alternative ‘The syllabus constitutes no part of the opinion fof the Court but has been prepared By the Reporter of Decisions for the convenience of 98 SUPREME COURT REPORTER 438 US. 447 procedures were available to make the era- ial domicile determination and rejecting the University’s claim that the Immigration and Nationality Act of 1952 and Maryland common law precluded G-4 aliens from forming the intent necessary to acquire domicile. “The Court of Appeals affirmed. Held: 1. Although the University may con- sider factors other than domicile in grant- ing instate status, the record shows that respondents were denied such status be- ‘eause of the University’s determination that G-44aliens could not form the intent need-_less ‘ed to acquire Maryland domicile. There- fore, this case is controlled by prin announced in Viandis v. Kline, 412 US. 441, 98 S.Ct, 2230, 87 L.Bd.2d 68, as limited by Weinberger v. Salfi, 422 US. 749, 77, 95 SCL 2157, 2469, 45 LEA2d 522, 542, to those situations in which a State “purport(s} ‘to be concerned with [domicile, but] at the same time denfies] to one seeking to meet its test of (domicile) the opportunity to show factors clearly bearing on that issue.” Pp. 1845-1846, 2 Before considering whether Vian- dis, supra, should be overruled or further limited, proper concern for stare decisis ax well as the Court’s longstanding policy of avoiding unnecessary constitutional deci sions requires that the necessity of a const tutional decision be shown, and no such showing has been made here because a po- tentially dispositive ise, the determination whether the University’s irrebuttable pre- sumption is universally true, turns on feder- al statutory law and state common law as to which there are no controlling. prece- dents. Pp, 1346-1347, 8. Under federal law, G-4 the legal capacity to change domicile 1348-1350, (a) In the Immigration and Nationality Act, which was intended to be a eomprehen- sive and complete code governing all as- peets of admission of aliens to the United the reader. See United States ¥. Detroit Tim ber & Lumber Co, 200 U.S. 321, 337, 26 S.Ct 282, 287, 50 LEG. 499, 505 jens have Pp.